text:
    (No. 90-CC-2875
    Michael Varon, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 19, 1993.

    Patrick Mahoney & Assoc. (Patrick E. Mahoney & Thomas A. Gold rick, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Mary P. Need-ham & George M. Shur, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant filed his claim in this Court on April 17, 1990. Claimant seeks $100,000 for injuries he alleges he received when a bench tipped over while he was preparing to lift weights in the weight room at Northern Illinois University. The cause was tried by Commissioner Stemik. The parties waived the filing of briefs.

The Facts

On August 28, 1989, Claimant was a student at Northern Illinois University. Claimant was involved in athletics and had lifted weights all through high school and was a sophomore transfer student from the University of Arizona. He had lifted weights for many years. On the aforesaid date he went to the Northern Illinois University weight room for the first time to lift weights. In the weight room there was an attendant, named Linda Fredericks, 15 feet away from where Claimant began working out. The attendant gave no instructions to him in the use of weights. Claimant had a workout partner, who had worked with him for three months as his spotter. A spotter is one who makes sure the weights don’t fall while lifting. His partner helped him do warm up stretches before going on the weight bench. Claimant lifted weights for about 25 minutes. He did warm-ups including 135-pound lifts off the weight bench.

Claimant then did weight lifts on the bench adding more and more weights on the set until he got to 315 pounds. There was no sign on the weight bench that indicated a limit on the weight that could be used. The spotter had positioned himself on all previous lifts in order to catch the weights if they fell. Claimant began to lift his arms over his head to stretch prior to doing another lift. Claimant did this in order to loosen his chest muscles and prepare for the lift. The spotter was not in spotting position for these stretches. At this point the far end of the bench began to lift up towards him and Claimant slid backwards. His shoulder blades and back hit the ground first and then the weights came down on top of him because the bench came over. Claimant received a fractured radius and a fractured right wrist. Claimant had not attempted to lift the bar holding the weights. Claimant testified that he lost about one and a half to two inches of wrist muscle because of this accident. After Claimants wrist healed he was unable to play baseball or racquetball because of pain in his wrist. He previously engaged in such activities. He also was not able to work in the family restaurant because of his wrist. Claimant also testified the injury caused him problems with his schoolwork and planned time of education.

On cross-examination, Claimant admitted that in his experience of six years lifting weights there were never any posted signs as to limits on a weight bench. He also testified that the weights were on the racks with a bar between them and that when the accident occurred, his spotter was five feet away. He stated that the bench was not bolted down. Claimant testified that he needed no instruction as to weightlifting from the university bulletin board or from the attendant. Claimant further testified he now does a little floor backing and has begun lifting weights again but not at a level he was at.

The Claimants witness, Mr. Soltis, was a physical education teacher and has worked as such for 25 years. He had been a fitness director for three of those years at Maine West High School. He also sold weight benches during that time. He gave as his opinion, based on his experiences, that the bench Claimant used should have been bolted to the floor to prevent tipping. He stated that most benches have a support to keep from tipping, at least those he was familiar with. He stated that the Respondent could have purchased an anti-tipping bench or welded an anti-tipping device to the bench. When the witness had sold benches, he only sold benches that bolted to the floor or had anti-tipping devices. The witness stated that the standard of care is to have an anti-tipping device built in the bench or have the bench bolted to the floor.

Linda Fredericks, the weight room supervisor, testified that when Claimant began to stretch prior to lifting, she went and told the spotter that his person was about to lift and to go over to the Claimants bench. She testified that Claimant lifted his hands through the bar and that is when the accident happened. The witness could recall no incidents in one year of a bench tipping. No students had been injured by bench tipping. Further, this witness testified that Claimant had previously been stretching his arms over his head and through the bar with no adverse effects or tipping. She also stated that people stretch before lifting but not on the bench. She had never seen stretches done on the bench before.

Respondent also called the director of campus recreation who had lifted weights for 12 years. He stated that he was aware of no requirement by the manufacturer that the bench had to be bolted down. In his role of director he had heard of no cases of a bench tipping over. The director had attended numerous workshops on weightlifting and testified that it is unsafe to do stretches on the weight bench. Specifically, he stated that in Claimants situation it was not appropriate to stretch with the weight on it. He further testified that one should not stretch lying backward on a bench. This is so since the center of gravity would shift way over to one side of the bench. He further testified that it was strongly recommended that all weightlifters have spotters when lifting in the weight room. He said an experienced weightlifter should know that. He stated that the standard is that if a person sits at a bench and is beginning the process of getting in place for activity, the spotter should be there. Further, Respondent had no notice by manual or flyer or otherwise from the manufacturer that the bench would tip under certain circumstances.

The Law

The State of Illinois has a duty to maintain the premises under its control in a reasonably safe condition for persons who are legitimately on those premises. (Owens v. State (1989), 41 Ill. Ct. Cl. 109.) However, the State is not the insurer of the safety of its invitees. (Heiman v. State (1977), 32 Ill. Ct. Cl. 111; Fausch v. State (1989), 42 Ill. Ct. Cl. 175.) The Claimant has the burden of proving by a preponderance of the evidence that Respondent breached its duty of reasonable care, that Claimant was free of contributory negligence (now in the context of comparative negligence), that the injuries complained of were causally connected to the alleged negligence, and that the State had actual or constructive notice of the dangerous condition from all the circumstances in the case. Berger v. State (1988), 40 Ill. Ct. Cl. 120.

The Claimant has proven that he was injured while stretching on the bench. However, there was no evidence presented that the State had actual or constructive notice that the unbolted bench constituted a dangerous condition for which the State had a duty to warn invitees and protect them from harm. There was no evidence of prior accidents of this type or that the State had any warnings from the manufacturer or from any other source. Belker v. State (1983), 35 Ill. Ct. Cl. 704; Boaz v. State (1982), 35 Ill. Ct. Cl. 594; Nolan v. State (1983), 36 Ill. Ct. Cl. 194; Senell v. State (1979), 32 Ill. Ct. Cl. 430.

Claimant was an experienced weightlifter. However, his act of stretching on the end of the bench which was not a eustomaiy practice may have led to the bench tipping. The Claimant has not met his burden of proving that the State had actual or constructive notice of a dangerous condition since there was no evidence presented of prior accidents involving the weight bench although it had been in place for years. Nolan v. State (1983), 36 Ill. Ct. Cl. 194.

For the foregoing reasons, it is ordered that Claimants claim is denied.


source: Caselaw Access Project

author: Frederick, J.

license: Public Domain

text:
    (No. 90-CC-3070
    Sharon M. Koepp and Bobby G. Koller, Claimants, v. The State of Illinois, Respondent.

      Opinion filed November 29, 1993.

    Hamm & Hanna (Ronald Hanna, of counsel), for Claimants.
    Roland W. Burris, Attorney General (Thomas S. Gray, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

The Claimants, Sharon M. Koepp and Bobby G. Roller, filed this claim in the Court of Claims seeking damages from the Respondent for injuries they received when an Illinois State trooper drove into their vehicle while the State trooper was responding to a call. The case was tried before Commissioner Richard Parsons.

The Facts

This is an action against the State of Illinois for monetary damages for personal injury brought by Claimants, Sharon M. Koepp and Bobby G. Roller, for injuries they received in an automobile collision that occurred on March 4, 1990, on Illinois Route 88 near the intersection of Akron Road just north of Peoria, Illinois. The Claimant’s vehicle was struck from behind by a State motor vehicle being operated by Illinois State trooper Meuser.

At the time of the occurrence, Claimants were traveling northbound on Route 88 near its intersection with Akron Road. Claimant, Bobby G. Roller, the driver, intended to make a left-hand turn onto Akron Road. He prepared for the left turn by turning on the left-turn signal and starting to slow down as he approached the intersection when he was struck by the State of Illinois squad car. The evidence establishes that the left-turn signal of the Roller vehicle was activated.

Illinois State trooper John Meuser was responding to a call concerning a fight at a dance club in Edelstein, Illinois, north of Peoria on Route 88. There was only one deputy handling the call so the trooper was in a hurry to respond. The trooper proceeded northbound on Route 88. The trooper testified he occasionally used his siren. Trooper Meuser also testified that he turned on his wig wag grill and back window lights.

Just prior to colliding with the Claimant’s vehicle, trooper Meuser passed another vehicle which was driven by Gary Lewis. After passing the Lewis vehicle, trooper Meuser continued on north and as he attempted to pass Claimant’s vehicle as it approached the Akron Road intersection, he collided with Claimant’s vehicle. Gary Lewis and the occupants of his vehicle were independent and very credible witnesses who observed the squad car as it came up behind their car, passed their car, and then went down the road and collided with Claimant’s vehicle. Mr. Lewis was only aware of the squad car’s approach because he saw a vehicle in his rearview mirror coming up behind him traveling extremely fast. He thought the trooper was going 90 miles per hour. Witness Robert Dawson was not aware of the squad car’s approach until it whipped past them with the back lights flashing. Mrs. Sandra Lewis saw flashing white lights in the squad car’s grill as the squad car came up to their car. The squad car came up very fast and he almost hit the side of their car, according to Mrs. Lewis. The squad car then went past and swerved back in to the right-hand lane.

