author: Sommer, C.J.

text:
    (No. 82-CC-0793
    Alonzo Jones, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 28, 1997.

    James P. Chapman, Counsel for Claimant.
    James E. Ryan, Attorney General (Andrew N. Levine, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This matter comes to be heard on the claim of Alonzo Jones (“Jones”) for personal injuries sustained in an incident that occurred while he was an inmate of State-ville Correctional Center on or about January 19, 1981. Specifically, Jones asserts that the States failure to adequately maintain an area of the prison wherein Jones was required, as a prisoner employee (plumber), to perform his work assignments, resulted in serious and permanent injuries to his person.

The transcript of the proceedings and the evidence stipulated to therein reveals the following facts concerning the incident whereby Jones claims his injuries occurred and the nature and extent of the injuries themselves. For some time before January 19, 1981, while incarcerated at Stateville, Jones was employed as a plumber and was under the supervision of a civilian employee of the State. Jones testified that the job of a plumber is considered a well-paying and sought-after position amongst the inmates of Stateville. As a plumber, Jones would be given specific work orders to be completed with his civilian supervisor, ranging from repairing leaks, to shutting off water sources, to unclogging pipes. In general, most of these work orders related to jobs that took place in a “plumbing chase” area that was situated behind individual cells. The plumbing chase mirrored the cellblocks, meaning that each individual cell had an area of the plumbing chase behind it where all the plumbing pipes that entered the cell were located. Five floors of cells in two galleries (east and west) within the rectangular-shaped cellblock meant five floors of plumbing chase that serviced the individual cells of both the east and west galleries of the cell house. However, instead of concrete or metal floors, testimony of the Claimant and other witnesses established that metal scaffolding with wooden planks as flooring comprised the floors of the plumbing chase. These wooden planks or boards were approximately 12 inches wide by 1]A or 2 inches thick. Two 12-inch planks made up the causeway where Claimant Jones and other plumbing workers were expected to walk in endeavoring to complete their work orders in the plumbing chase.

Claimant Jones testified that, as a routine, he and his supervisor started with the work orders at the top of the chase and worked their way downward using the ladders inside the chase to complete the assigned work. The Claimant testified that, due to the aged condition of the cellblock and its plumbing, he was assigned to complete work in or about the plumbing chase nearly every day since he had started doing plumbing work, or almost every day from 1977 through the date of the alleged accident in 1981.

On January 19, 1981, Claimant Jones was working with his supervisor at the time, Mr. Rocky Guggliemucci, doing routine maintenance in the plumbing chase. On that date, Jones and Mr. Guggliemucci were breaking for lunch and were walking in a northerly direction to exit the plumbing chase along the boards. The Claimant stated that he was carrying a tool box weighing approximately 50 pounds and measuring 3 feet long. Walking single-file with Jones preceding Mr. Guggliemucci by four to five feet, Jones testified that it was not necessary to use a flashlight to see the board where it was necessary to walk. .

As he was walking along inside the plumbing chase and upon the aforementioned boards, the board under his left foot broke “all the way through” forcing him to grab a pipe with his left hand to prevent his falling to the bottom of the plumbing chase.

The Claimant stated that he felt a snap in his back as he fell and his body bent awkwardly. In addition, he stated that, although he did not think he was hurt that badly, he could not move his left arm, which had been hurt (dislocated) when he was forced to grab the pipe to stop his fall. The Claimant told his superintendent, “Venegone,” of die incident and his injury; and, tiiereafter, went to the prison hospital. The Claimant did not return to work tiiat afternoon.

For a period of six or seven days, Claimant Jones confined himself to his bed in his cell until he was taken to the prison hospital, where he stayed for approximately seven months. The Claimant testified that he received very little treatment while in the prison hospital, although he claimed to be in excruciating pain. In July of 1981, the Claimant had a laminectomy performed on his lower back at the University of Illinois Hospital. The surgery necessitated a three-week hospitalization. Thereafter, the Claimant was not able to resume his duties as a plumber due to pain, residual numbness and weakness in his back and left leg; and after four months, he was transferred to a light maintenance job. From that point to the date of the hearing, the Claimant held numerous jobs related to light maintenance and refrigeration at Stateville Correctional Center, and then at Danville Correctional Center, and then at Dixon Correctional Center.

The Claimant also asserts that the residual injuries from his accident included his legs “giving out” at certain moments, a progressively worsening loss of sensation in his legs and feet leading to a loss of balance, and an incontinence problem. He attributes all or most of his current, serious physical problems to the accident.

However, prior to this incident, the Claimant had injuries to his back in 1978, necessitating a partial laminectomy, and in 1979, resulting in a short hospitalization. Even with the prior back problems, the Claimant asserts that, despite constant pain and very heavy work, he was able to fulfill his work duties. Medical records of Jones from 1978 and 1979 indicate complaints of numbness in the left foot and leg, and complaints of low back pain.

The Claimant called the following persons to testify at the hearing: Mr. John McSweeney, who was Statevilles electrical foreman during the relevant period; Mr. Robert Hodges, a fellow inmate and plumbing worker; Mr. John Corneglio, Jr., a fellow inmate; and, Mr. Philip Manzella, a fellow inmate and plumbing worker.

In brief summary, these witnesses proffered consistent testimony that the planks or boards in the plumbing chase were old, cracked, waterlogged due to various leaks in the area, and generally in poor condition. Furthermore, in testimony that covered the period from 1974 to the period soon after the accident, the above-mentioned witnesses stated that various oral complaints were lodged or discussed with various prison personnel regarding the poor and/or dangerous condition of the plumbing chases planks. No written grievances appear to have been filed, or at least produced, to support these complaints. Of particular note was testimony that certain civilian employees of the prison would not venture into the plumbing chase due to the condition of the planking and that certain heavier employees would not stand next to each other as they worked.

The Claimant stated that he had complained of the nature and condition of the planks, but did not file a written grievance, as was his right, for fear of losing his advantageous job.

The case law provides that the State of Illinois has a duty to provide a reasonably safe place for inmate employees to perform their required work duties. (Hammer v. State (1987), 40 Ill. Ct. Cl. 173; McGee v. State (1977), 31 Ill. Ct. Cl. 326.) It is clear from the weight of the testimony offered by the Claimant and his witnesses that the State failed to fulfill drat duty with regard to the Claimant. The plumbing chase, particularly the wooden planking upon which workers, by necessity, walked upon to accomplish their work order, was in an unsafe condition; and furthermore, the State, by its agents and employees knew or should have known of that unsafe condition, but failed to correct the condition. Based upon this finding, the State is liable to Claimant Jones for the injuries he suffered in the accident of January 19,1981.

However, the precise nature and extent of those injuries sustained by the Claimant are in dispute. It is the duty of the Claimant to prove by a preponderance of the medical evidence that the nature and extent of the injuries for which he claims he deserves compensation, were proximately caused by the States negligence, as described in the preceding paragraph. Jones claims he suffers from serious and permanent injuries, but he fails to offer evidence that demonstrates, to a reasonable degree of medical certainty, that those injuries were caused by his fall in the plumbing chase in January of 1981. Most serious results of the injuries claimed by Jones are the laminectomy surgical procedure which occurred in July 1981, the failure to be able to return to his normal, preaccident routine and subsequent associated numbness, weakness and incontinence. The Claimant failed to offer any substantive medical testimony that refuted the Respondent’s assertion that the laminectomy was necessitated by a degenerative condition called stenosis and that the January 1981 fall had little or no impact upon the decision to perform the surgery.

Rather, the Claimant asks that the Court infer the injuries by circumstance; i.e., that Jones was fulfilling his obligations as a plumber prior to the accident but could not do so afterward; and, thereafter, also had a surgery. The Claimant asserts that this “proves” that the serious physical problems now afflicting Jones are directly attributable to his January 1981 fall.

