author: Sommer, C.J.

text:
    (No. 87-CC-0738
    Richard F. Patton, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 25, 1994.

    Susan Shatz, for Claimant.
    Roland W. Burris, Attorney General (Thomas L. Ciecko, Assistant Attorney General of counsel), for Respondent.
   OPINION

Sommer, C.J.

Claimant asserts that the Department of Corrections (hereinafter “IDOC”) damaged him by “negligently keeping him in confinement * * * from September 9 [sic], 1984, when he [allegedly] should have been released, until November 18, 1985, when he was actually released.” (Complaint, par.1.) Claimant had been separately convicted in Mississippi and Illinois for two unrelated crimes of manslaughter, receiving a 20-year sentence in Mississippi in 1980 and a 5-year sentence in Illinois in 1984. Of the potential combined 25-year prison sentences, he ultimately served a total of 5 years, 8 months and 4 days (3/14/80-11/18/85), and a significant portion of that time (approximately 2Vz years) consisted of credit given for prior time spent in county jails awaiting trial and sentencing. Claimants actual confinement in prisons was slightly over 3 years and 2 months on the combined 25-year sentences.

The following timeline documents significant events crucial to this claim. It is drawn from the objective facts contained in the exhibits which the parties tendered into evidence:

Claimant asserts that, by reason of Respondents allegedly erroneous initial computation of his Illinois good time “out date,” he was denied parole by Mississippi on September 25, 1984, and was unlawfully incarcerated from that point until his eventual November 18, 1985, Illinois release.

Claimant alternately refers to his claim as negligent confinement or unlawful incarceration, but the applicable tort theory, quite simply, is false imprisonment. Numerous Illinois decisions have addressed the basic elements of such a claim. (See, e.g., Meerbrey v. Marshall Field & Co., Inc. (1990), 139 Ill. 2d 455, 474, 564 N.E.2d 1222, 1231 and Hajawii v. Venture Stores, Inc. (1984), 125 Ill. App. 3d 22, 25, 465 N.E.2d 573, 576 (1st Dist.).) These cases involve the frequent situation where a merchants security officers detain a customer or employee on suspicion of shoplifting. However, the theory has also been utilized where law enforcement personnel arrest an individual for the commission of a crime. (See, e.g., Fort v. Smith (1980), 85 Ill. App. 3d 479, 481 and 484, 407 N.E.2d 117, 119 and 121 (5th Dist.) and Sparling v. City of LaSalle (1980), 83 Ill. App. 3d 125, 126, 403 N.E.2d 769, 770 (3d Dist.).) Although Claimant has not pleaded the- specific elements of his particular claim, they can be readily distilled from the above case law:

(1) Respondent caused Claimants alleged extended prison confinement;
(2) The extended confinement was against Claimants will; and
(3) Respondent acted intentionally and without having reasonable grounds to believe that Claimant should be further confined.

(See also, Illinois Forms of Jury Instruction, sec. 42.31, Matthew Bender & Co., Inc., 1993.) Those are the allegations that should have been (but were not) pleaded by Claimant. For purposes of this opinion, it will be assumed, arguendo, that at all times the confinement was against Claimants will. Thus, this claim must stand or fall based on application of the evidence to the first and third elements of the tort.

Element One — Causal Connection: Did Respondent Cause Claimants Alleged Extended Confinement?

The February 27, 1984, sentencing order from Cook County circuit court directed Respondent to “take [Claimant] into custody and confine him in the manner provided by law until the above [5-year] sentence is fulfilled.” While the order also provided that Claimant was to be given credit for time which he had served in the Cook County jail awaiting trial and sentencing, the order did not quantify that credit nor did it specify either the minimum projected “out date” or the mandatory “out date.” The order was silent in terms of the data needed for Respondent to perform those specific computations.

The Unified Code of Corrections imposes on the county sheriff and circuit clerk the duties of assembling that data and transmitting it to Respondent. Section 5— 4 — 1(e)(4) requires the sheriff to provide the information to the circuit clerk, who in turn is to then transmit it to Respondent. (730 ILCS 5/5 — 4—1(e)(4).) Section 3 — 8— 1(a) imposes a separate duty on the sheriff to independently transmit that data to Respondent. (730 ILCS 5/3— 8 — 1(a).) Thus, if all had operated according to the statutory scheme, Respondent would have received the jail credit data here twice, once from the circuit clerk and once again from the sheriff. However, the record is silent on both accounts; there is no evidence to prove that either transmission occurred. Rather, the state of the evidence is that this critical data was first received by Respondent on November 18, 1985, the same date that Respondent recalculated the sentence and immediately released Claimant.

Accordingly, Claimant has failed to establish causal connection against Respondent for his alleged extended prison confinement. The unrefuted evidence demonstrates that Respondent had accurately computed both the minimum projected “out date” (8/27/86) and the mandatory “out date” (2/27/89) based on the information which it actually possessed. At most, Claimant's alleged confinement beyond the adjusted minimum projected “out date” of September 10, 1984, resulted, from the failure of the sheriff and circuit clerk to timely transmit that data to Respondent. But even part of that conclusion is speculative, for it cannot be said with any certainty that Mississippi would have paroled Claimant in 1984 but for the allegedly erroneous Illinois data. Claimant has not tendered into evidence a transcript or other report of proceedings from his September 25, 1984, Mississippi parole hearing. As of that hearing, Mississippi’s sentence computation record showed a projected early release date of July 8, 1996, based on accumulated good behavior credits. All that can be gleaned from the record is that with almost 12 years then remaining on his Mississippi sentence, the Mississippi parole board unilaterally believed it not in the best interest of society to release Claimant at that time. The reasons supporting its decision are not articulated in the record, and Claimants self-serving explanation must be disregarded as untrustworthy hearsay. From all that can be determined from this record, the Illinois detainer played no role in the 1984 Mississippi parole denial. All that can be concluded with certainty is that Claimants continued 33 days in custody after October 16, 1985 (Mississippi parole date), through and including his release on November 18, 1985, had resulted from the failure of the Cook County sheriff and Cook County circuit clerk to timely transmit the jail credit data to Respondent. Respondent itself did not in any manner cause Claimants alleged extended prison confinement.

Element Three — Scienter: Did Respondent Act Intentionally and Without Having Reasonable Grounds to Believe that Claimant Should Be Confined?

Claimant entered Respondents custody on October 18, 1985, after the Cook County sheriff brought him back the second time from Mississippi. At all relevant times prior to that point, Claimant had been in the custody of only the Mississippi Department of Corrections or the Cook County sheriff. Section 3 — 2—2(h) of the Unified Code of Corrections gives Respondent the power to investigate its prisoners’ grievances. (730 ILCS 5/3 — 2—2(h).) Pursuant to that power, Respondent has established an Office of Advocacy Services and has adopted specific grievance procedures for inmates to follow. (See 20 Illinois Administrative Code, ch. I, section 440.20 and sections 504.800 through 504.870.) As best can be gathered from the record, Respondent did not require Claimant to adhere to the formal grievance procedures in this instance but instead voluntarily took it upon itself to contact the Cook County sheriff to assemble the jail credit data. When the sheriff answered on November 18, 1985, Respondent prepared a new sentence calculation worksheet, saw the September 10, 1984, projected “out date,” and immediately released Claimant. In total, Claimant spent only 32 days in Respondents custody, and that period resulted from Respondent having to compel the sheriff to comply with his statutoiy duties to assemble the pertinent jail credit data. Given the magnitude of both Respondents operations and the sheriffs jail operations and given the serious nature of Claimants conviction, that 32-day wait can hardly be unreasonable. Accordingly, Respondent had reasonable grounds to believe that Claimant should be confined, promptly investigated and acted upon Claimants grievance, and had no intent to confine Claimant beyond his sentence.

Additional Affirmative Matter Apparent from the Record

The irony of this claim is that the supposedly “correct” November 18, 1985, sentence calculation worksheet was erroneous and that Claimant was prematurely released by Respondent. Claimants projected “out date” was based on half of his sentence, 2Vz years. That would be the equivalent of 912 days in prison. As a matter of law, a convict is not entitled to credit for time spent in custody while incarcerated in another state as the result of a crime committed there, even if a detainer is served on the convict in that state. (People v. Gardner (1988), 172 Ill. App. 3d 763, 768, 527 N.E.2d 155, 158 (3d Dist.); People v. Roberts (1977), 47 Ill. App. 3d 524, 528, 362 N.E.2d 106, 109 (4th Dist):

“[I]t would thwart the plain meaning of [the statute] to give a defendant credit for being ‘in custody’ for his confinement on the [out-of-state] charge since such was not ‘a result of the offense for which the sentence was-imposed’ [citations omitted]. We believe that since defendant’s confinement [out-of-state] was on a wholly unrelated charge, to give him credit for time served there while the Illinois detainer was pending would be giving him a windfall not intended by the statute.” People v. Roberts, 47 Ill. App. 3d at 528, 362 NE.2d at 109.

