text:
    (Nos. 73-13, 73-14, 73-54, 73-457, 73-469, 74-243, and 74-244-Consolidated
    Medley's Movers and Van Lines, Claimant, vs. State of Illinois, Respondent.
    Opinion filed October 1, 1976.
    Arthur R. Waddy, Jr., Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Burks, J.

These seven consolidated claims seek payment for services allegedly rendered to various recipients of public aid in moving or storing their household goods pursuant to some type of alleged authorization by the Department of Public Aid.

The seven claims purport to cover some 404 separate moving contracts over a three-year period for which Claimant contends he was never paid for various reasons. He disputes many of the reasons stated in a detailed departmental report which was nevertheless entered into evidence by stipulation as a Joint Group Exhibit No. 1, and is accepted by the court as prima facie evidence of the facts set forth therein, in accordance with Rule 14 of the court.

The said departmental report filed by the Respondent listed each separate moving contract alleged by the Claimant together with the amount claimed, and the amount Respondent admits was actually due the Claimant according to departmental records, as follows:

Claim No. Amount Claimed Amount owed per Departmental Report
73-CC-13 $ 7,315.74 $ 1,170.00
73-CC-14 6,536.35 1,076.25
73-CC-54 7,882.62 1,592.50
73-CC-457 8,419.74 655.00
73-CC-469 9,600.87 2,253.05
74-CC-243 7,882.62 3,230.75
74-CC-244 7,621.49 1,731.00
Total Total
claimed $55,259.43 admitted $11,708.55

The above departmental report was submitted into evidence by stipulation as Joint Group Exhibit No. 1. The Claimant, Howard C. Medley, d/b/a Medley’s Movers and Van Lines, failed to appear at the hearing and offered no evidence to further substantiate his claims in any amount beyond that acknowledged and admitted by the Respondent.

We notice from the said report that the Department of Public Aid recommended that about three-fourths of the separate moving claims be disallowed for reasons which the Court considers good and sufficient.

On the basis of the stipulation entered into, it is the Court’s opinion that there is due the Claimant in the above entitled seven consolidated cases the sum of $11,708.55.

Claimant is hereby awarded the total sum of Eleven Thousand Seven Hundred Eight and 55/100 Dollars ($11,708.55) as full payment for all services mentioned in all of these seven consolidated claims.


source: Caselaw Access Project

author: Perlin, C. J.

license: Public Domain

text:
    (No. 73-64
    Hubert McCray, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 22, 1976.

   Perlin, C. J.

This matter coming on to be heard by the Court of Claims, the following findings are hereby made:

1. Claimant has duly filed his complaint for time unjustifiably imprisoned pursuant to the Illinois Statutes governing the same.

2. Claimant was imprisoned in Menard State Penitentiary from November 12, 1969, to August 4, 1972, a total of two years, eight months and twenty-two days.

3. Claimant’s conviction was reversed by order of the Illinois Appellate Court, Fifth Appellate District.

4. On August 27, 1974, Claimant received a pardon from the Governor of the State of Illinois on the grounds of innocence of the crime for which he was imprisoned.

5. Claimant, Hubert McCray, was employed at General Steel Industries in Granite City, Illinois, at the rate of $2.70 per hour or $118.00 per week.

6. Sec. 8(c) of the Court of Claims Act provides that awards may be granted for unjust imprisonment of five years or less, for not more than $15,000.00

It is therefore ordered by this Court that Claimant be awarded the sum of Nine Thousand Dollars ($9,000.00).


text:
    (No. 73-65
    Darrell Dillard, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 22, 1976.

   Perlin, C. J.

This matter coming on to be heard by the Court of Claims, the following findings are hereby made:

1. Claimant has duly filed his complaint for time unjustifiably imprisoned pursuant to the Illinois Statutes governing the same.

2. Claimant Dillard was imprisoned at Menard State Penitentiary from November 12, 1969, until August 8, 1972, a total of two years, eight months and twenty-five days.

3. Claimant’s conviction was reversed by order of the Illinois Appellate Court, Fifth Appellate District.

4. On August 27, 1974, Claimant received a pardon from the Governor of the State of Illinois on the ground of innocence of the crime for which he was imprisoned.

5. Claimant was employed at the Performing Arts Training Center and Pudgey’s Tavern in East St. Louis, Illinois, at the time of the aforementioned imprisonment at a rate of $360.00 per month.

6. Sec. 8(c) of the Court of Claims Act provides that awards may be granted for unjust imprisonment of five years or less, for not more than $15,000.00.

It is therefore ordered by this Court that Claimant be awarded the sum of Nine Thousand Dollars ($9,000.00).


author: Spivack, J.

text:
    (No. 73-291
    Dr. Guilio Bruni, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed April 25, 1977.

   Spivack, J.

Claimant seeks to recover the sum of $61,158.00 for medical services rendered to some 2,500 Public Aid recipients from December, 1970, to January, 1972. Respondent has counterclaimed in the sum of $10,202.50, allegedly paid Claimant in error for services rendered other patients within the same period. Respondent defends principally on the grounds that in March, 1965, Claimant was suspended from the roster of physicians approved to participate in the Public Aid program. Respondent likewise albeit less vigorously defends on the grounds that the Illinois Department of Registration and Education had revoked Claimant’s license to practice medicine in the State of Illinois.

Hearings were conducted before Commissioner Griffin on June 14 and July 16, 1974. The testimony introduced was that of Claimant, Thelma Trice, and J. M. Kilbreth, employees of the Department of Public Aid. Additionally, various documents were received in evidence and are part of the record.

The following facts were established by Commissioner Griffin and duly reported to the Court:

Claimant was licensed by the State of Illinois as a physician in 1953. In 1960, he applied and was accepted as a physician eligible to participate in the Public Aid program. In 1965, he was convicted of a non-medical related felony, was incarcerated in a Federal penal institution, and paroled in 1969. In 1970, he recommenced his medical practice, treated Public Aid patients, and in fact received the sum of $10,202.50 for services rendered some of these patients during the first three months of the period in question.

In the early part of 1970, the Illinois Department of Registration and Education revoked Claimant’s medical license on the grounds of his prior conviction of a felony. This revocation was reversed by the Circuit Court of Cook County in May, 1970. An appeal was taken and the Appellate Court reversed the trial court in 1972. Subsequently, the Illinois Supreme Court affirmed the Appellate Court’s decision, and an appeal of that ruling is presently pending before the United States Supreme Court.

In March of 1965, Claimant was suspended from participation in the medical aid program, following a series of departmental proceedings. It is clear that Claimant was not notified of these proceedings, had no knowledge of their pendency, and never received notice that he had been suspended from participation in the program.

The evidence further disclosed that there is no question raised as to Claimant’s competency in or about the treatment of his patients or the legitimacy or accuracy of the bills rendered. It is likewise clear however, that the custom followed by the Department and accepted by the Claimant was that most bills were reduced by about one third inasmuch as Claimant’s customary charges were higher than the maximum prescribed by the Department.

It is evident that there was an express contract entered into between the Claimant and the Department of Public Aid in 1960, and although the contract is terminable at will by either party with or without cause, in order for any such termination to become effective, justice and reason require that actual notice thereof be given to the party adversely affected by such unilateral termination. This did not occur in the instant case. Moreover, the existence of the contract as late as 1970, some five years after the attempted unilateral termination, was affirmed by the Department of Public Aid by its payment of some $10,000.00 to Claimant. In view of our conclusion that the contract was in full force and effect during the period when Claimant performed the services for which he seeks compensation, it is not necessary to consider the legal issues raised by the pleadings and arguments concerning estoppel, quantum meruit, privity, and the like.

The only question remaining is whether or not the Claimant was validly licensed as a physician during the period of time that he rendered the services for which he now seeks recompense. We find that he was so licensed until at least 1972, inasmuch as the Circuit Court of Cook County did by its order of May, 1970, declare Claimant to be licensed and such order remained in full force and effect until reversed by the Illinois Appellate Court in 1972.

Having thus determined that Claimant performed the services pursuant to a valid contract with the Department of Public Aid during a period when he was properly licensed to render such services, it remains to determine the fair amount due him.

The aggregate of the billings herein claimed is $61,158.00. However, the evidence discloses that customarily prior billings of Claimant were reduced by one third to reflect the difference between Claimant’s customary charges and the máximums prescribed by Public Aid. Claimant made no objections to these reductions and thus had agreed to this contractual modification. Applying the same standards to the amounts now due, the Court finds that the total amount now due Claimant is $40,000.00. Accordingly, Claimant, Dr. Guilio Bruni, is therefore awarded the sum of Forty Thousand Dollars ($40,000.00).


author: Holderman, J.

text:
    (No. 73-330
    Richard Mislich, Jr., A minor, by Richard Mislich, Sr., Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 8, 1976.

      Boodell, Sears, Sugure, Giambalvo & Crowley, Attorneys for Claimant.
    William J. Scott, Attorney General; Edward Arkema, Jr., Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant’s action arises out of a suit filed on May 2, 1973, by Richard Mislich, Sr. on behalf of Richard Mislich, Jr., a minor, for injuries allegedly sustained by him on August 23, 1967.

On August 23, 1967, Claimant fell from one of the underside "I” beams of the Crawford Avenue bridge while crawling between such beams.

