text:
    (No. 86-CC-0266
    Taft Smith, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 9, 1994.

    Goldstein, Goldberg & Fishman (Robert Cohen, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Diann Marsalek, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This is a tort action filed by Claimant, Taft Smith. Most of the facts are not in dispute. On November 2, 1984, Claimant was admitted to the John Madden Mental Health Facility. This mental health facility is under the control of the Illinois Department of Mental Health and Developmental Disabilities.

Claimant recalled being admitted to the facility when the police brought him there on November 2, 1984. Claimant does not recall giving permission to admit him to the facility but the evidence shows he voluntarily signed in. He recalls being placed in the quiet room of Pavilion Two on that morning because he had created a disturbance by knocking pumpkins off a counter. He remained in the quiet room in full-leather restraints throughout the day. He was without clothing while he was there. Claimant remembers getting out of the restraints the next morning, on November 3, 1984, and a security guard putting the same restraints back on and then removing the restraints again. He recalls leaving the quiet room with nurse Parikh, returning there and then fighting with her. He escaped the pavilion by throwing a bench through a plate glass window. He was returned by the Maywood police department to the facility. He was then placed back in the same quiet room with the same restraints. No other restraints were placed on Mr. Smith. When breakfast was brought to Claimant by a Mr. Pal, Mr. Pal removed the restraints around Claimants right hand and then Mr. Pal returned to retrieve the breakfast tray. Mr. Smith escaped from the restraints, pushed Mr. Pal aside, and left through the unlocked door to the outside. Mr. Pal chased after Claimant. Claimant recalls losing his balance at the top of the stairs when Mr. Pal was reaching for him. He remembers seeing a bone sticking through his right leg and a doctor coming to his aid.

Claimant was taken to Loyola Foster McGaw Hospital where Dr. Mark Lorenz performed surgery on his legs. Claimants legs were placed in casts and he was in traction during the remainder of his stay. Claimant remembers being transferred to Cook County Hospital where the casts were removed until another operation was conducted on his right ankle. Later, while still in the hospital, he was treated by whirlpool therapy and exercises to teach him to walk. Claimant recalled going back to Fantus Clinic for dressing changes, whirlpool treatment and physical therapy. He recalls beginning to walk with the use of a walker and then with crutches. Claimant began to learn with a therapist how to walk with a cane about ten months later. Claimant testified that the farthest he now walks is from his house to the street in front. Claimant also testified that his hospital bills were paid. Claimant denied having any prior injuries to his legs.

Mr. Smith testified that he was 45 at the time of the hearing and lived in his own apartment. While testifying, he was under medications. At the hearing, he complained of constant pain in his right ankle and left knee. He stated that he had difficulty keeping his balance and suffered severe pain when standing to walk. He testified that the longest period of time that he could stand without pain was ten minutes.

Mr. Pal testified that on November 3, 1984, he was in his fourth year as a staff psychologist at the John Madden Mental Health Facility. Mr. Pal testified that the facility did not use straight]'ackets or handcuffs to restrain patients. Mr. Pal testified that there were two rooms used to restrain and seclude patients, called the quiet room, at Pavilion Two. Those patients were routinely checked every hour.

On November 3, 1984, Mr. Pal volunteered to work. His duties were assigned to him by the nurse in charge, a Joan Culbertson. He arrived at the facility at about 8:00 a.m. and spoke to the nurse from the previous shift, Lillian Parikh. He recalls her informing him that Mr. Smith had escaped from the full-leather restraints, that he had been taken from the quiet room, returned to the same room with nurse Parikh, and that Claimant had attempted to strangle her there. Further, Ms. Parikh informed Mr. Pal how Mr. Smith then succeeded in escaping the facility. Mr. Pal also recalled that another patient had a seizure for about 15 minutes at the same time he arrived at the facility. Mr. Pal did not help with that patient but instead was instructed to serve Mr. Smith breakfast. Nurse Culbertson told Mr. Pal to take Mr. Smith a breakfast tray while Mr. Smith was in full-leather restraints in the quiet room. At 8:15 a.m. Mr. Pal, under instructions from Mrs. Culbertson, served Mr. Smith his breakfast tray and removed the restraints from Mr. Smith’s right hand so that he could feed himself.

Later that same morning, Mr. Pal was instructed by nurse Culbertson to go to retrieve the breakfast tray. Mr. Pal observed three of the restraints attached to Mr. Smiths left arm and legs as he entered the quiet room, but did not see the two remaining restraints because of a sheet covering Claimants body. As Mr. Pal stepped into the room, Claimant jumped up from the bed, pushed Mr. Pal aside, and ran from the quiet room. Claimant ran naked down the hallway and through the nurses' station. Mr. Smith exited Pavilion Two through an unlocked door. As a general rule, that door was the only door that was kept unlocked.

Mr. Pal saw no security guards present at the pavilion at the time of Mr. Smith’s escape. He chased after Claimant and came within 50 feet of Mr. Smith. He saw Mr. Smith descending stairs leading to Frontage Road. He did call for Claimant to stop. Mr. Pal testified that when he got to the top of the stairs, he saw Mr. Smith lying at the bottom of the stairs with an open fracture to his right ankle.

Nurse Joan Culbertson testified to being the charge nurse at the facility on November 3, 1984. She knew Mr. Smith from his prior treatment at the facility. She worked the same shift as Mr. Pal and saw Mr. Smith in restraints when she arrived. She heard of Mr. Smith’s escape from the restraints. She testified that the door adjacent to the nurses’ staff was kept unlocked during the day. She confirmed that one method of restraining patients in the quiet room was to double the restraints so that twelve restraints were used. She recalled checking Mr. Smith’s restraints when she arrived on shift and that Mr. Smith tried to get her to loosen the restraints. She indicated that the routine was for Mr. Pal to check Mr. Smith every 15 minutes.

Dr. Felix Panahon was a staff physician at the facility on November 3, 1984. He testified that only physicians could order the implementation or removal of leather restraints. Nurses had no authority to order the removal of restraints. The quiet room was reserved for patients who were either agitated or violent. He recalled finding Mr. Smith at the base of the stairs, naked and with an open fracture of the right ankle and gross deformity of the left knee.

Dr. George DeSadier, director of admissions of the facility, testified that in determining when to admit a patient in 1984, the factors to be considered were first, whether the patient could care for himself and second, whether the patient was dangerous to himself or others. He stated that the patient was asked to sign a voluntary admission form to show his willingness to be treated at the facility. If a patient is away from the facility on an unauthorized absence, upon his return to the facility he would be taken back to the same pavilion from where he had escaped. He testified that Mr. Smith was a voluntary admission based upon Mr. Smiths signature on the voluntary admission form.

Mr. Jeriy Russell, the security chief for the facility, testified that no exterior fences or gates existed at the facility on November 3, 1984. He testified that no security guards were on station at each pavilion. There was not enough money to support that much staff. He acknowledged that if he came on shift after an individual had escaped from the facility, he would not assign any additional security to that patient'or suggest further restraints, although he indicated that he had the authority to make recommendations to the psychologist of the unit to add restraints. He testified that his security officers did assist in the application and removal of restraints if requested to do so.

In the 10 years prior to Claimants admission to the John Madden Mental Health Facility on November 2, 1984, he had been admitted to other facilities and Madden’s on 16 different occasions. Claimants most common diagnosis was schizophrenia paranoia. The inpatient admission forms indicate that Respondent was aware on November 2, 1984, that Claimant was brought to the facility by the police because he had tom up his home. It is noted that Mr. Smith had a lengthy psychiatric history, was viewed as manipulative, and was interviewed while in full-leather restraints. On the admission form bearing Claimants signature, it was noted that Claimant was not suitable for informal admission because he had torn up his house, threatened to hurt everyone, and had broken dishes. The facility discharge summary indicates that upon admission, Mr. Smith was distorting events about his behavior prior to his admission. The notes also show that nurse Parikh, who Mr. Smith attempted to choke, was pressing charges against Claimant and that Mr. Smith should not be readmitted to Pavilion Two until the charges were resolved.

On the handwritten admission form dated November 2, 1984, at 4:00 a.m., it is stated that Claimant was naked except for a robe he was wearing, that he did not want to be there, and that he denied PCP abuse. The notes also relate that officer Merrill called advising, “Do not underestimate individual * * * he has quick temper * * * and patient’s family lives in fear.” Mr. Smith is described as wearing a robe and handcuffs. Mr. Smith’s admission diagnosis for November 2, 1984, at 4:45 a.m. lists a diagnosis of intermittent explosive disorder. Mr. Smith was taken to Pavilion Two in handcuffs.

Claimant’s first medication by a physician on November 2, 1984, included Thorazine four times daily. He was further ordered to be placed in full-leather restraints for eight hours or less beginning at 7:15 a.m. on November 2, 1984. He was also given another tranquilizer by physicians’ order on November 2,1984, being Haldol four times daily. Later that day, at 3:15 p.m. and 11:15 p.m., he was again ordered into full-leather restraints with an additional dosage of Haldol. Claimant’s medical chart indicates that on November 2, 1984, he was given Haldol and Thorazine on four occasions beginning at 7:00 a.m. Claimant’s only medication on November 3, 1984, was at 8:15 a.m. when he was given one dose of Haldol.

