text:
    (No. 6779
    Hyde Park Medical Laboratory, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 22, 1988.

      Agreed order filed February 24, 1989.

    Lawrence Jay Weiner, for Claimant.
    Neil F. Hartigan, Attorney General (Robert Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

This case is brought by Claimant seeking to recover $340,681.00 for medical laboratory services rendered to the Department of Public Aid from December 31, 1969, through May 31, 1971. The Respondent urges that no sums are due.

To understand this case, and the interminable delays in its disposition, the following discussion of the facts is necessary.

In July of 1971, the Department of Public Aid notified Claimant that its unpaid invoices were being held pending investigation. Thereafter, the Department refused to pay them and this action was instituted for $307,960.00. By amended complaint, the amount sought is now $340,681.00.

This action has been delayed in proceeding because of the Claimant’s removal (and reinstatement) of his original counsel, actions brought in the district court for the Northern District of Illinois, recusal of our Commissioners on allegations by Claimant of bias, failure of Respondent to produce documents, and Claimant’s motions for general continuance status pursuant to our rules. This case was on general continuance status from March of 1973 until October of 1975, from January of 1977 until June of 1978 and from May of 1979 until January of 1983.

A series of hearings was conducted in 1976 before one of our Commissioners. It should be noted that none of the present judges of this Court were such at that time. No further hearings were held until 1987. On May 11, 1987, we entered an order, on motion of Claimant, barring the Respondent from offering further evidence and instructed our Commissioner (not the one who conducted the 1976 hearings) to submit his report. He has done so, and we have extensively examined the record in our possession, and herewith issue our opinion.

The transcripts of proceedings reveal little evidence, and much argument, bickering and allegations of wrongdoing between the Claimant, his attorney and the assistant Attorney General (now deceased) who participated in the 1976 hearings.

It was asserted by Respondent during the hearings that the claim should be barred because of fraud on the part of the Claimant. Our examination of the record fails to show a scintilla of evidence that supports that allegation.

The record in support of Claimant’s claim consists of the verified pleadings, testimony of its sole shareholder that the services were rendered to patients eligible for medical assistance, documents and the offer of “boxes” of invoices and records admittedly in the possession of the Respondent and, since the prior hearings, “lost” either by the Office of the Attorney General or the Department of Public Aid more than 10 years ago. Additionally, the Claimant has submitted the statement of his counsel, under oath, that “The Bill of Particulars (previously filed) constituted a true and accurate summary of the aforesaid records and was conformed and verified prior to submission to the Commissioner.” See Supplemental Motion for Immediate Granting of an Award, page 2, filed June 23,1988.

Respondent does not deny that it received records prior to the 1976 hearings, and simply maintains they are “lost.” In fact, Respondent has, in correspondence filed with us by Claimant, acknowledged that it did receive invoices and billings for approximately $165,000.00.

The bill of particulars, filed December 10, 1986, is some two inches thick, and describes by date, patient and amount of charge the more voluminous records and invoices submitted 10 years earlier to the Respondent and lost by Respondent. The bill of particulars specifies some 6,376 charges.

Based on the entire record, and we note that Respondent has not refuted Claimant’s evidence, we find that the Claimant has established, by a preponderance of the evidence, that it is entitled to $340,681.00.

It is therefore ordered, adjudged and decreed that the Claimant is awarded $340,681.00 in full and complete satisfaction of this claim.

AGREED ORDER

Raucci, J.

Pursuant to the contract for legal services and retainer agreement attached hereto, and for acknowledged legal services rendered by Lawrence Jay Weiner during the course of this proceeding, including but not limited to the trial, hearings, pleadings and obtainment of the award:

It is hereby agreed by and between Lawrence Jay Weiner and the Claimant, James A. Wright, that Lawrence Jay Weiner receive the sum of $113,560.33 from the award.


source: Caselaw Access Project

author: Holderman, J. Holderman, J. Montana, C.J.

license: Public Domain

text:
    (No. 77-CC-0315
    J. F. Incorporated, Claimant, v. The State of Illinois, Respondent.

      Order on motion to dismiss filed January 19, 1983.

      Order on denial of rehearing filed March 14, 1983.

      Opinion filed November 29, 1988.

    Leritz & Reinert & Duree (David M. Duree, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Michael Taylor, Lee Malany, and William E. Webber, Assistant Attorneys General, of counsel), for Respondent.
   ORDER ON MOTION TO DISMISS

Holderman, J.

This matter comes before the Court upon motion of Respondent to dismiss and Claimant’s response to said motion.

Respondent’s motion sets forth that this case was filed on February 22, 1977, over five years ago. Said motion further states there have been no formal general continuances requested or granted, and there have been no annual status reports submitted to the Court as required under section 790.70 (74 Ill. Adm. Code 790.70) relative to general continuances. Respondent’s motion further states that a failure to properly seek a general continuance is a violation of section 790.60a (74 Ill. Adm. Code 790.60a) of this Court. Respondent concedes that it still owes Claimant the amount of $100.00.

Claimant, in its response to Respondent’s motion, states that litigation is still pending in other courts but offers no explanation of any kind or character as to its failure to comply with the rules of this Court as to general continuances and status reports.

An award is hereby entered in favor of Claimant in the amount of one hundred ($100.00) dollars, and any further award is denied Claimant due to its failure to comply with the rules of this Court. Said award of $100.00 is to be considered full and complete payment of all claims allegedly due Claimant.

ORDER ON DENIAL OF REHEARING

Holderman, J.

This matter comes before the Court upon petition of Claimant for rehearing filed January 25,1983.

This cause was originally dismissed by order entered January 19,1983, for violation of sections 790.70 and 790.60a (74 Ill. Adm. Code 790.70, 790.60a) of the rules of this Court. As stated in this order of dismissal, this cause was filed February 22,1977, and Claimant did not file any annual status reports as required under section 790.70 relative to general continuances. Said order also stated that the Claimant failed to seek a general continuance as required by section 790.60a.

It is unfortunate that Claimant failed to observe the rules of the Court, but the Court calls attention to the fact that these rules are necessary for the protection of Claimants as well as Respondents so that an orderly procedure in the handling of cases before the Court can be maintained. Complete disregard of the rules, such as in this instance, defeats the very purpose of the Court of Claims Act.

It is hereby ordered that Claimant’s petition for rehearing be, and the same is, denied, Claimant’s request for vacation of the Court’s order of January 19, 1983, is denied, and the Court’s order of January 19, 1983, is hereby reaffirmed.

OPINION

Montana, C.J.

The Claimant, J.F. Inc., brought this claim seeking damages incurred due to delays and other problems Claimant encountered in the performance of a construetion contract with the Respondent’s Capital Development Board (hereinafter referred to as the CDB). A hearing in the case was held October 25, 1985, and oral arguments before the full Court were heard January 12, 1988.

In September of 1973, the CDB awarded contracts for the construction of two buildings for the Alton Area Career Development Center. Alton Community Unit School District No. 11 became the ultimate user. The Claimant was awarded a prime contract for the heating and electrical work. S.M. Wilson & Company was awarded a prime contract for the general construction work. Both contracts were for fixed amounts with identical language and completion dates. General obligations of the parties were set out in the contracts and the specific contractual requirements were established in the specification book and the drawings. The contract documents specified 500 calendar days for completion which would have been January 25, 1975. However, due to the delays, the project did not receive a certificate of final acceptance until August of 1976.

Because the Claimant incurred costs for various delays, it filed suit against S.M. Wilson on the contract between S.M. Wilson & Company and the CDB alleging it had third-party beneficiary status. S.M. Wilson & Company counterclaimed on the same theory. Claimant also sued the architect for negligence. At the conclusion of the jury trial, the jury returned a verdict in favor of the Claimant for $37,000 on the contract count and against the Claimant on the counterclaim for $5,000. The jury also awarded Claimant $8,000 from the architect. S.M. Wilson & Company appealed. The record does not indicate if the architect appealed.

During the pendency of the appeal the case at bar went to trial. The Respondent’s defense primarily consisted of blaming the delays on S.M. Wilson & Company and the other contractors and arguments of res judicata and collateral estoppel.

After the hearing on the case at bar was concluded, the appellate court for the Fifth Appellate District rendered its decision. The appellate court’s decision is reported in J.F. Inc. v. S.M. Wilson & Co. (1987), 152 Ill. App. 3d 873, 105 Ill. Dec. 748. A rehearing was denied March 10,1987, and the supreme court denied certiorari. The appellate court reversed the lower court decision and essentially found that neither J.F. Inc. nor S.M. Wilson & Company had third-party beneficiary status which would enable them to sue each other on their contracts with the CDB and that a lawsuit in the Court of Claims against the CDB was the appropriate procedure to follow in seeking damages for delays.

Having explained the background, we will now turn to the various items of damages claimed in the order that they were itemized in the Claimant’s brief. First, Claimant is seeking $231,500.08 and $19,041.75 for cost overruns associated with delays occurring in the performance of the electrical contract and heating contract, respectively. There is no question that delays occurred. The contracts specified that the project was expected to be completed in 500 days when in fact it took over 1000 days.

There was much testimony and finger pointing as to the cause of the delays. The project was delayed from the beginning due to problems with removal, relocation, and compaction of the earth which was primarily the responsibility of the general contractor, S.M. Wilson & Company, who had subcontracted to have the work done. There was testimony also that the architect on the project did not adequately supervise the work and allowed the delays to occur. Obviously, the Claimant could not proceed with its electrical and heating work until certain other phases of the construction were completed. There was no evidence that the Claimant contributed to any of the delays. There was evidence that the Claimant continuously notified the CDB that delays were occurring and costs were mounting.

