author: Poch, J. Poch, J. Poch, J. Montana, C.J.

text:
    (No. 86-CV-1094

      In re Application of Nan Elliott

      Opinion filed August 7, 1986.

      Order filed October 11, 1989.

      Order filed May 18, 1990.

      Order filed May 15, 1991.

    Nan Elliott, pro se, for Claimant.
    Roland W. Burris, Attorney General (James Maher, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Poch, J.

This claim arises out of an incident that was discovered on November 13,1985. Nan Elliott, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1985, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on April 11, 1986, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That the victim, Nathan Elliott, age 12, was a victim of a violent crime, as defined in section 72(c) of the Act, to wit: indecent liberties with a Child (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 4).

2. That on November 13, 1985, it was discovered that the victim had been sexually assaulted on several occasions, allegedly by an offender who was known to him. The incidents occurred at 244 Sterling Court, Bloomingdale, Illinois. The victim was taken to Forest Hospital for treatment of his injuries. The alleged offender has been apprehended and charged with indecent liberties with a child and aggravated criminal sexual abuse. The criminal proceedings against him are pending.

3. That the Claimant seeks compensation for medical/hospital expenses only.

4. That section 72(h) of the Act states that loss of earnings shall be determined on the basis of the victim’s average net monthly earnings for the six months immediately preceding the date of the injury or on $750.00 per month, whichever is less.

5. That the victim was not employed for the six months immediately preceding the date of the incident out of which this claim arose and therefore suffered no loss of earnings compensable under the Act.

6. The Claimant incurred medical/hospital expenses in the amount of $10,046.77, none of which was paid by insurance and $842.48 of which was written off as adjustments by two of the medical providers, leaving a balance of $9,204.29. The Claimant has paid $7,749.29 towards this balance.

7. That the Claimant has complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

8. That pursuant to section 80.1(e) of the Act, this Court must deduct the amount of benefits, payments or awards payable under the Workers Compensation Act, Dram Shop Act, Federal Medicare, State Public Aid, Federal Social Security Administration burial benefits, Veterans Administration burial benefits, health insurance, or from any other source, except annuities, pension plans, Federal Social Security payments payable to dependents of the victim and the net proceeds of the first $25,000.00 (Twenty-Five Thousand Dollars) of life insurance that would inure to the benefit of the applicant.

9. That the Claimant has received no reimbursements that can be counted as applicable deductions.

10. That Claimant has indicated that the victim may incur additional medical/hospital expenses in the future as a result of the incident. Should the Claimant incur these expenses, she may petition the Court to reopen consideration of this claim for additional compensation, pursuant to section 86 of the Act.

11. The Claimant’s loss for which she seeks compensation is $9,204.29 based upon the following:

Compensable Amount

Paid Medical Expenses $7,749.29

Leo I. Jacobs, M.D.,

S.C. 780.00

The Brook Clinic 400.00

North Suburban

Neurocare, S.C. 165.00

D.N.A. 110.00

Total $9,204.29

It is hereby ordered that the sum of $7,749.29 (Seven Thousand Seven Hundred Forty-Nine Dollars and Twenty-Nine cents) be and is hereby awarded to Nan Elliott, mother of the minor victim, Nathan Elliott an innocent victim of a violent crime.

It is further ordered that the sum of $780.00 (Seven Hundred Eighty Dollars) be and is hereby awarded to Nan Elliott and Leo I. Jacobs, M.D., S.C.

It is further ordered that the sum of $400.00 (Four Hundred dollars) be and is hereby awarded to Nan Elliott and the Brook Clinic.

It is further ordered that the sum of $165.00 (One Hundred Sixty-Five Dollars) be and is hereby awarded to Nan Elliott and North Suburban Neurocare, S.C.

It is further ordered that the sum of $110.00 (One Hundred Ten Dollars) be and is hereby awarded to Nan Elliott and D.N.A.

ORDER

Poch, J.

Claimant, Nan Elliott, mother of Nathan, her minor son, filed a claim for compensation under the Illinois Crime Victims Compensation Act (Ill. Rev. Stat. ch. 70, par. 71, et seq.). (Hereinafter referred to as the Act.)

The claim is based upon the following facts:

On November 13, 1985, Nathan, age 14, was sexually assaulted in the neighborhood where he resides with his mother. The medical expenses of the hospital and doctor’s fees incurred and paid for the treatment of the victim was $9,204.29, which has been previously awarded.

The Claimant is seeking additional compensation for boarding expense at a boarding school as recommended by a psychiatrist (TR p. 11), which school is not in the community where he presently resides, being located in Utah. The present claim is seeking an additional award of $5,795.71, for such boarding school expenses, and represents the difference between the maximum award provided for under sec. 10.1(f) of the Act, of $15,000.00, and the amount previously awarded of $9,204.29.

The Act, under sec. 72, paragraph (h) “Pecuniary Loss” provides as follows:

“ ‘pecuniary loss’ means in the care of injury, appropriate medical expenses and hospital expenses, including . . . appropriate psychiatric care expenses, expenses for care by a registered clinical psychologist or certified social worker and expenses for treatment by Christian Science practitioner and nursing care appropriate thereto # °

The Act, it appears, makes no provision for boarding school expense and, while psychiatric care expenses are compensable under the Act, as provided in the section quoted supra, it is obvious that a boarding school does not come within the confines of “psychiatric care” as contemplated by the legislature.

Since this claim does not meet the required provisions for compensation and is not compensable under the Act,

It is hereby ordered that Claimant’s request for additional compensation be and is denied and the opinion of August 7, 1986, awarding the Claimant the sum of $9,204.29 remains in full force and effect.

ORDER

Poch, J.

The parties have entered into a stipulation whereby the Attorney General’s Office recommends that the sum of $3,680.00 be paid to Nan Elliot on behalf of her minor son Nathan, the innocent victim of a violent crime.

Wherefore, it is hereby ordered that the sum of $3,680.00 be made copayable to Nan Elliott and the Rrook Clinic, P.C., 210 West 22nd Street, Suite 118, Oakbrook, Illinois, 60521, and that this case be continued generally.

ORDER

Montana, C.J.

This cause comes on to be heard following the filing by the applicant of her annual status report, due notice having been given, and the Court being advised;

It is hereby ordered that this case is removed from general continuance, restored to active status, and then closed in accordance with our previous decisions entered herein; it is further ordered that if the applicant should incur additional expenses in connection with her injuries which gave rise to this claim she may petition the Court to reopen her claim.


source: Caselaw Access Project

author: Poch, J. Montana, C.J. Montana, C.J.

license: Public Domain

text:
    (No. 87-CV-0547
    Charles W. Atwell, Claimant, v. The State of Illinois, Respondent.

      Order filed September 30, 1987.

      Order filed November 19, 1990.

      Order filed March 22, 1991.

    Charles W. Atwell, pro se, for Claimant.
    Roland W. Burris, Attorney General (James A. Tyson, Jr., Assistant Attorney General, of counsel), for Respondent.
   ORDER

Poch, J.

This claim arises out of an incident that occurred on May 23, 1986. Charles W. Atwell, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act (Ill. Rev. Stat. 1985, ch. 70, par. 71, et seq.).

This Court has carefully considered the application for benefits submitted on November 6, 1986, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That the Claimant, Charles W. Atwell, age 65, was a victim of a violent crime as defined in section 72(c) of the Act, to wit: Aggravated Battery (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4).

2. That on May 23, 1986, the Claimant was beaten by an offender who was not known to him. The incident occurred in a restaurant located at 1600 East Eldorado, Decatur, Illinois. Police investigation revealed that while in the restaurant, the offender became involved in a fight with one of his companions. After being advised to leave by the manager, the offender started an argument with the Claimant. During this argument, the offender hit the Claimant with his fists several times. The Claimant was transported to Decatur Memorial Hospital for treatment of his injuries. The offender has been apprehended, prosecuted and convicted of aggravated battery.

3. That the Claimant seeks compensation for medical/hospital expenses only.

4. That section 72(h) of the Act states that loss of earnings shall be determined on the basis of the victim’s average net monthly earnings for the six months immediately preceding the date of the injury or on $750.00 per month, whichever is less.

5. That the Claimant was not employed for the six months immediately preceding the date of the incident out of which this claim arose and therefore suffered no loss of earnings compensable under section 72(h) of the Act.

6. That the Claimant has submitted medical/ hospital expenses in the amount of $11,906.25, $11,368.37 of which was paid by the Medicare and $537.88 of which was written off as a Medicare adjustment by the hospital, leaving no balance due from the Claimant.

7. That pursuant to section 80.1(e) of the Act, this Court must deduct from all claims the amount of benefits, payments or awards payable under the Workers Compensation Act, Dram Shop Act, Federal Medicare, State Public Aid, Federal Social Security Administration burial benefits, Veterans Administration burial benefits, health insurance, or from any other source, except annuities, pension plans, Federal Social Security payments payable to dependents of the victim and the net proceeds of the first $25,000.00 (Twenty-Five Thousand Dollars) of life insurance that would inure to the benefit of the applicant.

8. That the Claimant has received no reimbursements that can be counted as applicable deductions.

9. That section 80.1(a) of the Act states that an applicant may be compensated for his pecuniary loss.

10. That the Claimant has not sustained a pecuniary loss at this time as a result of this incident.

11. That the Claimant has indicated that he may incur additional medical/hospital expenses in the future as a result of the incident. Should the Claimant incur these expenses, he may petition the Court to reopen consideration of his claim, pursuant to section 86 of the Act.

12. That this claim does not meet a required condition precedent for compensation under the Act at this time.

It is hereby ordered that this claim be, and is hereby denied.

