text:
    (No. 83-CC-1227
    Francis A. Boyle and Walter Boyle, Claimants, v. The State of Illinois, Respondent.

      Opinion filed January 30, 1989.

    Boyle, Goldsmith, Shore & Bolin, for Claimants.

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

This is an action by the Claimants, Francis A. Boyle and Walter Boyle, to recover for damage to their personal property and real estate allegedly sustained as the result of a flood which occurred on the evening of July 6 and morning of July 7, 1982. The Claimants alleged that their damages were sustained as a result of the negligent maintenance of Clear Creek Bridge in Putnam County, Illinois. In the alternative, the Claimants allege that the bridge itself was defectively designed. Clear Creek Bridge is maintained by the Illinois Department of Transportation and it carries Illinois Route 26 over Clear Creek and is situated in Putnam County, Illinois.

At the location in question, Illinois Route 26 runs generally north and south and is a two-lane paved highway. Clear Creek is an intermittent stream and it flows generally from east to west toward the Illinois River. Clear Creek drains an area of approximately 24,000 acres.

At the time of the occurrence, the Claimants were operating a grain and livestock farm adjoining the intersection of Clear Creek and Illinois Route 26. The damages were sustained as a result of the flood, when a portion of the Claimants’ levee was breached by the flow of water within Clear Creek damaging a portion of their 1982 corn, soybean and alfalfa crop. In addition to the crop damages, the Claimants allege partial permanent damage sustained to their real estate. The Respondent has stipulated to the personal property damage in the amount of $10,163.59, leaving the real estate damage in the amount of $4,500.00 to be resolved by the Court along with the liability issue.

Evidence was submitted by the Claimants and by the Respondent, oral argument was made to Commissioner Bruno Bernabei and the parties have filed their respective written briefs. The Commissioner duly filed his report and the matter is before the Court for decision on the merits.

After a consideration of the documentary and oral testimony offered by the respective parties and after considering the oral arguments and written briefs, the Court finds, and is of the opinion that, the issues are in favor of the Claimants as the same relate to the allegation that the Respondent has negligently maintained Clear Creek Bridge and in relation to the damages thereby sustained. The Court makes no findings as to the Claimants’ allegations that the Clear Creek Bridge was defectively designed and no opinion is rendered on that issue.

The Court further finds that the State of Illinois and the Illinois Department of Transportation were charged with the duty of properly maintaining Clear Creek Bridge on July 6 and 7,1982, and prior thereto; that prior to the date of the flood, a large amount of sand, silt and debris accumulated at and beneath the opening to Clear Creek Bridge and that the Respondent had actual notice of said accumulation prior to the date of the flood herein concerned.

The Court further finds that, in any event, the Respondent would be charged with constructive notice of the presence of the accumulated debris at and beneath Clear Creek Bridge in sufficient time prior to the flood of July 6 and 7, 1982, in order to have taken remedial efforts to remove said accumulation. In this regard, the Court finds the testimony of Engineer Renwick to be persuasive in that the area in and around Clear Creek Bridge was susceptible to erosion and the accumulation of debris, sand and silt was a foreseeable event as alleged by the Claimants and that the geography and topography of the watershed area of Clear Creek made it likely that an accumulation of debris, sand and silt would result. The Court further finds, as admitted by the Respondent herein, that there was no inspection of the area beneath Clear Creek Bridge for nearly two years prior to the occurrence herein.

The Court further finds that the failure on the part of the Respondent to ascertain that there was an accumulation of debris, sand and silt at the Clear Creek Bridge and the Respondent’s further failure to effect a removal thereof, constituted negligent maintenance on its part and that as a direct and proximate result of that negligent maintenance, the backwater condition was allowed to occur on the evening of July 6 and morning of July 7, 1982, during the rain which occurred on those dates, and that as a result of the backwater condition within Clear Creek, the waters within Clear Creek topped the Claimants’ dike resulting in a breach to the same and the ensuing flood upon the lands owned and operated by the Claimants, all of which resulted in the damages sought by the Claimants herein. The Court finds, that the Claimants have sustained damage to personal property in the sum of $10,163.59 as stipulated, and damages to real estate in the additional sum of $4,500.00 as testified to by Claimants and not rebutted by the Respondent.

Claimants have met their burden of proof by a preponderance of the evidence that the State had actual or cohstructive notice, and that Respondent breached its duty olF reasonable care. Further, the Respondent may be charged with constructive notice of a dangerous condition when, from all circumstances in the case, it is determined that the State should have been aware of the existence of this condition in the exercise of reasonable care. Talbot v. State (1983), 35 Ill. Ct. Cl. 885.

It is therefore ordered that Francis A. Boyle and Walter t). Boyle be, and hereby are, awarded the sum of $10,163.59 for the damage to personal property; it is further ordered that Francis A. Boyle, pursuant to the assignment from Walter D. Boyle, be and hereby is awarded the sum of $4,500 for damages to real estate.


source: Caselaw Access Project

author: Raucci, J.

license: Public Domain

text:
    (No. 83-CC-2023
    Gregory K. Wassinger, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 19, 1988.

    Gregory K. Wassinger, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Claire Gibson, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This is a claim brought by Gregory K. Wassinger, a resident of Centralia Correctional Center, for personal injuries sustained by Claimant when a defective toilet attached to a wall in Claimant’s cell fell under Claimant’s weight, shattered on the floor, and lacerated the Claimant’s body.

On March 31, 1981, Claimant was incarcerated in the segregation cell at Centralia Correctional Center. The cell was supplied with a toilet stool attached to the wall by bolts. The stool unit was cracked on the sides where washers and bolts attached the toilet to the back of the wall. Claimant complained to various correctional officers on all three work shifts that the toilet was badly cracked and leaking and that it could not be used. Claimant could not apply any weight on the stool unit because he could hear the porcelain cracking and breaking where it was hooked up by the washers on the wall bolts.

On the day in question the Claimant was attempting to use the stool and to keep his weight off of the stool at the same time. Because the toilet was leaking, his foot slipped thereby casting his weight on the toilet. When Claimant’s weight struck the toilet, the toilet broke off the wall, shattered on the floor and the Claimant fell into the broken porcelain. Claimant sustained lacerations on his legs, buttocks and fingers. Claimant sustained a 3M-inch laceration on the side of his right buttock, a 1/4-inch laceration on his lower left thigh, a 4-inch laceration on his upper left thigh, a M-inch laceration above his left eye, a 1-inch laceration on his little finger on his right hand, and 3 small lacerations on his right hand fingertips. Claimant also sustained a bruised back. Medical treatment by Claimant involved some difficulty in cleaning the wounds of broken pieces of porcelain.

Claimant also sustained a back injury from which he still suffers pain. Claimant is unable to tie his shoes and cannot get out of bed in the morning.

Respondent did not dispute Claimant’s allegations that he was injured in the manner described in Claimant’s testimony. The testimony of the Claimant and the facts of this accident including the nature and degree of Claimant’s injuries sustained is virtually uncontradicted on the record in this case.

It is clear that the plumbing facilities in the cells housing inmates in the facilities of the Department of Corrections is under the management of Respondent. Furthermore, when an injury has been caused by something under the management of the Respondent and the injury is such that in the ordinary course of events it would not have happened if Respondent had exercised proper care, the accident itself affords reasonable evidence, in the absence of an explanation, that the accident arose from the Respondent’s want of due care. (Childress v. State (1985), 37 Ill. Ct. Cl. 269.) It is clear in the case at bar that Claimant brought the defective condition of the porcelain toilet to the notice of Respondent. Respondent was aware of the dangerous condition. (Burns v. State, 35 Ill. Ct. Cl. 782.) Furthermore, the uncontradicted testimony concerning the leakage causing a slippery condition and making it impossible for Claimant to use the facility without slipping and causing weight to be applied to the porcelain stool renders it impossible to charge Claimant with any degree of comparative negligence.

There is no question that Claimant sustained severe laceration injuries on account of the negligence of Respondent. Less clear is the degree to which the Respondent is responsible for the serious back condition about which Claimant complains. It is clear that Claimant has sustained considerable medical treatment for his back complaints since the incident in question. Further, Claimant’s testimony regarding his limited ability to move and engage in physical activities is uncontradicted by Respondent. Respondent does not deny that Claimant has sought and been afforded considerable treatment for the back condition which Claimant states originated with this accident. We find that the Claimant should be awarded $7,500.

It is therefore ordered, adjudged and decreed that the Claimant is awarded the sum of $7,500 in full and complete satisfaction for his injuries in this case.


author: Montana, C.J.

text:
    (No. 83-CC-2182
    Eugene Gregory, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 14, 1988.

      Order filed January 17, 1989.

    James B. Roberts and Martha Easter-Wells, for Claimant.
    Neil F. Hartigan, Attorney General (Jim Majors, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Montana, C.J.

Claimant, Eugene Gregory, an employee of Respondent’s Department of Corrections, claims that he is entitled to receive compensation for wrongful discharge by Respondent, including periods of time during which Civil Service Commission hearings regarding his discharge were continued at the request of Claimant.

Claimant was suspended pending discharge on June 6, 1981, and was discharged on July 6, 1981. As a result of a June 14, 1982, hearing before the Civil Service Commission which was made final on August 19, 1982, Claimant received a 90-day suspension and was reinstated to his position of Correctional Residence Counselor I as of September 6, 1981. Claimant was actually returned to the payroll beginning with the October 1-15, 1982, pay period. He also has received payment for the period between July 1, 1982, and September 30, 1982. Claimant is apparently therefore seeking payment for the period of September 6, 1981, until the hearing date of June 14,1982, as well as for the period of June 15,1982, through June 30,1982.

