author: Burks, J.

text:
    (No. 6794
    Glen Smith, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 12, 1974.

    Land of Lincoln Legal Assistance Foundation, Inc., by Joseph R. Bartylak, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Burks, J.

In this tort action, claimant seeks payment for damages to his automobile caused by an inmate mental patient of Alton State Hospital who, in making an escape from the hospital, forcibly removed the claimant from his parked car, drove it away, and damaged the car so badly that the estimated cost of repairs exceeded the car’s value.

Claimant charges that the respondent was negligent in failing to exercise sufficient restrictive control over the patient, Will Henry Ellis, which would have prevented the occurrence that resulted in claimant’s loss.

The material facts in this case are not in substantial dispute. On January 11,1972, claimant was the owner of a 1966 Buick automobile which was in good condition. At about 2:45 in the afternoon on that date, claimant went to the Alton State Hospital to pick up his wife, who was employed there, at the hospital. He parked his car along a driveway next to one of the buildings where he usually picked up his wife. As claimant was seated waiting for his wife, with his windows rolled down, a mental patient named Willy Ellis approached his car and demanded that he be taken to East St. Louis. Claimant refused. The patient grabbed claimant around the neck, pulled him out of the car, got in the car and drove it away. Claimant reported the theft to the Security Office at Alton State Hospital. No one witnessed the incident between claimant and the mental patient.

A fellow employee took the claimant and his wife from the Alton State Hospital to the Alton police station. On the way there, claimant saw his car sitting on College Avenue in Alton. It was pulled off of the concrete surface of the street , onto some brick siding. The claimant, his wife, and his wife’s friend saw the mental patient, Willy Ellis, walking toward the State Hospital on College Avenue. The car was headed toward Alton. Claimant testified that he could not see any physical damage to the outside of his car, but that there was oil and anti-freeze "all out in the front of the car”.

The car would not start, and claimant had the car towed by Paul Bruns Towing Service to Bruns garage at a cost of $22.50. Bruns made an estimate of repair in the total sum of $854.80.

On cross-examination, claimant conceded that there were signs on the Alton State Hospital grounds telling visitors to keep their cars locked, but that the signs said to do so "when the car was unattended’.

Claimant testified that he disposed of the damaged car by selling it to Russell Swarringin for the price of $100, and said that he had purchased the car about a year before for the sum of $1,300.

Claimant testified that someone "at the State level” authorized him to dispose of the car, but he did not know who it was nor how long after the incident he was told that he could sell the car, but he estimated "It was over a month”.

Paul Bruns, owner of the garage that gave claimant the estimated cost of repairs, said that the car was previously in good condition. After the incident involved, Bruns examined the automobile and found that it had a "rod thrown through the side of the motor”. Bruns testified that, in his opinion, the car had been driven at a high rate of speed and that the engine was ruined.

The State’s witness, Melba King, a social worker and a caseworker at the Alton State Hospital, testified that she was familiar with the record of Mr. Ellis, the patient who had accosted the claimant, and that she had studied his record. Ellis had an alcohol problem. She said that when Ellis drank, sometimes he would be impulsive and "do things”. She testified that she did not know whether Ellis had a violent temper problem when he was not drinking, and said there was no place on the Alton State Hospital grounds that alcoholic beverages could be obtained. She admitted that Ellis had left the Alton State Hospital on occasions other than the one in question, but there was no violence recorded as being associated with Ellis’ elopement on other occasions. Mrs. King testified that Alton was not a security institution; that it was basically a hospital, not for violent inmates, and they had an open door policy.

On cross-examination of Mrs. King, claimant’s counsel established that on October 22, 1971, Ellis had grabbed one of the workers and began pushing her inside a dorm. On October 25, 1971, there was a notation in Ellis’ file that he had struck another patient because the other patient would not let him have a cigarette. On November 11, there was a notation in Ellis’ records that he kicked out a piece of a chair for no apparent reason. Further notations indicated that on November 19, 1971, Ellis began a fight when in line for his morning meal. On December 19,1971, the security officer in Ellis’ ward said that Ellis had been rifling visitors’ cars, and that security officer demanded that Ellis be kept in the ward. The caseworker further testified, that she knew that Ellis had been involved in problems with the police at various times when he had been discharged from Alton State Hosiptal. She conceded that patients admitted to Alton State Hospital are usually admitted on the grounds that they are dangerous to themselves or others.

The respondent called the man who had purchased claimant’s car to testify as to the damage of claimant’s car. Swarringin testified that he had repaired the vehicle for $280.00, doing the repair work himself, and that "it worked fine” after that. The car was subsequently stolen from Swarringin and destroyed. The insurance paid for the loss, was $760.00. We do not find this evidence to be necessarily in conflict with claimant’s contention as to the cost of having the car repaired by an expert mechanic, which Swarringin admitted that he was not.

Claimant argues that the facts as shown at the hearing establish his right to recover from the State, citing certain authorities which we will briefly review.

In Maloney v. State, 22 C.C.R. 567(1957), the mental patient who caused the injury was in the physical presence of two of the hospital attendants when the patient attacked a visitor, causing the visitor personal injury. We found, from the record as a whole, that there was enough negligence on the part of the State and the State’s agents to justify an award. We found that the State’s agents had sufficient warning of the patient’s propensities to have justified their manually removing him from the immediate physical presence of visitors at the hospital. Our opinion in Maloney, as stated at page 569, was based on the fact that the patient was obviously disturbed, and was within a few feet of the visiting women, one of whom was injured. We found that this situation, in and of itself, was sufficient to warrant our conclusion that the attendant or attendants, present with the patient, should not have allowed him to attack and injure the claimant. The Maloney case is distinguished from the case at bar only in that here there is no showing that any agent, employee, or servant of the State had knowledge of the dangerous situation that did immediately confront the claimant. There is no explanation as to why the patient in the present case was permitted to be in the area of claimant’s vehicle, other than the general explanation, that Alton State Hospital has "an open door policy”.

In Callbeck v. State of Illinois, 22 C.C.R. 722 (1958), the claimant was an employee at the Illinois State School of Psychiatric Nursing. She lived on the premises of the school. At 10:00 p.m. one night, she was attacked in her bed and injured by a psychiatric patient. At pages 728 and 729 of the Callbeck opinion, we went into considerable detail in pointing out that the patient in that case was indeed a dangerous person due to countless incidents, which had occurred while he was in the charge of the respondent. We concluded that the State is required to exercise reasonable care in restraining and controlling dangerous, insane persons committed to its custody, so that they will not have the opportunity to inflict a foreseeable injury upon others. We said that, in view of the patient’s history, it became the duty of the State to exercise utmost viligence in controlling his activities. However, in the Callbeck case, there was proof that the attendant on duty allowed the patient to go alone from a ward to the hospital office, and from there to the dining room to await other inmates. The attendant in the Call-beck case testified that the patient then was a "pretty good trustee”, "one you can trust”, and that the attendant had not been given a history on the patient, nor knew his history until after the assault on the claimant. The Callbeck case presents a situation where the history of the patient was far more compelling than in the case at bar to force the conclusion that restraints should have been placed upon the patient.

In Crim v. State of Illinois, 24 C.C.R. 202 (1962), three delinquents escaped the Dixon State School at Dixon, Illinois, and one of them destroyed the claimant’s barn by burning it down. The parties in that case stipulated to the fact that one of the escapees had a history of delinquency prior to his commitment to the Dixon State School, and that he had been known to set small fires prior to his commitment. He had left the school, on at least one occasion, before the incident in question, and a small fire was discovered beneath one of the institution buildings. One of the escapees in the Crim case was strongly implicated in that prior incident. Similar to the case at bar, the Dixon State School was operated in accordance with accepted standards and practices of institutions of similar type; the school was operated on an "open cottage” principle. The grounds of the Dixon State School were not fenced or regularly patroled.

