text:
    (No. 77-CC-0663
    Robert Schneider, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 1, 1985.

    A. J. Nestor, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This case was consolidated with the case of Lloyd Harris. Both cases were given the number 77-CC-0663 in the Court of Claims. Mr. Schneider and Mr. Harris were both injured in the same accident.

This Claimant was seriously injured on April 22, 1975, as a result of a fall from a scaffold from which he was working while painting a State-owned traffic bridge located at the U.S. Route 50 overpass of the L & N Railroad tracks, one-quarter mile west of the intersection of Illinois Route 111 and U.S. Route 50 in St. Clair County, Illinois. The Claimant was employed by the Gus T. Handge Company of St. Louis, Missouri, contractor on this project. The project was supervised by Mr. Larry Lipe, a resident engineer, employed by the State of Illinois. He inspected the work being performed on a daily basis. The occurrence in question took place at approximately 9:45 a.m. on April 22, 1975. The fall was a result of a release of a scaffold cable upon which the Claimant was working.

The scaffold consisted of boards which were placed across and upon cables strung from one end of the bridge to the other. The cables were strung underneath the bridge and fastened to a shoe or roller of the bridge by looping the cable around the shoe or roller. The rollers or shoes on this bridge were metal cylinders which rested upon a plate, and the bridge beam in turn rested upon the shoe or rollers. The rollers were designed to allow and absorb motion of the bridge. One of the rollers to which the cable was fastened came loose, allowing the scaffold upon which the Claimant was working to fall. The Claimant was working approximately 25 to 28 feet from the ground, and as a result of this fall suffered serious and disabling injuries.

The Claimant suffered a severe comminuted fracture of the right tibia and fibula and a fractured medial malleolus of the right ankle. He also suffered a fracture of the body of lumbar 3rd and incurred medical expenses in the amount of $7,662.07. The orthopedic surgeon, Dr. Hurd, stated that in his opinion the Claimant will never be able to function as a painter, and that he is permanently disabled as a result of his injuries. The Claimant testified that he tried to work on a number of occasions after this injury. The first time was in December 1977, after being off work for more than two years. He was able to work for several weeks because of the nature of the job. He also worked as a maintenance painter, which did not require the effort as in construction work. He attended trade schools hoping to learn a new profession, but has been unsuccessful in finding permanent employment as of the date of the hearing in question. The Claimant’s doctor testified that the Claimant is unable to work as a painter and that this disability is permanent. It was further noted that the Claimant, prior to this accident, was 35 years of age, able bodied, and had been a painter for 14 years. It was also noted in the record that the Claimant had his income diminished from $15,000.00 and $16,000.00 in 1974 and 1975, respectively, to $1,641.00 in 1976, $1,042.00 in 1977, $8,197.00 in 1978, $1,346.00 in 1980, and zero in 1981.

According to the testimony of the witnesses and the briefs of the parties, it appears that the State of Illinois is liable for the injuries sustained by this Claimant. In the case at hand, evidence was undisputed that the Respondent’s resident engineer, Larry Lipe, had the right to stop the work in the event that humidity was too high, or if the work was being performed improperly. Mr. Lipe also had the responsibility to review the work on a daily basis, see that the contractor complied with the prevailing wage rate, see that minority groups were being used, that the contractor was complying with the Fair Employment Practices Act, and use the scaffold to inspect the specifications and progress of the job. Therefore, the State of Illinois’ resident engineer was clearly in charge of the work being performed on the structure, and therefore this case does come under the Structural Work Act. In the case of Burton Hosey v. State (1965), 25 Ill. Ct. Cl. 144, the Court held that the Structural Work Act was applicable to the State of Illinois.

Furthermore, the State’s own witness, Edward Jankowski, civil engineer for the Department of Transportation, testified at the hearing that the roller assembly was on a flat plat. He further testified that the State inspects its bridges to determine if the rollers are in a position to pop out, and if they are in a critical position, they are repositioned. He testified that the bridge does have some elongation or rotation action to the structure, and no matter how heavy, has a tendency to lift. Therefore, if there is tension on a roller, it can pop out.

In this case, the scaffold had no railings, nets, trussing to prevent swaying, or other safety devices such as lifelines, to prevent workmen from falling if the scaffold gave away. From the testimony of witnesses, it was stated that the cables which suspended the scaffold were fastened to a roller or shoe which was designed to move and was not, therefore, a secure object. It was this roller or shoe which came loose, thereby allowing the scaffold to fall.

Mr. Christopher Fox, salesman for Mareal Rope & Rigging, testified on behalf of the Claimant and stated that in his opinion, the wire ropes that were used for suspending the scaffolding should have been fastened to something more secure. In addition, he testified that safety belts or lifelines could have been used. He gave his opinion that the scaffold was not a safe place to work based on his knowledge of rigging and OSHA regulations.

It should also be noted that Mr. Lipe, resident engineer of the State of Illinois, testified that this job was bid without the type of scaffold being specified. He testified that if boom trucks, tubular scaffolding, or other more extensive scaffolding would have been erected, it would have increased the cost of the job.

Therefore, we award this Claimant the sum of $100,000.00 for his medical expenses, lost wages, and pain and suffering as a result of his injuries herein.


source: Caselaw Access Project

author: POCH, J.

license: Public Domain

text:
    (No. 77-CC-1168
    Lynn Mullen, n/k/a Lynn Mullen Hurst, Claimant, v. Board of Trustees of the University of Illinois, Respondent.

      Opinion filed November 21, 1985.

    Zimmerly, Gadau, Stout, Selin & Otto, for Claimant.
    Moore & Associates, for Respondent.
   POCH, J.

This is a claim for personal injuries brought by the Claimant against the Board of Trustees of the University of Illinois. The factual issues are not significantly disputed. There is no issue that the Claimant suffered severe personal injuries on July 4,1976, about 10:15 p.m. at or near a sidewalk on the campus of the University of Illinois in Urbana, Illinois.

The facts are briefly summarized as follows: Lynn Mullen was 19 years old in July 1976. She was confined to a wheelchair due to a bone disease that she had suffered since childhood. Since age 7 the Claimant has been confined to a wheelchair and used a wheelchair as a method of transportation. In the summer of 1976 the Claimant was not then enrolled as a student at the University of Illinois. She had previously been a student at the university.

On July 4,1976, the Claimant and her now husband Terry Hurst had gone to Memorial Stadium to see a fireworks display. Mr. Hurst was also confined to a wheelchair. They had pushed themselves to the stadium part of the way. About 10:00 p.m. the Claimant and Mr. Hurst left the stadium and pushed their respective wheelchairs towards their residence. They passed in front of Smith Music Hall on the sidewalk which was concrete.

As they passed in front of Smith Music Hall, Mr. Hurst was slightly in front of the Claimant and to her left. As she passed in front of that building the wheels to her wheelchair went off the curb. This caused the Claimant to fall out of the wheelchair and to land on the street. She suffered a broken left arm and both of her legs were broken with multiple fractures.

Before the Claimant fell she said she had seen the concrete walk but did not see the drop-off or curbing. At the hearing before the commissioner the Claimant said the lighting was not very distinct. Prior to the hearing the Claimant had given a statement that the lighting, was “bright” in front of Smith Music Hall. The Claimant said she never saw the curb. She had lived at a residence hall within four blocks when she was á student. Prior to attending the university, the Claimant had not received specialized wheelchair training other than attending an orientation lecture in reference to wheelchairs. She felt such specialized training was not necessary.

The Respondent presented evidence through the director of rehabilitation, Timothy Nugent, concerning the facilities for handicapped. This included an orientation program for incoming students, with emphasis being placed on the needs of each particular handicapped student. There was also a facility for care and modification of wheelchairs with recommendation made for the height of wheelchair foot platforms. Mr. Nugent was unaware of any other similar incidents in front of Smith Music Hall, which was about six years old. That building utilized night classes, including those taken by handicapped students.

The Claimant called the university traffic engineer, James H. Trail, in support of her claim. He is responsible for all traffic control devices on campus and supervises maintenance and upkeep of sidewalks, buildings, streets and curbs on campus. The sidewalk in front of Smith Music Hall is on university property. The highest elevation in front of Smith Hall between the service drive and the sidewalk was five inches. There were no signs posted to indicate a drop-off from the sidewalk to the service drive. There are no markings on any buildings indicating a drop-off on university sidewalks.

The Claimant’s husband, Terry Hurst, testified that his wheelchair fell off the curb before the Claimant’s. He called out to her. He was prevented from falling out of his chair because the chair foot platform stopped his fall. His wife’s foot platforms were 3/4 of an inch higher due to her lack of height.

There was no dispute that the mercury vapor street lights were operational on July 4, 1976. The injuries sustained by the Claimant and the extent of her treatment, care and rehabilitation were not disputed, and based upon the decision of this Court herein it is not necessary to detail the medical evidence.

The Claimant alleges that the Respondent, University of Illinois, owed her a duty of care because it failed to make the area safe for pedestrians, including those who were handicapped. She claims the university did not warn of the drop between the sidewalk and service drive where she fell.

The Respondent asserts that there was no duty owed to Claimant because her accident and resulting injuries were not reasonably foreseeable. The Respondent also alleges that there was no proof offered to show the university created a defect or dangerous condition and lastly that the negligence of the Claimant was the sole proximate cause of her injuries.

It is well settled that the owner of any premises, where invitees may enter, must keep such premises in a reasonably safe condition. This duty extends to an owner to provide a reasonably safe means of ingress and egress from the premises. (Jones v. Granite City Steel Co. (1969), 104 Ill. App. 2d 379, 244 N.E.2d 427, 429.) This duty does not make the Respondent an insurer against all types of accidents. Before the Claimant, as an invitee, is able to recover she must show that the premises were in a defective condition; that the defective condition was created by the university as landowner or that a defective condition was in existence for such a period of time as to know of it and to correct it and that the defective condition caused the injury. (Longnecker v. Illinois Power Co. (1978), 64 Ill. App. 3d 634,381 N.E.2d 709; Restatement, Second, of Torts, sec. 343.) There is no obligation to protect the invitee against dangers which are known, or which are so obvious and apparent that the invitee may reasonably be expected to discover them. Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465.

