text:
    (No. 82-CC-1822
    James F. Neylon, Claimant, v. The State of Illinois, Respondent.

      Order filed June 10, 1985.

      Opinion filed December 19, 1986.

    Edward J. Egan, Ltd. (Edward J. Egan, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Francis M. Donovan and Mary Mulhern, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Montana, C.J.

This is a claim for back wages and benefits filed by a former employee of the Respondent. The relevant facts are as follows:

The Claimant, James Neylon, became a certified employee of the Illinois Racing Board in 1962 as an Administrative Assistant II. At that time the Illinois Racing Board administered the Illinois Bred Thoroughbred Program. The Claimant began to perform duties relating to the Illinois Bred Thoroughbred Program in 1963. In 1964, the Claimant’s position of Administrative Assistant II was abolished and reclassified to Executive I and Claimant was thereafter appointed to the classified position of Executive I.

In 1973 the Claimant was assigned to the certified position of Executive II. His position was described on an Illinois Racing Board organizational chart as “Illinois Bred Supervisor.” He continued in this position until January 14,1975, when he was suspended by William L. Masterson, the Secretary of the Racing Board. After a hearing, the Civil Service Commission ordered the Claimant’s discharge.

The Claimant appealed his discharge pursuant to the provisions of the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 264 et seq.), to the circuit court of Cook County. On August 11, 1976, the circuit court of Cook County in case No. 75 L 21490 reversed the order of the Civil Service Commission discharging the Claimant and ordered him reinstated to his position of Executive II.

The Claimant thereafter received a memorandum from William Masterson informing him that he could not be reinstated to the position he held before his discharge because that position had been eliminated by the Department of Personnel and the duties he had performed previously had been transferred to the Department of Agriculture. The memorandum also stated that the Claimant could not return to his position because the General Assembly had not appropriated money for the position which had been eliminated.

The Illinois Racing Board then filed motions in the circuit court of Cook County seeking a rehearing and to vacate the order of August 11, 1976, in case No. 75 L 21490 which ordered the Claimant’s reinstatement. While the motions were pending the Claimant filed a mandamus suit in case No. 76 L 16386 seeking an order compelling various defendants to reinstate him in the position he held before his discharge. The Claimant also apparently filed a chancery action in the circuit court of Cook County in case No. 75 CH 3430 alleging that he was entitled to relocate with the Department of Agriculture under the provisions of the Department of Personnel Code.

On October 7,1976, the Racing Board, the chairman of the Civil Service Commission, the director of the Department of Agriculture and the director of the Department of Personnel filed a motion to dismiss the mandamus suit.

On April 21,1977, Judge Raymond K. Berg ruled on both the motions for rehearing and to vacate and the motion to dismiss the mandamus suit. The motion to dismiss the mandamus suit was granted and the motions for rehearing and to vacate were granted in part and denied in part. The motions for rehearing and to vacate were denied to the extent that they sought reconsideration of the Court’s ruling of August 11, 1976, which reversed the Civil Service Commissioner’s decision to discharge the Claimant. The motions were granted to the extent that they sought to deny reinstatement of the Claimant to the Illinois Racing Board subsequent to July 16, 1976, because the Court found that the primary employment duties and responsibilities of the Claimant under the Illinois Thoroughbred Program were either no longer entrusted to or among the present duties and responsibilities of the Illinois Racing Board as of July 16, 1976.

The Illinois Racing Board appealed the decision of the circuit court in case No. 75 L 21490 which reversed the Claimant’s discharge and on November 19,1978, the appellate court in Neylon v. Illinois Racing Board, 66 Ill. App. 3d 621, 384 N.E.2d 433, dismissed the appeal because the Illinois Racing Board and the Civil Service Commission, as appellants, failed to preserve and file the complete record. The Supreme Court of Illinois later denied the Racing Board’s petition for leave to appeal.

The record does not clearly reveal the outcome of the chancery action filed by the Claimant in case No. 75 CH 3430. The Claimant’s reply brief states that the chancery action was consolidated with the mandamus action in case No. 76 L 16386, and the administrative review action, case No. 75 L 21490, on the motion of the Attorney General. The reply brief further states that no action was taken on the chancery case because the Attorney General continued his motion to vacate in the administrative review action and then appealed the order rendered in that action. Claimant’s complaint, however, indicates that the circuit court allowed the Attorney General’s motion to dismiss case No. 75 CH 3430 on the grounds that the circuit court lacked jurisdiction.

Sometime later another action, Illinois Racing Board v. Civil Service Comm’n No. 81 L 22214, was filed in the circuit court of Cook County. The exact nature of this case is not revealed in the record, however due to actions taken in the case by Judge James C. Murray this controversy is now before this Court.

An order dated January 20, 1982, and stamped by Judge Murray states as follows:

“The Attorney General has represented in open Court that the State of Illinois and all of its agencies agree that all issues in controversy between the defendant James Neylon and the State of Illinois and all of its agencies may be resolved in the Court of Claims.
The attorney for the defendant James Neylon, has represented in open Court that he intends to file a complaint in the Court of Claims seeking an adjudication of all issues in controversy between the defendant and the State of Illinois and all of its agencies.
WHEREFORE, this Court shall retain jurisdiction of this cause until all matters in controversy between the defendant James Neylon and the State of Illinois and all of its agencies have been resolved in the Court of Claims. This cause is therefore, continued generally until further order of court.”

In his complaint Claimant seeks damages consisting of lost wages, pension contributions, medical insurance payments, accrued vacation time, sick leave and “any other rights and emoluments due him as an employee of the State of Illinois.” The Claimant computed these damages to amount to between $163,789.00 and $189,784.00. By later amendment to the complaint, Claimant alleged that he suffered a nonwork-related stroke in May of 1981 and under the provisions of sections 14 — 124 and 14 — 125 of the Pension Code (Ill. Rev. Stat., eh. 108/2, pars. 14 — 124 and 14 — 125), he is entitled to a disability pension equal to one-half of the final average compensation he would have been entitled to in May 1981 had he not been wrongfully discharged. Jurisdiction was said to lie in the Court of Claims pursuant to section 8(a) of the Illinois Court of Claims Act. Ill. Rev. Stat., ch. 37, par. 439.8(a).

The claim is for the back wages and benefits allegedly due the Claimant as a result of his being wrongfully discharged and as a result of the Respondent’s refusal to reinstate him. Previously the parties stipulated that the Claimant would have earned $29,089.00 during the period of the wrongful discharge, January 14, 1975, to July 16, 1976. On June 10, 1985, an interim order was entered awarding the Claimant a gross amount of $24,642.00. This figure was arrived at after taking into account amounts earned by the Claimant in mitigation of his losses. The award was vouchered on October 4, 1985. That order resolved that portion of the claim relating to the wrongful discharge.

At the outset of the Claimant’s presentation at the oral argument, the threshold issue with regard to reinstatement was said to be whether or not a substantial portion of the Claimant’s duties with the Racing Board were transferred to the Department of Agriculture. (Oral Argument tr. 3) This issue is derived from section 2 — 445 of the rules of the Department of Personnel (now Central Management Services) which provides as follows:

“Transfer of Duties-. When the duties of a position are relocated by transfer or by abolition and reestablishment and when said duties are substantially the same, an incumbent employee may elect to relocate and retain the duties of that position.”

Effective January 1, 1976, section 37 — 30(e) of the Illinois Horse Racing Act of 1975 (Ill. Rev. Stat., ch. 8, par. 37 — 30(e)), was amended to provide, in part, as follows:

“The Illinois Thoroughbred Breeder’s Fund shall be administered by the Department of Agriculture with the advice and assistance of the Advisory Board created in subsection (f) of this section.”

We agree that this is the remaining issue with respect to the merits of this claim. However, at this point, for the record and for the future we want to make the following comments concerning the procedural history of this matter and the jurisdiction of the Court of Claims to determine the reinstatement issue. The Personnel Code (Ill. Rev. Stat., ch. 127, par. 63bl01 et seq.), which authorizes the Department of Central Management Services to promulgate personnel rules such as the rule quoted above and relied on herein by the Claimant also authorizes said Department to provide by rule for a grievance resolution procedure. At the time of the Claimant’s wrongful discharge, at all relevant points in time, and now, there was and is in effect a procedure established by rule for resolving grievances arising out of said rules. Additionally, the Personnel Code authorizes the Civil Service Commission to hear and determine grievances of this nature. The procedures culminate in administrative review and appeals to higher courts thereafter. The fact that the Claimant has already pursued this avenue of relief in connection with his wrongful discharge does not mean he may bypass it over the issue of the refusal to transfer him along with his duties to the Department of Agriculture. This issue involves a wholly new cause of action which should have been heard through the administrative channels. Resolution of issues of this nature is the purpose for which that avenue of relief was created. It is only after final resolution there that the Claimant should have come to this Court and then only if he was found entitled to back pay, the appropriation for which has lapsed. For example, the portion of this claim relating to the wrongful discharge, which apparently was decided with finality, was properly before the Court of Claims.

Section 8(a) of the Court of Claims Act does not mandate that this Court hear and determine the reinstatement issue either. Section 25 of the Court of Claims Act and rule 6 of the Rules of the Court of Claims provide that the Claimant must exhaust all of its remedies, legal and administrative, before pursuing its claim to final resolution in the Court of Claims. At this point, Claimant’s claim in the Court of Claims for damages incurred beyond July 16,1976, is premature. In the future we do not intend to condone a situation creating potential forum-shopping by employees subject to the Personnel Code and Rules who have a grievance and open this Court to all of those grievances now handled administratively within the framework of the Personnel Rules and the Civil Service Commission.

Nor does the order stamped with Judge Murray’s name dated January 20, 1982, (quoted above) mandate that the Court of Claims decide this issue. That order merely incorporates or restates the essence of an agreement between the parties that the controversy be resolved in the Court of Claims, continues the action in the circuit court of Cook County, and notes that that court retained jurisdiction. The order did not mandate that the Court of Claims decide the issues. The jurisdiction of this Court is set by statute. No agreement by the parties should be able to confer jurisdiction on this Court. Jurisdictional issues may be raised at any time by any party or the Court itself.