In the Crim case, we cited Dixon Fruit Company, et al v. State, 22 C.C.R. 271, and concluded that there was evidence ample to justify an award against the State for the damages to claimant’s barn and its contents.

In Dixon Fruit Co. v. State of Illinois, 22 C.C.R. 271, the court again found that the patient causing the damage to the claimant was a mental defective, with an exhibited tendency toward incendiarism, and should not have been allowed to wander at will without supervision in an institution where there were no restraining laws, or other means of controlling his movements. We found, on the basis of the preceding fact, that the State was negligent.

Both the Dixon Fruit Company case and the Crim case are sufficient authority to justify an award in the present case. As we discussed in the fact situation above, there was ample evidence in this record to the effect that the inmate, Willy Ellis, had a history of violent activities and had on at least one occasion, other than the occasion in question, escaped from Alton State Hospital.

There is no suggestion in the record that the claimant was in any manner guilty of contributory negligence.

The claimant proved by his exhibits, that he paid towing bills in the sum of $22.50, and the reasonable cost of repairing his vehicle for the damage done totalled $854.80. We find that claimant is entitled to an award to cover the total amount of his property damages in the sum of $877.30.

Claimant is hereby awarded the sum of $877.30.


source: Caselaw Access Project

author: Holderman, J.

license: Public Domain

text:
    (No. 7086
    Kenneth Choiniere, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 12, 1974.

    Robbins, Coe, Rubinstein & Shafran, Ltd., Attorney for Claimant.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant, Kenneth Choiniere, has filed a claim against the State of Illinois for injuries sustained on June 12,1972, while he was a patient at the Read Mental Health Center for the treatment of alcoholism.

It appears that he had been at the Center since March of 1972.

On the evening of June 12,1972, claimant was in the sun room at said hospital. Also in the sun room was a woman patient and another male patient, Michael Morabito.

Michael Morabito left the sun room and the female patient entered and sat in the seat he had vacated. When Mr. Morabito returned, he demanded the female patient relinquish her seat to him. When the claimant came to the assistance of the female patient, Michael Morabito struck him, knocking him to the floor and kicking him in the face with his feet.

As a result of this assault, claimant suffered multiple fractures of his jaw.

He was kept overnight at the Read Mental Health Center and later was transferred to the University of Illinois Research Hospital where he remained until June 29, 1972.

Claimant, testifying in his own behalf, stated that his mouth was wired and that he remained on a liquid diet for approximately 9 weeks.

As a result of the injuries, claimant was required to have certain dental work done on his mouth. He further testified, that his lower lip is partially numb and he has problems speaking clearly.

Claimant was billed $1,201.33 by the University of Illinois Research Hospital for the services it rendered to him, and the hospital has asserted a lien for this amount.

The State of Illinois, through the Attorney General, has filed a Counter-Claim against the claimant in the amount of $4,677:40 on behalf of the Read Mental Health Center for treatment rendered claimant. The respondent seeks a lien, or setoff in this amount. Respondent presented no rebuttal evidence. The facts, the amounts, and the resulting award were, in fact, stipulated to by the parties to this claim.

Claimant contends that the State of Illinois is responsible for his injuries because it permitted a dangerous mentally ill person to be in the sun room occupied by the claimant and other patients. Claimant further alleges that the respondent knew, or should have known, of the vicious propensities of the mentally ill patient, Michael Morabito.

The record is devoid of any evidence as to what actual knowledge the State had as to the tendencies of the assailant, but it can be safely assumed, that there were facts in the hospital record apprising the State of Illinois of the vicious propensities of the assailant.

We are satisfied that the claimant is free from any contributory negligence in this matter.

We find the rule applicable to the case at bar stated in Hazel Robinson v. State of Illinois, 25 C.C.R. 67 at page 74:

"This Court had long held that it is the duty of respondent to exercise reasonable care in restraining and controlling dangerous, insane persons committed to its custody, so that they will not have the opportunity to inflict a foreseeable injury upon others.” [Citing cases] Also in point, see Mitchell Lewinski v. State, 26 C.C.R. 166.

Since the respondent tacitly conceded its liability in this matter, we are justified in assuming that there were facts in the hospital records concerning Michael Morabito that would apprise the State of the mental condition of the offender, and particularly his tendency to be violent. The State was, therefore, negligent in failing to keep him under proper supervision, which would have prevented the injury to this claimant.

Under these circumstances, the court believes that the agreed suggestion of the parties as to the amount of the award is fair and reasonable. The total amount of the award will be $8,378.73 from which amount respondent is entitled to a set-off in the total sum of $5,873.73, pursuant to §8(e) of the Court of Claims Act, as payment for services rendered to the claimant by the two State hospitals, [viz: the sum of $1,201.33 to satisfy the lien of the University of Illinois Research Hospital, and a further sum to be deducted in the amount of $4,677.40 to satisfy the lien of the Chicago-Read Mental Health Center for services and treatment rendered to the claimant.] After the satisfaction of the respondent’s aforesaid counter-claims for recoupment, claimant is entitled to a new award in the sum of $2,500.00.

The claimant, Kenneth Choiniere, is hereby awarded the net sum of $2,500.00 in damages for his personal injuries.


author: Per Curiam.

text:
    (No. 73-CC-423
    Public Electric Construction Company, Inc., Claimant, vs. State of Illinois, Department of General Services.

      Opinion filed November 12, 1974.

    Landesman & Schwartz, Attorney for Claimant.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-204
    Byrd Watson Drug Co., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 12, 1974.

    Byrd Watson Drug Co., Claimant, pro se.

      William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-232
    Holiday Inn of Macomb, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed November 12, 1974.

    Holiday Inn of Macomb, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-628
    Roads and Transportation Association of Canada, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed November 12, 1974.

    Roads and Transportation Association of Canada, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-810
    Avenue State Bank, Administrator of Estate of Wilbur Mc Hugh, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1974.

    Avenue State Bank, Claimant, pro se.
    William J. Scott, Attorney General; Saul R Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-824
    Michael J. Schmitt, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1974.

    Michael J. Schmitt, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-883
    Sammuel R. Guard, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1974.

      Sammuel R. Guard, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-897
    Dr. E. J. Mirmelli, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1974.

    Dr. E. J. Mirmelli, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-19
    Camille McCaskill, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1974.

    Camille McCaskill, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-31
    Union Oil Company of California, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed November 12, 1974.

    Union Oil Company of California, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-40
    General Electric Supply Company, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed November 12, 1974.

    General Electric Company, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-41
    Florence Crittenton Peoria Home, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed November 12, 1974.

    Westervelt Johnson, Nicoll & Keller, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-78
    Edward J. Bronicki, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1974.

    Edward J. Bronicki, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-95
    Kranz Automotive Body Co., Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed November 12, 1974.

      Kranz Automotive Body Co., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-108
    Wildman, Harrold, Allen & Dixon, Claimant, vs. State of Illinois, Office of the Attorney General, Respondent.

      Opinion filed November 12, 1974.

    Wildman, Harrold, Allen & Dixon, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-114
    Grand Elm A.M.C., Inc., Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed November 12, 1974.

    Grand Elm A.M.C., Inc., Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-122
    County of Winnebago, Claimant, vs. State of Illinois, Department of Local Government Affairs, Respondent.

      Opinion filed November 12, 1974.

    William H. Gates, Attorney for Claimant.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-137
    Western Baptist Hospital, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed November 12, 1974.