The nurses’ notes indicate Claimant was placed in full-leather restraints for throwing pumpkins on the floor. At 12:30 p.m., security helped the staff take Mr. Smith to the bathroom and return him to full-leather restraints. Security again helped Mr. Smith to the bathroom at 3:50 p.m. A notation is made at 11:15 p.m. that Mr. Smith remained in full-leather restraints because of unpredictable behavior and that he was dangerous to himself and others. By midnight it was noted that he had removed the full-leather restraints and security was called to reapply them. The staff notes continue with entries at 5:45 a.m. on November 3, 1984, and indicate that Mr. Smith removed the full-leather restraints a second time. Mr. Smith stated that he wanted to return to his room and did so. Five minutes later, he returned to the quiet room and attempted to choke nurse Parikh and ran through the unit. He threw a bench through a window and escaped from the building. Claimant was returned and placed back into the quiet room in the restraints at 6:30 a.m., after being captured by the Maywood police.

Mr. Smith’s diagnosis was redefined by a staff physician on November 2, 1984, as impulse control disorder, acute severe in cyclothymic personality disorder.

The facility requires that its personnel keep entries on restraint/seclusion record forms. On the first form reflecting Claimants stay, it is indicated that by 7:15 a.m. Mr. Smith was placed in the quiet room and remained there through 3:15 p.m. Claimant had his right hand loosened for breakfast but not for lunch. He was continued in restraints for eight additional hours from 3:15 p.m. through 11:15 p.m. because it was noted that he was unpredictable and unmanageable. He was shouting and fighting with security as they put him back into restraints. He was served dinner without having his right hand loosened. He spent that evening in restraints and was escorted by security to the bathroom at 10:15 p.m. By 11:15 p.m., he was returned to restraints for another eight hours by physician order because he continued to be unpredictable and unmanageable.

At 5:15 a.m. he removed the restraints again and security helped reattach them. At 5:45 a.m. he removed his restraints for a third time, left the quiet room, and then attacked nurse Parikh. He was returned by security and placed into the restraints in the quiet room. By physician order he was placed back into the restraints for a period to last eight hours. He was served breakfast at 8:15 a.m. and given Haldol with the assistance of security at 8:30. a.m. He then escaped the restraints for a fourth time at 9:30 a.m.

Additional documents note that nurse Culbertson freed Claimants right hand so that he could feed himself breakfast but that he was still bound by five restraints at the time. Later examination of the quiet room by Mr. Pal showed that the bolts that held the bed down were shaken loose and that Claimant had slipped from the restraints.

Mr. Smith was taken by ambulance and admitted to the emergency room at the hospital on November 3, 1984, at 9:35 a.m. Claimant had an open fracture at the right ankle with a possible left knee fracture. Pain medication was prescribed by the assigned orthopedic surgeon, Dr. Mark Lorenz, as well as an IV, ice, antibiotics and splints to both right and left legs. Additional p&in medication was prescribed along with a dose of Haldol before Dr. Lorenz scheduled surgery for that afternoon. X-rays taken on November 3, 1984, of the left knee showed a “markedly comminuted fracture of the proximal tibia involving the articular surfaces. There were also multiple small bony fragments in the region.” The x-rays of the right ankle were found to reveal a markedly com-minuted fracture of the distal fibula and tibia. The fractures involved the articular surfaces. There were multiple small bony fragments in the region. Also noted are soft tissue lacerations. Dr. Lorenz performed an open reduction surgery on Mr. Smiths right ankle. His operative report indicated that he found “severe comminution” upon entering Mr. Smiths right ankle. Because of the size of the opened wound and the instability of the ankle, the doctor inserted a large pin and attached it to another pin in order to secure the bones in proper alignment. Dr. Lorenz placed a similarly large pin in Mr. Smiths left foot to correct the knee fracture by the use of traction. Mr. Smith was sent to the recovery room with his legs in traction.

Further x-rays revealed that the fracture lines were still evident on November 19, 1984. On November 20, 1984, a second operation was conducted by Dr. Lorenz under general anesthesia. Additional pins were inserted by Dr. Lorenz into Mr. Smiths right tibia. Mr. Smith remained at Loyola Hospital for one month before being transferred to Cook County Hospital. Mr. Smith remained in Cook County Hospital as an in-patient from December 4, 1984, until December 18, 1984. The x-ray report of July 11, 1985, indicates a finding of “mild post traumatic degenerative type arthritis to the left knee.” The findings in the right ankle indicate “marked distortion and deformity in the ankle joint due to past trauma.”

The Respondent has a duty to exercise reasonable care in the restraining and controlling of dangerous insane persons committed to its custody so that they will not have the opportunity to inflict foreseeable injury upon themselves or others. Houston v. State (1977), 32 Ill. Ct. Cl. 143.

To prevail, Claimant must prove that the Respondent breached its duty owed to Claimant and that Respondent’s breach was the proximate cause of his injury and that the injury was foreseeable. Comparative negligence will also be applied. Houston, supra; Walker v. State (1982), 35 Ill. Ct. Cl. 583.

In Walker, supra, this Court found that the State failed to use due care in rendering treatment to a senile patient, that the State’s negligence was a proximate cause of patient’s escape and subsequent injury when he jumped, from an unlocked third story window as the evidence showed that the Respondent’s personnel were aware of the patients tendency to escape and security measures to prevent escape were trot adopted. The patient in Walker was 76 years of age. He was admitted to the Illinois Public Health Hospital in Chicago with a diagnosis of senile and confused. He was placed on the fifth floor geriatric unit. The patient attempted several times to leave the facility by the elevator. The hospital was warned by the patient’s family that the patient must be watched carefully as he had a tendency to run away. Later the patient was missing. The patient was found lying on the ground outside the hospital’s east windows. One window was open and the blinds torn. The window had no lock, bars or protective screen.

The claimant in Walker, supra, called an expert witness who testified that it was foreseeable that a confused geriatric patient with a longing to go home might be able to leave the ward. The expert also testified that the security system at the hospital was inadequate, relying too much on human control and not enough on mechanization. He further testified other facilities had a much higher degree of mechanized security. The Court found that the injury to the patient was foreseeable.

The Claimant in the present case did not call an expert witness. However, it is clear from the evidence that the State breached its duty to Claimant, that the injury was foreseeable, and that Respondents negligence was a proximate cause of Claimants injury. There is no question that the State knew that Claimant was violent and had attempted to escape and actually escaped prior to the final attempt to escape wherein he was injured. Without a doctors order the restraints on one hand were loosened and Claimant was left alone. There is also no question that security was inadequate at the facility due to under-staffing. Respondent was negligent in failing to protect Claimant from his human tendencies. He had slipped from the restraints three times and had effectuated one escape prior to the attempted escape where he injured himself. He had attempted to choke one employee. Security had helped on a prior occasion at mealtime and Claimant had been fed with restraints on a prior occasion.

It is not necessary for Respondent to have foreseen the exact circumstances of the rendering of harm to Claimant for the harm to have been the proximate result of negligence. It is not essential for foreseeability that the person charged with negligence should have foreseen the precise injury which resulted from his act. Neering v. Illinois Central Railroad Co. (1943), 383 Ill. 366.

In this case it was foreseeable that Claimant would attempt to escape and that such escape attempt by a naked, insane person might very well result in injury. The Claimant was injured as he was running from Mr. Pal as he tried to escape.

The Claimant has provided undisputed evidence of his injury due to his uncontrolled descent of the stairs at the facility on November 3, 1984. He went through multiple reduction surgeries and remained in casts and traction for 30 days. His treatment continued for two more weeks as an inpatient and then for ten months as an outpatient. His medical bills were paid and thus are presumed reasonable. All of the pain and disability that Mr. Smith testified about is uncontradicted. However, there was no medical corroboration or testimony concerning future pain and suffering and future disability. Under the law, Mr. Smith is entitled to recover, considering the nature and extent of his injuries, damages for pain and suffering, disability, and past medical expenses. His medical bills totaled $23,972.01. The x-ray report from 1985 indicates marked deformity and post-traumatic arthritis. He lives with pins in both extremities. He cannot ambulate any distance, uses a cane for walking, and cannot stand for any period of time longer than ten minutes.

For all of the above reasons and authorities cited, it is the order of this Court that Claimant, Taft Smith, is awarded $23,972.01 for medical bills, $20,000 for all pain and suffering, $15,000 for all disability, for a total of $58,972.01. The Respondent is granted a set-off for the $23,972.01 paid by the Respondent for medical bills. This is not a collateral source as the payment was by the party. Scott v. State (1990), 43 Ill. Ct. Cl. 85.

Therefore, it is ordered that Claimant, Taft Smith, is awarded $35,000 in full satisfaction of his claim.


source: Caselaw Access Project

author: Raucci, J. Raucci, J.

license: Public Domain

text:
    (No. 86-CC-1891
    Peter Roels, Claimant, v. The Board of Governors of State Colleges and Universities, and Eastern Illinois University, Respondents.

      Opinion filed January 13, 1995.

      Order on petition for rehearing filed April 12, 1995.

    Lawrence T. Ruder, for Claimant.
    Dunn, Ulbrich, Hundman, Stanczak & Ogar (David S. Dunn, of counsel), for Respondents.
   OPINION

Raucci, J.

This cause comes before us after hearing on Claimant Peter Roels’ claim for damages for personal injuries suffered on April 20, 1985, while participating in the Pepsi Invitational Track Meet sponsored and hosted by Respondent Eastern Illinois University (EIU) which is under the jurisdiction of Respondent Board of Governors of State Colleges and Universities.

A discussion of the evidence is necessary for the disposition of the claim. Claimant was a pole vaulter who represented William Rainey Harper Community College at the meet. Pole vaulting is considered to be an inherently dangerous event. The pole vaulter first sprints down a runway which is 170 to 180 feet long. As the athlete approaches the landing area he plants his pole into a “planting area.” His speed and upper body technique should ideally provide sufficient momentum to carry him to heights ranging from 13 to 16 feet. He should have sufficient height to vault over a cross bar. He then descends into a landing area comprised of sections of foam padding. A vaulter “stalls out” when he has insufficient momentum to carry him through the vault. It is a common occurrence during pole vaulting.

