author: Epstein, J. Raucci, C.J.

text:
    (No. 95-CC-2404
    Carolyn C. Evans, Claimant, v. Illinois Department of Transportation, Respondent.

      Opinion and Order on motion to dismiss filed March 21, 1996.

      Order filed July 22, 1999.

    Bill J. Evans and Hatch, McPheter & Lyke (Brian L. McPheter, of counsel), for Claimant.
    Jim E. Ryan, Attorney General (Mark W. Marlott, Assistant Attorney General, of counsel), for Respondent.
   OPINION AND ORDER ON MOTION TO DISMISS

Epstein, J.

This three-count complaint over a 25 x 161 foot strip of land in Champaign County is the Claimant’s third effort at judicial relief, in a third action in a third court, to secure the property rights that she claims in the strip. The 25-foot strip is the western edge of several parcels of which Claimant is the fee owner and lies between Route 45 and the remainder of Claimant’s land. The strip is also the subject of a Department of Transportation (“IDOT”) easement for highway purposes which was granted in 1946 by Claimant’s predecessor in title to IDOT’s predecessor. The successors-in-interest now dispute the use of the strip and the ownership of the easement.

Claimant’s two previous efforts in the circuit and appellate courts resulted in dismissals for lack of jurisdiction in those courts to grant the relief requested, due to the exclusive jurisdiction of this Court to adjudicate most disputes involving State land rights. Evans v. Department of Transportation (4th Dist. 1993), 251 Ill. App. 3d 440, 190 Ill. Dec. 730, 622 N.E.2d 444 [“Evans /”] (action for ingress-egress dismissed and circuit court order vacated for lack of jurisdiction; held that court of claims has exclusive jurisdiction); Evans v. Brown (4th Dist. 1994), 267 Ill. App. 3d 662, 205 Ill. Dec. 218, 642 N.E.2d 1335 [“Evans II”] (mandamus action to compel IDOT to institute eminent domain proceedings, based on alleged taking, and for determination of ownership or scope of State easement, dismissed for lack of jurisdiction; held that exclusive jurisdiction lies in court of claims).

In this Court, Claimant asserts: (count I) that IDOT has “taken” her land by imposing various restrictions on use of the strip and by restricting her access across the strip; on which basis Claimant asks for a writ of mandamus to compel IDOT to institute condemnation proceedings in the circuit court; (count II) that the States easement in the strip has reverted to the Claimant by virtue of the reversion terms contained in the easement and the State’s subsequent actions and lack of use of the strip for highway purposes; on which basis Claimant requests a declaratory judgment reverting the easement; and (count III) that this Court should adopt the findings, conclusions and order of the circuit court in Evans I that were reversed and vacated for lack of jurisdiction but which were fully adjudicated by the parties in that court.

This procedurally extruded dispute is before us on the Respondent’s motion to dismiss which advances four grounds (or groups of grounds) for dismissal of various or all of the three counts of Claimant’s complaint. We consider these seriatim.

1. Pleading Requirements.

Respondent contends first that Claimant’s complaint does not comply with our Rules 790.50(a)(1), (a)(3), and (c) (74 Ill. Adm. Code 790.50(a)(1), 790.50(a)(3), 790.50(c)) in that it, respectively, fails to set forth the jurisdictional basis in our Act under which the claims are brought; fails to “set forth fully when and to whom the action was previously presented and what action the State agency took”; and fails to attach copies of the “deeds, easements and other writings upon which the claim is based.” Violation of these pleading requirements of Rule 790.50 are, as Respondent notes, grounds for dismissal under Rule 790.90 (74 Ill. Adm. Code 790.90).

It is clear that this complaint fails to contain the requisite pleadings required by section 790.50(a)(1) (the jurisdictional reference(s)) and the attachments required by 790.50(c), at least insofar as count II (and possibly counts I and III) rely on the easement text. The Respondent does not identify any other specific documents that should be attached. Claimant has articulated possible alternative jurisdictional bases in her brief; whichever Claimant relies upon should have been pleaded. Similarly, although the easement language on which Claimant relies is pleaded in an exhibit to her complaint, the document is not pleaded as is required. These omissions do not warrant dismissal given the information that was pleaded and the non-prejudicial nature of these omissions in this instance. These defects can be, and must, be cured by another pleading.

