text:
    (No. 5791
    Polk Bros., Inc., An Illinois Corporation, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed July 9, 1970.

    Crane and Kravets, Attorneys for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Dove, J.


source: Caselaw Access Project

author: Holderman, J.

license: Public Domain

text:
    (No. 5277
    Pacific Insurance Company of New York, As Subrogee of CPC, Inc., and CPC, Inc., Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 18, 1971.

    Epton, McCarthy, Bohling and Druth, Attorneys for Claimants.
    William J. Scott, Attorney General; Bradley M. Glass, Special Assistant Attorney General, for Respondent.
   Holderman, J.

On February 18, 1966, Pacific Insurance Company of New York, as subrogee of CPC, Inc., and CPC, Inc., filed their verified complaint in this Court seeking a recovery in the amount of $5,799.53.

The record consists of the following:

1. Complaint
2. Transcript of evidence taken on October 19, 1966
3. Commissioner’s Report
4. Stipulation
5. Joint motion of claimants and respondent for leave to waive the filing of briefs
6. Order of the Chief Justice denying the joint motion of claimants and respondent for leave to waive the filing of briefs
7. Motion of claimants for an extension of sixty days in which to file brief
8. Order of the Chief Justice granting the motion of claimants for an extension of sixty days in which to file brief
9. Brief of claimants
10. Motion of respondent for an extension of time to and including February 1, 1970, in which to file brief
11. Brief and argument of respondent
12. Reply brief of claimants
13. Order of the Chief Justice granting the motion of respondent for an extension of time to and including February 1, 1970, in which to file brief

The facts of the case appear to be that on March 2, 1964, Chicago Pool Car Company was the owner of a Diamond T Tractor and Strick Refrigeration Trailer combination, which was being driven by its agent or employee, Richard Farmer. He was proceeding in a westerly direction on and along North Avenue at or near the Lake Street overpass or viaduct at a speed of approximately 40 miles per hour. He was passing under said overpass when, at a point about 3 feet from its front, the trailer struck an electrical conduit attached to the underside of said overpass, and was thereby severely damaged.

Richard Farmer, claimant’s driver, testified that the markings on his trailer read 13'6". He further stated that the trailer was loaded with approximately 70,ROO pounds of material, which would lower the trailer by some two or three inches. He also stated that there was a sign on the viaduct stating that the clearance was 13'7", and that he was approaching said viaduct at a speed of approximately 40 miles per hour.

Another witness, Fred Willis, a police officer of the City of Northlake, testifying in an evidence deposition, stated that he investigated the accident in question. He described how the top of the trailer was ripped off, and stated that there appeared to be damage done to the conduit and the underside of the overpass. He also testified that diere were two signs in this vicinity, one approximately fifty to one hundred feet east of the overpass, which read “Clearance 13'7"”, and another on the overpass, which also read “Clearance 13'7"”. He did not know whether this sign was on the overpass on the date of the accident. He further testified that sometime after the accident he observed men working to raise the overpass by means of piling and jacks.

It was stipulated by the parties hereto that the damage to claimant’s trailer amounted to $5,799.53, and that of this amount the sum of $4,900.00 was paid by The Pacific Insurance Company of New York, who is also a claimant herein as subrogee of CPC, Inc.

It was further stipulated that CPC, Inc., has disposed of its license and business to another company, and is not presendy available to prosecute its claim; and, that, therefore, the total amount in controversy is the sum of $4,-900.00, which is the amount of the loss paid by claimant, Pacific Insurance Company of New York.

This is the second claim involving similar circumstances at this overpass. The other claims are Lester R. Borum and Emmco Insurance Company vs. State of Illinois, Court of Claims Case No. 5225, and Great American Insurance Company, A Corporation, et al., vs. State of Illinois, Court of Claims Case No. 5429.

It is rather interesting to note that there was no testimony by either respondent or claimant as to any measurements taken at or about the time of the accident showing the actual or true height of the overpass.

It is also interesting to note that Officer Willis testified that he had traveled this route two nights before his testimony was taken, and that the sign had been removed. He could see that the hangers which held the conduit had been damaged and one of them was broken off. Officer Willis further testified that he was present when workmen were using railroad ties and scaffolding to jack this overpass up with big hydraulics.

He further stated that he did not make any measurements when he arrived at the scene of the accident, but went strictly by the measurements stated on the trailer and the sign.

In order for the claimant to recover, he must prove three distinct elements, namely:

1. That he was in the exercise of due care and caution for his own safety.

2. That the State of Illinois was negligent, as charged in the complaint, and that the negligence of the State of Illinois was the proximate cause of the damage done to the truck.

3. That damages were sustained.

This Court has repeatedly held that the State does not insure against all accidents which may occur upon its sidewalks and streets.

In the case of Neil Beenes vs. State of Illinois, 21 C.C.R. 83, the Court stated:

“The rule adopted on liability of municipalities by our courts is applicable to this situation. In the case of Storen vs. City of Chicago, 373 Ill. 530, the court, on page 534, held:
A municipal corporation is not bound to keep its streets and sidewalks absolutely safe for persons passing over any part of them, its duty being to exercise ordinary care. (Brennan vs. City of Streator, 256 Ill. 468; Boender vs. City of Harvey, 251 id. 228; Kohlof vs. City of Chicago, 192 id. 249.) Municipal corporations, not being insurers against accidents, are not liable for every accident occurring within their limits from defects in the streets, but the defects must be such as could have been foreseen and avoided by ordinary care and prudence on the part of the municipalities.

In the case of Boender vs. City of Harvey, 251 Ill. 228, the court, on page 231, held:

The obstructions or defects in the streets or sidewalks of a city, to make the corporation liable, must be of such a nature that they are in themselves dangerous, or such that a person exercising ordinary prudence cannot avoid danger or injury in passing them,--in general, such defects as cannot be readily detected.

As stated in Thien vs. City of Belleville, 331 Ill. App. 337, on page 345:

Municipal corporations are not insurers against accidents, and the only duty cast upon the city is that it shall maintain the respective portions of the street in a reasonably safe condition for the purposes to which such portions of the street are devoted. It is only bound to use reasonable care to keep its streets reasonably safe for ordinary travel thereon by persons using due care and caution for their safety. (Molway vs. City of Chicago, 239 Ill. 486; Kohlof vs. City of Chicago, 192 Ill. 249; City of Salem vs. Webster, 192 Ill. 369.”

The first question of this case is whether or not the driver of claimant’s vehicle was guilty of any contributory negligence. The only possible negligence, which he may have been guilty of, was the speed at which he was traveling, but there is nothing in the records to indicate that this speed was the cause of the accident, and it does appear that he was misled by the two signs in regard to the height of the viaduct.

It appears reasonable to assume that the State should have had knowledge of the condition, which existed at the viaduct, and that results such as this accident would naturally follow, as it was an error in the differential between the actual height of the viaduct and the figures stated on the signs.

The State did not offer any evidence of any kind or character to offset the evidence of claimant, particularly the evidence to the effect that on the same day of the accident the driver of the trailer in question had used the other lanes of this viaduct with the same type of trailer without any accident.

The facts as heretofore stated in this case are very similar to the Borum and the Great American Insurance Company cases in which awards were made, and we feel that those decisions are of considerable importance, and should be followed in this particular case.

An award is, therefore, made to claimant, Pacific Insurance Company of New York, as subrogee of CPC, Inc., in the amount of $4,900.00, said award representing the amount paid by the said insurance company under its insurance policy for damages to its insured’s trailer.


author: Dove, J.

text:
    (No. 5317
    Kanella Canakis, Individually and as Executrix of the Last Will and Testament of John Canakis, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 18, 1971.

    Berry and O’conor, Attorneys for Claimant.
    William J. Scott, Attorney General; Bradley M. Glass, Assistant Attorney General, for Respondent.
   Dove, J.

This is a cause of action brought by Kanella Canakis, Individually and as Executrix of the Last Will and Testament of John Canakis. Claimant alleges that her late husband, John Canakis, and the State of Illinois entered into a concession lease, whereby the State leased certain concession buildings located at the Starved Rock State Park, as well as the right to conduct a concession business there, to John Canakis, for a term beginning December 1,1960, and ending November 30, 1970. Claimant alleges that John Canakis was continuously in possession of said premises from December 1, 1960, until his death on June 4,1965. It is further alleged by claimant that she was in possession of the premises-as owner thereof and as successor-to John Canakis until May 15, 1966, when the State wrongfully terminated the said lease, thereby damaging claimant in the amount of $156,626.64.

