author: Holderman, J. Roe, C.J. Montana, C.J.

text:
    (No. 80-CC-2081
    Dianna Dyer, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 14, 1982.

      Opinion filed July 14, 1983.

      Order on motion to dismiss filed May 12, 1988.

    Nancy J. Anderson and Davis, Miner, Barnhill & Galland, for Claimant.
    Neil F. Hartigan and Tyrone C. Fahner, Attorneys General (William R. Wallin and William P. King, Jr., Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Holderman, J.

This matter comes before the Court upon Claimant’s motion for reconsideration of an order of dismissal dated September 30,1981, and Respondent’s response to Claimant’s motion, dated December 31, 1981.

This case is similar to a great many cases involving the same question. In the present case, the complaint was filed on May 23, 1980, in which Claimant alleged that she was entitled to the sum of $145.00 for services rendered while working with the Department of Public Aid.

On October 30,1980, Respondent filed its motion to dismiss setting forth that the dismissal motion was brought pursuant to Ill. Rev. Stat. 1979, ch. 110, par. 48i. Said motion also sets forth that Claimant’s claim arises from the provisions of AFSCME Collective Bargaining Agreement RC-14-OCB entered into by the union and the Department of Corrections and various other departments of the State of Illinois, and that Claimant filed a grievance pursuant to the procedure set forth in the bargaining agreement which was settled at step 4 of that procedure.

Respondent’s motion further sets forth that step 4 of the grievance procedure within the collective bargaining agreement provides for compulsory arbitration which effectively divests the Director of Personnel of the ultimate authority to adjudicate employee grievances, and that section 8c of the Personnel Code (Ill. Rev. Stat. 1979, ch. 127, par. 63bl08c) proscribes the Director of Personnel from entering into agreements calling for compulsory arbitration.

Pursuant to Respondent filing its motion to dismiss, the Court dismissed this cause on September 30,1981.

Claimant filed a motion for reconsideration and, on August 20, 1981, Respondent received an affidavit in which Director Louis J. Giordano, Department of Personnel, stated that upon reviewing the facts in this case, he adopts the resolution of this grievance as his own decision. This affidavit states as follows:

“I, Louis J. Giordano, being first duly sworn on oath depose and say as follows:

1. That I am the Director of the Department of Personnel.

2. That in my capacity, I am familiar with the Personnel Code, Rules of the Department of Personnel, Pay Plan and collective bargaining agreements.

3. That pursuant to the powers granted the Director, certain collective bargaining agreements have been entered into on behalf of the State of Illinois, specifically RC-14, which is the subject of the current claim.

4. The contract provides at Article V, Section 2 for the creation and operation of a formalized grievance procedure to resolve contract disputes between the employer and the employee.

5. That the claim of the employee was processed pursuant to this contractual grievance procedure and was determined to be due under the terms of the contract.

6. I have reviewed the grievance and its resolution and have determined that the resolution is one I would have reached and therefore, exercising my discretion as authorized by the Personnel Code, I concur with the result and adopt the resolution of this grievance as my own.”

The question before this Court in this case and many similar cases is whether the procedure adopted is one within the power of the Director of Personnel or whether it is illegal.

It is the Court’s opinion that the Director of Personnel’s position was created by statute and his powers and duties are therefore limited to the statute creating said office.

Grievance procedures under the rules and under the union contract are set forth as follows:

A reference to the rules of the Department of Personnel and the agreements with AFSCME reveals the following summary of provisions relating to the grievance procedure to be followed under the rules and under the contract.

1967 Rules. Grievance is to be filed, within five days after the employee learns of it, with his immediate supervisor who must act within five days. If he does not, then the employee goes to the “next-higher supervisor.” Then if not resolved in five days, he goes to the agency head within 10 days after submitting to “his next-higher supervisor.” After that, if not resolved within 20 days he submits it to the Director of Personnel “for review and final determination.”

The Director shall appoint 15 employees to comprise a grievance committee panel to make “recommendations to the Director for resolution * * The Director “shall” approve, disapprove or modify the recommendations and render a decision which shall be final.

An employee’s failure to act within the time limits shall be construed an abandonment of his right to proceed further unless the time limits are extended by mutual agreement.

1977 Rules. Step 1 has the same time limit — five days. Step 2 provides for going to the “next-higher supervisor” within five days after notification of the supervisor’s decision. The next step (called level 3) is to go to the Director within five days after receiving the decision at level 2.

The rules provide that the Director may review the matter on its face or cause a hearing. After review, the Director releases his decision which is final. (Note: No reference is made to a grievance panel as set forth in the 1967 rules.)

The 1977 rules provide that failure to meet the time limits shall resolve the matter in favor of the other unless it is mutually agreed to extend the time limits.

1978 Rules. They are similar to the 1967 rules but provide the Director shall appoint 25 employees to comprise the grievance panel for recommendation. They also provide that failure to meet the time limits shall mean the employee has withdrawn his grievance or has accepted the last decision made on the grievance if he so indicates.

A new step was inserted to provide for going from the “next-higher supervisor” at step 2. He next shall go (step 3) to the head of the operating agency and then to the Director who appoints a 25-member grievance panel for recommendation.

1980 Rules. They have much the same procedure as the 1978 rules, again providing that failure to follow the procedure within the time limits shall mean withdrawal of the grievance or acceptance of the last answer given if he so indicates.

The agreements with the AFL-CIO for July 1,1977, to June 30, 1979, provide four steps to follow: raise the grievance within 10 days to the immediate supervisor who has five days to resolve the matter; then presents it to the facility head within five days after step 1 response is given or is due. The facility head has 10 days to discuss the grievance with the employee and the union representative. Then within five days after the discussion the facility head shall answer the grievance. Next it goes to the agency head within 10 days after step 2 is answered or after an answer is due. The agency head is to have a meeting with the union representative and the employee. The meeting is to be held in 10 days and he shall answer the grievance within 10 days thereafter. If not settled by prior procedure, it goes to step 4 which provides for a meeting with the employer and the union, and at that time either party can decide to go to arbitration. The Director, upon notice, selects three persons as a grievance panel, none of whom is a State employee. The panel reduces its decision to writing and submits it to the Director who “shall approve it, and the Director’s decision shall be final.” Step 4 calls for compulsory arbitration at 4(c) if either party desires at 4(a). The union agreement of July 1, 1979, to June 30, 1981, calls for quite similar procedures with compulsory arbitration at step 4.

The contract provides that failure to appeal and proceed within the time limits is a withdrawal of the grievance by the employee.

While the procedures are similar at the outset, it is noted that the time limits are changed. Further, there is no provision in the contract for a 25-member panel to recommend a decision to the Director. Ultimately however, the contract procedure results in compulsory arbitration if either the employee or the employer requests it. The employee knows under the contract procedure that ultimately his grievance will result in arbitration if he so desires. This may affect his decision to accept or reject a decision made at a lower level. Thus, the procedure is substantially different under the rules as compared with the procedure under the contract.

The 1980 rules contain a clause referring to collective bargaining agreements which apparently is contained in the rules for the first time:

“3-20 Procedure: Grievances shall be submitted in accordance with the following procedure unless the Director permits an agency to vary the number or content of the steps therein prescribed upon the written request of the operating head of an agency and for good cause shown therein, except that a grievance arising out of interpretation and/or application of a provision contained within a collective bargaining agreement shall be heard pursuant to the procedure established therein for the respective bargaining unit.”

The Court’s attention has been called to the case of People ex rel. Olin Corporation v. Department of Labor (1981), 95 Ill. App. 3d 1108, and which the supreme court at a later date refused to review. In this case, the Director of the Department of Labor attempted to withdraw his own order entered three months earlier and directed that a hearing be held on the issues not appealed by the parties which were not “ministerial or administrative” in nature but were “judicial or quasi-judicial” for which a writ of prohibition could issue. The court, in passing upon this case, called attention to the fact that a 35-day limit, within which a complaint in an action seeking review of a final administrative decision must be filed, is a jurisdictional requirement. The court further stated that since administrative agencies are creatures of statute, they may allow rehearings or modify or alter their decision only where authorized to do so by statute.

In none of the briefs or pleadings before the Court in the present case are any statutory provisions cited allowing the Director of Personnel to follow the procedure outlined by filing affidavits and thus passing upon the merits of a particular cause where the statute has not been followed. It therefore appears that an attempt is being made to do indirectly that which cannot be done directly.

The time element set forth in the statute for appeals has been totally ignored and, in this particular case, there was an attempt by the Director of Personnel to take charge of the case after it had been filed in the Court of Claims. The affidavit of the Director of Personnel was entered on August 20, 1981, while the case was still pending before the Court of Claims. If this procedure is allowed, then the Court will have to determine whether the Director of Personnel, by affidavit, can render a decision for a case already pending before this Court.

In arriving at our decision in these cases, we are compelled to give recognition to the statutory provision on the jurisdictional limitation of the Department of Personnel as set forth in the Personnel Code.

“§8c. Jurisdiction. Conditions of Employment.

For positions in the State service subject to the jurisdiction of the Department of Personnel with respect to conditions of employment:

(1) For establishment of a plan for resolving employees’ complaints, excluding compulsory arbitration.”

In light of this command of our legislature, there is no way to circumvent the exclusion of compulsory arbitration, either by department rules, agreement with the union, or affidavits of the Director of Personnel. The statutory language is plain and any attempt to ignore it must be viewed as illegal and of no avail. Any change must come from the legislature as this Court has no authority to do so itself.

It is the Court’s opinion that the action by the Director of Personnel was made without any authority being granted to him to make such a decision at the time it was made and therefore the procedure by affidavit at this particular time is illegal.

For the reasons above cited, this cause is dismissed.

OPINION

Roe, C.J.

