author: Jann, J. JANN, J.

text:
    (No. 94-CC-2679
    Anna Marie Berg, Personal Representative of the Estate of Louis Radabaugh and Individually, Claimants, v. Illinois Department of Transportation, Respondent.

      Opinion filed July 20, 1999.

      Order on request for rehearing filed September 28, 1999.

    Nelson, Bement, Stubblefield & Levenhagen (Timothy C. Stubblefield, of counsel), for Claimant.
    Jim E. Ryan, Attorney General (Brian J. Dees, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Jann, J.

The Claimants, Louis Radabaugh and Anna Marie Berg, husband and wife, brought this action for compensatoiy damages pursuant to the Illinois Court of Claims Act, 705 ILCS 505/8. The Claimants assert that they were injured as a direct and proximate result of negligence committed by the State of Illinois and arising out of an auto accident on Interstate 55 near the Joliet Road exit in the southbound lanes.

At 7:38 a.m. on November 29, 1992, Louis Radabaugh was driving south on Interstate 55 near Joliet Road when he lost control of his auto, allegedly due to an icy bridge, struck a guardrail, became airborne and landed in a ditch. Both Claimants were injured in the accident. Radabaugh, who was rendered a quadriplegic, died in June 1994 allegedly as a result of his injuries. Radabaughs estate was substituted as Claimant for Radabaugh individually in pretrial motions at hearing. Ms. Berg is Mr. Radabaughs widow and introduced letters testamentary for her husbands estate into evidence at hearing without objection.

Hearing was held on May 27, 1997, before Commissioner Clark in Collinsville, Illinois. Ms. Berg was represented by counsel and testified at said hearing. Pre-trial motions were entertained and the following orders by the Commissioner were entered:

1. The estate of Louis Radabaugh is substituted as Claimant for Louis Radabaugh.

2. The parties agreed that Mr. Radabaughs damages exceed the statutory limit of $100,000 and said maximum damages are stipulated if liability is found against Respondent.

3. Respondent moved to file its affirmative defense of comparative negligence. The motion was granted and Claimants made a general denial of record.

Claimants’ complaint is in four counts sounding in tort. Counts I and II are on behalf of Mr. Radabaugh. Damages are sought for personal injuiy, pain and suffering, permanency of injury and medical expenses, as well as lost wages proximately caused by IDOTs negligence.

Claimant Radabaugh alleges that IDOT failed to repair, correct or warn of a known hazardous condition on a roadway under its control. It is further alleged that IDOT negligendy designed and maintained said roadway.

Counts III and IV allege that the State breached the same duties indicated in counts I and II as regards Ms. Berg. Ms. Berg seeks damages for medical expenses, pain and suffering, permanent injury, lost wages and loss of society, companionship and consortium of her spouse.

The record indicates no proofs offered in support of the allegations of negligent design, failure to repair, or failure to warn, and we shall not consider said allegations in our findings. The evidence of record indicates that a maximum of two awards may result if liability is attributed to Respondent. No case law supports Claimant Bergs contention that four awards of $100,000 each are legally cognizable.

We shall consider only the claims of Ms. Berg personally, and as representative of her husbands estate arising from IDOTs alleged failure to perform salting operations in a timely manner, pled as negligent maintenance herein.

The following persons testified at hearing. Claimant Berg, Kathleen Farrell, Illinois State Police Troopers Erin Hehl and Anthony J. Hoop; Illinois State Police Msgt. David Salinas; Jacek Tyskiewicz, south area operations engineer in the IDOT Bureau of Maintenance; and James E. Sterr, IDOT region 2 claims manager. The Commissioner admitted into evidence photographs of the scene and the Claimants’ car after the accident; photographs of Radabaugh before and after the accident; Berg’s medical bills and records; a deposition of Dr. Richard Gayle, Bergs physician; a deposition of Trooper Erin Hehl; a deposition of Trooper Anthony J. Hoop; a deposition of Msgt. David Salinas; a letter from IDOT to the Claimants’ attorney; a letter from the Claimants’ attorney to IDOT; and exhibits that accompanied the depositions that were adopted into evidence. The Respondent filed a departmental report, and both parties filed briefs.

Ms. Berg testified that at the time of the accident, which occurred on a Sunday, she and her husband were headed home to Piedmont, Missouri, after spending Thanksgiving with relatives in Chicago. Berg stated that Radabaugh was driving south on Interstate 55, and she had just settled in for a long drive when she heard her husband exclaim something to the effect of “Oh God.” Berg looked up and saw lights from a patrol car. The next thing she knew, the car had hit the guardrail, went airborne, then came to rest upside down. Berg stated that, although she did not see the speedometer, she believed her husband was driving about 50 mph in the 55-mph zone. She characterized Radabaugh as a very conservative, safe driver. Radabaugh was rendered unconscious, and Berg was pulled from the car through the passenger window following the incident.

Ms. Berg testified to medical bills in the amount of $12,792.67 and introduced proofs supporting said claim. Ms. Berg also claimed a total of $8,400 in lost wages as a result of her own injuries and time off to care for her disabled husband. Ms. Berg introduced the testimony of a caretaker who supported her testimony as to the care required as a result of Mr. Radabaugh’s paralysis and the commensurate changes to the couple’s daily lives resulting from the accident.

Illinois State Trooper Erin Hehl was deposed on May 12, 1996 by Claimant. Respondent was represented by counsel at the deposition but posed no questions of the deponent. The deposition was admitted without objection as Claimants exhibit number 19 at hearing. Ms. Hehl testified via telephone at hearing on behalf of Respondent. Trooper Hehl filed the accident report regarding Claimants’ incident and witnessed the crash from her squad car. Ms. Hehl’s testimony indicates she had been employed by the Illinois State Police for six years as of 1992. She also testified to 40 hours of training in accident investigation by the Illinois State Police. Ms. Hehl was familiar with the roadway in question and had previously been assigned patrol duties on the subject portion of 1-55. Ms. Hehl also stated that she had investigated and filed reports on over 1,000 accidents pursuant to her employment.

Trooper Hehl testified that she was dispatched at 6:37 a.m. on November 29, 1992, to an accident on 1-55 at Joliet Road. Upon her arrival, she discovered two vehicles had left the roadway — one in a ditch in the left center median and the other off the right side of the road. While she was investigating the two incidents above, a third car left the roadway and came to rest in a ditch. Ms. Hehl saw other vehicles spin or “fishtail” in traversing the roadway after her arrival. Ms. Hehl stated that her investigations of the incidents which preceded her arrival indicated that the drivers of the errant vehicles lost control of their vehicles on a slippery or icy bridge surface.

Ms. Hehl testified that she requested an IDOT salt truck in a call to the State Police telecommunicator at approximately 6:45 a.m. shortly after her arrival at the accident scene. A second call was made by Ms. Hehl but the exact time of said call and a record thereof was not discovered.

Ms. Hehl testified that, in her experience as a State trooper, requests for IDOT salt trucks made in similar fashion were generally answered in five to ten minutes at the subject locale. Ms. Hehl acknowledged that response time would be delayed if an isolated condition or incident required summoning an off-duty IDOT employee to report to work on a weekend or in an emergency.

Trooper Hehl testified that she witnessed Claimants’ accident from the rear-view mirror of her squad car over a three to four second time frame. She stated that Mr. Radabaugh appeared to be driving normally and she saw no indicia of careless or negligent actions of the driver prior to the skid and crash at issue.

Trooper Anthony J. Hoop’s prior deposition and telephone testimony at hearing were admitted in like manner to Trooper Hehl’s testimony. Trooper Hoop was similarly trained and had about two years experience at the time of the accident. He responded to a call for assistance by Hehl and arrived at the scene at about 6:45 a.m. After conferring with Ms. Hehl, he positioned his squad car east of Hehl’s car and activated the emergency lights in an effort to apprise motorists of an accident scene and possible hazard. Mr. Hoop stated he also made two calls to the State Police telecommunicator to pass on requests for an IDOT salt truck after observing several motorists spin or “fishtail” on the bridge deck prior to Claimants’ accident. Trooper Hoop did not witness Claimants’ accident but provided assistance to Trooper Hehl in freeing both Claimants from their overturned auto, and giving CPR prior to the arrival of EMTs.

Trooper Hoop stated in his experience as trooper, requests made through the State Police telecommunicator for IDOT salt trucks generally resulted in a truck arriving within 30 minutes of a State Police request.

Both troopers believed that the slippery or icy condition of the 1-55 bridge deck caused, or directly contributed to, Claimants’ accident. Neither trooper actually surveyed the bridge deck on foot on the morning in question. However both observed traffic for about an hour prior to the incident. The traffic was characterized as light and normal for an early Sunday morning. Both observed motorists sliding, “fishtailing” or skidding on the bridge deck despite the presence of two squad cars with flashing lights intended to warn of peril.

Neither Ms. Hehl nor Mr. Hoop had any knowledge of IDOT practice or procedure on the day in question. They were also unadvised as to the availability, or proximity of, IDOT crews or equipment on said date or in general practice, and had no direct knowledge of the identity of IDOT personnel on the scene of the accidents or otherwise on duty.

Respondent presented Mr. Jack Tyskiewicz via telephone testimony at hearing. Mr. Tyskiewicz is south area operations engineer for IDOT. He held the same position as of the accident date in the maintenance operations area encompassing the accident site. He is a licensed civil engineer and has 18 years experience in highway maintenance.

He testified to IDOT practices for salting and inspection of roadways on the south section under his supervision. The south section includes 1-55 and its exit/entrance ramps from County Line Road to Lake Shore Drive, a distance of some 2.6 miles with ten bridges or elevated structures on each side of the highway. Normal procedure is that a salt truck travels at approximately 45 mph while inspecting the roadway, ramps and bridges and applies salt as necessary at a speed of about 35 mph. Mr. Tyskiewicz estimated that a salt truck patrol of the section would take one and one-half to two hours. He noted that he lacked documentation at hearing as to the exact number of exit/ entrance ramps in the section which require the salt truck driver to inspect and treat the road surface as needed, cross the highway and return via an entrance ramp to continue patrol, which might require additional time.

Mr. Tyskiewicz stated that IDOT does not normally have salt trucks patrolling and treating the roadways on Saturdays, Sundays or holidays. Trucks are dispatched on those days based upon receipt of weather advisories from an IDOT meteorologist. IDOT’s practice is also to have two trucks loaded with salt at all times to facilitate timely response when needed. On weekends, drivers are summoned from their homes and report to the maintenance yard where they then report to supervisory personnel, collect assigned vehicles or equipment, and proceed to carry out their particular duties. Drivers report to IDOT if conditions warrant that additional personnel and equipment are needed.