The established facts are that the squad car did not have Mars lights on the top of the car and it is clear that trooper Meuser was not using his siren at or near the time of the collision. The trooper was also traveling considerably faster than the speed limit. Trooper Meuser testified that his warning lights on the front grill and in the back window were in operation. The lights in the back window were more difficult to see from the front because there is a shield between them and the driver to protect the drivers vision. The trooper also was of the opinion that the siren was inadequate to warn motorists who are in front of the squad car. However, he did acknowledge that he is required to use the siren when he is in pursuit of a vehicle. The trooper felt it would have been more difficult for him to hear his radio if he used the siren.

In the collision, Sharon Koepp was thrown from the front seat and was trapped in the back seat unable to move. She was in considerable pain. She received care and treatment from Dr. Jongerius and Dr. Hoffman. She received physical therapy at the Institute of Physical Medicine and Rehabilitation for a period of seven weeks and had to have help with her daily activities for several weeks. She suffered pain in her neck and back which continues. Her medical expenses were $3,207.21 and related to this soft tissue injury.

Bobby G. Rollers medical expenses were $363.56. His lost wages were $731.12. He continues to take over-the-counter pain medication for the aches and occasional sharp pain he still suffers.

The Law

Claimants have the burden of proving, by a preponderance of the evidence, that the Respondent was negligent and that the States negligence was the proximate cause of the Claimants' injuries. Bauman v. State (1981), 34 Ill. Ct. Cl. 140; Phillips v. State (1991), 44 Ill. Ct. Cl. 89; Mathews v. State (1992), 44 Ill. Ct. Cl. 291.

The Court will also consider comparative negligence of the Claimant in adopting an award. Alvis v. Ribar (1981), 85 Ill. 2d 1; Guffey v. State (1987), 40 Ill. Ct. Cl. 179.

The trooper’s conduct in driving an emergency vehicle is to be measured against specific statutory standards. The statutory exception for emergency vehicles authorizes drivers of emergency vehicles to violate various rules of the road, but only to the extent such violations do not endanger other persons. Bauman v. State, supra.

Section 11 — 205 of the Illinois Vehicle Code (625 ILCS 5/11 — 205(b)) states the following relevant law:

“(b) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
(c) The driver of an authorized emergency vehicle may:
O 0 o
(3) Exceed the maximum speed limits so long as he does not endanger life or property;
(4) Disregard regulations governing direction of movement or turning in specified directions.
(d) The exceptions herein granted to an authorized emergency vehicle, other than a police vehicle, shall apply only when the vehicle is making use of either an audible signal when in motion or visual signals meeting the requirements of Section 12 — 215 of this Act.
(e) The foregoing provisions do not relieve the driver of an authorized emergency vehicle from the duty of driving with due regard for the safety of all persons, nor do such provisions protect the driver from the consequences of his reckless disregard for the safety of others."

Section 11 — 907 of the Illinois Vehicle Code (625 ILCS 5/11 — 907), while requiring drivers to stop and pull to the right for approaching emergency vehicles, states in paragraph (b) that, “This section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highways.”

Section 12 — 601 of the Illinois Vehicle Code (625 ILCS 5/12 — 601) states:

“§12 — 601. Homs and warning devices.
(b) No vehicle shall be equipped with nor shall any person use upon a vehicle any siren, whistle, or bell, except as otherwise permitted in this subsection. Any authorized emergency vehicle as defined in Chapter 1 of this Act may be equipped with a siren, whistle, or bell, capable of emitting sound audible under normal conditions from a distance of not less tiran 500 feet, but such siren, whistle or bell, shall not be used except when such vehicle is operated in response to an emergency call or in the immediate pursuit of an actual or suspected violator of the law in either of which events tire driver of such vehicle shall sound such siren, whistle or bell, when necessary to warn pedestrians and other drivers of tire approach thereof.”

Section 12 — 215(d) of the Illinois Vehicle Code (625 ILCS 5/12 — 215(d)) requires the oscillating, rotating or flashing lights to be of sufficient intensity to be visible at 500 feet in normal sunlight.

When measured against the statutory standards, it is clear from the evidence that the trooper failed to drive with due regard for the safety of persons on the highway. He drove at a recklessly high rate of speed almost striking the Lewis vehicle, he failed to use his siren when necessary to warn pedestrians and other drivers of his approach, and the lights on his vehicle did not give enough warning as evidenced by the fact the Lewis vehicle witnesses did not see the squad car approaching until it was practically upon them.

Considering the fact that the trooper nearly collided with the vehicle he passed and that he was traveling at a very high rate of speed in the immediate vicinity of an intersection, it was mandatory that the trooper use a siren complying with the requirements of the statute. Trooper Meuser should have foreseen that the use of his siren was necessary to warn motorists of his approach at the speed he was traveling. The Respondent was therefore negligent and it was this negligence that was the proximate cause of the two Claimants’ injuries. An act or omission to act is willful and wanton when a motorist proceeds under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of immediate danger, to exercise ordinary care to prevent it. (Breslin v. Bates (1973), 14 Ill. App. 3d 941.) The evidence shows that the Claimant had his left-turn signal on. The evidence further shows that the collision occurred in the lane where Claimant was lawfully traveling. Whether the trooper was passing a vehicle he thought was going to pull over or was preparing to turn, he should have been sounding his siren and passing in the southbound lane.

We find that in addition to failure to exercise due care, the trooper acted willfully and wantonly in not sounding his siren and passing in the left lane at an intersection under these circumstances and particularly when the officer admits his warning lights are difficult to see from the front. Kirshenbaum v. City of Chicago (1976), 43 Ill. App. 3d 529; Bauman v. State (1981), 34 Ill. Ct. Cl. 140.

We also find that none of the actions of Claimant, Bobby G. Koller, proximately caused the collision to the extent required to apply any comparative negligence. (Jager v. State (1986), 39 Ill. Ct. Cl. 21.) The Claimant was given and evidently passed two field sobriety tests. There was no evidence of impairment and he was not charged with DUI. While Claimant was charged with driving while license suspended (for a financial responsibility suspension) and failure to wear a seat belt, the Claimants correctly point out that law violations are not, per se, negligence or contributory willful and wanton conduct. (Beverly Bank v. Penn. Control Co. (1974), 21 Ill. App. 3d 77.) There was no evidence offered that any of the alleged statutory violations was the proximate cause of the collision or injury. Furthermore, the failure of the Claimant to wear a seat belt cannot, by statute, be considered evidence of negligence nor can it be used to diminish any recovery for damages. 625 ILCS 5/12 — 601.1.

The Respondent has also raised the issues of sovereign immunity and public officials’ immunity in bar of Claimant’s claim. Ordinary negligence standards apply to operators of emergency vehicles. The duty owed to a motorist by a State trooper driving an emergency vehicle when dispatched to a disturbance is not a discretionary duty. (Currie v. Lao (1990), 198 Ill. App. 3d 625.) This cause is properly before the Illinois Court of Claims and is not barred by the public immunity doctrine.

Having found that the Respondent is liable to both Claimants, we turn to the issue of damages. Based on the testimony of Sharon Koepp concerning her injuries, pain and suffering and her medical expenses of $3,207.21, we find that she is entitled to an award of $18,500. Based on the testimony of Bobby G. Koller in regard to his injuries, pain and suffering, we find that he is entitled to an award of $3,000.

Therefore, it is ordered that Claimant, Sharon M. Koepp, is awarded the sum of $18,500 in full satisfaction of her claim and Claimant, Bobby G. Koller, is awarded the sum of $3,000 in full satisfaction of his claim.


author: Frederick, J. Frederick, J.

text:
    (No. 90-CC-3191
    Robert Vasquez, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 25, 1993.

      Order filed September 21, 1993.

    John A. Nudo, for Claimant.
    Roland W. Burris, Attorney General (Steven Schmall and Robert Sklamberg, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Frederick, J.

The Claimant, Robert Vasquez, filed his complaint in the Court of Claims on May 25, 1990. The case was tried before the Commissioner assigned to the case. The evidence consists of the report of proceedings, the exhibits (Claimants 1-4 and Respondents 1-11), and the commissioners report. The Claimant filed a brief. The Respondent failed to file a brief.

This action was brought by the Claimant for personal injuries he sustained on July 6, 1989, while he was crossing the Cass Avenue Bridge over the Illinois waterway via the pedestrian walkway in Joliet, Will County, Illinois. At the time of the incident, Needham Price was employed by the Illinois Department of Transportation as the tender of the Cass Avenue Bridge and Mr. Price was in control of the operation of the bridge. The Claimant claims negligence on the part of the State of Illinois, by and through its employee, Needham Price, for his failure to exercise reasonable care and caution for the safety of the Claimant, Robert Vasquez, in the operation of the bridge. The Claimant claims the State was negligent in the following respects: for its failure to keep a proper lookout for pedestrian traffic on the pedestrian walkway of the bridge; for failure to allow sufficient time for Robert Vasquez to cross the bridge prior to raising it for river traffic; for failure to exercise reasonable care when lifting the Cass Avenue Bridge; and for failing to know that to raise the bridge while Claimant was crossing it would place the Claimant in a position of danger.