It is also well settled that in order to recover there be a duty to Claimant to protect her against an unreasonable risk of injury. There can be no recovery unless Claimant can prove the university breached a duty owed to her. The question of such a duty, if any, is a question of law to be determined by the Court because such a duty is based on a theory of fault. Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538.

The Claimant offered no evidence that showed the design or the construction of the sidewalk was defective. The defect alleged is the existence of the curb itself without what Claimant perceives to be adequate warning of its existence. The testimony of Mr. James Trail showed that neither the university nor the cities of Champaign and Urbana post markings at wheelchair curbs and ramps. The Claimant therefore could not have reasonably anticipated that the curb from which she fell would be marked.

In Sepsey v. Archer Daniels Midland Co. (1981), 97 Ill. App. 3d 867, 423 N.E.2d 942, the Court held that a visitor is responsible to see any open and obvious area and thus is expected to discover them. Thus the landowner is not required to give precautions or warnings where such dangers are evident in order to exercise the duty of reasonable care towards invitees.

In the instant case, even if the drop from the curb to the drive was characterized as a danger, it would be of such an obvious nature that no warning by the university would be necessary.

In Storen v. City of Chicago (1940), 373 Ill. 530, the Court stated that a municipal corporation is not bound to keep its streets and sidewalks absolutely safe for persons passing over any part of them; rather its duty is to exercise ordinary care to keep them reasonably safe for persons who exercise ordinary care.

The university has exercised the necessary degree of care. The testimony shows that the mercury vapor street lights at the scene of the accident were working on the night in question. Claimant stated in a deposition that on the night of the accident the area in question was “light.”

In this case the curb and sidewalk were not defective. The surface of both the sidewalk and service drive were smooth and flat. The lighting was adequate. Photographs introduced into evidence support this finding. There were no defects or obstructions on the sidewalk or service drive. The existence of curbs on sidewalks is common knowledge to all and should have been known to Claimant. The presence or absence of a curb is not a defect in and of itself. (Storen v. City of Chicago, supra.) There was no evidence offered or claimed that there was a design defect in the sidewalk area. There were no cracks or obstructions on the sidewalk. See also, McKinley v. City of Chicago (1939), 299 Ill. App. 58.

From an analysis of all the evidence, we conclude that the university had no duty to warn the Claimant of the presence of a curb. There is no proof that the curb area was an unreasonable risk of harm to Claimant. There is no evidence presented to cause the Respondent to anticipate all possible accidents. The Respondent exercised reasonable care under the facts of this case. The fact that the Claimant was unfamiliar with the exact area is not persuasive. She was travelling at a normal pace when she fell. While her injuries were unfortunate, the law does not impose the duty of being an insurer upon the Respondent.

Because there was no breach of any duty to the Claimant, it is unnecessary to discuss whether or not she was contributorily negligent. In the absence of any negligence by the Respondent, the Claimant is barred from any recovery.

The claim of Lynn Mullen, now known as Lynn Mullen Hurst, is hereby denied.


author: Montana, C.J. Montana, C.J.

text:
    (No. 77-CC-1524
    Edwin W. Dunteman, Jr., Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 5, 1985.

      Order on motion for reconsideration filed August 16,1985.

    Baker & Bellatti, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

Claimant, Edwin W. Dunteman, Jr., brings this claim for alleged breach of contract by the State. The contract in question is the alleged lease of a certain tract of farmland located at the Illinois Youth Center, St. Charles, Illinois, owned by the Illinois Department of Corrections.

The relationship between the Claimant and the State began in March of 1970 when the Claimant signed a lease with the Department of Corrections for the farmland. The lease provided that the Claimant would farm the land and pay a certain amount to the Department of Corrections. This lease was extended until December 19,1971, by a written agreement of both parties. The same practice was followed in 1972, when the lease was extended to December 31, 1972. Thereafter, however, the leasing arrangements between the State of Illinois and Claimant became informal, and the previous written formalities were not followed.

According to the Claimant, in order to farm the land in question profitably, the land must be prepared for farming during the fall so that it may be harvested in July of the following year. For example, preparation for the crop that would be harvested in July of 1973 would be accomplished by the farmer in the fall of 1972. This immediately presents a problem for the farmer, since the lease agreements normally run from January 1 to December 1. The farmer is therefore placed in the undesirable position of having to prepare the ground for planting in the fall of the year despite the fact that his lease will end before the crop is harvested the following year. Such a situation gave rise to this claim.

In order to solve this dilemma, the Claimant routinely entered into oral negotiations with Victor Lenkaitis, the farm manager for the Illinois Department of Corrections at the St. Charles facility. According to the Claimant, he and Mr. Lenkaitis would begin conversations sometime after the harvest every year to determine whether the Claimant’s lease was to be renewed and whether it was permissible for him to begin planting for next year. Mr. Lenkaitis would then contact his superiors and notify Claimant after a decision had been made.

The Claimant testified that this was the procedure followed in 1972 and that he farmed the land under an oral agreement to renew the contract through the end of 1973. He further states that the same procedure was followed in 1973 to allow him to farm the land for the 1974 harvest. The State has produced no evidence to dispute this.

The parties began using written contracts again in 1975. The evidence shows that in June of 1975 the State of Illinois, through the Department of General Services, entered into a written contract with the Claimant for the lease of the land in question retroactive to January 1, 1975, and effective through December 31,1976.

After the harvest in 1976, the same problem arose that had occurred in previous years. The Claimant was once again left in the position of having to decide whether to begin preparing the ground in the fall of 1976 for the harvest in 1977, given the fact that his lease expired on December 31,1976.

The Claimant states that at this point he did the same thing which he did every year — that is, he contacted Mr. Lenkaitis and asked whether he should go ahead with the planting. The Claimant states that Mr. Lenkaitis told him to proceed and that the documents would follow later. Mr. Lenkaitis, on the other hand, testified that when he contacted his superiors in 1976 concerning the lease for the year 1977 he could not get a definite answer and he informed the Claimant of that fact. He also told the Claimant that based on past practices “we would plan to continue it as we had been unless we heard differently.” Mr. Lenkaitis then testified that he observed the Claimant preparing the field for planting in the same manner that he had every other year. When asked whether he had done anything to stop the Claimant from planting, Mr. Lenkaitis testified that he had not. When asked whether he had instructed the Claimant to begin planting Mr. Lenkaitis testified that he had not. When asked if he had the authority to enter into a lease with the Claimant for this property, Mr. Lenkaitis testified that he did not have that authority.

Both the Claimant and Mr. Lenkaitis agreed that they heard nothing further concerning the renewal of the lease until December of 1976. At that time Mr. Bietsch from the Department of General Services contacted the Claimant and informed him that there would be a change in procedures and that the land in question would be leased by a bidding procedure effective January 1,1977. The Claimant testified that this was the first time he had heard about the bidding procedure and that he immediately protested, but to no avail.

In January of 1977 bids were submitted to the Department of General Services by several farmers in accordance with bidding instructions issued by the Department of General Services. Instruction No. 5 stated “the State of Illinois Department of General Services reserves the right to reject any or all bids.”

Despite his protest that the entire procedure was improper and unfair, the Claimant decided that it would be in his best interest to enter into the bidding. The Claimant therefore submitted a bid to the Department of General Services along with several other farmers, and these bids were duly opened on January 17, 1977. The Claimant was the high bidder with a bid of 61.2 bushels per acre. There were three other bids, of 43.6 bushels per acre, 32 bushels per acre, and 22 bushels per acre, respectively. The Claimant states that after he was informed that he was the highest bidder but before the formal agreement was signed with the Department of General Services, he purchased the seed and chemicals necessary for planting the crop. On February 4,1977, the Claimant was advised by the State by letter that all bids were being rejected and the farmland in question would be rebid. The Claimant and his attorneys immediately protested to the Department of General Services and the Governor. In his protest the Claimant stated that he felt that it was unfair to make him bid against himself and that he would not participate in the second bidding. In keeping with this position, the Claimant did not submit a second bid, and the lease was awarded to another farmer who submitted a bid of 46.0 bushels per acre. The Claimant then brought this action against the State of Illinois for breach of contract.

It is the opinion of the Court that this claim should be denied because there was no valid contract between the Claimant and the State. The Claimant bases his contract claim on the oral representations of Mr. Lenkaitis from the Illinois Department of Corrections. That reliance is misplaced. It is a well settled principle of law that in dealing with an agent of the State one must ascertain at his peril the authority of the agent, and the mere assertions of the agent are not sufficient to bind the State. (Midwest Truck Sales & Auto Disposal v. State (1979), 33 Ill. Ct. Cl. 82.) The testimony in this case clearly indicates that not only did Mr. Lenkaitis not have the authority to bind the State of Illinois but also that the Claimant knew that Mr. Lenkaitis did not have the authority to bind the State of Illinois, since Mr. Lenkaitis always had to check with his superiors before relaying any commitment to the Claimant. Furthermore, the Claimant was aware of the formal requirements of the State when it came to lease agreements, since he had entered into several written lease agreements in the past. While it is true that the Claimant had entered into oral lease extensions in the past, the Claimant knew that there was confusion surrounding this lease contract in question and proceeded at his own peril.