    Western Baptist Hospital, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-152
    Harold B. Steele, Claimant, vs. State of Illinois, Illinois Judicial Inquiry Board, Respondent.

      Opinion filed November 12, 1974.

    Harold B. Steele, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-163
    St. Mary Hospital, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 12, 1974.

    St. Mary Hospital, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-187
    Sherman Hospital Association, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 12, 1974.

    Sherman Hospital Association, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-220
    Glen Food Mart, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1974.

      Glen Food Mart, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-242
    Cenco Medical Industries, Inc., Claimant, vs. State of Illinois, Environmental Protection Agency, Respondent.

      Opinion filed November 12, 1974.

    Leon E. Lindenbaum, Attorney for Claimant.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-284
    IBM Corporation, Claimant, vs. State of Illinois, Department of Revenue, Respondent.

      Opinion filed November 12, 1974.

    IBM Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-298
    Uniline Corporation, A Delaware Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1974.

    Uniline Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-326
    Quint Cities Drug Abuse Council, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1974.

    Quint Cities Drug Abuse Council, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-603
    Peoria Motors, Inc., Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed November 25, 1974.

      Peoria Motors, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-149
    Albert P. Ludin, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 25, 1974.

    Albert P. Ludin, M.D., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-212
    Exxon Company, U.S.A., Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed November 25, 1974.

    James Lestikow, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-213
    Exxon Company, U.S.A., Claimant, vs. State of Illinois, Civil Defense Agency, Respondent.

      Opinion filed November 25, 1974.

    James Lestikow, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-318
    Wallace, Inc., Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed November 25, 1974.

    Wallace Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-320
    Educational Service Region Adams County, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed November 25, 1974.

    Educational Service Region, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-337
    Bruce McClaren, Claimant, vs. State of Illinois, Commissioner of Banks and Trust Companies, Respondent.

      Opinion filed November 25, 1974.

    Bruce McClaren, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-9
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed December 4, 1974.

    D. K. McIntosh, Attorney for Claimant.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-23
    Springfield Bakers Supply Co., Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed December 4, 1974.

    George E. Egizii, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-385
    George and Judith Bobrowsky, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed December 4, 1974.

    George and Judith Bobrowsky, Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-821
    School of the Art Institute of Chicago, Claimant, vs. State of Illinois, Department of Vocational Rehabilitation, Respondent.

      Opinion filed December 4, 1974.

    School of the Art Institute of Chicago, Claimant, pro se.

      William J. Scott, Attorney General; Saul R Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-24
    Union Oil Company of California, Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed December 4, 1974.

    Union Oil Company of California, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-35
    Robert Falvey, Guardian of Thomas J. Falvey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 4, 1974.

    Klink and Klink, Attorney for Claimant.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-70
    Kenneth Sokol, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed December 4, 1974.

    Kenneth Sokol, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-144
    Jeffery Pharmacy, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 4, 1974.

    Jeffery Pharmacy, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-147
    Mittendorf’s Food Center, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed December 4, 1974.

      J. W. Mittendorf, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-164
    St. Mary Hospital, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 4, 1974.

    St. Mary Hospital, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-170
    Jeanne O’Donnell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 4, 1974.

    Jeanne O’Donnell, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-172
    Mary E. Gillespie, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed December 4, 1974.

    Mary E. Gillespie, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-173
    David Richmond, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed December 4, 1974.

    David Richmond, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-174
    James E. Hagen, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed December 4, 1974.

    James E. Hagen, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-175
    Marvin P. Dekoven, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed December 4, 1974.

    Marvin P. Dekoven, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-177
    Herbert L. Yablong, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed December 4, 1974.

    Herbert L. Yablong, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-180
    Dennis G. Jasinowski, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 4, 1974.

    Dennis G. Jasinowski, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-190
    Northwest Suburan Special Education Organization, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 4, 1974.

    Northwest Suburan Special Education Organization, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-216
    Exxon Company, U.S.A., Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed December 4, 1974.

      James M. Lestikow, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-238
    Earley Butler, Jr., M.D., Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 4, 1974.

    Earley Butler, Jr., M.D., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-241
    Sunnyside Dodge Co., Claimant, vs. State of Illinois, Department of General Service, Respondent.

      Opinion filed December 4, 1974.

    Sunnyside Dodge Co., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-246
    Gulf Oil Company, Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed December 4, 1974.

    R. E. Beken, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-273
    Berz Ambulance Service, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 4, 1974.

    Berz Ambulance Service, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-321
    Michael Linz, Claimant, vs. State of Illinois, Capital Development Board, Respondent.

      Opinion filed December 4, 1974.

    Michael Linz, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-322
    Vernon V. Zimmerman, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 4, 1974.

    Vernon V. Zimmerman, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-327
    James Chisholm & Son, Inc., Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed December 4, 1974.

    James Chisholm & Son, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-217
    Reo Movers & Van Lines, Inc., Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed December 6, 1974.

    Reo Movers & Van Lines, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-483
    Kiddy Kademy Kindergarten, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed December 6, 1974.

    Kiddy Kademy Kindergarten, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-772
    Orlando Auto Top, Inc., Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed December 6, 1974.

    Orlando Auto Top, Inc., Claimant, pro se.

      William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-90
    Irving H. Tracer, M.D., SC., Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed December 6, 1974.

    Irving H. Tracer, M.D., SC., Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-128
    Phyllis E. Ludmann, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 6, 1974.

    Phyllis E. Ludmann, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


author: Perlin, C. J.

text:
    (No. 75-CC-176
    Frank Dameron for Mildred C. Dameron, Deceased, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed December 6, 1974.

    Frank Dameron for Mildred C. Dameron, Deceased, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Perlin, C. J.


text:
    (No. 75-CC-192
    Jean Transportation, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed December 6, 1974.

    Jean Transportation, Claimant, pro se.
    William J. Scott, Attorney General, for Respondent.
   Perlin, C. J.


text:
    (No. 75-CC-247
    J. P. Miller Artesian Well Co., Claimant, vs. State of Illinois, Capital Development Board, Respondent.

      Opinion filed December 6, 1974.

    J. P. Miller Artesian Well Co., Claimant, pro se.

      William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-272
    Pollard Motor Company, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed December 6, 1974.

    Pollard Motor Company, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-285
    St. Vincent’s Community Living, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 6, 1974.

    St. Vincent’s Community Living, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-311
    IBM Corporation, Claimant, vs. State of Illinois, Illinois Environmental Protection Agency, Respondent.

      Opinion filed December 6, 1974.

    IBM Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-330
    Sutclif Pharmacy, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 6, 1974.

    Sutclif Pharmacy, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-348
    J. Donald Easton, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 6, 1974.

    J. Donald Easton, M.D., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-367
    Jules Jaffe, Claimant, vs. State of Illinois, Department of Business and Economic Development, Respondent.

      Opinion filed December 6, 1974.

    Jules Jaffe, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-410
    Lyle Grace, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 6, 1974.

    Lyle Grace, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-420
    Angela J. D’aversa, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 6, 1974.

    Angela J. D’aversa, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-427
    Kankakee Daily Journal Co., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed December 6, 1974.

    Kankakee Daily Journal Co, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-752
    Constructive Playthings, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed December 12, 1974.

      Michael Klein, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-196
    Don P. Koeneman, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed December 12, 1974.

    Don P. Koeneman, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-288
    S & H Feed & Seed Co., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed December 12, 1974.

    S & H Feed & Seed Co., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-292
    Kankakee Industrial Supply, Claimant, vs. State of Illinois, Environmental Protection Agency, Respondent.

      Opinion filed December 12, 1974.

    Kankakee Industrial Supply Co., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-312
    IBM Corporation, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 12, 1974.

