author: Raucci, J.

text:
    (No. 87-CC-2077
    John Ratcliff, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 22, 1995.

    Stephen J. McMullen, for Claimant.
    Jim Ryan, Attorney General (Andrew N. Levine, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

This cause comes before the Court on Claimant John Ratcliff’s complaint alleging negligence against the Respondent State of Illinois. The claim arises out of an incident occurring on September 16, 1986, when Claimant was struck by a basketball backboard and hoop while incarcerated at Joliet Correctional Center (hereinafter “JCC”). The hearing was conducted on May 17, 1994. Claimant testified and offered four exhibits into evidence, which were admitted into the record. Respondent presented one witness, Bruce Burger, and no exhibits.

John Ratcliff testified on his own behalf. On September 16, 1986, he was in the yard playing basketball and was injured by the backboard. He was waiting for a rebound and the backboard fell on top of his head and hand knocking him unconscious. He did not touch the backboard or hoop before it fell.

His hand and head bled. He has a scar on his left hand, several scars on his head and on his right knee. He had pain in his neck, back, head and arms. He was taken to Silver Cross Hospital.

Claimant identified six-page claimants group exhibit no. 1 from Silver Cross Hospital. He received a shot to ease some pain and stitches were placed in his hand, head and knee. X-rays were taken. Claimant was not admitted overnight to the hospital but was treated in the emergency room. Based upon the representation that claimant’s group exhibit no. 1 was being offered only to support the proposition that Claimant was admitted for emergency services at Silver Cross Hospital, it was admitted over objection of Respondent.

The next day he went to the infirmary at JCC because he was experiencing pain and dizziness. He was in the infirmary for a week.

Claimant was released from incarceration on May 25, 1987. He went to Ingalls Memorial Hospital because his left hand was throbbing, his back was hurting and his legs and knees were swelling where he had scars. He received pain pills and they took x-rays. Claimant identified claimant’s group exhibit no. 4 (six pages) as the bill from Ingalls Memorial Hospital. Cl. ex. no. 4 was admitted over objection, to demonstrate that Claimant went for medical treatment the one time at Ingalls.

Claimant continued to experience pain in his neck, arm and hand, even until the present. The injuries left permanent scars on his left hand and forehead.

Upon cross-examination, the Claimant stated that he was at JCC for about one and a half weeks prior to the incident, but it was his first day in the yard. He had finished playing one game, lasting approximately 20 minutes. Prior to the backboard falling, he was standing, shooting and rebounding for approximately five minutes while he waited for the second game. During all this time, he did not notice anything unusual about the backboard. Claimant was not aware of any complaints about the backboard.

Approximately one week after the incident, Claimant was transferred to Stateville Correctional Center. He went to doctors at Stateville three times a week for a period of time that is indiscernible from the record.

Bruce Burger, executive assistant to the warden at JCC, testified on behalf of Respondent. At the time of the incident, he was a correction leisure activities specialist 5 “CLASS V.” He was responsible for providing recreation for the inmate population including non-structured activities referred to as “the yards.” Inmates can play pick-up games of basketball. He supervised seven employees. He and his subordinates spent time in the yards.

Security officers, administrators and inmates would tell him and his subordinates if something was needed. He recalled that the wooden backboards were replaced with metal ones in the late 1970s, or in 1980. Work orders for maintenance and repairs within JCC are disposed of after two years.

He never received any complaints about the basketball hoops on or before September 16,1986.

On cross-examination, Mr. Burger acknowledged that he saw that the backboard was down. The metal backboards had been welded onto their poles.

Claimant argues that Respondent had control of the basketball backboard which fell and injured Claimant and that we are presented with a classic case of res ipsa loquitur. Respondent has not rebutted the presumption and has not introduced evidence that somebody else caused it to fall. Claimant has scars, and experienced pain and suffering. He has a continuing problem of weakness in his arm. He had bills of $49 from Ingalls Memorial Hospital and $40 for physician Ardenas bill.

Respondent asserts that the case comes down to the issue of notice. During Claimants 20-minute game no one noticed anything wrong with the backboard. Mr. Burger was not aware of any complaints about the backboards prior to, or on, the day in question. Respondent argues that there is no liability if the State does not have actual or constructive notice of a defect.

The parties did not cite any cases, or other legal authority, to support their positions.

To prevail on his claim, Claimant must prove by a preponderance of the evidence that the State had a duty to protect Claimant from harm, that the State negligently breached that duty, and that the negligence was the proximate cause of Claimants injury. (Starks v. State (1992), 45 Ill. Ct. Cl. 285.) Although the Court has held that the State owes a duty of protection and must exercise reasonable care toward a prisoner, it is not an insurer of safety of prisoners. Starks, at p. 290.

In Thornton v. State (1993), 45 Ill. Ct. Cl. 272, the Court found that plumbing facilities were under the management of Respondent and that the uncontradicted evidence indicated that Respondent had notice of the defective toilet causing the Claimants injury. The Thornton Court stated that:

“When an injury has been caused by something under the management of the Respondent, and the injury is such that in the ordinary course of events it would not have happened if Respondent had exercised proper care, the accident itself affords reasonable evidence, in the absence of an explanation, that the accident arose from the Respondent’s want of due care.” Thornton, at 275.

