author: Poch, J. Roe, C.J.

text:
    (No. 76-CV-1174

      In re Application of Ira B. Reyes.

      Opinion filed September 26, 1979.

      Opinion on rehearing filed June 11, 1982.

    Charles G. Levy, for Claimant.
    William J. Scott, Attorney' General (Faith Salsburg and Alan R. Boudreau, Assistant Attorneys General, of counsel), for Respondent.
   Poch, J.

This claim arises out of a criminal offense which occurred on or about July 28, 1975. Claimant seeks compensation, on behalf of herself and of her minor children, pursuant to the applicable provisions of the Crime Victims Compensation Act, hereinafter referred to as the Act. Ill. Rev. Stat., eh. 70, par. 71 et seq.

The claim was filed on or about July 27, 1976. Following the investigatory Report, the Attorney General requested a hearing.

On December 13, 1978, Commissioner Leo J. Spivack conducted a hearing at Chicago, Illinois.

At the hearing the following facts were established by a preponderance of the evidence and by stipulation of the parties:

1. Claimant’s decedent, ex-husband Julio Reyes, was a victim of a violent crime, as defined in Section 2(c) of the Act, to-wit: murder. Ill. Rev. Stat., ch. 70, par. 72(c).

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

3. Claimant seeks compensation for loss of support for her three minor children born of the Reyes marriage.

The Reyeses were divorced on July 19, 1974, in the circuit court of Cook County, Illinois.

The court reserved the question of child support payments until such time as personal jurisdiction could be obtained over the defendant, Julio Reyes. On July 28, 1975, Julio Reyes was shot and killed in a tavern at 4233 North Clark Street, Chicago, Illinois. At the date of his death, the circuit court had not secured jurisdiction over the person of Julio Reyes. Therefore there was never any determination made as to child support.

The Court finds that there is no evidence that decedent, Julio Reyes, at any time prior to his death had contributed to the support of his three minor children.

Section 3(a) of the Act (Ill. Rev. Stat. 1977, ch. 70, par. 73(a)) reads: “A person is entitled to compensation under this Act if:

(a) ... a person who was dependent on a deceased victim [Julio Reyes] of a crime of violence for his support at the time of the death of that victim.

The victim, Julio Reyes has been living apart from his family since March 28, 1972. The divorce decree entered in July 1974 recites that Reyes has provided nothing for the support of his family since his desertion two years earlier. Mrs. Reyes obtained a divorce by default, and therefore the Court did not award her child support.

This Court held in the case of In re: Application of Smith, (1976), 31 Ill. Ct. Cl. 675 that: “It is the opinion of this Court that mere entitlement to support is not dependency under the Act.”

The Court further stated that: “In looking at the Act as a whole, it is clear that the legislature intended to compensate those persons who lost actual out-of-pocket money as a result of violent crime.

Every provision of the Act is strictly limited to out-of-pocket expense. One who is not actually receiving support at the time of the crime cannot be said to have had an out-of-pocket loss. An expectancy of support is not dependency under the Act.”

The Court finds that based upon the foregoing facts and the applicable law, the Claimant, Ira B. Reyes, is not entitled to an award and that her claim is dismissed.

OPINION ON REHEARING

Roe, C.J.

This claim arises out of a criminal offense which occurred on or about July 28, 1975. The Claimant, Ira B. Reyes, applied for compensation pursuant to the provisions of the Crime Victims Compensation Act, hereinafter referred to as the Act (Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.), but was denied in an opinion of this Court filed on September 26, 1979. The case is now before the Court on Claimant’s motion for rehearing or, in the alternative, a new trial.

The Claimant, Ira B. Reyes, is the ex-wife of the victim of the crime, Julio Reyes, having obtained an ex parte divorce in Cook County on July 19, 1974. At the time of the divorce the Reyeses had three children. The court, in its decree of divorce, specifically reserved all questions regarding child support payments until such time as in personam jurisdiction could be obtained over the children’s father. Approximately one year after his divorce Julio Reyes was shot and killed. At no time subsequent to this divorce was jurisdiction ever obtained over Julio Reyes. Although there is no evidence that Julio Reyes ever contributed to the support of his children nor any evidence that the Claimant even knew of his whereabouts after the divorce, Claimant sought compensation pursuant to the Act for loss of support to her children.

In our opinion rendered September 26, 1979, we found as follows:

“The Court finds that there is no evidence that decedent, Julio Reyes, at any time prior to his death had contributed to the support of his three minor children.
Section 3(a) of the Act (Ill. Rev. Stat. 1977, ch. 70, par. 73(a)), reads: ‘A person is entitled to compensation under this Act if:
(a) ... a person who was dependent on deceased victim (Julio Reyes) of a crime of violence for his support at the time of the death of that victim.’
The victim, Julio Reyes has been living apart from his family since March 28, 1972. The divorce decree entered in July, 1974, recites that Reyes has provided nothing for the support of his family since his desertion two years earlier. Mrs. Reyes obtained a divorce by default, and therefore the Court did not award her child support.
This Court held in the case of In re Application of Smith, (1976), 31 Ill. Ct. Cl. 675, that:
‘It is the opinion of this Court that mere entitlement to support is not dependency under the Act.’
The Court further stated that:
In looking at the Act as a whole, it is clear that the legislature intended to compensate these persons who lost actual out-of-pocket money as a result of a violent crime. Every provision of the Act is strictly limited to out-of-pocket expense.
One who is not actually receiving support at the time of the crime cannot be said to have had an out-of-pockét loss. An expectancy of support is not dependency under the Act.’ ”

In her petition for rehearing or, in the alternative, a new trial, Applicant asserts that the position quoted above is unconstitutional under the Federal and State constitutions, and that it is not consistent with a decision of the Illinois Supreme Court. It was her position that our opinion was violative of the equal, protection clauses of both constitutions in that the distinction drawn between parents and spouses who actually have contributed to the support of their families and those who have not and do not furnish such support penalizes the dependents of those who are “shirkers” and who have abandoned their familial responsibilities. Applicant is not contesting the constitutionality of the Act itself but our application of it.

We have interpreted and applied the Act as we think it was written. If the Act itself, or our interpretation of the Act, or our application of the Act, is unconstitutional then Applicant has a cause of action in another forum which must be decided before pursuing the matter further in this Court. Our jurisdiction does not extend to determining issues of constitutionality.

Applicant’s second contention on rehearing is that our previous decision was not consistent with the terms of the Act. She argues that limiting compensation to actual out-of-pocket losses flies in the face of the definition of pecuniary loss as stated in section 4 of the Act (Ill. Rev. Stat. 1977, ch. 70, par. 74), to wit: “Pecuniary loss . . . includes loss of future earnings because of a disability resulting from an injury . . .” In Smith, supra, at 679 we stated that:

“Where there is no evidence that a victim was actually contributing to a person’s support, or at least under an order of a court to contribute to that person’s support, there can be no dependency under the Act. In looking at the Act as a whole, it is clear that the legislature intended to compensate those persons who lost actual out-of-pocket money as a result of a violent crime. Every provision of the Act is strictly limited to out-of-pocket expense.
One who is not actually receiving support at the time of the crime cannot be said to have had an out-of-pocket loss. An expectancy of support is not dependency under the Act.”

In that case we granted an award to the victim’s dependents who proved that they were actually being supported by the victim and that award was based on his projected future earnings lost by reason of his death. By actual out-of-pocket losses we meant those losses which could be proven with a reasonable degree of certainty. In the case at bar, there was no evidence to show that the victim was contributing to the applicants’ welfare. They did not even know of his whereabouts until after his death. He was not under any court decree to contribute to their support.. By reason of his death they suffered no financial loss of support, no loss of anything they had been receiving from the victim. To find that they would have received support in the future under the facts in this case would be too speculative.

Claimant also cited Gill v. Gill (1973), 56 Ill. 2d 139, 306 N.E.2d 281, as authority for her position. The issue in that case was “whether it was proper for the trial court to direct the father of a child to reimburse the mother for money expended after their divorce for the child’s support during its infancy.” (Gill, supra, at 140.) In that case, as in the case at bar, the mother obtained an ex parte divorce and the court reserved the question of child support alimony due to lack of in personam jurisdiction over the father. Thirteen years later in personam jurisdiction was obtained and the trial court entered an order for payment of child support retroactive to the date of the divorce. In affirming the trial court’s decision on both statutory and common law grounds the supreme court stated:

“The obligation of the father to support his children begins when the child is born and continues during the minority of the child. This obligation of the father to support his minor child is not affected by the decree granting a divorce, nor by a decree granting the care and custody of his child to his wife or some other suitable person. (Citation.) His children are of his blood. It is not their fault that their parents have been divorced.” Supra, at 143, 144.