The landing area or pit is where the vaulter lands after his jump. A “planting box” is located immediately in front of the main landing area. To each side of the planting box are U-shaped pads (aprons). A separate foam pad or plug is adjacent to and immediately next to the planting box. It is typically secured to the main landing pad with hooks. Directly behind the plug are the various areas of the landing area. Claimant alleges that the pads which comprise the landing area are to be covered with a spike pad. The spike pad is intended to protect the vaulter s lower extremities from entering the space between the foam pads. The spike pad is secured to the foam pads by hooks which are intended to prevent the spike pad from sliding. The thrust of Claimants position is that there was a better design available than the one used at EIU.

Prior to the injury, Claimant was, as would be expected, in good physical health and suffered no physical limitations. The night before the meet he had consumed beer, and felt drunk.

Before he vaulted, he had the opportunity to examine the landing area, and normally he did. On this occasion, however, he did not “make a conscious effort” to do so. He did not at any time walk up to the area with the objective of inspecting it even though he had not previously used a mat of this type. He did not observe any defect.

During a warm-up practice vault, Claimant was injured when he stalled out during an attempted 15-foot vault. Claimant, who had been taught to land on his back or to ride the pole down when possible landed feet first because he thought it was the safest way. When he descended facing the runway (with his back to the pit) “the next thing I knew, my foot had gone through the pieces of the mat.” Claimant’s right foot had impacted the pole vault landing area and entered an exposed opening between the foam pad called the plug and another pad which comprised the main landing area. Claimant maintains that the area should have been covered by the device known as a “spike mat” or “spike pad.” His right foot impacted the ground under the landing area and broke his right ankle. Claimant received emergency treatment in Charleston, and at Lutheran General Hospital in Des Plaines, Dr. Paul Katz performed reconstructive surgery on Claimant’s right ankle. Claimant was hospitalized at Lutheran General Hospital for 10 days. His medical expenses to date total $11,364.77.

Claimant testified that he can’t participate in activities that use his leg without suffering pain.

Neil Moore testified that he was the head track coach at EIU and was director of the meet. He had 30 years experience coaching track and field events. As host, Eastern was responsible for conducting the meet and insuring that the athletes competed under safe conditions. EIU had hosted the Pepsi Invitational Track Meet for about five years preceding the 1985 meet. EIU had also hosted the NCAA Division II and III national track meets at the same track at the same time. It was the only time that both events had been hosted at the same time by an institution in the history of the United States. During Moores 15 years at EIU, the school had hosted approximately 10 meets per year.

Moore had purchased the pit approximately three years prior to the 1985 Pepsi meet. When he bought it, he believed that it was the first of its type, and was impressed favorably with it. “It was a prototype. It set the trend.” He believed that the pit met all of the specifications of the NCAA regulations.

The officials for the meet were two injured “outstanding vaulters” who were EIU students, Mark Hamilton and Roxy Wood. They had other helpers also. Officials have complete authority to deal with shifting of the pit during competition. During meets, Moore watched as closely as possible to assure that the meet was run efficiently, safely and on schedule. Moore, on the occasion of the 1985 Pepsi meet, had extra work done to make the pit as safe as possible. He wasn’t satisfied with the area around the planting box, and had tied the steel rings attached to the apron and plug with very strong nylon cords about the size of the little finger to give additional support. He did this because the pit sometimes shifts and might need to be adjusted.

Athletes can object to unsafe conditions. Moore testified that if the plug is fastened without the nylon cords, it is loose and that is why he ties the plug to the main pit with the cord. The bond is much tighter with the cords than without the cords. He last inspected the pit about an hour before the competition.

Moore testified that on the day in question, all three rings across the top of the plug were tied as well as additional plugs on the sides. He was familiar with the manufacturers instructions for assembly, and the pit was assembled in conformity with those instructions. Additionally, he had taken additional precautions with the nylon cord tied in the plug area.

Moore testified that he was about 55 feet away from the pit when Claimant made his vault. On Claimant’s cross-examination, he testified that while he did not see Claimant land, he did observe the vault. He felt that Claimant took a bad fall and ran to the pit. In response to Claimants counsel’s question of what he observed that led him to feel this way, he stated

"Well, because of his indecision at the time when the pole stopped moving, the pole stalled out and it had not come to a complete vertical. If it had, he could have gotten off into the main pit. It had a slight lean and the longer he waited, the more it started coming back and then he was forced to bail out.”

On redirect, he testified that most experienced vaulters recognize that an exposed gap between pads is dangerous, and that vaulters can stop and object to a dangerous condition. Additionally, he testified that if the spike cover had moved to expose an opening, it would have been readily observable.

We have often stated the rule that the Claimant bears the burden of establishing by a preponderance of the evidence that Respondent breached its duty of reasonable care, that the negligence of Respondent proximately caused the injury, and that the Respondent had actual or constructive notice of the dangerous condition from all the circumstances in the case. Berger v. Board of Trustees of the University of Illinois (1988), 40 Ill. Ct. Cl. 120; Rossett v. State (1985), 37 Ill. Ct. Cl. 118; Talbott v. State (1983), 45 Ill. Ct. Cl. 885; Hitt v. State (1982), 35 Ill. Ct. Cl. 798; Claycomb v. State (1981), 35 Ill. Ct. Cl. 200; and Nolan v. State (1983), 36 Ill. Ct. Cl. 194.

The evidence indicates that the Respondents exercised reasonable care in assembling the landing area. There is no evidence that Respondent had either actual or constructive notice of the alleged defect. The existence of a better design, as alleged by Claimant, imposes no duty on Respondent in the absence of evidence that the device used was not safe. Moore testified that the landing area was properly assembled, and that he examined it about an hour before the meet. Claimant did his practice vault before the start of the meet. There is no evidence that anyone had notice of the alleged defect prior to the accident. Claimant did not notice it, the officials did not notice it, and Moore did not notice it.

The evidence indicates that one proximate cause of the Claimants injury was the manner in which he completed the vault which was contrary to the way he was taught to land.

Claimant has failed to meet his burden of proof and the claim should be dismissed.

It is therefore ordered, adjudged and decreed that this claim be, and it is hereby, dismissed with prejudice.

ORDER

Raucci, J.

This cause coming on to be heard on the Claimants petition for rehearing, the Court being fully advised in the premises, the Court finds:

We have considered the Claimant’s petition for rehearing and the arguments contained therein, and we find that our original opinion should stand.

It is therefore ordered that the Claimants petition for rehearing is denied.


author: JANN, J. Jann, J,

text:
    (No. 86-CC-2517
    Bertha Pro, Individually and as Administrator of the Estate of Elio Pro, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 30, 1994.

      Order on petition for rehearing filed February 9, 1995.

    Bertha Pro, pro se, for Claimant.
    Jim Ryan, Attorney General (Nuviah Shiragi, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

Claimant, Bertha Pro, as Administrator of the Estate of Elio Pro, deceased, and Bertha Pro, individually, filed a complaint in the Court of Claims on March 3, 1986. In her complaint Mrs. Pro alleges negligence on the part of the Respondent, State of Illinois, which resulted in the death of her son, Elio Pro. She alleges that her son was driving an automobile on Veterans Parkway in Normal, Illinois, on March 3, 1984, in a southerly direction. She further alleges the decedents vehicle left the roadway and traveled in the median strip inside the guardrail until the vehicle went over an embankment into a creek and her son was killed. She claims the State was negligent in its erection and maintenance of the guardrail which she alleges prevented the vehicle from returning to the roadway. The State filed its answer denying the claim on May 1,1986.

The case was tried by the Commissioner assigned to the case. The evidence consists of the two-volume transcript of testimony from August 22, 1990; certain admissions from the request for admissions filed by Respondent (which includes a transcript of the coroners inquest); Claimants exhibits and Respondents exhibits. Oral arguments were heard on February 18, 1993.

The Facts

The Claimants decedent, Elio Pro, died in the early morning hours of March 4, 1984, in a single-vehicle accident along Veteran’s Parkway in Normal, McLean County, Illinois. The accident occurred at about 2:00 a.m. at a site 550 feet north of the intersection with East Vernon Avenue. Veteran’s Parkway is a four-lane road, with two southbound and two northbound lanes. There is a grass median between the northbound and southbound lanes which is 30 feet wide. There are dual bridges which span a creek at the scene of the accident, however the grass median does not slope down to the creek. There are concrete retaining walls on either side of the creek. It is 17 feet, 2 inches from the creek bed to the top of the retaining walls, and from the retaining walls, it is a sheer drop to the creek below.

There is no overhead lighting at the creek. The closest lighting was at an intersection about 3/10 of a mile away. At the time of the accident, the posted speed limit for Veterans Parkway was 45 miles per hour and the average daily traffic count was 15,700. The bridge for southbound traffic had concrete parapets which were two feet off the edge of the pavement. The concrete parapet on the median for southbound traffic and the creek were protected by 125 feet of guardrail. This included 100 feet of guardrail plus a 25-foot terminal section with the first 1214 feet of the terminal section at full height and the last 1214 feet comprising a turn-down. The dual bridges were originally constructed in the 1940s. In 1970, the pavement at the dual bridges was upgraded and the guardrails were installed. There was no major construction at this site since the 1970 to 1972 time period and the configuration of the guardrail and the retaining walls were unchanged from that period to the date of the accident.

At approximately 2:00 a.m. on March 4, 1984, the car that Mr. Pro was driving left the roadway and began traveling in the grass median between the northbound and southbound lanes of Veterans Parkway. The car proceeded in a southerly direction in the median until the car went over the concrete retaining wall abutting the creek, at which time the car dropped over the edge and into the creek below. There were no passengers found in the car and there were no eyewitnesses to the accident.

