text:
    (No. 73-CC-361
    Brigance Chevrolet Sales, Inc., Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed July 26, 1973.

    Brigance Chevrolet Sales, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    (No. 73-CC-409
    Nelsen Concrete Products, Inc., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed July 26, 1973.

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


text:
    (No. 73-CC-435
    IBM Corporation, Claimant, vs. State of Illinois, Administrative Office of the Illinois Courts, Respondent.

      Opinion filed July 26, 1973.

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


text:
    (No. 73-CC-439
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Revenue, Respondent.

      Opinion filed July 26, 1973.

    D. K. Mc Intosh, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


author: Holderman, J.

text:
    (No. 6013
    Federal Barge Lines, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 26, 1973.

    Lucas & Murphy and Malcolm D. Durr, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman, J.

Federal Barge Lines, Inc. filed a claim against the State of Illinois alleging that on the 11th day of March, 1969, one of their barges was damaged at Joliet, Illinois.

On the day in question, the John Alexa, which was the vessel supplying the power for the moving of the eight barges and the tow, was bound upstream. When it left Brandon Road Piers in the area of Joliet, it became necessary to go under a series of bridges. Most of these bridges are lift bridges which have to be lifted to allow vessels of certain size to pass underneath.

In this particular tow, one of the barges, the same being barge T-2052, was empty; consequently, it was riding much higher in the water than the rest of the tow.

The tow, while passing under the Jefferson Street bridge which is approximately 1,000-1,200 feet downstream from the Cass Street bridge, blew one long blast on the whistle to warn the tender of the Cass Street bridge that they were coming and which signal is for the purpose of alerting the bridge tender.

It is the duty of the bridge tender when he has heard the long blast of the whistle to either signify that he cannot raise the bridge by turning on a red light, or if he can raise the bridge, to turn on a green light.

After the long whistle blast from the John Alexa was given, the bridge tender on the Cass Street bridge turned on a green light, which was the signal that the bridge tender had received the warning and that the bridge would be raised.

When the motor vessel and tow were approximately 500 feet from the Cass Street bridge, the bridge tender changed the green light to a red light.

The pilot immediately on seeing the change in the signal light, ordered both engines stopped and then put them at full astern in an effort to stop the tow and then back it up. He also piloted the tow so that the barge that was subsequently injured would be in midstream, this being where the bridge was highest and where it had the best possible chance of avoiding the accident which later occurred.

The momentum of the tow was too great to be stopped in the distance that remained after the receiving of the red light signal. The tow continued its forward momentum with the result that the covers of barge T-2052 hit the underside of the bridge, rolling the covers back, and causing the damage complained of.

After the incident, the pilot of the tow was informed by the bridge tender that the bridge had been involved in an accident on the previous day and that he did not have sufficient power to get his west gates down.

The bridge is under the sole control of the respondent and there is not any evidence to the effect that the users of the waterway, including claimant, were informed of the condition of the bridge.

Claimant’s Exhibit No. 1 was identified by the first witness to testify, George Leithner, an independent surveyor. This individual testified that it was his job to examine damages such as had been sustained in this accident and to estimate the approximate cost of repairs. He further testified that the low bid to repair the barge was from Material Service in the amount of $5,333.78, and that subsequently a contract was drawn up between Federal Barge Lines and Material Service for the repair work.

This witness also identified claimant’s Exhibit No. 2, which was a service invoice from his firm in the amount of $123.00 which was paid by Federal Barge and covered the expense of the surveyor in determining the amount of damages to the barge.

The shipyards superintendent of Material Service testified concerning the repairs done to the barge, and stated the work started on the 12th of March, 1969 and was completed on the 4th of April, 1969. He also stated Exhibit No. 3 was the invoice for repairs to the barge.

Claimant’s Exhibit No. 4 was a letter written to the Attorney General of the State of Illinois, signed by John J. Bennett, technical advisor of the Department of Transportation, stating that the charge of $101.00 per day for the use of the barge for a period of 22 days was reasonable and that the cost for repairing the barge was reasonable and not disputed by the department.

Claimant’s Exhibit No. 5 was a copy of the rules and regulations dealing with situations such as are present in this case.

The respondent filed a motion for summary judgment, which was denied, and the case was assigned to a Commissioner for hearing.

The respondent did not offer any evidence, did not contest the amount of damage, and the bridge tender’s testimony was not offered. He apparently was available but was not called by the respondent.

The respondent filed a brief in this cause contending that the claimant was guilty of contributory negligence in not having the barge under control and not being able to stop the same prior to the collision with the bridge.

It is apparent from the record in this case that the bridge tender of the Cass Street bridge was in a position that he not only should have seen the tow coming but also heard the signal not only for the Cass Street bridge but also for the Jefferson Street bridge, which was approximately 1,000-1,200 feet away. It would have been a very simple matter for him to have at that time tested the equipment on his bridge, and if found inoperative, to have given the red light in the first instance instead of the green light.

The green light is the signal to come ahead, which is exactly the procedure followed by the captain of the tow.

The Court has had occasion to pass upon similar situations. The Court calls attention to the case of Fabick Tugboat Rental Co., Inc. vs. State of Illinois, 21 CC Page 360. In that case, the claimant sustained damages as the result of a collision of the boat, NINA F, with the Jefferson Street bridge in Joliet. The captain of the tow gave the proper signal and stopped his tow as it approached the Rock Island Railroad bridge, which is downstream from the Jefferson Street bridge. After the bridge was reopened, he signaled the Jefferson Street bridge to open but received no reply. The Captain went about half way between the tv/o bridges, or some 600 feet south of the Jefferson Street bridge, and gave the proper signal again but received no return signal from the bridge tender. At that time, the Captain of the tow stated that he could see the bridge tender at his post and he signaled him with the lights but still received no return signal. He continued on toward the bridge and gave another signal when approximately 300 feet from the bridge, and then, upon still not receiving any signal, he have a distress signal, and immediately reversed his engine to full astern but he was unable to stop the NINA F, and a crash resulted, causing the damages complained of.

The Court, in passing upon those facts, stated:

"We are of the opinion that failing to raise the bridge when it had ample notice of the approach of the vessel, was a neglect of duty on the part of the respondent. The State of Illinois, acting by and through its agent, was guilty of negligence, which proximately caused the damages complained of by the claimant. In the case of Clement vs. Metropolitan West Side EL. Ry. CO., 123 Fed. 271 (C.C.A. 7th Cir., 1903), which involves facts similar to those in the instant case, the Court said:

"A bridge spanning a navigable river is an obstruction to navigation tolerated because of necessity and convenience to commerce upon land. Such a structure must be so maintained and operated that navigation may not be impeded more than is absolutely necessary, the right of navigation being paramount. It is incumbent upon the owner that the bridge be so constructed that it may be readily opened to admit the passage of craft, and maintained in suitable condition thereto. It is also his duty to place in charge those who are competent to operate the bridge, to watch for signals, and to open the bridge for the passage of vessels, and for the performance of such delegated duty he is responsible. It is also his duty to equip the bridge with proper lights giving warning of the position of the bridge and of its opening and closing. If for any reason the bridge cannot be opened, proper signals should be given to that effect such as will warn the approaching vessel in time to heave to. A vessel, having given the proper signal to open the bridge and prudently proceeding under slow speed has, in the absence of proper warning, the right to assume that the bridge will be timely opened for passage. She is not bound to heave to until the bridge has been swung or raised and locked, and to critically examine the situation before proceeding (City,of Chicago vs. Mullen, 54 C.C.A. 94, 116 Fed. 292), but may carefully proceed at slow speed upon the assumption that the bridge will open in response to the signal, and may so proceed until such time as it appears by proper warning, or in reasonable view of the situation, that the bridge will not be. opened (Mainistee Lumber Company vs. City of Chicago (D.C.), 44 Fed. 87; Central Railroad Company of New Jersey vs. Pennsylvania Railroad Company, 8 C.C.A. 86, 59 Fed. 192), when it become the duty of the vessel, if possible, to stop, and, if necessary, to go astern.”