In other words, the period which Claimant spent in Mississippi between April 4, 1984, and October 16, 1985, inclusive (1 year, 6 months, 12 days) should not have been applied as a credit against his Illinois sentence, for it was time spent in custody for the original Mississippi crime. A review of the record reveals that Claimant had only accrued 759 days of credit on his Illinois sentence at the point that Respondent received custody on October 18,1985:

1982 (3/10-12/31) = 299 days

1983 (1/1-12/31) = 365 days

1984 (1/1-4/3) 94 days (leap year)

1985 (10/17) 1 day_

759 days TOTAL

Thus, at the point that he entered Respondents custody, Claimant had an additional 153 days remaining on his Illinois sentence before he would be eligible for early release. The correct projected “out date” should have been March 19, 1986. Respondents November 18, 1985, release was 121 days too soon.

Accordingly, Respondent was indeed negligent, but not as Claimant would have this Court believe. In its haste to process Claimants grievance, Respondent erroneously recomputed Claimants projected “out date” and released him from prison approximately 4 months before he would have been entitled to be released. Far from harming Claimant, Respondent gave him a windfall. Lacking any basis in either law or fact, it is therefore ordered that this claim is denied.


source: Caselaw Access Project

author: Sommer, C.J. Patchett, J.

license: Public Domain

text:
    (No. 87-CC-0750
    Kensley Hawkins, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 16, 1994.

      Order filed January 25, 1995.

    Kensley Hawkins, pro se, for Claimant.
    Jim Ryan, Attorney General (Diann Marselak, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

Claimant was a former resident of the Joliet State Penitentiary. On the morning of March 24, 1985, he was on work assignment at the furniture factory located in the prison. He was assigned to the sewing machines which were used to sew fabric covers for the furniture. As he was attempting to plug the sewing machine, the plug and wall fixture shorted out. This resulted in a flame which caused first and second degree bums to his hand.

Mr. Hawkins was treated and released from the prison infirmary. At his own request, he was reinstated to his job in the furniture factory a few days later. However, he was not placed in a position that required the use of his injured hand.

The Claimant testified at the hearing of this case that he has experienced a loss of feeling in certain fingers of the hand since the incident. Dr. Tilden testified for the Respondent that the burn was relatively minor. It was treated promptly. The treatment was effective, and no ill effects of the incident should remain.

In order to meet his burden of proof, Mr. Hawkins must show that the Respondent was negligent in allowing the accident to occur. Given the limited amount of information available to the Court, it is clear that Mr. Hawkins failed to meet this burden. In addition, Mr. Hawkins must prove that the accident was the cause of his present complaint. He also failed to meet this burden of proof.

Mr. Jack McSweeney was in charge of electrical maintenance for the prison. He gave testimony as to the probable cause of the short and resulting flame. The sewing machines in question used locking plugs. Most people tend to routinely remove plugs by pulling on the cords. With a locking plug, any pull on the cord can exert sufficient pressure to tear the wiring loose from the plug housing. Mr. McSweeney testified that the cord which caused Mr. Hawkins’ injuries had been repaired. During the repairs, the hot and ground wires were reversed, which resulted in a high-voltage short.

No evidence was presented which showed any repair of the plug in question. It is interesting to note that the Claimant was in charge of the machine in question.

More importantly, Mr. Hawkins completely failed to show that he had permanent injuries or the cause of such injuries.

For the reasons stated, we hereby deny this claim.

ORDER

Patchett, J.

In May 1994, this Court entered an opinion denying this claim. The Claimant, a resident of the Illinois Department of Corrections, filed a subsequent motion asking for additional time. This Court entered an order allowing him 90 days from the effective date of the order to file any post-trial motions he wished to file. To date, none have been received.

Therefore, this claim is denied, pursuant to the earlier order.


author: Epstein, J.

text:
    (No. 87-CC-1139
    Scott Blumstein, Administrator of the Estate of Robert W. Blumstein, M.D., Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 30, 1995.

    Jules R. Cherie, Ltd., for Claimant.
    Jim Ryan, Attorney General (Iain D. Johnston, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Epstein, J.

This is a claim for special damages arising out of the allegedly baseless suspension of the Claimants decedents medical license a decade ago in 1984. This claim was brought under section 17.12 of the former Medical Practice Act of 1923 (formerly Ill. Rev. Stat., ch. 111, par. 4451), which was reenacted as section 46 of the Medical Practice Act of 1987 (which replaced the 1923 Act, see P.A. 85-4) and which was codified at 225 ILCS 60/46. Jurisdiction of this Court is based on section 8(a) of the Court of Claims Act (705 ILCS 505/8) as liability is premised on the foregoing Illinois statute.

This statutory provision (225 ILCS 60/46) provided in 1984 and as reenacted provides now as follows:

“In the event that the Departments order of revocation, suspension, placing the licensee on probationary status, or other order of formal disciplinary action is without any reasonable basis in fact of any kind, then the State of Illinois shall be liable to the injured physician for those special damages they have suffered as a direct result of such order.”

The Facts

In November of 1984 the Department of Registration and Education (the “Department,” since renamed the Department of Professional Regulation) suspended the medical license of the Claimants decedent, Dr. Robert W. Rlumstein, who was constrained to suffer the 90-day suspension while he appealed it because Illinois law did not authorize a stay pending administrative review of the Departments order, Blumstein v. Clayton (1985), 139 Ill. App. 3d 611, 487 N.E.2d 1176 (1st Dist.)

A year after the fact, the circuit court (Judge David Shields, presiding) reversed Dr. Blumstein’s suspension as against the manifest weight of the evidence in a 41-page opinion that reviewed in great detail and substantially rejected the four lay witnesses, the one expert witness and other evidence that the Department had arrayed against Dr. Blumstein and held that the Department had not carried its burden of proof “by clear and convincing evidence” as required by the statute. (Blumstein v. Clayton, No. 84 CH 10585, Judgment Order, November 25, 1985.) The Department did not appeal. A year later, Dr. Blumstein died.

His widow, Zaddie Blumstein, filed this claim in 1986 as administratrix of his estate. Claimant alleged that the Departments order was “without any reasonable basis in fact” (complaint, par. 13) and claimed damages of lost income and loss in value of decedents medical practice totalling $1,000,000 as a “direct result of the * * ” suspension.” Complaint, pars. 11, 14.

In 1990, Zaddie Blumstein died. Scott Blumstein, the son of Dr. and Zaddie Blumstein, succeeded her as administrator and was eventually substituted as the Claimant in this cause.

Procedural History of this Case

This case was placed on general continuance on October 5, 1987, pursuant to section 25 of our Act (705 ILCS 505/25) and section 790.60 of our Regulations (74 Ill. Adm. Reg. 790.60), on the Respondents motion, due to Claimant’s several lawsuits against other parties arising out of the decedent’s suspension. The case was restored to active status in this Court in 1989.

In early 1990, the Claimant filed a motion for partial summary judgment as to liability. In that motion, the Claimant contended that the “obvious legislative purpose” of the statute was “to provide redress to those physicians who had been wrongfully required to suffer the suspension * * * of their licenses 0 ° (Claimants motion for summary judgment, par. 7) and that the statutory standard of liability “encompasses the factual scenario of this case * * * the wrongful suspension of a physician’s license against the manifest weight of the evidence adduced at the [departmental administrative] hearing” (id., par. 8). After briefing, that motion was denied by a summary order entered May 4, 1993. (This opinion, inter alia, further explains the denial of that motion.)

On August 20, 1993, the State filed a motion to dismiss, contending (1) that the complaint failed to state a cause of action in that it failed to allege “facts” in support of its contention that the Departments order lacked a reasonable basis in fact, and (2) that the circuit courts opinion and judgment order establishes that there was in fact sufficient factual or evidentiary basis for the Departments suspension order to meet the statutory standard, and (3) that the action here should be dismissed under section 25 of our Act (705 ILCS 505/25), due to Claimants failure to exhaust other potential remedies (i.e., sources of possible recovery) in that she had not “pursued an action against the patients [of Dr. Blumstein]” whose complaints and testimony had led to the suspension and whom the decedent had accused of making ‘false, frivolous and/or non-meritorious complaints’ to the Department.”

Nominally, this case is before us on the Respondent’s motion to dismiss, two aspects of which raise issues that are properly the subject of a motion to dismiss and should be decided first notwithstanding the unusual timing of this motion which the Claimant understandably protests.

However, after we dispose of the dismissal aspects of the States motion, the Court will consider this case as on cross-motions for partial summary judgment as to liability with respect to the third aspect of the current motion because (1) the Respondents motion is properly a summary judgment motion insofar as it presents-the circuit court opinion as undisputed evidence, as did Claimants summary judgment motion, and (2) because both sides have presented this case for decision as to. liability on the basis of the pleadings and the circuit court determination, and (3) because the thrust of both the Respondents current motion and the Claimants prior summary judgment motion is the legal issue of whether the circuit court proceedings demonstrate or fail to demonstrate breach of the statutory standard of liability under §17.12 of the former Medical Practice Act (reenacted as 225 ILCS 60/46) and (4) because neither party has even suggested that there are disputed material facts in this case or that evidentiaiy proceedings are required.

The Motion to Dismiss

The Respondents motion to dismiss must be denied. Respondents pleading objection is more than adequately met by the simple reply that an allegation that “there is nothing” is sufficient to allege a complete absence of something required, at least as a matter of pleading. Here the Claimant alleged that the Departments suspension order was issued “without any reasonable basis in fact” (complaint par. 13), which is sufficient to allege an actionable statutory defect in the Department’s proceedings. (Proving that allegation, of course, is a different matter.) Respondent has advanced no cogent answer to the Claimant’s question of exactly what should, or might, be added to this allegation to make it sufficient. Paragraph 8 of this complaint sufficiently alleges a violation of former section 17.12 (now 225 ILCS 60/46).