Sometime between 1:00 a.m. and 2:00 a.m. on March 4, 1984, the decedent drove Mr. Russell Shelton to Mr. Shelton’s Towanda home after a party on the east side of Bloomington. Mr. Shelton had met the decedent at this party and there was beer being served at the party. Mr. Shelton testified that he had consumed probably 10 beers at this party. Mr. Shelton further testified that the route from the party to Towanda would include proceeding northbound on Veterans Parkway, that the vehicle Mr. Pro was driving was a Mazda RX-7, and that Mr. Pro and Mr. Shelton were the only persons in the vehicle as it proceeded northbound to Towanda. Mr. Pro let Mr. Shelton off in Towanda and Mr. Pro then started driving back to Bloomington going southbound on Veterans Parkway. Decedent drove off the pavement into the grass median and then drove over the creeks retaining wall where he died.

This accident was investigated by Sergeant Ralph Ebert of the Normal police department. Mr. Pro was already dead when Sergeant Ebert arrived. The accident had been reported to the police by a passerby who had happened upon the scene while walking. The investigation revealed that there appeared to be a tire mark and two scrape marks across the top of the north end of the median guardrail for southbound traffic. Sergeant Ebert scraped the marking at the scene and it came free. He believed the substance to be tire substance. The tread design of the tire mark on the guardrail turn-down matched the tread design of decedent’s automobile. Sergeant Ebert also observed a set of tire impressions that started just off the roadway approximately ten feet to the north of the guardrail that proceeded across the guardrail turn-down, and then straight toward the creek retaining walls. The markings on the guardrail turn-down and the tire impressions in the grass median appeared to be fresh. The grass in the median was still in a downward position and in the direction of what Sergeant Ebert felt was the vehicle’s direction of travel. The tire impression could be traced from the north retaining wall all the way back to the guardrail turn-down. There was another set of tire impressions in the median, but those tire impressions had a larger wheel base than that of decedents auto.

Scrape marks were observed on the south retaining wall, approximately eight feet above the creek bed. The paint marks in the scrape observed on the south retaining wall were made by a gray automobile and the decedents vehicle was charcoal gray.

The auto decedent was driving was a 1983 Mazda sports coupe. The headlight switch was in the on position and there was no damage to the wheels or tires of the vehicle. An engineering inspection of the vehicle by Professor Hank Campbell of the Department of Industrial Technology at Illinois State University revealed that the decedent had not been engaged in a hard braking maneuver. Sergeant Ebert observed no evidence of braking or other evasive maneuvers at the scene. From all the evidence, including Professor Campbells study, it appeared the vehicle was in excellent condition before the accident, and that there were no mechanical problems which contributed to the accident.

Professor Campbell testified that there was no damage to the tires or wheels of the car. Professor Campbell further testified that in hard braking situations, there would usually be some discoloration on some of the retaining clips, but that there was no such discoloration apparent on Mr. Pro’s vehicle. Additionally, Professor Campbell testified that the car was not in a brake lock-up condition at the time of the accident, that the car had rack and pinion steering which is a very quick and direct way to steer, that the steering mechanism was functional even after the accident, and that the steering wheel was in a straight ahead normal driving position at the time of investigation. Professor Campbell was of the opinion that there were no evasive maneuvers taken at the time of the accident.

At the time of his death, Elio Pro was engaged to be married. He was attending Illinois State University and he had been working between 20 and 40 hours per week at an Eagle supermarket. Mr. Pro was survived by his mother, Bertha Pro, two sisters and one brother.

It is Claimant’s position that the guardrails had a caused relationship to the death of Mr. Pro. Mr. Andrew Svirha, who was a civil engineer with IDOT’s district three division, testified the guardrails near the creek where decedent died were installed during a construction project which started in 1970 and was finished in 1972. Mr. Svirha further testified that at the time of the 1970 to 1972 project, IDOT’s policy regarding the installation of guardrails, and the decision of where to put guardrails, was governed by the design manual, and that during the 1970 project, the road would be constructed in accordance with the policy in force at the time of the construction.

Mr. Charles David Sanders, IDOT’s expert on guardrails, testified as part of his duties as policy engineer for IDOT, and as a former unit chief of the standards and specifications department for IDOT, that he and his employees have maintained records of all standards that have been issued by IDOT as highway standards. Mr. Sanders testified that the documents which compose Respondent’s Exhibit Number 3 were the applicable standards governing the 1970 road project and that Respondent’s Exhibit Number 4 constituted the design manual which governed the same project. Mr. Sanders was able to determine that the minimum guardrail length required for the 1970 project was 112.5 feet and the guardrail which was in fact constructed during the 1970 project conformed to that minimum standard. Mr. Sanders further testified that his review of IDOTs records indicated that there had not been any upgrading of these guardrails.

Mr. Ralph Demolí, a civil engineer with IDOTs district three division, testified that IDOTs policy concerning upgrading guardrails is that when IDOT undertakes a major improvement such as resurfacing or geometric improvement, then IDOT also upgrades the guardrail at that time. Mr. Demoll further testified that it is not IDOTs policy to upgrade guardrails simply because IDOTs standards for guardrails change. Finally, Mr. Demoll testified that there were no major construction projects or improvements made at the site from 1970 to 1984.

Mr. Sanders testified that, in addition to upgrading guardrails at the time of a major construction project, IDOT might upgrade the guardrail if the guardrail had been the subject of major citizen complaints or if located at a high accident location. Mr. Sanders further testified that he had looked through IDOTs records dealing with this accident and that the evidence he found was that there had not been any citizen complaints or evidence that this was a high accident site. Mr. Sanders’ review indicated that there had not been any accidents of significance at the guardrail.

The dual bridges were originally constructed in the 1940s. In 1970, the pavement at the bridges was upgraded and the guardrails were installed. There were no changes to the creek or retaining walls during the 1970 project. The guardrail in question was 125 feet long and had not been changed in any manner since its original installation in 1970, and as conceded by IDOTs engineers, there were no barriers, fences, signs, or other warnings at or near the retaining wall.

IDOT’s engineers testified that the standard for length of guardrail in 1970 were set forth in standard 2231-3 and section 2-240.07 of the 1968 IDOT design manual.

Standard 2231-3 is entitled “Typical Applications of Steel Plate Beam Guardrail.” The diagrams entitled “Guard Rail at Structure” require a minimum of 100 feet of guardrail according to the IDOT engineers. However, section 2-240.07 of the 1968 IDOT design manual requires a minimum guardrail length of 112 feet and 6 inches in the present situation. According to IDOT’s own engineers, section 2-240.07 of the design manual overrides standard 2231-3.

IDOT’s position was that the extra length of the guardrail in question (1214 feet) was sufficient protection for both the concrete bridge parapet and the 17-foot drop to the creek, and that there was no need for additional protection right at the retaining wall itself.

Michael Griffin was Claimant’s expert. Mr. Griffin is an engineer with the Cook County highway department. Although he is now chief engineer of the right-of-way department, he had previously been resident engineer in charge of construction projects. He had been trained in the selecting, locating and designing of traffic barriers, and was familiar with the State of Illinois design standards for guardrails on highways. Part of his past responsibility with the Cook County highway department had been the design of guardrails. He had been licensed as a professional engineer for 28 years at the time of the hearing. The court accepted Mr. Griffin as an expert based on his qualifications.

Claimant’s expert testified that the guardrail, as originally constructed, was not long enough. In 1964, the National Academy of Scientists National Research Council published Highway Research Board Special Report 81. This publication specifically deals with overpasses with twin bridges, which is the situation at the location in this case. This publication indicates a desired length of guardrail of 150 to 200 feet.

IDOT engineers have adopted the position that special report 81 was merely a recommendation and not a mandate. Mr. Griffin also described report 81 as a guide rather than a standard for the construction of guardrails, and admitted that the State standards were controlling to the issue of whether the guardrail in this case was constructed within the proper parameters. The IDOT engineers conceded that the guardrail standards in Illinois were basically whatever the engineers at IDOT said they were. What Charles Sanders (IDOTs expert witness) calls a “standard” is whatever IDOT has adopted and therefore decided to call a standard. The IDOT design manual is written by IDOT engineers. The design manual is based in large part upon Federal publications. Special report 81 played a large role in what was eventually adopted by IDOT in its design manual. However IDOT makes the decision as to which Federal recommendations it does not adopt and IDOT did not adopt the recommendation of 150- to 200-foot guardrails at dual bridges.

IDOT considered the creek to constitute a roadside hazard because the creek traversed the entire median and because there was a 17-foot vertical drop to the creek with no slope or incline. IDOTs engineers acknowledged that the purpose of the guardrail in question was to protect not only against the concrete bridge parapet, but also against the vertical drop to the creek. According to IDOT engineers, regardless of the concrete bridge parapet, there would still have been a need for a guardrail to protect against the vertical drop to the creek.

Claimants expert testified that the lack of barriers, fences or other warnings in correct proximity to the retaining wall was a hazardous condition. In Mr. Griffins opinion, IDOTs reliance on standard 2231-3 was misplaced. This standard does not directly relate to the type of hazard that actually existed at the location where Mr. Pro died. Standard 2231-3 does not address the situation of a non-traversable roadside hazard spanning the entire width of the median. Standard 2231-3 does depict a hazard which is analogous to the location herein which is the drawing entitled “Guardrail in Median of 30 Feet and Less” for two center piers. This standard requires the guardrails to taper so that they meet in the center of the median. This would prevent a car from getting behind the guardrails and striking the center piers. In Mr. Griffins opinion, the 17-foot drop involved in this accident was more hazardous than the center piers depicted in standard 2231-3. A driver can see the center piers, but may not be able to see the drop off. If you hit a pier at low speed you should survive, but if you go over the vertical drop, even at five m.p.h., you would most likely be killed. IDOT’s engineers admitted that the injuries caused by a 17-foot vertical drop at five m.p.h. would be much more severe than a five m.p.h. impact with a center pier. IDOT’s expert testified that the vertical drop has a severity index of 9.8, which meant that 99% of the people going over the drop are going to be killed.

