text:
    (No. 81-CC-2740
    Jack R. Roach, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 8, 1986.

    Lynch & Bloom, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This claim arises out of a motorcycle accident which occurred on or about August 31, 1980, in the vicinity of mile marker 15.00 on Route 24, a State highway. The Claimant was proceeding south on said Route 24, on a 1974 Kawasaki 900 motorcycle. He then struck a hole or depression in the pavement, which was not visible to him prior to the accident. He stated that he was traveling approximately 40 miles per hour in a 45 mile-per-hour zone when he struck the hole. As a result of Striking the hole, he was thrown from his motorcycle. He sustained abrasions, palpation crepitations over the right clavicle, a comminuted fracture of the right clavicle, and a fracture of the neck of the right scapula.

Charles A. King, Sr., a police officer, testified via an evidence deposition. He testified that a prior motorcycle accident had occurred at approximately the same location on or about August 3,1980. He further testified that road conditions at the point in question were rough, and in need of resurfacing both on August 3, 1980, and still on August 31,1980. The Respondent called Mr. Kris Jain, a civil engineer employed with the Department of Transportation of the State of Illinois. Mr. Jain testified that the road conditions were rough at the scene of the accident. He further testified that there were no signs warning of “rough road.” He did testify that there was a sign which said “Road Construction Ahead.”

It appears that the Claimant did exercise due care for his own safety at the time of the accident. The Claimant testified that he was driving within the speed limit and wearing a safety helmet when he struck the hole on August 31,1980. There was no evidence to refute this. That the two accidents occurred at the same point over a period of 28 days clearly indicates that the State was negligent in its failure to notify the public of this specific hole, or to undertake proper repairs.

We cite the case of Coughan v. State (1974), 29 Ill. Ct. Cl. 434, for the provision that the State is negligent if a hole exists in the pavement which, because of its size and length of time it has existed, the State should have known about.

Further evidence indicated a State engineer drove on this roadway every day. This is also evidence of negligence. The hole was not repaired, and sufficient warning signs were not placed along the roadway.

Accordingly, we find for the Claimant. The Claimant suffered $4,140.40 in lost wages, and approximately $3,021.15 in medical expenses, repair to the motorcycle, and loss of personal property. We therefore award the Claimant the sum of $30,000.00.


source: Caselaw Access Project

author: Patchett, J.

license: Public Domain

text:
    (No. 82-CC-0492
    Peter P. Godels, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 7, 1985.

    Saikley, Garrison & Kagawa, Ltd., for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This cause was heard on a motion to dismiss before the entire Court, and oral argument was then and there presented. Following that hearing, the case was referred to Commissioner Barnes for a hearing. The case was then presented to the commissioner by way of stipulation. Pursuant to the stipulation, the commissioner wrote his report.

The evidence before us, pursuant to stipulation, establishes that the Claimant became the owner of a certain piece of real estate, located in the Village of Tilton, by warranty deed executed and acknowledged on April 24, 1968, for the sum of $2,000.00 from Ira and Pearl Accord.

Pursuant to affidavit, the purchaser states the deed was delivered to him on the date that it bears, but that he did not record the deed until the year 1980. On October 3, 1969, the Illinois Department of Public Aid, hereafter referred to as IDPA, filed a notice of lien against the real estate in question and duly renewed said lien within the five-year period as provided by statute. The Claimant attempted to sell the real estate to third parties in the year 1980, at which time he was made aware that there was a $1,350.00 lien claim from the IDPA. The Claimant requested the IDPA to remove said lien, but they refused and accordingly he was required to pay $1,350.00 to obtain a release so as to convey merchantable title.

It is further noted for the record that Ira Accord and Pearl Accord had applied for public assistance in July of 1969, and were both granted the same in 1969, with medical assistance for Pearl Accord from June of 1969. There is some indication in the record that Ira Accord had received some benefits as far back as 1948 and into 1969, but we do not believe that this is relevant to our discussion. There is no allegation or stipulation that this transaction was other than an arms-length transfer of property for full value between nonrelated parties. Since this is the case, we are presented with a very narrow legal issue, being:

What is the effect, if any, of a public assistance notice of lien filed pursuant to section 3 — 10.2 of the Illinois Public Aid Code on a prior, but unrecorded, transfer of real estate Ill. Rev. Stat., ch. 23, par. 3 — 10.2.

The law is quite clear that a transfer is effective between parties upon delivery of a deed regardless of whether or not the State should receive any protection by virtue of the fact that the deed was not recorded. The public assistance lien is a general lien that, when filed, attaches to any property owned by the recipients. This is further shown by the specific statutory language in section 3 — 10.2, which states, and we quote, “The lien shall be prior to any lien thereafter recorded or filed and shall be notice to a subsequent purchaser (emphasis added), assignor, or encumbrancer of the existence and nature of such lien.” (Ill. Rev. Stat., ch. 23, par. 3 — 10.2.) In our opinion, the Claimant does not move to the position of a subsequent purchaser simply because he did not record the deed. In support of this result, we would further refer the parties to the discussion by John Cribbet in his book, Principles of the Law of Property. In his discussion upon the law of recording, he bases the criterion for being protected on those who rely on the system. In other words, if you are a purchaser for value (BFP) or have lent money on reliance of a clear title, then obviously you would be protected against clouds, liens, or judgments on the premises. The State, however, does not meet this criterion. In fact, public aid is given on the basis of not having property of sufficient income. The State did not rely on any ownership of property to make such payments. Therefore, the Ben was invaBd.

The State then received a windfall from the Claimant due to the contractual pressures of his not being able to consummate a sale until he could convey merchantable title.

For all of the above reasons, this Court awards the Claimant the sum of $1,350.00.


author: Holderman, J.

text:
    (No. 82-CC-0578
    Dravo Mechling, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 15, 1985.

    Snyder & Gerard (S. Michael Ritter, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (John Perconti and Jennifer Dover, Assistant Attorneys General, of counsel), for Respondent.
   Holderman, J.

Claimant in this matter, Dravo Mechling, is the owner of a Towboat Barge Company which seeks to recover for damages to its barge DM-907 which it claims resulted from the barge’s collision with the Cass Street bridge near Joliet, Illinois, on November 27, 1980. On that date, the LYNN B, a diesel-powered towboat pushing the tow, was proceeding southbound on the Illinois River toward Joliet, Illinois, with 11 barges in tow. The tow consisted of four barges on the port side, four barges in the center and three barges on the starboard side.

At a hearing held in this matter, Captain William Wince, the pilot of the LYNN B, testified that on the date of the alleged collision, barge DM-907 was the lead barge on the port side as the tow approached the Cass Street bridge. In his discovery deposition taken August 13,1984, he stated the barge in question was not the lead barge but was the second barge on the port side as the tow approached the bridge. Evidence introduced showed that, as the LYNN B approached the bridge, the Captain sounded the proper signal from a boat for a bridge to open, which is one long blast on the boat’s horn, which should be answered by the bridge tender with one long blast from the bridge siren or whistle and the switching on of the green visual signal lights. The evidence also shows that the pilot of the LYNN B did not receive any notice from the bridge tender that the bridge was going to open. The pilot testified that the traffic gates for the vehicular traffic over the bridge were still up, indicating the vehicular traffic was still crossing the bridge. He stated he was moving at about two miles per hour and the front of the tow was under the bridge when he reversed the engines. The Captain further testified that the lead barge number DM-907 struck the bridge causing damage to the barge.

There are many rules and regulations concerning accidents of this kind. One of these rules states that when a vessel collides with a bridge, the bridge tender is to write a report of the accident at once and send it to the bridge engineer, and it is a requirement that an accident report be made out on a standard form and submitted to the bridge engineer immediately following the accident. The rules further state that the accident report must be completed irrespective of any property damage or injury. The bridge operator is required by the rules to obtain every detail possible and include it in the accident report. The rules and regulations also provide that such a collision be entered in the bridge tender’s log book and be correct and true as they form a permanent record of the operation of the bridge and it may be referred to later on in the case of controversy or lawsuit.

