author: Raucci, J. Jann, J.

text:
    (No. 89-CC-0782
    First of America Bank a/k/a United Bank of Illinois, Claimant, v. The State of Illinois; Illinois Farm Development Authority, Respondents.

      Order for summary judgment filed March 24, 1992.

      Opinion filed May 6, 1996.

    Hinshaw, Culbertson, Moelmann, Hoban & Fuller (George Gillespie, of counsel), for Claimant.
    Jim Ryan, Attorney General (Karen McNaught, Assistant Attorney General, of counsel), for Respondents.
   ORDER

Raucci, J.

This cause coming on to be heard on Claimants motion for summary judgment, the Court having heard oral argument, finds that at the oral argument, the Respondent sought to file a written response. Because we previously had granted four extensions of time to file a response, we denied leave to file the belated response, but we did allow Respondent leave to file the affidavit of Donald K. Cochran, the current director of the Illinois Farm Development Authority (IFDA). Claimant has moved to strike that affidavit.

The affidavit will be stricken.

The affidavit is deficient in many respects. The affidavit is conclusory, does not identify the documents upon which the affiants opinions are based, does not attach any documents, concludes that Claimant violated section 11.01 of the Tri-Party Agreement while no affirmative defense raising that issue has been pled, and makes assertions about information being “discovered” by IFDA but does not reveal that basis for the discovery or the affiants personal knowledge of it.

We proceed to consider the unrebutted motion for summary judgment. The motion asserts that Respondent IFDA guaranteed a $300,000 loan made by Claimant to Laurence and Carolyn Richardson whereby Respondent agreed to pay Claimant 85% of the outstanding.principal and interest in the event of a default under the loan.

On March 19,1987, Respondent purported to revoke the guarantee under section 7 of the Tri-Party Agreement which, pursuant to section 7.03, became effective 90 days after receipt by Claimant. The Claimant received the notice of revocation on March 24, 1987. Therefore, the effective date of revocation was June 25, 1987.

On April 29, 1987, the Richardsons filed a bankruptcy petition. This constituted an act of default pursuant to section 8.01.

At oral argument, Respondent asserted that the act of default was not complete until the end of the 90-day cure period provided in section 8.01. We need not decide this issue since the State Guarantee provides in pertinent part:

“This State Guarantee is hereby issued to Lender in accordance with all of the terms and conditions of the Tri-Party Agreement, * * *
1. Provided that Lender has complied with all of the provisions of the Tri-Party Agreement, and no condition exists which would allow the Authority to revoke the State Guarantee as provided in Section 7.01(a), (h), or (c) of the Tri-Party Agreement the Authority hereby guarantees the prompt payment, when due, whether by an acceleration or otherwise, of a portion of the Loan * * (Emphasis added.)

The letter of March 19, 1987, notifying the Claimant of the revocation referred only to section 7.01. The letter was signed by Ronald L. Bailey who was then the executive director of IFDA. In his deposition, Mr. Bailey asserted that the violation of subsection (a) was the basis for the notice of revocation.

Thus, the State Guarantee only requires payment if in fact “* * * no condition exists which would allow the Authority to revoke the State Guarantee as provided in Section 7.01(a) * *

We previously denied the Respondents motion for summary judgment because genuine issues of fact exist in this case. Those factual issues still exist.

It is therefore ordered:

1. The affidavit of Donald K. Cochran is stricken.

2. The Claimants motion for summary judgment is denied.

OPINION

Jann, J.

This matter was heard by Commissioner Bruno P. Bernabei on November 19, 1992. Final briefs were not received until March 30, 1994. Oral argument was requested and held before the Court on May 5,1995.

Claimant, United Bank of Illinois, a/k/a First of America Bank (hereinafter referred to as “Bank”), brought this action against Respondent, Illinois Farm Development Authority (hereinafter referred to as “IFDA”), alleging that Respondent breached a contract by revoking a guarantee after determining that Bank had made material misrepresentations on the financial statement submitted in support of the guarantee application.

The Bank alleges that IFDA breached the contract when it revoked the guarantee since the contract did not allow for such revocation; that the written notice of revocation was defective and that the IFDA improperly refused to pay the guarantee after the occurrence of a bankruptcy by the borrowers.

In its defense, the IFDA has asserted that because Claimant fraudulently induced it into making the guarantee, the contract is void; that the guarantee could be revoked if the collateral was insufficient and that the revocation of the guarantee became effective prior to Claimant's demand for payment.

Laurence and Carolyn Richardson, who were engaged in farming, had been customers of the Bank for many years prior to 1985. Ken May, executive vice-president of the bank, testified that he served the Richardsons on many agri-business loans for many years and that he was familiar with the farm equipment purchased and owned by them, as well as farm equipment owned by John Richardson, son of Laurence Richardson.

In late 1985, the IFDA announced the State guarantee program for restructuring agriculture debt and started a program to target farmers who were in distress, but not so in debt that they could not recover financially. To be eligible for the guarantee, the debt-to-asset ratio of the borrower was required to be between 40 percent and 65 percent. To receive an 85 percent State guarantee on a loan, a lender such as the Bank, would promise to lend the borrower money at a reduced rate of interest. In consideration of the promises made by borrower and lender, the IFDA agreed that the lender would be guaranteed 85 percent of the loan plus accrued interest if the borrower defaulted.

The Richardsons, through the Bank, made an application to IFDA for a State-guaranteed loan, which application was among the first to be processed in 1986. The application was submitted to IFDA on February 10, 1986, and was accompanied by a letter from Ken May pledging that the Bank would continue to provide the Richardsons with a line of credit so that they could sustain their hog raising operation and further that the Bank was setting up a “special savings account" to insure timely payments. The letter further stated that the borrowers had been long-time customers of the Bank and that the writer was familiar with the Richardson operation and further that the Bank was interested in the Richardson farm operation and was willing to cooperate with the borrowers. There is no question that the Bank was aware that the IFDA could and would rely upon the truthfulness, accuracy and completeness of all documents submitted to it by the borrower or by the lender.

The first application from the Richardsons exceeded the 65. percent debt-to-asset ratio and thereafter, on March 13, 1986, another application was submitted by the Bank with a debt-to-asset ratio of 64.996764 percent, barely within the limits prescribed by the IFDA guidelines. Ken May, the Banks executive vice-president, assisted the borrowers in preparation of the loan application, made representations that the financial statements were true and correct and surely intended that the IFDA rely upon said representations.

In the first financial statement submitted to the IFDA on or about February 10, 1986, the borrowers and the Bank did not list a one-half interest in a home owned by Richardson’s parents. Mr. May made a copy of an unrecorded copy of a deed of the parents’ home purporting to convey an interest to the borrower and submitted said copy with the second application to IFDA on or about March 13, 1986. The testimony was that Mr. May submitted the copy of the deed, even though he was told that the deed had been destroyed within one week following February 25, 1986. Although the Richardsons told Mr. May they did not have an interest in the parents’ home, the Bank did nothing to advise the IFDA of this important fact until March 10, 1987, more than one (1) year after the Bank and the borrower had listed the interest on the financial statement. There is no question that the interest shown on the financial statement played a part in inducing IFDA to guarantee the $300,000 loan.

At oral argument, the Bank’s counsel argued that Mr. May was not aware of the purported one-half interest in the home until so advised in a financial statement dated December 1, 1986, from the M & I Bank in Beloit, Wisconsin, and that Mr. May did disclose this interest in a timely manner. Counsel argued that contrary statements made by Mr. Richardson were motivated by revenge as a result of his bankruptcy.

Mr. May also suggested to the borrower that since he had co-signed a loan with his son, and eventually paid for certain equipment, he could list the sons equipment on the financial statement being submitted. It was testified to that at least eight (8) items of equipment belonging to the son were listed on the borrowers’ application for the IFDA guarantee.

At oral argument, Claimant’s counsel alleged that the Bank had taken blank U.C.C. statements on equipment from both the father and son and that the assets were not specifically identified until the senior Richardson’s bankruptcy.

Prior to the IFDA application, the Richardsons had transacted business with the Bank and dealt with Ken May for many years. Mr. May made hundreds of loans to the Richardsons over the course of their business relationship and when the Richardsons initially set up their hog operation and were in need of short term loans, the Richardsons would see May at least once or twice a month.

Mr. May testified that he sent a cover letter with the application under date of February 7, 1986, stating that the Bank would provide the borrowers with a line of credit so that they could be able to repay IFDA. The guaranteed loan was approved May 1, 1986, and the Bank made one more loan to the Richardsons on May 14,1986, but did not make any more loans thereafter and cut off the line of credit to the borrowers. The Bank did not tell IFDA until December 10, 1986, that the borrowers line of credit had been revoked. In fact, the line of credit was cut off during the period between 14 days and 35 days after the loan had been guaranteed. At no time did the Bank notify IFDA that the special savings account, as represented, had not been set up. The net result of the revocation of the line of credit and the failure to set up the special savings account was a negative cash flow and the lack of available funds for loan payments, thus preventing continuation of the farm operation.

Although the Bank had concerns about the Richard-sons’ farming operation in June of 1986, being a mere 35 days after the commitment was given to guarantee the loan, Claimant did not deem it proper to inform IFDA about the money problems until December 10, 1986, or possibly as late as January 14, 1987. It is important to note that when Mr. May contacted IFDA, he did not inform them of the line of credit revocation or the failure to set up the special account which it had promised to do.

Although IFDA revoked the guarantee of the loan on or about March 19, 1987, Claimant did not give notice of the default until June 26, 1987.

The issue before the Court is whether sufficient and credible evidence was introduced to sustain Respondent’s position that IFDA was induced to guarantee the loan to the borrower through fraudulent misrepresentation and that, therefore, the guarantee of the loan was void.

