author: Raucci, J.

text:
    (No. 85-CC-2144
    Little City Foundation, Claimant, v. The Department of Children and Family Services of the State of Illinois, Respondent.

      Opinion filed November 8, 1990.

    Daley & George, Ltd. (John J. George and Dennis J. Aukstik, of counsel), for Claimant.

      Neil F. Hartigan, Attorney General (Mitchell Wilneff, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

Little City Foundation is duly licensed by the Illinois Department of Children and Family Services as a child welfare institution for the care and treatment of mentally retarded children and adults, some of whom are also multiple handicapped and/or emotionally disturbed. The Department of Children and Family Services is an agency of the State of Illinois created to provide social services to children and their families.

On or about June 30, 1983, Claimant and the Department of Children and Family Services entered into a valid and binding “Purchase of Service Contract” to be effective July 1, 1983, and to expire on June 30, 1984. Pursuant to the contract, Claimant was to provide both room and board and various training services for a specified per diem rate and a specified maximum contract price. Claimant has performed all the terms and obligations under the contract to be performed by Claimant.

The Illinois Department of Mental Health and Developmental Disabilities is an agency of the State of Illinois responsible for setting the Claimant’s rate structure. The Illinois Department of Mental Health and Developmental Disabilities determines the Claimant’s rate based upon an Interagency Statistical Cost Report submitted by the Claimant directly to the Illinois Department of Mental Health and Developmental Disabilities. Claimant has never been required to submit the Interagency Statistical Cost Report to the Illinois Department of Children and Family Services. It appears that once the rate for Claimant is determined by the Illinois Department of Mental Health and Developmental Disabilities, the Department of Children and Family Services adopts the rate. The Illinois Department of Childen and Family Services applies the rate setting of a lead agency regardless of a contract amendment involving the rate increase.

Claimant submitted a rate request to the Illinois Department of Mental Health in October 1983, for fiscal year 1984. Claimant supplied the Illinois Department of Mental Health and Developmental Disabilities with all materials necessary to support the rate request. On or about February 10, 1984, Claimant and the Illinois Department of Children and Family Services entered into a contract amendment whereby the rates payable to Claimant under the contract were increased by $3.69 to the sum of $54.13 and the rate adjustments were made retroactive to July 1,1983.

On October 22, 1984, the Illinois Department of Mental Health and Developmental Disabilities informed the Claimant that an error was made in calculating Claimant’s revised Fiscal Year 1984 Child Care Institution rate. The Illinois Department of Mental Health and Developmental Disabilities informed the Claimant that the corrected Fiscal Year 1984 Child Care Institution rate was $65.20 per diem and was to be effective for services provided for July 1,1983, through June 30,1984.

The Illinois Department of Children and Family Services recognized the revised rate and applied it to the contract beginning July 1,1984. The Illinois Department of Children and Family Services refused to recognize the revised rate for services provided by Claimant from July 1,1983, through June 30,1984, since it was issued in the next fiscal year.

Based upon the revised rate of $65.20, Claimant has computed the amount of $131,544.81 to be owing from the Illinois Department of Children and Family Services for services provided from July 1,1983, through June 30, 1984. The computation is not disputed.

It appears that the Illinois Department of Mental Health and Developmental Disabilities is the lead rate-setting agency for services performed by Claimant. By its own admission, the Illinois Department of Children and Family Services follows the rate set by the Illinois Department of Mental Health and Developmental Disabilities as a matter of routine.

The Illinois Department of Children and Family Services previously permitted the Illinois Department of Mental Health and Developmental Disabilities to revise the rate of Claimant. (Little City Foundation v. Illinois Department of Children and Family Services (1984), 37 Ill. Ct. Cl. 198.) The facts demonstrate that Claimant and the Illinois Department of Children and Family Services relied upon the rate structure determined by the Illinois Department of Mental Health and Developmental Disabilities. This course of dealing indicates that the parties agreed to be bound by the rate setting of the Illinois Department of Mental Health and Developmental Disabilities regardless of a contract addendum reflecting the change. By its own admission, a contract addendum reflecting the rate revision was unnecessary for the Illinois Department of Children and Family Services and it is bound by the rate revision made by the Illinois Department of Mental Health and Developmental Disabilities in October 1984. Child Development Centers, Inc. v. State (1984), 36 Ill. Ct. Cl. 138,142, citing Personal Finance Co. v. Meredith (1976), 39 Ill. App. 3d 695.

The facts indicate that the Illinois Department of Mental Health and Developmental Disabilities committed an error in 1984 in calculating Claimant’s revised Fiscal Year 1984 rate. Claimant did not play any part in this error. To the contrary, the record shows that the Claimant timely filed its rate request with the lead rate-setting agency and supplied the Illinois Department of Mental Health and Developmental Disabilities with all requested financial information during fiscal year 1984. The Illinois Department of Children and Family Services should not seek to avoid the revised payment by the delay occasioned by the Illinois Department of Mental Health and Developmental Disabilities in recognizing that an error had been made.

We find that the Claimant has properly and timely requested a rate revision which the Illinois Department of Mental Health and Developmental Disabilities has granted to apply retroactively to the 1984 fiscal year of July 1, 1983, to June 30, 1984, and the Illinois Department of Children and Family Services is required to accept such a determination.

We have been advised in writing by Respondent that sufficient funds lapsed to pay this award.

It is therefore ordered, adjudged and decreed that Claimant is awarded $131,544.81 in full and complete satisfaction of this claim.


source: Caselaw Access Project

author: Montana, C.J.

license: Public Domain

text:
    (No. 85-CC-2691
    In re Application of Darlene D. Smith

      Opinion filed July 12, 1990.

    Peter F. Ferracuti, for Claimant.
    Neil F. Hartigan, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Montana, C.J.

This is a claim for compensation arising out of the death of Deputy Sheriff Walter Smith, the chief jailor of the La Salle County Sheriff’s Office at the Criminal Justice Center in Ottawa, Illinois (La Salle County Jail), pursuant to the provisions of the Law Enforcement Officers, Civil Defense Workers, Civil Air Patrol Members, Paramedics, Firemen and State Employees Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 281 et seq. (the Act)). Deputy Smith suffered a heart attack at the jail on May 6, 1984, and died at a hospital later the same day.

On August 9, 1985, this Court entered an order which assigned this claim to a commissioner for the purpose of determining:

1. Whether the decedent, in his capacity as chief jailor at the La Salle County Jail, was a “law enforcement officer” or “officer” as those terms are defined in section 2(a) of the Act.

2. Whether the decedent was “killed in the line of duty” as the phrase is defined in section 2(e) of the Act.

Both parties have filed briefs and the commissioner has duly filed his report.

In regard to the first issue, whether the decedent in his capacity as chief jailor at the La Salle County Jail was a “law enforcement officer” or “officer” as those terms are defined in the Act. Section 2(a) of the Act provides, in relevant part, that:

“(a) ‘law enforcement officer’ or ‘officer’ means any person employed by the State or a local governmental entity as a policeman, peace officer, auxiliary policeman or in some like position involving the enforcement of the law and protection of the public interest at the risk of that person’s life. This includes supervisors, wardens, superintendents and their assistants, guards and keepers, correctional officers, youth supervisors, parole agents, school teachers and correctional counsellors in all facilities of both the Juvenile and Adult Divisions of the Department of Corrections, while within the facilities under the control of the Department of Corrections or in the act of transporting inmates or wards from one location to another or while performing their official duties, and all other Department of Correction employees who have daily contact with inmates.”

While the above definition includes guards and keepers of the Department of Corrections, it does not specifically include a guard or keeper employed by a county sheriffs office. However, the Attorney General of the State of Illinois determined in his opinion No. S-1465, dated November 2, 1979, that corrections officers at the St. Clair County Jail were “law enforcement officers” or “officers” within the meaning of section 2(a) of the Act because their duties involved the enforcement of the laws and the protection of the public interest at the risk of the lives of the officers. It appears from the record that the duties of Deputy Smith at La Salle County Jail were similar to those of the officers at the St. Clair County Jail. Although an Attorney General’s opinion is not binding on this Court we find the reasoning persuasive and therefore find that Deputy Sheriff Smith, in his capacity as chief jailor at the La Salle County Jail, was a “law enforcement officer” or “officer” within the meaning of section 2(a) of the Act.

The second issue before the Court is whether the decedent was “killed in the line of duty” as the phrase is defined in the Act. Section 2(e) of the Act provides, in relevant part, that:

“(e) ‘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 law enforcement officer, civil defense worker, civil air patrol member, paramedic or 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.”

There is no question that Deputy Smith was in the active performance of his duties as a law enforcement officer when he suffered his injury, the fatal myocardial infarction, and, that his death occurred within one year from the date the injury was received. However, for an officer to have been “killed in the line of duty” for the purposes of granting an award pursuant to the Act, it must also be shown that the injury arose from violence or other accidental cause. There is no evidence that Deputy Smith died as the result of violence, so the issue is whether his injury arose from other accidental cause.

Cases involving heart attacks are among the most difficult presented to this Court. The Court recognizes that police work involves stress and strain which can lead to heart attacks. In deciding whether an award should be granted an effort is made to determine whether the activities the decedent was performing precipitated the heart attack. In cases where a decedent is performing strenuous physical activities at the time the attack is suffered, the Court has consistently granted awards. However, in cases where the decedent was not performing strenuous physical activities when the heart attack was suffered, the Court must closely examine whether the circumstances surrounding the decedent’s performance of duties prior to the time the fatal heart attack was suffered may have precipitated the attack. As the Court stated in In re Application of Mary Feehan (1980), 34 Ill. Ct. Cl. 293, 296:

“In so doing we need not limit our examination to a single stressful or strenuous event such as in Burgholzer (1973), 28 Ill. Ct. Cl. 406; McBurney (1972), 28 Ill. Ct. Cl. 404; or O’Neill (1973), 29 Ill. Ct. Cl. 529. While the heart attack must have been a result of the active performance of duty, in certain cases it becomes relevant to look at circumstances and events further preceding the death than those occurring solely on the day of the heart attack as far as is practical and not overly remote. A pattern of exigent circumstances may in some cases have a cumulative effect of leading up to and resulting in a heart attack. This is a difficult determination to make but one which nevertheless must be made in administering the Act without the benefit of clear and concise standards and in taking into account the physiological realities of heart attack causation.”