The bridge in question was an overpass over Interstate 80, a transcontinental federal highway. The bridge was in substantially the same condition on the date of the injury as it was when accepted by the Respondent, State of Illinois, on April 11, 1967.

Claimant alleges that the structure was a dangerous and attractive nuisance to children. The Claimant also alleges that the Respondent knew this area was attractive to children and should have taken precautions to keep them off said property so they would not suffer any injuries.

The record is clear that on the day the accident allegedly occurred the actual road construction was at least one-quarter mile away from the bridge from where the Claimant fell and that there was no actual work being done on the bridge itself.

The "I” beams from which the Claimant fell were the standard "I” beams used to support bridges and structures of this type.

The record discloses that Claimant was an eight year old boy at the time of the alleged accident and was in the area with several other children. Claimant testified to his initial fear of crawling onto the beam and added that he was "a little bit (scared),” when referring to truck vibrations on the beams as they went across the bridge. Several other children called to testify stated that they recognized the area as a dangerous area.

The victim lived approximately three blocks from the scene in question, and the record discloses that the work on Interstate 80 had been going on for a considerable period of time.

The record is devoid as to what the victim’s parents had done, if anything, to warn the boy to stay away from the construction area.

The Respondent had not constructed a fence along the new Interstate 80 nor did they have a watchman in the area.

Claimant has stressed the so-called "attractive nuisance” cases, namely Kahn v. Burton, 5 Ill.2d 614, 126 N.E.2d 836, and Trobiani v. Racienda, 95 Ill.App.2d 228, 238 N.E.2d 177. The doctrine relied upon is briefly as follows:

Where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. (Wagner v. Kepler, 411 Ill. 368). The element of attraction is significant only in so far as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child. Kahn supra at 625.
(1) The occupier knows that young children frequent the vicinity;
(2) There is a defective structure or dangerous agency present on the land;
(3) That structure or agency is likely to cause injury because of the child’s inability to appreciate the risk; and
(4) The expense of remedying the situation is slight. Trobiani supra at 179.

The Claimant’s position is that the structure from which the boy fell was defective and such an attraction as to attract children to the area and that the expense of remedying the situation would have been slight.

The Respondent’s position is that this was an ordinary bridge constructed at frequent intervals to allow traffic to pass over Interstate 80, that there was nothing unusual about it, and there was nothing in particular to attract young people to it. Respondent also takes the position that there was nothing defective about the structure and that it was the standard structure used on Interstate 80 wherever overpasses are used which in cities can be every few blocks.

The State also takes the position that they did not know children would be attracted to the area in view of the fact that the work itself was a long distance from the site where the accident occurred which would be the normal site of the attraction.

In the Kahn case cited by the Claimant, the Court used the following language:

The test in the case at bar is whether the lumber company in the exercise of ordinary care could reasonably have anticipated the likelihood that children would climb onto the lumber and would be injured if it were not securely piled. (Emphasis supplied). Kahn supra at 622.

Justice Stamos placed much emphasis upon the last cited quote and specifically the words "if it were not securely piled.” He found that the liability in Kahn was based upon the fact that the lumber "was not securely piled,” constituting a defective structure or dangerous agency. In the Sydenstricker case, at 18, the Court stated:

The risk that children may climb and fall from a non-defective stationary object simply because children might be expected to climb upon it when the object is lawfully located for an appropriate and useful purpose is not an "unreasonable risk” so as to produce liability within the meaning of Kahn. Another requirement for liability under Kahn is that a child because of his age and immaturity be incapable of appreciating the risk involved. The risk in climbing is simple and obvious to a child of plaintiffs age (9) and experience.
The facts in the instant litigation reflect that an essential element of liability is absent, since the injury was not the result of any defective structure or dangerous agency inherent in this parked railroad tank car.

In reference to the Trobiani case, the Sydenstricker Court stated:

Plaintiff cites the Trobiani case in support of his argument, but in Trobiani, the plaintiff child incurred his injuries when he fell from a ladder, in a building under construction, and into an open stairwell. The court held that a ladder over an open stairwell in a building under construction constituted a dangerous condition to a minor plaintiff. Sydenstricker, at 18.

In Sydenstricker, as well as in the instant case, there is a definite lack of a defective structure or dangerous condition essential to impose liability under the "attractive nuisance” doctrine. (R. pp. 124, 182, (R.Ill) pp. 10, 12).

Claimant’s argument that this was a defective structure is not supported by any of the facts. As stated before, it was a typical structure supporting an overpass over a highway. There is nothing in the record to indicate that any part of the structure, including the "I” beams from which the victim fell, was defective in any manner, shape or form.

It is also the Respondent’s contention that a non-defective roadway, plus a non-defective, common, federally approved interstate bridge, does not constitute a "dangerous agency.”

This Court has repeatedly held that before a recovery can be made, they must prove by a preponderance of the evidence that:

(1) the injuries were proximately caused by the negligence of the Respondent; and

(2) Claimant was in the exercise of due care and caution for his own safety.

The boy who was injured was eight years of . age at the time of the accident. This Court and the Courts of Illinois have repeatedly held that the Illinois law requires a minor over the age of seven years to exercise that degree of care which a reasonably careful person of the same age, capacity, intelligence and experience would exercise under the same or similar circumstances. See Simmons v. State of Illinois, 26 Ill.Ct.Cl. 351.

Claimant also alleges that this accident could have been prevented at slight cost by the construction of a fence. In view of the fact that Interstate 80 is a transcontinental highway, it would appear that the construction of a fence, which in itself might be a challenge to children, would not have prevented the accident in question.

Attention is called to the fact that at the time of the accident this was an unopened roadway. The Sydenstricker case touched upon this very element using the following language:

Climbing is an expected adventure in the life of young children. It is difficult, if not impossible, for one to guard against children falling as it is to preclude their climbing. A device, structure or other object utilized to prevent or impede young people from climbing another device, structure or object has the same inherent hazard, that of the young person falling while climbing, p. 19.

In Schilz v. Walter Kassuba, Inc., 27 Wis.2d 390; 134 N.W.2d 453, the Court stated:

Indeed the challenge offered by the risk of falling is probably what provides the fun. There is no suggestion of any surprising danger, such as instability of the pipes or unusual slipperiness. Schilz, p. 455.

It appearing that the Claimant has failed to prove the contentions in his complaint and in particular that this was a defective structure or that there was negligence on the part of the Respondent, this claim is hereby denied.


author: Burks, J.

text:
    (No. 73-421
    Lexington House, Inc., Claimant, vs. State of Illinois, and Department of Public Aid, Respondent.

      Opinion filed November 29, 1976.

    Leiter, Newlin, Fraser, Parkhurst & McCord, by John C. Parkhurst, of Counsel, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Burks, J.

This claim arises under the provisions of Section 11-13 of the Illinois Public Aid (Ill.Rev.Stat. Ch. 23, §11-13), and is a claim for payment of vendor services.

This Court has jurisdiction under §8(a) of the Court of Claims Act to hear all claims against the State founded upon any law of the State of Illinois, or upon any regulation thereunder by an executive or administrative officer or agency, other than claims arising under the Workmen’s Compensation Act or the Workmen’s Occupational Diseases Act.

Lexington House, Inc., is a Delaware corporation, authorized to do business in Illinois, with its principal office in Peoria, Illinois. It operates a facility licensed by the Illinois Department of Public Health as a sheltered care home, located at 3111 W. Richards Boulevard, Peoria, Illinois, and known as Lexington House North, in which it cares for private patients and public patients, some of the latter being placed there by the Illinois Department of Mental Health and others by the Illinois Department of Public Aid.

Early in 1971, Claimant started a social rehabilitation program at Lexington House North which was reviewed by the Department of Mental Health and approved by that Department by memorandum dated February 18, 1971. The approval was effective as of March 1, 1971. The amount of the extra charge for this special service was $6.00 per month per person.

The Peoria office of the Department of Public Aid received a copy of the Department of Mental Health’s approval of the program, and honored Claimant’s billing for the additional service for the months of March and April, 1971.

Thereafter, the Supervisor of Caseworkers in the Peoria office of the Department of Public Aid, in a review of payments being made to vendors in the Peoria area by the Illinois Department of Public Aid, discovered that her departmental superiors in Springfield had not yet approved Lexington House North for a social rehabilitation program nor authorized the payment of the additional monthly fee.

She thereupon notified Claimant by letter dated June 11, 1971, that the Department of Public Aid would not pay the extra $6.00 fee for mental and social rehabilitation beginning with the month of May, 1971.

In accordance with the directions contained in the letter, Claimant omitted the $6.00 increment from its billings for Public Aid patients for the month of May, 1971, and all months thereafter while its employees were discussing the matter with the Springfield office of the Department of Public Aid. The Department of Mental Health at all times continued to pay the additional charge for its patients.

Finally, by memorandum dated October 18, 1972, the Springfield office of the Department of Public Aid notified the Peoria Regional office that Claimant’s social rehabilitation program had been approved retroactively to July 1, 1972.

Claimant seeks an award from this Court for the rehabilitation program services voluntarily furnished to Department of Public Aid patients during the period May 1, 1971, to July 1, 1972. At $6.00 per month per patient this charge totals $7,302.00. It should be borne in mind that Claimant furnished the additional services voluntarily with full knowledge that the Peoria office of the Department of Public Aid was refusing to approve payment for the same without approval from department officials in Springfield. The record is silent as to why Claimant did not discontinue the services to the Department of Public Aid patients. Perhaps it would have experienced practical difficulties in trying to eliminate selected patients from the program. In any event, for whatever reason, Claimant continued to furnish these additional services to Department of Public Aid patients for a period of 14 months even though the Peoria office of the Department of Public Aid expressly notified Claimant that it would not pay the additional charge in the absence of approval from Springfield.