On the day in question, a salt truck was dispatched at 12:45 a.m. and patrolled until 10:15 a.m. per IDOT records. We have no evidence of record as to the identity or actions of the driver, other than his hours of operation and that two tons of salt were used during his shift. Discovery by Claimants and Respondents departmental report disclosed no written records of telecommunications from the State Police to IDOT or from the salt truck driver to IDOT during his shift. There is no direct evidence indicating IDOT received the State Police requests for a salt truck between 6:45 a.m. and 7:38 a.m. on November 29, 1992, as made by Troopers Hehl and Hoop. Respondents departmental report includes a letter from the litigation unit supervisor, Michael Fitzgerald of IDOT, May 12, 1994, which concludes that IDOT was probably advised of a slippery condition in general by the State Police. The writers letter appears to be a response to a request for information from the Attorney Generals staff. The conclusion reached as to notice by the State Police at an unspecified time to IDOT is attributed to an unidentified yard technician, who opined that, lacking notice by police patrols or weather conditions, a frost patrol would not be employed on a Sunday under normal IDOT practice. This conclusion is noted as probable, despite the fact that no documentation of the incident at issue nor towing activities appeared in IDOT records. However, Respondent’s brief admits that IDOT had notice of the icy bridge at 6:45 a.m. and the need for a salt truck.

Mr. Tyskiewicz testified that frost on bridges or overpasses is very difficult to predict based upon his experience. He stated that frost may occur in isolated locations when other similar structures and nearby portions of the roadway are clear and unaffected. The testimony and evidence of record indicate that a salt truck would normally carry ten tons of salt. As only two tons of salt were used during a nine and one-half hour shift, the parties both conclude that the icy conditions complained of were not widespread over the maintenance area in question.

Mr. Tyskiewicz further testified that IDOT and the State Police regularly exchange information via some from of telecommunication, perhaps including radios. However, neither party introduced admissible evidence of applicable agency procedures and records kept in the normal course of business as to inter/intra-agency communications, other than proof of Ms. Hehl’s first call for a salt truck.

Mr. Tyskiewicz testified that under IDOT practice and procedure, a salt truck on patrol may not abandon his assignment to respond to a complaint when his patrol indicates that conditions in his immediate or nearby vicinity require treatment. Normally, one proceeds toward the complaint area while treating the roadway in his path as warranted. A driver may also request back-up if conditions so warrant under IDOT procedures. Such requests are reviewed by a supervisor, who makes a final determination as to delegation of manpower and equipment.

As previously stated, neither party introduced business records of the communications directly at issue herein, nor witnesses to attest proffered hearsay. The objections of record regarding the testimony of Master Sergeant David Solinas, Illinois State Police, are granted and his testimony is hereby stricken as hearsay. The testimony of James E. Sterr is stricken in accord with Claimants’ motion to exclude witnesses at hearing. The testimony stricken was neither directly probative nor necessary to either party’s case when analyzed in a light most favorable to the party presenting each witness. Both parties presented other witnesses of record to attest to the facts, opinions and exhibits of record. We have carefully reviewed all objections of record and duly considered the admissible testimony and evidence and the weight of said proofs in our deliberations. Contrary to the presumptions arising from the hearing transcript and consequently argued by the parties in post-trial briefs, the Court does not adopt the premise that hearsay statements allegedly made by unidentified alleged State employees are automatically admissible under section 790.140 of the Court of Claims Rules. Only Trooper Hehl’s traffic accident report number 6685239 appears as a State Police business record introduced in Respondent’s departmental report. Knowledge of records kept, procedures and business practices of the State Police may not be imputed to IDOT lacking clear proof of record to compel such a finding. No such proofs were introduced by Claimants herein.

Claimants cite the absence of “icing reports” found through discovery on the accident date as evidence supporting a finding of negligence against IDOT. Mr. Tyskiewicz testified upon cross-examination that icing reports are customarily received from the Illinois State Police by IDOT, as the State Police highway patrol has more vehicles and personnel on State highways on Sunday mornings than IDOT under normal conditions. Claimants’ exhibit number 23 is a request from Mr. Ramshur for icing reports made by the fourth district of the Illinois State Police on November 28, 1992, until 8:00 a.m. The request was made of IDOT at its Schaumburg office. Claimants’ exhibit number 22 is a reply from Mr. Holub of IDOT, stating his files contained no such report. Mr. Holub suggested that counsel contact the alleged maker of the report(s), the Illinois State Police, by direct inquiry. The record does not contain proofs of the existence of icing reports made by the State Police and maintained as business records. The record as a whole indicates that an “icing report” is not a term of art, but was a broad description of weather conditions which may have been the subject of various inter-agency communications which are not of record.

Claimants must prove the following by a preponderance of the evidence to prevail upon a claim of negligence against Respondent herein:

1. The State breached a duty of reasonable care owed to Claimants in failing to properly maintain a roadway within its care and control;

2. Failure to exercise reasonable care in maintaining the roadway resulted in the existence of a dangerous condition likely to injure persons lawfully using said roadway;

3. Respondent had actual or constructive notice of the existence of a dangerous condition and failed to take reasonable action to remedy same;

4. Respondent’s negligence was a proximate cause of the injuries complained of;

5. Claimant was in the exercise of due care for his own safety. See Toliver v. State (1994), 47 Ill. Ct. Cl. 55, 59, and Graves v. State (1983), 36 Ill. Ct. Cl. 76, 78.

It is the duty of the State to exercise reasonable care in the maintenance and care of its highways in order that defective and dangerous conditions likely to injure persons lawfully on the highways shall not exist. (Allen v. State (1984), 36 Ill. Ct. Cl. 242.) The exercise of reasonable care requires the State to keep its highways reasonably safe. (Id. at 244.) The State is not required to keep its highways totally free from ice and snow — -an impossible task. (Lynch v. State (1995), 48 Ill. Ct. Cl. 98, 100.) The State, however, must use all reasonable care to do so. Id.

The first step in determining whether the Respondent was negligent is to determine if a dangerous condition existed at the site at issue. To be in a dangerously defective condition, the highway must be in a condition unfit for the purpose for which it was intended. Baker v. State (1989), 42 Ill. Ct. Cl. 110,115, citing Allen, supra.

The Respondent argues that the Claimants’ case rests on pure supposition and speculation and argues that there was no ice on the bridge because none of the witnesses testified to inspecting the bridge. The troopers, whose experience and expertise was unquestioned, testified that the bridge was icy. Three cars had already left the road, and others were having trouble making their way over the slick bridge surface, as witnessed by Hehl and Hoop. We find a hazardous condition existed prior to Claimants’ accident.

We must next determine whether the Claimants proved that this condition was the proximate cause of the Claimants’ accident. Proximate cause has been defined as any cause which, in a natural or probable sequence, produced the injury complained of. (Suhrbier v. State (1994), 46 Ill. Ct. Cl. 102, 105.) It need not be the only cause; it is sufficient if it concurs with some other cause acting at the same time which, in combination with it, causes the injury. (Id.) There is no doubt here that the icy condition of the bridge was a proximate cause of this accident. Trooper Hehl testified that Radabaugh appeared to be driving normally and she did not see anything that caused her to believe that Radabaugh contributed to the accident. Therefore, the Court finds that the icy bridge surface was a proximate cause of this accident and that the alleged negligence of decedent is not proved.

There is proof in this case of notice of a dangerous condition at some time prior to Claimants’ accident. There is also proof that Respondent attempted to remedy ice conditions on 1-55 by deploying a salt truck from 12:45 a.m. to 10:15 a.m.

The primary issue in this case is whether the Respondent used reasonable care to keep this highway free from ice, as is required by the Lynch case. In Lynch, the Court summarily found that the State could not have been charged with liability based on the failure to adequately correct the icy condition. (Lynch v. State (1995), 48 Ill. Ct. Cl. 98, 100.) An award was made based upon failure to warn of a hazard which the record indicated had existed for many years. The Court explicitly found the State could not have been held liable for correcting the specific icy condition, lacking actual notice. (Id. at pages 100-101.) The award was based upon a finding of constructive notice in a close factual case.

In Cox v. State (1993), 45 Ill. Ct. Cl. 201, an award was denied under very similar facts. An accident on an icy bridge deck occurred about 90 minutes after the bridge deck was salted on a weekend early morning. IDOT had dispatched a driver on patrol due to a weather advisory. Several reports of accidents were actually received by IDOT 45 minutes prior to that accident. The IDOT yard responsible for maintenance was located five to six blocks from the four-lane bridge which was heavily traveled.

Sutter v. State (1996), 48 111. Ct. Cl. 84, makes a similar finding. The accident also occurred on a weekend morning and failure to respond in a timely manner was alleged. A call from the county police was received by IDOT regarding water on the roadway about 90 minutes before Claimant’s accident. Both parties agreed to this fact. The IDOT supervisor who received the message and his subordinate were called to testify as to the particulars of the communications. The evidence indicated there was some debate as to IDOT’s maintenance jurisdiction of the bridge in question which led to a delay of some 20 minutes in response time by employees called from their homes to respond. Sutter found that, “[S]o long as the IDOT employees conducted themselves in a reasonably diligent manner in relation to the known hazard and circumstances, we cannot hold them to a greater duty.” Id. at 97.

The evidence herein indicates that the icy condition complained of was isolated. The witnesses who had traveled the same roadway for some distance had no difficulty until they reached the bridge deck. IDOT had begun salting some seven hours prior to the accident on a route of some 52 miles of roadway plus entrance and exit ramps. The “patrol” was estimated to take at least one and one-half to two hours. The testimony regarding response times by IDOT elicited of the State Troopers was directly rebutted by cross-examination and Claimants introduced no further testimony to support a finding that IDOT’s actions were tardy or contrary to normal practice and procedure. Claimants further failed to prove receipt of the troopers’ requests by IDOT.

It is hereby ordered that the claims herein are denied.

ORDER

JANN, J.

This cause comes on to be heard on Petitioners’ request for rehearing as to the denial of her claim by opinion of the Court entered July 20,1999.

We have carefully considered the petition and record herein and find that Petitioners’ arguments were previously considered in our original opinion.

Petitioners’ requests for rehearing is hereby denied and our opinion of July 20,1999, is affirmed.


source: Caselaw Access Project

author: JANN, J.

license: Public Domain

text:
    (No. 94-CC-3268
    Keith E. Westbrook et al., Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 1, 1999.

