text:
    (No. 79-CC-0779
    Stanley J. Carroll, Claimant, v. The State of Illinois, Respondent.

      Order filed April 26, 1982.

    Stanley J. Carroll, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This cause coming on to be heard on the motions to dismiss filed by the Respondent, due notice having been given and the Court being advised;

This is a claim by a State employee for back salary, specifically temporary assignment pay. The motion to dismiss states that temporary assignment pay is not covered in either the rules of the Department of Personnel or the pay plan. The claim is made pursuant to Article XV of Collective Bargaining Agreement RC-14, effective July 1, 1977, through June 30, 1979. Said contract was not attached to the complaint, nor was there a statement as to why it was not attached to the complaint as required by the Civil Practice Act. Respondent did not supply the Court with the contract either but did file with the departmental report a copy of the Department’s interpretation of the provision at issue. Although it does not come within the purview of Rule 14 of the Rules of the Court of Claims, we think it should be part of the record.

In pertinent part the interpretation explains as follows:

“Finally, temporary assignment pay is to be granted only for hours worked, and not paid time off. For example, if a Clerk II is receiving temporary assignment pay as a Clerk III, and a holiday falls on his/her regularly scheduled work day, that holiday would be paid the Clerk II’s normal base rate, and not at the Clerk III rate. This would apply also to sick days, vacation time, and other authorized paid days off. However, if that same employee was scheduled to and did work on a holiday during the temporary assignment period as a Clerk III, any subsequent ‘comp day’ used as equivalent holiday time off would be paid at the Clerk III rate. The same approach would be used for compensating compensatory time off earned as a result of overtime in a higher level classification while on a temporary assignment.”

The Claimant was on temporary assignment from a Computer Production Controller I to a Computer Production Controller III while another employee was on leave of absence. Having already been paid at the lower rate for vacation days and personal leave days, he now seeks the difference between the lower rate and the higher rate of the Computer Production Controller III position. In resolving this matter, it appears from the grievance report of the Department of Personnel (submitted as part of the departmental report) that he went through steps Nos. 1, 2, and 3 of the grievance procedure. Then the grievance went to the Department of Personnel, Bureau of Employee and Labor Relations where it was decided to pay one-half of the amount sought by the Claimant “in lieu of arbitration of the subject matter.”

By its first motion to dismiss, Respondent seeks to have the Court deny the claim because it allegedly is improper based upon the interpretive bulletin quoted above. However, it was the same Department of Personnel, Bureau of Employee and Labor Relations which both wrote the interpretive bulletin and decided Claimant should be paid at one-half of what he is seeking. No explanation for its change of position on the issue was offered, except that the decision was arrived at “in lieu of arbitration.” Both the interpretive bulletin and letter notifying the Department of Revenue were under the name of the same person, Peter D. Vallone.

The RC-14 contract, out of which this claim arises, provides for an ultimate decision to be arrived at by final and binding arbitration. As we have previously held, binding arbitration of State employee grievances is illegal. However, the grievance herein did not reach that level. We know of no authority granted to the Bureau of Employee and Labor Relations to make a determination of this type. The rules of the Department of Personnel provide that the director has that authority. Lacking the authority to make such a determination, the decision of the Bureau of Employee and Labor Relations is void.

Therefore, we must turn to the decision at the immediately preceding level which was in accordance with the interpretive bulletin and denied Claimant the relief sought. Therefore we deny this claim.


source: Caselaw Access Project

author: Poch, J.

license: Public Domain

text:
    (No. 79-CC-0797
    Theodore E. Desch, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 24, 1981.

    Theodore E. Desch, pro se, for Claimant.
    William J. Scott, Attorney General (John R. Fanone, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This is an action to recover property damage to Claimant’s automobile.

Claimant asserts that the damage to his automobile was caused by the failure of Respondent to properly maintain the street. Specifically, he alleges that his automobile struck a large hole.

At about 10:00 p.m. on March 3, 1979, Claimant, Theodore E. Desch, was driving west on Lake Street, at or near the 5000 block, in Melrose Park, Illinois. Riding with him as passengers in his 1978 Chevrolet were his wife, Donna Desch, and Mr. and Mrs. John Turner. Claimant testified that he was driving about 20 to 30 miles per hour and it was raining at the time.

When at the location, Claimant stated his automobile struck a large pothole which was filled with water. As a result of hitting the pothole, his right rear tire was blown out. The wheel was irreparably bent and the hubcap on the wheel was lost. After changing the tire, he examined the pothole and found that it appeared to be four feet in diameter and about one foot in depth. He further testified that adjacent to the pothole, there were several flattened and rusty hubcaps which appeared to have been there for some time. His wife, Donna Desch, and his passengers, Mr. and Mrs. John Turner, corroborated his testimony.

Claimant’s total loss was $130.40.

The Court is of the opinion that the State was negligent in allowing the pothole, a dangerous condition, to exist on the highway, and that the State’s negligence was a direct and proximate cause of Claimant’s property damage, and that this dangerous condition existed for a long period of time giving the State constructive notice of said dangerous and defective condition, and that the Claimant was in the exercise of ordinary care and was not guilty of contributory negligence.

Claimant is hereby awarded the sum of one hundred thirty and 40/100 ($130.40) dollars.


author: Roe, C.J.

text:
    (No. 79-CC-0951
    Carl Payne, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 3, 1981.

    Robert P. Schulhof and Associates (Robert P. Schulhof, of counsel), for Claimant.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

Claimant, Carl Payne, owned a home in Carbondale, Illinois, which he leased to a corporation known as “Hillhouse, Inc.” for use as a home for juveniles that had been committed to the care and supervision of the Illinois Department of Corrections.

In mid-1978, certain juveniles that were housed in Payne’s property pursuant to his lease with Hillhouse, Inc., willfully caused severe damage to the house, making it virtually untenantable. It is agreed by all concerned that the damage that was maliciously and wilfully done to the house was in the sum of $8,000.00. Although Payne’s lease was with Hillhouse, Inc., the Department of Corrections repeatedly acknowledged to Payne their intention to pay for the damage he had sustained. After all, all of Payne’s negotiations in connection with the lease of his house were with representatives of the Illinois Department of Corrections, and Payne testified that he assumed he was dealing with a State agency when he signed the lease with Hillhouse, Inc. Payne was mistaken. Hillhouse, Inc., is a private “vendor corporation” that contracts with the Illinois Department of Corrections to provide services and supervision pursuant to Department of Corrections guidelines.

After the Department of Corrections had agreed to pay Payne’s claim, it was discovered that the claim had lapsed and he was directed to file suit in the Court of Claims.

Respondent now takes the position that the only agreement that Mr. Payne entered into was an agreement with a private corporation, to-wit: Hillhouse, Inc., and not with the State of Illinois. Respondent concedes that in the agreement between the Department of Corrections and Hillhouse, Inc., the Department of Corrections agrees to hold Hillhouse, Inc., harmless “for any illegal acts of the wards placed in this home.” Thus, Respondent suggests that this Court is an inappropriate forum for resolution of this dispute at this time and that suit should have been initiated against Hillhouse, Inc., so as to give rise to the obligation of the State of Illinois to hold Hillhouse, Inc., harmless.

We disagree. The record in this case clearly demonstrates that the State of Illinois has deemed itself responsible for this damage and has repeatedly undertaken to pay Payne and to discharge the obligation. All lease contacts with Payne were through representatives of the Illinois Department of Corrections. Standards applied in connection with the use of Payne’s residence were dictated by the Illinois Department of Corrections. Payne unquestionably believed that Hillhouse, Inc., was an arm of the Illinois Department of Corrections. Respondent should not be permitted to “delay” its responsibility on the ground that no formal claim has been made against Hillhouse, Inc., in connection with the damages to Mr. Payne’s property. Respondent also raises the question of whether or not the damage to Payne’s property constituted “any illegal act” within the meaning of the hold harmless arrangement between the Department of Corrections and Hillhouse, Inc. Dealing with this last issue first, it must be observed that there can be no question that the acts of which Mr. Payne complains were “illegal acts” within the meaning of the contract between the Department of Corrections and Hillhouse, Inc. Indeed, the acts constituted the malicious and wanton destruction of Mr. Payne’s property. Therefore, Respondent’s position with respect to the definition of “any illegal acts” must be rejected.

Finally, the record amply supports the position that the Illinois Department of Corrections, through its authorized agents, servants or employees, has fully accepted responsibility to pay the $8,000.00 in damages to Mr. Payne’s house in consideration of Mr. Payne’s forbearance to bring suit against Respondent’s contract vendor. We deem the agreement of the Department of Corrections to pay and discharge this obligation to be binding and supported by consideration in that Mr. Payne did forbear to sue Hillhouse, Inc.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $8,000.00.


text:
    (No. 79-CC-0970
    Brokaw Hospital, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 16, 1982.

    Yoder, Yoder, Zanoni, Flynn, Prall & Willard, for Claimant.
    Tyrone C. Fahner, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This is a claim for services rendered by the Claimant, Brokaw Hospital, a region III-B hospital, to a patient pursuant to a contract with the Illinois Department of Mental Health and Developmental Disabilities (hereinafter the Department) for the fiscal year 1978.

The parties have stipulated to the facts and have submitted the issue to the Court on briefs and stipulated documentation. That evidence shows that a written contract for services was entered into between Claimant and the Department on July 1, 1977. That contract placed a ceiling of $50,000 on the amount to be paid to Claimant during fiscal year 1978. The Department paid $13,276.00 to the Claimant over the contract ceiling for services rendered to patients for fiscal year 1978. There is no dispute that proper services were rendered to patient Winifred Vaighan totaling $2356.00. The claim was denied and this claim was thereafter filed.