    IBM Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-325
    Hunter Webb Lumber Co., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed December 12, 1974.

    Hunter Webb Lumber Co., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-489
    Wade A. Calvert and Constance S. Calvert, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 12, 1974.

    James J. Gende, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-555
    Park Chrysler Plymouth, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 31, 1974.

    Park Chrysler Plymouth, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William J. Karaganis, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-632
    Chicago Lakeshore Hospital, Fairview Hospital, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed December 31, 1974.

    Chicago Lakeshore Hospital, Fairview Hospital, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-790
    Mobil Oil Corporation, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed December 31, 1974.

    James M. Lestikow, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-873
    Ronald T. Sheely, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 31, 1974.

      Kleiman, Cornfield, & Feldman, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-874
    Michael D. Herrel, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 31, 1974.

    Kleiman, Cornfield & Feldman, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-875
    Earl J. Bunselmeyer, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 31, 1974.

    Kleiman, Cornfield, & Feldman, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-880
    Office Equipment Co., of Chicago, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed December 31, 1974.

    Office Equipment Co. of Chicago, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-202
    Walters-Cahill Construction Co., Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed December 31, 1974.

    Keller & Magdich, Attorney for Claimant.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-214
    Exxon Company, U.S.A., A Foreign Corporation, Claimant, vs. State of Illinois, Department of Agriculture, Respondent.

      Opinion filed December 31, 1974.

    Giffin, Winning, Lindner, Newkirk, Cohen, Bodewes, & Narmont, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-226
    Hires Trucking Co., Inc., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed December 31, 1974.

    Hires Trucking Co, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-257
    Arrow Road Construction Co., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed December 31, 1974.

    Arrow Road Construction Co., Claimant, pro se.

      William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-258
    Marcel Eckels, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 31, 1974.

    Marcel Eckels, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-259
    Marcel Eckels, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 31, 1974.

    Marcel Eckels, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-264
    L. G. Stabler, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 31, 1974.

    L. G. Stabler, M.D., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-276
    Mercy Center for Health Care Services, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 31, 1974.

    Mercy Center for Health Care Services, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-278
    Ravenswood Hospital Medical Center, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 31, 1974.

      Ravenswood Hospital Medical Center, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-279
    Ravenswood Hospital Medical Center, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed December 31, 1974.

    Ravenswood Hospital Medical Center, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-283
    IBM Corporation, Claimant, vs. State of Illinois, Office of the Secretary of State, Respondent.

      Opinion filed December 31, 1974.

    IBM Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-303
    Hunter Webb Lumber Company, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed December 31, 1974.

    Hunter Webb Lumber Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-313
    Angelica Uniform Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 31, 1974.

    Angelica Uniform Co., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-328
    BN Transport Company, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed December 31, 1974.

    BN Transport Company, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-354
    Chicago Litho Products Co., Inc., Claimant, vs. State of Illinois, Secretary of State’s Office, Respondent.

      Opinion filed December 31, 1974.

    Chicago Litho Products Co., Inc., Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-357
    Master Aurora Supply Co., Div., Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed December 31, 1974.

    Master Aurora Supply Co. Div., Claimant, pro se.

      William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-363
    University Park Press, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed December 31, 1974.

    University Park Press, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-374
    F. J. Bero & Company, Inc., Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed December 31, 1974.

    F. J. Bero & Company, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-402
    Commonwealth Edison Co., Claimant, vs. State of Illinois, Environmental Protection Agency, Respondent.

      Opinion filed December 31, 1974.

    George O. Shaffner, Attorney for Claimant.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-448
    Bee Jay Industries, Claimant, vs. State of Illinois, Department of Business and Economic Development, Respondent.

      Opinion filed December 31, 1974.

    Bee Jay Industries, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-470
    James M. Rochford, Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed December 31, 1974.

    Richard L. Curry, Attorney for Claimant.

      William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-169
    Excerpta Medica, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 2, 1975.

    Excerpta Medica, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-436
    Methodist Hospital of Central Illinois, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed January 2, 1975.

    Methodist Hospital of Central Illinois, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 75-CC-519
    Gale G. Short, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 2, 1975.

    Gale G. Short, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 5619
    Phyllis C. Buttacavoli, Administratrix of Estate of Andrew J. Buttacavoli, deceased, Claimant, vs. State of Illinois, Division of Highways, Respondent.

      Opinion filed January 6, 1975.

    Arnold and Kadjan, by Daniel N. Kadjan, Attorney for Claimant.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Perlin, C. J.

This is an action for the wrongful death of one Andrew Buttacavoli, who died as a result of injuries received on August 18, 1968, when thrown from a motorcycle while riding eastbound on Illinois Highway Alternate 30, commonly known as Roosevelt Road, near First Avenue in Maywood, Illinois.

The pertinent portions of the complaint allege that on the date of the incident, Roosevelt Road was under the jurisdiction and control of the State of Illinois; that at the site of the accident, the highway was broken, jagged, and angulated; and that the respondent disregarded its duty to warn users of the highway of the hazardous condition. The complaint further alleges that as a result of respondent’s failure to warn of the dangerous condition, the deceased’s motorcycle struck a sewer cover which, because of the condition of the highway, had been raised above the surface of the highway, throwing the deceased to the pavement, and causing injuries which resulted in his death.

On August 18,1968, the deceased, then 28 years old, and three friends were riding motorcycles eastbound on Roosevelt Road near First Avenue in Maywood, Illinois. Roy T. Swallow, one of the riders accompanying the deceased, testified that they were traveling about 30 miles per hour, the posted speed limit, and that the deceased was wearing a safety helmet. Swallow said that at a point about 200 feet west of a forest preserve entrance on Roosevelt Road, the deceased’s motorcycle hit a sewer cover which was raised four to six inches above the plane of the road, and went out of control. The deceased was dragged several hundred feet by the motorcycle and was thrown into a sign post at the side of the road. Andrew Buttacavoli suffered multiple internal injuries as a result of the accident, and died a few hours thereafter.

Swallow identified a photograph of the sewer cover as an accurate portrayal of the accident site. The photograph shows that while the sewer cover was properly seated on the sewer, the pavement immediately surrounding the sewer was jagged and had erupted, forcing the sewer and the sewer cover four to six inches above the plane of the highway.

The deceased’s brother, Robert Buttacavoli, testified that at the time of his death the claimant’s decedent was a journeyman tool and die maker, was married and was the father of three children. He said that the decedent was in good health, had no chronic diseases, and was a good worker. It was shown that at the time of his death the decedent had a life expectancy of 42.6 years. The decedent’s income tax returns were introduced into evidence, and showed that he earned $9,765 in 1966, $12,337 in 1967, and that for 1968 he would have earned $16,800.

The claimant also introduced into evidence, a letter from the State of Illinois Department of Public Works and Buildings, which stated that Roosevelt Road was a state constructed highway, and was "100% under the jurisdiction of the State of Illinois during the month of August, 1968.”

Gary L. Doss, a police officer employed by the Village of Park Forest, testified for claimant that he had driven a motorcycle over the sewer cover in question many times, and had always received a severe jolt. He said that the sewer cover was raised about seven inches above the surface of the road, and that this condition had existed for at least one year prior to August, 1968.

On cross-examination, Doss stated that he had reported the condition of the road and sewer cover to the police dispatcher of Forest Park, but he did not know whether the report was ever forwarded to the State of Illinois. The parties stipulated that Officer Doss had searched the records of the Forest Park Police Department, and was unable to find a copy of his report.