    Wolter, Beeman & Lynch (Bruce A. Beeman, of counsel), for Claimant.
    Jim E. Ryan, Attorney General (Deborah L. Barnes, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

This case began on May 15, 1992, when a van in which Keith E. Westbrook was a passenger became involved in an automobile accident on the Glenarm Frontage Road, specifically known as County Road O.

Claimant testified that, on May 15th, he was employed as a drywall hanger and finisher by Scott King along with another man named Allen. On May 15th Claimant and Allen were picked up after work by Scott, and all three went to get a cold beer. At the first establishment, each of them had approximately two beers. They than proceeded to the Curve Inn where they purchased pizza and a bucket of beer. Claimant testified that, at the Curve Inn, he and Scott each had approximately two beers. They then took Allen home. After dropping Allen off, they went to the home of a friend of Scott’s where Scott went inside for 15 or 20 minutes while Claimant waited in the van. At all times Scott was driving his van. They then proceeded to the Glenarm Frontage Road, a distance of approximately eight to ten miles, which was on the way to Claimant’s residence. Claimant testified that, at that time, he did not notice anything unusual about Scott’s driving.

When they got to the frontage road it was approximately 8:30 p.m., dark and about four hours after they had finished work. They had stopped at a stop sign on the road and had started up again when they went off the road. Claimant testified that they fell off the road just like “boom.” The van was tilted. Claimant stated that Scott was “trying to fight the van like he just kept holding the wheel and struggling and struggling and then at that point the van grabbed and shot straight across the road at a forty-five-degree angle.” At that point, it hit another vehicle driven by a Mr. Southwick. After the impact, Claimant did not feel anything. Claimant subsequently was hospitalized, placed on a respirator and has suffered permanent paralysis of his lower body.

Claimant offered information by stipulation concerning his total amount of medical bills of $77,738.10. Claimant has a wife and three children. His wife helps with his daily care, he has received physical therapy, and he exercises the top half of his body. He needs the assistance of his wife to exercise the lower half of his body, as he cannot move it on his own.

The United States Department of Health and Human Service life table, which Claimant introduced, listed that a white male of 38 years old (Claimants age) has an average life expectancy of 35.8 additional years.

On cross-examination, Claimant stated that Scott was familiar with the road and that Claimant had ridden with him on the Glenarm Frontage Road quite a lot. After the van dropped off the highway, Scott was trying to fight it back on the road. Claimant stated that he b^heved that the speed limit was 55 mph and he estimated that they were going approximately 35, 40 or 50 mph when the accident occurred.

Claimants wife, Janet Westbrook, testified that, after the accident, she went to the scene of the accident an observed a drop-off between the road and the shou er. She measured the drop-off and found it to be at least three and one-half to four inches. She measured it in September of 1992. She had observed the drop-off. in May of 1992, and from May of 1992 to September of 1992, it appeared to be the same. She measured along a strip of the roadway approximately 200 feet long where the van went off. Mrs. Westbrook also testified concerning the effect of her husbands injuries on the family.

Edmund Gaffney, Maiyellen Gaffney and Lisa Britz all testified that they live in the vicinity of the Glenarm Road and that they travel that road on a daily basis. The Gaffneys testified that they had observed a drop-off of approximately three to four inches and that the drop-off had been there from 1984 to 1993. During the period from 1984 to 1993, they did not notice any maintenance being performed on the drop-off. Mrs. Gaffney testified that, in approximately 1984, she had a bicycle accident in which she skinned her knee trying to get back on the main road from the shoulder.

Ms. Britz testified that she traveled the Glenarm Road between 1989 and 1993 approximately three or four times a week. She had observed the drop-off and had not observed any maintenance on the drop-off.

Claimant offered deposition testimony from John Werschey, an employee of the Illinois Department of Transportation (IDOT). Mr. Werschey testified that he is a records specialist for IDOTs District 6. Mr. Werschey testified that there is no set pattern of checking the roads which are maintained by IDOT, but it is the responsibility of all employees to report trouble spots when they become aware of them. Highway maintainers and roadrunners go over the roads in the district plowing snow and picking up dead animals, and they probably will be on every road in the district at least once a month. IDOTs maintenance records are kept by large subsection designations for cost accounting purposes and do not break out as small a section of an individual road as is in question in this case. If complaints had been received by IDOT concerning the frontage road in question, IDOT would have kept them in their complaint file. Mr. Werschey testified that he had examined their files and had not found any complaints as to that particular road.

Russ Militello, the program engineer for District 6 of IDOT, testified by deposition also. Mr. Militello testified that his responsibility is to coordinate the needs of the highways under IDOTs jurisdiction in the 15 counties which make up District 6. There is an inspection and rating system in place for the pavement surfaces of the roads maintained by IDOT, but not for the shoulders. The pavement rating for the road in question was 5.5 in July of 1991 and 5.3 in July of 1992, both numbers indicating a “fair” rating for the pavement surface. The records also indicated that, between 1988 and 1990, surface improvements had been made to the pavement in question. The frontage road in question is 24 feet wide, has an asphalt surface, two 12-foot lanes, a ten-foot shoulder, and the shoulder is a sod material.

Mr. Militello testified that if road constmction activities create a drop-off of three inches or more, the contractor is obligated to barricade the drop-off. The AASHTO handbook, which is the highway safety handbook of the United States Department of Transportation, provides that large drop-offs at a pavement edge of significant lengths may be construed as hazardous. AASHTO guidelines specify that shoulders should be constructed and maintained flush with the pavement surface, but Mr. Militello testified that these guidelines are for interstate highways. IDOT has lesser standards for low volume roads and it would be cost prohibitive to build hard surface shoulders for every road in Illinois. AASHTO guidelines also provide that regular maintenance is necessary to maintain a flush shoulder, and a drop-off can adversely affect driver control when driving on to the shoulder at any appreciable speed.

William Jacquot testified that he is the safety claims manager with District 6 of IDOT and has been in that position for 14 years. He testified that IDOT keeps, in the normal course of business, complaints of road conditions. If complaints are taken over the telephone they are reduced to writing. He had reviewed the records for this case and did not find any claims or complaints about the roadway or its shoulder in the area of the accident from 1985 to the date of the accident. Mr. Jacquot admitted on cross-examination that someone could drive off the road, have trouble getting back on, and, as long as that person never made a complaint, IDOT would never know about it.

An affidavit of Robert Seyfried of the Traffic Institute of Northwestern University in Evanston, Illinois, was admitted by agreement. Mr. Seyfried stated that he had reviewed various materials from this case and had an opinion to a reasonable degree of scientific engineering certainty as follows:

“a. The edge drop-off of the shoulder in question appears to be less than three and one-half inches. Edge drop-offs of this magnitude are common along many roads and do not present any safety problems for a reasonably alert driver.
b. The edge drop-off of the shoulder in question should not have had any significant effect on the driver’s ability to control the car.
c. A reasonably alert driver should have had no trouble getting back on the road and safely returning to his lane of travel without encroaching over the center line.”

Respondent also admitted Respondents exhibit number 1, which is a certified copy of the conviction of driving under the influence of alcohol of Scott King as a result of the incident in question.

The State is not an insurer of the conditions of the highways under its control but does have a duty to the public to use reasonable care in maintaining its roadways. To prevail in this case the Claimant must prove that the State was negligent, that the State’s negligence was the proximate cause of the injury, and that the State had actual or constructive notice of the defect. Even though the doctrine of comparative negligence has been adopted in the State of Illinois, it did not extinguish the requirement of proximate cause. Jacobs v. State (1996), 49 Ill. Ct. Cl. 16.

This Court has considered many cases involving accidents with highway shoulder drop-off involvement. In a number of cases the driver of the vehicle in question was found to have caused the accident by driving off of the shoulder and failing to slow down properly to be able to get back on to the pavement safely. Lee v. State (1964), 25 Ill. Ct. Cl. 29; Alsup v. State (1976), 31 Ill. Ct. Cl. 315; Dellorto v. State (1979), 32 Ill. Ct. Cl. 435; Hill v. State (1978), 32 Ill. Ct. Cl. 482; Jacobs v. State (1996), 49 Ill. Ct. Cl. 16.

In Alsup and Hill, the Court held that six-inch drop-offs did not constitute negligence per se. In Dellorto, a car driven by another party went off the road. The other party failed to slow his vehicle to get back on the highway safely and went into the opposite lane, causing the deaths of the Claimant’s decedents. The Court found that, while the State may have furnished a dangerous condition, the negligence of the other party in going off the highway and onto the shoulder for no justifiable reason, and the negligent manner in which he tried to get back on the highway, was the sole, proximate cause of the accident.

There is no doubt that Keith Westbrook was tragically and severely injured in the accident that occurred May 15, 1992. However, the proximate cause of the accident was not the negligence of the State. For no apparent reason, Scott King drove his van off of the roadway in a forceful manner. The testimony of the Claimant was that there was a very big sound when Scott went off of the road and that Scott immediately tried to fight the van back on to the road. There was no evidence that Scott ever attempted to slow down to return to the road in a safe manner. Also, Scott admitted that he was intoxicated. The proximate cause of Claimants injuries was the negligence of Scott King in driving the car off the road and then failing to use due care in getting the car back on.

This claim is hereby denied and dismissed.


text:
    (No. 94-CC-3723
    Vancom Management Services, Inc. and Haywood Carr, Jr., Claimants, v. The State of Illinois, Respondent.

      Order filed August 30, 1999.

    Bollinger, Rubbery & Garvey (William J. Rogers, of counsel), for Claimants.
    Jim E. Ryan, Attorney General (Jacqueline K. Williams, Assistant Attorney General, of counsel), for Respondent.
   ORDER

JANN, J.

This cause comes on to be heard on Claimants’ motion to vacate the court’s order of dismissal entered April 20, 1999. Due notice having been given and the Court being fully advised in the premises finds:

Claimants’ motion cites the Court’s receipt of its reply to Respondent’s motion to dismiss prior to entry of the order of dismissal. We apologize that Claimants’ response was docketed on April 14, 1999, by the clerk but not forwarded to the Court prior to consideration of Respondent’s motion and entry of the order of April 20, 1999. We hereby vacate our April 20, 1999, order for the purpose of consideration of Claimants’ response in opposition to Respondent’s motion to dismiss received by the clerk within the statutoiy period for response.