This is a claim by a State employee for back wages due as a result of a reduction of a suspension from her job from seven days to three days. The underlying facts surrounding the suspension and reduction are not in the record and are not relevant to the issues herein. The issues in this claim and in the many similar claims which are now pending before the Court relate to the legal validity of the procedure by which the Claimant secured the reduction of her suspension and therefore allegedly became entitled to back pay. This claim has evolved into a “test case” and it is our intention not only to decide the narrow issues herein but to provide guidelines concerning the scope of our review in such cases that are now pending and such cases as may arise in the future.

This claim is before the Court for the third time. On September 30, 1981, an order granting Respondent’s motion to dismiss was filed. The motion to dismiss stated that Claimant’s claim arose out of settlement of a grievance pursuant to a procedure set forth in a provision of a collective bargaining agreement. Specifically, it was settled at “Step 4(a)” of the grievance procedure contained in collective bargaining agreement RC-14-OCB. Those contract provisions are similar, if not identical, to the grievance procedure provisions of several collective bargaining agreements between the State and its collective bargaining units in effect at the time this claim arose and which are currently in effect. Step 4(a) provides in pertinent part that:

«o o o (.jje Emp]oyer (the State) and Union (on behalf of the member of the collective bargaining unit) shall meet to discuss the grievance(s) which has been appealed to Step 4 at a time and place of mutual convenience. Within three (3) working days of such meeting, either party may decide that the grievance (s) raises a substantial issue which should be submitted to an independent arbitrator in accordance with the procedure set forth in Step 4(b)."

The procedures for step 4(a) were subsequently negotiated and reduced to a memorandum of understanding. The step 4(b) provision of the agreement set forth how an arbitrator would then be chosen. Step 4(c) of the grievance procedure consisted of the actual arbitration, the procedures of which are in pertinent part as follows:

“Both parties agree to attempt to arrive at a joint stipulation of the facts and issues ° ° * to be submitted to the arbitrator.
The Employer or Union shall have the right to request the arbitrator to require the presence of witnesses and/or documents. Either party shall bear the expense of its own witnesses who are not employees of the Employer.
Questions of arbitrability shall be decided by the arbitrator. The arbitrator shall make a preliminary determination on the question of arbitrability. Once a determination is made that the matter is arbitrable or if such preliminary determination cannot be reasonably made, the arbitrator shall then proceed to determine the merits of the dispute. The arbitrator shall neither amend, modify, nullify, ignore, add or subtract from the provision of this Agreement.
The expenses and fees of the arbitrator and the cost of the hearing room shall be shared equally by the parties. Nothing in this Article shall preclude the parties from agreeing to the appointment of a permanent arbitrator(s) during the term of this Agreement or to use the expedited arbitration procedures of the American Arbitration Association.
The decision and award of the arbitrator shall be final and binding on the Employer, the Union, and the employee or employees involved ° ° ° .” (Emphasis added.)

It was the Respondent’s position that this grievance procedure constituted compulsory arbitration which effectively divested the Director of the (then) Department of Personnel of the ultimate authority to adjudicate employee grievances and which was proscribed by section 8c(l) of the Personnel Code. (Ill. Rev. Stat., ch. 127, par. 63bl08c.) Respondent argued that because it was in violation of the procedural requirements of the Personnel Code, it was void and unenforceable. By pursuing this invalid remedy, the Claimant was said to have failed to exhaust valid administrative remedies as provided by statute and regulation, and is therefore in violation of section 25 of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.24 — 5) and Rule 6 of the Rules of the Court of Claims, which is grounds for dismissal.

As is not uncommon in the majority of claims by State employees for back wages in this Court, the Claimant filed no objection or reply to the Respondent’s motion to dismiss, the latter pleading being most common to claims for back wages in this Court.

In granting the Respondent’s motion to dismiss, we found, inter alia, that step 4(a) of the collective bargaining agreement’s grievance procedure provided the employee with a right to have his grievance decided by binding arbitration, that this real threat of binding arbitration clearly tainted any resolutions arrived at pursuant to said step 4(a), that the Director of the Department of Personnel was proscribed by the Personnel Code from entering into any agreement calling for compulsory arbitration, and that the Personnel Code placed within the sole discretion of the Director of the Department of Personnel the exclusive right to determine the outcome of any employee grievance. We then held that any provision in a collective bargaining agreement requiring binding or compulsory arbitration is null and void, and any grievance procedure predicated upon the fact that the ultimate determination could result from binding arbitration is likewise null and void.

In order for this case to be viewed in its proper perspective, it is important to point out certain aspects which do not appear in its record, but which are exemplified in the approaches that were taken in the many similar cases which came before it. Many cases involving claims to collect lapsed funds for back pay alleged to be due as a result of grievance resolutions at the step 4(a) and step 4(c) level preceded this case. In the beginning, upon the motion of the Respondent, the Court dismissed them based upon the rationale set forth in the preceding paragraph. Gradually, however, it became apparent that the approach taken by the Respondent in defending these claims has become eclectic. Although the laws, personnel rules, and the collective bargaining agreement never were amended, and despite the language in the opinions typified by that contained in the last sentence of the first paragraph of the September 30, 1981, order in the case at bar (that “any grievance procedure predicated upon the fact that the ultimate determination could result from binding arbitration is likewise null and void”), claims made to collect lapsed funds for back pay alleged to be due as a result of grievance resolutions at the lower steps of the collective bargaining agreement’s grievance procedure were agreed to by the Respondent and paid based on the stipulations. While it is true, as pointed out in our opinion on rehearing in this case, infra, that the grievance procedures of the collective bargaining and the personnel rules were the same at the lower levels, the threat of eventual binding arbitration clearly could influence the result. Then a scheme was developed to justify making awards in those claims resulting from step 4(a) and step 4(c) grievances. Because the Personnel Code provided the Director of the Department of Personnel with the right to make final determinations on employee grievances, the scheme involved his executing an affidavit purporting to make the grievance resolutions in effect his own. These affidavits were never filed along with the complaints in the claims, but were filed by counsel for the Respondent if he chose to stipulate to awarding the claims. They were not filed in every claim resulting from arbitration or pre-arbitration agreements.

Thus, in the case at bar, on November 4, 1981, shortly after her claim was dismissed, the Claimant moved for reconsideration and vacation of the order, seeking leave to file such an affidavit and representing to the Court that counsel for the Respondent had been advised of the motion and stated that he would not oppose it. Approximately two months later a response to the motion along with the affidavit was filed by the Respondent. The affidavit, bearing a notarization date of over a month prior to the order of dismissal and over four months prior to the date the affidavit was actually filed, provided in pertinent part as follows:

“6. I have reviewed the grievance and its resolution and have determined that the resolution is one I would have reached and therefore, exercising my discretion as authorized by the Personnel Code, I concur with the result and adopt the resolution of this grievance as my own.
s/ Louis J. Giordano”

In response to the motion for reconsideration, counsel for the Respondent stated that he would not object to its being granted nor would he object to the granting of an award.

On May 14,1982, this Court rendered its opinion on the motion striking down the practice of the Director executing such affidavits. Citing People ex rel. Olin Corporation v. Department of Labor (1981), 95 Ill. App. 3d 1108, 420 N.E.2d 1043, we said:

“In none of the briefs or pleadings before the Court in the present case are any statutory provisions cited allowing the Director of Personnel to follow the procedure outlined by filing affidavits and thus passing upon the merits of a particular cause where the statute has not been followed. It therefore appears that an attempt is being made to do indirectly that which cannot be done directly.
The time element set forth in the statute for appeals has been totally ignored and, in this particular case, there has been an attempt by the Director of the Department of Personnel to take charge of the case after it had been filed in the Court of Claims. The affidavit of the Director of Personnel was entered on August 20, 1981 while the case was still pending before the Court of Claims. If this procedure is allowed, then the Court will have to determine whether the Director of Personnel, by affidavit, can render a decision for a case already pending before this Court.”

The Respondent promptly filed a motion for reconsideration and requested oral argument before the full Court. Because of the importance of the case and because we felt that the issues raised should be better addressed we exercised our discretion pursuant to Rule 21 of the Rules of the Court of Claims and ordered oral arguments to be held. At the oral argument the parties attempted to present unified positions and an agreed proposal for resolution of this claim and others like it. We wish to interject at this point that we encourage such combined efforts by the parties, especially in this area of the Court of Claims’ jurisdiction. Although the parties did apparently unite behind the proposal, the rationales offered seemed to vary among counsel and in certain respects from arguments made in the Respondent’s memorandum of law which accompanied its motion for reconsideration. Because what was presented at the oral argument occurred later we will address our comments more directly to what was presented there. First, we want to state that we accept the Respondent’s counsel’s apology for any confusion and inconvenience its changes in position on back wage claims may have caused. Having been on the bench throughout those changes, we have discerned the difficulties and conflicts which have been encountered. Those problems were no doubt exacerbated by the conflict brought on by Illinois’ constitutional separation of powers and a difference of legal opinion between two constitutional entities. Offering by way of consolation, not justification, we suggest that a lack of diligent prosecution by the claimants in a large number of the back wage claims perhaps added to the problems.

Following those opening apologies, the Respondent presented the unified position and urged us to accept it for several reasons. The reconsidered position of the Respondent was stated as follows:

“It is the position of the Attorney General in regard to the payment of wage claims that are grieved under the Collective Bargaining Agreement that the Office will support and stipulate to those claims for back wages based on resolution of a grievance using the procedures set forth in the Collective Bargaining Agreement when (one) the relief granted could have been granted under the grievance procedures set forth in the Rules of the Department of Personnel (now Central Management Services hereinafter referred to as CMS) and (two) the director of CMS adopts that position with an affidavit. Whether the affidavit is necessary is open to question and if the Court feels it is not necessary, we would not use that procedure any more.” (tr. 5)

In support of its position, Respondent gave several reasons, many of which were policy reasons, and then stated why it felt that its previous position taken on these types of claims was in error. Among the policy reasons stated was that collective bargaining is a “way of life” in Illinois’ State government. It has existed a long time, the legislature has recognized it by several references made in statutes, it has Civil Service Commission recognition, and no court has yet declared a collective bargaining agreement invalid. Respondent further stated that it was “good government” and that the State should stand behind its employees and their contracts which were entered into in good faith. These observations and arguments have been raised by various counsel for claimants in similar back wage claims.

