text:
    (No. 94-CV-1064
    Dartallion Allen, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 15, 1995.

    Dartallion Allen, pro se, for Claimant.
    Jim Ryan, Attorney General (Wendell Derek Hayes, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This claim is before the Court on an application for compensation filed by Dartallion Allen under the provisions of the Crime Victims Compensation Act, hereafter referred to as the “Act.” (740 ILCS 45/1 et seq.) The Claimant filed an application alleging he was entitled to compensation because he had been shot in the right leg on August 19,1993.

An order was entered by this Court on May 11, 1994, denying the claim based on the investigatory report of the Attorney Generals office. The reason for denial was that the report indicated the Claimant refused to cooperate with law enforcement officials in the apprehension and prosecution of the assailant as required by section 45/6.1(c) of the Act. The Claimant made a timely request for a hearing pursuant to section 45/13.1 of the Act. A hearing was held before Commissioner Clark on December 8, 1994. The evidence consists of the Claimant s testimony, bills submitted by the Claimant documenting expenses incurred for medical treatment, and employers’ reports for calculating lost wages.

The Claimant testified that he was walking near the home of his girlfriend at 6706 Forest Boulevard, Washington Park, Illinois, when he felt something hit his leg. Moments later he noticed blood dripping down his leg and summoned help at his girlfriend’s home. His girlfriend’s daughter took him to his mother’s home. His family took him to St. Mary’s Hospital in East St. Louis, Illinois, where he was treated for a gunshot wound. The Claimant initially told officers with the St. Clair County Sheriff’s Department that he did not see his assailant. The Claimant stated that the officers searched his home looking for the pistol with which he was shot.

The Claimant’s condition worsened and he went to Touchette Regional Hospital in Centreville, Illinois, where the bullet was removed. While at the hospital, an officer with the sheriff’s department questioned Claimant again. Claimant alleges that the officer harassed him and would not accept his answer that he did not see his assailant. To appease the officer, Claimant then told the officer that while he was standing at a bus stop, two white men jumped out of some bushes, robbed him and shot him.

Claimant submitted bills from St. Mary’s Hospital totaling $1,598.64; from Dugan and Carls, Radiologists, Ltd., totaling $72; and from Touchette Regional Hospital totaling $987. The Claimant also submitted employee reports prepared from three employers. Only one report showed earnings prior to the date of the shooting and this was only for the two months prior to the date of the shooting. The other two reports recorded earnings following the date of the shooting. Based on the report that most accurately complies with the instructions on the form, the Claimants net average monthly income would have been $404.03. The Claimants physician allowed him to return to work on September 27, 1993. Thus, he was unable to work for about one month.

Section 6.1(c) of the Act states that in order to receive compensation, a Claimant must cooperate fully with law enforcement officials in the apprehension and prosecution of the assailant. This Court has previously held that Claimants who give law enforcement officials different versions of the incidents giving rise to their injuries have failed to cooperate fully with law enforcement and are ineligible for compensation. (In re Application of Vaughn (1981), 35 Ill. Ct. Cl. 517; In re Application of Ford (1984), 37 Ill. Ct. Cl. 443.) The differing versions proclaimed by Claimant raise serious doubts about his credibility.

No matter what the Claimants reasons, he failed to fully cooperate with law enforcement officials by telling a different version of his story, thus hampering any investigation into the shooting.

Because the Claimant failed to fully cooperate with law enforcement officials, he has failed to meet all required conditions for an award under the Act. For the foregoing reasons, the Claimants claim is denied.


source: Caselaw Access Project

author: Frederick, J.

license: Public Domain

text:
    (No. 94-CV-2294

      In re Application of Carmen I. Mercado

      Opinion filed March 11, 1996.

    Carmen I. Mercado, pro se, for Claimant.
    Jim Ryan, Attorney General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Carmen I. Mercado, filed her application for benefits under the Crime Victims Compensation Act (740 ILCS 45/1 et seq.), hereinafter referred to as the “Act,” on February 16, 1994. On March 1, 1995, the Court, relying upon the investigatory report of the Attorney General, denied compensation to the Claimant. The investigation found that Claimants decedent had a quantity of illegal drugs and a fully-loaded handgun in his possession at the time of his death. Based on those facts, the Court found that the Claimants decedent contributed to his own death to such an extent as to warrant that the Claimant be denied compensation.

Claimant, Carmen Mercado, is the mother of the deceased victim, Alfredo Mercado. Her application indicates that she claims medical and hospital expenses and funeral and burial expenses. The Claimant made a timely request for a hearing. The case was tried before Commissioner Blakemore.

The issue before the Court is whether the Claimant’s decedent’s acts or conduct provoked or contributed to his injury or death to the extent that the claim should be reduced or denied. At the hearing Claimant testified that she did not believe her son provoked his own death. There was no proof he used the gun that was found in his possession. Mrs. Mercado was not present at the time her son was shot to death. She was taken to the scene later. She talked to the police a day later. The police told her that someone claiming to be Alfredo Mercado’s aunt tried to grab the bag in the car. The offender was a David Ruiz and he was going to trial. She was not aware that her son was a member of the Insane Camel Boy street gang. She believed her son had friends who were Camel Boys but that Alfredo was not a member of the gang. She never had any problems with Alfredo. She was not aware that Alfredo carried a 25-caliber automatic handgun and had a bag of marijuana with him when he was killed. Claimant does not know if her medical insurance covered Alfredo’s medical bills. At the time of trial, she was not receiving bills from the Cook County Hospital. Claimant believed her son did not need to be selling drugs.

Before the Court rules on this matter, the Court expresses its condolences to Mrs. Mercado. She has lost her son and there is nothing that can bring him back. Her loss is the greatest a mother can have and there is no doubt that Claimant loved her son very much.

The Crime Victims Compensation Act is a secondary source of recovery. It is strictly a statutory remedy. The Claimant has the burden of proof that she has complied with all conditions precedent to an award. (In re Application of Bavido (1992), 44 Ill. Ct. Cl. 449.) The Act requires the Court to deny compensation where the victim contributes sufficiently to his own injury or death. In the present case, it is undisputed that Claimants decedent was in possession of illegal drugs and a loaded handgun at the time of his death. Both of these actions are crimes and Claimants evidence does not credibly dispute this evidence. The Court has denied numerous claims where a Claimant has been involved in a crime at the time of his death where the Court found the illegal conduct contributed either directly or indirectly to the death or injury. (In re Application of Hum (1992), 44 Ill. Ct. Cl. 486; In re Application of Wintrol (1985), 38 Ill. Ct. Cl. 409; In re Application of Casey (1993), 46 Ill. Ct. Cl. 610.) The cited cases are a small sampling of cases where the factor of guns and/or drugs was found by the Court to be a contributing factor to a death or injury to such an extent as to lead to the denial of the claim. Guns and drugs are truly a deadly combination.

In the instant case, Alfredo Mercado had a gun and drugs in his possession and was killed. We find that those factors contributed to the decedents death to such an extent that the claim should be denied pursuant to section 10.1(d) of the Act.

For the foregoing reasons, it is the order of the Court that this claim be and hereby is denied.


author: Sommer, C.J.

text:
    (No. 94-CV-2822

      In re Application of Margarito Ceniceros

      Opinion filed August 18, 1995.

    Legal Assistance Foundation (Devereux Bowly, of counsel), for Claimant.
    Jim Ryan, Attorney General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This claim for compensation under the Crime Victims Compensation Act (740 ILCS 45/1, et seq.), hereinafter referred to as the “Act,” comes before the Court on a timely petition for a hearing and review of an order of this Court dated June 22, 1994, denying this claim. Oral argument before the entire Court was held on March 29,1995.

In the crime victim compensation application, the Claimant states that he was “struck by auto which didn’t stop.” The conduct described is often referred to as a “hit- and-run” or “leaving the scene of an accident,” but in reality is a violation of the Illinois Vehicle Code, which requires a driver of a vehicle to stop or report when involved in an accident result in death or injury. 625 ILCS 5/11 — 401.

The failure to stop or report (“hit-and-run”) is not listed as one of the crimes for which compensation may be awarded to the victim under the Crime Victims Compensation Act. 740 ILCS 4572(c).

Presently, a crime victim is defined in the Act as “a person killed or injured * * * as a result of a crime of violence perpetrated or attempted against him * * 740 ILCS 4572(d). Emphasis added.

Thus, to award compensation to a victim on the basis that the perpetrator failed to stop or report would violate the present definition of a crime victim, as the victim was not injured as a result of the failure to stop or report; and would create an irrational scheme of compensation where the injuries were purely accidental.

The Claimant argues that a driver who does not stop or report may have committed the crime of reckless conduct. This crime is listed as one of the crimes for which compensation may be awarded to the victim under the Crime Victims Compensation Act. 740 ILCS 4572(c).

The argument of the Claimant has been rejected previously. In In re Application of Stevens (1976), 31 Ill. Ct. Cl. 710, the Court stated:

“The language of Chapter 38, Section 12 — 5 (Reckless Conduct) of the Illinois Revised Statutes does not specifically mention motor vehicle accidents. If the General Assembly had intended to include motor vehicle accidents it could have done so easily by including under its definition of crime of violence those sections of the statutes which specifically mentioned motor vehicle offenses.
e a #
It is the Courts opinion that the inclusion of Section 12 — 5 of Chapter 38 in the definition of crimes of violence in the Act was for the purpose of including all Acts of reckless conduct other than motor vehicle accidents.” Stevens at 711, 712.

The Claimant argues that since the decision in Stevens, the General Assembly has added to the Act the crimes of reckless homicide and driving under the influence of alcohol or drugs — crimes involving motor vehicles. 740 ILCS 45/2(c).