ORDER

Montana, C.J.

This claim is for compensation under the Crime Victims Compensation Act (Ill. Rev. Stat. 1985, ch. 70, par. 71 et seq.), hereinafter referred to as the Act. The claim arises out of an incident that occurred on May 23, 1986 in Decatur, Illinois. On that date Claimant suffered injuries when he was beaten by a person who was subsequently apprehended, prosecuted and convicted of aggravated battery.

Claimant filed this claim on November 6, 1986. On September 30,1987, this Court entered an order denying the claim because Claimant had no reimbursable medical expenses and had suffered no loss of earnings compensable under section 2(h) of the Act. Section 2(h) provides that loss of earnings shall be determined on the basis of the victim’s average net monthly earnings for the six months immediately preceding the date of injury or $750.00 per month, whichever is less. The Court found that Claimant had not been employed for the six months immediately preceding the date of the incident out of which the claim arose, so therefore had no compensable loss of earnings under the Act.

Claimant thereafter petitioned the Court for a hearing which was granted pursuant to section 13.1(a) (3) of the Act. The claim was called for trial on March 26, 1990. Claimant did not appear. However, at the request of Commissioner Robert Frederick Claimant had earlier filed with the Court a letter dated September 18, 1989 along with his proof of his claim. Commissioner Frederick has submitted his report based on the information submitted by Claimant.

There is no question that Claimant was the victim of a violent crime. The issue before the Court is whether Claimant has presented evidence substantiating that he had earnings during the six months prior to the crime which may form the basis for an award for loss of earnings.

The record indicates that the Claimant borrowed about $6,000.00 to start the Mid-American Bait Company in June of 1985. He had patented a packaging process which allowed him to package nightcrawlers for retail sale in containers that do not have to be refrigerated, but will keep the bait alive for a year or more. Claimant planned to package nightcrawlers using his patented process and deliver them to various accounts. He had acquired an inventory of 180,000 nightcrawlers when the crime occurred. As a result of the injuries suffered during the crime Claimant was in intensive care for eleven days at Decatur Memorial Hospital and then transferred to Danville’s Veteran’s Hospital. When he was discharged he was unable to walk and he remains housebound. During his hospitalization all of the nightcrawlers died. He claimed the 180,000 nightcrawlers would have sold for $2.00 per dozen, so his loss was $30,000.

The Court of Claims has adopted the ordinary and common definition of the word “earnings” which is something earned as compensation for labor or the use of capital. (See In re Application of Chandler (1978), 32 Ill. Ct. Cl. 1085.) In determining whether a Claimant has proven loss of earnings this Court stated in In re Application of Lopez (1987), 39 Ill. Ct. Cl. 315 at 317:

“The general rule in Illinois is that the party seeking to recover damages has the burden of establishing both the fact that he has been injured and a reasonable basis for determining the money value of those injuries. (Ashe v. Sunshine Broadcasting Corp. (1980), 90 Ill. App. 3d 97, 101, 412 N.E.2d 1142, 1145; Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 677, 356 N.E.2d 565, 573.) (Although the present case is not a typical ‘damage’ case, an award under the Crime Victims Compensation Act is analogous.) Further, damages may not be awarded on the basis of conjecture or speculation. Alover Distributors, Inc. v. Kroger Co. (1975), 513 F.2d 1137, 1141; Shoeneweis v. Herrin (1982), 110 Ill. App. 3d 800, 443 N.E.2d 36.”

We find that Claimant has failed to prove he had earnings during the six months preceding the crime upon which the Court could base an award for loss of earnings. To follow the reasoning of Claimant, the Court would have to engage in speculation as to whether or not the Claimant would have actually been able to sell the nightcrawlers at the price he states. No evidence has been presented showing Claimant had any earnings from the bait business or from any other source during the six months proceeding the crime.

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

ORDER

Montana, C.J.

On September 30,1987 this claim, under the Crime Victims Compensation Act, was denied. On October 26, 1987, Claimant requested a hearing. Thereafter occurred a series of pretrial conferences and scheduled hearing dates at which Claimant failed to appear. Finally the claim was called for trial on March 26,1990, and Claimant again did not appear. Commissioner Frederick submitted a report based upon information previously requested from and submitted by Claimant. The Court adopted the report and entered an order denying the claim on November 19,1990 because Claimant’s request for lost earnings based upon alleged lost sales of night crawlers was far too speculative.

On December 19, 1990 Claimant filed a statement with the court as follows:

“To Whom This May Concern, I requested a hearing on this case and wish to appeal. Also a legal adviser to replace Mr. Frederich. (sic)”

Claimant was given his right to a hearing under the Crime Victims Compensation Act. (Ill. Rev. Stat. 1985, ch. 70, par. 71 et seq.). Unfortunately, he failed to appear and the Commissioner submitted a thorough report based upon the record before him which report we adopted. Nothing has been submitted which would constitute any grounds for us to reconsider our order of November 19,1990. Accordingly, Claimant’s request for a rehearing is denied as is his request to replace Commissioner Frederick.


author: Poch, J. Montana, C.J.

text:
    (No. 88-CV-0763

      In re Application of Charlie Mae Alexander

      Order filed October 17, 1988.

      Order filed March 25, 1991.

    Charlie Mae Alexander, pro se, for Claimant.

      Roland W. Burris, Attorney General (Carol J. Barlow, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Poch, J.

This claim arises out of an incident that occurred on January 5,1987. Charlie Mae Alexander, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1985, ch. 70, par. 71, et seq.

This Court has carefully considered the application for benefits submitted on March 24, 1988, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on January 5, 1987 the body of the victim was found in her residence located at 14634 Center Avenue, Harvey, Illinois. The victim was taken to Ingalls Hospital where she was pronounced dead on arrival. An investigation by the Harvey Police Department and the Cook County medical examiner’s office determined that the victim died of four self-inflicted stab wounds to the abdomen. Her death was classified as a suicide.

2. That in order for a Claimant to be eligible for compensation under the Act, there must be evidence that one of the violent crimes specifically set forth under section 72(c) of the Act.

3. That the victim’s death was determined to be a suicide. Therefore, she was not the victim of one of the violent crimes specifically set forth under section 72(c) of the Act as no crime of violence was perpetrated against her.

4. That the Claimant has not met a required condition precedent for compensation under the Act.

It is hereby ordered that this claim be, and is hereby denied.

ORDER

Montana, C.J.

Claimant seeks compensation of $2,035.00 for funeral expenses pursuant to the provisions of the Crime Victims Compensation Act (Ill. Rev. Stat. 1987, ch. 70, par. 71, et seq.). On October 17, 1988, the Court of Claims entered an order denying this claim. The Court had carefully considered the application and the Attorney General’s investigatory report but denied the claim on the basis that there was insufficient proof that Darlene Alexander’s death was the result of a violent crime and her death had been classified by the Cook County medical examiner’s office as a suicide. The Claimant requested a hearing and a trial was held on August 14,1989.

Darlene Alexander, the daughter of Claimant, died on January 5, 1987. Claimant lived in Cincinnati, Ohio. Darlene had been living with Pete and Margarette Cross in Chicago, Illinois. Margarette Cross was a minister and Darlene attended their church and then moved in with them.

Although the Cook County medical examiner has listed the death as suicide, Charlie Mae Alexander, the Claimant, strongly believes that her daughter was murdered. She feels everyone knows it was really a murder and she believes her daughter was killed by Margarette and Pete. However, Claimant has no real proof to support her allegations. It appears no one has ever been charged criminally with the death of Darlene Alexander. The Crosses have indicated they are sorry about Darlene’s death but have not admitted any involvement therein.

Claimant indicated a doctor would say it was not suicide but the doctor was on a busy schedule and unable to come to court. She had no written reports from the doctor and presented none to the court even after being given 30 days to obtain and file same. All testimony concerning what Claimant believed the doctor would say was hearsay. Claimant’s testimony concerning what people were telling Claimant about the death was also hearsay.

William Massengill testified for the Claimant that he believed Darlene was murdered. He felt the police investigation was poorly done. He also believed the police reports to be inaccurate and confusing. The reports indicated that Darlene was seen at 1:00 p.m. Pete Cross found her body at 1:30 p.m. and the paramedics arrived at 1:37 p.m. The reports also indicated that Peter Cross picked up the knife and put it on a desk.

Tammy Alexander testified that she believed her sister was murdered because she was very religious and would not commit suicide. Pete Cross called them and said Darlene was dead and hung up. She believed her sister was on social security disability but did not know why. She believed the Crosses gave Darlene $10 out of her check and they kept the rest. She felt Darlene was murdered because on January 1st, Darlene had called and said she was coming home. Then on the date of her death, Yvonne Flowers had seen Darlene alive at 1:00 p.m. and Darlene was dead at 1:30 p.m. She thought the coroner’s report indicated rigor mortis within one-half hour and she could not understand this circumstance. The Crosses indicated to the police that Darlene was suicidal but she did not believe that to be true.

Gail Covin testified that she too believed her sister was murdered. Gail believed Darlene would never take her own life. Gail had attended the Crosses’ church. The church encouraged participation in bizarre rituals including dead spirits and tongues. Darlene broke away from the church but she believed in the Crosses and went to Illinois with them. Then in January, Darlene said she was coming home. Three days later, she was dead. She observed the body of her sister after the autopsy and before the funeral. Ms. Covin testified that Darlene had a six-inch stab wound on her left side and another stab wound on the left side about four inches long. She also had two more stab wounds on her right side. She could not believe her sister stabbed herself four times (twice on each side) to commit suicide.