Claimant’s contract was with the CDB. The CDB has the primary responsibility for making the work site available to the contractor in time for the contractor to do the work. As owner, the CDB is legally liable for the delays and resulting damages. The fact that the CDB separately contracted with other entities who may be to blame for the delays is of no consequence in this action. If the CDB is damaged by the actions it attributes to others, it may pursue those it believes caused the damage. Under circumstances as are involved here, where all the parties to the contract cannot sue each other in one forum, this result must obtain. The court in J.F. Inc. v. S.M. Wilson & Company stated:

“ ° ° ° (T)his court finds that if the owner failed to make the site available to the contractor in time for the contractor to do its work, the contractor may sue the owner. (See W. H. Stubbings Co. v. World’s Columbian Exposition Co. (1903), 110 Ill. App. 210.) In this case, the prime contractor may sue the State in the Court of Claims (Ill. Rev. Stat. 1985, ch. 37, par. 439.1 et seq.) for its failure to properly supervise the construction project. (Ill. Rev. Stat. 1985, ch. 127, par. 780.04.) Even if the contract contained a no-damage-for-delay provision, a prime contractor may sue and recover from the owner for delay damages caused by another prime contractor. (United States Steel Corp. v. Missouri Pacific R.R. Co. (8th Cir. 1982), 668 F.2d 435, 438-40.) Thus, the appropriate procedures for a prime contractor are change orders and possible lawsuit in the Court of Claims.” supra, 152 Ill. App. 3d 873, 878.

It is practically inevitable that all construction projects will suffer delays of one form or another, particularly projects calling for coordinated efforts by multiple contractors. For a delay to be tolerated, it must be reasonable under the circumstances. The delay on this project was considerable and, other than to try to put the blame on the other contractors, the Respondent offered little to show excuse. The Respondent’s main defense is that the completion date was provisional and did not impose a duty upon the owner to ensure completion by that date, citing Edwards Construction Co. v. Illinois State Toll Highway Authority (1975), 34 Ill. App. 3d 929, 340 N.E.2d 572. In Edwards, the court held that the owner was not liable for delays caused to a second phase contractor on the basis of a schedule that did not afford the plaintiff a prepared worksite upon which to perform. The court held that that contract provided a completion date, but that the completion date was provisional and did not impose a duty upon the owner to ensure completion by that date. Cases interpreting contracts all vary by the terms of the different contracts and the parties’ understandings and reasonable expectations and are distinguishable on those bases. However, the Edwards case and this case do have several similarities. Among the factors the Court in Edwards considered in reaching its opinion were:

1. The same completion date for all the contractors;

2. Anticipation that the plaintiff’s work would depend on preliminary work done by other contractors;

3. The contract gave the owner a right to change plans and interrupt the continuity of the work.

The same factors are presented in this case. The general contract with S.M. Wilson and the electrical contract with the Claimant both called for completion in 500 days. In bidding the contract, the Claimant only had the completion date to work backward from or a general estimate of when the work of the others would be completed to arrive at an expectation of a starting date. Still, the delays on the project greatly exceeded anything reasonable or foreseeable. Nor could adjustments be made as the project slowly progressed because various work schedules were never approved.

Claimant was aware that its work depended on site preparation by S.M. Wilson & Company. Further, at the time Claimant bid the contract, it was aware that the general contractor should have a work schedule after the awarding of the contract. On cross-examination, in response to the question, “In fact, on this project when you prepared the estimate you cannot do [sic], you did not make an estimate of the time that would be required to excavate the site, did you?”, Claimant’s president stated, “No, I didn’t.” However, even if Claimant was unable to depend on an exact starting date, there was no evidence to show why he could not expect to rely on an outside completion date. Even if we were to find that the completion date was provisional, Claimant should still have been able to rely on a reasonable completion date. Respondent has not suggested that the CDB could have allowed the project to go on forever. The delays in this case were beyond being reasonably within provision. Still, Respondent’s argument has merit and we will consider it further in determining the amount of damages suffered.

The third similarity, that the contract in the Edwards case provided that the owner could change the work or interrupt its progress, thereby altering any schedule once the project started, is in the Claimant’s favor. In the case at bar, the contract included the general conditions which, in section 8.3.4 (S-29) provides:

“This paragraph 8.3 does not exclude the recovery of damages for delay by either party 0 °

Respondent’s reference to several sections of the general conditions, at page 14 of its brief, inaccurately suggests that Respondent could change the work or interrupt the progress or alter the schedule without paying additional costs. Sections 12.1.1 and 12.1.2 of the general conditions (S-32) provide that any changes in the work made by Respondent must be by written change order with “the contract sum and the contract time being adjusted accordingly.” Nothing in the sections cited by Respondent at page 14 of its brief permits the Respondent to change the time of completion without granting additional costs to the Claimant.

We find that the Respondent has the responsibility for the damages sustained by the Claimant due to the delays. However, the damages are difficult to ascertain with exactitude. Claimant testified that his losses occasioned by the delays were not related to costs of materials but to labor costs. Claimant produced sufficient evidence that his actual labor costs exceeded his estimated labor costs by $175,098.88 on the electric contract and $13,471.34 on the heating contract. Unrefuted testimony by the president of J.F. Inc., James Fowler, as to the reasonableness of the estimates was that the bid was within 1 or 2% of the next lowest bidder on the electrical contract and within 4 or 5% of the next lowest bid, with the other bids very near his on the heating contract. The increased labor costs were attributed to wage rate increases, loss of efficiency because of the necessity of stopping and starting work at various times, and the requirement of having supervisory personnel on the project for 1000 days instead of 500 days.

However, with the unknown variable of an exact starting date, the fact that some delay is inevitable, the inherently speculative nature of computing loss of efficiency and the six-week strike, we find that Claimant’s losses occasioned by delay to be $135,000 on the electrical contract and $11,000 on the heating contract. Admittedly these figures are somewhat arbitrary, and the delays were primarily the responsibility of the Respondent, but we do not think that the damages are computable down to the penny as Claimant has tried to show. As triers of fact, it is our responsibility to arrive at an amount after weighing the evidence. (Neylon v. State (1986), 39 Ill. Ct. Cl. 65.) We think that our findings represent a fair amount.

Other factors Claimant seeks to have considered in arriving at the damages for the delays are overhead, earnings, and extra front office administrative costs. Claimant seeks an additional 15% for overhead and an additional 10% for earnings. He testified he usually used those percentages for change order work. However, he also testified that he used 10% for overhead and 10% for profit in making his bid. We find overhead and profit appropriate items of damages and will allow 10% for each. Multiplying the previously stated amounts of damages by these percentages, we find additional damages in the amount of $29,200. As for the additional front office administrative costs, Claimant seeks $50 per hour for 200 extra hours on the electrical contract and for 40 extra hours on the heating contract. This cost, Claimant claims, is for the people involved in the front office whose time does not appear on time cards, i.e. salaried personnel, and whose duties included writing checks and attending meetings. The exact number of hours worked by the front office personnel attributable to the delays was not logged nor was the rate of $50 per hour substantiated by anything other than the testimony of Mr. Fowler that both the number of hours and cost were very reasonable figures. Regardless, we find any such costs are covered under the factor for overhead which we have previously allowed.

In addition to damages for cost overruns due to delays, Claimant seeks compensation for its expenses in installing hydraulically compressed connectors or “hyplug” terminators as the parties referred to them. The specifications for the electrical work permitted either copper or aluminum electrical wire conductors. The choice was up to the bidder. Aluminum was less expensive than copper and the Claimant bid the less expensive way of doing the job. Had copper wire been chosen, set screws could have been used for connectors. Aluminum wire necessitates the use of the more expensive hy-plug connectors. Claimant submitted a request for a change order to use the hy-plugs. The request was approved and the change order was issued but with no increase in compensation allowed.

Helpful to our understanding of the matter was testimony by way of affidavit from the Respondent’s expert, Joseph B. Summers. Paraphrasing his testimony, he explained that an aluminum conductor must be larger than the copper conductor required to carry a specific load. The use of set screw connectors in conjunction with aluminum conductors is unreliable and unsafe. A set screw connector is a sleeve which fits over an exposed conductor. A set screw in the sleeve is tightened, fastening the sleeve to the conductor. A set screw is inappropriate for use with an aluminum conductor because of the tendency of aluminum conductors to creep or shrink as the conductors heat and then cool over time as the result of electrical loads varying over time from large to small. This shrinkage loosens the connection between the sleeve and the conductor, resulting in increased risk of the conductor becoming pitted or corroded, of arcing, of the connection breaking, and of the conductor separating from the sleeve. There can also be a problem with the aluminum conductor oxidizing after the connection becomes loose, and then overheating at the connection point because of increased surface resistance of the conductor. Copper conductors are, however, suitable for use with set screws because copper does not creep or shrink as does aluminum.

Mr. Summers went on to explain that hydraulically compressed connectors, or hy-plugs, are the proper connectors to be used with aluminum conductors. Hyplugs also consist of a sleeve which fits over the exposed conductor. This sleeve however is compressed by means of a special tool which crushes the sleeve into a tight fit with the conductor. The force of the compression is so great that, within the sleeve, the conductor itself is deformed. The use of the hy-plug results in a much tighter fit between the sleeve and the conductor, thus preventing loosening of the bond between the sleeve and the conductor and also preventing oxidation of the service of the conductor. Use of different connectors depending on which conductor is used is the accepted norm in the industry.

It is the Respondent’s position that the Claimant is not entitled to compensation for the increased cost of the hy-plugs. Respondent argues that the specifications called for conductors and was silent as to the connectors. Because the Claimant chose to use the less expensive aluminum wire, he should bear the added expense of the hy-plugs necessitated thereby.