We do not dispute the parental obligations of Support to minor children described in the Gill Case which exist in theory. However, just. because a parent has a theoretical obligation to support his ór her minor children does not mean that those children are actually dependent upon the parent for support. The children in Gill cannot be said to have been actually dependent on their father over the many years during which he did not make contributions toward their support.

Our previous decision denying compensation is hereby affirmed.


source: Caselaw Access Project

author: Roe, C.J.

license: Public Domain

text:
    (No. 76-CV-1301

      In re Application of Edward McManus.

      Opinion filed September 21, 1981.

    James T.J. Keating, for Claimant.
    Tyrone C. Fahner, Attorney General (Alan R. Boudreau, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This application is before the Court on the two motions of Applicant and the objections thereto filed by the State of Illinois. A brief history of the case leading up to the filing of the motion is as follows.

Mr. McManus filed his application for benefits under the Crime Victims Compensation Act, hereinafter referred to as the Act (Ill. Rev. Stat. 1975, ch. 70, par. 71 et seq.), on September 9, 1976, following injuries sustained during the course of a crime which occurred on October 3, 1975. By order of this Court filed November 3, 1976, his application was denied on the grounds that the record indicated that his injuries were substantially attributable to his wrongful act pursuant to section 3(f) of the Act.

He disputed the determination reached by the Court and asked for a hearing which, if said request is timely made, was his right. Although the request was filed one week late, he was allowed to have a hearing. The hearing was held on March 17, 1977, at which time both the Applicant and the State put on their evidence. At the suggestion of Commissioner Ashman, the Applicant did not rest his case at the conclusion of the hearing on that date because he failed to present evidence of the permanency or lack of permanency of his injuries. The case was continued to afford Applicant another opportunity to present expert testimony or stipulate to the issue with the Attorney General. .

Further hearings were scheduled on five different occasions. However, no hearings were held. Finally, on December 15, 1977, the matter was set for a report on the status. Because neither Mr. McManus nor his attorney appeared, the case was dismissed for want of prosecution by order of the Court filed December 22, 1977.

On July 11, 1978, the Court granted the motion of Mr. McManus’ attorney to withdraw his appearance. The order granting said motion recites that a hearing on it was set for December 8, 1977, that due notice of said hearing was sent to the Applicant, but that he failed to appear. The motion of Applicant’s attorney stated that (1) he had sent Mr. McManus a notice of the motion and hearing at his last known address, (2) that he had been unable to reach the Applicant since May of 1977, and (3) that the Applicant had been unresponsive, uncommunicative, and uncooperative, thus making it impossible for him to prosecute the claim.

Nothing more transpired on the case for over 27 months after the order dismissing the claim for want of prosecution, but only a little over 18 months following the order allowing counsel to withdraw. Then, on March 25, 1980, a different attorney filed a motion to set a hearing. The commissioner to whom the case had been previously assigned promptly notified Applicant’s counsel that it would be inappropriate to set a hearing because the case was dismissed back in 1977. This gave rise to the filing of a second motion on May 12, 1980, to set a hearing (which we will refer to as the amended motion) alleging that certain actions of the Court and Attorney General worked to revest the Court with jurisdiction by manifestation of intent. The State of Illinois filed an objection to the amended motion on May 23, 1980. A response to said objection was filed by Applicant on June 18,1980.

Because the two-year anniversary of the Court’s order of July 11, 1978, was. fast approaching and we had yet to rule on the amended motion, Applicant filed a section 72 petition to vacate the order of dismissal and the order allowing withdrawal of counsel. The State of Illinois then filed its objections to this petition. Later, Applicant filed an affidavit and a motion to cite additional authority.

The first issue raised is whether or not certain actions by the Court and the Attorney General worked to revest the Court with jurisdiction over the application. As pointed out in Applicant’s amended motion, revesting arises where, after an order of dismissal has been entered, the parties resubmit the matter to the jurisdiction of the Court by manifestation of intent. The appellate court explained the revesting doctrine in Stark v. Ralph F. Roussey & Associated, Inc. (1970), 131 Ill. App. 2d 379, 381, 266 N.E.2d 439, 441:

“Where a court loses jurisdiction, after expiration of 30 days following a dismissal order, the parties may, by appearing voluntarily and participating in further proceedings, revest the court with jurisdiction. The elements essential to revesting are: (1) the active participation of the parties without objection and; (2) further proceedings inconsistent with the prior order of dismissal. Ridgely v. Central Pipe Line Co., 409 Ill. 46, 97 N.E.2d 817 (1951).”

It is the Applicant’s contention that by entering the order of July 11, 1978, allowing the attorney to withdraw, the Court by its own action revested and revived the matter. Applicant also contends that certain correspondence by the Attorney General’s office (which has been made part of the record) showed that that office did not consider the matter dismissed.

In support of his position Applicant cites a number of cases in addition to the case from which the above quotation was excerpted, including Nenadic v. Grant Hospital, (1979), 75 Ill. App. 3d 614, 394 N.E.2d 527; Stevens v. City of Chicago (1970), 119 Ill. App. 2d 366, 256 N.E.2d 56; Ridgely v. Central Pipe Line Co. (1951), 409 Ill. 46, 97 N.E.2d 817; Johnson v. Empire Mutual Insurance (1979), 70 Ill. App. 3d. 780, 388 N.E.2d 1042; and Asumendi v. Fortman (1978), 58 Ill. App. 3d 186, 374 N.E.2d 20. While all of these cases stand for the proposition that actions of the parties may cause revesting to occur, none are directly on point.

We do not think that revesting occurred in this case. The Court had no jurisdiction to enter its order of July 11, 1978, allowing the attorney to withdraw. It lost jurisdiction following 30 days after the order of dismissal. None of . the parties were before the Court on the day that order was filed. The order was entered based upon the recommendation of a commissioner who had the attorneys for the respective parties present before him at a hearing held prior to the order of dismissal. It was not acted on by the Court until after the case had been dismissed. At no time did the parties appear voluntarily and participate in any further proceeding after the order of dismissal.

Furthermore, the correspondence of the Attorney General’s office on its face is vague and noncommittal. The first note only said that the Attorney General had been trying to call the Applicant’s former attorney and asked that he (the attorney) call to set up some meeting. The second was a follow-up to the first which said no reply had been received. We do not think anything contained therein constitutes active participation inconsistent with the order of dismissal. The Attorney General’s office explained that these letters were written as a courtesy to Mr. McManus who had phoned them. Said explanation was uncontroverted. If we were to hold that such action in some way revived the claim and revested the Court with jurisdiction we would effectively be prohibiting all contacts with applicants by the Attorney General after a case has been closed.

Applicant’s section 72 motion must also be denied. It was filed more than two years after the order of dismissal which was the final order in this case. As stated above, the order allowing the attorney to withdraw was void for lack of jurisdiction.

It is hereby ordered that the motion of Applicant to set a hearing and the Applicant’s section 72 petition be, and hereby are, denied.


author: Per Curiam.

text:
    (No. 76-CV-1339
    In re Application of Kathy Soto.

      Opinion filed March 5, 1982.

      Opinion on application for attorney fees filed June 4, 1982.

    Spencer W. Sschwartz, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of an incident that occured on April 25, 1974. Kathy Soto, wife of the deceased victim, George Soto, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on September 29, 1976, on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That the Claimant’s deceased husband, George Soto, age 21, was a victim of a violent crime as defined in section 2(c) of the Act (Ill Rev. Stat. 1977, ch. 70, par. 72 c)), to wit: aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12-4).

2. That on August 25, 1974, the victim was shot by an unknown offender during the course of a verbal dispute. The victim and the offender became involved in a verbal dispute inside a tavern located at 3256 West North Avenue, Chicago, Illinois. After the Claimant stepped outside the tavern, the offender produced a gun and shot the victim. The victim was taken to Walter Memorial Hospital for treatment. The injuries sustained by the victim left him paralyzed and on October 26, 1976, he died as a result of those injuries. The offender was apprehended, prosecuted and convicted of aggravated battery prior to the victim’s death.

3. That the Claimant seeks compensation for funeral expenses and for loss of support for herself and her minor children, Catalina Soto, age 1, and Ivette Soto, who was born 8 months after the incident.

4. That the Claimant has not submitted any evidence to substantiate her claim for funeral expenses.

5. That the Claimant, having not submitted the necessary evidence to support her claim for funeral expenses, has not met a required condition precedent for compensation for funeral expenses under the Act.