Claimant believes her daughter was murdered. However, the case brought in the Court of Claims is not a criminal prosecution. Claimant is seeking partial payment of the funeral bill pursuant to the Illinois Crime Victims Compensation Act. Ill. Rev. Stat. 1987, ch. 70, par. 71 et seq.

For Claimant to prevail, she must prove that the decedent’s death was the result of a violent crime. The official finding of the Medical Examiner was suicide. The Claimant does not accept that finding. However, Claimant has not proven with legal evidence that the decedent died as a result of a violent crime. Even if the cause of death was undetermined, she could not prevail. In re Application of Krell (1982), 35 Ill. Ct. Cl. 552.

The Claimant has raised several very interesting questions about the death of Darlene Alexander. If Darlene was stabbed four times, twice on each side, questions are raised as to a determination of suicide. However, the Court of Claims is a Court which must follow the rules of evidence and can only award money damages pursuant to statute. Raised questions, innuendo and beliefs, however strong, cannot substitute for evidence. Without adequate evidence, the Claimant has failed to meet her burden of proof.

Thus, it is therefore ordered that the Court’s order of October 17,1988 be, and is hereby affirmed, and this claim is again denied with prejudice.


author: Burke, J.

text:
    (No. 90-CV-0965

      In re Application of Regina Gill

      Opinion filed May 29, 1991.

    Regina Gill, pro se, for Claimant.
    Roland W. Burris, Attorney General (James Maher, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

This claim arises out of an incident that occurred on July 31, 1989. Regina Gill, sister of the deceased victim, Elijah Harris, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1987, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on January 22, 1990, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on July 31, 1989, the Claimant’s deceased brother, Elijah Harris, age 51, was the victim of a violent crime as defined in section 72(c) of the Act, to wit: first degree murder. Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1.

2. That the crime occurred in Chicago, Illinois, and all of the eligibility requirements of section 76.1 of the Act have been met.

3. That the Claimant seeks compensation for funeral and burial expenses.

4. That the Claimant incurred funeral and burial expenses in the amount of $9,403.00 all of which have been paid. Pursuant to section 72(h) of the Act, funeral and burial expenses are compensable to a maximum amount of $3,000.00.

5. That on March 7, 1990 this Court awarded the Claimant $50,000.00, which sum has been paid, in In re Application of Gill, No. 90-CC-1626, which award is a deduction under section 80.1 of the Act.

6. That the Claimant does not qualify for the benefits sought due to said deduction.

It is hereby ordered that this claim be, and hereby is denied.


text:
    (No. 80-CC-1358
    Nathaniel Bynum, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 21, 1992.

    Thomas F. Geraghty, for Claimant.
    Roland W. Burris, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

This claim is brought by Nathaniel Bynum claiming negligence on the part of the State of Illinois for not providing adequate medical treatment, equipment and care while incarcerated at Stateville Correctional Institution from August 1976 through February 1978. Claimant’s action is for physical damage and emotional distress allegedly sustained while hospitalized at the Stateville prison from 1976 through 1978. The amount claimed is $100,000.00.

Claimant alleges that while in the care of the State of Illinois-Department of Corrections, the State breached its duty of care owed him by denying him medically required striker boots, bedding and proper colostomy bags. Further, Claimant alleges that as a result of the State’s failure to provide adequate medical attention he was forced to lie in his own excrement throughout much of his incarceration at Stateville. The lack of proper padding for his bed and proper colostomy bags led to the development of pressure sores on his previously healthy buttocks and feet. As a result of said pressure sores, Claimant had to receive skin grafts on his feet which prevented him from receiving physical therapy for his paraplegic condition, thus rendering him unable to walk.

Nathaniel Bynum became a paraplegic in September of 1973 due to a gunshot wound to his back. Between 1973 and 1975 Bynum participated in physical therapy at a number of institutions in the Chicago area that included ambulating between parallel bars with the aid of braces, lifting weights and a range of motion exercises.

On August 8, 1975, Claimant was charged with unlawful use of a weapon and incarcerated pending his trial. He was sent to Cermak Hospital, the hospital of the Cook County Department of Corrections, to await trial and remained there for one year. In November of 1975, while at Cermak, Claimant had a colostomy performed. While at Cermak, Claimant learned how to care for his colostomy, including how to change the 3" Karaya gum seal colostomy bags. In January of 1976, Claimant was able to stand with the aid of leg braces as evidenced by photographs taken of him at Cermak in 1976.

On August 6, 1976, Claimant was transferred to Joliet Prison. Soon after, he was sent to Stateville Prison and put in a hospital ward there. When Bynum arrived at Stateville Prison he had leg braces, crutches, walker, 3" Karaya gum seal colostomy bags, striker boots and sheepskin.

The items that Claimant brought to Stateville were taken from him by an officer and put in the pharmacy. Although Bynum repeatedly asked the nurse and the guard for his equipment, he did not receive it. Bynum’s repeated requests for the proper medical equipment to care for himself and his filing of a grievance with the prison in October of 1976 failed.

During 11 of the 18 months Claimant was at State-ville, he was given colostomy bags that either did not fit or did not adhere to the colostomy opening. According to a former inmate, Mr. Frank Scott, the colostomy bags leaked constantly and were the wrong size.

Claimant’s expert witness, - Dr. Michael Gonzales, stated that the standard of care for treatment of a paraplegic patient is the same whether or not the patient is incarcerated. He highlighted several kinds of special care which a paraplegic patient would need in order to prevent pressure sores. Based on his review of the medical records, Dr. Gonzales found no evidence that Claimant received any of the special care. He further stated that according to the medical records, Claimant was given the wrong size colostomy bags and the colostomy did not adhere. Dr. Gonzales concluded that the medical care Claimant received at Stateville did not meet the standard of care in 1976-77 for institutions devoting themselves to the care of human beings.

Dr. Gonzales’ undisputed testimony was that the care Claimant received at Stateville was neither ordinary nor reasonable care; the Illinois Department of Corrections was negligent in its provision of medical care for Claimant. He further stated that according to the medical records, Claimant did not receive physical therapy, which is very important to the development of a paraplegic, and the failure to provide a water or egg crate mattress, striker boots, and sheepskins all constituted negligence on the part of the Illinois Department of Corrections. Further, Dr. Gonzales’ undisputed conclusion was that, but for the inadequate treatment Claimant received at Stateville, he would be able to walk today.

Respondent’s expert, Dr. Shansky, agreed that the standard of care is the same for the treatment of paraplegic patients whether one is or is not incarcerated. Dr. Ronald Shansky agreed that a physician who practiced physical and rehabilitative medicine since 1976 would be able to outline the standard of care for treatment of a paraplegic patient in 1976. Dr. Shansky also conceded that Claimant did not receive physical therapy in 1976.

The immediate result of the inadequate care Claimant received at Stateville was that he developed pressure sores. These pressure sores then became infected from leaking fecal material from the inadequate colostomy bags which further exacerbated the condition of the sores on Claimant’s feet. After he received a skin graft to remove the pressure sores, Claimant could not walk due to the breakdown of the skin on his feet. As a result of not being able to walk, Claimant is prone to contractions and limitations of mobility in the limbs. He is also subject to a condition called ectopic bone blood clots and general muscle deterioration.

Dr. Gonzalez stated that in his examination of Claimant, Claimant cannot walk and will never be able to walk again and inadequate care Claimant received at Stateville is the direct cause of Claimant’s inability to walk.

The State of Illinois owes a duty of care to provide reasonable medical care to its prisoners; thus, negligent medical treatment of a prison inmate can result in liability against the State. (McDougle v. State (1978), 32 Ill. Ct. Cl. 463, 469.) Thb duty owed by the State to inmates is the same as that owed to non-inmates.

“The State cannot escape its duty to an individual merely because he or she is an inmate of an institution. The Court has held on numerous occasions that the State must meet the same standard of care and safety as required of private industry.” McGee v. State (1977), 31 Ill. Ct. Cl. 326, 330.

The State of Illinois, the Department of Corrections, and their employees breached their duty of care to Claimant by denying him adequate medical supplies, treatment, and care. In order to prevent pressure sores, paraplegic patients should be given either water mattresses or egg crate mattresses and sheepskins; paraplegic patients should also be given protective footwear, commonly called striker boots. Claimant testified that he received none of the preceding items or care. Based on Dr. Gonzales’ review of the medical records, he found no evidence that Claimant received any of the preceding items or care. The State and its employees also breached their duty of care by denying Claimant the care and training necessary to maintain his demonstrated progress and physical rehabilitation. The Respondent presented no evidence to the contrary. With respect to Claimant’s boots and padding, it has been held that failure to provide inmates with proper protective footwear constitutes negligence. Burns v. State (1982), 35 Ill. Ct. Cl. 782.

As to the provisions of adequate colostomy bags, both the medical records and the Claimant’s witnesses indicate that through the majority of his stay (approximately 11 out of 18 months) Claimant was given the wrong type and size colostomy bags. The medical staff was well aware of Claimant’s condition. The medical records indicate that he constantly complained about the inadequate care he was receiving, especially as compared to the care he had received at outside hospitals. Claimant also filed a grievance with the prison authorities in October of 1976. In his grievance, Claimant told the authorities that he needed size 3 colostomy bags, striker boots, sheepskins, a water mattress, antiseptics for his feet and physical and occupational therapy.

Further evidence of the Illinois Department of Corrections’ knowledge of Claimant’s condition is in an inter-departmental memorandum from James Lee, associate administrator, medical services, to Cecil Patmon, administrator, medical services. In the memo, Mr. James admitted that there were problems with Claimant’s care, and that the medical personnel had been informed of the problem. Despite the knowledge on the part of the Stateville administrators, no remedy was provided. Failure to provide timely medical attention has been held to constitute negligence. Davidson v. State (1983), 35 Ill. Ct. Cl. 825.