Respondents other dismissal argument must also be rejected. Although this Court is constrained by our statute to enforce the requirement that Claimants “exhaust all other remedies and sources of recovery” (705 ILCS 505/25) before recovering from the State — the “exhaustion doctrine” that is peculiar to claims against the State in this Court — we have never required claimants to pursue claims that existing law bars or fails to authorize as a precondition to litigating a claim here against the State of Illinois. Yet without a shred of authority, the Respondent argues that the decedent and his estate should have pursued actions against his complaining patients and witnesses. If a legal basis lies for that alternative recovery that the Respondent postulates, it has not been shown.

As the Claimant correctly points out, complainants and witnesses in quasi-judicial State proceedings, which includes professional license disciplinary proceedings such as those that are the subject of this case, are absolutely privileged. (See, e.g., Kalish v. Illinois Education Association (1987), 157 Ill. App. 3d 969, 510 N.E.2d 1103; Thomas V. Petrulis (1984), 125 Ill. App. 3d 415, 465 N.E.2d 1059; Parillo, Weiss & Moss v. Cashion (1989), 181 Ill. App. 3d 920, 537 N.E.2d 851.) Neither our statute nor our rules nor our precedents impose an obligation on litigants to seek to change settled law in order to pursue to exhaustion alternative remedies that do not currently exist, as a matter of law, but which can be imagined by creative counsel or which might be created by future legislation or judicial decision. We decline to expand the exhaustion doctrine to encompass such speculative possibilities of causes of action. Indeed, doing so would in some instances place claimants and their counsel in an untenable posture given the constraints of Supreme Court Rule 137 and Federal Rule 11.

Summary Judgment

This case presents this Court with a rare opportunity to review the standard of liability under section 46 of the Medical Practice Act of 1987 and its predecessor and its many companion provisions in other Illinois professional and occupational license statutes. Although this Court has had occasion to decide cases under these provisions (see, e.g., Andreoli v. Department of Professional Regulation (1993), 93 CC 2227), there is a remarkable dearth of precedent almost two decades after these provisions were originally enacted by the General Assembly in 1975 (see Public Act 79-1130). (For convenience, this opinion refers to former section 17.12 of the Medical Practice Act of 1923, as amended, by its contemporary incarnation as section 46 of the Medical Practice Act of 1987, 225 ILCS 60/46.)

In this case, we revisit these provisions against the arguments (1) by the Claimant that section 46 should be expansively read in light of its “obvious legislative purpose” of providing relief to physicians whose licenses are wrongfully or incorrectly suspended or revoked, and (2) by the State that section 46 imposes the substantively identical standard as Supreme Court Rule 137 for pleadings, and therefore the test is whether the Departments charges were totally without supporting factual or evidentiary basis. We do not believe that either side is exactly right.

As we held by our earlier order denying the Claimant’s summary judgment motion, it is clear that this statute does not provide relief to every medical licensee whose suspension (or other disciplinary order) is reversed by the courts. The standard of liability under this statute is plainly a higher standard than mere reversible error by the Department. We have not been appraised of any showing of any legislative intent, obvious or not, that section 46 or its antecedent was intended to have the broad remedial effects that Claimant argues; our own research discloses none. The statutory language, which is the starting point and hopefully the dispositive point in any statutory construction analysis, plainly requires a far narrower reading and yields a much more limited liability than that for which the Claimant contends.

The operative words of the statute that define the standard of liability of the Department and hence of the State are: “without any reasonable basis in fact of any kind.” (225 ILCS 60/46.) This is similar to the language of one part of Supreme Court Rule 137 (although the Rule 137 language is phrased in the affirmative, as a mandate), i.e., the “well grounded in fact” language. However, it does not necessarily follow that the Rule 137 standard and the section 46 standards are identical as the Respondent contends.

There are at least four points of distinction from Rule 137 that should be noted for present purposes:

(1) The section 46 standard is concerned only with factual basis and not with legal basis (Supreme Court Rule 137 covers both).
(2) The section 46 standard has three extraordinary and arguably redundant words — “of any kind”— added to the articulated standard which at some point but not in this case must be construed and, if possible, given some meaning and effect.
(3) The section 46 standard of liability applies to the “order of formal discipline” that is issued or entered by the Department rather than to any pleadings that might initiate disciplinary proceedings.
(4) Violation of the section 46 standard of conduct by the Department gives rise to State liability well beyond attorneys fees and litigation expenses: this statute creates liability for consequential special damages which, as the damages request in this case shows, may be extensive.

We do not find it necessary to the decision of this case to review the Rule 137 caselaw to elucidate the standard for factually groundless pleadings that give rise to liability (primarily for attorneys fees) under that rule. The issue here is the factual basis that existed or failed to exist for the Departments 1984 order of suspension against the Claimant’s decedent. The issue is not whether the Department was right, or whether its order meets the legal standards applicable to the discipline itself, as the Claimant contends. The issue is not the factual basis that supported or failed to support the Department’s initial charges, as the Respondent at one point suggests. The issue is the factual basis for the Department’s order. That much is plain.

It suffices for us to hold, as we do, that under section 46 and its predecessor, the Department was required to have some reasonable basis in fact to support its suspension order, and that this requirement entails both a basis in fact and one that is reasonable.

We recognize that this two-pronged standard is a stringent one that imposes a difficult hurdle for claimants that is akin, though not necessarily identical, to a probable cause standard or a Rule 137 pleading standard. However, the “reasonable basis in fact” standard is the standard that the General Assembly has written into law, and it can be altered by further legislation but not by this Court. We also recognize that this opinion does not address or resolve all of the potential legal issues concerning the application of section 46 and its companions in the various Illinois licensing statutes that are not fairly presented by this case.

In this case, applying the section 46 standard, we must conclude that the Department had ample basis in fact, and a reasonable basis in fact, in the testimony of several of the decedent’s patients and in the opinion of its own expert, a physician of considerable experience, to impose the 90-day suspension on the decedent. It is not necessary to review in detail the record of the Department’s disciplinary hearing, as the sufficiency of the record to support the Departments order against the section 46 standard is clear.

It is neither appropriate nor necessary to consider the reasons that the Court later rejected the Departments case against the decedent; such review is not within the province of this court and, as indicated above, it is irrelevant whether or not the Department was ultimately correct or whether it ultimately prevailed against a different legal standard (i.e., the disciplinary standards of proof and of culpability). This court, in applying section 46s “reasonable basis” standard to the undisputed facts of this case, addresses only the Departments factual basis for its order at the time that it entered its order. That basis sufficed to comply with the statute.

We appreciate that the decedent, and his widow and son, have pursued this cause all these years, at least in part, to vindicate his name and reputation. We understand that the decedent alleged and we assume he believed that the complaints against him were unfounded and malicious. However, there is no evidence whatever in the record that that was true. More importantly, there was not a shred of evidence produced that the Department knew that any of its evidence was untrue when it entered its suspension order and there is no finding by the Court, nor any intimation, that any of the evidence was offered in less than good faith by the Department or by any of the witnesses. This case presents a situation where the record affirmatively shows that the Department acted reasonably on the facts presented to it and on the facts determined by it and on the conclusions reached by its expert, although its case turned out collectively to be legally insufficient to suspend the decedents license. That insufficiency, however, is not enough to result in liability under section 17.12 of the (former) Medical Practice Act or its contemporary statutoiy companions. This Court is constrained to reject this claim.

Conclusion

For the foregoing reasons, the Respondent’s motion to dismiss the complaint is denied, and the Respondent’s motion to dismiss, considered as a motion for summary judgment is granted. Judgment on this claim is entered for the State and against the Claimant.


author: Dillard, J. Sommer, C.J.

text:
    (No. 87-CC-2814
    Warren Buckner, Claimant, v. The State of Illinois, Respondent.

      Order filed May 27, 1988.

      Order filed January 27, 1995.

    Warren Buckner, pro se, for Claimant.
    Jim Ryan, Attorney General (Jan Schaffrick, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Dillard, J.

This cause coming to be heard on the motion of Respondent to dismiss count II of Claimants complaint, due notice having been given the parties hereto and the Court being duly advised in the premises:

The Court finds: That Claimant filed a complaint in the instant cause on March 17, 1987. The claim alleged therein appears to have arisen from Claimant’s employment as an inmate working as a butcher in the dietary building at the Lincoln Correctional Center, Lincoln, Illinois.

We find that count II of the complaint filed herein is a medical malpractice claim, and that it fails to show any compliance with section 2 — 622 of the Illinois Code of Civil Procedure. (735 ILCS 5/2 — 622.) Section 2 — 622 requires Claimant to file an affidavit attached to the complaint. The affidavit is to declare that affiant has consulted with a health professional, the professional has determined in a written report that there is a reasonable and meritorious cause for the filing of the action, and the affiant has concluded that there is a reasonable and meritorious cause for the filing of such action. Alternatively, affiant shall declare that affiant was unable to obtain a consultation because the consultation could not be obtained before expiration of the statute of limitations.