In this case, there was no entry in the bridge tender’s log sheet to indicate an accident had occurred at the Cass Street bridge on November 27, 1980. No accident report pertaining to this collision was filed with the bridge engineer as required by the rules and regulations for the guidance of bridge tenders.

Although it is standard procedure for Claimant to report such accidents in the towboat pilot’s log sheet, in this case there was no report of the alleged accident in the log sheets for the towboat, LYNN B, on November 27,1980.

On November 29, 1980, the same tow struck a pier at a bridge at Ottawa, Illinois. An entry in the pilot’s log referring to that incident states, “Rubbed bridge at Ottawa Highway, Barge 4815 sinking Bow, C. Guard on.” The Coast Guard was notified of this incident and the proper procedures were followed. This was in contrast to the alleged accident in Joliet, Illinois.

Mr. Karlton M. Keeney testified for Respondent. He is a bridge engineer and responsible for the operation and maintenance of moveable bridges in the Joliet, Illinois, area. He testified that on December 2, 1980, he personally inspected the Cass Street bridge and found no damage to the bridge.

It is standard procedure in accidents of this kind that the vessel master will notify the closest Coast Guard office. The Coast Guard then informs the marine safety office after which a Coast Guard 2692 form is sent to the vessel owner and an inspector sent out. Failure to report damage to a vessel within five working days after the accident was grounds in 1980 for a $100.00 fine.

In the present case, the Coast Guard was not notified of the alleged accident and the Coast Guard form 2692 was never prepared. Captain Wince testified he had a radio on board but failed to report the accident. In addition, Captain Wince left the scene of the alleged accident, thereby depriving the Department of Transportation of the opportunity to inspect the allegedly damaged barge.

Claimant seeks to recover the sums it expended in the repair of said barge as well as lost earnings from the loss of use of the barge while it was being repaired.

In this case, the towboat failed to follow the prescribed procedures in reporting accidents of this kind. This is in direct contrast to the procedure followed after the collision at Ottawa, Illinois.

The evidence indicates it is unlikely the tow and the lead barge DM-907 struck the Cass Street bridge, since there is no such entry of such a collision in the pilot’s log or the bridge tender’s log. The fact that the bridge tender and the pilot both failed to make an entry of such an accident leads the Court to conclude that there was not any accident at the Cass Street bridge. This is further strengthened by the fact that the bridge engineer who examined the Cass Street bridge found no damage to the bridge or evidence of the barge striking said bridge. The fact remains also that the pilot of the tow never received the required response from the bridge tender and still proceeded to go under the bridge.

This Court is of the opinion there was not any accident on November 27, 1980, with the Cass Street bridge near Joliet, Illinois. This claim is dismissed.


author: Poch, J.

text:
    (No. 82-CC-1395
    Willie B. Hadley, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 11, 1985.

    Willie B. Hadley, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

Claimant, an inmate of an Illinois correctional institution brought suit against Respondent for “prisoner’s pay” of which Claimant was deprived while he was in disciplinary segregation, at Menard Correctional Center.

A hearing was held before a Commissioner of this Court.

Claimant’s case rests on the theory that another inmate, one Wilson, who was housed in disciplinary segregation with Claimant at Menard Correctional Center, was paid “prisoner pay” while in disciplinary segregation and that, according to the policy of Menard Correctional Center, Claimant did not receive comparable “prisoner pay” while in circumstances identical to that of the inmate who did in fact receive “prisoner pay” for the same period of time.

The record in this cause establishes that institutional policy covering inmates subject to disciplinary segregation requires that their normal “prisoner pay” be withheld during periods of disciplinary segregation. The record further demonstrates that the inmate in question, who apparently received “prisoner pay” for time spent in disciplinary segregation, received the pay as a result of the fact that the “ticket” pursuant to which that inmate was incarcerated in disciplinary segregation had been “expunged.” The record further conclusively demonstrates that in such an incident, in accordance with institutional policy, the inmate’s “prisoner pay” was reinstated and was paid to him for the period of time that the inmate was incarcerated in disciplinary segregation on the ticket that was later expunged.

Under these circumstances, Claimant’s proof supports no theory of recovery against Respondent.

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


author: Raucci, J.

text:
    (No. 82-CC-1495
    Henry Hurst, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 20, 1985.

    Henry Hurst, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

Claimant, an inmate at an Rlinois correctional institution, makes claim against the State of Illinois for loss of personal property by Claimant in an attack by other inmates, which allegedly occurred in the presence of unidentified personnel of Respondent.

On the occasion in question, Claimant was returning from the commissary with various items of commissary goods alleged by Claimant to total $75.00. Claimant alleges that he was attacked in plain view of Respondent’s officers, who did not offer assistance so as to prevent the attack or Claimant’s subsequent loss of personal property.

Additionally, Claimant seeks reimbursement for various items of personal property allegedly removed by other inmates from his cell as a result of a failure on the part of Respondent to deadlock Claimant’s cell while Claimant was absent from the cell. As to this latter series of losses, Claimant alleges that other inmates were guilty of stealing his property.

First, with respect to the value of items allegedly removed from Claimant’s cell, it has been the longstanding policy of this Court that such unexplained thefts from prisoners’ cells cannot result in an award absent special circumstances, which do not appear of record in this case. There is no showing in the record that Claimant’s personal property was ever in the possession of Respondent or was loát or misplaced while in the possession of Respondent’s agents.

As to the allegations of Claimant regarding the incident first set forth above, it is noted that an institutional grievance proceeding filed by Claimant charging Respondent’s agents with negligence in failing to come to Claimant’s assistance resulted in an institutional decision that no negligence was indicated on the part of Respondent’s agent. The record is silent as to sufficient proof to justify this Court in effect reversing the result of an institutional inquiry into this allegation of negligence on the part of Respondent’s agent.

It should be noted that in the departmental report, Major McDonough, who did not testify at the hearing in this cause, stated that although he was aware Claimant was attacked by two residents in East Cell House, that there were no officers “around that could help Hurst.”

The State is not an insurer of the safety of inmates or of the preservation of inmates’ personal property while in State institutions.

It is therefore ordered that the claim is denied.


text:
    (No. 82-CC-2330
    Michael E. Ratts, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 3, 1986.

    Calandrino, Logan & Berg (Michael J. Logan, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Susanne Schmitz and Sue Mueller, Assistant Attorneys General, of counsel), for Respondent.
   Poch, J.

Claimant, Michael E. Ratts, seeks recovery for an injury to his right middle finger.

The following salient facts herein summarized were established by Commissioner Bruno P. Bernabei and duly reported to the court.

On April 28,1980, Claimant, Michael E. Ratts, was employed as a service repairman by the A.B. Dick Company, and in his capacity of repairman was sent to the offices of the Department of Transportation at 2300 Dirksen Parkway, Springfield, Illinois, for the purpose of repairing a printing press belonging to the Department of Transportation.

Claimant testified that he was working on the machine with his hands in the roller mechanism when he instructed Respondent’s employee to “run another master on the camera.” Respondent’s employee testified that the Claimant told him to “run more copies” and that after turning on the machine for the purpose of running more copies he heard a funny noise and that when he turned around the Claimant was holding his hand.

The Claimant asserts that the State is liable for the injuries sustained, because of the negligence of an employee of the State who was assisting him.

It is obvious that there is a factual dispute as to what the Claimant instructed Respondent’s employee to do. It is clear that this claim turns on issues of fact and that the testimony of the two occurrence witnesses is in direct conflict.

The State is not an insurer of the safety of invitees, but must only exercise reasonable care for their safety. See Fleischer v. State (1983), 35 Ill. Ct. Cl. 799.

The burden is upon the Claimant to prove by a preponderance of the evidence that the State breached its duty of reasonable care. This the Claimant has failed to do.