This Court does take into consideration certain policy matters in appropriate cases. However, we do not view this type of claim as being proper for a policy-based or influenced decision. Policy should not dictate the extent of authority of a director of a department and/or the legality of his or her actions where the legislature has delineated the same by statute and the director has further defined the same by duly promulgated rules. No amount of policy can make a provision of a contract or other action which is proscribed by law valid and enforceable in this Court regardless of the amount of good faith a party has. Our concern in this type of case is to uphold those policy positions which have been taken by the legislature.

We wish to emphasize also that we are not opposed to collective bargaining for State employees. It is not proper for us to take a position on such a subject. By way of illustration, we point to our order of August 11, 1982, issued in Eberwein v. State, No. 80-CC-2073 (as yet unpublished). That case involved a claim for back wages by a State employee due her as a result of a decision reached through binding arbitration. The key distinction was that her employing agency was exempt from the Personnel Code. The Respondent nevertheless moved for dismissal on the grounds of the policy and legislative intent behind the provision of the Personnel Code which prohibits compulsory arbitration. Respondent also raised several policy arguments commonly made by opponents of the proposition of binding or compulsory arbitration for State employees in general. In holding in favor of the Claimant we said:

0 ° We do not think it our function to, in effect, extend the prohibition against compulsory arbitration contained in the Personnel Code across the board to all elective officials or even to an agency under the Governor which is expressly exempt from the Personnel Code. While the Respondent has well stated the argument against compulsory arbitration for governmental employees, we do not think it to be a general public policy expressed by the legislature.”

An award was eventually made in that case on December 1,1982.

We have reviewed the substantive arguments raised and considered them in light of our opinion of May 14, 1982. After much thought and research we have concluded that we cannot accept the parties’ latest proposal as stated. We find that Respondent’s two conditions for concurrence with the grievance decisions resulting from the process set forth in the collective bargaining agreement, although not free from ambiguity, do not make sense upon close examination. The first stated condition was that the relief granted could have been granted under the personnel rules. The only relief grantable which would bring a grievance before this Court is monetary relief. Of course, this remedy may be ordered under either grievance system. On the other hand, if the parties were referring to entitlement when speaking of relief, i.e., that a Claimant would have been entitled to the same relief pursuant to some personnel rule, then the condition would seem too narrow. It is entirely probable that a provision of a collective bargaining agreement may entitle a person to a monetary remedy where the personnel rules are silent on the issue. Therefore, while Respondent urges us to recognize the validity of the collective bargaining agreement, it appears to be saying that it will not do so unless a similar provision exists in the form of a personnel rule.

With respect to the second condition, that of adoption of an arbitrator’s decision or pre-arbitration decision by affidavit, the amicus curiae discourse by counsel from CMS leads us to think that it is a false issue and more of a remnant of scheme or fiction being perpetuated to circumvent certain legal positions previously taken by the Respondent and accepted by us.

We still adhere to those principles stated in our May 14, 1982, opinion wherein, citing People ex rel. Olin Corporation v. Department of Labor, supra, we stated:

“®. ® “ (S)ince administrative agencies are creatures of statute, they may allow rehearings or modify or alter their decision only where authorized to do so by statute.
In none of the briefs or pleadings before the Court in the present case are any statutory provisions cited allowing the Director of Personnel to follow the procedure outlined by filing affidavits and thus passing upon the merits of a particular cause where the statute has not been followed. It therefore appears that an attempt is being made to do indirectly that which cannot be done directly.”

However, upon reconsideration and much research we have arrived at a different conclusion affecting the issues in the cases involving arbitration and prearbitration decisions for the following reasons.

The Personnel Code is a statutory plan devised to govern certain State employees and the Director of CMS. It is to be noted that many positions and offices are exempt from the Personnel Code, some in toto but some only from certain types of jurisdiction. Among other things, the Personnel Code sets forth three separate areas of jurisdiction of CMS: classification and compensation, positions based on merit and fitness, and conditions of employment. Under each type of jurisdiction the Director of CMS has been granted certain powers and duties with respect to rulemaking. See section 8 and the specific powers contained in sections 8a through 8e. Ill. Rev. Stat. 1985, ch. 127, pars. 63bl08-63bl08e.

Our opinion of May 14, 1982, and our previous opinions in this case and in the others like it were based upon section 8c(l). (Ill. Rev. Stat. 1985, ch. 127, par. 63bl08c(l).) This subsection essentially provides that the Director of CMS is to establish by rule a plan for resolving employee grievances and complaints, but that he is not empowered to establish such a system featuring compulsory arbitration. A grievance system was promulgated. Prior to the effective date of the 1980 personnel rules the system called for the Director of the Department of Personnel to make the final determination on a grievance issue. We held that the provisions of the collective bargaining agreements calling for arbitration as a final resolution were in conflict with the personnel rules and therefore void. The 1980 personnel rules contain a clause referring to collective bargaining agreements which apparently was inserted for the first time. It reads as follows:

“3-20 Procedure: Grievances shall be submitted in accordance with the following procedure unless the Director permits an agency to vary the number or context of the steps therein prescribed upon the written request of the operating head of an agency and for good cause shown therein, except that a grievance arising out of interpretation and/or application of a provision contained within a collective bargaining agreement shall be heard pursuant to the procedure established therein for the respective bargaining unit.” (Change emphasized.)

The collective bargaining agreements called for binding arbitration. We held that such a system was in violation of the provision of the Personnel Code which proscribed the Director from establishing a grievance system featuring compulsory arbitration.

Our decisions were based in part on our reasoning that the binding arbitration called for in the collective bargaining agreements and the compulsory arbitration referred to in the Personnel Code were one and the same. This reasoning to us was only common sense. All concerned would agree that the arbitration provided for in the collective bargaining agreements is final and binding. We reasoned that the aspect of compulsion was inherent therein also. If an agreed resolution of a grievance could not be reached, the parties would be compelled to submit their problem to arbitration. Under the terms of contract there is no choice. We would have agreed that the parties to the contract voluntarily and under no compulsion agreed to decide disputes arising under the contract by means of final and binding arbitration. However, by so agreeing they would then be compelled to submit their grievances to binding arbitration. Any choice was contracted away. At least one text writer would concur with this line of reasoning. T. Kahel, Labor Law, vol. 5, §2308(3) (1982).

However, we have now reached a different conclusion. Although there is not a greal deal of authority on the issue, as admitted by the Claimant at the oral argument, we now think that there is a real distinction between compulsory and binding arbitration. Our research of the existing authorities and literature indicates that “compulsory” when used in connection with “arbitration,” in the legal sense, is a term of art and as such carries a more narrow and restricted meaning than the common and ordinary interpretation of the term that we attributed to it previously. Compulsory arbitration, in the labor law sense of the term, is where by the force or effect of law, a party is compelled to submit a dispute to arbitration. It is commonly employed by governments to prevent strikes in certain sensitive sectors of employment where a strike could wreak havoc, e.g. police and fire fighters. In contrast is voluntary arbitration. Voluntary arbitration takes place where the parties voluntarily agree (without compulsion) to arbitrate a specific issue. Binding arbitration means nothing more than that the parties are bound by the decision of the arbitrator as opposed to advisory arbitration where the decision of the arbitrator is just that — advisory—and neither party is bound by it. Compulsory arbitration and voluntary arbitration can be either binding or advisory. However, it would be a contradiction of terms to say that compulsory arbitration could also be voluntary. Black's Law Dictionary (4th ed.); 6 C.J.S. Arbitration subsection 5-7; B.N.A.-L.R.X. 16, 17; Arbitration and the Expanding Role of Neutrals, G. Somers & B. Dennis, ed. (1970); Public Sector Labor Relations, Council of State Governments in conjunction with International Personnel Management Association (1975); F. Elkouri & E. Elkouri, How Arbitration Works (3d ed. 1973); M. Forkosch, A Treatise on Public Employee Labor Law (1969); J. Levine & E. Hagburg, Public Sector Labor Relations (1979); M. Lieberman, Public Sector Bargaining (1980); N. Levin, Successful Labor Relations (1978); C. Gregory and H. Katz, Labor and the Law (1979); Portrait of a Process — Collective Negotiations in Public Employment by Public Employment Relations Service (1979); J. Steiber, Public Employee Unionism: Structure, Growth, Policy (1973); L. Teller, A Labor Policy for America (1945); B. Werne, The Law and Practice of Public Employment Labor Relations (1974).

Having found that there exists a distinction between compulsory arbitration and final and binding arbitration, it remains for us to decide the effect to be given to the final and binding arbitration provisions of the collective bargaining agreement.

The. grievance procedure provided for in the collective bargaining agreements is clearly not compulsory arbitration in the labor law sense of the term. It was not forced upon the parties by any statute or rule. Through, the ^processes of collective bargaining the parties voluntarily consented to it. The fact that it is final and binding arbitration is not relevant here and does not bring it Within the proscription of section 8c(l) of the Personnel Code.

It could .be argued that the amendment to the 1980 personnel-rules effectively provided for compulsory arbitration by bootstrapping the collective bargaining agreement’s grievance, resolution provisions into the rules. By rule popp when read in conjunction with the collective bargaining agreement, a party is compelled in any sense of the word to potentially arbitrate. However, we decline to give hCthat interpretation. The parties had collective choice whpnj negotiating the terms of their contract and were not compelled to acquiesce to any term.