It has been stipulated by the parties that the Cass Avenue Bridge and its operator, at the time of this incident, were under the jurisdiction of the State of Illinois.

At the evidentiary hearing conducted before the Commissioner, the Claimant, Robert Vasquez, testified that on July 6, 1989, between 10:30 and 11:00 p.m., he was crossing the Cass Avenue Bridge over the Illinois waterway on his way to downtown Joliet. When he was halfway across the bridge, it began to shake and rise. The Claimant grabbed the pedestrian handrail and rode up with the bridge, hanging from it until the water traffic passed and the bridge began to lower. As the two sides of the bridge began to close, Vasquez testified that, fearing that he would be trapped between the two sides, he pulled himself over onto the pedestrian walkway. He was unable to keep his balance and tumbled down the walkway, falling onto the concrete sidewalk below and suffering a number of injuries to various parts of his body.

Officer Thomas Stein of the City of Joliet police department testified that on July 6th he was given a call to proceed to the Cass Avenue Bridge where there was a report of a man down. When Officer Stein and his partner, Patrick Blatti, arrived at the bridge, they found the Claimant, Mr. Vasquez, lying head down with “obvious broken legs.” Officer Stein testified that witnesses stated that the Claimant was near the top of the bridge and had tumbled down after the bridge was lifted. Officer Stein testified that he interviewed the bridge tender, Needham Price, who advised him that he had not seen anyone on the bridge at the time he opened it. Stein further testified that he had prepared a police report in collaboration with his partner who interviewed witnesses at the scene who stated that the victim was near the top of the bridge and rolled down when the bridge was lowered.

In addition to Officer Stein, the State’s only other witness, Mr. Lee Muir, an engineering technician with the Department of Transportation, testified to the mechanical operation of the Cass Avenue Bridge. Mr. Muir testified that usually the tender receives a signal from a boat, being one long and one short blast of the boat’s siren, which indicates to the bridge tender to start procedures to raise the bridge. He further testified that the standard procedure is to first lower the gates. The gates are equipped with signal lights and bells which are automatically activated to notify pedestrians and vehicles to clear the bridge. The bridge is raised only after the bridge tender checks to be sure the bridge is clear.

Mr. Vasquez was taken to the St. Joseph Hospital where he was diagnosed as suffering from a comminuted fracture of his left femur, fractures to his left tibial plateau, fibula and condyle, and fracture to lumbar vertebra LI, L2 and L3. Vasquez was placed in skeletal traction and then a body cast. He was later transferred from St. Joseph Hospital to the Congress Health Care Center in Chicago for several months of treatment. At the present time, Mr. Vasquez ambulates with crutches, resides with his brother in Joliet, and suffers from a 3x/z inch shortening of his left leg as well as a flail left leg, atrophy of the left calf, a condition of equinus in left foot, and other injuries. He has not worked since the incident and receives Social Security Disability due to his injuries. Dr. William B. Fischer testified that the Claimants injuries were permanent in nature and a life expectancy table introduced into evidence indicated Mr. Vasquez had a life expectancy of 43.8 years.

Mr. Vasquezs left leg is now flail, which means it has a false joint in mid-femur and incapable of weight bearing. The left leg itself is now some 3XA inches shorter than the right leg, his left knee is passively supple between extension and 90 degrees of flexion which renders it incapable of weight bearing, his left foot and ankle are in equinus with only a trace of motion, and there is a marked disuse atrophy of some 2 inches on the left calf which Dr. Fischer regards as a “shriveling.” Mr. Vasquez is now possessed of a reversed lumbar lordosis with the presence of very prominent spinous process. His spine lists to the right when weight bearing and there is a prominent residual scar about the size of a quarter on Mr. Vasquezs right forehead. Each of these conditions is directly related to the incident in question and each is permanent in nature.

Mr. Vasquez cannot ambulate without the use of crutches and he clearly is incapable of engaging in the type of construction and roofing work in which he has been employed in the past. With his limited educational attainment of merely eighth grade, Mr. Vasquez has no other skills and has clearly lost a good portion of his earnings capacity.

There is no question that the fractures sustained by Mr. Vasquez to three lumbar vertebrae, the comminuted fracture to his left femur, the fractures to his left tibial plateau, fibula and condyle were and are painful conditions. Mr. Vasquez testified to presently being in constant pain and Dr. Fischer agreed that such pain would be consistent with the Claimants current condition. Mr. Vasquez spent some time in skeletal traction at the St. Joseph Hospital after a pin was placed through his left knee.

The testimony further indicates that Claimant had consumed three quarts of beer prior to the incident and that he had another broken quart of beer on his person at the time he was found by the police. The departmental report includes medical reports that indicate Claimant either jumped or fell from the bridge and that the incident was a possible suicide attempt. The medical reports in the departmental report further indicate that Claimant was HIV positive and was on parole. The medical records also indicate Claimant refused to follow through with physical therapy on several occasions. The progress notes of October 6, 1989, at 6:00 p.m. indicate Claimant was verbally abusive to the hospital staff, he threatened to blow up the place, and stated, “I’m going to die anyway so what the heck.”

The Respondent did not call Needham Price or present his evidence deposition. The Respondent did not present any medical testimony to explain the medical reports. We note these matters because the Court has some considerable concerns in regard to Claimants physical and mental condition on the bridge in light of the warning devices on the gates and the medical reports indicating a possible suicide attempt. These concerns, however, are not answered in the Respondents case.

The Illinois Department of Public Aid is granted a lien upon any recovery made by a Public Aid recipient from injuries sustained by him. (305 ILCS 5/11 — 22.) The purpose of this lien is to reimburse the State for medical assistance provided the recipient as a result of the injury.

In September of 1991, the Claimant filed a petition with the Court pursuant to section 11 — 22 of the Public Aid Code (305 ILCS 5/11 — 22) requesting the Court conduct an evidentiary hearing for the purpose of reducing and apportioning the amount of the lien claimed by the Illinois Department of Public Aid. The Department of Public Aid contends payments in the amount of $69,931.87 were made to or on behalf of Robert Vasquez between July 6, 1989, and August 5, 1991. While Mr. Vasquezs testimony does not disagree that payments in that amount were made by Public Aid, he does dispute that all of these payments related to treatment rendered to him as a result of this incident.

The unrebutted testimony clearly indicates that the total payments made to or on behalf of Mr. Vasquez by Public Aid as a result of this incident total $46,360.43. The total of $69,931.87 was paid to Claimant for this and other matters. Claimant does not dispute he received the total amount from Public Aid.

The State can be negligent in its failure to properly operate a bridge under its control. (Federal Barge Lines, Inc. v. State (1973), 29 Ill. Ct. Cl. 25.) The Federal Barge Lines, supra, court, citing Tugboat Rental Co. v. State, 21 Ill. Ct. Cl. 360, stated that:

“We are of the opinion that failing to raise the bridge when it had ample notice of the approach of the vessel, was a neglect of duty on the part of the Respondent. The State of Illinois, acting by and through its agent was guilty of negligence, which proximately caused the damages complained of by the Claimant.”

While the facts of the Federal Barge case differ in that the claim was based on the failure to raise the bridge in Joliet for a boat to pass and the present case alleges the wrongful raising of the bridge which injured a pedestrian, there are some striking similarities. Both cases involve the same bridge and in both cases, the State failed to offer the bridge tenders testimony. The bridge tenders testimony and the medical personnel’s testimony may well have proven a lack of causation or at a minimum additional comparative negligence. Unfortunately, this Court will never know since no such testimony was presented.

Claimant has the burden of proving by a preponderance of the evidence that the State of Illinois was negligent, that such negligence was the proximate cause of the injury, and that damages naturally flowed therefrom. (Stanley v. State (1986), 39 Ill. Ct. Cl. 107.) The Claimant also has the burden of proving his damages. In re Application of Lopez (1987), 39 Ill. Ct. Cl. 315.

It is the finding of this Court on the state of the record that the Claimant has met his burden of proof as to negligence and damages. While we have these aforementioned concerns as to causation, the Respondent failed to produce competent evidence to prove a lack óf causation.

We do, however, find some competent evidence of comparative negligence. It is undisputed that Claimant had three quarts of beer to drink and a fourth quart of beer in his possession on the bridge. There is also no evidence to indicate that the lights and bells were not working on the gates to give Claimant warning of the approaching boat and raising of the bridge. The award in this case will therefore be reduced 7.5% for comparative negligence. The Claimant had a duty to use care and caution while crossing a draw bridge when the lights and bells sounded to get off the bridge. Guffy v. State (1987), 40 Ill. Ct. Cl. 179.

We find Claimants total damages to be in the amount of one hundred thousand dollars ($100,000). That sum is reduced by seven thousand five hundred dollars ($7,500) for comparative negligence. The award is further reduced by the sum of $46,360.43 pursuant to the lien of the Department of Public Aid. Connors v. State (1988), 40 Ill. Ct. Cl. 112.

Based on the foregoing, Claimant is awarded the sum of $46,139.57. The sum of $46,360.43 should be paid to the Department of Public Aid.

ORDER

Frederick, J.