As set out in Respondent’s brief, to constitute fraud warranting a court of equity to rescind a contract, a misrepresentation must be in the form of a statement of material fact, made to induce another party to act; it must be false and known by the party making it to be false or not actually believed by him on reasonable grounds to be true; and the one to whom the misrepresentation is made must be ignorant of the falsity, must reasonably believe the falsity to be true, must act thereupon to his damage and, in so acting, must rely upon the truth of the statement. Wilkinson v. Appleton (1963), 28 Ill. 2d 184, 187, 190 N.E.2d 727, 729-30; Roda v. Berko (1948), 401 Ill. 336, 339-40, 81 N.E.2d 912, 924.

Fraud in itself is an absolute defense which can be asserted by the State of Illinois in the Court of Claims. (See Metal Air Corp. v. State (1977), 32 Ill. Ct. Cl. 103.) “Whenever any fraud against the State of Illinois is practiced or attempted by any Claimant in the proof, statement, establishment, or allowance of any claim or any part of any claim, the claim or part thereof shall be forever barred from prosecution in the court.” 705 ILCS 505/14.

There is no dispute that fraud perpetrated by a Claimant will bar a claim, and the State has the burden of proving such a defense by clear and convincing evidence.

In the instant case, the IFDA relied upon the misinformation given to it by the Bank, through Ken May and Laurence Richardson.

Evidence of fraud by Bank and borrower reared its ugly head a number of times. It must be remembered that Mr. May assisted in preparing the loan application and prepared the balance sheet and other documents which listed a one-half interest in the home hereinabove mentioned. The unrecorded deed to the home was destroyed and it appears Mr. May was so advised, but nevertheless, the non-existent interest was never removed from the loan application which was forwarded to IFDA and which was approved on May 1, 1986. In addition to the non-existent interest in the real estate, Mr. May listed a number of items of farm equipment on the loan application that did not belong to the borrowers but, in fact, were items owned by John Richardson. Mr. May had been a loan officer and had transacted business with the borrower over many years and had also made a number of loans to John Richardson who had given the Bank a security interest on equipment owned by him but which was actually listed on the borrowers list of farm equipment. By his own testimony, Mr. May stated that he was familiar with the equipment owned by each of the Richardsons.

Claimants counsel asserted that no inference of fraud may be made if there was laxity by a bank vice-president in monitoring a loan. After oral argument, Claimant submitted a copy of Brazell v. First National Bank and Trust Co. of Rockford (7th Cir. 1992), 982 F.2d 206. In this case, guarantors of an auto dealers floor plan loan brought a fraud action against the bank for breach of contract. The bank counterclaimed, seeldng to enforce the guarantors guarantee of the dealership’s debt to the bank. Judgment was entered against the bank on the jury’s finding of fraud and rejection of the counterclaim. Appeal was taken and the court found there had been no evidence that the bank made any representations to the Brazells to induce them to issue the guarantee. The Brazells’ case was based primarily on the bank’s negligence in monitoring the collateral, i.e., the floor plan for the dealership. The court found, “Carelessness by itself, however, cannot support an inference of fraud. Otherwise the tort of fraud would be little if anything more than a special case of the tort of negligence.” Brazell at 207-208.

In what seems to be an attempt by the Claimant loan officer to transform a bad loan into a good loan, Mr. May made, what is without question, material misrepresentations to IFDA. This was done in order to secure a guaranteed loan for the customer, thus saving the Bank a substantial loss.

In his testimony, Laurence Richardson admitted that he provided false information to IFDA because he was in a desperate position and believed his banker when he was told that his line of credit would be cut off. His testimony implicated Mr. May in the scheme and sequence of events undertaken by the Bank and the borrower. We find the evidence is clear and convincing that the Claimant Bank intended for IFDA to rely upon the misrepresentation concerning the borrowers interest in the real estate, the listing of equipment not owned by the borrower, as well as the failure to establish the special savings account from the sale of hogs to insure loan payments. This constitutes fraud.

Because of the fraud and misrepresentation as hereinbefore noted by Claimant as well as the borrower, the claim for damages in the amount of $167,802.30 is denied.


source: Caselaw Access Project

author: Patchett, J.

license: Public Domain

text:
    (No. 89-CC-1550
    Clement Lee, Claimant, v. Board of Governors of State Colleges and Universities for Chicago State University, Respondent.

      Opinion filed August 22, 1995.

    Charles E. Lindell, for Claimant.
    Dunn, Boebel, Ulbrich, Morel & Hundman (David S. Dunn, of counsel), for Respondent.
   OPINION

Patchett, J.

This is a negligence claim seeking recovery for injuries suffered as a result of the collapse of a chair located at the Respondents library. On May 31, 1988, the Claimant, Clement Lee, who was employed as a computer operator for the Board of Governors, left her office and went to the Chicago State University Libraiy. She went there to enroll in a swimming class, and she was accompanied by a friend, Aljean Richardson. Upon arrival at the library, Lee obtained an enrollment form from a university employee. She was directed to proceed to another room to complete the form. The room was filled with chairs and desks. Lee sat in one of the available chairs. Prior to sitting in the chair, she did not notice anything unusual about it. After sitting in the chair for approximately one minute, the chair collapsed. As a result of tire chair’s collapse, Lee fell to the floor. She injured her left foot, left ankle, head, neck and lower back. As she was laying on the floor, she observed that the broken leg of the chair had previously been taped with black tape.

The paramedics were called to the library, and Lee was transported to the South Chicago Community Hospital. At the emergency room, she complained of headache, back, ankle and neck pain. She was prescribed pain medication and x-rays were taken. She was admitted to the hospital and remained there until her discharge on June 2, 1988. During her stay in the hospital she was given physical therapy and traction. Heat packs were applied to her back, and pain medication was utilized.

Following her June 2, 1988, discharge from the hospital, Lee did not return to work until August 9, 1988. She testified that her rate of pay at the time of the accident was $1,275.42 per month. Therefore, she has a total lost wage claim of $2,942. Lees medical expenses were as follows: Dr. Samowitz $85, Dr. Egwele $335, Dr. Patel $225 and the hospital $1,378.06, for a total of $2,023.06.

Lees friend, Aljean Richardson, testified at the trial of this matter that she was with Lee at the time of the accident. Her testimony was consistent with, and confirmed the details of, Lees version of the chairs collapse. The parties stipulated to the evidence of Dr. Howard Patel, Dean of Continuing Legal Education at Chicago State University. Via the stipulation, his testimony was that prior to the incident in question, the chair had been taken out of service for repair. The chair was set up in the hallway and turned upside down awaiting repair. No evidence was produced by either party as to how the chair was returned to service prior to the collapse.

Lees treating physicians testified via evidence depositions. Dr. Patel, a specialist in internal medicine, testified that he examined Lee at the emergency room and observed swelling of the left ankle and left elbow, a cerebral concussion from head trauma, and trauma to the lumbosacral spine and cervical spine, left ankle, and left elbow. Dr. Patel prescribed bed rest, pain medication, heating pad, and physical therapy. Dr. Richard Egwele, an orthopedic surgeon, testified that he treated the Claimant on June 1, 1988. -He diagnosed a sprained left anide, lower back strain, and observed some scratches on her right arm. Dr. Egwele prescribed heat applications, traction, and medication.

After her release from the hospital, Lee returned to Dr. Egwele for five visits. The doctor observed gradual improvement of the condition. He allowed her to return to work on light duty on August 8,1988.

At the trial of this case, Lee testified she continues to experience pain in her lower back. She further testified the injury has caused her to be unable to participate in bowling and golf, her former hobbies. However, she does manage to perform daily household tasks.

It is clear that the State is not an insurer of the safety of the persons visiting its buildings. However, the State owes a duty of reasonable care in maintaining the premises. (Berger v. Board of Trustees of the University of Illinois (1988), 40 Ill. Ct. Cl. 120, 124.) The Claimant bears the burden of establishing by a preponderance of the evidence that the State breached its duty of reasonable care, that the breach proximately caused the injury, and that the State had actual and constructive notice of the dangerous condition. Secor v. State (1991), 44 Ill. Ct. Cl. 215, 217.

In this case there is no question the State had actual notice of the defective condition of the chair. As indicated earlier, the facts do not establish how, when, or by whom the chair was returned to service. However, the Claimant had a reasonable expectation that when she used the chair, it would be in a safe condition. The Respondents failure to remove the broken chair from the premises constituted a breach of duty of reasonable care owed to the Claimant. That breach was clearly the proximate cause of the injuries suffered by Lee.

As previously indicated, Lee lost $2,942 in lost wages and medical expenses of $2,023. She clearly established, in addition, a claim for pain and suffering and some permanency of injury.

We hereby award the Claimant ten thousand dollars ($10,000).


author: Patci-iett, J. Patchett, J.

text:
    (No. 89-CC-2491
    Mark Alsobrook, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 10, 1995.

      Order for motion for reconsideration filed November 1, 1995.

    Barclay, Damisch & Sinson (Mark Damisch, of counsel), for Claimant.
    Jim Ryan, Attorney General (Daniel Fitzgerald, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patci-iett, J.

The Claimant, Mark Alsobrook, filed this claim as a result of a motorcycle accident which occurred on July 14, 1988. Mr. Alsobrook had been riding motorcycles for 15 years. He had purchased a 1980 Suzuki approximately four months before the accident. The accident occurred at 8:00 p.m. on Interstate 290, approximately one-half mile north of Biesterfield Road. He and a friend of his, Steve Widdle, were both headed south on Interstate 290.

At that location, there were three lanes of southbound traffic. Widdle was riding ahead of Alsobrook and was on the in-ramp to get onto the interstate. There was a slow-moving car on the ramp ahead of Widdle. Widdle and Alsobrook changed lanes to pass this car and then moved from the far right-hand lane to the middle lane. This took one to two seconds. Alsobrook described the roadway at this point as “rough.” As Alsobrook was in the middle lane behind Widdle, he struck a rut and lost control of his motorcycle. Widdle s motorcycle at the time was 30 to 80 feet in front of Alsobrook, but on the right side of the lane. Alsobrook states that he was doing 55 mph at the time of the accident.