The Claimant urges us to adopt the reasoning in the claim of In re Application of Smith (1992), 45 Ill. Ct. Cl. 520. In Smith, the Court found reckless conduct in the discharge of a firearm to be a lesser included offense in the offense of involuntary manslaughter. (A crime which was not included under the Act at the time.) The Claimant urges that the finding in the Smith claim of reckless conduct on the part of the offender should apply to situations where victims are injured by motorists who then flee. The Claimants argument is that, even if failure to stop or report after an accident is not a crime compensable under the Act, reckless conduct might be found. Additionally, using the reasoning in Smith, the Claimant argues that reckless conduct is a lesser included offense in reckless homicide; and, therefore, with the addition of reckless homicide as a “crime of violence” under the Act, reckless conduct is necessarily included as a “crime of violence” applicable to motor vehicle mishaps.

The Claimant's analogy to Smith fails partially as reckless conduct is not necessarily a lesser included offense in failure to stop or report. A hearing would be required in most claims, as failure to stop or report is not proof standing alone of reckless conduct.

The Crime Victims Compensation Act provides that “ ‘crime of violence’ does not include any other offense or accident involving a motor vehicle except those vehicle offenses specially provided for in this paragraph.” 740 ILCS 45/2(c).

This Court has previously found that the term “crime of violence” as specified in the Act does not include any other offense or accident involving a motor vehicle except reckless homicide and driving under the influence of intoxicating liquor or narcotic drugs. In re Application of Catron (1992), 45 Ill. Ct. Cl. 558, 561, citing In re Application of Wilcox (1988), 41 Ill. Ct. Cl. 339, 340.

Given the General Assembly’s specific language excluding “any other offense or accident involving a motor vehicle,” and the fact that this Court has excluded reckless conduct as a “crime of violence” since 1976 in motor vehicle claims, and in the absence of specific legislative disapproval of our interpretation, we are constrained to continue to adhere to it. Henderson v. State (1991), 44 Ill. Ct. Cl. 180, 181.

It is true that reckless conduct can be committed by the driver of a motor vehicle. See 1961 Committee Comments in Smith-Hurd Illinois Compiled Statutes Annotated under 720 ILCS 5/12 — 5.

However, we find that there is a “vehicle offense” equivalent to reckless conduct, namely reckless driving. (625 ILCS 5/11 — 503.) Thus, reckless conduct is a generic offense, while reckless driving is a motor vehicle offense. Therefore, we find for the reasons previously given that reckless conduct is not to be included as a “vehicle offense” under the Act, as a specific “vehicle offense” is available to be placed in the Act if the General Assembly were to choose to do so.

The Smith claim involved a shooting — conduct not subject to the limiting terms of the Act as “vehicle offenses” are. Thus, our ruling in the Smith claim is consistent with this opinion.

In addition to causing many more hearings, the inclusion of reckless conduct or reckless driving (both misdemeanors) as crimes compensable under the Act in motor vehicle accidents would extend the possibility of benefits under the Act to a new, large group of Claimants — those injured in unintentional automobile accidents, whose remedy has been traditionally found in the tort law. As we have shown, we believe that such a dramatic widening of the Act must be done specifically by the General Assembly if it so desires.

Therefore, we find that failure to stop or report (“hit- and-run”) and reckless conduct in the use of a motor vehicle are not crimes for which compensation may be awarded to the victim under the Crime Victims Compensation Act.

It is therefore ordered that this claim is denied after hearing and this Court s order of June 22,1994 is affirmed.


text:
    (No. 94-CV-3047
    Deloris Armstrong, Claimant, v. The State of Illinois, Respondent.

      Order filed June 7, 1996.

    Deloris Armstrong, pro se, for Claimant.
    Jim Ryan, Attorney General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Sommer, C.J.

On September 29, 1993, James Earl Thomas was shot to death on West Jackson in the City of Chicago. Pursuant to the Crime Victims Compensation Act, a claim was made by Deloris Armstrong, the decedents aunt, for funeral expenses she had paid. On December 6, 1994, this Court originally denied the application for benefits submitted by tibe Claimant due to the fact that the Claimants decedent was participating in gang activity which contributed to his death.

A hearing on the matter was held on August 14, 1995. Submitted during the course of the hearing was the report of the pathologist who conducted an autopsy on Mr. Thomas. In his opinion, the decedent died as a result of multiple gunshot wounds to the body. According to the reports submitted by the Chicago Police Department, the decedent was found at the scene of the shooting in clothes which exhibited gang graffiti and symbolism. A friend of the victim informed the police that Mr. Thomas was a member of the Black Gangster Disciples. That person also indicated that the victim was in that location to talk with another gang about a prior fight. The investigating officers checked the Chicago Police Department records and determined that the victim was a Black Gangster Disciple, with a criminal record. Further investigation by the police confirmed that the victim was at the scene of the shooting because of a prior incident. The man eventually arrested for shooting Mr. Thomas admitted that the motive for the shooting was a previous gang altercation.

It is clear that the victim and the alleged offender in this case were from opposing street gangs. This incident occurred because of their gang affiliation, gang rivalry and previous gang incidents. The victims conduct and his membership in a gang provoked and contributed to his own death and, therefore, the claim will be denied under 740 ILCS 45/10.1(d), which states that an award may be denied where the decedent provoked and contributed to his own death.

It is therefore ordered that this Courts order of December 6, 1994, is affirmed and the present appeal is denied.


text:
    (No. 94-CV-3414

      In re Application of Delia Leyva

      Opinion filed January 23, 1996.

    Jeffrey Urdangen, Ltd. (Erika B. Cunliffe, of counsel), for Claimant.
    Jim Ryan, Attorney General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This claim arises out of an incident that occurred on September 18, 1993. Delia Leyva, grandmother of the deceased victim, Victor E. Ramirez, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the “Act.” 740 ILCS 45/1 et seq.

The Court previously denied the claim in its order of December 16, 1994. The Court found, based on the investigatory report, that the victims conduct contributed to his death to such an extent as to warrant that the Claimant be denied entitlement to compensation. The Court found that the incident occurred due to tire fact that the victim and the offender were members of opposing street gangs and the death occurred as a result of their gang affiliation, gang rivalry, and face-to-face provocation.

The Claimant filed a timely request for hearing and the cause was tried before Commissioner Michael Kane. The evidence presented shows that while tire investigation completed by the Attorney General suggests that street gang affiliation had some connection to this shooting, a more thorough examination of the facts reveals that the decedent had not been involved in any street gang activity for some years prior to the shooting. The Claimant, the grandmother of Victor E. Ramirez, applied for compensation, specifically, funeral expenses and loss of support as a result of the shooting death of Mr. Ramirez on September 18,1993. Evidence was elicited at the hearing which established the following facts: the victim, Victor Ramirez, in his high school days, was in fact a member of a street gang; on the date of the shooting, he was not involved in any gang activity, but simply was in the wrong place at the wrong time. The individual who shot Mr. Ramirez, Darvin Williams, did not know the victim. However, in a confession to police he did admit shooting victim Ramirez simply because Mr. Ramirez was with an individual who Williams thought to be a member of a gang. The victim had not been involved in any gang activity since his high school days and was working. Furthermore, he had been through the TASC program and a counselor had found him a job parking cars.

Because the evidence presented indicated that the decedent had previously left the Latin Kings street gang, we find our previous findings to be in error. A close examination of the evidence shows that the decedent did nothing to provoke his own injury. Prior to the shooting, the Claimants decedent was merely seated on a step. He did not show any gang signs, gang clothing or shout gang slogans. The decedent was not a gang member on the date of his death.

This Court has taken a strong stance against street gangs and has found that such gang membership and its concurrent terrorism can be provocation for injuries and death suffered by gang members in gang wars. Such is not the case here.

For the foregoing reasons, it is the order of this Court that Victor E. Ramirez was the innocent victim of a violent crime and Claimant, Delia Leyva, is entitled to compensation under the Act. We find that Claimant has substantiated her claim for $2,594 for funeral expenses but has failed to prove by a preponderance of the evidence a loss of support. Claimants loss of support claim must be denied.

It is therefore ordered that Claimant, Deha Leyva, is awarded $2,594 in full and final satisfaction of her claim and the remainder of her claim for loss of support is denied.


text:
    (No. 95-CV-1779

      In re Application of Gloria Barnett

      Opinion filed May 15, 1996.

    Gloria Barnett, pro se, for Claimant.
    Jim Ryan, Attorney General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This claim arises out of an incident that occurred on September 13, 1994. Gloria Barnett, the mother of the deceased victim, Charles Roy Barnett, Jr., seeks compensation for medical expenses and funeral expenses pursuant to the provisions of the Crime Victims Compensation Act, hereinafter referred to as the “Act.” 740 ILCS 45/1 et seq.

On August 15, 1995, the Court entered an order denying the claim. The police investigation revealed that the victim was arguing with a person on a street, the victim obtained a handgun and pointed it at the person with whom he was arguing, and the alleged offender obtained a handgun and shot the victim. The victim was also found to be in possession of illegal narcotics at the time of the incident. Based on the investigatory report, the Court determined that the victim s conduct contributed to his death to such an extent as to warrant that Claimant be denied entitlement to compensation pursuant to section 10.1 of the Act.

On August 31, 1995, Claimant requested a hearing. A hearing was held on December 15, 1995, at which Claimant appeared and testified. Two daughters of Claimant, Barbara Walker and Iesha Mason, also attended the hearing. Although mostly hearsay, Ms. Barnett testified that on September 13, 1994, her son left South Suburban College with a girlfriend. He went to get a haircut and the barber told him to return in 30 minutes. Her son and his friend were riding around and they went down Loomis Street in Harvey. They saw somebody they knew and stopped to talk to the guy. A guy got out of another car and began arguing with her son. Her son and the person began fighting. Her son was trying to get back to the car. He was shot in the back while running down the street. Angie, the victim s friend, told Claimant that she heard somebody say “pop that fool.” Claimant was not present at the incident.

An individual was arrested, charged and tried. He was found not guilty. According to Claimant, the judge stated that there was insufficient evidence to find him guilty. Angie was in the car during the incident and testified at the criminal trial. Claimant testified that Angie said the victim did not possess a handgun and Claimant was told that the police did not find a gun. Angie did not possess a handgun. In response to questions regarding the police finding narcotics on her son, Claimant indicated that it was odd that the police did not find his apartment keys or his wallet. Angie did not testify before the Commissioner nor was a transcript of her criminal trial testimony presented to the Court.

