text:
    (No. 78-CV-0639

      In re Application of Patrick Biggs.

      Opinion filed December 30, 1980.

   Roe, C. J.

This claim arises out of an incident that occurred on August 20, 1978. Patrick Biggs, father of the deceased victim, Cathleen Biggs, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereinafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on the form prescribed by the Court, the investigatory report and supplemental investigatory report of the Attorney General, the evidence adduced at a hearing on the matter, and the report of the commissioner to whom the case was assigned. Based upon this record, the Court finds:

1. That Claimant’s deceased daughter, Cathleen Biggs, age 25, was a victim of a violent crime as defined in section 2(c) of the Act, to wit: Murder. Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1.

2. That on August 20, 1978, the victim was entertaining a guest at her home when a known subject entered the home and shot her and her friend. The assailant then left the home and shot himself. Both the victim and the assailant were dead at the scene.

3. That the Claimant seeks compensation for funeral expenses and for loss of support.

4. That according to section 3(a) of the Act, a person related to the victim is eligible for compensation for funeral expenses for the victim provided that such expenses were paid by him.

5. That the Claimant incurred funeral expenses of $1,813.80 and burial expenses of $125.00 for the cemetery lot and $373.00 for the memorial, for a total of $2,311.80, all of which he has paid. This Court has heretofore consistently held that $2,000.00 is the maximum amount compensable for such expenses.

6. That on August 24, 1979, a hearing was held to determine the issue of loss of support. At that time Claimant testified that the victim had agreed to lend financial assistance to a younger sister to enable her to go to college. The younger sister was not enrolled in college on the date of the hearing and had not been for a period of 2 years or more with the exception of occasional enrollment for the purpose of obtaining extra credit hours. This person has not applied for compensation in her own name nor has she been listed as a dependent of the victim on Claimant’s application. We find the evidence to support this element of loss insufficient to grant an award therefor.

Claimant also submitted a checkbook containing a check register belonging to the victim. The date at the beginning indicated September 1977 and appears to contain check records up to the date of the victim’s death. The Claimant circled the items he thought were pertinent to his claim for loss of support. It is difficult to determine the frequency with which certain items were paid because several circled items were not dated. Based upon the record before us we find that these payments were essentially in the nature of room and board payments and for support of the Claimant. Moreover, the Claimant was supporting himself at this point in time. The record regarding this element of loss is also insufficient to support an award therefor.

7. That the Claimant has complied with all pertinent provisions of the Act and qualifies for compensation for funeral expenses only under the Act.

8. That pursuant to section 7(d) of the Act, this Court must deduct $200.00 plus the amount of benefits, payments or awards payable under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.), from local governmental, State, or Federal funds, or from any other source, except annuities, pension plans, Federal social security benefits, and the net proceeds of the first $25,000.00 (twenty-five thousand dollars) of life insurance paid or payable to the Claimant.

9. That the Claimant has not received any reimbursements as a result of the victim’s death that can be applied as deductions.

10. That after deducting $200.00 from the funeral expenses incurred by the Claimant the expenses are still in excess of the $2,000.00 which this Court has deemed to be the maximum amount compensable for such items.

It is hereby ordered that the sum of $2,000.00 (two thousand dollars) be, and hereby is, awarded to Patrick Biggs, father of an innocent victim of a violent crime.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    (No. 78-CV-0667

      In re Application of Matthew P. McNulty.

      Opinion filed May 29, 1981.

    Matthew P. McNulty, pro se, for Claimant.
    William J. Scott, Attorney General (Alan R. Boudreau, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of an incident that occurred on August 10, 1978. Matthew P. McNulty, claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

The Court entered an Order on July 7, 1980, based on the Investigatory Report of the Attorney General, the application and the form submitted by the Claimant, which Order found that Claimant’s injury was substantially attributable to the wrongful act of patronizing a prostitute and that Claimant has not met a required condition precedent for compensation under the Act.

Pursuant to Section 9 of the Act, Claimant requested a hearing.

Evidence was taken by the Court at a hearing conducted by Martin C. Ashman, a Commissioner of this Court.

Claimant testified that on August 10, 1978, he had been drinking at a tavern, having consumed seven drinks of beer in a little over a three hour period from 11 o’clock P.M. to shortly after 2 o’clock A.M.

After the drinks at the last tavern, he proceeded by automobile to the intersection of Washington Blvd. and Cicero Avenue, Chicago, Illinois, where he was approached by a girl while he was in the automobile. She said something that Claimant does not fully remember but remembers something about sex, and Claimant answered with a “smart remark”. While standing outside Claimant’s vehicle on the driver’s side, she grabbed Claimant’s pocketbook through the window and ran. Claimant denied that the girl had ever been in his vehicle. Claimant got out of his car and chased her. She yelled for help and someone commenced shooting. He heard six shots and one of the bullets knocked him down. Shooting continued while he was on the ground. He picked himself up and drove to the home of his ex-wife where he became unconscious in the car. A policeman discovered him and he was taken to St. Anne’s Hospital where he was questioned by the police. He told the police that he could not identify his assailants.

After Claimant’s release from the hospital, he was called at 3 o’clock A.M. by a policeman. The police officer told him that the police had captured his assailants and asked if Claimant could identify them. Claimant said that he could not identify them and Claimant was told to go to court but was never given a court date.

On cross examination, Claimant admitted that he had described the girl as tall and wearing a yellow shirtwaist blouse and that the Claimant was not beaten throughout the incident.

Officer James Linzy of the Chicago Police Department testified that on August 9, 1978, while off duty he was proceeding West on Washington Street near Cicero Avenue in Chicago. As he approached the intersection he observed a female Negro jump out of the passenger side of a van-like vehicle which was stopped in the middle of the street. He then observed Claimant exit the driver’s side of the vehicle and chase the girl. The girl screamed and two male Negroes began to chase the Claimant as Claimant continued to chase the girl. Claimant caught the girl and grabbed her and one of the male Negroes struck the Claimant with a tire iron. Claimant then chased the male Negro and another male Negro fired a shot at Claimant.

The officer then pursued the assailants by car, firing two shots at the assailants.

Some weeks later, Officer Linzy, while passing by the same neighborhood, recognized Claimant’s assailants and arrested them. The officer called Claimant and told Claimant that he had arrested the assailants and that he, Officer Linzy, could identify them and asked Claimant if he wanted to sign a complaint against the assailants. Claimant refused stating that he just wanted to forget it.

The Court finds that judging from the attitude and demeanor of the witnesses, the testimony of Officer Linzy was more credible than that of Claimant. Officer Linzy, at a risk of his own life helped save Claimant’s life. Thereafter, by alert police work he was able to apprehend the assailants and was able to recognize the assailants. Officer Linzy’s testimony was clear and unequivocal. He had no interest in not telling the truth and his testimony was clear and convincing that the Claimant refused to sign a complaint against his assailants. Claimant’s testimony, to the contrary, was vague and not credible.

It is hereby ordered that this claim be, and is, hereby denied.


text:
    (No. 79-CV-0136

      In re Application of Annie Cross.

      Order filed December 29, 1980.

    Annie Cross, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Alan R. Boudreau, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of an incident that occurred on December 3,1978. Annie Cross, mother of the deceased victim, David Cross, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This court has carefully considered the application for benefits submitted on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on December 3,1978, the victim was shot by an offender who was known to him. Police investigation revealed that the incident stemmed from a dispute regarding territorial rights over the distribution of drugs. When the police arrived at the scene, they observed that the victim was holding a gun in his right hand. The incident occurred on the street at 200 E. 43rd Street, Chicago, Illinois. The victim was taken to Michael Reese Hospital and pronounced dead on arrival. The offender was apprehended. and pled guilty to the charge of voluntary manslaughter.

3. That section 7(c) of the Act states that the Court of Claims shall determine the degree or extent to which the victim’s acts or conduct provoked or contributed to his injuries or death and reduce or deny the award of compensation accordingly.

4. That the victim’s death was attributable to his own conduct in that the incident occurred as a direct result of an argument concerning the illegal distribution of drugs.

5. That the Court finds that the victim’s conduct contributed to his death to such a substantial degree as to warrant a full denial of this claim pursuant to section 7(c).

It is hereby ordered that this claim be, and is hereby denied.


text:
    (No. 79-CV-0145

      In re Application of Elena Nunez.

      Order filed September 10, 1980.