Alsobrook stated that he struck the ruts one second after seeing them. His motorcycle traveled 50 to 80 feet during that time. He could not turn left because of traffic. He stated that the first rut grabbed the front tire and yanked it to the left. The second rut yanked the motorcycle out of his hand. Alsobrook submitted photographs of the area which show extremely long and narrow broken concrete with some degree of ruts. These photographs were taken three weeks after the accident while Also-brook was present.

A State trooper, Officer Wagner, was called as a witness by Alsobrook. He testified that the pavement was separated by a dropoff of one to two inches. He further testified that a scruff mark originated in the lane closest to the median and traveled approximately 100 feet to where the motorcycle came to rest. The trooper stated that a scruff mark is a tire mark made by a tire rolling sideways as opposed to skid mark caused by braking action.

Widdle testified for Alsobrook. He testified that he was riding his motorcycle in front of Alsobrook at a speed of 55 mph. He testified that Alsobrook hit the rut in the center lane, and that Alsobrooks pictures were an accurate description of the rut that he hit. Widdle further testified that Alsobrook was 50 to 100 feet behind him, and he went over the handlebars after the motorcycle went sideways. He stated that Alsobrook ended up on the shoulder of the road.

It appears that the Claimant has proved by a preponderance of the evidence that the ruts identified in the photographs were indeed the cause of the accident in question. They were both the actual cause and the proximate cause. The State obviously has no duty to be an insurer of its highways, but does have a duty to keep the highways reasonably safe for the purposes for which they were intended. These purposes include the riding of motorcycles.

The Claimant, however, must prove either actual or constructive notice of the defect by the State of Illinois in order to be able to recover. (Berger v. State (1988), 40 Ill. Ct. Cl. 120.) Actual notice has not been proven.

Constructive notice, therefore, is the ultimate issue in this case, as it is in many highway defect cases. It always creates a difficult burden for a Claimant to meet. Unlike weather-related cases, it is difficult to prove by circumstantial evidence that the State indeed had notice of the defect.

The two general methods for proving constructive notice of a defect are the length of time that the defect has existed and/or the defect being so obvious that constructive notice could be imputed by the nature of the defect itself.

In this case, based on the facts presented, this is a veiy close question. It was impossible for the Claimant to prove the length of time that the defect existed due to the lack of records available to him with which to do so, and the fact that it was not a weather-related defect.

We therefore turn to the nature of the defect in question. Widdle s testimony confirms Alsobrook’s testimony that the photographs accurately depict the ruts which caused the accident. The State has produced no evidence to directly contradict this. A close review of the ruts in question indicate from the nature and extent of the rut, that we can impute constructive notice of the rut in question to the State. While it is possible, and probably likely that large trucks do cause traumatic potholes by striking patches in the pavement, it is extremely unlikely that the long, narrow defects in the concrete in this case were caused by one or two vehicles over a short period of time. Therefore, we find that the State had constructive notice of this particular defect. If this defect were significantly different, or even moderately different, then we might, and probably would, reach a different result.

As a result of this injuiy, Alsobrook was seriously injured. His total medical bills were $15,200, and he had lost wages of $4,680. In addition, the evidence was uncontradicted that Alsobrook suffered significant pain and suffering, scarring, short term memory loss, and restrictions as to his physical abilities which he did not have prior to the accident.

There was no direct evidence presented to the Court of contributory or comparative fault; however, the Court has carefully reviewed the testimony of Alsobrook as to his actions immediately prior to leaving the motorcycle. We believe there is some degree of comparative fault.

We find liability on the part of the Respondent and establish damages in the amount of one hundred twenty-five thousand dollars ($125,000). We find Alsobrook to be forty percent (40%) at fault, and we reduce the damages by fifty thousand dollars ($50,000) and award the Claimant the amount of seventy-five thousand dollars ($75,000).

ORDER

Patchett, J.

This cause comes before the Court upon the motion for reconsideration filed by the Respondent.

The Court has carefully considered the motion for reconsideration. However, there is nothing alleged in the motion which convinces the Court that its initial determination of the facts or application of the law was in error.

Therefore, the motion for reconsideration is denied.


author: Frederick, J. Frederick, J.

text:
    (No. 89-CC-3009
    Jean Simioni, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 30, 1993.

      Opinion filed April 12, 1996.

    Matthew J. Berardi, for Claimant.
    Jim Ryan, Attorney General (Kenneth Levinson, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant filed her claim for death benefits under the Law Enforcement Officers, Civil Defense Workers, Civil Air Patrol Members, Paramedics and Firemen Compensation Act on March 24, 1989. On April 19, 1989, the Attorney General filed his report which indicated the Attorney General was unable to determine whether or not the death of Lt. Simioni meets the statutory requisite of being “killed in the line of duty.” On July 7, 1989, the cause was assigned to a Commissioner with directions to hold a hearing so the Court could determine whether the decedent was killed in the line of duty. The cause was set for trial before Commissioner Michael Kane. In lieu of presenting evidence, Claimant filed a memorandum of law in support of petitioners claim.

On February 5, 1989, Aldo Simioni, a Chicago fireman, had a heart attack at about 7:00 a.m. During the 24 hours preceding his attack, he had been on at least two emergency calls. However, no evidence was presented as to the calls or as to decedents involvement in the calls. Also included in the file is the medical examiners certificate which states decedents death was caused by acute myocardial infarction of hours duration and which also indicated that the underlying cause of the infarction was arterial hypertension of years duration.

An award may be granted under the Act if it is shown that a fireman was killed in the line of duty as defined by the Act. The Act provides, in relevant part, that “Killed in the line of duty means losing one’s life as a result of injury received in the active performance of duties as a 4 4 * fireman, if the death occurs within one year from the date the injury was received and if that injury arises from violence or other accidental cause.”

The Claimant has the burden of proving her claim by a preponderance of the evidence. (In re Application of Schaffer (1989), 42 Ill. Ct. Cl. 218.) This Court could not make a determination on July 7, 1989, as to whether decedent was killed in the line of duty based on the Attorney General’s report. After the requested hearing, we have no new evidence upon which to make a decision. The hearing was the time for Claimant to present evidence and prove her case. While we sympathize with Claimant, we regretfully must find, that based on the foregoing, Lieutenant Aldo Simioni was not “killed in the line of duty” as is required by the Act. (Ill. Rev. Stat. 1985, ch. 48, par. 282.) for an award to be granted, since it has not been proven by a preponderance of the evidence that his unfortunate death resulted from his duties as a fireman.

Wherefore, it is hereby ordered that this claim be denied.

OPINION

Frederick, J.

Claimant, Jean Simioni, filed her claim pursuant to the Law Enforcement Officers and Firemen Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 281 et seq.) on April 19, 1989. Claimant is the surviving spouse of Lieutenant Aldo Simioni who died on February 5, 1989. Lieutenant Simioni was a firefighter for the city of Chicago. Claimant was designated by the decedent to be the sole beneficiary of any benefits payable under the Law Enforcement Officers and Firemen Compensation Act pursuant to a designation of beneficiary form filed with the Court.

Michael J. Garritz, the supervising officer of the decedent, reports that Lieutenant Simioni had been on duty for approximately 23 hours and had responded to emergency calls during that time. Claimant collapsed and died at the fire station. The medical examiners certificate of death states that the decedent died at Swedish Covenant Hospital on Februaiy 5, 1989. The immediate cause of death is recorded as acute myocardial infarction of hours duration. The underlying condition which gave rise to the immediate cause of death is described as arterial hypertension of years duration. There is nothing in the circumstances of Lieutenant Simionis death to indicate that his death was caused by willful misconduct or intoxication.

On July 7, 1989, the Court entered an order requiring a hearing to determine if the decedent was “tilled in the line of duty” as defined in the Act. The issue of whether a person was tilled in the line of duty where the cause of death is a heart attack is perhaps the most difficult issue to be decided by the Court.

The trial was held before Commissioner Michael Kane on July 10, 1995. The evidence indicates that Lieutenant Simioni reported to work on February 4,1989. He did respond to fires on February 4, 1989. In the 23 hours preceding his death, Lieutenant Simioni did make emergency calls in which the firemen in Battalion 89 were under stress and tension. In addition, the decedent had a long-standing history of hypertension which had been controlled with medication. The decedent took his job very seriously as he was a supervisor and responsible for the lives of his firefighters. The night prior to his death, he had been out at a fire and not feeling very well. The decedent, the next morning, was found dead at the firehouse. Additionally, an evidence deposition of Dr. V. R. Kuchi-Pudi was taken on September 12, 1995, and submitted into evidence. Dr. Kuchi-Pudi is an internist. He reviewed the medical records and was of the opinion that the stress of Lieutenant Simionis job, combined with the fact that he had been exposed to carbon monoxide during the 23 hours prior to his death, caused the decedent’s death.

This is a very close case. “Killed in the line of duty” as defined in the Act is “losing one’s life as a result of injury received in the active performance of duties as a * * *, fireman # ” if the death occurs within one year from the date the injury was received and if that injury arose from violence or other accidental cause # # In re Application of Ryan (1994), 46 Ill. Ct. Cl. 321, at 322.

In determining whether an officer has been killed in the line of duty when the cause of death was a heart attack, the Court has set standards for the determination of whether the decedent was killed in the line of duty. In those cases where the decedent has been on active duty and has been performing strenuous physical activity at the time of the heart attack, the Court has consistently granted awards. In those cases where the decedent was not performing strenuous activities when the heart attack was suffered, the Court carefully reviews the decedents performance of duties prior to the time of the fatal heart attack to determine if the performance of duties may have precipitated the heart attack. (In re Application of Cardwell (1991), 44 Ill. Ct. Cl. 288.) Based on the evidence presented, and particularly Dr. Kuchi-Pudis testimony regarding carbon monoxide, we find that Lieutenant Simioni was killed in the line of duty. We find that Claimant has, therefore, .met all requirements for an award under the Act.