Claimants daughter, Barbara Walker, stated that her brother was attending school and was not mixed up in drugs. The victim had worked with his mother at Little Company of Mary Hospital, however he had re-enrolled in college.

Neither Claimant nor her daughters were at the scene of the incident. Claimant did not know why the fight took place. Angie told her that the other boy got out of the car and he and the victim “started tussling on the ground.” Her son tried to run away after the physical altercation. Angie allegedly testified at the criminal trial that the victim did not have a gun. The alleged offender said the victim had a gun.

Claimant stated that she borrowed the money from her credit union for the funeral expenses. She produced a document indicating that she borrowed $2,810 to use for funeral and burial expenses and it has been paid back in full. The assistant Attorney General acknowledged that he was in possession of a funeral directors report indicating that $7,863 was paid by Ms. Barnett.

The police report contains a handwritten notation that “medical technicians released to B/0 victims clothing, a clear plastic bag containing a leafy plant-like material believed to be cannabis, a folded piece of paper containing a white powdery substance believed to be cocaine.” Another handwritten notation indicates that the victims sister, Sulena Barnett, said that Lisa Carter “stated 'Ron shot victim over a past argument.” The report also states “that 'Ron’ is a local drug dealer.” The fifth page of the report appears to be a summary of the case prepared by the State’s Attorney’s Office of Cook County against the person charged with the murder of the deceased victim. The summary includes a statement that after the victim and Conwell began fighting “victim Barnett went to his girlfriend’s car and retrieved a handgun and pointed it at witness #5 Conwell.” The aforementioned statement is attributed only to the person charged with murder. There are no other references to anyone else saying that the victim had a gun.

Neither Claimant nor her two daughters were present at the incident. No occurrence witnesses testified at this hearing. The victim possessed illegal narcotics at the time of the incident and such possession has not been substantially contradicted. The references to the victim pointing a handgun at an individual with whom he was having a fight are apparently made by the person charged with the murder of the victim. The person was acquitted of the murder of the victim. Angie was not called as a witness in this proceeding to dispute the allegation.

It is undisputed that a physical altercation took place between the victim and an individual. Although the victim was killed by someone other than the person he was fighting, it appears that the shooting arose out of, or was a continuation of, the altercation. No one was convicted of a violent crime against Claimants son. It is unfortunate that the circumstances associated with the death of the victim have never been finally determined. However, this Court cannot arrive at a different conclusion than the criminal court based upon the evidence presented that the Claimant’s decedent contributed substantially to his own death. The decedent may have had a gun, he did have drugs in his possession, and he was involved in an altercation. This Court has consistently denied or reduced awards in cases with facts similar to the facts adduced in this case involving drugs and guns. In re Application of Hun (1992), 44 Ill. Ct. Cl. 486; In re Application of Casey (1993), 46 Ill. Ct. Cl. 610; In re Application of Cross (1980), 34 Ill. Ct. Cl. 411.

The Claimant has the burden of proving that she has met all conditions precedent for an award pursuant to the Act by a preponderance of the evidence. (In re Application of Bavido (1992), 44 Ill. Ct. Cl. 449.) While we understand and sympathize with Claimant’s loss of her son, we must find that Claimant has not met all conditions precedent for an award under the Act. For the foregoing reasons, it is the order of this Court that this claim be and hereby is denied.


text:
    (No. 95-CV-2522

      In re Application of Eugene Mines, III

      Opinion filed May 17, 1996.

    Eugene Mines, III, pro se, for Claimant.
    Jim Ryan, Attorney General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

The Claimant, Eugene Mines, III, was kicked in the face by unknown offenders when he tried to break up a fight between two men on December 30, 1994, at the American Legion Hall, 705 South Larkin, in Joliet, Illinois. Claimant suffered a ruptured orbit of the left eye, retinal detachment, and lost a lens and iris. On March 9, 1995, Mines filed a claim pursuant to the Crime Victims Compensation Act for doctor and hospital expenses totaling $30,656.62, plus lost wages. Claimant had no insurance available to pay the medical bills. The Court denied the claim on July 3, 1995. The Court found that section 6.1(b) of the Act (740 ILCS 4576.1(b)) requires that a person requesting compensation under the Act notify law enforcement officials within 72 hours of the perpetration of the crime allegedly causing the death or injury to the victim. If the notification is made more than 72 hours after the perpetration of the crime, the applicant must establish that such notice was timely under the circumstances. The Claimant notified law enforcement officials 23 days after the perpetration of the crime and had not established that such notification was timely under the circumstances. The Claimant requested a review of the decision. A hearing was held before Commissioner Michael E. Fryzel on February 16,1996.

The Claimant testified that he did not report the crime to law enforcement officials for two reasons. The first reason is that he was not informed about the Crime Victims Compensation Act until his aunt, a police officer, told him ten days after the crime. The second reason is that the offenders were unknown to him and he thought the police wouldn’t do anything because of this. The Claimant’s mother testified that when he went into the hospital, someone told her to file a police report but they didn’t know which police department would handle the case. The Joliet police said it was a county police problem. After talking to Officer Williams ten days later, Mrs. Mines called the county police and asked if they could send an officer to Claimant’s house since her son was not able to go into the police station as he had a high fever. They replied that there was a snowstorm and told her to wait until the victim felt better and then have him come in. When she called again on January 23,1995, 23 days after the incident, Officer Stott of the Will County Sheriffs Police Department, who came out, said the police should have sent somebody out the night she first called.

Claimant and his mother were not aware of the Act until they talked to Officer Williams, ten days after the crime, at which time they contacted the county police. Even if the police had sent someone out that night, the report would have been made a substantial time after the 72-hour deadline required by the Act. This Court has held that failure of tire police to advise a Claimant of the Act is not an exception to the limitations periods under the Act. (Schenk v. State (1991), 43 Ill. Ct. Cl. 437.) Claimant has failed to show that the notification he made 23 days after the occurrence was timely under the circumstances of this case. (In re Application of Seber (1987), 40 Ill. Ct. Cl. 387.) Claimant has failed to meet all conditions precedent for compensation under the Act. Based on the foregoing reasons, it is the order of the Court that this claim be and hereby is denied.


text:
    (Nos. 83-CC-1892, 84-CC-0370 cons.
    William Roy Hershey, Barbara M. Hershey, and Prairie Farms Dairy, Inc., Claimants, v. The State of Illinois, Respondent.

      Opinion filed June 12, 1997.

    Brown, Hay & Stephens (Edward Cunningham and Emmet Fairfield, of counsel), and Lab arre, Young & Dietrich (Laura G. Dietrich, of counsel), for Claimants.
    Jim Ryan, Attorney General (Michael Wulf, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

These claims are for damages suffered by the Hersheys due to an automobile collision allegedly caused by the States negligent placement of a road sign, and Prairie Farms’ insurer’s claim for subrogation of insurance payments to third parties involved in the collision.

There is no question that Claimant William Hershey was seriously injured and incurred substantial medical expense and that Claimant Prairie Farms’ insurer paid substantial amounts to third parties. In addition, the State has admitted that the height of the “Do Not Enter” sign in question was not in conformity with the Uniform Traffic Control Devices Manual.

The Claimants allege that, when Mr. Hershey’s automobile stopped at the stop sign on Spaulding Orchard Road at the intersection of Route 4 in Sangamon County, a “Do Not Enter” sign blocked his vision of automobiles coming from his left on Route 4. The Claimants introduced photographs, a motion picture, and testimony to prove their contention that Mr. Hershey’s view as blocked due to the “Do Not Enter” sign being low.

Mr. Hershey testified that he was familiar with the intersection, having gone through it many times, but did not notice the obstructing sign and that his view of Route 4 must have been obstructed when he stopped at the stop sign. Mr. Hershey’s automobile came to a stop at the stop sign with the front wheels even with the sign. He saw no automobiles coming from his left on Route 4. He then went forward a couple of feet to a second stop with the sign even with the driver’s door. Mr. Hershey testified that he looked north (right) and south (left) before his automobile moved toward Route 4 from the second stop. He remembers a blur in front of him as he entered Route 4 just before the impact. He opines that the “Do Not Enter” sign was obscured by the light conditions as it was early morning and the color of the sign blended into the background, while a brown Boy Scout sign further down Route 4 blocked his vision of Route 4 beyond the blockage of vision caused by the “Do Not Enter” sign because it blended into the background.

The stop sign on Spaulding Orchard Road was 45 feet from the nearest traffic lane on Route 4 and the highway shoulder was ten feet wide. While the “Do Not Enter” sign and a Boy Scout sign 318 feet down Route 4 may have obstructed the view of Route 4 at some point approaching the intersection, the unobstructed view of Route 4 with the front bumper of an automobile at the shoulder, a point 10 feet from Route 4 and 35 feet beyond the stop sign, was at least 700 feet. The Respondent’s witness, Mr. Gregg, testified this unobstructed view was available even when the front bumper was ten feet back from the shoulder.

Section 11 — 904(b) of the Illinois Vehicle Code states:

(b) * * * every driver of a vehicle approaching a stop intersection indicated by a stop sign shall stop at a clearly marked stop line, but if none, before entering the crosswalk or the near side of the intersection, or if none, then at a point nearest the intersecting roadway where the driver has a view of approaching traffic or the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right-of-way to any vehicle which has entered the intersection from another roadway or which is approaching so closely on the roadway as to constitute an immediate hazard during the time when the driver is moving across or within the intersection * * *. 625 ILCS 5/11—904(b).

There was no stop line or crosswalk at the intersection in question in this claim. Mr. Hershey’s argument is that his view of oncoming traffic to his left having been blocked by the low “Do Not Enter” sign and the Boy Scout sign, he was not aware of any traffic coming from his left; therefore, he committed no negligence by proceeding into the intersection, and the State was negligent for blocking his vision by placing the “Do Not Enter” sign too low; and was the proximate cause of the collision.

The standard established by section 11 — 904(b) of the Vehicle Code is that where there is no stopline and no crosswalk, a driver must stop nearest the intersecting roadway at a point where the driver has a view of approaching traffic.