In view of the direct conflict of testimony which was presented before the trier of fact, the Court can only speculate as to how the injury occurred.

We find that the Claimant has not shown by a preponderance of the evidence that the Respondent was negligent and this claim is therefore denied.


author: Montana, C.J.

text:
    (No. 82-CC-2354
    Elizabeth Bennett, Marie Serletic, and V.V. Bennett Co., Inc., Claimants, v. The State of Illinois, Respondent.

      Opinion filed June 12, 1986.

    Casey & Casey, for Claimants.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This is a claim for damages suffered by Claimants due to flooding allegedly caused by Respondent. A hearing was held on January 31, 1985, and February 1, 1985, before Commissioner Robert A. Barnes, Jr. Both parties have filed their briefs and Commissioner Barnes has duly filed his report. The Court heard oral arguments concerning the claim on May 7,1986.

Elizabeth Bennett and Marie Serletic owned real estate commonly known as 1090 West Taintor Road, Springfield, Illinois. The real estate was described in part as the West 80' of the North 150' of Lot 4 of William and Gersham Jayne’s Plat. It was improved with a combination residence-store building. V.V. Bennett Co., Inc. was a corporation engaged in the business of retail sales of horse equipment and riding apparel at 1090 West Taintor Road. The individual Claimants were the shareholders and officers of the corporate Claimant.

Elizabeth Bennett died testate October 31, 1982, and her will was admitted to probate by the Circuit Clerk of Sangamon County. Marie Serletic was the sole residuary legatee under her will. 1090 Taintor Road was owned in joint tenancy by decedent and Marie Serletic; the latter succeeded to entire ownership of the real estate. A motion to substitute Marie Serletic for the decedent was filed December 27,1984. Respondent had no objection to the motion to substitute Marie Serletic.

The Department of Agriculture of the State of Illinois owned the Illinois State Fairgrounds, which consisted of 300 acres bounded on the north by Taintor Road and on the east by Peoria Road in the northeast quarter of the City of Springfield, Illinois. The sewer system of the fairgrounds included storm sewers, sanitary sewers and combination storm and sanitary sewers. The Springfield Sanitary District complained that the sanitary sewers were overloading its treatment plant with storm runoff while the Illinois Environmental Protection Agency complained that the storm sewers were discharging untreated sewage onto the ground and into streams. To meet the complaints, the Department of Agriculture, through the Capital Development Hoard, chose in 1980 to rehabilitate the sewer system of the fairgrounds by separating the sanitary sewers and storm sewers. A private engineer was hired to prepare plans and the project was begun in the Spring of 1981.

To effect separation of the sanitary and storm sewers it was necessary to disconnect or cap the diversionary facilities, including one situated approximately 120 yards southwest of 1090 Taintor Road. The diversionary facilities connected the sanitary sewers and storm sewers permitting heavy flows in one to be shunted into the other. Ruilding downspouts and curb drains of the fairgrounds were connected with the sanitary sewers and there were undisclosed connections between the storm sewers and the sanitary sewers.

On July 27,1981, and August 2,1981, heavy rainfalls occurred and Claimants’ property flooded. It appears from the record that the capping of the diversionary facility southwest of Claimant’s property caused the sanitary sewers, which were still carrying surface runoff, to become overloaded in times of heavy rainfall and discharge the excess water through a sanitary manhole onto the Claimants’ real estate. In effect, the capping of the diversionary facility made the area a retention pond to hold surface runoff from the fairgrounds until it drained off. The evidence also indicates that prior to the capping of the diversionary facility, Claimants’ property had never flooded.

On both July 27, 1981, and August 2, 1981, the excess water discharged onto Claimants’ real estate entered the basement of the residence-store building through the back door. On each occasion attempts were made to Carry inventory and equipment stored in the basement upstairs. Testimony established that the cost of damage suffered on July 27,1981 amounted to $1,000. Damage to the building and the business on August 2, 1981, was more severe because the Claimants were forced to stop their efforts to remove the inventory and equipment when water in the basement approached the master switch for the electricity. The total amount of the damage suffered from flooding on both days was $36,126.24.

We find that we agree with Claimants’ assertion that application of the doctrine of res ipsa loquitur is appropriate in this case. The flooding which caused the damage to Claimants’ real estate was from property solely in the possession and control of the State, and such flooding had not occurred prior to the alteration of the diversionary facility southwest of Claimants’ real estate. The Claimants in no way contributed to the happening of the damage. It, therefore, is appropriate to infer negligence on the part of the State in the design or construction of the sewer improvements. The State’s contention that it was not solely in control of the sewer system because the flooding may have been aggravated by a plugged drain on adjoining property is without merit.

Having found the application of the doctrine of res ipsa loquitur to be appropriate in this case, we further find that the State failed to rebut the prima facie inference of negligence raised by the application of the doctrine. The Claimants are therefore entitled to receive an award of $36,126.24.

Claimants further contend they are entitled to receive an award for attorney fees and costs based either on section 45 of the Environmental Protection Act (Ill. Rev. Stat., ch. 111½, par. 1045) or section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat., ch. 110, par. 2— 611). We find that both of these contentions are without merit. Claimants are therefore not entitled to receive an award for attorney fees and costs.

Wherefore, it is hereby ordered that an award of $36,126.24 be, and hereby is, awarded to the Claimants in full and final satisfaction of this claim.


text:
    (No. 82-CC-2678
    Anita Nelson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 7, 1985.

    James Kenny, for Claimant.
    Neil F. Hartigan, Attorney General (Lynn Schock, Assistant Attorney General, of counsel), for Respondent,
   Raucci, J.

This cause arises from Claimant’s claim for damages arising from her alighting from a Blazer vehicle in the parking lot of a Secretary of State’s driver’s licensing facility.

From the evidence introduced at the hearings, it appears that Claimant, Anita Nelson, a female, age 63, was injured on April 23, 1981, in the parking lot at the premises owned and operated by the Secretary of State, State of Illinois, at 5401 North Elston Avenue, Chicago, Illinois. Claimant was upon said premises to conduct official business, i.e. transfer her license plate registration.

Claimant alleges that the injury occurred when she was caused to fall after stepping into a large depression or hole in the pavement in the parking lot. Claimant suffered bruises, contusions and a fractured ulna as a result of this occurrence.

Claimant testified she had exited from the passenger side of her daughter’s vehicle, which was a 1979 Blazer, which has a high body. It happened at about 3:00 or 3:30 p.m. in the daytime. She claims that she had walked to the rear of said vehicle and was on her way to the entrance of the facility when she stepped into the depression.

Claimant was taken to Resurrection Hospital where she was hospitalized for six days. Claimant was treated by Dr. Walter T. Hackett and Dr. T. A. Wozniak. No report of the accident was made to the Secretary of State facility at the time of the accident. Chicago Police were called to Resurrection Hospital on the day in question and a report was made by the reporting officer, Stanley Cook. The reporting officer’s report reads as follows:

“As victim alighted from daughter’s auto (which was parked in public parking lot north of facility) she stepped into slight dip in lot evidentally for water drainage, falling onto her right side causing pain to right arm. X-rays to be taken at Resurrection Hospital. R/O’s checked parking lot area where victim fell, found no defects at writing of this report; dip found possibly used for water drainage to sewer.”

The hospital records in evidence state: “This patient was getting out of a van yesterday and missed a step, falling on her stomach and her right elbow. The patient felt pain in the right elbow and she was brought to the emergency room.”

Evidence introduced on behalf of the Respondent indicated that the small depression was approximately 1/4 of an inch in depth. Claimant’s photographs in evidence show a tiny crack in what appears to be a trench for a conduit running across the parking lot. In Claimant’s exhibit 2, there appears an “X” on a small defect which Claimant’s witnesses indicate is the alleged defect which caused Claimant to fall.

Claimant’s bills were as follows:

Resurrection Hospital (6 days) $1,697.95
Dr. Wozniak $ 677.00
Dr. Hackett $ 301.00
She also had household help in the amount of $300 to $400.