The Illinois Court of Claims has held that

“there is no fixed rule of compensation and damages for personal injuries, and that compensation is incapable of exact mathematical calculations.” DeWeese v. State (1973), 28 Ct. Cl. 230, 238, citing Swearinger v. Kinger (1968), 91 Ill. App. 2d 251.

One way to measure damages is to compare the damage awards received in similar cases. In making that comparison to the instant case, we look at three cases. In Smith v. Illinois Central R.R. Co., 343 Ill. App. 593, 99 N.E.2d 717, an award of $185,000.00 in damages was upheld for a plaintiff whose legs were amputated. In Mayer v. St. Louis Public Service Co. (1954), 269 S.W.2d 101, the plaintiff suffered from spastic paraplegia, but could walk with the aid of braces, was subsequently hit by a bus and both legs were crushed, and the court upheld an award of $25,000.00 as not being excessive. In Sexner v. Bensen (7th Cir. 1984), 727 F.2d 669, aff'd (1985), 477 U.S. 193, the plaintiffs were awarded $128.00 per each day spent in segregation which was “extremely unsanitary and repulsive.”

Wherefore it is hereby ordered that Claimant is awarded the sum of $89,000.00 in full and complete satisfaction of this claim.


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

text:
    (No. 82-CC-0930
    Altman Construction Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 16, 1991.

      Order filed August 8, 1991.

    Sterling & Altman, P.C. (Glenn A. Altman, of counsel), for Claimant.

      Roland W. Burris, Attorney General (Phillip McQuillan and William E. Webber, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Montana, C.J.

Claimant brings this action pursuant to section 8(b) of the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.8(b)), which grants this Court exclusive jurisdiction to hear and determine “all claims against the State founded upon any contract entered into with the State of Illinois.” Claimant’s complaint seeks damages incurred as a result of Respondent’s delay in performing its part of a contract.

The facts in this case are uncontradicted. Claimant, Altman Construction Co., Inc., entered into á contract with the Respondent’s Capital Development Board (CDB) to do “general work” on a tertiary waste-water treatment plant at Southern Illinois University-Edwards-ville (SIU-E). The job consisted of the construction of a building near SIU-E’s existing waste treatment plant. This building was to house equipment used to treat waste water. Claimant actually constructed the building while other contractors provided and installed the above-mentioned equipment.

The contract provided that the completion of all required work should be within 365 days after the notice of award. Claimant bid on and received the contract on October 16, 1978. The contract also provided that Claimant would carry builder’s risk insurance for the “duration of the job.”

With the exception of that which will hereafter be discussed, Claimant completed its duties sometime in September or October 1979 (within the time allotted). As far as the contract price is concerned, with the exception of $1,000.00 which was held back until the project was “closed out,” Claimant received all monies which were due and owing as of September (or October) 1979. Claimant eventually received the $1,000.00 retainage after all the other contractors had closed out. However, as alluded to earlier, Claimant was unable to wrap things up in September (or October) of 1979 as it had a duty to perform some minor cosmetic work after the installation of the above-mentioned waste-water treatment equipment and provide supervision of the construction site until the close of the project. Therein lies the problem.

If the equipment had performed as was anticipated, Claimant should have been able to completely finish its job within the specified contract time. Unfortunately, the equipment did not live up to expectations. After much negotiation and problem-solving (between CDB and the equipment manufacturer), the equipment was modified and installed sometime in July of 1981. The project was finally completed in September 1981 — some two years after the contract deadline. It was at this point that Claimant was allowed to close its books on the project.

Claimant asks this Court to award damages equal to the expenses it was forced to incur as a result of this delay. In detailing its expenses, Claimant cites the additional risk insurance it was required to maintain (the premiums totaling $1,032.70) and its professional fee for supervision and travel costs (totaling $6,637.00).

Claimant points out that the failure of the waste-water treatment equipment was in no way its fault. The purchase and installation of said equipment was to be provided by other prime contractors. To be sure, these other prime contractors had separate contracts with the State and were not subcontractors of Claimant. In addition, Claimant argues that its bid proposal was based on a one-year completion time schedule, not the three years it actually took. Lastly, Claimant points to several provisions in its contract allowing for an increase in the contract price for delay caused by acts of CDB.

It is well settled that a party who fails to complete a contract within the specified time can be held liable for damages caused by the delay. (Structural Sales, Inc. v. Vavrus (1985), 132 Ill. App. 3d 718, 477 N.E.2d 745.) Also see J. F., Inc. v. S. M. Wilson & Co. (1987), 152 Ill. App. 3d 873, 504 N.E.2d 1266, in which it was said that

“even if a contract contains a no-damage-for-delay provision, a prime contractor may sue and recover from an owner for delay damages caused by another prime contractor.”

In the case at bar, the evidence is clear that CDB, through its other prime contractors, failed to perform its part of the contract (dealing with the installation of the equipment) until long after the contract deadline. This failure resulted in Claimant having to incur expenses which were not anticipated at the inception of the contract.

Structural Sales, Inc., supra, also states a party claiming damages for delay in completing a contract must prove that the delay was the fault of the party against whom damages are sought. As alluded to earlier, the record contains uncontradicted testimony as to CDB’s fault.

Because there was an unreasonable delay which was the fault of Respondent’s agent, and since this delay caused Claimant to incur additional expenses not contemplated in the original contract, Respondent should be held liable in damages for said expenses which we find to be $7,669.70. However, before an award in that amount can be made it is necessary that the fiscal information on the project be made part of the record herein. Specifically the record should reflect the lapsed balance of released appropriations for the project and a list of any other claims which were made against those funds.

It is hereby ordered that the Respondent file the information described within 30 days of the date of this order.

ORDER

Montana, C.J.

This cause comes on to be heard pursuant to our opinion entered herein on May 16, 1991, and following the filing of the Respondent’s response thereto, due notice having been given, and the Court being advised.

In the aforesaid opinion we stated, inter alia, as follows:

“Because there was an unreasonable delay which was the fault of Respondent’s agent, and since this delay caused Claimant to incur additional expenses not contemplated in the original contract, Respondent should be held liable in damages for said expenses which we find to be $7,669.70. However, before an award in that amount can be made it is necessary that the fiscal information on the project be made part of the record herein. Specifically the record should reflect the lapsed balance of released appropriations for the project and a list of any other claims which were made against those funds.”

The Claimant’s response was filed May 31, 1991. It indicates that the CDB lapsed $0.70 in line item appropriation No. 141-51164-6600-39-77. No other claims arose out of the project against this money.

In breach of contract claims it is this Court’s policy to limit awards so as not to exceed the amount of funds, appropriated and lapsed, with which payment could have been made. To do otherwise, i.e., to award money for debt incurred beyond the sum allotted by the General Assembly, would be tantamount to making a deficiency appropriation. The appropriation of State funds for governmental operations is the constitutional prerogative of the General Assembly. It is this Court’s duty to uphold that process and advise the General Assembly. (Thorlief Larsen & Son, Inc. v. State (1990), 42 Ill. Ct. Cl. 195; Bojko v. State (1988), 41 Ill. Ct. Cl. 202; J. F., Inc. v. State (1988), 41 Ill. Ct. Cl. 5; Loewenberg/Fitch Partnership v. State (1986), 38 Ill. Ct. Cl. 227; Ude, Inc. v. State (1982), 35 Ill. Ct. Cl. 384.) In the case at bar, virtually no money lapsed to cover the damages.

We are constrained to deny the claim. However, for purposes of potential consideration of this matter by the General Assembly, for the reasons stated in our May 16, 1991, opinion we find that Claimant suffered $7,669.70 in damages caused by the GDB and that, but for no money having lapsed on the project, an award in that amount would have been made. Claim denied.


author: Raucci, J.

text:
    (No. 82-CC-1506
    Pal-Mar Steel Corp., Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 30, 1991.

    Querry & Harrow, Ltd. (G. A. Finch and Paul Lively, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Erin M. O’Connell and Bruce Bonczyk, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Raucci, J.

Claimant, Wil-Fred Construction Company, Inc., as a successor in ownership of the original claimant, Pal-Mar Steel Corporation, brings this claim for the recovery of monies alleged to be owed it by the Capital Development Board (CDB) for work done in 1978 and 1979. There is little dispute about the significant facts in this claim. The State has chosen not to file a brief and argument in this matter and, therefore, cites no law in response to the Claimant’s position.

In October of 1977, CDB entered into a contract with Arrow Construction Company to build the Addison Specialized Living Center in Addison, Illinois. In December of 1977, Arrow, as general contractor, entered into a subcontract with Claimant, Pal-Mar, for the steel erection work at the Specialized Living Center. Pal-Mar performed the work under the contract with Arrow. That work was completed by December 1979. Pal-Mar initially worked under the supervision of Arrow and later under the direction of the general contractor which CDB hired when Arrow experienced financial difficulties. Pal-Mar received partial payment in the amount of $172,800.00 and claims a balance of $113,278.77. There is no issue that Pal-Mar’s work was in any way deficient. In 1980, when Pal-Mar became aware of Arrow’s financial problems, it filed liens against the State for the work which it had done.

It is also undisputed that the labor and material bond purportedly issued by the Union Pacific Insurance Company to Arrow and accepted by the State was, in fact, forged. Therefore, when Arrow became unable to meet its financial obligations to the Claimant, there was no bonding company from which the Claimant could recover.