We now think that resolutions reached as a result of the arbitration arid pre-arbitration procedures of the collective bargaining agreements can be valid. Although much of counsel’s efforts in this matter were devqted to the history and extent of collective bargaining in Illinois and the authority of the parties to collectively bargain in general, we do not think that collective bargaining was ever at issue. The concern was that the parties had authority to do what they did — specifically to contract for the procedure by which employee grievances would be resolved without running afoul of the Personnel Code and rules. It is now clear that the arbitration provisions of the contract are not in conflict with the Personnel Code. Sinpé the effective date of the 1980 personnel rulés, <a .separate grievance system for disputes arising under the collective bargaining agreement set up by contract no longer conflicted with the rules and is not void for that reason either. We also think that the Director of CMS is authorized by section 9(7) to enter into such a grievance resolution system through a collective bargaining agreement. Therein it is provided that the Director has the duty to:

° ° conduct negotiations affecting pay, hours of work, or other working conditions of employees subject to * ° 0 (the Personnel Code).”

This is a separate grant of authority aside from his rulemaking powers. ■

However, even though it is a separate grant of authority, we do not interpret it to be carte blanche authority of the Director to agree to provisions of a collective bargaining agreement which are in conflict with his own duly promulgated personnel rules.

In claims for back pay based on grievance resolutions at the pre-arbitration stage or arbitration decisions, the defense that the specific contract provision through which entitlement is claimed is in conflict with a personnel rule still exists. It can be overcome by a showing that even though the provision is in conflict, under the facts of the specific claim, the claimant would still be entitled to back pay based on the applicable rule. If the rules are silent on the issue, the bargaining agreement controls.

We will not sit in review of an arbitrator’s decisions in the sense of an appeal. We will not review issues of fact. We do not intend to decide jurisdictional disputes between the parties over the arbitrability of an issue. The checks and balances of a remedy in the nature of mandamus or injunctive relief available in the judicial system which were described by the amicus curiae counsel from CMS at the oral argument should dispose of that. We wish to comment at this point on the contention of counsel for the Respondent made at the oral argument that his office did not believe that the Court of Claims with its limited jurisdiction is the proper forum for deciding the validity of the collective bargaining agreement, (tr. 8.) Section 8(a) of the Court of Claims Act specifically provides this Court with exclusive jurisdiction to hear and determine “all claims against the State founded upon any contract entered into with the State of Illinois.” Moreover, the review we have made in this case and in others like it in the past and intend to continue to make is that of an ordinary lapsed appropriation. The issues were, was it a properly authorized expenditure, and did sufficient funds lapse from which the claim could have been paid. Contract defenses have always been allowed to be asserted in claims for lapsed appropriations in this Court.

Applying the above to the specific facts in this case, the record is relatively sparse. From the document attached to the complaint it appears that this claim arose out of the step 4(a) grievance resolution on May 31,1979. The 1980 personnel rules became effective on September 1, 1980. The rules in effect at the time the grievance arose and at the time of its resolution did not contain the reference to grievance resolutions pursuant to the collective bargaining agreement which we quoted above. It would appear to us, therefore, that the procedure by which the resolution was reached in this claim was in conflict with the personnel rules and therefore null and void. However, we will hold our decision in abeyance for 30 days from the date of this opinion in order to afford the parties an opportunity to show us by written memorandum otherwise. Also we note that there is no departmental report on availability of funds on file yet in this case, so we would not be able to grant an award at this time even if we were so inclined.

ORDER ON MOTION TO DISMISS

Montana, C.J.

This cause comes on to be heard on the Court’s own motion following our order of February 17, 1988.

On February 17, 1988, an order was entered in this matter which: noted that Claimant had not filed her annual status report as required by Rule 7 of the Rules of the Court of Claims, pointed out that failure to comply with Rule 7 was grounds for dismissal, and granted Claimant 21 days within which to comply. Prior to that order, the Clerk’s office, although not required to do so, did mail Claimant a reminder that the report was due. The Claimant has not complied with said order.

This case was placed on general continuance by order of the Court entered March 20, 1986, with instructions to the Claimant to exhaust an administrative remedy. Since that time Claimant has filed nothing. This Court has the responsibility to manage its own caseload. While we will keep a case on general continuance for as long as is necessary, we cannot hold cases open indefinitely without any indication from the Claimant of the need to do so.

It is hereby ordered that this claim be, and hereby is, dismissed for want of prosecution and for failure to comply with Rule 7; it is further ordered that Claimant is granted leave to refile within one year of the date of this order.


source: Caselaw Access Project

author: POCH, J.

license: Public Domain

text:
    (No. 81-CC-0234
    Moto Heating, Ventilating, Air Conditioning Corp., Claimant, v. Board of Governors of State Colleges and Universities, Respondent.

      Order filed May 23, 1988.

    Robert D. Silver, for Claimant.
    Dunn, Brady, Goebel, Ulbrich, Morel, Kombrink & Hundman (Richard T. Dunn, of counsel), for Respondent.
   POCH, J.

This cause comes before the Court after hearing of all evidence before a Commissioner, and the Court being fully advised and having reviewed the Commissioner’s recommendation the Court finds:

1. Claimant, Moto Heating, Ventilating, Air Conditioning Corporation (“Moto”) is a duly organized Illinois corporation having its principal place of business at 4715 North Damen Avenue, Chicago, Illinois 60625.

2. The Board of Governors of State Colleges and Universities (“Univ”) is a body politic and corporate of the State of Illinois, created and established under the Board of Governors of State Colleges and Universities Revenue Bond Act. Ill. Rev. Stat. 1985, ch. 144, par. 1001 et seq.

3. Ronald Williams is, and at all times relevant to Claimant’s action was, president of Northeastern Illinois University; William H. Lienemann is, and at all times relevant to Claimant’s action was, vice president for administrative affairs at Northeastern Illinois University; Ray R. Roth was at all times relevant to Claimant’s action director of purchases at Northeastern Illinois University; and Gary Bryan is, and at all times relevant to Claimant’s action was, campus planning coordinator at Northeastern Illinois University. All of said individuals are employees of the Board of Governors of State Colleges and Universities and were at all times pertinent to Claimant’s action acting or failing to act within the scope of their employment and not personally.

4. This Court has exclusive jurisdiction of Claimant’s tort claims against Respondent Board of Governors of State Colleges and Universities, based upon the acts or omissions of Respondent’s employees Ronald Williams, William- H. Lienemann, Ray Roth and Gary Bryan (collectively “employees”) as alleged herein.

5. Section 3 of An Act to create Northeastern Illinois University places the statutory duty upon the said Board of Governors to make rules, regulations, and by-laws for the good government and management of the University, to employ all necessary employees and proscribe their duties. Ill. Rev. Stat. 1985, ch. 144, par. 1153.

6. Moto performed work for Northeastern Illinois University, and did perform work in a workmanlike manner.

7. Moto specifically asked Gary Bryan how Moto would be protected if it were to agree to perform the work referred to.

8. Gary Bryan informed Moto that the prime contractor selected would be required to furnish a final waiver of lien from Moto before payment would be made to the prime contractor.

9. Triple A Moving and Storage, Inc., was eventually awarded the prime contract on the project in question.

10. Triple A submitted an original invoice received from Moto for work performed by Moto totaling $7,000.00 but did not submit a final waiver of lien executed.

11. A State warrant was issued to Triple A on or about February 11, 1980, in the amount of $17,340.00.

12. The University employees did not further notify Moto it was issuing said warrant prior to issuance and delivery.

13. The University did not require Triple A to have a bond to protect against nonperformance of Triple A’s duties.

14. Triple A Moving and Storage has not paid Moto the $7,000.00 or any part thereof.

15. Univ had not paid Moto and has refused to pay Moto for said work.

It is hereby ordered that the Court finds in favor of the Claimant and awards the sum of seven thousand ($7,000.00) and no/100 dollars as damages.


author: Montana, C.J.

text:
    (No. 81-CC-1184
    Jane Doe, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 5, 1986.

      Order on motion for reconsideration filed May 10, 1988.

    Redina Friedman, for Claimant.
    Neil F. Hartigan, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Montana, C.J.

This matter is before the Court upon the joint stipulation of the parties hereto. This claim sounds in tort and is brought pursuant to section 8(d) of the Court of Claims Act. Ill. Rev. Stat. 1985, ch. 37, par. 439.8(d).

Claimant was a student at Northern Illinois University in DeKalb, Illinois, and resided at Grant Towers South residence hall, a dormitory owned, operated and maintained by Respondent. On two separate occasions, on the evenings of January 13, 1980, and March 23, 1980, Claimant suffered personal injuries when she was attacked, assaulted, battered and raped in her dormitory room by an unknown assailant or assailants.

We note that the parties hereto have agreed to a settlement of this claim and that Respondent agrees to the entry of an award in favor of Claimant in the amount of forty thousand dollars and no/cents ($40,000.00).

Based on the foregoing, Claimant, Jane Doe, is hereby awarded the sum of forty thousand dollars and no/cents ($40,000.00), in full and final satisfaction of this claim.

It is further ordered that the record in this matter be sealed and the Claimant be referred to as Jane Doe when this decision is reported in the Court of Claims Reports.

ORDER ON MOTION FOR RECONSIDERATION

Montana, C.J.

This cause comes on to be heard on the Claimant’s motion for reconsideration, due notice having been given, and the Court being advised.

On August 5,1986, this Court approved a settlement reached by the parties to this claim and entered an award in the amount of $40,000.00. Immediate payment of said award was not authorized by section 24 of the Court of Claims Act (Ill. Rev. Stat. 1985, ch. 37, par. 439.24). The award was presented to the legislature for appropriation of funds to pay the award during the fall session of 1986. Funds were appropriated and payment was vouchered on February 6, 1987. In her motion, Claimant stated she received the warrant on February 18, 1987. Over three months later Claimant filed the motion at bar seeking interest on the judgment. Claimant cited section 2 — 1303 of the Code of Civil Procedure in support of her motion. Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1303.