The record indicates the hearing date was continued 10 times until it was held on June 14, 1982. Nine of the continuances were requested by the Claimant. The other continuance, asking that the hearing be continued from August 14,1981, to August 25,1981, was requested by Respondent.

The applicable rules of the Civil Service Commission require that employees who are determined to have been wrongfully discharged may receive full compensation for the period of the wrongful discharge.

The Civil Service Commission rule in question in this case provides as follows:

“Rule 21(4). The granting of a request for continuance by the employee in a Discharge Appeal will constitute a voluntary waiver by him of any claim to compensation for the period of such continuance, if he is ordered retained in his position.”

There is no dispute that Claimant was retained in his position, subject to a 90-day suspension, at the conclusion of the Civil Service Commission hearings. Further, there does not seem to be a dispute that Claimant would be entitled to compensation for periods of continuance occasioned by acts of Respondent. The parties disagree, however, on the application of Rule 21(4) as it applies to the facts in this case.

Claimant argues that the continuances sought by Claimant were sought as a result of pending criminal proceedings arising out of the same facts from which Claimant’s discharge had occurred, which were allegedly wrongfully filed and pursued by Respondent’s agents. Claimant made the tactical decision of moving to continue the Civil Service Commission hearings until criminal matters against Claimant were resolved. Thus, Claimant’s testimony before the Civil Service Commission would not incriminate Claimant in the pending criminal proceedings. Claimant was placed on court supervision as a result of the criminal proceedings.

In support of Claimant’s argument, Claimant cites a number of cases from this jurisdiction where employees sought reinstatement to jobs from which they were wrongfully discharged long after the separation of their employment. In each of the cases cited by Claimant, the employer argued that the suit was barred by the doctrine of laches. In each case, the Court found that the doctrine of laches did not apply and permitted the Claimants to continue their suits.

None of the cases cited by Claimant interpret the application of Rule 21(4) to facts similar to those in this case. Claimant urges this Court to create an exception to the application of Rule 21(4) where the continuances sought by a Claimant in civil service proceedings arise from reasons related to the alleged prior wrongful act of Respondent. Claimant argues that if his continuances were caused by prior actions of Respondent in collateral proceedings, Rule 21(4) should not apply to bar his claim for back wages during those continuances.

This Court has determined before that in a case where Civil Service Commission hearings were continued at the request of the Claimant, Respondent is not required to pay back salary for the period of the continuance. (See Reising v. State (1975), 31 Ill. Ct. Cl. 173.) We cannot rewrite the rules of the Civil Service Commission in any case where a Claimant perceived the need to seek continuances before the Civil Service Commission because of real or imagined wrongful action on the part of the State or its employees. Such is obviously not the intent of the rules of the Civil Service Commission. Had the rulemakers for the Civil Service Commission chosen to soften the impact of Rule 21(4) with respect to continuances sought by Claimants as a result of Respondent’s alleged wrongful actions, such language could have been included in the rules.

Based on the foregoing, we find that Claimant is not entitled to receive back salary from September 6, 1981, to June 14,1982, since he requested all the continuances granted during that time. We also find that Claimant is entitled to receive his salary for the time period of June 15, 1982, through June 30, 1982. However, the record indicates that Claimant received unemployment benefits while he was waiting to be reinstated to his position. The record does not indicate how much unemployment benefits and mitigation income was received during the period of June 15, 1982, through June 30, 1982. The Court needs this information to determine the amount that needs to be set off from an award made to Claimant.

It is therefore hereby ordered that the parties file a stipulation providing the information requested above within 30 days of the date of this order.

ORDER

Montana, C.J.

This cause comes on to be heard pursuant to our opinion filed herein on July 14, 1988, and the parties’ subsequent joint stipulation, due notice having been given, and the Court being advised;

It is hereby ordered that Claimant be, and hereby is, awarded the gross sum of $762.55 plus appropriate employer contributions and less appropriate employee deductions as more fully set forth in the appendix attached hereto and incorporated herein.

APPENDIX A

Identification of the State Contributions and Deductions from Back Salary Award.

To the State Employees’ Retirement System:

Employee’s contribution to State Employees’ Retirement System 41.94

Employee’s contribution to FICA 57.27

State’s contribution to State

Employees’ Retirement System 48.04

State’s contribution to FICA 57.27

To Illinois State Treasurer to be remitted to Internal Revenue Service:

Claimant’s Federal income tax 152.51

To Illinois Department:

Claimant’s Illinois income tax 19.06

To the Claimant:

Net salary 491.77

Total Award $867.86


text:
    (No. 83-CC-2190
    Dorothy Patton, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 30, 1988.

    Joseph S. Holtzman, for Claimant.
    Neil F. Hartigan, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This cause coming on to be heard on the motion of 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 the claim herein seeks damages for personal injuries allegedly sustained by Claimant in a vehicular accident on January 5,1982, on the Dan Ryan expressway at approximately 1100 south in Chicago, Illinois. Claimant was a passenger in an automobile owned and operated by her brother-in-law, Virgil Brimley. The automobile in which Claimant was riding collided with the rear-end of a State of Illinois emergency pick-up truck being driven by a Department of Transportation highway maintenance lead worker, Fred S. Peters.

We note that section 25 of the Court of Claims Act (Ill. Rev. Stat. 1985, ch. 37, par. 439.24 — 5), and section 790.60 of the rules of the Court of Claims (74 Ill. Adm. Code 790.60) 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.

The leading case regarding the Court of Claims exhaustion of remedies requirement, Boe v. State (1984), 37 Ill. Ct. Cl. 72, is dispositive of the case at bar. In Boe, the Claimant was the mother of a passenger who was killed in an automobile which collided with an allegedly defective guardrail. Claimant sued the State but not the driver of the automobile, arguing “that claimants should be given a certain latitude and discretion in determining whom to sue. From Claimant’s point of view, it probably did not seem reasonable to sue an uninsured 18-year-old boy with no assets.” Id. at 75. However, in rejecting Claimant’s argument, this Court stated that it does not “recognize any discretion on the part of Claimants to pick and choose whom they wish to sue.” Id. Quoting our prior watershed exhaustion of remedies case, Lyons v. State (1981), 34 Ill. Ct. Cl. 268, we stated:

“The requirement that Claimant exhaust all available remedies prior to seeking a determination in this Court is clear and definite in its terms. It is apparent to the Court that Claimant had sufficient time to both become aware of his other remedies and to pursue them accordingly. The fact that Claimant can no longer pursue those remedies cannot be a defense to the exhaustion requirement. If the Court were to waive the exhaustion of remedies requirement merely because Claimant waited until it was too late to avail himself of the other remedies, the requirement would be transformed into an option, to be accepted or ignored according to the whim of all Claimants. We believe that the language of section 25 of the Court of Claims Act (cite omitted) and Rule 6 of the Rules of the Court of Claims quite clearly makes the exhaustion of remedies mandatory rather than optional.” 37 Ill. Ct. Cl. 76, quoting 34 Ill. Ct. Cl. 271-72.

These principles were most recently utilized in our dismissal of the case of a mental health patient who had allegedly been raped by a fellow patient at a State mental health facility. We held that Claimant failed to exhaust her remedies by not pursuing a civil action for damages against the assailant. Essex v. State (1987), 85 Ill. Ct. Cl. 1739.

We find that, as in Boe, the instant Claimant was aware of the existence of her driver, Virgil Brimley, long before the statute of limitations for an action against him had run. In fact, he was her brother-in-law. Moreover, we see that the Respondent itself pursued this remedy and obtained a judgment against Mr. Brimley for the damage he had caused to the State vehicle.

We hold that it remained incumbent on Claimant herein to exhaust her remedies before seeking final disposition of her claim in this Court. By not pursuing any remedy which may have been derived from Virgil Brimley, Claimant has thus failed to comply with section 25 of the Court of Claims Act, supra, and section 790.60 of the rules of this Court. Section 790.90 (74 Ill. Adm. Code 790.90) of the Rules of the Court of Claims provides that failure to comply with the provisions of section 790.60 shall be grounds for dismissal.

It is therefore ordered that the motion of Respondent be, and the same is, hereby granted, and the claim herein is dismissed, with prejudice.


text:
    (No. 84-CC-2219
    James Lin, Claimant, v. The State of Illinois, Respondent.

      Order filed November 29, 1988.

      Order filed June 12, 1989.

    David Uhler, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, C.J.

Claimant, James Lin, originally brought this claim in March of 1984 seeking $18,321.21 in back wages based on an alleged discrepancy between what he had been paid and what he should have been paid for services rendered pursuant to an employment contract with the Board of Trustees of the State Community College of East St. Louis. Shortly thereafter the Respondent moved to have the claim put on general continuance due to the pendency of related lawsuits in State and Federal courts. Although not technically on general continuance, nothing transpired in this claim since that time until November 11, 1988. On said date the Claimant filed an amendment to his claim and the parties filed a joint stipulation to settle the amended portion of the claim. This matter is before the Court now for approval of the settlement agreement.