A similar situation presented to this Court was the case of J. E. Vickers, et al vs. State of Illinois, 22 C.C., Page 660.

The facts in this case are nearly identical with the case at bar. In that case, the Nita Dean was proceeding upstream at Joliet and as it neared the Ruby Street bridge, it properly signaled its approach when it was between one-half and one-quarter mile from the bridge. The return signal from the bridge tender was a flashing green light given for a period of time in accordance with existing regulations. The Nita Dean continued toward the bridge at the rate of approximately IV2 miles per hour. No other signal was given until the Nita Dean was too close to avoid the collision. The bridge was clear of traffic, and nothing was apparent to cause the pilot to believe that it would not open in sufficient time. When the Nita Dean was approximately 250 feet from the bridge, the red flasher came on, and the pilot immediately reversed.his engines, and thereafter did all that could have been reasonably expected of him to stop.

This Court finds that it was the duty of the bridge tender in situations such as this to give proper signals to the approaching vessels when the bridge will not open. These signals should be given the approaching vessels in sufficient time so that they can heave to, and once the pilot of a vessel has been given the proper signal to proceed, the vessel has the right to assume that the bridge will be opened for passage.

It is the opinion of this Court that the claimant was not guilty of contributory negligence and that the only negligence involved was that of the respondent by its failure to give the red light to the oncoming tow in sufficient time so that it could stop. This it failed to do and the damages complained of resulted.

Claimant’s claim is hereby allowed in the amount of $7,678.78.


text:
    (No. 6423
    Bobby Gene Shaw, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed July 26, 1973.

    Bobby Gene Shaw, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-356
    Foster G. Mc Gaw Hospital, Loyola University of Chicago, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 2, 1973.

    Foster G. Mc Gaw Hospital, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-367
    Hazeltine Corporation, Claimant, vs. State of Illinois, Department of Public Health, Respondent.

      Opinion filed August 2, 1973.

    Samuel Weisbard and Byron L. Gregory, Attorneys for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-431
    Edward S. Peterka, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 2, 1973.

    Edward S. Peterka, M.D., Claimant, pro se.

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


text:
    (No. 73-CC-436
    Associated Anesthesiologists of Decatur, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 2, 1973.

    Associated Anesthesiologists of Decatur, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-443
    Pfizer, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 2, 1973.

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


text:
    (No. 6560
    Kankakee Industrial Supply Company, Inc., Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed August 2, 1973.

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


text:
    (No. 6976
    Texaco Inc., Claimant, vs. State of Illinois, Department of Personnel, Respondent.

      Opinion filed August 2, 1973.

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


text:
    (No. 7062
    Burton E. Bagby, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 2, 1973.

    Dr. Burton E. Bagby, Claimant, pro se.

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


text:
    (No. 73-CC-67
    American Laundry Machinery, A McGraw-Edison Company Division, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 6, 1973.

    Teller, Levit & Silvertrust, Attorney for Claimant.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-75
    Beck’s Book Store, Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed August 6, 1973.

    Beck’s Book Store, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-219
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Registration and Education, Respondent.

      Opinion filed August 6, 1973.

    Atlantic Richfield Company, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-225
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Public Health, Respondent.

      Opinion filed August 6, 1973.

    Atlantic Richfield Company, Claimant, pro se.
    William J. Scott Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-232
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed August 6, 1973.

    Atlantic Richfield Company, Claimant, pro se.

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


text:
    (No. 73-CC-249
    Phillips Petroleum Company, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed August 6, 1973.

    Phillips Petroleum Company, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-289
    Scientific Products Division of American Hospital Supply Corporation, Claimant, vs. State of Illinois, Environmental Protection Agency, Respondent.

      Opinion filed August 6, 1973.

    Scientific Products Division of American Hospital Supply Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-324
    Sargent-Welch Scientific Company, Claimant, vs. State of Illinois, Environmental Protection Agency, Respondent.

      Opinion filed August 6, 1973.

    Sargent-Welch Scientific Co., Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-362
    Brigance Chevrolet Sales, Inc., Claimant, vs. State of Illinois, Department of Business and Economic Development, Respondent.

      Opinions filed August 6, 1973.

    Brigance Chevrolet Sales, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-364
    Lake Forest College, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 6, 1973.

    Devoe, Shadur, Krupp, Miller, Adelman, and Hamilton, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-392
    The Salvation Army, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 6, 1973.

    The Salvation Army, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-399
    Modern Business Systems, Inc., Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed August 6, 1973.

    Modern Business Systems, Inc., Claimant, pro se.

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


text:
    (No. 73-CC-405
    John N. Chappel, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 6, 1973.

    John N. Chappel, M.D., Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-420
    Robert J. Barth, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed August 6, 1973.

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


text:
    (No. 73-CC-433
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed August 6, 1973.

    D. K. Me Intosh, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-434
    Atlantic Richfield Company, Claimant vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed August 6, 1973.

    D. K. Me Intosh, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-441
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Office of the State Comptroller, Respondent.

      Opinion filed August 6, 1973.

    D. K. Me Intosh, Attorney for Claimant.

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


text:
    (No. 73-CC-442
    Atlantic Richfield Company, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 6, 1973.

    D. K. Me Intosh, Attorney for Claimant.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-452
    Waterman Flamegas Corp., Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed August 6, 1973.

    Waterman Flamegas Corp., Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-463
    Oliver B. Fifer, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 6, 1973..
    Oliver B. Fifer, Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-1
    Smith Oil Corporation, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed August 6, 1973.

    Smith Oil Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 4995
    Frances Wasilkowski and John Wasilkowski, Claimants, vs. State of Illinois, Respondent.

      Opinion filed August 6, 1973.

    Louis M. March, Attorney for Claimants.

      William J. Scott, Attorney General; Morton Zaslavsky, Edward Arkema and Saul Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.

Claimant Frances Wasilkowski seeks recovery of $25,000 damages for injuries suffered in a collision between her automobile and a truck owned by respondent, State of Illinois on March 8, 1961. John Wasilkowski seeks recovery for loss of consortium due to the injuries of claimant.