The Respondent denies liability on the theory that the claim exceeds the maximum contractual limit of the Department. Claimant responds that the payment of $13,276 over the contract ceiling operates as a waiver of that ceiling, and thus the State should be estopped from denying liability for the $2356.00 claim herein.

From the stipulation of facts, it is undisputed that the claim exceeded the contract ceiling. Further, it is not disputed that there is no authority for the Department to transfer funds from one region to another. There were no unobligated funds remaining to pay the claim.

The 1970 Illinois Constitution, article 8, section 2b, prohibits appropriations from exceeding available funds during any fiscal year. Section 30 of the State Finance Act (Ill. Rev. Stat. 1979, ch. 127, par. 166), prohibits any agency or department or office of this State from contracting to bind the State in any amount in excess of appropriated funds.

The payment of $13,276 over the contract limit does not estop the State from denying liability. State offices may be estopped only by extraordinary circumstances. The payment over the contract limit is not such an extraordinary event. People ex rel. Scott v. Chicago Thoroughbred Enterprises, Inc. (1973), 56 Ill. 2d 210, 220, 306 N.E.2d 7.

The Claimant has not shown any such extraordinary circumstances in the instant case that would allow the doctrine of estoppel applied herein. Furthermore, the Claimant knew or should have been aware that it had received payments in excess of its contractual limit. The Claimant cannot properly invoke the doctrine of estoppel.

This Court has recently held in Memorial Medical Center of Springfield v. State,_Ill. Ct. Cl ._(No. 80-CC-926, Dec. 8, 1981), that an award may not be made where the services which are the subject matter of the claim are in excess of the amount for which the State agency had contracted and where there are no unobligated funds at the end of the fiscal year. The instant facts are identical to Memorial Medical Center, and that decision is controlling. The claim of Brokaw Hospital must therefore be denied.

The claim is denied.


author: Holderman, J.

text:
    (No. 79-CC-1018
    Talandis Construction Corporation and United Pacific Insurance Company, Assignee of Talandis Construction Corporation, Claimants, v. The State of Illinois and Illinois Building Authority, Respondents.

      Opinion filed June 7, 1982.

    Gilmartin, Wisner and Hallenbeck, Ltd., for Claimants.
    Tyrone C. Fahner, Attorney General (Saul R. Wexler, Special Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

On January 24, 1968, Claimant, a general contractor, entered into a contract to erect three buildings for the University of Illinois at Urbana, Illinois.

The largest and most complex building was the Small Animal Clinic. This structure comprised over 91,000 square feet of interior floor area for classrooms, offices, laboratories, and adjunct facilities. The clinic building included one level below the ground, a second story at ground level and a third story. The building was in the form of a cross with the arms of the cross being extended into the four points of the compass as a west wing, north wing, east wing and south wing.

The west wing of the clinic contained the distribution center for heating and air conditioning and a complex electrical control system with large electrical transformers necessary for operation of the equipment. From this control center, in the west wing of the clinic, distribution of electrical service, ventilating, and air conditioning was to be made to the entire clinic building and, by an underground pipe chase, to the hospital.

The second building, the Large Animal Hospital, comprised 25,000 square feet of interior floor area on a first story, with operating room and stalls for large animals, and with a second story hayloft and mechanical equipment room.

The third building was a boiler plant which enclosed 8,800 square feet of interior area for use as a central boiler plant. The boiler plant consisted of a one story and lower level boiler area with the cooling towers on the roof and was designed to be the location of the heating and air conditioning equipment.

Talandis started construction with preliminary site work, grading, and excavation preparatory to the beginning of the concrete work for the footings, columns, and slabs. In late spring or early summer of 1968, the IBA architect orally directed Talandis to stay away from the west wing area pending completion of certain drawings applicable to part of the west wing. The contractor followed these directions, working, in other areas and holding the work in the critical west wing area on the basis of these verbal instructions.

The reason for the change in the west wing was related to the fact that the University, the Illinois Building Authority, and the architect were planning for the eventual construction of an even larger project on adjacent land that was to be known as the Large Animal Clinic. Perkins & Will, the IBA architect, was architect for the Large Animal Clinic. The hold was occasioned by the redesign of the west wing of the Small Animal Clinic so as to accommodate an eventual connection between the Large Animal Clinic and the Small Animal Clinic. The Large Animal Clinic was not part of the construction contract with Talandis.

Pursuant to the instructions of the architect, Talandis stayed away from the critical west wing area until early August 1968. In that month, Talandis insisted on going forward in the held area unless a written hold order was issued. On August 15, 1968, Perkins & Will, the architect on the project, issued a written hold order.

After the issuance of the written hold order, the contractor repeatedly received assurances that the drawings would be released shortly. Acting on these assurances, Talandis proceeded with work in other areas of the job. As it turned out, the hold order was not released until March 31, 1969, seven and one-half months after work was stopped in the west wing.

It is the contention of Claimant that the west wing construction was critical to the work and that the coordination of the job depended upon its completion. Claimant further contends that the failure to release the hold on the west wing, for the extended period, completely disrupted the job, and ultimately Talandis was working with the clinic building erected substantially in areas other than in the west wing, and there was nothing but a hole in the ground at the location of the critical mechanical, electrical and heating distribution center of the west wing.

Claimant alleges that as a result of the breach of contract on the. part of Respondent, including the delays caused by hold orders, it was damaged in the amount of $993,176.60.

Claimant filed a lawsuit in the circuit court of Cook County attempting to recover said sum as damages. The Honorable Judge Emmett Mossissey held hearings covering a period of four months in August, September, October, and November 1975. The transcript of these proceedings comprised some 1,582 pages, of which 1,425 pages were devoted to testimony and the remainder to argument on two separate dates. Forty-nine exhibits were offered by plaintiff, and defendant, Illinois Building Authority, offered 24 exhibits. Many of the exhibits were group exhibits and many exhibits contained multiple pages ranging from 20 to several hundred. The case was extensively briefed for the trial judge and on November 21, 1975, he heard arguments by counsel for both sides.

After additional briefing and argument on the issue of damages on December 9, 1975, Judge Mossissey entered a judgment in favor of Claimant on December 10, 1975, in the amount of $437,841.81.

The Illinois Building Authority appealed to the appellate court and raised the issue as to the jurisdiction of the circuit court of Cook County to hear said case. In the case of People ex rel. Resnik v. Curtis & Davis (1978), 58 Ill. App. 3d 28, 373 N.E.2d 772, a decision was rendered to the effect that a case of this nature should be filed in the Court of Claims. In Talandis Construction Corporation v. Illinois Building Authority (1978), 23 Ill. App. 3d 929, 321 N.E.2d 154, the appellate court entered its opinion to the effect that the Court of Claims had proper jurisdiction in this case and the circuit court of Cook County did not have jurisdiction in cases of this nature. After the petition for leave to appeal was denied by the Illinois Supreme Court, Talandis filed this action in the Court of Claims.

The parties have agreed that the evidence presented before the circuit court of Cook County and the exhibits that were offered by the parties could be taken as evidence in the Court of Claims with thes proviso that both parties, if they so desired, could offer additional evidence.

The record consistently shows that the many delays in construction were caused by Respondent; in fact, one delay on a hold order was for over seven months. This did not include the time the contractor held up construction at the request of Respondent.

It is evident from the record that the construction of the west wing was vital to the continuation of the construction work. There are many causes for the delays — one of them being that Respondent did not have title to some of the property on which the construction work was to be done. This certainly shows a lack of preparation on the part of Respondent. In Warchol Construction Co. v. State of Illinois (1979), 32Ill. Ct. Cl. 679, this Court laid down the rule that delays in performance caused by the State creates a situation where the damaged party, Claimant, is entitled to an award. See also 30 Ill. Ct. Cl. 388.

This Court has previously held that when Respondent causes delays, either by hold orders or mistakes in planning, etc., which result in extra expense and damages to Claimant, then Claimant should be reimbursed.

It is the Court’s opinion that the amount arrived at by the circuit court judge of Cook County, after four months of hearings, is reasonable. The record discloses how this figure was arrived at and while it does not meet the amount requested by Claimant, the Court believes it is a fair and reasonable award for damages incurred.

Claimant also requests interest because of the long delay in receiving payment for work done. This court, in Response v. State of Illinois (1978), 32 Ill. Ct. Cl. 209, 210, held that the State is not liable for interest penalties unless such payment is specifically authorized by statute. There does not seem to be any statute authorizing the payment of interest in this case; therefore the claim for interest is denied. See also Toombs v. State of Illinois (1977), 32 Ill. Ct. Cl. 205.

An award is hereby entered in favor of Claimant in the amount of four hundred thirty seven thousand eight hundred forty one and 81/100 ($437,841.81) dollars.


text:
    (No. 79-CC-1069
    Iowa State Bank, Claimant, v. The State of Illinois, Respondent.

      Order filed November 30, 1981.

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

This claim arises as a result of this Claimant erroneously accepting and cashing for the payee an outdated check which had escheated to the State of Illinois upon the expiration of six months following the original issue date. At the time of escheating to the State, the State warrant became void by operation of law and was no longer a negotiable instrument which could be properly negotiated.

As pointed out by the Respondent, section 10.10 of the State Comptroller Act (Ill. Rev. Stat. 1977, ch. 15, par. 210.10), provides in part that

“Only the person entitled to the original warrant, or his heirs or legal representatives, or a third party to whom it was properly negotiated or the heirs or legal representatives of such party, may request a replacement warrant.”

Inasmuch as the warrant upon its escheating became void and no longer negotiable, there could be no proper negotiation of this warrant to the Claimant. Therefore, it follows that this Claimant is not entitled to request a replacement warrant under this statute.