Hospital records indicate that Claimant had a fracture of the right elbow; morbid obesity.

The Court is of the opinion that there was no serious defect in the pavement in Respondent’s parking lot. It is further of the opinion that inasmuch as this alleged fall occurred in the daylight, Claimant, in the exercise of due care and caution, should have seen the slight crack in Respondent’s pavement.

In addition to the fact that the alleged defect was slight, at best, there is no evidence that Respondent had notice of the defect. (Heimann v. State (1977), 32 Ill. Ct. Cl. Ill.) The lack of notice of a defect, not so obvious as to put Respondent on notice of its existence, is fatal to Claimant’s case.

There is also some doubt as to how the accident happened. The statement in the hospital records signed by the attending physicians states that “the patient was getting out of a van and missed a step, falling on her stomach and her right elbow.” This supports the conclusion that she fell getting out of the high Rlazer Van and not as a result of any defect in Respondent’s parking lot.

It is hereby ordered that this claim is denied.


text:
    (No. 83-CC-0075
    Les Allott, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed August 7, 1985.

    Anthony H. Hart, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This cause coming on to be heard on the Respondent’s motion to dismiss and the Court being fully advised in the premises, finds that the Respondent has stated two good and sufficient grounds, either one being sufficient for this Court to dismiss this action.

1. As set forth in paragraph 1 of the complaint, this is a claim for $20,843.55 for interest earned and held by the Illinois Building Authority.

2. The claim is for interest allegedly earned by the Illinois Building Authority while holding retainage fees pending litigation between the Claimant, a subcontractor, and the Corbetta Construction Company, the general contractor, at construction project #76-121 at Joliet Junior College.

3. The first basis for dismissal of this action is that the State of Illinois is not liable for interest on construction fund money to the payee, as illustrated by the following:

A. Interest is not due a defendant on a refund of fines paid under a statute later declared unconstitutional, People v. Meyeroioitz, 61 Ill. 2d 200.
B. Interest on bid deposit not allowed where bid deposit was ordered returned because of mistake in bid. Santucci Construction Co. v. County of Cook, 21 Ill. App. 3d 529.
C. The Interest Act provisions on prejudgment and postjudgment interest do not authorize imposition of interest on the State. Court may not award interest against the State. City of Springfield v. Allphin, 82 Ill. 2d 571.
D. Interest on money borrowed by a general contractor to pay a subcontractor termed penalty and denied by this Court in Erik A. Borg Co. v. State (1982), 35 Ill. Ct. Cl. 174.
E. FEPC settlement included provision for interest — Court refused to enforce interest provision. Liddell v. State (1978), 32 Ill. Ct. Cl. 209.
F. In absence of statute providing for same, interest is not allowable. Coach Corp. of Freeport v. State (1949), 18 Ill. Ct. Cl. 156.

4. The second basis for denial of this claim is that the statute of limitations has run. The Court notes that this Claimant is a sub-contractor, who has no contractual privity with the State of Illinois and the claim is, therefore, not founded in contract and subject to a two-year statute of limitations. The interest being claimed dates all the way back to 1972. However, even if this Court had authority to allow the Claimant to file, subsequent to the order of the Circuit Court of Will County, Twelfth Judicial Circuit, wherein the Illinois Building Authority was dismissed as a defendant and the Claimant be granted leave to file this action against the Illinois Building Authority, in this Court that order was entered on October 4, 1979, and the claim currently before this Court was not filed until July 22,1982, some two years and nine months after the court order. Therefore, under no conceivable theory, was this claim filed within the statutory limitation.

For the above reasons, it is hereby ordered that this claim be and the same is hereby dismissed.


text:
    (No. 83-CC-0546
    Joseph Marsala, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 13, 1986.

    Robert S. Kosin Ltd., for Claimant.
    Neil F. Hartigan, Attorney General (James Tyson, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This claim arises in tort. The occurrence complained of was the result of a bump on the east bound Touhy Avenue, where it intersects with Wolf Road in Cook County, Illinois.

The Claimant, Joseph Marsala, was driving a concrete truck which overturned as a result of hitting a bump at this intersection.

There was disputed evidence as to the size of the bump in question. There is no doubt that the Respondent had notice of the bump in question. The truck overturned as a result of a spring breaking. This caused the tires to jam in such a manner that the truck overturned.

Evidence indicated that the Claimant was driving approximately 25 miles per hour when the truck contacted the bump. We believe that the bump was the cause of the spring breaking; and therefore, the bump was the cause of the truck overturning. We see no evidence of contributory negligence on the part of the driver. Therefore, we find for the Claimant.

Claimant suffered injuries to his lower back and head. He was taken to Holy Family Hospital in Des Plaines, Illinois. Subsequently he was transferred to Hines Hospital in Maywood, Illinois and treated by Dr. Rachauskas. After being under his care for two months, he went to McNeal Hospital in Berwyn, Illinois for a nine-day stay. He incurred substantial medical bills. In addition, he testified that he has recurring back pains, and wears a back brace at all times other than in his sleep. He was advised by doctors to have the disc in his back removed through laminectomy. At the time of his accident, his average gross pay was $900.00 per week.

Considering the pain and suffering of the Claimant, his medical bills, and lost wages, we award the Claimant the sum of $35,000.00. Since there is a $21,733.25 lien by the Casualty Insurance Company, we direct that the claim be divided as follows:

$21,733.25 be awarded to the Casualty Insurance Company to satisfy its lien, and the balance of $13,266.75 shall be awarded directly to the Claimant.


text:
    (No. 83-CC-0675
    Elijah Childs, Claimant, v.. The State of Illinois, Respondent.

      Opinion filed September 20, 1985.

    Elijah Childs, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This is an action in tort brought by Claimant for injuries he sustained when he was a prisoner in custody of the Department of Corrections. Claimant was sat upon and injured in a fight principally between other inmates.

Claimant’s theory in this case is set out in his complaint as follows:

a. On Thursday, July 22, 1982 between 10:15 and 10:35 a.m., Claimant was hit with a steel paddle used for mixing foods, while Claimant was working on his detail in the vegetable house at the Menard Correctional Center.

b. The agent of Respondent in charge of the vegetable house had left the front door to that area opened and a gate open that was designed to keep unauthorized residents out of the vegetable house.

c. That at the time in question, three unknown residents entered the vegetable house and attacked one Morgan, a fellow inmate, who, in defending himself, threw a metal paddle at his assailants, which accidentally struck Claimant on the leg and injured Claimant.

Claimant testified that at the time of the incident in question, the door and gate to the vegetable house had been left open. (T. 3) Claimant stated, “the door or the gate was supposed to be closed and locked at all times.”

Claimant further testified that the rule regarding the closing of the gate or door to the vegetable house was “to keep people from coming in, you know, who are not authorized to come in there.”

Darnell Palacio, an inmate called by Claimant as a witness, testified that at the time Claimant was hurt, Respondent’s agent in charge of the vegetable house was either in his office or standing outside the gate. Palacio said that both of the doors and the gate to the vegetable house were open at the time. The gates were locked when the knives were out, but the gate and door were open at the time Claimant was injured. (T. 18). Palacio stated that sometimes the gate and the door are not locked when people are running in and out picking up things out of the freezer. Palacio said it was not unusual to see people coming in and out of the vegetable house as long as the knives were not out. On the occasion in question, the knives were not out. People were coming in and out all of the time. Palacio concluded his testimony by saying that there was nothing particularly unusual about the condition of the gate and the doors on the particular occasion of Claimant’s injury.

Louis Stovall, an inmate called by Claimant as a witness, testified that on the day in question, the doors of the vegetable house were left open routinely except when the knives were out. The doors and gates are open so that people can get Gatorade on hot days.

Charles Tyman, an agent of Respondent called as a witness by Respondent, testified that he was the food supervisor working in the vegetable house at the time of Claimant’s injury. Tyman indicated that the doors were open at all times except when the knives were out.