At the present time, there is no order by any administrative or judicial authority providing that Mr. Neylon should be employed by the State of Illinois. Judge Berg’s order of April 21, 1977, denying reinstatement to the Claimant subsequent to July 16, 1976, remains in effect.

However, because we think this matter has gone on long enough, in the interest of judicial economy, and in fairness, we will render a decision on the merits of the reinstatement portion of this claim.

Having reviewed the evidence we find in favor of the Claimant on the issue of reinstatement, that is, that a substantial portion of his duties were relocated, either by transfer or by abolition and reestablishment, and that he should have been allowed to reassume those duties at the different agency.

As for damages, the Claimant is entitled to such compensation as would place him in the same position as if he had been reinstated effective July 16, 1976. The first item of damages is the wages. The interim order previously entered compensated him for lost wages prior to July 16, 1976. On May 5, 1981, the Claimant suffered a disabling stroke. Therefore, he is due what he would have earned from July 16, 1976, to May 5, 1981, less what he earned in mitigation. In computing those losses the Claimant figured in a 7.5% annual increase based on the average annual increase he received from 1969 to 1974. At the time of his discharge it was stipulated that he was earning $17,606.50 annually. Claimant computed the total amount he would have earned to be $105,732.00. The Respondent argues that such a method of calculating the lost wages is speculative and for that reason should not be accepted by the Court. Respondent would have the Claimant identify a specific position in which he should have been reinstated and use the set rate of compensation for that position. The Claimant did not identify such a position during the litigation. Having found that Claimant should have been reinstated, that he suffered loss of wages is not speculation but fact. In Harmon v. State (1978), 32 Ill. Ct. Cl. 543, 545, we quoted Hunter, Trial Handbook for Illinois Lawyers, 4th edition, chapter LXXX, General Rules Relating to Damages, sec. 80:5, page 815:

“Damages are not rendered uncertain because they are uncertain in amount, as distinguished from those which are too uncertain to be recoverable because they are not the certain results of the wrong that has been committed.”

As the triers of fact it is our responsibility to affix the amount of damages. We do not think that Claimant’s method of calculation is unreasonable (although we do question some of the arithmetic) and Respondent did not offer a workable alternative. We find that Claimant suffered $100,000.00 in lost wages. The evidence indicates Claimant earned $28,885.00 in mitigation of his losses. We previously deducted $4,447.00 earned in mitigation for the period covered by the award made in the interim order. We are satisfied that Claimant met his responsibilities with respect to mitigation of his losses during this period. Therefore, we now deduct the balance of the amount earned in mitigation, $15,410.00, which leaves $84,590.00 due Claimant for lost wages.

Claimant seeks compensation for hospitalization and life insurance which would have been paid by the Respondent had he remained an employee. In Noltemeier v. State (1983), 38 Ill. Ct. Cl. 107, we held that loss of insurance benefits could be a compensable item of damages in cases such as the one at bar. The record indicates that he paid $118.00 for hospitalization insurance for 33 months totaling $3,894.00. For 51 months until January 1, 1982, he paid $27.53 per month for a total of $1,404.00. After his suspension, he purchased $15,000.00 in life insurance (which is approximately the amount of coverage his employment with the Respondent would have provided him toward the end of the period). The record indicates he paid $57.54 in quarterly premiums for a total of $2,128.86 as of November 1,1982.

Claimant also seeks compensation for loss of disability payments. On May 5,1981, Claimant suffered an apparently disabling stroke and testified he was unable to work any more. His argument is that had he been reinstated he would have been entitled to disability payments as a benefit of being a State employee. It is unclear as to whether Claimant would have us award these payments (and consequently pay them as other awards are paid) or order the State Employees’ Retirement System to pay them. The funds with which such nonoccupational disability benefits are paid are held in a trust and are segregated from other State funds and administrative decisions of the Board of Trustees of the Retirement System are subject to administrative review, not review in the Court of Claims.

Claimant’s representations concerning enforcement of any decision we render notwithstanding, having found Claimant should have been reinstated, we think that he now should exhaust his potential remedy for this claimed item of damages by applying for back benefits from the Retirement System. We will retain jurisdiction and reconsider this aspect of his claim if his application to the Retirement System is unsuccessful and he can show that, but for the Respondent’s failure to reinstate him, he would otherwise have been eligible for the benefits.

One of the conditions for eligibility to receive disability benefits is that an employee must use all sick time accumulated as of the date of the disability. The evidence is that Claimant would have been entitled to use his sick days following his stroke had he been employed at the time. A State Employees’ Retirement System disability medical report form containing a doctor’s opinion that the Claimant was permanently disabled was entered into evidence by stipulation. It was uncontroverted that he would have accumulated 220 sick days as of November 1982. These days would have been paid at his rate of salary as of May 5,1981, the date of the stroke. That rate cannot be stated with exact certainty but, as previously indicated, he would have been earning something and difficulty of proof does not render the damages speculative. We, as triers of fact, find this amount to be $2,100.00 per month. Eleven months at $2,100.00 comes to $23,100.00.

In summary, the various items of damages are as follows:

Back wages (less mitigation)......$ 84,590.00

Hospitalization Insurance......... 5,298.00

Life Insurance................... 2,128.86

Sick Days....................... 23,100.00

Total...........................$115,116.86

It is hereby ordered that Claimant be and hereby is awarded the gross sum of $115,116.86 subject to appropriate employer contributions and employee deductions as more fully set forth in the Appendix compiled by the Clerk’s Office which is attached hereto and incorporated herein.

APPENDIX A Identification of the State Contributions and Deductions from Back Salary Award. To the State Employees’ Retirement System Employee’s contribution to State Employees’ Retirement System 2327.12 Employee’s contribution to FICA .00 State’s contribution to State Employees’ Retirement System 1948.96 State’s contribution to FICA .00 To Illinois State Treasurer to be remitted to Internal Revenue Service: Claimant’s Federal income tax 4928.40 To Illinois Department: Claimant’s Illinois income tax 616.05 To Office of Employment Security: Director Dept, of Employment Security 9000.00 To the Claimant: Net Salary 7770.43 Total Award $26,590.96


source: Caselaw Access Project

author: Raucci, J.

license: Public Domain

text:
    (No. 82-CC-2210
    Walter McIntyre, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 19, 1987.

    Fred Aiossa, for Claimant.
    Neil F. Hartigan, Attorney General (John Buckley, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This is a claim brought by Claimant, Walter McIntyre, for personal injuries sustained by him on October 30, 1981, while he was a resident at Stateville Correctional Center. On the date in question, an electronic gate closed on Claimant’s right arm severely injuring his right biceps.

Claimant worked in the general kitchen as a utility man. At about 4:00 p.m. on the day in question, he was assigned to take a cart containing coffee and cookies to A and B dining rooms. He delivered what he had to deliver to A dining room and was on his way to B dining room when a guard snatched a package of cookies off the cart as Claimant and his cart passed in front of D house gate.

The gate to D house is an electronically operated gate constructed out of bars. Six feet of the gate is stationary and another six feet of the gate slides on a track past the stationary part of the gate. The gate is operated by employees in a control room watching cameras and taking voice commands from officers via walkie-talkie radios.

When the guard took the cookies the gate was open and he walked through the gate. Whoever was operating the gate closed it after the guard went through.

Claimant called after the guard to return whatever he had taken from the wagon.

“Q. What were you calling him for?

A. To get whatever he took off the wagon back.

Q. Why was it important to get those back?

A. When I leave the kitchen and B called for us to bring food or coffee to the dining, when I left the kitchen if I don’t show up to the dining room with whatever I left the kitchen with, I get disciplinary report wrote up on me, because inmates have been known to steal stuff out of the kitchen.

I would have been accused of it, written up with a disciplinary report written up on me, and possibly put in segregation or C grade or whatever, and I was trying to avoid a ticket which was a disciplinary report.

Q. So, you said you called this guard.

How did you call him and by what means?

A. I called the officer.

Q. Did you know him by name?

A. No.

Q. What else did you do to attract his attention?

A. He stopped when he got halfway down the tunnel, because after you go through the gate, there is a tunnel before you get to C house which is about a block or so long.

Got halfway down the tunnel and asked me what I wanted. I asked him to bring back what he took off the wagon, and he said I don’t have nothing.

I pointed to what he had in his hand.

Q. Which arm did you use to point?

A. Right arm.

Q. Where was your arm when you started pointing to what he had?

A. When I first pointed, he acted as if he couldn’t see me which he could from as far as I could see, but I stick my hands through the bars and pointed directly at what he had, and that is when whoever was operating the gate . . . .” (Tr. 8-10)

In other words, to better use his right hand to point at the object in the officer’s hand, Claimant thrust his right arm through the stationary part of the gate. At that point an employee in the control room opened the gate and crushed Claimant’s right arm in the area of his biceps.

The gate opened when it did because Officer Cook, by radio, called the control office to open the gate, without noticing that Claimant had his arm through the stationary portion.

First we will consider the report filed by Officer Cook:

“I Officer Cook was going into D-House tunnel, Resident McIntyre was standing at the gate with his arm through the bars. Control center opened the gate and Resident McIntyre’s arm smashed between the two gates.

I signalled the control center to release Resident McIntyre’s arm.” (Resp. Ex. 1)

Next we will consider his testimony:

“Q. When you approached the D gate at this particular time, was the gate open or closed?

A. It was closed.

Q. And where was Resident McIntyre with regard to the gate?

A. He was standing on the stationary side of it.

Q. What was he doing there?

A. Talking.

Q. Who was he talking to?

A. I don’t know who he was talking to. He was talking to someone standing in the tunnel.

Q. Was that someone in the tunnel an officer or an inmate?

A. I don’t know. I’m not sure.

Q. Then what happened?

A. Then I called over the radio to have them open the gate so I could go inside the tunnel.

Q. And after you called the radio, did the gate begin to open?

A. Yes.

Q. Then what happened?

A. Then I noticed his arm was through the gate, and it smashed, and so I could tell them to close it____” (Tr. 51-52)

When Officer Cook realized that Claimant’s arm was caught in the gate, he began to wave his arm in front of the camera to get the attention of the operator in the control room. But waving to attract the attention of the operator was futile, because apparently no one was watching the screen. He had to call the operator over his radio in order to get the control room’s attention to close the gate and release Claimant’s arm. The fact that the gate had not opened far enough to permit anyone to go through but, in fact, wedged Claimant’s arm between it and the stationary bars escaped the attention of those in the control room. A minute elapsed before an operator in the control room pressed a button to close the gate.