The Claimant’s amendment to its claim is based on Federal court litigation. On January 31,1986, the United States District Court for the Southern District of Illinois entered judgment in the civil case of Lin v. State Community College, Board of Trustees, No. 83-5494. Said judgment in pertinent part reads as follows:

“IT IS ORDERED AND ADJUDGED that judgment is entered in favor of the plaintiff, James Lin, and against the defendants, State of Illinois and Board of Trustees, in the sum of $73, 672.00 for loss of income to the present date and $7,367.00 for loss of retirement benefits.
IT IS ORDERED AND ADJUDGED that judgment is entered in favor of the plaintiff, James Lin, and against Dr. Wheadon, in the sum of $25,000.00 for damages to the plaintiff’s professional reputation and $25,000.00 for mental pain and suffering. In addition, judgment is entered in favor of the plaintiff, in the sum of $12,500.00 for punitive damages.”

That judgment was based on a jury verdict. The court then entered judgment n.o.v. for the defendants and the plaintiff appealed. On July 22, 1988, the United States Court of Appeals for the Seventh Circuit entered an order reversing the lower court’s entry of judgment n.o.v. and remanded the case to consider any questions of equitable relief and attorney fees. The purpose of the amendment to the claim is to collect on the judgment and interest which has accumulated thereon. Matters of equitable relief and attorney fees are not before us.

Concurrent with the filing of the amendment to the claim, a joint stipulation was filed whereby the parties agreed to settle the claim and to the entry of an award by this Court. In relevant part, the joint stipulation reads as follows:

“1. This claim arises from judgment entered on January 21,1986, in the United States District Court for the Southern District of Illinois, in the case of JAMES LIN v. State Community College, Board of Trustees, State of Illinois and Rosetta Wheadon, Docket Number 83-5494.
2. The parties have investigated this claim, and have knowledge of the facts and law applicable to the claim, and are desirous of settling this claim pursuant to said judgment in the interest of peace and economy. This joint stipulation for settlement is limited to the judgment entered January 31, 1986, in the case of JAMES LIN v. State of Illinois, et al., in the USDC for the Southern District of Illinois, Docket Number 83-5494, and specifically does not settle, compromise, or in any other manner affect any questions of equitable relief sought then or now or in the future nor attorney’s fees accumulated after October 17,1988.
3. Both parties agree that an award against the State of Illinois and Board of Trustees in the amount of $81,039.00, plus statutory interest at 6% compounded annually; and an award against Dr. Wheadon in the amount of $62,500.00, plus statutory interest at 9% compounded annually, is both fair and reasonable.
4. Claimant agrees to accept, and Respondent agrees to pay Claimant $81,039.00, plus statutory interest of 6% compounded annually and $62,500.00 plus statutory interest of 9% compounded annually in full and final satisfaction of this claim arising from the judgment entered on January 31, 1986, in the USDC for the Southern District of Illinois, Docket Number 83-5494. This joint stipulation for settlement is limited to said judgment and specifically does not settle, compromise, or in any other manner affect any question of equitable relief sought then, now or in the future nor any attorney’s fees accumulated after October 17,1988.”

This Court is not bound by such an agreement between the parties. However, in a case such as this, where a Federal court has already entered judgment, this Court is but a conduit for payment, for if the Federal court has jurisdiction to hear the case and enter judgment, it has the power to enforce it.

As for the judgment against the State, we do approve the settlement and will enter the award in accordance with the jury’s verdict. As for that portion of the settlement which relates to the verdict against Dr. Wheadon, we will reserve judgment for the following reasons. Neither the amendment to the claim nor the joint stipulation indicate who Dr. Wheadon is. From the Federal court complaint attached to the motion for general continuance, it appears that Dr. Wheadon is the person who actually discharged the Claimant from his employment. It is also unclear as to why this Court is being asked to pay the judgment, which includes punitive damages, on this person’s behalf.

Although not expressly stated in any of the pleadings, it would appear that this portion of the claim was brought pursuant to section 1 of “An Act to provide for representation and indemnification in certain law suits” (hereinafter referred to as the Act) (Ill. Rev. Stat., ch. 127, par. 1301 et seq.). The Federal court action was based on alleged violations of civil rights and Dr. Wheadon would appear to be an “employee” of the “State” as defined in the Act. This Court’s position on claims made pursuant to the Act has been reported in a series of decisions at 35 Ill. Ct. Cl. 895. Those decisions were not reported in chronological order. We call the parties’ attention to the decisions of May 2, 1983, and June 29, 1983, the first and last decisions, which we will refer to as Norman I and Norman II. In Norman I, this Court dismissed the claim based on the then existing statutory language which provided that payment should come from the agency whose employee the judgment was against. In Norman II, the matter was before the Court on rehearing, and the Court elaborated on the prior decision addressing the Respondent’s practical and policy-related arguments. In Norman II, the Court approved awards in claims brought pursuant to the Act stating that the position would be applied prospectively in any such case not pending as of the date of that decision. The claim at bar was filed after that decision.

Since Norman II, the Act has been amended to provide for a different method of payment. See section 2(f) (ii) of the Act (Ill. Rev. Stat., ch. 127, par. 1302(f)(ii)). Instead of providing for allocation of the payment from the employee’s agency, the Act now provides that the Respondent’s Department of Central Management Services (hereinafter referred to as CMS) shall effect payment from funds specifically appropriated for the payment of such claims. This statutory amendment does not affect the rationale behind the Norman decisions; a strong argument could be made that the amendment reinforces the reasoning discussed in Norman II at 905, 906. The State is better able to account for the impact of judgments for violations of civil rights against its employees.

We take judicial notice that the funds appropriated to CMS for payment of the judgments have not always been sufficient to cover all of the judgments entered. Our position as stated in Norman 1 (at page 900) remains unchanged. Appropriating funds is the prerogative of the legislature.

For the reasons stated above, we are withholding judgment on that portion of the settiement which relates to Dr. Wheadon to afford the parties to take whatever actions in response to this decision they feel appropriate or to clarify the pleadings by amendment.

Accordingly, it is hereby ordered as follows:

1. that the Claimant be, and hereby is, awarded the gross sum of $73,672 in back wages for the period of June 30, 1983, through January 31, 1986 (as consistent with the Federal court judgment), plus all appropriate employer contributions and less all appropriate employee deductions except that deduction for the employee’s contribution to his retirement system;

2. that the Claimant be, and hereby is, awarded the gross sum of $7,367 for retirement benefits (again consistent with the Federal court judgment) less only customary withholdings for Federal and State taxes;

3. that the Claimant be, and hereby is, additionally awarded interest on the sum of $81,039 at the rate agreed to by the parties of 6% compounded annually beginning January 31, 1986, and accruing to the date payment is vouchered to the Office of the State Comptroller;

4. that our decision on the balance of the settlement as relates to Dr. Wheadon be, and hereby is, held in abeyance;

5. that payment of the awards made herein be effected as soon as practical and not delayed pending resolution of that portion of the claim as relates to Dr. Wheadon.

ORDER

Montana, C.J.

This cause comes on to be heard following the filing of Claimant’s second amendment to complaint in response to this Court’s order filed November 29,1988, due notice having been given, and the Court being advised;

On November 29, 1988, an order was filed in this claim which, among other things, withheld approval of a portion of a settlement reached by the parties. That portion of the settlement related to a jury verdict against Dr. Wheadon in the amounts of $25,000 for damage to the Claimant’s professional reputation, $25,000 for mental pain and suffering, and $12,500 for punitive damages. The order directed the parties to take whatever action they deemed appropriate in response to the Court’s discussion of the legal issues involved with that portion of the settlement or to clarify the pleadings by amendment to indicate on what basis the Court should approve the stipulation to pay the judgment against Dr. Wheadon.

In response to that order, Claimant filed the pleading at bar. In relevant part, at paragraph 6, Claimant states as follows:

“6. Pursuant to the Settlement Agreement between the parties dated February 8, 1989, page 5, paragraph 4(1), which Settlement Agreement is attached hereto and incorporated herein, the plaintiff states Dr. Rosetta Wheadon was, at all times pertinent, the president of and the agent of the State Community College of East St. Louis, and that judgment should be entered against Dr. Rosetta Wheadon and the State and an award entered in accordance with the jury’s verdict, pursuant to Ill. Rev. Stat., Ch. 127, §1301, et seq. Such award shall include punitive damages, because the USDC jury verdict did not make a finding that Dr. Wheadon’s conduct was not intended to serve or benefit the interests of the State, nor has the Attorney General made such determination. Instead, the Attorney General, in his discretion and with the consent of Dr. Wheadon and the other respondents, has entered into a Settlement Agreement dated February 8, 1989, and Joint Stipulation For Settlement filed November 7, 1988, which specifically include the punitive damages.”

In the prayer for relief, Claimant seeks entry of judgment in the amount of $65,000.00 plus statutory interest.

As was explained in the order of November 29, 1989, this Court’s position on claims brought pursuant to section 1 of the Act (Ill. Rev. Stat., ch. 127, par. 1301 et seq.) has remained unchanged since the Norman decisions. (Norman v. State (1983), 35 Ill. Ct. Cl. 895.) The statute presently provides that payments made pursuant to that Act are to be paid “from the State Treasury on the warrant of the Comptroller out of appropriations made to the Department of Central Management Services specifically designed for the payment of * * * (such claims).” No action by the Court of Claims is required to effect payment. In a case such as the one at bar there is no need for the Court of Claims to approve a settlement or enter judgment.

For the reasons stated hereinabove, it is hereby ordered that the balance of this claim be, and hereby is, dismissed.

APPENDIX A

Identification of the State Contributions and Deductions from Back Salary Award.