The record indicates that Deputy Smith was the chief jailor of the jail facility. According to the evidence deposition of Russell Wahl, the Sheriff of La Salle County, Deputy Smith in his capacity as chief jailor was responsible to Sheriff Wahl for the entire operation of the jail and for following Department of Corrections rules and regulations. In addition to the responsibility of keeping the prisoners held securely within the jail, Deputy Smith was responsible for protecting the prisoners from each other as well as protecting the public while escorting prisoners to court. Deputy Smith was also responsible for handling the complaints of the prisoners and negotiating with them regarding the complaints. Deputy Smith supervised nine correctional officers as well as three cooks who prepared the inmates’ meals.

Sheriff Wahl’s deposition also indicates that the capacity of the jail was forty-five or forty-six inmates. At the time of Deputy Smith’s death the average inmate population was beyond normal capacity. Three officers were assigned to work each shift at the jail, but due to a staff shortage only Deputy Smith and one other officer were working on the day Deputy Smith died. Because of staffing problems, Deputy Smith worked overtime, double shifts, and would come in at night to work if a problem developed. When he suffered the heart attack he was working on what normally would be a day off. He had worked thirteen straight days prior to the day he suffered the heart attack. At the time of his death Deputy Smith had accumulated eighty days of compensatory time.

Sheriff Wahl’s deposition further indicates that when Deputy Smith reported on duty his work station would be the control room. The control room contained the video monitors, fire alarms, and electronic switches which operate the doors of the jail. At the time of Deputy Smith’s death, the video monitors were not working properly, so someone would be required to check on the galleys and hallways of the jail in person. Sheriff Wahl indicated that because the monitoring system wasn’t working properly, the job of the jailor required a great deal of walking because the jail had to be monitored in person. Once during the month prior to his death Deputy Smith was attacked by a mentally ill inmate while investigating an incident within the jail. Sheriff Wahl said that Deputy Smith had indicated he had been having pain in his legs and would be stiff-legged after work.

On the day of his death Deputy Smith arrived at work sometime between 7:30 and 8:00 a.m. It was visiting day at the jail. In addition to usual jail monitoring duties, the evidence deposition of Lieutenant Tom Templeton, a co-worker of Deputy Smith, indicates that a jailor’s duties on visiting day involved escorting prisoners three at a time from their cells to the visiting area, waiting the fifteen-minute visiting period and then escorting the prisoners back to their cells. This would be repeated by the jailors until all the visitors had left. Deputy Smith participated in escorting the prisoners.

Lieutenant Templeton’s deposition further indicates that after the visiting had started he was summoned from the front window where he was working as desk officer to the control room where he found Deputy Smith with his face down on the jailor’s desk. Lieutenant Templeton summoned an ambulance and helped administer oxygen to Deputy Smith. Deputy Smith was taken to the Community Hospital of Ottawa where he expired due to a myocardial infarction.

An evidence deposition of Dr. Robert F. Bettasso which was taken for a proceeding concerning Deputy Smith’s death before the Industrial Commission was submitted into evidence by the Claimant. The Respondent did not submit any medical evidence into the record in this claim.

The deposition shows that Deputy Smith had suffered two prior myocardial infarctions and experienced significant hypertension. Dr. Bettasso indicated in the deposition that in the presence of coronary artery disease, stressful situations may precipitate a myorcardial infarction. When asked of the significance from a stress standpoint that Deputy Smith had been working thirteen straight days prior to his death and had been averaging some eighty hours a week for several months prior to his death, Dr. Bettasso responded on pages 26 and 27 of the deposition:

“Well, only from the fact that it is stressful. Circumstances without any release, time is definitely a factor in my consideration of stress with no — for 13 days I believe you mentioned that he worked continuously under a stressful circumstances which this job obviously can produce.”

In responding to a hypothetical situation involving factors such as Deputy Smith’s duties and condition and their relation to the fatal myocardial infarction Dr. Bettasso stated on pages 25 and 26 of the deposition:

“I can relate to the factors that were presented to me in the hypothetical of the stressful circumstances for which one can envision a person who is responsible for a jail site where the circumstances are changing from day to day and can be very stressful dealing with mental patients who are to be confined, or prisoners who are unfortunately so endowed mentally that they are difficult to deal with, having personal experience with these including the mental patients and the physical requirement that are sometimes mandated not only as a jail superintendent who would have also the administrative responsibility but also for personnel who have to deal with these type of people, that they are very stressful and can precipitate such situations as rapid heart beats, hypertensive episodes. And these are all factors which can in fact be a factor of precipitating, in the proper soil with coronary artery disease.”

This claim presents a situation similar to the case of Feehan, supra. In Feehan the decedent, a police officer, suffered a fatal heart attack after testifying in a burglary case he had handled. Prior to suffering the heart attack Officer Feehan had been working an extraordinary amount of overtime beyond a normal forty-hour work week. When Officer Feehan was off duty he was on call. His work consisted of investigating crimes committed and about to be committed, making arrests, performing searches, and conducting surveillance and stakeouts in connection with a burglary and drug dealing. In granting an award the Court determined that the extraordinary amount of overtime worked combined with the stressful nature of Officer Feehan’s duties had the cumulative effect of leading up to and resulting in the fatal heart attack.

Prior to his fatal heart attack, Deputy Smith had been working overtime, double shifts, and was on call if problems developed. The day he suffered the fatal heart attack was his fourteenth straight day of work. He was responsible for supervising the entire operation of the jail as well as working as a jailor interacting directly with prisoners. A combination of factors, including a jail population at capacity or beyond capacity, staff shortages, and defective jail monitoring equipment created an extremely stressful work environment.

Based on the foregoing we find that the specific facts in this case constitute a compensable claim under the Act in that the exigent circumstances involving extraordinary long hours spent in the active performance of duties in a stressful environment had the cumulative effect of resulting in the death of Deputy Smith. We further find that such facts constitute injury arising from “other accidental cause.”

It appears from the record that at the time of his death Deputy Smith did not have a designation of beneficiary form on file showing who should receive an award under the Act. Section 3(a) of the Act therefore requires that the Claimant receive the entire amount payable since she is the surviving spouse of Deputy Smith.

Wherefore, it is hereby ordered that an award of $50,000.00 be, and is, hereby granted to Darlene D. Smith, the surviving spouse and statutory beneficiary of Deputy Sheriff Walter Smith.


text:
    (No. 85-CC-2769
    William L. Thomas, Claimant, v. The State of Illinois, Respondent.

      Order filed March 19, 1991.

    Marshal E. Lesueur, for Claimant.
    Roland W. Burris, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, C.J.

This is an action by Claimant, William L. Thomas, against the State of Illinois, Respondent, for personal injuries he sustained as a pedestrian, when he was struck or collided with a motor vehicle owned by the State and being operated by a State employee.

At about 5:50 p.m. on the evening of November 13, 1984, Sergeant DiGiore of the Secretary of State Police was driving east on 79th Street in the City of Chicago, approaching Jeffrey Avenue. He was part of a four-man car surveillance team which had been tracking, for most of the day, a person suspected of dealing in stolen auto parts. Eastbound 69th Street at Jeffrey consists of three lanes, a left turn lane, a thru lane going east and, at the right edge, a bus stop area used as a right turn lane. Immediately to the west (past the bus lane) is a parking area. It was dusk, but the weather was clear and dry. Traffic was heavy as it was the evening rush hour. Sergeant DiGiore was driving a light brown unmarked 1983 Chevrolet Impala, which was the property of the Secretary of State.

The suspect vehicle being trailed was stopped in traffic at the intersection of 79th Street and Jeffrey. Just ahead of Sergeant DiGiore’s vehicle was another unmarked Secretary of State car driven by Investigator Vrtik, the tactical leader of the surveillance group. Vrtik testified that fearing that the suspect might turn left at the light at Jeffrey, he instructed DiGiore by radio to pull into the left turn lane, which was to their left, and follow the suspect should he make a left turn. Vrtik angled his vehicle to the right toward the bus stop and would follow the suspect should he turn right into Jeffrey.

DiGiore proceeded to follow Vrtik’s direction and pulled his vehicle from behind Vrtik into the adjacent left turn lane and moved up behind a vehicle already standing at the intersection, waiting for the red light to change. DiGiore testified that he had been stopped in the left turn lane ten to fifteen seconds when he heard a “thump.” He looked to his right and saw the hands and face of Thomas up against the right portion of his windshield. Thomas’ body then fell to the pavement. Both DiGiore and Vrtik left their cars and went to Thomas who was lying on the pavement, in the path of ongoing traffic in the eastbound thru lane. Vrtik returned to his car to radio the Chicago police and called for an ambulance while DiGiore lifted Thomas into his car to get him out of the line of eastbound thru traffic. The foregoing recitation of the accident is derived from the testimony of Sergeants DiGiore and Vrtik, whose combined years of employment and experience with the Secretary of State’s Office in the auto theft division total approximately 29 years.

Claimant has attempted to establish that DiGiore’s vehicle was moving at approximately five miles per hour, based upon the expert testimony of Mr. Aycock, a consultant and lecturer at the Ashland Traffic Institute at Northwestern University for 19 years. He did not see the car, but subsequently stated that the damage to the car could have been caused “with the car sitting still.”

Thomas testified that he started to cross the street about 120 to 150 feet from the Jeffrey intersection; that he crossed the third lane on the south side of 79th Street and took one or two steps beyond the yellow line (separating the east line traffic from the west), which places him in or beyond the first westbound lane, and that he was struck by DiGiore’s eastbound vehicle traveling in the westbound lane. This is directly contrary to the testimony of Sergeants DiGiore and Vrtik.