6. That the Claimant and her minor children were totally dependent upon the victim for support.

7. That prior to his death, the victim was employed by Soudan Metals Company and his average monthly earnings were $372.06.

8. That section 4 of the Act (Ill. Rev. Stat. 1977, ch. 70, par. 74) states “. . . loss of support shall be determined on the basis of the victim’s average monthly earnings for the six months immediately preceding the date of the injury or on $500.00 per month, whichever is less.”

9. That the victim was 21 years of age at the time of the crime. According to the U.S. Department of Health, Education and Welfare, Vital Statistics of the United States, 1978, Life Tables, Volume II, his life expectancy would have been 71.1 years. The projected loss of support for 50.1 years is $223,682.48, which is in excess of $10,000.00 which is the maximum amount compensable under section 7(e) of the Act. Ill. Rev. Stat. 1977, ch. 70, par. 77(e).

10. That this claim complied with all pertinent provisions of the Act regarding loss of support and qualifies for compensation thereunder.

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

12. That the Claimant has received $11,000.00 as the result of the settlement of a civil suit that was filed as the result of the incident. This can be counted as an applicable deduction.

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

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

It is therefore, hereby ordered that the sum of $10,000.00 (ten thousand dollars) be and is hereby awarded to Kathy Soto, wife of George Soto, an innocent victim of a violent crime to be paid and disbursed to her as follows:

(a) Twenty (20) equal monthly payments of $500.00 (five hundred dollars) each to be paid to Kathy Soto for the use and benefit of Catalina Soto and Ivette Soto;
(b) In the event of the death or marriage of the Claimant or the Claimant’s children, it is the duty of the personal representative, of the Claimant to inform this Court in writing of such death or marriage for the purpose of the possible modification of the award.

OPINION ON APPLICATION FOR ATTORNEY FEES

Poch, J.

This cause coming on to be heard on the petition of Applicant’s counsel for attorney fees, it appearing that due notice has been given and the Court being fully advised in the premises;

On March 5, 1982, an opinion was rendered in this case wherein the Applicant, Kathy Soto, was awarded the sum of $10,000.00 to be paid periodically for the use and benefit of Catalina Soto and Ivette Soto. In his petition for attorney fees counsel seeks the sum of $2,500.00 plus out-of-pocket costs of $5.90 for a total of $2,505.90 and states that he performed various services including the preparation and documentation of the decedent’s marriage, the birth of the decedent’s two minor children, the establishing of decedent’s wages, and the documentation of the nature and cause of death, connecting said death to the original crime which occurred over two years prior to his death.

Regarding attorney fees, the Crime Victims Compensation Act (Ill. Rev.Stat. 1977, ch. 70. par. 82) provides as follows:

“No fee may be charged to the applicant in any proceeding under this Act except as provided in this Act. If the applicant is represented by counsel or some other duly authorized agent in making application under this Act or in any further proceedings provided for in this Act, that counsel or agent may receive no payment for his services in preparing or presenting the application before the Court of Claims. He may, however, charge fees to the applicant for representing him at a hearing provided for in this Act but only in such amount as the Court of Claims determines to be reasonable.”

In this case there is no record of a hearing ever having been held. Due to the inability of the Attorney General to follow through with its investigation for nearly four years the case was placed on docket call in an effort to bring the parties into court and allow them to confer with the commissioner and the investigator. By appearing at the docket call Applicant avoided dismissal for want of prosecution. No hearing on the merits of the claim was ever held or scheduled. Therefore we feel constrained by the plain language of the Act to determine that no amount of compensation is reasonable. This determination is not meant in any way to reflect on the efforts of counsel.

Petition denied.


author: Poch, J.

text:
    (No. 77-CV-0727

      In re Application of James L. Dickey.

      Order filed October 7, 1981.

    James L. Dickey, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This matter comes before the Court, for the purpose of determining whether the claim of James L. Dickey should be dismissed, as required by section 5 of the Illinois Crime Victims Compensation Act, hereafter referred to as the Act (Ill. Rev. Stat. 1977, ch. 70 , par. 71 et seq.). The Court, having reviewed the file and an investigatory report of the Attorney General of Illinois, hereby finds:

1. That the Claimant’s application for compensation was filed with this Court pursuant to the provisions of the Act on November 29, 1977.

2. That on June 28, 1977, the Claimant, James L. Dickey, age 39, was a victim of a violent crime as defined in section 2(c) of the Act, to wit: aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4).

3. That on June 28, 1977, the Claimant was shot for no apparent reason by an offender who was known to him. No known argument had precipitated the offender’s actions. The incident occurred as the Claimant stood on the driveway at 1009 Avenue L., Sterling, Illinois. The Claimant was taken to Community General Hospital and admitted.

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

5. That on July 29, 1981, pursuant to section 5 of the Act, a properly addressed notice was sent to the Claimant notifying him that he must submit the required verification needed to substantiate his claim for medical/ hospital expenses and loss of earnings within thirty (30) days from the date of receipt of the notice.

6. That the Claimant has been duly notified and has failed to submit the requested employer reports, hospital report, doctor report and hospital bill within , the specified time, and therefore the Court of Claims shall reject his claim for medical/hospital expenses and loss of earnings.

7. That the Claimant has partially substantiated his claim for medical/hospital expenses. Most of the medical expenses that the Claimant has substantiated were paid by assistance provided by Coloma Township. Coloma Township assistance requires that any expenses for which an individual seeks relief be submitted within six months of the date that they are incurred. The Claimant failed to submit some of his medical expenses to township assistance within this required time for filing. As a result of his failure to file within the required time period, these expenses were denied payment by township assistance.

8. That pursuant to section 25 of the Court of Claims Act (Ill. Rev. Stat. 1977, ch. 37, par. 439.24 — 5), and Rule 6 of the Rules of the Court of Claims, “any person who filed a claim before the Court shall, before seeking final determination of his claim, exhaust all other remedies and sources of recovery whether administrative or legal.”

9. That the Claimant, by reason of his failure to submit all of his medical expenses to township assistance in a timely fashion, has failed to exhaust other remedies and sources of recovery available to him. Therefore, he has not met a required condition precedent for compensation of these expenses under the Act.

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

11. That the Claimant has failed to show a pecuniary loss of $200.00 or more as required by section 3(b) of the Act.

It is, therefore, ordered that this claim be dismissed and the file in this matter closed.


text:
    (No. 78-CV-0386

      In re Application of Wayman D. Vaughn.

      Opinion filed July 13, 1981.

    Wayman D. Vaughn, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Alan R. Boudreau, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises out of an alleged criminal offense which occurred on or about March 12, 1978, at or near 301 N. Mason, Chicago, Illinois, resulting in injury to the Claimant, Wayman D. Vaughn. The Claimant seeks compensation pursuant to the applicable provisions of the Crime Victims Compensation Act, hereinafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

This claim was originally filed on June 13, 1978. Based upon the investigatory report of the Attorney General and other documentary evidence the claim was denied on July 25, 1979, due to the Claimant’s failure to cooperate with law enforcement officials in the apprehension and prosecution of the assailant. The Claimant filed his objection to said opinion and requested a full hearing on the merits of the claim.

An evidentiary hearing was held before Commissioner A.T. Walsh on November 24, 1980. As a result of the hearing the following facts were established by a preponderance of the competent and credible evidence:

The Claimant stated he was going home from work on March 12, 1978, at approximately 2:00 a.m. when a woman stopped to talk to him and then a man stepped out of a doorway and placed a gun in his back. The man and woman took the Claimant across the street into a building and demanded his money. He responded that he only had $3.00. The man then shot the Claimant.

The Claimant stated the man and woman dragged him from the building to a garage where he resisted. He called for help. Police took him to West Suburban Hospital where he said he didn’t know the identity of his assailants. He also was called at home by police and asked the identity of his assailants.. Upon cross-examination the Claimant conceded he had consumed about 10 drinks before leaving a tavern. He was accompanied by a young woman whom he did not identify. He also conceded that before he was shot he was forced to take all his clothes off.

The following amounts were submitted by the Claimant and not contested by the State as to various medical expenses:

West Suburban Hospital $2296.50

Westgate Orthopaedics 465.00

Village Radiology 104.00

Dr. Rao 550.00

Total , $3415.50

Less Paid by Insurance 195.00

3220.50

The Claimant also testified that he lost eight weeks of work at $150.00 per week for a loss of $1200.00 in loss of income.