The Thornton Court concluded that it was clear that Respondent was aware of the defective condition of the porcelain toilet and made an award.

The doctrine of res ipsa loquitur does not relieve the Claimant of the burden of proving negligence. (Rutledge v. State (1991), 44 Ill. Ct. Cl. 257, 259.) To avail himself of the res ipsa loquitur doctrine, the Claimant must demonstrate that the injury is the kind which does not occur in the absence of negligent acts, was caused by an entity or instrumentality within the exclusive control of the defendant, and was not due to any voluntary act or neglect on the part of Claimant. (Rutledge, at 258-259, citing Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266.) In Rutledge, hot oil emitted from a State chimney landed on Claimants vehicle causing damage. Claimant Starks asserted that the State used a malfunctioning furnace because of incomplete burning of the oil. The Court denied the claim because of lack of evidence presented by Claimant that the State breached a duty, or to support an inference for application of the res ipsa loquitur. Rutledge, at p. 259.

In the case at bar, Claimant has not offered any evidence that the Respondent had actual or constructive notice of a defective or dangerous condition in relation to the backboard. The evidence clearly shows that no one, including Claimant, was aware of a dangerous or defective condition in relation to the backboard. In the event Respondent did not have actual or constructive knowledge of a dangerous or defective condition, it is not liable. Secor v. State (1991), 44 Ill. Ct. Cl. 215.

The doctrine of res ipsa loquitur allows the trier of fact to draw an inference of negligence from circumstantial evidence. It is simply a rule of evidence relating to the sufficiency of plaintiffs proof. It permits, but does not compel, the trier of fact to find that defendant acted negligently. Lynch, 93 Ill. 2d at 273, 443 N.E.2d at 573.

Claimant has not presented sufficient evidence to support a conclusion that the doctrine of res ipsa loquitur should apply to this case. There is no evidence that the entity or instrumentality which caused the injury to Claimant was within the exclusive control of the Respondent. The backboard was not under the Respondents exclusive control because inmates were using it to play basketball and there are potentially numerous events by Claimant or other third parties that may have affected the physical integrity of the backboard.

It is therefore ordered, adjudged and decreed that this claim is dismissed and forever barred.


source: Caselaw Access Project

author: Patchett, J.

license: Public Domain

text:
    (No. 87-CC-2098
    William Ricketts, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 13, 1995.

    G. Edward Moorman, for Claimant.
    Jim Ryan, Attorney General (Nuviah Shirazi, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

William Ricketts, the Claimant, is a licensed plumber. He asserts that he was injured while working as a plumber at the East Moline Correctional Center. Mr. Ricketts was a resident of the Department of Corrections at that time. The accident which he alleges caused his injuries occurred on August 18, 1986. At approximately 11:30 a.m. on that day, Mr. Ricketts was performing plumbing work at the institution. He was instructed by the departments plumber to clear a clogged drain underneath the kitchen area of the facility. Mr. Ricketts was instructed to use a six and one-half foot tall aluminum scaffold that had a platform measuring four by six feet. The scaffold had no railing.

After inserting a device into the pipe, the clog came loose. The clog struck Mr. Ricketts, causing him to either step back or be pushed back off the scaffold. Mr. Ricketts suffered a fracture to the distal portion of his left tibia, or lower left leg near the ankle. After the fall, Mr. Ricketts went back to his room, and then to the infirmary. He was examined by a nurse at the infirmary, and given an ace bandage and oral analgesics. He was told to elevate his leg and put ice on it.

About three hours later, Ricketts was still experiencing pain and returned to the infirmary. He was admitted on this occasion. On August 20, 1986, Ricketts was seen by a physician and then taken to the Illini Hospital in Silvis, Illinois. An x-ray taken there showed that the leg was broken. Mr. Ricketts’ leg was put in a cast. Approximately six weeks later, the cast was removed and Ricketts was given whirlpool treatments. He has not sought medical treatment since. Although it is uncontradicted that the left leg was broken. Ricketts testified that his right leg was injured, and that he suffered and continues to suffer from pain in that leg. He additionally indicated that the pain moved from the leg to the hip.

Ricketts is seeking $10,000 for the nature, extent and duration of the injury, $10,000 for pain and suffering, $15,000 for disability and $5,000 for physical defect. At the hearing of this cause before Commissioner of this Court, Ricketts testified and presented photographs of the scaffolds and pipes in question. He also presented medical records which were submitted into evidence.

The Respondent called the supervisor of maintenance personnel at the East Moline Correctional Center. He testified to the dimensions of scaffolding, and stated that he had no notice of any unsafe condition. He also stated that the scaffold used complied with the Illinois Department of Corrections rules and regulations for safe structural devices to be used by inmates.

On cross-examination, however, the supervisor testified that it was known that the force of fluid or clog from a drain might cause a person to step back or move if struck by the fluid or clog.

The Respondent also called Virginia Dusay, a registered nurse with the correctional center. She testified as to the treatment received by Ricketts. Ricketts submitted a memorandum of law subsequent to the trial. The Respondent submitted neither a memorandum nor a brief. Counsel for the Respondent mentioned compliance with Federal OSHA regulations, but did not submit such regulations to the Court.