    Elena Nunez, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Alan R. Boudreau, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of an incident that occurred on December 13, 1978. Elena Nunez, wife of the deceased victim, Estanislao Nunez, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on December 13, 1978, the victim was shot by Mr. Paul Nantz in front of the Coleman Moving & Storage Company at 2146 W. Roscoe, Chicago, Illinois. The incident stemmed from an altercation that had occurred minutes before the shooting. The victim had entered the Coleman Moving & Storage Company building and when he was informed that it was closed, he began arguing with Mr. Nantz and Mr. Herman Bailey, who were co-owners of the company. The victim then left the building and returned several minutes later holding a knife. Seeing that the victim had a knife, Mr. Nantz took a handgun from his desk and, along with Mr. Bailey, met the victim as he approached the building. A confrontation ensued, during which Mr. Nantz shot the victim and the victim cut both Mr. Nantz and Mr. Bailey. The victim was taken to Ravenswood Hospital where he died shortly after admission. Mr. Nantz and Mr. Bailey were charged with murder but in a preliminary hearing there was a finding of no probable cause to indict or try them of the charges.

2. That section 3(f) of the Act states that a person is entitled to compensation under the Act if the injury to or the death of the victim was not substantially attributable to the victim’s wrongful act or substantial provocation of the assailant.

3. That it appears from the investigatory report and the police report that the victim’s death was substantially attributable to his engaging Mr. Nantz and Mr. Bailey in a fight armed with a knife.

4. That the Claimant has not met a required condition precedent for compensation under the Act.

It is hereby ordered that this claim be, and is hereby denied.


text:
    (No. 80-CV-0020

      In re Application of Robert Lee Collins.

      Opinion filed March 3, 1981.

    Robert Lee Collins, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of an incident that occurred on September 24,1978. Robert Lee Collins, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That the Claimant, Robert Lee Collins, age 33, was a victim of a violent crime, as defined in section 2(c) of the Act, to wit: Aggravated Battery. Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4.

2. That on September 24, 1978, the Claimant was injured when an automobile, driven by an unknown offender deliberately swerved off the road and struck him. The incident occurred on the sidewalk at 934 Rollins, Round Lake Heights, Illinois. The Claimant was taken to Condell Memorial Hospital for treatment of his injuries.

3. That the Claimant seeks compensation for medical/hospital expenses only.

4. That section 4 of the Act states that loss of earnings shall be determined on the basis of the victim’s average monthly earnings for the six months immediately preceding the date of the injury or on $500.00 per month, whichever is less.

5. That the Claimant was not employed for the six months immediately preceding the date of the incident out of which this claim arose and therefore suffered no loss of earnings compensable under the Act.

6. That the Claimant incurred medical/hospital expenses in the amount of $5,960.90, $226.24 of which was paid by the Illinois Department of Public Aid and $4,337.16 was written off as bad debt by the vendors, leaving a balance of $1,397.50.

7. That the Claimant has complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

8. That pursuant to section 7(d) of the Act, this Court must deduct $200.00 from all claims plus the amount of benefits, payments or awards payable under the Workmen’s Compensation Act (Ill. Rev. Stat., 1977, ch. 48, par. 138.1 et seq.), from local governmental, State or Federal funds or from any other source, except annuities, pension plans, Federal social security benefits and the net proceeds of the first $25,000.00 (twenty-five thousand dollars) of life insurance paid or payable to the Claimant.

9. That the Claimant has received no reimbursements that can be counted as applicable deductions.

10. That the Claimant is entitled to an award based on the following:

Net Medical Expenses $1,397.50

Less $200.00 Deductible -200.00

Total $1,197.50

It is hereby ordered that the sum of $1,197.50 (one thousand one hundred ninety-seven dollars and fifty cents) be and is hereby awarded to Robert Lee Collins, an innocent victim of a violent crime.


text:
    (No. 80-CV-0138

      In re Application of Doreatha Days.

      Order filed December 29, 1980.

    Doreatha Days, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Alan R. Boudreau, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of an incident that occurred on November 10,1978. Doreatha Days, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on November 10,1978, the victim, a Chicago police officer, was stricken with a heart seizure as he was in pursuit on foot of a suspected auto thief. The incident occurred on the street at 1371 E. 50th Street, Chicago, Illinois. The victim was taken to Billings Hospital where he expired shortly thereafter. The medical examiner found that the cause of death was arteriosclerotic cardiovascular disease.

2. That in order for a Claimant to be eligible for compensation under the Act, there must be evidence of one of the violent crimes specifically set forth under section 2(c) of the Act. Ill. Rev. Stat. 1977, ch. 70, par. 72(c).

3. That the Claimant has not submitted any evidence that one of the violent crimes specifically set forth under section 2(c) of the Act occurred.

4. That the Claimant has not met a required condition precedent for compensation under the Act.

It is hereby ordered, that this claim be, and is hereby denied.


text:
    (No. 80-CV-0152

      In re Application of Pauline M. Delle.

      Opinion filed February 5, 1981.

    Pauline M. Delle, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of an incident that occurred on June 13, 1979. Pauline M. Delle, wife of the deceased victim, Fred C. Delle, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That the Claimant’s deceased husband, Fred C. Delle, age 50, was a victim of a violent crime as defined in section 2(c) of the Act, to wit: Murder. Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1.

2. That on June 13, 1979, the victim was shot by an unknown offender for no apparent reason. The incident occurred on the street at 4567 W. Patterson, Chicago, Illinois. The victim was taken to Northwest Hospital where he was pronounced dead on arrival.

3. That the Claimant seeks compensation for funeral expenses and for loss of support for herself and her minor daughter, Denise Delle, age 11.

4. That the Claimant incurred funeral and burial expenses in the amount of $3,462.05, which the Claimant has paid, of which $2,000.00 has been deemed reasonable and therefore compensable by the Court.

5. That the Claimant, Pauline Delle, and her minor child, Denise Delle, were totally dependent upon the victim for support.

6. That prior to his death, the victim was employed by Enameled Steel and Sign Company and his average monthly earnings were $1,387.82.

7. That section 4 of the Act states “* * * loss of support shall be determined on the basis of the victim’s average monthly earnings for the six months immediately preceding the date of the injury or on $500.00 per month, whichever is less.”

8. That the victim was 50 years of age at the time of the crime. According to the U.S. Department of Health, Education and Welfare, Vital Statistics of the United States, 1976, Life Tables, Volume II, his life expectancy would have been 74.2 years. The projected loss of support for 24.2 years is in excess of $10,000.00 which is the maximum amount compensable under section 7 (e) of the Act.

9. That this claim complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

10. That pursuant to section 7(d) of the Act, this Court must deduct $200.00 from all claims plus the amount of benefits, payments or awards payable under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.), from local governmental, State or Federal funds or from any other source, except annuities, pension plans, Federal social security benefits and the net proceeds of the first $25,000.00 (twenty-five thousand dollars) of life insurance paid or payable to the Claimant.

11. That the Claimant has received no reimbursements as a result of the victim’s death that can be counted as applicable deductions.

12. That after making all the applicable deductions under the Act, the pecuniary loss resulting from the victim’s death is in excess of $10,000.00 maximum allowed in section 7(e) of the Act.

13. That the Claimant’s interest would be best served if the award hereunder would be paid pursuant to the alternative provisions of section 8 of the Act.

It is therefore hereby ordered that the sum of $10,000.00 (ten thousand dollars) be and is hereby awarded to Pauline M. Delle, wife of Fred C. Delle, an innocent victim of a violent crime to be paid and disbursed to her as follows:

(a) $2,000.00 (two thousand dollars) to be paid to Pauline M. Delle for funeral expenses;

(b) Sixteen (16) equal monthly payments of $500.00 (five hundred dollars) each to be paid to Pauline M. Delle for the use and benefit of herself and Denise Delle;

(c) In the event of the death or marriage of the Claimant or the Claimant’s children, it is the duty of the personal representative of the Claimant to inform this Court in writing of such death or marriage for the purpose of the possible modification of the award.


text:
    (No. 80-CV-0173

      In re Application of Samuel M. Harris.

      Opinion filed August 13, 1980.

    Edward R. Gayles, for Claimant.
    William J. Scott, Attorney General (Alan R. Eoudreau, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of an incident that occurred on December 3, 1978. Samuel M. Harris, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Eased upon these documents and other evidence submitted to the Court, the Court finds:

1. That the Claimant, Samuel M. Harris, age 61, was a victim of a violent crime, as defined in section 2(c) of the Act, to wit: Aggravated Battery. Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4.

2. That on December 3,1978, the Claimant was shot several times by an unknown offender during an armed robbery. The incident occurred at the restaurant owned by the Claimant at 2129 E. 71st Street, Chicago, Illinois. The Claimant was taken to Jackson Park Hospital for treatment of multiple gunshot wounds.

3. That the Claimant seeks compensation for medical/hospital expenses and for loss of earnings.

4. That the Claimant incurred medical/hospital expenses in the amount of $3,481.34, none of which was paid by insurance. The Veterans Administration has assumed responsibility for all other medical expenses.

5. That the Claimant was self-employed as owner of The Rib Barrell Bar-B-Que Restaurant prior to the injury and his average monthly earnings were $1,579.59. Claimant was disabled and unable to work from December 3, 1978 to the present. As of August 3, 1980, the Claimant has been disabled for a period of 1 year and 8 months.