It appears from the evidence that on the date in question, at 5:30 p.m., Claimant was traveling southbound on Route 31 approximately one mile North of Route 176. It was windy and snowing and snow was on the ground. The roads were icy. According to Claimant, she was traveling between 15 and 20 miles per hour. The highway was two lanes, with one northbound and one southbound lane. She was traveling on an unplowed lane and was following tracks in the snow which was approximately six to eight inches deep. Claimant had left the restaurant where she worked as a waitress at approximately five p.m. She testified that she had finished working at 2:00 p.m. and that she may have had between two to four drinks before leaving. According to claimant, she was driving on her side of the road and noticed respondent’s snow plow approaching her at five or six car lengths on the other side of the road. Claimant testified that as she came alongside the respondent’s vehicle something whipped out from the back of the snow plow truck and hit her car. The next memories of the witness were of regaining conciousness in the car and being driven in an ambulance to the hospital where she remained for five or six days. The claimant, her physician and her husband John Wasilkowski testified concerning the injuries suffered in the accident.

Former State Trooper Walter Ziel testified that he had been called to investigate the accident on the day in question. The witness testified that he had personally given or taken part in 25,000 breath tests concerning alcoholic beverages, and that he spent approximately 5 to 7 minutes with claimant in her automobile waiting for the ambulance and noticed that she had an "extremely strong odor of alcohol on her breath.” Claimant was unconscious during this time. He further testified that because of the snow he couldn’t determine whether either the truck or the auto was on the road at the time of the accident.

The driver of the truck with the snow plow, Frank E. Krueger, an employee of the Division of Highways testified that on the day of the accident, he was driving northbound on Route 31. Paul Schmidt accompanied the witness as an assistant or driver’s helper. Mr. Krueger had been driving trucks for eight to ten years prior to the accident. Krueger testified that he was traveling between 10 and 12 miles per hour which is normal when traveling with the "equipment down” and that his headlights were on. He was plowing snow off the highway and there was approximately one inch of frozen ice under the snow. It was very slippery and the visibility was poor with snow falling and blowing. The truck had snow tires on both front and rear and was being driven in "creeper gear” which could be brought to an instant halt within four or five feet. The snowplow is mounted on an angle on the front of the truck. The plow measures approximately nine feet across and protrudes approximately two and one half feet beyond the left side of the truck. A cinder spreader is mounted on the rear of the truck and does not protrude beyond either side of the truck. Krueger further testified that he had been plowing the road in a straight line with the edge of the highway as a guide. The truck that he was driving has four wheels in the rear and two in the front, with three wheels off the road on the right shoulder at all times. No portion of the truck was protruding beyond the center line at the time of the collision. Mr. Krueger observed claimant’s car at a distance of approximately three or four hundred feet. He estimated that she was traveling forty to forty-five miles per hour. The witness reduced his speed upon seeing claimant’s car. Claimant continued in a straight line for until approximately 200 feet from the truck, and then began to weave. Krueger stated: "Her rear end of her car was going over the center line coming back and going over the center line and coming back.” Krueger instructed his helper to pull up the wing of the plow and then he drove the truck onto the shoulder of the highway. According to Krueger, the truck was completely stopped when he heard the click of claimant’s car striking the truck. After the impact the claimant’s car continued about fifty feet straight south and ended up facing south in a snow bank off the shoulder of the highway. The claimant’s car struck the body of the truck, the rear wheel and the cinder spreader, severing the spreader from the truck. After the accident Krueger observed weaving tire tracks in the snow. The accident occurred in the northbound lane of traffic.

Stanley Brown, testified on behalf of claimant that he was driving a truck tractor northbound about 90 to 100 feet in back of the truck with the snow plow. He testified that the plow seemed to dig into the ground and that the rear end of the truck veered into the southbound lane.

Before claimant may recover, it must be proved by a preponderance of the evidence that (1) that claimant was free from contributory negligence; (2) that respondent was negligent; and (3) that such negligence was the proximate cause of the accident.

Claimant has failed to prove either that she was free from contributory negligence or that respondent was negligent. Although the witnesses differed with regard to the speed of the claimant’s car, claimant did not prove that she was in control of the vehicle she was driving, nor that she was not under the influence of alcohol at the time of the collision.

The Court therefore holds that the claim is denied.


text:
    (No. 5738
    Addressograph Multigraph Corporation, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 6, 1973.

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


text:
    (No. 6902
    Henry G. Giragos, M.D., Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed August 6, 1973.

      The Professional Bookkeeper, for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6977
    Texaco, Inc., Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed August 6, 1973.

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


text:
    (No. 73-CC-329
    Robert Traisman, Ph.D., Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed August 15, 1973.

    Robert N. Traisman, Ph.D., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-334
    Joe Damico, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed August 15, 1973.

    Joe Damico, Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-363
    Lake Forest College, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 15, 1973.

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


text:
    (No. 73-CC-386
    Luciano Susini, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 15, 1973.

    Luciano Susini, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexlee, Assistant Attorney General, for Respondent.
   Per Curiam.


author: Perlin, C. J.

text:
    (No. 73-CC-397
    Leslie C. Elliott, Claimant, vs. State of Illinois, Department of Local Government Affairs, Respondent.

      Opinion filed August 15, 1973.

    Leslie C. Elliott, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C. J.


text:
    (No. 73-CC-454
    Webber Manufacturing Co., Inc., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed August 15, 1973.

    Webber Manufacturing Co., Claimant, pro se.

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


text:
    (No. 74-CC-11
    Bloomington Cornbelt Biochemical Lab, Inc., Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed August 15, 1973.

    Bloomington Cornbelt Biochemical Lab, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-15
    Dean Business Equipment Company, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed August 15, 1973.

    Floyd R. Dean, for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-31
    Haenig Electric Company, Claimant, vs. State of Illinois, Civil Defense Agency, Respondent.

      Opinion filed August 15, 1973.

    Haenig Electric Company, Claimant pro se.
    William J, Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6970
    Central Office Equipment Company Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed August 15, 1973.

    Central Office Equipment Company, Claimant pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 7090
    V. M. Markets, Inc., a/k/a Vito’s Certified Food Market Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 15, 1973.

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


text:
    (No. 73-CC-247
    Phillips Petroleum Company, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed August 23, 1973.

    Phillips Petroleum Company, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-296
    Geraldine A. Tucker, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 23, 1973.

    Geraldine A. Tucker, Claimant, pro se.

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


text:
    (No. 73-CC-312
    Leonard Sturman, D.P.M., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.
    Opinion filed August 23, 1973.
    Leonard Sturman, D.P.M., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-338
    Linda L. Fitzsimmons, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 23, 1973.

    Linda L. Fitzsimmons, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-400
    Modern Business Systems, Inc., Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed August 23, 1973.

    Modern Business Systems, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-437
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed August 23, 1973.

    D.K. McIntosh, Attorney for Claimant.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-440
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Registration and Education, Respondent.

      Opinion filed August 23, 1973.

    D. K. Mc Intosh, Attorney for Claimant.

      William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-462
    Danny N. Michel, Sheriff Fayette County Illinois, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed August 23, 1973.

    Danny N. Michel, Sheriff Fayette County Illinois, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-10
    Atlantic Richfield Company,Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed August 23, 1973.

    D. K. Me Intosh, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-32
    Braun Automotive, Inc., Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed August 23, 1973.

