text:
    (No. 90-CC-1937
    Arlene Koss, Special Administrator of the Estate of Edward Koss, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 19, 1999.

      Order filed May 12, 1999.

    James E. Pancratz, Ltd., for Claimant.
    Jim Ryan, Attorney General (Gary Griffin, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Arlene Koss, individually and as Special Administrator of the Estate of Edward Koss, deceased, filed this wrongful death claim seeking damages of $100,000 on January 19, 1990. Claimant alleges that on January 23, 1988, Claimants decedent, Edward Koss, was assigned to Respondents Metropolitan Community Correctional Center in Chicago, Illinois. While at Metropolitan Community Correctional Center, Mr. Koss suffered a cardiac arrest and died. Claimant alleges that Respondent was negligent, in that Respondent negligently supervised, and attended to, said decedent in such a manner that foreseeably caused injury and death to him; negligently failed to provide decedent with appropriate and timely emergency care; and negligently failed to promptly contact outside emergency personnel.

The cause was tried before Commissioner Michael E. Fryzel.

The Facts

The incident from which this claim arose occurred on the evening of January 22, 1988, at approximately 11:30 p.m. At that time, Claimants decedent, Edward Koss, was playing pool with two fellow inmates in the recreation room of the Metropolitan Community Correctional Center, hereinafter referred to as “MCCC,” located in Chicago, Illinois. At approximately 11:32 p.m., Mr. Koss suddenly collapsed to the floor and started shaking uncontrollably. According to witness, Counselor Woodrow Hester, Mr. Koss appeared to have suffered a heart attack or some sort of seizure.

On duty at MCCC that evening were three correctional residential counselors, namely Woodrow Hester, Vincent Allen, and Percy Coleman. No nurses or physicians were on duty or available within the MCCC. All three counselors were trained in cardiopulmonary resuscitation. They were also certified and re-certified each year, as required by their employer, the Illinois Department of Corrections. Counselor Hester had no other medical training.

In CPR training classes, the correctional institutional counselors were trained to be proficient in detecting the signs and symptoms of a patient in cardiac arrest. To be certified in CPR, the counselors had to demonstrate physical competence in certain life-saving techniques, such as checking and removing obstructions from a patients airway, giving mouth-to-mouth resuscitation to restore breathing, and doing chest compressions to circulate the blood flow. Those certified in CPR were trained to administer CPR on cardiac arrest patients until the paramedics arrived, or until they were too exhausted to continue. Counselor Hester was trained to give CPR only when a person was not breathing, and not during an epileptic seizure.

Additionally, all three counselors were trained to follow certain mandatory protocols in the event of a medical emergency. Part of the protocol required the correctional personnel to perform CPR on any individual within the facility when indicated, while awaiting arrival of emergency medical personnel. The protocol was developed by Respondent.

According to the testimony of Counselor Hester, on the evening of January 22, 1988, the only counselor who witnessed Mr. Koss s collapse in the pool room was Woodrow Hester. When Counselor Hester first saw Koss drop and shake uncontrollably, Mr. Hester was frightened. When Mr. Koss became still, Mr. Hester then checked for a pulse on Mr. Koss s wrist, but did not check his airway. He recalls Mr. Koss breathing very hard at that time. At that point, according to Mr. Hester, Mr. Koss had no pulse, was nonresponsive, felt cold and was very bluish in color. Mr. Hester then ran out of the pool room and informed his supervisor, Perry Coleman, of Mr. Koss s condition. The trip from where Mr. Koss fell to the office took approximately five to six seconds. Counselors Hesters initial impression was that Mr. Koss was already dead. Counselor Hester had no recollection of the weather conditions that night, and it apparently played no part in any actions he took. Even though Counselor Hester did not go back to the place where Mr. Koss fell until the paramedics arrived, Counselor Hester testified that Mr. Koss never regained a pulse during that time and was turning more bluish.

Counselor Hester did testily that “* * # you people must realize this (the incident) was 1988, and you want to be precise, and its almost impossible. I forgot all about this case until I got a letter from you a couple of months ago.”

Counselor Hester testified that he did not administer CPR to Mr. Koss because his training had indicated that the maneuver was not to be used when the person was still breathing, and Mr. Koss was still breathing.

Supervisor Coleman was supervising Counselor Allen and Counselor Hester on the night of the incident. His best recollection was that Inmate Koss was one of approximately 50 residents at MCCC that night. Mr. Coleman testified that standard procedure was to call for an ambulance when dealing with a medical emergency, but that Inmate Koss’s case was the only one he could recall requiring a 911 call.

Contrary to Counselor Hester’s recollection of the events that night, Supervisor Coleman’s report and trial testimony indicate that Supervisor Coleman was the first MCCC employee to find out that Inmate Koss had fallen. Mr. Coleman then went to the front office and ordered Counselor Hester to make the 911 call.

Supervisor Coleman testified that Inmate Koss was breathing sort of heavily when he arrived. Supervisor Coleman knelt down next to Inmate Koss to make sure that Inmate Koss was, in fact, breathing. Supervisor Coleman testified he didn’t use CPR at that point because his training specified that the maneuver was only to be used when someone was not breathing.

Coleman only left the scene for a few minutes, to see if he could get any medical information on Inmate Koss. When Coleman came back to where Inmate Koss was laying, Inmate Koss was still breathing, and still breathing in the same rhythm as when he had left the room.

Coleman was standing just a few feet away from Inmate Koss when the paramedics arrived and he observed Inmate Koss still breathing. Coleman also observed Inmate Koss still breathing when the paramedics took Inmate Koss out of MCCC.

Supervisor Coleman did not recall Koss appearing blue in color, nor does his report include any such recollection. Supervisor Coleman also denied that any resident offered to perform CPR on Inmate Koss.

Supervisor Coleman and Counselor Hester agreed that an ambulance was needed. Mr. Hester made a 911 call at 11:38 p.m. from the shift office. Counselor Hester informed the 911 dispatcher that Inmate Koss was without a pulse, non-responsive, bluish in color, and cold. When the paramedics eventually arrived, Counselor Hester again advised them of these same signs and symptoms.

At the time Counselor Hester was calling 911, Supervisor Coleman and Counselor Allen were in the pool room attending to Inmate Koss. Counselor Allen and Supervisor Coleman tried several times to obtain a response from Inmate Koss, but were not successful. Supervisor Coleman then left Inmate Koss for a few minutes to retrieve Mr. Kosss medical file. Counselor Allen also left Mr. Koss unattended for a few minutes to check for contraband in Mr. Kosss cell. Neither Coleman, Allen nor Hester performed CPR on Inmate Koss before the arrival of the paramedics.

Mr. Allen was a correctional resident counselor I at Metro in January 1988. He also had been certified yearly in CPR technique. Counselor Allen began his shift at Metro at 11:00 p.m. on January 22,1988. Counselor Allen testified that he and Counselor Hester were in the shift office when Supervisor Coleman came in and informed them that Inmate Koss had fallen. Supervisor Coleman told Counselor Hester to make the 911 call and told Counselor Allen to return to the pool room area with him. Inmate Koss was on the floor when Counselor Allen arrived. At that time, Inmate Koss was breathing and moving. Counselor Allen checked Inmate Koss s neck for a pulse and found a faint pulse. Counselor Allen noticed nothing unusual about Inmate Koss s skin color and did not state that it was blue. He observed Inmate Koss s breathing to be heavier, and then slower.

Counselor Allen testified that this breathing pattern continued until the paramedics arrived, and he disagreed with the EMS report stating otherwise. Counselor Allen stated that, “When the paramedics moved us so they could go to work, Inmate Koss was still breathing.” Unlike Counselor Hester, who stayed in the shift office until the paramedics arrived at 11:45 p.m., Counselor Allen was at Inmate Koss s side, except for a brief period when he ordered the other residents back to their rooms and checked the immediate area for contraband.

Even after the paramedics arrived, it was Counselor Allens testimony that Inmate Kosss skin color was not blue and that Inmate Koss's condition remained unchanged from the time he first collapsed until the arrival of the paramedics.

Counselor Allen was trained that he was not to apply CPR when a person was breathing and that is why he did not perform CPR on Inmate Koss. Additionally, Counselor Allen testified that he would have searched for any windpipe blockage if Inmate Koss had been choking. Mr. Koss was not choking.

Counselor Allen was right next to Inmate Koss when the paramedics arrived, and it was his testimony, based on his observations, that Inmate Koss was still breathing at that time. It was also Counselor Allens contention that Mr. Koss was breathing as he was being taken out of MCCC and placed into the ambulance.

The paramedics never told Counselor Allen that Mr. Koss was already dead. Counselor Allen never told the paramedics that Mr. Koss had been without a pulse, respiration, or blood pressure for any period prior to their arrival. Counselor Allen also denied that any resident had offered to perform CPR on Inmate Koss.

At 11:45 p.m., the paramedics arrived at the MCCC. The paramedics were directed to Inmate Koss and were advised by Counselor Hester of Mr. Koss s absence of vital signs. At this time, according to Counselor Hester, Mr. Koss looked worse than ever before. The paramedics noted that Koss was not breathing, not responsive, pulse-less and cyanotic when they first saw Mr. Koss. The paramedics determined that Inmate Koss had not received any CPR or life-saving up to this point and had been without vital signs for at least five minutes, based on the time lapse between the 11:38 p.m. dispatch transmission and their arrival at 11:45 p.m. The paramedics placed Inmate Koss on top of the pool table and began to perform CPR. After attempting CPR for several minutes, the paramedics used various emergency medical techniques on Mr. Koss.