The Court has consistently followed the rule that the State is not liable for interest in the absence of a statute expressly subjecting it to such liability. The statute cited by the Claimant does not expressly make the State of Illinois liable for post-judgment interest. See Gendel v. State (1982), 38 Ill. Ct. Cl. 76, and cases cited therein.

It is hereby ordered that Claimant’s motion for reconsideration be, and hereby is, denied.


author: Patchett, J. Patchett, J.

text:
    (No. 81-CC-1365
    Deborah Long, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 27, 1986.

      Order on denial of rehearing filed October 20, 1987.

    Goldenhersh & Goldenhersh, for Claimant.
    Neil F. Hartigan, Attorney General (James C. Majors, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This claim arises from an accident which occurred on May 27, 1979, at the Illinois State Minimum Security Correctional Center near Vienna, Illinois. Paul Long, husband of the Claimant, Deborah Long, was a resident at the Center at the time of the accident. On May 27th, Claimant, while visiting her husband, fell on her low back when a bench on which she was sitting collapsed. Claimant alleges the injuries she suffered were caused by the negligence of agents of the State of Illinois.

Claimant met her husband for a regular visit on the day in question. After having lunch and visiting inside, Claimant and her husband went to the visitors’ patio. On the patio were several round tables with benches attached by metal legs and supports. As the Claimant sat on one of the benches, the bench support fell away from the table and collapsed, thereby causing Claimant to fall backwards onto the concrete patio surface. Claimant suffered a sprain of her right forearm, and a chip-type fracture of the fifth lumbar vertebra. She was hospitalized from May 27 to June 3, 1979, under the care of Dr. Derl Warren, a general practitioner in Eldorado, Illinois. She was treated conservatively and released from Dr. Warren’s care at the time of her hospital discharge.

An examination of the table and bench after the accident revealed that two nuts, bolts, and washers holding the leg to the table were missing. These items could not be found. It was impossible to determine during the investigation whether they had been removed by someone or had simply worked loose.

The patio area and the tables and benches were generally maintained by maintenance employees of the State, or by Correctional Center inmates under the supervision of the State maintenance employees. No one had reported any maintenance or repair problems with the tables or benches prior to the accident. Phillip Huff, a security officer for the Illinois Department of Corrections, investigated the accident and testified that in his observation the bolts holding the bench to the table could not work loose except over an extended period of time.

As a visitor to the Correctional Center, Claimant’s legal status on the State’s premises was that of an invitee. (Brown v. State (1983), 35 Ill. Ct. Cl. 696; Levy v. State (1958), 22 Ill. Ct. Cl. 694.) The State therefore owed to the Claimant the duty to use reasonable care and caution in keeping the premises reasonably safe for use by the Claimant, including the duty to exercise reasonable care to discover defects or dangerous conditions existing upon the premises. (Chapman v. Foggy (1978), 59 Ill. App. 3d 552, 375 N.E.2d 865.) It is not necessary to prove the State had actual knowledge of the dangerous condition, but the Claimant must prove that the State, by exercising reasonable care, could have discovered the dangerous condition.

Major Huff testified that it would not be possible to notice the missing bolts and nuts without actually inspecting under the bench or the table. There was no regular maintenance schedule. The tables were repaired only if someone reported maintenance was needed. The inmates cleaned the tables and benches as necessary. No evidence was presented by either party as to when the tables and benches in question were last cleaned before the accident, or when the bench was last used.

We believe that it is unlikely that the two bolts and nuts simply worked loose over time, particularly in light of the fact that they could not be found after the accident. If the bench had been loose long enough to allow the bolts and nuts to be lost, it would have fallen long before this Claimant sat upon it. It is more reasonable to conclude that the bolts and nuts were removed intentionally by someone in the patio area prior to the Claimant sitting on the bench. There was no evidence to show how long the condition had existed prior to its discovery on May 27th. In fact, there was no evidence as to how long the patio area had been open to visitors on May 27th before this accident occurred. For all the foregoing reasons, we find that the Claimant has failed to prove the State liable under this theory of negligence.

Claimant also argued that the State was liable under the theory of res ipsa loquitur. This theory allows an inference of negligence to be drawn from circumstantial evidence. To recover under res ipsa loquitur, the Claimant must prove that she was injured in an occurrence that would not have occurred in the absence of negligence, by an instrumentality or agency under the management or control of the State, and under circumstances indicating the injury was not due to any voluntary act or neglect on the part of the Claimant. (Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 443 N.E.2d 569; Nurse v. State (1982), 35 Ill. Ct. Cl. 759.) We think that the Claimant has failed to prove that this occurrence would not have occurred in the absence of negligence on the part of the Respondent. The accident would have occurred, and probably did occur, as a result of malicious removal of the bolts and nuts from the bench. The State is not liable for intentional torts committed by its inmates. Holda v. Kane County (1980), 88 Ill. App. 3d 522, 410 N.E.2d 552.

We therefore find for the Respondent.

ORDER ON DENIAL OF REHEARING

Patchett, J.

This cause comes on for hearing upon the motion for rehearing filed herein by Claimant; and the Court, having considered the motion and the Respondent’s response to said motion, finds as follows:

It is ordered that the motion for rehearing be and hereby is denied.


author: Raucci, J.

text:
    (No. 82-CC-0385
    Cathy M. Rainieri, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 20, 1987.

    Lane & Munday (Martin E. Klein, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Ralanda Webb, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This is a claim brought by Claimant, Cathy M. Rainieri, for personal injuries sustained by her on September 7,1980, when her car struck a guardrail on an overpass and fell to the highway below.

On September 7, 1980, at approximately 4:55 p.m., Claimant was operating her vehicle in a westerly direction on Cermak Road at its overpass over Interstate 294. There was a metal guardrail along the northern edge of the westbound lane of Cermak Road at the point it crosses over Interstate 294. Claimant lost control of her car on the overpass, went through the guardrail at the far western edge of the north side of the bridge deck, and crashed to the ground on the west shoulder of the southbound lanes of 1-294, immediately north of the overpass.

On the day in question it had rained prior to the accident. However, at the time of the accident the rain had subsided to a light drizzle. The speed limit at the point in question was 50 miles per hour, and Claimant was driving at or below the posted speed.

Claimant was seriously injured as the result of the accident.

Claimant’s theory of the case is set forth in paragraph 7 of her complaint:

“7. That at the time and place aforementioned, the vehicle then and there operated by Claimant did strike a pothole in the roadway causing the Claimant to lose control of her vehicle; as it swerved violently and crashed through the adjacent railings down to the roadway below.”

The complaint charges Respondent with negligent maintenance of Cermak Road.

Claimant’s exhibit 1 is a diagram of the path of her car. Claimant’s exhibits 2, 3, 4, 5, and 6 are photographs of a pothole in Cermak Road east of where the car went through the guardrail. The parties entered into a stipulation that if John R. Knepper were called to testify he would testify that he inspected the overpass after the accident and saw a large pothole at the east end of the bridge, approximately 75 yards east of where the car left the bridge. There is no testimony in the record giving the dimensions of the pothole. Claimant’s exhibits 8, 9, and 10 show a different pothole apparently west of the accident scene.

It was further stipulated that if William D. Peters, Jr., were to testify he would testify as follows:

* ° at the time of the occurrence he was traveling in the left eastbound lane of Cermak Road at which time he observed the claimant’s vehicle suddenly veer to its right and break through the guardrail and descend downward; the claimant’s approximate speed was the posted speed (55 miles per hour); it had just finished raining and the road was slick and wet.”

The Claimant’s testimony is as follows:

“Q. Now, as you were driving west on Cermak approaching 1-294, did you have occasion to notice anything unusual or hear anything unusual?

A. It felt like, you know, I hit something. The car jolted.

Q. Do you know where in your car you heard that or felt that jolt?

A. No.

Q. What is the next thing you recall happening?

A. Spinning. You know, going around.

Q. And then what?

A. And then falling, like a thump, like when I had hit the ground.” (Tr. 7-8)

This testimony falls far short of establishing by the preponderance of the evidence that Claimant struck the pothole shown in Claimant’s exhibits 2 through 6, thereby causing her to lose control of her car and go through the guardrail.

Claimant did not testify, for example, that she saw the pothole but could not avoid hitting it. No following motorist testified that he saw her car hit the pothole and then go out of control. She testified that she felt a jolt. This, standing by itself, does not establish that she hit the pothole shown in her exhibit. The pothole was 75 yards east of where she went through the guardrail, a considerable distance. Claimant’s assertion is correct that simple arithmetic will demonstrate that a car traveling 50 miles per hour will travel 75 yards in less than five seconds. But the implication of the stipulated testimony of William D. Peters, Jr., is that she lost control at the point where she went through the guardrail, not 75 yards east thereof. This does not imply that she went out of control 75 yards before going through the guardrail.

On cross-examination she reiterated her testimony that she felt a jolt, but acknowledged that during a discovery deposition she had made no reference to a jolt:

“Q. First of all I’m referring to page six. Is it not true that you were asked the following question and gave the following answers:

‘Q. As you were coming west on Cermak Road from Broadview, can you tell us what occurred?

A. I was just driving.

Q. Just describe the incident for us.

A. I was driving and I remember hearing a screeching and waking up or coming to in the air. I guess I was already off the bridge.’

Q. Were you asked those questions and were those the answers you gave?

A. Yes.

Q. You didn’t make any reference to feeling a jolt at that time, did you?

A. I guess not. Not if it’s not there.” (Tr. 35, 36)

This is more consistent with falling asleep at the wheel and waking up after she hit the guardrail than it is with hitting a pothole and going out of control.