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


text:
    (No. 5545
    SCM Corporation, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed August 23, 1973.

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


text:
    (No. 5821
    Robert Lee Hacker, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 23, 1973.

    Ward, Ward, Castendyck, Murray and Pace, Attorney for Claimant.

      William J. Scott, Attorney General, for Respondent.
   Holderman, J.

Complaint was filed in this cause by one Robert Lee Hacker who alleges that on January 2, 1969, he was a patient under the care, control and supervision of the Singer Zone Center located in Rockford, Illinois, which is a center established for the treatment of alcoholics.

Claimant alleges that at approximately 2:00 p.m. on the date in question, he was in the Singer Zone Center gymnasium for the purpose of rehabilitative exercise and that he was present as a result of the instruction of an employee of the center.

Claimant, a man of 43 years of age, had been at the Singer Zone Center for approximately two weeks. This is a voluntary treatment center and a participant is free to leave at any time he so desires.

On the afternoon in question, he went to the gymnasium and found the door was locked. It was opened by an attendant and he and another individual went into the gymnasium.

Claimant was not wearing gymn shoes when he went in but selected a pair in the gymnasium, which he states were too large and did not fit him. According to his testimony, he played paddle ball with two other patients for approximately 45 minutes, all of this being done without any attendant or director being present to either instruct or to offer counseling services.

Paddle ball, according to the evidence, is a very strenuous game and one that requires a great deal of physical stamina.

Claimant alleges that at this time and place and while participating in the game, he suffered a fall on the gymnasium floor which resulted in a fracture of the bone in his right elbow.

The Complaint alleges that the claimant was required to be present for said gymnastic exercises and further alleges that the State was negligent for the following reasons:

A. Directed plaintiff to participate in strenuous physical exercise with knowledge or reckless disregard of the fact that plaintiff at the time was under medication which rendered plaintiff groggy and unstable.
B. Directed plaintiff to participate in strenuous physical exercise without first determining whether plaintiff was at that time under medication which would render plaintiff groggy and unstable.
C. Failed to supervise the fitting of shoes and failed to maintain an adequate stock of rubber soled footwear available in the gymnasium for use by the patients so that plaintiff was required to wear an improperly fit pair of shoes.
D. Failed to provide any control of supervision whatsoever for the plaintiff while plaintiff was in the gymnasium.
E. Otherwise was careless and negligent in the care, control and supervision of the plaintiff.

The facts show that claimant was given medication upon his admission to the center in the form of vitamins and Librium pills. He took these latter pills three times a day, the first prescription was for 25 grains a day, and the second dosage was changed to 10 grains of Librium four times a day.

The evidence discloses that on January 2, 1969, claimant was in the gymnasium immediately after lunch, which was the first time he had been in the gymnasium for approximately two weeks. He had taken his last Librium pill at 12:30.

The undisputed evidence shows that there was not an employee of the State present at the time of the accident but that one Karen Hatfield, an employee of the State, had unlocked the gymnasium for the use by claimant and two other men. This was done contrary to the rules of the institution because there was no physical education therapist present while the three men were using it.

Claimant stated that he normally wears a size 8 shoe but on the day in question, due to the fact that he was unable to find a size 8 shoe, he was using a size 9 or QVz.

Claimant also alleges that he had never played paddle ball before. He was playing paddle ball when he slipped and fell, fracturing his right elbow.

Claimant alleges that he felt groggy as a result of medication he was taking and was unsteady on his feet.

The claimant and respondent introduced conflicting evidence as to the effect of the drug Librium upon the human system.

This Court must decide whether or not the State was guilty of negligence as charged and also as to whether or not there was any contributory negligence on the part of claimant.

A thorough review of the evidence discloses that the claimant was under no duress or compulsion to play paddle ball nor was he under any duress to wear the shoes that did not fit him.

The Court would like to point out that the claimant was an adult and was in a position to decide for himself if it was unwise for him to play paddle ball and he was also free at all times to question the amount of Librium that he was taking.

It is the opinion of this Court that claimant has not proven himself free from contributory negligence in donning the shoes that he wore at the time of the accident and to play under the conditions that he did.

It is further quite evident that he tripped or stumbled over his own feet and that, while the State may have been somewhat negligent in not having an attendant present at all times, we do not believe it is the main or contributing cause to the accident in question.

The mere presence of an attendant would not have prevented the fall which occasioned the injury.

The undisputed facts are that all of the acts in which the claimant participated were voluntary acts on his part and were not done under the direction of or occasioned by any member of the staff of the institution.

Claimant having failed to establish his case by a preponderance of the evidence, said cause is hereby dismissed.


text:
    (No. 73-CC-311
    Walter A. Moehle, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed August 27, 1973.

    Walter A. Moehle, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-320
    Ray J. Hagist, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed August 27, 1973.

    Ray J. Hagist, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-459
    County of Cook, and Cook County Department of Public Aid, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 27, 1973.

    Bernard Carey, Cook County State’s Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6588
    Rockford Memorial Hospital, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 27, 1973.

    Rockford Memorial Hospital, Claimant, pro se.

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


text:
    (No. 6639
    Salon Trucking Co., Inc., Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed August 27, 1973.

    Salon Trucking Company, Inc., Claimant, pro se.
    William J. * Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C. J.


text:
    (No. 73-CC-77
    Braniff International, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed September 5, 1973.

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


text:
    (No. 73-CC-222
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Registration and Education, Respondent.

      Opinion filed September 5, 1973.

    Atlantic Richfield Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-223
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Agriculture, Respondent.

      Opinion filed September 5, 1973.

    Atlantic Richfield Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-230
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Agriculture, Respondent.

      Opinion filed September 5, 1973.

    Atlantic Richfield Company, Claimant, pro se.

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


text:
    (No. 73-CC-313
    Ralph Habbe, Jr., Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed September 5, 1973.

    Ralph Habbe, Jr., Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-315
    Ray E. Garlich, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed September 5, 1973.

    Ray E. Garlich, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-319
    Art Lehde, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed September 5, 1973.

    Art Lehde, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-389
    St. Mary Hospital, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 5, 1973.

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


author: Perlin, C.J.

text:
    (No. 73-CC-390
    Lp-Gas Equipment Corporation, Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed September 5, 1973.

    Lp-Gas Equipment Corp., Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 73-CC-417
    Behavior Modification Technology, Inc., Columbus, Ohio, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 5, 1973.

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


text:
    (No. 73-CC-425
    Catholic Charities of Archdiocese of Chicago, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed September 5, 1973.

    Catholic Charities of Archdiocese of Chicago, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-426
    Catholic Charities of the Archdiocese of Chicago, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed September 5, 1973.

    Catholic Charities of the Archdiocese of Chicago, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-427
    Catholic Charities of the Archdiocese of Chicago, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed September 5, 1973.

    Catholic Charities of the Archdiocese of Chicago, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-428
    Catholic Charities of the Archdiocese of Chicago, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed September 5, 1973.

      Catholic Charities of the Archdiocese of Chicago, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-429
    Catholic Charities of Archdiocese of Chicago, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed September 5, 1973.