After having obtained no response or vital signs from Inmate Koss, the paramedics placed Inmate Koss on a stretcher. They also tried to revive him in the ambulance parked outside in MCCC’s lot. Inmate Koss was taken to the University of Illinois Medical Center in Chicago where he was pronounced dead. The hospital staff called the decedents wife, Arlene Koss, at 12:45 a.m. and told Mrs. Koss of Inmate Koss’s death. The CFD ambulance was dispatched at approximately 11:38 p.m., and arrived at Metro at 11:45 p.m. The ambulance left Metro 21 minutes later and arrived at the University of Illinois hospital at 12:08 a.m., on January 23, 1988. Mr. Koss died at the hospital on January 23, 1988. The Claimant has brought no lawsuits against any other entity or person, other than the State of Illinois in this case.

On Januaiy 23,1988, Mrs. Koss spoke to Mr. Savage, the acting resident director of MCCCs facility, about the events surrounding Inmate Koss s death. Before speaking with the director, Mrs. Koss had allegedly heard from one of the other inmates present at the scene that he had offered to perform CPR on Inmate Koss. This alleged offer was denied by the counselors on duty at the scene. Mrs. Koss specifically inquired of Mr. Savage about the matter and why first aid/CPR had not been administered to Mr. Koss. Mrs. Koss did not receive an answer from Mr. Savage as to why CPR was not administered. Mrs. Koss never testified as to how she came across this information, which resident she allegedly talked to, or the name of the resident who allegedly offered to perform CPR. Additionally, no other inmate was called to corroborate this alleged offer. We, therefore, give no weight to this testimony.

In August of 1986, Mr. Koss had pled guilty to two counts of armed robbery and one count of aggravated battery. He was initially sent to the Joliet Correctional Center and then transferred to the Vandalia Correctional Center. Mr. Koss was sent back to Joliet in November, 1987, and subsequently assigned to MCCC in November, 1987. His minimum projected out-date was November 23, 1988, and his maximum release date was January 23, 1992.

Upon Mr. Kosss death, Mrs. Koss became a single parent with two minor children. During their marriage and before his incarceration, Mr. Koss worked two jobs to support his family and was employed as both an automobile mechanic and a pizza delivery driver. During his incarceration, Mr. Koss had worked at a meat packing department within the correctional facility. Inmate Koss kept in close contact with his family and he wrote letters to his family frequently from Vandalia. He also spoke to his family by phone about twice a week.

In November of 1987, based on his good behavior, Inmate Koss was transferred to a halfway house at the MCCC facility. Upon this placement, he started to provide financially for his family. While at MCCC, Inmate Koss secured a job with Belmont Auto Clinic in Chicago, Illinois, and earned approximately $250 to $300 per week. His paycheck was used to contribute to the support of his family.

Being assigned to MCCC enabled Mr. Koss to see his family approximately five times a week. As a father, Mr. Koss was involved in his childrens welfare and upbringing. Mr. Koss urged his children to attend school. Mr. Koss also enjoyed taking Ms son, Douglas, with him during pizza deliveries, and enjoyed playing with Alicia at her home.

The last time Mrs. Koss and her children saw Mr. Koss was when they returned him to MCCC on the night of January 22, 1988. On that day, Mr. Koss s health seemed fine. As a result of Mr. Koss s death, his wife and two children have received therapy and counseling. Douglas and Alicia saw therapists for a year on a weekly basis and Mrs. Koss saw a therapist for two years on a regular basis. No bills for this treatment were presented.

The Claimant called Dr. Paul Schoenfeld as an expert witness. Dr. Schoenfeld is board certified in cardiology. According to Dr. Schoenfeld, the standard of care for individuals trained in CPR requires that they detect signs and symptoms of patients in cardiac arrest. These are patients without respiration, without a pulse, and without blood pressure. Certification in CPR requires competence in performing life-saving techniques, such as clearing obstructions from a patients airway, giving mouth-to-mouth resuscitation to restore breathing, and doing chest compressions to circulate a patients blood flow. Dr. Schoenfeld testified that, in his opinion, none of the three correctional counselors acted witMn the standard of care reqmred for individuals trained and certified in CPR. The basis for this opinion was that not one of the three counselors ever checked for obstructions in Mr. Kosss airway, that there was no administration of CPR when CPR should have been started, and that none of the counselors attempted mouth-to-mouth resuscitation, chest compressions, or even repeated a pulse.

Rased on the EMS report and the affidavit of Officer Meade, Dr. Schoenfeld testified that Inmate Koss was in full cardiac arrest for approximately eight minutes before arrival of the paramedics. Upon arrival, the CPR performed by the paramedics was too late and ineffective, because of the lack of oxygen to Inmate Kosss system for the extended period of time prior to their arrival. Dr. Schoenfeld testified that the critical time for CPR to be effective is the first four minutes immediately after the patient first exhibits signs of no pulse, no respiration, and no blood pressure. After four minutes, the chance of survival for a normal recovery drops dramatically for the patient.

In accordance with the applicable standard of care, Dr. Schoenfeld testified that CPR should have been performed in this case within 30 seconds after Counselor Hester detected that Inmate Koss had no pulse and was non-responsive. He further testified that, even if Mr. Koss has labored breathing, that CPR should have been performed after the airway was opened. Dr. Schoenfeld believes that the critical factors to look for are pulse, blood pressure, and responsiveness from the patient. Another key factor is if a patient is cyanotic. Dr. Schoenfeld concluded by testifying that, if CPR had been performed during the eight minutes before the paramedics arrived at 11:45 p.m., the chance of resuscitation would have been between 60 percent to 70 percent, and his chance for survival would have been between 80 percent and 85 percent.

Dr. Schoenfeld concurred that the cause of death was cardiac arrhythmia leading to cardiac arrest due to ventricular defibrillation. The cause of death for Inmate Koss was not a heart attack or a myocardial infarction, as there was no thinning or scarring surrounding Inmate Koss s heart muscle.

Dr. Schoenfeld opines that the three counselors breached their duties of care, as each did not administer CPR as required under MCCC’s own policies, as well as the standard of care for individuals certified in CPR. Counselor Allen admitted that, if a patient is without respiration, without pulse and bluish in color, CPR should be administered based on his CPR training. Dr. Schoenfeld did testily that a symptom of cardiac arrest is that the patient is not breathing. He indicated cardiac arrest is sometimes called a pulseless, non-breather. Dr. Schoenfeld also testified that, if a patient is breathing, you probably don’t need to perform CPR if a patient has a pulse. Both Counselor Allen and Supervisor Coleman testified that Mr. Koss was breathing and had a pulse. Dr. Schoenfeld also stated that, where someone is in cardiac arrest, the caregiver should be thinking about CPR. The counselors testified they considered performing CPR but did not think it was appropriate, as Mr. Koss was breathing. Additionally, Dr. Schoenfeld did not say that CPR was mandatory where a patient is breathing, or that it was the only course of action. He indicated that it was something that could be done if the patient’s condition worsens. The counselors admitted that they considered performing CPR, but didn’t think it was appropriate in Inmate Koss’s situation as they observed it.

Dr. Schoenfeld stated that the best opportunity to resuscitate Inmate Koss was in the first five to eight minutes following his collapse. However, this conclusion assumed that Mr. Koss was without respiration and a pulse, which is directly contradicted by Counselor Allen and Supervisor Coleman, who were standing right next to Mr. Koss. Dr. Schoenfeld went on to state that Mr. Koss’s abnormal breathing was the likely result of his airway being obstructed. While no obstruction is noted in the records, an obstructed airway can also be caused by head and body position. Dr. Schoenfeld admitted that some persons simply, and unfortunately, just die on the spot, and that there’s nothing that can be done for them.

The EMS report notes that no drug solution was administered to Inmate Koss by the paramedics until at least 10 minutes after they arrived at MCCC. Dr. Schoenfeld stated, “That was getting to be a bit of a long time * * * and that’s not the fastest anybody has ever gotten an IV in.” The EMS report also stated that no defibrillation was administered to Inmate Koss until 11 minutes after the paramedics arrived at MCCC and 16 minutes after Meades estimate that Inmate Koss had been without a pulse. Dr. Schoenfeld stated they should have defibrillated him as soon as they possibly could.

Claimant’s expert indicates that, if the paramedics’ report is accurate, they waited too long to defibrillate Mr. Koss, and that this delay was improper procedure. Dr. Schoenfeld went on to testify that Inmate Koss should have been defibrillated within five minutes or less of the paramedics’ arrival at MCCC.

The Court has carefully reviewed the testimony of the three counselors and the affidavit of the paramedic. We find, based on the testimony, that the decedent was in cardiac arrest and that the counselors failed to follow the established protocol for the use of CPR for which all three had been trained. We find that the most credible evidence of what occurred is established by the signs and symptoms conveyed to the EMTs initially as they started their run. That condition of the decedent was confirmed by the decedent’s condition upon their arrival at MCCC.

We further find that the testimony of Dr. Schoenfeld establishes the standard of care. A person exhibiting the symptoms of the decedent should have had CPR started immediately by one certified to perform CPR. The Respondents protocol demanded CPR be initiated, and continued, until the arrival of the EMTs. The doctors testimony also established that the counselors deviated from the standard of care, by failing to give chest compressions, check for a pulse, and check the airway.

Finally, the doctor’s testimony clearly established that the deviation was a proximate cause of the decedent’s injury and death, as his uncontradicted testimony was that, if CPR had been properly performed by the counselors, there would have been a minimum chance of resuscitation of 60 percent.