However, we are unimpressed with the Respondents argument as to the prior presentment of these claims. In the context of this complaints allegations and in light of the prior litigation in the circuit and appellate courts which is referenced in the complaint, the Claimants complaint clearly identifies to whom and with what result these disputes were presented. Claimants pleading has sufficiently complied with Rule 790.50(a)(3).

2. Exhaustion of Administrative Remedies.

Respondent next contends that the Claimant failed to exhaust her administrative remedies within IDOT, in violation of our Rule 790.60 (74 Ill. Adm. Code 790.60), which is a ground for dismissal under Rule 790.90 (74 111. Adm. Code 790.90). Respondents exhaustion contention focuses on the access component of Claimants “taking” claim, and essentially contends that insofar as access across the easement strip may have been denied by IDOT, that issue is properly the subject of a permit proceeding before IDOT, and this Claimant did not even apply for such permits, as disclosed by the Evans I opinion pleaded by the Claimant as an exhibit to her complaint. To this argument the Claimant responds that she is not seeking access (which might be provided by an IDOT permit), but instead seeks relief for a “taking” and a determination of ownership of the easement.

Claimants response is correct as to the easement issue, but is only partly correct as to the “taking” issues asserted in count I. Insofar as the claimed taking is a matter of denial of access, as it clearly is in some part at least (see complaint, count I, paragraph 7(A)), the Respondents argument prevails, and to this extent the count I claim, as pleaded, must be dismissed. The remainder of the “taking” claim of count I, and all of counts II and III must survive this exhaustion objection.

3. Count III: The Circuit Courts Ruling in Evans I.

Respondent moves for dismissal of count III, asserting that this Court is not bound by the circuit courts ruling, as it was vacated by the appellate court for lack of jurisdiction and is thus void. It is clear that this Court is not bound by that order. The Claimant does not contend that the circuit courts order or its findings or its conclusions are binding; rather, Claimant urges us in her complaint and in her brief to adopt that courts rulings in the interest of judicial economy and fairness in light of the proceedings held in that court with the full participation of these parties.

This Court cannot do as Claimant understandably but baselessly asks us to do. Claimant won in the circuit court of Champaign County, but that proceeding was indeed a nullity due to Claimants incorrect choice of forum. As much as we would like to avoid duplicative trials, the State has a right to an evidentiary hearing in this Court even if that amounts to a second bite at the apple due to the futile proceedings in the other court. Given the prior litigation, and the somewhat detailed findings of the other court, an appropriate course might be for one or both of the parties to move for summary or partial summaiy or issue summary judgment, which may or may not fully dispose of the already-htigated issues, but should at least identify persisting factual disputes and might narrow the issues for trial. Whether that course, or trial, makes better procedural sense is, at least initially, a determination for the parties to make. However, we will not preclude a party from an evidentiary hearing in this Court because of a non-binding determination in another forum, particularly where nugatory proceedings were not held at the instance of the objecting party.

We also fail to find any basis for count III to stand as an independent claim, as it solely requests adoption of the circuit court’s order and determinations and fails to assert any independent basis for relief. For this facially apparent reason, we must dismiss count III of the complaint with prejudice.

4. Statute of Limitations.

Respondent finally contends that this complaint must be dismissed for violation of the five-year limitation contained in section 22 of our statute (Court of Claims Act, section 22; 705 ILCS 505/22) which Respondent says applies to any action brought in this Court. In response, the Claimant defends her count I mandamus action on the basis that the predicate “taking” allegations assert a continuing “taking” which is not and cannot be barred by any of the potentially applicable limitations provisions of our Act. Claimant also observes that the asserted five-year limitation period, under section 22(a) of our Act, applies to “claims arising out of contract,” although she does not actually contend that that limitation is inapplicable here. Claimant does not articulate any defense of her count II declaratory judgment action, which requests a determination that the easement reverted to Claimant in 1982 and asserts a dispute between the parties as of 1983 (by virtue of Claimants August 12, 1983 written notice to IDOT of the claimed 1982 reverter, see complaint, count II, paragraph 7).