6. That section 4 of the Act states that loss of earnings shall be determined on the basis of the victim’s average monthly earnings for the six months immediately preceding the date of the injury or on $500.00 per month, whichever is less.

7. That based on $500.00 per month, the maximum compensation for loss of earnings for 1 year and 8 months is $10,000.00.

8. That the Claimant has complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

9. That pursuant to section 7(d) of the Act, this Court must deduct $200.00 from all claims plus the amount of benefits, payments or awards payable under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.), from local governmental, State or Federal funds or from any other source, except annuities, pension plans, Federal social security benefits and the net proceeds of the first $25,000.00 (twenty-five thousand dollars) of life insurance paid or payable to the claimant.

10. That the Claimant has received no disability benefits.

11. That after making all the applicable deductions under the Act, the Claimant’s loss is in excess of the $10,000.00 maximum award allowed under section 7(e) of the Act.

It is hereby ordered that the sum of $10,000.00 (ten thousand dollars) be and is hereby awarded to Samuel M. Harris, an innocent victim of a violent crime.


text:
    (No. 80-CV-0208

      In re Application of Amos Barnes.

      Order filed August 13, 1980.

    Amos Barnes, pro se, for Claimant.
    William J. Scott, Attorney General (Alan R. Boudreau, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of an alleged incident that occurred on April 29, 1979. Amos Barnes, Claimant, seeks compensation pursuant to the provisions of. the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That the Claimant alleges that on April 29, 1979, he was struck by an unknown offender during the course of a. robbery. The incident occurred in the stairway of the apartment building located at 8 South St. Louis, Chicago, Illinois. The Claimant was taken to Cook County Hospital. The Claimant did not report the incident to the police until May 25, 1979, which is 26 days after the alleged incident. Police investigation, through a subsequent interview, revealed that the Claimant had been drinking the night of the alleged incident, and that he apparently lost consciousness as he was walking up the stairs at the above address. A neighbor heard him screaming and called the police, who took him to Cook County Hospital. According to medical records reviewed by the officer, the Claimant was treated for severe alcoholism, delirium tremors, and a drug overdose. When asked why he had waited 26 days to file a police report, the Claimant stated that he would not have gone to the police except that he needed the report to collect insurance benefits, and also that he was told he could collect money from the State of Illinois if he were injured in a robbery. Due to the victim’s statement given to the officer, the medical report from Cook County Hospital and lapse of 26 days between the alleged incident and the Claimant reporting said incident to police, the case was unfounded as no crime occurred.

2. That in order for a Claimant to be eligible for compensation under the Act, there must be evidence of one of the violent crimes specifically set forth under section 2 (c) of the Act.

3. That it appears from the investigatory report and the police report that the Claimant was not a victim of one of the violent crimes specifically set forth under section 2(c) under the Act.

4. That the Claimant has not met a required condition precedent for compensation under the Act.

It is hereby ordered, that this claim be, and is, hereby denied.


text:
    (No. 80-CV-0429

      In re Application of William Swan.

      Opinion filed April 3, 1981.

    William Swan, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of an incident that occurred on September 16, 1977. William Swan, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That the Claimant, William Swan, age 27, was a victim of a violent crime, as defined in section 2(c) of the Act, to wit: Aggravated Battery. Ill. Rev. Stat. 1977, ch. 31, par. 12 — 4.

2. That on September 16, 1979, the Claimant was stabbed by an unknown offender during the course of a robbery. The incident occurred on the CTA platform located at 315 E. Garfield, Chicago, Illinois. The Claimant was taken to Provident Hospital for treatment of his injuries.

3. That the Claimant seeks compensation for medical/hospital expenses and for loss of earnings.

4. That the Claimant incurred medical/hospital expenses in the amount of $11,462.40, $9,947.64 of which was paid by insurance, leaving a balance of $1,514.76.

5. That the Claimant was employed by Bradner, Smith & Company prior to the injury and his average monthly earnings were $507.69. Claimant was disabled and unable to work from September 17,1979, to May 22, 1980, a period of 8 months and 4 working days.

6. That section 4 of the Act states that loss of earnings shall be determined on the basis of the victim’s average monthly earnings for the six months immediately preceding the date of the injury or on $500.00 per month, whichever is less.

7. That based on $500.00 per month, the maximum compensation for loss of earnings for 8 months and 4 working days is $4,090.92.

8. That the Claimant has complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

9. That pursuant to section 7(d) of the Act, this Court must deduct $200.00 from all claims plus the amount of benefits, payments or awards payable under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.), from local governmental, State or Federal funds or from any other source, except annuities, pension plans, Federal social security benefits and the net proceeds of the first $25,000.00 (twenty-five thousand dollars) of life insurance paid or payable to the Claimant.

10. That the Claimant has received $1,300.00 in disability benefits.

11. That the Claimant is entitled to an award based on the following:

Compensable Loss of Earnings $4,090.92

Net Medical/Hospital Expenses 1,514.76

Total $5,605.68

Less Disability Benefits -1,300.00

Less $200.00 Deductible - 200.00

Total $4,105.68

It is hereby ordered that the sum of $4,105.68 (four thousand one hundred five dollars and sixty-eight cents) be and is hereby awarded to William Swan, an innocent victim of a violent crime.


text:
    (No. 81-CV-0575

      In re Application of Wenanty Dudzic.

      Order filed May 21, 1981.

    Wenanty Dudzic, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of an incident that occurred on November 8, 1980. Wenanty Dudzic, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on January 27, 1981, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That the Claimant, Wenanty Dudzic, age 45, was a victim of a violent crime, as defined in section 2(c) of the Act, to wit: Aggravated Battery. Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4.

2. That on November 8,1980, the Claimant was shot by an unknown offender during the course of an armed robbery. The incident occurred on the street at 1529 W. 48th Street, Chicago, Illinois. The Claimant was taken to Mercy Hospital and admitted for treatment.

3. That documents submitted by the Claimant to substantiate his claim indicate that he is a foreign national.

4. That the Claimant seeks compensation for medical/hospital expenses and for loss of earnings.

5. That the Claimant’s medical/hospital expenses from the date of the incident up to January 31,1981, have been assumed by the Illinois Department of Public Aid. The Claimant has been denied further benefits because he has failed to meet the Illinois Department of Public Aid citizenship/alienage requirements.

6. That the Claimant was employed by Vinal Green prior to the injury and his average monthly earnings were $336.86. Claimant is disabled and unable to work. The Claimant’s physicians are unable to determine at this time whether or not the Claimant will be permanently disabled.

7. That section 2(h) of the Act states that loss of earnings shall be determined on the basis of the victim’s average net monthly earnings for the six months immediately preceding the date of the injury or on $750.00 per month, whichever is less.

8. That pursuant to section 10.1(e) of the Act, this Court must deduct $200.00 from all claims, (except in the case of an applicant 65 years of age or older) and the amount of benefits, payments or awards payable under the Workers Compensation Act, Dram Shop Act, Federal Medicare, State Public Aid, Federal Social Security Administration burial benefits, Veterans Administration burial benefits, health insurance, or from any other source, except annuities, pension plans, Federal Social Security payments payable to dependents of the victim and the net proceeds of the first $25,000.00 (twenty-five thousand dollars) of life insurance that would inure to the benefit of the applicant.

9. That the Claimant has been unable to furnish documentation regarding his legal alien status. It is the opinion of this Court that the definition of a person eligible for compensation under the Act relates specifically to citizens of the United States and aliens admitted to the United States under color of law. Thus, the Claimant is precluded from recovery under the Act.

It is hereby ordered that this claim be, and is, hereby dismissed.


author: Poch, J.

text:
    (No. 78-CC-0895
    Clifton F. Hall, M.D., Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 27, 1979.

    Clifton F. Hall, pro se, for Claimant.
    William Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim is made by Dr. Clifton Hall for $314.00 for charges for medical services rendered to the residents of the Stateville Correctional Center in June of 1977. The departmental report received by the office of the Attorney General and their investigation of this matter indicates that the appropriation out of which this normally would have been paid would have been contractual services fund No. 001-42682-1200-00-00 appropriated for fiscal year 1977. The report also indicated that there was $1,332.51 returned to the State treasury from the contractual services appropriation at the close of the fiscal period, all of which amount was committed. There was, therefore, no uncommitted funds remaining at the time of the lapse of the appropriation. The department also reports that there was a grand total of $2,357.00 in claims against this appropriation which included the claim of Dr. Hall.

As can be seen from the above, this case involves a situation where the contractual services line item for Stateville Correctional Center was exhausted in that, even though there was a small balance returned to the treasury upon the lapse of the fiscal period, there were more claims against the line item than there was money lapsed.

The question presented to this Court, therefore, is, can this obligation of Dr. Hall be paid and if so how?