The respondent, State of Illinois, filed no answer or any other pleading in this matter, but takes the position stated in an opinion of the Attorney General dated May 24, 1966, that John Canakis occupied the premises in question as a licensee of the State, and not as a lessee, and by reason thereof, his right to possession was subject to termination at the will of the State of Illinois at any time. The State further asserts in its brief that the contract was a personal service contract which terminated with the death of the decedent.

A hearing was held on June 1, 1967. The State stipulated to Paragraphs 1, 2 and 3 of the Complaint filed by claimant, thereby admitting that claimant’s Exhibit No. 1 was an authentic copy of the lease in question; that John Canakis was in possession of the premises in question until his death on June 4, 1965; that claimant was in possession of the premises thereafter until May 15, 1965; that claimant’s Exhibit B is an authentic copy of the Last Will and Testament of John Canakis; that claimant is the widow of John Canakis and the Executrix of his Estate; and that claimant’s Exhibit C is an authentic copy of Letters Testamentary so appointing claimant.

Claimant testified that she worked at the concession stands in question from 1960 until October, 1965; that John Canakis, her husband, managed the concession business until his death on June 4, 1965; and that, thereafter, for the remainder of the 1965 season, claimant operated the concession with her son, Nick Panacos, and her daughter, Cola Penn. The operation of the concession subsequent to the death of John Canakis was carried on without any complaint by the State until May of 1966, at which time the respondent ordered the premises vacated.

Nick Panacos testified that from 1962 until 1965 he and John Canakis were partners in the operation of the concession, but that he was not a party to the lease; that subsequent to the notice to vacate, he inventoried the fixtures and merchandise of the concession operation, and sold such of it as he could. Panacos further testified to a loss of $5000.00 on the sale of merchandise, and of $1000.00 on the sale of the fixtures.

Paul F. Kiersch testified that he was the accountant for the concession operation for the years 1962,1963,1964 and 1965. He identified the financial and profit and loss statements for those years, copies of which had been submitted to the State at the end of each year. Kiersch further testified that accounts had always been kept in partnership form, the partners being John Canakis arid Nick Panacos. The concession partnership also maintained a joint bank account which Kiersch reconciled at the end of each year. The exhibits introduced into evidence showed the profits for the concession operation as follows:

Year Profit
1962 $26,843.23
1963 26,485.27
1964 ' 27,347.98
1965 29,060.67

The decision in this case depends upon the construction of the “Concession Lease” which is set forth in claimant’s Exhibit No. 1. The question is whether the concessionaire’s rights created by the instrument in question terminated at his death or could be terminated at will by the State.

The first issue raised is whether the instrument is in fact a license or a lease. If a mere license, the rights of the concessionaire terminated at the death of John Canakis, and in any event, were terminable at the will of the State. If a lease, the concessionaire’s rights passed to his heirs at his death.

A leading case in Illinois on this point is Holliday vs. Chicago Arc Light & Power Co., 55 Ill. App. 463 (1886), wherein the Court said:

“Whether a tenancy is created or not depends upon the intention of the parties, although this intention must in most cases be inferred from the circumstances which attend the case. ‘In general, the question of possession will determine the matter.”’
“An instrument that merely gives to another the right to use premises for a specific purpose, the owner of the premises retaining the possession and control of the premises confers no interest in the land and is not a lease, but a mere license.”
“A license is an authority to do some act on the land of another, without passing an estate in the land, and ‘being a mere personal privilege, it can only be enjoyed by the licensee himself, and is not therefore assignable so that an under-tenant can claim privileges conceded to a lessee.’ ”
“Exclusive possession is essential to the character of a lease.”

In another Illinois case, Gustin vs. Barney, 250 Ill. App. 209 (1928), the Court stated:

“We held in the Senachwine Club Case (246 Ill. App. 629) that the instrument could not be construed to be a mere license simply because the premises were to be used only for certain purposes. We also held that the instrument, being for a definite term and based on a valuable consideration, carried with it an interest in the land and could not be revoked at will.”

No caso has been cited, nor is the Court aware of any case construing a document exactly like the one in question. However, based upon available tests and authorities, it is the opinion of this Court that claimant’s Exhibit No. 1, the eontractural -instrument'in question, -was mo mere dicense granted to claimant’s decedent, terminable at the will of the State. The instrument specifically provides that cancellation may be at any time “upon the mutual agreement of the party of the first part and the party of the second part.” In fact, one and one-half pages of the lease instrument are devoted to an elaborate discussion of when cancellation may occur. If the parties had intended to enter into a mere license agreement, none of these provisions would have been required, since the State would have retained the power to cancel at will.

The State also argues that the claimant’s decedent was given no exclusive possession of any real property because (1) no specific real property was reserved to him, and (2) the State reserves certain supervisory powers with respect to the use of the premises.

The first page of the lease provided that certain designated areas shown on a designated plot plan and known as “concession stand number one” and “concession stand number two”, as well as any temporary stands which the State authorized, were the subject matter of the lease. From the language of the lease, it is evident that the “premises, properties and improvements thereon” known as “concession stand number one” and “concession stand number two” were specific parcels of real estate which were known to the parties and which were being leased to John Canakis.

The restrictions imposed upon the uses to which the property could be put were not sufficient to keep the interest created from being a leasehold. Clauses limiting the uses to which premises may be put are common in all types of leases, including both residential and commercial leases.

The construction which the State of Illinois seeks to place upon the contract would require portions of it to be disregarded and other portions to be considered mere surplusage. The rule of law is that meaning should be ascribed to every clause and phrase of a contract with nothing rejected as meaningless or surplusage. Correy vs. Rockford Life Insurance Company, 67 Ill. App. 2d 395,214 N.E. 2d 1, 3 (1966). Furthermore, any ambiguities in the lease must be construed most strongly against the State of Illinois, since the State of Illinois drafted the lease. Donahue vs. Rockford Showcase & Fixture Co., 87 Ill. App. 2d 47,230 N.E. 2d 278, 280 (1967).

The second issue to be decided in this case is whether or not the contract in question was one for the personal services of John Canakis. If the lease was dependent upon the availability of the personal services of John Canakis, the death of John Canakis would have terminated the contract.

The services contemplated by the contract in question were certainly not of the portrait-painting or book-writing variety. The lease provided that the concessionaire was to sell sandwiches, snacks, souvenirs, tobacco products and beverages. While the lease provides for quality and cleanliness in the operation of the concession, there is no suggestion that any unique service was expected, or that any unusual foods were to be prepared.

The lease not only permitted the delegation of duties by the concessionaire, but required that persons employed be fully authorized to represent concessionaire in “all matters pertaining to the operation and management of the concession”. This clearly precludes the notion that the services, either operational or managerial, were to be rendered by John Canakis only, or that personal service by Canakis was promised.

It is the opinion of this Court from a consideration of the evidence in this case, and based upon the rule that any ambiguity in a contract must be resolved against the party drafting such contract, that the contract in question was a lease and was not a contract for personal services of John Canakis, and, therefore, did not terminate upon the death of John Canakis, and was not terminable at the will of the respondent.

The final question to be decided in this case is the amount of damages to which claimant is entitled. The uncontested evidence is that claimant suffered a loss of $5000.00 on the sale of the inventory and a loss of $1000.00 on the sale of the fixtures. The Court, therefore, finds claimant’s damages with respect to the liquidation of inventory and fixtures to be the sum of $6000.00.

The respondent , contends that claimant is not entitled to recover damages for loss of profits. This position appears to be based on three theories: (1) that profits are too speculative as a measure of damages; (2) that loss of profits were not contemplated to be a measure of damages by the parties; and (3) there is insufficient proof of claimant’s attempt to mitigate damages.

With respect to the first theory, it is clear that the business in question had been in operation for at least five years prior to the eviction. The income tax returns for the four years prior to the eviction are in evidence and show the concession had earned profits. While the general rule is that evidence of expected profits from a new business are too speculative, uncertain and remote to be considered, the same prohibition does not apply to an established business with an experience of profits. In the case of an established business, evidence of lost profits can be shown with the requisite certainty, and otherwise meets the standards of proof required in such situations.