Claimant urges that the collision occurred while DiGiore was driving on the wrong side of the road in attempting to reach the suspect vehicle being trailed. Based upon Thomas’ testimony, he would have had to have been hit by DiGiore’s car traveling east, while almost halfway into the second westbound lane, and according to Aycock’s opinion, at five miles per hour.

Claimant interprets the actions of Sergeant Vrtik, when he moved Thomas’ body from the path of rush hour traffic in the eastbound thru lane to the safety of his car, as a violation of the police rules with respect to moving him from the scene of an accident. Yet it was Vrtik’s judgment under the circumstances to remove the body.

It is clear that the nature of the Claimant’s and the officers’ testimony as to how and where the accident occurred is contradictory. Nonetheless, the Court has decided from the evidence that the Claimant is entitled to a reasonable award for the damages suffered by him as a result of the occurrence.

It is hereby ordered that the sum of $25,000.00 is hereby awarded to William Thomas, Claimant.


author: Burke, J.

text:
    (No. 85-CC-2821
    Raymond G. Holt, Jr., Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 8, 1990.

    Don Carrillo, for Claimant.
    Neil F. Hartigan, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

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

Claimant Raymond G. Holt, Jr., a past inmate of the Menard Correctional Center in Chester, Illinois seeks compensation for injuries he sustained on July 29,1984, while in his cell. On the date of the accident, the Claimant was a small-engine mechanic and teacher at Menard. After completing his work for the day, Claimant returned to his cell. In his cell was a window with approximate dimensions of 2 to 2% feet by 5 feet. The window, was a double sash window with a solid steel frame weighing approximately 80-90 pounds and was propped open with a wooden stick that was approximately two feet in length. At about 7:30 p.m. on July 29, 1984, the window fell down on Claimant’s right hand, almost severing his index finger at the first knuckle. There is clearly no dispute that Claimant’s finger was injured from the falling window in his cell. The issue is one of liability as to the condition of the window and the resultant injury.

The Claimant, at his hearing, described in detail the layout of his cell. He specifically described the window in his cell. He testified that the windows in the prison were supposed to be equipped with counter-weights in order to be in operating condition. These counterweights were completely missing as were the chains to operate the counter-weights. The correctional facility was not air-conditioned and because the windows were inoperative, the inmates, as well as the prison guards, propped the windows open by whatever device was available. He also testified that the stick that held open this particular window had been placed there by an inmate who had previously occupied the cell, though he removed and inserted the stick himself five to six times.

The Claimant contends that the State of Illinois is liable for the injuries sustained by him due to the negligence of the prison employees. His theory is premised on the prison guard’s knowledge of the Claimant’s use of the stick to prop open the window as well as on the failure of the guards to tell him to remove the wooden stick.

The Court of Claims previously held that the State owes a duty to inmates of its penal institutions to provide them with safe conditions under which to perform their assigned work. Reddock v. State (1979), 32 Ill. Ct. Cl. 611; West v. State (1977), 31 Ill. Ct. Cl. 340; see also, Spears v. State (1985), 37 Ill. Ct. Cl. 164; and Burns v. State, 35 Ill. Ct. Cl. 782.

Similarly, the Illinois Appellate Court held that the county owes a duty to exercise ordinary and reasonable care for the preservation of prisoners’ health and life under circumstances of any particular case. (Countrymen v. County of Winnebago (1985), 135 Ill. App. 3d 384, citing Delasky v. Village of Hinsdale (1982), 109 Ill. App. 3d 976.) In Delasky, the court held that a village owed a duty to exercise reasonable care for a prisoner’s health. Delasky at 980-81.

Because the Court of Claims has specifically recognized a duty owed by the State to prison inmates to provide a safe place to work and because the Illinois Appellate Court has recognized the duty of a county and a village to provide reasonable care for a prisoner’s health, it is apparent that the State owes a duty to provide prisoners with a safe place to live. Accordingly, this Court holds that the State does owe a duty to prison inmates to provide a reasonably safe place to live. As in other cases, the court notes that prisoners and inmates ordinarily do not possess the freedom of choice inherent in doctrines of assumption of risk and contributory negligence.

On the night of the injury, the Claimant received certain basic medical treatment at the Menard Correctional Center prior to being transferred to the Chester Memorial Hospital. While at Chester Memorial Hospital, the tip of the Claimant’s right index finger was reattached. During this procedure, a pin was inserted into the Claimant’s finger to hold the joint together. This pin protruded from both sides of the Claimant’s finger and remained in place for approximately six weeks. Subsequent medical records introduced by the Claimant indicate that he suffered a traumatic laceration to his right index finger. Pursuant to these medical records, the attending physician stated that although the Claimant was able to use the finger for most functions, he would suffer a permanent loss of mobility with a maximum of approximately 5-10 degrees of flexion and extension. Subjectively, the Claimant continues to complain every time the finger is touched or bumped.

Although the Claimant returned to his work duties at the end of September 1984 (two months from date of injury), he only returned in a supervisory capacity. After being paroled in March 1986, Claimant obtained employment as a small-engine mechanic for approximately six months. However, Claimant left that position due to the constant pain in his right index finger. Subsequently, Claimant had obtained a position as a sales assistant for a car dealership. The ability of the Claimant to obtain employment as a small-engine mechanic may be reduced, but this does not, however, preclude the Claimant from returning to teaching small-engine mechanics; nor does it preclude the Claimant from continuing his present employment as a salesman.

It is hereby ordered that the Claimant be, and hereby is awarded the sum of $7,500.00, said award being in full and complete satisfaction of Claimant’s complaint.


text:
    (No. 86-CC-0227
    Bankers Leasing Association, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 26, 1990.

    Jay A. Schiller, for Claimant.
    Neil F. Hartigan, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

On December 15, 1981, the Claimant, Bankers Leasing Association, entered into an agreement with the Respondent, State of Illinois, to lease three Exxon typewriters to the State for a period of 60 months. The Claimant was to be paid by the State an amount of $452.23 on a monthly basis. Mr. Charles Kusar executed the agreement on behalf of the State of Illinois. These typewriters were leased for the purpose of use at the Illinois Industrial Commission.

Paragraph 2(d) of the lease executed by the parties provided:

“the parties understand that as long as lessee has sufficient appropriated funds to make the payments hereunder, it will keep this agreement in effect through all the renewal terms and make all payments or it will exercise it’s [sic] option under Paragraph 13 to purchase the property. Lessee hereby covenants and agrees to use its best efforts to obtain sufficient appropriated funds in order that Lessee shall be able to make all payments required hereunder until the expiration of this agreement at the end of all renewal terms, or its earlier termination by exercise of Laces’ option under Paragraph 13 to purchase the property. If Lessee does not have sufficient appropriated funds so that this agreement is not renewed for an available renewal term, the Lessee shall not, until the date on which the last renewal term would have ended, expend any funds for the purchase or use of property similar to the property subject to this agreement.”

In other words, the State’s participation in the continuation of this contract was contingent upon the Legislature appropriating sufficient funds to cover the contract.

By letters dated September 19,1984, and November 29, 1984, Mr. Kusar terminated the contract between Claimant and the State. In 1986, the Claimant picked the typewriters up from Respondent and was unable to sell or lease them because the manufacturer had gone out of that particular business. As a result, the typewriters were donated to a local high school.

Mr. Kusar was the fiscal officer of the Industrial Commission when the contract was originally executed. Mr. Kusar admitted that while the above lease agreement was in effect, the State purchased from the Xerox Corporation, a high-speed copying machine and, as part of that purchase agreement, was given ten new typewriters for the typing work that had to be done at the Industrial Commission. The purchase price for the copying machine was $1,100.00 a month over a 60-month period.

The testimony established that the Legislature appropriated approximately four million dollars to the Industrial Commission for the fiscal year 1985. The Chairman of the Industrial Commission is mandated to use the appropriations in a manner which produces the most benefit for the agency. In making the decision as to what is not beneficial for the agency, the Chairman has discretionary authority relating to programs and expenditures on behalf of the Industrial Commission. Prior to its introduction in the General Assembly, the Industrial Commission submitted a budget to the Bureau of the Budget by line-items of appropriations. The new Xerox copier was a line-item appropriation as were the monies necessary to fulfill the contract with the Claimant. When the budget was received back from the Bureau of the Budget, it had deleted the monies for the machines that are the subject of this dispute. Mr. Kusar’s testimony was that the Legislature, since September 9, 1984, has not appropriated any new monies for word-processing equipment in the Industrial Commission. Further, the typewriters which were received from Xerox, are not used to type Industrial Commission decisions, the function of the Claimant’s typewriters while they are with the State. Mr. Kusar testified that the State had equipment which they purchased in the late 1970’s as word-processing equipment which continued to type the decisions of the Industrial Commission.

The State’s decision to purchase the Xerox copier with the accompanying typewriters is now used to attempt to justify its failure to complete the contract with the Claimant. No one can say with certainty that if the budget sent to the Bureau of the Budget did not contain the line-item request for the Xerox equipment, the Bureau would not have deleted the monies for Claimant’s contract. However, it is reasonable to draw that inference from the evidence presented. The State’s contention that the new typewriters are not used for the same purposes as Claimant’s equipment is difficult to believe.

While the record is not as clear as we would like it, we find that Claimant has met its burden of proof and is entitled to judgment.

It is therefore ordered, adjudged and decreed that the Claimant be awarded Twelve Thousand Six Hundred Sixty Two and 44/100ths ($12,662.44) Dollars, the amount owed on the lease to the Claimant.


author: Raucci, J. Raucci, J.

text:
    (No. 86-CC-0506
    Louis F. Bowman and Beverly A. Bowman, Claimants, v. The State of Illinois, Respondent.

      Order filed January 13, 1986.

      Order of dismissal filed August 24, 1990.

    Hoagland, Mauker, Bernard & Almeter, for Claimants.
    Neil F. Hartigan, Attorney General (Phillip McQuillan, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Raucci, J.