Although the Respondent’s position sounds reasonable, the evidence indicates that such was not the intent of the parties. The Claimant submitted an estimate of $65,000 in connection with the change order. The parties were unable to agree on a price. When the change order was issued, it stated that the amount of Claimant’s contract was thereby increased in accordance with article 12.1.4 of the general conditions of the contract. Said article provides that when the owner and contractor cannot agree upon the amount of a change order:

° ° (T)he Contractor, provided he receives a Change Order, shall promptly proceed with the Work involved. The cost of such Work shall then be determined by the Architect on the basis of the Contractor’s reasonable expenditures and savings, including, in the case of an increase in the Contract Sum, a reasonable allowance for overhead and profit.”

The parties’ intention that the Claimant be compensated an additional amount for the hy-plugs is further evidenced by correspondence between James Fowler, the president of J.F. Inc. and Thomas Madigan, the acting manager for project development for the CDB. Mr. Fowler wrote the CDB after receipt of the executed change order questioning the CDB’s direction to proceed with no contract increase. Mr. Madigan wrote back stating:

“Your question regarding the insertion of no dollar change amount on the lower portion of the document and on our letter of transmittal is understood. The no dollar change figure is only for accounting purposes at this time. The intent of the document is exactly as spelled out in its content. You were directed to proceed with the work in accordance with A.I.A. A201, Article 12.1.4 with the cost to be determined later. Your cooperation to quickly complete the work in accordance with the document is earnestly solicited.”

The Claimant went ahead and performed the hyplug work using a separate crew and keeping separate cost records. Including overhead and profit, Claimant computed the cost of the additional work to be $40,163.29 and billed the CDB for that amount. The CDB allowed an extra cost of $18,373.40 based on an estimate from the mechanical engineer which estimate was prepared before the work was performed. As quoted previously, article 12.1.4 provides that cost is to be determined by the architect on the basis of the contractor’s reasonable expenditures. Neither the architect nor the mechanical engineer prepared an estimate of the actual cost after the work was performed, No evidence was offered to counter the Claimant’s evidence of its actual expenditures for this extra work. We have no basis for finding that the costs submitted by the Claimant were based on anything other than reasonable expenditures. After allowing credit for the $18,373.40 paid by the CDB and reducing the amount of overhead by 5%, we find that the Claimant has suffered damages on this item in the amount of $19,781.73.

The next item of damages sought by the Claimant arose as a result of a fire on the site during the job. The fire damaged an electrical switch-gear which was repaired by the Claimant at a cost of $10,500, again including overhead and profit. As to this cost there does not appear to be a dispute. The dispute centers on whether the CDB should be held responsible for the payment of the cost. The supplemental general conditions of the contracts set forth in the specifications amended in part the general conditions, article 11.3, to provide that the general contractor, S.M. Wilson & Company, would furnish the builder’s risk insurance policy which was to cover all the contractors and subcontractors. In relevant part, those provisions are as follows:

“21. Delete subparagraph 11.1.3 in its entirety and substitute the following: 11.1.3 The Certificate of Insurance acceptable to the Owner shall be filed in duplicate with the Architect. The Certificate of Insurance shall have the indemnification agreement typed on the back. Insurance shall be written with a company having a Best Insurance Guide Rating of AAAAA A Plus.
11.1.3.1 The Contractor and/or any of his subcontractors shall not commence work at the site under this Contract until he has obtained all required insurance and until such insurance has been approved by the Owner and Architect. Such approval shall not relieve or decrease the liability of the Contractor hereunder.
11.1.3.2 The Contractor shall not cause any insurance to be cancelled nor permit any insurance to lapse. All insurance policies shall include a clause to the effect that the policy shall not be cancelled or reduced, restricted or limited until fifteen (15) days after the Owner and Architect has received written notice as evidence by return receipt of registered or certified letter.
11.1.3.3 The above required Certificates of Insurance shall contain transcripts from the proper office of the insurer, evidencing in particular those insured, the extent of the insurance, the location and the operations in which the insurance applies, the expiration date, the above-mentioned notice of cancellation clause, the above-mentioned contractual liability coverage, and the name and address of the issuing agent.
22. Property Insurance: Amend subparagraph 11.3.1 as follows:
Property Insurance as described in Paragraph 11.3.1 shall be purchased and maintained by the General Contractor. This insurance shall be in effect prior to time when construction materials will be placed on the site or sites. The Policy required will be a Fire and Extended Coverage Insurance Policy, to which is attached a Builder’s Risk Completed Value Form No. 17-C and a Vandalism and Malicious Mischief Insurance Endorsement Form No. 205 for 100% of all construction contracts. The Insurance shall be written with a company having a Best Insurance Guide Rating of AAAAA A Plus.
0 0 0
24. Delete subparagraph 11.3.3 in its entirety and substitute the following: Any loss is to be made adjustable with and payable to the Owner, Contractor, subcontractors, and Material Dealers as their interests may appear at time of loss. The Owner and the Contractor shall be named in the policy.
25. Delete Subparagraph 11.3.4 in its entirety and substitute the following: Before an exposure to loss may occur the respective contractors shall file a copy of all policies with the Owner and the Architect.
0 0 0
27. Delete subparagraph 11.3.6 in its entirety and substitute the following: The Owner, the Contractor and all Subcontractors waive all right of action, each against the others, for damages caused by fire, or other perils covered by Insurance provided for under the terms of this Contract, except such rights as they may have to the proceeds of insurance held by the Contractor as trustee.
0 0 0
29. Add the following to Paragraph 11.3:
11.3.9 This Policy and all its endorsement shall include the following special provision which shall be stated on the Certificate of Insurance:
11.3.9.1 If this Policy is cancelled during its term, be in danger of expiring, or the coverage afforded by it is reduced, the insurer will mail, by certified post, notice 15 days before the effective date of such cancellation or change to the State of Illinois Capital Development Board, 216 East Monroe Street, Springfield, Illinois 62701.”

S.M. Wilson & Company did furnish a builder’s risk insurance policy, but the policy named only S.M. Wilson & Company as the insured. After the fire and upon discovering it was not named as an insured, the Claimant filed suit against S.M. Wilson & Company and the insurer, claiming S.M. Wilson & Company was negligent in failing to have Claimant added as a named insured and claiming that the policy, although not expressly naming the Claimant, was in fact intended to cover the Claimant. The same insurer had both S.M. Wilson’s liability policy and the builder’s risk policy. The matter was settled for $5,250 which the Claimant acknowledges must be set off against its alleged $10,500 loss.

It is Claimant’s position that the CDB, as owner, had an implied duty to see that the insurance policy furnished by S.M. Wilson & Company covered all of the other contractors, as required by the contract, and breached that duty in failing to do so. We agree. We think that the Claimant had a right to rely on the terms of the contract. The CDB was the owner of the project and had ultimate control over the project. Under the terms of the contract, the certificate of insurance had to be acceptable to the CDB. It had to be filed with the CDB’s architect. The work was not to have begun at the site until the insurance was approved by the CDB and the architect. If the policy was unacceptable to the CDB, Claimant should have been prevented from starting its work. We do not accept the Respondent’s argument that the loss was the Claimant’s own fault because Claimant failed to check on the coverage. It was not Claimant’s responsibility.

Nor do we accept the Respondent’s argument that the Claimant failed to exhaust its remedies as required by section 25 of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.25). The argument is that Claimant should have fully litigated its suit against S.M. Wilson and the insurer. Respondent opines that the Claimant had a strong case and could have obtained full recovery. We do not deem it necessary to process claims through trial in order to meet the exhaustion of remedies requirement. (Dellorto v. State (1979), 32 Ill. Ct. Cl. 435.) Respondent’s assertions to the contrary, we do not think the legislative intent was to require claimants to pursue every rémedy to judgment or, perhaps, beyond through the various stages of appeals, nor do we think it good policy to require such. We think that a claimant has sufficiently exhausted a remedy if the settlement appears reasonable under the circumstances and there is no showing of fraud or collusion. The settlement appears reasonable. After reducing the $10,500 by the settlement and allowing only 10% for overhead, we find Claimant’s damages, to be $4,725.

Next, the Claimant seeks extra compensation for the installation of what the parties call the “service entrance.” In the industry, the conductors or wire between the electrical power source and the metering device is known as the service entrance. It is Claimant’s contention that the installation of the service entrance was not Claimant’s responsibility according to the specifications. The Claimant was directed by the CDB to install the service entrance and did so. Claimant submitted a request for a change order seeking additional compensation but the request was refused on the grounds that the work was included in the specifications as part of the electrical contract. Claimant kept separate records of its costs and seeks $26,661.22 of which approximately 70% was for materials and 30% for labor.

In support of its position, Claimant submitted an affidavit from its expert, James Fowler, president of J.F. Inc. In support of its contention that the plans called for the Claimant to do the work, the Respondent submitted an affidavit from its expert, Joseph B. Summers. Their conclusions are contradictory. However, the record does indicate that Mr. Fowler thought that there was an ambiguity in the plans before he bid the project for the Claimant. His affidavit states that an issue in most electrical construction contracts is whether the responsibility for the service entrance conductors is that of the public utility or that of the electrical contractor. He further stated that J.F. Inc. always checks the plans and specifications and, if necessary, checks with the public utility to clarify the issue before submitting its bid. In this case he did check with a public utility. He stated that prior to bidding the project he telephoned Illinois Power Company and received confirmation that Illinois Power Company would provide the service entrance conductors and as a result did not include that cost in his bid. His affidavit also states that Henry Morgan, an electrical inspector for the CDB, contacted Illinois Power Company and confirmed that it would have done the installation and that Mr. Morgan also checked the bid and estimate papers of J.F. Inc. and confirmed that the cost was not included in the bid. Ultimately, electrical power for the project was furnished by Union Electric Company, not Illinois Power Company, and Union Electric Company refused to do the work. We think Mr. Fowler should have known about this possibility. His affidavit states he was particularly familiar with electrical contracting customs, practices, and procedures in Madison County where the project was located and further that the area was either on the borderline of the jurisdiction of the two public utilities or was in an area of dual jurisdiction. The record does not indicate if he contacted Union Electric Company. More importantly, thinking that there was an issue, he did not seek clarification from the CDB. We find in favor of the Respondent on this issue.