Mr. Sanders confirmed that report 81 was presented as recommendations and guides as opposed to adopted standards. He also testified that other parts of report 81 indicated that the appropriate length for the guardrail in this case was a minimum of 75 feet. Mr. Griffin also testified that in his opinion, IDOT’s policy of upgrading guardrails to the extent possible when the project next came up for repair or maintenance of some kind was a reasonable policy. Mr. Griffin further testified that changes are generally made on roadways in the State when the roadway is scheduled for a new repair or improvement.

In 1977 the American Association of State and Highway Transportation Officials (AASHTO) published guidelines and suggestions for guardrail placement and length. The title of the publication was “Guide for Selecting, Locating and Designing Traffic Barriers.” Section III-E-4 of the 1977 AASHTO publication determines the length of guardrail. The length of guardrail need is determined by the posted speed limit and the average daily traffic count. This guide does not have a listing for 45 m.p.h. but does have a listing for both 40 m.p.h. and 50 m.p.h. According to this guide, the length of need for 40 m.p.h. is 240 feet and the length of need for 50 m.p.h. is 320 feet. The run-out length at 40 m.p.h. is 240 feet and the length of need for 50 m.p.h. is 320 feet. IDOT engineers concede that the guardrail run-out length is based upon braking requirements. The run-out length at 40 m.p.h. is 240 feet because it takes 240 feet to bring a vehicle to a stop or regain control of the vehicle, when traveling 40 m.p.h. The recommendations set forth in the 1977 AASHTO publication were adopted, almost verbatim, in the 1978 IDOT design manual. The 1978 IDOT design manual, however, broke down the guardrail length of need requirements into 5 m.p.h. increments, rather than the 10 m.p.h. increments set forth in the 1977 AASHTO publication. The 1978 IDOT design manual required 280 feet of guardrail at the location of this accident. The guardrail in question does not conform to these standards. However, these standards were adopted after the guardrails were put in place in 1970.

The concept of guardrail “run-out length” was introduced with the Highway Research Boards special report 107. Special report 107 was based upon data accumulated before 1970. IDOT, having participated in the study, was aware that for an average daily traffic count of 15,700 at 45 m.p.h., a run-out length of 280 feet was required. IDOT engineers agree that it is a part of their duty to monitor structures on State highways. Teams of IDOT engineers inspect the condition of bridges on a cyclical basis. There is- currently a two-year inspection cycle for bridges. Wen a bridge is inspected pursuant to this cycle, the guardrail at the bridge is also inspected. If during one of these periodic inspections an IDOT engineer sees an unsafe condition, he is supposed to note it in his report.

Mr. Griffin testified that in his opinion, IDOT has a duty to upgrade and maintain guardrails. Mr. Griffin also expressed the opinion that, if a hazard exists and guardrail standards come out that indicate the guardrail should be a longer length, the longer guardrail should be installed and IDOT should not wait until the next time there is a major construction project at that site.

Because the nature of roadside hazards can change, IDOT has adopted a specific program to inspect for unwarranted guardrails. This policy to specifically inspect for unwarranted guardrails has been in effect for the last 10 years. In order to adhere to this policy, it has been necessary for IDOT and maintenance engineers to inspect every guardrail in the State of Illinois. IDOT engineers, however, testified that it was IDOT policy to change' guardrails only in conjunction with “major construction” projects.

Oral arguments were held on February 18, 1992. Claimants attorney argued that IDOT had a duty to upgrade the guardrails in question to meet more rigorous standards than those in effect upon their initial installation because the State misapprehended the nature of the hazard. Claimant argued the guardrails installed were to protect a bridge parapet rather than the 17-foot drop in the median strip. Claimants counsel argued that a tapered set for guardrails ending and beginning in a point which would prevent persons getting behind the rail would have averted Claimants fatal injuries and that Respondent was negligent in failing to apply the more rigorous standard at the time the subject guardrails were installed.

Claimants counsel acknowledged that pure comparative negligence was the applicable standard at the time of the occurrence. He further acknowledged that no evidence exists as to what caused Claimant to enter the median strip.

Respondent argued that an imposition of mandatory upgrades of guardrails is not economically feasible and that the imposition of such a financial burden might encourage the retention of outdated standards and practices by IDOT. Respondent further argued that the State is not an insurer of persons driving off the roadway.

Respondent also addressed the issue of comparative negligence stating that although comparative negligence applies, it is impossible to determine Claimants portion of fault due to the lack of evidence as to what caused Claimant to leave the roadway.

Claimant's counsel reasserted his contention that deviation from the roadway and into the area behind the guardrail was foreseeable and that the guardrails were negligently designed and argued that Respondent bears the burden of showing Claimant’s contributory negligence, if any.

Both parties submitted briefs in this matter.

In order to prevail in this case, Claimant must prove by a preponderance of the evidence that Respondent was negligent in the design or maintenance of the subject guardrails, that the Respondent knew or should have known of a dangerous condition and that failure to implement stricter standards or otherwise maintain the guardrails was the proximate cause of Claimants injuries. Evans v. State (1988), 40 Ill. Ct. Cl. 140; Kraemer v. State (1990), 42 Ill. Ct. Cl. 23.

A review of applicable case law cited by both parties and through the Court’s research leads us to two cases which most closely apply to the facts of this case. In Hodge v. State (1981), 35 Ill. Ct. Cl. 51, Claimant sought to recover damages due to striking a concrete box culvert with 8-inch by 10-foot headwalls rising 1.5 feet above the pavement lying near the traveled portion of the highway. Claimant struck the headwall after veering off the roadway, presumably caused by a bald tire. Claimant argued that “the presence of the headwall rendered the roadway unsafe” and introduced evidence that highway construction standards in existence on the date of the accident were such that concrete culverts, such as that involved, were obsolete as of March 3, 1943, and were in the process of removal by the State and county. Hodge, supra, at 52, 53.

The Court held that changes in highway construction standards to provide greater safety to the motoring public do not necessarily require that the State constantly upgrade highways to meet those standards. The Court further found that such an imposition of responsibility would be impossible to meet in view of public finances and available manpower. Hodge v. State, supra.

The Illinois Supreme Court has also recently addressed a similar circumstance in DiBenedetto v. Flora Township (1992), 153 Ill. 2d 66; 605 N.E.2d 571; 178 Ill.Dec. 777. The Claimant was killed in a one-car accident when his car crossed the center line of a county highway, entered the shoulder and overturned in a drainage ditch, even though it was alleged that the ditch was unusually steep. The Court found in pertinent part:

“Drainage ditches along streets and highways are both commonplace and necessary. People are not expected to drive in them and the public cannot be an insurer of those who do. Although there is a paucity of cases on this issue, we interpret the lack to the fact that the conclusion is obvious and that the opposite result would be contrary to normal expectations and experience in the affairs of life.” DiBenedetto, supra.

The Supreme Court discussed proximate causes and found the proximate cause of the accident was the loss of control of the vehicle and its being driven off the traveled way. DiBenedetto, supra.

Based upon the foregoing, we hereby find Claimant has failed to meet its burden of proof in demonstrating a breach of duty by the State and that proximate cause has not been proven. Claimants tragic death is certainly lamentable, but the evidence is not adequate to support an award in this cause. There was no notice of a dangerous condition to persons traveling the roadway with reasonable care. Claimant’s assertion that new standards must be implemented constantly to guardrails must fail for lack of feasibility.

This claim is hereby denied.

ORDER

Jann, J,

This cause comes on to be heard on Claimant’s petition for rehearing. The Court has reviewed the record herein and finds Claimant’s petition is hereby denied.


author: Patchett, J.

text:
    (No. 86-CC-2714
    Ronald Saulter, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 23, 1995.

    Ambrose & Cushing (Lawrence J. Griffin, of counsel), for Claimant.
    Jim Ryan, Attorney General (Phillip Robertson, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This is a claim which arose as a result of an injury suffered in the gymnasium at a Department of Corrections facility. Mr. Saulter was an inmate at the correctional center. He was an experienced boxer and was working out on a heavy bag in the gymnasium. The bag had been constructed in a squatting rack. The squatting rack was a metal structure that had a pole through it from which the bag hung. This resulted in there being 18 inches on either side of the bag, between the bag and the metal structure. It appears that the State at least had some notice that the bar on top of the squat rack would move as the bag was being punched.

As Mr. Saulter was hitting the bag, the bar broke loose, and Mr. Saulter s hand hit the metal pole. He fractured his fourth metacarpal (or knuckle). He claims significant injuries as a result of that fracture.

In an extremely well argued and well researched brief, Mr. Saulter’s counsel argues that the State created the dangerous situation, and therefore, the State did not have to have actual or constructive notice of it. In fact, a representative of the State evidently testified that he had seen the bar move or wiggle. Obviously Mr. Saulter also had seen the bar wiggle or move as he struck it. He continued to use the bag in any event.

Mr. Saulter is asking the State to pay for his injury because they were aware of the fact that the bar supporting the bag moved while it was being struck, but absolve him from any blame. This is despite the fact that he also knew that the bar would move as the bag was struck.