This cause coining on to be heard on the Respondent’s motion to dismiss, and Claimants’ response thereto, and the Court being fully advised in the premises,

Finds, that the claim for indemnity and/or contribution accrued upon the filing of the complaint of Howard L. Shelton on October 14, 1983, in the circuit court for Madison County.

The action in this Court was filed on September 26, 1985, which was within the two (2) years statute of limitations, and the Court further,

Finds, that the Release and Indemnity provisions of the “Supplementary Provisions” of the “Contractual Services Agreement” does not, by express terms, indemnify Respondent against its own negligence, and therefore the Claimant states a cause of action, and the Court further,

Finds, that Claimants’ action is not one for personal injuries and therefore Claimants were not required to file a notice of intent and the Court further,

Finds, that the action is not barred by the fact that Howard L. Shelton received worker’s compensation benefits. See Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382.

It is therefore ordered, that the motion to dismiss is denied.

ORDER OF DISMISSAL

Raucci, J.

This matter coming before the Court upon stipulation for dismissal signed on Claimants’ behalf by their attorney, Stephen J. Maasen, and signed on behalf of Respondent by Assistant Attorney General Phillip McQuillan, and the Court being fully advised in the premises therein,

It is therefore ordered that Claimants’ cause of action in the above-styled matter is dismissed with prejudice to the Claimants and at the cost of the Claimants.


author: Sommer, J.

text:
    (No. 86-CC-0822
    Jacqueline D. Moore, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 22, 1991.

    Janine L. Hoft and Jan Susler, for Claimant.
    Roland W. Burris, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

The Claimant’s action is for personal injury sustained at the Stateville Correctional Institution on August 22, 1984, while visiting a friend who was a resident there.

The Claimant, Jacqueline Moore, arrived at Stateville at approximately noon that day, proceeded through the receiving building and was directed outside to a concrete walkway that led to the Institution itself.

As the Claimant walked towards the steps of the institution, she testified the walkway looked even and unobstructed, but her right foot abruptly stepped down onto a metal cover recessed several inches below the rest of the pavement. The Claimant lost her balance, her right knee hit the pavement and she landed on her buttocks. The Claimant was ultimately diagnosed as having sprained her ankle, but she was carried to the prison infirmary on a stretcher. Her foot swelled and her knee was bleeding. When she left the institution somewhat later, she sought medical aid at Rush-Presbyterian-St. Luke’s Hospital. Her ankle felt better in a week or so.

Before the State can be held liable for injuries caused by an alleged defective condition, it is necessary that there be evidence showing that an unsafe condition existed and that the State had actual or constructive notice of the unsafe condition. Pigott v. State (1968), 26 Ill. Ct. Cl. 262.

The Claimant has the burden to show by the preponderance of the evidence that the drop in the sidewalk was an unsafe condition in the circumstances. Common observations of sidewalks show dips, inclines, curbs, driveways, etc. Persons walking along have the obligation to be on the lookout for such conditions. The present circumstances would however, lead a walker to believe that the sidewalk would be relatively free of defects, as it was a sidewalk on the prison grounds between the Administration building and the building used by visitors.

The Claimant described a manhole cover that was 2/2 inches below the sidewalk, and a concrete sidewalk that inclined in a dip to the level of the manhole cover. The base of the dip was described as being 1M feet in diameter. Such a step down in what is primarily a pedestrian walkway could be an unsafe condition, and the State had notice of it. We find that the Claimant has met her burden of proof. (See Davis v. State (1982), 35 Ill. Ct. Cl. 269.) Evidence tending to disprove an unsafe condition could have been entered by the Respondent by photographs, direct testimony, etc., but it was not.

At the same time, the conditions were good; it was daylight; and the Claimant had an obligation to proceed with due care. Therefore, we find that the Claimant was also negligent. We find both parties each 50% negligent.

The Claimant has introduced or testified to medical bills in the amount of $602.00. We also find that the Claimant should be awarded damages for pain and suffering in the amount of $1,500.00. As the Claimant was 50% negligent, said damages shall be reduced by one-half. Therefore, we award the Claimant $1,051.00.


text:
    (No. 86-CC-2123
    Michele Scarzone, a minor, by Marilyn Scarzone, her Mother and Next Friend, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 2, 1990.

    Joseph P. Storto, P.C. & Associates (Patricia A. Kalal, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

Claimant in this cause by her mother originally filed a claim in the Will County Circuit Court against K-5 Construction Company and the Illinois State Highway Department for injuries to her arm and wrist, sustained by Claimant, a minor, on September 15, 1985, while riding her bicycle on Illinois Route 59, a two-lane highway with a shoulder but no sidewalks, near Naperville Road in Plainfield, Illinois, seeking recovery for an award for damages of $15,000.00.

The Complaint filed against K-5 Construction Company was subsequently dismissed by the circuit court pursuant to a summary judgment motion filed by defendant, K-5 Construction Company, resulting in no judgment or settlement being awarded to minor plaintiff in the State court case.

Claimant was riding her bicycle along the east shoulder of Illinois Route 59, attempting to make a right-hand turn to go eastbound on Naperville Road, when she encountered a pothole, lost control and fell from her bicycle. Claimant sustained a fracture of her left forearm.

Claimant disclosed the hole on the shoulder and a white marking on the roadway indicating the pothole.

Respondent’s witness, a maintenance field technician with the Illinois Department of Transportation for more than nineteen years, who supervises four foremen and between 45 and 50 workers in the maintenance department, whose responsibility included the location where Ms. Scarzone was injured, testified that 20 to 25 times a year he receives requests from the IDOT District Office in Schaumburg to investigate incidents which have occurred in his jurisdiction. Upon receipt of a memorandum of the subject accident, he did investigate and answer the questions put to him. His response to the memo indicated that there had been no prior notice to IDOT of a pothole or washout at the location involved. He also stated that there was a continuous effort to maintain gravel shoulders. The witness further testified that most complaints are made to the 24-hour communication center at the district office. He identified Respondent’s group Exhibit No. 3 as a memo to the communication center asking whether they had received any complaints about the scene of the accident on or prior to September 15,1985, and their response was that no such complaint had been received there.

Claimant cites Welch v. State (1966), 25 Ill. Ct. Cl. 270, decided by this Court in support of her contention that Respondent had a duty to maintain the shoulder of Route 59, so that bicyclists might use shoulders as highways. The Illinois Motor Vehicle Code requires bicyclists to ride on the roadway and not the shoulder (Ill. Rev. Stat. 1985, ch. 95½, pars. 1 — 179 and 11 — 1505), unless some unusual circumstances require use of the shoulder. The record in this cause does not disclose any unusual circumstances. The Welch case described a proper use of a shoulder, as was so used in the Welch case so as to avoid a collision with a car that was on the wrong side of the road. This Court further stated in that case, “We do not by this opinion propose to expand the degree of responsibility imposed upon the State in the maintenance of a shoulder,” and the Court has long held that Respondent is not bound to maintain a shoulder in the same condition as the paved surface of the highway.

The Vehicle Code further provides that “(a) Every bicycle when in use at nighttime shall be equipped with a lamp on the front which shall emit a white light visible from a distance of at least 500 feet to the front * * (Ill. Rev. Stat., ch. 95½, par. 11 — 1507.) Claimant’s bicycle was not equipped with any headlight, and she testified that at the time of her accident, “It was dusk and some cars had their headlights on already.”

Claimant further contends that Respondent failed to maintain the shoulder on Route 59 in a reasonably safe manner. Claimant’s uncorroborated testimony and photo evidence do not meet her burden of establishing by the preponderance of the evidence that Respondent had a duty to maintain the gravel shoulders of Route 59 as a roadway, that Respondent neglected to maintain the shoulders in a reasonably safe condition or that anything Respondent did or did not do was the proximate cause of Claimant’s injuries. The testimony of Respondent’s witness, the maintenance field technician for 19 years, indicates the procedural policy of Respondent in maintaining its highways in a technical, systematic and orderly manner and the budget allowances for such purposes to avoid any incidents such as alleged in this cause, and refutes the contention of Claimant of the failure by Respondent to maintain its highways in a reasonably safe condition.

This Court in Simpson v. State (1985), 37 Ill. Ct. Cl. 76, ruled that the State is not the insurer of Claimant’s safety and that Claimant must prove by a preponderance of the evidence that a dangerous condition existed and that the State knew of the condition and that the condition caused the incident complained of. None of these elements exist in the present cause.

It is therefore ordered, adjudged and decreed that this Claim is denied, and forever barred.


text:
    (No. 86-CC-2498
    David Foster, Claimant, v. The State of Illinois, Respondent.

      Order filed September 7, 1990.

      Order on denial of petition for review filed May 16, 1991.

    Anthony F. Mannina, for Claimant.
    Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Raucci, J.

This claim involves an incident which occurred on June 27, 1985, at the Secretary of State’s facility in Naperville, Illinois. The Claimant, David Foster, arrived at that location for the purpose of taking the motorcycle licensing exam. He arrived with a friend, Mr. Greg Bean. Mr. Bean drove David Foster to that location on Mr. Foster’s motorcycle, a Nighthawk 550. The “550” reflects the size of the engine. The wheel base on the motorcycle was approximately three to four feet, axle to axle. After taking a written test, the Claimant went to the parking lot in order to take the performance test on his motorcycle. While taking the test, David Foster’s motorcycle struck a steel post that was located immediately adjacent to the test area. He struck his kneecap directly on the post, causing his knee to be dislocated. He was taken from the scene by ambulance to Edwards Hospital and treated at the emergency room. The next day he began treatment with an orthopedic specialist.

The Claimant’s position is that the placement of the steel post on or near the motorcycle test area constituted a risk which should have been foreseeable to the Respondent. It is the Respondent’s position that the posts were not a risk to the test-takers and that Claimant caused his own injuries by attempting the test on a motorcycle which was beyond his capabilities as an operator.