CDB requires that each construction contract be accompanied by a labor and material bond for the benefit of the subcontractors. Further, Illinois law requires State public construction contracts to have labor and material bonds from sureties for the benefit of subcontractors. (Ill. Rev. Stat., ch. 29, par. 15—16.) According to the evidence presented, the contractors and subcontractors who do business with the State are aware of the bonding requirement and rely upon that bonding requirement in their contractual dealings with the State. In this particular situation, that fact is highlighted by the continued work done by the Claimant after the financial difficulties of Arrow occurred and a new general contractor was hired. The Claimant continued to perform work after Arrow was replaced and after the bond forgery was made known to the State. The Claimant was not made aware of the bond forgery while it continued its work. The Claimant even completed certain extras that were required by the State of Illinois believing it was protected by the bond.

Over $4 million in total appropriations were set aside for the Specialized Living Center in Addison, Illinois. As of March of 1980, there were substantial monies being held by CDB pursuant to the liens filed by the Claimant, Pal-Mar. Those monies were subsequently disbursed to the new general contractor in spite of the existence of the lien. The issue with which this Court is confronted is whether the subcontractor can recover from the State where a general contractor has failed to secure a valid labor and material bond and subsequently is unable to meet its financial obligations in spite of the fact that it was paid by the State.

The Claimant has suggested three separate theories of recovery which would compel payment by the State under these circumstances. It is not necessary to discuss in detail each of these theories since agreement with the Claimant on any of those would justify an award in its favor.

The general rule with respect to third-party beneficiary actions in Illinois is well settled. If a contract is entered into for a direct benefit of a third person, not a party to the contract, such third person may sue for breach thereof. The test is whether the benefit to the third person is direct or incidental. As long as the benefit is direct, that individual may sue on the contract. (Western Waterproofing Co. v. Springfield Housing Authority (1987), 669 F. Supp. 901.) A contract to procure a payment bond is specifically written to protect the subcontractor and therefore the benefit is obviously direct. The Claimant was the direct beneficiary of the bond requirement in this contract and, as such, is entitled to recover from the State for the breach of the contract.

Additionally, Pal-Mar filed a valid notice of lien on March 31,1980, in the amount of $113,278.77. In spite of the lien, CDB subsequently disbursed $115,000.00 to the substitute general contractor from funds which were available on the date of the lien being filed. This action is in violation of the Public Lien Act and obviously worked to the detriment of the Claimant. CDB should have withheld those funds until a final determination of the Claimant’s lien was made.

It is therefore ordered, adjudged and decreed that Claimant is awarded $113,278.77 in full and complete satisfaction of this claim.

       After a trial in Du Page County Circuit Court, Union Pacific was found to have no obligation under the purported bond.


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

text:
    (No. 82-CC-1886
    Ronald Lichter, Claimant, v. The State of Illinois, Respondent.

      Order filed May 12, 1988.

      Order filed September 25, 1989.

      Order filed May 16, 1991.

      Order on motion for rehearing filed November 7, 1991.

    Louis S. Goldstein & Associates, Ltd., for Claimant.
    Roland W. Burris, Attorney General (Jan Schaffrick, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, J.

This cause comes on to be heard on the Court’s own motion following our order of February 17,1988.

On February 17, 1988, an order was entered in this matter which: (1) noted that Claimant had not filed his annual status report as required by section 790.70 of the Court of Claims Regulations, (2) pointed out that failure to comply with section 790.70 was grounds for dismissal, and (3) granted Claimant 21 days within which to comply. Prior to that order, the clerk’s office, although not required to do so, did mail Claimant a reminder that the report was due. Claimant did not comply with said order. In fact, this claim was ordered placed on general continuance on April 7, 1984, and Claimant has neither filed a status report nor anything else since. Prior to the claim being placed on general continuance Claimant filed nothing since the complaint on February 16,1982.

It is hereby ordered that this claim be, and hereby is, dismissed for want of prosecution and for failure to comply with section 790.70; it is further ordered that Claimant is granted leave to refile within a period not to exceed one year from the date of this order.

ORDER

Montana, C.J.

Claimant has moved for sanctions against the State for failure to comply with discovery.

It is hereby ordered as follows:

1. The State of Illinois shall comply with all outstanding discovery requests within 30 days of the date of this order.

2. Claimant’s motion for sanctions is denied at this time without prejudice to Claimant refiling said motion if the State does not comply with this order.

ORDER

Montana, C.J.

This cause coming on to be heard on the motion of Respondent to dismiss the claim herein, Claimant’s response, and Respondent’s reply to that response, due notice having been given the parties hereto and the Court being fully advised in the premises, the Court finds:

That the claim before us arose from an accident which is alleged to have occurred on February 13,1981, while Claimant, a pedestrian, was walking in a westerly direction on the north side of Golf Road at or near 9600 West Golf Road. We see that on that date, Claimant was allegedly forced to walk in the roadway due to a construction project going on because there was no sidewalk and was struck by an unknown vehicle.

Respondent’s position in its motion is that under the facts of this case the State owed no duty to the Claimant. In his complaint the allegations of breach of duty were as follows:

“(a) Permitted and allowed the sidewalk at the place aforesaid, to become and remain in a highly dangerous and unsafe condition by reason of an unnatural accumulation of debris scattered thereon;
(b) Permitted and allowed the said sidewalk at the place aforesaid, to become and remain in a highly dangerous and unsafe condition for an unreasonably long period of time;
(c) Failed to construct an alternate pathway for pedestrian traffic proceeding along said sidewalk, when they knew or should have known that said alternate sidewalk or pathway was necessary to prevent pedestrian traffic from having to walk along the roadway;
(d) Failed to make a reasonable inspection of the premises at the place aforesaid, to determine whether the sidewalk was accessible to pedestrian traffic;
(e) Failed to warn the Plaintiff and other persons lawfully upon said premises of the highly dangerous and unsafe condition existing upon the sidewalk at the time and place aforesaid.”

We note that this Court has previously held the Illinois Department of Transportation is under no duty to build or maintain sidewalks or overpasses located within municipalities; that such would be the duty of the municipalities themselves. (Tilliston v. State (1981), 35 Ill. Ct. Cl. 353; Freeman v. State (1981), 35 Ill. Ct. Cl. 242.) Claimant acknowledges this in his response but argues that sub-paragraphs (c), (d), and (e) (quoted above) are sufficient factual allegations of breach of duty, citing DiDomenico v. Village of Romeoville (1988), 171 Ill. App. 3d 293, 525 N.E.2d 242. We disagree. We find the case at bar to be closer to that of Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 300 N.E.2d 590, cited in the DiDomenico decision, a possible distinction being only that no obstruction was present in Deren.

In Respondent’s reply, Respondent aptly distinguished the DiDomenico case. In DiDomenico, plaintiff parked his car in a lawful manner and was using a portion of the street as a means of going and coming from his vehicle when he fell into a pothole on the street. The court held defendant has a duty to maintain the street for motorists who foreseeably parked their cars and were using the street area around their cars as a passageway to get to and from their automobiles. The plaintiff, in DiDomenico, used the street as a passageway to get from the front of his vehicle to the back in an area used for parking and stepped in a hole, while in the case at bar the Claimant was using the street as a sidewalk and was struck by a vehicle.

Respondent also proffered the case of Franks v. Martin (1987), 151 Ill. App. 3d 823, 503 N.E.2d 556, in support of its position. In Franks, plaintiff, a pedestrian, was walking along a footpath on defendant’s, a school district’s, property when she encountered defendant’s fence which blocked her path. Instead of walking around the fence, plaintiff chose to walk into the street and was struck by a vehicle. The court found the defendant had no duty to provide a walkway along its property. Likewise, in the instant case, Claimant was walking along Golf Road at a point where there were no existing sidewalks when he came to a construction project. Claimant then proceeded to walk on Golf Road and was struck by a vehicle. The Court found that the defendant had no duty to construct a walkway along its property.

Based on our review of the case law and the facts alleged we find that the Respondent owed the Claimant none of the duties Claimant alleged were breached. It is hereby ordered that the Respondent’s motion be, and hereby is, granted and this case is dismissed.

ORDER ON MOTION FOR REHEARING

Montana, C.J.

This cause comes on to be heard on the Claimant’s request for rehearing, it appearing that due notice has been given, and the Court being advised finds Claimant has failed to state any reason whatsoever in support of his request.

Wherefore, it is hereby ordered that Claimant’s request be, and hereby is, denied.


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

text:
    (No. 83-CC-0100
    Robert Brzezicki et al., Claimants, v. The State of Illinois, Respondent.

      Order filed April 19, 1984.

      Order filed November 15, 1991.

      Order filed January 31, 1992.

    Ronald J. Lucaccioni, for Claimants.
    Roland W. Burris, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Holderman, J.

This matter coming before the Court upon Respondent’s motion to dismiss, due notice having been served and the Court being fully advised in the premises, we find as follows:

The instant claim sounds in tort and arose from an automobile accident on July 27, 1981. On June 3, 1983, Respondent served Claimant with a set of interrogatories and a notice to produce. At the time Respondent filed the instant motion, over six months had elapsed without any responses from Claimant. Respondent wrote four letters to Claimant during this time asking for compliance, in each instance allowing Claimant an additional 30 days to answer. These efforts having been ineffective, Respondent filed the instant motion.

We are of the opinion that Respondent has made reasonable efforts on its own to obtain compliance from Claimant, and that Respondent’s present recourse to the Court is proper and justifiable. We are also of the opinion that Claimant’s failure to answer discovery for over six months is improper and unreasonable.

It is hereby ordered that the instant claim be, and the same is, hereby dismissed.

ORDER

Montana, C.J.