“Q. Between the time Mr. McIntyre’s arm was first caught in the gate and the time you called the control center telling them to close the gate releasing Mr. McIntyre’s arm approximately how much time passed, if you can recall?

A. About a minute.” (Tr. 53; also see Tr. 28).

On cross-examination Officer Cook elaborated further:

“BY MR. AIOSSA

Q. Officer Cook, drawing your attention back to the statement exhibit when you read it, you said McIntyre’s arm was smashed between the gate. The last sentence is actually I signalled the control center to close the gate to release his arm?

A. I was waving in front of the camera.

Q. You heard Mr. McIntyre testify he heard a guard call, was that you?

A. I was standing behind him.

Q. You had a walkie-talkie, then you are the one that called to the control center?

A. Yes.

Q. The control center didn’t close the gate on its own—

MR. BUCKLEY: Objection to the part. of the question.

BY MR. AIOSSA:

Q. You signalled the control center to close that gate?

A. Yes.

Q. Thereby releasing Walter McIntyre’s arm?

A. Yes.

Q. The control center didn’t do it until you called, correct?

A. No, they didn’t know what was happening.” (Tr. 53, 54)

(Emphasis supplied.)

He summarized the matter as follows:

“Q. So, if the control center had seen what was going on, they could have closed the gate immediately, correct?

A. Yes.

Q. But there was a lapse of time of approximately a minute, but they actually closed it?

A. Yes.

Q. And they didn’t close it until you actually notified them, correct?

A. Yes, I called them over the radio.

Q. It wasn’t until they got your radio communication until they actually closed it, correct?

A. Yes.” (Tr. 55)

The Claimant has proven negligence on the part of Respondent in the following particulars:

1. Officer Cook was negligent in not noticing that Claimant’s arm was thrust through the stationary part of the gate when he, Cook, called the control room by radio to open the gate. This appears in both Officer Cook’s written statement and in his testimony.

2. At all times during this incident, both on opening the gate at Cook’s request, and on closing it at Cook’s request, the control center relied exclusively on his radio calls. Either the lighting was so poor around the gate that it could not see the gate over the monitoring system, or the operator paid no attention to the screen.

Two of the employees in the control room gave written statements which would appear to be falsehoods. It should be remembered that Officer Cook testified that after Claimant’s arm was caught in the gate he tried to attract the attention of the control room by waving in front of the camera. “I was waving in front of the camera.” But, the control center didn’t close the gate until he called on the radio.

“Q. The control center didn’t do it until you called, correct?

A. No, they didn’t know what was happening.”

The statements of the two employees are reproduced below:

First is that of Richard J. Watson:

“On the above date and time I was given the sign from Officer Cook to open the tunnel gate D. However, Resident McIntyre was leaning on the gate as it was opening he also placed his arm through the gate and was caught between the moving gate.”
(Resp. Ex. 2)

If he saw this happen, why then did he not immediately release Claimant’s arm? Why was Officer Cook’s arm waving futilely? Why was the gate not released until Officer Cook’s radio call? Why did Claimant have to endure almost a minute with his arm crushed in the gate?

Second is that of Katie Banks:

“On the above date and time while I c/o Katie Banks was working the control center I saw Res. McIntyre appear to deliberately push his arm into the D gate just as it was opening up.” (Resp. Ex. 3). (Also see her statement repeated in Resp. Ex. 4).

If she saw all of that happening why did she not tell c/o Watson to close the gate? Why the delay in getting Claimant’s arm out of the gate?

There is dispute in the record as to what warning signs are posted at the gate.

Warden DeRobertis, in a memorandum, stated that there were “posted warnings to keep arms, hands, and legs clear of the gate bars.” However, the Adjustment Committee summary signed by Captain Hall merely states that there are signs posted at gates “stating not to tamper.” (Corroborated by Claimant’s testimony Tr. 19, 20).

Given the urgency Claimant felt about reclaiming the cookies taken by the unknown officer, we do not believe he was guilty of contributory negligence in thrusting his arm through the gate to better point to the package in the officer’s hand. The greater negligence was that of Officer Cook and correctional officers Watson and Banks. At the most his negligence would have to be given a fractional valuation.

Claimant ran unassisted to the dispensary a half block away. From there he was taken to the institution hospital. There, he was given X rays and sent back to the cellhouse.

“Q. And they didn’t keep you up at the hospital at all?

A. No, they told me it was soft tissue damage, and it would be okay. They gave me something for pain and sent me back to the cell.” (Tr. 22).

On November 24, 1981, he was examined by an orthopedic surgeon in Joliet, Illinois, who found:

“The patient struck his arm about the junction of the proximal or middle third of his right humerus of the anterior aspect with a door. He has no biceps. The biceps does not contract.” (Cl. Ex. 2) Emphasis supplied.

Dr. Gerald J. Rabin, M.D., stated in his report:

“Coordination of the upper extremities are equal and normal. The patient has weakness of the whole right upper arm, from the shoulder down. Biceps and triceps reflexes are present and equal. The patient has hypesthesia of the right forearm, and to the right elbow down. There is an atrophy of the upper third of the right arm, tenderness of the right arm. The patient has a huge muscle defect of the right biceps, the short head of the medical biceps tendon, medial aspect. The patient has a whole marked deformity of the whole biceps muscle and its attachment. The inferior attachment is intact. The long head of the biceps are intact. The short head is absent, with marked deformity of the whole biceps. The patient has equal and normal motion of the left shoulder, both elbows and wrist joints. Motion of the right shoulder is limited, with marked weakness of the long head of the biceps as well as absence of the short head of the biceps. Strength and motion of the right hand, fingers, and thumb is limited.. . .

DIAGNOSIS:

A Defect of the upper third of the biceps in the region of the upper third of the biceps muscle, with an apparent tear of the short head of the biceps.

COMMENT:

At this time the patient is in need, I think of (sic) surgical repair should have been done of the short head of the biceps, and possibly the long head of the biceps at the time of the injury. At this time the patient could be helped by an intensive course of physiotherapy and exercises as well as possible surgical repair of the biceps muscles and their short and long heads.” (Cl. Ex. 3) (Emphasis supplied.)

The Claimant was 24 years old at the time of the accident. The injury is permanent and will require surgery, although complete recovery is highly unlikely. Claimant’s testimony indicates that he has attempted gainful employment since his release from State custody, but has been terminated because of his inability to perform physical tasks with his injured arm. Considering the entire record in this case, Claimant is entitled to an award of $60,000.00.

It is therefore ordered, adjudged and decreed that Claimant is awarded $60,000.00 in full and complete satisfaction of this claim.


author: Holderman, J.

text:
    (No. 83-CC-0026
    Dean and Karen Bundy, Claimants, v. The State of Illinois, Respondent.

      Opinion filed August 4, 1986.

    Emmanuel Guyon, for Claimants.

      Neil F. Hartigan, Attorney General (Lynn Schock, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

The nature of this case is that of a property claim for damages incurred by occupants of a single-family residence home which is located adjacent to a newly-constructed highway and land overpass. The claim of damage includes decrease in value of the home, loss of use of the home, psychological fear by having to live in the home under the new conditions, structural damage to the home, water damage, increased noise, and other incidental damages to the premises.

During 1980 and 1981, in the course of improving Illinois Route 23 in Streator, Illinois, the State of Illinois widened that highway so it is now eight feet and one inch closer to the Claimants’ property than it was prior to the improvement. The Claimants contend that the widening of the highway damaged their property in the amount of $52,000.00.

The Claimants live in a single family residence located at 1815 South Rloomington Street, Streator, Livingston County, Illinois. They have lived there for 15 years and the home in question was previously owned by Dean Bundy’s parents for many years before being purchased by Claimants.

State Highway F.A. 24, runs in a north and south direction on the west side of Claimants’ property. The highway is located 15.2 feet from the side of the house and the home is 6.75 feet from the State right-of-way line. The home was within 22 feet of Illinois Route 23 before the State improved the road.

As part of this improvement, the State, using its existing right-of-way, widened Illinois Route 23 so it now passes eight feet and one inch closer to the Bundy home than it did prior to the construction.

It is Claimants’ contention that as a result of this improvement of the highway, several problems have occurred which have caused the damages complained of.

First, the speed of the trucks using the highway due to the improvements is much higher than it was before the improvements and the vibration is therefore much greater. The Claimants allege that the basement foundation, as a result of this heavy vibration, has been cracked and there is now seepage of water that did not exist prior to the improvements with the result being there is now water in the basement.

Claimants contend that the evidence is uncontradicted, that water now accumulates in the back yard to the extent there may be a pond up to 50 feet in width, and that the new highway is banked which causes water to flow onto their property much faster than it had before. Claimants also allege that their property is so close to the highway that when snow on the pavement is melting, the splash from the traffic throws water and slush against the house and that, together with the chemicals used to melt the snow, results in a discoloration that never existed before.

The highway is now approximately eight feet closer to Claimants’ house than it was before the improvements were made and the uncontradicted evidence is that there is much more vibration in the house now.

Claimants contend that since their house is now closer to the highway traffic, with the size of the trucks that go by their house and the speed of travel, an accident could very well propel them into the home of Claimants. Claimants state because of this, they do not use part of the house, particularly the living room, which is close to the highway, for fear of injury to an occupant of the room if a truck left the highway.

In order for a Claimant to recover in a case against the State, he must prove that the State was negligent, that such negligence caused the damages complained of, and that Claimant was free from contributory negligence.

The evidence relative to the leakage of the basement wall of Claimants’ house, the vibration, and the water in the back yard was not rebutted or contradicted. The Court readily understands the fear that might exist in the minds of property owners if their living room was placed within 15 feet of a main highway.