We therefore hold that this claim must be and the same is hereby dismissed.


text:
    (No. 79-CC-1098
    Tomaza Garza, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 9, 1981.

    Alan C. Mandelson, for Claimant.

      William J. Scott, Attorney General (John R. Fanone, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This is a personal injury action brought pursuant to section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1977, ch. 37, par. 439.8(d)). From the evidence introduced at the hearing it appears that the Claimant, Tomaza Garza, on June 7, 1977, sat in a chair in the waiting room of the Illinois Building, 160 North LaSalle Street, Chicago, Illinois. The chair she sat on separated from the frame and the bucket portion of the chair tumbled with the Claimant onto the floor. Claimant appeared stunned at the time and indicated her head and legs were injured. She was taken to the Polyclinic by an employee of the Industrial Commission. She was treated several times at the clinic for a lump on her head and an injury to her legs. She testified that the black and blue areas on her legs remained for about two weeks. She also testified there was a knot on her left leg slightly above the ankle. Dr. Jeffery D. Feldstein testified that he examined Claimant in January or February of 1980 and that she complained of pain in her left ankle area where a lump had developed. In his examination, Dr. Feldstein found a fluctuant mass about the size of a quarter on the interior tibial surface of Mrs. Garza’s leg about two or three inches above the ankle. The mass is part of the tendon sheath. He found no discoloration. He diagnosed this as a tenosynovial cyst which is usually caused by trauma. The cyst causes discomfort and pain, depending on the amount of activity. Without surgical intervention, the cyst will remain in her leg although it may fluctuate in size. In Dr. Feldstein’s opinion, the cyst could have been caused by the fall from the chair. The condition is permanent.

Dr. Feldstein described possible surgery to remove the cyst. A surgeon would charge $750.00, and a hospital stay of three or four days would be required at a daily charge of $250.00 to $500.00 plus miscellaneous costs. There are risks in the surgery, including death. The resulting incision might be 2.5 inches, and an indentation may be left where the cyst is removed. A surgical scar would be left.

At the time of the hearing, Mrs. Garza was 26 years old and had a life expectancy of 51.3 years.

The Court feels that under the doctrine of res ipsa loquitur the Respondent has been shown guilty of negligence. The presumption of negligence on the part of the State has not been rebutted by the Respondent. It appears from the medical testimony that Claimant has sustained permanent injury to her left leg in the area above the ankle.

Claimant is hereby awarded the sum of twenty five hundred and 00/100 ($2,500.00) dollars.


text:
    (No. 80-CC-0031
    Hedy Freeman, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 17, 1981.

    Steinberg & Burkter, Ltd. (Steven Blum, of counsel), for Claimant.

      Tyrone C. Fahner, Attorney General (Glen Larner, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter comes before the Court for damages suffered by Claimant as a result of injuries received when she tripped over tree roots in a sidewalk in Skokie, Illinois.

The State requested the village of Skokie to remove the tree because some of its limbs were creating a dangerous situation on a State highway directly opposite the scene of the accident. The village refused to take any action and the State then removed the trees when it became imperative to do so to avoid possible accidents on the highway. The tree removal was done approximately three years before Claimant’s accident which occurred on July 18, 1978.

Claimant has recovered the sum of $3,000.00 from the village of Skokie for damages suffered as a result of falling over the tree roots in the sidewalk.

Claimant’s position is that the State, having voluntarily assumed the task of removing the tree, then assumed responsibility for the roots which caused the injuries complained of.

The State relies largely on the following two cases: Pioneer Hi-Bred Corn Co. v. Northern Illinois Gas Co. (1973), 16 Ill. App. 3d 638, 306 N.E.2d 337. This was an action by a corn processing plant against the gas company for damages sustained for a gas explosion.

Plaintiff notified the gas company it was not receiving 45 p.s.i. required to operate his plant. The gas company checked it out and agreed. Defendant’s agents inspected the equipment to determine whether the system could handle the pressure if a bypass of the regulator were used. They concluded the system could stand the increase in pressure if they bypassed the regulator. This was done on September 27, 1967, and gas flowed without the regulator on plaintiff’s property. On October 2, the regulators were put back on but the pressure again decreased so, on October 12, the system was again put on bypass. In the evening of October 12, a hose blew and the explosion occurred causing the fire damaging the plaintiff’s property.

Plaintiff sued on the theory of negligence and breach of implied warranty. The trial court dismissed implied warranty and the case went to the jury on a negligence count. The jury held for defendant. Plaintiff appealed and the appellate court reversed and remanded for new trial on both counts.

The issue of implied warranty was extensively discussed by the court but it is irrelevant to the present case before the Court of Claims.

On the negligence count, plaintiff had alleged improper inspection of the heaters, hoses, appliances and service line.

The court said:

“The general rule is that although a distributor of gas is not ordinarily charged with the duty of inspecting or maintaining privately owned pipes or appliances in the building or on the property of its customers, if it undertakes to inspect pipes and installations on the property of the customer, it will be liable for its negligence in doing so.” 16 Ill. App. 3d 638, 649-50, 306 N.E.2d 337, 346.

Further, the court said:

“Not only is there evidence that knowledgeable employees of the gas company were aware of the problem of needing to supply additional gas, but it is also clear they examined the facilities for the purpose of determining whether the pressure could be increased without damage, and from such examination made recommendations concerning the increase of gas pressure which were relied upon and accepted by the customer. If so, then it may be inferred the gas company, in the exercise of due care in inspecting the Unes and facilities, should have discovered any improper hose clamps and warned the plaintiff of the potential consequences.” 16 Ill. App. 3d 638, 651, 306 N.E.2d 337, 347.

The appellate court reversed and remanded on the grounds of refusal to give an instruction offered by plaintiff and failure to allow to go to the jury on the theory of breach of implied warranty. However, on appeal to the supreme court, that court refused to remand the case for new trial holding the instruction was erroneous and that implied warrant of fitness applied only to goods sold. Here the pipes were not sold by the gas company, it was merely the gas that was sold. However, the supreme court did not quarrel with the general rule of inspection set out in the appellate court’s decision. Pioneer Hi-Bred Corn Co. v. Northern Illinois Gas Co. (1975), 61 Ill. 2d 6.

See also Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, with reference to the duty of using due care in making an inspection.

Thus, a duty may arise where one never existed before, but the issue before this Court is whether the duty to remove a hazard to the traveling public on the highway raised a duty to remove a danger on the pedestrian portion of the highway. This includes the question of whether the State has a duty to remove dangers from the sidewalks adjoining one vehicular portion of a highway or does that duty remain one charged against the city in which the sidewalk is located.

If it had no duty to remove the hazard on the sidewalk before cutting down the tree, none was created by virtue of overcoming the hazard on the vehicular portion of the highway. No one placed reliance on the State’s conduct in removing the tree. A property owner who removes a hazard on his own property has no duty to pursue the hazard on his neighbor’s unless his conduct was such as to mislead an innocent party into believing that he would pursue the hazard beyond his own boundaries. Such is not the case here.

To hold otherwise would require the State in carrying out its duty of removing snow from highways to also be compelled to remove the snow from adjoining sidewalks.

The cases cited by Claimant are not controlling here. The duty undertaken to inspect in a non-negligent manner is not akin to the case before this Court. The State undertook its duty to make the travelled portion of the highway safe for vehicular travel. The duty extended no further. Had the State undertaken voluntarily to remove the roots from the sidewalk, then it would have been compelled to do so in a non-negligent manner.

To carry the theory of the Claimant to its ultimate conclusion, it might be argued the fact that the State, by removing leaves, twigs or branches from the State highway, had assumed control of the entire tree and was therefore responsible for any accidents dealing with the tree. To place the State in that position would mean that in the thousands of miles of State highways throughout the country, cities and villages, an impossible burden would be imposed upon the State and its source of revenue, the taxpayers of the State of Illinois.

It is interesting to note, in this connection, that Claimant took the position that the village of Skokie was responsible when a settlement was made in the amount of $3,000.00 for her injuries.

The Court is of the opinion that the acts required by the State Highway Department in maintaining and keeping the highway safe did not shift the burden of responsibility from the municipality to the State. Attention is called to the Illinois Municipal Code (Ill. Rev. Stat., ch. 24, par. 11— 80—1), which places the responsibility of keeping and maintaining sidewalks upon the municipality in which the sidewalks are located.

It is the Court’s opinion that the act of maintaining the street in a safe condition did not relieve the municipality of that duty nor did it place the burden upon the State.

Award denied. Claim dismissed.


text:
    (No. 80-CC-0055
    Eugene Deffenbaugh, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 13, 1981.

    Reno, O’Byrne & Kepley, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

The Claimant brings this action seeking damages for property damage to his automobile, which was involved in a collision, while being driven by his wife, with a snow plow truck operated by the State of Illinois on December 8, 1978.

Prior to the hearing before a commissioner of this Court the Respondent, State of Illinois, admitted, pursuant to a request to admit facts that on December 8, 1978, an employee of the State, Glenn F. Corbly, was driving a State truck snow plow east on Route 136, near Interstate 57 in Rantoul, Illinois. It was admitted that Corbly was acting in the scope of his employment and while so engaged he was involved in a collision with the Claimant’s automobile, which was being driven by the Claimant’s wife.