The record is barren of any proof that the men who assaulted Claimant’s fellow inmate were under the control of any agent of the Respondent. There is no evidence in the record indicating that any agent of Respondent had any reason to anticipate that inmates having gained access to the vegetable house would assault Claimant’s fellow inmate, thereby placing Claimant in jeopardy of injury.

It is the opinion of this Court that the question of a violation of regulations regarding the status of doors and gates to the vegetable house is immaterial to a decision of this case. This case is controlled by the holding of this Court in Carev v. State (1981), 35 Ill. Ct. Cl. 96, in which it was held that even where institutional procedures are violated, which violation permits one inmate to attack and injure another, no recovery can be had by the injured inmate in the absence of proof that Respondent’s agents anticipated, or should have anticipated, that third persons would commit criminal acts against Claimant. In Carev v. State, Claimant was set upon and beaten by two other inmates. Carev’s theory was that but for a violation of visiting rules by Respondent’s agent, Claimant would not have been attacked and injured. The Court held that Respondent’s agent negligently disregarded the regulations of the institution and that as a result thereof, Claimant was exposed to the danger of being beaten and was, in fact, beaten. However, this Court held that there was no showing that the negligence of Respondent was the proximate cause of Claimant’s injuries. There, as in the case at bar, the men who assaulted the Claimant were not under the control of Officer Tyman, and there is no showing that Officer Tyman had any reason to anticipate that any persons entering the vegetable house would assault Claimant or any other inmate.

Therefore, in the case at bar it is clear that even if this record supported the conclusion that an institutional rule or regulation had been violated which enabled the perpetrators to assault Claimant’s fellow inmate thereby injuring Claimant, no recovery could be had for the reason that there was no showing that the negligence resulting from the breach of rules proximately resulted in Claimant’s injury.

It is therefore ordered that this claim be denied.


text:
    (No. 83-CC-1271
    Imogene M. Stewart, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 7, 1985.

    James A. Trannel, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

Claimant, Imogene M. Stewart, was injured on July 30, 1981, when her finger became lodged in an uncapped side rail at the top of a sliding board located in the Lake Le-Aqua-Na State Park. Claimant suffered a broken and lacerated index finger. Claimant asserts that by reason of the State employees’ failure to cover or cap the exposed rail ends, or give notice to users of their dangerous condition, the Respondent, State of Illinois, breached its duty to exercise reasonable care in establishing or maintaining the sliding board in such a manner as to protect invitees. Claimant has established a 5% impairment of her use of the injured hand.

To compensate her for her injuries, Claimant seeks judgment of $18,002.70 (medical expenses of $502.70, pain and suffering of $2,500.00, permanent impairment of hand in the amount of $15,000.00).

As a prerequisite to a finding of negligence, a duty on the part of the Respondent must be established. Claimant has established that point.

“A governmental entity which extends an invitation to the public to make use of its facilities for educational or recreational purposes owes a duty of reasonable and ordinary care against known or foreseeable danger. O’Brien v. Colonial Village, Inc., 255 N.E.2d 265, 119 Ill. App. 2d 105 (1971).” Claimant’s Brief, page 2.

Having established Respondent’s duty, Claimant must next demonstrate that Respondent breached that duty. Claimant has successfully met this requirement. The testimony given by Jeffrey Lynn Hensal, the park ranger, shows that although frequent inspections were made of the premises, the hazardous condition was not recognized as such. Claimant’s Exhibit #3, which shows the uncapped openings at the top of the slide, indicates that the defect was open to discovery upon a casual inspection. That Claimant’s injury resulted from this breach was obvious. Had the opening been covered, Claimant’s finger would not have become lodged inside. The product was without adequate safety features, and was inherently unsafe. The openings are obviously a hazard and should have been discovered and corrected by the State. The Respondent did not meet its duty to recognize the openings as hazards.

Claimant incurred $502.70 in medical expenses. Her husband’s insurance coverage has paid $351.45. The balance owing is $151.25. She also seeks $2,500.00 compensation for her pain and suffering.

Claimant seeks $15,000.00 to compensate for the 5% impairment of her hand. We view that portion of the claim as excessive. In determining the amount of compensation due to Claimant, the guidelines set forth in the Illinois Workers’ Compensation Act are illuminating. Under these guidelines, the total loss of use of a hand is compensated by an award equal to 190 weeks wages. Since the Claimant was unemployed at the time she incurred her injury, the minimum allowed under the statute, $117.40, will be considered. Thus, the award for the complete loss or impairment of Claimant’s hand would be $22,306.00. However, as Claimant has suffered only a 5% impairment, that percentage should be applied to determine the amount she may recover. Therefore, under this method, Claimant would be awarded $1,115.30.

It is therefore ordered that Claimant be awarded $151.25 for her out-of-pocket medical expenses, $2,500.00 for her pain and suffering, and $1,115.30 to compensate her for the impairment of her finger for a total recovery of $3,766.55, in full satisfaction of this claim.


text:
    (No. 83-CC-1306
    Earlene Osman, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 11, 1986.

    Earlene Osman, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Alison P. Breslauer, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This cause comes on for hearing upon the claim made by Earlene Osman for broken eyeglasses. Claimant broke her eyeglasses as a result of a fall at the Anna Mental Health Center.

The record in this case reveals that the Claimant was a visitor at the Respondent’s facility, and was walking on the sidewalk at the time of the fall. It is undisputed that the Claimant stubbed her toe on the bottom step, thereby falling toward the street. It is further undisputed that there were no cracks or broken areas on the sidewalk.

Claimant bases the claim on the fact that it was dark in the area of the steps. The record is not disputed that there were lights in the area, however, it was unclear whether they were on at the time of the fall.

After considering all of the evidence, we believe that the Claimant has failed to meet her burden of proof on the issue of proximate cause. We also believe that Claimant failed to prove by a preponderance of the evidence that Respondent was negligent. Therefore, we find for the Respondent and deny this claim.


text:
    (No. 83-CC-1318
    Mercy Hospital (Urbana), Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 24, 1985.

    Harrington, Porter & Pope, for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

The Court being fully advised finds as follows:

The Respondent’s liability is limited to paying for services rendered in conformance with the rules and regulations of the Illinois Department of Public Aid (IDPA), as a vendor’s right to payment of a claim enforceable against IDPA may be “limited by regulations of the Illinois Department.” Ill. Rev. Stat., ch. 23, par. 11 — 13.

IDPA is only liable to pay for services rendered to “recipients,” i.e., persons who have been determined eligible to receive medical assistance under any of IDPA’s programs. (Ill. Rev. Stat., ch. 23, par. 2 — 5, 2 — 9; Illini Hospital v. State (1977), 32 Ill. Ct. Cl. 115.) Where IDPA’s records do not indicate eligibility for a person to whom services have been rendered, and where the Claimant has shown no evidence that IDPA had determined such person to be an eligible recipient, no payment for such services rendered to an ineligible person is due from IDPA.

Under the provisions of 89 Ill. Admin. Code, sec. 120.60, a person who meets all eligibility factors for an IDPA medical benefits program except that the person has more income or assets than allowed using the IDPA income and assets standard, such person’s eligibility does not commence until the person has spent enough money (or incurred enough obligations) on medical services to bring his or her income and asset level down to the level of the standard (89 Ill. Admin. Code. secs. 120.20, 120.30). This process is called “spenddown.” Where IDPA’s records do not indicate eligibility for a person to whom services have been rendered, and where the Claimant has shown no evidence that the person had been determined eligible, no payment for such services is due from IDPA. (89 Ill. Admin. Code secs. 120, 130, 160.) Spenddown is also described in IDPA’s MAP Handbook for Hospitals, sec. 105. Once such a client incurs obligations equal to the spenddown amount, he becomes eligible; the client remains liable for the liability incurred up to that point; IDPA becomes liable to pay its rates for all subsequent covered services, as long as the client remains eligible. IDPA’s liability on a hospitalization is thus equal to the per diem amount for the appropriate number of days, diminished by the amount for which the client remains liable under the spenddown policy.