It is the Court’s opinion that Respondent is responsible for the damages caused and that a reasonable amount of compensation for said damages is $10,000.00.

An award is hereby entered in favor of Claimant in the amount of ten thousand ($10,000.00) dollars.


author: Patchett, J.

text:
    (No. 83-CC-1456
    United Cab Driveurself, Inc., Claimant, v. The State of Illinois Department of Public Aid, Respondent.

      Opinion filed May 1, 1987.

    Holland J. McFarland, for Claimant.
    Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This cause is before the Court on Respondent’s motion to dismiss the captioned claim, or alternatively, to strike and dismiss the complaint of the Claimant (United). Claimant having been given due notice, and the Court being fully advised in the premises, finds as follows:

1. Claimant is enrolled as a vendor, or “service provider” of medical transportation services to persons who are “recipients” as defined in section 2 — 9 of the Public Aid Code (PAC) (Ill. Rev. Stat., ch. 23, par. 2 — 9). Such recipients receive State-paid benefits under the medical assistance program administered by the Illinois Department of Public Aid (IDPA). In this action, filed pursuant to section 11 — 13 of the PAC, United is apparently seeking “vendor payments” (section 2 — 5 of the PAC) of from $3,400.10 to $5,550.90 in payment for services furnished during February through July 1982. The Complaint offers no other, more specific identification of the services, or service accounts on which United is basing its claim.

2. In its Court Rule 14 department report, IDPA denies that Respondents are indebted to United in any amount; and advises that United is indebted to IDPA for an unpaid $19.70 balance on a cash advancement which Respondents had previously made to United. Respondent’s position is that, except for the cash advancement, this claim is similar in subject matter to the other “section 11 — 13” medical vendor claims which have been filed in this Court against IDPA.

3. IDPA also reports certain procedural deficiencies and omissions in United’s pleadings and exhibit documentation, which it states have hindered investigation of the claim. These include United’s failures:

a. to identify (in a “bill of particulars” list) the specific service accounts (recipients’ identities, dates served, specific dollar amounts charged on each service account) on which United bases this aggregate claim;

b. to plead specifically, and document that each such account was presented for payment on an IDPA invoice to that agency; and

c. to plead specifically, and document what specific “action /was/ taken” by that agency on each such invoice (e.g., in an IDPA remittance-advice “voucher” response). The report notes that, under Court Rule 5, the obligations to plead “in detail each item of damages, and the amount claimed on account thereof,” and to identify specifically, and document prior presentations and agency responses, are United’s responsibility, not Respondent’s. IDPA asserts that the fundamental requirements of notice pleading require United to plead specific factual allegations; and that, unless United presents its claim in the degree of specificity called for by Court Rule 5, it will be extremely difficult for the Department to investigate the merits of the claim effectively. See this Court’s March 1, 1982, order in Barnes Hospital v. State, No. 82 CC 708 et seq.

4. According to the report, United has attempted to meet its burden of pleading and documenting the component accounts of its claim by tendering its “Group Exhibit A,” a file of “approximately 1,000 pages of documents” including invoice copies (apparently for both paid and unpaid accounts), IDPA’s voucher responses, and other miscellaneous bookkeeping records. In thus responding to Respondent’s discovery and bill-of-particulars requests, United infers that Respondent is obliged to sort through and organize its records, identify and separate the “paid” accounts from those which may be “unpaid,” and then attempt to construct the components of the Court claim which United has filed. Respondent denies that it has any responsibility for developing and presenting United’s claim. They contend that their obligation is limited to responding to the specifics of the claim, once United has presented it in accordance with Court rule requirements.

5. IDPA further reports that its staff, and the Clerk of this Court, have developed a set of sample pleading forms, including a bill-of-particulars form and related instructions, which medical vendor Claimants may choose to follow in commencing section 11 — 13 actions against IDPA. These forms are designed to assist such Claimants in presenting their claims in accordance with Court rules and with IDPA’s own regulations and requirements for vendor invoicing. They offer the additional benefit of encouraging a consistent and orderly presentation of such claims, thereby permitting IDPA staff to investigate them effectively and efficiently.

Based upon the foregoing, the Court makes the following additional findings:

6. United’s claim, as thus presented, does not state a cause of action on which this Court could grant any relief. Before addressing any matters raised in defense (e.g., prior payment via cash advancement), the Court must first determine whether United’s complaint (a) complies with the provisions of Court Rule 5, and (b) offers Respondent reasonably fair notice of specific factual allegations which it could investigate and respond to. Based upon the deficiencies outlined above, we find that the complaint does not comply with Rule 5’s requirements. We further find that the complaint fails to provide Respondent with fair notice of which specific accounts comprise this claim, of United’s “previously presented” invoices on those accounts, of IDPA’s responses or other “action taken,” or of other “details” required if IDPA can be expected to report to the Court in a meaningful way.

7. In this regard, we note the Complaint alleges United’s “total billings” on a month-by-month basis (whether by month-of-service or month-of-invoicing is not indicated), and of the dollar totals of amounts allowed and disallowed by IDPA under section 11 — 13. This summarized statement of bookkeeping balances does not represent the detailed allegations which a proper investigation of this claim would require.

8. United’s tender of a file containing its bookkeeping records, invoices and vouchers is not an appropriate substitute for the proper pleading of its claim. At this juncture, United’s complaint asserts, in essence, that it has been underpaid by from $3,400.10 to $5,550.90, its claim representing the difference between the total of a substantial number of individually-invoiced accounts and the total of IDPA’s payments and credits. Investigation can occur only after the correct “pieces” of the claim are identified and assembled, and the completed “puzzle” is available for review. Respondent is not obliged to determine which pieces “fit” and which do not, or to attempt to assemble a claim which “fits” the complaint, because the constituent pieces are the product of United’s selection. United must identify its selected accounts, and then proceed to meet Rule 5’s requirements as to each of them.

9. United has not met its pleading responsibilities simply by alleging that it “disputes all rejected (disallowed) amounts,” and that it did in fact perform the services invoiced. In its report, IDPA advises that a vendor’s right to be paid for services is contingent upon its timely submission of properly prepared and documented invoices. The Department asserts that its invoicing requirements are explained in its Medical Assistance Program (MAP) Handbook for Transportation Services, and that such requirements correspond to IDPA regulations and policy. These Handbooks were furnished to United and other vendors upon their enrollment; and United has, by written agreement, committed itself to complying with all Handbook requirements. The extent of United’s compliance can only be assessed by the parties and the Court after United has adequately presented the accounts on which it bases this claim, and after IDPA has investigated as to those accounts.

10. Court Rule 9 provides that a Claimant’s failure to comply with the provisions of Rule 5 shall be grounds for dismissal of its claim.

It is therefore hereby ordered:

That Respondent’s motion to dismiss is hereby granted, and Claimant United’s complaint is hereby stricken as insufficient in form and substance, as not complying with the rules of this Court, and as failing to state a cause of action on which relief may be granted;

That Claimant is given thirty (30) days from the date of this opinion in which to file an amended complaint. Any amended complaint hereinafter filed by Claimant shall utilize the form and format of the IDPA Medical Service Provider Complaint available from the clerk of this Court, including the submission of a completed bill of particulars as therein indicated, and shall set forth the specific detail of Claimant’s individual accounts required by that form and the related instructions.

That, if Claimant should fail to file its amended complaint within the time herein specified, then this claim and cause of action shall stand dismissed with prejudice, and the clerk of this Court shall thereupon record such dismissal on the Court’s records pertaining to this claim.


author: POCH, J.

text:
    (No. 83-CC-1878
    Michael Lighter, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 26, 1987.

    Francis Kaitis, for Claimant.
    Neil F. Hartigan, Attorney General (John Buckley, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

Claimant, a 14-year-old boy, alleges that on July 14, 1982, at about 4:30 p.m., he was injured while in the process of crossing Touhy Avenue from the north to the south side of the street. The complaint alleges that upon stepping from the curb, he stepped on top of the storm sewer and his right foot went through the top of the sewer because one of the grates had been removed. Claimant’s right leg was stuck into the sewer past his knee and he was unable to remove his leg on his own initiative. The police were called to the scene and they were unsuccessful in removing the boy’s leg. The Skokie Fire Department arrived at the scene and were finally able to remove the Claimant’s leg. Claimant was stuck in the sewer for approximately 30 minutes.

Claimant was taken to Skokie Valley Hospital where he was X-rayed and a brace was applied to the leg. At the time of his injury, Claimant had a summer job with Duffy & Quinn Construction Company at which job he was paid $3.35 an hour for 40 hours a week, or a total of $134.00 per week. Claimant was off work for approximately five weeks, resulting in a loss of $670.00. He also incurred a hospital bill which, including doctor’s services, amounted to $139.00.

Claimant testified he has made a complete recovery from his injuries.

It was established at the time of the hearing by the Commissioner that it was the duty of the State of Illinois to maintain the manhole cover in question and that there was a defect in said cover which resulted in Claimant’s injuries.

In situations such as this, this Court has held that it is the duty of the State of Illinois to maintain the manhole covers in a state of proper repair for the safety of persons and vehicles using the highway. (Beil v. State, 21 Ill. Ct. Cl. 480; Gouchot v. State, 21 Ill. Ct. Cl. 157; Mayes v. State, 23 Ill. Ct. Cl. 93.) Such a defect, which is known or could have been ascertained by reasonable inspection, amounts to constructive notice, and the failure to replace or repair such defect amounts to negligence on the part of the State of Illinois.

The Court is of the opinion that Claimant acted in the way an ordinary 14-year-old would act in crossing the street where he did. The record is devoid of any evidence showing any contributory negligence on the part of Claimant.

The Court is of the opinion that the State is guilty of negligence and that said negligence caused the Claimant’s injury as set forth in the complaint.

The Court believes an award in the amount of two thousand ($2,000.00) dollars is a proper award in this matter. An award is hereby entered in that amount on behalf of Claimant.


author: Montana, C.J.

text:
    (No. 83-CC-1900
    Deborah Woodhouse Catlett, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 3, 1986.