The Law

This Court has held on numerous occasions that the State owes a duty to provide inmates with reasonable medical care. (Bynum v. State (1992), 44 Ill. Ct. Cl. 1.) The Court has also held that the failure to provide timely medical attention may constitute negligence. Davidson v. State (1983), 35 Ill. Ct. Cl. 835.

In order to sustain a claim of medical negligence against Respondent, the Claimant must prove by a preponderance of the evidence the standard of care, that Respondent deviated from the standard of care, and the deviation from the standard of care was a proximate cause of the Claimant’s injuries. (Olivares v. State (1995), 47 Ill. Ct. Cl. 424, 426; Cleckley v. State (1994), 47 Ill. Ct. Cl. 235.) Normally, expert testimony is required to prove the elements of a Claimant’s medical negligence claim. Robinson v. State (1994), 47 Ill. Ct. Cl. 364.

The Claimant has proven by a preponderance of the evidence that Claimant’s decedent was an inmate of the Illinois Department of Corrections. Therefore, a duty to provide Claimant’s decedent with reasonable medical care existed. Claimant’s decedent was in the custody of Respondent at the time of his attack, even though he was in a work release facility. The Respondent trained its three counselors in CPR and, if appropriate, the counselors should have been able to provide CPR to the Claimant’s decedent. The Respondent adopted a protocol for the counselors to follow in the event of cardiac arrest.

Dr. Paul Schoenfeld, Claimant’s expert, was the only expert who testified in this case. It is difficult to understand why Respondent failed to present any expert testimony to rebut the testimony of Dr. Schoenfeld. Dr. Schoenfeld established the standard of care, the Respondent’s breach of the standard of care, and that Respondent’s negligence was a proximate cause of the Claimant’s decedent's death. The Claimant, through the testimony of Dr. Schoenfeld, the paramedics, and Woodrow Hester, established a prima facie case of medical negligence. Respondent argues that the Court should disregard Hester’s testimony that the decedent was without a pulse or respiration. The Respondent argues the Court should disregard the paramedics’ testimony, and that the Court should disregard Dr. Schoenfeld’s testimony. However, based on a review of all the evidence, we find Mr. Hester, the paramedics, and Dr. Schoenfeld to be credible witnesses. The Respondent failed to rebut the Claimant's prima facie case. Gordon v. State (1995), 47 111. Ct. Cl. 5.

While the Respondent makes arguments to the Court, the Respondent presented no expert witnesses to support its arguments. Dr. Schoenfeld was a board certified cardiologist who trained technicians in CPR. Respondent’s strategy of not presenting an expert does not serve the Respondent’s cause.

We find that the Respondent was negligent in not initiating the CPR on Mr. Koss, as required by the Respondents own protocol.

Damages

The issue of damages is more difficult. Mr. Koss was a felon and a long-time criminal. The evidence presented to establish damages was minimal. The Claimant relies on the doctrine of substantial pecuniary loss, the loss of society, and the loss of consortium. The Court has reviewed the record carefully and makes the following findings as to damages:

(a) That Arlene Koss, the surviving spouse of the decedent, has suffered a pecuniary loss, for all measures of damages, totaling $65,000;

(b) That Douglas Koss, the surviving son of the decedent, has suffered a pecuniary loss, for all measures of damages, totaling $30,000;

(c) That Alicia Koss, the surviving daughter of the decedent, has suffered a pecuniary loss, for all measures of damages, totaling $30,000.

Prior to entering a final order, the Court requires information on the ages of Douglas Koss and Alicia Koss. The record does not disclose their birth dates. The Court must determine if one or both children have attained the age of 18, so that a direct award can be ordered. If one or both children are not 18 years of age, Claimant will have to establish a guardianship to accept tire award. Therefore, it is hereby ordered that the Claimant shall file a pleading with the Court indicating the birth dates of the two children within 21 days. Upon the filing of the pleading by Claimant, the Court will enter a final order.

The Court would also be remiss if the oral arguments were not mentioned. This was a very close case. The oral arguments before the full Court were very helpful to the Court in deciding this case. While Claimant may not have thought oral arguments worthwhile, the Court was persuaded to find for Claimant based on those arguments.

ORDER

Frederick, J.

This cause comes before the Court on Claimants complaint, and the Claimant having provided the Court with the information requested in the Court’s opinion, and the Court being fully advised in the premises, therefore, it is ordered:

A. That Arlene Koss is awarded $65,000 in full satisfaction of her claim.

R. That Douglas Koss, born June 24, 1980, is awarded $30,000 in full satisfaction of his claim.

C. That Alicia Koss, bom November 23,1981, being 17 years of age, is awarded $30,000 in full satisfaction of her claim. However, the award shall only be paid over to Alicia Koss upon the court being presented with letters of guardianship of the Estate of Alicia Koss, a minor, or, if no letters of guardianship of the estate are forthcoming, then, and in that event, the award shall be paid over to Alicia Koss on, or after, November 23, 1999, without interest, when Alicia Koss attains her majority.


source: Caselaw Access Project

author: Epstein, J.

license: Public Domain

text:
    (No. 90-CC-2878
    John A. Mettes, Special Administrator of the Estate of John E. Mettes, Deceased, Claimant, v. The State of Illinois, Department of Corrections, Respondent.

      Opinion filed May 12, 1999.

    Kevin F. Sullivan, for Claimant.
    Jim Ryan, Attorney General (Suzanne L. Borland, Assistant Attorney General, of counsel), for Respondent.
   OPINION AFTER REMAND

Epstein, J.

This wrongful death claim against the Department of Corrections (“IDOC”) arises out of the suicide of the Claimants father, John E. Mettes, in the Dixon Correctional Center in 1989, and is back before the Court for a final decision, on both liability and damages, following our remand, (order of December 2,1994).

The Remand

We remanded this claim for further proceedings as to both the liability and damages issues. The Court specifically called for further briefing and for additional evidence on the issues of (1) the foreseeability of John Mette’s suicide, and expert testimony, if proffered, to rebut the IDOC’s “psychiatric evaluation” defense as to foreseeability; and (2) damages.

We remanded this claim because of the inadequacy of the record in a difficult suicide case where the trial commissioner had recommended a finding of liability. However, this case came to us on stipulated facts and briefs, but without a trial, and thus, our commissioner’s recommendations carried little weight. We found that the parties, especially the Claimant, did not present an adequate record for a final decision, particularly as to damages. The Court was also reluctant to make a determination on the foreseeability element of the liability issue, in the absence of full expert testimony.

The Proceedings on Remand

With the retirement of Commissioner Parsons, the case was remanded to Commissioner Shadid, who has returned the case to the full Court with his recommendation for a finding of liability. However, despite our remand and comments, no evidentiary hearing was held. By agreement of the parties, the supplemental record on remand consists primarily of the parties’ expert psychiatric reports and a stipulation that adds little to the prior record. On remand, the Claimant has declined the opportunity to present evidence of damages, has waived the supplemental evidentiary hearing that the Court granted him — an extraordinary second bite at the apple to establish his damages — and now relies entirely on the pre-existing inadequate record and the presumption of substantial loss that arises upon the wrongful death of a person. (See, e.g., Ferraro v. Augustine (1985), 45 Ill. App. 2d 295, 196 N.E.2d 16.) Accordingly, we have reviewed the entire record de novo.

The Facts

This claim arises from the suicide death of John E. Mettes (Mettes), who, at the time of death, was an inmate at the Dixon Correctional Center (Dixon) of the Illinois Department of Corrections (“IDOC”). John A. Mettes, son of decedent, is the special administrator of the estate of Mettes, and purses this claim as the named Claimant on behalf of the estate.

The decedent, John E. Mettes, was born on March 22, 1943, and was 46 at the time of his death. Prior to his final incarceration, Mettes had attempted suicide by shooting himself in the head, which caused permanent injuries to his head and face that required extensive physical and medical treatment. His injuries were very noticeable and interfered with his daily activities. It is undisputed that the IDOC was aware of this prior condition; many reports of Mettes’ condition were received by IDOC.

On August 24, 1989, Mettes was remanded to the IDOC after being found guilty but mentally ill (GBMI) of burglary in Peoria County. He was sentenced to a term of four years imprisonment, with day-for-day credit, plus statutory credit of 180 days, plus credit for the time served. At the time of his remission to the IDOC, Mettes was considered a partially disabled adult, based upon his extensive psychological and physical problems, due especially to his self-inflicted cerebral trauma.

Mettes was first assigned to Jacksonville Correctional Center, then transferred to Dixon where he remained until his death. At, and for, some time before his death, Mettes was relegated to the third floor of the health care unit because of his medical/psychological condition. He was closely monitored by Dixon personnel. At Dixon, Mettes was also treated with Prozac, an antidepressant.

On December 4, 1989, Mettes purchased a six-foot electrical extension cord from the Dixon commissary, although he did not possess, nor have access to, any electrical appliances. It was routine for all commissary purchases to be memorialized in writing; however, it appears that the appropriate Dixon personnel were not made aware of Mettes’ purchase. Ten days later, Mettes hung himself with the electrical extension cord in a bathroom stall of his medical unit. The official cause of death was self-inflicted asphyxia due to hanging. John E. Mettes is survived by two children and his mother.

Liability

There is no dispute over the applicable law. As an inmate of a State correctional facility, the Claimant’s decedent was owed a duty of ordinary and reasonable care for his health and safety from IDOC. (Woods v. State (1985), 38 Ill. Ct. Cl. 9; see also Desort v. Village of Hinsdale (1975), 35 Ill. App. 3d 703, 342 N.E.2d 468.) The Court may look to the following factors in deciding to impose such duty in particular circumstances: (1) the foreseeability of the occurrence; (2) the likelihood of the injury to the inmate; (3) the magnitude of the burden of guarding against the injury to the inmate; and (4) the difficulty of guarding against such injury to the inmate.