In this claim, at a point nearest the intersecting roadway with an automobile’s front bumper at the shoulder, there was an unobstructed view of the roadway on the left of 700 feet. Indeed, there was testimony that the view was unobstructed when the front bumper was ten feet from the shoulder.

As there was no stopline or crosswalk at the stop sign, which was 45 feet from the traffic lanes of Route 4, the law required Mr. Hershey not only to stop at the stop sign but also to approach the intersecting roadway to a point where he had a view of oncoming traffic and then stop. To contend that a motorist’s only obligation is to stop at stop signs 45 feet from the intersecting roadway, creep forward a few feet, and then accelerate and be held free from negligence or causation of a collision at the intersecting roadway is incorrect. Mr. Hershey would have had an unobstructed view as he approached the intersecting roadway; therefore, we find that he was negligent and the proximate cause of the collision.

The possible blockage of Mr. Hershey’s view of Route 4 at the stop sign was not a proximate cause of the collision due to the above section of the Vehicle Code which required Mr. Hershey to proceed from the stop sign to a point where he had an unobstructed view nearest the intersecting roadway and then stop. It is apparent from testimony that Mr. Hershey accelerated from approximately 35 feet from his second stop to the pavement of Route 4 and did not stop or avail himself of the unobstructed view as he approached the shoulder.

Though we understand that Mr. Hershey was badly injured and sympathize with all he has gone through, we find that the State is not liable for damages in this claim.

It is therefore ordered that these claims are denied.


author: Mitchell, J. Mitchell, J. Mitchell, J.

text:
    (No. 84-CC-0611
    R. W. Dunteman Company, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 10, 1995.

      Order filed December 5, 1995.

      Order filed November 27, 1996.

    James A. Reiman & Associates, for Claimant.
    Jim Ryan, Attorney General (Richard Krakowski, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Mitchell, J.

Claimant, R. W. Dunteman Company, hereinafter referred to as “Dunteman” filed a breach of contract action against the State of Illinois, Department of Transportation, hereinafter referred to as “IDOT,” pursuant to section 8(b) of the Court of Claims Act. (705 ILCS 505/8(b).) Dunteman contends that IDOT breached its construction contract and Dunteman is seeking damages in the amount of $25,250 plus interest in accordance with the State Prompt Payment Act. 30 ILCS 540/1 et seq.

Facts

R. W. Dunteman Company is an earth moving and paving firm. On January 25, 1982, IDOT awarded Dunteman a construction contract to perform construction work at Du Page County Airport for the sum of $137,355. The contract described the work as follows:

"Construct, light and mark extension to the parallel taxiway to runway 10/28 and a single row auto parking area.”

The contract required that IDOT authorize all change orders in writing as per the correspondence from IDOT to Dunteman dated January 25, 1982, which states in pertinent part as follows:

“NO WORK SHALL COMMENCE UNTIL THE NOTICE TO PROCEED HAS BEEN ISSUED RY THE DIVISION OF AERONAUTICS. Any work started before this issuance may become ineligible for payment under this contract.”

On April 22, 1982, a preconstruction meeting was held. The memorandum of the. preconstruction conference indicates that among others present at the conference were: Larry Frank, the construction engineer from the Division of Aeronautics of IDOT; Steve Moulton, of Crawford, Murphy & Tilly, Inc. (“CMT”); the consulting engineers and agents for IDOT; Jeff Plapp, the resident engineer for CMT; and Allen Dunteman on behalf of Dunteman. The minutes of the preconstruction conference indicate “as per Mr. Frank, only the Division of Aeronautics can approve the contract changes.”

Mr. Dunteman testified that based on his experience, change orders are required to increase or decrease the scope of work specified in the contract. He further testified that it was Dunteman s practice to act on change orders as soon as they were approved by IDOT and received by Dunteman.

On April 26, 1982, construction work began. On April 30, 1982, Dunteman discovered an inferior subsoil problem. Jeff Plapp, resident engineer, directed Dunteman to excavate 2,500 cubic yards of ground. This work took two working days. A disking process was done to attempt to diy the soil due to excessive rain in May 1982. This process took three weeks to complete. By the end of May 1982 the subgrade was fairly well constructed.

In late May, it became apparent that the soil was unacceptable for asphalt. This condition was brought to the attention of Plapp who stopped the project and said he needed to contact Larry Frank, the construction engineer from IDOT. On June 9, 1982, CMT wrote a letter to Dunteman stating that the work could not proceed until Lariy Frank visited the job site. On June 11, 1982, Frank visited the job site and approved a method of repair which would change the terms of the contract.

Frank testified that on June 11, 1982, he orally advised Dunteman to proceed with the work without any signed change order documents.

On June 14, 1982, CMT wrote Dunteman a letter regarding the June 11, 1982 meeting. No change orders were executed at that time. The June 14, 1982 letter indicates that additional amounts of stone could be used to firm the subsoil. In the letter, CMT requested that Dunteman provide it with a price for the stone. The letter further noted items of work which had not been completed by the contractor.

On June 17, 1982, Dunteman wrote CMT a letter indicating the price of the stone. In addition, Dunteman stated, in pertinent part:

“If our 'agreed' unit price is acceptable to you and the Illinois Department of Transportation, please issue your written Change Authorization so that this work may proceed without delay.”

On June 18,1982, Moulton, the project engineer, responded to Claimants letter with a Change Order No. 1 for signature. The letter noted Duntemans concern over receiving written authorization to proceed with the work and also expressed disappointment at the lack of progress on the uncompleted items listed in CMTs letter of June 4,1982, which were unrelated to the subgrade problem.

On June 19, 1982, Dunteman submitted to IDOT Change Order No. 1 which took into account the additional cost of $6,157.60 for the crushed stone. On June 23, 1982, Dunteman submitted Change Order No. 2 to be signed by IDOT. This change order added 60 calendar days to the project. Executed copies of Change Order Nos. 1 and 2 were not received by Dunteman for approximately one month, until July 23 or July 24, 1982. The project was shut down from approximately May 1, 1982, when the subsoil problems were discovered, until July 23 or 24, 1982, when Dunteman received IDOT’s written change order. During this shutdown, Dunteman was charged 44 calendar days, which constitutes the $15,200 in liquidated damages charged Dunteman.

Lariy Frank, the construction engineer for IDOT, testified that no change orders were executed by IDOT between June 23, 1982, and July 15, 1982.

The fully executed change orders indicate that Roger Barcus, Chief of the division of aeronautic of IDOT, did not sign off on them until July 16, 1982. Upon receipt of the change orders, Dunteman completed the work expeditiously.

Claimant further alleges that while they.awaited IDOT’s execution of change orders, Claimant incurred mobilization costs for moving the equipment off the project while the project was shut down. Claimant contends that the mobilization costs incurred total $3,657.55.

IDOT made a charge for a 38 calendar day delay totaling $15,200 in liquidated damages. Claimant seeks recovery of the $15,200 charged. In addition, Claimant seeks payment in the amount of $6,360 for additional handling of materials and $3,657.55 for mobilization costs incurred in moving the equipment off the project during the construction delay. Claimant seeks total damages in the amount of $25,250.

I. Whether IDOT properly charged claimant for liquidated damages for delays in completing work

The issue before the Court is whether IDOT properly charged Claimant with $15,200 in liquidated damages for a 38 day delay in project completion where IDOT failed to execute change orders for the completion of the work.

In late May 1982, the project was shut down pursuant to the order of Jeff Plapp, resident engineer. On June 11, 1982, IDOTs construction engineer visited the job site and orally approved a method of repair which would change the terms of the contract. However, the change orders were not executed by IDOT until July 16, 1982.

Respondent contends that the verbal directions of the construction engineer on June 11, 1982, and the letters from IDOT to Claimant on June 11,14, and 18,1982 were sufficient directions to Claimant and that a written change order was not necessaiy for completion of the work.

We disagree. At the preconstruction conference on April 22,. 1982, the IDOTs construction engineer warned Claimant that written change orders must be issued to effect a change. On January 25, 1982, IDOT issued a letter to Claimant which, in pertinent part, states as follows:

"NO WORK SHALL COMMENCE UNTIL THE NOTICE TO PROCEED HAS BEEN ISSUED BY THE DIVISION OF AERONAUTICS. ANY WORK STARTED BEFORE THIS ISSUANCE MAY BECOME INELIGIBLE FOR PAYMENT UNDER THIS CONTRACT.”

Mr. Dunteman testified that in his experience and prior dealings with the State, work proceeded only when executed change orders were received. In addition, Claimant specifically requested a written change order on June 17, 1982, but IDOT failed to produce the document until July 23, 1982.

There is no question that the project was halted by the resident engineer. Respondents contention that the oral instructions issued by IDOTs construction engineer on June 11, 1982 were sufficient to recommence construction is entirely unreasonable. First, the contract, the discussion at the preconstruction meeting, clearly dictate that proper procedure includes written change orders prior to commencement of work.

Claimants reliance on IDOTs oral instructions on June 11, 1982, would have been entirely unreasonable in light of the foregoing. In addition, IDOTs letter of June 14, 1982, evidences the fact that the parties had not yet reached an agreement as to terms in regard to costs or materials. If Claimant had relied on IDOT’s oral instructions, their actions would have been contrary to the contract, the express mandates of IDOT, in addition to custom and practice.

Claimants actions were entirely reasonable and justified under the circumstances. Respondent improperly charged Claimant with liquidated damages in the amount of $15,200.

II. Whether IDOT properly refused to pay for the additional handling of material

Claimant contends that due to additional work not originally contemplated in the corltrati. Claimant was forced to handle materials several tiriies, therefore incurring additional expense of $6,360. Claimant seeks reimbursement for expenses incurred.

We disagree. Pursuant to special provisions to the contract identified as specification 152 — 3.2 and 152— 4.1 and the testimony of Jeff Plapp, CMT resident engineer, and Steve Moulton, civil engineer, the contract specifically states that the contractor would be paid for the handling of materials only once. Pursuant to the terms of the specifications,. the contractor would not be paid for handling the materials a second time. Jeff Plapp testified that he specifically advised Claimants foreman to minimize his handling of the materials because if he handled them twice he would only be paid for handling them once. The conversation between the parties was evidenced by an entry in Plapp s diary of job site activities.