It is therefore ordered that:

1. The Claimant be awarded the sum of $2,649.01, the liability for which the IDPA has admitted;

2. The balance of this claim be, and hereby is, dismissed.


text:
    (No. 83-CC-1570
    James Leo Edwards, Claimant, v. The State of Illinois, Respondent.

      Order filed January 8, 1986.

    James Leo Edwards, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (G. Michael Taylor, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant in this matter was an inmate at the Pontiac Correctional Center. He did not have a cellmate.

On July 24, 1981, Claimant was attending certain classes at the institution, and while he was in class, he was informed that other residents of the institution were in his cell. He immediately notified the officer in charge of the group he was with and upon returning to his cell, he found that the items listed in his complaint were missing.

It appears from the evidence that Claimant had permits for an AM-FM radio; eight-track Panasonic; Norelco razor; and a 12-inch black and white Panasonic TV. He also had cosmetics and cigarettes, food items, etc.

It is Claimant’s contention that Respondent was negligent in not keeping his cell locked when he was absent and by allowing other inmates in his cell to take possession of his property.

Claimant has also filed suit in Federal court, the results of which do not appear in the Court of Claims’ files.

This Court, in Bargas v. State (1976), 32 Ill. Ct. Cl. 99, has laid down the rule that there is no general duty on the part of the State of Illinois to safeguard an inmate’s property from theft by other inmates when that property is in the inmate’s cell. In that case, Claimant raises the point that the State should have taken steps to safeguard his property from theft by other inmates and seeks to charge Respondent with responsibility for the independent criminal acts of other inmates. The Court stated “We can find no basis for imposing such a burden upon the State. The State is not an insurer of an inmate’s property, and cannot be responsible where other inmates engage in criminal acts directed at that property. Nor can the State in the exercise of reasonable care be expected to prevent isolated acts of pilferage in the environment of a penal institution.”

Award denied. Case dismissed.


text:
    (No. 83-CC-1572
    Methodist Medical Center (Peoria, Illinois), Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 31, 1986.

    Westervelt, Johnson, Nicoll & Keller, for Claimant.
    Nett. F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This cause coming on to be heard on the joint stipulation of the parties and due notice having been given and the Court being fully advised finds as follows:

Claimant hospital, a participant in the Medical Assistance Program (MAP) administered by the Illinois Department of Public Aid (IDPA), here seeks vendor payments, as provided in section 11 — 13 of the Illinois Public Aid Code, on six patient accounts. (Ill. Rev. Stat., ch. 23, par. 11 — 13.) IDPA’s report, as filed herein, advises that it has paid, or accepts payment liability in appropriate amounts in respect to four of the six accounts. This opinion addresses the issue of whether Claimant is entitled to payment of the two remaining accounts for which IDPA denies liability.

The first account, that of patient Barnes, concerns inpatient services directly relating to hysterectomy surgery, rendered in November and December 1980, in Claimant’s facility. By Federal regulation (42 C.F.R. 441.250 through 441.259) and State regulation (IDPA Rule 4.15), the State’s MAP payment obligation for sterilization surgery — including hysterectomies — is contingent upon the medical vendor’s compliance with certain conditions. One of these conditions is that the patient acknowledge, in writing, her understanding that the planned surgery will render her permanently incapable of bearing children; and, in the case of hysterectomy, that the physician certify, also in writing, the medical necessity of the planned surgery. Presurgery completion of the relevant document (an IDPA form designed for this purpose), required in order to comply with these conditions, is the joint responsibility of the physician and the hospital. This Court has previously so held; see Good Samaritan Hospital v. State (1982), 35 Ill. Ct. Cl. 379.

The Claimant’s invoice of these services was disallowed by IDPA as being incomplete. The invoice failed to report the patient’s diagnosis, the fact that surgery had been performed, or the surgical procedure which was in fact performed. Each such item of information is required to be reported by the hospital in the invoice. Claimant had also failed to supply, with its invoice, the completed IDPA form to establish compliance with the above-referenced regulations. Claimant has offered no evidence that it submitted a corrected rebill-invoice to IDPA, properly documented with a completed hysterectomy acknowledgement form (DPA form 1977), within the one-year period prescribed by IDPA Rule 140.20 and by Federal regulation (42 C.F.R. 447.45(d)).

From IDPA’s report, we note that the Federal government’s continuing participation in the funding of Illinois’ MAP program is dependent upon IDPA’s regular enforcement of these regulatory requirements. Applicable here are the requirements that medical vendors must fully and correctly complete their invoice forms being submitted for IDPA’s payment consideration, so as properly to identify the services being invoiced; in the case of hysterectomy surgeries, that they must document both the patient’s awareness of the consequences of the planned surgery and the physician’s certification of its necessity; and that correctly-prepared invoices be timely received by IDPA.

The second patient account relates to newborn-nursery care provided in June 1981, to patient Isaac Harris, a newborn child. Claimant had submitted one invoice to IDPA for the mother’s obstetrical services, and, much later, tendered a second invoice, pertaining to the same dates of service, for the newborn care. IDPA reports that it had previously made full payment to Claimant for both the mother’s and the newborn’s care, by paying the invoice which Claimant had submitted in the mother’s name for the same dates of service.

The Department’s conclusion is grounded in IDPA Rule 140.100(d), which provides:

“In obstetrical cases payment for services to both the mother and the newborn child shall be made at one per diem rate. Only in instances in which the medical condition of the newborn, as certified by the utilization review authority, necessitates care in other than the newborn nursery, shall payment be made in the child’s name.”

As explained in IDPA’s MAP Handbook for Hospitals, all charges for the inpatient (per diem) services of both mother and newborn are considered to be incurred by the mother, for so long as both remain inpatients; and only one per diem charge is payable upon IDPA’s receipt of the hospital’s charges for such services involved in the mother’s name.

The hospital may invoice newborn services separately, and expect them to be paid for by IDPA, only when the newborn’s condition, properly certified, necessitates care provided in other than the newborn nursery (such as in a perinatal center) or when the newborn continues to require inpatient nursery care following the mother’s discharge from the hospital. See IDPA’s MAP Handbook for Hospital, II-H-17.

Here, Claimant’s invoice establishes that the newborn received nursery care only, that no perinatal or other intensive care services were provided, and that the patient and his mother were discharged on the same day. IDPA was therefore correct in considering Claimant’s invoice, naming the mother as patient, to represent all of Claimant’s charges for both the mother and her newborn child. We find that, having paid that invoice, the State has fully discharged its MAP-payment obligation for both mother’s and newborn’s services.

Section 11 — 13 of the Public Aid Code (111. Rev. Stat., ch. 23, par. 11 — 13), provides that a vendor’s right to a vendor payment may be “limited by regulations of the Illinois Department.” The IDPA rules relevant here are such limiting regulations, as are the above-referenced Federal Medicaid regulations. Moreover, as IDPA notes in its report, Claimant and other participating hospitals have each signed provider agreements upon enrolling in the Department’s MAP, in which they agree “to abide by the Department’s properly promulgated Rules and Hospital Handbook” requirements, necessarily including IDPA Rules 4.15, 140.20 and 140.100, as well as the Handbook’s conditions, service-coverage limitations and invoice-preparation requirements. In summary, Claimant has contracted to abide by each of the regulatory and Handbook requirements as discussed above.

We conclude, as to the Rarnes account, that Claimant failed to submit a properly prepared and documented invoice for its services within the time prescribed for IDPA’s receipt thereof. The absence of required data on the invoice and the lack of a completed DP A form 1977 warranted IDPA’s denial of payment on this account. We further conclude that Claimant had previously been paid in full on the Harris newborn’s account.