The respondent correctly states that the loss of profits should not be considered as a measure of damages unless it was understood by the parties to the contract, at least by implication, that a party would be liable for lost profits in case of breach of contract. In a lease of non-commercial property, or of property which is not uniquely situated, or of property out of which profits arise only collaterally, lost profits would not properly be considered as damages. However, the situation in this case is that profits were contemplated, even to the extent that rent was based upon income. The parties clearly intended a commercial purpose for this property, and the State’s eviction was the direct cause of claimant’s loss of profits.

The respondent’s notification of the eviction, coming on March 21,1966, was clearly at a time when it was too late for claimant to start up a similar concession during the 1966 season. It is the opinion of this Court that claimant’s loss of profits for the 1966 season was directly attributable to the wrongful eviction by the respondent, and the Court finds the loss of profits for the year 1966 to have been in the sum of $29,060.67.

There is no showing by claimant that it would have been impossible to have re-established a concession business in some other location for the years 1967 and thereafter. This Court, therefore, finds that claimant has failed to prove that profits lost subsequent to the 1966 season were a direct result of the State’s breach of the contract.

For the foregoing reasons, an award is made to the Claimant herein in the sum of $6000.00 for damages suffered by reason of the liquidation of inventory and fixtures, plus the further sum of $29,060.67 for loss of profits for the 1966 season, making a total award of $35,060.67.


text:
    (No. 5403
    Lillian Ross, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 18, 1971.

    Jacobson, Lieberman, Levy and Baron and Harry B. Rosenberg, Attorneys for Claimant.
    William J. Scott, Attorney General; Morton L„ Zaslavsky and Bruce J. Finne, Assistant Attorneys General, for Respondent.
   Holderman, J.

Claimant has brought action against the State of Illinois to recover from damages allegedly suffered as a result of a personal injury sustained on June 17, 1966, in The Starved Rock State Park. The damages claimed are in the amount of $25,000.00.

The complaint recites that on and prior to June 17, 1966, the State of Illinois maintained a certain foot trail and stairway at The Starved Rock State Park leading from the area behind the “Lodge” to a lower area.

It further recites that on said date claimant was visiting The Starved Rock State Park. She had been and was there at the invitation of the State of Illinois, and was a guest for consideration at The Starved Rock State Park Lodge.

Claimant further contends that the stairway on said premises, which was owned and maintained by the State of Illinois, had for some time prior to the accident been unlevel, so that it tilted forward creating a dangerous condition for persons using the said stairway.

Claimant also alleges that the State was negligent in failing to provide a proper hand rail, which could be held onto by a person using the stairway, and that the State had faded to inspect the stairway in time, prior to the occurrence claimed of herein, to learn of the unsafe condition of one of the steps of the said stairway. The State further failed to inform claimant and others of the unsafe condition of the said stairway, and repaired the said step as to leave it jn an unsafe condition.

Claimant at the time of the accident was a retired woman, seventy years of age, who had been active in collecting spiders and insects. On the morning of the accident, she and her companions were starting on a hike from the Lodge at the Park. She was wearing shoes with heavy rubber corrugated soles and flat heels, and she started down the wooden steps leading from the upper part of the Park to the lower level. She is alleged to have stumbled on a broken step, and injured her left extremity as a result of the fall.

She was taken to St. Mary’s Hospital in LaSalle where x-rays revealed a complete oblique fracture of her left femur. She was operated on, and the fractured fragments of the bone were fixed into position with the insertion of rush rods. She was discharged after two months confinement in the hospital.

After returning to Chicago, she was treated by another doctor, who rendered follow-up care.

Claimant testified that, as she was going down the steps, she fell on the second wooden step. She further testified that she tried to grasp the side railing, but it was too big for her to grasp, so she fell after her right foot slid, and finally landed with the left leg doubled up under her. Her companion, Miss Cotterill, testified that she was present when the accident happened, and that the second step slanted downward and to the right, and that there was some sand upon the step.

Miss Cotterill further testified that a man came along immediately after the accident, picked claimant up, and straightened her leg out. She was then removed in an ambulance to the hospital. Miss Cotterill further testified that she stayed in LaSalle all during the period of time that claimant was confined to the hospital, and helped take care of her by bathing her, feeding her, and performing similar services.

A Park employee, Mr. John Baima, testified that these steps would be swept approximately once a week, which was necessary because of the accumulation of very fine sand. Mr. Baima further testified that the second step in question was tilted forward, and that he repaired the same by putting in a temporary brace, and also informed the Superintendent of the Park that the brace underneath the stairway had rotted away, and would need replacement. He stated that he did not see any signs or warnings that the steps were slippery. He also testified that before he put the brace in the step was a little loose and in not too good a shape. Part of the step had rotted away, including a piece of the brace holding the step.

The evidence seems uncontradicted that there was sand upon the step in question, and that the stairway, and particularly the step on which claimant is alleged to have sustained her fall was defective due to the slant, the sand, and the rotting away of part of the brace. The pictures introduced by claimant indicate that new material had been placed under the step after the accident in question.

The expenses testified to as a result of the accident are as follows:

St. Mary’s Hospital $2,671.25; Dr. Doyle’s bill $1,035.00; Dr. Sickley, one of the doctors in the hospital, who gave claimant care, $35.00; $12.00 for x-rays at The Michael Reese Hospital; $25.00 to Dr. Leonard Weinstein, for work and examination of claimant’s leg; $10.00 leg x-ray at The Michael Reese Hospital; $12.00 leg x-ray at The Michael Reese Hospital; and $20.00 additional for Dr. Weinstein. These were claimant’s expenses in 1966. In 1967, claimant had an additional $12.50 for x-rays on her leg at The Michael Reese Hospital; $48.00 to Dr. Irving Mack; $10.00 additional to Dr. Weinstein; another $12.50 for x-rays at The Michael Reese Hospital; and another $29.00 to Dr. Mack.

Claimant also testified that she paid Miss Cotterill, her companion who lived with her, and was on vacation with her, the sum of $493.62, which was the amount of expenses incurred by Miss Cotterill while she stayed in LaSalle during the period of time claimant was confined to St. Mary’s Hospital.

It appears that claimant was exercising ordinary care for her own safety at the time of the accident. She had on corrugated rubber-soled walking shoes, and was attempting to use the rail on the stairway, but was unable to do so because of its size. Her fall was occasioned either by the sand on the step, the slant of the step, or a combination of the two circumstances.

We have carefully considered the record in this case, and the authorities cited by both parties. It is our opinion that this case, as far as the facts are concerned, corresponds greatly to two other cases, namely: Alberta Hansen, Admr., Etc. vs. State of Illinois, 24 C.C.R. 103, in which the rule was laid down that respondent has a duty to warn of a danger that exists along a trail; and Elizabeth Ann Murray, a Minor, Etc., vs. State of Illinois, 24 C.C.R. 399, in which the rule that the State owes a duty to the public to exercise reasonable care in establishing, maintaining and supervising its parks is set forth.

It is our opinion that the dangers in the case were the rotted support of the step, and the slanting of the step, which could not be discovered except by minute examination, and the failure to warn claimant of this hazardous condition caused the result complained of.

In this case claimant was retired so there was not any loss of earnings, but we believe that she is entitled to recover for medical expenses and disability in pain and suffering, which occurred as a result of said accident. The Court, therefore, finds that claimant sustained damages in the amount of $12,000.00.

An award is, therefore, made herewith to claimant, Lillian Ross, in the amount of $12,000.00.


text:
    (No. 5416
    Charlotte Palecki, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 18, 1971.

    Wolfberc and Kroll, Attorneys for Claimant.
    William J. Scott, Attorney General, Morton Zaslavsky and Saul J. Wexler, Assistant Attorneys General, for Respondent.
   Dove, J.

Claimant, Charlotte Palecki, brings this action to recover for injury to her person, which she sustained on October 13, 1966, in a fall on a public highway known as 87th Street near the corner of South Francisco Avenue in Evergreen Park, Illinois.