Furthermore, even if there were a valid contract, the Claimant failed to mitigate his damages, as is his duty by law. The law is clear that a Claimant must do all in his power to mitigate his damages. (Sullivan v. State (1967), 26 Ill. Ct. Cl. 117; Slaughter v. State (1979), 33 Ill. Ct. Cl. 174.) In this instance the Claimant could have mitigated all of his damages by simply refiling his original bid to lease the property. Claimant’s argument that to submit a second bid in this case would have been to bid against himself is not a proper defense. Under the terms of the original 1977 bidding instructions, the State was entitled to reject any and all bids. Until such time as the State formally accepted the Claimant’s bid and entered into a contract with him, no contract existed between the State and the Claimant. The State had no duty to accept the Claimant’s original bid, nor did the Claimant acquire any rights by virtue of his original bid. Thus, any relationship that could have arisen by virtue of Lenkaitis’ representations to Claimant was voided by Claimant’s failure to make all reasonable efforts to mitigate his damages. The Claimant’s failure to perform the simple act of resubmitting a bid which had already been prepared was an unreasonable refusal to mitigate his damages.

Accordingly, this claim is denied.

ORDER ON MOTION FOR RECONSIDERATION

Montana, C.J.

This cause coming to be heard on Claimant’s motion for reconsideration, all parties having been given notice and the Court being fully advised in the premises;

It is hereby ordered:

That Claimant’s motion for reconsideration is denied.


author: Raucci, J.

text:
    (Nos. 77-CC-1644, 78-CC-1995 cons.
    Sansherma Bahn and Millicent Systems, Inc., Claimants, v. The State of Illinois, Respondent.

      Opinion filed September 23, 1985.

    William T. Huyck, for Claimants.
    Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

These cases, which we have consolidated for the purpose of this opinion, are founded in contracts between the corporate Claimant and the Respondent.

Millicent Systems, Inc. (“Millicent”) is owned solely by Sansherma Bahn (“Bahn”). Bahn, however, does not have any individual claim and he is dismissed from this action.

The primary claim (78-CC-1995) involves a contract for consulting work in computerizing the contributions section of the Bureau of Employment Security (BES). The basic premise of this contract was that a federally-funded group in Louisiana (UISDC) had developed a computerized system of collecting employer taxes which it would modify for use in Illinois. The Federal government suggested that Federal funds would be available if Illinois would use the Louisiana system which was a Federal government project, set up as a model which other States were to use. The Illinois contractor was to convert the system from one computer system (CICS) to another (IMS) and help install the system at BES.

Work on the contract was frustrated from the very beginning by the failure of the Louisiana group to provide the materials and manpower it had promised. After a great deal of effort had been expended, the State realized that it would have to change the scope of the project so as to develop its own system from scratch. Work on the contract was stopped, and the reformulated contract was rebid, being awarded to another firm. No notice of termination was given to the Claimant, Millicent Systems. Millicent is seeking damages for breach, consisting of the agreed contract price, less the costs of completion or the sum of $143,638.

Consolidated with the primary claim is a claim under a contract for keypunching work on an hourly basis, for $9,135.75 (77-CC-1644).

Claimants also ask for prejudgment interest, attorney fees and costs.

Respondent offered no testimony or other evidence to rebut the Claimants’ claims or calculation of damages. Respondent only contests the claim for interest, attorney fees and costs. The Respondent had agreed to a settlement of the claim which was not approved by the Court. These claims were on a general continuance because of a companion matter that was pending in the U.S. District Court for the Northern District of Illinois.

The primary contract involved the installation of a computer system in the contributions section of the Bureau of Employment Security (BES) of the Illinois Department of Labor. It was the function of this section to assess and collect unemployment taxes from employers. The project, itself, consisted of taking a system which was developed on different machinery, different hardware, in what they call CICS, and to have it rewritten into an (MS) data base format, which is what the State of Illinois uses.

From the unrebutted testimony and evidence adduced by Claimants, the Claimants have proved these claims in the amounts sought.

Claimant seeks prejudgment interest on its claims. Such interest is barred by Coach Corporation of Freeport v. State (1949), 18 Ill. Ct. Cl. 156. Additionally, our supreme court has held that interest against the sovereign will not be imposed in the absence of an affirmative statutory provision. (City of Springfield v. Allphin (1980), 82 Ill. 2d 571, 578, 413 N.E.2d 394, 397.) Similarly, Claimant’s request for costs must fail. Department of Revenue v. Appellate Court (1977), 67 Ill. 2d 392, 396, 367 N.E.2d 1302,1304.

Claimant also seeks attorney fees and expenses because of “denials, made without reasonable cause and found to be untrue” pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat., ch. 110, par. 2— 611). That section does apply to the State, but the denials complained of arise because of our Rule 10, which provides for a general denial in all cases. Respondent cannot be characterized as being “unreasonable” in its “denial” when the record reflects that the Respondent stipulated to an award which we did not approve.

It is therefore ordered that Claimant, Millicent Systems, Inc., is awarded $143,638.00 in full and complete satisfaction of the claim in case No. 78-CC-1995, and Claimant Millicent Systems, Inc., is awarded $9,135.75 in full and complete satisfaction of the claim in case No. 77-CC-1644.

It is further ordered that Claimant Sansherma Rahn is dismissed, with prejudice, as a party.


text:
    (No. 77-CC-2248
    Douglas Price, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 20, 1985.

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

This case arose from an accident which occurred on April 18, 1977, on Sauk Trail at its intersection with Richton Road in Richton Park, Cook County, Illinois. Claimant Douglas Price was driving a 1975 Dodge Club Cab pickup truck westbound on Sauk Trail. Respondent Governor’s State University owned an International Harvester school bus which was being operated by Patricia O’Connor eastbound on Sauk Trail.

O’Connor was proceeding eastbound and drove into the left-turn-only lane on Sauk Trail in order to make a left turn northbound on to Richton Road. The light was green and she pulled into the intersection. When the light turned yellow, she first spotted the Claimant, who was approximately 100 feet west of the intersection. She estimated Claimant’s speed to be 35 m.p.h. at that point.

O’Connor noticed that two cars had already stopped in the south lane of westbound traffic facing her. She noticed that Claimant, now approximately 50 to 60 feet away, appeared to be slowing and she stopped momentarily to see if he’d stop. The light changed to red and O’Connor attempted to complete her turn. At this point the collision occurred.

Claimant testified that he was traveling 35 m.p.h. immediately prior to the accident. However, he claims that he reduced his speed to 25 m.p.h. when he entered the intersection. The posted speed limit for Sauk Trail at the accident location is 30 m.p.h. Claimant stated that the light for. him was yellow at the time of the accident. Claimant testified that there was another school bus situated in the eastbound left-turn lane of Sauk Trail which obstructed his view of traffic in the intersection from the time he was at the crest of the hill to the point of the accident.

The testimony regarding Claimant’s speed at the time of the accident is conflicting. Speed, therefore, has become a question of fact for this Court to consider. Claimant, Price, on direct examination, testified at trial that he was traveling 35 miles per hour immediately prior to the accident, but that he reduced his speed to 25 miles per hour when he entered the intersection. The speed limit applicable to the subject portion of Sauk Trail was 30 m.p.h.

On cross-examination the Claimant stated the following:

“Q. Now, at time as you were approaching the intersection, did you increase or decrease or stay at the same speed?
A. I was at a steady, even speed.
Q. You never reduced your speed prior to reaching the intersection?
A. No.”

The weight of the evidence refutes Claimant’s assertions as to his speed and reveals that he was traveling in excess of the speed limit at the time of the accident.

Patricia O’Connor estimated Claimant’s speed to be 35 m.p.h. when she first spotted him at the crest of the hill approximately 100 feet away from her. She attempted to complete her turn only after the two westbound cars, already at the intersection, had stopped and the Claimant’s vehicle appeared to be slowing. When the light changed to red, she attempted to complete her turn.

The Illinois Motor Vehicle Code, section 11-601, states in pertinent part:

“The fact that the speed of a vehicle does not exceed the applicable maximum speed limits does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection . . Ill. Rev. Stat. 1983, ch. 95½, par. 11 — 601(a).

Claimant had a duty to reduce his speed because he was approaching an intersection. In the case of Kocour v. Mills (1959), 23 Ill. App. 2d 305, 156 N.E.2d 241, a motorist is,

“under a duty to anticipate that the stop light (controlling traffic at the intersection) might change. . . . He (defendant) should have had his automobile under such control that he could have stopped it without running into other traffic lawfully upon the highway and lawfully stopped at the intersection.” (Supra, 311). See also, Landess v. Mahler (1938), 295 Ill. App. 489,15 N.E.2d 13.

In the instant case, Claimant had a duty to anticipate that the light might change. Although there is some discrepancy over whether the light was red or yellow at the time of the collision, the light did, in fact, change. Further, Claimant admitted that his view of traffic in the intersection was entirely obstructed as he approached. It is apparent that Claimant was under a duty to decrease his speed as he approached the intersection and to keep his vehicle under such control that he could have stopped it without striking the school bus.

In Lode v. Mercano (1979), 77 Ill. App. 3d 150, 395 N.E.2d 1014, the court stated:

“The duty of a driver at the intersection controlled by traffic control signals has been codified in section 11 — 306 of the Illinois Vehicle Code. Vehicular traffic facing a green light may proceed through the intersection but must yield the right-of-way to other vehicles and pedestrians lawfully within the intersection. ... A motorist’s right of way is not absolute. He must drive, as a prudent person would, to avoid a collision when danger is discovered or should have been discovered by the exercise of reasonable care.” (Emphasis added.) 77 Ill. App. 3d 150, 154. See also Prignano v. Mastro (1965), 61 Ill. App. 2d 65,209 N.E.2d 12.

The matter was also addressed in DePaepe v. Walter (1979), 68 Ill. App. 3d 757, 386 N.E.2d 875:

“Even if it be presumed for sake of argument that plaintiff entered the intersection on a green light and defendant went through a red light, the question of liability remained to be decided by the jury.
A driver cannot rely blindly on a green light. (Citing Prignano.) A green light does not give an absolute right to enter an intersection without maintaining a proper lookout and does not prevent a finding of negligence against a driver.” 68 Ill. App. 3d 757, 760.

O’Connor was not available to testify at the. hearing in this cause, but her prior discovery deposition of August 11, 1978, was admitted into evidence without objection.