It is Claimant’s contention that approval of the program by the Department of Mental Health was, in effect, binding on the Department of Public Aid. It is Claimant’s contention that once the Department of Mental Health approved the program, the Department of Public Aid no longer had the right to review the program with respect to its own patients, but was automatically bound to accept the program and pay the additional charge.

Claimant has produced no statute or regulation showing that the approval of Claimant’s social rehabilitation program by the Department of Mental Health was in any way legally binding on the Department of Public Aid. Common sense rejects such a conclusion. It is obvious that a department, acting alone, cannot obligate the budget of another department.

Additional light is shed on this matter by the procedure followed in 1970 when the Department of Public Health approved a so-called "activities” program for Lexington House North, also involving a charge of $6.00 per patient. The Department of Public Aid issued its separate approval of the program effective December 1, 1970. There was no contention that the Department of Public Health, by unilateral action, was able to obligate the budget of the Department of Public Aid.

This Court must reject Claimant’s contention that approval of Claimant’s social and mental rehabilitation program by the Department of Mental Health automatically bound the Department of Public Aid to participate in and pay for the program.

Claimant next argues that it is "justly entitled” to the payment of its claim. The thrust of its argument is that the Peoria Regional office of the Department of Public Aid acted "unjustly” in refusing to pay for the services without departmental approval, and that the Department acted "unjustly” in granting approval retroactive only to July 1, 1972, rather than to May 1, 1971. Claimant states that for this Court to reject its claim would be "inequitable and unconscionable.”

It is obvious that this Court is not a court in chancery, sometimes referred to as a court of "conscience.” This Court can only exercise the jurisdiction given to it by the legislature. The office of equity is to supply defects in the law. This Court has no such jurisdiction.

Claimant also argues that for this Court to deny its claim would result in "unjust enrichment” to the State. Here again the Court of Claims does not have the jurisdiction of courts of law to hear claims for restitution and unjust enrichment.

Finally, even if this Court had full legal and equitable jurisdiction, it would be proper to deny Claimant’s claim.

As stated in the article on Restitution and Unjust Enrichment, 46 Am.Jur. 100:

Nor can one be held liable for benefits upon him against his will and efforts to prevent them. As somewhat variantly stated by some authorities, a person who officiously confers a benefit on another is not entitled to restitution therefor.

The crux of the matter is that during the entire 14 month period for which Claimant seeks reimbursement for its additional services, it was not only at liberty to discontinue such services, but continued to render them in the face of express notification that it would not be paid for such services. Had Claimant discontinued its additional services until the matter was resolved, it would have suffered no loss.

This Court is not authorized to relieve Claimant from the consequences of its own actions under these circumstances.

This claim is hereby denied.


text:
    (No. 74-12
    Alberta Matthews and Robert Matthews, Claimants, vs. State of Illinois, and Illinois National Guard, Respondent.

      Opinion filed June 13, 1977.

    Rosenfeld, Hafron & Shapiro, Attorneys for Claimants.
    William J. Scott, Attorney General; Leonard Cahnmann, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimants, Alberta and Robert Matthews, bring this action for damages sustained as a result of an alleged vehicular collision between the Claimants’ vehicle and a vehicle belonging to the Illinois National Guard. Claimants allege that on July 23, 1971, at 10:30 p.m., there was an accident on King Drive and 55th Street in Chicago, Illinois.

Claimant, Alberta Matthews, testified that her vehicle was struck by an army truck that failed to stop at a stop sign causing the damage complained of.

Claimant further alleges that her medical bill was in the amount of $130.00, that she lost one week of work, and that considerable damage was done to the vehicle in which she and her husband were riding.

Her husband, Robert Matthews, has died since the accident occurred and was not present at the time of the hearing.

Respondent filed a Motion to Strike and Dismiss which was denied, and the matter was heard before one of the Commissioners of the Court of Claims.

Respondent raises the issue as to whether or not a driver of a National Guard truck is performing a State function since the military vehicle involved was assigned to an Illinois National Guard unit which was performing federally funded inactive duty training pursuant to 32 U.S.C. 502.

It is incumbent upon Claimant to prove that the driver of the National Guard truck was engaged in State business rather than acting under Federal orders before the State can be held liable.

The evidence is, to say the least, sketchy in regard to any involvement by the State of Illinois. The evidence in the record indicates that the Guard unit was preparing to go to Camp McCoy, Wisconsin, where they go for a period of two weeks training every year pursuant to orders of the federal government.

The Court of Claims, in the case of Doyle McRaven vs. State of Illinois, 28 Ill.Ct.Cl. 5, held that when the National Guard is engaged in a Federal mission the State is not responsible.

The evidence is clear that on the night in question the armory was open in preparation for the two weeks required drill at 6:00 a.m. the next morning, and that guard members were on duty that night. It is apparent that the National Guard was engaged in active duty training under 32 U.S.C. 502.

The Court concludes that the alleged tort feasor was not an agent of the State of Illinois at the time of the accident and therefore the claim against Respondent is denied.


text:
    (No. 74-25
    Allan C. Larson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 20, 1976.

    Nicholas T. Kitsos, by Richard Serber, of counsel, Attorneys for Claimant.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Burks, J.

This claim, sounding in tort, seeks compensation for damages to Claimant’s automobile from a collision with a median strip on a State highway. In prior proceedings in this cause, the Court entered an order dismissing that part of Claimant’s action that pertained to personal injuries. Therefore, the remaining issues considered here relate only to Claimant’s alleged property damage.

Testimony was heard from two witnesses, Mr. Allan C. Larson, the Claimant, and Mr. Joseph J. Kostur, Regional Safety Claims Administrator for the State of Illinois, Department of Transportation. The evidence also includes Claimant’s two exhibits and numerous exhibits of the Respondent, photographs of the median strip, Respondent’s pavement marking records, and sign shop work orders of the Department of Transportation. The parties stipulated that the scene of the alleged accident was upon a State highway.

The incident occurred oh April 18, 1972, at approximately 10:30 p.m., as the Claimant, Mr. Larson, was driving home from work in his 1968 Oldsmobile northbound on a 4-lane highway, Busse Road, just south of its intersection with Algonquin Road. The weather was clear, the road was dry, and it was dark. The nearest lights were 400 feet away from the scene of the accident. Mr. Larson testified that his car hit a median strip that he described as gray in color, ten inches high, two-and-one-half feet wide; and, that as a result of the collision his car slid across the top of the median and came to a stop. Claimant testified that the presence of the median was not signaled to him by warning signs, nor did he see any yellow stripe markings painted on the median. Claimant’s car was towed from the scene and subsequently sold for $300.00.

Mr. Kostur testified that the Department of Transportation records indicated that the medians on Busse Road in this area had been marked with yellow paint and reflective glass beads by September 30, 1971, seven months prior to Claimant’s accident. Mr. Kostur also stated that between Illinois routes 72 and 62 (Algonquin Road), there are a total of seven median islands on Busse, marked and painted the same as the median strip in question. Although Mr. Kostur testified that Respondent’s Exhibit 7 indicated that sign erection on the median was completed on June 18, 1971, he could not specify if any signs were later replaced or repaired. Claimant’s photo exhibits, taken a week after the incident, show KEEP RIGHT and black and white warning signs in place. Upon viewing Claimant’s Exhibit 1, Mr. Kostur testified that the paint was badly scraped and marred but, based on his experience, the paint used on the medians should last between a year and a year and a half.

In order for Claimant to recover the alleged property damage, he must prove by a preponderance of the evidence that he was free from contributory negligence; that the Respondent acted or failed to act in a manner amounting to negligence; and that the negligence of the Respondent was the proximate cause of said damage.

We find that the Claimant here has failed to prove by a preponderance of the evidence that he was free from contributory negligence. The photographs in evidence show that the median in question had sufficient paint marking to indicate its presence to a driver approaching it with due care and caution for his own safety. This conclusion is further warranted by the fact that a driver traveling north on Busse Road, as was Mr. Larson, would have passed similarly marked medians which would indicate the possibility of other such medians ahead.

Moreover, there is no evidence that the Respondent had any notice, actual or constructive, of a dangerous condition needing a remedy. In light of the fact that the medians in that area of Busse Road had been painted only seven months prior to the accident, Claimant has also failed to sustain his burden of proving negligence on the part of the Respondent.

Wherefore, the Court finds that this claim must be and is hereby denied.


text:
    (No. 74-50
    Stephen McLeod, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 12, 1976.

    Redman, Shear, O’Brien & Blood, by Michael J. O’Brien, of counsel, Attorney for Claimant.
    William J. Scott, Attorney General; George A. Mustis, Assistant Attorney General, for Respondent.
   Burks, J.

This claim for property loss and damages is brought pursuant to the provisions of the act relating to damages caused by escaped inmates of State controlled institutions. Ill.Rev.Stat., Ch. 23, §4041.