The facts are relatively undisputed, and are as follows:

On October 13, 1966, at about 5:15 p.m. claimant was walking south on Francisco Avenue on the east side thereof. At the point where Francisco Avenue intersects with 87th Street claimant crossed to the southwest corner of Francisco Avenue and 87th Street for the purpose of boarding an eastbound 87th Street CTA bus to go to work at the Evergreen Plaza. While crossing 87th Street at its intersection with Francisco Avenue on her way to the bus stop on the southwest comer of said intersection, claimant stepped into a deep hole adjacent to a sewer cover on 87th Street. The hole was near the south crosswalk of 87th Street and to the west crosswalk of Francisco Avenue. Claimant testified that she did not see the hole before she stepped into it, as she had been watching the oncoming traffic and looking for the bus; that the hole in question was approximately four or five inches deep and about a foot and a half in diameter; and, that upon stepping into the hole she fell to the pavement injuring her left foot. Claimant further testified that she was able to go to the bus stop, approximately eight or ten feet away, where she boarded her bus, and went to work. While at work that night, she experienced great pain especially when she had to stand on her feet.

The next day claimant called Dr. Gregory N. Hernandez, and was told to meet him at The Little Company of Mary Hospital in Evergreen Park, Illinois, where x-rays were taken, and a boot-size cast was put on her left foot. She wore the cast for approximately six weeks, and used crutches and a walking chair to get about her home. Her injury was a complete fracture of the fifth metatarsal bone. The evidence indicates that the time claimant lost from work because of her injury amounted to approximately six weeks, totaling $195.00 in lost wages. Hospital bills amounted to $57.00, and doctor bills, including bills for physical therapy at the South Side Physical Medical Center, amounted to the sum of $167.00, for a total out-of-pocket expense of $399.00.

The testimony of Lillian Wise, called as a witness for claimant, was introduced into evidence by stipulation. Her testimony was that the hole in the street in question existed to her knowledge for approximately six months before the accident.

This Court has held on numerous occasions that the State of Illinois is not an insurer of every accident that occurs upon its public highways. Link vs. State of Illinois, 24 C.C.R. 69; Bloom vs. State of Illinois, 22 C.C.R. 582. The law in the State of Illinois is clear that, in order for a claimant in a tort action to recover, she must prove that the State was negligent; that such negligence was the proximate cause of the injury; and, that claimant was in the exercise of due care and caution for her own safety. Link vs. State of Illinois, 24 C.C.R. 69; McNary vs. State of Illinois, 22 C.C.R. 328; Bloom vs. State of Illinois, 22 C.C.R. 582. The State has a duty to exercise ordinary care to maintain its highways in a reasonably safe condition for public travel. Garrett, Et Al., vs. State of Illinois, 22 C.C.R. 343.

In Di Orio, Et Al., vs. State of Illinois, 20 C.C.R. 53, this Court applied the same rules of law pertaining to notice in suits against the State involving defects in highways, as pertained to suits against municipalities involving injuries caused by defective sidewalks. In this respect the law in Illinois is clear. Before a municipality can be held liable for injuries, it is necessary that there be evidence showing that the city had actual or constructive notice of the alleged unsafe condition. The unrebutted testimony of Lillian Wise, a witness for claimant, was that the hole in question existed to her knowledge for approximately six months before the accident.

This Court has held that there cannot be any hard or fast rule in determining when it can be said that the State had “constructive notice” of a dangerous condition, and each case must be decided on its own particular facts. Visco vs. State of Illinois, 21 C.C.R. 480.

It is the opinion of this Court that the hole in question existed for a sufficient length of time so that the State of Illinois can be held to have had constructive, if not actual, notice of the defect.

From the evidence, it is apparent that the State did not post any warning signs nor make repairs for a period of at least six months. This leads the Court to the conclusion that the State did not use reasonable care to maintain its highways, and that it was negligent in allowing said hole to remain for so long a period of time. It is the further opinion of this Court that such negligence was the proximate cause of the injuries suffered by claimant. Contrary to the contention of respondent, this Court finds no evidence in the record that claimant was guilty of contributory negligence. An award is, therefore, made to the claimant, Charlotte Palecki, in the amount of $1,500.00.


text:
    (No. 5431
    Patricia K. Hoffman, Special Administratrix of the Estate of John M. Hoffman, Jr., deceased, and Patricia K. Hoffman, Individually, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 18, 1971.

    Frank E. Glowacki & Richard J. Petrarca, Attorneys for Claimant.
    William J. Scott, Attorney General; Etta J. Cole, Assistant Attorney General, for Respondent.
   Dove, J.

This is a cause of action brought by Patricia K. Hoffman as Administratrix of the Estate of John M. Hoffman, deceased, for the wrongful death of the deceased and for injuries to herself, arising out of a collision between an automobile driven by the deceased and another automobile on October 29, 1966, at the intersection of Exchange Road and State Route 1 in Will County, Illinois. Patricia K. Hoffman was a passenger in the automobile being driven by her husband, John M. Hoffman. Claimant alleges that the absence of a “Stop” sign at the intersection of Exchange Road and State Route 1 was the proximate cause of the accident.

Exchange Road is a public highway running in a generally East-West direction, and State Route 1 (The Calumet Expressway) is a public highway running in a generally North-South direction. At the time of the accident, the deceased, John M. Hoffman, was driving his automobile in a westerly direction on Exchange Road. Ivan Krapac, the driver of the other car involved in the accident, was driving in a northerly direction on State Route 1. At the time of the accident, the evidence clearly indicates that the “Stop” sign ordinarily in place at the Northeast corner of the intersection to stop westbound traffic on Exchange Road was down.

Claimant called Wayne D. Zipsie, a State Trooper, under Section 60 of the Illinois Practice Act. Zipsie testified that the intersection in question was part of his territory in Will County, Illinois; that State Route 1 is a two-lane highway with a 65 mph speed limit; and that thousands of automobiles use this highway at high speeds every day. Zipsie further testified that several hours prior to the accident he had reported by radio to his district headquarters that the “Stop” sign in question was down and requested the Highway Department to put up a new sign, and that he passed this intersection approximately five times in a nine-hour shift, and that there were three nine-hour shifts maintained by the State Patrol each day.

Dr. Lawrence G. Clark, a witness for claimant, testified that at 8:30 a.m. on Saturday, October 29,1966, he passed through this intersection, and that the “Stop” sign was down at that time.

Ted Kloeckner, a witness for claimant, testified that on Saturday morning, October 29,1966, he traveled Exchange Road to the Calumet Expressway and that at the intersection in question the “Stop” sign for traffic traveling westbound on Exchange Road approaching the Calumet Expressway was down.

William S. Landske, witness for claimant, testified that on Thursday morning, October 27,1966, he noticed that the “Stop” sign in question was down. He further testified that the intersection in question is in a rural area and that there were cornfields to the left and right as one is traveling west on Exchange Road.

Theresa K. Rumas, a witness for claimant, testified that the “Stop” sign for westbound traffic on Exchange Road at the intersection with State Route 1 was missing on Wednesday, October 26, 1966.

Aloys J. Petry, another witness called by claimant, stated that on Thursday morning before the accident he came through this intersection driving westbound on Exchange Road and, not seeing a “Stop” sign, “almost slid into the intersection.”

Patricia Hoffman testified that prior to the accident her husband had been working at a bakery of which he was a part owner, and that he went to work at 2:00 o’clock in the morning and returned home about noon. She testified that he had dinner, laid down and took a nap, and that when he awoke he shaved, dressed and went back to the bakery to check out. She further testified that, with her husband driving the automobile, about 40 miles per hour, they left their house about 5:00 o’clock p.m.; that she was sitting on the passenger side in the front seat; and that visibility that night was fairly good. She further testified that as they approached the place of the accident, they seemed to slow down, but that she was observing the scenery and that the next thing she knew she was in the back seat of the car and had not heard any signals or horns or anything of that nature.