Ricketts contends that the negligence of the Respondent was the direct and proximate cause of the accident, because the Respondent failed to supervise repairs of the clogged drain, failed to provide a safe place for the Claimant to work, and failed to provide sufficient safety devices to protect the Claimant from injury as a result of the fall. The Respondent submitted three affirmative defenses, claiming in part that either the Claimant was negligent, or contributorily negligent.

It is a matter of law that the State of Illinois owes a duty to inmates of its penal institutions to provide them with safe conditions under which to perform their assigned work. In order to recover in this action, the Claimant bears the burden of proving, by a preponderance of the evidence, that the State breached its duty of care, and that the negligence of the State was the proximate cause of his injury. For the State to breach its duty of care, it must have notice of a dangerous condition prior to the Claimants injury. Reddick v. State (1978), 32 Ill. Ct. Cl. 611.

An inmate of a penal institution is not ordinarily free to refuse to perform tasks assigned to him if he considers the working conditions unsafe. An inmate does not have the liberty of choice available to a person in private industry, and must work under conditions that are assigned to him. Furthermore, Ricketts does not necessarily have to prove that he affirmatively requested that the dangerous condition be remedied, if it can be shown that precautions were inadequate, and the condition was known and recognized by those in charge of safety and supervision. Burns v. State (1982), 35 Ill. Ct. Cl. 782.

Ricketts has shown that the Respondent has breached his duty of care in this case by instructing him to perform work on a scaffold with no railing. The supervisor of maintenance knew that it was likely that a clog in the drain could break free before the Claimant could safely step away, and that being hit by a clog or fluid would cause him to step back on a scaffold that had no railing. Considering that the scaffolding is only four feet wide, it is reasonably foreseeable that this could result in an individual falling from a scaffold.

There is no evidence that the Claimant was negligent in any way. Ricketts, an experienced plumber, testified to the normal procedures for clearing a clogged drain and stated that he followed those procedures. He further testified that normally a drain clog does not become dislodged until the plumber pulls the snake out of the drain, after having stepped out of the way. In this instance, the clog became dislodged unexpectedly soon. There was no evidence that this occurred as the result of any action taken by Ricketts. Ricketts further testified that he felt that if he refused to perform an assigned job, he might be subject to disciplinary action. As is apparent in Burns, cited above, the Claimant does not have to prove that he affirmatively requested that a scaffold with a railing be used, since he has shown that precautions were inadequate, and that the condition was known and recognized by those in charge of safety and supervision.

There is no doubt that the negligence of the Respondent was the proximate cause of this injury. There is some confusion on the part of the Claimant about which leg was broken. This misstatement does cast doubt about the testimony from the Claimant regarding the current problems suffered as a result of the fall. Therefore, we award the Claimant $2,000 for the nature, extent and duration of the injury, and $4,000 for pain and suffering, for a total award of $6,000.


author: Patchett, J. Patchett, J.

text:
    (No. 87-CC-2988
    Frank W. Mack, Individually and as Administrator of the Estate of Judith A. Mack, deceased, Douglas Mack, Kimberly Mack and Ashley Mack, Claimants, v. The State of Illinois, Respondent.

      Opinion filed October 26, 1995.

      Order filed May 13, 1996.

    Ryan & Ryan, for Claimants.
    Jim Ryan, Attorney General (Gregory Abbott, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This claim arose as a result of a traffic accident which occurred on September 5, 1986, on Illinois Route 60. Judith Mack, age 45, was killed when her vehicle collided with a tree. Prior to the collision, Mrs. Macks vehicle had left the highway as she was traveling east on Illinois Route 60 at the overpass for Illinois Tollway Route 294 in Lake County, Illinois. At that location, Illinois Route 60 had two lanes for eastbound traffic as it approached and crossed the overpass of Tollway 294. The posted speed limit was 55 m.p.h. Eastbound traffic traveled on an incline until reaching the crest of the overpass, and it then declined as the road sloped downward. After crossing the overpass, the curb lane ended with the road tapering from right to left, forcing cars to merge from the curb lane into the lane closest to the center of the street. Next to the paved portion of eastbound Route 60, there was a concrete gutter and gravel shoulder which had deteriorated. Large pieces of the concrete gutter were broken up or missing entirely. These conditions created a drop-off from the paved portion of the roadway which varied in height depending on the location.

As Mrs. Mack crossed over the overpass, she was prevented from being able to merge immediately into the center lane of traffic because there was a vehicle close behind her in that lane of traffic. This vehicle was being driven by Antonio Ortiz. Mrs. Macks vehicle partially left the roadway. The evidence appears to be uncontradicted that Mrs. Mack attempted to return to the roadway. As she did so, eyewitness testimony of Ortiz established that her tire struck an area where the gutter was missing. Subsequently, Mrs. Macks vehicle collided with the tree, and she received injuries which caused her death.

The Claimants have urged this Court to find Lability on the part of the State based on several alleged defects in the highway. These included the missing gutter previously referred to; the fact that the taper, or that portion of the roadway in which the two lanes merged into one, was too short; that the speed limit was greater than the States safety standards allowed; and that a warning sign encountered prior to the area in question was turned upside down.