Considering the date of the injury, this claim would be made under the law of pure comparative negligence.

For there to be liability, however, at a minimum it must be reasonably foreseeable to the State that this injury could happen. Of course, it is reasonably foreseeable that many injuries could happen while people are using the gymnasium and strenuously exercising. This is particularly true in the use of certain equipment such as boxing bags.

The State was not required to furnish the recreational facilities in question, nor was Mr. Saulter required to use those facilities.

The Respondent has argued that the bar in question was not secured with wires but with a padlocked chain. In addition, the Respondent pointed out that Mr. Saulter may not have been a member of the class of inmates, namely the Boxing Team, that was supposed to be using the heavy bag at all. However, the Claimant counters by saying that he used the bag on a consistent basis and was never deprived of the use of the bag.

The State of Illinois has a general duty to maintain its premises in a reasonably safe condition. (Munster v. State (1988), 40 Ill. Ct. Cl. 171.) More specifically, the State has a duty to provide inmates of its correctional facilities with reasonably safe conditions within which to exist. Thomas v. State (1987), 40 Ill. Ct. Cl. 188, 190.

The State, however, is charged with a duty only when the harm is legally foreseeable. A legal duty requires more than a mere possibility of an occurrence. The State was not required to furnish a heavy bag at all. However, once the State undertook to furnish such a bag, it was required to provide a reasonably safe heavy bag. It is not, however, required to be an insurer of its premises. It is not required to provide items, especially in a gymnasium, which could never, under any circumstances, create an injury.

Mr. Saulter has the burden of proof as a Claimant. Mr. Saulter has failed to prove by a preponderance of the evidence that the heavy bag in question was defective. In addition, Mr. Saulter has failed to prove by a preponderance of the evidence that the State failed to meet its duty. There is no evidence showing an actual notice of imminent failure, nor of constructive notice of imminent failure.

Further, Mr. Saulter bears a heavy burden of assuming the risk of the activity with which he was involved. The Claimant also failed to prove that the apparatus was not set up in conformity with industry standards in effect at the time. White v. State (1984), 38 Ill. Ct. Cl. 1.

For all the reasons stated above, we find that the Claimant has failed to meet his burden of proof. Therefore, this claim is hereby denied.


author: JANN, J.

text:
    (No. 86-CC-2805
    Sylvia Tourloukis, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 1, 1995.

    Spinak, Levinson & Assoc. (Arthur H. Levinson, of counsel), for Claimant.
    Jim Ryan, Attorney General (Erin M. O’Connell, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

Claimant seeks to recover damages sounding in tort for the alleged negligent maintenance and/or inspection of a road shoulder and failure to warn of the allegedly dangerous condition.

Facts

On August 3, 1985, between 5:00 and 7:00 p.m., Claimant was driving northbound on Interstate 94 at approximately 12900 south (just north of the 130th Street exit). Claimant testified she became confused as to her direction and location. Claimant attempted to pull on to the shoulder but her right front tire hit a hole at the edge of the highway, causing Claimant to lose control of her car, which crossed the traffic lanes and hit a wall at the innermost side of the northbound lanes. Claimant was traveling at 50-55 m.p.h. Claimant lost consciousness at this point.

Claimant suffered multiple bruises and abrasions, wore a neck brace for a short time, and was off from work for several days. The vehicle was a total loss.

On August 8, 1985, Claimant returned to the scene of the accident and took photographs of the depression in the shoulder Claimant believes caused her accident, which turned out to be a sewage grate located at the edge of the shoulder closest to the highway.

At the hearing, Claimant testified on her own behalf. Respondent called one witness, Mr. John Richard Cannon, who is the field technician for the Calumet Expressway maintenance yard. He has been employed in various related capacities for over 26 years and was the person responsible for maintenance of the stretch of road on which the accident occurred. After this action was commenced, Mr. Cannon took photographs of the area where the accident took place. All of the above photos were placed in evidence at the hearing.

Mr. Cannon testified that part of his duties involved responding to public and police complaints or notices regarding defects in his jurisdiction. Mr. Cannon testified that no complaints were received with regard to the grate in question prior to the accident in question. There were questions raised whether repair work had been done on the grate during the seven months between the date of the accident and the date of Mr. Cannons photographs. The department’s records were not clear as to exactly what work had been done. Mr. Cannon recalled repairs made in the general area several days before the accident to the travel lanes and possibly a ramp later in the month. He did not recall any repairs to the sewer grate in question and stated the condition of the grate was not defective in the photos he took in April 1986. However, Mr. Cannon stated that the photo appeared to evidence a patch behind the grate which by its whitened appearance had been in place at least over one winter.

Mr. Cannon stated that either he or another employee routinely made inspections of the roadway. Mr. Cannon traveled the area in question every weekday at the time of the accident, as he lived in the area. However, there was no direct testimony as to how often actual inspections were made.

The Law

The Court has consistently held that the State is not an insurer of persons using its roadways and Claimant must prove by a preponderance of the evidence that a dangerous condition existed and that the State knew of the condition which proximately caused the incident complained of. Scarzone v. State (1990), 43 Ill. Ct. Cl. 207, citing Simpson v. State (1985), 37 Ill. Ct. Cl. 76.

The photographs submitted by Claimant show a grate substantially below the level of the remainder of the shoulder, especially at its west and northern edges. No testimony was offered as to the actual depth of the grate as opposed to the road surface. The State has a duty to maintain the shoulder of its highways in a manner reasonably safe for its intended purposes, but the standard of care is higher for a highway than the shoulder since the reasonably intended use of the highway requires a greater level of care than the shoulder. (Siefert v. State (1989), 42 Ill. Ct. Cl. 8.) In Siefert, the Claimants estate recovered because the State had actual notice of a shoulder condition described as “real bad” even by the States witness.

Doyle v. State (1993), 45 Ill. Ct. Cl. 194 contains a discussion of this Courts holdings in numerous shoulder drop off cases which are analogous to the case at bar. (Id., 199-200.) We have rarely found liability against the State except in cases of extremely dangerous conditions or when the State had direct or constructive notice of a defect. In Doyle, there was an alleged drop off of about six inches. The States highway maintainer testified if he had seen the drop off, he should have reported it and requested repairs. Despite these factors, no award was made due to lack of notice.

Claimant’s brief contends that the State had constructive notice of the allegedly dangerous condition based upon Mr. Cannon’s testimony that repairs had been made to the grate in question at some point. No evidence was offered to establish the date of the repairs, which may have preceded the date of the accident.

We find Claimant has failed to prove by a preponderance of the evidence that the State had constructive notice of the alleged defect. There was also insufficient evidence of an extremely dangerous condition to otherwise justify an award.

This claim is hereby denied and this cause is dismissed.


author: Frederick, J.

text:
    (No. 86-CC-2919
    Miles Barnes, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 2, 1994.

    Miles Barnes, pro se, for Claimant.
    Roland W. Burris, Attorney General (John F. Buckley, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This is a prisoners lost property case filed by inmate Miles Barnes on April 9, 1986. The case was tried on August 30,1991. Claimant seeks $463.51 in damages.

The evidence indicates that a corrections officer opened Claimants cell without permission and let another inmate in Claimants cell. The Claimant lost the property which he listed in his complaint. Claimant had a trust fund ledger which indicated that he had purchased all of the items subsequently lost. The prices and dates purchased correspond to Claimants list of property taken from his cell. Claimant does not know who the guard let in his cell but believes the other inmate was gang related. Claimant testified he was not a member of a gang. Other than the eight-track tape player, Claimant received none of his other property back. However, the tape player was broken. The Respondent presented no evidence. The Respondent also failed to respond to Claimants request to admit.

The Respondent was negligent in allowing another inmate into Claimants cell. (Byrd v. State (1988), 41 Ill. Ct. Cl. 158.) While we have allowed recovery only under very narrow circumstances in non-bailment cases, this is such a case. The Respondent has admitted a correctional officer allowed another inmate into Claimant’s cell. The Respondent has also admitted the missing property and the value thereof by failing to respond to the request to admit.

For the foregoing reason, Claimant, Miles Barnes, is awarded $463.51 in full satisfaction of his claim.


author: Mitchell, J.

text:
    (Nos. 86-CC-3046, 86-CC-3058 through 86-CC-3072 inclusive, 86-CC-3365 through 86-CC-3368 inclusive, 86-CC-3497 through 86-CC-3499 inclusive, 86-CC-3351, 87-CC-0115, 87-CC-0117, 87-CC-0148, 87-CC-0149, 87-CC-0231 through 87-CC-0233 inclusive, 87-CC-0352 through 87-CC-0356 inclusive, 87-CC-0405, 87-CC-0406, 87-CC-0472 through 87-CC-0478 inclusive, 87- CC-0480, 87-CC-0481, 87-CC-0654 through 87-CC-0658 inclusive, 87-CC-0827, 87-CC-1102, 87-CC-1241, 87-CC-2016 through 87-CC-2022 inclusive, 87-CC-2569 through 87-CC-2572 inclusive, 87-CC-2574 through 87-CC-2580 inclusive, 87-CC-2582 through 87-CC-2589 inclusive, 87-CC-4145 through 87-CC-4148 inclusive, 87-CC-4150, 88-CC-0311
    Rolando Bautista, M.D., Manny Chudwin, M.D., Robin Clemons, M.D., Vincent Costanzo, M.D., James C. Daniels, M.D., Enrique David, M.D., Mayank Doshi, M.D., Harry Farber, M.D., Morris Friedell, M.D., Peter Friedell, M.D., Jack Fuhrer, M.D., Ganiyu Kehande, M.D., Margaret Levy, M.D., Georgia Lubben, M.D., Carter Mecher, M.D., Harshad Mehta, M.D., Bengalore Murthy, M.D., Mark Nissenbaum, M.D., Witold Rybicki, M.D., Joseph Tan, M.D., and Augustin Vitualla, M.D., Claimants, v. The State of Illinois, Respondent.