Marina De Michael, a supervisor for the Metropolitan Sanitary District of Greater Chicago, testified for respondent that the sewer cover in question belonged to the Sanitary District. He said that prior to the accident, they had no complaints concerning the sewer cover, and that ordinarily sewer covers belonging to the Metropolitan Sanitary District on state highways are maintained by the District.

Joseph Kostura, the Regional Safety Claims Administrator of the Illinois Department of Transportation, testified that the job of repairing a protruding manhole cover belonging to the Metropolitan Sanitary District, was the responsibility of the District, rather than the State of Illinois.

To recover damages for the death of her decedent, claimant bears the burden of establishing by a preponderance of the evidence that respondent breached a duty owed to Andrew Buttacavoli; that Andrew Buttacavoli was free of contributory negligence; and that the respondent’s breach of its duty was the proximate cause of the death of Andrew Buttacavoli.

It is respondent’s position that it cannot be charged with breaching a duty owed the claimant’s deceased because the sewer cover involved in the accident was under the jurisdiction and control of the Metropolitan Sanitary District of Greater Chicago. However, claimant does not allege that the sewer cover per se was the cause of the occurrence, but rather that it was the broken, jagged, and angulated condition of Roosevelt Road which forced the sewer cover above the plane of the highway, thus causing the accident. The evidence introduced by claimant supports these allegations. The photograph of the accident site shows that Roosevelt Road had erupted into a jagged plateau around the sewer, forcing the sewer and the sewer cover about six inches above the plane of the highway. The sewer cover itself rested firmly upon the sewer and constituted a danger to users of the highway only because of the condition of Roosevelt Road.

This case is thus readily distinguishable from Smith and Hall v. State, 22 C.C.R. 369, relied upon by respondent. There, the court sustained a motion to dismiss a complaint alleging injuries resulting from an automobile striking an open manhole cover on an Illinois road, on the ground that the manhole cover in question was under the jurisdiction of a municipality. Here, the manhole cover was in place, and firmly seated upon the sewer. The defective condition of Roosevelt Road, which forced the sewer cover above the plane of the highway, was the instrumentality that caused the accident.

Claimant has proven that Roosevelt Road was under the jurisdiction of the respondent at the time of the accident, and it is well established that the State is responsible for maintaining roads under its jurisdiction in a reasonably safe condition. Shuck v. State of Illinois, 25 C.C.R. 209. Officer Doss testified without contradiction that the defect in Roosevelt Road around the manhole cover had existed for approximately one year, and this is a sufficiently lengthy period to charge respondent with constructive notice of the existence of the dangerous condition. Joyner v. State, 22 C.C.R. 213, 217; Gillespie v. State, 25 C.C.R. 309. We find respondent negligent in failing to either correct the condition or post warnings of its existence.

Andrew Buttacavoli was traveling at the posted speed limit at the time of the accident, and was wearing a safety helmet. A toxicologist’s report, introduced into evidence, revealed no trace of barbituates or alcohol in his blood. After a careful examination of the photograph of the accident site, we conclude that the dangerous condition of the highway was not so apparent to one lawfully proceeding upon the highway that Andrew Buttacavoli can be charged with contributory negligence in failing to avoid the manhole cover. The instant case can therefore be distinguished from Schnell v. State, 24 C.C.R. 257, where we held a motorcyclist contributorily negligent for failing to avoid a hole in the pavement which was six inches deep and approximately five feet in length and two to three feet in width, where other cyclists accompanying the claimant observed and avoided the hole.

We find that claimant has established that her intestate was free of contributory negligence, and that his death was proximately caused by the negligence of respondent.

At his death, claimant’s intestate was 28 years old, had a life expectancy of 42.6 years, and left a wife and three children. His tax returns for 1966, 1967, and 1968, were introduced into evidence, and show that he was a steady wage earner. It is apparent that the monetary and personal loss to his survivors is substantial.

Claimant is hereby awarded the sum of $25,000.


text:
    (No. 5389
    Winston Park Northwest Corporation, Claimant, vs. State of Illinois, Division of Highways, Respondent.

      Opinion filed January 14, 1975.

      Marvin Sacks, Attorney for Claimant.
    William J. Scott, Attorney General; Bruce Finne, Assistant Attorney General, for Respondent.
   Perlin, C. J.

This action was instituted in February, 1967, when claimant filed a complaint seeking compensation for damages to its property arising from the construction of a roadway by the Illinois Department of Highways in 1965 and 1966. In 1956, claimant, a corporation engaged in real estate development, purchased the following described parcel of real estate in Palatine, Illinois, for purposes of residential development:

"Winston Park Northwest Unit One, being a subdivision in Section 13, Township 42, Range 10, East of the Third Principle Meridian, in Cook County, Illinois.”

The eastern border of lots 1 through 4 of Block I, and lots 1 through 21 of Block 8 of this parcel, abutted the western edge of what was then known as Old Wilke Road, a north-south thoroughfare. In 1965, after claimant had graded the lots but before any construction thereon, the Department of Public Works and Buildings of the State of Illinois commenced reconstruction and repaving of Old Wilke Road into a frontage road for Route 53. In the course of reconstructing the road, respondent raised the grade of Old Wilke Road, now known as West Frontage Road, approximately one foot.

Claimant contends that as a result of the rise in the grade of the road, he was compelled to raise the grade of the lots abutting the road both to prevent the lots from flooding, and to satisfy the requirements of the Village of Palatine for residential construction. Claimant seeks to recover the sum of $10,880, which was spent for landfill to bring the grade of the lots up to the grade of the reconstructed roadway.

Joshua Muss, the President of Winston Park Northwest Corporation, testified that before reconstruction of Old Wilke Road all 21 lots in Block 8 in the subdivision generally sloped from the back lot line to the east, or in the direction of the roadway, while after reconstruction of the road, he was forced to raise the grade of the lots so that water could drain off in the direction of the road.

After the lots were regraded, they were subdivided for residential construction and all had been sold to individual owners by late 1966.

Muss said that claimant paid $10,880 for the landfill utilized in bringing the lots up to grade, and a copy of the bill in that amount, which had been paid by claimant, was introduced into evidence.

Thomas Moody, an engineer who worked on construction of the subdivision for claimant, was familiar with the ordinances and practices of the Village of Palatine concerning residential construction. He testified that it was the practice of the Village to require that sidewalks, curbs, and gutters be built in all residential developments, and that the Village further required that homes be built above the grade of the sidewalks. In developing the lots in question, claimant did construct sidewalks, curbs, and gutters along the reconstructed roadway.

Moody also said that it was necessary to regrade the lots to prevent standing water from accumulating thereon, once the grade of the roadway was raised. However, he could cite no instance of flooding after reconstruction and before the lots were regraded, and he admitted that the drains and sewers, which respondent installed along the West Frontage Road, should have been adequate to control flooding.

Alan Bobka, an engineer for the State of Illinois Department of Highways, worked on reconstruction of Old Wilke Road. He affirmed that after the road was rebuilt, the grade of the roadway at its center line was raised approximately one foot. Bobka also said that after the grade was raised, claimant would have had to purchase additional landfill to bring the lots up to the grade of the reconstructed road.

However, Bobka also testified that a portion of claimant’s property was below the grade of Old Wilke Road prior to reconstruction of the roadway. Referring to a cross-sectional diagram of the area which was introduced into evidence, Bobka said that at a point fifty feet to the west of the center line of the roadway, which was within the State’s right of way, claimant’s lot line was lower than both the new and old pavements. He also said that at a point one hundred feet west of the center line, claimant’s lots were approximately level with Old Wilke Road; and that at a point one hundred fifty feet west of the center line, claimant’s property was alternatively higher and lower than the grade of the original road.