Section 30 of the State Finance Act (Ill. Rev. Stat. 1977, ch. 127, par. 166) provides as follows:

“§30. No officer, institution, department, board or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law.”

This paragraph raises two questions. First, does “appropriated” refer to the total appropriation to the agency from a particular fund or does it refer to individual line item appropriations. Secondly, it raises the question as to what is meant by the phrase “expressly authorized by law”?

As to the first question, section 13.2 of the State Finance Act (Ill. Rev. Stat. 1977, ch. 127, par. 149.2) provides in part as follows:

“Transfers among line item appropriations from the same treasury fund for the objects specified in this Section may be made in the manner provided in this Section when the balance remaining in one or more such line item appropriations is insufficient for the purpose for which the appropriation was made .... such transfers for an agency in a fiscal year shall not exceed 28 of the aggregate amount appropriated to it within the same treasury fund. . . ”

From the above it appears obvious to this Court that the legislature, in section 30, was referring to appropriation or “appropriated” in its broader term. To restrict the term to mean line item appropriation would be contrary to accepted principles of statutory construction inasmuch as it would result in section 30 being repugnant to section 13.2 and vice versa. (Ill. Rev. Stat. 1977, ch. 127, pars. 166, 149.2.) Where possible we must construe the statutes harmoniously with one another; therefore, we hold that the legislature intended the broader view. Pursuant to section 13.2 the agency could transfer an amount equivalent to 2% of the aggregate amount appropriated to it from the general fund for all of its various institutions and was not restricted to the line items for Statesville. However, the departmental report, in response to the Attorney General’s questions, establishes that within fund No. 001-42682 there were four line items in the Stateville budget alone from which there would have been available for transfers the following amounts:

Line Item 1300-00-00 for commodities $819.28
Line Item 1302-00-00 for printing $1,671.29
Line Item 1700-00-00 for telecommunications $115.00
Line Item 1800-00-00 for operation of auto equipment $882.22

These amounts total $3,487.79 which was available for transfer to the contractual services line item.

Inasmuch as there was more money available for transfer from these four sources alone than the total amount of the claims against the contractual services line item it is this Court’s finding that there were sufficient funds appropriated to the Department of Corrections for the payment of the obligation claimed.

Although the Constitution of 1870 has now been superseded, and the instant claim arose subsequent to the effective date of the Constitution of 1970, the decisions interpreting article IV, section 19 of the Constitution of 1870 are still pertinent, in view of the essential similarity of that provision with section 30 of the State Finance Act (Ill. Rev. Stat. 1977, ch. 127, par. 166), which is still in full force and effect. Both forbid the State to incur debts in excess of money appropriated, unless expressly authorized by law.

“The General Assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor, after service has been rendered or a contract made, or authorize the payment of any claim, or part thereof, hereafter created against the State under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void; provided, the General Assembly may make appropriations for expenditures incurred in suppressing insurrection or repelling invasion.” (Ill. Const. 1870, art. IV, sec. 19.)
“No officer, institution, department, board, or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law.” (Ill. Rev. Stat., ch. 127, par. 166.)

The essential similarity of these two provisions is the use of the term “express authority of law” used in the Constitution of 1870 and the term “expressly authorized by law” as used in the statute. These terms raise the issue as to what type of an expenditure is expressly authorized by law.

The leading cases would appear to be Fergus v. Brady, 277 Ill. 272; Board of School Inspectors of the City of Peoria v. State of Illinois, 12 Ill. Ct. Cl. 17; and Schutte and Koerting Company v. State of Illinois, 22 Ill. Ct. Cl. 591.

For purposes of this discussion it is not necessary to elaborate on the background of the Fergus (supra) decision, but it would be pertinent to quote from that decision.

“In section 19, claims under an agreement or contract made by express authority of law are excepted, and if there is some particular and specific thing which an officer, board or agency of the State is required to do, the performance of the duty is expressly authorized by law. That authority is express which confers power to do a particular, identical thing set forth and declared exactly, plainly and directly, with well defined limits, and the only exception under which a contract exceeding the amount appropriated for the purpose may be valid is where it is so expressly authorized by law. An express authority is one given in direct terms, definitely and explicitly, and not left to inference or to implication, as distinguished from authority which is general, implied or not directly stated or given. An example of such express authority is found in one of the deficiency appropriations to the Southern Illinois Penitentiary which had been paid, and serves only as an illustration. The authorities in control of the penitentiary are required by law to receive, feed, clothe and guard prisoners convicted of crime and placed in their care, involving the expenditure of money which may vary on account of the cost of clothing, food and labor beyond the control of the authorities and which could not be accurately estimated in advance for that reason or by determining the exact number of inmates.” Fergus v. Brady (1917), 277 Ill. 272, 279.

The Board of School Inspectors (supra) case involved a suit by the city of Peoria for reimbursement of expenses incurred in the education of crippled children. The education of these children was apparently induced by the passage of a statute by the Illinois legislature which provided for reimbursement of the expenses incurred by school districts or others in the education of these children. The legislature in passing the statute provided for $100,000.00 to defray this expense. The response was so overwhelming that the expenses of the various school districts far exceeded the $100,000.00. The director of the Department of Public Welfare who was charged with the responsibility for the administration of this program prorated the claims and authorized the payment to each claimant on a prorated basis. The claim of the city of Peoria was for the excess over and above their prorated share. The Court of Claims in that case held that the proration was an equitable approach and that the city of Peoria had no claim to any further reimbursement as the expenditure was one not expressly authorized by law in accordance with definitions set forth in Fergus v. Brady (supra). The Court distinguished Fergus v. Brady (supra) from Board of School Inspectors (supra) by pointing out that in the illustration set forth in Fergus v. Brady (supra) the authorities in charge of Southern Illinois Penitentiary had a duty imposed by law to take care of all prisoners sent to their institutions whereas in Board of School Inspectors (supra), it was not compulsory that the counties provide the education for these crippled children. The Court points out that as a matter of fact many school districts throughout the State did not choose to participate. The claim of the board of school inspectors of the city of Peoria was therefore denied.

In Schutte and Koerting Co. v. State of Illinois (supra), we have a case where the legislature set up the Illinois Coal Products Commission, a temporary nondepartmental legislative commission for purposes of constructing and maintaining an experimental pilot plant to develop techniques for the profitable utilization of the low grade coal found in Illinois. The Commission was originally created in 1943, at which time a total of $35,000.00 was appropriated. In each of the years 1945, ’47, ’49 and ’51, the Commission was recreated by an identical act of the General Assembly, and in each act a certain specified sum was appropriated for the identical purposes expressed in the 1943 act. Schutte v. State (supra) was filed as a result of the fact that contracts were entered into between the Coal Products Commission and certain suppliers with said contracts being in excess of the $100,000.00 appropriated for the ’49 through ’51 biennium.

In Schutte v. State (supra) the Court states beginning on page 603—

“With respect to this question, it is fundamental that all governmental agencies, departments and commissions are strictly circumscribed in their powers and authorities by the constitution and statutes of the State of Illinois.
Chap. 127, §166 of the Illinois Revised Statutes, (1955 State Bar Association edition), provides as follows: ‘§166 Indebtedness exceeding appropriation prohibited. No officers, institution, department, board or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law. 1919, June 10, Laws 1919 pg. 946, §30.”

This Court then follows by quoting from Fergus v. Brady (1917), 277 Ill. 272, 279-80, wherein they once again discuss what is meant by express authority of law. and cite the example given with reference to Southern Illinois Penitentiary.

However, in Schutte v. State (supra) rather than to deny all claims outright, this Court took one step beyond their holding in Board of School Inspectors of the City of Peoria v. State (supra) and held that where sufficient funds were available at the time the contract was entered into, the Court would honor the contract even though the contract was not paid before the funds available were totally expended.

The court went on in the Schutte case to hold that any contract entered into, after the appropriation had become totally obligated, would be denied.

It is important in applying the principle set out in Schutte (supra) to distinguish between the balance of the appropriation left unobligated and the balance of the appropriation actually remaining on hand. To allow a claim, simply because the amount actually being held on the date the obligation is incurred equals or exceeds the obligation, could lead to overspending by the agency and deficiency appropriating by this Court.

This approach also could not guarantee that invoice vouchers prepared after the funds are fully obligated would not be processed and paid leaving no funds for obligations incurred at an earlier date. For this reason we repudiate that portion of Schutte and Koerting Co. v. State of Illinois, 22 Ill. Ct. Cl. 591, which allows awards simply because the line item appropriation was not shown on the books of the agency as being fully obligated on the date the “debt” was incurred. The legislature, in the wise and thoughtful exercise of its prerogatives, has made such awards unnecessary. Section 13.2 of the State Finance Act (Ill. Rev. Stat. 1977, ch. 127, par. 149.2) should adequately protect vendors without this Court resorting to anything but .a strict and conscientious adherence to the statutes relating to this problem.