The Claimants request for an award for additional expenses in the amount of $6,360 for additional handling of materials is without basis and appears to be specifically precluded by the terms of the contract.

Therefore, IDOT properly refused payment for additional handling of materials and an award to Claimant must be denied.

III. Whether IDOT properly refused to nav mobilisation costs.

Due to the Respondents delay in executing and issuing change orders, Claimant incurred “mobilization” costs for moving their equipment off the project. Mr. Dunteman testified that the costs were reasonable and necessary and totaled $3,657.55. IDOTs agent, civil engineer Steve Moulton, agredí that it is customary to charge for the movement of maqhinery where delays are not caused by the contractor. The Respondent did not address this issue in argumeit,.Jtn this case, the delay was caused solely by the inaction of the Respondent. It was entirely reasonable and customary for the contractor to move equipment not being used during the term of the delay. Neither the record nor argument advance any testimony or evidence that the costs incurred in moving the equipment were unreasonable.

An award for mobilization costs should be made in favor of Claimant in the amount of $3,657.55.

Conclusion

Claimant is denied an award for additional handling of materials.

However, an amount totaling $18,857.55, representing $15,200 for charges of improperly assessed liquidated damages and $3,657.55 for mobilization of equipment due to delays by Respondent, shall be granted.

Finally, as is often the case, the question of entering an award remains before the Court. This Court cannot enter an award unless sufficient funds remained unexpended in the appropriation made to fund the project. (Lowenburg/Fitch Partnership v. State (1986), 38 Ill. Ct. Cl. 277; Ude, Inc. v. State (1982), 35 Ill. Ct. Cl. 384.) There is no evidence before the Court from which the Court can determine if appropriated funds remained from which to make an award. Therefore, before entering an award for the Claimant or making a recommendation to the General Assembly, we need additional information. Respondent is ordered to file the fiscal data on this project, including the balance of funds which lapsed at the conclusion of this project and a list of any other claims against that money so that the Court can determine what amount of award can be made, if any. Respondent shall file this information with the Clerk of Court within 21 days.

ORDER

Mitchell, J.

This cause comes on to be heard following the Respondents response to our opinion filed March 10, 1995, due notice having been given, and the Court being advised, finds:

In the March 10,1995, opinion we found the Claimant suffered damages in the amount of $18,857.55 but did not enter the award due to the lack of fiscal information in the record. We then ordered the Respondent to provide that information within 21 days. The purpose for the deadline was to enable us to assess the information, enter another order, and present the matter to the General Assembly prior to its adjournment so that the Claimant would not have to wait an additional year to be paid.

On April 7, 1995, the Respondent requested a 30-day extension on the deadline. Had the Respondent complied with the order within that 30 days the Court would still have had sufficient time to act on the matter. Instead, on May 5, 1995, the Respondent requested an additional 30 days. Respondents information was not forthcoming within that period either and Claimant understandably felt the necessity to file a motion to compel. By the end of May the urgency became moot with the adjournment of the General Assembly.

To provide for payment of awards in claims of this nature the Court annually presents its decisions to the General Assembly for its consideration of appropriating funds. Proper and detailed fiscal information is needed to enable the Court to so advise the General Assembly, e.g. payment should be made from the appropriate source.

The information provided us in the Respondents untimely response is utterly useless. The response states $2,073.02 in State services “B” bonds remain which had been appropriated and $18,642.76 in Du Page County airport authority funds exist. As for the bond money, no appropriation account code numbers were provided, no explanation of where the money is was provided, and nothing was provided to indicate whether the appropriation lapsed or was rolled over. As for the airport authority funds the Respondent did not inform us as to where that money is, how the fund operates, or even if it could be used to pay the award. In addition there was no breakdown as to how the contract was to have been funded percentage wise with respect to the two sources of money nor was there any indication of whether or not other claims to that money have been made.

Counsel for IDOT in a letter attached to the Respondent’s response indicated he was “not exactly clear whether the court can order (IDOT) to expend the Du Page County Airport Authority Funds.” That is not the question. IDOT has been assessed damages. No request for reconsideration of the decision was filed. The decision is final. The question is whether IDOT can use the funds to pay the damages not whether the Court can order it.

If IDOT has access to either the bond money or the airport authority money and can expend it then it should do so as soon as is practical and report back to us. If IDOT cannot somehow manage to use the money to pay this claim we request that a more complete financial picture be presented sufficiently in advance of the next legislation session to enable us to present this claim.

ORDER

Mitchell, J.

This cause coming on to be heard on the Claimant’s motion for entry of an award. On March 10, 1995, the Court entered an order in favor of the Claimant, R. W. Dunteman Company, in the amount of $18,657.55. However, the Court noted that it could not enter an award unless sufficient funds remained unexpended in the appropriate made to fund the project. Eased upon the information provided by the Respondent, the Court now believes there are sufficient funds in which to pay the amounts found due in the March 10, 1995 order. Therefore, the Court enters an award of $18,657.55 to the Claimant, R. W. Dunteman Company. Furthermore, the Court holds that the Claimant did not provide sufficient evidence to justify the awarding of attorney’s fees and costs and the Court denies attorney’s fees and costs to the Claimant.

IDOT will pay the award.


author: Frederick, J. Frederick, J.

text:
    (No. 84-CC-2691
    Claire M. Jacobs and William E. Jacobs, Claimants, v. The State of Illinois, Respondent.

      Opinion filed August 28, 1996.

      Order on petition for rehearing filed April 21, 1997.

    Thomas F. Tobin, III, for Claimant.
    Jim Ryan, Attorney General (David S. Rodriguez, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Claire M. Jacobs, seeks damages of one hundred thousand dollars ($100,000) from Respondent for injuries Claimant alleges she received due to Respondents negligent maintenance of the southbound lane and shoulder of Barrington Road near the Barrington Tennis Club. Claimant, William E. Jacobs, presents a loss of consortium claim. The cause was tried before Commissioner Griffin.

Facts

Claimant, Claire M. Jacobs, testified that on April 5, 1982, at approximately 11:00 a.m., she was driving southbound on Barrington Road. It had just started to snow. She was traveling at 30 to 35 miles per hour. Claimant had just gone around a curve and was directly in front of what is now the Barrington Tennis Club when she hit something. She believes it was a pot hole. Her car veered to the right and she tried to steer to the left. The vehicle continued right, bounced around, and ended up in a field. She ended up some feet off the road. As the car left the roadway, Claimant was jerked around in the vehicle. When Claimant left her vehicle, she noticed that both tires on the right side of her vehicle were flat. Claimant walked back to the roadway and saw a big rut where her vehicle left the roadway. The hole was six to eight inches deep. Claimant identified photographs of the rut which were taken by her husband in June of 1982. The rut was not on the main part of the traveled highway. Claimant had her car towed and the tires and one rim repaired or replaced. She then made a police report so that the condition of the roadway would be reported and repaired. Claimant had never been in an accident before and had never had a blown tire before.

Claimant complained to the police about back pain but refused to have paramedics called. She advised the police she would see her own doctor and she went to her doctors office. Claimant saw Dr. Lloyd McCarthy, an internist. She was examined by Dr. McCarthy who stated, “You hurt today. You’re going to hurt worse tomorrow but you’re okay.” Dr. McCarthy was more concerned with a gash on Claimants knee than her back. Claimant was given medication for her knee and Roboxin and told to rest. Claimant testified that her back continued to get worse. She went to see Dr. Goldstein, an osteopath, for treatment. When the pain continued in her back, she went to see Dr. Lee, an orthopedic surgeon. Dr. Lee put her in traction and gave her a water treatment. She was in Sherman Hospital for three weeks. Claimant subsequently had a myelogram and evidently had two herniated disks. She then went to St. Maiys Hospital in Montreal, Canada. She saw Dr. Sutton who gave her chemonucleosis treatment. When Claimant returned from Canada, she had back spasms but the shooting pains down her legs were gone. She stayed in bed and her husband cared for her.

Claimant went back to work in September 1982, but just taught her classes. She received a handicapped sticker to park which she still has. She did not restart her private clinical practice until March of 1983. She had to rebuild her practice as a psychologist. She had to work with older children as she could no longer get down on the floor with the younger children she used to work with. At the time of the trial, Claimant continued to have back pain. She testified she has at least mild pain on a daily basis. She still had severe pain at least three days per week in 1995. She can no longer do many normal daily tasks and activities. Claimant has not shown dogs at shows since the accident as she cannot run her dogs around the ring.

Claimant had the following bills related to the accident:

Village Standard for towing & tires $ 46

Travel Inc. 316

Northwest Community Hospital 15

Dr. Lloyd McCarthy 359

Northwest Community Hospital 34.50

Sherman Hospital 5,292.80

Dr. B.U. Chung 466

Elgin Orthopaedics 435

St. Marys Hospital 3,312

Dr. John Sutton 1,400

Dr. John Sutton testified for Claimant by way of evidence deposition. Dr. Sutton is a board certified orthopaedic surgeon. Claimant, Claire M. Jacobs, became his patient in June of 1982. Claimant was suffering from left sciatica, which is pain radiating down the left leg. She had a herniated L4-5 disk. Dr. Lee had referred Claimant to Dr. Sutton. Dr. Lee had documented the herniated disk clinically and by tests. Claimants history was that she had been in a motor vehicle accident and after the accident she incurred back pain which, over several days, began to radiate down her left leg. Dr. Sutton examined the Claimant and it was his impression that she suffered from an acute L4-5 disk protrusion. The disk was herniated outside its normal confines compressing the left C5 nerve root. Dr. Sutton treated Claimant with chemonucleosis. By using a drug, the pressure on a compressed nerve root is relieved. Dr. Sutton opined that Mrs. Jacobs’ herniated disk is a permanent injury. Dr. Sutton also gave the opinion that he believes the car accident of April 1992, could have caused and in this case probably did cause her herniated disk.