We agree that count I, as pleaded, sufficiently alleges a continuing course of “taking” conduct by IDOT to survive the Respondent’s statute of limitations argument, whether the five-year contract limitation of section 22(a) is applicable to this easement claim or whether the catchall two-year limitation of section 22(g) is applicable (to “all other claims,” if section 22(a) does not apply), at least at this pleading stage.-As to count I, therefore, Respondent’s motion must be denied without prejudice to renew it as applied to the facts adduced at trial.

As to count II, however, the Court is constrained to dismiss Claimant’s declaratory judgment action on the alleged 1982 reverter and alleged 1983 dispute over that reverter issue which, as pleaded, is time-barred under either of the potential limitations periods under section 22 of our Act.

We understand that this result is seemingly harsh, in light of the ongoing litigation over this easement since at least 1986, when it appears that Claimant first sued IDOT in the circuit court. However, our statute’s limitations provisions are jurisdictional where applicable, and we cannot waive them. We intimate no opinion as to whether this issue can be repleaded or reformulated so as to survive the limitation, should she elect to tiy, but this dismissal is without prejudice to such re-pleading as may be filed to litigate her claimed rights to this property.

With respect to the harshness of this dismissal, we must note some of the history of this decade-long litigation. First, despite Claimants representations, it is not clear from the appellate courts opinion in Evans I that the reverter issue was actually litigated in that case. The circuit court’s order in Evans I, which recites a finding of fact that “[t]he reverter was automatic on failure either to use the premises or to cease using the strip for highway purposes,” but did not make any declaration or order as to title, was at best ambiguous in this regard. See, paragraph 22, order of March 3, 1992, case no. 86-L-132, Circuit Court of Champaign County, Sixth Judicial Circuit, exhibit C to complaint.

Moreover, whether or not this issue was in fact litigated in the nugatory proceedings in Evans I, which extended from 1986 to 1992 in the circuit court and until September 9, 1993, in the appellate court when its opinion in Evans I was issued, is not the point. Rather than come immediately to this Court after the Evans I ruling on jurisdiction, the Claimant persisted in her Evans II mandamus action in the circuit court, which she had filed on June 23, 1993 — after Evans I had been appealed by IDOT but well before the appellate court’s decision. The Claimant then raised the reverter issue in her amended complaint in Evans II which she filed on December 13,1993 — after the appellate court’s decision in Evans I. It was only after Evans II was also decided on jurisdictional grounds, by a different panel of the fourth district appellate court, that Claimant finally filed a complaint in this Court. Even then, she delayed from November 8, 1994, when Evans II was handed down, until February 10,1995, before filing essentially the same allegations in this Court.

Accordingly, it is hereby ordered:

1. Respondents motion to dismiss is granted in part and denied in part, as follows;

2. Count I of the complaint is stricken, subject to a repleading in an amended complaint or by a supplemental pleading amendment to satisfy the requirements of Rule 790.50(a)(1) and, insofar as applicable, Rule 790.50(c), subject also to paragraph 3 of this order, and subject to the later renewal of Respondents statute of limitations objection;

3. All claims based on a denial by the Respondent of access over the easement are dismissed with prejudice, for failure to exhaust administrative remedies;

4. Count II of the complaint is dismissed as time barred, without prejudice;

5. Count III of the complaint is dismissed with prejudice;

6. Claimant is granted leave to file an amended complaint (or if only count I is to be asserted, a supplemental amendment to count I, at Claimants election) within 30 days after entry of this order;

7. This case is remanded to Commissioner Pacey with directions to modify the foregoing pleading date and/or the impending trial date as warranted in light of the parties’ positions and any reasonable time requests they may make after entry of this order and in light of the extraordinary duration of this litigation.

ORDER

Raucci, C.J.

This cause coming on to be heard on the stipulation of the parties dated the 10th day of November, 1998, the Court being fully advised in the premises, the Court finds:

The parties have filed a stipulation to dismiss this action, and providing that the Respondent Department of Transportation be ordered to “issue permits for not more than three points of access to and from CrumpeckerEvans Subdivision in or near the City of Champaign, Illinois to U.S. Route 45” and further providing for the performance of certain conditions before the issuance of the permits.

Because we have on previous occasions declined to hold that we have authority to issue what constitutes a mandatory injunction, we decline to order the Respondent to issue permits.