The deposition of O’Connor clearly supports the fact that she observed Claimant’s vehicle approaching approximately 100 feet prior to the intersection. When the traffic control light changed from green to yellow, she

“. . . stopped momentarily to see if Price was going to stop. He appeared to be slowing and I continued on and he sped up at the same point I hit the gas »

In Brostoff v. Maida (1977), 45 Ill. App. 3d 871, 360 N.E.2d 568, the court stated:

“Motorists who have a green light may assume the intersecting traffic will stop. (Yehnich v. Capalorgo (1962), 38 Ill. App. 2d 199, 186 N.E.2d 777.) Although the right-of-way is given to the motorists having the green light, plaintiffs correctly point out that the preferred motorist is not excused from acting with reasonable care.”

O’Connor also had the duty to maintain a proper lookout, and the failure to do so may constitute negligence even where she had the right-of-way over another motorist with whom she might collide. As such, the question of negligence and proximate cause of the accident is properly a question for the finder of fact.

The weight of the evidence supports the conclusion that both drivers were negligent for failing to exercise reasonable caution and care while in the intersection.

The Claimant sought damages in the amount of $15,000.00, but the testimony adduced by Claimant established that the out-of-pocket damages were $9,547.76. The damages are premised on the total loss of the 1975 Dodge pickup truck. Although the Claimant did not deduct any amounts for the 1M years of depreciation on the 1975 Dodge pickup, this Court finds that the amount of $3,000.00 is a fair and reasonable deduction for Hi years of depreciation.

In conclusion, this Court finds that the driver of the bus was negligent and that the Claimant was 50% contributorily negligent. The Court further finds and enters its award to the Claimant in the amount of $3,273.88, being the sum of one-half of the $6,547.76 depreciated value of the 1975 Dodge pickup truck.


author: Holderman, J.

text:
    (No. 78-CC-0633
    Mooney Construction Company, Claimant, v. The State of Illinois, Department of Transportation, Respondent.

      Opinion filed April 7, 1986.

    Maureen J. McGann-Ryan, Ltd., for Claimant.
    Neil F. Hartigan, Attorney General (Erin O’Connell, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

On June 9, 1971, Claimant Mooney Construction Company entered into a contract with Respondent, Illinois Department of Transportation, for bridge deck repair work of some 46 miles of bridges on Route 74 in Champaign and Vermilion Counties, commonly known as contract No. 32636. There were approximately seven miles of highway on which the work was to be performed and there were several separate worksites contained within this seven-mile stretch.

In June of 1977, an agreement was reached by and , between the parties under which the terms of the original contract No. 32636 were allegedly altered at the suggestion of Claimant.

Claimant seeks damages for costs incurred in the employment of extra flagmen which were ordered by Respondent in the amount of $23,289.76, plus interest.

Claimant’s position is that the original contract was altered by the agreement of June 1977. The State relies on the standard specification for road and bridge construction and standard 2316-4 regarding the use of flagmen.

It is conceded that Claimant has performed all work contained in the contract and that it was satisfactory and acceptable, the only dispute being who should pay for the extra flagmen.

In the seven-mile stretch of highway on which the work was to be done, there were to be two flagmen when the lane is tapered off by barricades. One flagman is to be positioned at the beginning of the taper and one at the peak of the taper. There were approximately 25 locations along this seven-mile stretch and the dispute for this claim arose when Respondent ordered Claimant to place two flagmen at each of the locations. The evidence shows that the Department of Transportation allowed a variation to the 2316 standard which provided for traffic control at each work area by allowing the contractor to barricade a seven-mile, one-lane closure. The purpose of this variation was to provide one open stretch for the travelling public, thereby requiring only one closure instead of multiple closures. This reduced the number of flagmen required since they were only needed at one closure instead of several closures.

The record clearly indicates that at a preconstruction conference for this job, it was agreed by and between Claimant and Respondent that standard 2316-4 would be lengthened for approximately seven miles, the entire length of the project. The requirement, therefore, of separate setups of standard 2316-4 was waived by Respondent and thus only one taper was required pursuant to the agreement.

The agreement regarding the lengthening of standard 2316-4 was based upon a proposal made by Claimant. Barry Rinehart, a permit engineer with the Department of Transportation, testified that Claimant’s proposal was accepted.

The issue is whether the agreed modification of standard 2316-4 also modified the definition of “work area” as it relates to the contract. Based on the testimony of Claimant and Barry Rinehart, there is no question that the preconstruction modification to reduce several tapers to one taper, resulting in one operation or lane restriction, necessarily modified the definition of “work area.” As such, the entire seven-mile stretch constituted one work area requiring only two flagmen, pursuant to standard 2316-4.

It is undisputed that Respondent required Claimant to provide additional flagmen. Article 104.03(b) provides, in part, as follows:

“Extra work which is not included in the contract as pay items at unit prices and is not included in other items of the contract shall be paid for as specified in Article 109.04.”

Claimant, in the regular course of his business, sent invoices to Respondent during the year 1977 for dozens of extra flagmen which Respondent required Claimant to provide on the job site. The statements were admitted into evidence.

Based on the foregoing, the Court finds that the contract (standard 2316-4) was modified by the parties causing the entire seven-mile stretch of roadway to have one taper at the beginning and one taper at the end. As the result of this modification, the entire seven-mile stretch constituted one work area because one operation or lane restriction eliminated the necessity for separate work areas. Thus, the Court finds the extra flagmen were not required by the contract as modified and that Claimant complied with the contractual provisions regarding “extras.” The Court further finds no basis in law to award interest on the amount due Claimant.

Award is hereby entered in favor of Claimant in the amount of $23,289.76, which represents the cost of employment of the extra flagmen which the Court finds were not necessary.


text:
    (No. 78-CC-0892
    Michael Bauer, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 20, 1985.

    Heyl, Royster, Voelker & Allen (John A. Ess, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

On July 31, 1977, the Claimant was upon the premises of the Illinois State fairgrounds in Springfield, Illinois, in a playground area with his wife and two minor children. The Claimant used a swing and, while doing so, the seat broke loose, causing him to fall to the ground. The swing had a wide strap rubber type seat and was connected to a bracket with rivets which, in turn, were connected to chains suspending the seat. The swing broke where the strap was connected to the bracket. The accident occurred while the Claimant was swinging in a 60-degree arc, front to back. There were no signs, notices or warnings present concerning the swings, playground or use of equipment and one swing of a similar size had already been broken.

When the swing broke, the Claimant fell to the ground, injuring both hands and both ankles; the left ankle being fractured in the fall. He was treated with medication and casting of the ankle.

The equipment was owned and maintained by the State under the charge of Willard Reside who was carpenter foreman. Mr. Reside testified that the equipment was inspected about twice yearly and the last inspection prior to the date of this accident was probably during the month of May, but could have been during the month of April. No records were available regarding any inspections or repairs done. The swings were adult size, there were smaller swings, and no signs were posted concerning use of swings.

On prior occasions, several swings had broken at the same place as Claimant’s accident.

This Court has previously stated the standard of care required of the State. In Bugle v. State (1967), 26 Ill. Ct. Cl. 173, another State fairgrounds injury case, we stated:

“A person who is on the premises of another by invitation, express or implied, of the owner, has the legal status of an invitee. A business owner’s duty to a customer, as an invitee, is to exercise reasonable care to discover defects or dangerous conditions on the premises, and a business owner is liable for injuries resulting from a condition, which he could have discovered in the exercise of reasonable care.”

And, in Kenny v. State (1956), 22 Ill. Ct. Cl. 247, we held that the State “was obliged to use ordinary or reasonable care” in keeping the fairgrounds safe. On this record before us we find that the State did not use ordinary and reasonable care.

The State’s reliance on Judge Holderman’s opinion in Claycomb v. State (1981), 35 Ill. Ct. Cl. 200, is misplaced. In Claycomb, the injured party, a 14-year-old boy, had been “popping” the swing and jumping out of it. Additionally, the swing had been inspected nine-days earlier. Here, the Claimant was using the. swing in a manner consistent with safe practice, and the inspection was three to four months earlier.

It is the Court’s opinion that the State was negligent in failing to exercise reasonable care to properly and adequately inspect, maintain and repair the swing equipment. The evidence established that at various times there were broken swings, and the State cannot ignore their existence or excuse it based upon the size of a facility.

Claimant suffered damages in the amount of $266.10 for medical treatment. Additionally, he lost 10 days work which equals $608.00 in wages. Therefore, his total loss amounts to $874.10.

At the time of the hearing, Claimant still experienced pain at various times from his injuries. Additionally, he encountered difficulty in running and jogging. The State did not contest these representations.

It is therefore ordered that'. Claimant is awarded three thousand and 00/100 dollars ($3,000.00) in full and complete satisfaction of this claim.


text:
    (No. 78-CC-0949
    David Batzer and State Farm Mutual Automobile Insurance Company, Claimants, v. The State of Illinois, Respondent.

      Opinion filed November 27, 1985.

    Costigan & Wollrab, for Cláimants.
    Neil F. Hartigan, Attorney General (G. Michael Taylor, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This cause coming to be heard upon the joint stipulation of the Claimant and the Respondent, due notice having been given, and the Court being fully advised in the premises, finds as follows:

The parties have filed with this Court a joint stipulation which provides, in pertinent part, as follows:

1. That on the 29th day of May 1977, Claimant, David Batzer was the owner of a 1970 Oldsmobile station wagon automobile which he was driving in a northerly direction on U.S. Highway 66-55 in McLean County, Illinois, at the intersection of said highway with U.S. Highway 136.

2. That at the intersection of Highways 136 and 66-55 on said date there was a traffic control device controlling access to the intersection by vehicular traffic on either of the two stated highways.

3. That the responsibility for the maintenance of said highways and said traffic control devices was vested in the State of Illinois.