As for the next item for which Claimant seeks compensation, television conduit which was not specified but required as an extra, the Respondent stipulated at the hearing that the $1,020 claimed was owed.

Next, the Claimant seeks compensation for additional expenses incurred for the use of a helicopter to lift heating units from the ground to where they were to be situated on top of the building. James Fowler testified that the normal standard procedure for installing such units is to lift them onto the edge of the roof with a crane, setting it on planks to distribute the weight and then rolling them into place. He testified that he prepared his estimate on the assumption that his company would be allowed to set the units in place in this manner. When the time came to install the units he was denied permission to use that method of setting them in place by the architect. He could not recall the reason for denial of permisson and the record otherwise contains no indication of a reason. The Claimant then brought in a large crane which had to be assembled on location in anticipation of lifting the units from the ground, beyond the edge of the roof, to the center of the roof where they were to be installed. This crane was so large it could not be supported by the ground underneath and had to be disassembled and removed from the project. After making inquiries in St. Louis, Claimant located a helicopter in Atlanta, Georgia, and had it flown in to airlift the units into place. Claimant was billed $10,500 for that service. He testified he had figured a cost of $8,000 in his bid to cover the locating of the units and the cost of the use of the two cranes exceeded that estimate. Claimant seeks $10,000 plus overhead and profit for a total claim of $12,500.

The Respondent asserted four defenses to this item of the claim. First, Respondent states that contract provides that the Claimant had to put the units in place. It did not provide how they were to be put in place and Respondent should not be responsible for more than the original contract price because the Claimant was unable to get the job done within the cost estimated. We do not accept this argument. The unrefuted testimony was that the Claimant had planned on using a method which was the usual and ordinary way. He was prevented from doing it that way by the architect. He was forced to use a different method which necessitated incurring more expense. No reason whatsoever for the refusal of permission was offered. Under the circumstances we think that it was incumbent upon the Respondent to offer a rationale for requiring the Claimant to proceed in an out-of-the-ordinary way or else bear the responsibility for the added cost.

The Respondent’s second argument is that the Court should not condone the Claimant’s trying different methods until it finds one that works and then billing the Respondent for costs in excess of the estimate. This argument is not supported by the facts. Claimant’s portion of its bid which related to the placement of the units on the roof was $8,000. That estimate did not contemplate the second crane. Claimant does not seek recompense for it. Claimant is seeking the added expense incurred for doing the work in an out-of-the-ordinary way. Respondent has not suggested that the way Claimant finally got the job done was inappropriate nor has Respondent suggested a less expensive way to have done it.

The third argument was that any damage suffered by the Claimant was occasioned by the architect. For reasons stated earlier, we do not accept this argument.

Fourth, and aside from the merits of this part of the claim, Respondent asserts there should be a setoff on the amount claimed. After performing the work at the site, the helicopter made an additional lift at another project of the Claimant which was underway at the same time. Respondent argues that there should be a credit for that work and because the Claimant did not offer evidence as to the value of that work, the Claimant failed in its burden of proof as to the damage and this item should be denied. However, Claimant’s testimony was that the helicopter was brought in for the express purpose of this project. The additional job was close to the site and performed at no charge. But for the architect’s refusal to permit the Claimant to proceed in the normal fashion, the helicopter would not have been rented, according to James Fowler.

We agree with the Respondent that there should be a setoff against the amount claimed for the value of the work done by the helicopter at Claimant’s other worksite. The Claimant did receive something of value not related to the Respondent’s project. We do not find the method of billing entirely persuasive. However, we do not think that this portion of the claim should fail for lack of specificity as to the value of the service. Damages are not rendered uncertain because they are uncertain as to the amount, as distinguished from those which are too uncertain to be recoverable because they are not the certain results of the wrong that has been committed. (Neylon v. State, supra; Harmon v. State (1978), 32 Ill. Ct. Cl. 543; Brewer v. State (1975), 31 Ill. Ct. Cl. 104.) We know what Claimant was charged for the rental of the helicopter and ordinarily the burden of proving a setoff is on the defense. A setoff was proven but not as to a certain amount. As the triers of fact, we find that Claimant has been damaged in the amount of $5,000 plus 10% for overhead and 10% for profit for a total of $6,000.

Claimant’s final item of damages sought, that of interest, is denied.

In summation, we find that the Claimant has suffered damages in the following amounts:

Electrical contract delays ........... $162,000.00

Heating contract delays............. 13,200.00

Hy-plug terminators................ 19,781.73

Fire damages...................... 4,725.00

Television conduit.................. 1,020.00

Helicopter......................... 6,000.00

Subtotal........................... $205,726.73

Less recovery from architect........ —8,000.00

Total damages.....................$198,726.73

The question of entering an award remains. This Court cannot enter an award unless sufficient funds remained released and unexpended in the appropriation made to fund the project. (See discussion in Loewen berg/Fitch Partnership v. State (1986), 38 Ill. Ct. Cl. 227, 252-54, and Ude, Inc. v. State (1982), 35 Ill. Ct. Cl. 384.) Following the oral argument, Claimant presented the Court with fiscal year-end fund summaries for fiscal years 1974 through 1978. Construction on the project ceased and final acceptance occurred during August of 1976, but payments were made into fiscal year 1978. Fiscal year 1978 was the last year payments were made on the project. The fund summary for fiscal year 1978 indicates that $2,393.23 was left over and unobligated. An additional $100 was obligated for payment of this claim. Thus $2,493.23 remained available for the Court to award in damages. That money was in line item appropriation number 141-51101-4470-63-75. The fund summaries also indicate that there was shared funding for this project. The Respondent was responsible for 60% and the user school district was responsible for 40%. The school district’s money was held in a State trust fund, No. 991-51101-1900-00-99, which is a nonappropriated account and was entirely expended by the end of fiscal year 1977.

For purposes of possible further legislative action, this Court finds that the Claimant has satisfactorily performed all of its obligations under the contract and has suffered damages in the amount of $198,726.73. Of that amount, we are constrained by operation of law to deny awarding all but $2,493.23 of those damages.

It is hereby ordered that the Claimant be, and hereby is, awarded the sum of $2,493.23.

       The Claimant received a jury verdict against the architect for $8,000 and acknowledged in its brief that it would be a setoff. What remains of that verdict after the appellate court’s decision is unclear. Although the architect is named as an appellee in the reported decision, the decision itself only refers to the architect in passing. Throughout the decision the defendant was referred to in the singular and that defendant was S.M. Wilson & Company. When the parties were asked about what remained of the jury verdict at the oral argument, it appears that their responses were about S.M. Wilson & Company’s portion of the judgment and nothing was said about the architect. We are assuming that the verdict against the architect remains intact. However, if it too was reversed and either party raises the matter in a motion for reconsideration within 30 days of the date of this opinion, we will reconsider this deduction.


author: Burke, J.

text:
    (No. 77-CC-2404
    David W. Douglas, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 19, 1989.

    Goldenhersh & Goldenhersh, for Claimant.
    Neil F. Hartigan, Attorney General (James C. Majors, Assistant Attorney General, of counsel), for Respondent.
   Burke, J.

This cause coming to be heard upon the report of the Commissioner, after hearing before said Commissioner and this Court being fully advised in the premises,

Finds that Claimant was injured on July 26, 1976, while he was an inmate at the Menard Correctional Center and while he was working as a farm hand at that facility. Claimant brought this action to recover for personal injuries he alleges were caused by the negligence of the employees of the State of Illinois, pursuant to section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1985, ch. 37, par. 439.8(d)).

Claimant is presently 39 years of age. He resides in Granite City, Illinois, and has worked as a crane operator at Midwest Steel in Granite City since March 1980. He grew up on his parents’ farm in Madison County and began operating farm equipment and machinery regularly while still a child. In July 1970, Claimant pleaded guilty to a murder charge and was sentenced to Menard Correctional Center.

During 1976, Claimant was working on the farm at the prison. Early in July, he operated one of the farm tractors as part of his regular work. The tractor had as a part of its equipment a device known as a power-takeoff (PTO) unit. This device delivered power from the tractor’s engine to any piece of equipment attached to the rear of the tractor. The PTO contained a gear to engage and disengage the power drive. Turning off the tractor engine, of course, also shut off the PTO. During the time Claimant was operating the tractor, he experienced trouble with the PTO in that the gear lever failed to engage and disengage the power train.

Claimant reported this condition to two officers at the prison farm, who then confirmed the condition. The officers and Claimant reported this to Allen Gale, the assistant supervisor of the farm. The suggestion was made to Gale that the PTO needed repair. Several days later Claimant reminded Gale of the problem with the PTO and was directed by Gale to take the tractor to the farm garage for repairs. According to Claimant, the garage employees refused to make any repairs and advised Claimant to continue using the tractor in its then present condition.

Finally, Claimant stated that he was instructed by Gale to never shut off the tractor’s engine while he was performing his work on the farm unless Claimant actually was leaving the tractor unused for at least 30 minutes. Gale’s reason, according to Claimant, was that it was less expensive to allow the tractor to continue to idle than it was to stop and restart the engine after a short time.

On July 26,1976, Claimant was directed by Gale to attach a large baler to the tractor in question and to bale straw in one of the farm fields. The baler was attached to the tractor’s PTO. The baler contained large metal teeth which faced the front of the baler just behind the tractor. The teeth picked up the straw, and two rollers behind the teeth directed the straw into the baler, where the straw was packed into a large cylinder of straw and then was deposited behind the equipment.