This comes before the Court on the motion of Ramon Vasquez to be substituted as Claimant in this cause in his role as Independent Executor of the Estate of Robert Vasquez. The Court being fully advised in the premises it is hereby ordered that Ramon Vasquez as Independent Executor of the Estate of Robert Vasquez shall be substituted as Claimant in this cause.


author: Sommer, C.J.

text:
    (No. 90-CC-3480
    Nancy Rodes and William Rodes, Claimants, v. The State of Illinois, Respondent.

      Opinion filed May 6, 1994.

    Dennis J. Kellogg, for Claimants.
    Roland W. Burris, Attorney General (Paul Carlson, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This cause comes before the Court on a complaint filed by the Claimants, Nancy Rodes and William Rodes. The complaint alleges that Nancy Rodes and her father, William Rodes, incurred damages because the Secretary of State supplied incorrect drivers license information to a Federal park police officer in the State of Arizona on September 25, 1989, indicating that the drivers license of Nancy Rodes was suspended. It is alleged that this transmittal of incorrect information caused Nancy Rodes to be jailed overnight in Arizona, to be made subject to arrest proceedings, and to have her motor vehicle towed. The Claimants seek a total of $25,000 in damages.

A hearing was conducted on June 12, 1992. The Claimants were represented by counsel. Subsequent to the hearing, each party filed a brief in support of their respective positions.

Testimony of Nancy Rodes

Nancy Rodes (hereinafter referred to as “Nancy”) testified that on September 25, 1989, she was driving a 1984 Chevy Blazer, license plate number ADK131, in the Petrified Forest National Park of Arizona. She was stopped for speeding by a Federal park police officer, and was arrested for driving while her drivers license was suspended. No speeding charge was made. She was searched, handcuffed, and driven to jail, and her vehicle was towed. She was told to shower and to put on clothes with the word “jail” on them. The jail and shower were in bad condition. She spent the night in jail and was released the next morning.

At the hearing Nancy said she was a little afraid of the woman in her jail cell. At her deposition, Nancy said she was not afraid of the other person in the jail cell. Nancy stated that her father told her that he wanted to fly out and drive back with her because he didn’t want her to drive alone. She did not ask him to come out. He said he was afraid she would “suffer some kind of after-shock.”

At the hearing Nancy said the incident still bothers her and she feels intimidated. In her deposition Nancy said that she was not suffering from the arrest incident in any way.

Nancy stated that she received the Claimant’s Exhibit No. 5 in the mail and identified it as a Clean Air Vehicle Emission Test Report with a test date of April 9, 1988, and with a pass sticker affixed. Nancy identified the Claimants Exhibit No. 6 as a vehicle emissions test report with a test date of February 7, 1989, and with a pass sticker on it. The Claimants Exhibit No. 7, receipts of the towing bill, were admitted without objection.

Nancy stated that she received a whole bunch of notices regarding emissions testing and took them with her to the IEPA emissions test station on February 7, 1989. IEPA personnel told her that she might as well test since she was there. She received another notice after the February 7 test but she disregarded it and “figured it was just caught up in the system.”

Nancy testified that she moved from 238 Delphia, Park Ridge, to 248 Kosan Circle, Streamwood, sometime around September of 1988, and she notified the Secretary of State to change her drivers license to reflect the change in address. She believed her vehicle was registered at the Park Ridge address. She received vehicle emissions notices at the Park Ridge address. The notices told her to have her vehicle tested. She did not check the VIN on the notices. She stated that she did not know of ever receiving any notices in 1988 from the Secretary of State telling her that her license plates and driver’s license were going to be suspended.

Nancy identified her signature at the bottom of the Respondents Exhibit No. 3, which is an application for registration, dated June 5, 1987. The VIN on the application is 1G8CT1887E0188579. The Respondents Exhibit No. 3 was admitted into the record without objection. The Respondents Exhibit No. 4 is a registration application dated September 2,1990. The Respondents Exhibit No. 4 was admitted into the record over an objection for a limited purpose. The Respondents Exhibit No. 4 references a VIN where the eighth and ninth digits appear to be either “13” or “B.”

The Claimants Exhibit No. 8 is a registration application for Nancy’s car. She agreed that the VIN on the Claimant’s Exhibit No. 8 was the correct VIN and the VIN on the Respondent’s Exhibit No. 3 was different. The Claimant’s Exhibit No. 8 was admitted without objection.

Testimony of William Rodes

William Rodes, a resident of Chicago, Illinois, testified that on September 25, 1989, his son, who lived in Phoenix, called him and told him that Nancy had been arrested. William Rodes (hereinafter referred to as ‘William”) called the county jail in St. Johns, Arizona and talked to a deputy sheriff and a matron. Subsequently, he called his son and called the matron to express his concern for Nancy’s safety.

At approximately 10:40 a.m. on September 26, 1989, William had a telephone conversation with Nancy. Nancy called to inform William that the sheriff had released her. She called William later, and he informed her that he would fly out.

At the time of the occurrence, William worked as a rehabber, buying apartment buildings and rehabbing them. He was in the process of rehabbing a four-apartment building. He flew to Arizona on October 6. He stayed in Arizona five or six days before he and Nancy drove back to Chicago.

William stated that he was concerned for Nancy’s physical safety while she was in jail. After arriving in Arizona he noticed that she was not as outgoing, happy or enthusiastic as she had been prior to the incident. Her demeanor and attitude change continued for four to six weeks. She did not seek psychological counseling or see any mental health personnel.

William claims $2,109.43 in expenses. William identified a five-page document, marked as the Claimants Exhibit No. 3, as a report prepared by him indicating the times he called various people. The first page is a summary of the expenses claimed by him, including expenses relating to telephone calls, air fares, motel, and loss of income. Pages two through five of the exhibit are copies of receipts in support of the claim. William specifies his income at $25 per hour. The Claimants Exhibit No. 3 was admitted into the record without objection.

William testified that he reports paying himself $200 per day to the Internal Revenue Service. He does not draw a weeks salary but pays himself when the building is sold. William was working on a project when Nancy first contacted him on September 26, 1989. He completed the work he had started and then went to Arizona on October 6,1989.

Testimony of Nancy Anderson

Ms. Nancy Anderson, an employee of the State of Illinois, was called as a witness by the Claimants. Anderson has served as the manager of the Auto Emissions Section within the Office of the Secretary of State (hereinafter referred to as “Secretary”), since September, 1985. Her job involves the enforcement of the Illinois Vehicle Emissions Test Program. The emissions testing laws are enforced by suspending the drivers license of the owner of a motor vehicle if the motor vehicle and its owner are not in compliance with the emissions testing program. Anderson’s section is responsible for suspending licenses and restoration of the licenses when the vehicle is in compliance.

When an individuals drivers license is suspended, the pertinent information is made available, through reciprocity, to other states. The data processing department of the Secretary of State prepares the suspension notices.

The Illinois Environmental Protection Agency (hereinafter referred to as “IEPA”) notifies Anderson’s section when a vehicle has not taken the emissions test. IEPA sends an enforcement computer tape for an assigned month. The tape describes motor vehicles by listing each vehicle’s identification number, license plate, the year, the make, model, owner’s name and assigned month.

The chronology of events leading to a suspension under the vehicle emissions testing procedures were described by Anderson as follows. A vehicle owner is assigned a month to have the emissions tested. The owner has four months from the time of the assigned month to have a vehicle tested. IEPA sends an initial notice to the owner a month ahead of the assigned month. In the event the vehicle does not pass or take the emissions test in the assigned month, IEPA would send a first warning notice the month after the assigned month. In the third month after the assigned month IEPA would send a final warning notice. At the beginning of the fourth month after the assigned month, IEPA would send the computer tape for the assigned month to Anderson’s section.

Anderson’s section would, within 15 days of receipt of the IEPA tape, send a first warning notice to the address (in this case Park Ridge) indicated on the IEPA enforcement tape informing the owner that the vehicle did not pass an emission test, and advising the owner that his or her driver’s license will be suspended in 60 days unless the vehicle passes a test. In the fifth month after the assigned month, Anderson’s section would send a final warning notice (in this case Streamwood) to the address on the owners driver’s license stating that the owner’s driver’s license will be suspended if the vehicle has not complied with the emissions testing law. In the sixth month after the assigned month the vehicle owner would receive (in this case at Streamwood) a notice of driver’s license suspension, with certification of mailing. That notice informs the driver that the suspension will be effective in another 30 days. Thus, the Secretary sends three notices before the suspension is entered, with at least one going to the registration address and the others to the driver’s license address.

Anderson stated that Nancy Rodes’ driver’s license was suspended October 20, 1988. On or after September 25, 1989, someone communicated with a technician in Anderson’s section regarding the driver’s license of Nancy Rodes. As a result of the communication, the suspension of Nancy Rodes’ license was removed on September 26, 1989.

Subsequent to the removal of the suspension, a form letter was sent to Nancy Rodes. The letter was marked as the Claimant’s Exhibit No. 1 and was not offered into, and is not part of the record, but was used to refresh the recollection of the witness. Although Anderson’s signature was stamped on the letter by a rubber stamp, she did not review the letter before it was mailed. The letter contained the statements “The suspension was entered in error,” and “we regret any inconvenience this matter may have caused.” Anderson explained that the statements meant, “(The error) was called to a technician’s attention that the suspension should not have been entered. The individual had a document or something in their possession that we were not aware of, could not be aware of.”