Claimants filed this claim on July 27, 1982, seeking compensation for personal injuries and other damages arising out of an automobile accident which occurred on July 27,1981. On motion of the Respondent the case was ordered placed on general continuance on December 20, 1982,. pending resolution of suits in other forums which arose from the same occurrence as gave rise to the case at bar. After a three-year discovery dispute the case was again ordered placed on general continuance pending resolution of another matter.

When a claim is on general continuance, it is the claimants’ responsibility to file annual status reports during April or May and the failure to do so is grounds for dismissal. (Sections 790.70 and 790.90 of the Court of Claims Regulations.) The last status report was filed in 1987. Notices that reports were due were mailed by the clerk’s office in 1988, 1989, 1990, and 1991. Nothing has been filed by any of the parties in over four years.

A review of the record indicates that there may be some confusion among the Claimants as to the status of the case in two areas. First, on July 23,1983, a petition to intervene was filed. The record does not reflect that the petition was ever acted on; at least there is no indication in the master file in the clerk’s office or on the docket that an order was entered. There is indicia that some pleadings were sent periodically to counsel for the purported intervenor. If the petition was not acted on previously, we hereby do grant it.

Second, the last status report was filed by an attorney apparently not of record in this case. The report stated, inter alia, that Ronald J. Lucaccioni, Ltd., would be filing shortly his substitution of attorneys and that a copy of same was attached to the report. No copy was attached to the report nor was a substitution filed at any time thereafter.

According to records in the clerk’s office the law firm of Vasan & Associates represents the Claimants and the law firm of Orner, Wasserman, & Moore, Ltd., represents the intervenor.

This Court is willing to maintain an open file on this case for as long as is necessary, but it will not do so indefinitely when the parties fail to express any interest in it and fail to comply with the rules.

Wherefore, it is hereby ordered that a status report be filed herein within 30 days; it is further ordered that if no report is on file within said time this claim is dismissed and the clerk’s office is directed to so notify the parties.

ORDER

Montana, C.J.

This cause comes on to be heard following our order of November 15,1991, it appearing that due notice has been given, and the Court being advised.

On November 15,1991, an order was entered herein requiring that a status report be filed within 30 days and if none was on file after 30 days the claim was to be dismissed. The order also noted that records in the clerk’s office indicated that the law firm of Vasan & Associates represents the Claimant herein and that Orner, Wasserman, & Moore, Ltd., represents the intervenor. Neither law firm filed a status report. However, Vasan & Associates filed a pleading entitled EXPLANATION which advised the Court of certain matters concerning the representation of the Claimants.

Rased on the failure to file status reports or any other pleadings for nearly four years, the Court finds that the parties have not made a good faith effort to proceed with this case and have abandoned it.

It is hereby ordered that the law firm of Vasan & Associates is withdrawn from this claim effective May 6, 1987, nunc pro tunc, and this claim is hereby dismissed as to all parties.


author: Patchett, J. Patchett, J. Patchett, J. Patchett, J.

text:
    (No. 83-CC-1601
    Dimmitt & Owens Financial, Inc., Claimant, v. The Department of Children and Family Services of The State of Illinois, Respondent.

      Order filed November 9, 1987.

      Order filed April 13, 1989.

      Opinion filed November 22, 1991.

      Order filed June 29, 1992.

    Morrissey, Robinson & Kabat and Stark, Reagan & Finnerty, for Claimant.
    Roland W. Burris, Attorney General (Robert J. Sklanberg, Steven Schmall, and Janice Schaffrick, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Patchett, J.

This cause comes on for hearing upon the motion for summary judgment filed herein by the Claimant. The Court notes the following facts:

a. The Claimant filed his original complaint on February 3, 1983. To date, Respondent has never filed an Answer.

b. The Claimant subsequently filed a motion for judgment on the pleadings on the basis that no answer had been filed.

c. On May 16, 1986, this Court entered an order denying the motion for judgment on the pleadings and referring this matter to the Court of Claims commissioner for further proceedings. On April 10, 1986, the Claimant filed a motion for summary judgment and on August 1, 1986, Claimant filed a motion to enter order granting summary judgment. The Respondent did not file a response. Commissioner Ashman of this Court had given the Respondent until July 1, 1986, to respond to the motion for summary judgment. To date, the Respondent has not responded to the motion for summary judgment. Therefore, the Court finds as follows:

It appears that there is insufficient evidence before the Court to establish the amount of damages. Therefore, it is ordered that summary judgment is granted in favor of the Claimant and against the Respondent on the issue of liability, and further, this case is remanded to the Court of Claims commissioner for the purposes of a hearing to determine damages.

ORDER

Patchett, J.

This cause comes on for hearing upon the Respondent’s motion to vacate the previous order of summary judgment granted by this Court. The Court notes that this claim was set by the commissioner of this Court for hearing on five different occasions. Claimant filed a motion for summary judgment in 1986. At the request of the Respondent, an extension of time was granted by this Court giving the Respondent additional time to file an objection to the motion for summary judgment. The Respondent filed nothing.

On August 1, 1986, the Claimant filed a motion asking the Court to rule. Over a year later, this Court somewhat reluctantly granted summary judgment on the issue of liability due to the absolute failure of the Respondent to plead. The cause was remanded to the commissioner of this Court for a trial on damages. Over five months later, the Respondent filed a motion to vacate the order of summary judgment.

While this Court feels that the Respondent may have had a meritorious defense, this Court cannot accept continuous, unexplained delays in pleadings and/or refusals to plead at all.

For the foregoing reasons, the motion to vacate the order of summary judgment on the issue of liability is hereby denied, and this cause is remanded to the commissioner of this Court for a prompt hearing on the issue of damages.

OPINION

Patchett, J.

This claim arose as a result of the termination of a contract between Youth Enrichment Services, Inc. (hereinafter referred to as “YES”), an Illinois not-for-profit corporation, and the Department of Children and Family Services (hereinafter referred to as “DCFS”). YES was formed in 1975, and was funded by various State agencies and voluntary contributions. The purpose of the corporation was to provide or secure specialized services and/or resources for those young people and their families who were difficult to serve using traditional methods. YES entered into a continuing series of contracts with DCFS to provide foster care services for minors who were in the custody of DCFS. The most recent of those contracts was to run from July 1, 1981, through June 30, 1982. YES had also entered into contracts with DCFS and other government agencies to provide child welfare services. DCFS had entered into its first contracts with YES during 1975. Pursuant to those contracts, DCFS audited YES every year thereafter.

On or about August 7,1980, YES requested Dimmitt & Owens Financial, Inc. (hereinafter referred to as “D&O”), to engage in the business of purchasing accounts receivable. A written contract was entered into between D&O and YES. YES executed a Uniform Commercial Code Form UCC-1 which was duly filed by the Claimant on August 14, 1980. Therefore, beginning in August 1980, YES began discounting its receivables to D&O.

D&O would pay YES at the end of each month after the invoice for the month’s services had been prepared. D&O would pay YES an amount in cash equal to 10% of the face value of the invoice. D&O would then submit the invoice to DCFS along with a statement indicating that D&O had purchased the account from YES. At the end of the following month, DCFS would pay the bill to D&O by the form of a warrant drawn on the State Treasurer.

From July 1,1981, through December 31,1981, YES performed services and submitted bills for services to DCFS, and was paid by DCFS. During January and February of 1982, YES provided services, and D&O subsequently billed DCFS. On February 23, 1982, YES received a warrant in payment of the January foster care invoice. A warrant was turned over to D&O pursuant to the customary procedure. During the morning of February 25, 1982, YES completed preparation of the invoice for foster services provided during February 1982 in the amount of $104,605.76. YES subsequently sold this account to D&O pursuant to the customary procedure, and in return received from D&O approximately $73,000.00.

On or about March 1, 1982, the office of the State Treasurer refused to honor the previously-issued warrant for January foster care services. In addition to these contracts, YES was selling to D&O, and billing the Respondent for, services pursuant to a specialized caretaker contract between YES and DCFS. It is alleged by the Claimant that payment for October through February of 1982 under the specialized caretaker contract also remains unpaid.

After the Respondent refused payment on the warrants as previously indicated, D&O filed suit against the State of Illinois and others in the U.S. District Court for the Northern District of Illinois. On December 8, 1982, the State of Illinois was dismissed from said suit, and the Claimant was directed to the Court of Claims.

On February 3, 1983, D&O filed a claim with this Court. To date, no responsive pleading has ever been filed by the Respondent. Under the rules of the Court of Claims, the failure to file a response should be considered a general denial. Specifically, however, no affirmative matter was ever pled by the Respondent. On November 9, 1987, this Court granted summary judgment to the Claimant on the issue of liability. A motion to vacate that summary judgment was denied on April 13, 1989. The case was then remanded to a commissioner for a hearing on damages.

At the beginning of the trial on the issue of damages before a commissioner of this Court, the Respondent brought up a previously-conducted audit of YES by DCFS. They then sought successfully to introduce this audit into evidence. This was despite the fact that there had never been any pleadings, or any prior claim of a set-off, by the Respondent until the hearings began.

Therefore, the issues before this Court are as follows:

1. Whether the Respondent is even entitled to raise the issue of a set-off, having never pled the set-off, and having already had a summary judgment entered against them on the issue of liability.

2. Whether the Respondent, if allowed to plead a set-off, or attempt to prove a set-off, produced enough evidence at the hearing on this cause to establish such a set-off.

3. If the Respondent owes money to the Claimant, whether there are any additional awards of interest which can be granted by this Court pursuant to the request of the Claimant.

Summary judgment was granted on the issue of liability in favor of the Claimant due in large part to the total failure of the Respondent to respond with departmental reports necessary to determine the facts herein. To allow the department some two years after summary judgment to give information which should have been submitted before the summary judgment motion was granted, would frustrate the purpose of granting the summary judgment on the issue of liability.