    Catholic Charities of Archdiocese, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-445
    Atlantic Richfield, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed September 5, 1973.

    D.K. Mc Intosh, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-18
    Volkswagon South Shore, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 5, 1973.

    Volkswagon South Shore, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-27
    Mount Shelter Care Home, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 5, 1973.

    Mount Shelter Care Home, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-28
    Helen E. Hughes, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed September 5, 1973.

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


text:
    (No. 6608
    Ace Sign Company, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed September 5, 1973.

    Ace Sign Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


author: Burks, J.

text:
    (No. 7069
    Robert W. Milam, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1973.

    Robert W. Milam, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler and Martin Soll, Assistant Attorneys General, for Respondent.
   Burks, J.

Claimant, Robert Milam, seeks recovery of $337.10 for damages incurred when three wards of the Illinois Valley View Boys School escaped and stole claimant’s automobile and personal property, which was stored in the vehicle.

Departmental reports of the Department of Corrections by John R. Platt, Superintendent of the Valley View Boys School, were submitted along with a Joint Stipulation entered into between the parties.

The submitted departmental reports, recommending that an award be made to claimant, contained the following information:

"On the evening of September 24, 1972, at approximately 8:35 p.m., three students in the custody of this Institution effected an escape. The students, Andre Smith, Randall Reaves and Robert Davis, had been committed to the Department as delinquents and, in the case of Reeves and Davis, had had previous histories involving auto theft, criminal trespass to vehicles, and robbery.
The students apparently hid in a large field in a gulley adjacent to the Institution and, in spite of our search efforts, were undetected. The Institution shift change occurred at 10:00 p.m., and Mr. Milam reported to work.
Because of shortages in personnel, we were unable to man the Institution gate and consequently it was left open to permit search vehicles access to the Institution grounds. Our failure to provide security on the gate permitted the students to leave their place of concealment, re-enter the Institution and have unhampered access to Mr. Milam’s vehicle, which they broke into, hot-wired and drove to Chicago.
Because of our lack of adequate personnel, we neglected to provide security for the parking area. Mr. Milam had exercised ordinary care in terms of locking his vehicle in conforming with the regulation of the Institution.
Retrospectively, we were at fault in not taking adequate precautions to insure the integrity of our employee’s property. As indicated, two of the three students involved have histories involving theft and criminal trespass to vehicles.
The students were subsequently apprehended and admitted to the auto theft and wrecking the car. They were transferred to more secure facilities per the Department’s decision.”

Since the State is not an insurer, claimant must prove negligence on the part of respondent before any award is granted for damage from an escaped inmate. Jones v. State, 26 C.C.R. 163 (1967).

It is the opinion of this court that the investigation and report of the Department of Corrections establish and concede respondent’s negligence in permitting three youths who had had previous histories in such criminal propensities, to escape from the Valley View Boys School and, while on escape, steal the automobile belonging to Robert Milam. Respondent has stipulated as to the amount of claimant’s loss.

Claimant, Robert Milam, is hereby awarded damages in the sum of $337.10.


text:
    (No. 73-CC-101
    Desaulniers and Company, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed September 17, 1973.

    Desaulniers and Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-204
    Huck Manufacturing Company, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed September 17, 1973.

    Huck Manufacturing Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-339
    City Auto Sales Company, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent

      Opinion filed September 17, 1973.

    City Auto Sales Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-466
    The Perkin-Elmer Corporation, Claimant, vs. State of Illinois, Environmental Protection Agency, Respondent.

      Opinion filed September 17, 1973.

    The Perkin-Elmer Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6411
    Mt. Alverno School for Boys, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed September 17, 1973.

    Mt. Alverno School for Boys, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6689
    Charles Mc Corkle, Jr., Claimant, vs. State of Illinois, Various Agencies, Respondent.

      Opinion filed September 17, 1973.

    Charles McCorkle, Jr., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6911
    Marathon Oil Company, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed September 17, 1973.

    Marathon Oil Company, Claimant, pro se.

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


text:
    (No. 6974
    Texaco, Inc., Claimant, vs. State of Illinois, Department of Agriculture, Respondent.

      Opinion filed September 17, 1973.

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


text:
    (No. 6982
    Illinois State University Foundation, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed September 17, 1973.

    Ronald V. Mays, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 7089
    Bowman Products Company, Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed September 17, 1973.

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


text:
    (No. 7105
    James J. Travers, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed September 17, 1973.

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


text:
    (No. 73-CC-86
    Lloyd Gene Perry, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed September 20, 1973.

    Lloyd Gene Perry, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-106
    Michael Reese Hospital, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed September 20, 1973.

    Michael Reese Hospital & Medical Center, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-114
    Weldotron Corporation, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed September 20, 1973.

    Weldotron Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-314
    Kenneth L. Mc Kinzie, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed September 20, 1973.

    Kenneth L. Me Kinzie, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-317
    Harold Evans, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed September 20, 1973.

    Harold Evans, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-318
    Victor Schubert, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed September 20, 1973.

    Victor Schubert, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-394
    Elnora Whitlow, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 20, 1973.

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


text:
    (No. 73-CC-438
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Agriculture, Respondent.

      Opinion filed September 20, 1973.

    D. K. Mc Intosh, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-448
    Joseph L. Donahue, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 20, 1973.

    Asher, Greenfield, Gubbins & Segall, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-468
    John E. Mulholland, Jr., Claimant, vs. State of Illinois, Department of Business and Economic Development, Respondent.

      Opinion filed September 20, 1973.

    John E. Mulholland, Jr., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-39
    Research Appliance Company, Claimant, vs. State of Illinois, Environmental Protection Agency, Respondent.

      Opinion filed September 20, 1973.

      Research Appliance Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-45
    Dean Business Equipment Company, Inc., Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed September 20, 1973.

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


text:
    (No. 74-CC-57
    Fisher Scientific Company, Claimant, vs. State of Illinois, Department of Registration and Education, Respondent.

      Opinion filed September 20, 1973.

    Fisher Scientific Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6860
    Carl P. Birk, M.D., Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed September 20, 1973.

    Midwest Credit, for Claimant.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 7012
    V. Kachgal, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed September 20, 1973.

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


text:
    (No. 73-CC-38
    Kent Industries, Inc., A Corporation, Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed October 2, 1973.

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


text:
    (No. 74-CC-2
    Flamegas Chicago Corp., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed October 2, 1973.

    Flamegas Chicago Corp., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-22
    Digital Equipment Corp., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed October 2, 1973.

    Digital Equipment Corp., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-44
    Dean Business Equipment Company, Inc., Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed October 2, 1973.

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


text:
    (No. 74-CC-59
    Anta Corporation, d/b/a Four Seasons Nursing Center of Wheaton, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed October 2, 1973.

    Four Seasons Nursing Center of Wheaton, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-66
    A. B. Dick Products Co., Ralph B. Jones, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed October 2, 1973.

    A. B. Dick Products Co., Ralph B. Jones, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 5430
    Princeton Electric Supply, Inc., Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed October 2, 1973.

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


text:
    (No. 5608
    SCM Corporation, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed October 2, 1973.