4. That the Claimant, David Batzer, had a collision at the said intersection of U.S. Highway 66-55 and U.S. Highway 136.

5. That said accident has given rise to this suit before the Court of Claims of the State of Illinois.

6. That in the interests of avoiding protracted litigation the Respondent consents to an award in the amount of nine hundred dollars ($900.00) to the Claimant. Consent to this award is not an admission of liability on the part of the Respondent and the Respondent does not admit liability. Connolly v. State (1983), 35 Ill. Ct. Cl. 838. The Claimant consents to accept said amount in full satisfaction of his claim.

While this Court is not bound by such settlements, the Court has no desire to create controversy where none exists and the terms proposed in the joint stipulation appear to be reasonable and freely entered into.

It is therefore ordered that an award is entered in favor of the Claimant in the amount of nine hundred dollars ($900.00), said award being a full and complete satisfaction of Claimant’s complaint.


text:
    (No. 78-CC-0967
    County Sales and Supply Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 9, 1986.

    Sam Weber, for Claimant.

      Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

An agreed statement of facts was filed and briefs by the parties were then filed.

This is a claim involving replacement of two pairs of air conditioning compressors at a cost of $6,170.16 plus sales tax. This tax accounts for the discrepancy between this amount and the amount being claimed. The original contractor on the project was Triangle Heating Company of Belleville, Illinois, which apparently installed the compressors in May of 1976. However, the superintendent of Triangle, Mr. Mulholland, left the employ of Triangle and became employed by Fritz Plumbing and Heating. At this point the sequence of events becomes confused. The confusion exists as to whether Mr. Mulholland left Triangle before the original replacements were ordered or whether he left between the time of the original replacement being ordered and the second replacement being ordered. In any event, it appears that the State employee involved at Menard Psychiatric Center, preferring to deal directly with Mr. Mulholland, and apparently believing that the compressors were still under warranty, contacted Mr. Mulholland for both replacements. The State employee’s understanding was that there would be no charge. Fritz Plumbing and .Heating then ordered at least one of the sets of compressors from County Sales and apparently accepted both sets from them for installation at the institution. Fritz Plumbing and Heating then installed the compressors, after which it developed that there was a dispute by the manufacturer as to whether the original compressors were still under warranty.

While it appears to us that the compressors would have still been under warranty because of the dates on the two invoices relating to the delivery of same from County Sales and Supply, we need not decide that issue.

There was no bidding procedure followed as required by section 6 of the Illinois Purchasing Act (Ill. Rev. Stat. 1977, ch. 127, par. 132.6(5)), for contracts in excess of $2,500.00. Furthermore, as set forth in paragraph 6 of the agreed statement of facts, there was also a failure to place the contract in writing. This failure violated section 10 of the Illinois Purchasing Act. (Ill. Rev. Stat. 1983, ch. 127, par. 132.10.) Finally, the Mechanics’ Liens Act provides for a procedure for the filing, by subcontractors, of liens against public funds and the perfecting of said liens. (Ill. Rev. Stat. 1983, ch. 82, par. 23.) At common law, a sovereign enjoyed immunity and there was no mechanism under which subcontractors could perfect a claim against the State. In derogation of the common law, the statute on liens provides for a procedure for the filing of liens and the perfecting thereof, but it must be followed precisely. It was not followed at all in this case.

This is a claim by a supplier who is attempting to enforce payment directly against the State of Illinois, when in fact he dealt with a contractor (Fritz). There was no valid contract between the State of Illinois and the contractor nor was there any degree of privity between the State of Illinois and the supplier of the items furnished to the contractor.

It is therefore ordered that this claim is dismissed with prejudice.


author: Roe, C.J. Montana, C.J.

text:
    (No. 78-CC-1063
    Gertrude Gendel and Ruth Lew, individually, and as representatives of all others similarly situated, Claimants, v. The State of Illinois, Respondent.

      Opinion filed December 15, 1982.

      Order filed September 9, 1983.

      Opinion filed July 11, 1984.

      Order filed September 12, 1985.

    Jacob R. Cohen, for Claimants.
    Neil F. Hartigan, Attorney General (Robert J. Sklamberg and Francis M. Donovan, Assistant Attorneys General, of counsel), for Respondent.
   Roe, C.J.

Claimants, Gertrude Gendel and Ruth Lew, both individually and in a representative capacity on behalf of all others similarly situated, brought this action seeking to recover from the State sums of money paid as and for premiums to enroll in part B of the Medicare program and interest thereon from the date of the entry of judgment in the proceedings brought heretofore in the circuit court of Cook County.

Claimant, Gertrude Gendel, is an “annuitant” and Claimant, Ruth Lew, is an “employee” as those terms are defined by sections 3(b) and 3(k) respectively of the State Employees Group Insurance Act of 1971 (hereinafter “the Act”). (Ill. Rev. Stat. 1983, ch. 127, par. 523.) Sometime after the Act was enacted by the legislature, the Director of the Department of Personnel (hereinafter “the Director”) who was charged with implementing said Act, issued the following directive:

“The State Employees Group Insurance Act of 1971 REQUIRES THAT, WHEN PERSONS ARE ELIGIBLE FOR MEDICARE, STATE PLAN BENEFITS WILL BE REDUCED BY THE AMOUNT OF MEDICARE BENEFITS. When Claims are submitted for members covered by Medicare, benefits payable under the State Plan are calculated in the normal manner; benefits payable under Medicare are then subtracted from the State Plan benefit amount; and any difference due is paid by the State Plan. The result is that Medicare and Non-Medicare members receive the same net total benefits.
Medicare Part ‘B’ — (Physician Care) — Everyone 65 years of age and over is eligible for Medicare Part B and the minimum cost is currently $6.30 per month. The State program assumes all eligible persons will enroll in Medicare Part B and pay the premium cost. IF YOU DO NOT ENROLL IN PART B, THE HEALTH INSURANCE CARRIER WILL DEDUCT FROM ANY STATE PLAN BENEFITS ALL AMOUNTS WHICH PART B WOULD HAVE PAID.”

In a class action filed in the circuit court of Cook County as Gendel v. Jones, 76 CH 2420, Claimants contended that the directive cited above violated several provisions of the Act. Claimants sought relief to declare the Director’s existing policy violative of section 10(a) of the Act, and to the extent covered individuals would continue making premium payments for Medicare part B coverage, the Director would reimburse said individuals for the amounts so paid. Ill. Rev. Stat. 1983, ch. 127, par. 530(a).

The circuit court granted the requested relief on October 19,1976, by an order granting Plaintiffs’ motion for summary judgment. The order was stayed pending appeal and enforcement thereof suspended.

The issue on appeal involved an interpretation of two provisions of the Act. Section 10(a) provides in pertinent part:

“The State shall pay the cost of the basic non-contributory group life insurance and group health insurance on each eligible employee and annuitant, and part of each eligible employee’s and annuitant’s premiums for health insurance coverage for his dependents as provided by Section 9.”

Section 6 provides in part:

“The group health insurance program shall be designed by the Director (1) to provide a reasonable relationship between the benefits to be included and the expected distribution of expenses of each such type to be incurred by the covered employees and dependents, and (2) to include reasonable controls, which may include deductible and co-insurance provisions, applicable to some or all of the benefits, or a coordination of benefits provision, to prevent or minimize unnecessary utilization of the various hospital, surgical and medical expenses to be provided and to provide reasonable assurance of stability of the program, and (3) to provide benefits to the extent possible to employees throughout the State, wherever located, on an equitable basis.
Where a covered employee or annuitant, or any of their covered dependents, are eligible for benefits under the Federal Medicare health insurance program (Title XVIII of the Social Security Act as added by Public Law 89-97, 89th Congress), benefits paid under the State of Illinois program will be reduced by the amount of benefits paid by Medicare, with premiums adjusted to an amount deemed by the Director to be reasonably consistent with the reduction of benefits.”

Plaintiffs argued that to the extent class members were required to pay premiums for insurance coverage while all State employees under 65 years of age received full coverage without cost to themselves, the Director had violated the mandate of section 10(a) of the Act. Defendants asserted that the policy instituted by the Director was within the authority conferred upon him by section 6 of the Act as set forth herein.

The appellate court in its opinion held that the Director could not effectuate policies in reliance on section 6 which rendered meaningless other provisions of the Act. Hence, the court found that the State was required to pay for the entire insurance coverage, and to the extent the Director’s policy required otherwise, that the directive exceeded the authority granted the Director. The court concluded by stating:

“To the extent that the Circuit Court of Cook County determines the rights of the plaintiffs to full coverage without additional cost to themselves, it is affirmed; to the extent it might be construed to purport to enter a monetary judgment against the State of Illinois, it is reversed.” Gendel v. Jones (1978), 58 Ill. App. 3d 739,744.

In accordance with the appellate court’s decision, Claimants filed this action seeking to recover a monetary judgment against the State in the amount of premiums paid by class members in contravention of the statute.

Initially, we find that this matter is properly before the Court as a class action pursuant to the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 801 et seq.) and the Court of Claims Rules 2 and 4. The class, which comprises some 24,000 individuals, is so numerous that joinder is impracticable. There are questions common to the class which predominate over any questions affecting only individuals, e.g., whether Claimants are entitled to recover a monetary award from the State, whether interest is allowable on any such award, etc. The representative parties will fairly and adequately protect the interests of the class as was demonstrated through their able representation in the circuit court proceedings. The class action is an appropriate vehicle for resolving this controversy as the number of Claimants is large while the amount due each is relatively small, thus avoiding the necessity of processing approximately 24,000 separate claims.

Claimants contend that the obligation of the State to provide group life and group health insurance coverage is contractual in nature and, therefore, failure to provide the same constitutes a breach of contract. We are constrained to find that the Act does not create an enforceable contractual right on behalf of the Claimants. Aside from the other contractual prerequisites of offer and acceptance, we find that there was no consideration passing from Claimants to the State. Claimants have not shown something bargained for and given in exchange for a promise (Restatement of Contracts section 75). Furthermore, Claimants cite no authority for the proposition that a statute enacted by the legislature creates contractual rights in the beneficiaries thereof.