An evidentiary hearing was held before commissioner Barnes. The evidence adduced at the hearing showed that the State snow plow and Claimant’s automobile were proceeding in an easterly direction on Route 136, which is a 4-lane highway with a concrete median strip where this incident occurred. Claimant’s automobile, which was driven by his wife, proceeded to attempt to overtake the snow plow in the left-hand lane. The snow plow moved toward the center and then attempted a turn into an exit ramp, which was the wrong way. The snow plow was not engaged in any maintenance work at the time of the accident other than perhaps the reasonable inference of checking the highway for any drifting snow. The snow plow did not give any turn signal and was in the right lane when it began to turn left. The Claimant’s wife tried to brake to avoid the impact. The Claimant’s wife spoke to the plow driver who told her, “I didn’t see you coming. I didn’t think you would pass me that quick.”

The damage to the Claimant’s auto cost $3,695.16 to repair which included the cost of towing the vehicle from the scene.

The State did not offer any evidence in contravention to the Claimant.

The Claimant contends that the Respondent’s employee was negligent in the operation of the plow which was the sole proximate cause of the collision. The State urges that in addition to the Claimant’s wife’s contributory negligence the provisions of section 11 — 205(f) of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95½, par. 11—205(f)), made the operator of the State vehicle immune from liability.

A review of the evidence shows that the Respondent’s driver did not drive within a single lane, that he did not move from one lane without ascertaining that it could be done so with safety and that no signal was given of the intention to do so. These actions are violations of sections 11—709, 11—801, and 11—804 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95½, pars. 11—709, 11—801, 11—804). A violation of the statute is prima facie evidence of negligence which can be rebutted. (Csalany v. Senesac (1968), 91 Ill. App. 2d 241, 234 N.E.2d 72.) This is a question of fact which will be resolved in the Claimant’s favor because the State never offered any evidence to overcome the Claimant’s evidence.

Section 11—205(f) of the Illinois Vehicle Code provides in part that:

“The provisions of the Chapter, ... do not apply to persons, motor vehicles and other equipment while actually engaged in work upon the surface of the highway . . .”

The evidence shows that the driver of the plow did not have the blade down and was not in the process of removing any ice or snow from the highway or salting the surface at the time.

Even if the driver were engaged in work upon the highway, a State employee is held to a standard of ordinary care in the work being performed. (Kloese v. State (1974), 30 Ill. Ct. Cl. 4, 8.) Therefore, Corbly was required to drive in a manner similar to an ordinarily prudent person under the like circumstances. The evidence shows that he did not do so where he failed to keep a lookout for following vehicles. His negligence is the proximate cause of the collision.

The State also alleges that the Claimant’s wife was contributorily negligent. The Claimant states that his wife was in a bailor-bailee relationship and therefore any negligence of her’s would not be imputed to him. (Rains v. State (1965), 25 111. Ct. Cl. 130, 137.) The evidence shows that, regardless of the legal relationship between the Claimant and his wife at the time she drove the car, she was not negligent in the operation of the vehicle. Therefore, the Claimant shall recover for his loss due to the collision.

The evidence is not disputed that the Claimant incurred and paid $3670.16 to repair the vehicle and that he incurred and paid $25.00 for towing charges. Since the amount of damages is not disputed the Claimant shall be awarded the sum of $3695.16.


text:
    (No. 80-CC-0121
    Northwestern Memorial Hospital, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 4, 1982.

    Fohrman, Lurie, Sklar & Cottle, for Claimant.
    Tyrone C. Fahner, Attorney General (Saul R. Wexler, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter comes before the Court upon motion of Respondent for summary judgment and Claimant’s opposition to said motion.

Claimant seeks the sum of $73,962.53 for medical/ hospital services provided to Mr. William Tietz during the period of October 15, 1975, to June 29, 1976. The complaint consists of several counts, each of which alleges a different theory seeking to impose liability upon the Respondent’s Department of Public Aid.

William Tietz was admitted to Claimant’s hospital on October 15, 1975. On November 18, 1975, Claimant submitted an application for medical assistance to Respondent Department of Public Aid in behalf of William Tietz and signed by Tietz’ wife. On January 23, 1976, Respondent sent a written request to Mrs. Tietz for document information in order to determine whether Tietz was eligible for medical assistance; no response was received. On March 22, and on April 12, 1976, further requests were sent by the Department to the applicant; again, there, was no response. On April 12, 1976, Respondent wrote to both the Claimant and applicant to advise that it was unable to act on the application due to the failure of the parties to respond and that the application would be rejected unless a response was received within the next five days. Mrs. Tietz was also advised of the need for her to furnish the requested data.

On May 10, 1976, Respondent formally denied the application for assistance and sent notices thereof to both the Claimant and applicant’s wife.

In Respondent’s decision, Mrs. Tietz was advised she had 60 days within which to appeal the decision; no appeal was filed within this period.

On June 29, 1976, William Tietz died. On September 11, 1976, Mrs. Tietz retained an attorney who wrote to Respondent on September 15, 1976, requesting reconsideration of the Department’s denial of the application for medical assistance.. The Department responded to this request on September 21, 1976, and Mrs. Tietz then filed a formal notice of appeal on November 12, 1976. She set forth as grounds for her delay in filing that she had been emotionally upset and that her previous attorney had failed to pursue her appeals rights. A hearing was held on December 27,1976, and on January 31,1977, a final administrative decision was entered that the Department did not have jurisdiction because of the applicant’s failure to perfect her appeal within 60 days of the original denial.

On June 18, 1976, Claimant filed an action in the circuit court of Cook County requesting that a guardian be appointed for Mr. Tietz and that judgment for its services be entered against him. Respondent was not joined in this action, and there is nothing to indicate that a guardian was, in fact, appointed. Thereafter, Mrs. Tietz filed a petition in bankruptcy scheduling the debt to Claimant as one of the liabilities therein. She was subsequently adjudicated a bankrupt and discharged. Claimant thereafter requested Respondent to reconsider the Tietz’ application for medical assistance. The Department responded that it considered the new application invalid and the matter to be closed.

Claimant, by its action, is seeking a determination from the Court of Claims to be applied retroactively, that William Tietz was eligible for public assistance and that, additionally, Claimant is entitled to be compensated for services provided to Mr. Tietz.

The complaint sets forth five theories upon which it seeks to sustain these propositions. First, it contends that the failure to declare the decedent eligible for medical assistance is a ministerial act only (although it appears that Claimant is requesting this Court to mandamus the Department to perform the “ministerial” act). Second, Claimant is seeking an interpretation that an implied contract existed between it and the Respondent for the services provided. Third, Claimant seeks recovery on the basis of either “quantum meruit” or “unjust enrichment.” Fourth, the applicant was not a “responsible representative” of the applicant and, therefore, her failure to appeal the Department’s decision should be excused. Fifth, based upon the alleged emotional state of Mrs. Tietz, the Department “had a duty to wait in rendering its decision” until a “responsible representative was appointed guard- • » ían.

Both the Claimant and Respondent submitted arguments in support of their respective positions.

The Court is of the opinion that the record is clear in that Mrs. William Tietz was given every opportunity to provide the data necessary to determine whether her husband was eligible for medical assistance. It is equally clear that she failed to submit the necessary information and there is no justifiable or logical reason given for not submitting said evidence.

The Court is also of the opinion that Claimant as a medical provider can have no greater right of recovery than the person through whom it claims ownership of this action — Mrs. Tietz. The failure of Mrs. Tietz to supply the data required by Respondent has enabled the statute of limitations to run.

Section 11 — 13 of the Illinois Public Aid Code (111. Rev. Stat., ch. 23, par. 11 — 13), provides that a vendor must bring suit within one year from the date the cause of action accrues. The case of Landsman & Zaransky v. State, 27 Ill. Ct. Cl. 403, adopts and incorporates the above section of the statute, said statute being section 22(b) of the Court of Claims Act, Ill. Rev. Stat., ch. 37, par. 439.22(b).

The Court is of the opinion that this objection, in itself, is sufficient to sustain Respondent’s motion for summary judgment.

Respondent’s motion for summary judgment is granted.


author: Holderman, J. Holderman, J.

text:
    (No. 80-CC-0122
    David Badal et al, Claimants, v. The State of Illinois, Respondent.

      Order filed May 7, 1981.

      Order on denial of rehearing filed July 31, 1981.

    Leon M. Despres, for Claimants.

      Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter comes before the Court upon Claimant’s motion for summary judgment and Respondent’s opposition to said motion.

There have been a multitude of motions filed by both sides in this cause.

Claimants were employees of the Department of Labor, State of Illinois, when, in June of 1975, the employment security administrator instituted a shortened work week schedule for these class members whereby they would work for four days a week taking one day off without pay. This schedule was to be effective for the month of June only.

There were approximately 1,500 employees affected by the order for the shortened work week. Claimant David Badal was one of six employees who questioned the validity of the shortened work week and was one of those to file a claim.

Claimants rely primarily on the case of Meade v. State (1979), 33 Ill. Ct. Cl. 112. In that case, Claimant exhausted all his remedies before filing his case in the Court of Claims. It is the Court’s opinion that that distinguishes it entirely from the present case where Claimants did not exhaust the remedies available to them at the time of the action complained of by Claimants. It is also a fact that every Claimant had available to him the same grievance procedure utilized by Meade. The failure of Claimant and other interested parties to follow the procedure outlined in the Meade case is not sufficient reason for the Court to make a finding in favor of Claimant.

A review of Meade’s affidavit indicates that he went to great lengths and expense to attempt to right the wrong he felt had been done him. He exhausted his remedies under the department of personnel grievance procedure. He appealed to the Civil Service Commission. He filed a suit in circuit court, albeit for money damages. He filed a claim before this Court. He was dismissed. He petitioned for reconsideration and won. He took his case to trial. He briefed it and won an award.

The Court cites the opinions in case No. 76-CC-1071 and No. 76-CC-1083 and cases therein cited where claims were dismissed for failure to follow the statutory procedures set forth.