It is therefore ordered that:

1. The Claimant be awarded the sum of $15,246.96, the liability for which IDPA has admitted;

2. The balance of this claim be, and hereby is, dismissed.


text:
    (No. 83-CC-1908
    Forest Clark, Claimant, and Troopers Lodge #41, Fraternal Order of Police, As Assignee of Forest Clark, Intervening Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 3, 1985.

    Waller, Evans & Gordon (Sarah B. Tinney and R. C. Lanto, of counsel), for Claimant.
    Cavanagh, Hosteny & O’hara (John M. Hosteny, of counsel), for Intervening Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

The Claimant in this case, Forest Clark, was employed by the State of Illinois and the Department of Law Enforcement since 1953 as an Illinois State trooper.

On November 21, 1978, Claimant was suspended from all police duties and from active pay status at the close of the business day. A hearing occurred concerning the suspension, and on April 23, 1980, the State of Illinois, through the Department of Law Enforcement Merit Board, ordered Claimant permanently removed and discharged from his position as an Illinois State trooper. Claimant then filed a petition in the Sixth Judicial Circuit Court of Champaign County, Illinois, for a review of this permanent discharge. On February 6, 1981, the circuit court entered an order reversing this decision and remanding the case to the Merit Board for the imposition of a lesser sanction.

On March 13, 1981, the Merit Board suspended Claimant from duty without pay or benefits for 180 calendar days, and on March 30, 1981, Claimant was reinstated and returned to active duty and pay status as a State trooper.

At the evidentiary hearing held on March 1, 1984, it was stipulated by the parties that if the Claimant had worked from November 21,1978, until May 30,1981, he would have been entitled to $44,620.56. On May 13, 1985, Claimant and Respondent filed a written stipulation that Claimant would have been entitled to $55,780.38 minus $11,157.82, representing the pay attributable to the six-month suspension period, leaving a balance of $44,622.56. We accept the figure of $44,622.56.

Respondent urges that Claimant failed to mitigate his damages. We reject that contention.

Prior to his termination as an Illinois State trooper and while gainfully employed by the State of Illinois, the Claimant operated two small businesses, both of which showed a net loss for calendar year 1978, as well as calendar years 1979 and 1980, during which years, and while Claimant was under suspension, the Claimant testified that he devoted full time to the businesses. The income tax returns for the calendar years 1978 through 1981, which were made part of the record, revealed some improvement in the operation of the businesses, although the loss of one of the businesses was greater than the profit of the other, thereby resulting in a net loss for each of the years.

The Claimant testified that he was in such dire financial straits that he applied for and received a loan from Troopers Lodge #41, Fraternal Order of Police, in the amount of $19,999.00. To secure the loan the Claimant executed an assignment to the Troopers Lodge #41, Fraternal Order of Police, of all right, title and interest in and to the first $20,000 in back salary due him by the Illinois Department of Law Enforcement in the event of his reinstatement to duty.

The Claimant testified that he made no applications for employment for the reason that he was familiar with the area and believed that the unemployment rate was extremely high, and therefore no employment was available to him. He testified that he talked to many different people requesting work without success.

The question before the Court is whether the Claimant acted reasonably to mitigate his damages during the period that he was wrongfully suspended.

The testimony of the Claimant that he worked full time in his two business ventures during the period of suspension is borne out by an inspection of the Claimant’s income tax returns which show a much greater volume of business, although the net result still showed a loss for those years. It is the opinion of the Court that the Claimant acted reasonably under the circumstances in attempting to mitigate his losses during the period of his non-employment by the Department of Law Enforcement.

It is therefore a simple matter of computation to determine what is due the Claimant by reason of the wrongful discharge and how the same should be distributed. The Claimant and the Respondent have agreed that the amount of salary which accrued during the entire period of suspension is the sum of $55,780.38. The parties further agreed that from this amount should be deducted the earnings for the six months’ suspension, which amount is $11,157.82, leaving a balance of $44,622.56.

The remaining issue is the right of the intervening Claimant to the first $20,000.00 of our award.

We have previously been presented with a similar issue in the case of Terminal Bank v. State (1943), 12 Ill. Ct. Cl. 491. In Terminal, a milk company which had provided supplies to the State assigned its right of payment from the State to a bank in consideration of various financial notes issued to the milk company. The Court of Claims stated:

“The Claimant, (the bank) by its assignment, acquired rights equal to those of the assignor. The general rule is that claims against the government are assignable. (People v. Nudelman (1941), 376 Ill. 535.) The right to assign a debt which is due and fully earned is unquestioned by the courts. The assignment, by the Illinois Milk Products Company of its accounts against the Respondent, was a valid assignment of which the State was required to take notice.”

Claimant contends that the intervening Claimant has no right to a direct award since the assignment “was an assignment of the proceeds, not the cause of action.” The contention is not well taken, in that a simple reading of the assignment itself, a copy of which was admitted into evidence, clearly shows a complete and unrestricted assignment of the first $20,000 of back salary which may be determined to be due the Claimant. The assignment further provides that Claimant will “faithfully and diligently initiate, prosecute and pursue ... in the Illinois Court of Claims his suit and claim for all back salary against the Illinois Department of Law Enforcement” and that intervening Claimant has a “first and exclusive lien” on the proceeds. The intent of the parties is clear.

It is therefore ordered that Claimant Forest Clark is awarded $44,622.56 in full and complete satisfaction of this claim and that said funds be paid as follows:

Troopers Lodge #41, Fraternal Order of Police Intervening Claimant $20,000.00
Forest Clark, Claimant $24,622.56

APPENDIX A

Identification of the State Contributions and Deductions from Back Salary Award

To the State Employees’ Retirement System

State Employees’ Retirement System 5299.14

Employee’s contribution to FICA _4)0

Employer’s contribution to State Employees’ Retirement System 4281.19

Employer’s contribution to FICA _4M)

To Illinois State Treasurer to be remitted to Internal Revenue Service:

Claimant’s Federal Income Tax 8924.51

To Illinois Department:

Claimant’s Illinois Income Tax 1115.56

To the Claimant:

Net salary 9283.35

Total Award $48903.75

Troopers Lodge #41, Fraternal Order of Police— $20,000.00


text:
    (No. 83-CC-1916
    Community Action Agency for McHenry County, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 28, 1986.

    Weisz & Weisz, for Claimant.
    Neil F. Hartigan, Attorney General (Lynn Schock, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This is a three-count claim for reimbursement to Claimant for expenditures allegedly made by Claimant pursuant to a contract entered into by the parties wherein Claimant was to provide food services to migrant workers.

Both Claimant and Respondent filed cross-motions for summary judgment. At oral argument on those motions before the commissioner there was conceded that there are no contested issues of fact.

As to Count I, the facts are that in 1981 Respondent had been unsuccessful for two years in opening a Lake County migrant service center. In March or April of 1981 Respondent requested Claimant to open such a center in Lake County by the end of June 1981.

A licensable location was obtained for opening in June, but this location had no acceptable kitchen facilities, thus necessitating the hiring of a catering service. Respondent, through its representative, told Claimant that Quality Catering was the only catering service in the area that met licensing standards. Based on verbal approval by Respondent, Claimant contracted with Quality Catering without competitive bidding as required for such contracts.

By practice and custom, Claimant first requested reimbursement of the contested expenses of Quality Catering amounting to $5,996.00 from the Federal program involved, namely, the Federal Child Care Food Program. During the last week of April 1982, Claimant was notified by the Federal agency that the requested amount would not be reimbursed. Immediately thereafter, on May 5, 1982, Claimant submitted vouchers to Respondent. These vouchers were delivered to Respondent 68 days after the termination or completion of the contract.

The contract provided, in pertinent part that:

“No vouchers shall be honored and paid and the Agency waivers all rights to payment if submitted later than 60 days after the end of the fiscal year or, if submitted more than 60 days following the termination or completion of the contract.”

Thus, Respondent argues, Respondent is not liable because there was no competitive bidding and because the vouchers were submitted more than 60 days following the termination or completion of the contract.