“A. I was driving and I remember hearing a screeching and waking up or coming to in the air. I guess I was already off the bridge.” (Tr. 35, 36) (Emphasis supplied.)

Earlier in cross-examination she testified that she was not certain that the car veered at the point she felt the jolt. (Tr. 24)

Richard Roderick, an officer of the Illinois State Police, testified that her right front tire had a worn spot where it had been worn down to the underlying cord of the tire.

While she was lying on the shoulder of 1-294 he questioned her about the accident:

“A. “ * "1 asked her what had happened, what had caused the accident, what in her opinion had caused the accident, and she said she didn’t know, she just lost control of the car.

Q. Did she ever make any reference to being jolted in the car prior to leaving the road?

A. No, she did not at that point in time.” (Tr. 58, 59)

He testified that there was some standing water on the bridge deck. (Tr. 54) The standing water was due to vehicular traffic and it was a shallow pool that ran almost the entire length of the bridge deck, where vehicles had worn down the pavement into shallow ruts.

From all of the above it is possible to conjecture that Claimant hit a pothole and lost control of her car, or that she fell asleep at the wheel and woke up when she was already off the bridge, or that she skidded out of control on the wet pavement. Since the evidence falls short of proving how the accident occurred, it also falls short of proving any negligence on the part of Respondent with reference to causing the accident.

Claimant cites Manos v. State, 30 Ill. Ct. Cl. 639, as being on point. Manos would possibly be on point if Claimant had proved that she struck a pothole. In Manos, an eyewitness testified that “when decedent struck one of the chuckholes, his car went out of control and struck the utility pole # * *” This type of proof is absent from Claimant’s case. In Moldenthauer v. State, 32 Ill. Ct. Cl. 514, also cited by Claimant, Claimant Moldenthauer testified that she struck a pothole, went off the road, came back and struck a second pothole.

Claimant has failed to meet her burden of proof.

It is therefore ordered that the claim be, and is hereby, dismissed with prejudice.


text:
    (No. 83-CC-0041
    Kenneth Tivador, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 2, 1987.

    Paul B. Episcope, for Claimant.
    Neil F. Hartigan, Attorney General (James A. Tyson, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

INTRODUCTION

This is a claim for damages for personal injuries sustained by Claimant on July 9, 1981, while he was riding as a passenger in the backseat of a 1973 Oldsmobile automobile. As the automobile was entering a double reverse curve, the right front wheel dropped off the roadway onto the right shoulder, and bounced through a series of potholes at the edge of the pavement, the potholes being up to six inches in depth, 16 to 17 inches in width, and six feet in length. When the car dropped off the pavement and started hitting the bumps, Claimant’s head was thrown forward. When the driver brought the car back onto the pavement, Claimant’s head snapped backwards, rendering him paralyzed. The driver lost control of the car, skidded through the curve, and went off the left side of the road.

FACTS

On July 9, 1981, Claimant was 20 years old. He worked in a factory and shared an apartment in Downers Grove, Illinois, with Michael Manion, a fellow worker. At the time of the accident he worked a shift from 4:30 p.m. to 12:15 a.m. At the end of the shift on the day in question, another fellow worker, Neal Rauch, drove Claimant and Manion to their apartment. After talking together for two or three hours, Rauch, Manion, and someone named Dave went swimming in a park district pool to which Dave had the keys. Claimant remained in the apartment. Around 5:30 a.m., the three returned to Claimant’s apartment. Manion agreed to pay for breakfast and to buy gas if Rauch would use his car to take them to breakfast. Dave did not want to go, so Rauch, Manion, and Claimant left for breakfast in Rauch’s car. Claimant sat in the backseat and Manion sat in the front passenger’s seat.

Rauch stopped for gas at the Union 76 gas station in Bolingbrook at the intersection of State Route 53 and Frontage Road along 1-55.

Rauch testified in his evidence deposition that when they pulled into the gas station Manion gave a credit card to the attendant and told him to fill up the car. After the attendant filled the tank he took the card into the station. He then motioned for Manion to come inside. Manion got out of the front passenger’s seat and went into the station. He then came out of the station, got back in the car, and said to Rauch, “Let’s go.” Rauch assumed Manion had paid for the gas. On attempting to leave the gas station, he first drove in a direction in which the exit was blocked, but turned around and found the exit to Frontage Road. He testified that at that point he was going about 15 miles per hour, and that there had been no commotion or disturbance at the gas station.

Claimant’s evidence deposition as to events at the gas station was much the same as that of Rauch. He testified that all he could remember was Mike Manion getting out of the car to pay for the gas, and getting back into the car and saying, “Let’s go.” He testified that there was no commotion or disturbance at the gas station.

Lawrence L. Rouceville, an employee at the gas station and a witness for Respondent, gave a different version of events at the station. He testified that the car came up to the self service island and that a man six feet tall with shoulder-length blond hair filled up the car. He got a credit card from somebody in the car and gave it to the witness. The witness took the card into the gas station where another employee wrote up credit card purchases and checked to see if the card was stolen. A check revealed that the card was stolen. The employee in the station told the witness to detain the car. The witness went back out and told the man who gave him the card that the card was being checked.

“I came outside, and he said, ‘Well, I can pay for it in cash. Can I have the card back?’ He was real nervous.

I said, ‘Well, you know, it will take just a little longer. Can you wait?’ He said, ‘Okay. I will go back to the car and get the money. Could you give me back the card?’

‘Well,’ I said, ‘whatever.’ So, he got in the car. As soon as they got in the car, they spun out and took off towards the parking lot.”

The exit towards which they were driving was blocked, so the driver turned around, “* * * came back and went on to Frontage Road really fast.” The witness watched the car travelling east on Frontage Road for 200 to 250 yards. In his opinion the car was going 40 miles per hour when it left the gas station and failed to stop at the stop sign for Frontage Road, and was going 65 to 70 miles per hour when he last saw it.

On cross-examination the witness testified that when the man who gave him the credit card got back into the car he got into the right front passenger’s seat. He also stated that he had no dealings with the passenger in the back seat (Claimant), nor the driver (Rauch), but only the blond-haired passenger who was six feet tall (Manion).

Continuing chronologically, we return to the testimony of Rauch. Rauch testified that as he drove east on Frontage Road he came to an S-curve. He had been traveling around 45 to 50 miles per hour. He saw the curve and slowed down immediately.

“A. Well I saw the curve coming up ahead, so I slowed down immediately.”

As he entered the curve he was going approximately 30 to 35 miles an hour.

“Q. Before you got into the curve, can you estimate for us how fast you were going?

A. When I was going into the curve?

Q. Just as you got to the curve, just before you started to turn.

A. I would say approximately 30, 35 miles an hour.”

According to Rauch’s testimony he was therefore travelling at the speed of the warning sign posted shortly before the entrance to the curve specifying a speed of 30 miles per hour, although he testified that he did not remember seeing this sign the morning of the accident.

Going into the curve his right front wheel dropped off the pavement to a depth of about six inches. None of the other wheels went off the road. He tried to get back onto the road. When he got back onto the road he applied his brakes, skidded and went into a culvert on the opposite side of the road. The car ultimately hit a barbed wire fence.

He and Manion got out of the car but Claimant could not move. A small car drove up and Manion and the driver of the car put Claimant in the car and took him to the hospital. About 10 to 15 minutes later a police car arrived and the officers handcuffed Rauch.

After the accident, but before the police arrived, Manion told Rauch he had used a bad credit card.

After the accident, the right front tire was flat.

In his evidence deposition Rauch attributed his right front wheel going off the road to the curve being sharp. Also, he stated, “I was a little confused on which way to go.”

On cross-examination he testified that he was going 50 miles an hour on Frontage Road, he thought that was the speed limit, the road was flat, curvy, visibility good, and the pavement dry. He testified that the scene of the accident was about a mile or mile-and-a-half from the gas station.

On direct examination he had testified: “Well, I saw the curve coming up ahead, so I slowed down immediately.”

Under the State’s cross-examination, he modified this statement by saying that he did not see the curve until he was past the curve sign, and he marked a tree on Claimant’s photograph 4 showing where he first noticed the curve. He reiterated that going into the curve his speed was 30 to 35 miles per hour, but admitted that in a recorded telephone statement he had said that he was doing 50 miles per hour when entering the curve. He stated that he did not see the double reverse curve sign with its advisory speed limit, but had no trouble seeing the roadway as he approached the curve, the sun was not in his eyes, and he had no trouble seeing the outer edge of the pavement. He was charged and handcuffed for taking the gas. He pleaded guilty to improper lane usage and proof was made that he was convicted in the circuit court of Will County, Illinois, on theft of gasoline. During the course of the trial, Claimant moved to strike the portions of the evidence deposition pertaining to Rauch’s ticketing for improper lane usage and conviction for theft of gasoline. By order dated September 19, 1984, our Commissioner ruled that cross-examination of the witness as to whether he had been given a traffic ticket at the scene of the accident was proper because the witness admitted he had pleaded guilty. Our Commissioner further ruled that proof of conviction of theft of gasoline was admissible because the offense involved dishonesty.

On re-direct examination the witness explained that as he approached the curve he was going 50, but when he entered it he was going 30 to 35.

In his deposition, Claimant testified that as they were driving east on Frontage Road he had no impression or feeling that it was being driven at an exceptionally high rate of speed. Rauch seemed to be in control of the vehicle. They came to a curve, and as they went into the curve, “the right front end of the car dropped down off the side of the road.” No part of the rear of the car appeared to drop down. The car started to bounce around. The driver struggled with the car, brought it back up onto the road, and the car then went all the way across the highway into a ditch.

The witness described the breaking of his neck as follows:

“Q. What happened to you in the back seat, if anything, when the — when you felt this bouncing in the right front?