We find that section 2 — 622(g) of the Illinois Code of Civil Procedure (735 ILCS 5/2 — 622(g)) makes Claimants failure to comply with section 2 — 622 grounds for dismissal under section 2 — 619.

It is hereby ordered that Claimant shall obtain and file with this Court a valid health care professional affidavit within 30 days of the filing date of this order or the Respondents motion is automatically granted and count II of the claim herein is dismissed.

ORDER

Sommer, C.J.

This cause coming to be heard on the report of the Commissioner and the motion of this Court, due notice having been given, and this Court being fully advised, finds that the Commissioner had scheduled hearings on five previous dates at which the Claimant did not appear; and the notices for the last two hearing dates, June 2, 1994, and October 6, 1994, were returned to the Commissioner as undeliverable by the post office. The Court cannot proceed without knowledge of the Claimant’s address. Thus, it appears the Claimant has abandoned this claim, and it should be dismissed. It is therefore ordered that this claim is dismissed.


author: Patchett, J.

text:
    (No. 87-CC-3327
    Willie Lewis, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 13, 1995.

    Willie Lewis, pro se, for Claimant.
    Jim Ryan, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent
   OPINION

Patchett, J.

This is a claim by a resident of the Illinois Department of Corrections. On December 11, 1986, Mr. Lewis was a resident of the Stateville Correctional Center. At approximately 6:00 p.m., he was en route from his work assignment to his cell block. He was the victim of an attack by several other inmates. It was undisputed that he was seriously injured as a result of this attack.

Mr. Lewis has brought a claim against the State of Illinois for the injuries he suffered. The trial of this claim was held before a Commissioner of this Court. Mr. Lewis was the only witness. His testimony was undisputed as to the attack and the results of that attack.

Unfortunately for Mr. Lewis, he failed to meet two important requirements for recovery for his injuries. First, Mr. Lewis failed to exhaust his other remedies. As this Court recently held in Howell v. State (1993), 45 Ill. Ct. Cl. 60, an inmate attacked by another inmate must pursue and exhaust his other remedies before filing a claim. The Court dismissed a factually similar claim where an inmate was attacked by another inmate because he did not attempt to recover for his damages via any other remedies, administrative, legal, or equitable. The Court cited Doe v. State (1991), 43 Ill. Ct. Cl. 172, and Lutz v. State (1989), 42 Ill. Ct. Cl. 124, 126.

Because Mr. Lewis made no attempt whatsoever to explore his other opportunities for recovery, this claim must fail. However, it is also important to note that the State may only be liable for attacks on inmates by other inmates if the States agents anticipated, or should have anticipated, that third persons would commit criminal acts against the Claimant. There was no evidence produced at the trial of this case that agents of the Illinois Department of Corrections had either actual or constructive notice that an attack was to occur on Mr. Lewis. In the absence of that notice, there is no liability on behalf of the State. Chils v. State (1985), 38 Ill. Ct. Cl. 196, Carey v. State (1981), 35 Ill. Ct. Cl. 96, Daugherty v. State (1991), 43 Ill. Ct. Cl. 316.

For the reasons stated above we deny this claim.


author: Burke, j. Sommer, C.J.

text:
    (No. 87-CC-3668
    George Wolff, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 8, 1991.

      Opinion filed September 30, 1994.

    Butler, Rubin, Newcomer, Saltarelli, Boyd & Krasnow (Stephanie Leider, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Gregory Abbott, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, j.

Claimant was the owner of a parcel of land approximately 20 acres in size. The northern boundary of his property abuts U.S. Highway Route 20. Until August 12, 1985, a row of Siberian Elm trees, running parallel to Highway 20, was situated on his property. The trees were in this location in excess of 30 years. On August 12, 1985, a certain number of trees were removed by Henrickson Tree Service. The trees were cut down and removed pursuant to a contract with the State.

Claimant did not count the number of trees on his property prior to August 12, 1985, and did not know the number of trees in existence. He estimated that there were 27 live trees and 5 trees remained; therefore, he concluded that 22 trees were removed. Claimant did not know the exact diameter or height of the trees.

Mr. Kramer, a commercial arborist licensed by the State of Illinois as a tree expert and certified by the Illinois Arborist Association was offered as an expert arborist on behalf of Claimant. Mr. Kramer visited Claimants property and observed the five remaining Siberian Elm trees. The remaining trees were approximately 30 years old and stood 40 to 45 feet tall. The diameters of the remaining trees were in the range of approximately 22 to 26 inches as measured 414 feet from the ground. He stated that the trees were alive, healthy, fully foliated and growing.

Mr. Kramer prepared a valuation report at the request of the Claimant. He assumed that 25 trees were removed. However, Mr. Kramer based his valuation on the destruction of only 22 trees and appraised the value of the trees at a total of $34,750. He based this value on the size, condition, location, purpose and function the trees served relative to the property. The value was based upon functional purpose rather than abstract or aesthetic purposes. The purposes were to screen the view of the highway from the residence for privacy concerns, block the north wind, control drifting snow, dirt and dust filtration, noise abatement, control of soil erosion and to offer definition to the property. Mr. Kramer stated that he could only locate 14 physical stumps and used a probe rod to determine the existence of some stumps.

The State did not dispute that some of the Claimants trees were wrongfully removed and destroyed. The State and Claimant disagree on the following:

(a) The number of trees removed and destroyed from Claimants property;
(b) The method by which damages are to be determined for the unauthorized removal and destruction of the trees.

Mr. Joseph Kostur of the Illinois Department of Transportation did not have personal knowledge of the number of trees removed, but a diary of tree removals was kept by the Department of Transportation which indicated that only 16 trees were removed.

The job diary is kept by the Illinois Department of Transportation (IDOT) on a regular basis. The diary is required to be kept on every contract in accordance with a booklet provided by the Federal Highway Federation. The diary also indicated the diameter of the 16 trees removed. Mr. Kostur stated that the trees are measured because contractors are paid by the number of trees removed and paid by the diameter of the trees. For IDOT tree removal purposes, the diameter of a tree is measured two feet above the ground.

Claimant asserts that the testimony of a commercial arborist expert is sufficient evidence for the Court to award damages. The expert determined the value of the trees removed in the following manner. He measured the five remaining trees to determine the range of diameters for the destroyed trees. He then calculated a base value utilizing a table prepared by an industry trade group in association with the United States Department of Labor. The table is widely accepted and establishes a base value of a tree using the number of square inches in a cross section measured 4Vz feet above ground. The base value was adjusted after consideration of the tree species, condition, function and location. He determined that the value of 22 live Siberian Elms removed by State was $34,750.

This Court finds that 16 trees, or 72.7% of the total claimed, were removed. Therefore, the appropriate damages following Claimants method of calculations would be $25,272.73 or 72.7% of $34,750.

Respondent, citing Roger v. Enzinger (1950), 339 Ill. App. 376, 89 N.E.2d 853 (2nd Dist.), asserts that Claimants method of proving damages is prohibited. Respondents position is that the only proper method of measuring damages is the loss of fair market value of the land after the removal of the trees. The Respondent asserts that the Claimant is entitled to nominal damages in the sum no greater than $1,000 because he failed to prove any legally recognizable measure of damages.

Respondent asserts that assuming arguendo that Claimants method of proving damages is proper, the amount of damages is much less than the $34,750 claimed because Claimant’s expert overestimated the number and size of the trees cut. Respondent also argues that the expert utilized too long a life expectancy for the trees because the State subsequently took title to the pertinent property through its eminent domain powers. Neither party cites cases relating to this last argument.

The valuation of damages should be determined at the time of the injury without speculations of the unknown future destruction of the property based upon a subsequent occurrence, i.e. condemnation. Both parties cite First National Bank of Des Plaines v. Amco Engineering Co. (1975), 32 Ill. App. 3d 451, 335 N.E.2d 591 (2nd Dist.). Claimant cites the case for the proposition that the appropriate measure of damages is the diminution in value of the property as a result of the taking of trees. Respondent cites the case to support its proposition the Claimant should receive nominal damage. The First National Bank of Des Plaines case involved the wrongful removal of trees and the primary issue was the proper measure of damages. In that case, plaintiff contended that the proper measure of damages for the wrongful removal of trees was the cost of replacing the trees or the cost of restoring the property to a reasonable approximation of its condition prior to the trespass. Defendants maintained that the measure of damages is depreciation of the value of the realty due to the removal. The First National Bank of Des Plaines court stated that, “As a general rule, the measure of damages for injury to realty is the difference between the fair market value of the property before and after the injury to the premises." (335 N.E.2d at 593.) The Court, citing Rogers v. Enzinger, noted that the general rule has been applied to the destruction of ornamental or shade trees..

The First National Bank of Des Plaines court made a further observation. The Court stated that:

“Where the property injured, although part of realty, has a value which can be accurately determined without reference to the freehold, the recovery may be for the property in its severed condition and not for the difference in the value of the land before and after the defendants misconduct. (Citations omitted.) Other jurisdictions, in dispensing justice between the parties allow the reasonable cost of replacing the trees or for the reasonable cost of restoring the property to approximate, as near as possible, its original condition. (Citation omitted.) This, it would seem is the more equitable rule, but Illinois law has not, to date, recognized such rule.” Id. at 593.