This cause seeks contribution from Respondents, State of Illinois and Cornerstone Services, Inc. for settlement of a wrongful death case in the Circuit Court of Cook County. Claimants Vancom and Haywood Carr, Jr. paid $450,000 to the decedent’s estate’s representative, American National Bank, pursuant to a settlement agreement dated December 5, 1997. Cornerstone Services, Inc., “a state-funded daycare and residential facility” (Claimants’ complaint, count II, paragraph 1) named as a Respondent, paid $115,000 in settlement and release of the wrongful death action pursuant to a December 23, 1997, agreement and a Circuit Court of Cook County order entered November 13, 1997.

Claimant asserts a right to contribution from the State and Cornerstone commensurate with the relative degree of fault attributable to each Respondent. Respondent argues that Claimants have no right of contribution against the State of Illinois arising from its settlement with decedents estate because the State was not specifically designated as a party or releasee in the settlement agreement. The State was specifically identified as a releasee in the Cornerstone settlement/release agreement. Claimants are not named parties in said Cornerstone agreement indicating the releases were not jointly agreed after proceeding to trial “between all parties with each named defendant contributing to the joint settlement” as alleged by Claimants’ memorandum at page 7. The evidence before us indicates two explicitly individual releases which are notably different in format and content were executed by Vancom/Carr and Cornerstone to settle cause no. 93L08614. The releases do not indicate contribution by all parties defendant in 93L08614. Both the Circuit Court order of November 13, 1997, approving settlement and the releases of December 5, 1997, and December 23, 1997, refer to contribution by only Van-com/Carr and Cornerstone in actual payments to the decedent’s estate and heirs. The Circuit Court’s order further notes that the contribution actions of Claimants herein and Cornerstone pending in the Court of Claims were not barred and specifically reserved.

However, the Cornerstone release of December 23, 1997, which Claimants have introduced as an exhibit (B) to their memorandum raises several issues. First, Claimants reference a trial prior to the settlements at issue with “contribution” by defendants. Second, the release between Cornerstone and decedent’s estate’s administrator references that the “sums paid by and on behalf of Releasees are fair and reasonable sums constituting payment and full satisfaction of the pro rata share of any and all liability that may be asserted against Cornerstone, Howe, State of Illinois # # # including all claims for contribution that may be asserted against these named defendants herein pertaining to the Illinois Contribution Act, 740 ILCS 100/0.01 et seq.” (Claimants’ exhibit B, page 8, paragraph T). The Circuit Court’s order also referenced voluntary dismissal of the contribution actions among Vancom/Carr and Cornerstone. Claimants’ exhibit A, paragraph C.

The evidence before us indicates that proportionate liability was either ascertained by the trier of fact or agreed by the parties in the Circuit Court case underlying the actions herein and the releases subsequently signed by Claimants and Cornerstone to settle the wrongful death suit. The State of Illinois and Howe Development Center are specifically identified as releasees in the Cornerstone settlement/release, though the State was not a party defendant due to jurisdiction in the Circuit Court case. By Claimants’ admission Vancom/Carr and Cornerstone paid damages to the same party, the administrator of decedent’s estate, for specific considerations, both legal and monetary. We may not infer release of Respondent for the specific considerations tendered by Claimants in a clearly discreet and separate agreement from that executed by Cornerstone.

The Court of Claims has adopted Alsup v. Firestone Tire and Rubber Co. (1984), 101 Ill. 2d 196, 461, 351 for the precedent that a release must specifically discharge the State of Illinois as a joint-tortfeasor before a contribution action against the State may be entertained. Hershey v. State (1990), 43 Ill. Ct. Cl. 108,115.

The record indicates Respondent was neither a named party nor released in Claimants’ pro rata settlement/payment under Alsup, Id. and may not maintain a claim for contribution against Respondent.

Respondents motion to dismiss is hereby granted upon the amended order of the Court.


author: Mitchell, J.

text:
    (No. 95-CC-0554
    Evelyn Starr and Albert Starr, Claimants, v. The State of Illinois, Respondent.

      Order filed December 7, 1999.

    Janssen Law Center (Jay H. Janssen, of counsel), for Claimants.
    Jim E. Ryan, Attorney General (Deborah L. Barnes, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

This matter is before the Court pursuant to briefs filed by both the Claimants and the Respondent. The case was previously tried in the Circuit Court of Tazewell County. The Appellate Court of Illinois, Third District, issued an opinion on October 31, 1997, vacating the judgment of the Circuit Court, stating that the Circuit Court lacked subject matter jurisdiction to hear the case. The matter was then brought before the Court of Claims and the parties agreed that, in place of another trial, they would submit the entire record of the proceedings to the Court for consideration and determination.

This claim arises out of an injury to the Claimant, Evelyn Starr, while driving her vehicle west upon Interstate 74 near Morton, Illinois on October 13, 1993. Her husband, Albert Starr, was a passenger in said vehicle. At the same time and place, an Illinois Department of Transportation employee, Joseph Ward, was operating a tractor-mower in the median of the highway. At the moment the Starr vehicle passed the tractor, Mr. Ward drove the tractor over a rock propelling it into the windshield of Starrs vehicle impacting on Evelyn Starrs face rendering her unconscious and severely injured. Evelyn Starr was taken to St. Francis Hospital in Peoria, Illinois and underwent surgery. She claims extensive and permanent injuries to her face, jaw and left eye. Her husband, Albert Starr, claims a loss due to loss of consortium for the injuries caused to the Claimant, Evelyn Starr.

During the course of the trial, Claimants presented instructions of department procedures for the mowing of grass. Of particular interest in the department regulations was section 14.11, which states that “to minimize throwing debris by rotary motors, police the right of way at least prior to the first mowing of the season.” The evidence showed that construction had taken place between April 22, 1993, and October 13, 1993, with no mowing having been performed on that stretch of the highway. Typically, the area would have been policed prior to the first mowing of the season, but due to construction the grass had not been mowed and had attained three feet in height. On the day in question, Mr. Ward had not inspected the area prior to the mowing which took place on October 13, 1993. The tractor was being operated by Respondent Ward, at almost full throttle and in low gear resulting in the throwing of the rock which ultimately struck Claimant, Evelyn Starr.

Claimants rely on J. J. Altman & Co., Inc. v. State (1982), 35 Ill. Ct. Cl. 731, wherein the claimant sought judgment against the State for damages to its vehicle by debris propelled from a mower. The Court awarded the claimant damages on the theory of res ipsa loquitor. Since the claimant did not contribute to the damage, the State was in control of the instrumentality that caused the damage and the State did nothing to prevent the damage from occurring.

The Claimants argue this is similar to the facts of the current case and insufficient actions were taken by the State to prevent this from occurring.

The Circuit Court entered a judgment on behalf of the Claimants in the amount of $250,000 prior to it being overturned.

The Respondent denies any negligence on the part of the State in the operation of the tractor-mower.

Furthermore, the Respondent argued that the case should be denied because Claimants had failed to exhaust remedies in bringing a product liability claim against the manufacturer of the mower. The Court finds no support whatsoever to this claim.

The Respondent argues that the Respondent is immune from liability under the doctrine of public official immunity and cites Currie v. Lao (1992), 148 111. 2d 151. The purpose of the Doctrine of Public Official Immunity Act was to protect public officials in the performance of discretionary duties. We do not believe that the doctrine of public official immunity applies in the present case.

As to the negligence claim, the Court agrees with Claimants that the State was negligent in failing to comply with section 14.11 of the State departmental regulations requiring that an inspection be made prior to the first mowing. Even if an inspection was made in April, roughly six months earlier, it would be tantamount to no inspection at all, given the fact that construction had occurred during the six months. Therefore, the Court finds that the State was negligent and said negligence resulted in the injuries to Claimants.

The Claimants argued that the tractor-mower was a vehicle and they should not be limited to the $100,000 damage limitations. However, the Court does not agree. Black’s Law Dictionary defines vehicle as: “That in or on which a person or thing is or may be carried from one place to another * *

There have been many cases interpreting what is and is not a vehicle; however, I have found none decided by the Court of Claims. The courts have been consistent in stating that railroads and streetcars are not considered to be vehicles because they operate on a rail rather than on the road. Here the tractor which was pulling the mowers was not being operated on the roadway itself but was being used as equipment. The Court believes that it was the legislative intent that “vehicle,” for purposes of the Act, meant vehicles being operated on the roadway. Therefore, the Court finds that the $100,000 limitation does apply and awards Claimant, Evelyn Starr, the sum of $100,000 and her husband, Albert Starr, the sum of $50,000 making a total of $150,000.


author: Epstein, J. Epstein, J. Epstein, J.

text:
    (No. 95-CC-0594
    Sharon Farrell, Wendell Lawson, Joseph McCullough, Marsha McCullough, Thomas Mummey, Evelyn Dubree, Dixie Miller and Karla Smith, Individually, and on behalf of a class of employees of Wittek Industries, Inc. from 1990-1994, Claimants, v. The State of Illinois, Respondent.

      Opinion on motion to dismiss filed May 7, 1997.

      Supplemental opinion on denial of rehearing filed September 4, 1997.

      Order filed January 10, 2000.

    George C. Hook, P.C., for Claimants.
    Jim E. Ryan, Attorney General (Edwin L. Durham, Assistant Attorney General, of counsel), for Respondent.
   OPINION ON MOTION TO DISMISS

Epstein, J.

Eight Claimants bring two claims against the State (counts I-II) on behalf of themselves and a purported class of 700+ former employees of Wittek Industries, Inc. (‘Wittek”), which operated in Galesburg, Illinois, and two claims (counts III-IV) on behalf of themselves and a purported sub-class of 139 of the former Wittek employees who were the subject of an enforcement action against Wittek by Respondents Department of Labor (“IDOL”).

Count I alleges that the Respondent breached certain contracts between Wittek and the Respondents Department of Commerce and Community Affairs (“DCCA”), which Claimants seek to enforce as third-party beneficiaries. Count II asserts the intentional torts of interference with contract and with prospective economic advantage, alleging that the Respondent interfered with Claimants’ current and prospective employment with Wittek. Count III asserts state and federal statutory violations, alleging that IDOL misused and appropriated the Claimants’ social security numbers and other information. Count IV asserts invasions of privacy by IDOL.

These four putative class claims, seeking $70,000,000 plus in damages ($100,000 per Claimant) on counts I and II and unspecified damages on counts III and IV, are before us on two threshold motions that were fully briefed and orally argued to the Court: (1) the Claimants’ motion for certification of the class and sub-class pursuant to section 2 — 802 of the Code of Civil Procedure, which inter alia has provoked a challenge by the Respondent to this Court’s jurisdiction to entertain class actions; and (2) the legal issues raised by the Respondent’s motion for summary judgment on all four counts, which the Court has taken solely as a section 2 — 615 motion to dismiss based on the allegations of the complaint and the DCCA-Wittek contract documents that were produced by the Respondent pursuant to the Court’s order of November 19,1996.