This case involves highly contested facts presented by zealous advocates for both sides, as it should be. However, this Court is required to make certain findings of fact prior to applying the applicable standards of law in order to resolve this claim.

We find that Mrs. Mack did indeed lose control of her car as a result of attempting to return to the roadway. We further find that the loss of control was caused by her tire striking an area where the concrete gutter was entirely missing. We further find that it was probable that the drop-off in that area was six to eight inches. In making these determinations, we give greater credibility to the eyewitnesses than we do to any of the various accident reconstruction experts and police officers who testified but were not actual eyewitnesses.

In addition, we find that the tapered section of the highway was indeed too short, and it was in fact a defect. We further find that the State had constructive notice of both the missing concrete gutter and the problems regarding the taper.

The issues regarding the speed limit and the sign are much more difficult to resolve. Because we have resolved the issues regarding the taper and the missing concrete gutter, we need not resolve the issues of whether the speed limit was excessive; whether the sign was a defect; and if the State had constructive notice of that defect.

We further find that it was entirely reasonable to assume that vehicles would leave the roadway in the area involved due to the fact that two lanes were merging into one, and that the area given to drivers in order to accomplish this merger was insufficient.

This Court has considered numerous claims involving alleged defective shoulders. The great majority of these claims have been denied. The Court thoroughly reviewed the law regarding defective shoulders in Siefert v. State (1989), 42 Ill. Ct. Cl. 8. There, this Court pointed out that, with only one exception, every such claim brought to the Court of Claims prior to Siefert had been denied. The majority of these denied claims were denied on the basis that a simple difference in the level of the shoulder from the roadway would not be considered negligent maintenance or a defect in the highway. In addition, many of these cases considered factual situations in which a driver who had left the roadway was attempting to re-enter the roadway. It should be noted, however, that most of those cases were decided in an era where contributory negligence was an absolute bar to recovery.

In Siefert, we granted an award even though the driver attempted to return his vehicle to the highway in violation of several known safety standards. This is a factually similar situation to the one we face in this claim. We find that Mrs. Macks attempt to return to the highway prior to slowing sufficiently was contributory negligence. We further find the percentage of her comparative fault to be 49 percent. Unlike the earlier cases that this Court has decided in which contributory negligence was a bar, we can apply further standards of law to determine if an award is warranted in this case.

We further find that the defect in this case — a missing section of concrete gutter — is a significantly greater defect than a simple difference in level between a paved highway and a shoulder, whether paved or unpaved. It is reasonable to assume that chunks or sections of missing concrete will cause a significantly greater impact on a vehicle striking it than a simple difference in the level of the roadway. We therefore find that the combination of the insufficient taper and the missing concrete gutter is a defective condition for which the State could be found liable.

In Peterson v. State (1984), 37 Ill. Ct. Cl. 104, this Court considered the effect of comparative fault on an award in the Court of Claims. In that case, the Court established the total damages to be $500,000. The Court further assessed the deceased with 60 percent of the negligence, thereby establishing damages of $200,000. The Court there found that there was only one claim to be decided, unlike the present situation in which we have five distinct claims before the Court. The Court therefore applied the statutory $100,000 limit and awarded that amount.

Mrs. Mack was a 45-year-old homemaker with three children. Her husband and .each of her children have filed a wrongful death claim. Based on the facts before the Court, they have each established damages in the amount of $100,000. The estate of Mrs. Mack has filed a survival action. We find that there was insufficient evidence before this Court to establish conscious pain and suffering by Mrs. Mack after the accident. Therefore, we deny the claim of the estate because the Claimants failed to prove the elements of damage by a preponderance of evidence. We find liability for each of the four individual Claimants on the wrongful death action. We establish damages in the sum of $100,000 each. That results in a total finding of damages in the sum of $400,000. Applying the 49 percent comparative negligence of Mrs. Mack, we reduce that figure by $196,000. We hereby award each of the four Claimants the figure of $51,000 each.

ORDER

Patchett, J.

The Court filed an opinion on October 26, 1995, granting judgment for the Claimants. The Respondent filed a motion to reconsider on November 22, 1995. In the motion the Respondent also asked for additional time to file a brief in support of said motion. The Court has not addressed that request. However, the Court is not convinced that the filing of a brief by the Respondent would be of help in deciding the issues raised by the motion.

The Court has reviewed the file and its opinion carefully. The Court sees no reason to alter its earlier ruling. Therefore, the motion to reconsider is denied.

The Claimant has filed a petition for costs. That petition is denied.

The Claimant has also filed a petition to allow one-third contingency fee plus costs. It appears that the Claimants in this case entered into a contract with their attorneys for a one-third fee. The Court of Claims Act does not normally allow a one-third contingent fee. The Court has considered the amount of work and difficulty involved in this claim. Considering the volume of work and the difficulty involved, the Court is going to allow a one-third contingency fee for three of the Claimants. The evidence, however, clearly established that Kimberly Mack, one of the Claimants who was awarded a judgment, is an incompetent. Since it is unlikely that she knowingly entered into a contract providing for one-third fees, the fees for Kimberly Mack will be set at 25% of the award. Fees for the remaining three Claimants will be set at one-third. The expenses will be allowed to be recovered in an equal amount from each Claimant.


text:
    (No. 88-CC-1961
    Gene Gove, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 22, 1995.