Claimants rely on Syracuse Teachers Association v. Board of Education (1973), 345 N.Y.S.2d 239, in support of the proposition that the Act provided a fringe benefit which became part of the contract of employment. We find the Syracuse Teachers case distinguishable from the instant case. In the former, the teachers negotiated a “sick leave bank” provision as part of its contract with the school district. No such negotiations took place in the instant case, nor have Claimants shown the existence of any contract between the State and themselves.

Claimants next contend that annuitants are members of a pension system of the State of Illinois and that membership in the same “shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.” Towards that end Claimants assert that the benefits afforded by the Act are benefits of membership in the pension system. The mere fact that the legislature chose to define “annuitant” (Ill. Rev. Stat, ch. 127, par. 523(b)) by reference to the definitions contained in the Illinois Pension Code does not, of itself, evidence any intent to so tie the two statutes.

We do find that this Court’s jurisdiction has been properly invoked pursuant to section 8(a) of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.8(a)). Thereunder, Claimants have stated a claim against the State founded upon a law of the State, to wit a violation of section 10(a) of the State Employees Group Insurance Act of 1971 as set forth hereinabove. That section of the Act required the State to bear the entire cost of the group life and group health insurance program. To the extent that the Director required individuals to pay premiums for Medicare part B coverage, the appellate court of Illinois held that the Director was acting in excess of his authority.

We find that section 10(a) of the Act imposed a statutory duty upon the State acting through its agents, to wit the Department of Personnel, to pay the cost of the specified insurance coverage. By requiring certain individuals to pay the premiums on Medicare part B coverage, the Director, although acting in good faith, violated the provisions of the statute for which plaintiffs are entitled to recover.

Respondent prefaces its arguments by asserting that the violation complained of herein sounds in tort and the doctrine of respondeat superior is therefore applicable. Along these lines, Respondent contends that the State would only be subject to liability where the individual (agent) who performed the suspect action would himself be liable. In this instance, Respondent argues, that since the Director would be immune from liability based on the immunity granted public officials for discretionary acts in their official capacity, the State should also be immune from liability. Because a public official may enjoy immunity for acts done in official capacity in courts of the judicial system, it does not necessarily follow that the State has similar or derivative immunity in this Court. Moreover, while the authority to administer the insurance program was granted to the Director, we would be hesitant to find that the actions complained of were “discretionary” with its meaning as a term of art. Respondent’s arguments misperceive the purpose underlying the grant of jurisdiction to this Court.

In order to circumvent the harshness of the common law rule regarding the immunity of the sovereign to suits by its citizens, the courts invented the judicial fiction that where the State was acting through one of its agents and the latter acted in excess of his authority, an action could be maintained against the agent although such a suit was not considered to be a suit against the State. (People v. Kingery (1938), 369 Ill. 289, 292.) We are not so hampered by the restrictions regarding suits against the sovereign, for the legislature, through statutory enactment, clothed this Court with jurisdiction to entertain such actions. (Ill. Rev. Stat., ch. 37, par. 439.8 et seq.) Pursuant to that authority, this Court is empowered to enter monetary judgments against the State and has in fact entered such judgments in the past.

Additionally there have been several recent cases from the Federal courts which bear heavily on the issue. On September 15, 1981, a Federal judge in the U.S. District Court, (N. Dist., E. Div.), entered an order approving settlement of several issues in Illinois Health Care Association v. Quern, No. 77 C 1109. That case was a class action by a group of nursing home operators and others against the former Director of the Illinois Department of Public Aid and other State and Federal government officials seeking declaratory and injunctive relief for their failure to make proper reimbursement to the nursing home operators for expenses they incurred for the care of indigent patients under the Medicaid program. Although that court was barred from entering a monetary judgment against the State of Illinois because of sovereign immunity, the State made a multimillion-dollar cash payment to the plaintiffs and agreed to increase its contributions to them for the care of Medicaid patients for several million dollars more to dispose of the issues. At the time of the settlement, several claims by the nursing home operators were pending in this Court. Participation in the settlement by the individual nursing homes was conditioned upon their stipulation to dismiss with prejudice their claims pending in this Court.

In Acoff v. State (1981), 35 Ill. Ct. Cl. 364, this Court entered an award in the amount of $466,727.37 for 17,659 Claimants pursuant to a stipulation among the parties in settlement of litigation brought in the U.S. District Court entitled Carey v. Quern, No. 75 C 3908, which resulted in a finding by the Court that the Illinois Department of Public Aid had wrongfully withheld certain general assistance benefits which the Claimants therein had not received and the General Assembly appropriated the funds to pay said award by P.A. 82 — 738.

In Peltz v. State (1981), 34 Ill. Ct. Cl. 284, this Court entered an award for $522,863.83 for 3,811 Claimants under similar circumstances. There the Claimants alleged entitlement to benefits under the aid to aged, blind, and disabled program administered by the Director of the Department of Public Aid. The award arose out of a settlement by the parties of litigation in a U.S. District Court case entitled Jordan v. Quern, No. 70 C 10.

In Coppotelli v. State (1981), 35 Ill. Ct. Cl. 328, we awarded $483,020.00 to approximately 280 employees of the Illinois Secretary of State’s Office. The case arose out of a settlement of an action filed in the U.S. District Court for the Eastern District (now Southern District) of Illinois. The Claimants therein were female driver examiner aides who unsuccessfully applied for or were available and qualified for the higher position of driver examiner. The suit alleged discrimination by the Secretary of State and certain supervisory personnel in his office against the Claimants because of their sex, in that females were in practice and policy eligible only for positions as aides while males were provided jobs as driver examiners.

There are strong similarities between those cases and the claim at bar. In each of the first three cases cited above a director of a department of the State of Illinois refused to make payments to a class of persons who claimed to be entitled to them under the law. In the last of the cited cases a constitutional officer of the State was alleged to have committed certain acts which were said to have deprived the class of rights to which they were entitled. Litigation in the courts followed. In at least the first three cases the State raised the issue of sovereign immunity. The actions taken by the persons sued were no more or less discretionary than in the case at bar. The courts took jurisdiction on the theory that the suits were not against the State but its officials, who were alleged to have exceeded their authority in refusing to make the payments the plaintiffs sought or violating plaintiffs’ rights. The claims were filed in this Court because it was the only tribunal which could enter an award against the State. The State in this case has resisted payment on a theory equally applicable to the above cited claims which it subsequently agreed to pay. And it should be pointed out that those cases were not settled or paid pursuant to the Representation and Indemnification Act (Ill. Rev. Stat., ch. 127, pars. 1301, 1302), which specifically provides for the State’s representation and indemnification of its employees in certain instances where suit is brought against them arising out of acts or omissions within the scope of their employment.

We find, notwithstanding Respondent’s assertions to the contrary, that this action arises out of a breach of a statutory obligation and does not sound in tort, that the doctrine of respondeat superior is not applicable, and that the Claimants are entitled to recover the damages they sustained stemming from the policy implemented by the Director.

Claimants seek to recover interest from October 19, 1976, at the rate of 6%. To the extent that Claimants are seeking an award of interest on a judgment, we hold that no judgment has been heretofore entered upon which interest could accrue. The circuit court was without power to enter a monetary judgment against the State as was stated in the appellate court’s opinion. Rather, the circuit court entered a prospective order requiring the Director to reimburse individuals who subsequently paid the premium for Medicare part B coverage. In effect, that court restrained the Director from requiring that covered individuals pay the premiums for part B coverage. No monetary judgment was entered upon which interest could accrue.

To the extent that the Claimants are contending that, had the State been a private litigant, the circuit court would have entered judgment against it for damages, and the judgment would have borne interest as provided by statute, consider that we have consistently held that the State of Illinois is not liable for the payment of interest on claims in this Court in the absence of a statute expressly subjecting it to such liability. (Mooney Construction Co. v. State (1982), 35 Ill. Ct. Cl. 116; Caymen Associates Ltd. v. State (1980), 33 Ill. Ct. Cl. 301; Noltemeier v. State, 79-CC-0621.) We do not consider Ill. Rev. Stat., ch. 74, par. 3, as having any applicability to proceedings in the Court of Claims as the State is not expressly mentioned therein. Our interpretation is bolstered by the fact that various bills have been introduced in the legislature in recent years to subject the State to the payment of interest on awards made by this Court and none have passed.

Additionally, Claimants contend that this Court has power to award interest based on equitable principles. In support thereof Claimants cite G. H. Sternberg & Co. v. Bond (1975), 30 Ill. App. 3d 874, 333 N.E.2d 261, and Steen v. State, 29 Ill. Ct. Cl. Ill. Claimants obviously are relying on the language in the second to last paragraph of the Sternberg case, to wit:

“It is clear that the jurisdiction of the Court of Claims is not limited to money ‘claims,’ and that one may pursue remedies in the Court of Claims other than for the recovery of a sum of money.” (30 Ill. App. 3d 874, 333 N.E.2d 261.)

Insofar as this language may be construed to mean that the Court of Claims has equitable jurisdiction, such construction is erroneous. It is noteworthy that in seeking relief in this Court following the decision in that case, Sternberg dropped its claim for equitable relief. The cases cited by the appellate court in Sternberg, in the same paragraph quoted from above, do not lend support to Claimants’ position. Allen v. State (1915), 2 Ill. Ct. Cl. 404 and New Era Construction Co. v. State (1928), 6 Ill. Ct. Cl. 88 were decided under a different Court of Claims act than is now in effect. The “equity and good conscience” test was abolished by the 1945 Court of Claims Act. (See McCay v. State (1951), 21 Ill. Ct. Cl. 90.) Fuhrer v. State, 22 Ill. Ct. Cl. 144, the other case cited in the aforesaid paragraph, is irrelevant to the issue at bar. The Steen case, supra, is also irrelevant as that case dealt with an alleged discrepancy between the size of jury verdicts and awards made by the Court of Claims.