Claimant was injured while exercising a U-turn on his motorcycle under the direction of Mr. Albert Pavesi, a State employee. While there is a factual dispute with regards to the location of the pole which Mr. Foster eventually struck, even taking the State’s evidence in its best light, these poles were located only two feet from the boundaries of the course. In effect, what you have are non-flexible steel posts two feet from the border of a motorcycle course upon which (inexperienced) people take their motorcycle licensing exam. It is certainly foreseeable that a portion of the people who attempt to take this exam are going to fail. One of the ways by which they can fail is to be physically unable to handle the motorcycle during the course of the test. That is clearly what happened in this case. The State’s witnesses indicated that the Claimant should not have been operating this motorcycle in the first place and that the Claimant was not sufficiently experienced to operate this motorcycle. That explanation is precisely the reason for the test. Mr. Foster is no doubt not the first individual who has failed to control a motorcycle during the State examination, and the people who set up the course knew or should have known that a margin of error of only two feet is not sufficient.

The Claimant suffered a dislocation of the knee. He lost approximately two thousand dollars in wages as a result of his disability. He was treated at an emergency room facility, released and was subsequently treated by an orthopedic physician.

However, the Claimant is not without fault in this matter. His attempt to pass this test on a motorcycle he could not control contributed to the accident. In fact, he was injured while performing one of the simpler tasks required during the exercise testing. Claimant could have used a smaller motorcycle to perhaps pass the exam.

Taking into consideration the Claimant’s contribution to this incident, it is hereby ordered that the Claimant be, and hereby is, awarded $4,250.00 in full and complete satisfaction of the claim.

ORDER ON DENIAL OF PETITION FOR REVIEW

Raucci, J.

This cause coming to be heard on Claimant’s petition for review, and Respondent’s response thereto, due notice having been given the parties, and the Court being duly advised in the premises;

It is hereby ordered that Claimant’s petition for review is denied, with prejudice.


text:
    (No. 86-CC-2736
    Robert A. Ryan, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 27, 1990.

    Robert A. Ryan, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   OPINION AND JUDGMENT

Sommer, J.

This is a vendor-payment action, brought by Dr. Ryan, in which he seeks payment under the Medical Assistance Program (MAP) administered by the Illinois Department of Public Aid (IDPA), for surgical services rendered to two IDPA recipients during April and May of 1985. Respondent has moved for summary judgment as to all issues presented in this action as to both patient accounts, on grounds as reviewed herein by the Court. Claimant having received due notice of such motion, the Court being fully advised finds as follows:

Proper Invoice Preparation. A part of Claimant Ryan’s services for patient Perez consisted of a presurgical consultation. In billing this consultation to IDPA, he omitted from the invoice (DPA form 2360) both the identity of the facility at which the service was performed, and the identity (name and State medical license number) of the physician who had referred the patient to him, i.e., the physician who had requested Claimant’s consultation. IDPA’s invoice-preparation instructions, set forth in its MAP Handbook For Physicians (Appendix A-l), require that both the facility name and the referring physician’s identity be reported on the invoice; and Claimant’s invoice was refused payment by IDPA due to these deficiencies. As Claimant did not thereafter submit a properly-prepared rebill invoice of his consultation charge within the one-year period required by IDPA Rule 140.20(d) (89 Ill. Adm. Code §140.20(d)) and by Federal Medicaid regulation (42 C.F.R. §447.45(d)), the State has no payment liability for his consultation services. Subsection (e) of IDPA Rule 140.20, cited supra; and see Methodist Medical Center v. State (1986), 38 Ill. Ct. Cl. 208; Memorial Medical Center v. State (1988), 40 Ill. Ct. Cl. 73, 77-78, and decisions therein cited; Franciscan Medical Center v. State, No. 86-CC-0368; Riverside Medical Center v. State, No. 87-CC-0780; and St. John's Hospital v. State, No. 86-CC-2055.

Vendor-Payment As Payment In Full. Claimant acknowledges that IDPA paid him for the surgery performed on patient Perez, and is here seeking payment of the $290.00 difference between that vendor-payment and the amount of his charge for that surgery. In response, IDPA reports that the amount paid Claimant had been computed “according to a schedule of Statewide pricing screens,” based in substantial part “upon funds appropriated by the General Assembly,” the market values of individual medical services and upon other factors, as required by IDPA Rule 140.400 (89 Ill. Admin. Code §140.400) and related statutes, e.g., section 5 — 7 of the Public Aid Code (Ill. Rev. Stat., ch. 23, par. 5 — 7). Section 5 — 7 clearly states that the Department is to “consider but is not mandated to pay other fees or rates charged in the community to persons not eligible for medical assistance,” when negotiating rates of payment for medical-service dispensers’ services. Section 11 — 13 of the PAC is equally clear in providing that,

“[a] vendor payment * * 0 shall constitute payment in full for the goods or services covered thereby; * °

and that

“[acceptance of [IDPA’s] payment shall bar [the vendor] from obtaining, or attempting to obtain, additional payment therefor from the recipient or any other person 0 ” e.”

except as permitted by IDPA’s regulations. Participation in IDPA’s MAP obligates medical vendors to “[a]ccept as payment in full the amounts established by the Department” (89 Ill. Admin. Code §140.12(h)) as appropriate compensation for specified services. IDPA’s MAP Handbook For Physicians (Topic 111) and Federal Medicaid regulations (42 C.F.R. §447.15) impose the same obligation.

The Department receives a fixed sum from the General Assembly, with which to pay for care furnished its recipients by each of the major categories of medical vendors. In regard to “non-institutional practitioners and laboratories” (to which IDPA Rule 140.400 applies), IDPA’s tasks are: to allocate the amount of funds appropriated among physicians, dentists, optometrists, podiatrists and similar vendor categories; and to develop comprehensive schedules (“pricing screens”) of rates to be paid for each of the many different medical/surgical procedures and other services performed by members of these categories. In performing these tasks, it is guided by recommendations from statutory advisory groups and representatives of the medical community and the general public. The resulting rates reflect the State’s efforts to

“allocate its limited resources in a manner which will afford relief to the greatest number of individuals.” Lawrie v. IDPA (1978), 72 Ill. 2d 335, 348.

Although IDPA’s rates here gave rise to payment at a level less than Claimant’s charge for patient Perez’s surgery, we find that Claimant had agreed to accept that payment “in full” for his services, when he enrolled as a MAP participant. Section 11 — 13 of the PAC; IDPA Rule 140.12; Topic 111 of IDPA’s MAP Handbook; and see this Court’s October 11, 1989 opinion in Treister & Wilcox v. State (1990), 42 Ill. Ct. Cl. 185.

Requirement Of Timely Invoice-Submission. Claimant alleges that he performed surgery on patient McCullum on May 30, 1985, but does not allege that he invoiced his charge therefor to IDPA in the manner and within the time prescribed in subsections (a), (b) and (c) of IDPA Rule 140.20. In a series of decisions (e.g., Canlas v. State (1987), 39 Ill. Ct. Cl. 150; Krakora v. State (1987), 40 Ill. Ct. Cl. 233; and Simon v. State (1987), 40 Ill. Ct. Cl. 246), we have determined that a vendor’s right to receive a vendor-payment is contingent upon his demonstrated, timely compliance with each of Rule 140.20’s requirements; and that, under subsection (e) of the Rule, no State liability exists in the absence of such compliance.

That Claimant commenced this vendor-payment action less than one year after rendering the subject services does not excuse his failure properly to invoice his charges through administrative channels to IDPA within that one-year period, as required by Rule 140.20 and 42 C.F.R. §447.45. Dr. Ryan does not allege that he had submitted a “clean claim” invoice (defined in subsection (b) of 42 C.F.R. §447.45) for Perez’s services, or any invoice for McCulIum’s services, to IDPA within that time period. Thus, any Court award on either patient account would be in contravention of the regulatory and Handbook requirements and deadlines discussed herein.

It is hereby ordered and adjudged that Respondent’s motion for summary judgment is granted, Claimant having been paid in full for patient Perez’s surgery and having failed to comply with applicable Federal and State regulatory requirements, as discussed above, in respect to McCullum’s surgery and Perez’s consultation. Judgment on all issues presented is hereby entered against Claimant and in favor of Respondent on the subject claim; and said claim is dismissed with prejudice.


text:
    (No. 86-CC-2972
    David H. Katzenberger, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 8, 1991.

    Kassly, Bone, Becker, Dix, Reagan & Young, P.C. (John M. English, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Phillip McQuillan, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Montana, C.J.

This is a claim for personal injuries pursuant to section 8(d) of the Court of Claims Act. (Ill. Rev. Stat. 1989, ch. 27, par. 439.8(d)). Claimant David Katzenberger alleges that he was injured as a result of the negligence of one of the State’s agents when, on March 14, 1985, he was forced to “lay his motorcycle down” after a Department of Conservation truck unexpectedly entered his lane in order to make an improper U-turn.

At approximately 1:25 p.m. on March 14, 1985, Mr. Katzenberger was driving his motorcycle westward on U.S. 40. At the same time, Norman Williams, an employee of the Respondent’s Department of Conservation, was operating (within the scope of his employment duties) a Department of Conservation truck on U.S. 40 approximately one-half mile west of Sand Prairie Lane.

It is Mr. Katzenberger’s claim that, just prior to the accident, he was in the passing or inside lane, and that Mr. Williams was in the slower or outside lane. U.S. 40 at the point in question is a four-lane highway with two lanes going in each direction, with the east and westbound traffic being separated by a central divider or curb. Claimant testified that he was traveling approximately 45 miles per hour and that, as he came within 15 to 20 feet behind the Conservation truck, Respondent’s agent stuck his hand out the window, waved it up and down, and proceeded to cross over into Claimant’s lane. Claimant testified he did not notice any electrical turn signal. Upon further inquiry, Claimant testified that the Conservation truck, at that time, was travelling only 20 to 25 miles per hour and slowing. According to the Claimant, when the truck changed lanes, he was forced to move as close to the center curb as possible and, ultimately, to lay the motorcycle down in order to avoid hitting Mr. Williams.