The filing of briefs having been waived, the facts in the record are summarized as follows:

On April 10-, 1973, Claimant owned a 1964 Malibu Chevrolet. On that date, Claimant’s wife, who was a part-time employee at the Montgomery Ward store located on the outskirts of St. Charles, drove the car to work and parked it in front of the store at approximately 5:00 p.m. According to the hearsay testimony of the Claimant, Claimant’s wife left the car unlocked, but took the keys with her into the store. When she quit work at 9:00 p.m., the car was no longer in the parking lot.

About a week later Claimant was notified by police that the car had been found in Chicago, and that he could pick it up at a vehicle pound on the south side of Chicago.

Claimant had purchased the car in March, 1973, for $375. During the time Claimant’s car was missing it had been damaged, and the repair estimates exceeded the sum of $375. Various items of personal property in the car at the time Claimant’s wife parked it in the store parking lot were not in the car when Claimant picked it up at the pound.

The record contains a statement of one Jonathan Hill, an inmate of the State Training School for Boys at St. Charles. He testified that, in the afternoon of the day in question, he hid in the ceiling of the gymnasium. From that vantage point he watched many guards looking for him until approximately 6:00 p.m. He then escaped from the institution by climbing over the barbed wire fence surrounding the grounds. He travelled through woods and farmland until he reached the outskirts of St. Charles at about 7:00 p.m. There the inmate Hill found Claimant’s car in the Montgomery Ward parking lot. According to his statement, the keys were in the ignition. He drove the car to Chicago where he abandoned it. He stated further that he had no knowledge of the personal property in the car.

Turning now to the issues, we find that a prima facie case is made as to the State’s negligence in that inmate Hill was able to climb over the institution fence without being seen.

On the question as to whether the Claimant was free from contributory negligence, we take notice of Claimant’s hearsay testimony that his wife did not leave the keys in the car. Inmate Hill states categorically that the keys were in the car, and that he did not know how to start a car without its keys. Under the circumstances, this issue is irrelevant. The Claimant, as bailor of the car, is not bound by the negligence of his wife, the bailee, in leaving the keys in the car, if in fact she did so leave them. I.L.P. Bailments §21. Negligence of the bailee is not attributable to the bailor.

The result would be different if Claimant had personally left the keys in the car. He would be bound by his own act of contributory negligence. Under the facts as we see them, the Respondent is liable for Claimant’s loss.

Claimant asks $816.47 in damages for repairs to the car in an estimated amount of $508.95, plus $307.52 for the stolen items of personal property. Claimant testified, however, that he paid only $375 for the car, and that some of the items stolen were not brand new. In the opinion of the court, $600.00 would fairly compensate Claimant for his loss.

Claimant is hereby awarded damages for property loss in the sum of Six Hundred Dollars ($600.00).


text:
    (No. 74-69
    Charles F. Schmidt, Administrator of the Estate of Helen H. Bowman, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 19, 1976.

    Poulakidas, Poulakidas & Wood, Alexander Poulakidas, Attorney for Claimant.
    William J. Scott, Attorney General; William Karaganis, Assistant Attorney General, for Respondent.
   Perlin, C. J.

This is an action by Charles F. Schmidt, the Administrator of the Estate of Helen H. Bowman, deceased, to recover the sum of $2081.33, which was expended for the burial of Helen H. Bowman.

It appears from the stipulation and exhibits upon which this case was heard that on August 25, 1971, Mrs. Helen H. Bowman was a patient at the Elgin State Hospital, an institution maintained and controlled by Respondent. On that date Dr. Ricardo Munoz, who was employed as a staff physician at the hospital under a limited license, administered a drug known as "Indiral” to Mrs. Bowman, which drug caused her death.

Dr. Munoz was subsequently indicted by the Kane County Grand Jury for the offenses of involuntary manslaughter and reckless conduct arising out of the death of Mrs. Bowman. A jury found him guilty of both charges.

It appears from the stipulation and exhibits that Dr. Munoz was not a qualified physician, that the State was negligent in employing him as a staff physician, and that Dr. Munoz was negligent in his treatment of the deceased.

Claimant is therefore awarded the sum of Two Thousand Eighty-One and 33/100 Dollars ($2081.33).


text:
    (No. 74-152
    John J. Nimrod, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 15, 1976.

      John J. Nimrod, Pro se.
    William J. Scott, Attorney General; William Karaganis, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant filed a claim in the amount of $847.48 for travel expenses incurred while an employee of the Illinois Industrial Commission.

The appropriation from which the claim should have, been paid has lapsed, therefore the matter is before this Court.

The record discloses that the Claimant was Assistant to the Chairman of the Industrial Commission and was also Project Director for the Occupational Safety and Health Program of the Industrial Commission.

The record‘also discloses that part of the expenses incurred was for attending the Annual Convention of International Association of Industrial Accident Boards and Commissions at Toronto, Canada, and at Madison, Wisconsin. It appears that at the Toronto convention, he was accompanied by the then Chairman of the Industrial Commission, and the record discloses that he went to both conventions at the direction of the Chairman.

Other expenses are for attending a Managers and Planners Workshop at Auburn University at Auburn, Alabama, attending a seminar on Occupational Health and Safety Plan and Laws in Illinois, and for attending other various health and safety programs in the State.

Among the exhibits is a letter from Alexander P. White, who was Chairman of the Industrial Commission at the time the expenses were incurred, to the effect that he had examined the vouchers being submitted by Claimant, and he certified that these vouchers were correct in the amount expended by Claimant. He further stated that such expenditures were authorized by him as Chairman of the Industrial Commission at the time such expenditures were made.

The record discloses that after Mr. White left as Chairman of the Industrial Commission the new Chairman refused to approve the expenditures and informed the Claimant that he would have to present his claim to the Court of Claims.

It appears to the Court that the expenses were incurred in connection with Claimant’s duties with the Industrial Commission of the State of Illinois, that the vouchers were proper and correct, and that these expenses were properly incurred.

An award is hereby made in the amount of Eight Hundred Forty-Seven and 48/100 Dollars ($847.48).


text:
    (No. 74-315
    John V. Thielin, Et Al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 19, 1976.

    Robert J. Gorman, Attorney for Claimants.
    John T. Wardrope, Special Assistant Attorney General, for Respondent.
   Perlin, C. J.

This action arises out of a motor vehicle accident which occurred on July 5, 1973, at the intersection of 35th Street and Wentworth Avenue in Chicago, Illinois. It is alleged by Claimants that a disabled State of Illinois emergency patrol truck, being pushed by another State emergency patrol truck, went through a red light at the intersection. The patrol truck struck a car being driven by Claimant, John Thielen, in which Judy Thielen, Nellmary Grady and Michael Daley were passengers. Nellmary Grady and John Thielen suffered personal injuries in the accident and Judy Thielen, the 13 year old daughter of John Thielen, suffered injuries which resulted in her death. Michael Daley has not made a claim for injuries.

The accident occurred at about 9:45 p.m. Claimants were returning from a trip to the Indiana Dunes and had just exited the Dan Ryan expressway at 35th Street. The weather was dry and visibility was good. John Thielen and Nellmary Grady were seated in the front of the car and Judy Thielen and Michael Daley were in the rear. All were wearing seatbelts.

Nellmary Grady and John Thielen both testified that their car was westbound on 35th Street and came to a stop at a red traffic signal at Wentworth Avenue. These were two lanes for westbound traffic at 35th Street at this point, and an additional lane for traffic turning left onto Wentworth. The Thielen car was in the right-hand curb lane as it waited for the signal to change, and there was another westbound car in the lane to their left.

As Claimants waited for the light to change a disabled State of Illinois emergency tow truck being driven by Edward W. Pietrzyk was being pushed southbound on Wentworth Avenue by another State of Illinois emergency patrol truck being driven by Walter Talkowski.

Nellmary Grady said that she first noticed the trucks when they were about one-half block from the intersection. She said she next noticed them when the Thielen car was in the middle of the intersection, and she yelled, "The truck, my God, there’s a truck.” She said the truck struck the car in which she was riding in the middle of the intersection and spun it into a traffic signal in the center of 35th Street and Wentworth Avenue.

Ms. Grady said that after the accident the driver of the truck that struck them said that he was sorry, and that "he didn’t have any brakes.”

John Thielen said that he had noticed the trucks southbound on Wentworth as he was stopped at the red light. He said that they appeared to be driving fast. He next observed them when they were about 300 to 400 feet from the intersection. He said he next saw the trucks when they were almost upon his car in the intersection after Nellmary Grady had shouted a warning.

John Thielen testified that the driver of the truck which struck the car had a conversation with him at the accident site in which he said, "My God, I’m sorry, I didn’t have any brakes.” It appears that in his deposition, he had testified that he had not had a conversation with the driver of the truck at the accident scene.

Artis Haywood, a Chicago police officer who was present at the accident site shortly after the occurrence, testified for Claimants. He said that he and Officer Sam Cottrano investigated the incident, arriving at the scene at about 9:55 p.m. Over defense objection he testified to a conversation at the scene with Mr. Pietrzyk, the driver of the truck which struck Claimant’s car. He said that Pietrzyk told him that his truck had stalled and was being pushed from behind by another State truck; that when he came to the traffic signal at 35th and Wentworth the light changed to red and he was unable to stop because his motor was not running and he did not have any brakes.

Officer Haywood also testified, over defense objection, to a second conversation with Mr. Pietrzyk at the hospital about 45 minutes to one hour later in which Pietrzyk again admitted running the red light because his vehicle was without brakes.