A. I was thrown forward, and then when we got back on the road, I was thrown back, and I felt my neck snap, and that’s when I felt the bad pain through the back of my head and I was left without moving anything after the car was stopped.

Q. Did you lose consciousness?

A. No.

Q. At what point did you feel yourself thrown forward?

A. Right about when we started hitting the bumps, I was thrown forward. Q. And at what point were you thrown backwards?

A. When we started swinging back on to the road.

Q. At what point did you feel the pain in your neck that you described earlier?

A. Right about that time.

Q. When you went backwards?

A. Yes.

Q. Can you describe the pain that you felt in your neck?

A. It was just a sharp, shooting, burning pain.

Q. Did you feel pain anywhere else.

A. No.

Q. Were you thrown out of the car at all?

A. No.

Q. Did you strike your head on any part of the car?

A. The driver’s door.

Q. Which part of your head did you strike?

A. Probably the back of my head.

Q. Was that — when did you strike that?

A. When the car stopped.

Q. And was that before or after you’d felt your neck snap?

A. It was after.

Q. When the car finally stopped, where was it?

A. It was in a ditch across the highway.”

When the car came to rest, Claimant could move his head and talk, but other than that he was totally paralyzed.

ISSUES

I. WAS THE STATE OF ILLINOIS NEGLIGENT?

Claimant’s allegations of the State’s negligence fell into three broad categories: failure to sign the road properly, failure to maintain it properly, and failure to warn of the low shoulder.

Failure to Sign the Road Properly

Robert L. Lippman, a civil engineer, testified as an expert on behalf of Claimant that because the speed limit on Frontage Road was 55 miles per hour, in addition to the reverse curve sign with the 30-miles-per-hour advisory, located 375 feet away from the point of curvature, there should have been placed 600 or 700 feet in advance of the point of curvature another sign stating “curve ahead.” In addition, chevrons should have been located along the outside of the curve to delineate the curve. In other words, there was not sufficient advance warning of the curve and no positive guidance through the curve. He regarded the chevrons as particularly necessary because in addition to the curve the roadway presented to the driver an entrance to a weigh station and an exit from the weigh station.

We do not consider the signing of the road an issue because Claimant’s occurrence witness, the driver of the car, testified clearly that even though he did not see the warning sign he saw the curve and entered it at a speed of 30 to 35 miles per hour. On cross-examination he testified that he had no trouble seeing the roadway as he approached the curve, that he had no trouble determining where the edge line of the outer lane was, that visibility was good, and that the sun was not in his eyes. Thus, the failure to have two warning signs instead of one, and the absence of delineating chevrons, were not factors in causing the witness to drive onto the shoulder. He did testify that the curve was sharp and that he “was a little confused on which way to go,” but this does not amount to proving by the preponderance of the evidence that the State was negligent in its signing, or that such negligence was a proximate cause of the accident.

Claimant is bound by the testimony of his witnesses and the case he presents. There is no testimony by Claimant personally or by his witness Rauch that Rauch failed to see the curve and entered it at too fast a speed, thereby making the absence of signs and chevrons relevant. On the contrary, Rauch testified that he saw the curve and slowed down immediately.

“Well, I saw the curve coming up ahead, so I slowed down immediately.”

On re-direct examination he took pains to explain that on approaching the curve he was going 50 miles per hour (five miles under the speed limit), and that on entering it he was only going 30 to 35. His definition of “approaching” and “entering” is worthy of reproduction in full:

“Q. What were you trying to say, but with reference to when you were going 50 miles per hour and when you had slowed?

A. Approaching the curve, coming out of the Union 76 Gas Station on the way on Frontage Road, that is approaching the curve. Entering the curve is when I am coming to the curve, when I saw the curve, when I saw how sharp it was, and when I had a good view of it, that is entering the curve.

Q. So, as you were approaching the curve, how fast were you going?

A. Approaching it, I was 50.

Q. But entering the curve, that is when you had slowed?

A. Right.

Q. But entering the curve, that is when you had slowed?

A. Right.

Q. To, I think you said, 30 to 35?

A. Right.”

He tells us that he saw the curve, that he saw how sharp it was, that he had a good view of it, and that he slowed down to 30 to 35 miles per hour. He did not need two warning signs and chevrons.

Failure to Maintain the Road Properly

The negligence of the State, clearly shown by the photographs introduced into evidence, and established in the testimony of the civil engineer, Lippman, and that of Lawrence T. Jahn, was in permitting a six-inch drop-off between the edge of the road and the shoulder.

Exhibits 16, 17 and 18 graphically show the dangerous nature of the drop-off.

The Claimant’s expert testified in part as follows:

“Q. From your observation of the ruts as depicted, in photograph number six, and those which are measured in photographs 16,17 and 18, do you have an opinion as to whether this condition presented a hazard to motorists on this Frontage Road?

A. Yes, it did.

Q. What is your opinion?

A. The drop off was too sudden, too deep, and too many of them to safely drive with the advisory speed limit of 35 miles per hour or faster.

Q. What is the purpose of the shoulder on a road of this kind in an area of a curve?

A. Shoulder is to support the edge of the pavement, provide a place for disabled motorists to get off the road, provide partial safety release for motorists leaving the road, and intending to come back, provides a place to park, provides a temporary detour when maintenance is being done on the road.

Q. Is there any safety elements to shoulders on a curve of this kind?

A. Safety elements should it match the pavement?

Q. Yes.

A. Yes, it should match the pavement.

Q. Why should it match the pavement?

A. So, you won’t cut a tire, trap a car or make it easier to get off the pavement.

Q. In your opinion, do you have an opinion as to whether a drop off of this kind on a concrete roadway is capable of causing tire damage to a motor vehicle?

A. Yes, it is.

Q. In what way?

A. If — you can cut the tire, and you can cause it to deflate by bending the rim, bouncing action from pothole to pothole can cause a lot, breaking a shock, cause damage to vehicles.”

He testified that a six-inch drop-off was hazardous, that it could cause damage to the tires and the vehicle and cause the driver to lose control. The ruts along the edge of the pavement, in addition to being up to six inches deep, were 16 to 17 inches wide, and over six feet long.

He estimated that the shoulder had not been repaired since the spring of that year or the year before, and that the ruts, themselves, had been there at least since the spring of that year or the year before. He stated that it took a long time for traffic to make such big holes. He testified that the drop-off was extrahazardous, more so than anyone would expect. This testimony plus that of the Department of Transportation foreman established the element of notice.

Under cross-examination by the Attorney General, Mr. Lippman testified that according to Illinois standards, “the shoulder matches a pavement and slopes out at a half inch per foot from the road.”

“A. It has to be stabilized and level to the road.”

He further testified that the ruts in question took at least six months to form, possibly longer.

He testified that he would not want to drive through the curve at any speed in excess of 35 miles per hour and that if Rauch had been travelling in excess of 60 miles per hour he would have gone off on the right hand side of the road.

“the fact that he kept on the road except for one tire means that he just barely missed it ° * “ So, he was going slow at the time.”

Lawrence Jahn, a maintenance foreman for the Illinois Department of Transportation, whose maintenance area covered the road in the vicinity of the accident, testified that it was a regular occurrence for the shoulder to be in the condition shown in Claimant’s photographs. Semitrailers parking on the shoulder or otherwise using the shoulder to enter or exit the weigh station tore it up regularly. He testified that gravel was used to fill the ruts, but he could not remember when bituminous material was last used.

Failure to Warn of the Low Shoulder

The State had ample notice that semi-trucks going off the road pushed the gravel away from the edge of the road on an on-going basis. The State was negligent in not putting up barricades when the situation so demanded, or at least in not putting up signs warning drivers of the low shoulder.

II. WAS THE NEGLIGENCE OF THE STATE A PROXIMATE CAUSE OF CLAIMANT’S INJURIES?

For the negligence of the State in failing to properly maintain Frontage Road (or in failing to warn of the low shoulder) to be a proximate cause of Claimant’s injuries, such negligence need not be the only cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination, causes the injury.

The failure of Rauch to negotiate the curve was a proximate cause of Claimant’s injuries. But when Rauch went off the road, if the shoulder had not been in such a severe condition of disrepair, Claimant would not have suffered the particular injuries he did. If the shoulder had been level with the highway he might have been injured, or he might not have been injured at all. But as a proximate result of the six-inch drop-off, his head was thrust forward, and then thrust backward, resulting in his paralysis. Thus, it can be said that the drop-off was at least one proximate cause of Claimant’s injuries.

Peterson v. State (1984), 37 Ill. Ct. Cl. 104, is a case in this Court involving a drop-off of three to six inches. The driver of the vehicle, Claimant’s deceased, was guilty of contributory negligence, but the Court held:

“Given the fact that the events surrounding the accident are consistent with the phenomenon known as tire nibbling, and given the testimony that indicated that there was a three to six inch drop-off along the shoulder, we believe that more likely than not the accident was at least in part proximately caused by the fact that decedent tried to bring his car back onto the road at a point which had a drop-off contrary to recognized safety standards. It is further undisputed that there were no signs warning the decedent of the dangerous condition.”

The State’s negligence was a proximate cause of Claimant’s injuries.

III. WAS CLAIMANT CONTRIBUTORILY NEGLIGENT?

Claimant was a passenger in the back seat and was in no way guilty of contributory negligence. There was no proof that he was engaged in some kind of joint enterprise, criminal or otherwise, with Rauch and Manion so that he could be charged with Rauch’s driving. Regardless of whether Rauch gave the credit card to Manion to give to the attendant, or whether Manion had the credit card in the first place, there are no facts in the record (contrary to Respondent’s allegations in its brief) that “claimant was a party to an attempt to steal gasoline through the use of a stolen credit card.” Wherever the guilt might lie between Rauch and Manion with respect to the use of the stolen credit card, there is no evidence that Claimant had anything to do with the matter. Respondent presents the picture of Rauch fleeing from the scene of a crime at a high rate of speed to make it appear that Rauch’s driving was the sole proximate cause of the accident. But, as discussed before, Claimant would not have sustained the specific injuries he suffered had the car not dropped into ruts six inches lower than the edge of the pavement, thereby snapping Claimant’s neck, and the expert testimony indicates that the speed of the car was “slow at the time.”