It is undisputed that Claimant never struck the Conservation truck (the motorcycle and Claimant slid to a stop approximately 12 to 15 feet behind the truck). Other evidence was produced showing that Respondent’s agent pled guilty, in Madison County Circuit Court, to the charge of attempting to execute an improper U-turn.

Claimant also produced a Mr. Hooper who testified that he witnessed the accident in question. Although Mr. Hooper’s testimony, at times, was a little confusing, after reading the entire transcript and taking his testimony as a whole, it is clear that Mr. Hooper agreed with Mr. Katzenberger as to what transpired on the day in question. It was Mr. Hooper’s impression that Claimant was attempting to pass the Conservation truck. Mr. Hooper testified that when Claimant approached the Conservation truck, Mr. Williams went from the outside lane over into the passing lane and “pushed claimant up on the median.”

The Respondent, on the other hand, would have this Court believe that its agent was stopped in the left hand or passing lane for approximately a minute and a half. Mr. Williams testified that he had the electrical turn signal on, his foot on the brake, his hand out the window (“frantically waving it up and down”), waiting for oncoming traffic to clear so that he could execute his U-turn. Mr. Williams testified that he saw Claimant initially attempt to maneuver around the truck; however, when the attempt failed, Claimant laid the motorcycle down with a resultant skid of approximately 30 feet.

It is undisputed that the weather was clear and that the road was dry, straight and level.

Respondent first argues that Claimant has failed to prove negligence by a preponderance of the evidence. Additionally, Respondent argues that, even if it was negligent, such negligence was not the proximate cause of Claimant’s accident.

The Court disagrees.

Illinois Revised Statutes, chapter 95/2, par. 11— 802(a) requires “that the driver of any vehicle shall not turn such vehicle so as to proceed in the opposite direction unless such movements can be made in safety without interfering with other traffic.” Further, Illinois Revised Statutes, chapter 95/2, par. 11 — 709(a) indicates that when driving on roadways laned for traffic, “a vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” There is also an Illinois statute which defines the proper method of giving hand and arm signals. In 111. Rev. Stat., ch. 95M, par. 11 — 806, it states: “All signals herein required to be given by hand and arm shall be given from the left side of the vehicle in the following manner, and such signals shall indicate as follows: (1) left turn — hand and arm extended horizontally; (2) right turn — hand and arm extended upward; (3) stop or decrease of speed — hand and arm extended downward.” Additionally, this Court of Claims has stated: “Operators of State vehicles are charged with the same duty of care as other drivers upon the highway, and the State is liable for damages proximately caused by their negligent acts.” (Marquis v. State (1985), 37 Ill. Ct. Cl. 222.) Lastly, the Appellate Court for the Second District noted: “A violation of a statute, such as a speed limit, that is designed to protect human life or property, is prima facie evidence of negligence.” Old Second National Bank of Aurora v. Baumann (1980), 86 Ill. App. 3d 547, 408 N.E.2d 224.

In the case at bar, not only did Claimant testify as to negligent acts by Respondent, but so did an independent witness (Mr. Hooper), and Respondent’s own agent (Mr. Williams). There is uncontradicted testimony that Respondent’s agent gave an improper hand signal (i.e., he waved his hand up and down instead of as required by par. 11 — 806). There is testimony (albeit conflicting) that Respondent’s agent failed to use his directional turn signal. There is evidence that Respondent’s agent improperly changed into, or encroached upon, Claimant’s lane. There is testimony that Respondent’s agent may have violated the common law maxim that “a driver intending to stop or suddenly slow down his vehicle must use due care for the safety of vehicles following so closely behind him lest they may be imperiled by a sudden stop.” (See Ryon v. Javior (1979), 69 Ill. App. 3d 946, 387 N.E.2d 936, 942.) Lastly, the mere facts that the Respondent’s agent pled guilty to the charge of attempting to make an improper U-turn, and the accident itself, tend to show negligence. Taking all of the above into account, it is felt that Claimant has met his burden with respect to showing negligence and that Respondent’s negligence was the proximate cause of Claimant’s injuries.

Notwithstanding the foregoing, it is felt that Claimant was also negligent. “A driver of an automobile must use every reasonable precaution to avoid a collision with the automobile ahead.” (Ryon at 952.) “A driver approaching from the rear has a duty to keep a safe lookout and must take into account the prospect of having to stop his vehicle suddenly.” Id.; Economy Fire & Casualty Co. v. State (1984), 36 Ill. Ct. Cl. 214, 215. “A driver who does not maintain a proper lookout for traffic ahead is negligent.” (Ryon at 952.) “A driver’s duty is to see that which he clearly should see.” Marquis v. State (1985), 37 Ill. Ct. Cl. 221, 223.

In the case at bar, there is uncontradicted testimony that the road was clear, dry, straight and level. Claimant had a duty to observe, or take note of the Conservation truck. Additionally, Claimant should have foreseen that a Conservation truck may make unusual turns and stops in the performance of its duties. (See Marquis at 223.) Lastly, the fact that motorcycles are traditionally more difficult to observe (as compared to cars, etc.), should have given Claimant the impetus to exercise a greater degree of care for his safety. As Illinois has adopted the theory or doctrine of comparative negligence (see Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886), Claimant is found to have been 35% negligent and his award should be reduced accordingly.

As a result of “laying his motorcycle down,” Claimant suffered a dislocated shoulder and lacerations and abrasions to his knees and elbows. The above-mentioned dislocation also caused Claimant to suffer a more permanent injury in that he has now lost some 55 degrees of flexion in his left shoulder. There is also evidence that Claimant might have suffered a possible rotator cuff tear (and, although disputed), an aggravation of a preexisting condition known as osteoarthritis.

As far as the osteoarthritis condition is concerned, Respondent draws attention to the fact that Claimant’s counsel, during the medical expert’s evidence deposition, failed to inquire whether the motorcycle accident aggravated said condition based upon a “reasonable degree of medical and surgical certainty.”

When addressing the above issue, it is important to note that the parties stipulated at the beginning of the doctor’s deposition that “all objections, except objections to the form of the question asked, # * are hereby reserved * * As Respondent’s objection goes to the form of the question asked, the objection should have been raised during the deposition. Since Respondent failed to object at the deposition with respect to this issue, it will be treated as having been waived.

Respondent next argues that several of the itemized damages listed in Claimant’s brief are either too speculative or excessive. As shown below in the award given, it is felt that Respondent’s arguments have at least some merit.

Lastly, Respondent argues that Claimant’s claim for lost wages should be denied. In its brief, Respondent cites Turner v. Chicago Transit Authority (1984), 122 Ill. App. 3d 419, 461 N.E.2d 551, as supporting the proposition that a plaintiff, unemployed at the time of an accident, cannot recover lost wages unless there is evidence establishing with reasonable certainty that, but for the accident, he would be employed at a similar job. Because it is felt that Claimant’s employment opportunities were/are speculative at best, such claim for lost wages must be denied.

The Court therefore finds that the total value of this claim is $55,000.00. The above award should be reduced to $35,750.00 because Claimant is responsible for 35% of the total negligence.


author: Sommer, J. Sommer, J.

text:
    (No. 86-CC-3222
    Bobbie Scroggins, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 8, 1991.

      Order on motion for rehearing filed April 3, 1991.

    Levine, Brustin, Sorkin & Nusbaum (Charles E. Webster, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Daniel H. Brennan, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

Claimant, Bobbie Scroggins, seeks to recover damages for personal injuries and damage to her automobile, sustained on November 19, 1985, while driving in a southerly direction on Highway 1-394, approximately 1 miles north of the Glenwood Dwyer exit.

Claimant testified that when driving on 1-394, a concrete piece tipped up under the weight of her automobile revealing a spike which punctured one of her tires, causing her to lose control of the auto and collide with the stone divider on the highway. She testified that she saw no pothole on that day or previous days at the location of the accident.

Respondent’s prime witness was John P. Cannon, a field technician for the Illinois Department of Transportation (IDOT) for 26 years. For the last nine years, Mr. Cannon was head supervisor at the Calumet maintenance yard, which handled all maintenance on the roadway surface on Calumet Expressway 1-80,1-94 and 1-394, which covered the area involved in the accident. Mr. Cannon testified that on November 15,1985, he had a pothole crew working in the subject area with the necessary truck and equipment. This crew repaired all the potholes they could see, according to Mr. Cannon. He further testified that after a search of the records, there were no complaints filed with IDOT as to any potentially dangerous condition of the roadway within the time frame of this accident.

A well-established rule of law in claims such as this is that “the State of Illinois is not an insurer against all accidents which may occur by reason of the condition of its highways.” Gray v. State (1954), 21 Ill. Ct. Cl. 521.

Additionally, a defective condition is not in itself negligence on the part of the State. Palmer v. State (1964), 25 Ill. Ct. Cl. 1.

The law to be applied in the present case was well stated in Stills v. State (1989), 41 Ill. Ct. Cl. 60, 62:

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

The State’s duty is to maintain highways in “reasonably safe condition” by using reasonable diligence in such maintenance. (Wing v. State (1977), 31 Ill. Ct. Cl. 473, 476.) The Claimant bears the burden of establishing by a preponderance of the evidence that the State breached its duty. Wing, supra.

The fact that the State’s maintenance crew was working on the same section of highway within a few days before the accident filling all the potholes visible is evidence of diligence. Nonetheless, the State would breach its duty if the Claimant establishes that the State had actual notice or constructive notice of the defect which caused the accident.

There is no evidence of actual notice on the part of the State. The State’s records show no prior complaints in the area of the accident. The State claims to have filled all the potholes in the area just a few days before the accident. The Claimant testified that she did not see a pothole at the accident site on the day of the accident or previous days. If this Court adopts the Claimant’s view of the mishap that a piece of the pavement gave way when she drove over it and revealed a spike, the State would have had no actual notice of this defect until the accident.