It is therefore ordered that Claimants claim be and hereby is allowed and Claimant, Jean Simioni, the surviving spouse of Lieutenant Aldo Simioni, is awarded $50,000 pursuant to the Law Enforcement Officers and Firemen Compensation Act, as she is the surviving spouse of a fireman who was killed in the line of duty.


text:
    (No. 89-CC-3348
    Takako Dinges, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 17, 1996.

    John Fisk, for Claimant.
    Jim Ryan, Attorney General (Iain Johnston, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

On April 26, 1987, the Claimant was a passenger in an automobile driven by a Myong Gabardi. The vehicle was headed westbound on Big Timber Road, an east-west highway. The highway intersected with Illinois Route 47, a north-south highway. Both roads were asphalt two-lane highways. Stop signs controlled eastbound and westbound traffic on Big Timber Road at the Route 47 intersection. The intersection is in an area of rural farmland. Big Timber Road was neither a primary nor a heavily traveled road. A traffic count conducted on the road in 1987 showed that less than 900 vehicles traveled westbound on Big Timber Road within a 24-hour period. Maintenance of traffic controls at the intersection was clearly the responsibility of the Illinois Department of Transportation (“IDOT”).

Some time prior to the accident in question, the stop sign controlling westbound traffic for Big Timber Road had been knocked down. As the Gabardi vehicle entered the intersection at approximately 4:05 p.m. on the day of the accident, it was involved in an accident with another vehicle. Duane Johnson, a local resident who traveled the intersection daily, testified that the stop sign had been down at least three days prior to the collision. He did not report his observation to any authorities.

The Illinois Department of Transportation had examined the entire length of Route 47 on February 25 and 26, 1987. They did not note anything unusual regarding the sign in question. On April 2, 1987, sign maintenance crews were in the immediate area of the intersection in question, but they did not notice the downed stop sign. IDOT was first notified of the downed stop sign on April 26,1987, subsequent to the accident.

As a result of the accident, the Claimant was pinned in the automobile and suffered extensive personal injuries. These included a right hip fracture, fractures of the third and fifth right ribs, a lateral clavicle fracture, a right orbital fracture, cuts, bruises, and lacerations. The Claimant was transported to Sherman Hospital where she was admitted and treated for more than one month. Her medical expenses were in excess of $39,000. Her treating physician testified as to the permanence of the injuries and anticipated future medical expenses. In addition, the Claimant testified as to lost wages in excess of $10,000. She had previously settled an action against the driver of the vehicle for $25,000.

The primary issue in this case is whether the Claimants have met their burden of proof that the Respondent had notice of the downed stop sign. This Court has repeatedly held that, while the State does owe a duty of ordinary care in the maintenance of its highways, it is not an insurer of the safety of persons traveling upon them. (Hollis v. State (1981), 35 Ill. Ct. Cl. 86, 88.) A Claimant must establish that the State had actual or constructive notice of a defect involving the highway. (Scroggins v. State (1991), 43 Ill. Ct. Cl. 225, 227.) The mere fact that a defective condition existed is not, in and of itself, sufficient to constitute an act of negligence on behalf of the State. Palmer v. State (1964), 25 Ill. Ct. Cl. 1, 2.

There is no evidence of actual notice in this claim. The State may be charged with constructive notice of a dangerous condition when, from all the circumstances of a case, it is determined that the State should have been aware of the existence of a condition in the exercise of reasonable care and diligence. If the dangerous condition existed for an appreciable length of time, then the State can be charged with negligence in not ascertaining and correcting the situation. Skinner v. State (1975), 31 Ill. Ct. Cl. 45, 49-50.

The factual situation in Skinner was very similar to the one we face herein. Two cars collided at an intersection at which a stop sign was missing at the time of the accident. The Court found that the stop sign had been down for less than two days. The Court ruled that the condition must have existed for a sufficient length of time before the Respondent could be charged with negligence for not ascertaining or correcting the condition. The Court concluded in Skinner that two days was an insufficient amount of time to start to charge the State with constructive notice.

It is always difficult to apply such a subjective standard. However, it is clear that the precedent set by this Court is that before the State can be charged with constructive notice, it must be proven that the sign was down for a sufficient amount of time, considering the locale, the amount of traffic involved, and the nature of the roads involved for the State to be liable.

In this case, the Claimant has simply failed to meet her burden of proof that the State should have known of the missing stop sign by exercising ordinary due diligence. Therefore, we must deny this claim.


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    (No. 89-CC-3369
    Jeffrey C. Olson and Monica K. Olson, Claimants, v. The State of Illinois, Respondent.

      Opinion filed June 9, 1995.

      Order on petition for rehearing filed September 29, 1995.

    Zamparo & Goldstein (Roger Zamparo, of counsel), for Claimants.
    Jim Ryan, Attorney General (Paul Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This case comes before the Court on a two-count complaint sounding in tort filed by Claimants, Jeffrey C. Olson and Monica K. Olson, against the Respondent, State of Illinois. Count I of the complaint seeks $1,000,000 for severe and permanent injuries suffered by Jeffrey Olson. The Claimants allege that Respondents employees plowed a large amount of snow into the median at the intersection of Route 132 (also referred to as “Grand Avenue”) and Oakwood Drive in Warren Township, Lake County, Illinois. They also allege that on January 3, 1988, at 6:20 p.m., Jeffrey Olson was operating his motor vehicle in an easterly direction on Route 132 approaching Oakwood Drive. When he attempted to turn north onto Oakwood Drive, a vehicle proceeding west on Route 132 struck his vehicle. Mr. Olson complains that the large mound of snow at the intersection completely obstructed all lines of vision and Respondent was negligent for creating an unsafe condition or for allowing that condition to remain.

Count II of the complaint prays for judgment in the sum of $200,000 for Monica Olson for the deprivation of Mr. Olsons affection, society, companionship and consortium. A bill of particulars itemizes $95,130.16 in medical and hospital expenses incurred by Jeffrey Olson.

The Respondents affirmative defenses are:

Jeffrey Olson failed to keep a proper lookout and failed to take appropriate action and therefore was more than 50% of the proximate cause of his injuries;

If contributory fault is less than 50% of the proximate cause, damages should be diminished proportionately;

Monica Olsons loss of consortium claim is derivative and should be acted upon consistently in relation to the first and second affirmative defense; and

Any award should be offset. The Department of Public Aid certified that direct medical payments in the sum of $18,888.85 were paid on behalf of Jeffrey Olson between January 4, 1988, through August 1, 1988.

Each party presented an expert witness and challenged the qualifications and testimony of the opposing party’s expert witness. Paul Box was qualified as an expert to testify on behalf of Claimants. Roger Barrette was Respondent’s expert. Mr. Barrett’s testimony was limited pursuant to an order in limine entered by the Commissioner.

The Evidence

Claimants’ Case

Claimant, Jeffrey C. Olson, testified that he resided at 18525 Geier Road, Gurnee, Illinois, that he was 42 years of age and had been married to Claimant, Monica K. Olson, for 13 years. He had four children, ages 9 through 15. He had been unemployed for three years. After the accident he worked for SPI in Lake Bluff as a pipefitter for insulation. He could not handle the work because of his injuries and only worked there for three months. He could not lift or bend.

On January 3,1988, he was traveling home from McDonald’s when he was involved in a motor vehicle accident at the intersection of Oakwood and Grand (Route 132). He was driving a Vista Cruiser station wagon on Grand in an easterly direction, approaching Oakwood Drive. As he approached Oakwood, he pulled into the left-hand turn lane and stopped. The turn lane was clear of snow, but across the intersection was a mound of snow that was higher than his automobile.

At the time he entered the left-turn lane and made his first stop, he was facing east and could not see traffic westbound on Route 132. After he stopped at the end of the median and looked, he inched forward approximately ten feet. He still couldn’t see a thing so he turned a little more and inched up a third time, started turning north for a few feet, stopped, and could not see. After stopping a third time, he still could not see so he inched forward a few more feet in a northerly direction. The fourth time he moved forward is when he got hit, according to Claimant.

Claimant does not recall being hit and the first thing he remembers is waking up at Condell Memorial Hospital. Claimant was informed that he had a broken neck and was being placed in a helicopter for transport to Milwaukee Hospital. He had vague recollections of his first three weeks in the hospital. He initially could not sit or stand and was in pain and he was experiencing a dull ache in his neck and lower back.

Mr. Olson underwent surgery on his neck. Claimant has a scar on the right side of his neck, a scar on the back of his neck, and another scar on his hip. Claimant also has a tracheotomy scar because he went into respiratory arrest. He had a bone taken out of his hip which was fused to one in his neck to replace the bone that was shattered.

Mr. Olson suffered total paralysis for three days. He was a patient at Froedent Hospital in Milwaukee from January 4 to February 16, 1988. When he was discharged, he had difficulty walking and had an intravenous feeding tube until late May, 1988.

Mr. Olson received occupational, physical and speech therapy for approximately one year. He testified he could not swallow until late May.

Because of the accident, he cannot help his wife around the house and cannot do anything with his children. He cannot bend down to pick anything up and cannot run, skip, hop, jump or climb. He was diagnosed as being permanently disabled and he is receiving social security (disability) and a VA disability pension.

On cross-examination, Mr. Olson testified that he was unemployed for three and one-half months prior to the accident.

Mr. Olson further testified on cross-examination that on January 3, 1988, the roadway was clear of snow and that, while traveling to McDonald’s from his house, he had a good view of the snow mound and thought it to be six or seven feet high.