It is inherent in the administration of State government that expenditures should not exceed appropriations previously made with the possible exception set forth in the case of Fergus v. Brady (supra) where the expenditure is strictly prescribed by the legislature and the spending agency is compelled by circumstances and law to obligate the State. This appears to be a permissible (and expeditious) delegation of authority by the legislature.

Without strict and well enforced guidelines, the spending of State officials could become rampant.

The drafters of the Constitution of 1970 were fully cognizant of this situation when they drafted article VIII, section 1. They provided two requisites for spending of public funds:

It must be for a “public purpose” and it must be “only as authorised by law”:

“Section 1. General Provisions
(a) Public funds, property or credit shall be used only for public purposes.
(b) The State, units of local government and school districts shall incur obligations for payment or make payments from public funds only as authorized by law or ordinance.”

We find here a similarity of the concepts that obligations must be made only with “express authority of law” (Constitution of 1870) or “only as authorized by law” (Constitution of 1970).

The basic concept of the obligation having to be authorized by law remains, but the question is raised as to the significance, if any, of the fact that the drafters failed to utilize the word “express” or “expressly” in conjunction with the phrase “only as authorized by law.”

Did this indicate an intent that the restrictions on obligating or spending public funds be less stringent, or was this simply an attempt to delegate a wider latitude of discretion to the General Assembly or was it neither, but simply an example of the elimination of superfluous verbiage.

The determination of this question seems academic in view of the fact that the law on the books today remains as it was in 1967 and 1968 — section 30 of the State Finance Act (Ill. Rev. Stat. 1977, ch. 127, par. 166)— and retains the “restrictive” phrase “expressly authorized by law.”

The question then is, was the expenditure in question here — namely the providing of medical attention to an inmate — an expenditure absolutely (expressly) required by law. This Court thinks that, in line with the example set out by the Illinois Supreme Court in Fergus v. Brady (supra) it would be. However, in view of our earlier conclusion that pursuant to section 13.2 of the State Finance Act (Ill. Rev. Stat. 1977, ch. 127, par. 149.2) there were adequate funds appropriated and that this obligation could be paid from those funds, it is unnecessary for us to decide this case on any other grounds.

It is therefore ordered that Dr. ..Clifton Hall be awarded the sum of $314.00 (three hundred fourteen and no/100 dollars).


author: Perlin, C. J.

text:
    (No. 5695
    Carol Wilson, Claimant, v. The State of Illinois, Respondent.

      Order allowing motion to dismiss filed November 19, 1976.

      Order on denial of motion to vacate dismissal filed October 16, 1979.

      Opinion filed November 23, 1981.

    Robert A. Holstein, for Claimant.
    Tyrone C. Fahner, Attorney General (John R. Fanone, Assistant Attorney General, of counsel), for Respondent.
   ORDER ALLOWING MOTION TO DISMISS

Perlin, C. J.

This cause is before the Court on the motion of Respondent to dismiss. It appears that an action arising out of the same occurrence was filed in the circuit court of Kane County by Claimant, and that a jury verdict was returned for the defendants in that cause. Respondent has submitted a copy of a special interrogatory answered by the jury in that action, in which the jury stated that the decedent, Lester D. D. Wilson, was negligent before and at the time of the occurrence, which proximately contributed to the accident.

It is Respondent’s position that the jury’s finding of contributory negligence in the Kane County trial is res judicata of that same issue in this action, and that Claimant is therefore estopped to argue that the deceased was free from contributory negligence.

Claimant has not responded to the motion to dismiss.

On consideration of the motion to dismiss, the Court finds that the jury determination of contributory negligence by the deceased, in the action arising out of the same occurrence tried in Kane County, is res judicata of that issue in this action. Since freedom from contributory negligence is an essential element of Claimant’s cause of action, recovery in this action is barred.

It is therefore ordered that this cause be, and hereby is, dismissed.

ORDER ON DENIAL OF MOTION TO VACATE DISMISSAL

Poch, J.

This cause coming to be heard on the motion of the Claimant to vacate the commissioner’s order of dismissal and upon the Respondent’s motion to dismiss the claim, due notice being given, the Claimant not responding to Respondent’s motion to dismiss and the Court being fully advised:

Finds that:

1. This cause was filed on October 24, 1969, and has been dismissed twice during the pendency of the claim.

2. The Claimant has not filed its brief nor has the Claimant asked for any extension of time to do so since the final transcript was filed on January 9, 1979.

3. The Attorney General has advised the Claimant on two occasions, towit: March 13, 1979, and May 11, 1979, that Rule 18 of this Court requires the Claimant to file its brief within sixty (60) days of the filing of the final transcript of the evidence. The Claimant has not responded to notice from the Attorney General nor has the Claimant responded to the motion of the Respondent to dismiss filed on June 20, 1979.

It is hereby ordered:

That the motion of the Respondent to dismiss the claim be and the same is hereby granted and the cause is dismissed.

OPINION

Poch, J.

This is a claim for damages brought by Carol Wilson, both as an individual and as administrator of the estate of Lester Wilson, who was the husband of the Claimant. Evidence concerning the facts was heard by a commissioner of this Court. The following summarizes the evidence. The decedent left his home on the evening of November 18, 1968. According to his wife his usual route of travel was over Route 25, which passes over the Northwest Tollway. At that point Route 25 has a bridge going over the toll way on the way to Elgin, Illinois. The decedent was fatally injured in an accident on the upgrade portion of the overpass for southbound traffic.

Officer Eric K. Isom of the Elgin police department testified that he and his partner drove in a northerly direction on the Route 25 bridge. The road surface was in a slick and hazardous condition, at one time placing their squad car in a non-controlled skid. They placed a flare with 20 minutes duration and notified their own dispatcher but not the State of Illinois dispatcher. They did not close the bridge or reroute traffic. Approximately one hour later the officers drove back to the bridge and saw several vehicles there with the decedent lying on the ground outside of his vehicle. The decedent was taken to a hospital where he died of his injuries on December 7, 1968.

Officer Isom did not see any State of Illinois trucks at the bridge. There was a State facility for trucks and plows in Elgin, which was three to four miles away. He had been told over his radio the bridge would be salted.

Respondent does not contest the fact that there were no warning signs, flares or other warning devices at Route 25 on the bridge over the Northwest Tollway. Nor does Respondent contest that it has the legal duty to use reasonable care to motorists using the bridge and highways.

The Claimant called Joseph Kostur, the safety and claims manager of District One for the Illinois Department of Transportation. He testified that the State maintained, but did not own, the Route 25 overpass. He did not know of any auto collisions before the fall of 1968 at that location due to icy or slick conditions. On November 18, 1968, State salt trucks were dispatched into the area and had been out since 8:00 a.m. He testified that the Department of Transportation did not receive any notice from the Elgin police department of any dangerous condition on the Route 25 overpass. He also testified that the surface of the overpass was made of Portland cement which was the least slick of all road deck surfaces.

The Respondent introduced the report of its highway division showing that the decedent was standing on the roadway and not on the median strip when he was injured.

This claim was pending for a number of years pending the outcome of a suit for personal injuries filed in the circuit court of Cook County against one of the other motorists involved in the accident. That case was settled without a trial.

It is well settled that the State of Illinois is not an insurer of the highway conditions under its maintenance and control. (Ohms v. State (1975), 30 Ill. Ct. Cl. 410, 413-14.) The Claimant has the burden of proving Respondent’s negligence by the preponderance of competent evidence. Ziden v. State (1969), 27 Ill. Ct. Cl. 12, 14.

The decedent’s death was tragic and untimely but the Claimant has not furnished any proof of what caused the accident. There was no evidence adduced to prove why the decedent was standing on the highway when he was injured. Thus there is no proof as to the cause of Lester Wilson’s death.

There was no proof that the Respondent had actual knowledge of the icy condition of the overpass. Officer Isom notified his department but never notified the Transportation Department. The evidence does not show that the Respondent was negligent. Mr. Kostur testified that the State trucks were out in the area of Route 25. The duty of the Respondent is to use reasonable care in maintaining its roadways. In this case there is no evidence to show the contrary because there was no proof of actual knowledge of the icy condition. Therefore, the authority relied on by Claimant is distinguishable and not controlling. The evidence in this case does not establish that the Respondent had any constructive knowledge of the icy condition.

The Claimant has failed to prove that the State was negligent in the maintenance of the overpass and that the injury was proximately caused by any negligence of the State. Thus recovery must be denied. Illinois Ruan Transport Corp. v. State (1973), 28 Ill. Ct. Cl. 323, 327.

The claim of Carol Wilson is hereby denied.


author: Holderman, J.

text:
    (No. 5895
    J. M. Corbett Co., Claimant, v. The State of Illinois, Respondent

      Opinion filed October 5, 1981.