The Claimant fails to address the fact that Jones had serious back problems prior to January 1981, and in addition, admitted that he experienced great pain while working prior to his accident. Medical records also show Jones complained of numbness in his leg and back pain on two occasions prior to 1981. An orthopedic surgeon, Dr. Xamnan Tulyasathien, testified that the laminectomy performed upon Jones in July of 1981 was performed to relieve stenosis, a narrowing of the spinal canal, which was impinging on various nerves, and opined that said stenotic condition was not due to trauma. Neither physician that testified could state that the Claimants condition, specifically the stenosis of his spine, was “caused” by trauma in general, much less the specific trauma claimed by Jones to have caused the condition which necessitated his undergoing a laminectomy.

Thus, it is speculation as to whether the fall in January 1981 may or may not have caused or contributed to Jones’ July 1981, laminectomy and his subsequent physical problems. The Claimant has not sustained his burden of proof with regard to the cause of his injuries and as to the nature and extent of those injuries. The Claimant cannot be compensated for his injuries based upon speculation.

In addition, it is noteworthy that Claimant Jones received very little treatment other than aspirin for the six or seven month duration he was in the prison hospital after his fall and prior to his surgery. This fact supports the Respondent’s argument that the back surgeiy was necessitated by a degenerative condition and undermines the Claimants position that said surgery was due to a traumatic injury sustained in his fall of January 19,1981.

It is clear that Claimant Jones sustained some nonspecific injuries to his left arm, left shoulder, left wrist and lower back as a result of his fall due to the unsafe condition of the plumbing chase. He suffered some pain as a result of these injuries. The Claimant admits that the left arm and left shoulder injuries resolved soon after the accident, but that he had a scar on his left wrist. The Claimant asserts that the lower back injury was serious enough to necessitate a laminectomy surgery in July of 1981, but fails to back up said assertion with competent medical testimony. As such, without medical evidence in support, no compensation can be awarded to the extent requested by the Claimant.

For the reasons stated, we award the Claimant $4,800.


source: Caselaw Access Project

author: Epstein, J. Epstein, J.

license: Public Domain

text:
    (No. 83-CC-9432
    Robert Sangosti, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 27, 1996.

      Opinion on Reheating September 4, 1997.

    Douglas Graham, Counsel for Claimant.
    James E. Ryan, Attorney General (Thomas L. Ciecko, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Epstein, J.

This negligence claim was brought by Robert Sangosti, Claimant, against the Respondents Department of Transportation (“IDOT”) for damages from personal injuries sustained by him while operating his vehicle on a State highway in 1981. Claimant alleges that a dangerous condition — a substantial grade separation at the edge of tire roadway — was negligently created or maintained by IDOT and, in addition, that IDOT negligently failed to provide appropriate warning signage of this condition, which caused Claimant to drive off of the roadway and to be unable to control his vehicle after partially leaving the roadway.

The single-vehicle accident case is before us for final decision after trial, which was held before Commissioner Rochford, following our denial of the Respondents motion to dismiss, which was predicated on our exhaustion of alternative sources of recovery requirement (under section 25 of our Act [705 ILCS 505/25] and section 790.90 of our rules [74 Ill. Admin. Code section 790.90]). The Court denied that motion for lack of adequate supporting factual basis. Now, after trial, we must dismiss this claim on that same basis.

The facts adduced at trial, insofar as pertinent to our decision, are as follows.

The Facts

On October 28, 1981, at approximately 1:30 a.m., Claimant Robert Sangosti was driving his vehicle after having exited Interstate 55 at the Highway 53 truck stop. Claimant attempted to return to 1-55, but found that the entrance ramp was closed. Claimant then entered the frontage road eastbound in an attempt to reach the nearest entrance ramp to 1-55.

Claimant testified that he was not familiar with the area and that he did not notice anything unusual about the roadway. He stated that the road was initially straight and that he was traveling at approximately 40 miles per hour. Claimant noticed that the road took a sharp turn to the left at approximately 50 to 100 feet in the distance. At the curve, he began turning and braking, slowing slightly, and noticed that the road had a "sharp edge” to it, but no shoulder appeared.

Claimant testified that he felt the two wheels of his vehicle go over the edge of the pavement, but was unsuccessful in his attempts to steer the vehicle back onto the roadway. The vehicle went "into a roll.” Claimant was unable to recall anything else about the accident.

Claimant next remembered being in the grass and unable to stand up due to pain. He crawled to a nearby weigh station for help and the police and an ambulance arrived at the scene approximately ten minutes later. Claimant was transported and admitted to Edward Hospital in Naperville where he was x-rayed and diagnosed, and treated for a concussion, scalp laceration, and a fracture of the vertebra. Following four days at Edward Hospital, Claimant transferred himself to Christ Hospital where he remained for 13 days and was fitted for a back brace.

Claimant called one expert witness, a retired civil engineer, who testified inter alia that the accident was caused by the differential in height between the roadway and the shoulder (but in his prior deposition had acknowledged that Claimant may have panicked and attempted to return to the roadway too quickly). The expert, James Breclaw, also testified that the accident was caused by the Respondents failure to provide sufficient traffic control devices to warn of the dangerous condition. However, he admitted in his deposition that it would be the responsibility of a contractor working on the road to provide the appropriate traffic controls.

The Respondents departmental report established that the roadway in question was within IDOTs maintenance jurisdiction, and acknowledged that there was a “deep” drop-off between the pavement and shoulder at the area where Claimants vehicle lost control and left the roadway. The report also established that the maintenance of the subject roadway had been assumed by Peter J. Poulos & Sons, Inc., and Plote, Inc. under contract #34008 commencing August 26, 1980, and completing on December 1,1981.

The terms of the contract specifically provided as follows:

“Maintenance of Roadways:
Beginning on the date when the Contractor begins work on this project he shall assume responsibility for normal maintenance of all existing roadways and shoulders within the limits of the improvement. This normal maintenance shall include all repair work deemed necessary by the engineer but shall not include snow removal operations. Traffic control and protection for this work will be provided as required by the Engineer.”

Exhaustion of Alternative Recovery Sources

The first, and dispositive, issue before this Court is whether Claimant failed to exhaust his remedies as to other potential sources of recovery, as required of all Claimants against the State by section 25 of our Act (705 ILCS 505/ 25) and section 790.90 of our rules (74 Ill. Admin. Code section 790.90); failure to do so is grounds for dismissal under section 790.60. Under our precedents, and indeed under the statute, a failure to exhaust an alternative recovery from another tortfeasor, unless excused, requires dismissal of the claim against the State in this Court. Claimants are required to exhaust all remedies; the Court cannot and does not allow discretion by Claimants to pick and choose whom they wish to sue. Burns v. State (1990), 43 Ill. Ct. Cl. 323; Boe v. State (1984), 37 Ill. Ct. Cl. 72, 72-76.

In this case, the dispositive facts are clear and uncontradicted. IDOT had entered into a contract with Peter J. Poulos & Sons, Inc. and Plote, Inc. to perform construction work in the subject area during the relevant dates and times. The contract specifically provided that the contractor assumed all maintenance of the subject roadways in addition to all traffic control and protection for tire area of construction. Indeed, the contractor had that duty, independent of the terms of the contract, once it assumed control of the public roadway. Thus, the contractor had a tort duty to members of tire public driving on — or attempting to drive on — the subject way.

Although it is not dispositive, it is also clear that the Claimant apparently had knowledge of the construction contract, as Claimants expert referred to the construction in his deposition testimony of August 1, 1990, and was knowledgeable about road construction practice.

Clearly, the Claimant should have sued the contractor who had contracted with the Respondent and assumed responsibility for the maintenance and traffic control necessary at the site of the accident. The Claimant could have and should have sued Peter J. Poulos & Sons, Inc. and Plote, Inc., and had the claim against Respondent placed on general continuance. Claimant failed to do so, and has offered no compelling reasons for his failure to exhaust this obvious source of recovery, which also happens to be the party directly responsible for the two conditions that Claimant alleges to have been the proximate cause of his one-car accident.