The State called Officer Edward Thun of the Chicago Police Department, who investigated the shooting of the Claimant. Officer Thun interviewed the Claimant on a number of occasions and was told at least three different versions of. the shootings. The officer believed that the Claimant knew his assailants and had removed his clothes after an agreement to have sexual intercourse with the woman who was a prostitute. On another occasion the Claimant told Officer Thun he did not want to prosecute.

A careful review of the testimony leaves much doubt as to what really happened to the Claimant and whether he was telling a credible story about being shot during an attempted robbery. The evidence is unclear and the Claimant has not proved by a preponderance of the evidence that he is entitled to an award as the innocent victim of a violent crime.

A prerequisite to recovery under the Act is cooperation with police in the apprehension and prosecution of the assailants. The Claimant’s declination to prosecute and his refusal to cooperate is a bar to his recovery under the Act.

The order of the Court of July 25, 1979, denying this claim is hereby affirmed. The claim of Way man D. Vaughn is denied.


text:
    (No. 78-CV-0698

      In re Application of Debra L. Crose.

      Opinion filed January 18, 1982.

    Franklin S. Wallace, for Claimant.
    Tyrone C. Fahner, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises out of an incident that occurred on April 1, 1978, in Rock Island County, Illinois. Debra Crose Briggs seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereinafter referred to as the Act. Ill. Rev. Stat., ch. 70, par. 71 et seq.

This Court had carefully considered her application for benefits submitted on a form prescribed by the Court and had also considered an investigatory report of the Attorney General of the State of Illinois which substantiates the matters set forth in the application. Based on those documents and other evidence submitted to the Court the Court found in an opinion dated July 3, 1980, that the Claimant was entitled to an award in the amount of $3,554.24.

Since that time the Court has become aware that the Claimant received $9,000.00 from the parents of her assailant. In accepting this award the Claimant signed a covenant not to sue reserving any rights she may have under the Crime Victims Compensation Act. Claimant has returned the warrant issued to her from the State of Illinois for $3,554.24 but has requested the Court that she be allowed to retain this sum of money due to the permanent nature of her injuries.

The Respondent has filed a motion for summary judgment to the effect that Claimant is no longer a compensable victim under the Act because of her. settlement from the parents of the assailant.

On the order of the Court a hearing was held on December 1, 1981, for the taking of evidence on the issue raised in the motion for summary judgment. At that hearing Claimant offered no new compensable damages. The Court finds:

1. Section 7(d) of the Crime Victims Compensation Act commands the Court to:

“Deduct $200.00 plus the amount of benefits, payments or awards, . . . payable under the Workmen’s Compensation Act, from local governmental, State or Federal funds or from any other source . . .. which the applicant . . . has received or to which he is entitled as a result of the injury to or the death of the victim ...” (Emphasis added).

2. Since Claimant has received funds in excess of her . expenses, the amount of her compensable damages has been reduced pursuant to section 7(d) so that there are no remaining compensable damages.

It is hereby ordered, that the Respondent’s motion for summary judgment be and is hereby granted and this cause is denied with prejudice.


author: Poch J.

text:
    (No. 79-CV-0051

      In re Application of Melba Jean Thomas.

      Order filed August 31, 1981.

    Sidney E. Smith, for Claimant.
    Tyrone C. Fahner, Attorney General, for Respondent.
   Poch J.

This claim arises out of an incident that occurred on July 22, 1978, in Pontiac, Illinois. Melba Jean Thomas, wife of the victim, William N. Thomas, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

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

1. That the Claimant’s deceased husband, William N. Thomas, age 48, was a victim of a violent crime as defined in section 2(c) of the Act, to wit: murder (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1).

2. That on July 22, 1978, William Thomas was stabbed to death by a prison inmate. The stabbing occurred during a riot at Pontiac Correctional Center. Claimant’s husband was a correctional officer at the prison and was on duty when attacked. The victim was taken to St. Joseph’s Hospital in Pontiac where he died from stab wounds to the heart.

3. That the Claimant seeks compensation for medical expenses, funeral expenses and loss of support for herself and her minor child, Nelson, age 8.

4. That Claimant incurred medical expenses in the amount of $326.15, all of which was paid by workmen’s compensation.

5. That Claimant incurred funeral expenses. for the victim in the amount of $2,522.00, $2,000.00 of which is deemed compensable by this Court.

6. The victim was employed by Pontiac Correctional Center, prior to his death and his average monthly earnings were $768.54.

7. The victim was 48 years of age at the time of .the crime. According to the U.S. Department of Health, Education and Welfare, Vital Statistics of the United States, 1973, life tables, vol. II, his life expectancy would have been 27 years.

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

9. That based on $500 per month, the maximum ■ compensable loss of support for 27 years.is. $162",000.00. • • ■

10. That section 7(d) of the Act provides for a deduction of $200 plus the amount of benefits, payments or awards payable under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.), from local governmental, State or Federal funds or from any other source, except .annuities, pension plans, Federal social security benefits and the net proceeds of the first $25,000.00 (twenty five thousand dollars) of life insurance paid or payable to the Claimant.

11. That Claimant has received the following benefits as a result of her husband’s death, $316,750.00 of which come under section 7(d) as applicable deductions:

$ 45,000.00 Crown Life Insurance Death Benefits
$ 20,000.00 Law Enforcement Officers’ Compensation Act
$ 25,000.00 Public Safety Officers Act
$ 1,750.00 Workmen’s Compensation Funeral Benefits
$250,000.00 Workmen’s Compensation Award

12. That the Claimant’s net loss for which she seeks compensation is as follows:

Compensable loss of support $162,000.00
Net medical expenses 0
Compensable funeral expense 2,000.00
Total $164,000.00
Less applicable deductions 316,750.00
Less statutory deduction 200.00
Net loss —0—

13. That section 3(b) of the Act limits the right of compensation to persons who have suffered a pecuniary loss of $200.00 or more attributable to a violent crime resulting in the death or injury of the victim.

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

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


text:
    (No. 79-CV-0235

      In re Application of Helen B. Martinez.

      Order filed October 29, 1981.

    Helen B. Martinez, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises out of an incident that was discovered on January 27, 1979. Helen B. Martinez, wife of the deceased victim, Jose A. Martinez, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on April 9, 1979, on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on January 27, 1979, the victim was found in the front seat of his automobile, parked at 2308 W. Maypole, Chicago, Illinois, with a gunshot wound to the head. Also found in the automobile was a .38 caliber revolver, fully loaded and registered to the victim, and a gray scale of the kind commonly used to weigh narcotics. The victim was taken to Cook County Hospital where he was pronounced dead on arrival.

Further police investigation revealed that on the evening of January 19, 1979, the victim had left his house with the aforementioned revolver and a large sum of money. Witnesses related to police investigators that the victim was involved in illegal drug transactions and that, prior to the incident, he stated that he was going to make a purchase of heroin. The last time the victim was seen alive was in the early morning hours of January 20, 1979.

2. That the Claimant seeks compensation for funeral expenses and for loss of support for herself and Lisa M, Martinez, age 8.

3. That the Claimant incurred funeral and burial expenses as a result of the victim’s death in the amount of $2,894.75, $2,000.00 of which has been deemed reasonable and therefore compensable by the Court.

4. That on February 20, 1981, and on April 21, 1981, pursuant to section 5 of the Act, properly addressed notices were sent to the Claimant notifying her that she must submit the victim’s 1978 and 1979 income tax returns to substantiate her claim for loss of support within thirty (30) days from the date of the receipt of the notice.

5. That the Claimant has been duly notified and has failed to submit the substantiating materials within the' specified time.

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

7. That the victim’s conduct relating to illegal drug transactions contributed to his death to such a substantial degree as to warrant a full denial of this claim pursuant to section 7(c).

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


text:
    (No. 80-CV-0062
    In reApplication of Ann Van Schaik. Opinion filed

      November 23, 1981.
    Ann VanSchaik, pro se, for Claimant. Tyrone C.
    Tyrone C.Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises outincident that occurred on March 3, 1979. Ann Van Schaik, wife of the deceased victim, Roger Van Schaik, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

This Court has carefully considered theapplication for benefits submitted on July 23, 1979, on the form prescribed by the Court, and an investigatory report of the Attorney General of illinois which substantiates mat- ters set forth in the application. Based upon these docu- ments and other evidence submitted to the Court, the Court finds: 1. That the C1~aimant's deceased husband,

1. That the C1~aimant's deceased husband,Roger Van Schafk, age 3JL, was a victim of a vio~ent crime as defined in section 2(c) of the Act, to wit: murder (ilL Rev. StaL 1977, ch, 38, par. 9-1). 2. That on March 3, 1979,

2. That on March 3, 1979,the victim and his work partner were shot by an unknown offender while on duty as policemen. The incident occurred on the street at 1123 W. 115th Street, Chicago, Illinois. While the victim and Chicago, Illinois. While the victim and his partner were making a routine check of two citizens regarding a traffic matter, the offender pulled up alongside the victim in his automobile. The offender then exited his automobile, produced a gun and shot the victim and his partner. The offender apparently shot the victim in revenge for allegedly arresting him on a prior occasion. The victim’s partner was also fatally shot. The victim was pronounced dead on arrival at Roseland Community Hospital. The offender was apprehended, convicted of murder and given the death penalty.