Based upon the representations contained in the stipulation, we shall dismiss the case, and if the Claimant is not satisfied that the Respondent has performed as stipulated, we shall vacate the dismissal upon filing of a motion within one year of the date of this order.

It is therefore, ordered that this claim is dismissed, with leave to vacate the dismissal upon filing of a motion within one year of the date of this order.


source: Caselaw Access Project

author: Raucci, C.J.

license: Public Domain

text:
    (No. 96-CC-0511
    Susan J. McDunn, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 27, 1999.

    Gardner, Carton & Douglas (William Quinlam and Michael J. Hayes, of counsel), for Claimant.
    Jim E. Ryan, Attorney General (Jacqueline K. Williams, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, C.J.

This cause comes on to be heard on the Claimant’s motion for summary judgment, and the Respondent’s motion for summary judgment. The Court has considered the memoranda and the oral arguments of the parties.

Facts

Claimant, Susan J. McDunn, was a candidate in the March, 1990, Democratic primary for nomination of the Democratic party to the office of Judge of the Circuit Court of Cook County to fill the vacancy of Roger J. Kiley. The winner of the primary would appear upon the November, 1990 general election ballot. She lost the primary election to James Williams by 180 votes and filed a primary contest. Nearly two years later, the Circuit Court declared her the winner of the primary. However, the general election of 1990 was history, and James Williams, without Republican opposition, had been declared elected to the office. The Circuit Court ordered the Claimant’s name placed upon the ballot for the general election to be held in November, 1992. Thereafter, on September 30, 1992, a divided Appellate Court affirmed the trial court’s decision but also ruled that Judge Williams could continue to serve in the same judicial position (the Kiley vacancy). No appeal was taken from that decision. Claimant was elected, with no Republican opposition, in the November 3, 1992, general election and was scheduled to take the oath of office on December 7,1992.

However, on November 18, 1992, the Supreme Court entered an order that effectively precluded Claimant from taking the oath of office.

That order recited:

“In the exercise of this Court’s supervisory authority, the mandate of the Appellate Court is stayed until further order of this Court or, if it has issued, recalled until further order of this Court, and enforcement of the judgment of the Circuit Court of Cook County in case no. 90CO116 is stayed until further order of this Court. It appearing that the issue decided by the lower courts in this case involves a question of such importance that it shall be decided by the Supreme Court, it is ordered that the case of McDunn v. Williams, no. 1-92-1109, is docketed in this Court.”

The Supreme Court, sua sponte, allowed the Attorney General to intervene, and ordered an expedited briefing schedule.

On August 26, 1993, the Supreme Court held that the Appellate Court erred in allowing Judge Williams to continue to serve in the Kiley vacancy at the same time that Claimant was to serve. The Supreme Court held that the effect of the dual occupation was the creation of an additional judgeship in contravention of the Illinois Constitution of 1970. The Supreme Court affirmed Claimant’s election, and she was sworn in as a judge on September 17, 1993. She now seeks payment of the judicial salary for the period of December 3,1990, through September 17,1993.

Both parties agree that there are no genuine issues of material fact, and that it is appropriate for us to dispose of this case by summary judgment.

The three issues before us are (1) whether Claimant is entitled to compensation for salary for the period from December 3, 1990 until December 7, 1992 (the period from which she would have taken office if her name was upon the November, 1990 general election ballot; (2) whether the Claimant is entitled, to compensation for the period December 7, 1992 until September 17, 1993 (the period she was restrained from taking office as a result of having been elected in November, 1992); and (3) whether this claim is barred because it was not timely filed.

The Period from December 3, 1990 until December 7,1992

As to the first issue, we find that Claimant is not entitled to compensation for salary for the two-year period from December 3, 1990, until December 7, 1992. Article VI, section 10 of the 1970 Constitution of the State of Illinois provides that the terms of judges of the Circuit Court are six years. Claimant was not denied her term, but as to the period from December 3, 1990, until December 7, 1992, it was delayed. In November, 1992, she was elected to a full six-year term. Consequently, while she suffered a delay, she did not suffer a loss of salary for the period.

The Period from December 7,1992 until September 17,1993

As to the second issue, article VI, section 16 of the 1970 Constitution of the State of Illinois provides:

“ADMINISTRATION. General administrative and supervisory authority over all courts is vested in the Supreme Court and shall be exercised by the Chief Justice in accordance with its rules. The Supreme Court shall appoint an administrative director and staff, who shall serve at its pleasure, to assist the Chief Justice in his duties.”