The letter also states, it was “caused during the process of updating vehicle registration information.” Anderson explained that the statement meant, “The individual obtained a registration or renewed a registration, and at a point an error was made in the vehicle identification number which resulted in the suspension.” The Claimants counsel asked Anderson whether the letter indicates Nancy Rodes actually had a valid Class A drivers license which had a later expiration date. Anderson responded by stating “Once the suspension was removed it was a valid license, yes.” Anderson agreed with the conclusion that the drivers license of Nancy Rodes should not have been suspended within one year prior to September 25, 1989. Anderson agreed that the information regarding the suspension was communicated to the State of Arizona or its representatives. On recross examination, Anderson noted that the VIN on the letter was 1G8CT1887E0188579.

During cross-examination, Anderson identified and testified to the meaning of the three pages making up the Respondents Exhibit No. 1. The first page of the exhibit certifies that:

“A Vehicle Emissions Suspension was entered suspending the driving privileges of Nancy M. Rodes [ ], on October 20, 1988, and said suspension was removed from the record on September 26, 1989, based on evidence reviewed that the date indicating the suspension was entered in error during the process of updating vehicle registration information.”
Res. Ex. No. 1, pg. 1.

Page three of the exhibit indicates that Nancy Rodes was mailed, on September 20, 1988, a notice of drivers license suspension stating that her driver’s license was suspended effective October 20, 1988, for failure to comply with emissions testing laws. Page two of the exhibit is the notice of driver’s license suspension indicating Nancy Rodes’ address at 248 Kosan Circle, Streamwood, Illinois. The notice references YIN 1G8CT1887E0188579 and license plate number ADK 131. The exhibit was admitted into the record without objection. Anderson identified her signature on page three of the exhibit.

The Respondents Exhibit No. 2 was identified by Anderson as three pages of photocopies of a microfiche copy of a print of a computer tape created when loading records into the enforcement data base. The Respondents Exhibit No. 2 was admitted into the record without objection. The copies describe action taken by Anderson’s section in regards to Nancy Rodes specifying that the record was received from IEPA for enforcement and that notice was sent on July 9, 1988. The VIN on the entry is 1G8CT1887E0188579 and the plate number is ADK 131, which are the same as indicated on the Respondent’s Exhibit No. 1. This notice mailed on July 9, 1988, went to the address on Nancy Rodes’ registration file (238 Delphia, Park Ridge) at the time of application for her license plate.

The second entry indicates that on August 17, 1988, a final warning notice was printed to be mailed to Nancy Rodes, page two, Respondent’s Exhibit No. 2. The VIN and plate numbers are identical to the first entry. This notice was shown to have been mailed to the address of Nancy’s driver’s license (248 Kosan Circle, Streamwood).

The third entry indicates that on December 15, 1988, the enforcement data base ran a request to suspend the license plate ADK 131. The VIN is identical to the prior entries. Notice of this action would have been sent to the address on Rodes’ current registration (238 Delphia, Park Ridge). This action did not include a suspension of Rodes’ driver’s license.

Testimony of Katherine Allen

Katherine Allen, an assistant administrator in the Office of the Secretary of State, is responsible for vehicle services operations in Cook County which involves registration and title of vehicles. She is familiar with the procedures for changing or correcting titles and registration applications. Changes are made on the original application when an application cannot go through the system.

In relation to the Claimants Exhibit No. 8, an application for registration initially dated June 5, 1987, Allen stated that the title number in the upper right hand corner had been scratched out and a new title number was assigned in the lower left hand comer.

Allen said the application was rejected by the computer as it was being keyed in. She believed the Secretary of States office would have researched the problem. She noted that there is a serial number (VIN) underneath the one written in the appropriate area. In the event a vehicle registration application is put in and one digit of the VIN is wrong, the vehicle cannot be processed. The VIN on the application has to connect with and match the VIN on an existing title file. When it doesn’t, it kicks out an error that must be manually researched.

Based upon the appearance of the Claimant’s Exhibit No. 8, Allen thought that it represented an instance where a wrong VIN was submitted on the registration application, it was kicked out in error, manually researched, and was corrected. She noted that the serial number underneath the corrected serial number is 188. The exhibit does not indicate the date the change was made, but it does indicate that the validation date was June 5, 1987. A corrected application is not returned to the applicant.

Allen speculated that when Nancy Rodes filled out the application she transposed the numbers as 188 rather than 18B.

Analysis of Claim

For claimants to recover against the State, they must prove by a preponderance of the evidence that negligent acts of the State proximately caused the claimants injury and the claimants were free from contributory negligence. (Bellamy v. State (1990), 43 Ill. Ct. Cl. 337; Arterburn v. State (1990), 43 Ill. Ct. Cl. 246.) The requirements to be free of contributory negligence should be interpreted consistently with section 2 — 1116 of the Code of Civil Procedure. 735 ILCS 5/2 — 1116 (1992).

Prior to making a determination of negligence, it must be demonstrated that the State had a duty to the Claimants and breached that duty. Neither party has cited a case which would operate as a precedent for determining whether the State had a duty to the Claimants under the facts presented. A review of the reported cases before the Court do not reveal any case with a similar fact pattern. Whether or not the State owes a duty to a person is a question of law. (Wheel v. State (1990), 42 Ill. Ct. Cl. 231.) The Claimants allege in their brief that, by creating an internal procedure for correction, the Respondent has a duty to ensure the information contained in its records is accurate.

Based upon the evidence presented, the Court finds the facts to be as follows. On June 5, 1987, Nancy prepared and submitted to the Secretary, an application for registration of her motor vehicle. The application identified her address to be in Park Ridge. The VIN provided by Nancy included errors. The Respondents Exhibit No. 3 is a copy of Nancy’s application prior to corrections or changes, and shows the eighth digit of the VIN to be an “8.” The Claimant’s Exhibit No. 8 is a copy of the same application with corrections. The initial VIN is whited out or obliterated and a new VIN inserted with the eighth digit of the VIN being a “B.” The Respondent’s Exhibit No. 3 also identifies the old title number as “B6442074” and Claimant’s Exhibit No. 8 shows that number crossed out and “C7541598” written above it.

When the information from the erroneous application was keyed into the Secretary’s computer, it was rejected because the VIN number did not match any title records maintained by the Secretary of State’s Office. The Secretary’s staff, pursuant to its policy, manually checked the information and corrected the VIN on the application.

The Secretary is prohibited from registering or renewing a registration of a vehicle unless a certificate of title has been issued to the owner. (625 ILCS 5/3 — 101 (1992).) Section 3 — 409 of the Illinois Vehicle Code specifies in relation to registrations that “[t]he Secretary of State shall file each application received and when satisfied as to the genuineness and regularity thereof, and that the applicant is entitled to register such vehicle and to the issuance of a certificate of title, shall register the vehicle * * (625 ILCS 5/3-409 (1992).) The statute imposes a duty on the Secretary to satisfy itself on the genuineness and regularity of each application and on the applicant’s entitlement to registration of the vehicle. In short, the Secretary should not issue license plates or renewal stickers until the registration application is correctly matched to a title on file. When first submitted in this case, the Secretary was unable to make that match.

The date that the Secretary corrected the application is not in the record. The date that the license plates or sticker, with a registration card, was issued or sent to Nancy is also not in the record. What is in the record is the admission of the Respondent that Nancy was not informed of the VIN error on her application, or of the corrections made to it.

Apparently the Secretary created some type of file or record with the erroneous VIN, together with Nancy’s name and address, and a separate file or record with the correct VIN, and Nancy’s name and address. The nature of the file or record created with the incorrect VIN is not fully disclosed in this record.

The Illinois Vehicle Code requires the Secretary to provide the IEPA with information for the purpose specified in the Vehicle Emissions Inspection Law, including providing regular and timely access to vehicle registration records. (625 ILCS 5/13A — 112 (1992).) Apparently files or records containing both VINs were made available to IEPA. The date and manner in which the files or records were made available to IEPA for emissions testing is not in the record.

The VIN with a “B” in the eighth digit is the correct VIN. The Respondents exhibit nos. 1 and 2 pertain to the incorrect VIN with an “8” in the eighth digit. Under this fact scenario the Secretary was not under any requirement to create a file or record for an application for registration that would be accessible by IEPA until such time as the Secretary could satisfy himself that the vehicle could be registered. The Secretary could not have satisfied himself until the manual search was completed and corrections were made that allowed the VIN on the application to match the VIN on a title. Until such time the Secretary should have safeguarded and prevented the information from the erroneous application form being readily available to the IEPA. Having discovered the error, the Secretary should have safeguarded or prevented the erroneous information from being made available to the IEPA.

In the event the facts were to stop at this point the outcome of this case might be different. But, there is the matter of the notices being sent to Nancy.