Over a period of eight years, the Department totally and completely failed to file a pleading with this Court claiming set-off. Interestingly enough, the Department in its own brief, cites section 790.20 of the Court of Claims Regulations which provides as follows:

“Except as herein otherwise provided, pleadings and practice shall follow the Illinois Code of Civil Procedure 000 and the revised Rules of the Supreme Court of Illinois 0 0

The Respondent then goes on to claim that this Court should deny this claim at this point because of that part of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.24—6) which provides in part that “* * # any recovery awarded by the court shall be subject to the right of set-off.”

In numerous cases, this Court has indeed held that in granting a claim, we may take into consideration monies paid out by the Respondent to a claimant, regardless of whether related or not. A prime example is when this Court pays a claimant based on a tort claim, and the claimant has been on. Public Aid. However, this Court has never held that the Respondent does not have a duty to present the information to the Court regarding the amount of the set-off in a timely manner. In this case, they have simply failed to do so.

This Court is persuaded that a set-off must be pled in some manner prior to the determination of the issue of liability. Perhaps the Respondent might have been able to raise the issue of set-off in the motion to vacate the original grant of summary judgment, but they did not do so.

Therefore, this Court holds that the Respondent is precluded from raising the issue of set-off. Therefore, we need not reach the second issue of whether or not the Respondent would have carried its burden of proof at the hearing regarding their right to a set-off, or the amount of a set-off.

We are still left with a difficult question of how much damages should be. At the hearing before the commissioner of this court, Gerald Doles, regional manager for the Claimant, testified that there was due to the Claimant because of its factoring agreement with YES, the sum of $215,260.98. This figure appears to be uncontradicted, although the Claimant claims more than that in several of its pleadings prior to and subsequent to the hearing in question. In addition, the Claimant has made certain claims for prejudgment and post-judgment interest. This Court has consistently held that we are without jurisdiction or power to grant prejudgment or post-judgment interest. Therefore, those claims are denied.

In summary, this Court grants judgment in favor of the Claimant and against the Respondent for the sum of $215,260.98.

ORDER

Patchett, J.

This claim comes before the Court on the Respondent’s motion for reconsideration. The Court believes that a brief presentation of the facts is necessary.

This claim arose as a result of the termination of a contract between Youth Enrichment Services, Inc. (hereinafter referred to as “YES”), an Illinois not-for-profit corporation, and the Department of Children and Family Services (hereinafter referred to as “DCFS”). YES was formed in 1975, and was funded by various State agencies and voluntary contributions. The purpose of the corporation was to provide or secure specialized services, and/or resources, for those young people and their families who were difficult to serve using traditional methods. YES entered into a continuing series of contracts with DCFS to provide foster care services for minors who were in the custody of DCFS. The most recent of those contracts was to run from July 1, 1981, through June 30, 1982. YES had also entered into contracts with DCFS and other government agencies to provide child welfare services. DCFS had entered into the first contracts with YES during 1975. Pursuant to those contracts, DCFS audited YES every year thereafter.

On or about August 7,1980, YES requested Dimmitt & Owens Financial, Inc. (hereinafter referred to as “D&O”), to engage in the business of purchasing accounts receivable. A written contract was entered into between D&O and YES. YES executed a Uniform Commercial Code Form UCC-1 which was duly filed by the Claimant on August 14, 1980. Therefore, beginning in August 1980, YES began discounting its receivables to D&O.

D&O would pay YES at the end of each month after the invoice for the month’s services had been prepared. D&O would pay YES an amount in cash equal to 70% of the face value of the invoice. D&O would then submit the invoice to DCFS along with a statement indicating that D&O had purchased the account from YES. At the end of the following month, DCFS would pay D&O by the form of a warrant drawn on the State Treasurer.

From July 1,1981, through December 31,1981, YES performed services and submitted bills for services to DCFS, and was duly paid by DCFS. During January and February of 1982, YES provided services, and D&O subsequently billed DCFS. On February 23, 1982, YES received a warrant in payment of the January foster care invoice. A warrant was turned over to D&O pursuant to the customary procedure. During the morning of February 25, 1982, YES completed preparation of the invoice for foster services provided during February 1982 in the amount of $104,605.76. YES subsequently sold this account to D&O pursuant to the customary procedure, and in return received from D&O approximately $73,000.00. On or about March 1,1982, the office of the State Treasurer refused to honor the previously-issued warrant for January foster care services.

In addition to these contracts, YES was selling to D&O, and billing the Respondent for, services pursuant to a specialized caretaker contract between YES and DCFS. It is alleged by the Claimant that payment for October through February of 1982 under the specialized caretaker contract also remains unpaid.

After the Respondent refused payment on the warrants as previously indicated, D&O filed suit against the State of Illinois and others in the U.S. District Court for the Northern District of Illinois. On December 8, 1982, the State of Illinois was dismissed from said suit, and the Claimant was directed to the Court of Claims.

On February 3, 1983, D&O filed a claim with this Court. No affirmative matter was ever pled by the Respondent prior to November 9, 1987, when this Court granted summary judgment to the Claimant on the issue of liability. A motion to vacate that summary judgment was denied on April 13, 1989. The case was then remanded to a commissioner for a hearing on damages.

At the beginning of the trial on the issue of damages, the Respondent brought up a previously-conducted audit of YES by DCFS. They then sought successfully to introduce this audit into evidence. This was despite the fact that there had never been any pleadings, or any prior claim of set-off, by the Respondent until the hearing began.

Faced with this factual situation, this Court entered an opinion in November 1991 granting judgment in favor of the Claimant in the sum of $215,260.98. The Respondent has subsequently filed a motion to reconsider which claims that the Claimant had been made aware of the issue of set-off on at least one, and probably two, occasions prior to the entry of the order of this Court granting summary judgment on the issue of liability. In addition, the Respondent argues that this Court should be bound by the claim of set-off regardless of how or when that information comes to the Court. We reject this position.

Arguably, the Claimant may not have been surprised by the claim of set-off, but this Court was. The Respondent owes this Court a responsibility to present to it all defenses it is claiming, in order that the Court may consider these prior to attempting to resolve the issues before it.

In addition, the Court is not convinced that we are bound to consider evidence of set-off produced by the Respondent at this late date, considering the total lack of responsive pleadings by the Respondent for the first eight years of this litigation. There may indeed be circumstances which arise in other cases in which the Respondent could bring up a claim of set-off subsequent to the initial determination of liability, but those potential fact situations are non-existent here.

For these reasons, we deny the motion for reconsideration and affirm our earlier opinion granting judgment to the Claimant in the sum of $215,260.98.


author: Holderman, J. Holderman, J. Burke, J.

text:
    (No. 83-CC-1884
    James Dunn, Claimant, v. The State of Illinois, Respondent.

      Order filed November 13, 1984.

      Order filed January 24, 1985.

      Opinion filed October 24, 1991.

    Jerald A. Lavin, Ltd., for Claimant.
    Neil F. Hartigan and Roland W. Burris, Attorneys General (John J. Perconti and Erin M. O’Connell, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Holderman, J.

This matter coming on to be heard upon the motion of the Respondent to dismiss the claim herein, due notice having been given, and the Court being fully advised in the premises, finds:

1. That the notice of injury filed June 4,1982, failed to set forth with any definiteness the location of the alleged defective pavement which caused Claimant’s injuries.

2. That section 22—1 of the Court of Claims Act (Ill. Rev. Stat. 1981, ch. 37, par. 439.22—1) requires that Claimant notify the State of Illinois of any cause of action against it within six months from the date of the occurrence and that said notice state the location of the accident.

3. That section 22—2 of the Court of Claims Act (Ill. Rev. Stat. 1981, ch. 37, par. 439.22—2) states that failure to meet the requirements of the notice statute will forever bar a cause of action against the State.

4. That section 22 of the Court of Claims Act (Ill. Rev. Stat. 1981, ch. 37, par. 439.22) states that all time limitations promulgated in the Court of Claims Act are binding and jurisdictional.

5. That as a matter of law, Claimant’s failure to adequately describe the location of the alleged defect on Interstate 80 constitutes defective notice, in violation of the Court of Claims Act, sections 22—1 and 22—2, and bars Claimant from maintaining an action against the State of Illinois. Reichert v. City of Chicago (1912), 169 Ill. App. 493; Seaton v. State (1966), 25 Ill. Ct. Cl. 291.

ORDER

Holderman, J.

This matter comes before the Court upon motion of Claimant to vacate an order of dismissal entered by this Court on November 13, 1984, and Respondent’s objection to said motion.

The accident in this cause occurred on April 17, 1982. In the notice of injury filed with the Court on June 4, 1982, Claimant described the accident location as follows:

“Interstate 80, near mile marker 26, Atkinson, Illinois.”

Respondent has taken the position that the description given by Claimant does not comply with that portion of the notice statute (Ill. Rev. Stat. 1981, ch. 37, par. 439.22—1) which requires a description of far greater specificity and precision than that which Claimant provided. Respondent calls attention to the fact that the alleged notice does not indicate in which direction Claimant was travelling at the time the accident occurred, whether the defect was on the eastbound or westbound side of Interstate 80, or whether the defect was on the inner or outer lane of travel. Respondent further calls attention to the fact that Claimant’s notice also does not approximate the distance east or west of mile marker 26.

Respondent further sets forth that it has been prejudiced in that it was unable to ascertain the location of the defect with any certainty. Respondent cites section 22—2 of the Court of Claims Act (Ill. Rev. Stat. 1981, ch. 37, par. 439.22—2) which states, in part, as follows:

“If the notice provided for by Section 22—1 is not filed as provided in that Section, any such action commenced against the State of Illinois 800 shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further action in the Court of Claims for such personal injury 8 8 8.”