When Mr. Olson entered the left-turn lane, he testified he was going about 10 to 15 miles per hour and came to a complete stop at the end of the median. He was stopped for 30 seconds while he looked north on Oak-wood Drive and east on Grand Avenue. He then pulled forward about ten feet and stopped for 30 seconds to one minute. He inched forward two or three feet and stopped for approximately 30 seconds. While he was stopped, he looked north and east. While stopped at the intersection for a minute and a half to two minutes, he observed cars proceeding west on Grand Avenue but did not see any cars proceeding south on Oakwood Drive. After the third stop, he inched forward and got hit. At the intersection, westbound Route 132 is two lanes of through traffic and a left-turn lane and right-turn lane. The front end of his car was in the inside through lane (referred to as “fast lane”) of westbound Route 132 when it was hit. He started his turn from his third stopped position. Although stating that the front of his car was hit, Mr. Olson admitted that the whole right side of his car was damaged. He never saw the car that hit him.

James Klafeta, a 29-year employee and engineer of operations for the Illinois Department of Transportation (“IDOT”), was called as an adverse witness. He was responsible for snow removal on highways. On the date of the accident, he was an operations engineer and was in charge of snow removal.

Mr. Klafeta stated that there is a Snow and Ice Manual containing the rules and regulations regarding snow removal in the district.

Although familiar with the Snow and Ice Manual (“SIM”), Mr. Klafeta was not familiar with Route 132. He did believe IDOT had the responsibility for snow removal on Route 132. He described the basic procedures that IDOT follows in plowing routes similar to Route 132. Normally, IDOT wants all snow pushed to the right. Although there might be circumstances when snow is plowed onto a median, it would depend on the size and type of the median, but normally snow is not plowed onto medians.

Piles of snow on the pavement create a hazard for the public and are undesirable according to the SIM as snow piles can cause sight obstructions. In the event IDOT personnel were aware of a snow pile, SIM required that the pavement would be cleared by pushing the snow to the right-hand shoulder with a plow.

On cross-examination, Mr. Klafeta agreed with the proposition that after a storm had been cleared before a holiday weekend, IDOT employees would not be required to inspect roads over a holiday or weekend for snow mounds, absent a complaint.

Nick Vincich, a retired employee of IDOT, was called as a witness by Claimant. He was employed as a highway maintainer, and one of his duties was snow and ice removal. He was assigned to Route 132 from December, 1987, through January, 1988. Mr. Vincich described the plowing procedures for Route 132.

Mr. Vincich explained that he would push tire snow from the left lane of Route 132 to the left into the median. When he came to a left-turn lane on Route 132, he would reverse his plow and plow the snow to the right, away from the median. He was familiar with, and identified, the intersection at issue.

When approaching an intersection while plowing the left lane of Route 132, Mr. Vincich would reverse his plow and push snow forward and to the right, but still leave a residue of snow in the intersection. After cleaning the routes, the department cleaned intersections, sometimes pushing snow into the nose or front of a median. He testified that there were times when he and the other plowers pushed snow along the curb or nose of the median in the intersection in question and at times left the snow there.

On cross-examination, Mr. Vincich stated that January 3, 1988, was a Sunday. Although he did not recall whether he worked that day, highway maintainers did not routinely work on Sundays, Saturdays or holidays.

Mrs. Donna Olson, mother of Jeffrey Olson, was presented as a witness. She went to Condell Hospital the night of the accident and noticed that Mr. Olson could not move his arms or hands and was peppered with little glass cuts from the windshield. She saw her son the next day in the neurological intensive care unit at Froedent Memorial Hospital in Milwaukee. His head was bolted to the bed in a “halo” and he still could not move his arms or hands. He was in the hospital for six and one-half weeks and she went to see him almost every day. During this time she noticed he had a tracheotomy, he would choke on his saliva because his throat was paralyzed, he was unable to sleep, and some days he was delirious. Claimant told her that his neck hurt.

Prior to the accident, Mr. Olson played with his children and helped with the housework. Now he cannot bend or stoop, walks with difficulty and falls frequently. He used to like swimming,, billiards and bike riding but cannot now do these activities.

Claimant, Monica K. Olson, identified her four children and stated that the oldest was adopted by Jeffrey prior to the accident. The youngest child has Downs Syndrome. Monica is a housewife.

After the accident, Mr. Olson was experiencing respiratory arrest. She described the “contraption” that was bolted to his head. She noticed that Mr. Olson was in pain. He was in intensive care for three weeks and then at the rehabilitation center for three weeks and he was depressed.

After six weeks, Mr. Olson came home from the hospital in a brace but could not eat for a month or two. She had to dress him, help him with his medicine, and help him with everything for a couple of months. He was very uncomfortable because of the NG-tube in his nose. Mr. Olson lost 40 to 50 pounds.

Mr. Olson visited Dr. Steiner, his family doctor, for check-ups during the recovery period. He had nerve damage and could not feel anything in his fingers as well as other places. Dr. Steiner treated him for impotence for six months after the accident. Prior to the accident, he did not experience sexual problems, was in good health, and was an equal partner in the housework. Prior to the accident, Mr. Olson could play sports, walk, and go to the store with the children, but he cannot do those things now. He cannot walk around the block without getting tired. He can watch TV, or play cards or board games but he cannot do anything that requires physical movement. His general health is getting worse. Monica Olson said it was like taking care of five children instead of four.

On cross-examination, Mrs. Olson agreed that there currently was no decrease in Claimants’ sexual relations.

Currently, Mr. Olson does not have any respiratory problems. Mrs. Olson agreed that her husband did not, prior to the accident, participate in an array of activities. Mr. Olson can drive but cannot turn his neck enough to see traffic. Mrs. Olson and all of the children receive social security benefits.

Mr. Paul C. Box, a traffic engineering consultant and president of Paul C. Box and Associates, testified as an expert witness on behalf of Claimants. Mr. Box reviewed polaroid photographs taken by the police the next day, the police accident report, and the complaint. He also conducted a survey of the scene on July 13, 1989. The survey was conducted because it was impossible to tell the extent of the sight obstruction. Mr. Box did a graphic analysis of determination, which entails doing an accurate survey and drawing and plotting lines of sight on the drawing. He described the method utilized in conducting the survey and estimated the height of the snow mound based upon the photographs taken the day after the accident. He prepared a base drawing which shows basic conditions as he measured them. He then prepared a drawing with details involving estimates of the snow bank and lines of sight plotted in relation to an eastbound left-turning driver facing a westbound vehicle.

Mr. Box explained that the bottom edge of the snow bank in the eastbound left turn lane would affect the lateral or south positioning of Mr. Olsons vehicle. He explained his positioning of the snow in the westbound left-turn lane and the positioning of an eastbound left-turning vehicle and two car fronts westbound, one in the inner lane and the other in the outer lane. There is no way of knowing precisely where Mr. Olson’s car was located when he started the left turn. Mr. Box assumed that Mr. Olson began turning left within five feet or so of the estimated end of the snow mound. Although Mr. Box stated that the starting point of the turn could be five feet east or west from where he assumed it to be, the actual starting point was irrelevant as it would not change any opinion he had. Mr. Box then assumed a turning arch or a diagonal path. He determined the height of the snow pile by measuring the height of the sign on the end of the island and looked at the relative position of the snow versus the height. Mr. Box estimated the height of the snow at about 4.3 feet.

Mr. Box drew a line of sight from the assumed driver’s eye of the eastbound left-turning driver (Mr. Olson) to a point where one-third the width of each westbound vehicle could be seen. He then scaled the distance. He determined that the sight line for the eastbound left-turning driver, relative to a westbound vehicle in the inner lane, was about 190 feet. The sight line for the vehicle in the outer lane was about 360 feet.

Mr. Box used references and policies from the American Association of State Highway and Transportation Officials (AASHTO) Policy on Geometric Design of Street and Highways. He utilized an equation taking into consideration the travel distance for the turning vehicle to clear the lane and the posted speed limit of 50 miles her hour. AASHTO policies are utilized by IDOT. A vehicle traveling 50 miles an hour travels 73 feet per second. Mr. Box disregarded that witness Colleen McGrain stated that she was traveling 45 miles per hour because he felt it proper to use posted time. AASHTO policies include a chart to calculate acceleration times for the turning vehicle to clear the westbound lane. Mr. Box also considered driver reaction time. The reaction time of Mr. Olson involved three elements: perception — seeing the oncoming vehicle; and intersection — making the decision to pull out; and volition — actually pushing his foot down to accelerate. One study found 1.1 seconds is a typical reaction time. Although AASHTO recommends two seconds as reaction time, Mr. Box uses one second in his conservative calculations because Mr. Olson did not have to look in both directions.

Mr. Box testified that a car making a left turn from the eastbound turn lane would have to travel 35 feet to clear the inner lane of westbound traffic. According to AASHTO, an average vehicle takes about four seconds to accelerate from a stop to travel 35 feet, not including reaction time. Utilizing the one second reaction time and the four seconds to safely clear oncoming traffic, the AASHTO policy of geometric design recommends sight distance of about 365 feet for safe crossing under the subject conditions. Mr. Box calculated that 190 feet of sight distance was available to Mr. Olson. Mr. Olsons testimony, and prior depositions, did not impact Mr. Box’s calculations because he was determining sight distance for a normal driver driving a standard full-size car. Mr. Box’s depiction of the location of the snow bank is only an estimate. He believed witness, Mr. Barrette, calculated a sight distance of 220 feet which he does not believe is a safe distance. Mr. Box opined that the snow bank caused a sight obstruction for Mr. Olson.