The Respondents Exhibit No. 1 shows that notice was mailed on September 20, 1988, to Nancy stating that her drivers license would be suspended on October 20, 1988, unless she acted. Albeit, the notice was for the incorrect VIN, with the “8” in the eighth digit, it was still notice to her. The notice came from the Secretary’s office mailed to Nancy’s Streamwood address. There is nothing in the record to indicate that she contacted the Secretary regarding a notice of suspension. Nancy denies receiving the notice of suspension.

The Claimant’s Exhibit No. 5 shows that Nancy’s vehicle, based upon the correct VIN with a “B,” passed the emissions test on April 9, 1988, and was not scheduled for another test until February, 1989, when the Claimant’s Exhibit No. 6 indicates Nancy’s vehicle again passed the emissions test. There is nothing in the record that would indicate whether IEPA would have known that Nancy’s driver’s license was suspended at the time of the February, 1989 test.

A review of case law reveals two cases in which it was alleged that the negligence of the Secretary of State caused damages. Neither case is on point, but are helpful in the present analysis. In Bank of Lyons v. State (1966), 26 Ill. Ct. Cl. 104, the claim was made by a bank that held a security interest, identified on the certificate of title, to a motor vehicle as security on a loan to one of its customers. The customer defaulted on the obligations of the loan and applied to the Secretary of State for a duplicate certificate of title. Subsequent to the issuance of the duplicate, the bank obtained possession of the duplicate and the motor vehicle. The motor vehicle was later stolen from the bank’s premises. The bank claimed that the Secretary’s mistaken issuance of the duplicate caused the bank to lose the motor vehicle. The Court’s opinion assumed negligence on the part of the Secretary, but held that the conduct of the Secretary was not the proximate cause of the bank’s loss.

In a more compelling case, Kirby v. State (1979), 32 Ill. Ct. Cl. 419, the Secretary of State incorrectly reinstated a driver’s license to an individual, although the applicant had not complied with the necessary laws and procedures. The individual subsequently was found to have caused the death of a person in an accident while driving under the influence of intoxicating liquor. The Court held that the State was not the proximate cause of the death of the person.

It is clear that Nancy provided the wrong VIN number when she registered her automobile. The Court understands the ease by which a wrong digit or letter could be entered in a 17 place VIN composed of numbers and digits, which seem random to the average car owner. This is one reason why the Secretary of State runs the VIN numbers submitted to it against master lists.

Nancy testified that she had a “whole bunch” of “vehicle emissions” notices. Her concern over these notices caused her to go to the IEPA testing station on February 7, 1989 to find out about them. When she showed the notices to the testing employees, they must have had no particular reaction, as they urged her to re-test as she had only a couple of months left on her 1988 sticker. She was not told that her license and plates had been suspended. This leads this Court to conclude the employees at the testing station were using only the VIN number — the correct one in this case, and failed to notice the subtle difference between the correct VIN and the wrong VIN on some of the notices.

In regard to the incorrect VIN number, Nancy had been sent a final warning and a notice of her driver’s license suspension at her address at Streamwood, Illinois. Apparently, notices of revocation of her license plates were sent to her registration address at Park Ridge, Illinois.

Nancy testified that she received no final warning or notice of her drivers license suspension at her Stream-wood address in 1988, though she testified that she received mail sent to her Park Ridge address, Stream-wood address, and an address in Chicago during the time in question.

We find that Nancy was sent a final warning in August of 1988 and a notice of her drivers license suspension at her Streamwood address in September of 1988, though she testified she did not receive these documents. She did receive a variety of notices concerning emission testing, and she did inquire about these notices at the testing station in February of 1989.

We find that the Secretary of State did mail warnings and notices of suspension of Nancy’s driver’s license to the Streamwood address that she provided to the Secretary of State as her current address at the time, and had sent at least one notice in July of 1988 to the Park Ridge address. Nancy testified that she moved sometime between the summer and September to the Streamwood address. The August notice was mailed to the Stream-wood address. The Secretary of State would have gotten this address when she moved and notified the Secretary of an address change. Of course, the suspension notice went to the Streamwood address in October of 1988. Though Nancy states that she received only emission notices, which would have to have been for both VIN numbers to have caused confusion, we find that the warnings of her license suspension were sent to both her Park Ridge and Streamwood addresses, and the suspension itself was properly certified as mailed to her at her Streamwood address, and, thus, constituted notice to her, even if she did not receive it. 625 ILCS 5/6 — 21(c).

In order for the State to be liable to Nancy, it must have owed a duty to her, and been negligent in the performance of the duty, and such negligence must have been at least 50% of the proximate cause of the damages suffered that are compensable under the law. Stanley v. State (1985), 39 Ill. Ct. Cl. 107; Berger v. State (1988), 40 Ill. Ct. Cl. 120; Wilson v. State (1989), 41 Ill. Ct. Cl. 50; 735ILCS 5/2—1176.

The Claimant argues that the State owed a duty to Nancy to ensure that the information in its records was accurate, and that duty was breached when the State mishandled its own internal correction procedures, and created two files on Nancy’s automobile.

We believe that the Claimant has misidentified the duty owed to Nancy. Even though the State made an internal error nothing happened that was prejudicial to Nancy until the State suspended her drivers license. At that time the State had a duty to inform Nancy that her license was being suspended. The State fulfilled its duty by sending to Nancy the statutory notices of suspension to her Park Ridge and Streamwood addresses, and the suspension itself to her Streamwood address, which she had provided to the Secretary of State. Nancy then had a duty to respond to the Secretary of State, and this duty was breached by her failure to. respond to the Secretary of State. Under the law, Nancy was given notice, and her claim of not receiving any of the notices does not change that.

We find that the State breached no duty to Nancy in the circumstances of this claim. Additionally, we find that Nancy’s breach of her duty was the proximate cause of her arrest. Thus, the State is not liable for damages to Nancy. As William’s damages are derivative from any liability by the State to Nancy, his claim is denied, also.

If for the sake of argument, the State was found to have a duty to Nancy and be 50% of the proximate cause, it is apparent that Nancy’s damages would be limited under the law.

Nancy has no cause of action against the State for false arrest, imprisonment, or detainment, as an element of such a cause of action is that the arresting officer acted unreasonably when he made the arrest. In this claim, the State did not make the arrest, and the actions of the Federal park police seem reasonable in light of the information given them. See Howard v. State (1993), 45 Ill. Ct. Cl. 214 for a thorough discussion of false arrest, imprisonment, etc.

Additionally, this Court cannot award Nancy damages for emotional or mental distress, as under Illinois law awards for emotional and mental distress cannot be made without physical injury to the Claimant. Carlinville National Bank v. Rhoades, 63 Ill. App. 3d 502, 380 N.E.2d.

Nancy’s brief cites two cases in attempting to get around the rule of law requiring that emotional injury can be compensable only if accompanied by physical injury.

First, she cites Davenport v. DiRobertis (1987), 653 F. Supp. 649 (N.D. Ill.) for the proposition that it is possible to undergo confinement and suffer compensable emotional damages. However, as the Respondent’s brief points out, Davenport involved inmates who had been in segregation for 90 days and spoke of “isolation in solitary confinement” causing compensable emotional damages.

Nancy was not in solitary confinement for 90 days, but was in a local jail for one night.

Second, Nancy cites Levka v. City of Chicago (1984), 748 F.2d 421. Levka is a strip search case involving intentional abuse of the arrestee, which is an exception to the general rule that physical injury must accompany emotional damages. The conduct of the State towards Nancy was not intentional.

There was some mention in the record that Nancy lost out on a job because of her suspension, but this was not further developed and fails as a ground of recovery for lack of proof.

Thus, even if we had found the State to have had a duty to Nancy and to have been 50% of the proximate cause, Nancy’s damages under the law would have been minimal.

This Court very much sympathizes with the plight in which Nancy found herself. None of us would like to be arrested, spend a night in jail, and then be sent a letter apologizing for the “inconvenience.” However, this Court must follow the law, and we have seen the bulk of Nancy’s claimed damages are not compensable under the law even if the State had been liable.

It is therefore ordered that this claim is denied and dismissed.


author: Mitchell, J.

text:
    (No. 91-CC-0280
    James Crump, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 16, 1994.

    James Crump, pro se, for Claimant.
    Roland W. Burris, Attorney General (Christopher K. Wells, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Mitchell, J.

Claimant, an inmate with the Illinois Department of Corrections, seeks judgment against Respondent, State of Illinois, in the amount of $75.86. Claimant contends that Respondent is liable to Claimant for the amount claimed due as a result of lost wages which Claimant would have received but for the fact that Claimant was wrongly placed on “investigation status.” Claimant was released on March 30, 1990 from investigation status without any disciplinary ticket being issued against Claimant for any offense. Claimant contends in this complaint that the actions of Respondent were negligent or willful, and that Claimant had sustained a loss of $75.86 in wages. It should be noted that Claimant alleges that Claimant was reimbursed by the State in the sum of $10 on an original lost wage claim in the sum of $75.86. Claimants claim for damages is based on the balance of what Claimant contends is owed.