Procedural Posture of the Case

The Court has ■ determined, unusually, to take up only some of the issues, i.e., the facial legal issues, that are raised in the Respondent’s summary judgment motion. We adhere to our refusal to consider, at this point, the fact-based defenses that were raised in the pending motion, despite the Respondent’s persistent efforts to renew those arguments at this stage of the case.

The Court will proceed step-wise in this case. The legal issues raised that can be adjudicated on the face of the complaint and on the contract document record should be decided expeditiously. There is no reason to delay resolution of those threshold issues.

However, the same cannot be said of the fact-sensitive issues raised in the Respondent’s summary judgment motion. We will not now take up the Respondents contention that it did not (and that Wittek did) breach the grant agreements on which counts I and II are predicated. We defer consideration of such issues because of the large and burdensome factual record that is required to adjudicate the issues of compliance, entitlement, interference and breach relating to the DCCA-Wittek agreements and because of the incompleteness of the extensive discovery requested by the Claimants. Those defenses may or may not ever be determinable by summary judgment rather than trial. But they surely are not determinable now or any time soon, and not before completion of a discovery process between these parties that promises to be protracted and contentious. The fact-based issues can be taken up later if necessary.

On the class issues, the Court directed that a hearing be conducted on the fact-related aspects of the certification issues under section 8 — 204 of the Code of Civil Procedure (735 ILCS 5/8 — 204). We also directed the parties to submit their suggestions for management of the classes, particularly the notice mechanics, in the event the Court did assert jurisdiction and certify one or more Claimant classes. For reasons inadequately explained, neither party addressed those issues beyond the initial pleadings and motions.

The Class Action Issues

Respondent vigorously opposes the class certification motion, and contends that the Court of Claims lacks jurisdiction to entertain a class action. Claimant asserts that this Court has the authority to entertain class actions by virtue of the class action provisions of the Code of Civil Procedure (part 8 of article II; 735 ILCS 5/2 — 801 et seq.). The Code, like the rules of the Illinois Supreme Court, has been adopted by this Court "[Ejxcept as herein otherwise provided by” this Court’s rules. Regulation 790.30 “Pleadings and Practice,” 74 Ill. Admin. Code, section 790.30.

Neither party has found, nor has our research, any decision of this Court or of the constitutional courts of Illinois that directly addresses or decides this jurisdictional issue. In this sense, this is an issue of first impression.

On the other hand, in at least one case this Court did entertain a class action and did adjudicate issues on behalf of a claimant class. (Gendel v. State (1984), 38 Ill. Ct. Cl. 76.) (Roe, C.J.).) However, in Gendel, the court’s opinion assumed rather than decided the class jurisdiction issue. Chief Justice Roe’s opinion applied the Code class provisions without any discussion of their vitality in the Court of Claims. There is no indication that any party in Gendel raised any jurisdictional issue. Gendel is thus of limited precedental guidance.

The other “class actions” that the Claimants cite as class precedents in this Court were not true class adjudications. Those cases were examples of class awards or joint awards entered by this Court on stipulations or following class judgments or class settlements in other courts, e.g., Peltz v. State (1981), 34 Ill. Ct. Cl. 284; Acoff v. State (1981), 35 Ill. Ct. Cl. 364; Coppetelli v. State (1981), 35 Ill. Ct. Cl. 328.

In light of the unsettled status of this class jurisdiction question, and in light of our disposition of the complaint at this stage of this case, the Court declines to reach the class action issues at this time as it is unnecessary to do so. We will return to this briefed and argued issue when and if we are required to do so in the course of future proceedings.

Count I

Breach of Contract — Third Party Beneficiary

Claimants’ breach of contract theory in count I of their complaint is predicated on a series of “promises” that the Respondent, through DCCA, made to Wittek in its “Incentive Letter” of November 1990 (and earlier versions of that letter, and in ensuing grant contracts) to provide $1,000,000 to Wittek as a training grant for use in training Wittek employees in Illinois and to provide a $2,000,000 grant to Wittek for “acquisition of machinery, equipment, improvements and” moving expenses. These “promises” were undisputedly made by DCCA in order to induce Wittek to consolidate its manufacturing operations in Illinois, specifically in Galesburg, which it ultimately did and where it ultimately failed and went out of business.

Claimants allege that the Respondent breached the Wittek-DCCA agreements by both tardy and short payments of the “promised” grant funds. The Claimants further allege that the Respondents failure timely to provide the full “promised” $3,000,000 “caused” enormous damages (complaint, pars. 8,13):

“8. As a result of the failure to provide all funding and the substantial delay in 8 8 8 Wittek experienced a severe cash flow crunch, was forced to lay off workers, thereby losing the training that they had received, and became prey to the predations of a cabal of community leaders, key employees and their financial backers, who attempted to put Wittek into bankruptcy and out of business. Eventually, as a result of the State’s niggardliness, in breach of its contracts with Wittek, it was forced out of business.
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13. As a consequence of the State’s breaches of its contracts with Wittek, the Claimants lost training benefits and steady jobs as well as credit and respect in their community and housing, suffering repossession of their goods, eviction from their apartments, foreclosure of their homes, other dis-possessions, bankruptcy, divorce, delinquency, social stigmatization, medical problems, affronts to their human dignity,- and other depredations which have devastated them economically, emotionally, psychologically and socially, all to their damage far in excess of the $100,000 per Claimant to which the State limits them under the Court of Claims Act.”

Claimants seek to enforce the DCCA-Wittek contracts, and seek compensatory redress for those allegedly (in part) consequential injuries and damages, on a third-party beneficiary theory, alleging (complaint, par. 12):

“12. When the State entered into the ° ° ° contracts with Wittek it intended the Claimants to benefit from the contracts with Wittek by providing them with training and jobs from a stable company made so, in large part, by funds provided by the State.”

The Respondents attack Claimants’ claim to third-party beneficiary status with respect to the DCCA-Wittek contracts. Respondent contends that the Wittek employees in Galesburg or elsewhere in Illinois (seemingly including prospective employees as of the time of the “promises” by DCCA) were at best incidental rather than direct intended beneficiaries of the agreements with DCCA and thus cannot, under Illinois law, claim third-party beneficiary status to enforce the DCCA-Wittek contracts. Respondent advances this contention as to the “Inducement Letter,” which was the core agreement, as well as to the subsequent training grant agreement (the “Industrial Training Program Agreement” or “ITP Agreement”) and the “Modern Assessment Grant” and the modernization and retooling grant under the “Build Illinois Program” administered by DCCA.

The Claimants argue vigorously that they were specifically intended to benefit from the contracts, particularly the job training grant funds, and are thus as a group within the ambit of the intended beneficiaries who can enforce these agreements.

The Illinois contract law of third-party beneficiaries is settled and clear, although not always so easy of application. As Justice Rizzi of the First District Appellate Court so succinctly stated recently:

“There are two types of third party beneficiaries. There are intended beneficiaries and incidental beneficiaries. An intended beneficiary is intended by the two parties to the contract to receive a benefit for the performance of the agreement.
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Only an intended beneficiary has rights under a third party beneficiary contract. An incidental beneficiary has no rights under a third party beneficiaiy contract. B.C. v. J.C. Penney Co. (1990), 205 Ill. App. 3d 5, 15, 150 Ill. Dec. 3, 9, 562 N.E.2d 533, 539.” MDB Enterprises, Inc. v. American National Bank of Chicago (1st Dist. 1995), 275 Ill. App. 3d 164, 655 N.E.2d 1061, 1064, 211 Ill. Dec. 678, 681.

This Court has recognized and applied the settled distinction between intended/direct beneficiaries and incidental beneficiaries many times. In Paul-Mar Steel Corp. v. State (1991), 44 Ill. Ct. Cl. 13, 16, this Court held:

“The general rule with respect to third-party beneficiary actions in Illinois is well-settled. If a contract is entered into for a direct benefit of a third person, not a party to the contract, such third person may sue for breach thereof. The test is whether the benefit to the third person is direct or incidental. As long as the benefit is direct, that individual may sue on the contract.”

More recently, in Sargent & Lundy v. State (1996), 48 Ill. Ct. Cl. 333, this Court held:

“Under Illinois law, there is a strong presumption against creating rights in a third-party beneficiaiy. Midwest Concrete Products Co. v. LaSalle National Bank (1981), 94 Ill. App. 3d 394. To overcome this presumption, the intent to benefit a third party must affirmatively appear from the language of the instrument and the circumstances surrounding the parties at the time of its execution. Bates & Rogers Construction Corp. v. Greely & Hansen (1985), 109 Ill. 2d 225. The [Supreme] court in Bates ir Rogers, supra, stated:
‘Only third parties who are direct beneficiaries have rights under a contract. It is not enough that the third party will reap incidental benefits from the contract. The test is whether the benefit to the third person is direct to him or is but an incidental benefit to him arising from the contract. A third party is a direct beneficiaiy when the contracting parties have manifested an intent to confer a benefit upon the third party.’”

The Illinois law of third-party beneficiary status was largely settled in our Supreme Court’s 1931 decision in Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 258,178 N.E. 498. In Popp v. Dyslin (2d Dist. 1986), 149 Ill. App. 3d 956, 500 N.E.2d 1039, 1043-44, 102 Ill. Dec. 938, 942-943, the Appellate Court summarized this point as follows:

“The law of Illinois is that a third party is a direct rather than an incidental beneficiary only if the contracting parties have manifested in their contract an intention to confer a benefit upon the third party. Altevogt v. Brinkoetter (1981) , 85 Ill. 2d 44, 54, 51 Ill. Dec. 674, 421 N.E.2d 182; Midwest Concrete Products Co. v. LaSalle National Bank (1981), 94 Ill. App. 3d 394, 396-97, 49 Ill. Dec. 968, 418 N.E.2d 988.
‘The rule is, that the right of a third party benefited by a contract to sue thereon rests upon the liability of the promisor, and this liability of the promisor must affirmatively appear from the language of the instrument * * * The liability so appearing cannot be extended or enlarged on the ground, alone, that the situation and circumstances of the parties justify or demand further or other liability.’ Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 258, 178 N.E. 498.
» # #
* * * However, it is not enough that the parties to the contract know, expect or even intend that others wiU benefit. The contract must be undertaken for plaintiff s direct benefit, and the contract itself must affirmatively make this intention clear.” Waterford Condominium Association v. Dunbar Corp. (1982) , 104 Ill. App. 3d 371, 373, 60 Ill. Dec. 110, 432 N.E.2d 1009.