Claimants reply brief cites two cases, Roark v. Musgrave (1976), 41 Ill. App. 3d 1008, 355 N.E.2d 91 (5th Dist.) and Myers v. Arnold (1980), 83 Ill. App. 3d 1, 403 N.E 2d 316 (4th Dist.). In Roark v. Musgrave, the Court upheld the trial courts order where plaintiff was awarded damages for defendants wrongful cutting and removal of trees from plaintiffs land. The plaintiff presented evidence of damages that indicated the depreciation in the value of the property but did not utilize the method of establishing the difference between the fair market value of the land before and after the injury. The Roark expert testified to net loss without determining the fair market value of the property. The Roark court stated:

“So-called ‘rules’ as to the proper measure of damages in a particular type of case are guides only, and should not be applied in an arbitrary, formulaic, or inflexible manner.
To the extent that the cases cited by Defendant suggest that proof must be introduced as to the market value of the land immediately before and the market value after the injury (citation), we do not think that they reflect the preferable, less rigid, modern view.” 355 N.E. 2nd at 95.

The Roark decision, issued 11 months after First National Bank of Des Plaines, apparently has guided Illinois towards the more equitable and modern view.

The Myers v. Arnold opinion did not involve the destruction and removal of trees. The Myers court noted that Illinois cases have not always clearly distinguished between situations where the injury was to the land and those wherein the injury was to an object having a value ascertainable without reference to the land.

The Claimant argues that it is seeking the amount of damages by which the value of the property was diminished by the loss of particular trees. Claimants expert did not opine as to the sum which would be necessary to replace fully mature trees. Claimant argues that his expert testified for the express purpose of directly correlating the value of the trees to the property on which they were situated. The expert did base his opinion on size, condition, location, purpose and function the trees served relative to the property.

In essence, the Claimants position is that its expert testified to the net loss in value to property without establishing the value of the property prior to or after the removal of the trees. This is similar to the testimony presented by the landowner in Roark. The expert in Roark estimated that the property had been depreciated by $20 an acre. The expert did not establish the market value of the property prior to or after the injury. He stated, as did Claimants expert in the case at bar, what the net loss was to the property.

The testimony of Mr. Kramer definitely correlated his valuation of the trees to the property on which they were situated. The Court accepts Claimants expert testimony as credible and appropriate to ascertain damages; however, another problem arises because of the assumptions made by the expert in arriving at the damages. Mr. Kramer testified that because the trees were no longer in existence, his calculations of the value of the trees were based on two assumptions. Claimant told him to assume 22 trees were removed and then measured the five remaining trees and assumed that the smallest tree and the largest tree still standing would be the extremes and all of the missing trees would fall within those two extremes. He testified that the first five diameters of trees listed on Respondents Group Exhibit No. 1 are the diameters of the trees remaining. The first five diameters as measured in inches are 23, 22, 25, 24 and 18. The average diameter is 22.4 inches.

The job diary indicates the diameter of the trees removed ranged from 8 inches to 20 inches, with an average diameter of 16.2 inches. The Court finds the diameter of the 16 trees destroyed to be the diameters stated in Respondents Exhibit No. 2. The average of 16.2 inches is 72.3% of the experts assumed average of 22.4 inches.

The Court shall restore the injured party to as good a position as he held prior to the tort. (Restatement of Torts 2d, section 901.) Claimant’s method of proving damages is accepted and the expert’s value of the trees destroyed is discounted to arrive at a value that reflects the number and the diameter of the trees, determined by this Court to be destroyed. Claimant arrived at a value by assuming the number of trees removed and assuming that the trees had an estimated diameter. Therefore, the Court takes $34,750, the value as it related to 22 trees, and discounts it by 72.7% to reflect the Courts finding of 16 trees. This adjusted value would be $25,263.25. The second adjustment is to discount $25,263.25 by 72.3% to reflect the finding that the average diameter of the trees removed was 16.2 inches rather than 22.4 inches assumed by the expert.

Wherefore, it is hereby ordered that Claimant is awarded $18,265.33 for loss of 16 trees with an average diameter of 16.2 inches, in full and complete satisfaction of this claim.

OPINION

Sommer, C.J.

This claim comes before us on a motion to reconsider filed by the Respondent in regard to an opinion of this Court filed August 8, 1991. Oral argument on the motion was held by the Court on October 26, 1992. The parties have filed briefs in regard to the motion to reconsider.

The matter before us is the value of Siberian Elm trees that were cut down on the Claimants property by a contractor hired by and under the direction of the Illinois Department of Transportation.

The record before us is flawed, making a decision in this claim difficult. For example, it was difficult for the Court to make a finding as to the number of trees cut. The Claimant testified that 22 live trees and 1 dead tree were cut down. The Claimants expert, who examined the site, could not determine how many trees were cut down, as he could not find stumps for 23 trees — some of the stumps had been ground out by a stump remover. The expert probed for old roots but still could not find 23 trees; but figured the value of 23 trees in any event. The Claimant based his figure of 22 live trees on photographs not introduced into evidence and hearsay from a third party. The photographs that were entered into evidence did not show all the trees.

The Respondents evidence of the number of trees was also subject to attack in that it consisted of two Xeroxed pages from a Department of Transportation diary listing the cut trees. The diary began with tree number 7 and ended with tree number 22. No explanation was given of the absence of the page showing the location of the trees 1 through 6.

Equally as odd, the Claimants expert to establish value used estimated diameters for the trees that he could not find; as he admitted to finding evidence of fewer than 22 live trees.

This Court in reviewing this matter is bound by the record and will not act as an advocate for either party. Items of evidence must be properly before the Court. Simply because a party failed to introduce evidence or make an objection that was available to it is not a ground for a new trial. The standard for ordering a rehearing is that the Court “overlooked or misapprehended” points of law or fact. See section 790.220 of Illinois Court of Claims Regulations, Ill. Adm. Code 790.220.

We agree with the opinions finding that 16 trees were cut, as the preponderance of the evidence establishes that at least 16 trees were cut. The Claimant did not meet his burden of proof as to the possibility of an additional seven trees having been cut. We do, however, accept the Claimants method of valuing the trees. No other method of valuation was entered into evidence by the Respondent; and we believe the case law then allowed for functional valuation of the trees.

We note, though it has no bearing on the current claim, that the General Assembly has passed the Wrongful Tree Cutting Act, effective January 1, 1986 (740 ILCS 185/1), which grants triple damages based on the stump-age value of wrongfully cut trees.

The Respondent supports the finding that 16 trees were cut; but then, argues that the Court proceeded to apply the wrong calculation as to the value of the trees cut. According to the Respondent, a tree’s worth increases somewhat geometrically with its increase in size. The Respondent argues that this Court used a straight line computation, to reduce the average diameter of the trees from 22.4 inches to 16.2 inches. The Respondent wishes to use tables attached to an exhibit of the Respondent and the diary pages to establish a lower value, tree by tree. The Claimant argues that the tables were not properly introduced into evidence, nor was the proposed methodology of the valuation in evidence.

The Claimants experts direct testimony established that the square inch diameter was used in his calculation. The Respondent on cross-examination showed the expert his computations, which included the table previously referred to by the expert in his direct testimony as the standard valuation table “prepared by the United States Department of Labor Consumer Pricing” establishing a base price of “$27 per square inch cross section of trunk.” The expert identified the documents as his calculations of the value of the trees. The Respondents attorney did then introduce the calculations and the table into evidence. This was objected to by the Claimants attorney, and rightly so. The calculations and the table should have been introduced during the Respondents presentation of its case. However, we find that a proper foundation for the documents, including the table was laid; and the calculations and table were properly admitted into evidence. It was unorthodox to introduce the tables and calculations into evidence upon cross-examination, but we do not find it to be reversible error, as a foundation was laid.

We find that the introduction of the diary was proper under the business records exception to the hearsay rule. The Respondent did not object to the introduction of a copy. In the oral argument, the Respondent has asked us to award a minimal amount, for which it introduced no evidence; or to recalculate the award. The Respondent urges a recalculated valuation of between $11,000 and $12,000. However, the Courts calculation tree by tree indicates a value of $13,200. The Court used the methodology of the Claimants expert.

We find that the opinion of August 8, 1991, was in error when it used the wrong calculation when it reduced the average size of the trees cut. Even with reduced size, the Claimant is somewhat advantaged as the States measurements were taken two inches from the ground rather than four inches as the Claimants expert urged.

We, therefore, grant the Respondents motion to reconsider; and upon reconsidering the matter find that the Claimant should have been awarded $13,200.

The Claimant, at the oral argument, asked for post-judgment interest on the award made on August 5, 1991. Our decision is not a “judgment” as the word is used in section 2 — 1301 of the Code of Civil Procedure (735 ILCS 5/2 — 1301); rather our decision is a recommendation to the General Assembly that can be dismissed, or accepted in whole or part by that sovereign body. No one can levy on the basis of our opinion, nor does our opinion act as a Hen. Interest is not payable by the State unless it is expressly named in a statute as being liable for interest. (Doe v. State (1988), 40 Ill. Ct. Cl. 37.) Section 2 — 1303 of the Code does not expressly name the State as liable for interest. Therefore, we will deny interest on this claim.