      Order on petition for rehearing filed October 19, 1995.

    Storment & Bates (Paul M. Storment, Jr., of counsel), for Claimant.
    Jim Ryan, Attorney General (Jon McPhee, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

Claimant seeks an award for serious personal injuries sustained as a result of a motorcycle accident. This occurred on Old Route 50 between Summerfield Road and New Route 50 at the intersection of the two roads.

Claimants exhibit 1 attached to the transcript in this case is a drawing of the intersection in question. New Route 50 runs in a generally southeast-northwest direction, and it is intersected by old Route 50 on the south. It is a “T” intersection. As Old Route 50 approaches its intersection with New Route 50, it approaches the intersection from a generally southeasterly direction; however, approximately 1,000 feet from its intersection with New Route 50, Old Route 50 curves to the right and intersects New Route 50 at a right angle. The curve is approximately 1,000 feet from the intersection of the two roads. Claimant was traveling on Old Route 50 approaching the intersection with New Route 50 when the accident occurred. Claimant contends that the Respondent was negligent in not placing or locating signs to adequately protect the safety of persons operating vehicles on Old Route 50 as it approached the “T” intersection. Respondent denies that it was negligent and asserts that there was adequate signing to provide adequate warning. The Respondent maintains that the accident and Claimant’s injuries were proximately caused by Claimant’s negligence.

The Claimant is a middle-aged man who has lived most of his life in the Mascoutah-Scott Field area of Illinois. Claimant is knowledgeable about the operation of motorcycles, and he has had a motorcycle license since he was 16. On the night of the accident, he was operating a 1200 cc. Harley Davidson motorcycle that was in excellent condition. He had a passenger named Debra Frowning who was unavailable for the hearing. The Claimant had previously driven with passengers on long trips.

Prior to the night in question, Claimant had not driven on the road where the accident occurred. The Claimant testified that he had nothing to drink before the accident.

The Claimant was traveling on Old Route 50 toward the intersection and observed a sign indicating a curve to the right and a speed limit of 45 mph. The normal speed limit on the highway was 55 mph. When the Claimant had turned onto Old Route 50, he noticed that it was under some type of construction. Claimant was traveling 40 to 45 mph and was turning to the right as the road turned into a straight stretch. When Claimant first saw the stop sign, he realized he was at the end of the road and grabbed the brakes on the motorcycle. This caused the motorcycle accident. Claimant testified that he did not observe any “Stop Ahead” sign, and he thought as he passed a “Junction 50” sign that the road continued on in a straight direction.

Claimant noticed the stop sign peripherally. Claimant testified that as far as he could remember, he was about 500 feet from the intersection when he first noticed the stop sign. He was traveling 40 to 45 mph, and he testified, # I actually sat up and tried to see farther on the motorcycle seat to determine what reason a "stop’ sign would even be there for.” Claimant looked ahead of himself, “more or less in a strained fashion to try to find the reason for the stop sign.” He further testified, “it only took a couple of seconds to realize that I was simply out of road.” He applied the brakes on his motorcycle in a panic. The wheels on the motorcycle locked and slid, flipping the bike over and pinning Claimants left leg under the motorcycle. The motorcycle came to a stop in the middle of the “T” intersection.

The accident occurred near midnight, and Claimant testified that there was no artificial lighting at the intersection. Claimant stated that it was “very dark.” Trooper Mark Bramlets testimony was admitted by agreement of the parties through a copy of a discovery deposition attached to the transcript in this case. Bramlet was called at 12:33 a.m., and arrived at the scene at 12:55 a.m. (It should be noted that Bramlet reversed the descriptions of the roads as “Old” and “New” Route 50, in comparison with the testimony of other witnesses. This opinion reverses his descriptions for the sake of clarity.) There were several people standing at the intersection, and a motorcycle was lying in the middle of New Highway 50 slightly in the westbound lanes. The trooper did not speak with the Claimant at the scene.

Upon investigation, the trooper found no skid marks on the pavement. Trooper Bramlet interviewed the Claimant at the hospital. Bramlet noted on his report that the Claimant stated that he was unfamiliar with the roadway, and he lost control of his motorcycle as he attempted to stop at the intersection. Bramlet testified that he found no highway defects in the area. The last 1,000 feet or 750 feet of Old Highway 50 was straight and level. Vision of the intersection was obscured until 750 to 1,000 feet from the intersection.

The signing at the intersection in question was designed by Michael A. Kuhn, an employee of the Department of Transportation. Kuhn designed and supervised the installation of all signing at the intersection. Kuhn used the Manual of Uniform Traffic Control Devices and the IDOT policy. Kuhn did not believe that a double arrow sign at the intersection was needed. The original signs at the intersection consisted of a “Stop Ahead,” “Junction 50,” a green board — “Lebanon” to the left, “Carlyle” to the right — and a “Stop” sign with a “Cross Traffic Does Not Stop” underneath it. To the right of the stop sign, there was a U.S. 50 leader with a double arrow underneath it. The Stop Ahead sign was 800 feet from the intersection. The Junction 50 sign was approximately 600 feet from the intersection. The green board sign was 150 to 200 feet from the intersection, and the stop sign was at the intersection.