Similarly, the dispositive Illinois case law has been more comprehensively but tersely summarized by Justice Scariano in B.C. v. J.C. Penney Co., Inc. (1st Dist. 1990), 205 Ill. App. 3d 5, 150 Ill. Dec. 3, 9-10, 562 N.E.2d 533, 539-540:

“A third party acquires no rights to damages arising from the breach of a contract entered into by others unless the agreed-to provision at issue was intentionally included for the direct benefit of the third party. (Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44, 51 Ill. Dec. 674, 421 N.E.2d 182; Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 178 N.E. 498; Wheeling Trust & Savings Bank v. Tremco, Inc. (1987), 153 Ill. App. 3d 106.) This intent ‘must affirmatively appear from the language of the instrument when properly interpreted and construed.’ (Parrett, 346 Ill. at 257-8, 178 N.E. at 501.) It is not necessary that the contract specificaUy name a third-party beneficiary if it adequately defines a class of individual beneficiaries. (Altevogt, 85 Ill. 2d at 55, 51 Ill. Dec. at 679, 421 N.E.2d at 187.) However, there is a strong presumption that the parties to a contract have not acted for the benefit of anyone other than themselves, and this presumption can be overcome only by language “‘so strong as to amount practicaUy to an express declaration.’”” People ex rel. Harrtigan v. Community Hospital (1989), 189 Ill. App. 3d 206, 218, 136 Ill. Dec. 702, 709, 545 N.E.2d 226, 233 (quoting Metro East Sanitary District v. Village of Sauget (1985), 131 Ill. App. 3d 653, 86 Ill. Dec. 760, 475 N.E.2d 1327); see also 17 Am. Jur. 2d Contracts §304, at 730 (1964).

Applying these principles and rules to the Claimants’ allegations and to the contracts in this case, and after detailed, painstaking review of all of the contract documents, the Court agrees with the Respondent and concludes that the Claimants (and their putative class) as Wittek employees were but incidental beneficiaries who cannot, as a matter of law, enforce the DCCA-Wittek agreements.

First, we fail to find any expression of intent to benefit these employees or any actual or future Illinois or Galesburg employees, individually as a group. Second, we also fail to find in any of the contract documents any indication whatever of an intent to provide funds to assure permanent or stable jobs to those hired by Wittek or to provide State funds to “stabilize” Wittek, as Claimants have alleged. The Court notes that Claimants did not identify any specific language in any of the contract documents that might provide the nexus to the Wittek employees as intended or direct beneficiaries.

The manifested intent of these agreements was to benefit Wittek by offsetting and subsidizing the costs of moving facilities and operations to Illinois and the expenses of consolidating its Illinois operations in Galesburg. The agreements reflect a general purpose of benefitting the Illinois economy and taxpayers and the Galesburg and larger Knox County economies and taxpayers, as well as all of the people in that region of the State, including Wittek employees and providers and their employees and providers. That, however, falls short of direct or intended benefits within the meaning of the rule.

The strongest argument advanced by Claimants, plainly, is the $1,000,000 of job training funding, as that contractual undertaking necessarily and predictably would benefit those receiving the training. But even there, the contract documents make it clear that it is Wittek and the Illinois economy that are the direct and intended beneficiaries, and the employees of Wittek just like the owners of the local businesses in and around Galesburg were incidental beneficiaries who would reap the economic spinoffs and ripples of the Wittek move to Galesburg.

Because this conclusion turns primarily on the contract language, which is before us in undisputed and complete and immutable form, we must dismiss count I with prejudice.

Count II

Interference with Contract and Prospective Advantage

In their count II claim, the Claimants allege that State officials for political and malicious motives, intentionally “interfered” with the Claimants’ “valid and sustainable employment relationship” with Wittek (complaint, par. 14), as well as with their “reasonable expectation that they would receive training.” (Complaint, par. 15.) Claimants allege that the “interference” consisted of “by late funding” of the Wittek-DCCA grant agreements (complaint, par. 16) and by “not funding at all training and other obligations.” (ibid.) Claimants assert malice in that various State officials, from the Governor down are alleged to have “determined for political reasons to disavow the Build Illinois Program and other similar programs created by the previous [State administration]” (complaint, par. 18) and that unnamed DCCA officials allegedly had a “animosity toward # # a former DCCA executive [who] was an executive * # * of Wittek.” (Complaint, par. 19.) And again, in somewhat conclusory language, Claimants ascribe their loss of employment and loss of training and other consequential injuries to the “interfering” failure to fund the promised grants.

This count does not require extensive analysis or comment. The Respondent attacks this count primarily on the “malice” and “intentional interference” elements of these two similar torts, and to a lesser extent on the causation element. The Court has a number of fundamental problems with count II as pleaded.

First, there is a glaring gap between the allegations of “failure” to meet contractual obligations and failure to meet “reasonable expectations” on the one hand, and actual acts of interference with (1) the employment contract, even at-will employment or with (2) the Claimants’ “legitimate expectancy” of a future business or contractual relationship. We find that the complaint fails to allege an actual interference, intentional or otherwise, and fails to allege facts that could constitute such an interference.

Second, there is a serious omission of factual allegations supporting all of the elements of these torts. Any claim of interference with existing contractual relations or with future expectancies of any kind must be actual factual allegations. Here we find conclusions, which are simply inadequate as a matter of pleading, and as a matter of fairness to the Respondent so it can know what to defend. If the Claimants mean to allege that DCCA or State officials interfered with their expectancies by taking actions that prevented Wittek from employing them, or prevented them from working for Wittek, they have not done so. There must be a factual allegation of affirmative intentional acts.

We need not further discuss this claim, as it is clearly not well pleaded. However, we cannot say as Respondent would have us do, that this claim is so fundamentally defective that it must be dismissed with prejudice. Existing employment contracts, even at-will relations, are susceptible to tortious interference claims in suitable circumstances. We cannot say at this point whether these Claimants’ employment relations with Wittek, or their future employment expectations are or are not subject to such claims; we are short of confronting that issue in this case.

Accordingly, we will allow Claimants to replead count II, if they wish to do so, but we will direct that any repleading of the intentional torts of “interference with contract” and “interference with prospective advantage” or with any future business expectancy be separately pleaded in distinct counts.

Count III

Misuse of Social Security Numbers

In their count III, Claimants assert that the IDOL wrongfully brought an enforcement action against Wittek and its owner on behalf of (or for the benefit of) the Claimants but without their consent. That underlying allegation, however, is seemingly not the asserted basis of liability under count III. The factual liability basis alleged by Claimants in count III is that the IDOL “took” their private information, particularly Claimants’ social security numbers, and wrongfully “published” and disclosed them in the complaint filed in the Circuit Court in the enforcement action brought by IDOL (by its director) against Wittek and its owner, Carmen Viana. Chun v. Wittek Industries, Inc., No. 93-L-95 (Cir. Ct. Knox County, Ill.

Count III asserts that this disclosure violated three statutes: 42 U.S.C. section 405(vii)(I), 26 U.S.C. section 7213(a), and 625 ILCS 5/2 — 123(h). Complaint, pars. 30, 31, 33, 34, 35.

Insofar as count III asserts a violation of 42 United States Code section 405(vii)(I), a provision of the Social Security Act, or 26 U.S.C. section 7213(a), a provision of the Internal Revenue Code, or both, this Court lacks subject matter jurisdiction to entertain such claim(s). The jurisdiction of this Court does not extend to federal claims, nor encompass federal law. Our jurisdiction is established by section 8 of the Court of Claims Act (705 ILCS 505/8), with little supplementation by other statutes, and simply does not include federal law violations. The claim for violation of the federal statute must be dismissed with prejudice for want of jurisdiction.

Insofar as count III asserts a violation of section 2— 123(h) of the Illinois Vehicle Code (625 ILCS 5/2— 123(h)), this Court has jurisdiction and must entertain the claim.

However, it is immediately apparent from even a cursory reading of section 2 — 123(h) of the Vehicle Code that that section — which does prohibit certain disclosures of social security numbers — applies only to the “Secretary.” In that Act, the “Secretary” is defined to mean the Secretary of State of Illinois (625 ILCS 5/1 — 183), who is thus the sole target of section 2 — 123(h). The Secretary of State is not the IDOL. And the IDOL, at last glance, was not under the Secretary’s jurisdiction or supervision. This statute clearly and glaringly has no applicability to the IDOL or to the facts alleged in this case.

Count III will accordingly be dismissed with prejudice.

Count IV

Invasion of Privacy

Count IV alleges a series of acts by IDOL that are characterized by Claimants’ complaint as being wrongful and as being “unauthorized” and as “invasions of privacy.” Although it is far from clear, count IV seems to claim or to assume, vaguely, that the IDOLs enforcement action in the circuit court required the prior consent of the Claimant-employees, which was not only not given, but was allegedly denied affirmatively by the Claimants to IDOL representatives.

Without detailing the arguments of the Respondent, it suffices to note that insofar as count IV is, or may be, predicated on a requirement of consent by Illinois employees such as the Claimants to enforcement actions against their employer by the IDOL, the Court is unaware of any such requirement, and Claimants have utterly failed to point to one in the statutes or common law of this state. The Respondent asserts, and we do not doubt, that at least generally under the applicable statutes, the IDOL asserts public not private rights in seeking enforcement of Illinois labor laws, such as the Minimum Wage Law, the Wage Payment and Collection Act and other wage and hour and terms of employment statutes, and are statutorily empowered to do so in their own prosecutorial and enforcement discretion. (See, e.g., 820 ILCS 105/7; 820 ILCS 115/ll(c); see also, People ex rel. Martin v. Smith (4th Dist. 1990), 205 Ill. App. 3d 553, 563 N.E.2d 1170, 1174; People ex rel. Martin v. Lipkowitz (3d Dist. 1992), 225 Ill. App. 3d 980, 589 N.E.2d 182, 184.) Insofar as count IV is based on a theory of a right of the employee-Claimants to veto the IDOLs enforcement action against Wittek, it must be dismissed for failure to state a cause of action.