It is therefore ordered that the motion to reconsider is granted and the opinion of August 8, 1991, is reconsidered and the Claimant is awarded $13,200.


author: Sommer, C.J. Sommer, C.J.

text:
    (No. 87-CC-4055
    Michigan Avenue Management, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed January 23, 1990.

      Order filed November 3, 1994.

    Deutsch, Levy & Engel (Michael J. Devine, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Robert Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Sommer, C.J.

This cause coming to be heard on the Claimant’s motion for summary judgment and this Court being fully advised in the premises, finds the first six counts of the complaint are in regard to separate leases by the State of parts of the building at 910 S. Michigan Avenue, Chicago. The leases in each count, except count IV, began on July 1, 1985, and ran to June 30, 1987. The lease in count IV began August 1, 1985, and ran to June 30, 1987. The count notes that the periods of these leases reflect the State’s fiscal year which begins on July 1 and ends on June 30. The leases between the Claimant and the State contained the following paragraph:

“Early termination: Lessee shall have tire option to terminate this lease by giving 120 days written notice to the Lessor of its intention to exercise this option.”

The State did give the Claimant written notices of more than 120 days of its intention to terminate. The date of termination for the leases in counts I through IV was December 13, 1986, while the date of termination for the leases in counts V and VI was August 18, 1986. The whole controversy in counts I through VI is whether the State could establish a termination date on any day or whether it had to terminate and the end of a month. The Claimant argues that payment was monthly and that-the general rule of law is that leases terminate at the end of the month where the payment is monthly. The Claimant would be correct if the leases were month to month; but this Court finds that the leases were for a period of years (generally following the States fiscal years). The plain language of the leases would allow termination on any date. Where there is no ambiguity, this Court cannot go beyond the plain language of the instrument. The Claimant pleads that there is an ambiguity in that the leases do not provide for pro-rata monthly payments. We find that the parties established a monthly payment schedule, but the leases are for a period of years, not month to month; and thus can be terminated at any time or date, provided proper notice is given; therefore, pro-rata monthly payments are implied.

Count VII of the complaint concerns a lease at the same building that was to terminate on October 31, 1986, pursuant to a notice of termination delivered by the State to the Claimant, but the State did not actually leave until December 13, 1986. This Court finds that the States notice terminated the lease and that the State did “holdover.” The State cannot have it both ways. It cannot seek to end sister leases on a specific date and then claim that the termination does does not apply when the State wishes to stay awhile longer. Whether the “hold-over” was wilful is a question of fact. Insomuch as this claim must be sent to a Commissioner for a hearing on counts VIII and IX, damages to the building by the State, the Commissioner shall hear evidence on whether the hold-over was wilful. It is therefore ordered that the Claimants motion for summary judgment is denied in regard to counts I through VI, and that the motion for summary judgment is granted partially as to count VII, and this claim be sent to Commissioner Whipple for hearing.

ORDER

Sommer, C.J.

This cause is before the Court on the parties’ stipulation to dismiss action with prejudice, the Court being fully advised in the premises:

The stipulation to dismiss the claim herein is hereby accepted, and it is therefore ordered that the claim herein be, and the same is, hereby dismissed, with prejudice.


text:
    (No. 87-CC-4172
    Lucious Hayes, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 23, 1995.

    Robert M. Hodge, for Claimant.
    Jim Ryan, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Epstein, J.

This is a prisoner’s negligence claim against the State, alleging negligence by the Department of Corrections (“DOC”) resulting in physical injury to the Claimant’s eyes. The case was tried before Commissioner Sternik, and is before the Court for final decision on the trial record and the Commissioners report.

The facts surrounding the incident that caused the Claimants injury are largely undisputed. On the night of March 21, 1987, the Claimant was working in the boiler room at the Vandalia Correctional Center with another inmate, John Snyder, clearing ash from two of the prisons 11 coal-fired boilers without supervision and without protective glasses. The supervisor, Mr. Keeling, was away from the two inmates at the time in his office. Two other inmates were hauling the ash away.

The procedure was to cool the ash before inmates removed it. The proper procedure was to drop the grates on the side of the boiler, allowing ash to fall into a pit, where it was allowed to cool down. The ash was then shoveled from a pit beneath the boiler and loaded by shovel into wheelbarrows. (The supervisor, Mr. Keeling, testified that he trained all inmates in this procedure and that it is not usually hazardous; the Claimant denies being taught this procedure.)

The supervisor testified that the Claimant had cleared ash for approximately six weeks prior to the March 21, 1987, incident. He said Claimant had performed all the requirements for clearing ash before that date, and that safety goggles were available for use but not required, and were sometimes used by inmates on this duty. He also testified that his supervisors office was upstairs and that he could see the back side of the boiler from the office. At the time of the incident, the supervisor said he was coming down to the boiler room when he was informed of an accident. The Claimant told him he had something in his right eye and pain.

Claimant testified that immediately before the accident he was helping break up cinder in the boiler and Snyder, the other inmate, was raking it out; that Snyder turned a valve in the boiler which created smoke; that ash quickly filled the boiler room; and that Snyder then turned on a fan two or three feet from the boiler (apparently attempting to clear the air). Claimant testified that ash was blown into his right eye. Claimant said that inmate Snyder had been on this job longer than he and, as the senior ash man, decided procedures. Claimant also testified that the supervisor had previously ordered that the ash be taken out immediately that evening.

After the incident, the supervisor assisted Claimant wash his eye and administered eye rinse. Claimant still complained of eye pain. The supervisor took him to the prison hospital, where a nurse could not observe anything in his eye. After treatment, Claimant went back to work with an eye patch over his right eye.

The next morning Claimant still complained of pain and again was taken to the prison hospital, where the duty nurse said he had a corneal abrasion. She authorized him to be taken to Centralia hospital, where Dr. Desai treated him with pain killer and authorized further treatment at Mt. Vernon hospital. Claimant saw Dr. Desai seven times over the course of his treatment from March 22, 1987, to May 12, 1987. Claimant’s own doctor, Dr. Rosenberg, examined him on May 11,1988; his doctor’s letter was admitted into evidence (Claimant’s Exhibit No. 1). Dr. Rosenberg stated that while one eye did tear abnormally, this and other defects in Claimant’s eyes were probably not related to the work injury. His letter also states that there were no remnants of the injury of March 1987, but also stated that there was a syndrome present that could occur following a corneal abrasion but also could derive from other injury or disease. He could not say if this syndrome (a shedding of a small area of cells on the external surface of the cornea) was related to or caused by the injury of March 1987. Claimant also submitted an affidavit by inmate Snyder that was supportive of Claimants testimony.

Our Commissioner found the supervisor to be a credible witness and found that he did in fact teach the proper procedure for clearing ash to both inmates, a finding that we adopt. It is also clear, as our Commissioner found, that the inmates, particularly inmate Snyder, were not following the proper procedure and knew or should have known the correct procedure.We adhere to those conclusions, but they do not dispose of this claim. We have found two aspects of this case that constitute negligence on the part of the DOC and thus the State.

First, a fan located two or three feet from a boiler being unloaded of hot ash should not be operable by inmates, however well “trained” or instructed, and should be operable only by or at least in the presence of a responsible supervisor. Although the other inmate was obviously wrong, as well as wrongheaded, to turn on the fan in this situation, he should never have been placed in a position of being able to take such unilateral action. His improper response was at least partly the responsibility of the DOC and reflects inadequate supervision. The evidence also demonstrated that the supervisor, even assuming his ability to observe the entirety of the ash-removal operation from his office, was not close enough to intervene in case of mistake, and was not close enough to prevent inmate Snyder from operating the fan even had he seen him do it (which is not claimed).

Second, although safety glasses were undisputedly available to the inmates working on this hazardous assignment, the Respondent acknowledged that neither the prison work rules nor the supervisor mandated that inmates wear glasses during ash cleaning. This too was negligent.

In Dorsey v. State (1977), 32 Ill. Ct. Cl. 449, this Court held that a finding that the State was negligent requires actual or constructive notice to the State, which can be met, among other ways, by a showing of foreseeability as to the particulars. Such foreseeability is apparent in this case with respect both to the operation of the fan and as to the failure to wear safety glasses when handling potentially hot ash.

In Hughes v. State (1984), 37 Ill. Ct. Cl. 251, it was held that because of the unique relationship between the State and a prison inmate, the State has a duty to provide safe conditions and adequate supervision for inmates to perform assigned tasks. In the present case, the Claimant has demonstrated that the State failed in both elements of this duty on the March 1987 occasion of the Claimants injury. The State clearly required the Claimant to work in a dangerous workplace (which is not in itself improper) without supervision and without providing or requiring adequate safety precautions (providing as to the fan; requiring as to the safety glasses).

We therefore find the State, through its Department of Corrections, negligent in providing an unsafe work situation and failing to supervise it. However, we also accept the States contention that the Claimant was guilty of substantial comparative negligence that must be taken into account in making an award. This Claimant was negligent himself in at least two ways.

First, he knew that the other inmate, Snyder, was neither a supervisor nor held any other official authority on the work detail and thus had no authority over him irrespective of prisoners’ own self-imposed hierarchy, which has no legal significance whatever. Claimant thus followed Snyder’s directions and methods at his own risk.