3. That the Claimant seeks compensation for funeral expenses and for loss of support for herself and her minor child, Erica Van Schaik.

4. That the Claimant incurred funeral and burial expenses in the amount of $4,627.00 of which the Claimant has paid $4,627.00, of which $2,000.00 has been deemed reasonable and therefore compensable by the Court.

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

6. That prior to his death, the victim was employed by the City of Chicago Police Department and his average monthly earnings were $1,142.87.

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

8. That the victim was 31 years of age at the time of the crime. According to the U.S. Department of Health, Education and Welfare, Vital Statistics of the United States, 1978, life tables, volume II, his life expectancy would have been 72.4 years. The projected loss of support for 41.4 years is in excess of $10,000.00 which is the maximum amount compensable under section 7(e) of the Act.

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

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

11. That the Claimant has received $50,000.00 under the Public Safety Officers Benefit Act, $20,000.00 Under the Law Enforcement Officers Benefit Act, and $19,731.00 under the Municipal Code of the City of Chicago. The Claimant and her minor child are also the recipients of a $15,000.00 trust fund under the Municipal Code of the City of Chicago.

The total amount of these benefits, or $104,731.00 can be counted as applicable deductions.

12. That the Claimant and her minor child are currently receiving benefits under the policemen’s annuity and benefit fund, which also include children’s annuity benefits. Through the benefits of this fund, the Claimant and her minor child are to receive $1,258.60 per month, to a total of $271,857.60 until October 1996, when the Claimant’s minor child will have reached the age of majority. The Claimant will then continue to receive a monthly check through the same fund until 2011, at which time she will be eligible for widow’s pension. The Claimant also currently receives social security benefits in the amount of $403.60 per month and has received $255.00 in social security burial benefits. In addition, the Claimant received $15,000.00 in life insurance as a result of the victim’s death.

None of these benefits can be counted as applicable deductions under the Act.

13. That the total amount for which the Claimant seeks compensation is as follows:

Loss of support (41.4 years at $500 per month) $248,400¡00
Compensable funeral expenses 2,000.00
Total $250,400.00
Less applicable deductions -104,731.00
Less $200.00 deductible -200.00
Net loss $145,469.00

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

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

It is therefore, hereby ordered that the sum of $10,000.00 (ten thousand dollars) be and is hereby awarded to Ann Van Schaik, wife of Roger Van Schaik, an innocent victim of a violent crime to be paid and disbursed to her as follows:

(a) $2,000.00 (two thousand dollars) to be paid to Ann Van Schaik;
(b) Sixteen (16) equal monthly payments of $500.00 (five hundred dollars) each to be paid to Ann Van Schaik for the use and benefit of herself and her minor child Erica Van Schaik;
(c) In the event of the death or marriage of the Claimant or the Claimant’s children, it is the duty of the personal representative of the Claimant to inform this Court in writing of such death or marriage for the purpose of the possible modification of the award.


text:
    (No. 80-CV-0190

      In re Application of Michael Ziemba.

      Order filed March 5, 1982.

    Fern H. Zittler, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises out of an incident that occurred on June 8, 1976. Michael Ziemba, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill Rev. Stat. 1977, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on September 27, 1979, on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on June 8, 1976, the Claimant was shot by an unknown offender during the course of an armed robbery. The incident occurred in an alley at 750 South Cicero Avenue, Chicago, Illinois. When questioned by the investigatory police officers as to what had transpired, the Claimant related that he had procured the services of a prostitute and that they had driven in the Claimant’s car to the secluded alley. While there, the offender approached them and demanded the Claimant’s money. When the Claimant resisted, the offender shot him twice in the head. The Claimant then drove himself to Oak Park Hospital where he was treated for his injuries. The offender has been apprehended, prosecuted and convicted of armed robbery, aggravated battery and attempted murder.

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

3. That the Claimant seeks compensation for medical/hospital expenses and loss of earnings. Among the medical expenses for which the Claimant seeks compensation are those he incurred for the amputation of his leg.

4. That it appears from the investigatory report and the police report that the Claimant’s injury was substantially attributable to his involvement in the illegal act of patronizing a prostitute (Ill. Rev. Stat. 1975, ch. 38, par. 11 — 18.).

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

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


text:
    (No. 80-CV-0726

      In re Application of James S. Kizer.

      Order filed February 8, 1982.

    James S. Kizer, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises out of an incident that occurred on June 11, 1977. James S. Kizer, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on May 13, 1980, on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on June 11, 1977, the Claimant was shot during a card game at Gray Eyes Tavern in North Mounds City, Illinois, by an offender who was known to him. Police investigation revealed that the Claimant was a player at á gaming table when the offender accused him of taking some money. The offender asked for the money back and the Claimant refused, at which time the offender shot him. The Claimant was taken to Padco Community Hospital for treatment.

2. That section 3(f) of the Act states that a person is entitled to compensation under the Act if the injury to or the death of the victim was not substantially attributable to his wrongful act or substantial provocation of his assailant. Gambling is a crime in the State of Illinois. (Ill. Rev. Stat. 1977, ch. 38, par. 28 — 1.) This Court has consistently held since the Court’s decision in the case of In Re Application of Hardy, 31 Ill. Ct. Cl. 230, that where a victim was killed as a result of arguments during gambling, such a victim substantially contributed through his illegal acts to his own injury or death.

This Court in the Hardy case said:

“Although this court can not ignore this brutal killing, neither can it ignore the evidence before it as to the circumstances leading to it. The Act under which this claim is made is intended to compensate for injuries or death to victims who were innocent of any contribution to their own injury or death. The victim in this case, placed himself in a situation, through his illegal activities, where further illegal activities would be the probable result. Surely, the victim did not expect to be murdered, but just as surely he did place himself in a situation where he can not be considered an innocent victim.”

This reasoning is wholly applicable to the case before us.

3. That the evidence indicates that the Claimant was involved in a card game for money prior to his being shot, and that the shooting resulted from a dispute as to the money wagered in the game. Playing cards for money is an illegal act in violation of the Illinois Criminal Code (Ill. Rev. Stat. 1977, ch. 38, par. 28 — 1). Therefore, the Claimant’s injury was substantially attributable to his wrongful act.

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

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


text:
    (No. 81-CV-0124

      In re Application of John Horvat.

      Order filed October 7, 1981.

    John Horvat, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises out of an incident that occurred on April 18, 1980. John Horvat, father of the minor victim, Stanley Horvat, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

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

1. That on April 18, 1980, the victim was accidentally shot by Mr. James Adams, whom the victim knew. The incident occurred while the victim and his friend were being shown several guns by Mr. Adams in his residence at 1004 Belleview, Rockdale, Illinois. Initially, the victim and Mr. Adams informed police that the victim was shot when the gun fell from the kitchen table and fired. However, during the police investigation, the vietim’s friend stated that the victim was shot while Mr. Adams was demonstrating how to load and unload the guns. As he was unloading one of the guns, it fired and the bullet struck the victim in the stomach. The victim confirmed this account of the incident to the police. The victim was taken to St. Joseph’s Hospital for treatment of his injuries. Mr. Adams was prosecuted and convicted on the charge of reckless conduct.

2. That the person who shot the victim was convicted of one of the violent crimes set forth under section 2(c) of the Act, to wit: reckless conduct (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 5). However, the victim sustained his injury as a result of an accidental shooting. It is not the intent of the Crime Victims Compensation Act to compensate injuries suffered as a result of an accidental shooting.

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

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


text:
    (No. 81-CV-0336

      In re Application of Natalie Smith.

      Order filed September 17, 1981.