It is the Court’s opinion that Claimants have failed to exhaust their remedies as outlined by the statute; therefore all motions heretofore not ruled upon are dismissed as is the claim filed by Claimants.

This cause is dismissed.

ORDER ON DENIAL OF REHEARING

Holderman, J.

This cause coming to be heard on Claimants’ petition for rehearing and Respondent’s response thereto, due notice having been given and this Court being fully advised in the premises:

Finds that Claimants’ petition for rehearing contains no new facts or law which have not been previously submitted and considered by this Court.

It is hereby ordered that Claimants’ petition for rehearing be, and the same hereby is, denied and this Court’s order of May 7, 1981, is hereby affirmed.


text:
    (No. 80-CC-0126
    Divane Bros. Electric Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 16, 1981.

    Daley & George (Emil Peterson, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (William R. Wallin, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This Court finds that this claim sounding in contract is for damages caused by delays and change orders caused by the Respondent. The Claimant and Respondent entered into a contract on July 17, 1977, for electrical work to be done in the State Capitol. The work had to be delayed at various times in order to accommodate the meeting and work of the General Assembly.

The Claimant and Respondent have filed a joint stipulation in which they agree that this claim should be settled for $50,000.00.

Although not obligated to honor this settlement agreement, when such agreement appears to be based on sufficient facts and to be just and reasonable, we may accept it as a basis for an award.

It is hereby ordered that the sum of fifty thousand dollars and no cents ($50,000.00) be awarded to Claimant in full satisfaction of any and all claims presented to the State of Illinois under the above captioned cause.


text:
    (No. 80-CC-0134
    Best Security Service, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed May 13, 1982.

    Collens, Wright, Samuels & Kennedy, for Claimant.
    Tyrone C. Fahner, Attorney General (James M. Hofert, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This cause coming on to be heard on the motion of Respondent to dismiss, the response thereto filed by Claimant, and Respondent’s motion to strike that response, it appearing to the Court that due notice has been given, and the Court being fully advised in the premises;

On July 6, 1980, by order of this Court, the complaint was dismissed on motion of Respondent and Claimant was granted 60 days within which to file an amended complaint. On October 28, 1980, by order of this Court, Claimant’s first amended complaint was filed instanter upon Claimant’s motion. It is that second complaint which is the subject of the motions and objections now before us.

Claimant’s amended complaint contains four counts alleging the following: that Robert Divito, an employee of Respondent, negligently, or in the alternative, wilfully and wantonly, solicited bids and entered into a contract for police and security force services, in violation of section 53 of the Civil Administrative Code and section 63M01 et seq. of the Personnel Code (Ill. Rev. Stat. 1979, ch. 127, pars. 53.7, 63b101 et seq.); that Robert Divito, an employee of Respondent falsely and negligently, or in the alternative, falsely and intentionally, misrepresented his authority to enter into a contract for police and security force services, and then executed the contract in violation of the aforementioned statutes.

Claimant brings this action as a result of a decision by the seventh judicial circuit, Sangamon County, Illinois, entitled Illinois State Employees Association v. Robert Divito, No. 802-78, wherein the court held:

“1. Plaintiff’s Motion for Summary Judgment is allowed.
2. Defendant’s Motion for Summary Judgment is denied.
3. The contracting out of the services that gave rise to this matter is in violation of the State Purchasing Act, Ch. 127, §132.6, and 132.9a Ill.Rev.Stat. 1977, §53.7 of the Civil Administrative Code, Ch. 127, §53.7 Ill.Rev.Stat. 1977 and the defendants are without authority to contract out those services.
4. The Defendants and their deputies, agents, servants, and employees and successors in office be and they are hereby restrained from laying off certified security officers who are currently employed at the Tinley Park Mental Health Center and from contracting out the security function at the Tinley Park Mental Health Center to a private agency.”

Respondent moved to dismiss based on its contention that, as a matter of law, where a State officer acts in violation of a State statute, his conduct is not to be regarded as the conduct of the State nor is any action against him to be considered an action against the State, and therefore Claimant cannot state a cause of action against Respondent, citing Sass v. Kramer (1978), 72 Ill. 2d 485, 301 N.E.2d 975; Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, 101 N.E.2d 71; and Estate of Sitowski v. State (1980), 34 Ill. Ct. Cl. 87.

Basically, Claimant takes the position in its response to the motion to dismiss that Respondent’s position is not the law in this State and cites two instances where awards were made by this Court in cases involving State employees’ negligent conduct in violation of a statute: Proulx v. State (1973), 28 Ill. Ct. Cl. 214, and Womble v. State (1971), 27 Ill. Ct. Cl. 150.

Sass v. Kramer, supra, was a case involving the issue of whether or not the State of Illinois was a defendant in the case where a State officer was a named defendant in his official capacity and the State was the real party in interest. The supreme court drew the following distinction:

“While legal official acts of State officers are in effect acts of the State itself, illegal acts performed by the officers are not, and when a State officer performs illegally or purports to act under an unconstitutional act or under authority which he does not have, a suit may be maintained against the officer and is not an action against the State of Illinois.” Supra, at 492.

In that case the Claimant had filed a two-count complaint asking first that the cloud on his title to a certain tract of land be removed and that title be quieted in him, and secondly, that he be put in possession of the property. A bill had been signed into law providing for the release of the State’s interest in the land to him upon payment of the fair appraised value of that interest. He contended that the act was unconstitutional and that the State officer’s refusal to convey him title because he would not pay the appraisal price authorized maintenance of the action against the officer. The Court found that the gravamen of the plaintiff’s complaint was his contention that title to the property was in him by virtue of the State’s abandonment of its interests in the property. Therefore, the Court concluded that it was necessary for him to prove, and a court to find, that the property interest had in fact been abandoned or vacated by the State before the alleged unconstitutional provision of the act could constitute a cloud on the title and before he would be entitled to possession. The real parties in interest were the People of the State of Illinois, title to whose property was at stake. Thus the Court found that the action could not be maintained in any court except as provided in the Court of Claims Act.

Essentially, the State officer was not a proper defendant in the constitutional courts until it was determined that he was performing illegally or purporting to act under an unconstitutional act and the act in question was not as of then properly found to have been unconstitutional because the circuit court which had done so had to make findings on issues over which it did not have jurisdiction.

In the case at bar Claimant seeks to hold Respondent liable in negligence for certain actions culminating in a contract which a circuit court found to have been in violation of the Purchasing Act and Civil Administrative Code and restrained them from performing the contract. It is essentially the Sass case, supra, in reverse. In the instant case, however, there has been a finding in a court that the State officer was purporting to act under authority he did not have. See item No. 3 of the decree quoted above. Therefore the action is not against the State of Illinois. That Claimant was not made a party to the circuit court action does not change the issue here.

Proulx v. State, supra, and Womble v. State, supra, were cited by Claimant in its response to the motion to dismiss for the proposition that an action in the Court of Claims against the State is permissible on the basis of State employees’ negligent conduct in violation of a statute, which is the basis of two of its four counts alleged in the complaint in the case at bar. In Proulx, the State was held liable in a negligence action where its employee ran a red light and injured plaintiff. In Womble, the State was held liable in a negligence action when it polluted drinking water of the Claimant.

Negligence is the breach of legal duty. It is immaterial whether the. duty is one imposed by the rule of common law requiring the exercise of ordinary care not to injure another, or is imposed by a statute designed for the protection of persons encountering the risk. The only difference is that in the one case the measure of duty is to be determined by common law principles, while in the other the statute fixes it, so that the violation of the statute constitutes conclusive evidence of negligence, or in other words, negligence per se. All that the statute does is establish a fixed standard by which the fact of negligence may be determined. In both Proulx and Womble, supra, the statutes were used to establish a standard of care and the violation of those statutes indicated breach of that standard of care. In neither case did we hold that the State was responsible for acts of its employees, outside the scope of their authority, and in violation of State statutes.

Our supreme court, in the leading case of Davis v. Marathon Oil Co. (1976, 64 Ill. 2d 380, stated that, “Illinois law is clear that ‘the violation of a statute designed for the protection of human life and property is prima facie evidence of negligence. ’ ” (64 Ill. 2d 380, 390, citing Dini v. Naiditch (1960), 20 Ill. 2d 406,417,170 N.E.2d 881, 886.) Also, in Ney v. Yellow Cab (1954), 2 Ill. 2d 74, 117 N.E.2d 74, the supreme court said that violation of a public safety statute is prima facie evidence of negligence. In accord see Barthel v. Illinois Central Gulf Railroad Co. (1978), 74 Ill. 2d 213; Lynch v. Board of Education of Collinsville (1980), 82 Ill. 2d 45; Mooney v. Etheridge (1978), 65 Ill. App. 3d 847; Ding v. Kramer (1978), 59 Ill. App. 3d 1042.

The statutes involved in Proulx and Womble, supra, were designed for the protection of human life and property. The State Purchasing Act and the Civil Administrative Code, the statutes involved in the case at bar, are not those types of statutes. The State Purchasing Act was designed to protect the public coffers. Its stated purpose and the policy of the State was that the principle of competitive bidding and economical procurement practices shall be applicable to all purchases and contracts by and for a State agency. (Ill. Rev. Stat. 1979, ch. 127, par. 132.2.) The Civil Administrative Code was designed to maintain the orderly and functional administration of government. The particular section of the statute which was found to have been violated by the circuit court was Ill. Rev. Stat. 1979, ch. 127, par. 53.7. While this section ostensibly relates to public safety in that it authorizes the director of the Department of Mental Health and Developmental Disabilities to appoint persons to be members of a police and security force for the protection of Department properties, and interests in its personnel, etc., the specific violation of that statute was that the procurement of the members of the security force was by contract with a private entity and not in accordance with the Personnel Code (Ill. Rev. Stat. 1979, ch. 127, par. 63b101 et seq.). The stated purpose of the Personnel Code is to establish for the government of the State of Illinois a system of personnel administration based on merit principles and scientific methods. Clearly these are not the types of statutes from which a standard of due care can be ascertained.