Claimant, William Jacobs, is the husband of Claimant, Claire M. Jacobs. They were married in October 1948. Mr. Jacobs learned of his wife’s accident on April 5, 1982. In June of 1982, he went out to the scene and took a picture of the roadway. He pointed out an eight-inch difference between the roadway and the shoulder. Mr. Jacobs confirmed his wife’s treatment and condition.

Mr. Jacobs testified he has to do all of the household work and gardening that Mrs. Jacobs can no longer do. He also testified their sexual activity has declined since the accident.

Robert L. Lippman, a civil engineer, testified as an expert on behalf of the Claimants. Mr. Lippman testified that a shoulder should be the same height as the roadway. When a shoulder drop-off becomes more than three inches, it should be fixed immediately. A drop-off of an inch to three inches is tolerable but not safe. Mr. Lippman also indicated that there was an accident at the same site on March 16, 1981. He further testified that an accident report is a tool you use to determine if a road needs more inspection and what caused the accident. He felt that an accident report flags one to go out and look at the location. The March 14, 1981, report indicated that the driver in that situation was southbound on Barrington Road when she hit the shoulder, lost control of the car, and rolled the car. On the police report, the shoulder is noted as low and soft. This police report from 1981 should have been fixed immediately, according to Mr. Lippman. Mr. Lippman opined that the drop-off was more than six inches. There were no repairs made.

It was Mr. Lippman’s opinion that Claimant, Claire M. Jacobs, went on the shoulder with her two right tires, that she tried to get back on the road too fast. The differential was more than three inches. The scrubbing effect on the edge of the pavement caused her to lose the air in her tires and she lost control. The proper way for her to have gotten back on the highway would have been to slow down to a stop and then turn left. Mr. Lippman further testified that when people learn to drive they are told that if they get on the shoulder, to slow down, stop and get back on the roadway. This procedure is in the drivers manual. However, people who leave the road are surprised and human nature causes them to forget about what they learned and their reflex actions tell them to turn in “and that’s what causes all the accidents he has been listening to. That causes all the accidents that you have been hearing. The person is surprised, they forget what they learned, and they try to turn back on.”

It was the opinion of Mr. Lippman that Barrington Road was not properly maintained by the Illinois Department of Transportation whose duty it was to maintain that road.

Mr. Lippman did acknowledge that if the vehicle went off the road where Claimant indicated she went off the road, the vehicles tires wouldn’t have scrubbed at the point where the pictures indicate the shoulder had the drop-off. Mr. Lippman further acknowledged he could see no potholes on the road in the pictures taken in June 1982. Mr. Lippman did indicate that although he saw no pictures, the lack of maintenance of the shoulders in the one location could indicate lack of maintenance further down the road.

The Respondent called Michael Fitzgerald to testify as their sole witness. Mr. Fitzgerald was the claims manager for the Illinois Department of Transportation. He was familiar with Barrington Road at the location of Claimant’s accident. The Respondent’s records indicated that the road was constructed in 1932 and resurfaced in 1979. The Illinois Department of Transportation has a system in place to take complaints about roadways. All complaints are logged in and placed in the communication center in Schaumburg. He found no complaints on file for the roadway for April 5,1982.

Law

The State is not an insurer of the conditions of the highways under its control but does have a duty to the public to use reasonable care in maintaining its roadways. (Cataldo v. State (1983), 36 Ill. Ct. Cl. 23.) To prevail, the Claimant must prove the State was negligent, that the negligence of the State was the proximate cause of the injury, and that the State had actual or constructive notice of the alleged defect in the roadway where the accident occurred. (Edwards v. State (1984), 36 Ill. Ct. Cl. 10.) The Court will also consider comparative negligence of the Claimant in adopting an award. Alvis v. Ribar (1981), 85 Ill. 2d 1; Guffey v. State (1987), 40 Ill. Ct. Cl. 179; Koepp v. State (1993), 46 Ill. Ct. Cl. 344.

The Claimant drove off the roadway. There was no evidence presented to substantiate Claimants belief that she hit a pothole. Claimant had her vehicle towed prior to making a police report. No proper investigation of the accident was made by the police to locate the exact location where Claimant left the roadway and drove on the shoulder. The photographs taken by Claimants husband in June failed to show a pothole on the roadway. Claimant presented no proof of any pothole repairs at the location. The Court, therefore, finds that Claimant was negligent in failing to keep her vehicle on the highway. To compound Claimants negligence of driving off the roadway, Claimant failed to slow down, stop and get back on the roadway which was the proper procedure according to her own expert, Mr. Lippman. Claimant forgot what she had learned and tried to turn back onto the roadway. The cause of this accident and injury was Claimant negligently driving off the roadway and then negligently failing to slow down, stop ad then try to drive back onto the roadway. We find that it was Claimant’s negligence that caused the injury and was therefore the proximate cause of Claimants injuries. Scarzone v. State (1990), 43 Ill. Ct. Cl. 207.

Claimant had a duty to keep her vehicle under control and to drive at speeds reasonable and proper under the conditions that exist. (Harris v. State (1986), 39 Ill. Ct. Cl. 176.) This Court held that the adoption of the doctrine of comparative negligence in the State of Illinois did not extinguish the requirement of proximate cause. The failure to establish proximate cause of an injury precludes liability, negating the need to compare fault. (Nunley v. Village of Cahokia (1983), 115 Ill. App. 3d 208.) It is clear to the Court that the proximate cause of the accident was the negligent driving of Claimant. She could have avoided the accident by driving on the roadway instead of the shoulder and by slowing down and stopping prior to trying to drive back on the roadway when she did drive on the shoulder. Calvert v. State (1985), 38 Ill. Ct. Cl. 104.

Because we find that Claimant, Claire M. Jacobs, has failed to prove her claim by a preponderance of the evidence, Claimant, William E. Jacobs’, derivative loss of consortium claim must also fail.

For the foregoing reasons, it is the order of the Court that Claimants’ claims be and hereby are denied.

ORDER

Frederick, J.

This cause comes before the Court on Claimants’ petition for rehearing, and the Court having reviewed the Court’s opinion, the Court file, the briefs, and heard oral arguments, and the Court being fully advised in the premises,

Wherefore, the Court finds:

1. That Claimant drove off the road.

2. That while Claimant claimed she hit a pothole which caused her to drive off the road, no pothole was proven and in fact, Claimant’s photograph showed no pothole.

3. That instead of having the police sent to the scene, Claimant had her car towed from the scene.

4. That Claimants photographs were taken almost two months after the accident and without any competent proof that they showed the exact location where she left the road, allegedly scrubbed her tires, and where she ended up.

5. That the Court was and is unable to find that the location where she allegedly left the road and allegedly scrubbed her tires is the same exact location as the location of the prior accident claimant relies on for notice.

6. That Claimant violated the driving skills testified to by her own expert witness.

7. That this accident was caused by Claimant negligently driving off the road and negligently trying to reenter the roadway.

8. This Court has rarely found liability on the part of Respondent in shoulder drop-off cases and we decline to do so with the particular facts of this case and our assessment of the credibility of the witnesses. Doyle v. State (1993), 45 Ill. Ct. Cl. 194.

9. That the State has a duty to maintain the shoulder of its highways in a manner reasonably safe for its intended purposes but the standard of care is higher for a highway than the shoulder, since the reasonably-intended use of the highway requires a greater level of care than the shoulder. Tourloukis v. State (1995), 47 Ill. Ct. Cl. 155.

10. In the case of Alsup v. State (1976), 31 Ill. Ct. Cl. 315, this Court denied a claim where the evidence indicated the claimant failed to slow down prior to returning to the roadway. The Claimant in this case failed to slow down prior to trying to return to the roadway.

11. There is evidence in tins case that Claimant was attéripfi .ig to return to the highway just before the accident occurred.

12. In the case of Hill v. State (1978), 32 Ill. Ct. Cl. 482, the claim was denied because the Court found that the simple difference in the levels of the roadway and the shoulder of six inches was not negligent maintenance by the State.

For the foregoing reasons, it is the order of the court that Claimants’ petition for rehearing is denied.


author: Mitchell, J. Mitchell, J.

text:
    (No. 86-CC-0496
    Stanley Jurek, Claimant, v. The State of Illinois, Respondent.

      Order filed December 27, 1996.

      Order on petition for rehearing filed June 12, 1997.

    Michelotti & Associates, for Claimant.
    Jim Ryan, Attorney General (Paul H. Cho and Andrew Levine, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Mitchell, J.

This cause comes before the Court on Claimant’s complaint alleging that Respondent, State of Illinois, was negligent. Specifically, the Complaint alleges that on September 26, 1984, while Claimant was waiting in his cell, an unknown person or persons threw liquid containing bleach and scalding hot water upon his face and chest. The complaint alleges that on September 23,1984; Claimant requested to be placed in protective custody, due to threats from other prisoners and as of the date of the incident, had not been placed in protective custody. In essence, Claimant complains that Respondent failed to provide proper security to protect him.

A hearing was conducted on August 10, 1995, at which Claimant appeared and testified. Respondent presented one witness. The parties stipulated that the language contained in Claimant’s exhibit No. 1 states the rules and regulations in effect on protective custody at the time of the incident.

I. Testimony of Stanley Jurek

Mr. Jurek testified that in September of 1984, he was incarcerated at Menard Correctional Center (hereinafter referred to as “MCC”) and was in the south house. In September of 1984, a prisoner came to his cell and told him there was going to be a war and he needed Claimant to make a knife from a piece of metal, known as a “shank.” He had never seen him before. He identified himself as affiliated with the north side gang. Mr. Jurek told him he would not make a shank. That night the whole cell house was full of grinding sounds. Other inmates told him that day that there would be repercussions if he did not make the shank. They said something would happen to him. He had seen these prisoners before. He took their threats seriously.

Mr. Jurek called for a guard immediately and told him that he was being threatened and wanted to be placed in protective custody immediately. At this time no one was in his cell. He asked the guards several times to be put in protective custody. Finally, he was double-locked in his cell. When a cell is double-locked, it will not open automatically with the other cells. While double-locked in his cell, the guard let someone in the cell. Claimant complained to the guard that no one was to be added to his cell because he was on “pc lockdown.” That particular prisoner was let out of his cell at lunchtime.