For the foregoing reasons, this claim is denied and dismissed with prejudice.

OPINION ON REHEARING

Epstein, J.

This 1983 personal injury claim, arising out of a 1981 one-car accident on the 1-55 frontage road, is back before us on the Claimant’s petition for rehearing, which asks us to reverse our dismissal of this claim for failure to exhaust relief against a State contractor. Once again we must observe that both parties to this 13-year-old case are before us with unclean procedural hands. We revisit this case primarily because of the parties’ failure adequately to present it in the first instance.

The Rehearing Issues

Following trial, we dismissed this claim for failure to exhaust alternative sources of recovery due to the Claimant’s nonpursuit of the contractor who had contractual maintenance responsibility over the roadway where the Claimant’s accident took place. We had declined to dismiss this claim on that basis before trial, and rejected the Respondent’s motion to dismiss because the facts were unclear. (Order of May 17, 1995.) Trial seemingly did not cure that. The dismissal became mandatory under the exhaustion of remedies requirement of our statute and rule (section 25 of the Court of Claims Act [705 ILCS 505/25] and section 790.90, Court of Claims Regulations [74 Ill. Admin. Code section 790.90]), when the contractor’s jurisdiction was undisputed and because of the Claimant’s theory of liability, which rests on allegedly defective roadway conditions and the absence of appropriate warning signage, which were contractual responsibilities of the contractor within its construction-area responsibility.

Following our decision, the Claimant asked us to reconsider the exhaustion dismissal on the basis that the accident occurred outside, not inside, the construction area that was the contractors responsibility. After determining that the record was still unclear on this point, we directed the parties to provide supplemental submissions on this geographical issue. (Order of February 7, 1997.) The Court did so in the interests of justice, and despite the Claimants failure clearly to address this point or to provide clear evidence even in his petition for rehearing.

In response to our order, and to its credit, the Respondent acknowledged that “the site of the Claimants accident was not within the area of the States contractors maintenance responsibility under the governing contract” (Response to Petition for Rehearing). This admitted fact moots the exhaustion issue as to the contractor. We therefore vacate our opinion and order of November 27, 1996, and now turn to the merits of this claim.

The Facts on the Liability Issue

In the early-morning hours of October 28, 1981, Claimant Robert Sangosti was driving southwest-bound on Interstate 55 (“1-55”). At approximately 1:30 a.m. he exited 1-55 to stop at the Highway 53 truck stop. After his stop, Claimant attempted to return to 1-55 but found that the entrance ramp was closed due to construction. He was advised to use the frontage road northeast-bound to reach the nearest southwest 1-55 entrance. Thus Claimant turned onto the frontage road to reach the next entrance ramp.

Claimant testified that he was not familiar with the area and that he did not notice anything unusual about the roadway, although he acknowledged observing construction conditions in the area of the Highway 53 interchange. Claimant testified that he noticed that the road had a “sharp edge” to it and that he did not see a shoulder. He stated that the frontage road was initially straight but made a left turn approximately 50-100 feet after his entry. Claimant testified that he was traveling at approximately 40 miles per hour when he reached the curve, that he braked but that he went off the pavement (on the outside of the curve). According to the Claimant, when he felt the two wheels of his vehicle go over the edge of the pavement, he tried but failed to steer the vehicle back onto the roadway. The vehicle went "into a roll” and undisputedly rolled over. The Claimant woke up injured some distance from the roadway.

Claimant was unable to recall anything else about the accident. He next remembered being in the grass and unable to stand up due to pain. He crawled to a nearby weigh station for help. The police and an ambulance arrived at the scene approximately ten minutes later. Claimant was transported and admitted to Edward Hospital in Naperville where he was x-rayed and diagnosed, and treated for a concussion, scalp laceration, and a fracture of the vertebra. Following four days at Edward Hospital, Claimant transferred himself to Christ Hospital where he remained for thirteen days and he was fitted for a back brace.

There were no other occurrence witnesses at trial, and as Claimant was alone in the vehicle at the time of the accident, it appears that no other occurrence witnesses exist.

The Liability Issue

Claimants theory of the case, as pleaded, was that the roadway was dangerous due to the “drop between the surface of the road pavement and the level of the shoulder” (Complaint, par. 5(a)), due to holes on the road surface (id., par. 5(c)) and due to IDOTs failure to warn motorists of the “dangerous condition of the roadway and shoulder” (id., par. 5(d)). At trial, Claimant injected an additional notion that the Respondent was negligent in failing to provide signage warnings of the left-hand turn on the frontage road, which seems gratuitous in light of his testimony that he saw the curve in any event.

The principal testimony as to liability was Claimant’s expert witness, James Breclaw, a retired civil engineer. He testified to the danger of the height differential between the roadway and the shoulder, and noted that a difference in height between the shoulder and the pavement always poses a potential danger, and that a safe, acceptable height difference depends upon the individual driver and the circumstances. Although the witness acknowledged that he is not an expert on traffic control, he relied extensively on a Texas Transportation Institute report, “Pavement Edges and Vehicle Stability: A Basis for Maintenance Guidelines,” published in September, 1982, as authoritative on the issue, although he had not read it.

Breclaw testified that the accident was caused by the height differential between the roadway and the shoulder. He was partly impeached by his prior deposition testimony in which he acknowledged that Claimant may have panicked and tried to return to the roadway too quickly. Breclaw further testified that the accident was caused by the Respondent’s failure to provide sufficient traffic control devices to warn of the dangerous condition. Although references were made to a six-inch differential between the roadway and a shoulder, no clear testimony as to the differential in height was ever presented by either party.

After detailed review of this record, the Court is persuaded that the Respondent less than fully met its responsibilities to provide reasonable warning of the abnormal and substandard conditions of the frontage road. We are also persuaded by the Claimant’s own testimony that at least some of this was known or apparent to the Claimant when he entered tire frontage road in search of the next entrance ramp, or immediately after entering it. He was aware of construction in tire immediate area; that was tire reason he had to detour to tire next upstream entrance in the first place; and he acknowledged seeing that something appeared abnormal about the shoulders, which at a minimum should have put him on notice to be especially careful.

However, we find no evidence in the record to connect the defective conditions — the roadway holes (which are unevidenced), the shoulder drop-off (which is evidenced but unquantified), and the lack of warning signs (about which there is ambiguity) — with the occurrence of this one-car accident.

The Claimants and his experts testimony attempts to show, and does somewhat show, that the Claimants vehicle’s roll-over was caused at least partly by the shoulder drop-off. That, however, goes to the extent of the accident, and arguably to the degree of damages. But that evidence does not address the threshold issue of why the accident occurred in the first place, i.e., why the Claimant drove his vehicle half off tire road and dropped onto the shoulder. That threshold, but crucial, issue is unaddressed by Claimant’s evidence. And this is a critical gap.

What does appear — and clearly — in this record is that (i) Claimant entered a left-turn at 40 miles per hour (having necessarily accelerated to this speed in 50-100 feet, according to his own testimony) and (ii) went off the road on the outside of the turn and dropped two wheels off the roadway, and (iii) turned over while attempting to turn back onto the road, i.e., while turning his wheels left towards the road-edge which was receding away from his direction of travel.

From this undisputed evidence, we must draw two conclusions: (1) the only cause of tire initiation of this accident— the vehicle leaving the roadway — is unexplained except for the Claimant’s speed and his failure to steer within the turn; (2) the rollover was caused in some part by the Claimant’s unsuccessful efforts to turn back onto the roadway.

Although on this record, it is difficult to ascribe proportions of causation to each of these, it is clear to this Court that the Claimant fell far short of meeting his burden of establishing that any of the alleged negligent acts or deficient conditions was the proximate cause of this accident. There is simply no factual basis in this case on which we might conclude, let alone a basis that persuades us, that the Respondent is at all responsible for Claimant’s departure from the safety of the paved roadway. Without satisfying that link in the causal chain, there can be no liability on IDOT — even assuming IDOT’s responsibility and even assuming it was aware of or had notice of these allegedly defective road conditions.