Whether the State had constructive notice depends on the facts of each case. Stills, supra.

Constructive notice is imputed to the State where a condition by its evident nature, duration, and potential for harm should necessarily have come to the attention of the State, so that the State should have made repairs.

The Claimant argues that the defect, that is, a piece of sharp metal near the surface of the roadway, could only have been caused by the negligence of the State, either in repair or construction of the roadway. However, this argument does not reflect the rule of law as stated in Palmer, supra., that a defective condition is not in itself negligence on the part of the State. The Claimant must present some evidence tending to impute constructive notice. The Claimant has not done so.

The fact that a defect in the highway may have caused the accident is not determinative. The State must have had actual or constructive notice of the defect. In this claim such notice has not been proven by the Claimant by a preponderance of the evidence.

Therefore, this claim is denied and dismissed.

ORDER ON MOTION FOR REHEARING

Sommer, J.

This cause coming to be heard on the motion of the Claimant for rehearing, due notice having been given, and this Court being fully advised in the premises,

Finds that the Claimant has alleged no new facts or arguments sufficient for this Court to find that the State had actual or constructive notice of the defect alleged. It is therefore, ordered that the Claimant’s motion for rehearing is denied.


text:
    (No. 86-CC-3357
    Coston Paschal and Buesing Brothers Trucking, Inc., Claimants, v. The State of Illinois, Respondent.

      Opinion filed February 2, 1990.

      Order of dismissal filed March 18, 1991.

    Goldberg, Fohrman & Weisman, for Claimant Coston Paschal.
    Roland W. Burris, Attorney General (Edward R. Telling, Special Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

This cause coming to be heard on the motion of the Respondent to dismiss, and the Court being fully advised in the premises,

Finds that the Claimant who was employed on a highway construction project was struck by a truck owned by Buesing Brothers Trucking, Inc. The Claimant’s employer, Civil Constructors Inc. paid the Claimant the sum of $272,872.59 in workers’ compensation. The Claimant has sued the trucking company in the circuit court and the State in the Court of Claims. The State bases its motion to dismiss on the principal that the workers’ compensation received by the injured employee must be “set-off” from any award taken against the State, and since the Claimant has received more than $100,000.00, the claim should be dismissed.

Though this Claim may ultimately present a variety of issues to the Court, the issue before us now is whether workers’ compensation awards are to be “set-off.”

The most recent reported claim deciding the same issue, Frazier v. State (1972), 28 Ill. Ct. Cl. 80, which set-off a workers’ compensation award, was decided under a somewhat different statute. At the time, this Court was directed to “set-off” recoveries from “any other source.” In 1973, the words “any other source” were dropped and the statute now reads:

“There shall be but one satisfaction of any claim or cause of action and any recovery awarded by the Court shall be subject to the right of set-off. Ill. Rev. Stat., ch. 37, par. 439.24 — 6.”

The requirement that this Court “set-off” recoveries from “any other source” obviously had the effect of staying the operation of the collateral source rule in the Court of Claims. In the circuit courts, the collateral source rule would be invoked to deny a set-off of workers’ compensation payments, as they arise from an independent statutory source, the employer.

In Sallee v. State (1990), 42 Ill. Ct. Cl. 41, this Court has held that payments made by the Claimant’s own health insurance are not to be “set-off,” but rather to be treated as in the circuit courts under the collateral source rule. Adopting the same logic as in Sallee, supra, this Court holds that workers’ compensation payments are not to be “set-off,” unless the employer has filed its lien as per the Workers’ Compensation Act (Ill. Rev. Stat., ch. 48, par. 138.5), in which case the employer’s lien can be satisfied from the award of the Claimant.

It is therefore ordered that the Respondent’s motion to dismiss is denied.

ORDER OF DISMISSAL

Sommer, J.

This cause coming on to be heard on stipulation of the parties and the Court being fully advised in the premises,

It is hereby ordered, adjudged and decreed that the above entitled litigation, including all counterclaims, be dismissed with prejudice and in bar of further suit, all matters in controversy having been compromised and settled.


text:
    (Nos. 88-CC-0946, 87-CC-1000 cons.
    All States Painting, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 18, 1991.

    Bellatti, Fay, Bellatti, Beard & Carpenter, for Claimant.
    Roland W. Burris, Attorney General (Gregory Riddle, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Montana, C.J.

Claimant All States Painting, Inc. (hereinafter referred to as All States) brought these claims seeking payment for work performed pursuant to a contract with the Respondent’s Capital Development Board (hereinafter referred to as the CDB). The claims were initially filed on standard lapsed appropriation form complaints. The allegations were, inter alia, that demands for payments were made to the CDB and that the demands were refused on the grounds that the funds appropriated for the payments had lapsed. As the cases developed it became clear that much more than lapsed appropriations were involved. The cases were assigned to a commissioner and consolidated. A hearing was held, briefs were filed, the commissioner has made his report, and the case is now before us for decision on the merits.

The facts are for the most part undisputed. On March 24,1986, All States responded to an invitation by the CDB to submit bids for the rehabilitation of a 500,000 gallon elevated water tower located at the Jacksonville Developmental Center in Jacksonville, Illinois.

The bidding documents provided for the bidder to quote a price for “General/Painting Work” and also asked bidders to quote a unit price for doing electric fusion pit-welding, the unit price to be stated in terms of the bidders’ price for doing units of 50 pit-welds. The base bid included welding 300 pits.

All States’ bid was $36,000.00 for the base and a unit price of $350.00 for each 50 pits. On May 21,1986, CDB sent All States a notice of award stating that its bid was accepted. This document showed the contract amount as $36,000.00 and made no reference to the unit price portion of All States’ bid. In this document, as was true with the bidding documents, All States was warned that all work “shall be completed # * no later than September 1,1986.” All States on that same date signed a contract which provided for a contract amount of $36,000.00 and left blank the area following the phrase, “the following alternate bids, unit prices and material substitutions have been accepted and are incorporated in this contract.” However, the project manual, which was incorporated into the contract by reference, stated “All pits on waterside surfaces of bowl, shell and riser cylinder shall be filled with weld metal by electric fusion welding process. This shall include all pits 1/8 inch or deeper.”

A “pit” is an area one inch square on the inside of the elevated water tank that has become so corroded that it must be repaired so that after the tank has been repainted debris will not adhere to it. Pit-welding consists of filling these pits so that the metal of the tank is restored to its original thickness.

According to the Claimant, before any pit-welding could be done the interior of the tank had to be sandblasted to remove loose particles and to clean the tank down to the bare metal. The Claimant also stated that when the interior of a tank is badly corroded and a substantial amount of pit-welding is needed, the initial sandblasting takes three times as long as it does if the inside of the tank is smooth.

It was only after the initial sandblasting was complete that it could be determined how extensive was the need for pit-welding. Prior to that there was no way of knowing how many pits would require welding. It was ultimately agreed that 18,350 pits required welding, 18,050 (316 units of 50 pits each) more than what were included in the base bid.

After the pit-welding was completed, it was necessary to sandblast the interior of the tank again in order to smooth the surface. The presence of the pit-welds, which make the surface quite uneven, causes this sandblasting to take four times as long as would be the case on a smooth surface. Only then was the interior ready for the two coats of paint called for in the specifications. The necessity of pit-welding thus resulted in a substantial labor cost to Claimant, over and above what would have been required otherwise, not only for the sandblasting, but also in providing men on site while the welding was going on in order to comply with safety regulations. The pit-welding work, which was done by All States’ subcontractor, Birdco Fabricators, took 28 days to complete, using three men.

All States began its work on the tower soon after July 10, 1986. By August 8, 1986, the subcontractor had completed a substantial portion of the pit-welding work. Bernie McCabe, project manager for CDB was on the site approximately three times a week during performance of the job. However, at no time did he ask or demand that All States stop the pit-welding in order to get a change order approved. Indeed, Mr. McCabe stated to both the subcontractor, Everett Birdsell, and to All States’ vice president and job superintendent, Michael Desyllas, that the pit-welding was being done under the unit price of $350.00 per 50 pits and that All States should go ahead with the work. Mr. McCabe, who was the only CDB representative with whom All States had contact during this project, made this statement to Mr. Birdsell close to completion of the pit-welding work. Also, two men from the CDB, described by the Respondent as engineers and investigators, came to the site while the pit-welding was ongoing in order to inspect the condition of the interior and determine the amount of pit-welding required. Again, no stop work order was given after this inspection, and the pit-welding was continued to completion.

In fact, it was not until August 18, 1986, when the pit-welding was virtually completed, that All States was informed that its unit price bid had not been accepted. Patricia Desyllas, president of All States, testified that the company would never have signed the contract if it had known that the CDB was attempting to accept only a part of its bid.

On September 2,1986, John Evans of CDB wrote to All States asking for its cost breakdown in welding the pits. On September 17, 1986, All States submitted its invoice-voucher requesting payment of $162,350.00 being the amount of its base bid and welding of 18,050 pits at $350.00 per 50 pits. However, these documents were returned to All States in mid-October.

Thereafter, without the knowledge of All States, CDB contacted Birdco Fabricators, the subcontractor, and asked for its costs involved in the pit-welding so that a change order could be prepared. The subscontractor’s information was placed on a form used to start the change order process. The change order document itself was prepared December 15, 1986, and ultimately was approved by CDB on March 20,1987. This change order in the amount of $32,248.87, was based solely on the subcontractor’s costs in doing the pit-welding; other than the subcontractor costs, none of All States’ costs were figured into the change order. During the three months that this change order request was pending, no one from CDB notified All States that this process was going on or asked for All States’ costs involved in the pit-welding. All States had no knowledge that this process was taking place. CDB was interested in getting its paperwork finished and closing its file.

Relying upon advice of counsel, All States did not submit a request for change order in the Fall of 1986 because it believed the unit prices to be a part of the written contract and because the project was not finished anyway. However, on February 24, 1987 (approximately a month before the change order for $32,248.87 was approved by CDB), All States did submit a cost breakdown and request but the CDB made no reply to it.