The Court has no difficulty concluding that the actions of selling Mr. Mettes the electrical cord which became his suicide implement, and then failing to notify any responsible IDOC staff of this highly irregular purchase by an inmate with a known history of self-destructive behavior, was negligent at best.

This takes us to the only serious defense advanced by IDOC: that they cannot be liable because IDOC personnel made a good faith determination, shortly before his death, that Mr. Mettes was not suicidal and not a physical threat to himself and, therefore, it was not reasonably foreseeable to IDOC that he would commit suicide, or that his acquisition of an otherwise purposeless electrical cord could enable his suicide. We reject that defense in this case on the facts presented here.

Although there surely may be circumstances when a good faith prediction of benign behavior is a defense to the “foreseeability” element of this kind of tort claim, the fact that IDOC medical personnel did not predict or expect a suicide does not, by itself, preclude a finding that a reasonable person would anticipate a plausible or substantial risk of self-harm of some kind. The measure of foreseeability is not a matter of likelihood that something will happen, but a reasonable likelihood that something may happen.

Moreover, the Court now has the benefit of both parties’ expert psychiatric testimony in the form of the experts’ reports: Dr. Michael A. Campion’s report (for the Claimant), filed January 19, 1998, and Dr. Anthony T. Schaab, Ph.D. (for the Respondent). Based on those reports, as well as the facts before us, we hold that it was reasonably foreseeable (even if not predicted or even predictable) that Mr. Mettes would harm himself if given the opportunity and means. For the circumstances of this case, prediction or foreseeability of suicide is not the necessary test. Reasonable foreseeability of this inmate’s potential danger to himself — whether suicidal or less than suicidal — was more than enough to put the IDOC on notice to prevent what occurred here or, at the very least, to prevent access to self-destructive implements.

We also observe, in reaching this finding, that the three other factors so often cited in the case law (See Disort, supra) for imposition of a duty of care in particular circumstances, strongly weigh against the Respondent. We find the Respondent hable.

Damages

The much more difficult part of this case is the fixing of damages. Instead of the complete record that the Court had hoped to have in this difficult case, we are confronted with a record that reflects: (1) the decedent was a 46-year-old-man who had apparently been a financial failure; (2) who was survived by two children and his mother; (3) who was physically and mentally impaired, largely at his own hand; and (4).precious little else, including any evidence of his relationship, if any, with his two children or his mother or anyone else. This is due to the Claimants refusal to present evidence, despite two opportunities to do so, the last coming after the unusual step of the Court advising him that the record was deficient as to damages and giving him a second bite at the damages apple.

We are faced with a Claimant who elects not to appear before this Court, despite his own direct knowledge of at least his own relationship or nonrelationship with the decedent, his father, and who, instead of an evidentiary showing, relies entirely on the presumption of substantial damages that the law affords to surviving lineal kin. Claimant is entitled to do so, but in the context of the limited facts before us and the procedural posture of the case when the Claimant last elected not to present evidence, the Court will draw an inference that there is no, or almost no, material evidence in support of damages to present. We thus come to application of the presumption, but we do not apply it in a vacuum. In this case, if not in all cases, we apply the presumption primarily to the non-economic losses of the surviving kin. Particularly in a case like this, where the only evidence, however limited, points to the decedents inability, both historically and in the foreseeable future had he lived, to provide significant support to his family, we would not presume otherwise. But we apply the substantial damages presumption here in the context of a decedent who has not been shown to have had any relationship with the Claimant and those for whom Claimant seeks recovery (through the estate).

After long consideration and careful review of the entirety of this record, as well as a review of the awards given by other Courts in reliance on the presumption (none of which we have found to be close to the facts of this case), the Court has concluded that an award of $30,000 is appropriate to compensate the Claimant and the two other surviving kin.

Conclusion and Award

For all of the foregoing reasons, the Claimant, John A. Mettes, for the estate of John E. Mettes, is awarded the sum of $30,000 in full and complete satisfaction of this claim for the wrongful death of the decedent, John E. Mettes.


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

text:
    (Nos. 91-CC-0101 et al.

    Forms World Stock Products, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed November 6, 1992.

      Order filed July 1, 1998.

    Forms World Stock Products, pro se.

    Jim Ryan, Attorney General (Kelli L. Gidcumb, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, C.J.

These cases come on to be heard on the Respondents motion to dismiss, due notice having been given, no response having been filed, and the Court being advised, finds:

The Claimant, Forms World Stock Products, filed all of these cases seeking payment of interest in various amounts pursuant to the State Prompt Payment Act. (30 ILCS 540/3 — 1 et seq.) Claimant filed standard lapsed appropriation form complaints in each, alleging that demands for payment were made to each agency but refused on the grounds that the funds appropriated for such expenditures had lapsed.

The Respondent moved for dismissal in each of these cases. The Claimant has not responded and the time allowed for response has expired. (We note that an apparent employee of the Claimant wrote a letter to the deputy clerk of the Court of Claims requesting that an “expansion of time” be allowed. However, the request did not state what the “expansion of time” was for, the deputy clerk cannot grant such requests, and over three months have lapsed since the request was made and no responses have been filed.) The motions are now before us for decision.

Identical motions were filed in each case urging dismissal on three grounds. The first argument is that the Claimant failed to exhaust remedies as required by section 790.60 of the Court of Claims Regulations (74 Ill. Adm. Code 790.60), and therefore, the claims are subject to dismissal pursuant to section 790.90 of the Court of Claims Regulations. (74 Ill. Adm. Code 790.90.) Respondent did not state, specifically, what remedy Claimant has which it failed to pursue. Respondent did point out in its motions that the State Prompt Payment Act provides that, where a State official or agency is late in payment of a vendors bill, the vendor must initiate a written request for the interest penalty when such interest is due and payable, and that this request shall include a description of the original transaction, including invoice date, invoice amount, and the date the bill was presented. Respondent did not allege in its motion that the Claimant did not do this, and Claimant filed a verified complaint alleging demand was made. For that reason alone, Respondent cannot prevail on this argument.

Moreover, even if Claimant did not actually make the requests to the agencies, such omissions would not necessarily warrant dismissals of the claims for failure to exhaust remedies. These claims are here because the appropriations have allegedly lapsed. Respondent does not contend in its motions that such is not the case. When the appropriation to pay a bill has lapsed, the vendor no longer has the recourse of obtaining payment directly from the agency. The vendor has to file here.

As Judge Sommer explained in Carol K. Tunk v. State (1987), 40 Ill. Ct. Cl. 1, at 2, “A remedy is a favorable result, not the process or means of seeking a result, or an unsupported theory of action.” Although Tunk was a tort claim, that statement is applicable in the case at bar. In Tunk, there were no facts before the Court to indicate that a favorable result was possible against a third party, so the motion to dismiss for failure to exhaust remedies was denied. The cases at bar are even stronger. Both the facts and the law indicate a favorable result is impossible.

The second argument is that the written request required under section 3 — 1 of the State Prompt Payment Act (30 ILCS 540/3 — 1) is a necessary prerequisite to bringing suit in this Court. We do not read the State Prompt Payment Act that way. It does not provide that the vendor must make the request to the agency prior to filing in the Court of Claims. It only states that a request must be made. It does not state to whom, or to which agency, the request must be made, nor does it provide time limits within which the request must be made. After the appropriation has lapsed, the Court of Claims is the only agency which can pay the interest, so it is the proper place to entertain the request.

The third argument is that Claimants complaints are deficient because Claimant did not make the allegation in each one that a request to the agency was made pursuant to section 3 — 1 of the Act. This omission, the Respondent argues, renders the complaints defective according to the requirements of section 790.50 of the Court of Claims Regulations (74 Ill. Adm. Code 790.50), which provides that complaints must set forth all appropriate allegations to state the cause of action. The causes of action in these cases are for lapsed appropriations. By correctly completing the form, Claimant has adequately stated its cause of action. Moreover, the letters attached to each complaint provide the details required of the section 3 — 1 request.

In conclusion, there is no legal reason stated in the motions for us to require the Claimant to go through the process of making demands for payment to the agencies after the appropriation has lapsed. However, in reviewing these claims, we do note that, if the allegations are true, the interest appears to have become due and payable, in many instances, long before the appropriation lapsed. Ironically, Claimant has filed all of these claims based on alleged late payments, yet Claimant apparently does not bill the agencies for interest in a timely fashion so as to avoid the necessity of filing these claims. Thus, it would appear that the valuable resources of the Respondent, Respondents counsel, the clerks office, the Court, and the Claimant itself would be saved if demands to the agency were promptly made when the interest became due, and the agency vouchered payments before the appropriation lapsed.

It is hereby ordered that the motion to dismiss is denied.

ORDER

Sommer, C.J.

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

The Court has reviewed the motion and agrees with the Claimant that Respondent has misinterpreted the law and the Claimant is entitled to the full amount claimed. Technically, this claim is not procedurally in the proper posture for a final decision, but we find that it has dragged on too long already.

It is hereby ordered that the Claimant be, and hereby is awarded $516.44, payable from the 065 Fund.


author: Sommer, C.J. Hess, J.

text:
    (No. 91-CC-0233
    Beverly Valluzzi, Special Administrator of the Estate of Gina Valluzzi, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 19, 1998.

      Order on petition for rehearing filed May 14, 1999.