We are constrained to come to this conclusion notwithstanding our sympathy to the Claimant’s argument that the accident was exacerbated by the shoulder drop-off, which may well have turned a simple sldd into a serious and near-fatal incident. Our sympathy for Claimant’s injuries, which were serious, and our appreciation for his half-argument against the unacceptable performance of IDOT in this instance, do not provide a legal basis for this Court to make an award to Claimant, which we must deny.

For the foregoing reasons, we must deny liability and deny this claim on the merits. Given our conclusion as to liability on the causation issue, we need not and do not address the other elements of Claimant’s negligence claim.

For the foregoing reasons it is hereby ordered: (1) The opinion and order of November 27, 1996 is vacated; (2) This claim is denied, and forever barred.


author: Frederick, J. Frederick, J.

text:
    (No. 86-CC-0254
    Lutee Sherrod, as Special Administratrix of the Estate of Joyce Packer, Deceased, and as Guardian of the Estate of Rochelle Joy Packer, a minor, and Chanelle Joy Packer, a minor, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 6, 1997.

      Order filed August 28, 1997.

    Marvin A. Brustin (Mark S. Schwartz, of counsel), for Claimant.
    James E. Ryan, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant filed her second amended complaint sounding in negligence on July 17,1987. Claimant seeks $100,000 in damages for the alleged negligence of the Respondent in failing to admit Claimants decedent to the Illinois State Psychiatric Institute at 1601W. Taylor Street, Chicago, Illinois.

The Facts

On January 21, 1982, shortly after midnight, the Chicago Police and Fire Departments were called to a fire at 1066 West 14th Street in Chicago, Illinois. Police Officer Marty Gavin, a trained arson investigator, investigated the incident and learned that Claimants decedent, Joyce Packer, the occupant of apartment 303 at 1066 W. 14th Street, had died in the fire.

Joyce Packer was born on November 27, 1957. She was the stepsister of Johnny Sherrod, Jr., who was born on June 30, 1964; Yvette Sherrod, who was born on September 11, 1961; and Anthony Sherrod, who was born on February 17, 1971. Some years before, Joyce Packer provided care for Johnny B. Sherrod, Jr. while their mother, Claimant Lutee Sherrod, worked. Johnny Sherrod, Jr. and Joyce Packer enjoyed a close relationship. Joyce Packer went to church regularly and was valedictorian of her class at Dunbar High School. Joyce Packer was also the mother of two children, namely Chanelle Joy Packer, born January 15,1979, and Rochelle Joy Packer, born August 5,1981.

Joyce Packer had a history of mental problems. She had entered a religious cult after her freshman year in college. She was hospitalized at the Illinois State Psychiatric Institute (hereafter referred to as “ISPI”) a number of times thereafter, including several instances when she neglected to take her medication. In the years between 1979 and 1982, Joyce Packer was hospitalized at ISPI on five occasions. At the time of her death, Joyce Packer was employed by the United States Postal Service earning about $500 every two weeks.

The medical records indicate that Joyce Packer was initially hospitalized on November 15, 1979, suffering from religious delusions. On that occasion, she was admitted after an acute psychotic episode led her to attack someone at the post office where she worked. The Emergency Services Sheet from that admission indicates that Joyce Packer was suffering from hopelessness and suicidal ideations.

Joyce Packer was again hospitalized from December 10,1979, through January 7,1980, after force-feeding her child whom she believed to be possessed by the devil. The records indicate that the precipitating cause of this incident was a problem with a man in her life. The hospital records relate that she attacked her mother, Lutee Sherrod, with a knife on December 10, 1979, because she believed that Mrs. Sherrod was possessed by the devil.

During Joyce Packers hospitalization of December, 1979, she was placed in full leather restraints on December 10, 11, 12, 14 and 15, 1979, for the protection of herself and others.

The next hospitalization occurred on January 13,1980. At that time, Joyce Packer had been spitting on strangers. She spit on a stranger in the street who, in turn, struck her in the face. The record shows that this incident occurred after Joyce had failed to take her Lithium. During this hospitalization, Joyce was again placed in full leather restraints on January 14, 15, 16, 17 and 18, 1980. The records of January 18, 1980, reveal that she was delusional about her medication being poisoned. The record of this hospitalization also shows that she threatened and struck a female staff member in the face. She also refused her medication on January 21,1980.

The medical records from ISPI indicate that on September 23, 1980, Joyce Packer was brought into ISPI by the police after wandering the streets naked. On that occasion, she was hostile and angry as well as confused upon being brought into ISPI. At the time of her interview with a physician, she had calmed down, was cooperative, and her speech was not pressured. There was no thought disorder revealed and there were no hallucinations, and no suicidal or homicidal ideations noted. The cause for this situation was believed to be the refusal of Joyce Packer to maintain Lithium and, once again, her involvement with a man.

On September 24, 1980, she was placed in full leather restraints for the protection of herself and others.

On August 7, 1981, Joyce Packer was again hospitalized at ISPI. At this hospitalization, she had delusions that she had given birth to two children. Once again, her speech was not pressured, she denied any suicidal ideation, and denied any homicidal ideation. The record showed that she was oriented times three, which means she was oriented as to her identity, the time and the place. Upon admission, she was striking patients and staff members and was again placed in full leather restraints on August 8 and 9, 1981, after attacking a staff member and stabbing a patient with a fork. She had stopped taking her medication two months prior to this hospitalization. In relation to the pending claim, Joyce Packer was brought to ISPI on January 20, 1982, one day before the fire at her home which claimed her life.

On the day before Joyce Packers death at approximately 10:00 p.m., the Sherrods received a telephone call from the parents of Joyce Packer’s boyfriend, Michael Stewart. The Stewarts lived at 116th and Aberdeen, and Mr. Stewart advised Lutee Sherrod that Joyce Packer had walked from the post office to the Stewarts’ home.

Johnny Sherrod, Sr. requested that his son, Johnny Sherrod, Jr., go with him to get Joyce at the Stewarts’ home. When Johnny and Johnny, Jr. went into the house, Joyce was sitting in the kitchen or dining room wearing a long, thin, linen dress and a light summer jacket. The bottom of her dress was wet and Joyce was saying that she wanted to go home and see her children. At the time, the children were at the Sherrods’ house at 1212 W. Washbume. Although it was a cold day and there was snow on the ground, Joyce would not put on dry clothes. Johnny Sr. kept asking her about her medication because Joyce did not have her purse. At that time, Joyce lived at 1066 W. 15th Place, but her children lived with the Sherrods.

Johnny Sr., Johnny Jr. and Joyce Packer then got into Mr. Sherrod’s vehicle. Mr. Sherrod took 1-57 to the Dan Ryan Expressway and exited at Roosevelt Road, proceeding westbound on Roosevelt. As he got to Throop Street, Joyce Packer grabbed the wheel and tried to make the car turn left towards the house where the children were staying. When Johnny Jr. grabbed her arms, Joyce bit him. In the meantime, Johnny Sr. was able to gain control of the car and pull it over to the side of the road. Mr. Sherrod and his son restrained Joyce Packer and Johnny Jr. moved into the front seat and held her until they got to ISPI. Both men continued to restrain her as they drove to the hospital, and although Joyce continued to struggle for a while, she finally stopped. At the time that Joyce turned the wheel of the car, the Sherrod vehicle went into the oncoming lanes of traffic. Johnny Sr. and Johnny Jr. continued to hold Joyces arms at the hospital until the doctor came and talked to Mr. Sherrod.

She was treated by Dr. Leoneen Woodard. Dr. Woodard has no independent recollection of having seen Joyce Packer on this occasion.