On cross-examination, Mr. Box acknowledged he did not interview Mr. Olson or the occurrence witness. He began his analysis and review of material on or about July 10, 1989. He acknowledged that there was no way for him to know precisely where Mr. Olson started his turn and the variance could be five feet east or five feet west. He assumed a turning radius of 50 to 55 feet. He estimated the snow mound to be 4.3 feet in height and that the peak was up to 12 inches north of the hazard sign at the end of the median. He assumed that oncoming vehicles had headlights illuminated. He also assumed the height of Mr. Olson’s eye level. Although there are four components to reaction, in this instance Mr. Box did not consider one component, emotion, as a factor in computing reaction time. AASHTO recognizes that the avoidance of accidents depends on the judgment, capability and response of the individual driver.

On redirect examination, Mr. Box indicated that had he used Ms. McGrain’s estimate of her speed, 45 miles per hour, the recommended sight distance would be 330 feet instead of 365 feet for 50 miles per hour, which still did not provide a safe sight distance in this instance because only 190 feet of distance was available. The emotional component of reaction time was not used because he only used half of the recommended value for reaction time. He testified that being that conservative nullifies the effect of many unknown elements.

Respondents Case

John Anderson testified that he was a deputy sheriff for the Lake County Sheriffs Department. He was on duty on January 3, 1988, and responded to a call on the subject accident. At the scene of the accident, Mr. Olson told Deputy Anderson that he was attempting to turn left on Oakwood and he could not see around a pile of snow. Deputy Anderson returned to the scene the next day and took photographs. The photographs admitted into evidence depict the subject intersection facing east approximately 80 to 100 feet to the west, the left-turn lane eastbound on Grand Avenue, the intersection from the end of the guardrail facing east, from the end of the left-turn lane, the intersection facing east, almost at the beginning of the left-turn lane of the westbound lanes of Grand Avenue, and the snow mound on the east side of the intersection.

On cross-examination, Deputy Anderson acknowledged that he took pictures of the scene the next day because the snow mound was something out of the ordinary in his experience investigating accidents. Deputy Anderson does not have any special training in accident reconstruction and did not attempt to calculate the distance the vehicles depicted in the photographs were from the camera.

The testimony of Ms. Laurie Ellen Bird, formerly known as Laurie Poole, was presented by virtue of an evidence deposition taken on August 16, 1993. On January 6,1988, between 6:00 p.m. and 6:30 p.m., she was driving southbound on Oakwood intending to cross Route 132 to Knowles Road. As she was approaching the stop sign on Oakwood, she looked to the left and saw a car westbound in the left lane traveling at approximately 50 miles per hour. She looked to the right to view eastbound traffic and saw a station wagon approaching the left-turn lane at a fast rate of speed. She saw the station wagon in the left-turning lane going too quickly to stop. She felt she was going to be in an accident, so she slammed on her brakes. The station wagon turned in front of the westbound vehicle. The station wagon came into the left-turn lane, traveling very quickly and completely turned without stopping.

She indicated that she had approached the same “intersection several times that season, and knowing that intersection and that there was snow in the median, you had to pull into the intersection before you turn, stop, creep out a little ways, and then make the turn.” She described the turning maneuver that she made in that intersection during that season on previous occasions, because a pile of snow existed at the same location as in the case at bar, that caused her to creep around it to see oncoming traffic. She testified that the station wagon did not creep around the snow.

The westbound car hit the station wagon on the passenger side door and front panel. She stayed at the scene approximately 25 minutes until the sheriff arrived. She testified that the eastbound car was driven by a man.

On cross-examination, Ms. Bird testified that she was approximately 50 feet north of the stop sign on Oakwood when she viewed the accident. She stated that there was snow piled all along the median adjacent to the turning lane used by the station wagon. She testified that the snow was a foot and a half to two feet high.

Roger William Barrette testified as an expert witness on behalf of Respondent. Mr. Barrette explained the method of his survey used to produce a diagram of the subject intersection. His diagram depicts the area covered by snow and he agreed with, and used, Mr. Box’s placement and measurements of the snow mound. He and Mr. Box agree the peak height of the snow mound was 4.3 feet. The plan of profile map supplied by the Illinois Department of Transportation specified a 45-foot turning radius. He and Mr. Box also agreed that while in the left-turning lane, Mr. Olson’s vehicle was approximately two feet from snow along the median. He placed Mr. Olson’s vehicle a few inches from the westbound white lane, as indicated in his deposition.

Mr. Barrette videotaped approximately 35 vehicles making left turns from westbound Grand Avenue to northbound Oakwood to determine the amount of time it took for the vehicles to clear the eastbound lane. He believed five of the vehicles made turns consistent with the turn described by Mr. Olson. It took the five vehicles an average of 2.58 seconds to clear the left lane of westbound traffic.

Mr. Barrette determined that Mr. Olson’s line of sight was 220 feet for the left lane of westbound traffic and 420 feet for the right lane of the westbound traffic. A vehicle proceeding in the westbound traffic at 45 miles per hour (66 feet per second) would have travelled 170 feet in 2.58 seconds. If Mr. Barrette used a 50-foot turning radius, instead of the 45-foot radius per IDOT’s profile, it would have decreased Olsons sight line and taken him longer to clear the lane.

On cross-examination, Mr. Barrette acknowledged that he had to make assumptions in determining the location of Mr. Olsons car because there is not any way of determining its exact location. Mr. Barrette acknowledged that the videotape of the five vehicles he used in determining the clearing time was based on his interpretation of what Mr. Olson said in his deposition and he acknowledged that his assumptions and estimates might be wrong. When Mr. Barrette took his videotape it was daylight and there was not a snow mound present. He also did not consider reaction time in his calculations. The determination of 170 feet of sight is not the same as the determination of safe sight distance. Mr. Barrette agrees with Mr. Box’s required safe sight distance. On redirect examination, Mr. Barrette indicated that daylight does not affect acceleration rates. He did not consider reaction time because once Mr. Olson placed his foot on the accelerator, there was no hazard to react to.

Colleen Marie McGrain testified that she and a passenger were involved in an accident at the intersection of Route 132 and Oakwood at approximately 6:20 p.m. on January 3, 1988. She was driving a 1984 Buick Regal on dry pavement with her headlights on. She was proceeding west on Route 132 at 45 miles per hour in the left lane closest to the median. She hit a car that approached the left-turn lane for the eastbound traffic. The car approached, hesitated, and then pulled in front of her. She immediately stepped on the brakes and tried to swerve to the right to avoid the car. She estimated that probably a second elapsed from the time the vehicle pulled in front of her to impact. She hit the right passenger side door and wheel well area of a gray with wood panel Oldsmobile station wagon. She testified that the driver of the station wagon was bleeding in his face and head area and complained of his left arm being numb and tingling. The windshield was shattered and the vehicle’s headlights were on. She suffered contusions, bruises, cuts and minor abrasions. She made impact on her steering wheel, windshield and dash.

William Virmond, a maintenance methods manager at IDOT, explained the steps taken by IDOT to clear roads of snow and ice. The clearing of through lanes of traffic are given priority. The shoulders are pushed back to a safe condition. IDOT then goes into a “clean-up operation” and clears medians and other areas where snow might accumulate. Clean-up operations are done during daylight hours. If a citizen called in a complaint about a snow mound after clean-up, IDOT would investigate and clear, if needed, during a regular workday, weekend or holiday. After reviewing a photograph of the subject intersection, Mr. Virmond thought the snow mound was obstructing the left-turn bay for the westbound traffic. Based upon the way it was formed, he thought the plow that put it there appeared to have pushed it from the north in a southerly direction.

IDOT has. a budget for winter operations and it does not allow for continuous inspection or monitoring of the roads on weekends or holidays. IDOT has someone on call 24 hours a day the year round.

Mr. Virmond stated that winter storm 11 began December 27, 1987, and ended on December 29, 1987. Storm 12 began on December 30, 1987, and ended on the 31st.

Mr. Virmond monitors the maintenance management information system (“MMIS”).

IDOTs personnel do not normally work on holidays, including January 1, 1988. IDOT records indicate IDOT employees did engage in snowplowing on Friday, Januaiy 1, 1988. On Saturday, January 2, 1988, three employees worked; one for 4.5 hours (starting at 7:30 a.m.), and the other two for 4.5 and 3.5 hours (starting at 7:30 p.m. and 8:30 p.m.). There are not any recorded entries for work performed on Sunday, January 3,1988, for snowplowing.

On cross-examination, Mr. Virmond indicated that IDOTs Snow and Ice Manual says that snow is to be kept 300 feet from each side of an intersection of “important intersecting roads.” However, he was not familiar with Route 132 and Oakwood Drive.

Also admitted into evidence was the certification by Director Wright of the Illinois Department of Public Aid constituting a lien for medical benefits paid on behalf of Mr. Olson for January 4, 1988, through August 1, 1988, in the sum of $18,888.85.

Claimants Rebuttal

Mr. Rox stated that although AASHTO policies are not binding on IDOT, the policies apply to existing highways regarding sight distances and not just new highway designs. He further testified that it was not proper to calculate sight distance without using driver reaction time.

Testimony Via Joint Exhibit Numbers 1, 2 and 3

Frank G. Thomas, highway commissioner for Warren Township Highway District (“WTHD”), testified that the WTHD plows snow on Oakwood Drive. WTHD plows where Oakwood Drive meets Grand Avenue, but does not plow the medians. WTHD also plows Knowles Road. Apparently some WTHD personnel worked until 3:00 p.m. on December 31, 1987, but no one worked on January 1, 1988. No work was performed by WTHD personnel on January 2 or 3, 1988. WTHD personnel are told not to plow across the intersection of Route 132.

Dennis Whiston was working for WTHD on the date of the accident. He would have been responsible for plowing Oakwood Drive and Knowles Road during that date. His procedure was to go from east to west to clear the intersection on Oakwood by pushing snow north. When plowing Knowles Road, he plows north toward Route 132 and pulls the snow to the east side of Knowles and south to Grand. He did not go out into Route 132 and never crosses Route 132 with the plows down.