    Brown, Stine, Cook and Hanson, Attorney for Claimant.

      William J. Scott, Attorney General, for Respondent.
   Holderman, J.


text:
    (No. 73-CC-6
    Gulf Oil Company — U.S., Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed October 11, 1973.

    Gulf Oil Company — U.S., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-240
    Scientific Products, Division of American Hospital Supply Corp., Claimant, vs. State of Illinois, Department of Registration and Education, Respondent.

      Opinion filed October 11, 1973.

    Scientific Products, Division of American Hospital Supply Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Saul. R. Wexler and Edward L. S. Arkema, Assistant Attorneys General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-316
    Arthur G. Hake, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed October 11, 1973.

    Arthur G. Hake, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-351
    Daniel Rogers, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed October 11, 1973.

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


text:
    (No. 73-CC-393
    William Cohn, Executor of the Estate of Nettie B. Cohn, deceased, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed October 11, 1973.

    Melvin N. Routman, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-64
    Brinkmann Instruments, Inc., Claimant, vs. State of Illinois, National History Survey, Respondent.

      Opinion filed October 11, 1973.

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


text:
    (No. 6079
    Gulf Oil Corporation, Claimant, vs. State of Illinois, Various Agencies, Respondent.

      Opinion filed October 11, 1973.

    Gulf Oil Corporation, Claimant, pro se.

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


text:
    (No. 6787
    Standard Oil Division of American Oil Company, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed October 11, 1973.

    Standard Oil Division of American Oil Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6900
    Anesthesiologists, Inc., Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed October 11, 1973.

    The Professional Bookkeeper, for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6901
    Dumanian Medical Corporation, Claimant, vs. State of Illinois, State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed October 11, 1973.

    The Professional Bookkeeper, for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6921
    St. Francis Hospital, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed October 11, 1973.

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


text:
    (No. 73-CC-268
    Tool & Hoist Division of Ingersoll-Rand Company, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed October 15, 1973.

    Ingersoll-Rand Company, Claimant, pro se.

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


text:
    (No. 74-CC-3
    Town House Hotel, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed October 15, 1973.

    Town House Hotel, Claimant, pro se.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-53
    Robert T. Fielding, M.D., Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed October 15, 1973.

    Robert T. Fielding, M.D., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-55
    John F. Flynn, Jr., M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed October 15, 1973.

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


text:
    (No. 74-CC-78
    Thomas Kovachevich, D.O., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed October 15, 1973.

    Thomas Kovachevich, D.O., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-79
    George T. Caleel, D.O., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed October 15, 1973.

    George T. Caleel, D.O., Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-80
    George T. Caleel, D.O., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed October 15, 1973.

    George T. Caleel, D.O., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 74-CC-81
    George T. Caleel, D.O., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed October 15, 1973.

    George T. Caleel, D.O., Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6491
    Andrew J. Kozak, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 15, 1973.

    John O. Heimdal, Attorney for Claimant.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Burks, J.

This cause of action arose in August of 1971, when the claimant suffered personal property damage to his soybean crop in the stipulated amount of $750.00 after 60 head of cattle from the adjacent Illinois Penitentiary Farm at Joliet broke through the respondent’s fence and entered onto claimant’s property.

The parties agreed by a stipulation that the respondent owned and operated the Illinois Penitentiary System; that the claimant was the tenant in possession of a farm adjacent to the Joliet Branch of the Penitentiary; that the claimant had presented this claim previously to Warden John J. Twomey of the Joliet Branch; that the claimant was the sole owner of his claim; and that the amount of claimant’s damages was $750.

The only issue is one of negligence.

The claimant testified that on the day of the occurrence, at approximately 3:30 p.m., he discovered about 60 head of the State’s cattle that entered on to his land through the "wrecked” fence that surrounded the penitentiary’s farm. The penitentiary was then called by the claimant and informed of the incident.

Mr. Donald Rentz, the Farm Superintendent, testified as to the manner by which the cattle broke through the fence. He said that, at the point where the cattle entered, there had been a gully under the fence which had been filled in with logs and dirt; and that the cattle were, therefore, able to push the fence up and go under it on the claimant’s farm. Mr. Rentz added that this gully had been filled with dirt "many a time” and that, although the logs had never been pushed out before, after this incident another method was employed to repair the fence more permanently.

As to the manner in which the cattle were removed, Mr. Rentz related that four horsemen were brought on to the claimant’s farm by the penitentiary to round up the cattle and in so doing the soybeans were damaged. It appears that most of the damage was caused when the penitentiary’s horsemen tried to corral the cattle.

Both parties concede that the question of liability arising from this occurrence is covered by the following provision stated in Ch. 8, Sec. 1, Ill. Rev. Stat., 1971:

"Hereafter, it shall be unlawful for any animal of the species of horse, ass, mule, cattle, goat, swine or geese, to run at large in the State of Illinois: Provided, that no owner or keeper of such animals shall be liable for damages in any civil suit for injury to the person or property of another caused by the running at large thereof, without the knowledge of such owner or keeper, when such owner or keeper can establish that he used reasonable care in restraining such animals from so running at large.”

After a careful review of the testimony, it is the finding of this court that the respondent failed to exercise reasonable care in restraining its cattle from running at large; that the respondent had knowledge of the stray animals at the time they caused the damage to the claimant’s soybean crop; and that no negligence of the claimant contributed to the occurrence. Therefore, the claimant has established the necessary elements for recovery of his damages consistent with the ruling of this court in Country Mutual Insurance Co., et al. v. State, No. 5391 (1972).

The claimant, Andrew J. Kozak, is hereby awarded damages in the amount of $750.00.


text:
    (No. 6874
    Howard Worthington, Inc., Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed October 15, 1973.

    Howard Worthington, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-66
    The Jewish Children’s Bureau of Chicago, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed October 18, 1973.

    Aaron, Aaron, Schimberg & Hess, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-76
    Matthews Transfer Company, Claimant, vs. State of Illinois, Environmental Protection Agency, Respondent.

      Opinion filed October 18, 1973.

    Matthews Transfer Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-153
    Charles Mc Corkle, Jr., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed October 18, 1973.

    Charles Mc Corkle, Jr., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-198
    Northbrook Lumber Company, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed October 18, 1973.

    Northbrook Lumber Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-414
    American Institute of Real Estate Appraisers of the National Association of Real Estate Boards, An Illinois Not-For-Profit Corporation, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed October 18, 1973.

    McDermott, Will & Emery, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-432
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed October 18, 1973.

    D. K. Mc Intosh, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-447
    Liberty Asphalt Products, Inc., Claimant, vs. State of Illinois, Department of Transportation, Respondent.
    Opinion filed October 18, 1973.
    Liberty Asphalt Products, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6590
    Black and Company, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed October 18, 1973.

    Black and Company, Claimant, prq se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 7043
    Klaus Radio, Inc., Claimant, vs. State of Illinois, Bureau of Investigation, Respondent.

      Opinion filed October 18, 1973.

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


text:
    (No. 5334
    Jacklyn Cumber, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 26, 1973.