However, the remainder of the vague and rambling allegations of count IV, including its "invasion of privacy” allegations — which are based, like count III, on the disclosure by the IDOL and the Attorney General of the Claimants’ social security numbers in the circuit court complaint against Wittek — may stand on a different footing. The problem for this complaint in this regard is that one cannot determine what footing is being asserted. It is also difficult to determine from the complaint whether or not a distinct “invasion of privacy” claim is sought to be pleaded in count IV, apart from the “unauthorized filing” claim which we have dismissed, in light of the similar claim that was asserted in count III. We will give the Claimants the benefit of the rather serious doubt, and allow them to try another time to plead an invasion of privacy claim in an amended count IV if they choose to do so.

In light of this disposition of count IV, we need not and thus will not reach the public official immunity defense to count IV that was asserted by the Respondent in its brief.

Order

For the reasons set forth above, it is now ordered:

1. Respondents motion for summary judgment, taken as a section 2 — 615 motion to dismiss counts I-IV of the complaint, is granted as to counts I and III, and granted in part and denied in part as to counts II and IV, as follows:

2. Count I is dismissed with prejudice for failure to state a cause of action;

3. Count II is stricken; and Claimants are granted leave to file an amended count IIA to assert a tortious interference with contract claim, and an amended count HR to assert a tortious interference with prospective advantage claim, within 35 days after the date of this order;

4. Count III is dismissed with prejudice for want of jurisdiction on the federal claims and for failure to state a cause of action as to the state statutory claim;

5. Count IV is dismissed with prejudice as to claims of unauthorized prosecution by the IDOL of the action against Wittek Industries, Inc. and is otherwise stricken; and Claimants are granted leave to file an amended count IV to assert invasion of privacy claims within 35 days after the date of this order;

6. The Claimants’ motion for class certification, the Respondent’s attack on class jurisdiction, and the remainder of the Respondent’s summary judgment motion that was not considered are continued generally subject to further order of the Court.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Epstein, J.

Claimants now petition us to reconsider the dismissal of their four-count complaint. The Respondent says that no new arguments are advanced in Claimants’ petition for rehearing. We agree as to counts II and IV, which in any event have been abandoned by Claimants’ filing of an amended complaint on those claims. However, as to counts I and III, the Claimants advance new authority and novel new arguments that deserve review.

Count I: Third-Party Beneficiaiy Status

To resurrect their claim to third-party beneficiary status, Claimants cite People ex rel. Resnik v. Curtis & Davis, Architects & Planners, Inc. (1980), 78 Ill. 2d 381, 400 N.E.2d 918, 36 Ill. Dec. 338, which they say upheld third-party beneficiary status in an analogous “training funds and programs” situation (Petition for Rehearing, par. 4 at 2). Resnik, however, involved a prison construction contract that is not remotely analogous to the instant grant/training contracts.

On the other hand, in Resnik, the Supreme Court applied the same Parrett standard for determining third-party beneficiary status that this Court applied in this case. In both cases, the contract language was dispositive. But the Resnik contract led to the opposite result because its language “specifically and * * * convincingly displayed] the intent * * * to make the * * * [third party] a direct beneficiary” (400 N.E.2d at 920, 36 Ill. Dec. at 340) unlike the contract language in this case. Resnik is plainly not a basis for reconsideration.

Claimants boldly request a trial on this issue nonetheless, urging that “the surrounding circumstances would conclusively establish that they were intended beneficiaries.” (Petition for Rehearing, paragraph 10, at 3) Claimants do not claim they were intended direct beneficiaries, as required. But we do not reject their baseless trial plea for this inadequacy alone.

We recognize that under Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 257-258, 78 N.E. 498, 501, and its progeny, evidence of “the contract and the circumstances surrounding the parties at the time of its execution” (emphasis added) is admissible to glean the parties’ intention as to third-party beneficiaries (i.e., whether a direct benefit was intended to be conferred on the non-party), although the contract language is the primary determinant. Claimants’ plea for a trial on this issue, however, is unsupported by any pleaded or proffered allegations of such circumstances. There is no basis for a trial.

Count III: Misuse of Social Security Numbers

Claimants now “clarify” their count III claim, which seeks damages for the disclosure of their individual social security numbers by the Department of Labor (IDOL) in a circuit court complaint in which the IDOL sought to enforce Illinois wage and hour laws against Claimants’ former employer. Count III was and is based on both federal and state statute (42 U.S.C. 405 and 26 U.S.C. 7213 [criminal statutes] and 625 ILCS 5/2 — 123(h) [section 2 — 123(h) of the Illinois Vehicle Code]). Now saying that they do “not directly rely on the [federal statutes],” Claimants contend that count III asserts “an implied statutory tort based on the federal statutes and State nondisclosure policy.” Petition for Rehearing, paragraph 20, at 7.

Raising an issue of first impression in this Court, Claimants ask us to recognize an implied statutory tort— i.e., a private civil action implied from a statute that does not expressly create a private cause of action — emanating from a mix of federal and state statutes. Claimants invoke the “5-factor” standard for implied statutory torts established in Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 378, 432 N.E.2d 849, 59 Ill. Dec. 905 (recognizing implied private action for violation of the Real Estate Brokers and Salesmen License Act).

We must reject this creative but wildly contrived effort to weave a cause of action out of fragments of federal and state statute.

First, this Court cannot predicate a claim on federal law, as we lack jurisdiction over federal claims. We cannot manufacture such jurisdiction by creating a state action implied partly from federal statute. We will not engage in

Second, the Sawyer factors do not support an implied tort under section 2 — 123(h) of the Vehicle Code. To the contrary, Sawyer and its progeny lead to the opposite conclusion.

We observe initially that the Sawyer factors are customarily stated as four, not five, factors. Claimants add a generic “public policy of tire statute” factor, which does not reflect the post-Sawyer formulations and seemingly adds nothing of substance to the four Sawyer factors.

As our Supreme Court summarized the Sawyer factors in Corgan v. Muehling (1991), 143 Ill. 2d 296, 574 N.E.2d 602, 609, 158 Ill. Dec. 489, 496 (finding private action implied by the Psychologist Registration Act), which it more recently excerpted in Rogers v. St. Mary’s Hospital of Decatur (1992), 149 Ill. 2d 302, 597 N.E.2d 616, 173 Ill. Dec. 642 (recognizing implied private action under the X-Ray Retention Act):

“Implication of a private right of action is appropriate only if: (1) plaintiff is a member of the class for whose benefit the Act was enacted; (2) it is consistent with the underlying purposes of the Act; (3) plaintiff s injury is one the Act was designed to prevent; and (4) it is necessary to provide an adequate remedy for violations of the Act.” See Sawyer Realty Group, Inc. v. Jarvis Gorp., cite omitted.

Although the Supreme Court has reminded us that Sawyer “did not establish a rigid formula” and that its factors are not necessarily exclusive, Board of Ed. of City of Chicago, v. A, C and S, Inc. (1989), 131 Ill. 2d 428, 546 N.E.2d 580, 600, 137 Ill. Dec. 635, 655 (rejecting implied private action under Illinois Asbestos Abatement Act), the four-pronged Sawyer test remains the primary , analysis for Illinois implied statutory torts.

The Sawyer formulation, it is said, is different than the classic legislative intent standard that applies under federal law, i.e., for implying private tort actions emanating from federal statutes. (Sawyer, supra, 432 N.E.2d at 853, 59 Ill. Dec. at 909.) Although at first blush the Illinois Sawyer test appears to depart significantly from traditional legislative intent analysis, close review of the opinion demonstrates that Sawyer rests on the intent of the legislature (or perhaps the constructive legislative intent) in the particular enactment:

“It is clear that it is not necessary to show a specific legislative intent to create a private right of action. If there is no indication that the remedies available are only those the legislature expressed in the Act, then where it is consistent with the underlying purpose of the Act and necessary to achieve the aim of the legislation a private right of action can be implied, [citations omitted.] The court looks to the totality of circumstances in endeavoring to discover legislative intent, [citation omitted.]” Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 378, 432 N.E.2d 849, 852, 59 Ill. Dec. 905, 908 (emphasis added).

Under the Sawyer formulation, three of the four “factors” are distinct tests of legislative policy and intent: (i) absence of legislative “indication” of limits on the statutory remedies [the second factor]; (ii) “consistency” with the underlying legislative purpose of the statute [the third factor]; and (iii) “necessity” of a private damages action to adequately remedy violations of the statute [the fourth factor]. The ultimate measure of “implied” legislative intent under Sawyer is plainly the fourth factor: the “necessity” finding. Thus a court may allow an implied private action only when “necessity” — to enforce the legislatively-established policy — requires it.

Although this compels a judicial determination of necessity where the legislature has not explicitly made one, and although Sawyer does not require an affirmative intend reflected in the legislation or its history, the Sawyer analysis remains one of legislative implication rather than judicial creation. Nevertheless, the determination of “necessity” can be characterized as judicial policymaking by inference and demands a conservative application:

“Although the courts * * * imply private causes of action where there exists a clear need to effectuate the purpose of an act {see Sawyer [cite omitted]) the judiciary by implying causes of action is assuming policy-making authority, a power more properly exercised by the legislature. The court should exercise such authority with due caution.” [citations omitted.]
Galinski v. Kessler (1st Dist. 1991), 134 Ill. App. 3d 602, 480 N.E.2d 1176, 1180, 89 Ill. Dec. 433, 437 (rejecting implied private civil action under the [criminal] barratry statute).

This conservative view of Sawyers application has been followed in Peel v. Yellow Cab Co. (1st Dist. 1986), 147 Ill. App. 3d 992, 498 N.E.2d 788, 101 Ill. Dec. 464 (rejecting implied private action under municipal Consumer Services Ordinance), and was reemphasized by our Supreme Court in Board of Education of City of Chicago v. A, C and S, Inc. (1989), 131 Ill. 2d 428, 546 N.E.2d 580, 600, 137 Ill. Dec. 635, 655 (rejecting implied private civil action under Illinois Asbestos Abatement Act) (emphasis by the Court):

“Sawyer was clear that we will ‘imply a private remedy where there exists a clear need to effectuate the purpose of an act.’” Emphasis added, cite omitted.

The appellate court has generally applied Sawyer with the caution admonished in the later Galinski, supra, and A, C and S opinions. Sawyer has thus spawned a substantial body of caselaw that reflects a reluctance to imply private damages actions in a wide range of statutes.