At the hearing, Claimant testified that he was placed on investigation status in February, 1990. The gravamen of Claimants complaint is although he was not charged with any disciplinary offense as a result of his being placed on “investigation status,” he was not treated as other inmates had been treated in the past when they were reimbursed in full for time spent on “investigation status.” While Claimant was on investigation status, he was incarcerated and not permitted to attend his job duties. The $10 pay rate actually received by Claimant for the period he was on “investigatory status” was shown to be apparently the amount applicable to persons held in “protective custody.”

On cross examination by Respondents attorney, Claimant admitted that the Department of Corrections has the right to assign jobs to inmates or to withhold those assignments through what is known as the “assignment committee.”

Claimant was investigated because his brother was found to have been contemplating an escape. Claimant was found guilty of no misconduct. Claimant did not lose his job, but was returned to employment upon conclusion of the investigation. Claimant went through the “assignment committee process” a second time.

Respondent offered no evidence. Neither party filed a brief.

The recommendation in this case is predicated upon the case of Pippion v. State (1990), 43 Ill. Ct. Cl. 327. In Pippion, Claimant was employed and removed from his employment when he was convicted of certain rules infractions and placed in segregation along with the imposition of other penalties. Upon review, the Institutional Inquiry Board determined that the initial finding against the Claimant had been in error. The penalties that had been assessed against the Claimant were removed, and all restrictions were lifted against the Claimant. Claimant was returned to his job. In Pippion, supra, the Claimant then filed an action claiming back pay for the period of time that he was not working at his job. As in the case at bar, in Pippion, supra, testimony was presented that inmates do not have a right to employment.

In the Pippion case, this Court concluded that Claimant had lost nothing to which he had a right. This Court determined that the Claimant in Pippion was entitled only to the amount of money allocated as “unassigned pay” which equaled $10 a month.

In the case at bar, Claimant has received the $10 for the month that he was on investigation status. Claimant did not have a right to the rewards of his employment. The case of Pippion, supra, is controlling.

Therefore, this claim is denied.


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

text:
    (No. 91-CC-0520
    Robert Gaynor, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 19, 1993.

      Order filed June 27, 1994.

    Steven A. Greenberg, Ltd., for Claimant.
    Keevers & Hittle (William C. Lindsay, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This is a claim for personal injury. The Respondent has filed a motion to dismiss based upon the statute of limitations, which is two years, by virtue of section 22(g) of the Court of Claims Act. 705 ILCS 505722(g).

The date of injury alleged was August 22, 1988. The Claimant filed his complaint on August 21, 1990. It was accepted by the cleric and stamped; whereupon the clerk later crossed out the stamp and sent the complaint back to the Claimant, along with a checklist indicating possible defects of a complaint. The items on the check-list marked relevant to this claim were:

“(5) Failure to furnish Claimant’s Federal Employer Number or Social Security Number.
(6) Other: Please have the claimant sign where indicated. All copies need his signature.”

The Claimant refiled on September 10, 1990. This refiling put the Claimant beyond the two year statute of limitations, as the Respondent points out in its motion to dismiss.

In this instance, the clerk essentially made a determination that the pleading was defective and sent it back.

In a somewhat similar case, Oppe v. State (1990), 86-CC-2861 (unpublished), this Court found that acceptance and stamping of a complaint without the filing fee amounted to a filing even though the Clerk had sent the complaint back to the Claimant who then refiled late, as in the present case. In the Oppe claim, the case of Ayala v. Gold (1988), 176 Ill. App. 3d 1091, 531 N.E. 1040 was cited. The Ayala case contained a full discussion of filings, citing other cases which hold that once a document is accepted and stamped by the clerk, a filing has occurred.

In the present claim, the insufficiencies cited by the clerk were failure to provide the Claimants social security number and the absence of the Claimants signature. The complaint was verified by the Claimants attorney. Oddly, neither of the alleged insufficiencies are expressly required by this Courts rules or the statutes, whereas the Oppe claim and the Ayala case concerned filing fee which are clearly required by both rule and statute.

As cited in the Ayala case, the rule in cases such as this, is that once the clerk has accepted and stamped the complaint, it is beyond the power of that office to make a determination that the complaint is legally defective and unfile it, by crossing out the date stamp and sending it back. If the complaint contains defects, it may only be stricken by order of the Court upon motion of the Respondent or the Court.

Therefore, we find that the complaint in this claim was filed on August 21, 1990 for the purposes of applying the statute of limitations, and that such filing was within the statute of limitations. It is therefore ordered that the motion to dismiss is denied.

ORDER

Sommer, C.J.

This cause coming to be heard on the motion of the Court, due notice having been given, and this Court being fully advised, finds that the Claimant failed to appear, after notice was given, at status hearings on January 10, 1994, March 14,1994, April 11, 1994, and May 9, 1994. Additionally, this Court finds that by virtue of section 790.260 of the Court of Claims Regulations (74 Ill. Adm. Code 790.260) “that the Claimant has made no attempt in good faith to proceed.”

It is therefore ordered that this claim is dismissed.


text:
    (No. 91-CC-0926
    Eileen Owens, n/k/a Eileen Bagnell, Claimant, v. Illinois State University and The Board of Regents of the Regency Universities System, Respondents.

      Opinion filed May 13, 1994.

    Hayes, Schneider, Hammer, Miles & Cox (James P. Ginzkey, of counsel), for Claimant.
    Joseph J. Goleash, Jr., for Respondents.
   OPINION

Sommer, C.J.

A hearing in the above-referenced case was held in Bloomington, Illinois, on March 15, 1993. Both parties were represented by counsel. The Claimant and her husband testified. The Claimant also called as witnesses Pam Troxel; Illinois State University police officer, Ron Lewis; Dr. Seymour Goldberg; Manuel Cordero; and engineer, Moreley Brickman. The testimony of Crist Schwelle was presented by stipulation. The Respondent cross-examined all of the Claimants witnesses, and also called Tim Kearney as a witness. The Claimant filed a brief, while the Respondent did not.

The Claimant fell at the One West door to the Respondents Bone Student Center on January 5, 1990 at approximately 5:30 a.m. At that time, the Claimant was employed as the manager of the Dairy Queen at the Bone Student Center. When she fell, the Claimants left buttock struck a tennis ball-sized metal door stop anchored to the sidewalk outside the One West door. The Claimant testified that she slipped on water with frost or ice over it which had accumulated outside the One West door. “Well, there was a lot of moisture here [in front of the door], and it was slick. It was really slick. It was like a frost over it or something.”

On cross-examination, the Claimant’s testimony was as follows:

“Q. Was it more frost than ice on that occasion?
A. I would say it was like it hadn’t rained, like it was a moisture that came down there and it froze. It was more like scum over there. It was like a frost.
Q. So there wasn’t an identifiable pond of water with a hard coating on it?
A. Yes, there was.
Q. Where was it?
A. It was on this door. When you come up these sidewalks here, it was here and then went clear across here. [Indicating] There is always water there. There was water even there in tire sunshine.
Q. Okay. On the morning that you fell, is it your belief that there was frost everywhere on the—
A. Yes.
Q. So there was a general frost condition?
A. Uh-huh.
Q. Not a specific patch of ice that you slipped on?
A. It was frost. Ice, or frost, or whatever you want to call it. It was slick.”

Pam Oliver Troxel, a student, who took the Claimant to the hospital, stated she had slipped a number of times where the Claimant fell. Tim Kearney, the facilities manager, testified that no falls had been reported where the Claimant fell.

The Claimant told Manuel Cordero, the Respondent’s maintenance man, that she had fallen. He went to the One West door and did see ice outside the door. The Bone Student Center does keep a supply of salt and sand for sidewalks, but there was no salt or sand on the ice outside the One West door.

This Court finds that there was water present which froze into a slick surface which we will call ice.

The Claimant claims that the water forming the ice at this entrance had two sources — the recessed wall corner just to the north of the door in question, and the patio/overhang above the door. The Claimant argues that the ice formed by these two conditions constituted an unnatural accumulation of ice.

The recessed wall corner where the Claimant fell extends all the way to the roof of the Bone Student Center. The Respondent’s facilities manager, Tim Kearney, testified that the white cast to the bricks in the recessed wall comer is from water, but that he did not believe the recessed wall comer causes water to mn all the way from the top of the Bone Student Center to the One West door. The Claimant’s engineer, Morley Brickman, testified that it was his professional opinion that the recessed wall comer is discolored because of mnning water, and that the recessed wall corner acts as a channel. Then because of the pitch in front of the door the water cannot drain any. In addition, for approximately five years prior to this fall, there had been a water infiltration problem from the patio/overhang above the One West door. Manuel Cordero acknowledged that when it rained, water would come down from the patio above. Engineer Brick-man opined that the discoloration of the brick underneath the patio/overhang is indicative of water having come down from the overhang. Tim Kearney stated that the patio/overhang had been caulked at one time.

The Claimant’s argument is that the Respondent had a duty to prevent unnatural accumulations of ice created by artificial causes or in an unnatural way by the design defects of its property or lack of maintenance thereof. McCan v. Bethesda Hospital (1980), 80 Ill. App. 3d 544; Lapidus v. Hahn (1983), 115 Ill. App. 3d 795.

The condition had persisted for some time and both the buildings maintenance man, Manuel Cordero, and the facilities manager, Tim Kearney, indicated an awareness of the condition. Therefore, the Respondent had knowledge of the abnormal accumulation of water and ice in front of the door.