Second — and more importantly — and irrespective of the States failure to require these inmates to wear protective glasses, the Claimant was seriously negligent in not electing to wear protective glasses while shoveling potentially-hot ash when such glasses were available to him, as is undisputed. Any reasonable adult should know better. And absent a showing that the Claimant is somehow mentally disabled or incompetent, not alleged here, that is the standard to which an adult, even a prisoner, is held under our law. The Claimant did not comport himself with due regard for his own safety, and accordingly must be held to be comparatively negligent in a manner substantially contributing to his injuiy. We find the Claimant 50% at fault in the comparative negligence causing his injury.

The damages to be awarded are more troublesome in this case than the liability analysis. No permanent .injury was proven, and the short-term injury, while undoubtedly painful and bothersome, did not generate out-of-pocket expenses for the Claimant, as the State paid for his initial medical care. After review of the limited damages evidence submitted, and giving due credence to the medical testimony and the Claimants testimony, we find that the appropriate compensatory damages for the Claimants injury is $5,000.

Accordingly, we award the Claimant $5,000 reduced by 50% comparative fault. Claimant is awarded the sum of $2,500.

Ordered: judgment is entered for Claimant Lucious Hayes against the Respondent in the amount of $2,500.


text:
    (Nos. 88-CC-1363, 88-CC-4290 cons.
    Rudolph Lucien, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 18, 1994.

      Opinion filed August 29, 1994.

    Rudolph Lucien, pro se, for Claimant.
    Roland W. Burris, Attorney General (Wendell Derek Hayes, Diann K. Marsalek and Jennifer M. Link, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

The above claims, seeking damages of $163.09 for lost property, arose from the same incident; and were consolidated by agreement of the parties at the hearing before the Commissioner.

At the time of the incident complained of, the Claimant was an inmate at the Pontiac Correctional Center.

The Claimant grieved his loss to the Pontiac Inquiry Board and the Administrative Review Board. In both cases his claim was denied, except that he was finally reimbursed $4 for two blue sheets.

The Claimant testified that while he was an inmate at the Pontiac Correctional Center in September of 1987 the prison was in a process of an institutional lockdown and shakedown as a result of a prison staff member being killed. It was during this shakedown period, on September 11, 1987, that the Claimant testified he was taken to a different gallery and held while his personal cell was searched by prison staff. After the “shakedown” of his cell, he returned to find certain personal items missing. He had no cellmate. The Claimant testified that the total worth of these items was $163.09.

The Claimant presents as his basis of recovery a negligence theory. An inmate of a State correctional facility may recover under a negligence theoiy for the loss of personal property from his cell if specific evidence is presented that the inmate had no cellmate, that the lost property was outside the reach of passersby, that the cell door was locked when the inmate left his cell, that there was a lot of traffic in the gallery and that the State was in complete control of the cell doors. Walker v. State (1986), 38 Ill. Ct. Cl. 286.

The Claimant testified that the population of his gallery was removed, so that the prison authorities could search for contraband. The Claimant further testified that he moved his property to the back of his cell; and locked the door. When he was released to return to his cell, he found his cell door open and other inmates released ahead of him in the gallery. We find the State negligent in unlocking the Claimants cell and allowing other inmates to be in the area when the Claimant was not present.

The Claimant was denied recovery at his administrative hearings due to the fact that he could present no evidence that he had the items; or if he had them, they were contraband or belonged to someone else.

The items listed in no. 88-CC-1363 and their value included: one pair of black booties ($25 yarn cost); two blue blankets ($14.82); ten Parker ball-point pens ($22.10); nine tubes of Colgate toothpaste ($14.22). The black booties were on the contraband slip. The Claimant testified that they were made from yarn issued by the LTS staff or purchased and sent in; and classes in knitting were held at the institution. The black booties were declared contraband because they were not sold at the commissary. The black booties obviously existed; and the Claimant makes a good case for his right to possess them. Therefore, we will compensate the Claimant for the loss of the booties. As we stated in Seats v. State (1994), 46 Ill. Ct. Cl. 418, “Due to the prisoners situation, his testimony as to the commissary cost or original cost is good practical evidence of the value of an item * 6 (Id. at 420.) The values so established are to be weighed by the Commissioner and Court. We find the Claimants assignment of $25 value of the yam to make the black booties is not unreasonable. We will award the Claimant $25 for the black booties.

As to the remaining items claimed under no. 88-CC-1363, there is no evidence beyond the Claimants testimony that the Claimant had such items; however, the Claimants testimony was prima facie evidence that he had the items; and the State did not specifically rebut his testimony. The Claimants testimony then becomes a matter of weight. In this claim we will accept the Claimants testimony that he had the items, as they are common commissary items a prisoner would be expected to have; and the Claimant is specific in his description and number of the items missing and is not excessive. Additionally, we will apply the Seats doctrine and find the Claimants valuations reasonable. Therefore, we will award the Claimant $51.14 for the loss of the commissary items.

The items listed as missing under no. 88-CC-4290 included: one law book — Fundamentals of Paralegalism ($23.95); a law dictionary — Blacks Law Dictionary ($40); one pamphlet — Illinois Criminal Law and Procedure ($12); two blue sheets ($11).

The Pontiac inquiry board recommended that the librarian check to see whether or not Fundamentals of Paralegalism belonged to the library. The Administrative Review Board found that the book did belong to the library. There was no record of the other books.

Thus, in the case of Fundamentals of Paralegalism, the Claimants testimony was rebutted; and we cannot make an award for the loss of the book. The other two books remained missing. These are not commissary items that a prisoner would normally have, but in light of the work the Claimant does, it is reasonable that he would have, such books. Therefore, we will weigh the evidence in the Claimants favor and award him the value of the books. Applying the Seats doctrine, the Claimant’s valuations seem reasonable and we award the Claimant the stated amount for the loss of the books.

As for the two blue sheets, the Claimant was given $4 for them by the Administrative Review Board. Though the sheets were old, the Claimant testified they were like new. We find the depreciation applied excessive and will award the Claimant an additional $5 (See Seats for a discussion of depreciation.)

It is therefore ordered that the Claimant be paid $137.14 to reimburse him for the value of his lost property in the above two claims.

OPINION

Sommer, C.J.

This claim arises upon the Claimants petition for award of costs. On May 18, 1994, this Court issued an award to the Claimant in the above-entitled claims for personal property lost while the Claimant was an inmate at the Pontiac Correctional Center.

The Claimant is now petitioning for costs. Included in his claim are the costs of copying, postage, etc. In order for a party’s costs to be paid, a statute must authorize such payment. Costs include filing fees, witness fees, deposition fees and expenses, jury fees, etc. Items such as copying and postage are not costs, as they are not authorized by statute to be paid.

The only item cited by the Claimant recoverable as costs is the one-half filing fee that he paid in no. 88-CC-1363. This fee amounted to $7.50.

The State of Illinois is liable for costs only if the statute awarding costs specifically and clearly names the State of Illinois as liable for costs. I & D Pharmacy, Inc. v. State (1984), 37 Ill. Ct. Cl. 37, 42. Cayman Associates Ltd. v. State (1980), 33 Ill. Ct. Cl. 301.

The general statute that allows the awarding of costs to plaintiffs who recover damages does not name the State of Illinois as being subject to the payment of costs under that statute. (735 ILCS 5/5 — 108.) Thus, costs are not recoverable in the present claims. It is therefore ordered that the petition for award of costs is denied.


author: Frederick, J.

text:
    (No. 88-CC-1713

      In re Application of Thais Edwards.

      Opinion filed February 15, 1995.

    Chadwick & Lakerdas (James G. Lakerdas, of counsel), for Claimant.
    Jim Ryan, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This cause is before the Court on Claimant, Thais Edwards’, application for death benefits pursuant to the Law Enforcement Officers, Civil Defense Workers, Civil Air Patrol Members, Paramedics, Firemen and State Employees Compensation Act (hereinafter referred to as the “Act”). (820 ILCS 315/1, et seq.). Claimant was the wife of deceased City of Chicago police officer Gregory R. Edwards. Claimant claims the death benefits available pursuant to the Act. This Court, on March 15, 1989, entered an order that a hearing was necessary for the purpose of determining whether the decedent was “killed in the line of duty” as defined in section 2(e) of the Act. 820 ILCS 315/2(e).

At the request of Claimant, a hearing was conducted on April 5, 1994, at which time Claimant was represented by counsel. One witness, detective Alan Szudarski, was presented on behalf of Claimant and Claimant’s five exhibits were offered and admitted into evidence.

The cases coming before this Court wherein we must determine whether a police officer was “killed in the line of duty” are very difficult cases. This case is no exception. We are always sympathetic to the survivors but must follow the law on a case-by-case basis.

The Facts

The Claimant’s decedent, Gregory Edwards, was a City of Chicago police officer. Gregory Edwards was off duty on September 29, 1987, at 12:30 a.m. Mr. Edwards was at the Roberts Motel, room 114, with a female companion, Angela Williams. Gregory Edwards was registered at the motel under the name Gregory Richards. Ms. Williams and Mr. Edwards were asleep in the bed. Ms. Williams woke Mr. Edwards up when she heard someone attempt to open the door. Mr. Edwards got dressed and Ms. Williams went into the washroom. Mr. Edwards exchanged words with someone outside. Without identifying himself as a police officer, and without calling for back-up, Mr. Edwards opened the door. Ms. Williams then heard gunshots fired. When she exited the washroom, she saw Mr. Edwards on the floor.