    Robert V. Hogan, for Claimant.
    Tyrone C. Fahner, Attorney General (Saul Wexler, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

On April 29, 1968, Claimant entered into a contract with Respondent for the furnishing of all materials, equipment, supplies, labor and services for constructing the St. Joseph Creek channel improvement, near the city of Lisle in Du Page County, Illinois. This work consisted primarily of the construction of a tunnel and culvert under the tracks of the Chicago, Burlington and Quincy Railroad, hereinafter referred to as the railroad.

Payment was to be made under the contract according to certain specified unit prices. The base contract plus extras amounted to $453,730.85. Of this amount, $412,725.00 has been paid by Respondent, and an order has been entered, pursuant to stipulation by the parties, granting the railroad $10,000.00. There is left due the sum of $31,005.85.

Claimant now contends it is due an additional $35,583.60 as compensation for additional labor and materials expended in implementing certain remedial measures. These measures, according to Claimant, involved the use of additional construction techniques which were employed at the direction of the railroad. The measures were necessary in order to rectify the track settlement, as well as to prevent the collapse of the tunnel roof which had occurred during construction. Claimant contends that payment for the additional labor and materials is allowable under Section 9 — 4 of the contract entitled “Payment for Extra Work.”

The tunneling work commenced on October 31, 1968, and proceeded without difficulty until November 4, 1968, when a sink hole, or a depression, appeared in the soil constituting the railroad right-of-way. Since the tunneling was beginning to approach the track section, the railroad sought to implement certain techniques which would prevent more sink holes from developing. The railroad was apprehensive that the tunneling would cause the tracks to settle which would require a slowdown or complete stoppage of train service. On November 6, there was evidence of track settlement appearing.

On November 21, 1968, a meeting was held which was attended by representatives of Claimant, the railroad and the State Division of Waterways. At that meeting, it was resolved that Claimant implement some of the measures proposed. One important measure was the installation of stronger poling plates which are used to prevent settlement of the soil above the excavation.

As the work continued and the tunneling approached the area beneath the tracks, more sink holes appeared and track settlement worsened. Due to the great number of trains to use this particular track, the railroad was very reluctant to take this track completely out of service, so they started a series of slowdowns on the railroad. They allowed a slow order of 25 miles per hour, down from a maximum of 70 miles per hour. Despite the slowdown, the track was closed on several occasions for short periods of time.

It is Respondent’s contention that the major cause of the problems was over-excavation by Claimant. Because of over-excavation, the arch of the tunnel became distorted, necessitating the installation of timber supports which were then installed. The railroad, under Section 260 — 4 of the contract, was empowered to take these steps. Claimant, when asked to install the supports, contended it did not have the material on hand to meet this emergency.

Work resumed on December 13 but voids developed again. There was a sagging of the tracks, causing track number 2 to be taken out of service. The track was back in service on December 14, under a slow order of 10 miles per hour, and finally on December 20, it was reduced to 5 miles per hour. In the meantime, the track had settled so much that it had to be raised four inches.

Work on a second tunnel, adjacent to the first tunnel, was begun on January 16,1969. Poling plates, as well as all other additional measures, were employed in the construction of the second tunnel.

Under Section 9 — 4 of the contract, payment for extra work is to be made only if the work is approved in writing by the chief waterway engineer. Once approved, the State issues a B.C., or change order, which authorizes the contractor to go ahead with the extra work. Claimant did not secure a change order nor did it produce any writing showing approval of the work by the chief engineer.

Claimant places considerable reliance on a conversation that took place with the chief waterway engineer in which he stated that changes were being made and he would probably have to pay for them.

In the abstract of evidence before the commissioner, there is some very interesting testimony from Charles McColgin, a retired employee who had worked for the railroad for approximately 45 years. At the time he retired, he was an assistant bridge engineer in field construction and was very familiar with bridges and tunneling. He testified he had supervised between 20 and 25 tunneling jobs during his years with the railroad. He also testified that the foreman in charge of the tunneling job was familiar with this type of work but that this was actually his first job of tunneling. He further testified that the tunnel could have been safely completed without requiring the additional measures which were required only because the individual in charge did not have the experience required for this job.

The record is devoid of any evidence showing that Respondent agreed to any additional amount for so-called extra work.

This Court has previously held that where contracts have been entered into by and between the parties, and Claimant then performed additional work without ob-taming a written order, no payment can be made for the additional work. Krueger Construction Co. v. State of Illinois, 28 Ill. Ct. Cl. 83.

It is the Court’s opinion that Claimant has failed to prove that the additional costs incurred were extras which, under the terms of the contract, would allow Claimant to be reimbursed and, in addition, Claimant failed to secure the necessary written work order which would have allowed it to recover for the additional work.

An award is hereby entered in the amount of $31,005.85, which is the amount unpaid on the original contract.


text:
    (No. 5937
    James J. Gramlich, Jr., et al., Claimants, v. The State of Illinois, Respondent.

      Opinion filed September 10, 1981.

    Smith, Larson & Pitts (Robert H. Gregory, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter is before the Court on a commissioner’s report and briefs filed by Claimants and Respondent. The parties to this suit dispensed with a hearing and turned over to the commissioner the circuit court depositions and records relative to this case.

This is a case involving a one-car accident with no eyewitnesses that occurred on the evening of October 10, 1969. Claimants were passengers in an automobile driven by Don Johanntosettel which was traveling in a westerly direction on a State-maintained frontage road adjacent to Interstate 70 between Greenville and Highland, Illinois. The frontage road ended at an unmarked “T” intersection with a township road. The automobile in which Claimants were riding collided with and went through a guardrail and plunged down a steep embankment after traveling 130 feet in the air.

It is Claimants’ contention that due to the fact the State had not erected stop or warning signs at this particular intersection, it was the State’s negligence that caused the accident in question.

The record indicates that the Claimants had been drinking and that the driver, Don Johanntosettel, and Claimant James J. Gramlich were intoxicated. There was also testimony indicating that Claimants were evading the police and that the car was traveling at a very high rate of speed prior to and at the time of the accident.

The record indicates that a dramshop suit was settled for $250.00 per Claimant and there were covenants not to sue indicating that the driver of the automobile paid certain specific amounts to each of the three passengers. The record also indicates that the contractor who built the road was found to be not liable for the accident.

The record is clear that there were no stop signs or warning signs at the intersection in question and that there had not been any prior accidents at this intersection, as far as Respondent’s records indicated.

The record is completely void of any knowledge by the State that this was a dangerous intersection or that there had been any previous accidents at this intersection.

There is evidence in the record showing that the automobile in which Claimants were riding had run a stop sign in Greenville and, by speeding, had evaded the local police officer, and that the driver was intoxicated and driving at speeds up to 80 miles per hour. One of the Claimants testified that he had been uneasy about getting into the car and had considered trying to get out of the car because of the excessive speed at which it was being driven. The record discloses that the driver of the automobile, according to the testimony of one of the passengers, was intoxicated and had drunk “. . . two six packs, maybe more.” The record shows that two of the passengers in the car had requested that the driver slow down which he failed to do.

Claimants, in their brief, state that Respondent’s failure to erect warning or stop signs on and along the frontage road was the cause of the accident. They completely ignore the record showing that the driver of the automobile was intoxicated and the other three passengers had all been drinking. Claimants fail to indicate on what basis they believe the driver of the car would have observed a warning or stop sign if it had been erected when he completely ignored signs relative to the speed limit, and a stop sign in the village of Greenville. It is the Court’s opinion that no sign would have been observed or obeyed at the point in question.

In the case of Shirar v. State of Illinois, 25 Ill. Ct. Cl. 256, this Court made a statement particularly apropos to the cited statute. In the Shirar case, the Court stated:

“The Court concludes that it must follow that failure to maintain a sign which was not required to be placed in the first instance, in no way constitutes negligence.”

This Court has repeatedly held that before there can be recovery in cases such as the present case, Claimants must prove that Respondent’s negligence was the proximate cause of the accident, and that Claimants are free from contributory negligence. See Barotta v. State, 31 Ill. Ct. Cl. 415; Clark v. State, 30 Ill. Ct. Cl. 32; Cipolla v. State, 30 Ill. Ct. Cl. 565; and Illinois Ruan Transport Corporation v. State, 28 Ill. Ct. Cl. 323.

To hold that individuals who are riding with a drunk driver and traveling at speeds up to 80 miles per hour, totally disregarding all stop signs and other signs, are not guilty of contributory negligence and are acting to protect their own safety and well-being would make the State an insurer of every individual using its roadways.

It is the Court’s opinion that Claimants failed in every respect to meet the requirements to make the State of Illinois responsible for their own misconduct.

Award denied.


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    (No. 7103
    Michael Cyperstein, Administrator of the Estate of Edward Cyperstein, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 18, 1981.

      Order on denial of motion for reconsideration filed October 23, 1981.

    Sidney Robin, Ltd., for Claimant.