John Thielen said that his daughter, Judy, who had been riding in the rear of the car, was found in the trunk after the accident. She initially yelled out that she was unhurt, but seconds later told her father that she was injured. Judy Thielen died about one hour after the accident, after she had been taken to a hospital. Prior to the accident she had been in excellent health and had never been hospitalized.

At the time of her death Judy Thielen was 13 years old and had a life expectancy of 65.1 years. She was an above average student who engaged in normal school and community activities. She was one of four children both to John Thielen and his wife Mary who had died in January, 1973. Mr. Thielen said that Judy and he had had a close relationship, and that she had performed many household duties prior to her death.

A hospital bill in the amount of $156.50 for treatment rendered to Judy Thielen, and bills for burial expenses totalling $1,846.36, were introduced into evidence. The bills had been paid by John Thielen.

John Thielen was hospitalized following the accident with injuries to his head and lower body. His hospital and doctor bills totalled $1,728.80, and he testified to having experienced severe headaches and blackouts after the accident. He claims approximately $4,300 in lost wages.

Nellmary Grady incurred medical expenses of $451 as a result of the accident and testified that she underwent therapy treatments for approximately 5 months after the accident for headaches, fainting spells and neck pains. She claims a wage loss of approximately $2,200.

Respondent did not call any witnesses in defense of this claim. Over the Claimants’ objections, Respondent introduced into evidence two reports of the Department of Transportation of the State of Illinois, indicating that that traffic light was amber when Mr. Pietrzyk entered the intersection. Also introduced into evidence was a report of a test made on Pietrzyk’s truck five days after the accident. The report states that at 20 miles per hour, without the motor operating, the truck stopped in 12 feet the first time, 21 feet the second time, and 22 feet on the third test.

In order to recover on their claims, Claimants bear the burden of proving by a preponderance of the evidence that the State’s employees were negligent in operating the disabled emergency tow truck which struck the Thielen vehicle; that such negligence was a proximate cause of the death of Judy Thielen and the injuries to John Thielen and Nellmary Grady; and that Claimants were free from contributory negligence. Foreman v. State, 26 Ill.Ct.Cl. 299; Schunck v. State, 25 Ill.Ct.Cl. 209.

We think that the negligence of Mr. Pietrzyk and Mr. Talkowski, the drivers of the State emergency vehicles involved in this occurrence, has been established. Both Nellmary Grady and John Thielen testified that immediately after the impact Pietrzyk came to their car and said, "My God, I am very sorry, I didn’t have any brakes.” Officer Haywood testified that Pietrzyk told him at the scene that the motor on his truck was dead, that he did not have any brakes, and that the light was red when he went through the intersection.

These admissions of Mr. Pietrzyk were properly admitted into evidence. Perkins v. Chicago Transit Authority, 60 Ill.App.2d 431, 208 N.E.2d 867. They establish that the State vehicle was being operated with insufficient brakes in violation of Ill.Rev.Stat., Ch. 95-1/2, 12-118(a), which requires that all motor vehicles have brakes adequate to stop such vehicles, and that Pietrzyk’s truck did run a red light.

Respondent introduced no testimony to rebut the evidence offered by Claimants to establish these propositions and we therefore find that Claimants have established the negligence of Respondent by a preponderance of the evidence.

Respondent argues however that Claimants are not free of contributory negligence. Specifically, Respondent asserts that John Thielen was contributorily negligent in proceeding into the intersection when he had observed Respondent’s trucks proceeding southbound on Wentworth Avenue, and that Nellmary Grady was contributorily negligent in failing to keep a proper lookout. However, we do not believe that either John Thielen or Nellmary Grady acted in other than a reasonable manner. Both were reasonably entitled to assume that Respondent’s truck was being operated with proper brakes, and that it would stop at the intersection. Claimants have established their freedom from contributory negligence by a preponderance of the evidence.

We further find that the negligence of the State was a proximate cause of the death of Judy Thielen, and the injuries suffered by John Thielen and Nellmary Grady.

With respect to the amount of damages to be awarded for the death of Judy Thielen, it is well settled that where a deceased leaves a lineal heir, there is a presumption of substantial pecuniary loss. Baird v. Chicago, Burlington & Quincy Ry., 334 N.E.2d 920; Hall v. Gillins, 13 Ill.2d 26, 147 N.E.2d 352. It is therefore ordered that John V. Thielen, Administrator of the Estate of Judy Thielen, Deceased, be and hereby is awarded the sum of Twenty Thousand Dollars ($20,000.00).

It is further ordered that John V. Thielen be, and hereby is, awarded the sum of Seven Thousand Five Hundred Dollars ($7,500).

It is further ordered that Nellmary Grady be and hereby is, awarded the sum of Five Thousand Dollars ($5,000).

      . Respondent makes a preliminary claim that the notice of intent to sue filed on behalf of the Estate of Judy Thielen in accordance with Section 22-1 of the Court of Claims Act, Ill.Rev.Stat., Ch. 37, §439.22-1, was invalid because it did not state the name and adddress of her attending physician. However, the notice does plainly state that there was no attending physician, as Judy Thielen was pronounced dead at the hospital to which she was taken. Claimant has therefore complied with the requirements of Section 22-1 of the Court of Claims Act.


text:
    (No. 74-345
    William H. F. Branding, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed June 9, 1977.

    Dailey & Walker, by Maurice Dailey, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Spivack, J.

Claimant seeks to recover from the State the value of a portion of his soybean crop which was destroyed by flooding in the years 1973 and 1974, the flooding having been caused by the State’s negligent construction of a highway which bisects Claimant’s land.

A hearing was conducted by Commissioner Godfrey who heard the testimony of the various witnesses; thereafter, Claimant filed his brief and argument; Respondent did not file a reply thereto, nor a brief upon the applicable law. In due course, Commissioner Godfrey filed his report which is, together with the transcript and pleadings, now before the Court. The material facts determined by the Commissioner are as follows:

Claimant owned a farm located in Madison County, Illinois. Respondent, sometime prior to 1973, obtained a parcel of land from Claimant which bisected said farm. In the course of construction of a highway on said acquired land, Respondent caused to be installed a culvert under the highway in the line of natural water flow. Claimant testified that he was 84 years old and had owned the property for 61 years. During all of these years, he once lost one-fourth of an acre on account of water damage. The water always drained to the southeast. In 1973, after two heavy rains, the east side of the culvert was dry, while there were 11-3/4 inches of water in the pipe on the west side, and the soybeans were half under water. Ralph Beckman who had farmed the land for 15 years also testified that the natural flow of water was from the northwest to the southeast. Further, that during the time he farmed the land, he had lost no more than an acre or so of land due to water damage. He stated that after the culvert was installed, the water no longer flowed in the same direction because the culvert was higher on the east side than on the west side.

On the question of damages, Mr. Beckman testified that the reasonable value of the crop destroyed in 1973 was $3,545.21, and in 1974 was $1,633.00. No testimony was introduced by Respondent substantially disputing that the crops had indeed been destroyed by water, nor the market value thereof.

There seems to be no question about the statutory and case law applicable to the facts at bar. Ill.Rev.Stat., Ch. 42, § 12-4, provides, inter alia:

Whenever a natural drain ... crosses a public highway ... the highway authority ... shall construct and thereafter keep in repair and maintain a bridge or culvert of sufficient length, depth, height above the bed of the drain or ditch, and capacity to serve the needs of the public with respect to the drainage of the lands within the natural watershed of such drain, not only as such needs exist at the time of construction, but for all future time.

This Court has also long held that one who negligently alters the natural flow of water on the property of an adjacent landowner, thereby causing damage, is liable to such abutting landowner. Emerson v. State, Ill.Ct.Cl. 5877; Kroencke v. State, Ill.Ct.Cl. 5439.

It is the finding of this Court that Claimant has proved by a preponderance of the evidence that the State’s construction of the highway bisecting Claimaint’s land was performed in a negligent manner proximately causing the alteration of the natural flow of rainwater which in turn was the direct cause of the flooding of Claimant’s land and destruction of his crops.

Accordingly, Claimant, William H. F. Branding, is hereby awarded the sum of Five Thousand One Hundred Seventy-Eight and 21/100 Dollars ($5,178.21).


text:
    (No. 73-347
    Richard Stevens, Adm’r. of the Estate of Clyde K. Stevens, Deceased, Claimant, vs. State of Illinois, and Elgin State Hospital, a State Agency, Respondent.

      Opinion filed July 8, 1976.

    Juergensmeyer & Zimmerman, Attorneys for Claimant.
    William J. Scott, Attorney General; William J. Karaganis, Assistant Attorney General, for Respondent.
   Holderman, J.

This is an action brought by Richard Stevens, Administrator of the Estate of Clyde K. Stevens, deceased, for the alleged wrongful death of Claimant’s decedent. Claimant’s theory of the case is that on December 26, 1972, the deceased was in need of medical attention; that he was taken to Elgin State Hospital, Elgin, Illinois, for medical attention; that the hospital negligently failed to give decedent the necessary medical attention; and that as a direct and proximate result thereof, he died the following day.

On December 26, 1972, Clyde Stevens was an unemployed 60 year old man, married, but separated from his wife, and the father of two adult children not dependent on him for support.

From on or about December 2, 1972, at his daughter’s wedding, until sometime on December 26, 1972, Clyde Stevens had apparently been drinking heavily and continuously. It is undisputed that he was an alcoholic.