Mr. Edwards was carrying, and used in the altercation, a .44 caliber “Bull Dog” revolver. This was not a Chicago police department weapon. It was a secondary weapon. At the time, policemen were not allowed to carry a .44 caliber Bull Dog. However, at the time, police officers were permitted and encouraged to carry their weapons when off duty. There were handcuffs in the room and Mr. Edwards’ star was also lying in the room.

Melvyn Wright was apprehended and convicted of the murder of Mr. Edwards. Melvyn Wright was at the motel with the intent to obtain money.

Chicago police detective Szurdinski testified that Mr. Edwards was not only off duty but had begun his furlough. He also testified that the woman he was with was not his wife and that Mr. Edwards registered in the motel under the name of “Gregory Richards.”

The Law

Claimant correctly argues that the Act does not require a police officer to be “on duty” when his death is caused by violence or accident. Section 2(e) of the Act, however, specifies that a person is “killed in the line of duty” as a result of injury received in the active performance of duties as a law enforcement officer. 820 ILCS 315/2(e).

Subsections (1) and (2) of section 2(e) provide two instances in which a law enforcement officer receives an injury in the active performance of duties of a law enforcement officer without the specification that he be on duty. An officer may recover pursuant to subsection (1) if the injury is a result of a willful act of violence other than by the officer and a relationship exists between the commission of such act and the officers performance of his duties, whether or not the officer is on duty. Subsection (2) would allow recovery if the officer is attempting to prevent the commission of a criminal act or apprehend an individual suspected of committing a crime, whether or not the officer is on duty.

Claimant cites Hicks v. State (1973), 29 Ill. Ct. Cl. 535 in support of her position. In Hicks, supra, the officer was off duty and the Court found that he was killed in the line of duty. He observed a robbery taking place, attempted to prevent the commission of a crime, and was killed.

Claimant also cited two cases where fire fighters were off duty. In re Rawson (1982), 35 Ill. Ct. Cl. 415 and In re Schultz (1982), 35 Ill. Ct. Cl. 900.

The Respondent maintains that officer Edwards was not killed in the line of duty because the Act requires the officer to be engaged in the “active performance of law enforcement duties.” (820 ILCS 315/2(e).) The Respondents position is that Claimants decedent was not responding as a police officer but merely as any other private citizen. When Mr. Edwards opened the door, he became a victim of an attempted robbery.

In support of its position, the Respondent cites In re Application of Georgean (1973), 28 Ill. Ct. Cl. 408. In Georgean, supra, the Court adopted the “risk inherent in law enforcement” standard in these cases. The intent of the Court is to compensate for deaths whereby an officer risks his life in the public interest and the intent is not to compensate for a death unrelated to the risks inherent in and peculiar to the profession of law enforcement. 28 Ill. Ct. Cl. at 411.

It was the opinion of the Court in Georgean, supra, that the legislature intended to compensate survivors of law enforcement officers who were exposed to risks greater than those to which the public is exposed. (28 Ill. Ct. Cl. at 413.) In this case, officer Edwards was not exposed to any risk greater than a person of the general public. The cases cited by Claimant involve an officer who became involved in a dangerous situation and became involved in the performance of official duties.

There is no evidence that Mr. Edwards announced that he was a police officer at the time of the incident or that he told the offender to cease his conduct or face arrest. The record reflects that Mr. Edwards said, “Are you having trouble with this door knob? Well then get the fuck away from the door.” He did not call for back-up. He was in a somewhat compromising situation using an assumed name. Mr. Edwards was not acting in the line of duty. The facts of this case are somewhat similar to the facts in In re Application of Schaffer (1989), 42 Ill. Ct. Cl. 218. In Schaffer, supra, the decedent was killed during a robbery. Officer Schaffer was acting as a private citizen, not as a police officer, and compensation under the Act was denied.

We find that in the present case Mr. Edwards was killed while acting as a public citizen. While we sympathize with the Claimant, Thais Edwards, we are constrained to find, based on the foregoing, that officer Edwards was not “killed in the line of duty” as required by section 2(e) of the Act. Claimant has failed to prove by a preponderance of the evidence that Mr. Edwards’ death resulted from the performance of his duties as a law enforcement officer.

Therefore, it is ordered that this claim be and is hereby denied.


text:
    (No. 88-CC-1907
    Charles Ott and Patricia Ott, Claimants, v. The State of Illinois, Respondent.

      Opinion filed August 25, 1994.

    Lindner, Speers & Reuland (William Delaney, of counsel), for Claimants.
    Roland W. Burris, Attorney General (Janice Schaffrick and Terry Overton, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Patchett, J.

This matter comes before the Court after a hearing before a Commissioner of this Court. All the evidence was adduced at the hearing, and the Respondent made a motion for directed verdict at the close of the evidence. Following that, the Commissioner filed a confidential recommendation to the entire Court.

The essential facts in this claim were undisputed. On April 29, 1987, at approximately 11:30 p.m., the vehicle occupied by the Claimant, Charles Ott, as driver and Patricia Ott as passenger was struck by an automobile driven by Merbeth Muzzarelli. This collision occurred at the-intersection of Illinois Route 59 and 83rd Street in Naperville, Illinois. Mr. Muzzarelli had filed a claim, which was dismissed for want of prosecution on March 1,1993.

Mr. and Mrs. Ott were traveling westbound on 83rd Street, a two-lane paved roadway. Mr. Ott had his lights on and was traveling at about 35 miles per hour. He did not reduce his speed as he approached and entered the intersection with Route 59. Mr. Ott further testified that he did not see any traffic control signs or signals as he approached and entered the intersection.

As Mr. Ott entered the intersection, he noticed the lights from Muzzarelli’s car traveling southbound on Route 59 only 20 feet away. Mr. Ott applied his brakes and turned sharply to the left, but the vehicles collided.

Officer James Bedell of the Naperville police department responded to the scene of the accident. When he arrived at the scene, he noticed that the stop sign at the northeast comer of the intersection for westbound traffic on 83rd Street was missing. Officer Bedell further testified that he had noticed the stop sign missing two days prior to the accident. At that time, he had notified the dispatcher and requested that the dispatcher notify the proper authorities. Officer Bedell, however, had no knowledge as to whether the dispatchers office had taken any action on his report.

Carol Berry, dispatcher supervisor for the City of Naperville, testified that when notice of a downed stop sign within the jurisdiction of the State was reported, it was the City of Naperville’s policy and procedure to contact the State of Illinois and advise them of the problem. However, she had no personal knowledge that a report of the downed stop sign in question was made in April of 1987, nor did she have any personal knowledge of the dispatch office making a report to the State of Illinois, Department of Transportation.

The parties stipulated that the downed stop sign in question was within the jurisdiction of the State of Illinois, Department of Transportation. The parties further stipulated that Patricia Ott had received $5,000 in settlement of her claim against Muzzarelli and $15,000 in settlement of her claim against the Township of Naperville.

The central question in this case is whether the Claimants have met the burden of proving that the Respondent had notice of the downed stop sign. The Court of Claims has consistently held that while the State does owe a duty of ordinary care in the maintenance of its highways, the State is not an insurer of the safety of persons traveling upon them. (Hollis v. State (1981), 35 Ill. Ct. Cl. 86, 88.) In order to prevail, a claimant must establish that the State had actual or constmctive notice of a defect involving the highway. (Scroggins v. State (1991), 43 Ill. Ct. Cl. 225, 227.) The Court has held that the mere fact that a defective condition existed is not, in and of itself, sufficient to constitute an act of negligence on behalf of the State. (Palmer v. State (1964), 25 Ill. Ct. Cl. 1, 2.) Therefore, the Claimant clearly had the burden of proving that the Respondent had either actual or constructive notice of the missing stop sign.

The Claimant produced no evidence that the Respondent had actual notice of the downed stop sign. While it was clearly established that the City of Naperville had such knowledge, there was no evidence that this information was passed on to the State of Illinois.

Whether the State had constructive notice of the defect depends on the facts of each individual case. The standard to be applied to this issue was set in Scroggins v. State (1991), 43 Ill. Ct. Cl. 225, 227-228. There this Court held that:

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

In Skinner v. State (1975), 31 Ill. Ct. Cl. 45, 50, this Court was faced with a very similar factual situation. There two cars collided at an intersection in which a stop sign was missing at the time of the accident. The Court found that the stop sign had been down for a little less than two days. The Court ruled that the condition must have existed for a sufficient length of time before the Respondent could be charged with negligence for not ascertaining or correcting the condition. The Court concluded that two days was not a sufficient amount of time to charge the State with constructive notice. The Court relied on an earlier decision, Hilden v. State (1971), No. 5652, filed May 11, 1971), which was misreported at 27 Ill. Ct. Cl. 214 as being a contracts case. There the Court held that a two-day malfunction of a traffic signal was not a sufficient length of time to hold the State liable on constructive notice.

Obviously the facts in this case are similar to the facts in Skinner and Hilden. It can only be clearly established that the stop sign was down for two days prior to the accident. There is a total lack of proof that the State had actual notice of a defect. Based on prior decisions and the facts of this case, we conclude that the Claimants have failed to meet their burden of proof that the State had constructive notice of the defective condition. Therefore, we are granting the motion for directed verdict and denying liability and this claim.