It is hereby ordered that Respondent’s motion to dismiss be, and hereby is,' granted and this cause is dismissed.


text:
    (Nos. 80-CC-0395, 80-CC-0396, 80-CC-0604
    Illinois Bell Telephone Co., Claimant, v. The State of Illinois, Respondent.

      Order filed June 25, 1982.

    Charles G. Hollis, for Claimant.
    Tyrone C. Fahner, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This cause having come on to be heard on the petitions of the Claimant for rehearings on these three claims and the objections thereto filed by the Respondent, due notice having been given, and the Court being advised in the premises;

On November 9, 1981, an opinion was filed granting Respondent’s motion to dismiss these claims. It was based upon the showing that each claim involved instances where the Department overspent its budget. An insufficient amount of monies appropriated for such obligations had lapsed.

As grounds for rehearing Claimant asserted that the Court erred in not finding that there was “express authority of law” to pay these claims. Claimant cited section 55a of the Civil Administrative Code (Ill. Rev. Stat., ch. 127, par. 55a), as such authority. It provides in part as follows:

“§55a. The Department of Law Enforcement shall have the following powers and duties, and those set forth in Sections 55a-l through 55a-6:
6. To (a) acquire and operate one or more radio broadcasting stations in the State to be used for police purposes, (b) operate a statewide communications network to gather and disseminate information for law enforcement agencies, (c) operate an electronic data processing and computer center for the storage and retrieval of data pertaining to criminal activity, (d) undertake such other communication activities as may be required by law.” (Emphasis supplied by Claimants.)

Claimant stated that the telephone services it provided the Department of Law Enforcement are within the purview of the statute and the language of Fergus v. Brady, 277 Ill. 279, the case which recognized the exception. Claimant argues that the Department could not provide the communications network or undertake other communication activities without the telephone services provided by Claimant.

We find that the services provided by Claimant were not expressly required by law. Fergus v. Brady defined “express authority” as that:

“which confers power to do a particular, identical thing set forth and declared exactly, plainly and directly, with well defined limits, and the only exception under which a contract exceeding the amount appropriated for the purpose may be valid is where it is so expressly authorized by law. An express authority is one given in direct terms, definitely and explicitly, and not left to inference or to implication, as distinguished from authority which is general, implied or not directly stated or given.” Supra, 279.

From the bills of particulars filed in these claims we note that the specific services for which payment is sought include: No. 80-CC-0395 — monthly service charges, service order charges, connection charges, premise visit, call director and equipment for the month of June 1978, totalling $120.44; No. 80-CC-0396 — local service on burglar alarm circuit for the months of April, May, and June 1978; and No. 80-CC-0604 — monthly service billing due June 16, 1977, in the amount of $22.50. There is nothing about these types of services which involve any urgency such as the feeding and clothing of prisoners, the example used by the court in Fergus v. Brady. The statute cited by Claimant does not specifically and expressly state that the Department of Law Enforcement had to utilize these ordinary services.

The statute cited by Claimant is not so explicit as to bring the charges which are the subject of this claim within the language of Fergus v. Brady. Said statute is found in the Civil Administrative Code. It is general in nature. Authority for nearly all expenditures of State funds may be found in the Civil Administrative Code. The Code creates various departments of State government. The particular section cited by Claimant sets forth in general the powers and duties of the Department of Law Enforcement. If we were to accept the interpretation urged by Claimant we would in effect be lifting all limits on the expenditure authority of the Department of Law Enforcement in the area of communications. The provisions of our constitution and statutes cited in our previous opinion mandate otherwise. The appropriations process is the means by which the legislature controls the expenditure of State funds. The “express authority” exception is extremely narrow and we must be careful to apply it only to those circumstances clearly falling within the language of Fergus v. Brady.

Claimant’s petition for rehearing is hereby denied.


text:
    (No. 80-CC-0425
    Carl W. Gehrke, Claimant, v. The State of Illinois et al., Respondents.

      Order filed July 15, 1981.

      Order on request to vacate dismissal filed Jan. 11, 1982.

    Shearer, O’Brien, Blood, Agrella & Boose, for Claimant.
    Thomas, Mamer, Haughey & Miller, for Respondents.
   Poch, J.

This cause coming to be heard on the motion of the Respondents to dismiss, due notice being given, the Claimant filing his objections thereto and the Court being fully advised;

Finds that section 22(g) of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.22(g)), requires all actions sounding in tort to be filed within two years “after it first accrues.” An action in tort accrues when the elements, of a cause of action are present. (Austin v. House of Vision (1968), 101 Ill. App. 2d 251, 256, 243 N.E.2d 297.) This action is analogous to a medical malpractice action, where in such an action the cause of action accrues when the person injured learns of the injury or should reasonably have learned of it. Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 37, 262 N.E.2d 450; cf. Ill. Rev. Stat. 1979, ch. 83, par. 22.1, and Roper v. Markle (1978), 59 Ill. App. 3d 706, 375 N.E.2d 934.

In the instant case the Claimant does not refute the verified allegations of the Respondents that the Claimant was notified of the injury to the horse in question on either June 10 or 11, 1977. The only factual response made by Claimant to the motion to dismiss is an affidavit stating that he did not know “the nature and extent of the injury” to the horse until on or about October 23, 1977. The claim was not filed until October 15, 1979. The Claimant has the burden of proving he filed the action within 2 years after the injury or the date he reasonably could have learned of it. (Kielminski v. St. Anthony’s Hospital (1979), 68 Ill. App. 3d 407, 386 N.E.2d 326.) The Claimant’s failure to deny he knew of the injury to the horse on June 10 or 11, 1977, leaves the Court no choice but to find that he knew of the injury then even if he did not know of the nature and extent of it until October 23, 1977.

The failure of the plaintiff to commence his action within 2 years of the accrual of the action is a bar to the action.

It is hereby ordered:

That the motion of the Respondents to dismiss be, and the same is hereby granted and the claim is dismissed with prejudice.

ORDER ON REQUEST TO VACATE DISMISSAL

Poch, J.

This matter was heard on oral argument at the request of Claimant to vacate the dismissal order of July 15, 1981, Respondents having filed its objections to the motion to vacate.

The Court finds that there are no factual or legal reasons to vacate the dismissal order of July 15, 1981.

It is hereby ordered that the petition of Claimant to vacate the dismissal order of July 15, 1981, be and the same is hereby denied.


text:
    (No. 80-CC-0578
    Tina Owens Davis, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 22, 1982.

    Donald G. Zerwer, for Claimant.
    Tyrone C. Fahner, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

On May 25, 1979, Claimant visited her husband at the Stateville Penitentiary where he had been a prisoner for approximately five years. She allegedly tripped and fell as a result of stepping in a small hole, or crack, in the sidewalk. As a result of this fall, Claimant received a cut in her right knee, suffered headaches, and incurred $2,800.00 in medical bills which were paid by Medicare.

For about five years, Claimant had been visiting her husband approximately once a week. She testified she had seen the hole that caused the accident in question many times, and was fully aware of its existence prior to the day of the accident.

On the day in question, it was a light, dry morning with the sidewalks in a normal and dry condition and not slippery. Claimant evidently forgot about the hole in the sidewalk and she fell, causing the injury complained of. No stitches were necessary and the scar was very small. Claimant was 66 years of age and she did not lose any time from work.

An employee of Stateville Penitentiary testified that when it was necessary that Claimant sign in to visit her husband, she could not see well enough, so an employee of the institution always signed in for her.

We have here a case in which the defect in the sidewalk, which evidently had existed for several years, was well known to the Claimant who had seen it many times but nevertheless fell as a result of stepping into said hole.

The supreme court of the State of Illinois has adopted the rule of comparative negligence which the Court believes should be the deciding factor in this case.

The record shows the State was negligent in permitting the hole to exist and Claimant was guilty of contributory negligence by being well aware of the location and condition of the crack, or hole.

The Court believes the negligence factor is as follows:

1. State 10%

2. Claimant 90%

Award is hereby granted in favor of Claimant in the amount of $400.00.


text:
    (No. 80-CC-0752
    Albert Gammons, Claimant, v. The State of Illinois, Respondents

      Opinion filed July 10, 1981.

    Albert Gammons, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain was possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State of Illinois is liable as a bailee for the return of that property. This Court has held in Doubling v. State (1976), 32 Ill. Ct. Cl. 1, that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property, as during the course of the transfer of an inmate between penal institutions, or when the institution receipts for property.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and voluntary bailments have been recognized: “A constructive bailment can be created between an owner of the property and one in possession thereof.” (Chesterfield Sewer and Water, Inc. v. Citizens Insurance Company of New Jersey, 57 Ill. App. 2d 90, 207 N.E.2d 84.) In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301,13 So.2d 172,174, as follows:

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence. Bell v. State of Illinois (1978), 32 Ill. Ct. Cl. 664; Bargas v. State (1976), 32 Ill. Ct. Cl. 99; Romero v. State of Illinois (1978), 32 Ill. Ct. Cl. 631.

The Claimant in this case is seeking compensation for the loss of 20 record albums which were confiscated during a general shakedown of the institution on October 3, 1978. His bill of particulars attached to the complaint contains a copy of a receipt he was given indicating that 20 albums were in fact confiscated.