Bobka also testified as to the steps respondent took to insure that claimant’s property would not flood after reconstruction of the road. Respondent deepened an already existing drainage ditch between claimant’s lots and the State’s right of way, and installed new catch basins in the ditch. Respondent also constructed a new sewer line on the east side of the roadway, and drained the catch basins across the road into the sewers.

Claimant bases its claim for compensation upon Article II, Section 13 of the Illinois Constitution of 1870, which provides:

"Private property shall not be taken or damaged for public use without just compensation.”

We have previously awarded compensation to landowners under this provision, where State construction on adjoining land damaged their property. See, Dillard v. State, 23 C.C.R. 139; Doerr v.State, 22 C.C.R. 314, 318. It is apparent that claimant was put to an additional expense in grading his lots as a result of reconstruction of the highway, and that compensation should be awarded. The more difficult issue, however, is what portion of the expense incurred by claimant in regrading the lots is attributable to the rise in the grade of the roadway.

The testimony and engineering drawings introduced into evidence, establish that a portion of claimant’s property was below the grade of Old Wilke Road before reconstruction, and the claimant would have had to raise the grade of the property to conform to the requirements of the Village of Palatine had respondent not reconstructed the roadway. In raising the grade of the road, however, respondent did cause claimant to purchase additional fill to bring the lots up to grade. After a careful examination of the engineering drawings, the Court concludes that the respondent, in raising the grade of the roadway, was responsible for one half of the expense incurred by claimant in bringing the lots up to the grade of the reconstructed roadway.

Claimant is therefore awarded the sum of $5,440.00.

      In view of the lapse between the filing and disposition of this matter, the Court feels it appropriate to state that a substantial portion of the delay was occasioned by respondents failure to proffer any defense in the original proceedings, including failure to introduce either testimony or a departmental report at the hearing on October 20, 1967. Subsequently, on motion of the successor Assistant Attorney General assigned to this case, leave was granted to re-open the proceedings to permit the State to present a defense. Additional testimony and documentary evidence was received in November and December, 1969, and an amended Commissioner’s report was filed on June 3, 1970. Disposition of the case was then further delayed when, because of circumstances beyond the control of this Court, it became necessary to reconstruct the transcripts and exhibits herein.


text:
    (No. 5663
    Theodore Gialloreto, Claimant, vs. State of Illinois, Division of Highways, Respondent.

      Opinion filed January 14, 1975.

    Theodore Sharf, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, and Bonnie G. Walt, Assistant Attorneys General, for Respondent.
   Burks, J.

This is an action for property damages. Claimant alleges that respondent’s Division of Highways, in reconstructing an underground drainage sewer that crossed claimant’s residential property, demolished a retaining wall, damaged his garage, and destroyed certain trees and bushes on claimant’s premises, known as 705 N. First Avenue in Maywood.

Claimant’s lot, about an acre in size and triangular in shape, is bounded by First Avenue on the west (approximately 360 feet), Chicago Avenue on the south (approximately 200 feet), and the DesPlaines River on the northwest border, the lot line along the river being approximately 260 feet. Near the north end where claimant’s lot comes to a point, respondent has an easement through claimant’s land for its drainage sewer running approximately 20 feet underground carrying storm water from North Avenue and emptying into the DesPlaines River. The underground sewer pipe was there when claimant purchased the property some 27 years earlier.

The end of the sewer pipe facing the river had a concrete headwall or retaining wall around it prior to the construction work on the sewer done by the respondent at the time it also resurfaced First Avenue, reconstructed the highway, and installed sewers and curbs adjacent to claimant’s property. This construction project commenced in September of 1968.

Claimant charges that respondent came upon his premises without notice and without his consent, demolished the retaining wall and installed another sewer, covering the same with "rap-rap” or broken pieces of concrete; that the removal of the retaining wall, which he estimates would cost $6,700 to replace, caused the adjacent land to sink and wash away, resulting in damage to his garage which would cost $5,500 to repair. Claimant also asks damages in the amount of $10,200 for the loss of 7 trees, valued at $600 each, and 60 bushes, valued at $100 each. These claims make the total ad damnum $22,400 according to the revised figures in claimant’s reply brief.

Both parties, in support of their respective positions, have invoked various sections of the "Illinois Drainage Code”, Ill. Rev. Stat. Ch. 42 §1-1 et seq., which are applicable to the issues involved in this controversy.

Answering claimant’s allegations as to the State’s entry upon his property, respondent cites the Drainage Code in support of its contention that it had a perpetual easement to enter claimant’s land for the purpose of repairing or replacing the sewer:

"Section 2-10 of the Drainage Code provides:

"Drains and levees deemed to be for the mutual benefit of the lands connected or protected shall constitute a perpetual easement on such lands and shall not be filled, obstructed, breached, or impaired in any way without the consent of the owners of all such lands.” I.R.S. Ch. 42, Sec. 2-10.

"Section 2-11 of the Drainage Code further provides:

"The owner of any land connected to or protected by such a mutual drain or levee may, at his own expense, go upon the lands upon which the drain or levee is situated and repair the drain or levee, and he shall not be liable for damages to lands or crops unless he is negligent in performing the work.” I.R.S. Ch. 42, §2-11. (emphasis supplied)

We hold that this statute is applicable to the facts of the instant case. First, the sewer in question was a "drain” within the meaning of the Code:

" ’Drain’ includes ditch and means any water course or conduit, whether open, covered or enclosed, natural or artificial, or partly artificial, by which waters coming or falling upon lands are carried away.” I.R.S. Ch. 42, §1-2(d).

Second, we hold that the sewer was a drain deemed to be for the mutual benefit of connected lands, pursuant to §2-8 of the Drainage Code which states in relevant part:

"When a ditch, covered drain or levee is, or has been, constructed by mutual license, consent or agreement, either separately or jointly, by the owners of adjoining lands so as to make a continuous line across the lands of such owners, . . . such ditch, covered drain or levee shall be deemed to be a drain or levee for the mutual benefit of all lands connected to, or protected by, it. The mutual license, consent or agreement required in this section need not be in writing, but may be established by parole or inferred from the acquiescence of the parties . . .” I.R.S. Ch. 42, §2-8.

If the drain was constructed by mutual consent, the only fact necessary to prove that the drain was for mutual benefit is that the drain ran in a continuous line through land belonging to the claimant and the State.

The Appellate Court has said:

. . as provided by §2-8, if the ditch is a continuous line across the adjoining lands included in the agreement, it is deemed for the mutual benefit of all. Evidence of actual benefit is unnecessary. Jones v. Williamson, 74 Ill. App. 2d 367, 220 N.E. 2d 645 (3d Dist. 1966) at 648.”

Mutual consent, the statute declares, need not be in writing, but may be inferred from the acquiescence of the parties. Ill. Rev. Stat. Ch. 42, §2-8. There is no evidence in the record that either the claimant or his predecessor in title, ever did anything to protest the presence of the sewer on their property. Claimant cannot maintain he was without knowledge of the easement, because he admits such knowledge of the sewer at the time he bought the property, as he stated at the hearing. As the court noted in Jones, supra:

"It seems clear that plaintiff in purchasing lands burdened with the open, visible marks of an apparent drainage ditch easement in favor of an adjoining dominant estate, is chargeable with the duty of inquiry. 220 N.E. 2d at 648.”

Because of claimant’s acquiescence, and the statutory easement, the admitted failure of State Highway Department personnel to request permission to enter his land, which claimant dwells on in his brief, is immaterial. See also King v. Manning, 305 Ill. 31, 136 N.E. 730 (1922) dealing with acquiescence in drainage system for over 30 years.

The authorities cited by claimant dealing with prescriptive easements are inapplicable, since we hold that respondent’s easement is based on statute. However, one case cited by the claimant, Camp v. Union Drainage Dist. No. 1, 315 Ill. App. 22, 42 N.E. 2d 327 (3d Dist. 1942), merits discussion.