    Neville, Pappas & Mahoney (John M. Steed, of counsel), for Claimant.
    Jim Ryan, Attorney General (Paul Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

Claimants decedent was gravely injured in a collision with a vehicle that was attempting to elude apprehension by the Illinois State Police. Claimants decedent subsequently died as a result of medical complications related to her injuries. The issue presented appears to be one of first impression for this Court: whether, in conducting their pursuit, the State pohce were the proximate cause of the accident and resulting death of Claimant s decedent.

The critical facts concerning the pursuit and eventual accident are undisputed. At approximately 10:30 p.m. on July 12, 1989, Trooper John Cornier was following a green Oldsmobile that was speeding on the Stevenson Expressway. The Oldsmobile was driven by one Anthony Demás. When the trooper activated his lights and siren to pull the Demás vehicle over, Mr. Demás refused to stop and, instead, accelerated in an attempt to elude apprehension. Demás reached speeds of up to 110 m.p.h. on the Stevenson and drove on the shoulder of the expressway in order to pass other traffic. In the course of this attempted escape, Demás began bearing down on another State police squad car that had previously stopped on the shoulder to deal with a different matter. Sensing an impending collision, the second squad car pulled off the shoulder and onto a grassy embankment. This second squad car was driven by Trooper Timothy Zych and was also manned by a second officer, Trooper George Kuzelka. After Trooper Cornier drove by them in pursuit of the Demás vehicle, Troopers Zych and Kuzelka joined the chase.

Demás thereafter abruptly exited the Stevenson at Harlem Avenue, striking the curb and causing his right front tire to blow out. Notwithstanding the loss of the tire, Demás continued racing down Harlem on the rim of the wheel at speeds of up to 65 m.p.h. The troopers attempted a partial “rolling roadblock” to slow the Demás vehicle, but Demás drove into the oncoming traffic lanes so as to remove himself from the partial rolling roadblock. Demás narrowly avoided numerous head-on collisions as he proceeded against the oncoming traffic.

The troopers lost Demás when he turned left onto 39th Street (also known as Pershing Road), because the troopers had to wait for oncoming traffic to clear the intersection. Demás continued speeding down 39th Street until, as he ran a red light at the intersection with Ogden Avenue, Demás collided with the vehicle in which Claimants decedent was a passenger. The driver of that vehicle has no memory of the actual collision. An eyewitness in a nearby vehicle, however, estimated that Demás was driving between 70 and 80 m.p.h. when he collided with the decedents vehicle.

The entire Demás chase, from inception all the way to collision, lasted perhaps five minutes.

Claimant alleges that the troopers were negligent in pursuing, and in continuing to pursue, Demás, that the troopers failed to comply with various Illinois State Police directives and policies governing pursuits, and that the troopers’ actions were the proximate cause of the collision between Demás’ vehicle and the vehicle in which Claimant’s decedent was a passenger.

With respect to the troopers’ operation of their squad cars, section 11 — 205 of the Illinois Vehicle Code (625 ILCS 5/11 — 205) provides, in pertinent part:

“(b) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
(c) The driver of an authorized emergency vehicle may:
1. Park or stand, irrespective of the provisions of this Chapter;
2. Proceed past a red or stop signal or stop sign, but only after slowing down as may be required and necessary for safe operation;
3. Exceed the maximum speed limits so long as he does not endanger life or property;
4. Disregard regulations governing direction of movement or turning in specified directions.
(d) The exceptions herein granted to an authorized emergency vehicle, other than a police vehicle, shall apply only when the vehicle is making use of either an audible signal when in motion or visual signals meeting the requirements of Section 12 — 215 of this Act.
(e) The foregoing provisions do not- relieve the driver of an authorized emergency vehicle from the duty of driving with due regard for the safety of all persons, not do such provisions protect the driver from the consequences of his reckless disregard for the safety of others.” 625 ILCS 5/11 — 205.

Our focus thus turns to the portions of subsection (e) which impose a duty for the troopers to drive with “due regard for the safety of all persons” and which would impose liability for the troopers’ “reckless disregard for the safety of others.” All of the reported Illinois Court decisions we have reviewed utilized a “wilful and wanton” standard in assessing a police officer’s conduct. (See, e.g., Laco v. City of Chicago (1st Dist., 1987), 154 Ill. App. 3d 498, 507 N.E.2d 64; and Breck v. Cortez (2nd Dist., 1986), 141 Ill. App. 3d 351, 490 N.E.2d 88.) However, that standard applies to those cases because the parties defendant are always local officers and their municipalities, both of whom are entitled to special immunities afforded by the Local Governmental and Governmental Employees Tort Immunity Act. (745 ILCS 10/1 — 101 et seq.) No corresponding statutory tort immunity is available at present to the State itself or to the State’s employees, so an ordinary negligence standard applies in relating section 11 — 205 of the Vehicle Code to the troopers’ conduct.

We are not aware of any Illinois case law construing section 11 — 205 in similar circumstances in conjunction with an ordinary negligence standard, so we look to the rulings of other jurisdictions for guidance. In considering an almost identical statutory provision, the Supreme Court of Kansas reviewed decisions from numerous states and held that the duty to drive with “due regard for the safety of all persons” applied only to the police officer’s actual operation of his own vehicle and not to the officer’s decision to pursue or to continue to pursue a law violator:

“If the officer is in compliance with the statute in the operation of his own vehicle, he is entitled to the privileges and immunities afforded by the statute and is not vicariously liable or responsible for the reckless or negligent acts of the law violator he is pursuing. The officer is not the insurer of the fleeing law violator. The officer in such circumstances has breached no duty owed to persons injured by the fleeing violators own negligence or wanton conduct and, accordingly, as a matter of law the officer has not committed a tort upon such injured persons.” Thornton v. Shore (Kan. 1983), 233 Kan. 737, 753, 666 P.2d 655, 668.

We agree with the reasoning of the Kansas Supreme Court and the favorable decisions to which it cites and, thus, adopt the same interpretation of section 11 — 205 of the Illinois Vehicle Code.

Applying the Thornton standard here, we find that there is insufficient evidence to conclude that the troopers’ actual operation of their own vehicles either caused, or materially contributed to, the eventual collision. The troopers’ vehicles themselves never collided with anyone, and they similarly did not drive in such a manner so as to force Demás to either take the ill-fated route or to recklessly speed through the red light in question. All of those poor choices were Demas’ and Demás’ alone.

With respect to the alleged violations of various Illinois State Police directives and policies governing pursuits, we find that, even if one were to assume, arguendo, that the troopers had committed each and every one of the violations, there is insufficient evidence to connect those violations to the eventual collision. For instance, while serious vehicular disaster could easily have struck at any point during the partial “’’rolling roadblock” down Harlem Avenue, no such pile-up actually occurred, and the “rolling roadblock” fortuitously proceeded without incident.

Proximate cause is generally defined as “that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the accident could not have happened.” (Blashfield Automobile Law and Practice, Third Edition, section 53.2.) Here, to argue that the troopers’ technically faulty pursuit caused Demás to continue to speed may be factually true, but it does not follow that the State is, thereby, hable for the results of Demás’ continued speeding:

“It is well known that ‘the wicked flee when no man pursueth.' It is readily deducible that if a suspect is fleeing at high speed to escape a pursuing police car, the suspect will not necessarily reduce speed after disappearing from [the officers] sight over a hill or around a curve, but [that the suspect] will continue at high speed until his escape is assured.” Nevill v. City of Tullahoma (Tenn. 1988), 756 S.W.2d 226, 229, quoting an unpublished previous decision of the Tennessee Court of Appeals in the same litigation.

In other words, the control of preventing the collision here was always solely in Demás’ hands; all he had to do was to obey the law and stop when requested to do so by the troopers. Demás’ failure to do so was a criminal and negligent act, a superseding cause, which absolved the troopers and the State of liability for the harm which Demas eventually caused.

Further, such a result is warranted here as a matter of policy, for a contrary interpretation would oblige troopers in similar situations to always allow suspects to escape, thereby only encouraging their flight into congested areas. The New York Court of Claims long ago analyzed and rejected tire logical absurdity of such a position:

“In the presence of a violation of law it is the officer’s duty to take steps to suppress the offense and apprehend the offender. At its inception the offense being committed was only a traffic infraction. However, it developed, in the opinion of the Court, into reckless driving, a misdemeanor, also into resisting an officer, and other crimes which could be made out of the incident as it developed.
Claimants’ predication of liability on the State is founded on the novel position that the trooper, in attempting to halt one increasing the danger on the highway, did by his attempt alone increase the danger himself. To extend this position to the ultimate would require a police officer to pursue, at an otherwise lawful rate of speed a lawbreaker traveling at an unlawful rate of speed or to ignore him in the first place.
An operator who is speeding, or who is a reckless driver on the highway, would know that all he had to do was to go faster — and under claimants’ theory escape would be possible — there would be no chase. A burglar, bank robber or any other felon could threaten to shoot and under claimants’ theory escape would be possible and arrest avoided. It is fantastic to further expand claimants’ theory — such thinking would place a police officer in the same category as the Marquis of Queensbury in a pier six brawl.” Wrubel v. State (N.Y. Ct. Cl. 1958), 174 N.Y.S.2d 687, 689.

Accordingly, while it is certainly possible for a trooper to be negligent, and to thereby create liability for the State in a pursuit, we find that this Claimant has failed to prove that her decedents injuries were, in fact, causally related to the troopers’ actions here; rather, we find that the sole proximate cause of this accident was the manner in which Mr. Demás conducted himself.