Ronald L. Youngblood was called as a witness for respondent. He testified that he is a Field Engineer for the Illinois Division of Highways, and that on October 29,1966, he held the position of Field Traffic Engineer, and that the area of the accident was in his territory. Among other things, his testimony indicated that there was a warning sign “Stop Ahead” approximately 400 feet east of the intersection in question. He further testified that there was no corn field at the site of the intersection, and that there was no obstruction to his view of the Calumet Expressway as he traveled westbound on Exchange Road. -

Carl F. Kowalski was called as a witness for respondent and testified that he was the District Traffic Engineer for District No. 10, and that the “Stop” sign in question was first reported down at 12:05 p.m. on October 29,1966, approximately five hours prior to the accident. He testified that the report was received by the dispatcher, and that numerous attempts were made to contact employees of the Highway Division to re-erect the “Stop” sign in question. However, they were unable to reach anyone and the sign was not re-erected until approximately 11:00 o’clock p.m. on the evening of October 29, 1966.

Dr. Irwin I. Feinberg testified that Patricia Hoffman, as a result of the accident, suffered a fracture at the base of the fifth metacarpal in the left hand, a fracture of the superior and inferior remus of the pubis bone; that her left lung was collapsed due to contusion, and she had swelling and pain in her left foot. She also had a contused bladder, and there was a paralytic ileous to the bowel because of the trauma to her groin area. He further testified that as far as permanency of the injuries was concerned, Mrs. Hoffman would have pain from time to time in the groin area, particularly with weather changes. Mrs. Hoffman testified that as to her present physical condition, she tires more quickly than she used to, and that certain movements are restricted, and that she cannot lift objects as she used to. There is evidence in the record that Mr. Hoffman was 35 years old when he died; that his life expectancy was 36.2 years; and that his average earnings for the five years preceding his death exceeded $13,000.00 per year.

Claimant contends that the State of Illinois was negligent in permitting and allowing a “Stop” sign for westbound traffic on Exchange Road at its intersection with State Route 1 to remain in a neglected and knocked-down condition, although the respondent knew, or in the exercise of ordinary care should have known, of the condition of the “Stop” sign.

The law in the State of Illinois is well settled that the State of Illinois is not an insurer of every accident that occurs on its public highways. Riggins vs. State of Illinois, 21 C.C.R. 434; Gray vs. State of Illinois, 21 C.C.R. 177. The State of Illinois does have the duty to exercise reasonable care in the maintenance and care of its highways, in order that defective and dangerous conditions likely to injure persons using the highway shall not exist. Crouchet vs. State of Illinois, 21 C.C.R. 157; Moran vs. State of Illinois, 24 C.C.R. 219.

In Di Orio vs. State of Illinois, 20 C.C.R. 53, this Court applied the same rules of law pertaining to notice in suits against the State involving defects in highways, as pertained to suits against municipalities involving injuries caused by defective conditions in sidewalks. The law in Illinois is clear that before a municipality can be held liable for injuries caused by the defective condition of a sidewalk, it is necessary that there be evidence showing that the City had actual or constructive notice of the alleged unsafe condition. Arnett vs. City of Roodhouse, 330 Ill. App. 524; Coffin vs. City of Chicago, 254 Ill. App. 29.

The crucial question in determining the responsibility of the State of Illinois for the accident is whether or not the State of Illinois had sufficient notice of the defect, namely the fact that the “Stop” sign was down at this busy intersection, and was negligent in allowing this condition to remain uncorrected. There is testimony in the record that the “Stop” sign in question was down on Wednesday, October 26, 1966, three days before the accident. There is also testimony in the record that the State Highway Patrol regularly patrolled this area, and that the State Police ordinarily passed this intersection approximately 15 times each day, and that other employees of the State Highway Division patrol the highways regularly. Carl F. Kowalski, District Traffic Engineer, testified that the sign was first reported down at 12:05 p.m. on October 29, 1966, approximately five hours before the accident. It appears from the evidence that even though the sign was reported down there was no effective procedure for getting a repair crew to the site to re-erect the “Stop” sign.

From the evidence it appears that the respondent had sufficient actual and constructive notice of the dangerous condition existing at the intersection in question, and we are of the opinion that the State was negligent in allowing this condition to exist, and in not having established an effective procedure to correct such emergency situations within a reasonable period of time.

This Court has taken notice of the opinion in Shirar vs. State of Illinois, #5124, filed November 9, 1965. In that case the claimant contended that the failure of the State of Illinois to maintain a “Stop Ahead” warning sign approximately 1000 feet from the intersection in question constituted negligence and was the proximate cause of an accident. The evidence disclosed that there was a “Junction-Information” sign 500 feet from the intersection, a directional sign 300 feet from the intersection, and a “Stop” sign at the intersection. There was further testimony that the “Stop” sign at the intersection was visible from 500 to 1000 feet from the intersection. In the Shirar case the Court denied any recovery finding that claimant failed to prove that respondent was negligent, or that Respondent’s negligence was the proximate cause of the accident. The Court stated that it appeared that the negligence of the driver of the automobile in which the claimant was riding was the proximate cause of the accident.

The Shirar case differs from the instant case in at least one important respect. In this case the sign that was down was the “Stop” sign at the intersection, rather than a “Stop Ahead” warning sign. In the Shirar case the Court pointed out that there were two warning signs up which should have warned the driver of any vehicle approaching the intersection, plus the fact that the “Stop” sign at the intersection was up and was clearly visible from a distance of 500 to 1000 feet. In this case the sign which was down and which the State failed to replace was the “Stop” sign at the intersection, rather than the “Stop Ahead” sign as in the Shirar case. It is the opinion of this Court that claimant’s husband did not have adequate warning of the approaching intersection as did the driver of the automobile in the Shirar case.

We are of the opinion that the claimant has sustained the burden of proof that she and her husband, John M. Hoffman, were free from contributory negligence, and that the negligence of the respondent was the proximate cause of the accident.

An award is made to Patricia K. Hoffman, Special Administratrix of the Estate of John M. Hoffman, Jr., deceased, in the amount of $25,000.00. A further award is made to Patricia K. Hoffman for injuries sustained by her in the amount of $15,000.00.


text:
    (No. 5454
    Des Moines Travelodge, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 18, 1971.

    Des Moines Travelodge, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman, J.

On January 10,1968, claimant, Des Moines Travelodge of 2021 Grand Avenue, Des Moines, Iowa, filed a complaint in the amount of $52.02.

The record consists of the following:

1. Complaint.
2. Joint stipulation between claimant and the State of Illinois.

It appears that claimant rendered services to the State of Illinois, and that said amount is due and owing claimant.

An award is, therefore, made to claimant, Des Moines Travelodge, in the amount of $52.02.


text:
    (No. 5471
    Thomas M. Madden Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 18, 1971.

    Healy, McGurn and O’Brien, Attorneys for Claimant.
    William J. Scott, Attorney General; Bruce J. Finne and Saul R. Wexler, Assistant Attorneys General, for Respondent.
   Dove, J.

This is a claim for the sum of $112,648.97 allegedly expended by claimant in connection with dumping approximately 920,000 cubic yards of excavated material at a dump site on the shores of Lake Calumet.

The claim is made specifically for equipment and labor used to level, grade and compact the dumped material.

It appears that the facts in this case are not disputed and are as follows:

On July 11, 1961, claimant, as the successful bidder, was awarded a contract by the State of Illinois, Department of Public Works and Buildings, Division of Highways, for the construction of a section of the Dan Ryan Expressway between 59th Street and 63rd Street in the City of Chicago. A major element in the performance of this contract consisted of the excavation and disposal of approximately one million cubic yards of earth from the construction site. The contract was fully performed and there appears to be no issue concerning said contract except for claimant’s claim which arises under the Special Provisions of the Specifications relating to the disposal of the excavated material. The applicable provisions of the contract are as follows:

“Disposal of Surplus Excavated Material: All surplus excavated material shall be transported, deposited and compacted where necessary as hereinafter specified, in the areas described herein and in accordance with the applicable provisions of Section 16 of the Standard Specifications, except as otherwise specified herein or ordered by the Engineer.
Prior to placing any excavated materials in the areas hereinafter specified, the Contractor shall secure approval of the proposed embankment area involved. Surplus excavated material shall be all material from ‘Special Excavation’ and ‘Class A Excavation for Structures’ which is designated as surplus by the Engineer.
Surplus excavated material which the engineer designates as suitable for roadway embankment shall be transported, placed and compacted in the East Frontage Road embankment on the South Expressway (East Leg) between 107th Street and 127th Street before any material is placed in Sections 1, 2 and 3 designated herein.
Location plans and cross sections for the proposed embankment in this area will be furnished to the Contractor by the Department immediately after the award of the contract. This Contractor shall remove all unsatisfactory debris from within the limits of the proposed embankment area before placing any new embankment as and when directed by the Engineer. Such debris shall be stockpiled in locations designated by the Engineer. This embankment shall be placed and compacted in accordance with the applicable provisions of Section 16 of the Standard Specifications, unless specifically otherwise authorized by the Engineer.
This contract for the proposed East Frontage Road (Section 0912-707.1) Project 1-90-5(73) (114) has been let and work should be in progress by the time this contract is awarded. Since work on the East Frontage Road will be under way, it is imperative that this Contractor place the necessary suitable surplus excavated material for the embankment for this road at the earliest possible date after the award of this project. Arrangements shall be made with the Engineer to excavate the required amount of material even though it may involve excavating in Stage I, areas designated to be removed in later stages in the Special Provisions titled ‘Construction Procedure and Maintenance of Traffic’.
The Contractor shall dispose of the remainder of his surplus excavated material in the following approximate areas, all within the general limit of the Chicago Regional Port District at Lake Calumet.
Section 1. The extension of Stony Island Avenue from 112th Street to 122nd Street. This embankment area will be approximately 150 feet wide and will accommodate approximately 440,000 cubic yards of material.
Section 2. All remaining surplus excavated material shall be deposited in an area east of and parallel to the proposed East Frontage Road to be constructed under the previously mentioned contract. This embankment area will extend from 110th Street to 116th Street and will be approximatly 700 feet wide.
Section 3. All unsuitable material shall be disposed of in accordance with Article 14.8 of the Standard Specifications.
More detailed locations and cross sections for Sections 1 and 2 above will be furnished to the Contractor at the time he is ready to start his excavation operations. This Contractor will be required to merely transport and dump the surplus excavated materials in the locations described as Sections 1 and 2.
The hauling, placing and compacting, where specified, of surplus excavated material, the construction of any required cross roads and ramps and the removing and stockpiling of unsuitable debris, all as described above, will not be paid for separately, and the cost thereof shall be included in the contract unit prices bid for the excavation items involved.”

Of the approximately one million cubic yards excavated by claimant during the performance of the contract, about 80,000 yards of excavated material was placed and compacted on the East Frontage Road embankment. About 920,000 cubic yards were removed to the dump site on the shores of Lake Calumet designated by the contract as the Section 2 Dumping Site. The problems encountered by claimant during the removal of the excavated material to the Section 2 Dumping Site gives rise to its claim.

The record in this case indicates that Robert J. Madden, Vice-President of claimant, made an inspection of the dumping sites prior to claimant submitting its bid. From his inspection of the dumping area, Mr. Madden knew that the great bulk of excavated material dumped at the Section 2 Dumping Site would actually be dumped into Lake Calumet and that bulldozers and workers would be required to spread and level the excavated material as it was dumped by the trucks at this particular site.

Claimant in preparing its bid made no effort to compute or to include the costs for the necessary leveling and spreading of excavated material at the Section 2 Dumping Site because claimant interpreted the contract phrase “to merely transport and dump” to mean that managing the dirt as the trucks dumped it at the Section 2 Dumping Site would be the obligation of some other party and that its sole obligation would be to dump the excavated material at the site. Claimant apparently did not inquire of either the State of Illinois or the Chicago Regional Port District as to whether its assumption that some other party or person would be responsible for managing the dirt was correct.

On August 14, 1961, dumping began at the Section 2 Dumping Site. That same day claimant discovered that four other contractors were also dumping in the same area and that none had been assigned specific locations. Claimant also discovered that no one from the Port District or the State of Illinois was managing the dirt and that claimant, like the other contractors, was going to have to provide its own equipment to level and move the excavated material.

On August 14,1961, claimant made inquiry for the first time of the State of Illinois and the Port District as to who was going to level the dirt. The Port District had no plans to handle the material. The construction engineer for the State told Mr. Madden to write him a letter: The following day, August 15, 1961, claimant wrote to the District Engineer asking for reimbursement for the expenses being incurred. The State did not answer claimant’s letter of August 15, and on September 19,1961, he wrote the State of Illinois again. The fact that none of the contractors dumping in the Section 2 dumping area had any specific areas assigned to them in which to dump became a problem. Claimant demanded that there be a meeting of the contractors and the State so that dumping areas could be assigned. Such a meeting was held on September 21, 1961. Claimant was specifically assigned the area from 113th Street to 116th Street. With respect to claimant’s demands for reimbursement for the costs being incurred daily in leveling and spreading the excavated material, claimant never received any written response from the State of Illinois until March 8, 1962, at which time he was notified that the State of Illinois was rejecting his claim. The excavating work was finished in July or August of 1963.

Claimant continued to pursue its demands for reimbursement, and there is some indication in the record that in 1966 the Department of Public Works and Buildings was seriously considering a compromise payment to claimant in the amount of $89,564.94. It appears that the death of claimant’s attorney was a factor in this settlement not being effected.

Claimant takes the position that there is no ambiguity in the contract and that the provision of the contract providing that claimant would be required to “merely transport and dump” the surplus excavated materials in the Section 2 Dumping Site means, on its face, that letting the dirt fall out of the truck was the extent of claimant’s contractual obligation. Claimant also contends that if the contract is ambiguous, it should be construed against the respondent who prepared the contract. Respondent argued that since the dirt could not be dumped without leveling, other than in a vast open prairie, it was implied in the contract that claimant would do all leveling necessary to permit him to carry out his contractual obligations to dump.

The issue in this case is the meaning of the phrase “merely transport and dump”. In connection with the meaning of the word “dump”, the testimony of respondent’s own witness, Henry M. Yamanaka, District Design Engineer, should be noted. He testified that the contract in question was prepared by a consulting firm and submitted to him for approval. He further testified, in answer to a question as to what was to be done with the excavated material that was dug up, that under the terms of the contract the Contractor was merely to transport and dump the material at locations specified in the Lake Calumet area.

It is the opinion of this court that if the respondent intended for the Contractor to be responsible for leveling and compacting the excavated material at the Section 2 Dumping Site, that it should have so provided in the contract. The contract as written, stated that with respect to the Section 2 Dumping Site, the Contractor would be required to “merely transport and dump” the surplus excavated material. It should be noted that with respect to the East Frontage Road embankment area, the Contractor was specifically directed to transport, place and compact the excavated material. It would have been a simple matter for the respondent to draft the contract in such a way that the claimant would have been expressly advised of the fact that it was expected to not only transport and dump the excavated material at the Lake Calumet dumping site, but was also responsible for leveling and compacting the excavated material. For the foregoing reasons, and considering the well-established rule that if an instrument is ambiguous, it will be construed against the party who prepared it, Donahue vs. Rockfort Showcase and Fixtures Company, 87 Ill. App. 2d 47, 230 NE 2d 278; Gothberg vs. Nemerovski, 58 Ill. App. 2d 372, 208 NE 2d 12, and considering Mr. Yamanaka’s testimony with respect to his interpretation of the contract and considering the evidence in the record that the Department of Public Works and Buildings, through certain of its employees, was considering authorizing a payment to claimant in the amount of ’ $89,564.94, this court hereby makes an award to claimant in the amount of $89,564.94.


text:
    (No. 5492
    Hugh R. Ashmore, Administrator of the Estate of James C. Ashmore, Deceased, Claimant, vs. The Board of Governors of State Colleges and Universities, Respondent.

      Opinion filed February 18, 1971.

    Eva L. Minor and Paul F. Davidson, Attorneys for Claimant.
    William J. Scott, Attorney General, for Respondent.
   Dove, J.

This is a cause of action brought by Hugh R. Ashmore as Administrator of the Estate of James C. Ashmore, deceased, for damages for the wrongful death of James C. Ashmore.

On October 26,1967, James C. Ashmore, then 22 years of age, was a student at Western Illinois University, Macomb, Illinois. About 2:00 p.m. on October 26, 1967, James C. Ashmore reported for instructions at the beginning swimming class conducted by the University. James C. Ashmore, with ten other members of the class, was instructed to swim three lengths of the swimming pool, each length being approximately 75 feet. In attempting to follow such instructions, James C. Ashmore entered the pool, and began to swim about 2:15 p.m. At approximately 2:45 p.m. he was found at the bottom of the pool, and shortly thereafter was pronounced dead.