The deceased, in December of 1972, was living at the Arlington Hotel, Aurora, Illinois. On December 26, at about 3:30 p.m., he called on Walter Dryden, the hotel janitor, to his room and told him that he was sick and wanted to go to the Elgin State Hospital.

The record discloses that on several previous occasions, after severe drinking bouts, Stevens had gone to the Elgin State Hospital for "drying out.” Dryden called the Wayside Cross Mission and asked the Mission to take Stevens and one Glenn Brazel, another resident of the Arlington Hotel, to the State Hospital at Elgin. Brazel later changed his mind and decided to go to a private hospital because he had Medicare, but Dryden testified that Stevens wanted to go to Elgin.

It appears that at the time Stevens was shaky, incoherent, and, in the opinion of the witness, suffering from delirium tremens.

Mr. Ralph Brooker, Director of the Men’s Department at the Wayside Cross Mission, testified that he and two other men from the Mission went to the hotel. He testitified that Stevens was not drunk but that he "was wild eyed and he wasn’t really sure where he was at or where he was going.” This witness further testified that he was out of touch with reality. Brooker then called the Elgin State Hospital and told them he was sending two fellows over.

Marion Sybert, a truck driver for the Mission, testified that he went with Brooker to the hotel and that Stevens was pale and weak. He further testified that he could walk but was weak and trembling.

Sybert and one Dick Wilson drove Stevens to the Elgin State Hospital in a station wagon. When Stevens got out of the station wagon, Sybert noticed blood and feces where Stevens had been sitting. Sybert left Stevens at the admissions office and returned to Aurora.

Barbara Gavin, an intake worker in central admissions at the hospital, testified that she was on duty when Clyde Stevens was brought in for admission. She testified that he came "in under his own power.” She further stated that because he had been brought in by the Mission, she figured his problem was alcohol. There was no doctor on duty at the intake office, so she drove him to the' emergency room at the institution’s medical-surgical building where he was seen by Arturo Rios, M.D., Medical Director of the Elgin State Hospital.

Dr. Rios took Stevens’ blood pressure, listened to his heart, and wrote out a prescription for Librium, which Gavin took to the pharmacy to get filled. She then drove him back to central admissions where he was given bus money to go back to Aurora because he did not want to be admitted.

This witness testified that Stevens’ arm was in a sling because he had a broken arm, and that he told her that he had told Dr. Rios he had an appointment with his own doctor.

She further testified he did not appear to be ill to her.

Dr. Rios testified that witness Gavin told him Mr. Stevens refused to be admitted, but she thought he should be examined.

Dr. Rios checked his eyes, pupils, mouth, lungs, blood pressure, respiration, and questioned him regarding the cast on his arm. He found a normal throat, no dryness, chest normal, blood pressure 140/80, and pulse regular.

He further testified that Stevens said, "I don’t know why I am here, I don’t feel like I belong here.” He asked Stevens if he wanted to undergo further tests to have a complete physical examination, and Stevens told him, "I don’t want to be hospitalized.”

Dr. Rios testified that the main purpose of the examination given Stevens was to make sure he wasn’t intoxicated or in impending delirium tremens. The doctor further testified that it would have been possible for the deceased to have had pneumonia at the time he examined him, but that it was not clinically observable. He further testified that, in his opinion, the man was rational and free to choose what he wanted to do.

The deceased thereupon left the hospital and returned to Aurora by bus. Upon returning to the Arlington Hotel, he told witness Dryden that the hospital had kicked him out.

Witness Brooker testified that shortly before 5:00 p.m., an unidentified female employee from general admissions at Elgin called and wondered why he had sent Stevens to Elgin. She stated he appeared to be rational and motivated, and they didn’t see any reason for admitting him. Brooker told the individual that Stevens had been intoxicated for three weeks and should be admitted.

On December 27, 1972, Dryden testified that he found Stevens sitting on an interior, second floor fire escape going up to the third floor, and that his pants were down about his knees. He stated he had messed all over himself with blood and everything, and that he knew he was in bad shape so he called the Fire Department. The Aurora Fire Department took Stevens to Copley Hospital in Aurora where he died within a few hours of being admitted.

Dr. Charles A. O’Connor, an Aurora physician and surgeon, testified that he first examined Clyde Stevens on December 27, 1972, in the intermediate care area at Copley Memorial Hospital. He had been seen by a nurse in the emergency room and had been x-rayed.

Dr. O’Connor testified that he found an extremely ill white male who was in respiratory distress, his color was blue, and he had a bluish tint to his lips and fingernails. He also testified he had a fractured arm which was in a cast.

The doctor further testified that Stevens had extreme rales and rhonchi throughout both lung fields, indicating fluid in the lung, his pulse rate was 132, his respirator count was 44 (normal for a 60 year old white man is about 14 to 20) indicating respiratory distress, he was dehydrated, and was somewhat incoherent. The x-rays showed peripheral left upper lobe pneumonia which Dr. O’Connor classified as a very early lobar pneumonia and stated that it was the cause of the pulmonary edema.

The patient was given antibiotics intravenously, oxygen nasally, a diuretic, intermittent positive pressure, a sedative because he was restless, codeine for pain, and digitalis. He died at the end of two and one-half hours.

Dr. O’Connor testified that, although he found the patient incoherent, talking out of his head, and in acute respiratory distress, he did not believe he was on the brink of dying at the time. The doctor was unable to state with a reasonable degree of medical certainty how long the condition of pneumonia had existed, but he testified that the condition of pulmonary edema could not have existed for 24 hours before he saw him.

The doctor testified that the cause of death was pulmonary edema, a complication. of pneumonia; that the pulmonary edema could have set in within the preceding hour or two; that it could have been the result of heart failure; and that the patient could have died from gram negative septic shock initiated within the previous hour. He further testified that the patient could have had some of his symptoms 24 hours prior to his seeing him, but it was possible that six hours prior to his death he had none of them.

Claimant’s contention is that the State was negligent in turning the deceased away from the Elgin State Hospital and not giving him proper medical care at that time.

The following issues arise:

1. Is the State of Illinois under a duty to render emergency medical assistance to persons brought to State hospitals for such assistance?

In recent years it has become established law that private hospitals holding themselves out to render emergency aid can be held liable for the manner in which they render, fail to render, or refuse to render such aid to persons presenting themselves to the hospital for emergency attention.

The State of Illinois, having waived sovereign immunity, is bound by the same general principles of tort law in determining such liability as are private hospitals.

This matter is discussed briefly in 40 Am.Jur.2d Hospitals and Asylums §16, 20, and is very well briefed in 72 A.L.R.2d. 391, and 35 A.L.R.3d. 834. In 35 A.L.RSd. 847, 848, two cases involving failure to admit patients with pneumonia are discussed.

Inasmuch as the State of Illinois maintains, on the grounds of Elgin State Hospital, a hospital for the medical needs of its inmates, and also maintains an emergency room as part of the medical hospital, it can be stated as a general proposition that the State of Illinois is under a duty to render emergency medical attention if not to the general public at least to inmates, employees, and persons brought to the institution for voluntary or involuntary admission, and can be held liable for its negligence in performing or refusing to perform the same.

2. Was the State negligent in its medical treatment of Claimant’s deceased?

As stated in 40 Am.Jur.2d Hospitals and Asylums, §20 at 865.

Where public institutions may be held liable for negligence, they are, in accordance with settled legal principles, held only to a duty of taking precautions against risks that may reasonably be perceived.

Contrary to Claimant’s contentions, the weight of the evidence in this cause is that when Clyde Stevens was brought to Elgin State Hospital he did not appeer to be in need of immediate medical attention. His blood pressure and heart rate were within normal limits, and he was having no trouble with his breathing. If he had pneumonia at this time, it was not clinically observable, and he rejected the offer made by the hospital to admit him and give him further tests. It is clear from Dr. O’Connor’s testimony that the deceased could not already have been suffering from pulmonary edema at the time he was brought to Elgin State Hospital because if he had been, he would not have lived until the following day. Three hours before his death, on the following day, x-rays showed only an early lobar pneumonia affecting a small portion of one lung. Although he was critically ill when Dr. O’Connor examined him, Dr. O’Connor did not feel even then that he was on the immediate brink of dying. Further Dr. O’Connor testified that some of Stevens’ symptoms could have developed as recently as six hours before he saw him.

It has long been the rule of the State of Illinois that the burden is on the Claimant to prove his cause by a preponderance of the evidence. It is also the rule of the State of Illinois that it must be proven that the negligence complained of was the proximate cause of the damage, which in this case is the death of the deceased.

It is the opinion of this Court that the Claimant has failed in meeting the proof required.

Award denied.


text:
    (No. 74-380 and 74-381
    Phillip Vaughn, Administrator, Et Al., Claimant, vs. State of Illinois, and Department of Transportation, Respondent.

      Opinion filed May 31, 1977.

    Winstein, Kavensky, Wallace & Doughty, Attorneys for Claimant.
    William J. Scott, Attorney General; Howard Feldman, Assistant Attorney General, for Respondent.
   Holderman, J.

This claim arises out of an unfortunate incident which occurred on June 30, 1973. On that date, Philip Vaughn, his wife, Marilyn, and his son, Robert, were in a boat on the Rock River.

Philip Vaughn had purchased the boat and outboard motor a few days earlier and had never had it in the water until the day in question.