It is therefore ordered that this claim is denied and dismissed with prejudice.

ORDER

Hess, J.

Refore this Court is Claimant’s petition requesting rehearing pursuant to section 790.220 of the Court of Claims Regulations (74 Ill. Adm. Code 790.220). Claimant properly submitted the petition for rehearing according to section 790.220 and the Court, having an opportunity to review the record available for review as outlined by section 790.220, has reached a decision.

Claimant alleges in its petition that the earlier opinion, filed on November 19, 1998, was “a product of inappropriate and nonjudicious selective fact-finding, in order to prejudice the meritorious claim filed, and proven, by Petitioner.” (Petitioner’s brief at page 5-6.) Allegations of inappropriate and nonjudicious decision making are taken seriously by this Court. However, the rule of law expressed in precedent is of utmost importance. The factual situation and the interpretation that Claimant wishes to spin simply do not fit within the rule of law at this time. Claimants brief wholly fails to convince this Court that her approach is appropriate or judicious.

In her brief, Claimant first addresses liability. In a little over a page Claimant cites to five separate cases which she has not analyzed. Rather, Claimant makes unsupported statements of the law, which she evidently would have this Court apply without considering the actual case. Perrine v. Charles T. Bisch & Sons (1952), 346 Ill. App. 321, 105 N.E.2d 543, is a case in which the plaintiff was a passenger in the emergency vehicle which crashed. City of Kankakee v. Vreeman (1988), 177 Ill. App. 3d 835, 532 N.E.2d 1058, 127 Ill. Dec. 229, presented a case in which the traffic accident which was the subject of the lawsuit occurred between a police car and the defendant. Kirshenbaum v. City of Chicago (1976), 43 Ill. App. 3d 529, 357 N.E.2d 571, Koepp v. State (1993), 46 Ill. Ct. Cl. 344 and Baumann v. State (1981), 34 111. Ct. Cl. 140 all presented situations where the police car crashed into the plaintiff after running through a traffic signal without the siren activated.

Here, the pursued perpetrator caused the Claimants injury. The Illinois State Police were in pursuit of the perpetrator, as is their duty. Claimant’s argument that the State should be held liable for the acts of a private citizen who is breaking the law is disingenuous at best. In this Court’s earlier opinion, it cited the only other decision which was factually on point. We adopted the rule laid down by the Kansas Supreme Court:

“The officer in such circumstances has breached no duty owed to persons injured by the fleeing violator’s own negligence or wanton conduct and, accordingly, as a matter of law the officer has not committed a tort upon such injured persons.” Thornton v. Shore (Kan. 1983), 233 Kan. 737, 753, 666 P.2d 655, 668.

The evidence presented throughout these proceedings indicated that the deceased was struck by the fleeing perpetrator, not by the police officer.

If the Claimant feels that this finding was reached due to “selective fact-finding” (Claimants brief, at page 6), evidence supporting this accusation should have been presented to the Court. Claimant has not presented any evidence supporting this empty accusation. Claimants tactic was apparently to accuse the Court of neglecting to perform its duty, while failing to support her own position with authority and reason. The cited authorities simply did not apply to the instant factual circumstance.

Therefore, Claimants petition requesting rehearing pursuant to section 790.220 is hereby granted and Claimants rehearing is hereby denied with prejudice. It is hereby ordered.


author: Sommer, C.J.

text:
    (No. 91-CC-0273
    Brian Vandenbush, Claimant, v. The State of Illinois, Respondent.

      Order filed March 8, 1996.

    Rosenberg & Rosenberg (Michael A. Kaczmarek, of counsel), for Claimant.
    Jim Ryan, Attorney General (Cynthia J. Wood, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Sommer, C.J.

This cause coming to be heard on the motion of the Respondent to dismiss the claim herein, due notice having been given the parties hereto, and this Court being fully advised in the premises, finds that the instant claim for negligence originally was filed on August 6, 1990. The claim arises from a motor vehicle accident which occurred in Rockford, Illinois, on August 4, 1989, at approximately 9:00 p.m. The Claimant was driving northbound on Highway 251 (North Second Street) and was at, or near, Ethel Avenue when his vehicle stalled in some water. Shortly thereafter, his stalled vehicle was struck by a vehicle operated by Jan Piper.

The complaint has been amended twice, with the second amended complaint filed by an order of this Court, dated August 16,1995.

There are six allegations of negligence made under paragraph five of the second amended complaint.

The Respondents motion to dismiss, filed before the second amended complaint, lists only three allegations of negligence, which were taken from the Claimants first amended complaint.

Allegations 5 d, e and f of the Claimants second amended complaint, which are subject to the motion to dismiss, allege negligence in the highway design at the site of the accident, to-wit: (The Respondent)

“(d) Carelessly and negligently designed and constructed Highway 251, . North Second Street;
(e) Carelessly and negligently designed and constructed said highway without proper drainage of said highway;
(f) Carelessly and negligently located said highway at the base of a large hill without sufficient sewer for draining water likely to accumulate in that location.”

Highway 251 was constructed in 1933 and reconstruction was completed in 1971.

Section 13- — 214 of the Illinois Code of Civil Procedure (735 ILCS 5/13 — 214) provides:

“Construction — Design Management and Supervision
5/13 — 214. Construction — Design management and supervision. As used in this Section person' means any individual, any business or legal entity, or any body politic.
(a) Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 4 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission.
(b) No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission. However, any person who discovers such act or omission prior to expiration of 10 years from the time of such act or omission shall in no event have less than 4 years to bring an action as provided in subsection (a) of this Section ” “ “.”

Since the instant claim was filed more than 10 years after the Illinois Department of Transportations reconstruction of Highway 251 (North Second Street) in 1971, we hold that the Claimants allegations concerning the Respondents design and construction thereof are barred by the above statute. McAllister v. State (1994), 46 Ill. Ct. Cl. 76.

As to the issue of exhaustion of remedies, the Claimants attorney has stated under oath that he failed to locate Jan Piper in order to serve her. The Claimant hired a private detective, checked telephone numbers, contacted Jan Pipers mother, checked with the Secretary of State, all to no avail.

We find that the Claimant has exhausted his remedies against Jan Piper by making every reasonable effort to discover her whereabouts and have her served. Tunk v. State (1987), 40 Ill. Ct. Cl. 1.

It is therefore, ordered that paragraphs 5 d, e and f are stricken from the Claimants second amended complaint; however, as no motion was made as to the allegations of paragraphs 5 a, b and c, we will not dismiss such, even though the Claimant has replied as if such a motion has been made.


author: Hess, J. Hess, J. Hess, J.

text:
    (No. 91-CC-0928
    Anthony C. Wilkerson, Claimant, v. The State of Illinois, Respondent.

      Order filed October 5, 1998.

      Order on motion for rehearing filed February 16, 1999.

      Order filed February 16, 1999.

    Anthony C. Wilkerson, pro se.

    Jim Ryan, Attorney General (Karen McNaught, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Hess, J.

Claimant, an inmate with the Illinois Department of Corrections, seeks damage from Respondent, State of Illinois, in the amount of $1,241.49. This claim for damages is based on allegations that Respondent was responsible for Claimants loss of personal property that was valued at $1,241.49

Claimant alleges that on December 1, 1989, he was transferred from the F-cellhouse at Stateville Correctional Center to the segregation unit at Stateville Correctional Center. Claimant was unable to take his personal belongings with him as a result of this move. However, an unknown guard or guards did pack Claimants personal property and move it to the segregation unit.

Claimant refused to testify upon hearing; rather, he alluded to the statements in his “papers” (TR-3). Throughout the entire proceeding, Claimant was unresponsive and argumentative. Claimant made no attempt to introduce evidence during the proceeding which would tend to show that his property entered into the voluntary and exclusive control of the State of Illinois.

This Court, in Doubling v. State (1976), 32 Ill. Ct. Cl. 1, established factors which a Claimant must prove by a preponderance of the evidence to establish a valid claim against the State. The Claimant must prove “by a preponderance of the evidence that the property described in the complaint was in fact delivered to an agent of Respondent; that it was not returned to Claimant; that Respondent did not utilize reasonable care to insure its return; and the value of the property allegedly lost.” (Id at 2.) This standard was further refined by this Court in Woods v. State (1989), 42 Ill. Ct. Cl. 211, where it was stated that the Claimants property must come into the exclusive control of the State. Furthermore, this Court in Woods stated that, once the Claimant has shown his property was delivered to the Respondent, the burden of proof shifts to the State of Illinois, requiring the State to show that its actions reasonably insured the safe return of Claimants property.

In this case, Claimant has utterly failed to offer any evidence which would tend to show that his personal property entered, at any time, into the exclusive control of the State of Illinois. The burden of proof, therefore, does not shift to the Respondent and Claimants claim must fail.

It is therefore ordered that this claim be, and hereby is, denied.

ORDER

Hess, J.

Before this Court is Claimants petition for leave to file petition for rehearing and memorandum and petition for rehearing and memorandum of law. The Court, being fully advised in the premises, states as follows:

Claimant is a prisoner in the Illinois Department of Corrections. He is currently incarcerated in the Pontiac Correctional Center. The underlying claim presented by Claimant is that, during a transfer from the general population to the segregation unit at the Stateville Correctional Center, certain items of Claimants property were lost. Claimant has contended that these items were in the possession of the Department of Corrections. Therefore, he argues that he should be reimbursed for their value. However, in an order dated October 5, 1998, this Court denied the motion, based upon its finding that the Claimant had not shown the property passed into the exclusive control of the Department of Corrections as required. Doubling v. State (1976), 32 Ill. Ct. Cl. 1; Woods v. State (1989), 42 Ill. Ct. Cl. 211.