      Opinion filed October 12, 1994.

    Friedell Clinic, for Claimants.
    Roland W. Burris, Attorney General (Michael F. Rocks, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Mitchell, J.

Each of these 87 court actions presents an individual Claimant-physicians vendor-payment charges, pursuant to section 11 — 13 of the Public Aid Code (or PAC) (305 ILCS 5/1 — 1, et seq.), for medical services rendered to an Illinois Department of Public Aid (IDPA) recipient or a Spenddown enrollee (St. Anthony Hospital Medical Center v. State (1991), 44 Ill. Ct. Cl. 98) under the departments Medical Assistance Program (or MAP). The subject services are identified by five-digit Procedure Codes (PCs), relating to medical procedures as listed in the physicians’ Current Procedural Terminology, 4th Ed. (or CPT-4), and by the dates of service (or DOS), the dates on which Claimants rendered the various services. (See University of Illinois at Chicago v. State (1992), 44 Ill. Ct. Cl. 356; and Kim v. State (1991), 43 Ill. Ct. Cl. 286, 289-91.) In its consolidated report, IDPA advises that it had paid for the services identified in 13 of these patient accounts, to the extent that Claimants’ pleadings establish the Department’s receipt of their timely-submitted invoices for such services. These payments constitute payment-in-full for the related services. (Ryan v. State (1990), 43 Ill. Ct. Cl. 213.) Respondent denies vendor-payment liability (except as to two partial accounts identified infra), for the remaining 74 accounts. The Claimants having received notice of Respondent’s denial, the Court makes the following findings.

Consultant Services and Surgery Issues. A consultation is the service performed by a physician-specialist in a certain medical field, at the request of a patient’s attending physician with respect to the diagnosis and/or treatment of a particular illness, such that the requesting, or attending physician retains ongoing responsibility for the patients direct care. As defined by IDPA’s policy, a consultation comprises “the entire package of physician services required to arrive at a decision and/or recommendation regarding a patient’s condition and plan of treatment.” (MAP Handbook For Physicians, Topic A-240.) IDPA questions Claimant Friedells charge (no. 86-CC-3067), in the absence of a written report or other explanation of a change in the patient’s condition, for an “initial consult” (either PC-90620 or PC-90630), when Claimant had charged and been paid for the same service to the same patient performed two weeks earlier. Also questioned are charges by Claimants Daniels and David (nos. 86-CC-3499 & 86-CC-3071), absent explanatory documentation, for consults performed within one to two days of other consults for the same patients, for which other physician-specialists had charged and been paid. Applicable Handbook policy states that no payment will be made

“for multiple consultations by physicians of different specialties unless the need [medical necessity] for such is substantiated by the recipients physical condition or complications.” (Id., topic A-240.)

as explained and justified in documents accompanying the consultants’ invoices. In another instance (no. 87-CC-0354), Claimant David’s charge for a pathology consult performed during surgery (PC-88329) had been refused payment because Claimant had miscategorized, in his invoice, the type-of-service (T.O.S.) role in which he was performing when rendering that consult. When preparing their invoices, physicians are to identify (by proper code) a T.O.S. role which logically and consistently relates to each procedure (PC) charged in that invoice. IDPA had refused payment of Claimant Davids charge for another account (no. 87-CC-4148) because he had failed to identify, in his invoice, the physician who had requested his consult services. (Ryan v. State, supra at 214-15.) In each of these cases, Claimants’ pleadings fail to establish that their properly-prepared and documented invoices, identifying the referring-physician and listing a T.O.S. role consistent with each PC charged, had been received by IDPA prior to the one-year deadline for such receipt imposed by IDPA Rule 140.20 (89 Ill. Adm. Code, section 140.20) and by Medicaid regulation (42 C.F.R., section 447.45).

In no. 86-CC-3064 Claimant Clemons charged for hospital-visit care of a maternity patient. IDPA advises that it had paid another physician for the Cesarean-section delivery (PC-59501) of this patient’s child; and that said “combined service package” payment included all antepartum and postpartum care of the patient during her inpatient stay. Claimant was thus charging for a portion of the service package, even though the other physician had charged, and been paid for, all services comprising the C-section delivery package. (Compare Treister & Wilcox v. State (1989), 42 Ill. Ct. Cl. 185, 187-89; and IDPA Rule 140.413(a)(9) (89 Ill. Adm. Code section 140.413(a)(9).) In another claim (87-CC-2019), Claimant Vitualla charged for a surgical procedure considered by the Department as “performed for cosmetic purposes,” and thus excluded from MAP-coverage by IDPA Rule 140.6(k) (89 Ill. Adm. Code, section 140.6(k), reprinted in Handbook Topic 103). Claimant’s invoice was refused payment in a voucher-response notice which advised that “additional information [would be] required,” in any rebill-invoice of the charge (Handbook App. A-5, error code C02), to establish possible coverage of the procedure (Kim v. State, supra, at 290-91); and while Claimant alleges three rebillinvoices, he fails to establish that any of them was received by IDPA within the prescribed one-year period. St. Therese Medical Center v. State (1992), 45 Ill. Ct. Cl. 370; and Palos Community Hospital v. State (1983), 46 Ill. Ct. Cl. 458.

Access-Restrictions And Invalid Payee-Option Number. Nineteen accounts are identified as involving services to recipients who were subject to IDPAs RRP (Recipient Restriction Program) requirements, i.e., IDPA recipients who had

* ° received medical services in excess of need and with such frequency or in such a manner as to constitute an abuse of [their] medical care privileges ° 6 (PAC §11 — 26(a))

An RRP recipient’s access to nonemergency care is limited to those services which have been authorized in writing by the recipients primary care physician (PCP). See Kim v. State, supra at 292-93. As to the 19 accounts here challenged, Claimants fail to establish that their invoices, accompanied by the DPA 1662 authorizations of their patients’ PCPs, had been received by IDPA within the prescribed one-year period.

Claimant Murthy’s claims for payment of seven accounts for services rendered during 1985 are contested as a result of his failure properly to identify, in his invoices, the payee-option, number-coded address to which vendor-payments for specific services were to be mailed. In 1985 IDPA authorized each MAP-enrolled physician to designate up to four different mailing addresses to which subsequent payments for his or her MAP-services were to be mailed. This multiple address option was made available as a bookkeeping accommodation, in recognition that a physician might be affiliated with two or more group practices, or might maintain a practice in offices at two or more locations. By entering a prearranged payee number on each DPA-form invoice submitted, the physician could thereby inform the department as to which of several pre-designated addresses he or she wished its payment of that invoice to be mailed.

IDPA reports that during 1985, Claimant Murthy had designated only a single address (i.e., only Payee-Option number 1) to which all payments for his MAP services were to be sent. Despite this fact, he had listed Payee address “3” on each invoice offered in support of these seven accounts, thus causing confusion as to what address he was directing payments of these invoices were to be mailed. Because Claimant had not previously designated either a Payee “2” or “3” address, it was unclear what mailing instruction he had intended to convey in these invoices. Although Claimant could have resolved this confusion by timely submitting rebill-invoices listing a correct Payee-number, he does not allege here that he had taken that action prior to IDPA Rule 140.20s deadline.

“Clean Claim” Rebill Requirement. Other invoicing errors had prevented Claimants from obtaining payment on certain accounts. These errors or omissions include:

(a) a failure accurately to identify, by name and correct provider number, the physician who had performed the services being invoiced (e.g., in nos. 87-CC-0476, 87-CC-4150 & 88-CC-0311 — compare Brand, Beck & Hoover Assoc. v. State (1992), 44 Ill. Ct. Cl. 284);
(b) a failure accurately to identify the patient by his/her IDPA-assigned RIN (Recipient Identification Number, no. 87-CC-0352 — see Gupta v. State (1990), 42 Ill. Ct. Cl. 269, 272-73);
(c) a failure to identify the place of service (P.O.S.) or facility in which the services were rendered (no. 86-CC-3531 — see Ryan v. State, cited supra);
(d) a failure accurately to identify, by coded entry, the diagnosis, or medical condition, which occasioned the need for treatment (no. 87-CC-0353— see Riverside Medical Center v. State (1988), 40 Ill. Ct. Cl. 274, etseq.; and
(e) a failure to identify the services performed, by entry on the invoice of correct PCs (no. 87-CC-0354— see Ramabrahmam v. State (1990), 43 Ill. Ct. Cl. 351).

Claimants could have resolved these deficiencies by preparing and submitting “clean claim” (42 C.F.R. §447.45(b)), rebill-invoices, reporting therein to IDPA all corrected or previously-omitted data. (St. Therese Medical Center, Palos Community Hospital; Ryan v. State, supra at 215; and Kim v. State, supra at 290-91). The complaint allegations offered here suggest, however, that Claimants had failed to take such remedial actions — and thereby exhaust their administrative remedy (705 ILCS 505/25; and Court of Claims Regulations sec. 790.60), within the prescribed one-year period.