John Rudd was working for WTHD on the date of the accident. He would have plowed Oakwood Drive and Knowles Road during any snow removal operations between December 25, 1987, and January 1, 1988. He plows snow on Knowles Road while traveling north and pushes snow to the edges of the road. He always lifted his plow to cross Route 132, as required by Frank Thomas; otherwise he would have been fired. After crossing Route 132, he cleans the point where Oakwood Drive meets Route 132 by pushing the snow east to west without going onto Route 132. He never plowed snow from Oak-wood Drive onto Route 132.

Claimants’ Argument

Claimants argue that the Respondent had a duty to the Claimants to maintain the intersection of Route 132 and Oakwood Drive by not creating an unsafe sight obstruction for drivers making a left turn. They further argue that the State of Illinois had actual or constructive knowledge of the snow mound at the median of the intersection of Route 132 and Oakwood Drive. Claimants’ expert, Mr. fiox, testified that AASHTO recommends a sight distance of 330 to 365 feet, depending on whether 45 miles per hour or 50 miles per hour is used. However, Mr. Olson only had 190 feet of available sight distance at the time of the accident. They argue that obstructing the line of sight at an intersection constitutes negligence on the part of the State and that the act of creating the snow mound, or the omission in failing to remove it, was the proximate cause of the accident. Claimants deny that Mr. Olson was comparatively negligent and argue that the pain and suffering experienced by Mr. Olson justifies an award of the statutory maximum of $100,000. Claimants request an award to Mrs. Olson in the sum of $100,000 for loss of consortium.

Respondents Argument

Respondent argues that Claimants failed to establish that Respondent created the snowbank, and that the snowbank did not create a sight' obstruction. Respondents expert, Mr. Barrette, testified that Mr. Olson had 220 feet of needed sight distance, which was more than enough to see the McGrain vehicle 170 feet east of the intersection. They also argue the State did not have reasonable time to remove the snowbank and that Claimant Jeffrey Olsons contributory negligence was the proximate cause of the accident and operates as a bar to Monica Olson’s derivative consortium claim. They also argue that Mr. Olson could have traveled to his home by a safer alternative route. The Respondent claims a set-off in the sum of $18,888.85 for medical assistance paid by the Illinois Department of Public Aid from January 4, 1988, through July 11, 1988.

Claimants assert, in a motion to strike, that Respondent inappropriately referred to certain documents and other material in its brief which were barred by a written prehearing order dated September 24, 1993, and move to strike certain pages of the brief. To the extent Respondent refers to previously barred information, the Court has disregarded same in rendering this opinion. Claimants also seek to strike the “safe” alternative argument raised by Respondent and to strike any reference to injuries suffered by persons other than the Olsons. The Court does not consider those matters in rendering this opinion.

The Law

There is no dispute that the accident took place, that a snow mound partially obscured the vision of both Mr. Olson and Ms. McGrain, that Mr. Olson suffered severe and permanent personal injuries, and that the snow mound was in a position that did not comply with the snowplowing procedure of either IDOT or WTHD.

However, the State is not an insurer of all accidents which occur on its highways. The State does have an obligation to keep its highways in a reasonably safe condition. (Interstate Bakeries Corp. v. State (1974), 29 Ill. Ct. Cl. 446.) The duty to exercise reasonable care in the maintenance and care of its highways is so that defective and dangerous conditions likely to injure persons using highways should not exist. Webee v. State (1985), 38 Ill. Ct. Cl. 164.

The act of removing snow from State highways is surely in furtherance of the legal duty imposed upon the State to keep highways reasonably safe for use as highways. (Hewitt v. State (1981), 35 Ill. Ct. Cl. 288.) A Claimant in a negligence action must prove that the State had a duty towards him, that Respondent breached that duty, and that the breach was the proximate cause of Claimants injury. (Phillips v. State (1991), 44 Ill. Ct. Cl. 89.) The Court has also ruled that the State is not liable unless the Claimant proves that the State has either actual or constructive notice of the dangerous condition for a sufficient time prior to the injury to have taken corrective action. Webee, supra, at 168.

Claimants acknowledge that they must show that Respondent had actual or constructive knowledge of the dangerous condition complained of, namely the snow mound. (Pigott v. State (1968), 26 Ill. Ct. Cl. 262.) Claimants assert that the State had actual notice of the snow mound since it was the IDOT snowplowing personnel who created the mound. Although the record includes testimony of Mr. Vincich, an IDOT employee, that he was responsible for plowing Route 132 within the weeks prior to the accident, the record does not contain any admission that an IDOT employee created the snow mound. Mr. Vincich testified that he plowed snow which fell during storms #11 and #12 but all removal operations were completed before the end of December 31,1987.

Mr. Vincich did indicate that when cleaning an intersection, he would at times push snow from the intersection into the nose of the median. Claimants argue that the circumstantial evidence establishes that IDOT employees created the mound.

Negligence may be shown by circumstantial evidence but liability may not be based upon surmise or speculation as to what might have happened to cause Claimant’s injury. (Phillips, supra, at 91.) The Court noted in Phillips that the Claimants cannot rely on the doctrine of res ipsa loquitur as Respondent did not have management and charge of Claimants automobile. (Phillips, at pages 92-93.) No witnesses stated that IDOT created the mound.

There is no evidence that IDOT was aware of the snow mound prior to the accident. There is no evidence in the record that purports to identify when the snow mound was made. The evidence only indicates the WTHD personnel worked until 3:00 p.m. on December 31, 1987, and did not return to work until after the accident date. Several IDOT employees worked in the general area on January 1 and 2, 1988, but there is no indication of where work was performed and what was accomplished.

Claimants argue in the alternative that Respondent had constructive notice of the snow mound. There is no hard and fast rule in determining when it can be said that the State had constructive notice of a dangerous condition and each case must be decided on its own particular facts. Bugle v. State (1967), 26 Ill. Ct. Cl. 173.

Claimants, citing Smith v. State (1990), 42 Ill. Ct. Cl. 19, argue that the creation of the snow mound, or the omission of the State in failing to remove it, created a sight obstruction for Mr. Olson, preventing him from safely crossing the intersection and these two facts are the proximate cause of the accident in question. In Smith, the Court determined that the State had actual notice of dangerous conditions, i.e. an ice ramp, based upon eight different vehicular occurrences reported in the press and to the police over a few weeks prior to the accident. The Smith Court concluded that the States plowing ultimately resulted in the ice ramp and the State should have, at a minimum, warned persons of the dangerous condition.

The Respondent relies on Louis v. State (1983), 35 Ill. Ct. Cl. 741 in requesting denial of the claim. However, the Louis Court found that the Respondent had notice of the snow mound but did not have sufficient time to clear the condition.

There are two relevant facts in the record that may show that Respondent had constructive notice of the snow mound. Ms. Bird testified that she “had approached that intersection several times that season, and knowing that intersection and that there was snow in the median, you had to pull into the intersection before you turn * * she knew there was snow in the median from her several approaches to the intersection that season, but there is no indication that she was referring to the same snow mound complained about here.

The other relevant factor is a review of the photographs taken by Deputy Anderson on the date after the accident. It is clear that snow, other than the mound, was piled onto the median. A review of the photographs shows snow covering a large portion of the pavement in the eastbound turn lane of Route 132 utilized by Mr. Olson. Although the testimony of IDOT personnel, Klafeta and Vincich, seems to represent that plowing into a median is not favored by IDOT, in this instance it appears that snow was plowed onto the median adjacent to the eastbound turn lane.

The question of whether the Respondent had constructive notice of the snow mound is more difficult to discern. The earliest known time and date of observation of the snow mound, in the record, is the testimony of Mr. Olson that he saw the snow mound from his vantage point while turning west on Route 132 from Oakwood Drive. This view was at 6:00 p.m. on Sunday, Januaiy 3, 1988, approximately 20 to 30 minutes prior to the accident.

Based on the evidence, we find that the Respondent had constructive notice of the snow mound and that Respondent created the snow mound. However, two questions remain. First, it is necessary to resolve the degree that the snow mound created a sight obstruction and caused the accident. To determine the degree of sight obstruction, the pertinent facts are presented by Mr. Olson, Ms. McGrain, the analyses provided by Mr. Box and Mr. Barrette, and the photographs in Respondents group exhibit number 2 and Respondents group exhibit number 6. The second question necessary for determination is whether Mr. Olson was negligent and the extent of negligence. To determine his degree of negligence, if any, the pertinent facts are presented by Mr. Olson, Ms. McGrain and Ms. Bird.

On the question of degree of sight obstruction, the Court finds that the snow mound partially obscured both Mr. Olsons and Ms. McGrain’s vision. Mr. Box, Claimants’ expert, testified that Mr. Olson only had 190 feet of available sight distance at the time of the accident but needed 330 to 365 feet between him and the approaching McGrain vehicle to travel across the inner lane of traffic and avoid the accident. Mr. Barrette, the Respondent’s expert, testified that Mr. Olson had 220 feet of needed sight distance and could easily see the approaching McGrain vehicle when it was as close as 170 feet. The Court finds that, based upon the evidence presented, Mr. Olson’s estimated range of vision did not exceed 190 feet and that he needed a minimum of 330 feet of distance between his vehicle and the approaching McGrain vehicle in order to safely cross the inner lane of traffic.

In asserting that Mr. Olson’s conduct in stopping and inching forward three times shows that he was not negligent in any way, Claimants contend that the testimony of Ms. McGrain supports his testimony. In Schuett v. State (1984), 36 Ill. Ct. Cl. 61, the Court entered an order of award for the Claimant. The Schuett Court noted that Respondent admitted plowing snow onto a median of a divided highway. Claimant was in a left-turn lane on Route 72 where she stopped for a red light at the intersection with Barlett Road. She believed the snow was piled up to eight feet high and blocked her entire view of oncoming traffic. When her light turned green, Claimant proceeded to slowly move her car into the intersection apparently stopping every few feet. The Schuett Court held that Claimant was not contributorily negligent in moving “inch by inch” through the intersection.