    Heitzinger, Condon & Hofstetter, for Claimant.
    Neil F. Hartigan, Attorney General (Ralanda Webb, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This matter is before the Court on the joint stipulation of the parties. This claim sounds in tort and is brought pursuant to section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.8(d)).

The incident involved herein occurred on October 16, 1982, at or near mile marker 273 on Interstate 57 in Iroquois County, Illinois. The wheel of the car in which Claimant was a passenger caught in a rut in the pavement, causing the car to careen off the roadway into a nearby ditch. Claimaint suffered fractured vertebrae and other injuries as a result of the accident.

Based on the foregoing, Claimant, Deborah W. Catlett, is hereby awarded the sum of forty thousand ($40,000.00) dollars in full and final satisfaction of this claim.


text:
    (No. 83-CC-1956
    Rock Island Franciscan Hospital, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 28, 1987.

    Gende, Mesich & Beatty, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This cause coming on to be heard on Respondent’s motion to dismiss, due notice having been given and the Court being fully advised finds as follows:

Hospital’s $781.56 claim, apparently intended to be filed pursuant to section 11 — 13 of the Illinois Public Aid Code (Ill. Rev. Stat., ch. 23, par. 11 — 13), seeks a vendor payment from the Illinois Department of Public Aid (IDPA) on a single patient account, Claimant’s provider reference No. 5272075, for which Claimant has identified its patient as either Holly Fordham or Gary Sprague. The claim is for services rendered during an inpatient stay from December 1 through December 4, 1981. This claim raises the issue whether Claimant had lost the opportunity to seek payment of this account, as a result of its failure to submit its invoice for its services until after the regulatory deadline for IDPA’s receipt of such invoice.

IDPA’s regulation (Department Rule 140.20(c), (d) and (e), published at 89 Ill. Adm. Code 140.20; formerly Rule 4.015) provides: that an invoice (or “vendor-payment claim”) must be received by the Department no later than six months following the date on which medical services were rendered; that invoices not so received are ineligible for payment; and that the State has no payment liability for tardily-received invoices.

In the instant claim, the complaint presents three invoices, all apparently prepared by Claimant for the purpose of billing these services to IDPA. In its first two invoices (prepared in December 1981 and May 1982), Claimant identified its patient as Holly Fordham. Claimant has failed to establish that either of these invoices was ever submitted to or received by IDPA. The third invoice, dated January 13, 1983, identifies Claimant’s patient, and the recipient of these same services, as Gary Sprague and this invoice was received by IDPA, on January 17,1983, some 13 months after the services had been rendered. The invoice was disallowed for payment by IDPA (by the rejection message “submitted later than one year after service”) as a result of Claimant’s failure to submit it within the time prescribed by Rule 140.20.

This third invoice (for patient Sprague) contains no entries in the spaces, or “fields” labelled “Original DCN” or “Voucher Number.” In compliance with IDPA’s Handbook for Hospitals billing instructions, Claimant would have completed these two fields, if this account (whether for services to Fordham or to Sprague) had previously been invoiced to IDPA and disallowed for any reason by IDPA. Claimant’s failure to complete these two fields thus serves to confirm that this January 13, 1983, invoice represents its first submittal of its charges on this account to IDPA.

A vendor’s right to payment of a claim, enforceable under section 11 — 13 of the Illinois Public Aid Code, may be “limited by regulations of the Illinois Department.” (Ill. Rev. Stat., ch. 23, par. 11 — 13.) Rule 140.20 is one such limiting regulation. It imposes a deadline requirement on Claimant and other medical vendors with which they must comply if they are to receive payments for services to IDPA recipients. Moreover, as noted in IDPA’s report, Claimant has signed a Provider Agreement with the Department, upon enrolling as a Medical Assistance Program (MAP) participant, in which it “agrees to abide by the Department’s properly promulgated Rules and Hospital Handbook” requirements, necessarily including Rule 140.20 and a corresponding invoicing deadline set out in IDPA’s MAP Handbook for Hospitals instructions.

This Court has recognized IDPA’s invoice receipt deadline as a requirement with which vendors must comply in establishing their right to be paid for recipients’ care. (Weissman v. State (1978), 32 Ill. Ct. Cl. 150; Brokaw Hospital v. State (1980), 34 Ill. Ct. Cl. 316; Methodist Medical Center v. State (1980), 34 Ill. Ct. Cl. 316; Good Samaritan Hospital v. State (1982), 35 Ill. Ct. Cl. 379; and Rush Anesthesiology Group v. State (1983), 35 Ill. Ct. Cl. 851.) It appears that reasonable diligence by vendors will allow for IDPA’s receipt of their claims within these time limits. Accurate invoice preparation and timely submittal should also assure vendors of prompt payment under IDPA’s MAP.

In an order entered on May 3,1982 (in Rock Island Franciscan Hospital v. State, No. 82 CC 899, consolidating six claims), this Court reported concern for the nonpayment status of Claimant’s accounts for services to IDPA recipients. We expressed the belief that Claimant’s proper and timely compliance with IDPA’s Rule and Handbook requirements would allow it to be paid promptly for its eligible services, through the Department’s administrative channels. We continue to believe that Claimant’s adherence to these requirements, in billing such services for payment, will in fact result in Claimant’s receiving the “vendor-payments” from IDPA to which it is entitled.

It is hereby ordered that this claim be, and it is hereby dismissed, the Claimant having failed to comply with the invoice receipt requirement of IDPA Rule 140.20.


author: Holderman, J. Holderman, J. Holderman, J.

text:
    (No. 83-CC-2149
    Lorraine Prencipe, Claimant, v. The State of Illinois, Respondent.

      Order on motion to dismiss filed May 8, 1985.

      Order on motion to vacate dismissal filed August 8, 1985.

      Order on motion to dismiss filed May 15, 1987.

    Brian D. Alpert and Richard Geiger, for Claimant.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, for Respondent.
   ORDER ON MOTION TO DISMISS

Holderman, J.

This matter comes before the Court upon motion of Respondent to dismiss the complaint filed in this matter.

Respondent’s motion sets forth that Claimant filed a complaint in this Court alleging damages sustained as a result of negligent highway construction on August 3, 1982, near the intersection of Ogden Avenue and Washington Street in Naperville, Illinois. Said motion further states that Claimant executed a full and unqualified release, dated July 15, 1983, for damages arising from this accident. Respondent cited the case of Porter v. Ford Motor Co. (1983), 96 Ill. 2d 190, 449 N.E.2d 827, in which the Illinois Supreme Court held that a full or unqualified release as to one indivisible injury given to anyone of those concurring in its cause releases both joint and independent concurrent tortfeasors.

Motion to dismiss is hereby granted and this cause is dismissed.

ORDER ON MOTION TO VACATE DISMISSAL

Holderman, J.

This matter comes before the Court upon Claimant’s request that the Court’s order of May 8, 1985, dismissing this claim be vacated and Respondent’s motion to dismiss be denied.

Respondent’s motion to dismiss, filed January 4, 1985, requested dismissal on the grounds that Claimant “executed a full and unqualified release dated July 15, 1983, for damages arising from this occurrence.”

Claimant, in her brief in response to motion to dismiss, dated July 2,1985, states that her attorney never received a copy of Respondent’s motion to dismiss and the first notice she had of said motion was the order entered by the Court on May 8,1985. Said brief also sets forth that on June 13, 1985, the parties appeared on a status call before Commissioner Robert E. Cronin who granted Claimant 21 days to file the instant memorandum in opposition to Respondent’s motion and granted Respondent 21 days to respond and set the matter for status hearing on October 16,1985.

It is hereby ordered that the Court’s order of May 8, 1985, dismissing said claim be, and the same is, vacated, and this matter is continued until the hearing on October 16, 1985, before Commissioner Cronin.

ORDER ON MOTION TO DISMISS

Holderman, J.

This matter comes before the Court upon Respondent’s motion to dismiss and amended motion to dismiss.

This matter arose as a result of a motorcycle accident on August 3, 1982, near the intersection of Ogden Avenue and Washington Street in Naperville, Illinois.

On January 4, 1985, Respondent filed a motion to dismiss which was granted by the Court’s order of May 8, 1985. On May 28, 1985, Claimant filed a motion to vacate the dismissal order, and on August 8, 1985, the Court entered an order granting Claimant’s motion to vacate and continuing Respondent’s motion to dismiss for hearing.

The record shows that Claimant Lorraine Prencipe executed a full and unqualified release of all claims dated July 15, 1983, for all damages arising from this occurrence. Said release states, in part:

. . all other persons, firms, corporations, associations or partnerships of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and other compensation whatsoever, which the undersigned now has/have or which may hereinafter accrue on account of or in any way growing out of any and all known or unknown, foreseen and unseen bodily and personal injuries and property damage and the consequences thereof resulting or to result from the accident, casualty or event which occurred on or about the third day of August, 1982 at or near the intersection of Ogden Avenue and Washington Street, Naperville, Illinois.”

Respondent’s motion to dismiss calls attention to the fact that the aforementioned release does not contain an express reservation of rights and that it is clear on its face that it is a full or unqualified release as to one indivisible injury. Respondent’s motion further states that in Porter v. Ford Motor Co. (1983), 96 Ill. 2d 190, 449 N.E.2d 827, the Illinois Supreme Court held that a full or unqualified release given to any one of those concurring in its cause releases both joint and independent concurrent tortfeasors; further, such releases are to be given the presumption of validity. (See Wasmund v. Metropolitan Sanitary Dist. (1985), 135 Ill. App. 3d 926, 482 N.E.2d 351.) Respondent further states that the language of the release executed by Claimant Lorraine Prencipe falls within the ambit of and is governed by the Porter decision and therefore, the release bars any and all claims arising out of the occurrence which is the subject of said release.

It is the opinion of this Court that the release executed by Claimant is a full and complete release of all claims that might arise out of the accident complained of.

Motion to dismiss is granted and said cause is dismissed.


author: Montana, C.J. Montana, C.J. Montana, C.J.

text:
    (No. 83-CC-2334
    Kathy Stanley, Claimant, v. The Board of Trustees of the University of Illinois, Respondent.

      Opinion filed November 21, 1985.

      Order on motion to dismiss filed April 4, 1986.