Claimant began experiencing trouble with the baler rollers. Claimant stopped the tractor and disengaged the PTO gear. He left the tractor engine idling. After examining the baler, Claimant determined that several belts in the machinery were twisted. He fixed the belts and went to the front of the baler to examine the teeth and pick-up area. Without warning the PTO engaged and began operating the rollers and other machinery in the baler. Claimant’s initial reaction was surprise. He stood up behind the tractor and reached for the lever that operated the gear to disengage the PTO. While reaching, Claimant slipped, and his left hand landed on one of the rotating pick-up reels on the front of the baler drawing his hand into the machine and between the two rollers. The result was that Claimant’s left hand was badly burned and scraped on the back of the hand. The skin was burned off.

Claimant was treated initially at Chester Memorial Hospital. He underwent surgery to graft skin onto his hand. All of the expenses for this medical treatment were paid by the State.

Claimant was released from prison in the spring of 1979. He first worked for his father in the sheet metal business and later became employed at Midwest Steel. He continued to experience problems with his hand injury and sought new medical care. He was referred to Dr. Joseph Eades, a specialist in plastic surgery at Jewish Hospital in St. Louis, Missouri.

Dr. Eades first examined Claimant in July 1980. He found that Claimant’s injury did not heal properly. In October 1980, Dr. Eades attached skin from Claimant’s abdomen to the wound area. This procedure required Claimant’s hand to be attached to his abdomen for about 45 days to allow live skin to grow on the hand. Thereafter, several additional surgeries were required to complete the process. Claimant was released from Dr. Eades’ care in April 1982.

Claimant testified that he suffered substantial pain after the accident and continued to suffer until Dr. Eades released him. He described the pain during the time his hand was attached to his abdomen as quite severe. He testified that he has limited strength, cannot make a complete fist and has less than full feeling in his left hand. He also experiences increased discomfort when exposed to cold. Claimant is right-handed and admits that he is able to perform most of his work tasks without difficulty or limitation.

Claimant lost wages of $8,750 during his treatment under Dr. Eades. Claimant’s total medical expenses were $21,000, of which all but $750 was paid by the State or by insurance coverage. Claimant filed a medical malpractice claim against the physician in Chester Memorial Hospital who initially treated him. This claim was settled for $6,000. Claimant’s life expectancy is stipulated to be 78 years. He was 26 years old on the date of the accident.

Allen Gale testified that on the date of Claimant’s injury, he was the farm supervisor at Menard Correctional Center. Claimant had been selected to work on the farm at Menard because of his farm experience and worked there for about a year prior to the accident. Gale worked with Claimant during that time. Claimant operated all the farm equipment and did minor repairs on the equipment, including the baler on which Claimant was injured. The baler had several warning signs attached which advised of the dangerous nature of the equipment and which further directed that the tractor engine be shut off before the operator performed any work on the equipment. Gale stated further that he warned Claimant never to attempt to unclog the baler from the front, where the straw or hay was drawn into the baler, but only from the rear, and only after both the PTO and tractor engine were shut off. Gale neither admitted nor denied specifically that he directed Claimant or anyone else to leave the tractor engine running unless it was not to be used for 30 minutes or more.

The State owes a duty to an inmate of its penal institutions to provide that inmate with safe conditions under which to perform the work assigned to him (Reddock v. State (1978), 32 Ill. Ct. Cl. 611); a further duty to supervise the work of an inmate and to provide safe and adequate work equipment (Hughes v. State (1984), 37 Ill. Ct. Cl. 251.) The State breached its duties to Claimant by requiring Claimant to work with a tractor whose PTO unit was known to be defective and dangerous. This breach of duty by the State constitutes negligence which was a proximate cause of Claimant’s hand injuries.

The State asserts that Claimant was contributorily negligent by not turning off the tractor engine before attempting to repair the baler belts and by positioning himself in front of the baler while the engine was running. This Court has recognized that an inmate does not have the liberty of choice available to a person in private industry and must work under the conditions assigned to him. He is required to take orders without objections and does not possess the freedom of choice inherent in the doctrines of assumption of risk and contributory negligence. (Moore v. State (1952), 21 Ill. Ct. Cl. 282; Reddock v. State (1978), 32 Ill. Ct. Cl. 611.) However, with the advent of comparative negligence, the Court has looked at the conditions under which an inmate acts in the face of known danger to determine if any contributory negligence should be assessed.

In Reddock, Claimant was specifically ordered to use a grinding machine which was defective and dangerous and whose condition was known to supervisory officers. Claimant was injured while operating the machine in a normal manner.

In Hughes, supra, and in Burns v. State (1982), 35 Ill. Ct. Cl. 782, the Claimants were directed to work in conditions which were hazardous and without adequate protection or supervision, but in each case the Claimant performed an extra activity which was the ultimate cause that led to the injury from the dangerous condition. Whereas in Reddock, Claimant simply did his work on the dangerous machine as ordered and committed no additional negligent act, in Hughes, Claimant actually placed his hand in an area he could have avoided and thereby was injured in the dangerous activity. In Burns, Claimant carelessly reached into a dangerous area without looking and was injured because of the unsafe condition and lack of adequate safety equipment. Claimant in the instant case performed the voluntary acts of not turning off the tractor engine and of positioning himself where he knew he would be in danger from the PTO unit in the event the baler began operating, aggravated the dangerous condition created by the State’s negligence, and must therefore be found guilty of contributory negligence to be compared to that of the State. It is found that Claimant was 40% negligent.

The value of Claimant’s injury is $90,000. This total must be reduced by Claimant’s 40% comparative negligence to $54,000. Since the State is entitled by statute to have this award further reduced by other recoveries to Claimant under section 26 of the Court of Claims Act (Ill. Rev. Stat. 1987, ch. 37, par. 439.24—6), the $54,000 shall be reduced as follows:

(A) $6,000 which Claimant received in settlement of his medical malpractice claim; and

(B) $20,250, the amount of Claimant’s medical expenses which were paid by the State or by other sources.

It is hereby ordered that an award of $28,750 is hereby entered in favor of Claimant, said award being in full and complete satisfaction of Claimant’s complaint.


author: Montana, C.J.

text:
    (No. 78-CC-1453
    John St. Cyr et al., Claimants, v. The State of Illinois, Respondent.

      Opinion filed February 7, 1989.

    Allen Katz (Anthony E. Blumberg, of counsel), for Claimants.
    Neil F. Hartigan, Attorney General (Robert Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

The facts of this case appear as follows: on September 23,1976, an automobile operated by John St. Cyr on Interstate-57 (1-57) struck a hole described by the State’s sole witness as being two feet wide by three feet long and six to eight inches in depth. Some testimony by Claimants indicated the length and width were larger. This hole was in Coles County, Illinois, near mile marker 181 on 1-57 in the northbound lanes. The occupants of this automobile were Claimants Joseph Doyle, owner of the automobile, Diane Dorsey and Ivy Blaster. The record shows that as a result of striking this hole, the vehicle went off the highway, overturned and struck an embankment. It is uncontroverted that Claimants sustained personal injuries as a result of striking this hole, although the extent of the personal injuries is in question. There is no credible evidence that the Claimants were negligent. It appears that Claimants were exercising due and reasonable care. The sole issue of law is whether the Respondent had actual or constructive knowledge of this hole or the condition of 1-57 in Coles County.

We find that the Respondent did have constructive knowledge of the condition of 1-57 in Coles County for the following reasons:

The Respondent’s knowledge of the condition of this highway was contained in an Illinois Department of Transportation report dated November 1, 1978, and entered into evidence in December of 1985. This contains the report of the foreman for road maintenance in Coles County on the condition of 1-57 and some particulars of the accident scene as the foreman saw it. The foreman was the Respondent’s only witness. He testified that the hole was a “blow-up,” i.e., a hole created by the seepage of water into the concrete, an expansion of the water from heat during the summer and early fall, and a consequent explosion or “blow-up.” 1-57 in this county is 25 miles long, runs north and south and has four lanes. The foreman testified that on the morning of the accident he had done a maintenance check 1-57 which included mile-marker 181, but he found no blow-up. An hour later, at mile-post 192 southbound, he was informed of an accident at 181. He returned there and found Claimant’s car tipped over and the Claimants removing themselves from the car. Claimants’ testimony was that they had difficulty doing so due to damage to the automobile and personal injuries. The foreman in his testimony and in the report said that 1-57 and other Coles County highways are subject to blowups in summer and early autumn, and that 1-57 was a priority maintenance job. On 1-57 in the summer and early fall there had been 70 blow-ups, some blow-ups being 30 feet long and 12 feet wide, and there had been 20 blow-ups on other county highways. The foreman had 17 years’ experience in road maintenance with the Respondent and an additional 13 years in road maintenance work. Blow-ups were so common that when a State investigator questioned him about the accident, the investigator confused it with another blowup accident which also caused another vehicle to tip over. The foreman termed the automobile in the other accident a “wreck” and that it occurred at mile-marker 191 in the southbound lanes.

The Respondent contends that it had no actual notice or constructive notice of the blow-up; however, it clearly had notice of the numerous blow-ups that occurred previously. The Respondent cites Anderson v. State (1955), 22 Ill. Ct. Cl. 413. That case refers to an accident on a bridge caused by a much smaller hole, which was two inches deep, one foot to two feet long, and one foot wide. The State had no knowledge of that hole and the Court dismissed the claim. On the granting of a new trial and new evidence adduced by Claimant which showed the hole had been in existence for one month, this Court, on rehearing, granted relief. The Anderson case appears controlling; the Respondent’s citation of Norman v. State (1983), 35 Ill. Ct. Cl. 693, is not helpful since the case was not fully litigated.