    Natalie Smith, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises out of an incident that occurred on August 22, 1981, as a result of which the Claimant seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on October 24, 1980, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on August 22, 1981, the Claimant was allegedly accosted by an unknown offender who tried to sexually assault her. The incident occurred in a parking lot in the rear of the Chug-a-Lug tavern at 40 S. Lake Street, Mundelein, Illinois. The attack was interrupted when the Claimant’s ex-husband came out of the bar and recognized her voice. The Claimant then ran from the offender, fell and allegedly injured her hand. Three days later, on August 25, 1981, the Claimant was treated for injuries sustained as a result of the incident. On August 31, 1981, the Claimant and her former husband went to the Mundelein police station to report the crime. The offender has not been apprehended.

2. That according to section 6.1(c) of the Act a person is entitled to compensation under this Act if the appropriate law enforcement officials were notified of the perpetration of the crime allegedly causing the death or injury to the victim within 72 hours or in the event such notification was made more than 72 hours after the perpetration of the crime, the applicant establishes that such notice was timely under the circumstances.

3. That the Claimant notified law enforcement officials nine days after the perpetration of the crime.

4. That by reason of the Claimant’s failure to establish that such notification nine days after the perpetration of the crime was timely under the circumstances, the Claimant is not eligible for compensation under the Act.

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


text:
    (No. 81-CV-0398

      In re Application of Ralph Peters.

      Order filed July 1, 1981.

    John Tower, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises out of an incident that occurred on March 8, 1979. Ralph Peters, husband of the deceased victim, Myrtle Peters, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

This court has carefully considered the application for benefits submitted on November 7, 1980, on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on March 8, 1979, the victim was pushed to the ground by an unknown offender who took her purse. The incident occurred on the front steps of her home at 710 Whitney Boulevard, Belvidere, Illinois. The victim was taken to St. Joseph’s Hospital where she was treated for a fractured pelvis and multiple bruises that she sustained during the incident. The victim was discharged from the hospital on April 11, 1979.

In July of 1979, the victim began receiving treatment for a condition diagnosed as a pelvic mass. After surgery to remove this mass, a pathological examination revealed it to be adenocarcinoma consistent with recurrent carcinoma of the endometrium, a condition she had previously. The victim received treatment for this condition until her death on February 28, 1980. The cause of death listed on the medical certificate by the victim’s physician, Dr. Earl Davis, was adenocarcinomatosis of the intestine and the approximate interval between onset and death is shown as three months. An additional cause of death is listed as endometrial adenocarcinoma and the interval between onset and death is shown as five months.

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

3. That the Claimant alleges that the victim’s death was the result of the injuries she suffered in the incident. He is seeking compensation for medical/hospital expenses that the victim incurred from the date of the incident until her death. Additionally, he seeks compensation of funeral and burial expenses.

4. That statements from the victim’s treating physicians and the medical certificate of death fail to substantiate that the victim’s carcinoma and death were a result of the injuries she sustained in the incident. Therefore, the Claimant is not eligible for compensation of medical expenses arising from the victim’s carcinoma and her funeral and burial expenses.

5. That although payment by the victim of specific medical expenses related to the original hospitalization might have constituted a compensable expense under the Crime Victims Compensation Act, the subsequent death of the victim renders the claim moot.

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

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


text:
    (No. 81-CV-0453

      In re Application of Maria Anaya.

      Order filed August 10, 1981.

    Charles May, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises out of an incident that occurred on August 20, 1980. Maria Anaya, sister of the deceased victim, Frank Hernandez, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on December 19, 1980, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based on these documents and other evidence submitted to the Court, the Court finds:

.1. That on August 30, 1980, the victim was shot by an offender who was known to him. The incident occurred- on the street at 2219 S. Marshall, Chicago, Illinois. The police investigation revealed that a short time before the shooting, the victim and another person had attacked and severely beaten the offender. Several people intervened to stop this beating and the offender left the scene. The offender returned a short time later, produced a gun and shot both the victim and the other person who had attacked him. The victim was pronounced dead on arrival at St. Anthony’s Hospital. The offender was apprehended, prosecuted on the charge of murder, but found not guilty in a bench trial.

2. That the Claimant seeks compensation for funeral and burial expenses.

3. That section 10.1 of the Act indicates factors used to determine entitlement to compensation. Specifically, section 10.1(d) of the Act states that an award shall be reduced according to the extent to which any prior criminal conviction or conduct of the victim may have directly or indirectly contributed to the injury or death of the victim.

4. That it appears from the investigatory report and the police report that the victim's death was substantially attributable to his beating the offender a short time prior to the shooting.

5. That without addressing the merits of other issues raised in the investigatory report, the victim's conduct contributed to his death to such an extent as to warrant that the Claimant be denied entitlement to compensation.

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


text:
    (No. 81-CV-0518
    In re Application of Johnny Mae Howard.
    Order filed December 14, 1981.
    Order on motion to add additional claimant filed December 14, 1981.
    Johnny Mae Howard and Charles Howard, pro se, for Claimants.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises out of an incident that occurred on February 1, 1980. Johnny Mae Howard and Charles Howard seek compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat, 1979, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on January 8, 1981, on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on February 1, 1980, the victim was shot by an unknown offender~ The incident occurr~d on the street at 7515 S. Ellis, Chicago, Illinois. Prior to the shooting, the victim had been playing cards with several friends in a friend's apartment at 7534 S. Ellis, Chicago, Illinois. One of these friends asked the victim to go to his automobile, which he told the victim was parked on Ellis Street, in order to obtain a check, The victim, however, mistakenly entered another automobile which belonged to the offender. When the offender observed the victim in the process of what he thought was the burglary of his automobile, the offender obtained his gun while his wife called the police to report the incident. The offender then approached the victim and told the victim at gunpoint to exit the offender's automobile and lie on the ground until the arrival of the police. After lying on the ground a few minutes, the victim grabbed at the offender’s leg. The offender then backed away and fired a warning shot which accidentally struck the victim. The victim was pronounced dead on arrival at Jackson Park Hospital. The offender was apprehended and prosecuted on the charge of involuntary manslaughter. However, as the offender had been attempting to protect his property and the shooting in this incident was accidental, the offender was found not guilty of involuntary manslaughter.

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

3. That the offender was prosecuted on the charge of involuntary manslaughter, of which he was found not guilty. That involuntary manslaughter is not one of the violent crimes specifically set forth under section 2(c) of the Act.

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

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

ORDER ON MOTION TO ADD ADDITIONAL CLAIMANT

This cause comes to be heard on the petitioner’s motion to add an additional claimant, and the Court being fully advised in the premises:

It is hereby ordered that the motion to add Charles Howard as an additional claimant in cause No. 81-CV-0518 be and is hereby granted.


text:
    (No. 81-CV-0544

      In re Application of Cathy Ashworth.

      Order filed January 22, 1982.

    James E. Souk, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises out of an incident that occurred on October 27, 1979. Cathy Ashworth, mother of the deceased victim, Cherry Ashworth, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on January 21, 1981, on the form prescribed by the Attorney General and an investigatory report of the Attorney General of Illinois. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on October 27, 1979, the victim was beaten by the boyfriend of the victim’s mother. The incident occurred at 41 Country View Estates, Urbana, Illinois, in the home shared by the victim, her mother and the offender. The victim was taken to Carle Hospital where she expired shortly after admission. Police investigation revealed that the offender had beaten the victim on several occasions prior to the fatal beating. The Claimant indicated to several people that she was aware of these beatings; however, she failed to make any report of these beatings to law enforcement officials. The offender was apprehended and prosecuted on the charge of murder; however, he was found guilty of involuntary manslaughter.

2. That section 3(e) of the Act states that the Claimant is eligible for compensation if the victim and the assailant were not sharing the same household at the time of the crime occurred.

3. That according to section 6.1(e) of the Act, a victim is- entitled to compensation if the yictim is not sharing the same household with the assailant both at the time the notice of intent is filed with the Attorney General’s office and at the time of the final adjudication of the claim.

4. That it appears from the investigatory report that the victim and the assailant were sharing the same household at the time the crime occurred.

5. According to sections 6.1(c) and (d) .of the Act, a person is entitled to compensation under the Act if the appropriate law enforcement officials were notified of the perpetration of the crime and the applicant has cooperated fully with law enforcement officials in the apprehension and prosecution of the assailant.

6. That police investigation revealed that the victim’s death was the result of the last of several beatings administered by the offender. The Claimant indicated to several people that she was aware of such beatings but -failed to make any report of these to law enforcement officials. By reason of her failure to contact law enforcement officials regarding these beatings and the violent pattern . of behavior exhibited by. the offender towards the victim, the Claimant has failed.to comply with sections 6.1(c) and (d) of the Act.

7. That the Claimant has not met' required conditions precedent for compensation under the Act.

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


text:
    (No. 81-CV-0569

      In re Application of Virgil Dragos.