Patricia and Michael Desyllas presented uncontroverted evidence at trial of All States’ actual added expenses caused by the necessity of the pit welding work:

Labor $27,510.00

Worker’s compensation 22,041.97

Employment taxes 5,018.77

Liability insurance 4,956.82

Subcontractor 27,075.00

Pension and welfare 3,851.40

Bond 1,814.40

Equipment rental 7,400.00

Total $99,668.36

Respondent in fact stipulated that these costs were true and accurate. John Evans, section manager for construction management of CDB, testified that it is CDB’s practice, under its rules and regulations, to allow a contractor 15% for overhead and profit, over and above its actual expenses in doing extra work. CDB’s general practice is that payment for extra work is based upon the contractor’s actual expenses incurred in doing the work.

All States has received no payment from CDB for its work on this project and has filed two claims. The first claim seeks $32,400.00 for the amount of the base bid, less a 10% retainage. The second claim, as later amended, seeks $129,950.00, consisting of the $3,600.00 retainage and $126,350.00 for the extra pit welding work.

As the counsel for the Respondent stated in his brief, “Thus, the question before this Court is not whether or not money is owed to the Claimant, but rather how much.” It is the CDB’s position that $68,648.87 is owed. That sum, Respondent states, consists of the $36,000.00 base contract price less the 10% retainage and plus the $32,248.87 approved on the change order. (Respondent’s brief, pages 2 and 17.) We do not understand this calculation. Also, why Respondent would disallow the retainage is unclear. A certificate of completion has been issued and there is no dispute that the Claimant completed the project satisfactorily and in accordance with the specifications.

The major issue in. this case is whether or not the parties’ contract called for the Claimant to perform the 361 units of pit welding not covered in the base contract. The terms of the contract are less than clear. Both sides made salient arguments as to their interpretations and positions. However, during the inception and performance of the contract there appears to have been a “meeting of the minds” or agreement as to the terms and it was not until after virtual completion and the unforeseeable variable of the number of units necessary to do the job became certain that the CDB raised the issue and sought to get out from under its obligations.

The actions of the parties are indicative of what was intended. The CDB sought to let no other contract on the job for the pit welding variable even though it had to know All States could not begin to do the painting which comprised the base bid until the welding was done and that All States had a September 1986, completion date. Three days a week the CDB’s project manager was on the site and had continuous knowledge of the progress of the project and the increasing number of necessary pit welds. Two investigator/engineers from the CDB inspected the job as it progressed. The project manager acknowledged that the bid unit price would be paid. While these CDB agents may not have had authority to agree to the unit bid price, their knowledge of what was going on at the site can be imputed to their principal and their actions are at least evidence of what their principal’s understanding of the terms of the contract was and what their principal had previously agreed to. They nor anyone else directed the Claimant to stop at any time. It was not until the pit welding job was virtually complete that the CDB sought to interject controversy and seek to have the Claimant go through the change order process.

Eventually the CDB apparently unilaterally issued a change order based solely on the subcontractor’s costs. The change order was issued a month after All States had submitted its costs. The Respondent stipulated to All States’ costs at the hearing. Testimony at the hearing was that it was the CDB practice to allow cost plus 15% overhead and profit for “extra work.” Yet the change order was issued for only about a third of the Claimant’s costs.

The actions of the Claimant indicate that at all times it thought it had a contract containing the unit price, that its position was consistent with what it was led to believe was that of the CDB as evidenced by the actions of its project manager, and that it was willing to stand by its terms of the bargain.

We hold that the parties had a contract for both the base and unit price and we find that the Claimant has suffered damages for the breach of that contract totalling $162,350.00.

The matter of entering judgment remains. It is this Court’s policy in breach of contract claims to limit awards so as not to exceed the amount of funds, appropriated and lapsed, with which payment could have been made. To do otherwise, i.e., to award money for debt incurred beyond the sum allotted by the General Assembly, would be tantamount to granting a deficiency appropriation. The appropriation of State funds is the constitutional prerogative of the General Assembly. It is the Court’s duty to uphold that process. It is also the Court’s duty to advise the General Assembly. (Thorlief Larsen & Son, Inc. v. State (1990), 42 Ill. Ct. Cl. 195; Bojko v. State (1988), 41 Ill. Ct. Cl. 202; J.F. Inc. v. State (1988), Ill. Ct. Cl. 5; Loewenberg/Fitch Partnership v. State (1986), 38 Ill. Ct. Cl. 227; Ude, Inc. v. State (1982), 35 Ill. Ct. Cl. 384.) In the case at bar insufficient funds lapsed to cover all of the Claimant’s damages.

The Respondent filed a departmental report which was compiled by the CDB and offered as prima facie evidence of the facts contained therein pursuant to 74 Ill. Adm. Code 790.140. Although the Claimant did respond to the filing, it did not contest the fiscal data in the report. According to the report, at items 8, 9, and 10, the CDB lapsed $103,660.25 in the line item appropriation, No. 001-46125-6900-05-00, in fiscal year 1986, from which the payments on the contract were to have been made. This figure differs slightly from the $96,000.00 Respondent in its brief stated was the total appropriation. Respondent cited Claimant’s exhibit 21 as the source. However, that exhibit is the recommendation to award contracts document and contains only estimates and projections. The departmental report is prima facie evidence. The report also states that no claims other than the ones at bar have been made against the lapsed balance. Therefore we will be constrained to award no more than $103,660.25.

In fulfilling our responsibility to advise the General Assembly and for purposes of possible further consideration of this claim by the General Assembly, we point out the following. Claimant suffered damages due to the breach of the contract totalling $58,689.75 in excess of the award to be given (the amount of the appropriation). Under the circumstances of this case, including the unforeseeable, the CDB could not adhere to the unit bid. After the total amount of necessary work was ascertained, there was a problem with a potential violation of a provision of the State Finance Act (Ill. Rev. Stat., ch. 127, par. 166), as alluded to in Respondent’s brief. The amount we are constrained to award barely covers Claimant’s actual costs for only the pit welding, leaving very little for profit and overhead on the pit welding and nothing for the base contract. But for the insufficient lapsed funds, an award of $162,350.00 would have been made.

It is hereby ordered that the Claimant be, and hereby is, awarded $103,660.25; the claim for interest is denied.


author: Dillard, J. Dillard, J. Raucci, J.

text:
    (No. 87-CC-1320
    Annette Buchanan, Claimant, v. The State of Illinois, Respondent.

      Opinion on motion to dismiss filed January 17, 1989.

      Order on motion to reinstate filed May 1, 1989.

      Order on motion to dismiss filed March 22, 1991.

    James R. Vassilow & Associates and Dan Walker, Jr., for Claimant.
    Roland W. Burris, Attorney General (Gregory Abbott, Assistant Attorney General, of counsel), for Respondent.
   ORDER ON MOTION TO DISMISS

Dillard, J.

This cause coming on to be heard on Respondent’s motion to dismiss, due notice having been given and the Court being fully advised in the premises;

It is hereby ordered that Claimant is granted 45 days from the filing date of this order to respond to Respondent’s motion to dismiss;

It is further ordered that should Claimant fail to respond to this Order, this case is dismissed with prejudice.

ORDER ON MOTION TO REINSTATE

Dillard, J.

This cause coming on to be heard on Claimant’s motion to reinstate cause, due notice having been given and the Court being fully advised in the premises;

It is hereby ordered that the Court’s order of January 17, 1989, dismissing this claim with prejudice is vacated and this matter is fully reinstated.

It is further ordered that Dan Walker, Jr. is granted leave instanter to file his appearance on behalf of Claimant in this matter.

ORDER ON MOTION TO DISMISS

Raucci, J.

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

That Claimant filed a complaint in the instant matter alleging personal injuries suffered on December 14, 1984, when she was physically assaulted by Mr. Baron Buchanan on a Chicago Transit Authority elevated platform.

That section 790.60 of the Court of Claims Regulations and section 25 of the Court of Claims Act (Ill. Rev. Stat. 1987, ch. 37, par. 439.24 — 5) require that any person who files a claim before the Court of Claims shall, before seeking final determination of his claim by this Court, exhaust all other remedies and sources of recovery whether administrative, legal or equitable.

That Claimant ignored section 25 of the Act and section 790.60 of the Regulations by failing to exhaust her remedies against her attacker, Baron Buchanan, prior to seeking final disposition in the Court of Claims.

That section 790.90 of the Court of Claims Regulations clearly mandates that failure to comply with the provisions of section 790.60 shall be grounds for dismissal.

That this Court has faced a similar situation before. In Boe v. State (1984), 37 Ill. Ct. Cl. 72, the Claimant brought suit against the State after her daughter, a passenger in an automobile, died when the driver of that auto collided with an allegedly defective guardrail on a State highway. The Claimant, however, did not file suit against the driver of the vehicle, and as a result, the Respondent filed a motion to dismiss for failure to exhaust remedies pursuant to section 25 of the Court of Claims Act and section 790.60 of the Court of Claims Regulations. In response, the Claimant argued that she “should be given a certain latitude and discretion in determining whom to sue,” and, in essence, that it “did not seem reasonable to sue an uninsured 18 year-old boy with no assets.” Id. at 75. The Court rejected Claimant’s argument and granted Respondent’s motion to dismiss, holding that the Claimant “must exhaust all possible causes of action before seeking final disposition of a case filed in the Court of Claims.” Id. (Emphasis in original.) The Court reasoned that the language of section 25 of the Act and section 790.60 of the Regulations “clearly makes the exhaustion of remedies mandatory rather than optional,” and that if it were to waive this requirement, “the requirement would be transformed into an option, to be accepted or ignored according to the whim of all Claimants.” Id. at 76, quoting Lyons v. State (1981), 34 Ill. Ct. Cl. 268, 271-72.

Like the Claimant in Boe, the Claimant in the instant matter has failed to exhaust her remedies.

It is hereby ordered that Claimant’s claim is dismissed.