To the University Employees’ Retirement System:

Employee’s contribution to University Employees’ Retirement System _.00

Employee’s contribution to FICA _jOO

State’s contribution to University

Employees’ Retirement System 7,227.56

State’s contribution to FICA .00

To Illinois State Treasurer to be remitted to Internal Revenue Service:

Claimant’s Federal income tax 14,734.40

To Illinois Department:

Claimant’s Illinois income tax 1,841.80

To the Claimant:

Net salary 57,095.80

Total Award $80,899.56


text:
    (No. 84-CC-3437
    Harry B. Melvin, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 2, 1989.

    James K. Powless, for Claimant.
    Lee Ellen Starkweather, of Southern Illinois University, for Respondent.
   Raucci, J.

Claimant seeks recovery against Respondent on two alternative and mutually exclusive theories. First, Claimant alleges that Respondent exercised an option to purchase Claimant’s building in Marion, Illinois, for use as a library storage facility, and then, after exercising the option, failed to complete the purchase which resulted in damage to the Claimant. Second, Claimant seeks an award for rental of Claimant’s building during a period of time the building was occupied by Respondent, after the conclusion of an initial one-year lease term, during which time Claimant had agreed to waive rental payments for the building because of Claimant’s belief that the Respondent had exercised an option to purchase the building. Claimant had allowed Respondent to remain in the building rent-free in reliance on Claimant’s belief that Respondent would complete the purchase of the building under the exercise of Respondent’s option to purchase.

Respondent argues that the option contained in Respondent’s lease was not exercised; or alternatively, if it was exercised, the exercise and resulting contract to purchase were beyond Respondent’s power to contract or were void as being in excess of an appropriation. Finally, Respondent argues that if it is found that Respondent breached a contract for the purchase of real estate, the evidence did not indicate damage to the Claimant.

With respect to the claim for rent, Respondent contends that Claimant’s claim for rent is based on “equitable estoppel” and that this doctrine does not apply against Respondent. Also, that Claimant had waived performance of the original rental agreement “and ratified the modified contract,” accepting the benefits thereof, and Claimant cannot repudiate the agreement.

The facts are not in substantial dispute. Effective September 1, 1981, Respondent leased Claimant’s tract of land in Marion, Illinois, with a large storage building for a period of one year for rental of $120,000. The written lease was drawn by Claimant’s attorneys and was executed September 22,1981. The lease contained a grant of an option to purchase as follows:

“18. As additional consideration for this agreement, the Lessee is hereby granted the exclusive right, privilege and option of purchasing the leased premises upon the terms and conditions hereinafter stated.
(a) The option shall commence on the date of execution of this lease and shall terminate on the 30th date of September, 1982. The exercise of this option by the Lessee must be by written notice sent to the Lessor at her residence address or at such other address as she may from time to time designate.
(b) If this option is not exercised by September 30, 1982, or prior thereto, this option shall terminate unless this lease is extended, as hereinafter provided.
(c) If this option is exercised, the Lessor shall sell and convey the lands to the Lessee, and the Lessee shall purchase the lands from the Lessor on and subject to the terms and conditions stated in this agreement.
(d) The purchase price for the property shall be the sum of $1,600,000.00 payable in cash upon closing. Real estate taxes will be pro-rated and adjusted between the parties as of the date of closing. Except as hereinafter provided, with respect to prepaid rent, no portion of the annual rental shall apply toward the purchase price.
(e) The closing shall occur at such time as the parties may mutually agree, but in no event more than thirty (30) days subsequent to the date of exercise of the option. On the closing date, the Lessor shall deliver to the Lessee a fee simple warranty deed, on the basis of which, a reputable title insuring company will, after recording, insure to the Lessee, at the Lessor's sole cost, a fee simple title to the lands free from all liens and encumbrances except as herein stated.
19. If the option hereinabove set forth is exercised by the Lessee, the Lessor shall on the date of closing or at such time prior or subsequent thereto as the parties may mutually agree, execute a deed of conveyance for a certain sewer line and railroad siding which is adjacent to the subject property. The Lessee shall be relieved of any liability for payment of any consideration for said sewer line and railroad siding, it being understood that the sole consideration for such conveyance shall be the general charitable motives of the Lessor. Prior to the date of such conveyance, the Lessor will at Lessor’s expense secure a competent appraisal of said sewer line and railroad siding for the purpose of determining the value of such rail siding and sewer line.
20. It is the intention of Southern Illinois University to exercise the option to purchase the premises at the earliest possible date. However, before the University can exercise the option to purchase, the University must secure funding by action of the Illinois Legislature. Because the time required to secure such funding through the Legislature is not possible to estimate, the parties agree that the Lessee shall have the right to extend this lease and the option to purchase upon the terms and conditions hereinafter stated:
(a) The Lessee may extend this lease by written notice to the Lessor on or prior to September 1,1982. Such notice shall extend this lease for a period commencing September 1, 1982 through and including August 31, 1983, upon the same terms and conditions as herein stated, including the payment of rent in the amount of $120,000.00 provided, however, such rent shall be payable in one installment of $120,000.00. Such notice shall likewise have the effect of extending the purchase option for a term to expire September 30,1983, upon the same terms and conditions as herein stated.
(b) So long as the Lessee is diligently attempting to secure funding to purchase the premises, Lessee shall have the further right to extend this lease at one year intervals by written notice to the Lessor on or prior to September 1, 1983, September 1, 1984, and September 1, 1985. The effect of said notices shall be to extend this lease term for an additional one year period, which notice shall likewise extend the purchase option for an additional year expiring September 30th of the next ensuing year. The rental during each renewal term shall be $120,000.00 annually.
(c) Lessee’s right to extend this option shall be conditioned only upon Lessee’s diligent efforts to secure funding for the purchase of said premises. If at any time during the leased term or renewals thereof, Lessee shall determine that it no longer wishes to secure funding to purchase the building, then and in such event the lease shall expire at the next anniversary date and Lessee shall have no right to extend the lease term or the purchase option thereafter.”

During the initial months of the lease term in the fall of 1982, Claimant contacted a State Representative to help seek funding for Respondent to acquire Claimant’s building as a library storage facility. The Illinois legislature approved the Representative’s amendment to the Capital Development Board (CDB) appropriation bill as a part of Public Act 82-938 (SB 1400) effective August 18,1982, which provided in section 7.1 that $1,600,000 or so much thereof as may be necessary, was appropriated from the Capital Development Fund to the Capital Development Board for the purchase of a library storage facility for Southern Illinois University-Carbondale Campus. The Act provided in addition as follows:

“Sec. 10. No contract shall be entered into or obligation incurred for any expenditure from the appropriations made in this Act until after the purposes and amounts have been approved in writing by the Governor.”

Similarly, in 1983, Public Act 83-64 (SB 714) effective August 15, 1983, in section 59, reappropriated the money, or so much thereof as may be necessary and remained unexpended at the close of business on June 30, 1983, from appropriations previously made under section 7.1 of Public Act 82-938.

It is undisputed that at the time of the original lease and option and throughout the term of Claimant’s lease, the president of the university and vice president for campus services repeatedly advised Claimant that Respondent wished to acquire Claimant’s property as a library storage facility subject to the availability of funds. Shortly before the expiration of the one-year lease term on August 31, 1982, and after discussions between the parties, Respondent wrote Claimant the following letter:

“August 6,1982
Mr. Harry Melvin
1701 Carrol Drive
Marion, Illinois 62959
Dear Mr. Melvin:
Dr. Albert Somit has asked me to inform you that we are still pursuing the appropriation and release of funds for the purchase of the Bracy Building, and hope it will be forthcoming in the near future.
The University is unable to pay the $120,000 lease charge.
We would, however, be willing to continue custody of the building under the terms of the lease arrangement pending the determination of the availability of funds for purchase.
We appreciate the cooperation you have given us.
Sincerely,
s/Clarence G. Dougherty
Clarence G. Dougherty
Vice President for Campus Services
cc: Dr. Albert Somit”

At the oral request of Respondent for a written reply from Claimant, Claimant prepared and delivered a letter dated August 31, 1982, to Respondent’s agent as follows:

“August 31,1982
Southern Illinois University
Carbondale, Illinois
RE: Bracy Building, Marion, Illinois
Dear Sir:
We are in receipt of your letter stating your wishes to eliminate the payment of rent on this property and exercise your option to purchase upon receipt of funds. In as much as the Governor has sighed this transaction, we agree with this arrangement deleting the rent portion of this lease.
Sincerely yours,
s/Harry B. Melvin s/Virginia Cline”

Thereafter, Respondent’s agent made request of the Capital Development Board for the release of $1,600,000 for the purchase of a library storage facility from Claimant. Finally, on April 12, 1984, CDB proposed a real estate purchase contract to Claimant in the amount of $675,000 which proposal was refused by Claimant. Claimant thereupon terminated negotiations with CDB and, by letter of April 16,1984, terminated Respondent’s tenancy on Claimant’s property and demanded immediate possession of the premises. Respondent delivered up possession of the premises to Claimant on or about April 20, 1984.

Claimant argues that the letter of Respondent dated August 6, 1982, and Claimant’s reply dated August 31, 1982, evidenced and confirmed the existence of Respondent’s exercise of its option to purchase Claimant’s property. Claimant asserts that the letters combined with other modes of communication between the parties constitute Respondent’s acceptance of the terms and conditions of the option. Further, Claimant asserts that the failure of the Respondent to reply to Claimant’s letter of August 31, 1982, and specifically those portions of Claimant’s letter purporting to allude to Respondent’s “exercise” of the option “upon receipt of funds” constitutes a binding contract between Claimant and Respondent independent of a lease agreement such that Respondent was bound to perform.