TPL Adjudications Not Reported. Respondent reports that 10 of these 74 accounts charge for services rendered to recipients who had TPL (third party liability) insurance coverage available, from Medicare (42 U.S.C. §1395, et seq.) or a commercial healthcare insurer, on the dates said services were rendered. As IDPAs MAP is the payer of last resort whenever a TPL insurer has or may have primary payment responsibility (42 U.S.C. §1396a(25); 42 C.F.R. §§433.135 through 433.154; Handbook topic 120, et seq.; Rock Island Franciscan Hospital v. State (1984), 37 Ill. Ct. Cl. 343; Pilapil v. State (1988), 41 Ill. Ct. Cl. 223; Treister & Wilcox, supra, 189-90; and Rockford Urology Assoc., Ltd. v. State (1993), 45 Ill. Ct. Cl. 376), the Claimant was required: to bill his or her charges for such services for the primary insurers adjudication, and then to report the result of that adjudication when submitting his or her residual charges (in items 37A through 38D of the DPA 2360 invoice-form) for IDPA’s adjudication.

The record here shows that, in some cases, Claimants had initially invoiced their charges to IDPA without first billing them to the insurer of a recipient believed to have TPL coverage; and IDPA had refused payment of these invoices because of the absence, in Claimants’ invoices, of any report of a prior adjudication by the TPL insurer. In other cases, the DPA-form invoices alleged as complaint exhibits fail to report TPL adjudications by such recipients’ insurers; and Claimants’ pleadings do not establish IDPA’s receipt of their invoices, with TPL adjudications properly reported, within the time prescribed by IDPA Rule 140.20 (Christ Hospital v. State, No. 92-CC-0018, opinion filed Mar. 24, 1992). Absent accurate and timely reporting of such adjudications, IDPA is left to conclude that these charges may well be the payment responsibility of the recipients’ primary insurers.

Invoices Not Shown Received By IDPA. Respondent identifies 57 of these unpaid accounts or partial accounts, Claimants’ pleadings for which fail to establish that any DPA-form invoice of the related charges had been received by IDPA within one year following the dates of service (DOS).

Court of Claims Regulations section 790.50(a)(3) (74 Ill. Adm. Code 790.50(a)(3)) requires a claimant to identify in his or her complaint both the previous, administrative presentations of a claim to a State agency, and the “action taken” by the agency in response to that claim. Once both specific invoices and specific IDPA voucher (or “remittance advice”) responses to those invoices are presented by a PAC section 11 — 13 vendor-claimant, the department can investigate efficiently and report its position; and the Court is then able effectively to assess (a) the merits of the claim and the claimants prior invoice-presentations of it, and (b) the reasons for IDPA’s prior refusal to pay it. Medical-vendor claimants’ heedful compliance with Court of Claims Regulations section 790.50(a)(3)’s requirements is especially important, because State payment liability is contingent upon a showing, in such claimants’ complaints, that their invoices had been received by the department prior to IDPA Rule 140.20’s prescribed deadline. Simon v. State (1987), 40 Ill. Ct. Cl. 246, 249; Brand, Beck & Hoover Association v. State, supra at 286-87; and Kim v. State, supra at 293-94.

IDPA’s invoice-processing system records each invoice, upon its receipt, and issues a voucher-response to the vendor who had submitted the invoice, notifying the vendor that the invoice is being paid, refused payment, or suspended for review of payment-entitlement (Handbook topic 142). If payment is refused, the voucher-response notice will list a coded reason for the refusal (Treister & Wilcox v. State (1989), 42 Ill. Ct. Cl. 185, 187 & 191), referring the vendor to a MAP Handbook provision which explains the reason and may suggest corrective action (e.g., submittal of a rebill-invoice with all required data correctly reported or documented). (Kim v. State, supra at 290-91.) The vendor is cautioned that, if a particular invoice is not acknowledged by a notice within 60 days after the invoice was submitted, he or she should promptly submit a replacement-invoice to IDPA. Handbook Topic 144; Peterson v. State (1990), 43 Ill. Ct. Cl. 347; and Kim v. State, supra at 293-94.

As to these 37 accounts, Claimants’ pleadings fail to supply or identify any voucher-response notice or other document which would enable IDPA to verify that any invoice of their related charges had been received by the department within one year following the corresponding DOS. In the absence of such verification notices, the Court finds that no State vendor-payment liability exists under IDPA Rule 140.20. Rock Island Franciscan Hospital v. State (1987), 39 Ill. Ct. Cl. 100; Forutan v. State (1991), 43 Ill. Ct. Cl. 377, 379; and Northwest Community Hospital v. State, Nos. 93-CC-1152, 93-CC-1153 (Order filed Sept. 13, 1993).

It is hereby ordered and adjudged that Enrique David, M.D. (Provider No. 036043640) is awarded $283.50 for PC-49581 rendered on DOS March 5, 1986, to recipient Morgan (no. 87-CC-4148); and Agustin Vitualla, M.D. (Provider No. 036056239) is awarded $178 for PC-31600 rendered on DOS April 26, 1985, to recipient Peoples (no. 87-CC-2578), said awards being the maximum amounts payable under IDPA’s MAP for said services; and that Respondent’s summary judgment motion on the complaints and underlying causes, as to the balance of these 87 claims, is granted; judgment as to said balance is entered against the 21 Claimant physicians and in favor of Respondent as to all issues presented; and (subject only to the two above awards) these claims are dismissed.


text:
    (No. 87-CC-0370
    Catherine M. Carlson, Claimant, v. Board of Regents of the Regency Universities System, as administrator of Illinois State University, an agency of the State of Illinois, Respondent.

      Opinion filed May 13, 1994.

    Free & Free and Robert S. O’Shea, for Claimant.
    Joseph Goleash, Jr., for Respondent.
   OPINION

Mitchell, J.

The evidentiary hearing was held August 15,1991, in the Springfield, Illinois, Court of Claims facility. At the completion of the hearing, it was agreed that the parties would have the opportunity to introduce further evidence by evidence depositions, if filed prior to January 1, 1992. No such evidence depositions were filed.

The transcript of the hearing was filed on September 20, 1991, and after many continuances granted to Claimant by agreement of the parties or for good cause, Claimant’s brief was filed on December 16,1992.

Though Respondent was given more than adequate time to file its brief, it has not done so.

This is a claim for personal injuries suffered on September 13, 1984, in the course of a fall by Claimant on a wet tile floor in the exit passageway of a shower-bathroom of a dormitory at Illinois State University. Claimant alleges that her fall was the result of Respondents negligence in its maintenance of the exit passageway.

Her uncontradicted testimony shows that Claimant, then a 19-year-old sophomore student at ISU, at about 4:00 p.m., September 13, 1984, had showered, “dried off,” put on her rubber thongs, robe and contact lenses, and entered the “dark” exit passageway, where she slipped on a puddle of water which was caused by a pair of lady’s “soaking wet” trousers, hanging on a wall hook to Claimant’s left. Although the bathroom area she was leaving was lighted, both the exit passageway and the floor therein were dark. There was nothing which Claimant could grab to arrest her fall.

Claimant’s testimony further shows that, because there were other facilities in the building for laundering, girls in the dormitory had complained to the University’s resident assistants in each of the four wings and, specifically, to resident assistants Schimke and Cain, that the “* * 6 international students * * ° tended to do their laundry in the bathrooms.”

Claimant’s testimony, medical reports received without objection and a stipulation as to medical expenses show that she suffered injuries in the fall resulting in: (1) permanent and severe migraine headaches; (2) a neck injury for which she later underwent an anterior cervical disectomy and inter-body fusion of the C5-6 disc with bone graft from the right iliac crest; (3) a temporary loss of feeling in her left arm which was corrected by the neck surgery; (4) permanent ” pinching, burning in my left shoulder blade, pain in my arm and in my 666 two fingers and my thumb;” and (5) a temporary bruise on her right hip.

In the course of examination and treatment by many physicians, Claimant was prescribed not less than 27 different medications, resulting in a temporary chemical addiction. In addition to the neck surgery, Claimant has received one or more x-rays, bone scans, CAT scans, EMGs, myelograms, discograms, and angiograms. She has worn or borne a figure eight brace, hip soaking, diathermy, an arm sling, a finger brace, ultra sound, transcutaneous electrical new stimulation, hot packs, cervical traction, a soft collar, and a high collar.

Claimant incurred medical expenses in the sum of $44,754.91 through sometime in 1986, when she received classes in pain management at the Mayo Clinic and ceased the use of all medication and medical help for matters arising from the 1984 injuries.

Three physicians have advised Claimant that she “* ® * will always have these headaches.” Dr. Alvary who performed the neck surgery with Dr. Nagib in 1985, reported in 1986:

“I have advised her that all her symptoms were directly caused by her accident. I have treated her before, in 1982, for an unrelated back problem and I have a series of records to show that in 1980, 1981 and 1982 she did not mention any complaints similar to the one for which she had her surgery. Her pain was neurological and not myofascial in origin and it was directly related to trauma.”

The Court has on many occasions required a showing of actual or constructive knowledge of a dangerous condition in order to establish the States negligence. (Smith v. State (1989), 41 Ill. Ct. Cl. 42 (standing water).) Here, this Court finds that Respondent had constructive knowledge of the standing water puddle in the passageway. Had its employees responded to students' complaints as to laundering of clothes in the washroom, the State would have discovered the wet condition of the exit passageway. Thus, in Ondes v. State (1991), 43 Ill. Ct. Cl. 272 at 277, this Court recognized that the State and its maintenance people would be on constructive notice of a dangerous gymnasium condition where students had knowledge of the condition (i.e., students’ swinging on and breaking light fixtures).

“The State’s duty to persons legitimately on its premises is to maintain reasonably safe conditions.” (Owens v. State (1989), 41 Ill. Ct. Cl. 109, 111.) It is the opinion of this Court that the condition of the exit passageway floor was dangerous (i.e., a water puddle, a dark area, absence of handrail, absence of warnings of risk), that Respondent had constructive knowledge of that condition, that Respondent was negligent in failing to maintain a safe passageway.

The Court hereby awards $100,000 to the Claimant, Catherine M. Carlson.