      Tyrone C. Fahner, Attorney General (Paul M. Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

The Claimant, Michael Cyperstein, administrator of the estate of Edward Cyperstein, deceased, brought this action for a wrongful death of the deceased against the State of Illinois. Claimant alleges that the negligence of the State, through its agents, caused the death of Edward Cyperstein on October 13, 1971, at the Manteno State Hospital in Manteno, Illinois.

From the evidence introduced at numerous hearings, Edward Cyperstein was a patient in Respondent’s various mental institutions since June 6, 1967. On August 31, 1971, he was a patient at Manteno Mental Health Center and remained there until his death, October 13, 1971. As a patient he was highly agitated, hyperactive and combative. His condition was diagnosed as schizophrenia, chronic undifferentiated type. He was treated by the staff doctors at Manteno Hospital by a combination of drugs known as phenothiazines, namely: Mellaril and Thorazine.

The evidence shows that Respondent’s physicians administered a combination of phenothiazines that were more than double the maximum daily dose of Mellaril set forth by the manufacturer. After eating his dinner on October 13, 1971, decedent retired to his bed where he was found to be dead approximately one hour later. The coroner who performed the autopsy on Edward Cyperstein issued a death certificate stating that the immediate cause of death of Edward Cyperstein was aspiration of gastric contents, terminal, a condition that lasted for minutes prior to the death as a result of the underlying cause of phenothiazine poisoning that lasted for days/ weeks.

Claimant presented two medical experts, Dr. Leonard Elkun and Dr. Seymour Ehrenprifs, whose opinions were that the overdosage of phenothiazine was very likely responsible for the death of Edward Cyperstein.

Respondent presented testimony of Dr. Martin Wendkos, a specialist in internal medicine and cardiovascular disease. This witness testified that the decedent herein did not die of phenothiazine poisoning. He testified that the Federal Drug Administration approved dosages given in a hypothetical question, could not cause phenothiazine poisoning or sudden death.

Respondent also presented testimony of Dr. John M. Davis, who was of the opinion that the decedent did not have phenothiazine poisoning. An additional witness for Respondent, Dr. Frank F. Fiorese, a toxicologist, also expressed the opinion that the quantity of phenothiazine in the blood of the decedent was not sufficient to cause his death.

The court has carefully reviewed the testimony, which is lengthy and extensive medical evidence from both parties. The briefs of the parties, which the authorities relied on, are helpful to the Court but it is well settled that a State hospital is not an insurer of the well-being of its patients; it does owe them a duty to exercise reasonable and ordinary care in their treatment. (Mazurek v. State (1975), 30 Ill. Ct. Cl. 247, 249.) The Claimant has the burden of proof by a preponderance of the evidence that the State breached the duty owed to the decedent; that the decedent was free of contributory negligence and that the State’s breach was the proximate cause of the death. A review of all the evidence shows that the Claimant has met this burden.

The evidence presented by the Claimant is both credible and competent and given the weight and credibility to which it is entitled established the proof in favor of the Claimant. In addition the coroner’s report and death certificate established the cause of death which was the result of the underlying cause of phenothiazine poisoning lasting for days/weeks.

The decedent was administered a dosage of drugs which exceeded manufacturer’s recommendations. Such a deviation creates prima facie evidence of negligence. (Ohligschlager v. Proctor Community Hospital (1973), 55 Ill. 2d 411, 416, 303 N.E.2d 392, 396. See also Rinehart v. State (1977), 31 Ill. Ct. Cl. 353, 357.) The State is responsible for the negligent actions of its employees, in this case the physicians who treated the decedent. Foster v. Englewood Hospital Association (1974), 19 Ill. App. 3d 1055, 1061, 313 N.E.2d 255, 259.

The overdosage of drugs administered to the decedent by the agents of the Respondent, in violation of the duty owed and the standard of care required, constituted actionable medical malpractice, which was the proximate cause of Edward Cyperstein’s death. The State’s arguments to the contrary are not persuasive.

The Claimant seeks damages in the sum of $100,000 plus costs of burial of the decedent. At the time of the decedent’s death the statutory limit on damages was $25,000.00. (Section 8 of the Court of Claims Act, Ill. Rev. Stat. 1969, ch. 37, par. 439.8.) Therefore, that statutory limit shall apply to any recovery in this case.

At the time of his death, Edward Cyperstein was approximately 21 years of age. He had worked at a box factory for approximately two weeks and at Motorola Corporation for about two days, He had contributed very little over a period of three years preceding his death to the support of his parents. There is testimony in the record that if properly medicated the phenothiazine could have cured the decedent and he could have gone on to a regular life.

In this case the decedent left his parents as his survivors. It is well settled that if he left a lineal heir there is a presumption of substantial pecuniary loss. (Theilin v. State (1977), 31 Ill. Ct. Cl. 449, 455.) While there are parents surviving a deceased child there is also a presumption of substantial loss. (Ferraro v. Augustine (1964), 45 Ill. App. 2d 495, 196 N.E.2d 16.) This applies even where the decedent is an adult and the lineal kinsmen are adults. (Naslund v. Watts (1967), 80 Ill. App. 2d 464, 472, 224 N.E.2d 474, 478.) Where the facts indicate a reasonable expectation of securing some pecuniary benefit or advantage from the continued life of an adult child there is a sufficient basis for the recovery of substantial damages by the parent. Dodson v. Richter (1962), 34 Ill. App. 2d 22, 180 N.E.2d 505. See also Baird v. Chicago, Burlington & Quincy Railroad Company (1976), 63 Ill. 2d 463, 470, 349 N.E.2d 413, 417.

The presumption has not been overcome by the State. Based on the evidence the sum of twenty-five thousand dollars is compensation to the Claimant due to the unfortunate loss of the decedent.

It is hereby ordered:

That the Claimant, Michael Cyperstein, administrator of the estate of Edward Cyperstein, deceased, be awarded the sum of twenty-five thousand dollars ($25,000).

ORDER ON DENIAL OF MOTION FOR RECONSIDERATION

Poch, J.

This matter comes before the Court upon a motion filed by Respondent for reconsideration of the opinion heretofore entered and after oral argument.

It is hereby ordered:

That Respondent’s motion for reconsideration be, and the same is, denied, and the Court’s opinion granting an award is confirmed.


author: Roe, C.J.

text:
    (No. 73-CC-0295
    David W. Ruffcorn, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 23, 1981.

    Lytton & Dalton (William L. Dalton, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

The facts in this case are for the most part undisputed. The Claimant, David W. Ruffcorn, was involved in an accident which occurred on April 23, 1971, at 11:20 p.m. at the intersection of John Deere Road and Eleventh Avenue, near Silvis, Illinois. John Deere Road is a four-lane, divided highway running in a northerly and southerly direction and it is intersected from the west by Eleventh Avenue. Approximately 2000 feet north of Eleventh Avenue, John Deere Road dead ends at Valley View Road. From October 1, 1969, until the date of the accident John Deere Road was open at the south from Colona Road to north of Eleventh Avenue 2000 feet to Valley View Road. On October 1, 1969, the State of Illinois placed signs for northbound traffic on John Deere Road for the stop sign and road closure at Valley View Road as follows: (1) “Stop Ahead” located 500 feet north of Eleventh Avenue; (2) “T-Intersection” 1000 feet north of Eleventh Avenue; (3) “Stop Ahead” 1500 feet north of Eleventh Avenue; and (4) “Stop” 2000 feet north of Eleventh Avenue at the intersection of Valley View Road. Some of the signs were equipped with flashers.

On the day of the accident the State moved the road closure and barricade from Valley View Road 2000 feet south to a point just north of Eleventh Avenue and extending across the northbound lanes of John Deere Road. It is undisputed that the State also placed reflectorized signs approximately 4 feet square on each side of the highway as follows: (1) 1500 feet south of Eleventh Avenue a “Detour Ahead;” (2) 1000 feet south of Eleventh Avenue “Barricade Ahead;” (3) 500 feet south of Eleventh Avenue “Barricade Ahead;” and (4) on the barricade just north of Eleventh Avenue was affixed the wording “Road Closed.” There were no flashers on any of the barricades for the northbound traffic. There was some testimony concerning a dip in the highway south of Eleventh Avenue, which would somewhat obstruct the intersection. However, it seems fairly clear that the intersection was visible at least a city block away. The Claimant was driving north on John Deere Expressway on his motorcycle on his way home. He had been to school at Blackhawk Junior College, work and visited friends prior to the accident. His driving lights were on and he was wearing a safety helmet. The Claimant testified that at no time did he see the signs nor did he see the barricade. The Claimant testified that he was traveling at 35 m.p.h. at the time of the accident. The barricade sign, across the center of the highway, was constructed of 2" X 6’s covered with 6' X 3' reflectorized 5/8" plywood centered across both lanes. The road in question was apparently a local road and was located in a residential area. The weather was not a factor in this matter. The Claimant apparently crashed through the plywood sign leaving his silhouette in the sign. He was found lying 162 feet north of the barricade and his motorcycle was found 460 feet beyond that point. The Claimant survived the accident and subsequently served three years in the army.