In Camp, the defendant drainage district had an easement to lay an underground tile pipe across 2200 feet of plaintiff’s land. Although the pipe caused a small depression in the ground, plaintiff was able to plant crops over it. Eighteen years after the creation of the easement, the defendant entered plaintiff’s land and dug a wide, open drainage ditch where the pipe had lain. In digging the ditch, defendant piled some 1500 cubic yards of earth on either side, creating hugh spoil banks. Plaintiff was unable to farm in the area of the ditch and the spoil banks, and access from one part of his farm to the other was inhibited. The court held that an easement to lay an underground tile pipe was not an easement to dig a large open drainage ditch, and that defendant had committed trespass in failing to secure permission to enter plaintiff’s land. 42 N.E. 2d at 329.

In the case at bar, however, we must agree with respondent’s contention that replacement of the head-wall with a rap rap wall was not sufficient change in the character of the easement to bring the instant case within the rule of Camp. There is strong evidence in the record that the rip rap wall constructed by the respondent was, according to the testimony of two engineers, an improvement over the pre-existing head-wall, and a more effective plan to deter soil erosion.

Claimant argues that, even if we hold that the sewer is a drain for the mutual benefit of the parties, as we have, respondent’s right to repair the drain does not include the right to demolish the head-wall and replace it with a different type of construction, which respondent believes is better, without claimant’s consent. Claimant argues this point by suggesting some interesting analogies which, if accepted as analogous, would have little weight on the question of monetary damages, unless the new construction was shown to be inferior.

Moreover, claimant’s argument overlooks the fact that the headwall at the end of the cement sewer was already virtually destroyed by the ravages of time and erosion before respondent undertook the repair work.

Respondent’s expert, Valdek Kivirist, a design engineer for the State Highway Department, testified that he conducted a field inspection before construction began. He stated that the head-wall was cracked and tilted, that it had separated from the concrete pipe outlet, and that the entire embankment area was washed out. Soil erosion was so advanced, he stated, that the entire embankment and guard rail required reconstruction. The witness stated that, because of the failure of the head-wall to prevent erosion, it was decided to use a different solution, the rip rap wall, which was built of better material for drainage purposes and was deemed to be a more effective method to stabilize the embankment.

Mr. Kivirist and respondent’s resident engineer, Donald Kash, explained that the underground cement sewer was not changed nor disturbed. Its length was extended to a point closer to the river by a corrugated metal pipe inserted into the existing sewer and the joint sealed by a concrete collar. This extension was covered by the rip rap wall, and the slope down to the river was made more gradual. These witnesses both testified that, in their expert opinion, the rip rap wall was the most effective way of combatting erosion from an engineering standpoint.

Against this evidence we have weighed the testimony of claimant’s expert witness, Leonard Moline, a general contractor who was not an engineer, had never put in sewer pipes, and said he did not know the distinction between a head-wall and a retaining wall. He had built retaining walls for buildings in Chicago. Mr. Mo-line said he examined claimant’s premises about three weeks before he appeared at the hearing in this matter, and stated that, in his opinion, a concrete retaining wall would have been better than the rip rap wall which the respondent installed. He estimated that the cost of building the type of retaining wall he had in mind would be $6,700. We do not believe that Mr. Moline could have been talking about the same kind of head-wall around the sewer pipe that he said he had seen there on claimant’s premises 11 or 12 years ago and which he said was "cracked” due to "settlement” even that long ago.

The issue is not whether the old head-wall should have been replaced, nor whether the respondent’s engineers were correct in concluding that a rip rap retaining wall was the best possible method of combatting further soil erosion at this location. The issue is, whether the removal of the old head-wall caused the adjacent land to sink and wash away, resulting in damage to claimant’s garage. Claimant withdrew his original allegations that his driveway was also damaged by the respondent.

We are compelled to conclude, from a careful review of the evidence, that any damage to claimant’s garage due to soil erosion pre-existed the work done by State Highway Division. It is an undisputed fact that there was substantial soil erosion in the area adjacent to the garage before the repair work was started. There is no creditable evidence in the record of any significant or abnormal erosion since the project was completed.

Donald Kash, the resident engineer for the State Highway Division, testified that he visited claimant’s property about two weeks before the start of construction to make a preliminary survey and he noticed that the garage was leaning "slightly”. Although claimant testified that his garage was leaning at an angle of 25 degrees at the time of the hearing, two of claimant’s witnesses, George Okubo and Leonard Moline, described the angle as about ten degrees. This estimate is more consistent with the photo exhibits in the record and with the observation of the State’s engineer before the respondent’s repair work commenced. Claimant and his son testified that the garage was 20 years old. We also notice that paragraph 8(A) of the complaint, filed less than a year after the repair project was completed, speaks of the "gradual deterioration” of the garage and driveway.

Nor is evidence of erosion prior to September 1968, confined to respondent’s witnesses. Claimant’s expert witness, Leonard Moline, testified that he had inspected the head-wall 11 or 12 years before the hearing. The wall was cracked, he stated, because of settlement of the soil.

We need not question the merits of claimant’s contention that, under §2-6 of the Illinois Drainage Code, he would be entitled to recover any actual damages to his property in this case without proof of negligence on the part of the state. We simply find that the evidence fails to prove any actual damage to claimant’s garage caused by the State in performing the repair work in this case. The evidence also fails to support the claim that the old head-wall of the sewer was, in fact, a retaining wall which the claimant contends should be replaced. The old head-wall was not a retaining wall, according to the preponderance of the evidence, and it had gradually collapsed prior to the respondent’s construction work. Hence, the claim for $6,700 to install a retaining wall and for $5,500 to repair the garage must be denied.

We turn now to the claim for the loss of 7 trees and 60 lilac bushes that were admittedly removed or destroyed by the respondent during construction of the rip rap wall, the sewer and the curb.

It was clearly established at the hearing that the 60 bushes in question which claimant had planted some 25 years ago, were all located on respondent’s right-of-way along First Avenue and were removed by the respondent to put in a curb. Claimant protests in his brief that these bushes were located near the sewer, but this is not in accordance with his testimony at the hearing, recorded on page 22 and 23 of the record, that they were located where the curb was being installed. Respondent introduced conclusive evidence of its acquisition of a right-of-way along First Avenue consisting of a strip between 7.3 and 11.5 feet in width, east of the new curb.

The rules of law applicable here are stated as follows: "Growing trees and shrubs form part of the land and constitute real property”. I.L.P. Property, §10. Title to trees or shrubs passes from the person who plants them to the owner of the estate on which they are planted at the moment of planting. Swain Nelson & Sons v. Department of Finance, 365 Ill. 401, 6 N.E.2d 632 (1937). When claimant planted the lilac bushes along First Avenue, he gave title to the bushes to whomever owned the land on which they were planted. Since the State owned the bushes, it had the right io remove them. Hence, the claim for loss of the bushes must be denied.

Finally, we come to the part of this claim for which we believe compensation is justified, namely, the loss of 7 large old shade trees which respondent removed from claimant’s property. The record shows that these 7 trees were 50 to 75 years old and would take just as many years to grow to be replaced. They were located near the underground drainage sewer which crossed claimant’s property, and apparently were removed to prevent root damage to respondent’s sewer. Such taking or damaging of private property for public use without just compensation is prohibited by the U.S. Constitution, Amendment V and by the Constitution of the State of Illinois Art. I §15:

"Private property shall not be taken or damaged for public use without just compensation.”