      Order filed December 14, 1981.

    Virgil Dragos, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises out of an incident that occurred on June 17, 1980. Virgil Dragos, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on January 21, 1981, on the form prescribed by the Attorney General and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based on these documents and other evidence submitted to the Court, the Court finds:

1. That on June 17, 1980, the Claimant alleges that an unknown offender entered his apartment and hit him over the head with a bottle during the course of a robbery. Subsequent police investigation revealed that the Claimant had procured a female impersonator, thinking that he was a prostitute. The Claimant then took the individual to his apartment. When the Claimant realized that the offender was a female impersonator, the offender hit him over the head with a bottle and robbed him. The incident occurred in the Claimant’s apartment located at 5900 N. Sheridan Road, Chicago, Illinois. The Claimant was taken to Edgewater Hospital and admitted for treatment. The offender has not been apprehended to date.

2. That the Claimant seeks compensation for loss of earnings.

3. That section 10.1 of the Act indicates factors used to determine entitlement to compensation. Specifically, section 10.1(d) of the Act states that an award shall be reduced according to the extent to which any prior criminal conviction or conduct of the victim may have directly or indirectly contributed to the injury or death of the victim.

4. That it appears from the investigatory report and the police report that the Claimant’s injury was substantially attributable to the unlawful act of soliciting for a prostitute. Soliciting for a prostitute is an illegal act in violation of the Illinois Criminal Code. Ill. Rev. Stat. 1977, ch. 38, par. 28 — 1.

5. That without addressing the merits of other issues raised in the investigatory report, the Claimant’s conduct contributed to his injury to such an extent as to warrant that the Claimant be denied entitlement to compensation.

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


text:
    (No. 81-CV-0901

      In re Application of Gayle Kinder.

      Order filed December 31, 1981.

    Gayle Kinder, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises out of an incident that occurred on November 23, 1980. Gayle Kinder seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

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

1. That on November 23, 1980, the Claimant was the victim of a hit-and-run accident as he was walking on the shoulder of Camp Jackson Highway, Cahokia, Illinois. The Claimant was taken to Memorial Hospital for treatment of a fractured leg. The driver of the vehicle was not apprehended.

2. That the issue presented to the Court is whether an injury incurred as a result of the reckless operation of a motor vehicle, including leaving the scene of the accident, may be the basis for an award under the Act.

3. That in In re Stevens (1976), 31 Ill. Ct. Cl. 610, the Court held: “It is the opinion of this Court that the Illinois General Assembly did not intend to include compensation for non-intentional motor vehicle offenses.”

While a hit-and-run case is. a crime, it is not one of the crimes specifically enumerated in the Act as being the basis of a claim under the Act.

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


text:
    (No. 81-CV-0920

      In re Application of Alice Nance.

      Order filed October 7, 1981.

    Alice Nance, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises out of an incident that occurred on December 29, 1979. Alice Nance, sister of the deceased victim, Floyd Brown, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on May 6, 1981, on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on December 29, 1979, the victim died of smoke inhalation as a result of a fire at his residence at 4530 N. Malden, Chicago, Illinois. The victim was pronounced dead on arrival at Weiss Memorial Hospital. The cause of the victim’s death, as listed on the death certificate, was acute carbon monoxide intoxication. The police investigation was unable to determine the cause of the fire.

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

3. That there was no evidence to prove that the victim died as a result of one of the violent crimes specifically set forth under section 2(c) of the Act.

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

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


text:
    (No. 81-CV-0984

      In re Application of Jane Krill.

      Order filed February 8, 1982.

    Jane Krill, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises out of an incident that occurred on April 18, 1981. Jane Krill seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on May 22, 1981, on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on April 18, 1981, the victim was found lying unconscious in his bed at 111 1/2 North 6th Street, Springfield, Illinois. Mr. Pauley was taken to St: Joseph’s Hospital where he remained in a comatose state until his death on April 23, 1981. The Sangamon County coroner’s office determined that the victim’s death was due to a cerebral hemorrhage causing brain damage combined with severe bronchopneumonia. A coroner’s inquest was held regarding the victim’s death. Testimony at the inquest indicated that the victim’s death was not due to violence; however, the jury ruled the exact nature of his death as undetermined.

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

3. That the victim’s death was not attributable to one of the violent crimes specifically set forth under section 2(c) of the Act.

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

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


text:
    (No. 81-CV-0999

      In re Application of Dorothy Berry.

      Order filed January 11, 1982.

    Dorothy Berry, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of Counsel), for Respondent.
   Roe, C.J.

Upon review of the file, the Court finds that the Claimant is now deceased from causes unrelated to the above-captioned claim, and therefore this claim is moot.

On the Court’s motion, it is hereby ordered that this claim be and is hereby dismissed.


text:
    (No. 81-CV-1024

      In re Application of Edward McClain.

      Order filed September 17, 1981.

    Edward McClain, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises out of an incident that occurred on April 2, 1981. Edward McClain, father of the deceased victim, Charles McClain, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This court has carefully considered the application for benefits submitted on June 10, 1981, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based on these documents and other evidence submitted to the Court, the Court finds:

1. That on April 2, 1981, the victim was shot by an off-duty Chicago police officer after he had burglarized a tavern at 1249 E, 78th Street, Chicago, Illinois. Two off-duty officers were in the tavern when the victim was observed quickly exiting the premises after coming out of a room designated for employees only. The bartender then observed that the room had been burglarized and the two officers gave pursuit to the victim. They eventually observed the victim in an alley behind the tavern. When one of the officers announced his office, the victim produced a gun and fired one shot at the officer. The officer fired several shots at the victim, fatally wounding him. The victim was taken to Jackson Park Hospital where he was pronounced dead on arrival. After an investigation of the incident, the State’s Attorney’s office recommended that no charges be filed against the officer, The Chicago police department classified the incident as justifiable homicide.

2. That the Claimant seeks compensation for funeral expenses only. The Claimant was not dependent upon the victim for support.

3. That section 10.1 of the Act indicates factors used to determine entitlement to compensation. Specifically, section 10.1(d) of the Act states that an award shall be reduced according to the extent to which any prior criminal conviction or conduct of the victim may have directly or indirectly contributed to the injury or death of the victim.

4. That it appears.from the investigatory report .and the police report that the victim’s death was substantially attributable to his involvement in the burglary of the tavern and his attempts to shoot the police officer who was attempting to apprehend him.

5. That without addressing the merits of other issues raised in the investigatory report, the victim’s conduct contributed to his death to such an extent as to warrant that the Claimant be denied entitlement to compensation.

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


text:
    (No. 81-CV-0352

      In re Application of Willa Simpson.

      Order filed February 8, 1982.

    Willa Simpson, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises out of an incident that occurred on June 6, 1981. Willa Simpson, mother of the deceased victim, Michael Simpson, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on October 20, 1981, on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on June 6, 1981, the victim was struck by an automobile as he rode his bicycle eastbound along Washington Street in Gurnee, Illinois. The victim was pronounced dead at the scene. An investigation by the Gurnee police department and an inquest by the Lake County coroner’s office determined that the incident was a hit-and-run accident and that the victim’s death was the result of reckless homicide.

2. The issue presented to the Court is whether an injury incurred as a result of the reckless operation of a motor vehicle, including leaving the scene of the accident, may be the basis for an award under the Act.

3. In In re Stevens (1976), 31 Ill. Ct. Cl. 610, the Court held: “It is the opinion of this Court that the Illinois General Assembly did not intend to include compensation for non-intentional motor vehicle offenses.”

While a hit-and-run case is a crime, it is not one of the crimes specifically enumerated in the Act as being the basis of a claim under the Act.

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


text:
    (No. 74-CC-0530
    Scott Hupka, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 20, 1982.

      Motion for reconsideration denied April 14, 1983.

    Lane & Munday (Jeffrey M. Marks, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Paul M. Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

The Claimant, Scott Hupka, seeks recovery for. personal injuries he sustained while driving his automobile on Caldwell Street in the city of Niles, Cook County, Illinois.

The Claimant testified that on February 25, 1973, he was driving his automobile in a southerly direction on Caldwell Street at or near street number 7686 in the city of Niles, when his automobile struck a wide fissure in the street, causing his automobile to go out of control and off the street and collide with a mound of dirt causing his automobile to overturn, resulting in injuries to the Claimant.

Caldwell Street is a public highway, and the Respondent was responsible for its maintenance.

The highway had been in a defective condition for a considerable length of time before the accident in question occurred.

Respondent did not offer any evidence to contradict the evidence of Claimant.