In the cause herein, 70 blow-ups occurred on 1-57 but Respondent put up no warning signs or reduction of speed signs. We hold that, under the doctrine of Anderson, supra, Respondent had knowledge such that it is liable to the Claimants. The Respondent’s witness and report is consonant with this holding. The Respondent argues that it is not an insurer of the highways as to accidents, but this does not apply where, as herein, it had knowledge of the general condition of the highway with approximately two months’ or more notice. Notice in the Anderson case was one month.

An award is therefore made to Claimants as follows: $2,000 to John St. Cyr for pain and suffering, $2,000 to Ivy Blaster for pain and suffering, $1,000 to Joseph Doyle for damage to his automobile, $5,000 to Mr. Doyle for pain and suffering, and $5,000 to Diane Dorsey for pain and suffering.


author: Raucci, J.

text:
    (No. 81-CC-2487
    Convalescent Home of the First Church of Deliverance, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 20, 1988.

    Bernard Allen Fried, for Claimant.
    Neil F. Hartigan, Attorney General (Kathy O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

The Claimant, an Illinois not-for-profit corporation, filed this action seeking judgment in its favor in the amount of $170,121.

The Claimant alleged that it was a licensed nursing home, that it provided medical and other care to needy and indigent persons, specifically, residents admitted to the Claimant’s home under provisions of the appropriate regulations of the Illinois Department of Public Aid, and that said residents were provided with room, board and nursing care.

The following events have occurred in this case:

1. This matter was first set for pretrial on October 21, 1981, and subsequent to that pretrial, conferences were held and continued from time to time.

2. A total of 15 pretrial conferences were held during which time Claimant admitted that it had been paid for many of the items listed in its Complaint and that its claim should only be considered for several residents.

3. This matter was set for hearing for May 10,1985, the parties did appear and the hearing took place. Claimant offered the testimony of Arthur Sloan, a secretary for the Claimant.

4. After the testimony of Mr. Sloan, Claimant rested.

5. At the conclusion of Claimant’s case, the Respondent moved for a directed verdict. Respondent stated it wished to stand on its motion and not produce any witnesses. The parties were allowed time to file briefs. No briefs were filed.

6. The following was recommended:

Section 2 — 1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1110), applies to proceedings before a Commissioner of the Court of Claims on any proceedings before the Court of Claims. The Claimant had the responsibility of proving the allegations contained in this Complaint with regard to authorization to provide the services indicated, appropriate billing for services indicated, and failure of the Respondent to compensate for said services billed.

The Claimant offered the testimony of Arthur Sloan. No other evidence was submitted. Mr. Sloan’s testimony failed to indicate the identity of parties, patients or residents for which services were provided. His testimony never indicated why the Department of Public Aid was responsible for providing compensation for said service and no specific dates of service were indicated.

The witness refreshed his memory from a list of patients in the home, a document to which the witness referred during his testimony. However, the document was not admitted into evidence, the witness never indicated the exact amount for which it claims the Department failed to provide compensation and further testified that he did not prepare said document.

The Claimant, though offered ample opportunity, failed to produce the preparer of said document for further testimony and never offered any further documentation or evidence other than the testimony of Arthur Sloan.

This Court finds that the Claimant failed to make a prima facie case and the Respondent’s motion for directed verdict was timely and appropriate. The Claimant has had ample time to file any memorandum other than its response to the motion and has had ample time to file for reopening of proofs or for a new hearing.

The Claimant having wholly failed, from 1981 through the present, to produce evidence to support its complaint, the claim must be denied.

It is ordered, adjudged and decreed that this claim is dismissed.


author: Dillard, J.

text:
    (No. 81-CC-2875
    Deloris Smith, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 5, 1989.

    Louis S. Goldstein & Associates, Ltd., for Claimant.
    Neil F. Hartigan, Attorney General (John Perconti, Assistant Attorney General, of counsel), for Respondent.
   Dillard, J.

This cause comes on to be heard following a hearing before the Commissioner, and the Commissioner having filed his report. Claimant, Deloris Smith, was a business invitee at the Illinois Secretary of State driver’s license facility at 570 West 209th Street, Chicago Heights, Illinois. Claimant testified that after an examination for the purpose of renewing her driver’s license, she walked to the waiting area of Respondent’s facility, where she slipped and fell. Claimant alleges she slipped and fell to the floor due to water accumulation on a tile floor. Claimant and another witness, who accompanied Claimant to the driver’s license facility, testified that it was raining “hard” at the time of the accident and rain water had been carried into the waiting area by people using the facility.

Due to her fall, Claimant injured her right ankle and hip. Claimant was examined by Louis Cogs, M.D., the day following her fall and received injections and ultrasound treatment to her right ankle. Dr. Cogs’ invoice for services rendered was $480 for 12 visits. Also, Claimant was examined at Cook County Hospital for marked soft tissue swelling of the right ankle. The invoice of Cook County Hospital was $105.

At the time of her injury, Claimant was the coordinator and director of a program for the Illinois Office of Education summer food program. Her salary was $200 per week and she was allegedly absent from work for approximately two months following the occurrence. Although Claimant does allege lost wages, her testimony at the hearing was indefinite and Claimant has offered no solid evidence of time lost from work.

From the record the Respondent possessed constructive, if not actual, notice of the standing water. From the testimony of the witnesses it was clear that the water on which Claimant slipped was at least one foot in diameter and had been sitting on the floor for at least one-half hour. There was no attempt by any of Respondent’s agents to warn the public about the wet tile floors or clean up the area of standing water. Therefore, the Court finds that the Respondent was negligent in allowing the condition which caused Claimant’s fall to exist.

It is thereby ordered that Claimant is awarded $2,085 in full and complete satisfaction of her claim.


author: Holderman, J. Raucci, J.

text:
    (No. 82-CC-0215
    Wil-Freds, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed July 1, 1982.

      Order filed September 15, 1982.

      Opinion filed February 23, 1989.

    O’Halloran, Lively & Walker and Johnson, Cusack, Bell, O’Halloran & Demaret, Ltd. (Paul T. Lively, of counsel), for Claimant.
    Tyrone C. Fahner and Neil F. Hartigan, Attorneys General (Glen P. Larner and Erin O’Connell, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Holderman, J.

This matter comes before the Court upon motion by Claimant for partial summary judgment in two amounts: the amount of $2,340.85 and a second amount of $1,787. Claimant bases its motion on the fact that Respondent’s answer in this cause, filed April 2, 1982, concedes that Claimant is entitled to the above two amounts.

Claimant’s motion for partial summary judgment was filed April 12,1982, and Respondent has not filed an answer to said motion except in its answers to interrogatories filed June 1,1982.

It is hereby ordered that Claimant’s motion for partial summary judgment be, and the same is, granted, and an award is hereby entered in favor of Claimant in the amount of $4,127.85.

ORDER

Holderman, J.

This matter comes before the Court on the joint stipulation of the parties, which states as follows:

1. That the instant claim is based upon a contract between Claimant and Respondent for the construction of McCormick Elementary School (CDB Project No. 761-031-020).

2. That the complaint alleges in five separate counts that certain acts and occasions of a failure to act were in breach of the contract and caused Claimant to suffer damages in the amount of $96,658.05.

3. That Count II and a portion of Count V of the complaint have been resolved in Claimant’s favor through a motion for summary judgment and the Court’s order of July 1, 1982, awarding Claimant $4,127.85.

4. That in the interest of reducing the time and expense of trial and in recognition of a limited amount of liability on Respondent’s part, Respondent and Claimant have agreed to partially settle the instant claim.

5. That the parties agree to an award of $12,656.50 in full and final satisfaction of Count I of the complaint.

6. That the parties agree to an award of $3,685.50 in full and final satisfaction of Count V of the complaint.

7. That the parties agree that Count III of the complaint be dismissed with prejudice and that Claimant be barred forever from seeking damages from Respondent for the occurrence alleged in this Count.

8. That the total amount agreed upon herein equals $16,342.

9. That this stipulation expressly reserves Count IV of the complaint to be determined by a hearing limited to the issues raised therein.

10. That this stipulation is being made with the intention of eliminating all matters from controversy except for Count IV of the complaint.

11. That it is agreed that an award of $16,342 will constitute full and final satisfaction of Count I, Count III and Count V of the complaint (Count II having been already resolved by the Court’s order of July 1,1982).

12. That the parties agree to waive hearing and the filing of briefs on all issues and allegations of the complaint other than those contained in Count IV.

Although the Court is not bound by this stipulation, it does not, as a rule, desire to interpose a controversy between parties where none seems to exist. The instant stipulation, which would eliminate from contention all matters and issues in the complaint other than those in Count IV, appears to have been entered into fairly and with full knowledge of the facts and applicable law. This being the case, we see no reason not to honor the request of the parties.

Claimant is hereby awarded the sum of $16,342 in full and final satisfaction of Counts I, III and V of the complaint. This order, and the Court’s order of July 1, 1982, eliminate from controversy the matters contained in Counts I, II, III and V, specifically reserving Count IV for a trial on the merits.

OPINION

Raucci, J.

This claim is made against the State of Illinois and in particular the Capital Development Board.

During the course of pretrial conferences all matters in the complaint were resolved, either by stipulation or dismissal with the exception of Claimant’s original Count IV of the complaint.

The parties did stipulate that the damages to be awarded, if the Claimant were to prove its cause of action on Count IV, would be $6,221.39.

The Claimant’s case, including all testimony and the documents admitted into evidence, centers around the fact that the Capital Development Board (CDB) solicited bids on the construction of the McCormick Elementary School in Chicago, Illinois. The Claimant also bid on the CDB’s solicitation as to alternate bid G-2 with regard to the cost of providing off-hour security service. This alternate bid was considered to be an “add to.” The Claimant’s bid for the base work was accepted, that being the third and final phase of the construction project. Their bid with regard to security service was not accepted.