The Claimant has filed petition for leave along with a petition for rehearing and memorandum. As the Court does not find sufficient basis in the petition for leave, the petition for rehearing and the memorandum of law will not be addressed at this time. Claimant’s petition for leave is a three-paragraph pleading within which the Claimant sets forth more than 70 citations from the Supreme Court Rules, Illinois Code of Civil Procedure and the Illinois Court of Claims Act.

Among these citations is a cite to Supreme Court Rule 351, which provides for the sequence and manner of calling cases for oral argument and Supreme Court Rule 306, which provides for the appeal for orders of the circuit court granting new trials and granting or denying certain motions. Claimant then proceeds to cite from the Illinois Code of Civil Procedure. (735 ILCS 5/1 — 101 et seq.) Among the cites offered as justification for his petition for leave are 735 ILCS 5/2 — 611, a section of the Code which was repealed by PA. 86 — 1156, effective August 10, 1990, and 735 ILCS 1002A. Claimant continues to cite extraneous rules from the Court of Claims Regulations such as section 790.210 (74 Ill. Adm. Code 790.210), which provides for an oral argument on the case.

Claimant properly filed the petition for leave of court to file1 his petition for rehearing. Leave of court is required in this matter because the petition for rehearing filed by Claimant has been filed out of time. The Court’s order was entered on October 5, 1998, and Claimant did not file the petition for leave along with the petition for rehearing until January 4, 1999. Section 790.220 of the Court of Claims Regulations (74 Ill. Adm. Code 790.220) provides, “A party desiring a rehearing in any case shall, within 30 days after the filing of the opinion, file with the Clerk 6 copies of his petition for rehearing.” However, Claimant waited for nearly 90 days before filing his petition for leave. Had Claimant outlined a reason for his failure to file within 30 days of the entry of this Courts order in his petition for leave, rather than merely citing to over 70 unrelated provisions of the Supreme Court Rules, Code of Civil Procedure and Court of Claims Regulations, this Court may have been persuaded. However, Claimants failure to explain to this Court why he was 60 days late in the filing of his complaint is unacceptable.

Therefore, for the above stated reasons, the petition for leave to file petition for rehearing is hereby denied.

ORDER

Hess, J.

This matter is before the Court on Claimants motion for leave to file amended complaint. The Court being fully advised in the premises states as follows:

Claimants original complaint in this matter was dismissed by this Court on October 5, 1998. Claimant now wishes to file what he has styled an amended complaint, but which amounts to a reinstatement of the action. This Court dismissed the original complaint on the merits, as he was unable to meet all of the requirements necessary. The requirements which a Claimant must show are as follows:

This Court, in Doubling v. State (1976), 32 Ill. Ct. Cl. 1, established factors which a Claimant must prove by a preponderance of the evidence to establish a valid claim against the State. The Claimant must prove “by a preponderance of the evidence that the property described in the complaint was in fact delivered to an agent of Respondent; that it was not returned to Claimant; that Respondent did not utilize reasonable care to insure its return; and the value of the property allegedly lost.” (Id. at 2.) This standard was further refined by this Court in Woods v. State (1989), 42 Ill. Ct. Cl. 211, where it was stated that the Claimants property must come into the exclusive control of the State. Furthermore, this Court in Woods stated that, once the Claimant has shown his property was delivered to the Respondent, the burden of proof shifts to the State of Illinois, requiring the State to show that its actions reasonably insured the safe return of Claimants property.

Therefore, Claimant’s petition for leave to file an amended complaint is hereby denied.


author: JANN, J. Jann, J.

text:
    (No. 91-CC-1082
    McKinley Dennis, Claimant, v. The State of Illinois, Department of Transportation, Respondent.

      Opinion filed June 29, 1998.

      Order filed October 15, 1998.

    Karlin & Fisher (Charles V. Falkenberg III, of counsel), for Claimant.
    Jim Ryan, Attorney General (Vanessa V. Clohessy, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

This matter comes before this Court on Claimant McKinley Dennis’ complaint against Respondent, State of Illinois, Department of Transportation. The complaint alleges a breach of Respondent’s duty to maintain its roadways, and seeks damages for resulting personal injuries suffered by Claimant in the amount of $100,000.

On July 15, 1989, Claimant, McKinley Dennis was injured when his motorcycle slid out from under-him as he encountered gravel in the roadway on the ramp leading from northwest-bound 1-55, leading to 1-294 northbound. He testified that, as he exited the highway, he reduced his speed to 25 to 30 m.p.h. The speed limit on the ramp was 20 m.p.h. As he executed the first turn on the ramp, his motorcycle slid on loose gravel in the roadway. He described the gravel as a small, dark, pebbly substance. Claimant was removed from the scene of the incident on a stretcher with a neckbrace and IV, and transported to the hospital.

The parties stipulated that all the medical records would be admitted into evidence, and that all the injuries and treatments referred to in the records were related to the subject accident. The medical bills, as contained in Claimant’s exhibit no. 3, totaled $5,226.10.

Claimant testified that, as a result of the accident, he suffered excruciating pain in his left shoulder, right thumb, fingers, leg and arm. Claimants shoulder and thumb bones were displaced and were reset. Surgery was performed on his thumb to remove bone chips, and to wire the thumb bone together. A cast was applied to his hand, and his arm and shoulder were in a harness for five weeks. Claimant underwent rehabilitative therapy for seven months.

Claimants physician ordered him off work from July 17, 1989, to March 26, 1990. Claimant made one unsuccessful attempt to return to work, in December of 1989, for three days. Claimant calculated his lost wages at $17,837.75. Claimant also testified to a permanent scar on his thumb, and that he continues to feel pain in his thumb and shoulder, and experiences restricted motion in his shoulder.

The Respondent, State of Illinois, admitted that the location of the accident was under the jurisdiction of the State of Illinois, Department of Transportation. (Claimants exhibit no. 13). Further, Respondent acknowledged that there were no permits by outside agencies to do work in the subject area for the two weeks prior to this incident.

Claimant’s witness, Edward Alexander, a motorcyclist traveling behind McKinley Dennis, testified that he observed gravel scattered across the roadway. (Alexander is Mr. Dennis’ friend of some 15 years). He testified that Claimant’s motorcycle slid on the gravel. Alexander described the gravel as “little black rocky gravel that they patch holes with.” From a photo taken a few days after the accident, Alexander identified dark rocks on the shoulder as having been in the roadway at the time of the accident. (Claimant’s exhibit no. 4). He identified the area along the edge of the roadway as a patched pothole.

Illinois State Trooper Greg Anderson testified that motorcycles are legally entitled to operate on the subject roadway. Upon investigation of the accident scene, Anderson observed loose gravel in the roadway and identified it as a “road defect” in his report. He also noted “drivers distractions and attention” as contributory causes of the accident. Trooper Anderson concluded that the loose gravel in the roadway contributed to the accident.

Claimant called IDOT engineering technician, Ken Chlebecki, as an adverse witness. Chlebecki acknowledged IDOTs jurisdiction over the subject roadway and responsibility for pothole filling and stone spreading.

Chlebecki testified that, during the summer months, black asphalt material was used to fill potholes. On July 3, 1989, a State crew had been assigned to the subject ramp, putting down five tons of gravel on the shoulder. (Claimants exhibit no. 9). In addition, the crew spent two hours filling potholes, but the records are ambiguous as to the specific location of the pothole repair. On June 26, 1989, two hours of pothole repairs were done on the subject ramp, and the crew put down one ton of patching material. On June 23, 1989, an IDOT crew patched the ramp for four hours and put down 1.5 tons of asphalt material.

Chlebecki acknowledged Respondents responsibility to clean and clear the roadway immediately following maintenance, to insure a safe roadway for the traveling public. In his department report, Chlebecki stated that the asphalt could have been dropped by any truck using the ramp. He testified that, barring an accident, only about one-half a shovel full of gravel should spill on the road during the process of patching a pothole. He testified that IDOT foremen would travel the roadway more than once a week looking for hazards and that, if noticed, they would be rectified.

Referring to Claimants photo exhibit no. 4, Chlebecki did not believe the darkened area adjacent to the roadway where the accident took place was a patched pothole. He testified that the “dark spot” is not the shape which potholes usually form, and that it would not be a typical location for a pothole.

IDOT employee Lawrence Rizzo worked on a crew engaged in pothole repairs. Rizzo examined the photographs of the scene and testified that the work area adjacent to the roadway appeared to be a recent pothole repair, and that the stones scattered to the right of the pothole appeared to be excess from the repair. (Claimants exhibit no. 4). He further stated that an IDOT crew would be responsible to remove loose stones following a repair.

The Law

The law clearly imposes a duty on the Respondent to maintain its streets and highways in a reasonably safe condition for the purposes for which they are intended. (Blair v. State (1994), 47 Ill. Ct. Cl. 108, 110.) However, the State is not the insurer of its highways. (Scroggins v. State (1991), 43 Ill. Ct. Cl. 225, 226.) The mere presence of a defect in the road does not constitute negligence on the part of the State. See Palmer v. Northern Illinois University (1964), 25 Ill. Ct. Cl. 1.

Claimant bears the burden of proving negligence by establishing that the State had actual or constructive notice of a defect which proximately caused the Claimants injury. (Cotner v. State (1987), 40 Ill. Ct. Cl. 71, 72.) Claimant must prove by a preponderance of the evidence that a dangerous condition existed and that the State knew of the condition. Scarzone v. State (1990), 43 Ill. Ct. Cl. 207.