The Court of Claims is a court of limited rather than general jurisdiction. Pursuant to article 13, section 4 of the 1970 Constitution of Illinois, the Court of Claims has only such jurisdiction as stated in section 8 of the Court of Claims Act and related statutes. (Ill. Rev. Stat. 1981, ch. 37, par. 439.8.) Nowhere has the Court been granted equitable powers. It cannot even enforce its own subpoenas but must go to a circuit court for enforcement. Therefore, those cases cited by Claimant for the proposition that courts of equity allow interest where justice requires it, Duncan v. Dazey (1925), 318 Ill. 500, 149 N.E. 495, and Galler v. Galler (1975), 61 Ill. 2d 464, 336 N.E.2d 886, are inapposite. The legislature is well aware of this Court’s interpretation of law regarding interest and has failed to pass, despite numerous attempts, authorizations for the Court to award interest on claims of this nature. We are constrained to deny Claimants’ claim for interest.

Finally, we turn to Claimants’ attorneys’ request for an award of fees. In the light of the foregoing, we hold that an award of reasonable attorney fees is appropriate. We hereby grant Claimants’ attorneys 60 days from the entry of this order to present a petition for attorney fees. Whereafter we will make a determination as to an appropriate amount, said amount to be deducted pro rata from the total refund found to be due and owing Claimant class.

Judgment is hereby entered in favor of the Claimants on the issue of liability only in accordance with the above.

ORDER

Roe, C.J.

On December 15, 1982, this Court rendered its opinion in the above entitled matter in which it held that the named Claimants and the members of the class they represent are entitled to recover from the State of Illinois the damages they sustained stemming from the policy of successive directors of the Department of Personnel which required them to enroll in part B of the Medicare program and pay the premiums therefor or have their benefits under the State employees’ group health insurance program reduced by the amount of benefits such enrollment would have provided. It found that this policy breached the State’s statutory obligation to pay the entire cost of the insurance coverage.

To assist the Court in the implementation of its finding of the State’s liability, it re-referred the matter to the Hon. Joseph P. Griffin, commissioner. The commissioner has heard the parties and has rendered his report to this Court. The Court, being fully advised in the premises finds:

1. The parties have stipulated that:

(a) “It is agreed that if the State is liable in damages for any period, each award shall be in an amount equal to the sum of the Part B Medicare premiums applicable to each month in that period within which the class member was 65 years or older.”

(Stipulation, par. 14.)

(b) The policy of the successive directors of the Department of Personnel, which the Court found to be a breach of the State’s obligation to the members of the class, was in effect during the period commencing January 1,1972, and ending June 30, 1978.

(Stipulation, par. 3.)

(c) The federally established premium rates for Medicare part B coverage for the periods here involved are:

(Stipulation, par. 6.)

2. The members of the class who are eligible for an award are all “employees” and “annuitants,” as those terms are defined in the State Employees Group Insurance Act of 1971, who were 65 years of age or older on January 1, 1972, and those who thereafter attained that age prior to July 1,1978.

3. Each eligible member of the class is entitled to an award equal to the sum of the part B Medicare premiums applicable to each month during which he or she was covered by the Illinois employees’ group health insurance program within the period commencing on January 1, 1972, and ending on June 30, 1978, within which the member was 65 years of age or older, reduced by the pro rata share of attorney fees attributable to the award based upon the Court’s estimate of the total entitlement of all eligible members of the class.

4. It is the obligation of the Respondent to give each eligible member of the class personal notice of his or her rights under the opinion of this Court, and to take all reasonable steps to disseminate such information to those whose identity is unknown after a search of the relevant records of its departments, agencies, boards, commissions, universities and retirement systems, by publication of notice in appropriate news media.

It is therefore ordered:

1. Based upon the information in its records and that available to it from all other sources, the Department of Central Management Services shall mail to each eligible class member, or if the member has died, to such member’s beneficiary, a notice and a statement of entitlement in the form attached to this order and made a part hereof, within 120 days of the entry of this order.

2. An award shall be entered in favor of each eligible class member in the amount stated in his or her statement of entitlement, less attorney fees, unless the member has objected thereto or requested exclusion within the time and in the manner set forth in the notice. If the member has died, his or her rights may be exercised by the member’s administrator or executor or, if no estate has been opened, by the person or persons entitled thereto under section 25 — 1 of the Probate Act of 1975. Ill. Rev. Stat. 1981, ch. 110 1/2, par. 25 — 1.

3. All objections to the statement of entitlement shall be referred to a commissioner.

4. The Respondent shall file a report of progress with the clerk of the Court, together with proof of service upon counsel for the Claimants, within 30 days of the entry of this order, and monthly thereafter, until final disposition of this matter.

OPINION

Roe, C.J.

This is a class action involving an estimated 26,000 State employees and annuitants (or their survivors) and an aggregate award sought for $8,434,875.50. The cause of action arose from the policy of successive directors of the Department of Personnel (now Central Management Services) from January 1, 1972, through June 30, 1978. The policy required all State employees and annuitants who were Medicare-eligible (65 years of age or older) during the relevant time period to enroll in Medicare part B (physician care) and pay the premiums thereof or have their benefits under the State employees’ group health insurance program reduced by the amount of benefits such enrollment would have provided.

As a result, State employees and annuitants who attained the age of 65 were compelled to enroll in part B of the Medicare program in order to retain the same health insurance coverage as they enjoyed prior to reaching the age of 65. The alternative was not enrolling and being left effectively uninsured for physician’s costs.

The representative Claimants brought a class action in the circuit court of Cook County on April 27,1976 (76 CH 2420), which resulted in the invalidation of the aforesaid policy of the Department of Personnel. Upon appeal, the appellate court (58 Ill. App. 3d 739), on March 13, 1978, affirmed the judgment of the circuit court but ruled that only the Court of Claims had jurisdiction to award damages against the State of Illinois.

Effective July 1,1978, the Department of Personnel commenced compliance with the Court’s order by revising the State employees’ group health insurance program so that no member is required to enroll in Medicare part B, and those who are 65 or older are afforded the same health insurance coverage as are all other members. Those who do enroll in part B now receive added coverage so that between the combination of payments by Medicare and the State plan, their yearly medical expenses for physician care are often paid in full.

The State, however, refused to reimburse the members of the Claimant class for part B premiums attributable to the period during which the invalidated policy was in effect, January 1, 1972, through June 30, 1978. To secure an appropriate award to each member of the class, the above-entitled action against the State was filed in the Court of Claims. On December 15,1982, the Court rendered its opinion in which it held that the named Claimants and the class they represent are entitled to recover from the State the damages they sustained as a result of the above-described policy of the Department of Personnel.

The Court of Claims determined on September 9, 1983, that class members are entitled to an award equal to the sum of part B Medicare premiums applicable to each month during which he or she was covered by the Illinois employees’ group health insurance program, and was 65 years or older, within the period commencing January 1,1972, and ending June 30,1978.

The Illinois Department of Central Management Services, which now administers the Illinois employees’ group health insurance program, has since calculated the respective amounts of reimbursement to the individual class members, and the aggregate thereof, based upon the federally established premium rates for Medicare part B coverage for the period here involved.

It is therefore ordered that Gertrude Gendel and Ruth Lew, and the class of Claimants whom they represent herein, be and hereby are awarded the aggregate amount of eight million four hundred thirty-four thousand, eight hundred seventy-five dollars and fifty cents ($8,434,875.50), to be distributed to the individual class members in accordance with the provisions of this Court’s September 9, 1983, order, hereinbefore mentioned.

ORDER

Montana, C.J.

A hearing on the above-entitled claim was held on July 29,1985, at the Court of Claims hearing room, State of Illinois Center, 100 W. Randolph Street, Chicago, Illinois.

Jacob R. Cohen, the attorney for the Claimants herein, appeared on behalf of his petition for the awarding of fees to him for services rendered in the above-entitled claim. Neil F. Hartigan, Attorney General, State of Illinois, by Robert Sklamberg, Assistant Attorney General, appeared on behalf of Respondent, State of Illinois.

Petitioner, Jacob R. Cohen, sets out in his petition that in August of 1975, he began handling this claim by requesting the director of the Department of Personnel to rescind his order requiring employees over 65 to pay premiums on part B Medicare for their health insurance. Subsequent thereto, he filed a lawsuit in the circuit court of Cook County. The circuit court held that the State had no authority to order employees to pay for this insurance. The appellate court subsequently affirmed the decision of the circuit court of Cook County. Petitioner filed this class action suit in the Court of Claims and after hearings, the Court entered an award in the amount of $8,434,875.50.

Subsequent thereto, the Illinois legislature appropriated said amount for payment to the class members. Petitioner now seeks approval of his fee to be paid out of said award on a pro rata basis to each member of the class numbering in excess of 24,000. Petitioner seeks the sum of $644,700.00, which amounts to approximately 7.6% of the award. Petitioner alleges that there is an additional savings to the members of the class which now approximates $24,628,800.00 and these savings will continue for the life of each member. Petitioner also alleges that the real benefit to the class as of this date exceeds $33 million. Petitioner further alleges that over the years during the pendency of this claim he expended approximately 924 hours on this claim litigation.

The Court finds that, taking into consideration the result obtained by Petitioner and the time and efforts involved by him, that Petitioner’s fee herein sought in the amount of $644,700.00 should be allowed.

Wherefore, it is hereby ordered that Petitioner, Jacob R. Cohen, be awarded the sum of $644,700.00 as his fee for services rendered in the above-entitled claim. It is further ordered that payment of said fee be deducted from the award previously entered herein and be pro rated as to each individual member of the class.


text:
    (No. 78-CC-1454
    Northlake Building Partners, d/b/a Northlake Hotel, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 9, 1986.

    Abrams & Associates (Jerrald B. Abrams, of counsel), for Claimant.