Most of the testimony in this case involved the necessity or advisability of additional signing, or different signing, at the intersection in question. The expert retained by the Claimant testified that the signing was inadequate and that a double arrow sign was advisable. Approximately three weeks after this accident, Michael Kuhns supervisor instructed him to erect a double arrow sign at the intersection. At the hearing, the supervisor testified that he was simply trying to improve the signing at the intersection. He strenuously asserted that the so-called “double arrow” sign was not required or mandatory under any of IDOTs policies or the Manual of Uniform Traffic Control Devices. The Claimants expert witness had never been responsible for designing the signing on a public road, but claimed to have studied manuals. He also had practical experience while employed as an on-site construction worker.

That expert witness, Robert L. Porter, was a civil and structural engineer. He identified road and sign construction as “an area that I’ve involved my professional work.” Porter denied having been hired by any states to do consulting signing. Porter considered his knowledge pertaining to signing of roads to be expertise “based upon practical knowledge that I obtained as a construction worker, my formal educational training, as well as my assessment of various situations relative to the existing standards of care that are well documented.”

At the request of Claimants counsel, Porter had examined the intersection in question on three occasions, the first being October 24, 1989. Porter had been furnished with, and made summaries of, discovery depositions of the Claimant, Gene Gove, and IDOT employees Michael Kuhn and Russell Rendleman. Porter stated that he had “taken into account the facts that were stated during those depositions.” Porter conducted a night-time inspection of the intersection on November 20, 1989, and conducted a daytime inspection on January 16, 1990, at which time he performed measurements. His measurements were made with a “roller wheel.” Porter examined the large drawing identified and admitted as Claimant’s exhibit #2 and stated that the sign locations were similar to what he found although measurements “may not necessarily be exact.”

Oddly, Porters measurements in connection with the sign locations in the case at bar were made from the intersection of Old Route 50 with the Summerfield Road toward the intersection of Old Route 50 with New Route 50, where the accident occurred. The sequence of signs encountered by Claimant as he approached the intersection where the accident occurred were related by Porter to be as follows:

First, a “Curve” sign with a 45 mph speed limit designation;

Second, a “No Passing Zone” sign on the left hand side of the roadway;

Third, “Stop Ahead” signs on both sides of the roadway;

Fourth, “Junction 50” sign on the right hand side of the road;

Fifth, green board sign with direction arrows to Lebanon and Carlyle;

Sixth, a “Highway 50” sign and a “Stop” sign (TR-126-128). '

Porter recorded the distances from the Summerfield Road on all the signs through the “Junction 50” sign. Although he measured the distances, he did not record his measurements for the distances to the green board-Lebanon-Carlyle sign, or the stop sign. He measured the distance from the green board-Lebanoñ-Carlyle sign to the stop sign, but he did not record the distance. Porter testified that the green board-Lebanon-Carlyle sign was “in front of the stop sign,” and “it (green board-Lebanon-Carlyle sign) is as far as the distance off the roadway.” Porter testified that the green Lebanon-Carlyle sign “does block the stop sign during the progress along the road.” Porter did not measure the distance from the roadway to the Lebanon-Carlyle sign, and he did not measure the distance from the roadway to the stop sign.

Porter testified that as you progress westerly along Old Route 50, you can visualize the stop sign at New Route 50 from approximately 600 feet; yet, Porter did not measure that distance. He computed it on the basis of “some alternate set of numbers that deal with the distances off the New Highway 50 going backwards rather than dealing with thousands of feet.” The Commissioner inquired further of Porters estimation of the distance, and Porter acknowledged that he didn’t use a mechanical measure but was basing the 600 foot quantity on his experience in having ridden on the road and a general idea of where the signs were at a time when he thought that the stop sign first came into vision.

Porter opined that the signing at the time of the accident was not adequate. Further, Porter stated that the “Stop Ahead” signs that had been installed prior to his inspection were ineffective because they were too far away from the intersection. It was also Porter’s opinion that there was a need for a warning sign that shows a “T” intersection. Porter said that the “T” intersection sign should have been placed approximately 400 to 500 feet away from the intersection on the right hand side of the road. Porter opined that the “Stop Ahead” signs should have been placed 450 feet from the intersection. As placed, the “Stop Ahead” signs were 840 feet prior to the intersection. Porter opined that the green board sign should have been located on the opposite side of Highway 50, thus avoiding any obstruction to the stop sign at the intersection. Further, Porter stated in his opinion, a double arrow sign was a “must” at the intersection because of the change of configuration and usage of the road. He observed an “oblique” background behind the intersection. Porter also indicated that barricade slat signage of a candy cane configuration in color should be incorporated with a double arrow sign, and produced photographs of such treatments (see Claimants exhibits 17, 18, and 19). Porter approved of a placement of the “Curve” 45 sign and the “Junction 50” sign as the intersection is approached. He reiterated that when approaching the intersection from the west, as Claimant approached the intersection, one can first see the intersection at a distance approximately 690 feet from the intersection.

Porter acknowledged that the placement of warning signs such as a “T” intersection sign, or the double arrow signs is a function of engineering judgment.