Claimant argues that since Claimant received verbal approval of the noncompetitively-bid contract, verbal approval was sufficient, and further, that the delay in submitting vouchers was not due to its own fault but was induced by late notification by the Federal program that the expenses were not to be approved by them.

In the opinion of this Court, it is not necessary for us to decide whether payment should or should not be denied because the reimbursement claimed was based on a noncompetitively-bid contract, because Respondent’s second defense is sufficient.

This Court is powerless to change the terms of the contract between the parties. The contract plainly requires submission of vouchers within 60 days of the completion of the contract. Vouchers were not submitted within that period of time. Claimant’s reason for not following the contractual payment procedure is wholly insufficient, for the record shows nothing to have prevented Claimant from submitting vouchers to Respondent while waiting for a response from the Federal program.

Thus, because of the violation of the unambiguous terms of the contract, the Claimant waived the claims enumerated in Count I and the claim in Count I is denied.

As to Count II, Claimant’s claim is for reimbursement for interest and penalty costs incurred by Claimant on late F.I.C.A. payments incurred by Claimant as a result of Respondent’s failure to make timely scheduled payments to Claimant.

The facts were that claims were made for reimbursement of expenses for July, August and September of 1981, which included claims for persons who were not eligible under the program. Because of questioned eligibility, the claims for those months were not processed until eligibility verification documentation was received by the Department. An audit was completed in December 1981 on eligibility documents and a total of $8,630.95 was disallowed and deducted from the claims, leaving $5,644.00 due to Claimant, which amount was paid in January and February 1982.

Claimant argues that Respondent’s failure to immediately recognize the eligibility of those persons who were eligible, and immediately pay the $5,644.00, caused the Claimant to incur interest and penalty costs on F.I.C.A. payments.

In the opinion of this Court, the delay in payment was because Claimant submitted ineligible claims and thus the delay in payment was solely Claimant’s fault.

In addition, Claimant’s failure to pay its F.I.C.A. payments has not been shown to have been the result of Respondent’s delay in payment. Thus, assuming arguendo that Respondent caused a delay in payment, it does not follow that the Respondent is liable for all costs incurred by Claimant by its own failure to pay its own bills. This failure to pay its own bills is a result of its own policy considerations and not because of any fault on the part of Respondent. Count II is also denied.

As to Count III, the Claimant claims that in October and November 1982 it mistakenly paid fringe benefits in the amount of $3,126.00 in the form of unemployment compensation from another of its funds, namely the Head Start Program funds, which payment was for the use of the migrant workers program. Claimant did not discover this mistake until an audit was made of the Head Start Program. Claimant, therefore, seeks reimbursement under the migrant workers contract for unemployment compensation money expended by it but for which it has never formally requested reimbursement under the contract between the parties.

Once again, the provisions of the contract, which require submission of vouchers within 60 days of the completion or termination of the contract, applies. The claim in Count III is one in which vouchers were never timely submitted. In fact, it was admitted during oral argument before the commissioner that vouchers have not yet been submitted. This count, being contractually stale, is denied.

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


text:
    (No. 83-CC-2111
    Daniel Lee Cooley, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 11, 1986.

    F. James Foley (William C. Craig, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (John Perconti, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This claim arises out of a fight which occurred both in and out of the boxing ring at Logan Correctional Center between two inmates. The Claimant suffered a fractured nose as a result of the fight, which he claimed he was forced to engage in. His initial report to the correctional institution was that his nose was injured while lifting weights.

The weight room and the boxing room were combined in one room. Claimant claimed that while using the weights, he was forced to enter into a boxing match with another resident. After fighting outside of the ring, the Claimant put boxing gloves on and entered the ring to complete the fight. As a result of the fight, the Claimant claims that he suffered a fractured nose.

We see no basis for any award as a result of this claim. First of all, the cause of the Claimant’s injury, by his own admission, was another resident. He can look to legal redress against the other resident to compensate him for his injuries. We see no basis on the facts established in the record to indicate any negligence on the part of the State. In addition, we do not find the evidence of the Claimant to be persuasive.

Even if this Court were to believe the Claimant’s version of the story, and to believe that the State was negligent in not having a supervisor constantly present in the weight room, we do not believe that the negligence, if it existed, would be the proximate cause for this injury. It is well settled law in the State of Illinois that the tortious actions of a third party breaks the chain of negligence running between a tortfeasor and a victim. There is no claim in this case that the resident who broke the Claimant’s nose was in any way fighting on behalf of the State of Illinois, or as a result of the State of Illinois’ direction or control.

In addition, it must be assumed that the Claimant assumed the risk totally, and was 100% contributorily negligent, by climbing into the ring and continuing to fight with a member of the boxing team who weighed in excess of 40 pounds more than the Claimant.

For all the reasons stated above, we deny this claim, and find for the Respondent.


text:
    (No. 83-CC-2820
    Allies for a Better Community, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 9, 1986.

    Thomas Grippando, for Claimant.

      Neil F. Hartigan, Attorney General (James A. Tyson, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

Claimant herein, Allies for a Better Community (hereinafter referred to as ABC), filed this action against the Illinois Department of Children and Family Services (hereinafter referred to as DCFS) as a lapsed appropriation claim. ABC and DCFS entered into a contract, whereupon ABC would render services in the nature of family counseling and individual and group therapy provided to persons and families in crisis. Claimant seeks $26,342.00 for services performed during the second, third and fourth quarters of Fiscal Year (FY) 1982.

At issue is whether the contract was terminated by DCFS pursuant to ABC’s noncompliance with certain contractual provisions and whether Respondent is obligated to pay for services performed after the effective date of termination.

An evidentiary hearing was held before Robert E. Cronin, commissioner. Both parties have submitted their post-hearing briefs and arguments.

The record reflects that DCFS made payment for the first quarter of the fiscal year involved (FY 82) but made no further payments. The contract in question was terminated by DCFS effective April 1, 1982. The termination was based on the Claimant’s noncompliance with certain provisions of the original contract and its extensions as stated in the letter from DCFS to ABC dated March 31,1982.

The record further reflects that the contract was terminated for ABC’s failure to furnish an audit report for the FY 81 contract for the same program. DCFS has also not received the statistical, fiscal and programmatic information required by the contract. Audit reports for both the FY 81 and FY 82 contracts were eventually sent on June 14,1982, to DCFS.

Claimant seeks reimbursements for services performed during the second, third and fourth quarters of FY 1982, October 1 through December 31,1981; January 1 through March 31, 1982; and April 1 through June 30, 1982, respectively. The contractual rate per quarter is $9,698.00.

Testimony by Alonzo Whiteside, certified public accountant, disclosed that he issued an unconditional financial statement on behalf of ABC for FY 1982 and that said report was submitted to DCFS. This appears to comply with ABC’s contractual requirements; therefore, reimbursement for the second and third quarters of FY 1982 is appropriate.

However, the Court of Claims is constrained by the Illinois Constitution and the State Finance Act to limit any award in this matter to the amount remaining in the applicable appropriation. (Schutte & Koerting Co. v. State (1957), 22 Ill. Ct. Cl. 591; Ridgeway Hospital v. State (1982), 36 Ill. Ct. Cl. 716.) Respondent has acknowledged that at the end of the lapse period for FY 1982 there was $5,324.28 remaining in the appropriation.

Claimant has urged, with a voluminous citation of authority, that where appropriations lapse, an award will be made. Claimant ignores that such awards are limited to the amount of funds which lapse.

Based on the foregoing, we find that the contract in question was terminated by DCFS effective April 1, 1982, for ABC’s noncompliance with certain terms of the contract. Thus, services performed by ABC subsequent to the termination date, namely, the further question of FY 1982, are not eligible for reimbursement. See Brokaw Hospital v. State (1979), 32 Ill. Ct. Cl. 810.

It is therefore ordered that Claimant is awarded five thousand three hundred twenty-four and 28/100 dollars ($5,324.28) in full and complete satisfaction of this claim.