    Pollack and Ennis, Attorney for Claimant.
    William J. Scott, Attorney General, for Respondent.
   Holderman, J.

Granting Respondent’s Motion to Dismiss

This is a cause of action brought against the State of Illinois, Respondent, for damages suffered by the claimant’s car.

It appears that on or about August 13, 1965, claimant parked her car on the grounds of the Illinois State Fair and that the State Police of the Illinois State Fair Ground called the Ernie Schmidt Standard Service to tow said car from the parking place. The car in question was a 1964 Pontiac Grand Prix model.

The Complaint alleges that under the direction of the State Police, in the process of towing said car, the brake bands and a part of the brake mechanism was broken, and when claimant attempted to start said car and drive it, the car being parked on an incline, it crashed into another vehicle, causing damages in the amount of $162.58.

Claimant stated she pumped her brakes and attempted to use the same but that they had little or no effect.

A hearing was held on July 13, 1967, before Commissioner Robert Godfrey. A Motion to Continue Generally was filed on July 25,1967, by the Attorney General of the State of Illinois and the next action appearing in the records is an Order filed on September 8, 1967, that this cause be continued generally, which Order was signed by Judge Perlin, Chief Justice of the Court of Claims, and states that it was continued generally until a case pending in the Circuit Court of Sangamon County, Cause No. 2136-67, entitled Jacklyn Cumber vs. Ernie Schmidt Standard Service was disposed of.

On July 11, 1973, a Motion was filed on behalf of the Respondent, which Motion stated:

"1. By order of this Court, this case has previously been continued generally.
2. The Clerk of the Court of Claims has, by written notice, notified the claimant of the passage and requirements of Rule 7 of this Court.
3. Claimant, either personally or through his attorney, has failed to inform this Court as required by Rule 7 between the dates of April 1 and May 31, (a) giving the status of the action giving rise to continuance, (b) whether said action has been disposed of, and if so, the date and results of said disposition (c) whether the claim in the Court of Claims shall be further continued, placed back on the active calendar, or dismissed.
4. Nothing having been received from the claimant or his attorney, it is moved as above stated that this case be dismissed.”

On August 1,1973, Claimant, by her attorneys, filed an Answer to Respondent’s Motion to Dismiss, which stated as follows:

“1. At the close of the original proceedings in this matter held on July 13, 1967, this court granted leave to have the case continued generally pending the outcome of a civil action involving the claimant and the operator of a certain tow truck.
2. Although claimant was successful in the above-mentioned action, the defendant’s liability was limited and full restitution for the injuries claimed was not obtained.
3. Evidence adduced as a result of the above-mentioned litigation indicated that the named defendant in that action, Ernie Schmidt’s Garage, was directed by the Illinois State Police to hook onto and tow away the claimant’s car.
4. Testimony received by this court in the above-mentioned matter in its proceedings on July 13, 1967, as indicated that the claimant’s automobile was in fact properly parked and that claimant had any and all parking privileges and credentials issued by the State of Illinois allowing her to park the car.
5. In the period of time between the initial filing of the above captioned claim and the present, your claimant has retained new counsels for purposes of this action.”

It appearing to this Court that Rule 7 was not complied with, and that since July 25, 1967, no action taken by the Plaintiff or any attempt made to comply with Rule 7, the Motion to Dismiss by the Respondent is hereby granted.


text:
    (No. 5600
    The Merchants National Bank of Aurora, Illinois, as Administrator, etc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 26, 1973.

    Reid, Ochsenschlager, Murphy and Hupp, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Burks, J.

In our opinion filed January 9, 1973, this court held that the State was liable in this multi-count complaint for the wrongful death of 4 decedents whose separate estates are represented by the claimant as administrator. In said opinion we awarded damages to the claimant on its 4 separate causes of action as follows:

1. For the wrongful death of Larry Hampton 5,
age 19 years..................................$25,000
2. For the wrongful death of Sandra Franklin,
age 22 years................................... 25,000
3. For the wrongful death of James D. Franklin,
age 4 months...................................... 2,500
4. For the wrongful death of Theresa Franklin,
age 18 months.................................. 2,500

On October 11, 1973, a rehearing was held by the full court, pursuant to respondent’s petition. Said petition was based upon the following points, which respondent believes were overlooked or misapprehended by the court in its opinion of January 9, 1973:

1. Respondent was not negligent since it only had actual notice of the downed stop-sign for two hours prior to the fatal collision.
2. Negligence of the drivers of the vehicles involved in the collision was the proximate cause of the accident.
3. Damages awarded were contrary to the limits of the Court of Claims Act, and respondent received no credit for setoff.

We will discuss the above points raised by the respondent in their numerical order.

[1.] One comment in our prior opinion might indeed be read, out of context, as indicating that we based the State’s liability on the length of time the stop sign was down after the State had constructive or actual notice of this dangerous condition, i.e., 25.5 hours of constructive notice and 2 hours of actual notice. Such was not the holding of this court in our prior opinion and we take this opportunity to correct any such inference that might be drawn from a comment which was not necessary to our holding and cannot be regarded as controlling on the question of liability.

We have based liability in this case primarily on the negligence of State Trooper Winstead as clearly stated in our prior opinion as follows:

"We are impressed with claimant’s unanswered argument that certain acts and omissions of State Trooper Winstead constitute negligence by the respondent. We restate a portion of claimant’s argument on this point which we believe is particularly applicable in similar situations at intersections where traffic is traveling at a high rate of speed and where any collision is likely to be disastrous.
"Trooper Winstead discovered the sign down at 10:40 o’clock a.m. on the day in question, at least two hours before the accident, then phoned the State Police Headquarters who in turn phoned the Highway Maintenance Department. However, Trooper Winstead then left the scene and did not return until later when notified of the tragic collision. Trooper Winstead could have done two or three things which could have prevented the collision and the resulting deaths of the claimant’s decedents. He could have remained at the scene and directed traffic until help came. He could have put up a flare and then gone to a nearby farmhouse for a shovel, or help, and re-erected the stop sign temporarily. He could have even made some attempt to re-erect the stop sign in a temporary manner before he left the scene. There is no testimony in the records whatsoever that Trooper Winstead did, or attempted to do, any of these things. All that Trooper Winstead said was that he did not believe he could have re-erected the stop sign. The claimants submit that he could have made, and successfully completed, an attempt to prop up the sign until further help came. We agree. The Trooper’s failure to do any of these things constitutes negligence. [Emphasis added.]
In a nutshell, the respondent, after receiving actual knowledge of said dangerous condition, literally walked away from the dangerous condition and thus allowed the hazardous condition to remain, which eventually caused the death of claimants’ decedents.”

Our view in this matter is consistent with an opinion of the Illinois Appellate Court in a similar case decided December 7, 1972. Novotny v. Mott and County of Cook, 9 Ill.App.3d 252. Here, Mott, a Cook County police officer, had arrived at the intersection of 31st Street and Wolf Road 45 minutes before an automobile collision occurred there. Officer Mott noticed that the stop and go lights were not functioning. He testified that, before leaving this intersection on another mission, he put up flares but could not be sure whether the flares were designed to burn for 10 minutes or for 30 minutes. The court said at page 254:

"Defendants make no serious argument that Officer Mott’s action in leaving the intersection unprotected while aware that the traffic lights were not operating was not prima facie negligent, or that such negligence was not a proximate cause of plaintiff’s injuries.”