Dr. Woodard, a first-year resident, testified that, while she did not recall this patient, Joyce Packer was noted to have been taking Lithium Carbonate four times a day. Dr. Woodard was told that Joyce Packer had walked with light clothes on for four miles and that she did not have her medication with her. In addition, Johnny Sherrod, Jr. testified that Joyce told the doctor that she was not taking her medicine. Joyce Packer was oriented times three at the time of presentation at ISPI. Dr. Woodard acknowledged that Joyce was dressed too lightly for the weather. The doctor also testified she had the authority, pursuant to the existing ISPI procedures, to hospitalize Joyce Packer involuntarily in the event she was determined to be immediately in danger of harming herself or others or was unable to take care of her daily needs.

Dr. Woodard noted in the record that the patient suffered for a manic bipolar disorder consisting of mood swings with high episodes and depressive episodes; however, Dr. Woodard did not know how those mood swings would manifest themselves.

Dr. Woodard had no information about Joyce Packers prior psychological history nor did she know where she had obtained the information noted in the patients chart in 1982.

The ISPI admissions procedures provided that to make a history of previous patient contact at ISPI more available to O.D.’s, a supplementary patient contact file was available in the O.P.D. Records Room 129, with material to be held for two years. The file consisted of admissions notes, telephone intake write-ups, discharge summaries, and similar material filed alphabetically by the patients last name. No materials were to be retained by the interviewer or sent to a unit. They were to be returned after use to the clinic managers office for refiling.

Although the records for a period of two years of Joyce Packers prior hospitalizations were available to Dr. Woodard, Dr. Woodard could not recall ever reviewing any of Joyce Packers records.

Dr. Woodard testified that if she had been told that the patient walked a long distance in the cold without appropriate dress, she would have tried to gather more information. Johnny Sherrod, Jr., however, testified that his father told the doctor that Joyce had walked a long distance in light clothing and that she did not have her medication with her and that this information was confirmed by Joyce, who said she was not taking her medication. Dr. Woodard found that Joyce appeared to be under control and that the patient was not admitted. Dr. Woodard could not recall whether she had talked to Johnny Sherrod, Sr. regarding Joyces Lithium intake.

Johnny Sherrod, Jr. testified that although he was not sure if his father told the doctor about the incident in the car, Mr. Sherrod did tell the doctor at ISPI that Joyce had walked a long distance with light clothing on and she didn’t have her medication with her. Johnny Sherrod, Jr. also testified that Joyce told the doctor she wasn’t taking her medicine. Johnny Sr. was asking that his daughter be admitted to the hospital and asking why they did not admit her. Mr. Sherrod was saying that it wasn’t normal to walk 100 blocks in the cold in light clothing. The doctor said that Joyce appeared to be under control and she was not admitted to the hospital.

Dr. Woodard did not note in her intake report the patients history of refusing to take medication. Although Joyce Packer was under the care of a Dr. Goodnick at the Affective Disorder Clinic, she did not consult with Dr. Goodnick. While the records indicate that a Dr. Powers had talked to the patient on January 20, 1982, Dr. Woodard did not recall if Dr. Powers, her supervisor and a third-year resident, ever saw the patient. It was the procedure at ISPI to consult with ones supervisor in situations such as this. As supervisors did not generally do separate intake evaluations, it is possible that information was relayed to Dr. Powers by members of the patients family and that such information was not noted in the record.

The records reflect that Joyce Packer indicated to Dr. Woodard that she had had a fight earlier that day with a boyfriend and that she was upset with him and had scratched him. Joyce Packer also told Dr. Woodard that she had called her stepfather after the fight and requested that he. bring her to ISPI. Joyce Packer also mentioned an argument that she had wfth her stepfather on the way to the hospital and her anger at the fact that Johnny Sherrod would not stop at home to let her visit her children.

Dr. Woodard testified that the records did not reflect that a Lithium check was done on the patient on January 20,1982. It was not the practice at ISPI to do blood work at night as the laboratory facilities were not available and no trained personnel were on hand to do the blood work. If night-time blood work was necessary, the procedure was to transfer the patient to the University of Illinois Hospital where blood work could be done.

On Januaiy 21, 1982, Officer Marty Gavin was called to Joyce Packers apartment at 1066 W. 14th Street, Apt. 303, Chicago, Illinois. His investigation, which occurred within 24 hours of Joyce Packers release from ISPI on January 20,1982, revealed that there were three points of origin of the fatal fire. The fire had been set by hand. A hand-held match and a lit piece of paper had been used to light various pieces of material within the apartment. Officer Gavin excluded any electrical or gas problems having accounted for ignition. He noted the three points of origin of the fire, all of which were located within Joyce Packers apartment.

One point of origin was on the third floor, at the north wall of the living room. A “V” pattern extended the length of the wall pointing to the source of the fire. A pile of combustibles at that location was the originating source of the fire. He found that a heavy concentration of plastics and clothing at that location had been ignited.

The second point of origin was on the fourth floor at the west wall of the bedroom. He noted that a flaming rag had been stuffed into the cushion of the love seat and that a fire started there went from the sofa cushions to an adjacent bed and started the bed on fire.

The third point of origin of the fire was at the west wall of the hallway outside of the fourth floor bedroom. The wall had been lined and cluttered with clothing and newspapers which had been ignited by a hand-held match or lit piece of paper. The door to Joyce Packers apartment had been locked from the inside necessitating a forced entry and no one was seen leaving the apartment. Based upon his years of experience as an arson investigator, Officer Gavin opined that Joyce Packer was the only person in the apartment at the time of the fire and it was his belief that Joyce Packer started the fire.

Claimant, individually and as administrator of the estate of Joyce Packer, deceased, argues that the Respondent, State of Illinois, was negligent for failing to involuntarily admit Joyce Packer on January 20,1982, to ISPI, and that the failure to admit her constituted negligence and proximately resulted in the death of Joyce Packer.

In support of Claimants contention, the Claimant introduced the testimony of Dr. Leonard Elkun. Dr. Elkun is a psychiatrist who has been licensed since 1967. He is not board-certified. He did his residency in psychiatry at the University of Chicago Hospitals from 1967 to 1970 and was a graduate of the Chicago Institute of Psychoanalysis, which he attended from 1970 to 1976.

Dr. Elkun reviewed Joyce Packers medical records from five hospitalizations between 1978 and 1981, the post-mortem, the record of the emergency room visit of January 20, 1982, and the police report. Dr. Elkun testified that the Illinois State Psychiatric Institute had a duty to provide reasonable care in accordance with the standard of care in the community. He further testified that ISPI holds itself out as a facility that provides psychiatric care to patients in the community. Dr. Elkun was familiar with the ISPI in that he worked there for six months and helped to establish a patient program for the treatment of persons suffering from schizophrenia.

Dr. Elkun gave his opinion that ISPI was negligent in its treatment of Joyce Packer. He opined that the doctors at ISPI failed to diagnose an acute psychotic episode. He further opined that the doctors at ISPI failed to take a serum Lithium level at the time of Joyce Packers presentation at the emergency room to determine if the level of Lithium was within a therapeutic range. If a diminished level of Lithium was found, ISPI could have instituted measures to reverse the process.

Dr. Elkun is of the further opinion that the State of Illinois and ISPI failed to treat Joyce Packer adequately by failing to hospitalize her. The physicians or residents on duty at ISPI failed to consult with other psychiatrists or residents who knew more about the condition of Joyce Packer at the time she was brought to the emergency room on January 20, 1982. He testified that any symptomatology on the part of Joyce Packer could have resulted from a drop of her Lithium level, even within an accepted range, and that drop could be enough to precipitate symptoms of mental illness or disease. Any symptomatology indicates a necessity for some immediate evaluation, particularly where a patient has a history of not taking medication on a regular basis.

Joyce Packer had a history of treatment at ISPI. The history and the records disclosed that she stopped taking Lithium Carbonate just prior to her hospitalization in August, 1981, and that she had suffered an acute psychotic state after fading to take her medication in 1980. Once in a psychotic state, a patient can have hallucinations, delusional thoughts, and an inability to test reality, or know the difference between what is going on inside and outside of ones body.