      Order on motion to dismiss filed September 8, 1986.

    Heyl, Royster, Voelker & Allen, for Claimant.
    Franklin, Flynn & Palmer, for Respondent.
   Montana, C.J.

This cause is before the court on Respondent’s motion for directed verdict at the close of Claimant’s case in chief. Respondent’s position is that the evidence adduced by Claimant during its case in chief, even when viewed in the light most favorable to Claimant, does not establish a prima facie case of negligence.

Claimant filed her claim against the board of trustees of the University of Illinois alleging a breach of contract and negligence in the treatment of her horse, Sylvan Motaj, an Arabian gelding during a lameness examination which was performed on the horse.

At the end of March 1981, Sylvan Motaj, known hereafter as “Mo,” injured himself. A decision was made to bring “Mo” to the University of Illinois at Champaign for an examination to determine the nature of the injury. Upon examination by Dr. Boero of the University of Illinois Large Animal Clinic, a series of X rays and a CT-scan were ordered for the front legs of the horse.

The facility at the University of Illinois had the only CT-scan capabilities in the area.

Claimant testified that before the CT-scan, she advised two students or technicians who were going to tranquilize the horse that “this horse does not do well on Rompun. It's not a good tranquilizer for him.” The tranquilizer was given to the horse before she could object further. The CT-scan proceeded.

Because no problems were detected with respect to the front legs, the CT-scan was directed to the hind legs of the horse. Also the horse was repositioned to accomplish this with the very active assistance and direction of Claimant. At that point, Claimant told a person raising the equipment to be careful. Nonetheless, the equipment did touch the horse. The horse then kicked and injured his left hind leg. The cut went to the bone. According to Claimant, because of the injury the horse is not capable of being a show horse and can only be a trail horse. Claimant was not able to complete a pending sale and had expenses for veterinarians and other consequential expenses.

The cross-examination indicated Claimant discussed the CT-scan with Dr. Boero but did not tell him anything about not using Rompun. She did not place any information about Rompun in writing, did not order the technician to stop injecting Rompun, and did not ask the technician for his name.

At the trial, at the close of Claimant’s case, Respondent made a motion for directed verdict. The Commissioner ruled that under the present rules of the Court of Claims, the Commissioner did not have the authority to grant such a motion. However, the Commissioner required the Respondent to go forward with its case without prejudice to its position that it was entitled to a directed verdict at the close of Claimant’s case.

In deciding the motion for directed finding as to the tort claim, the Court must look solely to the evidence presented by Claimant in its case in chief and examine that evidence and determine if a prima facie case of negligence has been made. For Claimant to prevail on a tort theory, Claimant has the burden of proving by a preponderance of the evidence that the State of Illinois was negligent, that such negligence was the proximate cause of the injury and that damages naturally flowed therefrom. (Mount v. State (1977), 31 Ill. Ct. Cl. 304.) A State hospital is not an insurer of the well-being of its patients but it does owe them a duty to exercise reasonable and ordinary care in their treatment. (Mazurek v. State (1975), 30 Ill. Ct. Cl. 247.) To recover on the tort theory of liability, Claimant must prove the Respondent breached this duty owed to her. The State was under a duty to use such reasonable care as the known conditions required. (Ingram v. State (1979), 33 Ill. Ct. Cl. 134; Todd v. State (1978), 32 Ill. Ct. Cl. 87.) Unless Claimant can prove the agents of the State were negligent, that the CT-scan was improperly administered, or the injection of Rompun was a negligent act, then the claim must fail. Tolen v. State (1979), 32 Ill. Ct. Cl. 628.

Respondent in its motion for directed finding as to the tort claim argues that no evidence was elicited by Claimant by any expert testifying to the effects of the drug Rompun or that the administration of the drug was the proximate cause of the injury to the horse.

Claimant argues that the technician permitting the equipment to touch the horse was proof of negligence, that the negligence was so gross that experts are not required, and that the doctrine of res ipsa loquitur is applicable. However, the arguments of Claimant are in the most part based on the testimony of Dr. Boero. This testimony will not be considered in determining the motion for directed finding because it was elicited in the Respondent’s case.

Respondent is correct that no expert testimony was elicited during Claimant’s case in chief concerning the effects of Rompun, the standard of care in the community, or that the administration of Rompun was a proximate cause of the injuries to the horse. Therefore, Claimant has failed to meet its burden of proof. O’Donnell v. State (1980), 34 Ill. Ct. Cl. 12; Porter v. State (1965), 25 Ill. Ct. Cl. 62.

Res ipsa loquitur, while applicable to medical malpractice cases, is of no help to Claimant because Claimant actively assisted in positioning the horse and therefore Respondent was not in exclusive control. Further, there is no evidence that making contact with the horse during a CT-scan is a deviation from the normal standard of care. (Krotser v. State (1980), 33 Ill. Ct. Cl. 244; Ingram, supra; O’Donnell, supra.) Put another way, there is no evidence that it was negligence on Respondent’s part because a part of its equipment touched the horse.

The motion for a directed finding on the negligence theory of liability is granted and the cause of action for negligence is dismissed. The case is remanded for the parties to brief their positions on the breach of contract theory on an expedited basis.

ORDER ON MOTION TO DISMISS

Montana, C.J.

Respondent has moved for an order of dismissal due to Claimant’s failure to file her brief with respect to the breach of contract theory by January 27,1986.

It is hereby ordered as follows:

a. Claimant is granted 30 days from the date of this order to file her brief with respect to the breach of contract theory. No further extensions will be granted.

b. If Claimant’s brief is not timely filed, upon motion by Respondent, this claim will be dismissed.

c. Respondent’s motion to dismiss is denied for the present without prejudice to Respondent renewing the motion if Claimant does not comply with the provisions of this order.

ORDER ON MOTION TO DISMISS

Montana, C.J.

Respondent has moved for the entry of an order of. dismissal due to Claimant’s failure to file her brief in accordance with the order of this Court filed on April 4, 1986.

Because Claimant has not complied with this Court’s order of April 4, 1986, which stated that if Claimant failed to file her brief within 30 days of April 4, 1986, this claim would be dismissed, it is hereby ordered that this claim is dismissed.


text:
    (No. 83-CC-2545
    Paul Petrusak, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 14, 1987.

    Timothy T. McLaughlin, for Claimant.
    Neil F. Hartigan, Attorney General (H. Alfred Ryan, Kathleen O’Brien, and John Buckley, Assistant Attorneys General, of counsel), for Respondent.
   Montana, C.J.

Paul Petrusak, a former inmate at the Pontiac Correctional Center, brought this action sounding in tort for personal injuries received in a stabbing incident while he was incarcerated. A hearing was held by Commissioner John Simpson, briefs were filed, and the Commissioner filed his report. This is a serious matter and the Court has given it careful consideration.

The State is not an insurer as to the safety of an inmate in its custody. It does however have a duty to exercise reasonable care under the circumstances to prevent its inmates from suffering harm at the hands of other inmates. What is reasonable under the circumstances will necessarily vary from case to case. Reasonableness has to be judged in view of the prison environment. In this type of case we must recognize, and take care so as not to unduly interfere with, the large amount of discretion which must be accorded prison officials in handling the day-to-day affairs of operating an institution for persons convicted of crimes.

Foreseeability of potential for harm is a necessary element which must be proven by the preponderance of the evidence in this type of case. What is foreseeable necessarily must be judged by the facts in each case and by taking judicial notice of the prison environment.

The facts in the case at bar are for the most part undisputed. Most of the arguments in the briefs were directed at the weight to be attached to the facts and the conclusions to be drawn from them. The evidence was as follows.

Prior to the incident the Claimant had been working in the officers’ kitchen. On or about December 1, 1982, the Claimant was apprehended taking a 100 pound bag of sugar from the officers’ kitchen. As a result of this offense, he lost his job. Up to that time he had been residing in cell 338. This cell was in an area reserved for certain assigned workers. With the loss of his job, the Claimant was no longer qualified for a cell in this area.

Shortly thereafter, on December 7,1982, the gallery officer notified Claimant he had been assigned to a cell in gallery five. Claimant refused to move stating that because he would not join a gang called the Northsiders he would be dead in a week if he moved to gallery five. He wrote a note to one Lieutenant Staley asking to be put in protective custody. Following receipt of the note by Lieutenant Staley, Claimant was taken the same day to the office of Warden McGinnis for an interview.

Claimant explained his problem to Warden McGinnis and asked to be put in protective custody:

“Q. What if anything did you say to the warden?
A. I explained the same thing to the warden and the food supervisor as I explained to Lieutenant Staley, a gallery officer, that my life had been threatened by a gang member for refusing to join, and once I was removed from three gallery, as they say, it was all over with.
Q. Did you request protective custody?
A. Yes, sir, I did.” (Tr. 95.)

Contrary to Department of Corrections regulations (as will be discussed later on) Warden McGinnis did not immediately put Claimant in protective custody, but temporarily put him on deadlock status in a cell on gallery four pending investigation of the matter:

“Q. What if anything did Warden McGinnis say to you in response to that situation?
A. After I explained the situation to him, he said that I would temporarily be removed to the back of four gallery which is used basically as a deadlock gallery as investigation for segregation purposes.
Q. What if anything did he say to you about protective custody?
A. He said it would have to be investigated for them to determine whether I rated protective custody or not, to prove my allegations.” (Tr. 95.)

Claimant was then moved to cell 448 where he remained until December 16,1982.

Because Claimant had refused to move, a disciplinary ticket was written on him. In response to the ticket, on or about December 11,1982, he appeared before the adjustment committee and again asked for protective custody.

On December 15,1982, inmate Randy Brackett (the inmate who stabbed Claimant on December 16, 1982) tried to stab Claimant through the bars of cell 448.