The Supreme Court in its November 18,1992, order asserted its supervisory authority.

Thus, the Claimant was prevented from taking her office by virtue of the Supreme Court’s invocation of its constitutional power to exercise supervisory authority over all courts. The Supreme Courts ultimate decision nullified the Appellate Court’s effective creation of dual judicial offices in a single vacancy.

Claimant, in her complaint, attached a copy of a January 20, 1994, letter from the director of the Administrative Office of the Illinois Courts. That office was created pursuant to the above quoted constitutional provision to aid the Supreme Court in the implementation of its administrative and supervisory authority over all courts. The letter, in pertinent part, states “Please be advised that the Supreme Court, yesterday, considered and disapproved your request for pay from December 7, 1992, through September 17, 1993.” Thus, the Supreme Court, in the exercise of its administrative and supervisory authority, rejected Claimant’s assertion to a right to salary for the nine-month period that she was prevented from taking the oath of office. The letter, however, does not state the reason for the denial but does make reference to the fact that the funds for part of the period (December 7, 1992 through June 30, 1993), could not be paid from fiscal year 1994 (which commenced July 1, 1993) funds. The letter states that payment for that period could be obtained only from the Court of Claims. However, if the Supreme Court desired to pay the salary for the period July 1, 1993, through September 17,1993, it could have done so. Obviously, the Supreme Court did not desire to do so. Claimant is effectively seeking to have the Court of Claims, which is part of the legislative branch of State government, overrule the Supreme Court, which is part of the judicial branch of State government, on an action that the Supreme Court has taken pursuant to its constitutional authority. For us to do so would be an unconstitutional intrusion by one branch of government upon another.

Even if we had the authority in this case to grant Claimants claim for this period of time, we find that Claimant is not entitled to relief. Claimants principle argument is that section 11(b) of the Personnel Code (20 ILCS 415(b)) provides that reinstated employees should be compensated. However, the Personnel Code specifically excludes judges from its coverage. Section 4c provides:

“Sec. 4c. General exemptions. The following positions in State service shall be exempt from jurisdictions A, B, and C, unless the jurisdictions shall be extended as provided in this Act:

(1) All officers elected by the people.

6 # »

(3) Judges, and officers and employees of the courts, and notaries public”

Additionally, section 11(b) applies to persons who are reinstated as a result of the action of the Civil Service Commission. Section 11(b) does not apply to the Claimant.

Both the Claimant and the Respondent rely on McKinley v. City of Chicago (1938), 369 Ill. 268, 16 N.E.2d 727. In McKinley, the Supreme Court, in reversing the Appellate Court, held that two judges who were successful in recounts were not entitled to compensation for the period that they did not hold the judgeship that they subsequently were determined to have won. The Supreme Court declared that “[n] either do we believe that the question is an open one in this State.” (369 Ill. at 270, 16 N.E.2d at 728.) After citing cases in which employees in similar situations were denied compensation, the Court stated:

“The two plaintiffs insist that the rales which we have just discussed apply only to mere positions or employments, not to public elective officers, but we fail to discern the validity of such an argument. On the other hand, it seems to us that these rales apply with greater vigor and more urgent public necessity to offices than to mere employments. If the rales of public policy which we have heretofore announced, and to which we now adhere, are important to grain inspectors and city engineers, they are certainly more vital to the public interest when the matter concerns judges. An election for judges of the municipal court results in the election of twelve candidates receiving the highest number of votes, so that a contest against one is necessarily a contest against all. If the public authorities must pay at their peril whenever a contest is started, then any candidate, even though hopelessly defeated, might throw the entire judicial machinery into disorder by merely starting a contest. Such a rale would require the city and its various disbursing officers to become insurers of the result of an election with which they had nothing to do, or else withhold all salaries until the cumbersome machinery of an election contest could be put in motion and the contest carried through to its conclusion 5 * *
ose
We consider it much more in the public interest to adhere to our previously indicated rale. It is our opinion that a certificate of election following a regular canvass and the possession of a commission by those officers who are commissioned, fully protects the disbursing officers from further liability if they have paid salaries to such an incumbent." 369 111. at 271-272,16 N.E.2d at 728-729.