The police report viewed by Dr. Elkun indicated that just prior to her hospitalization, Joyce Packer was hearing curses from the devil and was in an extremely agitated state. However, Claimant concedes that there is no evidence that the Respondent was made aware of that incident at the time Joyce Packer was brought to the hospital emergency room on January 20,. 1982.

Dr. Elkun’s opinion was that given her medical history, and the fact that on the same day that Joyce Packer had taken an extremely long walk while inappropriately dressed, physicians at ISPI failed to recognize her disintegrating condition. Joyce Packer was being treated by Dr. Goodnick at the Affective Disorder Clinic, yet Dr. Good-nick was never consulted. As the treating physician of Joyce Packer, this doctor would have been in a better position than a stranger in the emergency room to evaluate the subtleties, mood or cognitive functioning as they pertained to Joyce Packer. Dr. Elkun testified that a consultation with a patients psychiatrist is critical and essential in such a situation, especially where the patients condition has deteriorated to the point where it required hospitalization five times in a three-year period.

Dr. Elkun felt that, although Joyce Packer denied suicidal thoughts at the time of her hospital visit on January 20, 1982, sometimes this status is not well evaluated by simply asking the patient whether he or she is suicidal. The fact that this patient was suffering from an acute psychotic episode was evidenced by her dressing too lightly for the weather and the similarities to the symptomatology exhibited during her prior hospitalizations.

Dr. Elkun believed that even if the physicians at the emergency room were not told of the complete symptomatology engaged in by the decedent within 24 hours of the visit to the emergency room, the emergency room physicians on duty could have asked questions to elicit this information. Dr. Elkun observed that the patients activities of having walked over 100 blocks on a cold day in summer clothing was indicative of a self-destructive impulse that was out of control. The patient had lost control of these impulses in the car on the way to the hospital. Joyce had had a fight with her boyfriend earlier in the day and an argument with her stepfather on the way to the hospital. The hospital records reflect that on January 20, 1982, Joyce told Dr. Woodard that she had called her stepfather and requested that he bring her directly to the hospital. She became upset with her stepfather because he would not let her first stop and visit her two children.

Dr. Woodard chose to refer the patient back to the Affective Disorders Clinic instead of involuntarily admitting her or sending her to the University of Illinois Hospital which could have immediately ascertained whether Joyce Packer’s Lithium level was at a dangerously low level. Johnny Sherrod, Jr. could not specifically recall whether Joyce Packer’s self-destructive behavior of turning the wheel of the car on the way to the hospital was ever conveyed to the doctor at ISPI. He did specifically recall, however, that Johnny Sherrod, Sr. was requesting that his daughter be admitted, that Joyce had walked for 100 blocks in the cold wearing light clothing without her medication, and that Joyce Packer told her doctor that she wasn’t taking her medicine.

Finally, Dr. Elkun testified that

“Based upon a reasonable degree of medical and psychiatric certainty and my review of the medical records * " *, it is my opinion that had ISPI and its agents, the physicians that examined the patient on January 20, 1982, made the diagnosis of her disintegrating situation, psychological situation, secondly checked her serum Lithium level and in the event of finding deficiency in her level to have made some adjustment, thirdly to have consulted with a physician close to the patient over a period of time and fourthly, having made the diagnosis, having appreciated the urgency of the situation, and having failed to hospitalize her, those four factors, I believe, strongly and of the opinion contributed to Ms. Packer’s death on January 21,1982.”

The Respondent points out that when John Sherrod and John Sherrod, Jr. brought Joyce Packer to ISPI, they were not restraining her and she was acting calm. Numerous notations about the patient’s condition at the time of the examination were written on the intake evaluation form which was prepared at about 2:00 a.m. The intake evaluation form notes that Joyce Packer was “oriented times three,” which indicates she knew who she was, where she was, and what time it was. Her speech was coherent and not pressured. There was also a notation made that she did not appear suicidal and denied suicidal or homicidal ideation. She did not show any symptoms of a manic episode. Dr. Woodard also noted that Joyce Packers eating and sleeping habits were normal. Joyce Packer told Dr. Woodard that she could work things out with her boyfriend and she felt comfortable returning home.

Dr. Woodard spoke with Johnny Sherrod at ISPI. Johnny Sherrod, Jr. did not speak with Dr. Woodard. Johnny Sherrod, Jr. claims that he could not hear the entire conversation. Joyce Packer was not admitted to ISPI that night but a deflection (referral to out-patient clinic) was made. Johnny Sherrod and Johnny Sherrod, Jr. then took Joyce Packer back to the Sherrod house. Once back at the house, no one stayed up to watch and take care of her that night. They did not know Joyce Packer left until the next morning. When Lutee Sherrod, Ms. Packer’s mother, noticed Joyce had left, no one went to check on her at her apartment. Mrs. Lutee Sherrod did call Joyce Packer’s apartment, but no one answered. Even then, none of the Sherrods went to check on Ms. Packer at her apartment.

Dr. Woodard testified that the most important information a doctor uses in making an assessment of the patient for commitment is the appearance and condition of the patient at the time of examination. It was noted in the intake evaluation that Joyce Packer was taking her medication. Dr. Woodard was told that Joyce Packer’s eating and sleeping habits were normal. These signs are key indicators used to diagnose a manic episode. When being interviewed, Joyce Packer was speaking calmly and coherently and her speech was not pressured. Dr. Woodard asked Joyce Packer if she had any suicidal or homicidal ideation. Dr. Woodard noted that Joyce Packer was dressed neatly. The doctor did make a provisional diagnosis of a bipolar disorder-mania. However, at the time of the examination, there was no evidence of thought disorder, nor of manic episode. Additionally, Joyce Packer was examined by Dr. Woodards supervisor, Dr. Power, according to hospital procedure.

According to Dr. Woodard, in order to involuntarily commit someone to an institution, it must be found that the individual is an immediate threat to herself or another or unable to take care of her daily needs. Dr. Woodard did not believe that Joyce was an immediate threat in her clinical judgment. Joyce Packer did not exhibit the symptoms required to be committed. The only way she could be committed was if she were assessed as being an immediate threat to herself or to others, or if she was unable to care for her daily needs. Dr. Woodard felt that she was able to care for herself, as her eating and sleeping patterns were normal. She denied suicidal or homicidal ideation, and she was dressed neatly. It was noted that she was taking her medication. Dr. Woodard stated that one of the most important factors in deciding whether to involuntarily commit an individual is their presentation at the time of the treatment and the examination revealed that Joyce Packer did not need to be hospitalized.

Dr. Woodard determined that in her professional judgment there was no evidence of manic episode. Dr. Woodard followed established procedure and applied the proper level of professional skill and care and thus did not breach any duty of care to Ms. Packer.

Dr. Woodard determined that Joyce Packer did not require a blood test for Lithium levels. Dr. Elkun stated that when the Lithium level is acceptable in a patient, that individual will be able to function, act normally, and be coherent and cogent in a conversation. At the time of the evaluation by Dr. Woodard, Joyce Packer exhibited all of these characteristics. The intake evaluation states that Joyce Packer was cooperative. Her speech was coherent and understandable. Her speech was not pressured and she was calm. In Dr. Woodards opinion, as the treating physician at the time of the evaluation, there was no reason to do a serum Lithium check. There was no sign of pressured speech, thought disorder, mania, sleep deprivation, or loss of appetite. As a result of these factors, established at the time of the evaluation, Dr. Woodard indicated that the Lithium level test was not warranted.

The Claimant’s expert witness, Dr. Elkun, testified that Joyce Packer should have been involuntarily committed. The facts show that Joyce Packer did not exhibit the characteristics necessary to be involuntarily committed. Those characteristics are: the patient must be assessed as an immediate and imminent threat to herself or to others; or she must be unable to care for her daily needs. A subjective evaluation of the patient, done by Dr. Woodard, revealed that her condition was not “disintegrating” or “suicidal.” It shows to the contrary that she was calm, coherent and comfortable with going home. She showed no evidence of thought disorder. In Dr. Woodard’s opinion, the scope and depth of the conditions present at the time did not require hospitalization.