This Court also notes the hmiting construction imposed on the "policy consistency” factor (the second Sawyer factor) in a line of recent decisions that holds that only remedial statutes, as distinguished from prohibitory statutes, can imply an unstated private tort action, i.e., that an implied private action is consistent only with an underlying remedial purpose of a statute. E.g., Rhoades v. Mill Race Inn, Inc. (2d Dist. 1984), 126 Ill. App. 3d 1024, 467 N.E.2d 915, 81 Ill. Dec. 793 (rejecting implied private action under the Safety Glazing Materials Act); Lane v. Fabert (4th Dist. 1989), 178 Ill. App. 3d 698, 533 N.E.2d 546, 127 Ill. Dec. 674 (rejecting implied private action under the Pawnbrokers Act).

We review the Illinois implied statutory tort caselaw in part because this issue, particularly the application of Sawyer, is a matter of first impression in this Court, and in part because in this case we are asked to apply the Sawyer factors to imply a private damages action from a statute that is qualitatively different from the statutes involved in the reported precedents.

The statute at issue here, section 2 — 123(h) of the Vehicle Code, is different from the statutes and ordinances that have been reviewed for implied private actions in the reported decisions in two respects. First, the legislation in the reported cases was of general or near-general application. Thus an implied private damages action could lie against a broad spectrum of potential defendants. In contrast, section 2 — 123(h) is not merely of limited applicability, but is applicable uniquely to a single State officer. Second, the liability that would be created by a private tort action under section 2 — 123(h) would uniquely be that of the State.

This character of this statute raises troublesome questions for “implied” legislative intent to create a private damages action. Since this statute, and thus any “implied” private action emanating from it, are uniquely aimed at the State, the underlying analysis of legislative intent runs smack into the doctrine of sovereign immunity — which is not implicated in any of the reported Illinois decisions on implied statutory torts. To find legislative intent supporting a viable damages action in such an enactment, the Court would necessarily have to find that the General Assembly impliedly intended to waive the States sovereign immunity. We cannot say that such implication can never be found. But this is a difficult and arguably additional hurdle to be faced by a Claimant urging, in Sawyer terms, absence of legislative limits on the statutory remedies, “consistency” with underlying legislative policy and “clear necessity” to adequately remedy statutory violations.

In this case, we perceive no basis that remotely suggests such an implication. We also find that the Claimants’ contentions fail to meet the first, third, and fourth Sawyer factors.

On the first factor, which is or is equivalent to a standing requirement, we need only reiterate our finding in our initial opinion that the statute in issue simply does not reach or cover the alleged violation asserted by these Claimants. The statute applies only to the Secretary of State, and is aimed specifically at social security numbers gathered in the course of the Secretary’s official duties; this disclosure prohibition does not apply to the IDOL. Thus, in Sawyer terms, these Claimants are not “members of the class for whose benefit the Act was enacted” or of the “particular class” sought to be protected by section 2 — 123(h).

Claimants’ proposed private tort action also fails to meet the “consistency” standard of the second Sawyer factor, in that this statute is not remedial.

Finally, and terminally, these Claimants have not persuaded us, and indeed have not offered any cogent argument, that a private damages action is “clearly necessary” or just plain necessary to enforce the governmental non-disclosure policy of this statute.

Conclusion and Order

Claimants’ petition for rehearing is denied. The order of May 7, 1997, is reaffirmed.

ORDER

Epstein, J.

This cause is before the Court on Claimants’ complaint. This cause was scheduled for hearing before a Commissioner of this Court on May 10, 1999. No one attended this hearing on behalf of Claimants and Claimants have not contacted the Court to explain this absence. The Court has since learned that Claimants’ attorney of record is no longer licensed to practice law in the State of Illinois. Claimants were ordered to have another attorney enter an appearance within sixty days, but have failed to do so.

It is hereby ordered that this cause is dismissed for want of prosecution.

       The contract record before us, consisting of nine compiled volumes of documentation, was filed by the Respondent only as a result of the Courts insistence (order of November 26, 1996) in the face of the Respondents foot dragging and the Claimants’ cavalierly passive discovery efforts. We have been tolerant of the Claimants, who recognized that their contract complaint was defective for omitting the contract documents (see complaint, paragraph 6). Because of the magnitude and urgency of these claims, as well as the complexity of the contracts, and with the objective of getting to the core of these disputes, we ordered full and prompt production and have allowed the Respondent’s document production to satisfy what is ordinarily a claimant’s pleading burden. This does not, however, signal acceptance of the Claimants’ allegation that the Wittek-DCCA contract documents were unavailable to them and must be obtained from the Respondent (complaint, paragraph 6), given that Claimants’ counsel was formerly counsel to Wittek.

       Claimants also cite Heimgaertner v. Benjamin Electric Mfg. Co. (1955), 6 Ill. 2d 152, 128 N.E.2d 691 (recognizing implied private action against employer under Election Code time-off-to-vote provision); Boyer v. Atchison, Topeka & Santa Fe Ry. Co. (1967), 38 Ill. 2d 31, 230 N.E.2d 173 (recognizing implied private action under Federal Safety Appliance Act). Claimants do not cite other prominent pre-Sawyer implied tort decisions: e.g., Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 478, 384 N.E.2d 348, 23 Ill. Dec. 554 (recognizing retaliatory discharge tort implied by the Worker’s Compensation Act); Hoover v. May Dept. Stores (1979), 77 Ill. 2d 93, 395 N.E.2d 541, 32 Ill. Dec. 311 (rejecting implied private action under the 1957 Retail Installment Sales Act); Teale v. Sears, Roebuck & Co. (1976), 66 Ill. 2d 1, 359 N.E.2d 473, 3 Ill. Dec. 834 (rejecting implied private action under the age discrimination act and Missouri statute).

       This fifth factor was arguably stated in one pre-Sawyer opinion: In Sherman v. Field Clinic (1st Dist. 1979), 74 Ill. App. 3d 21, 392 N.E.2d 154, 161, 29 Ill. Dec. 597, 604 (recognizing implied private action under the Collection Agency Act), the court observed that the allegations “contravene the public policy of this State, as expressed in the ° ° ° Act.” However, that only says that that statute was allegedly violated, which relates to the existence of a particular claim, not to whether a private action is statutorily implied.

       In Sawyer, our Supreme Court held that federal law governed the federal statutory-implication issue, and cited Texas Industries, Inc. v. Radcliff Materials, Inc. (1981), 451 U.S. 630 and other U.S. Supreme Court decisions going back to Cort v. Ash (1975), 422 U.S. 66, which articulated a 4-factor federal test that included “indication of legislative intent to create or deny such a remedy.” (See also, Lehmann v. Arnold (4th Dist. 1985), 137 Ill. App. 3d 412, 484 N.E.2d 473, 481, 91 Ill. Dec. 914, 922) (recognizing implied private action under the Plat Act; rejecting implied private action under the National Flood Insurance Act of 1968), the only Ilhnois case that has come to our attention that involved, as here, a claim of an implied state tort predicated on a federal statute, which Lehmann held was precluded by “[djeference to Congress and principles of federalism.”

       Ironically, the particular “implication” holding of Sawyer was legislatively reversed by a 1986 amendment to Real Estate License Act. See Stefani v. Baird & Warner, Inc. (1st Dist. 1987), 157 Ill. App. 3d 167, 510 N.E.2d 65, 70, 109 Ill. Dec. 444, 449.

        See, e.g., Ficke v. Evangelical Health Systems (1st Dist. 1996), 674 N.E.2d 888, 221 Ill. Dec. 94 (rejecting implied private action for patients' families under the Health Care Surrogate Act); Parra v. Tarasco, Inc. (1st Dist. 1992), 230 Ill. App. 3d 819, 595 N.E.2d 1186, 172 Ill. Dec. 516 (rejecting implied private action under the Choke-Saving Methods Act); Davis v. Dunne (1st Dist. 1989), 189 Ill. App. 3d 739, 545 N.E.2d 539, 136 Ill. Dec. 1015 (rejecting implied private action under the Civil Service Act); Lane v. Fabert (4th Dist. 1989) 178 Ill. App. 3d 698, 533 N.E.2d 546, 127 Ill. Dec. 674 (rejecting implied private action under the Pawnbrokers Act); Anzinger v. Illinois State Medical Inter-Ins Exchange (1st Dist. 1986), 144 Ill. App. 3d 719, 494 N.E.2d 655, 98 Ill. Dec. 533 (rejecting implied private action for rate violations under the Illinois Insurance Code; Peel v. Yellow Cab Co., Inc. (1st Dist. 1986), 147 Ill. App. 3d 992, 498 N.E.2d 788, 101 Ill. Dec. 464 (rejecting implied private action under the City Consumer Services Ordinance); Anzinger v. Illinois State Medical Inter-Insurance Exchange (1st Dist. 1986), 144 Ill. App. 3d 719, 494 N.E.2d 655, 98 111. Dec. 533 (rejecting implied private action for reparation under the Insurance Code); Cook v. Optimum/Ideal Managers, Inc. (2d Dist. 1984), 130 Ill. App. 3d 180, 473 N.E.2d 334, 84 Ill. Dec. 932 (rejecting implied private actions for retaliatory termination of payments and for withholding of medical reports under Workers’ Compensation Act);

        Thompson v. Tormike, Inc. (1st Dist. 1984), 127 Ill. App. 3d 674, 469 N.E.2d 453, 82 Ill. Dec. 919 (rejecting implied private action under City nuisance ordinance); Rhoades v. Mill Race Inn, Inc. (2d Dist. 1984), 126 Ill. App. 3d 1024, 467 N.E.2d 915, 81 Ill. Dec. 793 (rejecting implied private action under the Safety Glazing Materials Act); Kinney v. St. Paul Mercury Ins. Co. (1st Dist. 1983), 120 Ill. App. 3d 294, 458 N.E.2d 79, 75 Ill. Dec. 911 (rejecting implied additional private action under the Insurance Code).
      We do not suggest by omission that post-Sawyer appellate decisions have consistently rejected implied statutory torts. To the contrary, see, e.g., Noyola o. Board of Education of City of Chicago (1st Dist. 1996), 284 Ill. App. 3d 128, 671 N.E.2d 802, 219 Ill. Dec. 635 (recognizing implied private action under the School Code as to Chapter 1 funds); Witt v. Forest Hospital, Inc. (1st Dist. 1983), 115 Ill. App. 3d 481, 450 N.E.2d 811, 71 Ill. Dec. 123 (recognizing implied private retaliatory discharge action under the Guardianship and Advocacy Act); Lehmann v. Arnold (4th Dist. 1985), 137 Ill. App. 3d 412, 484 N.E.2d 473, 91 Ill. Dec. 914 (recognizing implied private action under the Plat Act; rejecting implied private action under the National Flood Insurance Act of 1968).