The Respondent does not dispute the fact that, on July 15,1989, Claimant encountered gravel in the roadway, fell from his motorcycle, and sustained injuries. Respondent admitted their maintenance responsibilities for the subject ramp and acknowledged the potential danger posed by gravel on the roadway.

Therefore, the preliminary issue for the Courts consideration is whether the State had actual or constructive notice of the roadway defect.

Respondent argues that the Claimant has failed to establish actual or constructive notice. Claimant argues that, where the Respondent created the dangerous condition, it cannot use lack of notice as a shield against liability. In support of his position, Claimant cites Donahoe v. O’Connell's, Inc., 13 Ill. 2d 113, 118. In Donahoe, plaintiff slipped and fell on an onion ring on defendants restaurant floor. The Illinois Supreme Court held that, “Where the foreign substance is on the premises due to the negligence of the proprietor or his servants, it is not necessary to establish their knowledge, actual or constructive.” Donahoe v. O’Connell’s, Inc. at 118.

If the Court adopts the finding in Donahoe, the matter becomes a question of fact as to whether the Respondent created or caused the dangerous condition.

The undisputed testimony of Claimant, witness Alexander and Trooper Anderson established that there were black asphalt stones in the roadway on the date of the accident. The stones were consistently described as the type that are used to fill and repair potholes. The Respondents records and the testimony of IDOT employees established that pothole repairs had been performed on and near the subject ramp on June 23, June 26, and July 3, all preceding the July 15, 1989, incident. Although the exact location of the pothole repairs could not be conclusively determined, IDOT employee Rizzo testified that it appeared from a photograph that a pothole adjacent to where the accident took place had been recently filled prior to the accident. Further, the Respondent acknowledges that it was solely responsible for maintaining the roadway, and that no outside contracts for repair existed at that time. However, the stones used for repair were light, not dark, in color.

The Respondent argues that the asphalt material could have been dropped by any vehicle using the roadway. Some 12 days passed from the last repair work before the accident on a heavily traveled roadway ramp, without evidence of any other accidents.

The Claimant was unable to establish, by direct evidence, that the State vehicle or workers dropped the asphalt and failed to clean it from the roadway. However, the Illinois Supreme Court has ruled that negligence may be established by direct or circumstantial evidence. Mort v. Walter (1983), 98 Ill. 2d 391.

The Donahoe case is not controlling herein. The substantial difference in direct control and supervision of premises by the proprietor of a restaurant, and the State, as maintainer of an interstate highway system, make application of the Donahoe ruling inapposite. Claimant “suggests” that the State created the hazard complained of, but ignores the fact that, in Mort, a witness testified that IDOT actually spilled the gravel which caused a similar accident. Claimant further argued that Respondent failed to provide proof of another explanation for the existence of gravel on the ramp. Claimant bears the burden of proving Respondents negligence by a preponderance of the evidence. Part of said burden is to prove the existence of a defect for a period of time which would impute notice to Respondent in a case relying upon circumstantial evidence of notice. See Wagner v. State (1978), 32 Ill. Ct. Cl. 50; Immordino v. State (1995), 47 Ill. Ct. Cl. 78; and Baker v. State (1989), 42 Ill. Ct. Cl. 110.

We find Claimant has failed to prove that Respondent caused the condition complained of and that Respondent had notice of said condition.

This cause is hereby denied and dismissed with prejudice.

ORDER

Jann, J.

This cause comes on to be heard on Petitioners request for reconsideration of the Courts denial of his claim by opinion, entered June 29,1998.

Petitioner asserts that the Court misapprehended the weight of circumstantial evidence introduced by Petitioner as to the alleged creation of a hazardous roadway condition by Respondent. We have carefully considered the Petitioners request and the record herein.

We hereby find:

Petitioner essentially asserts that repetition of circumstantial evidence by several witnesses implies that added weight be given said evidence, and that the burden of proof is then shifted to Respondent to prove said inference untrue. While this proposition may apply to a hypothetical case and fact scenario, we reject its application to the facts herein.

Petitioner asks us to find that Respondent caused the condition complained of, via circumstantial evidence, and to further find that no notice is necessary, as Respondent caused said condition. We can find no case law directly on point to support such a proposition. The cases cited by Petitioner are clearly distinguishable, based on facts of record herein.

Review of our opinion denying this claim indicates that several clarifications are necessary to definitively state the basis of our findings, and the analysis of evidence of record.

It is undisputed that: Claimant suffered injuries as a result of a motorcycle accident on a ramp leading from Interstate 55 to Interstate 294; Respondent has maintenance responsibility for said ramp; and that Respondent made pothole repairs in the general area of the accident over about a two-week period, approximately two weeks prior to the accident.

The specific facts and testimony of various witnesses are contested. The testimony of State Trooper Anderson, Ken Cheblecki, and Lawrence Rizzo are relied upon by both parties for opposing theories. The evidence as a whole indicated that it was generally agreed that the “gravel,” or debris complained of, was consistent with that used by IDOT to patch potholes. Testimony further indicated that Petitioners photos of the accident scene, taken several days after the incident, depicted a darkened patch at the edge of the traffic lane which extended into the shoulder, which was generally described as consistent in appearance with a road patch. The photos do not show stones on the lane of travel, and there are lighter and darker stones near the “patch.”

Claimant and his riding companion asserted that gravel covered the breadth of the ramp. Claimant also alleged that there was a large groove, about 10 to 15 feet long and eight inches wide, in the center of the roadway. These facts were not supported and were directly rebutted.

There was testimony from Trooper Anderson and IDOT employees, Rizzo and Cheblecki, all of whom had long experience of 10-to 32 years in patching and maintenance, as to normal IDOT patching operations. All agreed that small amounts of gravel may be present after such repairs, but the amount at the accident scene was not in keeping with an IDOT repair. Evidence was also offered that most of the repairs by IDOT were 500 to 600 feet from the accident scene, with white stone (repairs on July 3, 1989, could not be pinpointed as to location.) No evidence was offered to indicate that IDOT failed to follow established department procedures for inspection and repair of the roadway. The record indicates the contrary, in that repairs were done on three occasions in a period of less than one month, and no roadway defects were noted by Trooper Anderson or Dennis’ riding companion on the day of the accident. There were also no reported complaints of defects on the ramp in the months of June or July, per IDOT records.

Respondent’s witnesses Anderson, Rizzo, and Cheblecki all testified that the ramp in question is heavily traveled, and that, in their experience, privately owned trucks hauling stone spill some of their loads on a fairly regular basis. Trooper Anderson stated that he has observed, and routinely reports, such spillage to IDOT as part of his duties. While Claimant has argued that the circumstantial evidence presented herein is sufficient to impute both causation and notice, we must respectfully disagree. Evidence implied by inference is generally weighed against other probable inferences to establish reasonableness.

There is a general evidentiary rule against inferences of ultimate fact (i.e. causation) based upon inferences, lacking establishment of the first inference by a fact scenario and record supporting a finding that no other reasonable theory could prevail. The seminal rule first adduced in criminal case law required the exclusion of all other reasonable inferences to infer an ultimate fact. This rule was, and is, applied to civil cases with varying degrees of elasticity, based upon the unique facts of a given case. Inference, in current application, focuses upon a test of likelihood of the allegation in excess of probability or preponderance, and is often described as “substantial” or “reasonable certainty.” See, Evidence, Text, Rules, Illustration of Problems, Graham National Institute for Trial Advocacy; and Black’s Law Dictionary.

Herein, the test is as to the substantial likelihood of the premise that IDOT dropped the gravel at the locus complained of. We agree that the evidence supports the probability of IDOT having dropped some gravel or fill material on the ramp at some time prior to the incident. However, no presumption is legally mandated, and IDOT’s lack of singular use, or control of, the area in question, and the time passing between the last repairs and Claimant’s accident on a heavily traveled roadway used by other stone haulers, negates a finding that IDOT was, more probably than not, the source of the gravel at issue. Ergo, we cannot reach the first inference, that Respondent caused the gravel to be at the site.

Lacking said inference of causation, Claimant must then prove that Respondent knew, or should have known, of the hazard, and did not take steps to remedy the hazard in a reasonable or timely manner. (See Wagner v. State (1978), 32 Ill. Ct. Cl. 50; Baker v. State (1989), 42 Ill. Ct. Cl. 110; and Immordino v. State (1995), 47 Ill. Ct. Cl. 78.) Claimant has not proved notice herein, and Respondent’s witnesses indicated regular inspection and maintenance by IDOT and the absence of complaints or other accidents for the site in question within at least four weeks of the Claimant’s accident. Additionally, the Claimant’s photos of the scene, taken two days after the incident, indicated no gravel in the lanes of travel and very little on the shoulder adjacent thereto, supporting the premise that IDOTs maintenance was diligent in routinely clearing debris.

Claimants petition asserts that our ruling would require witnesses to testify they actually saw the debris fall from an IDOT truck or shovel to prevail. This is not the standard required, as discussed previously. However, to infer both causation and notice, Claimant must provide more convincing evidence of the Respondents causation of the alleged hazard, and evidence of failure to maintain or correct said hazard within a reasonable time. (See Wilson v. State (1994), 46 Ill. Ct. Cl. 20, 22, wherein the Court imputed constructive notice and discussed similar cases; and Wall v. State (1990), 45 Ill. Ct. Cl. 206, 213, finding that Respondents negligence as to cause may not be predicated upon surmise or conjecture.)

This cause is hereby denied on reconsideration and dismissed with prejudice.