On the question of Mr. Olsons negligence, the Court gives substantial weight to the testimony of Ms. Laurie Bird, the only non-interested occurrence witness. Her testimony was that Mr. Olson did not stop at the intersection. The is in direct contradiction to Mr. Olsons testimony that he stopped three times and proceeded slowly. Ms. Bird testified she thought the Olson vehicle was traveling too fast to stop. Also of significance is Ms. McGrain’s testimony that she saw Mr. Olson’s vehicle approach the intersection when Mr. Olson testified he did not see her vehicle as he approached the intersection. Additionally, Ms. McGrain stated that she struck the passenger side door and front wheel well of Mr. Olson’s vehicle. Based upon the testimony of Mr. Olson, Ms. Bird and Ms. McGrain, the Court finds Mr. Olson did not literally “inch” his way into Ms. McGrain’s lane such that the principles in Schuett, supra, would apply. We find the facts in this case to be very similar to those presented in Aetna Insurance Co. v. State (1981), 34 Ill. Ct. Cl. 167 where the Court found that Claimant did not “inch out” into the intersection and barred recovery.

The Court further finds, based on the testimony of Ms. Bird, that the snow pile only partially blocked the sight line and that Claimant’s negligence was more than 50% of the cause of Claimant’s injuries. We find Ms. Bird’s testimony to be credible and therefore, the testimony of Claimant Mr. Olson, as to his driving at the intersection, to be incredible. As Mr. Olson failed to stop and did not inch out into the intersection, his negligence was the proximate cause of his injuries and we so find.

As in Aetna Insurance Co., supra, the proximate cause of the collision in the case was the negligence of Claimant driving out into the intersection when he did not know if there was any oncoming traffic. Claimant did not inch out into the intersection but rolled on out into the intersection without stopping. It has long been the rule in this State that it is the duty of persons about to cross a dangerous place to approach it with the care commensurate with the known danger, and when one on a public highway fails to use ordinary precaution while driving over a dangerous place, such conduct is by the general knowledge and experience of mankind condemned as negligence. (Mounce v. State (1951), 20 Ill. Ct. Cl. 268.) If Claimant would have inched out into the intersection, he would have avoided the collision. It is clear from Ms. Birds testimony that Claimant did not inch out and use as much caution as possible.

While Mr. Olsons injuries are severe and his plight sympathetic, Ms. Bird’s testimony shows clearly that Claimant’s failure to use care and caution at a partially obscured intersection was the cause of the collision. He did not inch out slowly and carefully. He did not stop. He pulled out in front of the oncoming vehicle. As Mr. Olson’s negligent driving was the cause of this collision, he is barred from recovering under the law. As Mrs. Olson’s claim is a derivative claim for loss of consortium, her claim must also fail against Respondent.

For the foregoing reasons, it is hereby ordered that the claims of Claimants be and hereby are denied.

ORDER

Frederick, J.

This cause comes before the Court on Claimants’ petition for rehearing, and the Court having reviewed its opinion and heard oral arguments, and the Court being fully advised in the premises, wherefore, the Court finds:

1. That there is nothing raised in the Claimants’ motion which would lead the Court to change its findings and opinion.

2. That the opinion of the Court was the proper decision.

Therefore, it is ordered that the petition for rehearing is denied.


author: Mitchell, J.

text:
    (No. 89-CC-3761
    Albin Carlson & Company, Claimant, v. The State of Illinois, Respondent.

      Order filed March 12, 1996.

    Sorling, Northrup, Hanna, Cullen & Cochran (Craig Burkhardt, of counsel), for Claimant.
    Jim Ryan, Attorney General (Lawrence Rippe, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

The Claimant filed its complaint in the Court of Claims on June 21, 1989, later amending the complaint on November 22, 1991, claiming $5,134.08 in damages as a result of the States breach of contract and withholding of full payment for work completed on a certain bridge repair.

A hearing was held on March 27, 1992. The evidence consists of the hearing transcript and copies of the following: The contract, the rules and procedures for waiver of minority business enterprises provisions, the requests for waiver from MBE provision, the denials of waiver requests, the contract changes ekminating certain work, the guidelines for good faith compliance with the provision and the DBE/WBE utilization plans. Both Claimant and Respondent filed briefs in this matter.

Facts

On April 3, 1987, the Illinois Department of Transportation and Albin Carlson & Company, Claimant, entered into contract number 42402 whereby the Claimant was to act as general contractor for certain bridge repair work in DuPage County, Illinois. A contractual provision required Claimant to subcontract an identified percentage of the total dollar amount of the contract to approved minority business enterprises or disadvantaged business enterprises (hereinafter “MBE provision”). The two parties had reached a suitable MBE provision plan when work began on the project.

Shortly after beginning the work, the Claimant was informed by Respondent that certain change orders were being implemented, thereby eliminating some of the work the Claimant had subcontracted out to disadvantaged business enterprises and women owned business enterprises (hereafter DBE and WBE). The Claimant did not replace the eliminated MBE percentages with new work for the DBE and WBE subcontractors.

The dispute in this case centers on Claimants belief that it properly complied with the MBE provision as set forth in the contract and the Respondents belief that it did not comply. The Respondent withheld $5,134.08 from the final payment due to Claimant, which amount the Respondent states should have been subcontracted pursuant to the MBE provision of the contract.

The MBE provision in the contract was subject to a waiver provision as set out in the contract and in the Administrative Code at 44 Ill. Adm. Code, section 645.50. This Code section requires that, before final payment, the general contractor must demonstrate compliance with the special provision and may state reasons for waiver or modification of the special provision if he has not complied. If the equal employment opportunity officer, Bureau of Construction, does not agree that the general contractor has utilized good faith efforts to secure the minority contractors necessary to comply with the special provision or that some other reason exists for waiver or modification of the special provision, the officer shall compile a determination. The officer shall then notify the general contractor by registered or certified mail of the determination and shall provide the general contractor with all information supporting or tending to support the determination. Failure of the officer to mail notification of this determination to the general contractor within 20 business days of receipt of the general contractors report shall be deemed a waiver of any objection, related to compliance with the special provision, to payment of the contract price.

The Claimant requested a waiver of the provision on January 14, 1988. The request was sent to Ralph C. Wehner, the district engineer of IDOT, Division of Highways district one, in Schaumburg, Illinois, attention Mr. Alden Chapital. This is the district office of the Bureau of Construction, Equal Employment Opportunity and Labor Compliance Section, IDOT district one. The Respondent argues that the Claimant sent the waiver request to the wrong office, that it should have been sent to the Springfield office. The code requires the request be sent to the equal employment opportunity officer, Bureau of Construction. It does not specify which office of the bureau.

The waiver requests were stamped received by the Bureau of Construction Januaiy 19, 1988, Equal Employment Opportunity and Labor Compliance Section, IDOT district one. The Respondent argues that the proper “officer” did not receive the waiver requests until the date stamped on the back of the request, June 28, 1988, Bureau of Small Business Enterprise. The request was then denied by Mr. S. Rown Woolfolk, bureau chief of Small Business Enterprises, on June 29, 1988, based on the claim that the Claimant had not made good faith efforts to comply with the MBE provision.

The Claimant contends that the denial was well outside the 20-day notification period since it made its requests on January 14, 1988, and the denial was made June 29, 1988. The Respondent contends that the denial should be upheld because it was made one day after the request was received by Mr. Woolfolk and that the basis of denial was lack of good faith effort to comply with the provision. The Claimant does not deny that it made no further effort to comply with the provision after the work changes were made by the Respondent. The Claimant feels it had good reason not to comply because the substitute enterprises were not available and the work was something it did itself or would be overburdensome to supervise as a result of the changes.

Law

The Claimant bases its claim on the theory that the Respondent did not deny the waiver on time and it did not give legitimate consideration of “other existing good reasons” for waiving the provision in the alternative to the good faith provision. The Respondent focuses primarily on the fact that it believes that the Claimant did not make a good faith effort to replace the lost MBE work caused by the contract changes. This Court feels that the good faith aspect of the MRE provision stressed by the Respondent, while compelling and a legitimate concern, cannot be used in denying the full payment to the Claimant because of the departments failure to deny the waiver within the 20-day time limit.

The time period within which the waiver determination must be delivered should be strictly construed. The contract is clear that the Respondents right to deny the waiver expired after 20 days of receipt of the request by the equal employment opportunity officer, Rureau of Construction. The time provisions of the contract are to be judged from its terms. (Zempel v. Hughes (1908), 235 Ill. 424, 433, 85 N.E. 641.) The waiver was effectively granted, and Respondents argument that the 20-day period did not begin until June 28, 1988, when the request was received by the bureau chief of Small business Enterprises, does not coincide with the rules that the Respondent set forth itself in the code section 645.50, whereby “the officer” is meant to be the equal employment opportunity officer, Bureau of Construction. The Respondent set forth the terms of the contract and it must be held to those terms.

The Respondent claims that the request was denied by the correct officer, even though that officer is no longer located in the Bureau of Construction. This confusion of which office the request should be sent to appears to be one of the Respondents own making, in making ambiguous terms in the contract. An ambiguous contract is construed against the party who drafted it, since he chose the language, and is therefore responsible for the ambiguity. Epstein v. Yode (1st Dist. 1979), 72 Ill. App. 3d 966, 391 N.E.2d 432, 29 Ill. Dec. 169, 174-175.

The Court hereby awards the Claimant damages in the amount of $5,134.08, due to the Respondents failure to comply with the time limit of 20 days for denial of waiver requests as set up in the contract and in the Administrative Code, section 645.50.