Mr. Vaughn was raised in Silvis, Illinois, and knew there was a dam by the name of Sears Dam but did not know exactly where it was.

He had placed the boat in the water several miles upstream from the dam. He testified he had never looked at the map or chart of the river and was not too well acquainted with this particular area although he had fished it at various times.

After putting the boat in the river, they started downstream, and along the way he made several adjustments to the propeller to try and get the pitch he desired. When they were a short distance above the dam, he noticed that things looked different and something was wrong.

At about this time, the boat’s motor stopped and he was unable to get it started again. He dropped anchor but the current was so swift, it would not hold the boat. The boat began drifting toward the dam and he tried to paddle it toward the shore without any success.

He then jumped overboard and tried to swim and push the boat toward the shore but was unable to do so because of the swift current. He testified the river was higher than usual, and this probably accelerated the flow of the water. He then got back into the boat and when he saw they were getting close to the dam, they all jumped into the water. He held onto his wife and child, both of whom wore life preservers but could not swim, and attempted to get them to shore which was approximately 40 feet away; but because of the current, they were swept over the dam. His wife and child were separated from him and, unfortunately, they both drowned. He was pulled from the river, and it was some time before the bodies of his wife and child were found.

Claimant at this time was living in Orion, Illinois, which is not too far from the place where the accident occurred.

Claimant testified that at no place between the place where he put the boat in the river and the dam were there any buoys or signs of any kind of warning that there was a dam in the river. There were no cables, ropes or anything of that nature stretched across the river upstream from the dam.

Claimant charges the State with the following acts of negligence:

(a) Failed to warn or advise boaters of the dangers of said dam or spillway by placing signs, markers, or buoys upstream from said dam or spillway.
(b) Failed to provide safety devices at or about said dam or spillway in order to protect boaters and others from being swept over said dam or spillway.
(c) Failed to provide rescue equipment at or about said dam or spillway for the use of boaters or others who have been swept over said dam or spillway.

The Court of Claims Act, §8(d), Ill.Rev.Stat., Ch. 37, §439.8(d), provides that this Court shall have jurisdiction to hear and determine matters sounding in tort as follows:

(d) All claims against the State for damages in cases sounding in tort if a like cause of action would lie against a private person or corporation in a civil suit. . ..

This language was incorporated into the Act by P.A.77-2089, Sec. 1, effective October 2, 1972, and imposes a somewhat different test for the State’s liability in tort from the statutory language in force prior to October 1, 1972, which reads as follows:

(d) All claims against the State for damages in cases sounding in tort, in respect of which claims the claimants would be entitled to redress against the State of Illinois, in a civil action, if the State were suable. . . .

If under the current enactment the State can be sued in tort, if a like cause of action would lie against a private person or corporation in a civil suit, then it should have available to it the same defenses that would be available to a private person or corporation.

For that reason, the Recreational Use of Land and Water Areas Act, Ill.Rev.Stat., Ch. 70, §31-37, enacted in 1965, disposes of the issues in this case. Below are pertinent sections of the statute:

33. Duty of care or warning of dangerous condition. Except as specifically recognized or provided in Section 6 of this Act, an owner of land owes no duty of care to keep the premises safe for entry or use by any person for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.
34. Effect of invitation or permission. Except as specifically recognized by or provided in Section 6 of this Act, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:
(a) Extend any assurance that the premises are safe for any purpose.
(b) Confer upon such person the legal status of an invitee or licensee to whom a duty of due care is owed.
(c) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such person or any other person who enters upon the land.
36. Willful or malicious acts — Injury suffered by persons paying admission. Nothing in this Act limits in any way liability which otherwise exists:
(a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.
(b) for injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof...

There can be no recovery in tort unless there is a duty on the part of the Respondent to exercise care. Section 33 of the above cited statute expressly absolves an owner of land of any duty of care towards a person using the land for recreational purposes, except the duty to willfully or maliciously fail to guard against or warn against a dangerous condition. There is a further qualification that liability is not limited where the owner charges for the recreational use. Here there is no allegation or proof of any willful or malicious misconduct on the part of the State. Nor is there any allegation or proof of charge for boating on the river.

Section 32 of the statute defines land to mean water or watercourses, and defines recreational purposes to include boating.

If at the time of the occurrence in this case the Sears Water Power Company had still owned the dam, it would appear that no action would lie against the company. Since no action would lie against a private person or corporation, no action will lie against the State.

This is a case of first impression in this Court. Further to date the Recreational Use of Land and Waters Act has not been passed upon by the Illinois Supreme Court or any of the Appellate Courts of Illinois.

The language of the statute appears clear. When read with the language of Section 8(d) of the Court of Claims Act, it is manifest that no cause of action can lie against the State of Illinois for Claimant’s injuries.

For the above reason, this claim is denied.


text:
    (No. 74-490
    Rose Pavlik, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 8, 1976.

    Wayne E. Peters, Attorney for Claimant.

      William J. Scott, Attorney General; William Karaganis, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant, Rose Pavlik, seeks recovery in the amount of $17,112.00.

On October 4, 1973, Claimant, a meter maid employed by the City of Chicago, sustained an injury at 2653 West Madison Avenue, Chicago, Illinois, at a place commonly known as "The Madison Street Armory.”

Claimant was employed as a meter maid for the Bureau of Parking, City of Chicago. She had been assigned to take training at the premises when the accident occurred. On the day in question, the Claimant, accompanied by two other meter maids, had entered the door of the armory, walked across a mat approximately 10 feet long, and then stepped onto the terrazzo tile floor where she fell.

The evidence shows that on the day in question there was a drizzly rain falling and that it had been raining for some time.

After Claimant stepped off the mat and onto the terrazzo floor, she fell and dislocated her right shoulder. Claimant testified that the floor was highly polished and very slippery.

Claimant further testified that she was off work for two months and then left her job.

Claimant’s special damages are as follows:

Northwest Memorial Hospital $114.80
Dr. James Milgram 40.00
Dr. Leonard Smith 105.00
Southwest Radiological Laboratory 26.00
Dr. John Walker 39.00
Herron Medical Center 159.00
Holy Cross Hospital 52.00
Total Special Damages $535.80

Claimant testified that she received $105.00 per week in Workmen’s Compensation and a further lump sum settlement of $3,000.00 for a 15% loss of use of her arm. Her medical bills and the above payments were paid by the United States Fidelity & Guaranty Company, the compensation carrier, who claims a subrogation lien for the payments made on Claimant’s Workmen’s Compensation claim.

The two companions who accompanied Claimant testified that the floor was highly polished and slippery and, in fact, one of them slipped but did not fall. This occurred when she stepped off the rubber mat and onto the terrazzo floor.

The custodian of the armory in question was called as a witness for the Respondent. He stated that on the day and time in question he was called to assist Claimant while she was on the floor. He testified that the terrazzo floor is kept waxed twice a year and buffed about every day, but he did not recall when the floor was waxed prior to Claimant’s fall. He further testified that the floor was highly polished. He also stated that there were no previous falls or injuries on said floor.

Before the Claimant can recover she must show that she was free from contributory negligence, and that negligence on the part of the State was the proximate cause of the injuries.

This Court, in the case of Ida Rosenthal vs. The Board of Trustees of the University of Illinois, 29 Ill.Ct.Cl. 251, passed upon a similar situation. In citing the case of Dixon vs. Hart, 344 Ill.App. 132, 101 N.E.2d 282 at 284, the Court said:

We have concluded for an examination of the law in Illinois as well as in other jurisdictions that as a general proposition the mere treating of a floor with a substance that gives it a polished surface is not negligence per se . .. The cases establish that some positive act of negligence must be shown before recovery can be had, such as: that an excessive quantity of polish must be used, that it was applied unevenly, that the floor had been freshly polished, and no warning given, that one section of the floor was waxed or oiled while the remainder was untreated, or that a floor was polished where people would step on it unexpectedly. .. .

There is no evidence that Claimant was guilty of contributory negligence. She was walking in an area close to the entrance which was constantly used for foot traffic, and she apparently did nothing to contribute towards the accident.

The State had knowledge that this was a highly polished floor. It should have had knowledge that it was raining on the day in question, and that wetness on the floor could cause it to become hazardous to users of the entranceway.

Claimant has already been reimbursed for her medical expenses, and she received the sum of $105.00 per week in Workmen’s Compensation. She also received a lump sum settlement for a 15% loss of use of her arm. The United States Fidelity & Guaranty Company, the compensation carrier who made the above payments, is entitled to its subrogation lien for all payments made on behalf of Claimant.

It appears to the Court that the Respondent was guilty of negligence in allowing the terrazzo floor to be in a slippery and wet condition, and this negligence directly caused Claimant’s injury.

Claimant is hereby awarded the sum of Five Thousand Dollars ($5,000.00), which amount shall be subject to the subrogation rights of the United States Fidelity & Guaranty Company.


author: Polos, C. J.

text:
    (No. 74-514
    Frank Wing, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 16, 1977.

    Hollowbow, Taslitz, Grombacker and Hollow-bow, by William L. Smith, Jr., Attorney for Claimant.
    William J. Scott, Attorney General; Richard J. Grossman, Assistant Attorney General, for Respondent.
   Polos, C. J.