Under questioning by the Commissioner, Porter stated that the Uniform Manual on Signing does not give specific distances or direct applications for the installation of double arrow signs. Further the MUTCD does not require that a double arrow sign be placed at a configuration such as existed at the intersection in question. Porter testified that any “T” intersection sign with a flashing yellow light would not be warranted in this case because of traffic volume and the fact that it was a two-way road; however, Porter stated he had not done any “assertation” of traffic counts at the intersection. Porter was not sure of the speed limit at the location in question because he didn’t “recall seeing signs on Old Highway 50.” Porter admitted that stopping times and distances would be impacted by the speed limit.

Upon questioning by the Commissioner as to special attention relating directly to the signing of vehicular roadways, Porter testified that his original experience was of a practical nature as a construction worker and laborer-foreman. He had poured a lot of concrete. Porter had experience signing a detour around Cleveland, Ohio, but was essentially following the directions of his superiors. Porter testified he had been responsible for signing of county roads relative to construction work that was going on.

The Claimant has cited to the Court Consolidated Freightways v. State (1985), 37 Ill. Ct. Cl. 32. In that case, three of Claimants trucks had, on three different occasions between April 21, 1974, and November 3, 1974, lost control and crashed on the same road at the same place where they encountered a section of highway which was slippery. On each occurrence, each driver was unable to control his truck. Each truck slid from Route 36 and crashed along an area north of the highway. It was shown that the section of highway in question had a strip of tar which, on becoming wet, became extremely slippery. The State had posted no warning signs alerting the motoring public of this condition. The testimony of police officers who investigated the accidents confirmed that the road became very slippery when wet, and that there had been other accidents from the same condition at the same location. Although the State had considerable notice of this hazard, the State had failed to warn the motoring public. An award was allowed.

The Respondent cited to the Court Emm v. State (1965), 25 Ill. Ct. Cl. 213. In Emm, the driver of a vehicle was injured when it ran into a bridge abutment that was under construction. The Court there observed that evidence was undisputed that in the 10.2 miles prior to the construction zone, there were nine warning signs indicating that the road was closed, and also indicating an alternate route. Prior to entering the actual construction zone, there were five roads on which to turn and take an alternate route. The construction zone itself began behind a permanent barricade which extended across the middle of the road and was illuminated by flashing warning lights. The Claimant had gone around the barricade and traveled another 2.8 miles in the construction area. He bypassed two “Bridge Out” warning signs before reaching the scene of the accident. The Court held that there was no liability on the part of the State, and that the accident was the fault of the Claimant.

In Gramlich v. State (1981), 35 Ill. Ct. Cl. 19, the driver of a vehicle collided with, and went through, a guard rail and plunged down a steep embankment after traveling 130 feet in the air. There were no eyewitnesses, but the record indicated that the Claimants had been drinking and the driver was intoxicated. The Claimants contended that the States failure to erect stop or warning signs at the intersection where the accident occurred proved the States negligence. There were no stop or warning signs at the intersection, and there had been no prior accidents. This Court observed that tire record was completely void of any notice to the State that this was a dangerous intersection or that there had been any previous accidents at the intersection. A recovery was denied.

The Claimant admits that he saw the stop sign at the intersection approximately two-thirds of the distance away from the intersection to the “Junction 50” sign (approximately 500 feet). He was traveling at 40 or 45 mph. He did not begin to slow or brake his motorcycle, but instead he “strained” to see why there was a stop sign for a couple of seconds. Upon realizing that the road upon which he was traveling required a stop at an intersection, he panicked and heavily applied his front and back motorcycle brakes. As a result of Claimants application of the brakes on his motorcycle, the motorcycle flipped on top of him.

There is no question that the Claimant sustained severe and disabling injuries with medical bills in excess of $42,000.

The Claimants expert testified that the intersection and stop sign could be seen from 600 feet away. IDOT employee Kuhn testified that the intersection and stop sign could be seen from a distance of 750 feet away. Kuhns supervisor, Rendleman, testified that the intersection and stop sign could be seen from 1,000 feet away. Claimants expert says that stopping distance at 40 to 45 mph is 450 feet under bad conditions and 300 feet under good conditions. Neither Claimant, nor any other witness, testified to facts from which it could in any way be concluded that Claimant could not have seen the stop sign at the intersection in adequate time to bring his motorcycle to a safe stop.

The Claimants expert has opined that the conditions extant at the intersection, in his professional judgment, required additional and different signing, the absence of which created a hazardous condition at the intersection. Clearly, however, Claimants expert bases his opinion on professional judgment and not on the mandates of either IDOT policy or the Manual of Uniform Traffic Control Devices. Expert Porter admits that his suggestions and opinions do not constitute required signing; but instead, the signing and configurations suggested by Porter would have reduced the hazard perceived by Porter to have existed at the intersection.

The issue in this case is not whether additional signing or a different configuration of signs might, or could, have prevented this accident. The question instead is whether the State was negligent in adopting the signing configuration that was present at the date and time of Claimant’s accident, and whether that negligence was the proximate cause of Claimants accident and the injuries and damage sustained by him. We are asked by the Claimant to assume that, if additional signs or a different configuration of signs had been utilized more in keeping with the opinions of expert Porter, the accident would not have happened. This is a great leap supported almost entirely by speculation. In Shirar v. State (1965), 25 Ill. Ct. Cl. 256, there is a statement particularly relevant to the case at hand:

“The Court concludes that it must follow that failure to maintain a sign which was not required to be placed in the first instance, in no way constitutes negligence."