The Law

The burden of proof in a negligence case is on the Claimant and the Claimant must prove by a preponderance of the evidence that the State was negligent and that such negligence was the proximate cause of Claimant’s damage. Hoekstra v. State (1985), 38 Ill. Ct. Cl. 156.

Claimant’s claim in this cause is a claim of inadequate and improper psychiatric treatment and care for the failure of the State to admit Claimant’s decedent to ISPI. These are allegations of medical malpractice and must be proven by expert testimony. (Woods v. State (1985), 38 Ill. Ct. Cl. 9.) In Woods, supra, the Court found that the State was not liable because there was nothing in the record to show the Respondent knew or should have known that the patient was suicidal. There was no expert testimony elicited to show that the symptoms exhibited by the patient should have indicated to the Respondent that the patient was suicidal. Because of this lack of proof, the Court found that the decedents committing suicide was not foreseeable and denied the claim.

In this case, there is no proof before the Court that the State knew or should have known that Joyce Packer was suicidal. There is nothing in the testimony of Claimants expert which indicates the symptoms displayed by Joyce Packer should have put the State on notice that she was suicidal and would commit suicide within 24 hours.

This Court also denied liability in a mental patient suicide case where the claim was based on the death of a mental patient by suicide subsequent to his escape from a mental health center. The Court held that to prevail, the Claimant must prove there was a lack of proper and reasonable care and that the State knew or should have reasonably been expected to know of or predict the escape. Because there was no proof that the Respondent knew or should have known the individual was contemplating escape or a suicide attempt, the claim was denied. Calvin v. State (1982), 35 Ill. Ct. Cl. 611; Gaiser v. State (1993), 45 Ill. Ct. Cl. 10.

The State is not an insurer of the safety of patients under the care of the Department of Mental Health but it owes patients a duty of protection and must exercise reasonable care towards such patients according to their known condition or the condition, which through reasonable care, ought to be known. In Reynolds v. State (1983), 35 Ill. Ct. Cl. 647, the Court denied Lability in a mental patient suicide case where Claimant failed to prove a negligent act committed by the State and where Claimant failed to prove a causative factor between any alleged negligence and the subsequent death by suicide of Ms. Reynolds. See also Stevens v. State (1976), 31 Ill. Ct. Cl. 458.

In a medical malpractice claim, the Claimant must prove by a preponderance of the evidence that there was a breach of a duty, the Respondents deviation from the standard of care, and that the deviation was a proximate cause of the Claimants injury. The standard of care is that care which is provided by reasonably well-trained medical providers in the same circumstances in a similar locality. Williams v. State (1994), 46 Ill. Ct. Cl. 221.

In this case, the evidence shows conclusively that the Respondent had no reason to believe that the decedent had self-destructive thoughts. The State is not the insurer of mental health patients. In Ingram v. State (1979), 33 Ill. Ct. Cl. 134, the Court denied liability where a patient admitted to ISPI committed suicide. The decedent was admitted and later hung himself in the facility. The Court found, based on the evidence and medical records, that there was not sufficient evidence offered to show that the State should have known that the decedent had self-destructive thoughts.

The Claimant has the burden of showing that the Respondent failed to exercise reasonable care for the patient given her known condition. The Claimant has failed to meet that burden. (Gaiser v. State (1993), 45 Ill. Ct. Cl. 10.) While the death of Joyce Packer was a tragedy, we are constrained by the law and the facts of the case to deny this claim.

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

ORDER

Frederick, J.

This cause has come before the Court on Claimants motion for rehearing, and the Court having reviewed the testimony, pleadings, the entire court file, and the argument of counsel, and the Court being fully advised in the premises,

Wherefore, the Court finds:

1. That Claimants counsel has done an admirable job of advocating Claimants position.

2. That the Court believes its opinion is based on the law and the evidence.

3. That Dr. Elkun's opinions are not as clear as argued by Claimant and are cited in the Courts opinion.

4. That Claimant has failed to meet Claimants burden of proof.

Therefore, it is ordered that Claimant's motion for rehearing is denied.


author: Raucci, J.

text:
    (No. 86-CC-0515
    Gordon Miley, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 2, 1997.

    Bill T. Walker, Granite City, for Claimant.
    James E. Ryan, Attorney General (Amy Ratterree, Assistant Attorney General), for Respondent.
   OPINION

Raucci, J.

The Claimant, Gordon Miley, brings this action for compensatory damages pursuant to the Illinois Court of Claims Act, 705 ILCS 505/8. The Claimant asserts that he was injured as a direct and proximate result of negligence committed by the State of Illinois in the maintenance of a traffic control barricade at a construction site on Interstate 74 approximately one mile west of Farmer City, in DeWitt County, Illinois.

At approximately 9:05 p.m. on October 17, 1983, the Claimant was driving a 1981 Chevrolet Chevette east on Interstate 74 when he struck a barricade that was lying on its side in the right lane of eastbound Interstate 74. The leg of the barricade punctured the floorboard of the Claimants car, striking him in the left foot and ankle.

The Claimant was taken to Burnham Hospital in Champaign, Illinois. He later sought treatment from other doctors, clinics and from St. Elizabeth Hospital in Danville, Illinois. The Claimant suffered a broken left ankle and lacerations to his left foot and leg. The Claimant is seeking $800.98 for damage to his automobile, $2,150.27 for medical bills, $40,000 for lost income, $200,000 for disability and future lost income, and $100,000 for pain and suffering. The Claimant contends the Respondent was negligent by failing to.use barricades which, after once being struck, would pose no danger to motorists; failing to adequately monitor placement and location of its barricades; failing to remove the barricade before it was struck by the Claimant; and using a steel-legged barricade that had legs that did not collapse flat against the pavement when laid on its side. The Claimant also filed a count under the doctrine of res ipsa loquitur.

A hearing was held before Commissioner Stephen R. Clark on Februaiy 7, 1996, at which there was testimony from the Claimant and from Douglas White, utility coordinator for the Illinois Department of Transportation (hereinafter “IDOT”) and former traffic control supervisor for IDOT. The Commissioner admitted into evidence the depositions of Dr. Mehta and of Nyle Dyer, a patching crew supervisor with IDOT. The Commissioner also admitted into evidence the Claimant’s notice of injury; the barricade struck by the Claimant; photographs of the Claimant’s automobile following the accident; a request for admissions in which the Respondent admitted that it owned the barricade and placed it at the location on Interstate 74; photographs of the barricade after it was removed from the Claimant’s car; traffic control inspection reports from IDOT; an IDOT report stating that the only barricade that was down was the one the Claimant struck; the ledger diary of Nyle Dyer for October 17 and 18, 1983; an IDOT memorandum stating that barricades are inspected daily; the Respondents answers to Claimants request for admissions of fact and documents, which included portions of an IDOT manual entitled Traffic Controls for Streets and Highway Construction and Maintenance Operations; IDOTs Standard 2316-7, which depicts the placement of traffic control devices for highway construction sites in general; and IDOTs original and supplemental IDOT reports. The Commissioner took judicial notice of the fact that October 17, 1983, was a Monday. Only the Respondent submitted a brief.