It is admittedly a true proposition of law that an option contract does not become a contract for the sale of property until the holder of the option has exercised the same in strict conformity with the conditions therein prescribed. Then, and then only, can the contract be enforced. (Moehling v. Pierce (1984), 3 Ill. 2d 418, 121 N.E.2d 735, 737.) Furthermore, we find no fault with Claimant’s assertion of the principle that if no specific mode of acceptance is specifically fixed in a contract offer, acceptance need not be in any particular form nor evidenced by express words. (Calo, Inc. v. A.M.F. Pinspotters, Inc. (1961), 31 Ill. App. 2d 2, 176 N.E.2d 1, 5.) In Calo, which was cited by Claimant, the Court had cause to consider the question of whether a binding contract had been entered into by the parties absent a written acceptance. With respect to the manner of acceptance the Court stated as follows:

“If no specific time limit is fixed with reference to the offer it continues for a reasonable time. If no specific mode of acceptance is specifically fixed in the offer, the acceptance need not be in any particular form nor evidenced by express words. Where the parties make the reduction of the agreement to writing and its signature by them a condition precedent to its completion, it will not be a contract until this is done. (Cites.)”

Claimant’s lease, above quoted, provided specifically that exercise of the option by Respondent “must be by written notice sent to the Lessor at her residence address* * *” (18(a) of the lease).

Claimant cites the case of Memory v. Nippert (1890), 131 Ill. 623, 23 N.E. 431, for the proposition that Claimant’s letter of August 31, 1982, coupled with the continuing assurances of Respondent’s agents that the purchase of Claimant’s building would be consummated as soon as funds were released, constitutes a binding contract independent of the lease such that the Respondent was bound to perform thereunder. Claimant’s letter is quoted above.

In Memory, plaintiff ordered 250 boxes of American bacon from defendant. Thereafter, defendant’s agent sent a letter to plaintiff confirming plaintiff’s purchase offer, naming the contracting parties, describing the goods to be sold, the time and mode of delivery, the price and mode of payment, and all of the terms which would normally constitute a complete contract of sale. The court engaged the assumption that defendant’s agent, in writing the letter, had competent authority from the defendant to negotiate and conclude the sale. When defendant failed to provide the bacon, plaintiff sued for plaintiff’s loss. The defense was that the contract was unwritten and barred by a statute of limitations applicable to unwritten contracts. It was the position of defendant, that since defendant’s letter was not signed by plaintiff, it lacked mutuality and failed to show the assent of the plaintiff, and was therefore no evidence of any contract whatever. The supreme court held the statute of limitations applicable to unwritten contracts to be inapplicable and concluded that where the “contract” had been accepted and adopted by the party not signing it, he does assent and agree to it on his part, and the law implies a promise to perform. However, the supreme court went on as follows at 131 Ill. 631, 632:

“The delivery of a writing and its acceptance and adoption by the party to whom it is delivered, are necessarily facts dehors the writing itself, and must therefore be proved with extrinsic evidence; and where mutuality is established by proof of the acceptance of the writing, the contract is, notwithstanding such resort to parol evidence, a contract all of which is in writing. Of course where the writing is on its face a mere offer or proposition, the acceptance of the paper does not necessarily bind the party accepting to its terms. There must in such case be some further act manifesting an acceptance of the proposition, and whether the contract, after acceptance, will be deemed to be a contract in writing, within the meaning of the fifteenth and sixteenth sections of the statute of limitations or not, must depend upon a variety of circumstances. The rules on this subject are laid down and fully discussed in the case of Plum vs. Campbell, 129 Ill. 101. But where the writing on its face purports to be a consummated contract, the mere acceptance and adoption of the writing establishes mutuality, and makes the contract binding on both parties. This would manifestly be the case if the instrument sued on in this case obviously belongs to this class. It is a contract of sale, containing mutual obligations, viz., on the part of the seller to deliver and on the part of the buyer to receive the goods sold and pay the price. It is therefore a contract in writing, binding on both parties, and containing within itself all the elements of mutuality.”

Thus, Claimant offers Memory in support of Claimant’s position that Claimant’s letter of August 31,1982, to Respondent’s agents, when not repudiated by them, constituted both proof of the assent of Respondent’s agents to the proposition that the option had already been exercised, and a separate contract for the purchase of Claimant’s property pursuant to the exercise of that option.

The First District Appellate Court distinguished the case of Memory in Lundin v. Egyptian Construction Co. (1975), 29 Ill. App. 3d 1060, 331 N.E.2d 208, an appeal arising from a third-party action. In Lundin, third-party defendant H.R. Stewart, Inc. (Stewart), a plumbing contractor, had made a bid on plumbing work in connection with the construction of schools. The bid was evidently orally accepted by third-party plaintiff Egyptian Construction Co. (Egyptian), the general contractor, and Stewart commenced work. There was no written contract between the parties. Three months later Egyptian sent Stewart a letter styled as a “confirming order” which contained an indemnity agreement whereby Stewart was to indemnify Egyptian and other third-party plaintiffs against suits and claims brought against them arising out of the work performed by Stewart. Proof at trial was to the effect that the “confirming order” was intended by Egyptian to be a written embodiment of earlier oral discussions between the parties. The “confirming order” was neither signed nor returned by Stewart. Egyptian was thereafter sued and sought indemnification from Stewart. Egyptian and the other third-party plaintiffs argued that Stewart’s continuation of its work on the project after receiving the “confirming order” was conduct on the part of Stewart manifesting Stewart’s consent to the terms of the “confirming order.” The Court agreed that while the course of conduct may act as consent to an unsigned contract, the course of conduct must be clear as to what contract the conduct relates. In Lundin there was another explanation for Stewart’s remaining on the job after receiving the “confirming order” incorporating the indemnification agreement. The court pointed out that Egyptian and the other third-party plaintiffs failed to offer evidence that Stewart’s conduct was related “specifically” to the written confirming order rather than to the already existing oral contract for the performance of their bid for the plumbing work.

Claimant in the case at bar admits that shortly before the termination of the one-year lease he attended a meeting with the university president and another university official at which the university’s lack of funds to pay rent beyond the expiration of the one-year lease was discussed. It was at this meeting that Respondent’s agents advised Claimant that they would be willing to maintain the building and keep it in the state it was in without rental payment until funds could be obtained with which to consummate the purchase. Claimant agreed to allow the university to maintain possession of the premises under their agreement to maintain the premises and to abate the rent because, failing that agreement, the university would have had to vacate the premises. It is the contention of Claimant that the letter of Respondent’s agents dated August 6, 1982 (quoted above), constituted an exercise of the option referred to in the lease agreement. However, Claimant does not argue that at the time of the letter of Respondent’s agent to Claimant (August 6,1982), money was then available to the university to complete the purchase.

Respondent argues that section 30 of “An Act in relation to State finance” (Ill. Rev. Stat., ch. 127, sec. 166), forbids the exercise of the option by Respondent’s agent. The statute provides as follows:

“Sec. 30. No officer, institution, department, board or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of a money appropriated, unless expressly authorized by law.”

Respondent correctly cited Fergus v. Brady (1917), 277 Ill. 272, 115 N.E. 343, for the proposition that authorizing payment of claims against the State under any agreement or contract made without express authority of law is null and void. Also, parties contracting with public entities are presumed to know of their limitations in making contracts to bind the public. East Peoria Waterworks Improvement Project v. Board of Trustees of Community College (1982), 105 Ill. App. 3d 712, 434 N.E.2d 781.

This Court has considered claims against Respondent in which Respondent has raised the defense that Respondent cannot be bound by the authorized acts of its agents in various types of cases. In Potter v. State (1983), 36 Ill. Ct. Cl. 26, it was held that when services were rendered to the State at the instance of persons mistakenly purporting to have State authority to contract, claims for compensation for such work will be denied, no matter how unjust the result, as those dealing with the State are presumed to know the law and deal with the State at their own peril. In Dunteman v. State (1985), 38 Ill. Ct. Cl. 51, it was held that a farmer could not rely on oral arrangements regarding the lease of farmland from the State made by the farmer with the “farm manager” for the Department of Corrections, even where the farmer had relied on oral assurances that the farmer could safely make fall preparations of farm ground prior to the formal leasing of the ground for the ensuing calendar year. This Court held as follows:

“It is a well settled principle of law that in dealing with an agent of the State, one must ascertain at his peril the authority of the agent, and the mere assertions of the agent are not sufficient to bind the State (Midwest Truck & Sales v. State (1979), 33 Ill. Ct. Cl. 82.)” 38 Ill. Ct. Cl. 51, 55.

Also, this Court has held that oral or implied contracts purportedly entered into by State entities may only be enforceable when services provided to the State were of an emergency nature. Nile Marriot, Inc. v. State (1973), 28 Ill. Ct. Cl. 351; Elevator Manufacturing Co. of America v. State (1959), 23 Ill. Ct. Cl. 98; Patenberg & Patenberg v. Department of Public Works (1969), 27 Ill. Ct. Cl. 1; Agles v. State (1983), 37 Ill. Ct. Cl. 134, 140.