The Claimant entered into a contract with the CDB pursuant to the “standard documents for construction” which set out duties and responsibilities of the parties to the contract. In accordance with those general conditions, particularly 01010 1.02(b), it designated the general contractor as a party required to purchase and maintain builder’s risk insurance. This requirement mandated that the Claimant purchase the insurance. This requirement mandated that the Claimant purchase the builder’s risk insurance with a deductible not to exceed $1,000. The Claimant did purchase said insurance to that deductible limit.

The Claimant’s evidence established that on various occasions they suffered vandalism or theft which was documented.

The Claimant testified that since it was not granted the “add to” contract, it relied to its detriment on the Respondent to provide security to prevent said losses.

In its brief, Claimant argues that conduct of the Respondent in using the alternative bid format caused Wil-Freds to assume that Respondent would provide anticipated security. The Claimant’s argument is that the legal principle germane to the resolution of this issue falls within the well recognized legal doctrine of promissory estoppel. Claimant alleges that it has proved a cause of action under promissory estoppel and that an award should be entered in the stipulated amount.

The Respondent, in its brief, asserts the defense that the Court of Claims has no jurisdiction over any claim predicated upon equitable doctrines, including promissory estoppel.

Promissory estoppel is an equitable doctrine offering relief where no legal remedy may be available. This Court has held that it has no jurisdiction over claims sounding in equity. See In re Application of Ward (1981), 35 Ill. Ct. Cl. 398.

The Claimant contends, because of the bidding procedure, it should have been able to rely on the Respondent to provide security at the job site. However, nothing about the procedure indicated that the standard documents for construction were not to apply. In fact, the Claimant did enter into a contractual arrangement in which it did have the obligation to provide its own builder’s risk insurance. The Claimant elected to purchase the insurance with the highest deductible amount. Claimant now comes and asks for further indemnification because it elected to take on the highest risk possible.

Even if this Court were to have jurisdiction over equitable causes of action such as promissory estoppel, the Claimant did not meet its burden to show that the Respondent knowingly issued statements in the bidding process, or created a circumstance on which the Claimant could rely. Further, the Claimant failed to prove that any of its reliances directly caused any of the detriment suffered. If the Respondent were to cause the Claimant to rely on the alternative bid process, that alone did not create the damages suffered by the Claimant. The Claimant did enter into the contract knowingly and did purchase the risk insurance intentionally allowing the deductible to be the highest permitted.

Therefore, it is ordered, adjudged and decreed that this Claim is dismissed and forever barred.


author: Montana, J.

text:
    (No. 82-CC-1619
    Emmit Wilson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 30, 1989.

    Mark D. Hassakis, for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Montana, J.

This is an action for wrongful death against the State of Illinois pursuant to section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1981, ch. 37, par. 439.8(d)). The complaint alleges that Steven L. Hayes was killed in a one-car accident because the State failed to properly maintain the right-of-way along the shoulder of Illinois Route 37 and because the State failed to properly maintain the roadway surface of Route 37 itself. Claimant is the administrator of the estate of the decedent.

On October 22, 1979, decedent was riding as a passenger in an automobile being driven by Nedra Hayes, decedent’s mother. Decedent was seated in the right rear seat of the automobile. The only other occupant of the vehicle was Debra Little, who was a passenger in the right front seat. The car was proceeding south on Route 37 in the rural part of Fayette County. The automobile suddenly left the pavement and struck a tree on the east side of the roadway about 15 feet from the east edge of the paved portion of the roadway. Nedra Hayes, the driver, and Steven Hayes, the rear seat passenger, were killed in the collision; Debra Little, the front seat passenger, survived.

Claimant has brought this claim to recover for the benefit of Amanda Hayes, the infant daughter of decedent, pursuant to section 2 of the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, par. 2). Decedent left no surviving spouse and the infant child Amanda was his only next-of-kin.

On the date of the accident Nedra Hayes was driving decedent and Debra Little from Effingham to Mt. Vernon. They had left Effingham some time shortly after noon. The weather was rainy and the pavement wet. Debra Little, the only eyewitness, testified that in her opinion the automobile was being driven safely by Nedra Hayes. She had no opinion as to the speed of travel along the roadway. She gave a written statement before trial that she noticed there had been water on the roadway in several places before the accident. She testified at trial that suddenly it felt like the car hit water and started to slide. There was no time to brake or change direction before the car hit the tree. The witness’ testimony was that the collision occurred “in a split second” from the time the automobile began to slide.

The physical evidence at trial was that the accident occurred on a long uphill grade on Route 37. The hill begins at a creek bed at the base of the hill, and the road ascends in a southward direction. The roadway at that point is two-lane concrete with concrete gutters on the edge of the main traveled portion. There is no separate shoulder. About 120 feet north of the tree, on the west side of the roadway, a private driveway enters the roadway from a fairly steep decline down onto the roadway. At least a portion of this driveway is dirt and gravel.

Clarence DePoister, an employee of the Illinois department of highways, was operating a State truck along Route 37 and came upon the accident about 15 to 30 minutes after it had occurred and after the State police had arrived. He testified that he did not see any water over the highway at that time, nor did he see any debris in the gutter on the side of the roadway. The investigating State trooper described the scene in a similar fashion.

DePoister also testified that before he reached the accident scene, the rain had been so heavy that he had been forced to stop his truck and wait until it let up.

Finally, DePoister testified that he had driven that section of Route 37 on many occasions and was very familiar with the roadways. He had in the past seen water flow in such large volume in the gutters down the hill that the water overflowed the roadway because the gutters could not handle the volume. There were no signs on the highway to warn motorists of this intermittent condition. This situation was verified by a witness who had resided in the area for a long time.

Claimant introduced into evidence photographs taken about four years before the accident by the highway department which showed the scene and also showed the driveway coming in from the west side down the side slope. Photographs taken several years after the accident showed the same driveway. In each set of photographs there is shown gravel and dirt completely across the gutter on the west side of the roadway, which is adjacent to the southbound lane. Several witnesses from the highway department testified that the condition in the photographs depicts excess debris in the gutter and is a condition which should be manually cleaned by State highway maintenance crews whenever found.

Claimant also introduced evidence as to the standards for clearance of trees from the right-of-way along the side of the roadway. Although there was some disagreement as to the correct standard to be applied, the evidence was clear that the standard recommended on Route 37 in Fayette County, taking into consideration the average daily traffic count at the accident scene, was a clearance of 10 feet off the edge of the roadway.

Claimant also introduced evidence that, within two months after the accident, the tree in question was cut down by the highway department. No explanation as to the reason for its removal was given by either party.

Claimant’s arguments as to the State’s liability are founded upon the premises that the State was negligent in not keeping the gutters clean along the sides of Route 37 so that debris collected in the gutters and caused the rainwater to overflow the traveled portion of the highway, and the State was negligent in not removing the tree from the area within 15 feet of the edge of the roadway because it constituted a hazard for vehicles which may leave the roadway.

In regard to the first premise, there is no evidence that any debris caused water to overflow the main traveled portion of Route 37 so as to cause the car in which the deceased was riding to leave the highway. The only occurrence witness, Debra Little, could not testify as to why the driver lost control. Evidence of debris clogging the gutter on the date of the accident is absent — the investigating police officer and DePoister both testified they saw no such debris. Claimant’s attempt to use the driveway on the west side of Route 37 as the source of debris fails because pictures of that area showing debris are too far removed in time to be conclusive and because the accident occurred after the vehicle had passed the opening to the driveway. Claimant’s further argument that there is sufficient evidence to support a res ipsa loquitur theory of liability lacks the essential element of control of the vehicle by the State. Mavraganis v. State (1984), 36 Ill. Ct. Cl. 153.

Claimant’s second premise fails because the evidence shows that the standards introduced into evidence recommend a 10-foot clearance zone in the area of Route 37 where the accident occurred. Since the tree was 15 feet from the edge of the roadway, the standard does not apply to that tree. The State was within compliance of recommended standards. There is no duty upon the State to clear every possible source of injury from areas in the more remote proximity of the roadway. A legal duty requires more than the possibility of occurrence, and the State, like any other person, is charged with such a duty only when harm is legally foreseeable. (Cunis v. Brennan (1974), 56 Ill.2d 372, 308 N.E.2d 617; Beal v. Kuptchian (1987), 164 Ill. App. 3d 191, 517 N.E.2d 712; Champs v. Chicago Housing Authority (1986), 141 Ill. App. 3d 881, 491 N.E.2d 20.) The issues of “foreseeability” and “duty” involve a myriad of factors, including the magnitude of the risk involved, the burden of requiring the State to guard against the risk, and the consequences of placing such a burden on the State. (Nelson v. Commonwealth Edison (1984), 124 Ill. App. 3d 655, 465 N.E.2d 513.) It is the finding of this Court that a consideration of all these factors leads to the conclusion that the State had no legal duty to remove the tree in question before the accident. (Coleman v. Windy City Balloon Port (1987), 160 Ill. App. 3d 408, 513 N.E.2d 506; Newby v. Lake Zurich Community Unit District 95 (1985), 136 Ill. App. 3d 92, 482 N.E.2d 1061.) The fact that removal occurred after the accident, for unknown reasons, is not evidence of negligence. Davis v. International Harvester (1988), 167 Ill. App. 3d 814, 521 N.E.2d 1982.

For the foregoing reasons, it is hereby ordered that this claim be, and hereby is, denied.


text:
    (No. 82-CC-2483
    Community College District 526, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 9, 1989.