In Telford v. Board of Trustees of Southern Illinois University, 24 Ill. Ct. Cl. 416, 418, the following language is used by the Court:

“The patent purpose of notice requirements is to afford respondents an opportunity to promptly and intelligently investigate a claim and prepare a defense thereto 8 8 8.”

The required notice must contain, among other things, a description of the location of the accident site so the scene of the occurrence can be investigated by Respondent.

Strict compliance with all the elements contained in the notice requirement does not merely serve as a convenience to Respondent but, more significantly, operates as a condition precedent to the filing of a complaint against the State for personal injury. This was so held in the case of Munch v. State, 25 Ill. Ct. Cl. 313, which also held, in regard to notice requirements “. . . where claimant does not show complete compliance, this Court has no jurisdiction to hear the claim.”

There are a number of other cases to the same effect that have been decided by the Illinois Court of Claims.

In view of the statute and the interpretation of the statute by this Court, it is hereby ordered that motion of Claimant to vacate the Court’s order of dismissal be, and the same is, denied, and the Court’s original order of dismissal is affirmed.

OPINION

Burke, J.

The final hearing on the above-entitled claim was held on June 19, 1991. Jerald A. Lavin appeared on behalf of Claimant, James Dunn. Neil Hartigan, Attorney General, State of Illinois, by Erin O’Connell, Assistant Attorney General, appeared on behalf of the Respondent, State of Illinois.

Claimant, James Dunn, was an employee of the McKeown Transportation Company. On April 17,1982, while driving a tractor/tank trailer, loaded with liquid, Claimant struck a defect or depression in the roadway on Interstate 80, at about mile marker 26, near Atkinson, Illinois. He stated that he just returned to driving this particular route after a one-year layoff and it was his first day back on the route. At the time of the alleged accident, Claimant was proceeding in the westbound lane, furthest to the right at about 50-53 miles per hour in his vehicle’s eighth gear.

At or about mile marker 26 on Highway 80 Claimant hit a defect causing him to sustain an injury to his neck and left side. He proceeded to Davenport, Iowa, which was his destination and where he received medical care. When he returned to his home base in Whiting, Indiana, he received medical treatment from Dr. Gussin and Dr. Slates. He also received treatment at the St. Catherine Hospital and at the Munster Hospital. His treatment consisted of traction, myelogram, TNS unit, a neck collar and physical therapy. He was off work for about one year. His employer’s workers’ compensation insurance company paid his medical bills and temporary total disability for the time he was off work. The insurance carrier also paid him $15,000 which was for his alleged permanency from his injury.

Claimant did not state the nature of the alleged defect. Two co-workers of Claimant, Donald Corey and Steve Stevenson, who regularly traveled the same route testified as to the alleged defect. Witness Corey testified that he once encountered what he considered to be the alleged defect and that he suffered no injuries from it.

Mr. Richard Bussan stated that he was the IDOT maintenance field engineer and was responsible for that portion of 1-80 near mile marker 26. Mr. Bussan stated that, as part of his job, he drove this section of 1-80 at least once a week and that he noticed no defect in the roadway. When shown photographs depicting the areas of the accident, Mr. Bussan testified that he saw no defect or anything that would cause him to send a repair crew to that site.

Charles Klien, who was the IDOT claims investigator assigned to investigate this matter, stated that he drove from mile post 20 to mile post 30 both eastbound and westbound in the passing and driving lanes at approximately 55 miles an hour to determine if he could detect any type of bump or dip or anything of this nature. Mr. Klien was unable to uncover anything that would cause any kind of problem to normal driving. He did not discover any situation in the roadway that he would label as defective or hazardous. When shown photographs depicting the area of the accident, Mr. Bussan testified that he saw no defect or anything in the road that would cause him to send a repair crew to that site.

Claimant’s claim is denied for failure to prove by a preponderance of the evidence that the Respondent was guilty of negligence.

Wherefore, it is hereby ordered that the instant claim is denied.


author: Sommer, J.

text:
    (No. 83-CC-2158
    Israel Ramos, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 24, 1992.

    Robert S. Kosin, Ltd., for Claimant
    Roland W. Burris, Attorney General (Terry Arnold, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

The Claimant, Israel Ramos, seeks compensation for injuries sustained while in a shower room of the Pontiac Correctional Center on January 14,1983.

On the date in question, Mr. Ramos was trying to shut a window in the shower room. The window was old and rusty with wire-reinforced glass. The Claimant testified that, as he attempted to close the window which was stuck, the glass broke and his hand went through the window. He received a 4 to 4M" cut that required 12 stitches to close.

There is no dispute that the Claimant cut his right hand in the shower room. The issue is whether the State of Illinois is liable for the Claimant’s injury. For the Claimant to succeed on his claim, he must establish by a preponderance of the evidence that the Respondent owed the Claimant a duty, that the duty was breached and that said breach was the proximate cause of the Claimant’s injury. McCoy v. State (1985), 37 Ill. Ct. Cl. 182.

The State owes a duty to prison inmates to provide reasonably safe conditions. (Reddock v. State (1978), 32 Ill. Ct. Cl. 611.) Where a window is available to be opened and shut by inmates, the State’s duty would be to provide a window that would be safely operable with reasonable use. The State provided a window with wire reinforced glass, as is often found in institutions and public buildings. We do find that when the window mechanism would not operate due to rust and age, the State could anticipate efforts would be made, nonetheless, by inmates to close the window in light of the January air coming in. Thus, the State breached its duty to have a safely operable window.

The Claimant testified that various people were present in and around the shower room at the time of the injury, but neither party has introduced testimony from these potential witnesses. By agreement, the State introduced the Claimant’s psychiatric record, but there is no evidence either by expert testimony or direct witnesses as to the Claimant’s attitude or probable attitude at the time of the injury. Therefore, this Court will make no finding based on the psychiatric record.

We do find that the Claimant used unreasonable or excessive force to try to close the window. Evidence of such force is that the Claimant put his hand through the wire mesh window. We do not believe that expert testimony or demonstrations are required in this claim to establish the fact that it takes substantial force for a person to put his hand through a wire mesh window. Rather, such is a fact of common experience and we will judicially recognize it. We find that the force used by the Claimant was 50% of the proximate cause of the injury and the condition of the window was 50% of the proximate cause of the injury. Therefore, any award shall be adjusted accordingly.

The Claimant’s medical treatment was provided by the State. The Claimant did have pain and suffering at the time of the injury and during the recovery and he has the resultant scar on his arm. The Claimant testified that he still has numbness in the area of the injury. There was no expert medical testimony introduced by the Claimant as to any permanent disability or .loss of use. We find that the Claimant has not proven any substantial permanent injury, but did have pain and suffering and a scar.

We, therefore, find damages to the Claimant in the sum of $1,500.00, which amount shall be reduced due to the Claimant’s negligence to $750.00. We award the Claimant $750.00 in full and complete satisfaction of the damages caused by his injury.


text:
    (No. 84-CC-0396
    William Smith, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 29, 1991.

    Charles R. Winkler, Ltd., for Claimant.
    Roland W. Burris, Attorney General (Daniel Brennan, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

On December 17, 1982, Claimant, William Smith, was an inmate at Pontiac Correctional Center. He was quartered in the West House, 3 Gallery, Cell #331. In that section, the inmates stay in their cells all day except for meals.

At approximately 4:00 p.m., the cell doors on 3 Gallery were opened, allowing the inmates to go to their evening meal. As Claimant exited his cell, he was attacked, stabbed and beaten by three men wearing ski masks. The identity of these masked inmates was never determined.

Claimant received five stab wounds, which left five scars. The medical bills and medical records, as well as the photographs of the scars from the five stab wounds, were entered into evidence without objection.

The deposition of Joseph Kuntz, a correctional sergeant at Pontiac Correctional Center, was admitted into evidence. He stated that he was told there was going to be “trouble” on 3 Gallery on December 17, 1982. Additionally, Sergeant Kuntz told Brad Adams, a prison guard, to keep an eye on 3 Gallery. Officer Brad Adams testified that he knew that there had been a rash of stabbings and consequently knew what type of trouble to expect. Respondent had constructive notice of a possible attack. Sergeant Kuntz stated that prior to the stabbing of Claimant Smith, there had been a fairly high number of assaults inside Pontiac Prison. Officer Adams stated that there was a rash of 7 to 15 stabbings within a three-week period prior to Claimant being stabbed and virtually all victims were white.

The prison officials of Pontiac were constructively apprised of the risk of harm to all the prisoners on 3 Gallery and it was virtually certain that the victim would be white. There were only three white inmates out of 88 inmates on 3 Gallery. The prison officials should have known that the victim would be one of the three white inmates.

The Respondent failed to take measures to protect the Claimant and consequently failed in its duty to provide Claimant Smith with reasonable care in protecting him from harm. At the time Claimant Smith was stabbed, there was only one guard on 3 Gallery and one guard in the tower. There were no additional personnel working in that unit though the prison officers knew there was going to be trouble.

The Respondent failed to provide additional guards to work 3 Gallery, and they took no reasonable measures to provide for the safety of the Claimant on the day he was stabbed. The State failed in its duty to use reasonable care to protect Claimant Smith from harm when they had actual and constmctive notice of the trouble that was to occur. The Claimant, William Smith, suffered damages in being stabbed five times and has been left with scars of a permanent nature.

Wherefore, it is hereby ordered that Claimant is awarded the amount of $4,500.00 in full and complete satisfaction of this claim.