Claimant advances serious and compelling arguments that an injustice would result to Claimant if he is deprived of both the benefit of his belief that the purchase option had been exercised by the State and his claim for rental based upon rates under the one-year primary term, for the 19M months that the University occupied Claimant’s premises under a waiver of rent. Claimant asserts he would not have permitted such occupancy had he not believed that the exercise of the purchase option was imminent.

Unfortunately, Claimant’s claim based on the exercise of the purchase option must fail for two separate and equally compelling reasons. First, the exchange of correspondence between Claimant and university officials, and the university’s subsequent action in maintaining and occupying Claimant’s premises under the rental waiver agreement do not offer compelling and precise proof of any specific intent on the part of the Respondent’s agents to exercise the purchase option set forth in the original written lease. As in the case of Lundin v. Egyptian Construction, supra, the action of the university in occupying and maintaining the premises under the rental waiver agreement with Claimant is equally consistent with the view that the university officials, as well as Claimant, were hopeful that funding would be provided for the purchase of the facility so that the purchase option could be exercised. Claimant’s interpretation that such occupancy and maintenance of the building was consistent with the previous exercise of the purchase option is no more reasonable or compelling. Second, even if we were to construe the exchange of correspondence in August 1982, (quoted above) and the university’s action in remaining in occupancy of the building and maintaining it through April 20, 1984, as evidence of the intent of university officials to exercise the option to purchase, such action on the part of the university officials was null and void as being in excess of their authority to bind Respondent to the payment of funds not available for expenditure. Accordingly, Claimant’s cause of action arising out of the alleged exercise of the purchase option, and the failure of Respondent to complete the land purchase contract thereby allegedly created, must fail.

With respect to Claimant’s cause of action for rent from September 1, 1982, through April 20,1984, similar barriers obtain. It is clear that Claimant’s cause of action for rent is based on an estoppel or quantum meruit theory of unjust value being given without compensation. Claimant clearly admits that his agreement to waive rental for the period subsequent to August 31, 1982, was made in the face of unequivocal declarations by Respondent’s agents that funding was unavailable to continue to make rent payments as had been done under the one-year primary term of the lease. Claimant argues that the rental waiver was in consideration of Claimant’s belief and understanding that the option to purchase had indeed been exercised by the University, and that the purchase of Claimant’s property for $1,600,000 was imminent subject to the availability of funds. Although Claimant had contacts with C.D.B., and in one case made offers to C.D.B. to install valuable improvements in the building to encourage C.D.B. to complete the sale, Claimant contends that at all times subsequent to August 1982, Claimant was of the opinion that the purchase option had been exercised and that an enforceable contract was in existence. However, taking into account the terms of the option in Respondent’s lease, combined with the correspondence of August 1982, and the actions of the university thereafter in maintaining possession of the building under the rental waiver agreement, and subsequent attempts to obtain a “release” of sufficient funds to enable the university to complete the purchase, it is just as reasonable to conclude that both Claimant and the university, for the period of time after the expiration of the initial term of the lease, were hopeful of obtaining funding from the Capital Development Board so as to enable the university to exercise its option to purchase Claimant’s property. Upon the stipulation of the parties and the testimony at trial, it is equally reasonable to conclude that Claimant’s consent to allow the university to retain possession of the building rent-free under the university’s agreement to maintain the premises was as much to create “leverage” on C.D.B. and on the university to complete the exercise of the option and purchase of the property as it is Claimant’s reaction to the belief that the option had already been exercised and that purchase was imminent.

It is clear that no funding was available under the university’s budget or any appropriation to continue rental payments on Claimant’s building beyond August 31, 1982. Thus, hypothetically, if university officials had assured Claimant that upon the failure of their ability to exercise the option to purchase, they would reimburse Claimant at the same monthly rate for rent as they had paid under the initial term of the lease, such an agreement would not have been binding on Respondent for the same reasons as above set forth that any purported exercise of the purchase option by university officials could not be binding on Respondent.

Finally, it is settled that the theory of quantum meruit does not apply against the State of Illinois. Schute v. State (1957), 22 Ill. Ct. Cl. 592; Klingberg Schools v. State (1979), 33 Ill. Ct. Cl. 184, 189; Thomas v. State (1968), 26 Ill. Ct. Cl. 252, 256.

It is therefore ordered, adjudged and decreed that Claimant’s claim is dismissed, with prejudice.


author: Burke, J.

text:
    (Nos. 84-CC-3559, 85-CC-0380 cons.
    Alfredo Vargas and Cecil Calvert Odom, Claimants, v. The State of Illinois, Respondent.

      Opinion filed December 19, 1988.

    Allen G. Wilsey, for Claimant Alfredo Vargas.
    Louis E. Neuendorf & Associates, for Claimant Cecil Calvert Odom.
    Neil F. Hartigan, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   Burke, J.

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

Finds that Claimants Alfredo Vargas and Cecil Calvert Odom were inmates at Sheridan Correctional Center on April 10, 1984, and both were employed refurbishing furniture, and office and school desks for mental institutions and other institutions for the State of Illinois. Prison Industries transported the used furniture from its storage location outside the prison to its workshop inside the prison in a pickup truck, whose floor space was 10 to 12 feet with walls and a roof, but no tailgate or door at the rear.

Claimant Vargas testified that on April 10,1984, the truck was parked a few inches from the dock of the Prison Industries building and he sat on the back of the truck facing the dock of the building with his feet on top of the dock and Claimant Odom sat next to him. The truck driver, J.D. Reno, a State employee, Supervisor Harloman and an inmate came out of the building, saw Claimants sitting in the back of the truck. Alfredo Vargas testified, “Reno came in front of me, looked down at both of us and he asked if we were ready and we told him, ‘Yes, we were ready.’” Vargas further testified, “Then he started the truck and he jerked back, it just started rolling straight back and hit the dock.” Vargas’ left leg and Odom’s right leg were between the steel beam used as a step into the back of the truck and the edge of the dock. After several seconds, the truck was pulled away from the dock, freeing Claimants’ respective legs. Each claimed they sustained injuries to his trapped leg.

The incident report of the Department of Corrections by Reno, the truck driver, states: “When I placed the truck in neutral gear to start it, the truck rolled backwards, catching the legs of Odom and Vargas between the truck and loading dock.”

The medical evidence is undisputed in that there was a slight injury to the leg of Claimant Vargas and minimal injury to the leg of Claimant Odom. As to the issue of liability and degree of negligence of the parties, the record indicates substantial negligence on the part of both Claimants. Neither observed safety rules by sitting in the back of the truck allowing their feet to dangle over the edge of the truck, very close to the edge of the dock, when the entire inside of the truck was empty for their occupancy. On the other hand, Respondent’s agents could and should have directed the Claimants to change their location by sitting inside the truck, thus, observing safety rules. Claimants were neither ordered nor instructed by Respondent’s agents to place their legs in the narrow gap between the truck and dock. Claimants were not relieved from exercising reasonable care in a situation where they could have selected a safe place to sit inside the truck rather than the hazardous position on its tail. Claimants had no right to expose themselves to possible danger and then recover damages for injuries which they could have avoided by use of reasonable care. Alberts v. Continental Co., 220 F.2d 847; Lovinguth v. City of Bloomington, 71 Ill. 238; Beidler v. Branshaw, 200 Ill. 425.

In the case of Alvis v. Ribar, 85 Ill. 2d 1, 421 N.E.2d 886, the court held that the comparative negligence standard requires that the court analyze the actions of the claimants and respondents to determine if any, some or all of the parties exercised less than reasonable care which proximately led to claimants’ injuries.

Claimant Odom is awarded three hundred ($300.00) dollars and Claimant Vargas is awarded seven hundred ($700.00) dollars, said awards being in full and complete satisfaction of Claimants’ complaint.


text:
    (No. 85-CC-0680
    Raymond Ponczek, Claimant, v. The State of Illinois and Anthony M. Stazzone, Respondents.

      Opinion filed September 16, 1988.

    James J. McPolin, for Claimant.
    Neil F. Hartigan, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondents.
   Raucci, J.

Claimant Raymond Ponczek brought this action for personal injuries suffered when he was struck by the blade of a snowplow while he was walking on the shoulder of a highway.

The Respondent Anthony M. Stazzone was the driver of the highway truck to which the snowplow was attached. He admits that he did not see Claimant before striking him.

On January 13, 1984, at approximately 6:00 p.m., Claimant, then 21 years of age, was walking westbound on a footpath along the north side of Route 83 near its intersection with 69th Court in Palos Heights, Illinois. Stazzone was driving a six-ton truck with a snowblade attached westbound on Route 83. The blade protruded from the side of the truck between 6 and 18 inches. It is uncontroverted that the wheels of the truck did not leave the highway, and that Ponczek was not on the road when struck as Stazzone was salting to keep the snow flurries from freezing on the road. It was dark, but the truck’s lights were on and the driver’s vision was not otherwise impaired.

The footpath (shoulder) was approximately one foot north of the paved portion of the roadway and Bz feet from the white line edging the roadway.

Respondent’s only defense is that Claimant should have been more than 18 inches from the edge of the roadway. Respondent relies on the provisions of section 11 — 1007(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95½, par. 11 — 1007(b)) which provides:

“(a) Where a sidewalk is provided and its use is practicable, it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway.
(b) Where a sidewalk is not available, any pedestrian walking along and upon a highway shall walk only on a shoulder, as far as practicable from the edge of the roadway.
(c) Where neither a sidewalk nor a shoulder is available, any pedestrian walking along and upon a highway shall walk as near as practicable to an outside edge of a roadway, and, if on a two-way roadway, shall walk only on the left side of the roadway.
(d) Except as otherwise provided in this Chapter, any pedestrian upon a roadway shall yield the right of way to all vehicles upon the roadway.”