Claimant alleges that he had been informed that the institution would hold the confiscated items for him. In April of the following year he was transferred. At that time he inquired as to the whereabouts of the albums and was informed that they had disappeared and there was no record of them.

The grounds for the confiscation appear to be that Claimant had more albums in his possession than he was allowed. The Department of Corrections issues administrative regulations regarding this subject. At the time of the alleged incident, administrative regulation No. 871, dated February 1, 1977 (since superceded effective December 14, 1979), was in effect. This provides that a resident may have a maximum of 12 records in his possession in the cell. Also in effect was administrative regulation No. 401, dated March 1, 1976. On the subject of excess authorized personal property it states at paragraph H on page 5, that such property, if confiscated as contraband, is to be disposed of in accordance with paragraph K of said regulation. Paragraph K reads as follows:

“K. Disposal of Authorized Personal Property Confiscated as Contraband 1. Such items of personal property shall not be stored at the institution but shall be shipped at institution expense or made available for pick-up at a regular visit to an individual of the free community as designated by the resident (family or friends other than a department employee, unless an immediate family member). If the items are made available to a designated individual at a regular visit, appropriate identification must be presented and a receipt obtained which includes a description and I.D. number of the items signed for by the receiving party. The receipt shall be maintained in the resident’s master file.
2. Exceptions may be made only in the case of a resident who has no known family or friends: safe storage must then be provided.
3. Items shall be shipped in the most economical but safe manner to protect the property. A record of items shipped, signed by the resident and a responsible employee, shall be maintained in the master file, along with any shipping documents. The institution should insure, for the recognized value, the contents of such shipments of confiscated authorized personal property.
4. If the resident indicated his intent to grieve (AR 845) the confiscation of the excess authorized personal property, such property shall be secured at the institution until the grievance procedure is completed.”

Respondent’s position appears to be that because the records were contraband the State is under no duty to preserve or protect the property. This position is in conflict with the State’s own regulations. We find that the State did have such a duty and should be held to the standards contained in its regulations.

The record in this cause therefore establishes a prima facie case of a bailment, the effect of which is to shift the burden to Respondent to establish it exercised due care. The Respondent failed to meet this burden.

Claimant seeks $119.80 in compensation for his loss. That amount was arrived at by estimating the value of each album to be $5.99. Taking into consideration the weight of the evidence as to the value of the loss, we find that $100.00 represents a fair amount of damages. It is hereby ordered that Claimant be, and hereby is, awarded the sum of $100.00 (one hundred dollars and no cents) in full satisfaction of this claim.


author: Roe, C. J.

text:
    (No. 80-CC-0763
    A. B. Raymond Conley, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 25, 1982.

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

This claim was filed to collect a settlement reached prior to a hearing before the Fair Employment Practices Commission. Pursuant to our order of February 17, 1981, it was assigned to commissioner Robert J. Hillebrand for the purposes of holding a hearing and making a recommendation to the Court. Following the hearing, oral argument was held before the full Court.

Claimant, Raymond Conley, is a black male who was employed with the Illinois Department of Administrative Services. He had secured this employment through the Comprehensive Employment Training Act of 1973 (CETA). As a result of certain alleged discrimination practices which occurred on September 9, 1977, Claimant made a written complaint on September 15, 1977, to the Sangamon County Consortium, which was the local agency administering CETA in the Springfield, Illinois, area. Subsequently, notice of this was sent to Claimant’s employer, the Illinois Department of Administrative Services, and an informal hearing was conducted in an effort to resolve the complaint. This effort apparently was unsuccessful.

On October 4, 1977, Claimant went to the Springfield office of the Fair Employment Practices Commission (FEPC) in order to file a formal charge of racial discrimination against the Department. The only document prepared at that time was a complainant information sheet. It was dated October 4, 1977. It contains Claimant’s name and address, the full name of Claimant’s employer and its Springfield address, the fact that Department discharged Claimant, the date of the act of alleged discrimination (September 9, 1977), and a short narrative of what occurred to lead Claimant to conclude he had been the victim of discrimination. It also contained the name of a witness to the alleged discrimination and other statistical information. It was prepared by an FEPC investigator from information he received from Claimant.

On May 3, 1978, Claimant signed a document formally prepared by the FEPC and entitled “Charge of Discrimination”. This contains much of the factual material from the complainant information sheet and was sworn to by Claimant under oath. It contains the notations “Filed 10-4-77” and “Docketed 5-4-78”. The reason for these notations is that administratively the FEPC considered the date of filing the charge to have been the date the complainant gave the factual information to the investigator.

Subsequently, after prehearing procedures, attorneys representing the Department and the attorney for Claimant reached a settlement which was formally presented to the FEPC administrative law judge. An order was entered September 21, 1979, by the law judge approving the settlement and recommending the FEPC dismiss its complaint “subject to its right to monitor and investigate to determine that the terms (of the settlement) are complied with”. There was no evidence presented as to what further action was taken by the FEPC. The Department at no time during the proceedings raised any objections as to the timeliness of any filings, nor has appeal been taken from the recommended order of the FEPC law judge.

The settlement terms provided that the Department pay Claimant $3,000.00 in consideration of Claimant’s releasing the Department and its personnel from any and all liability to Claimant on account of the alleged discrimination. The settlement agreement was executed September 19, 1979.

On November 26, 1979, complainant filed his complaint before the Court of Claims to seek a judgment for the settlement amount. Respondent filed a motion to dismiss on the grounds that the charge of discrimination for an unfair employment practice was not filed with the FEPC within the statutory limitation period. Petitioner has raised the issues of waiver or of estoppel as to Respondent’s defense. A hearing was ordered by the Court on the issues raised by the motion and petitioner’s reply. There is no dispute as to the facts.

At the time of the alleged unfair employment practice, the relevant statute was section 8(a) of the Fair Employment Practices Act. It provided:

“Whenever within 120 days after the date that an unfair employment practice allegedly has been committed, a charge in writing under oath or affirmation is filed with the (FEPC) by a complainant and in such detail as to substantially apprise any party properly concerned as to the time, place and facts with respect to such alleged unfair employment practice, that any employer . . . hereinafter referred to as a respondent, has committed such unfair employment practice, the (FEPC) shall promptly serve a copy of the charge or summary thereof on the respondent and thereafter shall institute an investigation by its employees to ascertain the facts relating to such alleged unfair employment practice.” Ill. Rev. Stat. 1977, ch. 48, par. 8.58(a).

Respondent’s defense is based upon petitioner’s alleged failure to file his “charge in writing under oath or affirmation” within 120 days of the alleged unfair employment practice. Petitioner, by way of reply, argues that Respondent either has waived this defense by failing to raise it in the proceedings before the FEPC or is estopped from now raising it by negotiating with petitioner and in fact actually entering into a final written settlement whereby petitioner has released all of his rights to seek any relief for the alleged discrimination. In order to decide this issue, we must first determine the nature of the 120-day time limitation in subparagraph (a) of section 8 of this Act.

Petitioner argues that the 120-day period is a statute of limitations and as such may be waived by the parties or, alternatively, Respondent may be estopped from raising it as a defense. Both parties have cited a series of cases which rely upon the ruling by the supreme court in Springfield-Sangamon County Regional Plan Commission v. FEPC (1978), 71 Ill.2d 61, 373 N.E.2d 1307. This, however, is inapposite because the limitation issue before the Court in that case was the time defined in sub-paragraph (c) of section 8 (Ill. Rev. Stat. 1979, ch. 48, par. 858(c)), which mandates the filing of a complaint against the employer within 180 days after the filing of the charge. Neither party has raised any issue about the timeliness of the complaint.

Research has not disclosed any reviewing court’s decision precisely on whether the 120-day limitation in section 8(a) is to be construed as a statute of limitations. In Montgomery Ward v. FEPC (1977), 49 Ill. App. 3d 796, 365 N.E.2d 535, there is reference to it as a statute of limitations. However, strictly defining it as a statute of limitations was not necessary to the decision therein, and such reference is used as a convenient description and not as a precise legal definition.

The general rule is that a statute which creates a right not existing under common law and which restricts the time within which a party may avail himself of such right is not a statute of limitations. Rather, the time element is an integral part of the enactment of the right and is a prerequisite to the acquisition of subject matter jurisdiction by the tribunal. (Smith v. Toman (1938), 368 Ill. 414,14 N.E.2d 478; Wilson v. Tromly (1949), 337 Ill. App. 403, 84 N.E.2d 177.) While this principle has been applied by Illinois courts of review to those legislatively created rights which are the basis for such tort liability as that in the Dramshop Act (Ill. Rev. Stat. 1979, ch. 43, par. 135), the same rationale applies to any right newly created the remedy for which is to be pursued through an administrative procedure. Section 1 of the Fair Employment Practices Act (Ill. Rev. Stat. 1977, ch. 48, par. 851) declared it to be the public policy of this State that racial discrimination in employment should be eliminated, and a new right was thereby created.

Since the 120-day limitation is a limitation on the jurisdiction of the FEPC to decide the issues — that is, a limitation on its subject matter jurisdiction — such jurisdiction may be acquired only by virtue of statute and cannot be waived (Smith v. Herdlicka (1926), 323 Ill. 585, 154 N.E. 414), nor can it be conferred on a court by the parties, nor is a lack of such jurisdiction waived by the presence of a party in the proceedings without objection. (Application of County Collector (1977), 48 Ill. App. 3d 572, 362 N.E.2d 1335.) The same rules are applicable to administrative proceedings. (City of West Frankfort v. Industrial Com. (1950), 406 Ill. 452, 94 N.E.2d 413; Beam v. Erven (1971), 133 Ill. App. 2d 193, 272 N.E.2d 685.) Moreover, lack of jurisdiction over the subject matter may be raised at any time, by direct or by collateral attack. (Gocheff v. State Community College of E. St. Louis (1979), 69 Ill. App. 3d 178, 386 N.E.2d 1141; Lebanon Trust & Savings Bank v. Ray (1973), 10 Ill. App. 3d 345, 293 N.E.2d 623.) Since Respondent has properly objected to the jurisdiction of the FEPC to hear this matter, this Court can and should consider such objection.