Mr. Jurek was not allowed to go out of his cell. His meals were brought to him and served on a tray passed through the bars. When he went to grab for the meal, somebody came by and threw hot bleach in his face. It was extremely painful. Although the person was right in front of his cell, Claimant does not believe he can identify him.

His face, neck and shoulders were touched by the bleach and his skin was rolling off his face. A guard escorted him to the hospital. He was bandaged at the hospital. He was out of the hospital within a couple of hours. He was taken to an office. He was taken to minimum security. The bandages were on for several weeks and were replaced a couple of times. He was not placed in the protective custody area until after September.

Claimant identified Claimants exhibit nos. 2-A and 2-B as photographs taken of him in the visitors room. He knows they were taken after the incident, he does not know exactiy when.

On cross-examination, Mr. Jurek stated that the person who asked him to make a shank was white. He is sure the person told him he was in the north side gang, “at one time or another.” He may or may not have told bim this at the time of the “shank” conversation. He knew he was in the north side gang. He was not sure of the exact date of the “shank” conversation, and believes the hot bleach was thrown in his face the next day.

The prisoner who asked him to make the shank told him there would be repercussions if he did not make it. He did not explain what he meant. When he told the guards about the incident, they told him they needed a captain or lieutenant to authorize protective custody. Although he was still in general population, his cell was double-locked. There were no problems between him and the inmate that was placed in his cell for a couple of hours.

There was only one person who threw the bleach. He did not see the person because his meal was being handed to him through the bars. He does not know who it was. He knows it was not the person who had the “shank” conversation the prior day because that person was “a chief in a gang.”

He was questioned, but could not identify the attacker. He thinks the bandages were on for a couple of weeks and the photographs were taken in September.

On redirect, Claimant testified that he could identify the person who had the shank conversation as a gang member because of his clothes.

Claimant’s exhibit nos. 2-A and 2-B were admitted over Respondent’s objections. Claimant’s exhibit No. 3, medical records, were admitted without objection.

II. Testimony of Boniface Grace

Respondent presented Correctional Superintendent Boniface Grace. He was shift captain at MCC at the time of the incident. He stated that protective custody is for inmates that want to be separated from general population. When an inmate requests protective custody, he is seen by the assignment committee. If the assignment committee recommends protective custody, the inmate must await approval by the chief administrative officer. There is a protective custody unit, separated from general population. He described “protective custody deadlock” as a situation when an inmate requests protective custody and there is no room in the protective custody unit intake gallery. The intake galleiy is separate from the protective custody unit. When there is no room at the intake gallery, they deadlock the cell. The inmate stays deadlock until the inmate has seen the assignment committee, he is not considered to be in protective custody.

He identified Respondents exhibit No. 1 as an incident report that he signed. Respondents exhibit No. 1 was admitted into the record without objection.

III. Arguments

Claimant argues that Respondent was put on notice and had a duty of reasonable care toward Claimant. When an inmate requests protective custody, he must be promptly taken away from general population and put into protective custody. Claimant’s complaint does not request any specific dollar amount for damages and Claimant did not argue for any specific dollar amount of damages in his closing argument.

Respondent argues that it is not an insurer of the safety of inmates. Claimant has failed to show that the harm was foreseeable.

No briefs have been received.

IV. Summary

The parties agree that the State is not an insurer of an inmate’s safety. The parties also agree that the State must act reasonably in caring for the inmates’ safety. (Dorsey v. State (1977), 32 Ill. Ct. Cl. 449.) The difference is that Claimant contends that the State breached its duty of reasonable care by not removing Claimant from general population and placing him in the protective custody unit within what appears to be a time period of 24 hours within his oral request for protective custody. Section 501.320(a) of chapter 20 of the Illinois Administrative Code, specifies, inter alia, that:

“The employee to whom such a request is made shall promptly notify the Chief Administrative Officer or his designee. Reassignment from the general population to protective custody shall be accomplished as expeditiously as possible.”

Respondents exhibit No. 1 indicates that there was no room in the protective unit and that at the time of the incident, Claimant was on protective custody deadlock.

This case is similar to Butler v. State (1994), 46 Ill. Ct. Cl. 416. In Butler, an inmate complained about fear of a further attack and was placed in lockdown, or temporary protective custody, for three days. (46 Ill. Ct. Cl. at 417.) He was never directly threatened with bodily harm by the inmate who ultimately attacked him. He did not give the guards the name of the inmates he suspected were going to attack him. The Court found that the Respondents agent took steps to protect the claimant.

In the case at bar, it is clear from his testimony that Claimant recognized, or could have recognized, the person who initially had the "shank” conversation with him. He also said other prisoners told him of possible repercussions. Yet, he reported no names or otherwise attempted to identify the first individual, or others. The record indicates that Respondents agents took steps to provide a higher degree of protection for Claimant prior to the incident.

The Court finds that Claimant has not established by a preponderance of the evidence that Respondent breached its duty of reasonable care. This is based upon the record establishing that Respondent took action the same day that Claimant requested, i.e., placing the Claimant on protective custody deadlock, which was one day prior to the incident. The Claimant has not established that under these circumstances he should have been removed from general population prior to the incident or that Respondent otherwise breached its duty of reasonable care.

The claim is hereby denied.

ORDER

Mitchell, J.

This matter comes before the Court on Claimants motion for rehearing. The Court having reviewed the entire file and the applicable law reiterates that the Claimant has failed to establish by a preponderance of the evidence that the Respondent breached its duty of reasonable care. Therefore, Claimants motion for rehearing is denied and the original order dated December 27, 1996, is affirmed.


author: Jann, J.

text:
    (No. 87-CC-0364
    Jean Mable Woodring, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 8, 1997.

    Cook, Shevlin, Ysursa, Brauer & Bartholomew (Gregory Shevlin, of counsel), for Claimant.
    Jim Ryan, Attorney General (Nuviah Shirazi, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Jann, J.

The Claimant, Jean Mable Woodring, brings this action for compensatory damages pursuant to section 8 of the Illinois Court of Claims. (705 ILCS 505/8.) The Claimant asserts that she was injured as a direct and proximate result of negligence committed by the State of Illinois which allegedly resulted in a traffic accident on Interstate 57 in Pulaski County.

At approximately 2:40 p.m. on August 29, 1985, the Claimant was a passenger in a 1977 Impala station wagon driven by John D. Frey, Sr., who was working as a service car driver for the Illinois Department of Public Aid, hereinafter referred to as “the Department.” Mr. Frey was driving the Claimant from a doctor’s appointment in Carbondale to the Claimant’s home in Cairo. The medical transportation program was a service provided by the Department to recipients of public aid. Claimant was a public aid recipient. After passing one or more vehicles, Mr. Frey’s automobile drove off the right side of the road and struck a tree, killing Mr. Frey and injuring the Claimant.

After the accident, the Claimant was taken to Union County Hospital, where she remained for about a month. The Claimant suffered a dislocated left hip, fractured left pelvis, fractured lower right leg, fractured upper left arm, and contusions and lacerations to her chest, abdomen and right elbow. As a result of the injuries, the Claimant continues to suffer pain and has permanent scarring. The Claimant was unable to work for about eight months as a result of her injuries. She is seeking $21,138.02 for medical bills, $6,489.60 in lost wages, and an unknown amount for pain, mental anguish and possible future medical treatment.

The Claimant asserts that the Department was negligent in the following respect:

1. By and through its agent, servant or employee who failed to keep his vehicle under proper control.

2. Failing to adequately screen applicants, including Mr. Frey, for participation in the medical transportation provider program.

3. Failing to remove or revoke Mr. Frey’s privileges when the Department knew or should have known that such was necessary to prevent injury to the public aid clients, including the Claimant.

A hearing was held before Commissioner Clark on June 29, 1995, at which there was testimony for the Claimant; Stan Weder, custodian of records for the Illinois comptrollers office; Richard Branon, a former supervisor of the Department’s medical transportation unit; Donna Withrow, executive supervisor of the Department’s provider participation unit; Jessie Jean Ratliff, the Claimant’s former caseworker at the Department; and Lesley F. Honey, the Department’s county administrator for Alexander County. In addition, the Commissioner admitted into evidence the Claimant’s medical bills; the Claimant’s request to admit and the Respondent’s answers; a deposition from Mrs. Ratliff; the Claimant’s medical records; the application Mr. Frey submitted to become a provider of medical transportation services; the medical provider agreement between the Department and Mr. Frey; a record of public aid payments made to or on behalf of the Claimant for medical services stemming from the accident; prior approval requests recording the dates on which Mr. Frey drove the Claimant to doctors’ appointments; medical records of the Claimant; and portions of a transcript of testimony at an inquest hearing from Robert Peller, a witness to the accident. The parties submitted no briefs.

The Claimant testified that the procedure for receiving medical transportation from the Department was for her, as the client, to call workers at the local office of the Department and tell them that she needed to go to a doctor’s appointment'. She would tell workers at the office when her appointment was, and the workers would tell her who would take her to and from the appointment. Regarding Mr. Frey, the Claimant testified that she had driven with him before and did not like his driving. She stated that she was afraid of Mr. Frey’s driving because he was old (76 years old at the time of the accident) and because he could only use one hand because the other hand was atrophied. The Claimant testified that she told her caseworker, Mrs. Ratliff, of her concerns prior to the accident.

Prior to the accident, the Claimant arranged for transportation from the Department in the way described above. She testified that she was to be taken by a Rev. Oliver on August 29, 1985. However, the day before the Claimants doctor appointment, the Department called and informed the Claimants son that Rev. Oliver was unable to take tire Claimant and that Mr. Frey would drive her. The Claimant testified that she found out about the change late in the day, and it was too late to get in touch with the Department to get another driver.