“Mr. McLaughlin: Q. What if anything unusual happened on December 15, 1982?
A. It was sometime before twelve o’clock, before the noon meal, when I was approached by a man. As far as I know, I had never seen him before. He was a resident. He called me to the bars of the cell and said he wanted to talk to me for a minute. I stepped up to the bars and folded my arms, and he stood there, and he asked me what my name was, and I told him, and he reached through the bars and grabbed me by my T-shirt; and as soon as he grabbed me, Randy Brackett stepped around the corner from the cell next to mine and tried to put his hand through the bar. He had a knife in his hand. When the hand came through the cell, I tried to pull him in. I ripped the front of my T-shirt.
At that time, Lieutenant Groskreutz walked through the back of the gallery. I was three cells from the end, so he saw everything that was going on.
Lieutenant Groskreutz ordered me to let him go and Brackett took off toward the front of the gallery which is all the way on the other end. He went through the main gate and down the stairs. The gentleman who grabbed my shirt jumped over the gallery off of four gallery on to two and underneath the walkway where you couldn’t see him, and that’s when Lieutenant Groskreutz came in the gallery.
He asked me what had happened, and I told him, and he left me; and about ten minutes later, Lieutenant Groskreutz came back; and he handcuffed me and took me to the investigator’s office.” (Tr. 97-98.)

Again Claimant was not put in the protective custody unit but was sent back to cell 448, but the cell was deadlocked:

“Q. What did you say to the investigator and what did he say to you?
A. I explained the situation to him again from the beginning, starting as of December 7th; and I described the occurrence that had just taken place, and he temporarily assigned me to P.C. deadlock pending investigation.
Q. What happened then?
A. That’s when I was returned to the back of four gallery.
Q. Were you placed on deadlock?
A. Yes, sir.” (Tr. 100.)

Immediately following the incident Lieutenant Groskreutz searched inmate Brackett for the knife. Although no weapons were found on inmate Brackett, in an interview with Brackett by one Sergeant Epley conducted the day of the stabbing which gave rise to this claim Brackett stated he had the knife on his person:

“Q. Did you have a homemade knife yesterday?
A. Yes, the same shank I used to stab him with today.
Q. Where have you been holding the shank since yesterday?
A. I had it when Lt. Groskreutz shook me down yesterday on one gallery. I had the shank in the front of my pants and Groskreutz missed it. He took me to my cell #246 south cellhouse, shook down my cell and I then went in the cell with my shank on me.”
Exhibit 2

On December 16, 1982, in the early afternoon, two officers came to Claimant’s cell and told him that he was being transferred to the protective custody unit in the north cellhouse. He packed his property into some boxes. He was handcuffed with his hands in front of him. He carried two of the boxes and the officers carried the others. When they reached the first floor they stopped in front of the sergeant’s cage to sign Claimant out of the building. At that instant Brackett ran down a flight of stairs, rushed up to the Claimant and stabbed him in the back.

Prior to the stabbing Officer Berry noticed Brackett loitering on a landing on four gallery. He told Brackett to go to his cell but Brackett declined saying he was waiting to talk to someone.

Brackett’s stated motive for stabbing the Claimant differed from what the Claimant previously stated. Brackett said he was a gang member who had been ordered to put a “hit” on the Claimant as a favor to another gang outside of the prison because the Claimant was a “stool pigeon.” Exhibit 1.

Although Claimant was standing upright with a nine-inch knife in his back, at the outset the officers were too confused to render him any immediate assistance.

He persuaded the officer at the main door to let him out and he started walking towards the hospital.

“I walked around the kitchen, around the dry dock, and I was about 40 feet from the main intersection, the main crosswalk of the cell house before the officers finally started catching up to me. That’s when my knees started getting wobbly. I was barely moving.” (Tr. 108.)

He passed out and when he woke up he was lying on a stretcher at the intersection.

“A. I was numb from my shoulders almost to my knees from the cold because it was snowing, and I was laying there with no clothes on.
Q. Were you covered with anything?
A. No.” (Tr. 109-110.)

Finally after an additional delay of about 15 minutes he was taken to the infirmary at the penitentiary, accompanied by about 15 officers, the investigator, and four or five of the hospital staff. The knife was in his back the whole time.

After more delay in the infirmary, the institution physician removed the knife and the Claimant was transferred to St. James Hospital in Pontiac. He had surgery there. Because his progress was unsatisfactory, after approximately a week in St. James Hospital he was transferred- to St. Francis Hospital in Peoria where he remained a few days. He was then returned to St. James Hospital in Pontiac. He returned to the Pontiac Illinois Correctional Center on December 30, 1982, and was discharged from the penitentiary the following day, December 31,1982.

ISSUES

I. Was the State guilty of negligence?

We find that the following acts or omissions taken as a whole do constitute negligence on the part of the State in the handling of this matter.

A. The authorities at Pontiac Correctional Center did not put Claimant immediately into protective custody when he asked for it. Claimant’s Exhibit No. 15 is an inmate disciplinary report written by Gallery Officer Jackson on December 7, 1982, when Claimant refused to move from cell 338 to cell 522 as ordered:

“Charge: 307 unauthorized movement 403 disobeying a direct order, 404 violation of Rules.
Observation: At about 9:00 a.m. December 7,1982,1 c/o Jackson told Res. Petrusak #N21164, he had to move from 338 to 522. Res. Petrusak told me c/o Jackson he refuses to move on five gallery because, if I move I would be dead in a week. Resident Petrusak wrote a letter to Lt. Staley saying he wanted to go to P.C.”

As a result of the letter to Lieutenant Staley, Claimant was taken to Warden McGinnis for an interview. He again asked to be put in protective custody.

Administrative Regulation 808 specifically provides that the inmate requesting protective custody shall be reassigned from the general population to protective custody as “expeditiously as possible,” and that the investigation as to whether his request is well-founded shall be made within 10 days thereafter.

In other words, the inmate is put into protective custody immediately on his request, and then the matter is investigated.

“2. Within 10 working days after a committed person has been placed in protective custody, he shall appear before the Assignment Committee who shall make recommendation to the Chief Administrative Officer concerning the necessity of continued protective custody placement. The following factors, among other matters, may be considered by the Assignment Committee in making its recommendations:
a. Size, stature, age, degree of aggressiveness, criminal history, any history of being victimized;
b. Identification of a specific individual who has threatened and can be expected to continue to threaten to physically harm the committed person requesting protective custody status;
c. Institutional records that indicate the person has previously had difficulties adjusting within the general population due to pressure from other committed persons;
d. Written or verbal reports from correctional employees or others, or
e. Other information that in the Committee’s judgment makes continued protective custody placement necessary.
3. The Chief Administrative Officer or his designee shall make the final determination. The committed person shall be informed of the decision in writing. In the event that the Chief Administrative Officer or his designee determines that the person should be removed from protective custody because his protective custody needs cannot be substantiated, a copy of the decision shall be personally served upon the committed person.
4. If the committed person intends to grieve the decision, he must indicate his intent to do so in writing at the time he is served with the Chief Administrative Officer’s decision.
a. The Chief Administrative Officer or his designee shall notify the Administrative Review Board who will review the grievance and provide recommendations to the Director-within 15 working days of its receipt. The Director or his designee shall make the final determination.
b. While the grievance is pending, the committed person shall remain in the protective custody area.” Administrative Regulation 808

Thus we see that even if it is determined that the inmate does not need protective custody, if the individual wishes to grieve the decision he shall be kept in protective custody pending the hearing of his grievance.

In this case the authorities merely put Claimant on gallery four, and said it would have to be investigated whether Claimant merited protective custody.

“Q. What if anything did he say to you about protective custody?
A. He said it would have to be investigated for them to determine whether I rated protective custody or not, to prove my allegations.” (Tr. 95.)

The authorities’ actions were contrary to Administrative Regulation 808. If Claimant had been put into protective custody on December 7, 1982, he would not have been stabbed on December 16,1982.

When he again asked for protective custody on December 15, 1982, after the abortive attempt to stab him, the transfer was delayed until the following day, again making it possible for him to be stabbed on December 16,1982.

B. The search of inmate Brackett following the abortive stabbing attempt was incomplete. As previously set forth, inmate Brackett claimed to have had the knife on his person at the time he was searched following the December 15, 1982, incident. The knife is described as follows:

“Metal length approximately 9 inches long, handle wrapped in black electrical tape, approximate width of blade 1/2 inch long, end of blade pointed.”

This knife was not found. We think that a more thorough search would have found it. The Respondent suggested that perhaps the knife was not there and that Brackett may have been lying. We will never know. What we do know is that the lower abdomen and groin area where Brackett claimed to have secreted the knife was not searched.

C. The administration’s handling of inmate Brackett following the initial assault was lax. Brackett was permitted to remain at large in the institution after it was known he had attempted to stab the Claimant. Thus Brackett, who somehow knew when the Claimant was going to be moved out of the cellhouse, was able to lie in wait for him.

The following is an incident report filed by Officer Berry:

“I officer Berry #514 came down from 5 gallery. In the process of the cage I c/o Berry #514 noticed Resident Brackett A86188 sitting in the window on Front Flag of 4 gal. I c/o Berry told Resident Brackett A86188 to lock it up. Resident Brackett A86188 told me c/o Berry I will in a minute. I am waiting to talk to someone on 4 gal.” (Ex. 7. Emphasis supplied.)

Furthermore none of the officers involved in moving Claimant on December 16, 1982, nor Officer Berry, had been alerted to the fact that Claimant was being moved because he was in danger from resident Brackett.

The administration failed to comply with the provisions of the Department directive for institutional internal investigations.

This matter is covered in the direct examination of Warden McGinnis:

“Q. I am going to hand you what has been marked as Exhibit 18. Could you briefly describe that for us?
A. That’s a directive dated November 1,1982, relative to the Institutional Internal Investigations; and it’s signed by me.
Q. I assume that was in effect in December of 1982?
A. Yes, it was.
Q. This does relate to an investigation to be conducted when one inmate accuses another of an assault, does it not?
A. Yes.
Q. In Paragraph D-la, it reads, “All possible precautions should be taken to protect the safety of all those involved in the investigation;” is that correct?
A. Yes.
Q. The paramount concern or one of the paramount concerns during the investigation is to protect the inmate who alleges that he has been assaulted?
A. That’s correct.
Q. It would be possible, would it not, when somebody in Mr. Petrusak’s position is being moved out of the general population cell to have somebody observe the accused inmate, in this case Brackett, have somebody just go and keep an eye on him?
A. That’s certainly possible, yes.
Q. It would be possible even to have a guard assigned to go shake Brackett down again, would it not?
A. That’s possible, yes.
Q. You do have discretion to shake somebody down whenever you feel the need?
A. That’s correct.
Q. It would be possible to simply instruct Brackett to go to his cell and to lock his cell while Petrusak is being moved out of the cell house; is that correct?
A. That’s possible, too.” (Tr. 30-31.)