Our finding that this constitutional provision is applicable to the taking of claimant’s trees is supported by our reviewing courts in Public Service Co. v. McCloskey, 235 Ill.App. 387 and Aldis v. Union Elevated R.R. Co., 203 Ill. 567. Our Supreme Court’s opinion in the Aldis case, supra, makes it clear that the claimant may recover under the above quoted language in §15 of Article I of the Illinois Constitution, the same as though a condemnation proceeding had been brought to determine the damages prior to the taking of his trees, and the claimant’s right is not limited to tortious acts by the State. Respondent does not contend that claimant has over estimated the value of his 7 trees at $600 each. Considering the age of the trees, we believe the amount claimed for the loss of the seven trees is fair and reasonable.

Claimant is hereby awarded property damages in the total sum of $4,200. [Four Thousand Two Hundred Dollars],

      Respondent’s engineer, Mr. Kash, had explained earlier in the hearing that a head-wall, as previously existed on claimant’s property, is a concrete construction at the end of a sewer pipe; that it has no function without that pipe, and served no useful purpose in keeping the river from flowing on to the land. A retaining wall, he said, is built to sustain or hold back a slope, dirt, earth or whatever it may be from collapsing into a roadway or river.


text:
    (No. 5941
    Raul V. Vergil, Claimant, vs. State of Illinois, Medical Center Commission, Respondent.

      Opinion filed January 14, 1975.

    Gary A. Topper, Attorney for Claimant.

      William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, and William F. Scannell, Special Assistant Attorney General, for Respondent.
   Perlin, C. J.

This is an action to recover for personal injuries suffered by claimant in a State-owned building on October 5, 1969, when he fell down a flight of stairs after tripping on worn carpeting.

On October 5,1969, claimant, then twenty-five years old, lived with his mother and father in the second floor apartment of a two-story building located at 744 South Leavitt Street, Chicago, Illinois. Respondent has stipulated that it was the owner of the building at the time in question.

The building contained three apartments. Two steps down from ground level, was a basement apartment. An exterior stairway led from ground level to the door to the first floor landing. Inside the first floor landing, there was a door to the first floor apartment, and a second door which opened to a flight of stairs leading to the second floor landing where claimant’s apartment was located.

There was no door separating claimant’s apartment from the second floor landing. The door at the foot of the stairs leading to the second floor landing was thus, the only door barring entrance to claimant’s apartment from the first floor landing. Claimant described the door at the foot of the stairway, as the door to his family’s apartment.

The stairs from the first floor landing to claimant’s apartment were not used by any other tenants in the building and were used exclusively to enter and leave claimant’s apartment. Claimant testified that his family kept the stairs clean and said that he personally swept the stairs from time to time when they became dirty.

The upper three stairs of the stairway to claimant’s apartment were carpeted, and photographs of the stairway introduced into evidence show that the carpeting was extremely worn, torn, and frayed. Claimant testified that the carpeting had been in place when his family moved into the apartment in 1965. When asked how long the carpeting had been torn, claimant is quoted in the transcript to have said, "Since, March, January, it got bigger little by little.”

At about 2:00 p.m. on October 5, 1969, as claimant descended the stairway from his apartment, his shoe caught on the frayed carpeting and claimant was thrown down the entire flight of stairs. Claimant suffered fractures of his left clavicular bone and the distal end of his left radius in the fall. He was taken to the University of Illinois Medical Center Emergency Room, where he was X-rayed and a shoulder and arm cast was applied. Claimant spent $348 for medical expenses as a result of the accident and lost approximately one month from work.

Claimant testified that it had been his custom personally to pay the monthly rent on the apartment at the Illinois Medical Center at Ashland and Polk Avenues, Chicago, Illinois. He said that on several occasions while paying the rent, he complained about the condition of the rug and stairs to a woman known to him only as "Dorothy.” He said that when he last complained in March or April, 1969, "Dorothy” told him that "we’re going to take care of it.”

Respondent introduced into evidence, a lease purportedly signed by claimant’s father in 1965. The lease provided, in pertinent part:

"Applicant has examined the premises aforesaid, knows the condition thereof, and is agreeable to accept the same in their present condition. Applicant agrees to do all repairing, decorating and heating of said premises at his own expense; and applicant further agrees that Medical Center Commission, its successors or assigns shall not be liable for any damage or injury occasioned by failure to keep said premises in repair.”

Claimant’s father, who can neither speak nor read English, testified through an interpreter that he had never seen the purported lease, and that the signature thereon was not his own. He also said that nobody had ever explained to him his rights and responsibilities with respect to the premises.

Claimant contends that respondent owed him a duty to keep the stairway leading to his apartment in a reasonably safe condition; that respondent had actual notice of the dangerous condition of the stairway; and that respondent breached its duty to him by failing to repair the worn and frayed carpet. It is respondent’s position that the stairway to claimant’s apartment was not a common area of the building, but rather was demised to claimant’s family along with the apartment proper, and that therefore, respondent did not owe claimant a duty to maintain the stairway. Additionally, respondent asserts that claimant’s own negligence contributed to the injury, in that he was aware of the condition of the carpet. Finally, respondent argues that the lease purportedly signed by claimant’s father absolves respondent from responsibility for failure to maintain the stairway.

We first consider respondent’s contention that the stairway in question was not a common area of the building, and that it, therefore, was not under a duty to maintain the stairway. Generally, a landlord has a duty to maintain in reasonable repair only those portions of his building over which he maintains control. Manns v. Stein, 91 Ill.App. 2d 398, 241 N.E.2d 691, 693; Murphy v. Illinois State Trust Co., 375 Ill. 310, 31 N.E.2d 305. In Gula v. Gawel, 71 Ill.App.2d 174, 218 N.E.2d 42, at 45, the court listed the following factors to be considered in determining whether a stairway is under the control of the landlord or a tenant:

"Where a stairway leads, the use to which it is put and by whom, are factors to be considered by the trier of fact along with the intention of the parties, the terms of the lease, the responsibility for repairs, maintenance and illumination and all other factors which tend to show control in either.the landlord or the tenant.”

Claimant argues that it was the intention of both parties to the lease that the stairway be under the management and control of the landlord. Claimant points to the fact that claimant had complained about the condition of the carpeting to an agent of respondent, who allegedly indicated that respondent would remedy the situation.

However, the stairway down which claimant fell, led only to his apartment, and was used exclusively by those entering and leaving the apartment. No other tenant in the building utilized the stairway. Further, the stairway was inside the only door to claimant’s apartment and claimant and his family habitually cleaned the stairway. Under all the circumstances, we conclude that the stairway was a part of the demised premises, and not a common area of the building.

A landlord is not liable for injuries to a tenant caused by a defect in the demised premises where the defect is of such a nature that the lessee can or does discover it, unless the landlord fraudulently conceals the fact. Roseman v. Wilde, 106 Ill.App.2d 93, 245 N.E.2d 644. Here, the defect was in a portion of the demised premises, and not only did the landlord not conceal the defect, but claimant had actual knowledge of the condition of the carpeting.

Additionally, even if we were to conclude that the stairway was not demised under the lease, claimant would still be barred from recovering for his injuries on grounds of contributory negligence. As we have often stated, the burden of proof rests upon a claimant to show freedom from contributory negligence, and, where he fails to meet that burden, his claim will be denied. Howell v. State, 23 C.C.R. 141, at 145. Claimant was well aware of the condition of the carpeting, having complained to respondent’s representative on several occasions months before the incident. A party has no right knowingly to expose himself to danger, and then to recover damages for an injury which he might have avoided by the exercise of ordinary care. Vanda v. State, 25 C.C.R. 213, at 218. We find that claimant was not in the exercise of ordinary care for his own safety at the time of the accident, and that his own negligence was a contributing factor in his injury.

This claim is accordingly denied.