This is an action to recover for personal injury and property damage sustained by Claimant, Frank Wing, on April 21, 1973, when the motorcycle he was riding struck a large hole in the pavement of the Stevenson Expressway in Chicago, Illinois. Claimant contends that the State was negligent in maintaining the highway in that it permitted the hole to develop and remain in the pavement and did not warn motorists of its existence. It is Respondent’s position that it had no notice of the existence of the hole, and that in any event Claimant failed to establish his freedom from contributory negligence.

Frank Wing testified that on April 21, 1973, at about 9:45 p.m., he left an apartment building he owned and managed on the northwest side of Chicago and proceeded by motorcycle to his home on the city’s southwest side. Wing was an experienced motorcycle rider, having ridden for over 20 years prior to the accident.

It was raining very heavily as Wing proceeded home. He was wearing leather boots, a leather jacket, a helmet and goggles. His route took him southbound along the Stevenson Expressway. Claimant said that he drove this route very frequently and had done so one week prior to the accident.

It was still raining heavily as Claimant approached the Damen Avenue exit ramp of the expressway. At a point approximately 300 yards before the exit ramp Claimant’s motorcycle struck a hole in the pavement in the right hand lane. Claimant alleged that he did not see the hole because it was filled with rainwater. He said that he was travelling about 40 miles per hour when he struck the hole. He was thrown over the handlebars of his motorcycle to the pavement. He said he bounced twice on the pavement, skidded for some distance, and finally came to rest 50 to 100 yards from the hole in the pavement. He said that although he was dazed, he was able to remount his motorcycle and complete his trip home.

After arriving at his home, Claimant called the Chicago Police Department, and an officer came to his home and made a report of the accident.

Claimant said that the following day he experienced pain and stiffness in his neck and hip, and sought medical attention.

Claimant said that he also went back to the accident site on the day following the accident and examined the hole in the pavement. He identified two photographs of a hole approximately four inches deep, and two feet by three feet in size. It appears that the hole had been previously repaired, and the restraining rods under the pavement were clearly visible at the bottom of the hole.

Two days after the accident, Wing saw a chiropractor for injuries sustained in the accident. X-rays were taken, and Claimant said he was advised to stay in bed for a few days. Claimant stated he saw the chiropractor from 10 to 12 times, and that he was billed $342.00. He also claims that he was unable to work for three weeks after the accident, and claims a wage loss of $870.66, and property damage to his motorcycle in the amount of $822.10.

On cross-examination, Claimant admitted that his vision had been obstructed on the night of the accident by. the heavy rain, but said that he had not stopped to wipe off his goggles from the time he left his apartment building to the time of the accident. He also said that he had glasses which he wore for both close work and seeing at a distance but was not wearing his corrective lenses at the time of the accident.

Claimant said also that he had traveled the Stevenson Expressway weekly for some time prior to the accident, and that he had done so within one week of April 21, 1973.

Joseph J. Kostur was the sole witness called by Respondent. Kostur was District Safety Claims Administrator for the Department of Transportation and was responsible for investigating traffic accident claims against the State of Illinois. Kostur said that, to his knowledge, the State had not received notice of a hole in the pavement of the Stevenson Expressway at the accident site prior to the accident.

Respondent introduced into evidence a copy of a Department of Transportation investigative report which indicates that the State did have notice of a hole in the pavement on the Stevenson Expressway, approximately one block from the accident site. The report states that on March 29, 1973, the Department of Transportation was notified of holes in the pavement on the Stevenson Expressway at approximately 1400 West and 1700 West. The report also indicates that repair crews were at work on the Stevenson on March 30, and April 2, 3 and 11. Kostur said that those crews should have patched the entire highway on any one of those days.

The report also indicates that the Chicago Communications Center of the Department of Transportation received a report on April 22, 1973, the day following the accident, of two holes in the curb lane of the southwest bound Stevenson Expressway at 1400 West and 1700 West.

Kostur said that these holes were "not exactly” in the area of the Claimant’s accident.

It is axiomatic that the State is not an insurer of the safety of all persons who travel upon its highways. Schuck v. State, 25 Ill.Ct.Cl. 209. Rather, the State is charged only with using reasonable diligence in maintaining the roadways under its control. To recover on his claim, Claimant thus bears the burden of establishing by a preponderance of the evidence that the State breached its duty to use reasonable care in maintaining the highway at the accident site; that the State’s breach of duty was a proximate cause of Claimant’s injury; and that Claimant was free of contributory negligence. Howell v. State, 23 Ill.Ct.Cl. 141.

Respondent argues strenuously that Claimant has failed to establish either that the State had actual notice of the existence of the hole in the pavement of the Stevenson Expressway prior to the accident, or that the hole had existed for so long a period as to charge the State with constructive notice of its existence. See Joyner v. State, 22 Ill.Ct.Cl. 213, 217. Claimant contends that photographs of the hole, which were introduced into evidence, establish that the condition "was a condition that occurred slowly over many months . . . ,” and that the State is thus chargeable with constructive notice of the existence of the condition. Alternatively, Claimant asserts that the Department of Transportation reports prove that the State had actual notice of the hole.

We need not reach this issue however, because we must conclude that Claimant was not in the exercise of due care and caution for his own safety at the time of the accident.

Claimant himself testified that he traveled the Stevenson Expressway weekly and had done so as recently as one week prior to the date of the accident. Claimant also alleges that the deteriorating pavement which caused the hole to form had occurred slowly over many months. If this were true, surely Claimant, in the exercise of due care, would have noticed the hole on one of the prior occasions when he used the highway. This is particularly so in view of the fact that photographs of the hole in question which were introduced into evidence show that it was of substantial size. We have previously held that where one regularly travels along a portion of road, he is chargeable with knowledge of the condition of that road. See Link v. State, 24 Ill.Ct.Cl. 69.

We also think that in driving his motorcycle at 40 miles per hour in a torrential downpour on a highway, Claimant exceeded a reasonable speed under the circumstances. There was nothing to stop the Claimant from proceeding at a slower speed, given the weather conditions, despite a posted minimum speed limit. Such a minimum speed limit is always contingent upon the circumstances, and we think that a motorcyclist travel-ling in a torrential downpour would in the exercise of due care proceed at a slower speed.

Finally, we note Claimant’s testimony that his eyesight was progressively getting worse. Claimant said that he wore one pair of glasses for reading and another for seeing distances, yet he was wearing neither on the night of the accident.

From the foregoing facts, we must infer that Claimant was not utilizing reasonable care under the circumstances at the time of his accident. This claim is denied.


author: Per Curiam.

text:
    (No. 74-551
    Rehmon Fails, Administrator, Et Al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 8, 1976.

    Zaidenburg, Hoffman, Schoenfeld and Scheffres, Attorneys for Claimant.
    William J. Scott, Attorney General; Peggy Bastas, Assistant Attorney General, for Respondent.
   Per Curiam.

This cause coming on to be heard on the Joint Stipulation of the parties hereto, and the Court being fully advised in the premises;

This Court finds that this claim is for the damages sustained as a result of the death of Mary Louise Fails while a patient at the Illinois Department of Mental Health facilities at Manteno, Illinois.

On May 19, 1973, she resided at Manteno State Hospital. At approximately 10:00 a.m., Manteno aides put Mary in a bathtub, turned on the water, and left her in the tub for approximately 30 minutes. During the bath Mary complained that the water was too hot. Several aides placed their hands in the water and stated that it was lukewarm. Mary required assistance in getting out of the tub. As she was being lifted from the tub her skin began to peel off the left knee and buttocks.

Dr. Georgis, a staff physician, was called immediately. Mary was taken to Bowen Hospital where Dr. Olivares’ examination showed: "Circulatory collapse. Extensive second degree burns about 20 to 30 percent.”

Mary was transferred to Chicago Read Hospital where she died on May 31, 1973, due to complications following the injury. The injury was diagnosed as scald burns. No autopsy was performed.

An extensive investigation was made at the Manteno facility to determine the cause of Mary’s injuries. The investigation ruled out radiator, water and sun burns.

Several alternative theories were proposed by William Kunz, Administrative Assistant at Manteno State Hospital; he concludes his report by stating, "I cannot find any single alternative hypothesis which, taken by itself, seems appreciably more likely than the scald theory.”

A coroner’s inquest was held on September 20, 1973, at 11:30 a.m., which included the cause of death from the pathological report and protocol signed by Dr. Tae Lyong An, the Coroner’s pathologist:

In my opinion, the said Mary Louise Fails’ death was due to septic shock incidental to scale bums.

The verdict of the Coroner’s jury was:

We, the jury, do not know how, when or where the deceased received said injuries; therefore, our verdict is undetermined as to whether this is an accident or otherwise.

At the time of Mary’s death, the statutory maximum recovery against the State was $25,000.00.

The Attorney General’s office filed a counterclaim against the Estate in the amount of $17,312.80 for the hospital care and treatment of Mary Louise Fails from June 20, 1970, through May 31, 1973.

The decedent is survived by a minor child, Cathy Jean Fails.

The Department of Mental Health, represented by Special Assistant Attorney General Ronald W. Olson, decided that the claim should be adjusted if possible, and the Department concurred.

Pursuant to the Department’s request for an adjustment, a stipulation was prepared and sent to the Court, whereby it appears that all matters in controversy between Claimant and the State of Illinois have been adjusted to the mutual satisfaction of the parties and their attorneys.

Claimant is hereby awarded the sum of Five Thousand Dollars ($5,000).