Respondent maintains that the decision precludes recovery, while the Claimant maintains that the Supreme Court was applying the same public policy (denying compensation) to judges as to employees. The Claimant reasons that since McKinley was decided at a time prior to the Personnel Codes enactment, the Personnel Code evidences a new public policy. The Claimant is correct as to employees, but the legislature specifically refused to apply the new public policy to elected officers, and to judges.

Because of these conclusions, it is unnecessary to consider the remaining issue.

It is therefore ordered, adjudged and decreed that the Claimant s claim is dismissed and forever barred.


author: Patchett, J.

text:
    (No. 96-CC-0591
    Thomas Reed, Claimant, v. The State of Illinois, Respondent.

      Order filed July 6, 1999.

    Thomas Reed, pro se.

    Jim E. Ryan, Attorney General (Michael A. Wulf, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Patchett, J.

The Claimant is a former inmate with the Illinois Department of Corrections. He seeks damages in the sum of $100,000 for personal injuries allegedly received as a result of negligence by an agent of the Respondent, Department of Corrections for the State of Illinois. The claim alleges that on May 26, 1994, while employed at the warehouse at the Big Muddy Correctional Center, Mr. Reed was engaged in taking inventory at the direction of Correctional Officer Larry Falaster. He claims that a freezer door had been propped open by order of the supervisor and ice was building on the floor and walls of the freezer. He further claimed that while attempting to move a skid of meat with a hand jack, he slipped and fell allegedly injuring his back and left elbow.

The hearing on this claim was held before a commissioner of this Court. At the hearing, Claimant testified in accordance with the' allegations made in the claim. He further contended that he was a tree trimmer by trade and could no longer climb trees as a result of his injury.

After the injury in question, Mr. Reed was taken to the medical unit at the institution. He was given physical therapy and some other non-specified treatment. He was taken to Benton, Illinois three times a week for physical rehabilitation and continued with that for a couple of months. Mr. Reed was never operated upon and was hospitalized only at the institution. He has not consulted a private physician since his release from the Department of Corrections and had not been taking medication or treatment at the time of the hearing.

Mr. Reed was familiar with the warehouse meat locker at the time of the accident and was wearing institutional boots when it occurred. He did not break any bones as a result of the fall. He described that he has a pain in his back that is severe at night, numbness in the arms and tingling as a result of the accident. He further testified' his legs go to sleep a lot. On cross-examination, Mr. Reed testified he did slip and fall in the shower at the county jail in January of 1993, but testified that it was not a serious injury. That fall resulted in some back pain also. He further admitted he was in and out of the freezer in question on a daily basis. He was unaware of any special shoes being issued to any workers in the unit. Mr. Reed denied ever being told not to attempt to move heavy objects by himself and testified that his supervisors merely expected the job to get done. He further did not recall being told to prop the freezer door open, and contended he was not the one who in fact propped it open. He fur-' ther denied he had been told not to rush or hurry in doing his job. After the injury in question, he did not return to work in the warehouse. At the conclusion of the Claimant’s testimony, the Respondent sought and received permission to supplement the record with an evidence deposition taken of a Hal Gordon, physician at the Big Muddy Correctional Center. The Court has reviewed that evidence deposition. It merely further confirms a prior fall by the Claimant at the county jail and reports of back pain prior to this injury.

The Respondent called Larry Falaster, the civilian supervisor of the warehouse. Falaster testified that they were not wasting time but there was no rush in terms of getting the inventoiy in question completed. He further testified he worked seven and one-half hours of overtime on the day in question.

Mr. Falaster stated that he had repeatedly warned the correctional resident workers not to try to do anything dangerous and to not move anything without help. He further repeatedly told them not to hurry. He also testified ■ he. had repeatedly told inmate workers to close the freezer door immediately upon entering and exiting that door.

■ The Respondent then called Randy Lowes, a civilian supervisor at the warehouse, who worked for Mr. Falaster. On the day in question, he learned about the Claimant’s fall in the freezer , from another inmate. He went into the freezer and found Mr. Reed lying on his back. He called the health care unit. He testified that this was not a situation where the door, of the freezer was propped open. He testified unequivocally that on the day in question the door was closed.