Similarly, in the case at bar, we think it is significant that respondent had not, prior to its petition for rehearing, made any serious argument denying the prima facie negligence of State Trooper Winstead. The new argument now presented by the respondent is neither timely nor, in view of Novotny, persuasive. More importantly, the new argument could not have been overlooked or misapprehended in our prior opinion since it had not been submitted.

In the Novotny case, it appears that the county may have had no more than 45 minutes of actual notice that the stop light was not working. Yet the Appellate Court inferentially held that it was prima facia negligence for Officer Mott to leave the intersection unprotected even though he did put up flares. In the case at bar, Trooper Winstead left the intersection totally unprotected after reporting the condition to police headquarters by phone.

In light of Novotny, the length of time during which the State had notice of the downed stop sign, actual or constructive, was apparently immaterial under the circumstances in this case. So, too, was the following unnecessary comment in our prior opinion: "twenty-four hours was too long a period for the stop sign to be down at such an intersection, and this fact supports our finding of negligence on the part of the respondent.” Our finding of negligence on the actions of Trooper Winstead needed no further support, and the above quoted dicta does not represent the prevailing view of this court.

[2.] Respondent’s petition for rehearing presents new arguments on the question of proximate cause which were not contained in its briefs. For the first time it raises the question of the possible contributory negligence of Hugh Spears, driver of claimant’s vehicle, and suggests that this may have been an efficient intervening proximate cause. We believe that claimant effectively answered this contention by citing evidence previously considered by Bruce Finne, former Assistant Attorney General who handled this case at the hearing. Suffice to say, Mr. Finne declined to argue that there was any negligence on the part of Hugh Spears.

Prior to the rehearing, respondent had argued only that the proximate cause of the accident was the negligent operation of the car driven by Natalie Biodeau which struck the Spears Car.

Accepting as we did the probability of negligence on the part of the driver of the Bilodeau car, our prior opinion proceeded to analyze the question of proximate cause at great length. Depending as it does on all of the circumstances in any given case, we concluded from a careful study of leading case law that the State’s negligence was the proximate cause of the death of claimant’s decedents. Respondent reargues the key cases on which the court relied, pointing out some distinguishing features, but fails to cite any case as closely in point on the question of proximate cause as the case of Johnson v. City of East Moline, 338 Ill.App. 220. Tha principal distinction, pointed out by respondent, between the Johnston case and the case at bar was the length of time the stop sign had been down and the actual or constructive notice to the responsible governmental unit. The same distinction was made in all of the new cases respondent cites from foreign jurisdictions. No case cited by the respondent involved the negligence of a traffic officer in leaving a dangerous intersection unprotected after he had discovered it. This is the fact on which we found the State negligent, as explained in [1] above, and not in the length of notice in the State.

We then relied on the rule in Johnston in finding that the State’s negligence was the proximate cause, notwithstanding the intervening act of a third party, the driver of the Bilodeau car. Respondent does not dispute the fact that the Johnston case clearly and accurately states the rule in Illinois as to what constitutes proximate cause after the first acts of negligence, which contributed to the injuries, have been determined. Our prior opinion correctly stated our conclusion that the State’s negligence was the proximate cause in this action.

[3.] The court concedes that, in arriving at the amount of the awards in our prior opinion, we overlooked a letter from counsel for the claimant advisjng the court that each of the estates of claimant’s decedents had "previously received monies under the uninsured motorist provisions of the policy which Hugh Spears, driver of their car, had on the day in question. The amounts for the respective estates are as follows:

1. Larry Hampton.............................$7,000.00
2. Sandra Franklin............................ 500.00
3. James D. Franklin........................... 3,000.00
4. Theresa Franklin............................ 3,500.00

The above letter dated September 1, 1971, was submitted after all briefs were filed, and the information was not contained in the briefs. After respondent properly called it to our attention, we discovered that the letter had inadvertently been placed at the back of our very voluminous file on this claim. It was, therefore, overlooked in our prior opinion. Hence, the amounts previously awarded for the wrongful death of the two infants in this case, James and Theresa Franklin, represented the court’s considered judgment as to the total mount of pecuniary damages sustained by their only heir at law, an infant sister, Penny Jean Hampton. The amount previously awarded for the death of each of the two adults was the statutory limit which this court could award for wrongful death.

The question of set-off has been timely raised by the respondent, and the amounts previously awarded to the estate of each of claimant’s decedents must be reduced by the above stated amounts previously received from other sources. This is mandatory under §26 of the Court of Claims Act which reads as follows:

"The granting of an award under this Act shall constitute full accord and satisfaction. There shall be but one satisfaction of any claim or cause of action and any recovery awarded by the court shall be subject to the right of set-off of an amount equal to the monies received from any other source, whether received in consideration of release or covenant.”

The above rule had been followed by this court for many years prior to the enactment of §26, under our interpretation of the intent and meaning of the Court of Claims Act. Flisk v. State, 21 C.C.R. 363 (1952); Anzalone v. State, 24 C.C.R. 172 (1961); Williams v. State, 25 C.C.R. 249 (1965).

Accordingly, the amount of the awards previously granted will be corrected by deducting the amounts received under the uninsured motorist provision of insurance carried by Hugh Spears, driver of the car in which the decedents were killed, as follows:

The maximum award of $25,000 for the death of Larry Hampton will be reduced by $7,000, leaving a net award of $18,000.

The maximum award of $25,000 for the death of Sandra Franklin will be reduced by $500, leaving a net award of $24,500.

Since the estates of James D. Franklin and Theresa Franklin each received an amount from the aforesaid source in excess of ths $2,500 previously awarded by this court in our prior opinion, our prior award for these deaths will be expunged and rescinded by this amended opinion.

In view of the above stated adjustments we are making in the awards, it becomes a moot question as to whether Penny Jean Hampton, as sole heir and beneficiary of 3 of the decedents, had a separate cause of action for the death of each and, therefore, could have received more than $25,000 under the following language of §8(d) of the Court of Claims Act:

. . provided that an award for damages in a case sounding in tort shall not exceed the sum of $25,000 to or for the benefit of any claimant.”

Under this amended opinion, Penny Jean Hampton could receive no more than the amount awarded for the death of her mother, $24,500.

It is hereby ordered that our prior opinion in this cause, filed January 9, 1973, be and the same is hereby modified and revised as stated in this amended opinion which clarifies the basis of liability and changes the amount of the awards.

The prior awards made under counts III and IV of the complaint are hereby rescinded and no award is to be allowed for the deaths of the infants, James and Theresa Franklin.

In lieu of the awards made in our prior opinion, we hereby make the following awards based on counts I and II of the complaint:

(1) To the Merchants National Bank of Aurora, Illinois, as Administrator of the Estate of Larry Hampton, deceased, for said decedent’s wrongful death, the sum of......... $18,000
(2) To the Merchants National Bank of Aurora, Illinois, as Administrator of the Estate of Sandra Franklin, deceased, for said decedent’s wrongful death, the sum of......... 24,500