The Claimant testified that the trip from Cairo to Carbondale was uneventful and that Mr. Frey committed no traffic violations during that time. The Claimant stated that on the return trip southbound on Interstate 57, a four-lane divided highway, Mr. Frey passed a green truck that was in the right lane. She said Mr. Frey then drove onto the grass on the median, back to the right lane and off the road. The Claimant testified that when Mr. Frey passed the truck, he was driving 62 mph.

Robert Peeler testified that he was driving a green military-type vehicle on Interstate 57 south from Carbon-dale to Cairo and was traveling at 50-52 mph. Mr. Peeler stated that Mr. Freys car passed him at approximately 57-58 mph, passed another car in front of him, then ran off the road and struck a tree.

The Claimant was hospitalized for about a month at Union County Hospital, where doctors put a pin in her arm. When the Claimant was released from the hospital, she wore casts on her right leg and left arm and was bedridden. She underwent in-home therapy until January 1986 and then went to therapy in Cape Girardeau until April or May 1986. The Claimant stated that she still has to do exercises and still suffers pain in her right leg, left arm, back and left hip. She testified that her left arm does not work as well as her right and that she has a five-inch scar on her upper left arm, a one and one-half inch scar on her chest, a half-inch scar on her abdomen and a two-inch scar on her right elbow. The Claimant stated that she also suffers from swelling in her ankle and leg. She said public aid paid for all of her medical and hospital bills from the accident, except for psychiatrist bills’.

The Claimant testified that she was an unemployed teacher at the time of the accident. She got a teaching job in 1991 for approximately $5.43 per hour. However, she had to quit that job because her injuries prevented her from climbing stairs. She was able to return to work eight months later.

Stan Weder, custodian of records at the Illinois Comptrollers Office, testified that service car providers, like Mr. Frey, are not considered to be employees of the State. There are no taxes withheld from their checks, they receive no state benefits, they do not receive a W2 income tax form, they are paid from a different fund than employees, and they are paid after submitting bills to the Department.

Richard Branon, former supervisor of the Departments medical transportation unit, also testified that service care providers were not considered employees. He stated that they are paid $7 for the first ten miles driven and 50 cents for each mile after that. The State does not provide cars, gasoline, nor repairs for service car providers. Mr. Branon testified that to become a service car provider, a person must fill out an application, be a licensed driver, and own his or her own vehicle. An applicant does not have to provide proof of insurance to the Department. Furthermore, there are no periodic reviews of providers’ performance, and providers do not have to reapply or renew their privileges. Mr. Branon stated that the Secretary of State’s office was the agency charged with dealing with whether drivers have insurance. However, the Secretary of State’s Office was not involved with the provider selection process. Mr. Branon did state that if the Secretary of State did not require drivers to have insurance, that would be a concern, and requiring insurance to cover client passengers would be desirable. In addition, Mr. Branon testified that public aid recipients needing transportation to doctors’ appointments would schedule their appointments and contact the Department for transportation.

Donna Withrow, executive supervisor of the Department’s provider participation unit, also testified that service car providers are considered to be independent contractors and not employees of the State. Ms. Withrow also testified that the medical provider agreement in which service car providers enter into states that providers must comply with federal and state laws. She also stated that there is no review process for providers. She testified that if state statutes required that a service car driver had to meet certain qualifications or get a certain type of insurance, the provider would independently be required to do so himself.

Jessie Jean Ratliff, the Claimant’s former caseworker at the Department, testified that the procedure for clients to receive medical transportation was that the. client would call his or her caseworker, and the caseworker would tell the client to call the provider. She stated that the Department rarely called providers for clients. Regarding the Claimant, Mrs. Ratliff testified that the Claimant had expressed a concern about Mr. Frey’s atrophied hand. However, she stated that she herself was not concerned about Mr. Frey’s ability to drive. On cross-examination, Mrs. Ratliff testified that she was never instructed about any procedure regarding handling complaints about a provider or regarding any problems with providers, but she assumed that she would go to her supervisor. On redirect, Mrs. Ratliff stated that she did not feel a need to go to her supervisor about the Claimant’s comments about Mr. Frey, and that the Claimant had a choice of who would provide medical transportation.

Lesley Honey, former caseworker supervisor, testified that he did not recall any complaints about Mr. Frey’s driving. He stated that he might want to know if a client did not feel safe with a certain provider, “but there wouldn’t be anything I could necessarily do about it.”

In order to recover against the State for negligence, the Claimant must prove by a preponderance of the evidence that the State had a duty to the Claimant, that the Respondent was negligent, that the negligence was the proximate cause of the Claimant’s injuries, and that Claimant suffered damages. Russell v. State (1990), 42 Ill. Ct. Cl. 83.

The Claimant first asserts the State was negligent through its agent or employee, Mr. Frey. A principal is liable for the acts of his agent committed within the scope of the agency. (Lewis v. Mount Greenwood Bank (1st. Dist. 1980), 91 Ill. App. 3d 481, 414 N.E.2d 1079, 46 Ill. Dec. 926.) Whether a contractor is a servant-agent or an independent contractor is an issue which focuses on the principal’s right to control the manner and method in which the work is to be done. Among the indicia used to evaluate whether such a right to control exists are the method of payment, right to discharge, the skill required, and the furnishing of tools and equipment. Id.

In looking at such indicia in light of the facts of the instant case, it appears that Mr. Frey was an independent contractor. Although there was no evidence presented on whether tire State had a right to discharge Mr. Frey, he was paid from a separate fund from traditional State employees, there were no taxes withheld from his pay, he was paid by the mile and not the hour, and he received no benefits. In addition, Mr. Frey furnished his own car. Therefore, we find that Mr. Frey was not an agent or employee of the State.

Regarding the second and third claims of the Claimant, there are two instances when a principal can be held liable for the acts of an independent contractor. First, if the act causing the injury was committed at the direction of the principal, or, second, if the principal failed to use reasonable care in the selection of the independent contractor, the principal can be held liable. (Lewis, 91 Ill. App. 3d at 487.) Regarding the first instance, it is clear in the case at bar that the act that caused Claimants injury was Mr. Frey driving off of the road and into a tree. The State obviously did not direct Mr. Frey to do this.

Regarding the second instance, this State has adopted the view of the Restatement (Second) of Torts sec. 411, which states:

“An employer is subject to liability for physical harm to third persons-caused by his failure to exercise reasonable care to employ a competent and careful contractor.
(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or
(b) to perform any duty which the employer owes to third persons.”

See Gomein v. Wear-Ever Aluminum, Inc. (1971), 50 Ill. 2d 19, 22, 276 N.E.2d 336. In Gomein, the Court found that the company that hired an independent contractor to solicit business for the company could be liable for an automobile accident that occurred while the contractor was driving during the course of his solicitations. (Id. at 24.) The Court stressed that the operation of an automobile was not an act collateral to the performance of the work for which the contractor was engaged, but it was part of the conduct directly involved in the performance of the work contracted for. (Id.) However, it must be noted that in Gomein, the Court reversed dismissal of the complaint. The Court did not decide whether the facts of the case supported a finding of liability.

Considering the facts in the instant casé, it is clear that Mr. Frey was directiy involved in the performance of the work contracted for when he was driving the Claimant home from the doctors office. Under the Restatement approach, adopted by the Court in Gomein, the State can be held liable for harm to the Claimant caused by the State’s failure to exercise reasonable care to employ a competent and careful contractor to do work which will involve a risk of physical harm unless it is skillfully and carefully done or to perform any duty which the employer owes to third persons. Operating an automobile does involve some skill and care. That is why drivers must take examinations and are issued licenses to lawfully drive in the State of Illinois. Furthermore, the State owes a duty to third parties such as the Claimant in that the State is providing a service for .public aid recipients and must attempt to make certain that service is rendered with skill and care.

However, the analysis does not end here. A cause of action for negligent hiring must establish that a particular unfitness of an independent contractor creates a danger of harm to a third person which the employer knew, or should have known, when he hired and placed the independent contractor in employment where he could injure others. (Huber v. Seaton (2nd Dist. 1989), 186 Ill. App. 3d 503, 508, 542 N.E.2d 464, 134 Ill. Dec. 285, cert, denied (1989), 128 Ill. 2d 633, 548 N.E.2d 1069, 139 Ill. Dec. 513.) In addition, the Claimant must also establish a causal relationship between the particular unfitness and the negligent acts of the agent. (Id.) In Huber, the Court reversed a jury’s verdict against a landlord whom the plaintiffs alleged negligently hired a plumbing contractor who left a valve open on a propane torch which burned down the plaintiffs’ home and destroyed their belongings. (Id. at 505.) The plaintiffs alleged that the plumber’s particular unfitness, of which the landlord should have been aware, was that the plumber was not licensed, as state law required, and that the plumber did not have liability insurance. Id. at 506-507.

In the instant case, the Claimant’s allegations are similar. Claimant asserts that Mr. Frey’s particular unfitness was that he had no liability insurance, as required by state law, and/or that he was an unfit driver because of his atrophied hand and age. Section 601 of Chapter 7 of the Illinois Vehicle Code states that no person shall operate, register or maintain registration of a motor vehicle designed to be used on a public highway unless the motor vehicle is covered by a liability insurance policy. (625 ILCS 5/7-601.) It may be negligent of the State to fail to ascertain whether its independent contractors were in compliance with state law and to fail to have in place some kind of procedure to re-evaluate its medical transportation providers for fitness to drive public aid clients.

However, as the plaintiffs in Huber failed to establish that the statutory violation of failing to have a plumbing license was the proximate cause of the plaintiffs’ injuries, the Claimant in the instant case failed to establish that either Mr. Frey’s lack of insurance or his atrophied hand was the cause of the Claimant’s injuries. Certainly it is clear that the failure to have insurance does not cause a driver to run off of a road and strike a tree. Mr. Frey’s physical condition could have caused the accident. The State had notice of Mr. Frey’s condition in that the Claimant reported to her caseworker that she was afraid to ride with Mr. Frey because of his hand and his age. However, no evidence — only speculation — was submitted as to whether Mr. Freys condition was in fact the cause of the accident. The Claimant has failed to prove by a preponderance of the evidence that Mr. Freys hand or age was the cause of the accident or that he was unfit to drive.

This claim is hereby denied.