Claimant offered two exhibits, one from the hospital and the other from the doctor, for the injuries Claimant sustained as a result of the accident.

Respondent, in maintaining said highway, either had actual or constructive notice that this defect was in the highway and should have repaired it.

The law in the State of Illinois is clear. In order for a Claimant in a tort action to recover against the State, he must prove that the State was negligent, that such negligence was the proximate cause of the injúry, and that Claimant was in the exercise of due care and caution for his own safety. McNary v. State, 22 Ill. Ct. Cl. 328.

It is clear in the case at bar, that the Claimant, Scott Hupka, was not guilty of contributory negligence, and it also is clear that the negligence of the Respondent in allowing the wide fissure in the street was the proximate cause of the accident.

There being no contributory negligence on the part of the Claimant, it is the opinion of this Court that an award should be made in the amount of $1,500.00.

Claimant is hereby awarded the sum of $1,500.00.


text:
    (No. 75-CC-0004
    Alice Walker, Special Administratrix of the Estate of William C. Reed, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 16, 1982.

    Law Offices of Joy M. Feinberg (Joy M. Feinberg and Cheryl Weissman, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Paul M. Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This is an action, brought by Alice Walker, special administratrix of the estate of William C. Reed, for personal injuries to decedent William C. Reed to have been the result of negligence of the Illinois Public Health Hospital on July 4, 1973.

Most of the facts of this case are undisputed. On July 1, 1973, Claimant was approximately 76 years of age. He was in good physical condition and lived with his niece, Alice Walker, in Chicago. On July 1, 1973, Claimant left his home to take a walk and was found by a Chicago police officer about 2 1/2 miles from his home. When found, by the officer, Claimant was incoherent, could not remember things and could not give “straight” answers to questions. That evening, he was admitted to the Illinois Public Health Hospital in Chicago. He was diagnosed, at that time, as senile and confused and was placed in the hospital’s geriatric unit on the fifth floor of the building.

On July 2, 1973, Claimant’s niece, Alice Walker, and her husband, John Walker, and her brother-in-law, Lewis Walker, came to the hospital to confer with Margaret Reidy, a social worker employed by the hospital, as to the condition of Claimant. When the elevator doors to the fifth floor opened, they saw Claimant standing in front of the elevator and making motions which expressed an intention to get in the elevator. Claimant did not recognize his niece. Claimant was dressed in street clothes in accordance with hospital policy.

At the conference with Margaret Reidy, Alice Walker told Reidy that Claimant had been standing by the elevators when Alice Walker had arrived. Alice Walker further notified Margaret Reidy that Claimant had wandered away from his home on seven prior occasions in the last week and that Claimant must be watched carefully because he was “quick” for his age and he would get away. Reidy told the Walker family that Claimant would be watched, and Reidy immediately told the charge nurse that Claimant had a tendency to run away.

Upon leaving the fifth floor geriatric unit, the Walker family found Claimant near the elevator again. Alice Walker took her uncle to the nurses’ station and told the nurse that Claimant had been standing in front of the elevators again trying to get out and that Claimant was saying that he wanted to go home. Alice Walker also told the nurse that Claimant needed to be watched constantly because he was swift.

Margaret Reidy noted in her “Coordinator’s Worksheet” that Claimant had a habit of wandering.

At 3:30 p.m. on July 4, 1973, Nurse Chua McCall, who was on duty, noticed Claimant walking toward the elevators saying he wanted to go home. Nurse Chua escorted Claimant from the elevator area and brought him to the bathroom. Fifteen minutes later, Nurse Chua checked on Claimant who was still in the bathroom. At the time, all of the nurses except for one nurse at the nurses’ station were fully occupied feeding the patients. Nurse Chua McCall then noticed the Claimant walk toward the dining room and thereafter did not notice the Claimant.

Within a half hour later, Nurse Chua noted that Claimant was missing. A search was immediately instituted which, one hour later, at 5:30 p.m., resulted in a hospital employee finding Claimant lying on the ground outside the hospital’s east windows. A window on the third floor, east side, was found to be open, and the Venetian blinds of the window were torn. The window had no lock, no bars and no protective screens.

The hospital consists of eight floors. Only the fourth and fifth floors held patients, and those floors were the only floors which had protective bars on all the windows. The third floor was used for some storage but was basically empty. Three elevators serviced the building. On the fifth floor, the elevators could be summoned only by buttons located behind the nurses’ station which was about 20 feet from the elevators. A stairwell door was located next to the elevators. The stairwell had a buzzer which was activated each time the door was opened.

There were no guards or other employees located next to the elevators and stairwell.

Victor Engandella, geriatric program director at the Illinois Public Health Hospital, testified that geriatric patients often mentally wandered in and out of periods of confusion and that physical wandering was a characteristic of geriatric patients. He knew that it was not uncommon for patients to step or attempt to step on the elevator when it opened as visitors or hospital personnel arrived at the fifth floor. He testified that occasionally geriatric patients were found to have wandered off the fifth floor and, on one occasion, had been, able to leave the hospital building.

Frank Brown, Claimant’s expert witness, testified that he had been a hospital administrator for 40 years, including hospitals that had geriatric wards. He testified, in answer to a hypothetical question, that it was foreseeable that a confused geriatric patient with a longing to go home might be able to leave the ward and, further, that the security system of the. hospital was inadequate, relying too much on human control and not enough on mechanization. He testified further that similar facilities in Chicago in 1973 had a much higher degree of mechanized security.

On the issue of liability, from the evidence it is clear that the injury to Claimant was foreseeable to the Respondent. There were repeated warnings to Respondent’s employees that Claimant was “quick” and agile and prone to wandering. Indeed, the very reason Claimant was brought to the hospital was because of his wandering. It was certainly foreseeable that such a person, if not adequately protected, would attempt to escape from the fifth floor.

Respondent argues that it was not foreseeable that Claimant would escape to the third floor and fall out an unlocked window. In the case of Neering v. Illinois Central Railroad Company (1943), 383 Ill. 366, 50 N.E.2d 497, the Court restated the well-known rule that it is not essential for foreseeability that the person charged with negligence should have foreseen the precise injury which resulted from his act.

Thus, in the instant case, it was foreseeable that Claimant would attempt to escape, and such escape by a senile, elderly and sometimes confused person might very well result in his harm or injury to him. It is not necessary for Respondent to have foreseen the exact circumstances of the rendering of such harm for the harm to have been the proximate result of negligence. Respondent was negligent in failing to adequately protect Claimant from his tendencies. 'The fact that Claimant was found by Claimant’s relatives near the elevators on two occasions and returned by the relatives shows that it was not Respondent’s staff who were able to watch and control Claimant but, at least on those occasions, it required the intervention of Claimant’s - relatives to protect Claimant. The nurses on duty near the elevator and near the stairwell doors had numerous other duties to perform at the same time and were obviously unable to notice patients near the elevator doors. The easy 'availability of the elevators to Claimant, under the circumstances of Respondent’s knowledge of his tendencies,' was negligence^

Similarly, the stairwell door was protécte'd only by a buzzer activated by the opening of the door. There was' testimony that at the time, hospital -personnel were required to run after patients down the stairwell after hearing the buzzer. Surely a more efficient security device or a locked stairwell door would have prevented patients from leaving the fifth floor.

It is by compelling circumstantial evidence that this Court concludes that the injury to Claimant was caused by his falling or jumping through the third floor window. The window was open, although it normally should have been closed, the blinds were torn, and Claimant was found beneath the window with severe injuries which could, only have resulted from a fall from a great height. In the opinion of the Court, given the inadequacies of the security system on the fifth floor, Respondent was negligent in not having locks or bars on the third floor into which escapees could be expected to travel.

It is therefore the Court’s opinion that the Respondent failed to use due care in rendering its treatment of Claimant and that Respondent’s negligence was the proximate cause of Claimant’s escape and subsequent injury.

Claimant, when found, was bleeding from his mouth and right leg, through which his bone was protruding. The right leg was amputated in August 1973 as a result of the injury. Claimant also suffered a fracture of his left ankle and a compression fracture to his second lumbar vertebra. He was rendered unable to physically take care of himself and could only move about by crawling. He was crippled in that manner for the remaining three years of his life.

Claimant incurred approximately $8,000.00 in hospital, nursing home and other items of special damage, all of which have been paid by insurance.

The injury to Claimant was extremely severe, but the damages to be awarded must take into consideration the age of Claimant and the amount of time he was required to suffer from said injuries.

Taking the severity of the injuries and the time of the suffering into consideration, Claimant is hereby awarded the sum of $30,000.00.