Respondent urges that Claimant “violated the statute when he walked at the edge of the shoulder less than 18 inches from the roadway.” We do not agree.

The uncontroverted testimony established that there was less snow on the shoulder of the north side of the road than on the south shoulder, and that there were “piles” of snow immediately adjacent to the footpath. The use of the footpath did not violate the statute.

We find that the sole, proximate cause of the accident was the failure of the truck driver to see the Claimant before he struck him. The Claimant was wearing a light-colored gold jacket and white-gray pants and the truck’s lights were functioning properly.

Having found liability on the part of the State, we now turn to the issue of damages. Claimant suffered three broken ribs, a kidney contusion, numerous bruises and abrasions, and a ruptured spleen which required Claimant to undergo a spleenectomy. As a result of the loss of his spleen, Claimant suffers an immunological deficit which subjects him to chronic or reoccurring respiratory infections. He will be required to receive vaccine every five years in order to protect him against pneumonia. The vaccine, however, does not protect him against other viruses. He is in generally poor health. Additionally, Claimant suffered a series of shoulder dislocations which required physical therapy and exercise, followed by surgery, to stabilize the shoulder.

Claimant incurred $14,567.67 in medical expenses and had a wage loss of $2,630 for a total of $17,197.67. Considering the nature, extent and duration of the injuries, as well as the pain, suffering and disfigurement suffered, the medical expenses and wage loss, we assess damages at $60,000.

It is therefore ordered, adjudged and decreed that Claimant is awarded sixty thousand dollars ($60,000.00) in full and complete satisfaction of this claim.


author: Sommer, J.

text:
    (No. 85-CC-1083
    Dessie Mae Owens, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 10, 1989.

    Beger, Ferguson & Associates (Jerrold R. Beger, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   Sommer, J.

The Claimant, Dessie Mae Owens, age 51 at the time of the mishap, has brought this action for damages for personal injury with accompanying pain and suffering and medical expenses.

On December 15, 1983, the Claimant, Dessie Mae Owens, drove her daughter-in-law, Lavalle Owens, a public aid client, to the office of the Department of Public Aid in Rockford. At the Rockford office, an enclosed entranceway opened into a large waiting room in which clients sat waiting to be summoned to meet their caseworkers. As the Owens entered the waiting room, there were chairs in front of them and to the right. They sat approximately 15 feet to the right of the entrance door, three or four feet from the interior door to the offices in which clients were interviewed.

Caseworker supervisor, Patricia G. Story, entered the waiting room through the interior door near the Owens and summoned the Claimant’s daughter-in-law to follow her into the offices. When Ms. Story first saw the Claimant, the Claimant was seated. However, just as Ms. Story was going through the interior door with the Claimant’s daughter-in-law, they both turned, and saw the Claimant on the floor. The Claimant had fallen between where she was seated and the interior door. Ms. Story went to the Claimant’s aid.

The incident occurred about 1:30 in the afternoon. Snow had been falling all day, and persons entering the waiting room had brought snow with them on their shoes. This snow melted into puddles. Ms. Story stated that the Claimant was down on her knee in one of the puddles. The floor was made of tile and there was no rug in the waiting room that was usable by entering parties. Generally, janitors did not come on duty until late afternoon, but from time to time a clerk would be summoned to clean up spills. This clerk was not summoned on December 15,1983, prior to the incident.

The State’s duty to persons legitimately on its premises is to maintain reasonably safe conditions. The accumulation of water and snow on the tile floor in the large waiting room did create a situation in which it would be reasonably foreseeable that someone could slip and fall. To remedy the situation would not have been burdensome. The clerk could have been summoned to keep the floor clear or mats and rugs could have been placed on the floor in trafficked areas.

The accumulation of water and snow was the proximate cause of the Claimant’s fall and injury, and the State’s employees clearly had knowledge of the situation. This Court finds negligence on the part of the Respondent.

The Claimant saw a physician the next day who told her that she had a fractured kneecap (patella). This diagnosis was considered probable by her surgeon and a later examining physician. Mrs. Owens underwent whirlpool treatment, wore a knee brace for three months, and in May of 1984 had a pain killer injected into the knee. The Claimant finally underwent surgery on her left knee on August 11, 1984, and wore a knee brace for some time thereafter.

Entered into evidence were the reports of her surgeon, the hospital and the orthopedic physician who examined her in Arkansas where she presently resides.

The hospital reports indicate that the surgery repaired a torn meniscus (cartilage) in the left knee. At that time it was reported that there was “significant degeneration of the undersurface of the patella.” The surgeon in December of 1985 refers to this as “post-traumatic chondromalacia of patella.” Chondromalacia of the patella is a deterioration of the cartilage on the underside of the patella. Other than occurring naturally, it can be caused by a fracture of the patella, a hard knock or a torn meniscus. An injured party feels sharp pain and stiffness and the knee gives way on occasion. Mrs. Owens reports these symptoms.

In May of 1985, the surgeon reported a good recovery with no swelling and close to full range of motion of the left knee. The Claimant still indicated some discomfort. In December of 1985, the surgeon noted that her symptoms may increase as the patella fracture and chondromalacia may lead to “degenerative arthritic damages.” The Arkansas physician in October of 1986 reported “degenerative arthritis” in both knees with pain and swelling more pronounced in the left knee, with the possibility of further surgery.

In April of 1987, the surgeon reported that chondromalacia of the patella was present in the left knee, and that the condition was partially traumatic in origin. The question in cases such as this is to what extent the trauma caused or accelerated the chrondromalacia, as naturally arising arthritic changes also contributed to the condition. We have no report from the Respondent’s examining physician, if any, indicating the extent of arthritis in other parts of the Claimant’s body, or the probably extent of pretraumatic arthritis.

The preponderance of the evidence shows and this Court finds that the Claimant suffered a probable fractured patella and a torn meniscus of the left knee. The left knee was treated surgically to repair the torn meniscus. A chondromalacia of the patella has since set in which may require surgery, in various degrees of seriousness, if it does not respond to conservative treatment. There is no evidence of the disability due to the fall that the Claimant will suffer in the future, though she is suffering disability at the present time.

This Court is asked to make a fine judgment in the matter of its award for disability and its duration. The Claimant’s condition is not solely due to the post-traumatic chondromalacia and the prognosis after treatment or surgery is not in evidence. Therefore, the Court awards Dessie Mae Owens $12,000 for her disability.

The matter of lost income is speculative in this claim. Mrs. Owens stopped working three years prior to the injury. No evidence was introduced concerning her past wages or her desire to return to work. There is no evidence of Mrs. Owens’ ability to perform work she had previously done or could do after her pending treatment or surgery. Therefore, we make no award for lost income.

Medical bills in the amount of $4,363.68 have been stipulated, and we award such an amount to Mrs. Owens and the vendors.

The Claimant asked for $5,000 for pain and suffering to date in her amended bill of particulars, and we award that amount to Mrs. Owens, and we award $5,000 for future pain and suffering.

The Claimant’s surgeon stated that the potential operation would range from $3,000 to $5,000 in cost. We award $5,000 to Dessie Mae Owens for treatment or the operation, and $3,000 for therapy.

It is therefore ordered that Dessie Mae Owens be awarded a total of $34,363.68 and that the award be made payable to Dessie Mae Owens and her attorneys, Schirger, Begar and Ferguson, Ltd.


author: Dillard, J.

text:
    (No. 85-CC-1096
    Janna Lee Mixen, Administrator of the Estate of Terry Mixen, deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 4, 1988.

    Mandrgoc & Linkowski, for Claimant.
    Neil F. Hartigan, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   Dillard, J.

This cause is before the Court following oral argument on the above captioned claim, due notice having been given and the Court being fully advised in the premises, finds as follows:

Claimant, Janna Lee Mixen, was employed at the Dixon Developmental Center, Respondent’s institutional facility for the disabled and handicapped at Dixon, Illinois. In the course of her employment as a Mental Health Technician I, Claimant was assigned to work in a cottage known as Acapulco cottage where certain aggressive male residents were housed. When assigned to work in the Acapulco cottage on December 1, 1982, Claimant was approximately five months pregnant. On said date, at or about 9:45 a.m., a resident, J.M., attacked another resident of the Acapulco cottage and Claimant, assisted by another employee, restrained J.M. The Claimant was finally able to get the resident to the floor and she restrained him while on her knees. While the resident was lying on his back on the floor, he struck out with his foot at the Claimant, and struck her in the abdominal area.

Claimant asserts that as a direct and proximate result of the resident striking her, the fetus was severely injured, and the result of which striking was the premature Caesarean delivery of Terry Mixen on January 29, 1983, and his subsequent death on January 31,1983. Claimant alleges the Respondent was negligent in not having adequate personnel to handle such aggressive patients and in failing to provide safe working conditions for female employees who were working while pregnant.

The Respondent has admitted that the staff-to-patient ratio was below normal on the date its resident struck the Claimant in her abdominal area. After an extensive review of the record and oral argument before this Court, we find that the Respondent was negligent with respect to the instant situation. Furthermore, the death of Claimant’s infant was the direct and proximate cause of the Respondent’s resident striking Claimant.