Pursuant to a joint stipulation of the parties herein, the investigation report of the Western Illinois University’s Security Office was submitted into evidence as the joint exhibit of claimant and respondent. It was further stipulated by the parties herein that such report shall constitute the evidence on the question of liability.

At the time of the incident there were present at the pool, James C. Ashmore, his ten fellow class members, the instructor, a lifeguard, and three members of the water polo team.

The following constitutes pertinent portions of the investigative report:

“At 2:10 p.m. attendance was taken by Paul Hutinger, the instructor, and his attendance book indicated that the Subject was present . . . total attendance for the class numbered eleven.
The instructor stated that after the class attendance was taken several general items were discussed, including the skills learned at the last class session and items to be covered for this period. The class was instructed to swim three lengths of the pool (75' 1" each length) starting at the shallow or east end. and they were to follow each other at intervals of five yards starting in lane five. Upon reaching the west or deep end, they were to move over to their left into lane six, and swim back to the shallow end . . . The instructor stationed himself at the shallow end by lanes five and six, while a guard, Patrick Doud, was standing on the deck at the south side of the pool up toward the deep end.
The class consisted of advanced and beginner swimmers. The Subject was classified as a beginner along with David Holmes, Mike Hughes, Keith Bartlow, and John Fritz . . .
It was David Holmes, of the beginner group, who had the last known verbal contact with the Subject. According to Holmes, after the instructor gave directions, the students moved over to lane five, and commenced swimming at approximately 2:15 p.m. Holmes stated that the Subject and he were the last two members of the class to start swimming. Holmes recounted that the Subject and he had a short discussion at this point as to who should go first. It was agreed that, since the Subject was already in position, he should lead off, which he did. Holmes indicated that the Subject dove in and initially swam rapidly, almost catching the swimmer in front of him. However, before Holmes dove in he noticed that the Subject appeared to be struggling, and was definitely having difficulty. Holmes did not think the Subject’s difficulty warranted calling to the instructor, so he dove in, and, since he also was a beginner, turned his full attention to his own swimming. After Holmes left the pool, he did not remember to check for the Subject throughout the remainder of the class ...
. . . The instructor then moved to the north side of the pool for diving instructions at approximately 2:25 p.m. It was at this time according to another student, Keith Bartlow, that Bartlow actually counted the group at the diving session, since it appeared smaller than usual. Also, he was curious to see how evenly divided the groups were that the guard had put them in. He counted five students in each group, including himself.
“The students were given a few minutes of diving instructions by the guard, Patrick Doud, and were watched individually by the instructor and Doud, as the students singularly attempted the skill. At no time did two students dive in together. They waited for each member to return before the next swimmer proceeded. The students then tried their skills, one at a time off the low diving board on the same side of the pool. The class was dismissed at 2:40 p.m. Within a short time (less than two minutes) after the diving session, a student, Douglas Dirks, shouted to Doud that there was someone in the water. The Subject was located toward the south side of the pool, near lane five at the 10' level, near the bottom of the pool . . . .”

The record contains no explanation as to why the instructor and the lifeguard failed to see the deceased struggle and go down. He apparently sank from sight within seconds after he entered the pool, and was not missed by the instructor or the lifeguard at any time during the balance of the class, a period of about thirty minutes, even though the instructor was allegedly grading each student individually on his swimming skills. His absence was not noticed when the class moved to the other side of the pool for individual diving instruction. Only after the class was dismissed did a student notice the deceased, James C. Ashmore, lying at the bottom of the pool.

It is the opinion of this Court that the negligence of respondent was the proximate cause of the death of James C. Ashmore. No evidence was introduced which tended to show that James C. Ashmore was guilty of any contributory negligence.

An award is hereby made to Hugh R. Ashmore, Administrator of the Estate of James C. Ashmore, deceased, in the amount of $12,000.00.


text:
    (No. 5529
    Richard Wagoner, d/b/a Wagoner’s Motorama, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 18, 1971.

    J. H. Weiner, Attorney for Claimant.

      William J. Scott, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

This is a cause of action brought by Richard Wagoner, d/b/a Wagoner’s Motorama, for damages allegedly resulting from the negligence of the State of Illinois in issuing a Certificate of Title to a certain 1967 Ford Galaxie 500 automobile. Claimant alleges that he is the owner of a used car business in the City of Springfield, Illinois, and that on February 15, 1967, he purchased a 1967 Ford Galaxie 500, registered number 7W55C114223, from one Ronald M. Harris for $2,100.00. Claimant alleges that at the time of purchase he was a bona fide purchaser for value, relying upon a Certificate of Title issued by the State of Illinois to Ronald M. Harris. On February 20, 1968, claimant was advised by the Illinois State Police that the 1967 Ford Galaxie 500 had been stolen from the Avis Rent-A-Car System, and claimant subsequently paid the sum of $1,750.00 to Avis Rent-A-Car System, the legal owner of the automobile.

The claimant alleges negligence on the part of the respondent in placing in the possession of Ronald M. Harris a Certificate of Title upon which he relied, and seeks damages in the amount of $1,750.00.

The only evidence introduced on behalf of respondent was a departmental report consisting of a letter from the Secretary of State to the Attorney General of the State of Illinois, dated July 17, 1968, in which it appears that when Mr. Harris made his application for a Certificate of Title for the 1967 Ford Galaxie 500, and submitted a fee, he surrendered certain documents including a purported bill of sale for the 1967 Ford, by Lendrum & Hartman Ltd. to a Richard M. Harris of Canterbury, Kent, England. The departmental report neither admits nor denies any negligence.

In the case of Rice vs. Galkowski, 333 Ill. App. 652, the Appellate Court held that mere possession of an automobile with Certificate of Title thereto was not sufficient indicia of the possessor’s ownership so as to be relied upon by one subsequently purchasing the automobile from such possessor.

It is the opinion of this Court that the claimant has failed to prove by a preponderance of the evidence that the respondent, State of Illinois, was in fact negligent or careless in issuing a Certificate of Title to the 1967 Ford Galaxie 500 to Ronald M. Harris, and that such negligence was the proximate cause of claimant’s loss. It appears from the evidence in this case that the Secretary of State acted properly and pursuant to statute in issuing the Certificate of Title, based on the documents presented to the Secretary by Harris.

The Uniform Motor Vehicle Anti-Theft Act provides for the issuance of Certificates of Title for motor vehicles and regulates various matters pertaining to such Certificates. If a Certificate of Title to an automobile is mistakenly issued by the Secretary of State, it is the opinion of this Court that the Legislature did not intend that the State of Illinois compensate persons for any loss they may have sustained by reason of their relying upon such Certificate of Title.

For the foregoing reasons claimant’s claim is hereby denied.


author: Dove J.

text:
    (No. 5617
    Louis J. Foley, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed February 18, 1971.

    Louis J. Foley, Claimant, pro se.
    William J. Scott, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove J.


author: Perlin, C. J.

text:
    (No. 5706
    D. G. Huelskoetter, M.D., Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed February 18, 1971.

    D. G. Huelskoetter, M.D., Claimant, pro se.
    William J. Scott, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Perlin, C. J.


text:
    (No. 5761
    Garfield Park Moving and Storage Company, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed February 18, 1971.

    Warren Krinsky, Attorney for Claimant.
    William J. Scott, Attorney General; Bruce J. Finne, Assistant Attorney General, for Respondent.
   Dove, J.


text:
    (No. 5764
    Katy Corporation, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed February 18, 1971.

    Charles Kraut, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Dove, J.


text:
    (No. 5797
    Transworld Van Lines, Inc., a/k/a Majestic warehouses, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 18, 1971.

    Transworld Van Lines, Inc., a/k/a Majestic Warehouses, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Holderman, J.

On April 1, 1970, Transworld Van Lines, Inc., a/k/a Majestic Warehouses, Inc., filed a claim against the State of Illinois for services rendered the Cook County Department of Public Aid in the amount of $719.00.

The record consists of the following:

1. Complaint
2. Joint Stipulation

It appears that claimant did furnish services to the State of Illinois in the amount of $443.50.