IV. MEASURE OF DAMAGES

Claimant’s injuries, as appear on the face of the record, would give rise to an award of damages far in excess of $100,000.00. Subtracting the sum of $15,000.00 which he received as a consequence of a circuit court suit against Rauch, Claimant is still left with more than $100,000.00 in damages. We are required, however, to deduct the $15,000.00 from the $100,000.00 maximum award.

V. COMMISSIONER’S RULINGS

Permitting Respondent to offer proof of Rauch pleading guilty to improper lane usage and being convicted of theft of gasoline. The evidence was properly admitted since it intended to impeach Rauch’s testimony and related to his honesty.

Refusal to admit into evidence Claimant’s exhibit 25. During the course of the direct examination of Claimant’s expert, Claimant sought to introduce into evidence as his exhibit 25, a treatise entitled A Users Guide to Positive Guidance (2d edition), sponsored by the U.S. Department of Transportation Federal Highway Administration. Claimant offered this document in support of the testimony given by the witness as to the need for chevrons to delineate the curve.

The Commissioner refused to admit the document into evidence, on the grounds that it was hearsay:

“#65.40. Treatises, Scientific Works, etc. A scientific treatise, whether it be on medicine or any other subject, is hearsay and is inadmissible as proof of the statements it contains. Walski v. Tisenga (1978) 72 Ill. 2d 249, 21 Ill. Dec. 201, 381 N.E.2d 279. Under some circumstances it may be used to cross-examine an expert witness. SEE 39.5. Also, it may contain tables and similar information that is admissible under a separate exception to the hearsay rule. See #66.18. It may also contain information that may be judicially noticed.” Trial Handbook for Lawyers, Fifth Edition, Robert S. Hunter, at pages 907, 908.

The Commissioner properly refused to admit the exhibit.

Refusal to admit into evidence Claimant’s exhibit 26. During the course of his cross-examination of Joseph J. Kostur, district safety and claims manager for District 1 of the Division of Highways of the Department of Transportation, Claimant sought to introduce into evidence Claimant’s exhibit 26. This is a treatise published by the U.S. Department of Transportation entitled Maintenance and Highway Safety Handbook. The hearsay objection applies.

Refusal to admit into evidence Claimant’s exhibit 27. During the course of his cross-examination of witness Kostur, Claimant sought to introduce into evidence portions of the Standard Specifications for Road and Bridge Construction. The Commissioner rejected it for the reason that it applied to road construction and not to road maintenance. In light of our holding on the merits, this issue need not be considered.

It is ordered, adjudged and decreed that Claimant is awarded $85,000.00 in full and complete satisfaction of this claim.


text:
    (No. 83-CC-0059
    Kathryn Daniels, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 10, 1988.

    Heiligenstein & Badgley, for Claimant.

      Neil F. Hartigan, Attorney General (Claire Gibson Taylor, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

Claimant, Kathryn Daniels, brought this action for personal injuries she sustained while she and her husband were visiting their son, Lawrence Daniels, who was an inmate at the Centraba Correctional Facility. In her complaint, as ultimately amended, she alleged she was entering through an electrically operated door of the facility when the door “suddenly and without warning started to close.” She further alleged that her right hand was either stuck in or caught by the door, as a result of which she was injured. She asserts negligence on the part of the Respondent on the grounds that its employees negligently acted in one or more of the following respects: they allowed the door to become and remain in a dangerous condition so that it might suddenly start to close on its own power, they failed to stop the door from closing although they knew or should have known that Claimant was attempting to use the door and would be injured if the movement of the door were not stopped, they failed to maintain the door in a proper and safe condition, they failed to repair the door although they knew or should have known of the unsafe condition of the door, they started to close the door or permitted it to close while Claimant was passing through the doorway, and they failed to properly inspect the door so as to discover the existence of a hazardous and dangerous condition. Significantly, the alleged hazardous or unsafe condition was never described.

A hearing for this matter was held on July 29, 1987, before Commissioner Robert Hillebrand. At the close of the presentation of Claimant’s evidence, Respondent moved for judgment in Respondent’s favor pursuant to section 2 — 1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1110). Section 2 — 1110 requires that the trier of fact weigh the evidence when Respondent moves for a finding in its favor at the close of Claimant’s case. Such a motion in a nonjury matter submits the whole case to the trier of fact for determination on the merits. (Banks v. Gregory (1959), 16 Ill. 2d 227, 157 N.E.2d 12.) Commissioner Hillebrand indicated to the parties that judgment should be entered for Respondent because Claimant had failed to prove her case. The Commissioner thereafter filed his report with the Court.

In a letter dated October 12, 1987, the Commissioner informed Claimant’s attorney that in spite of his ruling, it was still Claimant’s obligation to have a transcript of the hearing prepared and filed with the clerk of the Court of Claims if Claimant wanted the Court to review the hearing record and reject the Commissioner’s recommendation that judgment be entered for Respondent. The Commissioner also informed Claimant’s attorney that if the Commissioner was not notified within 14 days of the receipt of the letter of Claimant’s intentions regarding the filing of a transcript, it would be assumed that Claimant did not intend to file a transcript and the Court would make a ruling based upon his recommendation and upon the existing record. A transcript has not been filed and neither party has filed a brief.

According to the Commissioner’s report Claimant gave the following testimony at the hearing. She and her husband went to visit their son at the correctional facility on October 18,1981. They were escorted by Sgt. Ford of the Department of Corrections into the visitors area of the correctional facility. They waited for a couple in front of them to pass through the doorway and then went through the door where the Claimant was injured in what she described several times as a “freak accident.” In an effort to describe how the accident occurred, Claimant testified to several different events. First she said that, when a buzzer sounded, the door opened by having two doors retract by sliding into or along the walls next to the doors and thereby opening in the middle. She said her finger got shut in between these doors. When pressed on this further by her attorney, she then said she believed that only one door swung open on hinges to the right. After being questioned on both direct and cross-examination, Claimant said she simply did not remember how the door opened, nor could she remember through which door she was passing. She also insisted that she could not remember exactly how her hand was caught in the door or in what part of the door. She believes she was simply walking through the doorway with her hand at her side when it somehow was caught. She denied seeing her hand in the door at any time, but rather simply remembered feeling pain and quickly retracting her hand. She then testified at some length about her medical treatment and the nature and extent of her injury.

The Commissioner’s report states that Jessie Daniels, Claimant’s husband, testified as follows. He and his wife were visiting their son at the correctional facility along with their son’s fiancee and three of their son’s children. Mr. Daniels identified from the departmental report a sketch which had been made of the gate house through which all of them had first entered the grounds of the facility. He was able further to identify without qualification that the door where his wife was injured was the door that passed from the gate house into the interior courtyard of the facility. Visitors had to walk through that courtyard to reach the administrative building of the facility, which houses the visiting area. Two photographs of this door were clearly identified by Mr. Daniels. The door is a single door which swings on a hinge on the right side out and away from the interior of the gate house and into the courtyard. It has a glass window in the middle and is surrounded by a frame. On the inside left side of the door is a plain metal plate which is pushed by the person using the door to open the door out of the gate house and into the courtyard. On the outer, courtyard side of the door is a single handle which must be pulled to open the door by a person entering the gate house from the courtyard. The door is electrically locked and unlocked by a guard in the gate house. However, the door will not open or close electrically; only the locking mechanism is operated electrically. The door can only be opened by the manual action of the person pushing or pulling the door. After the door has been opened and is no longer being held in an open position, it is brought back to the closed position by a pneumatically operated return mechanism attached to the top of the door.

The Commissioner’s report further states that Mr. Daniels initially testified that his wife was holding the door open when the wind in the courtyard pushed the door closed against her hand. However, he admitted he had never felt or experienced the wind push the door, but only assumed that was a possibility of how the door had been closed on his wife’s hand. He further admitted that he did not see the door close on his wife or on her hand. He testified that his wife opened the door and stepped through the doorway and held the door open for him and the rest of the persons in his party to pass through. He was first made aware of a problem when he heard his wife yell in pain. He turned around and saw his wife holding her hand.

According to the Commissioner, although Claimant was considerably confused as to what kind of door injured her and how the injury occurred, Mr. Daniels quite clearly identified the door and what occurred at the time of the injury. Unfortunately, he could not testify as to what happened to cause Claimant’s hand to be injured, as he did not actually see this occur. The most he could say was that he had been told by an officer on duty that the door needed to be fixed and that the officer knew someone was going to get hurt. However, Claimant presented no evidence as to what kind of repair was needed, what mechanism or portion of the door needed repair or what specifically was meant by the statement of the officer. The departmental report placed into evidence pursuant to Rule 14 clearly states that there is no evidence of disrepair or faulty operation. No other evidence or testimony was presented by Claimant in regards to liability.

Based on the record before us, we find that Claimant has been unable to present any evidence to support her specific allegations of negligence. It appears that Respondent had no control over the opening and closing of the door and thus had no independent operation to control the closing of the door on Claimant’s hand. We further find that although it has not been pleaded, there is no evidence to allow the claim to proceed on the theory res ipsa loquitur. At the very least, Claimant must show that the instrumentality which injured her was under the exclusive control of Respondent and not under her control in any way. Since Claimant was the only person operating the door, the res ipsa theory does not apply to her claim.

Wherefore it is hereby ordered that Respondent’s motion for judgment be, and is, hereby granted and that this claim be, and is, accordingly dismissed.