    Ensel, Jones, Blanchard & LaBarre (Alfred LaBarre, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Michael Taylor, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

On February 10, 1972, the Illinois Building Authority, hereinafter referred to as IBA, contracted with Carney General Contractors, Inc., hereinafter referred to as Carney, to construct the Lincoln Land Community College campus, hereinafter referred to as Lincoln Land. This contract was assigned by IBA to the Capital Development Board, hereinafter referred to as CDB, on September 22,1972, and work began on the project.

The general contractor, Carney, breached its contract through unsatisfactory and incomplete performance and its contract was terminated in August of 1976 by the CDB. A number of lawsuits ensued, both in circuit court and the Court of Claims. One of these suits was by Carney against CDB in the Court of Claims, No. 76-CC-1622. Another suit was by the CDB against Carney in circuit court. A third was by Carney against Lincoln Land and others in circuit court. The circuit court cases involved various counterclaims and were consolidated.

Prior to trial on the merits in any of these suits, Carney and CDB reached a separate settlement agreement. As a part of that agreement, CDB retained all $99,190 of the monies it had retained from Carney’s periodic payments pursuant to the retainage provision in their contract. This provision provided for a 10% retainage “to insure proper performance of this contract * * * ” These funds, being a part of appropriation No. 141-511844470-4973, lapsed.

Shortly after the settlement between CDB and Carney, all the remaining cases were settled and all litigation among Carney, Lincoln Land and the architects was concluded. No monies were received by the college in any of these settlements to conclude the project or correct problems caused by Carney.

In 1980, Fitch/LaRocca Associates, Inc., the architects on the project, filed two suits against the CDB in the Court of Claims seeking recovery of unpaid architects’ fees. The architects and the CDB entered into a joint stipulation and on March 25,1982, we ordered the payment of the architects’ fees from the lapsed retainage funds, thereby reducing them to $85,355.59. Subsequently, the General Assembly appropriated that amount and it was paid.

In May of 1982, Lincoln Land filed the instant claim alleging that it had spent monies toward repair and completion of the work unsatisfactorily done (or not done) by Carney and that there remained further work to be done to complete the project.

A motion for summary judgment by the CDB was denied by the Court by order entered December 30, 1985, but in the order we found that Claimant is a third-party beneficiary of the construction contract. An evidentiary hearing was held on July 3, 1986, before Commissioner Bruno Bernabei. At the hearing, the only witness to testify was John Costello, director of buildings and grounds at Lincoln Land Community College, who testified on behalf of Claimant.

Mr. Costello’s testimony, which was unrefuted, was to the effect that as of July 1986, Lincoln Land had spent $94,168.43 on corrective work made necessary by Carney’s breach. Costello also testified that there remained $62,836 worth of work left to be done based upon the last CDB punch list as adjusted by him to reflect corrective work completed after publication of the punch list.

Claimant seeks the remaining $85,355.59 of the appropriation as reimbursement for corrective work it had to pay for and as funds to use in completing the corrective work remaining.

Respondent does not dispute the foregoing statement of facts. What is in dispute is CDB’s legal duty to use the lapsed appropriation funds to reimburse the Claimant for corrective work paid for by Claimant.

In the instant case, the CDB has refused to pay for corrective work necessitated by the defective work of the general contractor. The CDB agreed to the payment of unpaid architects’ fees out of lapsed funds, but resisted and continues to resist reimbursing Lincoln Land for the cost of said corrective work.

The position of Lincoln Land is that it seeks lapsed funds to the extent of their appropriation and that they are owed this money for either of two reasons:

1. Section 5 — 12 of the Public Community College Act (Ill. Rev. Stat., ch. 122, par. 105 — 12) charges CDB with paying for corrective work out of appropriated funds.

2. That Lincoln Land is a third-party beneficiary to the contract between CDB and the contractor wherein it was provided that the retainage held by CDB was “to insure the proper performance of this contract.”

Since CDB kept the retainage, it is contractually bound to use it for the proper performance of the work, i.e. its completion and correction.

CDB’s brief ignores the second of the above reasons and in response to the first it maintains that there is a distinction between “corrective work” and “construction.” Respondent’s position apparently is that the lapsed appropriation was specifically limited to original construction costs and thus cannot be utilized for corrective work.

This Court is not persuaded that said position is correct to defeat the claim. The evidence shows that CDB, itself, spent a great deal of the appropriated funds for corrective work. The CDB punch list was submitted as evidence and testimony showed that they already corrected many of the problems caused by the contractor. No evidence exists of any separate appropriation to cover this corrective work.

It is therefore clear that corrective work such as involved in the instant case is covered by this appropriation. None of the cases cited by the CDB in its brief support the contention that corrective work cannot be performed even if the appropriation bill is limited solely to construction.

The Claimant is limited to a recovery of the lapsed appropriation funds in the amount of $85,355.59.

It is therefore ordered, adjudged and decreed that the Claimant be awarded the sum of $85,355.59 in full settlement of this claim.


author: Patchett, J.

text:
    (No. 83-CC-0198
    James Stills and Francine Stills, Claimants, v. The State of Illinois, Respondent.

      Opinion filed February 7, 1989.

    Sidney Robin, Ltd., for Claimants.
    Neil F. Hartigan, Attorney General (Daniel H. Brennan, Jr., Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This claim arose out of an accident which occurred on Foster Avenue in Chicago, Illinois, on April 11,1982. James Stills, one of the Claimants, was driving east on Foster Avenue at 11:30 a.m. Shortly after crossing a viaduct, Mr. Stills hit a series of deep holes and depressions in the eastbound lanes of traffic. As a result of striking the potholes, his vehicle went out of control and struck a tree on the south side of Foster Avenue. Mr. Stills sustained severe and permanent injuries.

The other Claimant, Francine Stills, is the spouse of the Claimant, James Stills. The basis of her claim is a loss of consortium as a result of the injuries suffered by James Stills in the accident.

At the oral argument of this cause before the entire Court on December 6,1988, Respondent did not dispute that the potholes in question were the actual and proximate cause of the accident. It also was not disputed by the Respondent that the area of Foster Avenue at the location of the accident was a State highway. Therefore, the control of the highway and the actual cause of the accident have been established.

The State owes a duty to all the users of this highway to maintain it in a reasonably safe condition. (Berry v. State (1968), 26 Ill. Ct. Cl. 377.) A claimant must show that the State had actual or constructive notice of the defect in order to recover on a negligent highway maintenance claim. Pigott v. State (1968), 26 Ill. Ct. Cl. 262.

The Respondent strongly contested the existence of either actual or constructive notice in the case at hand. This Court has consistently held that each case involving constructive notice must be decided on its own particular facts. See Bugle v. State (1967), 26 Ill. Ct. Cl. 173.

In the instant case, there is no dispute at all that the pothole had been in existence for a significant period of time prior to the accident. Two lay witnesses, Gary Abraham and John Rome, testified that the potholes had been in existence for a period of weeks prior to the accident. Chicago Police Officer Huse testified that the potholes had been in existence for between 4 and 12 weeks prior to the accident. We feel that this would have been sufficient time, considering the highly traveled nature of the road in question, for the State to be charged with constructive notice of this defect.

The issue of constructive notice is not necessary to the disposition of this case since we feel that there was actual notice to the State of Illinois. Frank Klupshsas, of the Illinois Department of Transportation, testified that a complaint was received by the State on March 18, 1982, regarding potholes along Foster Avenue between California, which is 2800 West Foster, to Harlem Avenue, which is 7200 West Foster. This area encompasses the area in which the Stills accident happened. Even though this report was received on March 18,1982, repairs were not effected until April 22, 1982, several days after the Stills accident. Respondent strongly argued that it should not be held liable for this accident as a result of the failure to respond to the March 18,1982, complaint. The basis of the Respondent’s argument is that the area on Foster Street between California and Harlem is about 5% miles long. This argument, however, lacks sufficient merit to defeat liability in this case. We feel that the State should have responded to the March 18, 1982, complaint. Moreover, the State could have made an inspection of Foster Avenue fairly easily. In addition, there appears to be a complaint of March 22, 1982, which referred to potholes on Foster Avenue from Pulaski to the river. Again, this area would be within one-half block of the site of the accident. If the State had responded to the March 22, 1982, complaint or done a cursory examination of the area, the potholes which caused this accident could have been easily found.

The Respondent also strongly argued that the severe nature of the winter in 1982 should relieve it from liability for failure to make the necessary repairs. However, absent anything in the record to indicate that the Respondent made any request for additional hélp or made any attempt to deal with the heavier than normal workload, this argument is not sufficient.

For the foregoing reasons, we find that the State had actual notice of the defect in question. Therefore, all the prerequisites for a finding of liability in favor of the Claimant are present.

Since we find the Respondent liable in this matter, we next address the issue of damages. At the oral argument of this matter, the Respondent did not dispute the fact that if liability was assessed against the Respondent, then the damages of Mr. Stills would be at least equal to the statutory limit of one hundred thousand dollars ($100,000.00). Because there is ample evidence in the record to support an award of that magnitude, we hereby award the Claimant James Stills the sum of one hundred thousand dollars ($100,000.00).

A somewhat more difficult issue is the assessment of damages for the Claimant Francine Stills. The basis of Francine Stills’ claim is a loss of consortium as a result of the accident. There was testimony by Francine Stills during the hearing regarding the change in her marital relationship since the accident. This testimony, coupled with the overwhelming medical evidence of James Stills’ disabilities which occurred as a result of this accident, convince us that Francine Stills is also entitled to a substantial award. However, based on the evidence before us, we do not feel that this award should be the statutory maximum of one hundred thousand dollars ($100,000.00). Based on the evidence before us regarding damages, we hereby award Claimant Francine Stills the sum of eighty thousand dollars ($80,000.00).