An award is, therefore, made to claimant, Trans world Van Lines, Inc., a/k/a Majestic Warehouses, Inc., in the amount of $443.50.


text:
    (No. 5815
    Hazel C. Case, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed February 18, 1971.

    Edward H. Enright, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Dove, J.


text:
    (No. 5850
    A. Epstein and Sons, Inc., Claimant, vs. State of Illinois, Department of Public Works and Buildings, Division of Highways, Respondent.

      Opinion filed February 18, 1971.

    Richard H. Rogers, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Holderman, J.


text:
    (No. 5880
    Wolford Morris Sales, Inc., Claimant, vs. State of Illinois, Senate Maintenance Commission, Respondent.

      Opinion filed February 18, 1971.

    Wolford Morris Sales, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman, J.


author: Perlin, C.J.

text:
    (No. 5955
    Angelo Bastone, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 18, 1971.

    Richard F. McPartlin, Attorney for Claimant.
    William J. Scott, Attorney General, for Respondent.
   Perlin, C.J.

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

IT IS HEREBY ORDERED:

1. That claimant shall be awarded the sum of $6,927.07 in full satisfaction of all claims against the State of Illinois resulting from his suspension from the Illinois State Police;

2. That claimant is herewith authorized to pay into the Illinois State Retirement System an amount equal to 8% of the back salary he would have received had he worked from the date of July 3, 1962, through February 4, 1970;

3. That the Illinois State Retirement System shall accept said payment, and apply it retroactively, so that, when claimant becomes eligible for a pension, he will receive that amount to which he would have been entitled had he been actually working from February 5, 1948, through February 4, 1970.


text:
    (No. 5956
    Edwin J. Dvorak, Sr., Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 18, 1971.

    Richard F. McPartlin, Attorney for Claimant.
    William J. Scott, Attorney General.
   Perlin, C.J.

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

IT IS HEREBY ORDERED:

1. That claimant shall be awarded the sum of $5,215.80 in full satisfaction of all claims against the State of Illinois resulting from his suspension from the Illinois State Police;

2. That claimant is herewith authorized to pay into the Illinois State Retirement System an amount equal to 8% of the back salary he would have received had he worked from the date of July 3, 1962, through April 24, 1967;

3. That the Illinois State Retirement System shall accept said payment, and retroactively award claimant a pension commensurate with the amount of his total payment into the retirement fund.


author: Bookwalter, J.

text:
    (No. 5412
    William A. Divis, Jr., A Minor, by Lillian Divis, His Mother and Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1969.

      Claimant’s motion to reconsider issue of damages denied April 13, 1971.

    Cooney and Stenn, Attorneys for Claimant.
    William G. Clark, Attorney General; Etta J. Cole, Assistant Attorney General, for Respondent.
   Bookwalter, J.

This is a claim for personal injuries sustained on July 3, 1966, as a result of a fall by claimant from a partially dismantled slide located at a play area in the Illinois State Park, Marseilles, Illinois.

Claimant alleges that respondent was negligent in maintaining the premises of the Illinois State Park in a dangerous condition, and more specifically that respondent was negligent in allowing the slide to remain on the premises in a defective condition without either giving warning of the condition or repairing or replacing the slide. From the testimony and the departmental report it may be seen that the slide in question was of the typical variety of slides, but that the portion, which children use to slide down, had been removed, leaving only the ladder and supporting poles standing.

The ranger at the Park, Mr. Glenn R. Hott, had put a chain with a “closed” sign across the ladder, but this had been removed by someone other than park officials, and thrown in a trash can sometime prior to July 3, 1966.

Claimant’s first witness was Mr. Raymond Mills. Mr. Mills testified that he was a frequent camper at the Illinois State Park in Marseilles, Illinois; that he was present on July 3, 1966, the date of the accident, and that he had observed that the slide portion of the slide was missing. He further testified that the slide portion had been missing for a period of at least two years prior to July 3, 1966, and that he had frequently seen children playing on the ladder and poles, which remained. Mrs. Shirley Jean Mills, wife of Raymond Mills, testified that she had seen the slidé in its defective condition during the summer of 1965, and that it was in this same dismantled condition on the date of the accident.

Mr. William Albert Divis, father of claimant, testified that, on July 3,1966, he and his wife and their three children were camping in the park, and that they had paid the required fee for admission into the park. He testified that his son, then age 5, climbed to the top of the ladder, and started to come down by hanging onto one of the rungs, but that his hand slipped, and he fell sideways, landing on his right side.

Immediately following the fall, claimant was taken to Rayburn Hospital in Ottawa, Illinois, where his injury was diagnosed as a dislocation of the right elbow with com-minuted supra-condylar fracture. He was given general anesthesia, and the fracture was reduced.

It is true that the State is not an insurer of the safety of those using the State’s property, but the State does owe a duty to the public to exercise reasonable care in establishing, maintaining and supervising its parks. Kamin vs. State of Illinois, 21 C.C.R. 467; Stedman vs. State of Illinois, 22 C.C.R. 446. In this case, however, it is incumbent upon claimant to show that respondent had notice of the defective condition of the slide before this duty is placed upon respondent. The fact that the slide was observed in its dangerous condition two years prior to the accident, and the fact that respondent had previously erected a warning sign on the slide, establish that the State had notice, whether implied or actual, of the dangerous condition of the slide.

It is the opinion of this Court that respondent was negligent in allowing the dangerous condition to exist. The duty placed upon the State would require the State in this case to have either removed the remaining portion of the slide or to have erected a barricade or other obstruction, which could not be removed, in order to prevent children from playing on the slide. There is no question that this negligence was the proximate cause of claimant’s injuries.

The remaining question concerns the extent of damages incurred by claimant as a result of this accident. Claimant’s Exhibits Nos. 1-7, inclusive, admitted without objection, showed medical expenses in the amount of $767.25. Dr. Selig ]. Kavka submitted a written report for respondent, which contains the following language:

. .on extension of the arms there was a slight outward bowing at the right elbow as compared with the left, incomplete flexion of the elbow, and barely touching the shoulder with the fingers.
Diagnosis: Fracture of the right arm, from history, healed, with slight deformity and impairment.”

This Court is of the opinion that claimant has suffered substantial damage, and is hereby awarded the sum of $4,000.00.


text:
    (No. 3025
    Elva Jennings Penwell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 27, 1971.

    Gosnell, Benecki and Quindry, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Weber, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant filed her petition for reimbursement for monies expended for nursing care and help, medical services and expenses from January 1, 1970, to December 31, 1970, praying for an award in the sum of $5,546.78.

Claimant was seriously injured in an accident on the 2nd day of February 1936, while employed as a Supervisor at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. The complete details of this injury can be found in the original cause of action, Penwell vs. State of Illinois, 11 C.C.R. 365, in which an initial award was made, and at which time jurisdiction was retained to make successive awards in the future, and this Court has periodically made supplemental awards to claimant to cover expenses incurred by her, the last award covering the time period from January 1, 1969, through December 31, 1969.

A joint motion of claimant and respondent was filed herein requesting leave to waive the filing of briefs and arguments. This motion was granted, and no further pleadings have been filed herein.

Since the Attorney General does not contest the veracity nor the propriety of the items and amounts set forth in claimant’s petition, this Court must assume that the Attorney General agrees with the amounts thus set forth.

The Court, therefore, enters an award in favor of the claimant in the sum of $5,546.78 for the period of time from January 1, 1970, through December 31, 1970. Hie matter of claimant’s need for additional care is reserved by this Court for future determination.


author: Berlin, C.J.

text:
    (No. 5206
    John C. Tully Company, A Corporation and Michael Pontarelli, Inc., A Corporation, Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 27, 1971.

    Harry M. Brostoff and Donald J. O’Brien, Jr., Attorneys for Claimants.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Berlin, C.J.

The instant cause was filed in December of 1964 as a result of a dispute over a construction contract under which the claimants were joint venturers. The parties have entered a stipulation in which they agreed that the respondent was liable for damages as to certain counts in the complaint. The respondent acknowledged its liability therein to the extent of $271,192.00 in return for which the claimants agreed to waive, release and relinquish any and all claims presented under this cause;

IT IS HEREBY ORDERED that the sum of $271,192.00 be awarded to claimants in full satisfaction of any and all claims presented to the State under case No. 5206.