Section 8(a) of the Act requires that a charge be filed within 120 days and that such charge be “in writing, under oath or affirmation” and that it be “in such detail as to substantially apprise any party properly concerned as to time, place, and facts with respect to” an alleged unfair employment practice. The statute therefore establishes four filing requirements — (1) it must be in writing; (2) it must be filed within 120 days; (3) it must be under oath or affirmation; and (4) it must be in such detail as to substantially apprise a concerned party as to time, place and facts. The fulfillment of each of these requirements, however, is not necessary for the conferring of subject matter jurisdiction on the FEPC. The complainant information sheet filed with the FEPC on October 4,1977, filled out by the investigator for the FEPC during his interview with Claimant, fulfills all except the third one.

The third requirement, under oath or affirmation, is not such a requirement as is needed to confer subject matter jurisdiction in the context of the events as they occurred in this case. The purpose of the requirement is to subject the party making the complaint to prosecution for perjury in case the matter sworn to proves to be false. (Rutledge v. Dept. of Registration & Education (1966), 77 Ill. App. 2d 103, 222 N.E.2d 195.) The formal charge finally signed by the Claimant on May 3, 1978, is sworn to, and the purpose was thus fulfilled. There is no rational connection between the 120-day requirement and the sworn complaint requirement that would mandate that the charge and the verification under oath both be made within 120 days. This is supported by the fact that the statute does not require that a copy of the sworn charge be served upon the employer. It mandates the FEPC to “promptly serve a copy of the charge or summary thereof” on the employer after the initial filing. It is therefore obvious that the legislature intended that at some point in the proceedings a sworn charge be on record with the FEPC, and this intent was satisfied on May 3, 1978.

The motion to dismiss filed by the Respondent is therefore denied. Judgment is entered for Claimant and his attorney (pursuant to the settlement) and against Respondent for $3,000.00. Attorneys fees and costs are denied.

      We note that section 706(e) of Title VII of the Civil Rights Act of 1964 (42 U.S.C. sec. 2000e — 5(e)) also provides for the filing of a charge with the applicable Federal administrative agency within 180 days after the alleged wrongful employment practice has occurred. The Federal statutory scheme is somewhat different from that of Illinois in that the administrative agency has no authority to enforce any decision it renders; rather, if administrative action fails to result in a voluntary settlement of the dispute, the complainant may then initiate suit in the Federal court, which results in a trial de novo. However, the Federal courts have held that filing the initial charge in a timely fashion with the Federal agency is a jurisdictional prerequisite to bringing the action for relief in court. Archie v. Chicago Truck Drivers (CCA7 1978), 585 F.2d 210, Patterson v. General Motors Corp. (CCA7 1980), 631 F.2d 476, Alexander v. Gardner-Denver Co. (1974), 415 U.S. 36, 94 S. Ct. 1011, Guy v. Robbins & Meyers, Inc. (CCA6 1975), 525 F.2d 124, Charles v. National Tea Co. (W.D. La. 1980), 448 F.Supp. 270, Domingo v. New England Fish Co. (W.D Wash. 1977), 445 F.Supp. 421, Gray v. International Tel. & Tel. Corp. (E.D. Mo. 1977), 428 F.Supp. 199, Strozier v. General Motors Corp. (N.D. Ga. 1977), 442 F.Supp. 475.


text:
    (No. 80-CC-0849
    Sandra Lee Durgom, Claimant, v. The State of Illinois, Respondent

      Order filed January 22, 1982.

    Sandra Lee Durgom, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Andrew R. Jarett, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim comes before the Court on an agreed statement of facts. Claimant seeks to recover the sum of $1,167.89 from the Respondent for moving expenses.

The essential facts are not in dispute. In 1978 Claimant worked for the Department of Personnel in Springfield, Illinois. In July and August 1978, Claimant met with the following officials of the Department of Registration and Education to consider an inter-agency promotion and relocation to Chicago, Illinois: Steve Perrigo, assistant to the director of Registration and Education, Jay T. Downen, superintendent of the Department, and Marion J. Valle, commissioner of real estate with the Department. These three officials of the Department of Registration and Education told Claimant that she would be reimbursed for her moving expenses if she transferred to the Department of Registration and Education and relocated in Chicago, Illinois.

Claimant accepted the position, relocated in the Chicago area and incurred moving expenses in the amount of $1,167.89 which she paid.

Thereafter the Department of Registration and Education denied Claimant’s request for reimbursement.

Claimant at no time was informed by the three officials with whom she dealt that in order for her to be reimbursed, she must have the prior written approval of the Director of the Department of Registration and Education.

The Court finds that Claimant had the right to rely upon the apparent authority of the three officials of the Department of Registration and Education to bind the State of Illinois and to assume that they were acting within the scope of their authority when they orally represented to her that she would be reimbursed for her moving expenses.

Claimant is therefore awarded the sum of $1,167.89.


text:
    (No. 80-CC-0908
    Patricia R. Deganutti, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 19, 1982.

    Thomas R. O’Bryan, for Claimant.
    Tyrone C. Fahner, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This matter comes before the Court on the joint stipulation of the parties, which states as follows:

1. That the instant claim seeks to recover for damage to Claimant’s automobile sustained on December 9, 1978, on the Eisenhower Expressway near its junction with Mannheim Road.

2. That on said date at said location, Claimant’s automobile struck a large pothole in the right-hand westbound lane.

3. That the impact caused damage to the rear axle of Claimant’s vehicle.

4. That at the time and place in question, Claimant was in the exercise of due care for the safety of herself and her vehicle.

5. That Respondent concedes liability for the existence of the pothole and the damages sustained in the amount of $250.00.

6. That there are no disputéd questions of fact.

7. That both parties waive hearing and the submission of briefs.

8. That no other evidence, oral or written, will be submitted to the Court.

9. That an award of $250.00 will constitute full and final satisfaction, of the instant claim and any other claim arising out of the same occurrence. Although the Court is not bound by a stipulation such as this, it is also not desirous of interposing a controversy where none appears to exist. As long as the stipulation appears reasonable and fair, we see no reason to question its validity or to force the parties to take the time and expense of proving facts which are not in dispute.

We find the stipulated facts to be sufficient to sustain a finding of liability on the part of Respondent and an award in the agreed amount.

Claimant is hereby awarded the amount of $250.00 (two hundred fifty dollars and no cents).


text:
    (No. 80-CC-0909
    Paul A. Reichs and Kathleen J. Reichs, Claimants, v. The State of Illinois, Respondent.

      Opinion filed July 24, 1981.

    Greene, Jones & Brisske, for Claimants.
    Tyrone C. Fahner, Attorney General (Glen P. Earner, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim comes before the Court on a joint stipulation signed by the parties. The joint stipulation states as follows:

1. That the instant claim arose from an automobile accident on December 10, 1977, at Roosevelt Road near Nichol Way in the village of Glen Ellyn.

2. That Claimant Kathleen J. Reichs was a passenger in a 1977 Chevrolet being driven by Paul A. Reichs at the time and place in question.

3. That on the date in question, the roadway was covered with ice and snow, which obstructed all lane markings from view.

4. That the road shoulder to the right of Claimants’ lane was in considerable disrepair and contained several long and deep ruts.

5. That Claimant was forced to move onto the defective shoulder by another automobile passing closely on the left.

6. That the accumulation of snow and ice prevented Claimant from seeing that he was moving onto the shoulder and prevented him from observing the defective condition of the shoulder.

7. That upon entering the shoulder, Claimant lost control of his vehicle and was caused to collide with another automobile.

8. That recovery is sought for damage to Claimants’ automobile and for personal injuries received by Kathleen J. Reichs.

9. That Respondent concedes that it was negligent in failing to maintain the shoulder in a reasonable manner, and that its negligence was the proximate cause of the accident.

10. That both parties agree that an award of $4,000.00 would be a fair and reasonable compensation for both the property damage and personal injuries.

11. That Claimants agree to accept an award of $4,000.00 as full and final satisfaction of their claim, and agree that they will satisfy the subrogation rights of their insurance carrier (U.S.A.A. Insurance Co.) out of said award.

12. That both Claimants waive and relinquish any and all future claims against the State arising out this accident, and hereby release the State from further liability for said accident.

13. That both parties waive hearing and the submission of briefs.

14. That no other evidence will be presented to the Court.

Although the Court is not obligated to accept a stipulation such as this and grant an agreed award, it does not lack authority to do so if the terms of the stipulation appear to be fair and reasonable. It also has no desire to interpose a controversy between parties where none exists.

The recitation of agreed-upon facts in the above stipulation is reasonably thorough and affords a basis for granting an award based upon the negligence of the Respondent. The Court sees no grounds for questioning the accuracy of the above facts or the reasonableness of the agreed damages. Since both parties have had ample time to investigate the incident, conduct discovery, and analyze their respective positions, we assume that the stipulation was entered into intelligently and with full knowledge of the facts and applicable law. We therefore accept the stipulation and approve the agreed award.

Claimants Paul A. Reichs and Kathleen J. Reichs are hereby awarded the sum of $4,000.00 (four thousand dollars and no cents) in full and final satisfaction of the instant claim.