The burden of rectifying the situation would not have been great. Sand or salt could have been spread, the patio/overhang could have been caulked, and a drain or downspout could have been used to carry away the water from the recessed wall comer.

Therefore, we find that the Respondent was negligent in knowingly allowing an unnatural accumulation of ice to exist where the burden of rectifying the situation would not have been great.

The Claimants physician, Dr. Seymour Goldberg, testified that, in his opinion, falling on the doorstep as opposed to a flat surface localized the blow to the Claimants buttock. The fall caused a severe hematoma which resulted in a permanent eight-inch by bz-inch indentation and scar in the plaintiffs buttock. The Claimant incurred medical expenses of $3,266.39. The Claimant was physically unable to continue her work at the Dairy Queen. She subsequently found other employment, but was off work from the first week of March, 1990, until the first week of October, 1990. Her 1989 earnings were $14,855.76.

The Claimant requests damages for her medical bills, lost wages, permanent disfigurement and disability, and pain and suffering.

The Claimants medical expenses have been stated above. The Claimant did try to return to work at the Dairy Queen, but her pain was so great that she was hospitalized in early March, 1990. The Claimant did not return to work at the Dairy Queen because she believed that she was physically unable to do the work. After her release from the hospital, and as late as June 1, 1990, the Claimant’s doctor gave the Claimant a note saying that she was temporarily disabled as far as work was concerned. She could not work where she had to be on her feet all the time. Finally, on October 5 or 7, the Claimant got a job at Oseo Drugs where she was allowed to sit down every 15 or 20 minutes. The Claimant, basing her calculations upon the previous year’s wages, requests compensation for lost wages from the date of the accident until early October of the same year in the amount of $8,665.76.

We will make an award including the amount of the medical bills and lost wages as calculated by the Claimant.

Remaining to be determined is our award for disfigurement and disability, and pain and suffering.

The Claimant has sustained permanent, though hidden, disfigurement and during her recovery period had a definite disability, as she could not climb stairs or stand for a period of time. Therefore, for disfigurement and disability we award $5,000.

The Claimant did undergo pain and suffering at the time of the injury and during her period of recovery. The Claimant’s physician testified that the pain should subside and eventually disappear. The Claimant and the Claimant’s husband testified that the Claimant was unable to sleep at night because of her pain, but the extent to which this pain was due to her injury or other conditions she suffers from, such as arthritis, was not clear from the record. We therefore award the Claimant $7,500 for past and future pain and suffering.

We also note that the Claimant at the time of the hearing was married and is now known as Eileen Bagnell. We therefore award the Claimant Eileen Owens, n/k/a Eileen Bagnell, $24,432.25 in full and complete satisfaction of her present claim.


text:
    (No. 91-CC-0981
    Sharif Raheem, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 26, 1994.

    Sharif Raheem, pro se, for Claimant.
    Roland W. Burris, Attorney General (Christopher K. Wells, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, an inmate with the Illinois Department- of Corrections, seeks judgment against Respondent, State of Illinois, based on allegations that the State is responsible for Claimant’s loss of a religious article of wearing apparel, a religious cap known as a Muslim Kufi. The damages sought are $30.

At the hearing in this cause, Claimant testified that the article of apparel at issue was “religious headgear.” Claimant was wearing the article at the Vienna Correctional Center. Claimant was asked by an officer what the designs on the article of apparel meant and Claimant advised the officer that they didn’t mean anything. Claimant was instructed to talk to a lieutenant concerning the matter and Claimant’s article of apparel was then confiscated. Claimant received a disciplinary ticket for wearing the article of apparel apparently based on Respondent’s agents’ belief that the article of apparel was gang related.

Claimant’s grievances were denied and his appeal to the Administrative Review Board in Springfield was not heard, apparently on the basis that it had not been timely filed.

Respondent’s Exhibit 1 was offered and admitted into evidence as a departmental report. The exhibit was from the claims coordinator for the Illinois Department of Corrections to the Illinois Attorney General’s Office noting that Claimant’s claim should be denied recovery for the reason that Claimant had not exhausted his administrative remedies. Claimant contends that he was aware of the process for filing grievances with both the institution and the Administrative Review Board. However, Claimant contends that the time the person had to respond from a denied grievance to seek review with the Administrative Review Board was not specified on any of the materials he had received.

The State called no witnesses. Neither party filed a brief.

This case is governed by the rule established in Terry v. State (1988), 41 Ill. Ct. Cl. 164. In Terry, the record revealed that the claimant had received the decision of the Institutional Inquiry Board. The claimant in Terry contended that he “wrote Springfield, the Administrative Review Board.” That claimant contended that he had not heard from the Administrative Review Board. That claimant kept no copy of his correspondence with the Administrative Review Board. Interrogation by the State revealed that the claimant had not had a hearing before the Administrative Review Board. Thus, this Court concluded that the claimant had not exhausted his administrative remedies in accordance with section 790.60 of the Court of Claims Regulations. (74 Ill. Adm. Code 790.60.) In light of the fact that claimant had sought a final adjudication of his claim without exhausting administrative remedies, the claim in Terry, supra, was denied.

The present facts are similar to the facts in Terry, supra. Claimant failed to timely file for a hearing before the Administrative Review Board. For the foregoing reason that Claimant has failed to exhaust his available remedies, this claim is denied.


author: Patchett, J.

text:
    (No. 91-CC-1014
    Timothy Hall, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 29, 1994.

    Timothy Hall, pro se, for Claimant.
    Roland W. Burris, Attorney General (Kathy Twine and Diann Marsalek, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Patchett, J.

The Claimant is an inmate with the Illinois Department of Corrections. He seeks damages from the Department of Corrections as a result of injuries sustained when correctional officers struck him in the face. At a hearing before a commissioner of this court, the Claimant testified that he was a member of the Black Disciples. He was incarcerated following a murder conviction.

Mr. Hall testified that on August 13, 1990, he was the subject of an adjustment committee hearing regarding a ticket he had received for a previous incident. The previous incident consisted of a threat and intimidation against Corrections Officer McGee. Mr. Hall testified that Officer Sandige had appeared and testified at the hearing. Mr. Hall was found guilty and sentenced to 60 days in the segregation unit as a result of this committee hearing.

Following the hearing, Mr. Hall approached Officer Sandige. Hall pointed his finger at Sandige and questioned why the officer had testified in that matter. Hall testified that he said, “What the fuck you doing, what’s up with you?” Hall admitted that he acted in the heat of the moment. He further testified that he intended to get back at Officer Sandige.

Hall testified that Officer Sandige then struck him in the mouth with a radio. This resulted in Mr. Hall’s loss of three teeth. A fight ensued during which Mr. Hall also kicked and hit Officer Sandige in the face and body. After this fight ended, two more fights broke out, and several of the inmates were involved. When Mr. Hall was later returned to his cell, he discovered that his mouth was cut and required stitches.

As a result of the incident on August 13, 1990, Mr. Hall was brought before the adjustment committee for yet another hearing. He was found guilty and sentenced to one year in segregation, one year loss of good time, and reduction in grade.

Mr. Hall testified that he was acting in self defense and alleges that Officer Sandige used excessive force.

Respondent called Officer Brian Givens, who had witnessed the incident. Officer Givens testified that Mr. Hall was angiy following the adjustment committee hearing on August 13, 1990. He testified that Mr. Hall said, “I am fucking everybody up and I am starting with you.” After saying this, he began pushing Officer Sandige in the face.

According to Officer Givens, Sandige then used his right fist to strike Mr. Hall in the mouth. Givens denied that Sandige used the radio to strike Mr. Hall.

Other inmates and members of the Black Disciples became involved in the fight. The inmates grabbed Officer Sandige and began kicking and beating him. Officer Givens testified that Sandige suffered a bruised kidney and lung, in addition to back and leg injuries. Officer Sandige was on disability for two months following the incident. He ultimately left his employment as a prison officer.

Sergeant Jordan was also called to testify. Jordan testified that he was a correctional sergeant on duty at the time of the incident. Jordan was alerted by inmates running toward the door. He then observed Officer Sandige “folded up” in the corner and being kicked and hit by several inmates. Jordan and his supervisor were able to stop the fighting, but after a few minutes, the fighting began again. Sandige was grabbed, dragged underneath the tower, and inmates piled on top of him and began beating him. The inmates were using weight belts and sticks as weapons. The fighting was halted a second time, but shortly after that, the fighting began a third time. The captain then gassed the unit with mace.

This Court has held that where a prison officer is faced with an inmate disturbance, he is afforded a wide range of discretion. The Court will consider the total circumstances in determining whether the officers conduct can constitute negligence. Hamilton v. State (1987), 40 Ill. Ct. Cl. 191, 195.

The Court has also held that where an inmate becomes unruly and physically abusive towards officers, the officers may use such force as is reasonably necessary to restrain the inmate. Simmons v. State (1991), 44 Ill. Ct. Cl. 304.

We find that the officer did not exceed the limits of his discretion or abuse his discretion. The officers actions were reasonable and necessary when viewed within the context of this situation. We hereby deny this claim.