While we recognize that fears and threats of assaults in the prisons may be common occurrences, we feel that the Respondent’s actions in the handling of this incident were unreasonable. We want to make it clear though that it is not our intention to interfere with the Respondent’s discretion. We are not saying unless you do this or do not do that we are going to find negligence. We are saying that, taken as a whole, the Respondent’s conduct in this matter was unreasonable and the stabbing would have been preventable in the exercise of reasonable care.

II. Was the negligence of the State the proximate cause of the Claimant’s injuries?

It is clear that inmate Brackett’s intentional acts were the immediate cause of the Claimant’s injuries. However, this third-party criminal act was reasonably foreseeable and in the context of this case the negligence of the Respondent was the proximate cause of the injuries.

III. Was Claimant guilty to any degree of contributory negligence?

No. Claimant notified the administration of his danger in ample time. When he was attacked he was in handcuffs.

IV. Citations.

Before going on to a discussion of Claimant’s damages it should be mentioned that the Court of Claims cases cited by Respondent in its brief are all distinguishable from the case at hand.

Dorsey o. State (1977), 32 Ill. Ct. Cl. 449. In this case the assault on Claimant was without warning and committed by a man Claimant barely knew. There was nothing in the record of the assailant that would have put the State on notice that such an attack would occur. Neither Claimant nor the State had any advance information whereby the assault on Claimant could have been anticipated. Therefore, in Dorsey the State was not guilty of negligence.

Allen v. State (1979), 33 Ill. Ct. Cl. 11. Here again the State had no actual or constructive knowledge that the assailant would assault the Claimant.

American States Insurance o. State (1959), 23 Ill. Cc. Cl. 47. This case has no relevancy. It is a claim for property damage to automobiles committed by juveniles who escaped from a reformatory. The Court found that there was no negligence on the part of the State in the boys’ escape from camp.

Since this case was tried and briefed, other decisions in cases involving attacks on inmates by other inmates have been reported.

Skaj v. State (1982), 35 Ill. Ct. Cl. 857. In this case the inmate who was assaulted was in protective custody and there was some knowledge on the part of the Respondent that the Claimant would need protection, which was one reason why the Claimant was in protective custody. However, minimum effort on the part of the Claimant would have placed'him beyond the reach of his assailant. Under the facts in the case the Respondent had exercised reasonable care.

Carez c. State (1981), 35 Ill. Ct. Cl. 96. This case involved a breach of a prison regulation which led to an attack causing serious injuries. It differs from the case at bar in that the purpose of the regulation was not to protect residents but to control their movement. Moreover, the important element of foreseeability was not established in that there was no reason for the officers to anticipate third persons would commit a criminal act against the Claimant as a result of the breach of the regulation.

Woodfork v. State (1983), 36 Ill. Ct. Cl. 182. Foreseeability in this case was not established due to the Claimant’s failure to adequately inform the authorities of the nature of the problems he was having.

V. Damages.

The penetration of the knife into Claimant’s back resulted in extensive loss of blood and the forming of a large internal hematoma. However, no damage was done to Claimant’s organs such as his kidneys or spleen, nor was any artery severed. He suffered severe pain while he was hospitalized. The pain and cramps persisted so that he was unable to work for six months after his discharge from the penitentiary. He testified that he still has some stomach pains. He first went to work in July of 1983, but had to quit because, as a result of the stabbing, he could not lift drywall which was part of the job. At the time of the hearing he was employed doing general maintenance at a home for retarded children in Wauconda, Illinois, and experiencing some difficulty with lifting. There is no proof that his ability to earn his living has been limited or reduced, except for his inability to do heavy lifting. There were no medical expenses.

It is hereby ordered that the Claimant be, and hereby is, awarded the sum of $20,000.00 in full and final satisfaction of this cause of action.


author: Sommer, J.

text:
    (No. 84-CC-0533
    Dorothy Quinn, Special Administrator of the Estate of Michael Grider, deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 6, 1987.

    Steinberg, Burtker & Grossman, Ltd., for Claimant.
    Neil F. Hartigan, Attorney General (Ralanda Webb, Assistant Attorney General, of counsel), for Respondent.
   Sommer, J.

This matter coming to be heard upon the joint stipulation of the parties for the entry of judgment:

That the Claimant’s decedent was a resident of the Dixon Developmental Center, an Illinois Department of Mental Health and Developmental Disabilities facility. Pursuant to a placement decision initiated by the Department, the decedent was transferred to a private care facility.

That at all times subsequent to his transfer to private care, the Department retained and exercised monitoring, licensing and advisory powers with respect to the decedent’s placement.

That on or about September 13,1981, Michael Grider was absent from the premises of the private care facility located on the shores of Lake Michigan in Chicago, Illinois, without supervision and drowned in Lake Michigan, At the time of his death Michael Grider was 19 years old.

The Court further finds that the Respondent denies responsibility for the death of Claimant’s decedent and that the parties have determined that in their respective best interests, and without admission of fault, this cause shall be settled and compromised in the sum of fifteen thousand ($15,000.00) dollars and the Court under the circumstances finds that said sum is fair, reasonable and just. This opinion shall in no way act as precedent in future claims which may be filed.

It is hereby ordered that Claimant, Dorothy Quinn, Special Administrator of the Estate of Michael Grider, deceased, be awarded the total sum of fifteen thousand ($15,000.00) dollars in full and final settlement of all claims which are the subject matter of her complaint.


text:
    (No. 84-CC-1164
    Delphi Associates, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 1, 1986.

    Samuel J. Gallo, for Claimant.
    Neil F. Hartigan, Attorney General (Michael Taylor, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This cause comes on to be heard following the filing of a joint stipulation whereby the parties have agreed to a settlement of this matter and are seeking an award from the Court.

The parties stipulated as follows:

1. In September of 1978, the parties, Delphi and the State of Illinois, entered into a contract which provided that Delphi would design and implement a Medicaid Management Information System, to be used by the State of Illinois. The contract was twice amended by the parties. The maximum contract price provided in the second amendment was $6,509,457.

2. The contract contained a liquidated damages clause which permitted the State of Illinois to withhold up to 15% of the contract price, in the event that Delphi did not complete the Medicaid Management Information System in a timely fashion.

3. The contract, as amended, provided for completion of an operational Medicaid Management Information System by September 30,1980.

4. The contract, as amended, provided that the completion date would be extended upon the occurrence of certain events, thereby extending the date upon which the liquidated damages clause became effective.

5. The Medicaid Management Information System became operational in the Fall of 1981. The parties have disputed the question of whether the completion date in fact was extended as provided for in the contract, as amended.

6. The State of Illinois withheld from Delphi payment of the sum of $967,539 as liquidated damages.

7. Delphi thereafter filed suit against the State of Illinois contending that the liquidated damages clause was being improperly applied; that the completion date in fact had been extended in accordance with the terms of the contract, as amended; that the contract, as amended, entitled Delphi to an adjustment in the contract price based on State caused delays; that the State owed Delphi additional sums for out of scope work and rental reimbursement; that the State’s failure to renew the contract in accordance with the terms of the contract caused Delphi additional damages.

8. As a result of these claims Delphi asserted that in accordance with the terms of the contract, as amended, the State owed Delphi (1) a sum in excess of $2,000,000 for adjustment of the contract price, as amended, resulting from State-caused delays; (2) the sum of $967,539 for liquidated damages being wrongfully withheld by the State; (3) damages in the amount of $225,000 for the State’s failure to renew the contract as required by the contract’s terms; (4) rental expense reimbursement in the amount of $90,000; and (5) payment for out of scope work in the amount of $59,184.

9. The parties have now completed extensive discovery, including depositions and document production, and legal research on the issues of the case. As a result of these efforts the parties have entered into settlement negotiations for the purpose of fairly resolving the issues and avoiding a complex, extended trial.

10. As a result of these negotiations the parties have agreed to settle the entire matter for the sum of $967,539, which represents the amount of the contract price, as amended, which was withheld for liquidated damages. Payment of this sum by the State to Delphi would keep the total payments received by Delphi for the project below the total contract prices as agreed to by the parties and approved by the legislature.

11. Delphi, in consideration for payment of the settlement amount agreed to by the parties, will release all the other claims against the State.

12. The funds withheld from Claimant Delphi have lapsed and must therefore be paid by an award from this Court. The Medicaid Management Information System project took place over several years and Delphi Associates, Inc. was to receive progress payments for its work in fiscal years 1979, 1980 and 1981. The payments to Delphi Associates, Inc. were from Appropriation Number 001-47835-1200-0000. The amount of the lapse in each fiscal year is reflected in exhibit one.

The amount of lapse in each year was sufficient to cover the portion of progress payment withheld in each fiscal year.

13. The State of Illinois agrees to stipulate to an award in favor of Delphi Associates, Inc. in the amount of $967,539 in full settlement and satisfaction of Delphi’s claims against the State of Illinois in this matter.

14. Delphi Associates, Inc., agrees to accept the amount of $967,539 in full settlement of its claims against the State of Illinois in this matter and, further, agrees to release the State of Illinois from any further liability which might be asserted as a result of the Medicaid Management Information System.

Wherefore, the parties jointly pray that this Court enter an award on behalf of Delphi Associates, Inc., in the amount of nine hundred and sixty seven thousand and five hundred and thirty nine dollars ($967,539).

This Court is not bound by such stipulations but it does not seek to interpose controversy where none exists. We have reviewed the stipulation and the record in this matter. We approve the settlement and will enter the award.

It is hereby ordered that the Claimant herein, Delphi Associates, Inc., be and hereby is awarded the sum of $967,539.00 (nine hundred sixty-seven thousand, five hundred thirty nine dollars) in full and final satisfaction of this claim.