      Neil F. Hartigan, Attorney General (Glen Larner, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This is a claim for damages incurred to real property of Claimant at 401 West Lake Street, North-lake. The crux of the claim is the allegation that the Illinois State police at times rerouted and directed vehicular traffic over Claimant’s parking lot.

Claimant is the owner of the Northlake Hotel at that address. Refore Martin C. Ashman, our commissioner, Kenneth Naslund, president and manager of Claimant’s hotel, was the only witness for Claimant. He testified that at the location there was a viaduct which, on numerous occasions, became flooded during rainfalls and on those occasions the Illinois State police used Claimant’s parking lot as a turnaround area. Naslund testified that on those occasions, the exact dates or number of which he could not recall, he saw Illinois State patrolmen in uniform direct traffic upon his parking lot in the years 1975 through 1978.

The Northlake Hotel was built in 1969, but the developers of the hotel went out of business in 1970 and there was no hotel-type traffic until 1975 when the Claimant took over. The condition of the driveway in question in 1975 was “fair.” There were some superficial cracks and surface grazing. The area in question is adjacent to an industrial area and the highway normally carries traffic consisting of heavy trucks.

In 1975, Naslund testified, the Northlake local police commenced directing traffic on Claimant’s driveway to make U-turns on the driveway during viaduct flooding. Naslund complained to the chief of police of Northlake and the traffic diversions ceased. Thereafter, according to Naslund, the traffic diversions by the Illinois State police commenced. Naslund complained to the officer directing traffic on four or five occasions, but the traffic diversions on his property continued. Naslund was unable to supply dates of such complaints nor names of the officers.

Naslund, an engineer, testified that the grinding action of tires making small-radius turns around an island in the driveway caused the asphalt pavement to rapidly disintegrate. On September 29, 1977, the Northlake Hotel, in writing, requested the State to repair its driveway, which request was refused. On May 12, 1978, Claimant expended $1,200.00 to repair the driveway and on September 12, 1980, Claimant expended $2,993.00 to repair the driveway. In addition, hotel employees repaired the area a total of four or five times for which no cost was submitted nor were the dates of such repairs revealed.

Respondent’s evidence was that the area of the viaduct or overpass from which traffic was alleged to have been directed was not in the area of any State police patrols. No officers are assigned to patrol incorporated towns or villages. Captain William Burt, district commander of District 3 of the Illinois State police since 1975, which covered the general vicinity, testified that he had never received any requests to send State police to clear any traffic tie-ups as a result of flooding of the viaduct in question, nor had he ever received any complaints from the Northlake Hotel concerning damage to its property.

Captain Burt stated that State police are not assigned to an incorporated area unless a request is made by village officials through the office of the Governor and there was no record of any such request. If an emergency situation occurred, the State police might take action, but it would be reported by radio immediately and a field report would be filed. No such reports have been found as to the premises in question.

Captain Hugh S. McGinley, the operations lieutenant for the State police in that area from 1975 to 1978, testified substantially in corroboration of Captain Burt’s testimony. Captain McGinley contacted all field supervisors, sergeants and corporals assigned to that district during 1975 to 1978 and personally reviewed all field reports and State police logs and could find no evidence that State police had ever directed traffic at 401 West Lake Street in Northlake.

Based on the evidence, Claimant has failed to sustain his burden of proof by a preponderance of the evidence.

The testimony of Claimant’s only witness was uncorroborated and was vague in that he could not supply dates upon which the alleged traffic diversions took place, names of officers to whom he complained, nor even the approximate number of times the diversions of traffic were alleged to have occurred. When the Northlake police commenced directing traffic on his property he complained to the chief of police of Northlake, but there was no explanation as to why he never complained to any supervisory personnel of the Illinois State police until approximately two years after the traffic diversions were alleged to have taken place, and not until he claimed money damages. Repair work was done in 1978 and again in 1980. Since there was no testimony that there were traffic diversions onto the property after 1978, the necessity of repairs to the pavement in 1980 cannot be explained except by concluding that the necessity for repairs came from causes other than the State police directing traffic upon the premises. The same conclusion can be drawn from the fact that the driveway was in “fair condition” in 1975 although it had been used only for approximately one year in 1969.

On the other hand, Respondent’s evidence was clear that the viaduct in question was not the subject of State police patrols and that State police do not direct traffic in incorporated areas. An exhaustive investigation and search failed to reveal any records of State police direction of traffic in the area, of any requests for such police activity, nor of any complaints by the Northlake Hotel. The fact that the Northlake police officers commenced to direct traffic onto the property is further evidence that the area in question was under local and not State police jurisdiction and control.

It is therefore ordered that the claim be dismissed with prejudice.


text:
    (No. 78-CC-1570
    Virginia Komeshak, Administrator of the Estate of Louis John Komeshak, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 26, 1985.

    Michael A. Katz, for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz and Sue Mueller, Assistant Attorneys General, of counsel), for Respondent.
   POCH, J.

This claim, sounding in tort, seeks damages for the wrongful death of Claimant’s intestate, who committed suicide, and is based on the alleged negligence of Respondent. The Claimant seeks recovery based on the theory that the suicide of Claimant’s intestate which occurred on February 3, 1978, was caused by negligent acts or omissions of the State in improperly supervising Claimant’s decedent, improperly failing to render proper care for Claimant’s decedent when the State knew that Claimant’s decedent was likely to commit suicide, or negligently observing Claimant’s decedent, when in the exercise of reasonable care Claimant’s decedent should have been observed due to knowledge that he was likely to commit suicide.

A hearing was conducted before Commissioner Rath, who heard testimony of witnesses and received evidence. He has duly filed his report, together with the transcript of evidence, exhibits and briefs now before us.

The evidence adduced in support of Claimant’s theories of recovery consisted entirely of the testimony of Dr. Thwan Han, a psychiatrist from Granite City, Illinois. Dr. Han testified in response to a lengthy hypothetical question based on the departmental reports in this case that, in his opinion, suicide precautions should have been taken with respect to Claimant’s decedent. Dr. Han would have specified consistent supervision for at least a 24-hour period after the psychologist’s initial interview when Claimant’s decedent arrived at Menard Correctional Center. Dr. Han did not ever treat Claimant’s decedent and had not, prior to testifying, reviewed the clinical records of the decedent. Dr. Han had reviewed only the inquest testimony of the psychologist. Dr. Han was not familiar with Menard Correctional Center, and is not familiar with their procedures. Dr. Han admitted knowing nothing about the prison system and had not reviewed Claimant’s decedent’s records on previous alleged suicide attempts.

In response to questions of the commissioner, Dr. Han testified that the fact that Claimant’s intestate did not have a plan of suicide did not exclude a serious danger. Further Dr. Han admitted that anger evidenced in the presence of the psychologist interviewing Claimant’s intestate could have been interpreted as a look to the future and a will to live.

Respondent’s agent, Officer Faust, recalled observing Claimant’s intestate on February 3, 1978, at the reception and classification unit at Menard Correctional Center. He was seen going to breakfast and seen going out to see the psychologist. He behaved normally, like everyone else on the unit. He was next seen arriving back from the psychologist at about 2:20. He was placed in his cell and was acting normally. He was not crying, praying or behaving strangely. Five minutes later he was observed in an inmate count that is taken about five times a day. The inmates are personally observed during the count at approximately 2:30 and he was sitting on his bed. Shortly thereafter an inmate reported that Respondent’s agent should observe something and Claimant’s decedent was found hanging in his cell. The door to the cell was opened and two inmate workers were instructed to get Claimant’s decedent down while Respondent’s agent called for medical attention.

Claimant’s decedent was found to be dead and could not be revived.

Claimant argues that the "law in Illinois obligates a jailer to exercise ordinary and reasonable care for the preservation of prisoners, including the duty to guard against the possibility of suicide. Porter v. County of Cook (1976), 42 Ill. App. 3d 287, 355 N.E.2d 561.

Claimant argues that the combination of an indication of suicidal tendencies combined with the stress of being incarcerated “militates against allowing a prisoner to keep shoelaces and belts.” Further Claimant argues that the findings made by the psychologist in his interview with Claimant’s decedent should have, on the basis of the testimony of Dr. Han, moved Respondent to give constant supervision to Claimant’s decedent for 24 to 48 hours.

The burden of proof is on the Claimant to warrant the imposition of liability and negligence against Respondent. Respondent owes its prisoners the duty of protection and must exercise reasonable care toward the prisoners as the prisoners’ known conditions may require, including a guarding of the prisoners from dangers due to mental incapacity and the risk of suicide. The State is not, however, an insurer of the safety of the prisoners under the care of its Department of Corrections. Estate of Gianos v. State (1975), 30 Ill. Ct. Cl. 373; Reynolds v. State (1983), 35 Ill. Ct. Cl. 647.

In this case, the Claimant has failed in her burden of proof. The evidence reveals that Respondent did exercise ordinary and reasonable care under the circumstances of this case. Claimant’s intestate was a new inmate at Menard, and when he asked to see a psychologist or psychiatrist, he was provided with that service. Claimant’s intestate was observed behaving normally and was seen by a psychologist for a lengthy interview. As a result of the interview, the psychologist concluded that Claimant’s intestate was not a danger to himself and there was no reason to take precautions (inquest testimony of psychologist Richard Trafton).

After returning from the psychologist’s interview, Komeshak was observed behaving normally and sitting on his bed.

We agree with Respondent that Respondent was not indifferent to the needs of Claimant’s intestate and did not violate its duty of reasonable care.

Testimony of Dr. Han, Claimant’s psychiatrist, does not create sufficient evidence in this record with which to charge Respondent with negligence. Dr. Han’s testimony agreed, in many particulars, with the testimony of the State psychologist as regards reasonable reactions to the interview of Claimant’s intestate.

In summary we find that the record shows that Respondent exercised ordinary and reasonable care for the preservation of the inmate’s health and life under the circumstances of this case.

While Komeshak’s death was unfortunate, we do not think it was foreseeable and the evidence is insufficient for us to make an award.

Claim denied.