In rebuttal, Mr. Reed testified that at the time of the accident, the door was propped open and that Lowes was standing right outside the door looking in at Mr. Reed. He further testified that Lowes cautioned the health care workers to be careful when stepping into the freezer because of the buildup of frost from the door being propped open. Mr. Reed also said that a nurse who was picking him up on the stretcher nearly fell because the floor was slick.

To prevail on a claim of negligence, Mr. Reed must prove by a preponderance of the evidence that the State had a duty to protect him from harm, that the State negligently breached that duty, and that such negligence was a proximate cause of the injury. (Starks v. State (1992), 45 Ill. Ct. Cl. 285, 290; Thomas v. State (1995), 48 Ill. Ct. Cl. 165, 167.) An inmate of the penal institution is not ordinarily free to refuse to perform tasks assigned to him even if he considers the working conditions unsafe. An inmate does not have the liberty of choice available to a person in private industry and must therefore work under conditions that are assigned to him. Rickets v. State (1995), 48 Ill. Ct. Cl. 142, 145.

There are some troubling inconsistencies in the testimony of the Respondents in this case. Mr. Falaster testified that there was no urgency to complete the inventoiy, but he worked seven and one-half hours of overtime on the day in question. Mr. Lowes testified that after observing Mr. Reed on the floor and before the health care workers arrived at the scene, he closed the door on Mr. Reed. He also.assured the Commissioner of this Court that he gave no warning to health unit personnel who arrived on the scene despite Mr. Reeds fall. Both supervisors, Falaster and Lowes were very firm in their instructions to always close the door to the locker. It would be reasonable to assume that this was done because leaving the door open would cause unwanted slick conditions. The Court observed the manner and demeanor of Mr. Reed while testifying and formed a favorable impression as to his credibility. Based on all the facts and testimony before us, we find that on the day in question the floor of the meat locker became slippery and hazardous. We further find that the likelihood of this happening was known to the civilian supervisors of Mr. Reed. We further find that as a result of the hazardous nature of the endeavors in which Mr. Reed was engaged and the conditions of the workplace, Mr. Reed was in fact injured by the negligence of agents of the Respondent. We further find that negligence was a proximate cause of his injury. There is little or no evidence of comparative fault on the part of Mr. Reed. There is evidence of a prior back injury and prior complaints. However, evidence as to damages in general is very sparse. Based on these findings, we award the Claimant the sum of $5,000.


author: Patchett, J. Patchett, J.

text:
    (Nos. 96-CC-1598, 97-CC-0404 cons.
    Albert Lee, Claimant, v. Illinois Department of Corrections, Respondent.

      Order filed January 17,1997.

      Order filed August 27, 1999.

    Albert Lee, pro se.

    Jim E. Ryan, Attorney General (Marilyn Thomas Eapen, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Patchett, J.

This cause coming to. be heard upon the Claimants motion for transfer to another court, due notice having been given, and this Court being fully advised, finds that the Claimant is requesting that this Court transfer the above lost property claims to another Court so that he might have a trial by jury.

Under the United States Constitution juries are required in “suits at common law.” (Amend. VII, United States Constitution.) At common law, states have sovereign immunity and cannot be sued.

In Illinois, the State may be a defendant in a suit only to the extent allowed by the General Assembly. Art. XIII, Sec. 4, Illinois Constitution.

The General Assembly has stated that except in the Court of Claims or in actions under the Illinois Public Labor Relations Act the “State of Illinois shall not be made a defendant or party in any Court.” 745 ILCS 5/1 et seq.

Therefore, this Court is without power to transfer the present claims to another Court, as no other Court has jurisdiction to hear the Claimants lost property claims.

It is therefore, ordered that the Claimants motions are denied.

ORDER

Patchett, J.

This cause comes on to be heard on the Respondents motion for summary judgment, due notice having been given, and the Court being advised, finds:

Respondent filed the motion at bar on October 31, 1997. No response to the motion was filed and the Court granted the motion two months later. Claimant filed an untimely objection stating that he had been relocated to the Cook County Jail. On April 20,1998, the order was vacated and the Claimant' was given 60 days to respond. Over a year has passed and Claimant has not responded.

It is therefore ordered that the Respondents motion is again granted and this claim is dismissed.