Since the infant, Terry Mixen, was viable when he was born, Claimant is entitled to bring an action for his death and for damages. After reviewing extensive case law similar to the present claim from Illinois and other jurisdictions and a review of the facts, it is clear that Claimant may recover monetary damages due to Respondent’s negligence in this matter.

While there is evidence that Claimant’s infant was afflicted with hyaline membrane disease, he was afflicted with this disease solely because of his premature birth. Medical records in the Court’s record indicated that no congenital abnormalities were identified in this infant. Considering the entire record in this case and a substantial review of similar cases, Claimant is entitled to an award of $11,500.

It is therefore ordered, adjudged and decreed that Claimant is awarded eleven thousand five hundred dollars ($11,500.00) in full and complete satisfaction of this claim.


text:
    (No. 85-CC-1525
    Carolyn Lewis, Claimant, v. The State of Illinois, Respondent.

      Order filed June 1, 1989.

    Sherman F. Jaffe, for Claimant.
    Neil F. Hartigan, Attorney General (Jan Schaffrick, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

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

The court finds that Claimant has filed a complaint seeking damages for personal injury she allegedly sustained while visiting her mother, a patient at Chicago-Read Mental Health Center. The complaint further alleges that Claimant was attacked by Major Cobbs, a patient of Chicago-Read Mental Health Center.

We note that section 25 of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.24 — 5) and section 790.60 of the Court of Claims Rules (74 Ill. Adm. Code 790.60) require any person who files a claim before the Court of Claims shall, before seeking final disposition of his claim, exhaust all other remedies and sources of recovery.

In Essex v. State (1987), No. 85-CC-1739, the Claimant, a patient at John J. Madden Mental Health Center, brought suit against the State after she had been sexually assaulted by another Madden patient. The Claimant, however, did not file an action against her assailant, and as a result, Respondent moved to dismiss the claim for failure to exhaust remedies pursuant to section 25 of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.24— 5) and section 790.60 of the Court of Claims Rules (74 Ill. Adm. Code 790.60). We, in Essex, followed the reasoning set forth in Boe v. State (1984), 37 Ill. Ct. Cl. 72, which held that a claimant “must exhaust all possible causes of action before seeking final disposition of a case filed in the Court of Claims.” (Emphasis in original.) We determined that the language of section 25 and section 790.60 “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 (1980), 34 Ill. Ct. Cl. 268, 271-72.

Like the Claimant in Essex, Claimant in the case at bar failed to exhaust all remedies available to her prior to seeking final disposition of her claim in the Court of Claims. Accordingly, the Claimant here was obligated to bring a civil action against Major Cobbs.

Section 790.90 of the Court of Claims rules (74 Ill. Adm. Code 790.90) provides that failure to comply with the provisions of section 790.60 shall be grounds for dismissal.

Therefore, Respondent’s motion to dismiss should be granted because Claimant has failed to comply with the exhaustion of remedies requirement mandated in section 25 of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.24 — 5) and section 790.60 of the Rules of the. Court of Claims (74 Ill. Adm. Code 790.60).

It is therefore ordered that the motion of Respondent be, and the same is, hereby granted, and the claim herein is dismissed with prejudice.


text:
    (No. 85-CC-2544
    Brad Centola and Valerie Centola, Claimants, v. The State of Illinois, Respondent.

      Order filed September 22, 1987.

      Order filed July 14, 1988.

    Fuller, Hopp, Barr, McCarthy & Quigg (Kitty M. McCarthy, of counsel), for Claimants.
    Neil F. Hartigan, Attorney General (Christine Zeman, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, C.J.

This cause comes before the Court on the parties’ joint stipulation for settlement which states:

This claim arises from a Department of Children and Family Services investigation into child abuse by the husband of the babysitter for Claimants.

The parties have investigated this claim, and have knowledge of the facts and law applicable to the claim, and are desirous of settling this claim in the interest of peace and economy.

Both parties agree that an award of $5,000 is both fair and reasonable.

Claimants agree to accept, and Respondent agrees to pay Claimants Brad and Valerie Centola $5,000 in full and final satisfaction of this claim and any other claims against Respondent arising from the events which gave rise to this claim.

The parties hereby agree to waive hearing, the taking of evidence, and the submission of briefs.

This Court is not bound by such an agreement but it is also not desirous of creating or prolonging a controversy between parties who wish to settle and end their dispute. Where, as in the instant claim, the agreement appears to have been entered into with full knowledge of the facts and law and is for a just and reasonable amount, we have no reason to question or deny the suggested award.

It is hereby ordered that the Claimants be awarded $5,000, in full and final satisfaction of this claim.

ORDER

Montana, C.J.

This cause comes on to be heard on the Court’s own motion;

On September 22,1987, an order was entered in this claim approving a settlement and awarding the Claimants $5,000. On January 29,1988, an amended complaint for interest was filed. In pertinent part that complaint reads as follows:

“1. That on September 22, 1987 an Order was entered by the State of Illinois, Court of Claims which awarded the Claimants Five Thousand Dollars ($5,000.00).
2. Claimants were advised by the Court of Claims that this award for Five Thousand Dollars ($5,000.00) would be included in a Special Awards Bill (Senate Bill 1521) to be approved by the Illinois General Assembly in October of 1987.
3. That during the veto session of the Illinois General Assembly in October of 1987, this award was included in Senate Bill 1521, the Court of Claims Special Awards Bill. However, during this veto session, this award was removed from Senate Bill 1521 and transferred to the Omnibus Bill, Senate Bill 1520, as an amendment to that Bill.
4. That the Illinois General Assembly failed to approve the Omnibus Bill, Senate Bill 1520, which included Claimants’ award for Five Thousand Dollars ($5,000.00).
5. That Claimants have not received payment of their award.
6. That Claimants are entitled to interest on this award from the date the Order was entered on September 22,1987 up to and including the date when a voucher from the State of Illinois is submitted to them as payment.
WHEREFORE, Claimants pray for judgment against the State of Illinois, Court of Claims, for interest on their award which is to be calculated from the date the award was entered by the Court of Claims on September 22,1987 up to and including the date on which Claimants receive a voucher from the State of Illinois representing payment of said award.”

This Court has consistently followed the rule that the State is not liable for interest in the absence of a statute expressly subjecting it to such liability. No such statute has been pleaded here and we know of none applicable to this set of facts as pleaded. In Doe v. State (1986), 40 Ill. Ct. Cl. 37, post-judgment interest which would have accrued while an award was awaiting appropriation by the legislature was denied. In Branch-Nicoloff Co. v. State (1987), 40 Ill. Ct. Cl. 252, we denied interest stating “* * * (T)he legislature’s postponement, or failure to appropriate, funds to pay the award does not change our previous position.”

It is hereby ordered that the amended complaint be, and hereby is, dismissed for failure to state a cause of action.


text:
    (No. 85-CC-3067
    Herb Ward, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 28, 1989.

    Perona Law Offices (Vincent D. Bradley, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (John Buckley, Assistant Attorney General, of counsel), for Respondent.
   Burke, J.

Claimant seeks recovery from Respondent pursuant to section 8(d) of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.8(d)) due to an incident of slipping off Respondent’s sidewalk.

On June 24, 1984, the Claimant Herb Ward was incarcerated at the East Moline Correctional Facility and was there for a period of months prior to the incident. On the date in question, Claimant was walking between the correctional facility’s cafeteria with another inmate, Gerald Leferls, back to his housing unit. While walking on a sidewalk which he described as normal width, his foot caught the outer edge of the sidewalk and he fell into a ditch adjacent to the sidewalk. The ditch was approximately 18 inches deep.

The Court having heard oral arguments and having reviewed the record as it now exists, finds as follows:

1. That the interests of the parties in the instant case were well represented by counsel.

2. That the injury occurred on State property.

3. That the sidewalk was approximately four feet wide.

4. That prior to the accident, Claimant traversed the sidewalk two to three times daily.

5. That no evidence was presented to show that Claimant was pushed or bumped.

6. That the evidence showed the sidewalk was not defective. The Claimant’s foot caught the outer edge causing him to slip into the ditch that was clearly visible and known by Claimant to exist for at least 7 to 10 days.

7. The proof submitted does not show that the State was negligent.

8. That there is no need to address the medical condition of the Claimant.

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


text:
    (No. 86-CC-0543
    Herman Mitchell, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 7, 1989.

    Herman Mitchell, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (John Buckley, Assistant Attorney General, of counsel), for Respondent.
   Burke, J.

This cause coming to be heard upon the report of the Commissioner, after hearing before said Commissioner, and this Court being fully advised in the premises finds that on July 12, 1985, Claimant, Herman Mitchell, was an inmate at Pontiac Correctional Center. On that date, Claimant was removed handcuffed from his cell for the purpose of taking a shower. The officer that accompanied Claimant to the shower area left Claimant to exchange keys. While the guard was gone, Claimant left the shower area and moved to an area where an inmate was in a cell. Claimant and the inmate had argued earlier. Claimant was injured at the hands of other inmates who attacked him, stabbed him with a knife and threw hot liquids on his body.

Respondent is not responsible for criminal acts of third parties under circumstances such as presented in the case at bar. Claimant’s testimony and the departmental report clearly demonstrate that Claimant’s action in wandering from the shower area where he was instructed to remain by the prison guard was the fact or circumstances which facilitated and allowed Claimant to sustain apparent injury at the hands of other inmates.

It is therefore ordered that this claim is denied and Claimant’s complaint is dismissed with prejudice.