This Court is of the opinion that the Construction Injury Act (Ill. Rev. Stat., ch. 121, par. 314.1 et seq.), is not applicable to this case. Section 6 of said Injury Act designates who shall be liable, but section 8 of said act specifically excludes the State of Illinois from liability thereunder. It is the Court’s opinion that section 8 was not repealed by the new construction.

It is the Court’s opinion that this matter should be decided under Count I of said complaint, which is based upon common law negligence. Under Claimant’s Count I he primarily bases his allegations of negligence upon the proposition that the State should have had artificially illuminated flashers included along with the signs, which were in place at the time of the accident, and in support of his position he cites the publication known as the Manual of Uniform Traffic Control Device for highway construction and maintenance operation. After having considered the evidence the Court is of the opinion that in the situation as it existed in this case the State possibly could have done more in the way of flashing signals and illumination of the barricade signs. This is not negligence. Obviously a dangerous condition would exist to a local user of the road particularly, when the barricade had been moved and the flashing signal had also been removed and the local user was used to this condition. But it is also the Court’s opinion that the Claimant was guilty of contributory negligence.

He had a light present on his motorcycle. The weather was not a factor. There was nothing to obstruct his vision. The barricade itself was in the middle of the highway. The opportunity to see the sign was there. That he did not see the signs in place and. take appropriate action constitutes lack of care or negligence. The Claimant was not alert. He obviously was traveling in excess of 35 m.p.h. He was therefore guilty of contributory negligence and his claim is therefore denied.


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    (No. 74-CC-0173
    William B. Patterson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 9, 1981.

    Pefferle, Maddox, Gramlich & Wolfson (Jerome Wolfson, of counsel), for Claimant.

      Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This claim arose out of an incident which occurred on June 28, 1972. On that date, William B. Patterson, a 52-year-old polio victim, using crutches, was a visitor at the Lincoln Home area at Springfield, Illinois. Upon arrival at the area, Mr. Patterson and the other persons in his party descended from the bus in which they arrived and approached the wooden walkway which extended from the parking lot to the brick sidewalk running in front of the Lincoln Home itself. Upon noticing the wooden walkway, and that it was wet from rain which had fallen earlier that day, Mr. Patterson adjusted his normal walking pattern with the use of his crutches to navigate the walkway. He did not feel the wet wooden planks would present him with any unusual potential dangers as he was very adept in using crutches.

Approximately 100 feet from the beginning of the walkway, Mr. Patterson’s left crutch slipped out from underneath him causing him to fall, breaking his left leg just above the knee joint. Following the accident, Claimant was admitted to St. John’s Hospital in Springfield, Illinois, where the leg was set and put into a cast. Mr. Patterson was then transferred to Pomona Valley Community Hospital in Ontario, California, his hometown. He remained in that hospital under treatment for three months.

Due to Mr. Patterson’s injury he has been unable to pursue his usual profession in electrical mechanical designing and his injury appears to be of a permanent nature.

The sole issue in this action is whether the State of Illinois is liable for Mr. Patterson’s injuries.

It is the Claimant’s contention that the State of Illinois breached a duty to him in not maintaining safe walkways at the Lincoln Home area for visitor use, on which walkways he injured himself. Due to that alleged negligence, Claimant stated that the State of Illinois is responsible for his injuries.

The case at bar parallels the facts in Thode v. State of Illinois, 28 Ill. Ct. Cl. 20. Ms. Thode fractured her hip when she slipped and fell on the boardwalk to the rear of the Lincoln Home. The boardwalk, at the time of the fall, was wet with the possibility of some ice having formed.

Due to her injury, Ms. Thode was unable to pursue her previous work raising money for various organizations and her medical and hospital bills were substantial. The evidence showed the walk to have been wet from a rainfall earlier in the day and there were no signs of any kind relative to the walk. There was a complete absence of negligence on the part of the Respondent, with the only evidence being that there was a wet sidewalk.

In the Thode case, supra, we reiterated that before the Claimant, can recover damages from the State, it must be proven that she was in the exercise of due care and caution for her safety, . and that the State was negligent, and such negligence was the proximate cause of the accident. McNary v. State of Illinois, 22 Ill. Ct. Cl. 328-34; Bloom v. State of Illinois, 22 Ill. Ct. Cl. 582-85; Week v. State of Illinois, No. 4719.

In Thode we said:

“It does not appear that there is any negligence on the part of the State and certainly the mere fact that a sidewalk was wet from rain does not prove any negligence. As a matter of fact, the only negligence claimed by Claimant is that the tourer of the premises was upon a wooden walkway which was open and unprotected from the weather and was without railings and protective devices.”

The claim of Hazel Thode was denied because wet sidewalks caused by rainfall do not constitute an act of negligence on the part of the State such as to allow recovery by a Claimant.

The Respondent in the case at bar urges us to deny this claim following the same reasoning as in the Thode case, supra, due to the facts presented. Even though Mr. Patterson is found to have been exercising due care and caution on the wooden walkway, the State of Illinois was not negligent in the maintenance of the wooden walkways around the Lincoln Home area, as the “mere fact that a sidewalk was wet from rain does not prove any negligence.” Thode v. State of Illinois, 28 Ill. Ct. Cl. 20.

We also note that we have repeatedly held that the State has only to exercise ordinary care to protect State park patrons from harm. (Dumermuth v. State of Illinois, 25 Ill. Ct. Cl. 353.) It is also the law that the State of Illinois is not an insurer of the safety of those who make use of park facilities, such as the Lincoln Home, but it need only use reasonable care in the maintenance of its park facilities and supervision of use thereof by the public. Kamin v. State of Illinois, 21 Ill. Ct. Cl. 467.

While we sympathize with the unfortunate situation of the Claimant we do not feel that the State of Illinois was negligent in causing it. Claim denied.


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    (No. 74-CC-0316
    Leland Peters and Theresa Peters, Claimants, v. The State of Illinois, Respondent.

      Order filed July 1, 1981.

    David E. Holland, for Claimants.
    Tyrone C. Fahner, Attorney General (John R. Fanone, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter comes before the Court upon motion of Respondent to dismiss filed May 20, 1981, and objection by Claimants to said motion.

Respondent’s motion sets forth that transcripts of evidence were filed in this matter sometime after October 9, 1975; that on March 24, 1976, Claimants made a motion to extend time to file their brief to May 24, 1976; that on May 24, 1976, Claimants made a new motion to extend time to file their brief to July 14, 1976; and that a period of over five years has now passed and Claimants have failed to file their brief despite the fact that the rules of the Court require that a Claimant file his brief on or before sixty (60) days after the evidence has been completed and filed.

In Claimants’ objection to motion to dismiss, they state that their attorney misplaced the file in this case and during this long interval the file had not been found until recently and they now request leave to file their brief and excerpts from the record.

It is unfortunate that Claimants’ file was misplaced in the attorney’s office and the rules of the Court were not complied with. The Court notes Claimants’ argument that the delay in the filing of briefs and excerpts should not burden or inconvenience the Court.

The Court is of the opinion that a delay of such length violating the rules of the Court does in fact inconvenience the Court and to tolerate such practice would result in a chaotic condition of the Court to the detriment of all parties concerned.

It is hereby ordered:

That Respondent’s motion to dismiss be, and the same is, granted and this cause is dismissed.


text:
    (No. 74-CC-0668
    Michael Ditkowski, on behalf of himself and others situated, Claimant, v. The State of Illinois, Respondent.

      Order filed October 23, 1981.

    Sachnoff, Schrager, Jones and Weaver, for Claimant.
    Tyrone C. Fahner, Attorney General (Saul R. Wexler, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This cause comes on to be heard on the Court’s own motion, due notice having been given, and the Court being fully advised in the premises:

The Court hereby finds:

1. That this cause was continued generally.

2. That Rule 7 of the Rules of the Court of Claims requires that an annual status report be filed between April 1 and May 31 with the Clerk of the Court in all cases which have been continued generally.

3. That on March 31, 1981, the Clerk of the Court, by letter, notified counsel for Claimant that a status report was due, even though the Clerk was not required to do so.

4. That Claimant did not comply with Rule 7 in that no status report has been filed to date.

5. That the Clerk’s office notified the Court of said noncompliance following annual review.

6. That on August 14, 1981, we entered an order requiring Claimant to file a status report within 45 days.

7. That Claimant has not complied with our order of August 14, 1981.

8. That Claimant has made no effort in good faith to proceed with this claim.

Wherefore, it is hereby ordered that this cause be, and hereby is, dismissed pursuant to Rules 9 and 26 of the Court of Claims.