The Claimant testified that at 9:05 p.m. on October 17, 1983, he was driving from his fathers house in Sterling, Illinois, to his home in West Lebanon, Indiana. He saw a warning of road work ahead and a flashing arrow telling motorists to move to the left lane. The Claimant stated that he moved to the left lane and drove past the barricaded area on the right at a speed of 45 miles per hour. He testified that there was traffic behind him, and after it appeared that he had passed the barricaded area, he moved back to the right lane and accelerated to a speed of between 45 and 50 miles per hour. The Claimant stated that about 20 feet ahead of him he saw something in the highway, which turned out to be a barricade lying on its side. He said the legs of the barricade were standing up. The Claimant stated that the light on the barricade was not operating. The Claimant testified that there was a truck passing him on his left and a ditch or incline to his right. He stated that he braked, downshifted and steered to the right to avoid the barricade, but struck it. The barricade penetrated the floorboard of the car under the clutch and struck the Claimant in the left foot. The Claimant stated that he did not see any “end construction” signs, nor did he see any other barricades after the one he struck. The Claimant testified that he still suffers from swelling and stiffness in his left ankle and takes aspirin once or twice a week for pain. The Claimant, who operates a hair salon, stated that he is unable to service as many customers as he did before the accident. He said a full day normally would consist of cutting 20 heads of hair, but now he can only cut up to 15 heads of hair.

Douglas White, who was a traffic control supervisor at the time of the accident, testified that it was his job to inspect sites to ensure that traffic control measures were properly in place, including checking the condition of the barricades, seeing where they were placed and whether they were upright. He stated that the construction site on Interstate 74 was in place starting October 12, 1983, but he did no inspections until October 26, 1983 — nine days after the accident occurred. He testified that the usual procedure for correcting problems with traffic control at a construction site was to write a report and mail it to the engineer in charge of the site. Sometimes he would talk to the engineer on site. White testified that he normally inspected construction sites once a week. He stated that if he saw a barricade lying on the ground, he would not set it back up or put it to the side, but would make a report. White testified that IDOT standards call for barricades to be spaced 50 feet apart in a taper at the beginning of a highway construction site, then 100 feet apart along the work area for the first 500 feet and 200 feet apart for the remainder of the work area. The IDOT report also included a hand-drawn diagram showing that the downed barricade was the third to the last barricade placed before the construction site ended. However, White testified that he could not say that the diagram depicted the site on the day of the accident.

In his deposition, Nyle Dyer testified that he was die supervisor of the road crew performing the patching work at the accident site. He stated that it was IDOTs policy for road crews to monitor the steel-legged barricades at the construction sites during the night. Dyer testified that a crew member would visit the site every hour or hour and a half to check the lights on the barricades, to make sure the barricades were upright and in their proper positions, and to make sure all warnings signs were in place. He said the crew would stop checking about midnight because there was little traffic in the early morning hours. Dyer stated that on this job, the crew stayed at a nearby motel in Farmer City. When the crew went home on weekends, they would take the barricades down. Dyer said that although he did not recall whether anyone checked tire site on the night of the accident, he said the time sheets for the project might reflect if a crew member went to the site at night because overtime would be reported on the time sheets.

A review of the time sheets for October 17 and 18 showed that Dyers crew did work on those days, but no overtime was recorded that might indicate that crew members checked the barricades at night.

The following portions of IDOTs standards entitled Traffic Controls for Streets and Highway Construction and Maintenance Operations were admitted into evidence:

“Channeling devices should be constructed so as not to inflict any undue damage to a vehicle that inadvertently strikes them.”
“Barricade rails should be supported in a manner that will allow them to be seen by the motorist, to provide a stable support, not easily blown over by the wind or traffic.”
“Barricades are located adjacent to traffic and therefore subject to impact by errant vehicles. Because of the vulnerable position and possible hazard they could create, they should be constructed of lightweight materials and have no rigid stay bracing of A-frame designs.”
“As type two barricades have more reflective area, they are intended for use on expressways and freeways or other high speed roadways.”
“Special consideration must be given to the modern high speed and usually limited access type of highway to accommodate traffic in a safe and efficient manner and for adequate protection of work forces.”

We first consider the Claimants assertion of the doctrine of res ipsa loquitur. We have recognized the doctrine as follows:

“When an injury is caused by an instrumentality under the exclusive control of the party charged with negligence, and is such as would not ordinarily happen if the party having control of the instrumentality had used proper care, an inference or presumption of negligence arises. The burden then rests upon Respondent to rebut tire presumption of negligence arising from the facts of the case.” Weigers v. State (1988), 40 Ill. Ct. Cl. 88, 91.

The first requirement for application of tire doctrine of res ipsa loquitur — that the instrumentality causing the injury was under the exclusive control of the Respondent — is not present here. Because the barricade was sitting on a public highway, where it is subject to acts of people or ácts of God without the knowledge of the Respondent, it could not have been within the exclusive control of the Respondent. This Court has applied the doctrine in such cases as brake failure on a State vehicle, as in the Weigers case, and the collapse of a rotten tree, as in Metzler v. State (1971), 27 Ill. Ct. Cl. 207, where there was no proof that outside instrumentalities caused the tree to collapse. Therefore, we decline to apply the doctrine of res ipsa loquitur in this case.

The State of Illinois is not an insurer of the condition of the highways under its maintenance and control, but it does have a duty to use reasonable care in maintaining roads under its control. (Baker v. State (1989), 42 Ill. Ct. Cl. 110, 114-115.) The exercise of reasonable care requires the State to keep its highways reasonably safe. It is the duty of the State to maintain its highways so that defective and dangerous conditions likely to injure persons lawfully on the highway shall not exist. To be in a dangerously defective condition, the highway must be in a condition unfit for the purpose it was intended. To be held hable for negligence, the State must have actual or constructive notice of a dangerous condition and permit the dangerous condition to exist without warning to the motoring public. Baker, 42 Ill. Ct. Cl. at 115.

In the case at bar, it is obvious that a dangerous condition existed that caused the highway to be unfit for the purpose for which it was intended. A fallen barricade with its steel legs sticking upwards is dangerous. The Claimant testified that it appeared that the construction zone had ended and he was free to return to die right lane and resume his normal speed. He saw no barricades after the one he struck. The only evidence to the contrary was a hand-drawn diagram showing that there were more barricades after the one the Claimant struck. However, witnesses admitted that they could not say that this diagram accurately reflected the accident scene at the time. There is no direct evidence to rebut the Claimants testimony.

It appears that the Claimant exercised reasonable care upon seeing the downed barricade. He attempted to slow down and steered to the right, but the position of the barricade, a truck to his left, and a ditch to his right prevented him from avoiding striking the barricade. Therefore, it is the finding of this Court that a dangerous condition existed that the Claimant could not avoid.

However, we find that the Claimants claim must fail for lack of proof of actual or constructive notice to the Respondent of this condition. To find that the Respondent had constructive notice of a dangerous condition, it must be shown that the defect was substantial enough and must have existed for such a length of time that reasonable persons would conclude that immediate repairs should be made, or, in the alternative, that warning signs be posted. (Aetna Casualty & Surety Co. v. State (1984), 37 Ill. Ct. Cl. 179, 181.) The dangerous condition must have existed for such an appreciable length of time that the Respondent can be charged with negligence in not ascertaining and correcting the condition. Skinner v. State (1975), 31 Ill. Ct. Cl. 45, 49-50.

Where there is an absence of proof as to how long a dangerous condition existed, there is no evidence upon which to charge the State with notice of its existence, and, therefore the requirement of notice is not met. (Baker, 42 Ill. Ct. Cl. at 115; Cataldo v. State (1983), 36 Ill. Ct. Cl. 23, 25.) In cases where this Court has found constructive notice of a dangerous condition, there has been affirmative evidence of the length of time that the condition existed. See Miholic v. State (1979), 33 Ill. Ct. Cl. 23; Palecki v. State (1971), 27 Ill. Ct. Cl. 108.

In the case at bar, if the Claimant had shown that the barricade had been down for a substantial period there would be no doubt that the Respondent had constructive knowledge of the dangerous condition. According to Mr. Dyers testimony, it was IDOTs policy to check the barricades routinely before midnight. There is no evidence whether or not these checks were actually made. The burden of proof is the Claimants, and he has not met his burden.

The Claimant was unable to show whether the barricade had been down for five minutes or five hours.

It is therefore ordered, adjudged and decreed that this claim be and is denied, dismissed, and forever barred.