For the reasons stated above, this claim is denied.

ORDER

Patchett, J.

This cause comes before the Court upon the petition for new trial or new hearing filed herein by the Claimant. The Court has carefully reviewed the petition for rehearing. The petition asks for a reversal of the opinion, or for a new trial, on the basis that the original opinion was against the manifest weight of the evidence. There is no new law or cases cited in the petition for rehearing.

The Court carefully considered the evidence and testimony of all the witnesses prior to issuing its original opinion. The Commissioner of this Court who tried this case is in the best position to determine credibility of the witnesses. This Court had reviewed the confidential recommendation of that Commissioner available before issuing its opinion.

There is nothing contained in the petition for rehearing to convince the Court that the original opinion is erroneous either as to facts or as to law. Therefore, the petition for rehearing is denied.


text:
    (No. 88-CC-2023
    Odell Thomas, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 22, 1995.

    Janine L. Hoft, for Claimant.
    Jim Ryan, Attorney General (Anne L. Loevy, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

This matter comes before the Court on the claim by Claimant Odell Thomas alleging that Respondents negligence caused him to suffer injuries. Claimant alleges that on December 22, 1985, while in the custody of the Department of Corrections, he was ordered to move a dryer and washer to clean behind them. After informing Respondents employee of medical problems with his back, Claimant attempted to move the appliances. He fell, hurting his back and head. Claimant seeks $500 for time lost from his prison job, $15,000 to compensate for continuing back pain limiting his future vocational and recreational activities, and $15,000 for bodily pain and mental anguish.

At the trial, Claimant Odell Thomas testified that he is 40 years of age and after release from the Department of Corrections (hereinafter “department”) he became, and still is, employed as a truck driver. He entered the custody of the department in August, 1982. When he entered, he explained that he had a history of back problems. The back problem emanated from a fall down an elevator shaft in 1978.

He continued having back problems from 1982 through December 1985. Each time he was transferred from one institution to another, a medical history was taken and he would explain his back problems. He received five to seven “lay-ins” for his back problem.

On December 22, 1985, Claimant was assigned to Centralia Correctional Center (hereinafter “CCC”). He was assigned the job of porter and his duties were to sweep the unit, keep it clean, dump ashtrays and do the windows. He was a porter for four or five months. He was never asked to move large or heavy objects.

On December 22, 1985, an employee, Lt. Hoepker, came to Claimants cell. He asked Claimant to sweep the day room and clean the tables. Claimant did what Lt. Hoepker requested and returned to his cell. Approximately 30 minutes after returning to his cell, Officer Bassett told Claimant that Lt. Hoepker had instructed him to tell Claimant to move the washer and dryer. Claimant told Officer Bassett that he had a back problem and was not supposed to move anything heavy. Claimant told Officer Bassett that he could call the health care unit and verify Claimants condition. Officer Bassett said he had an order from Lt. Hoepker and Claimant would be written up for refusing it.

Claimant did not want to be written up. He went over to the washer and tilted it towards him. He began to wiggle the washer and to get it out and his back gave out. He got a pop in his back, his back went out and he hit the floor. The washer was on him and he hit his head. After the washer was lifted off of him, Claimant was in severe pain and crying. He was not able to move. The health unit put him on a stretcher. The nurses took him to the health care unit, noticed he had a lot of swelling in his back and called Dr. Shoaff regarding his back. If Claimant informed him of a back problem, Lt. Hoepker would not have called the health care unit to verify it.

Lt. Hoepker believed it was unreasonable to tilt the washer in an attempt to scoot it. He did not tell Claimant how to move the washer. He acknowledged that the end of the wall (across from the washer), depicted in Respondents exhibit no. 4, is six to eight inches short of being flush with the left side of the washer. He did not see Claimant under the washer. When Lt. Hoepker helped the medical staff lift him, Claimant appeared to be in pain.

Both parties indicated that they would waive closing arguments at the hearing and present them in their briefs. Neither party filed a brief.

To prevail on a claim of negligence, Claimant must prove by a preponderance of the evidence that the State had a duty to protect Claimant from harm, that the State negligently breached that duty, and that the negligence was the proximate cause of Claimants injury. (Starks v. State (1992), 45 Ill. Ct. Cl. 285, 290.) The State owes a duty of protection to prisoners, and the State must exercise reasonable care toward the prisoners as the prisoners’ known conditions may require. However, the State is not an insurer of the safety of prisoners under its care. (Starks at p. 290.) In Starks, the Court found that Claimant failed to meet his burden and there was no proof of negligence on the part of the State. Id. at p. 290.

Claimant testified that he told Respondent of a prior back problem when he was first incarcerated. A review of Claimants group exhibit no. 1 indicates references relevant to this case, a few of which are (the page references are to the exhibit):

(a) a physicians examination, dated November 21, 1980, indicates that the spine and musculoskeletal were normal, p. 1;

(b) On January 20, 1981, the x-ray of his lumbar sacral spine indicated that his vertebrae were intact and normal, p. 5;

(c) In late January through February 1981, Claimant apparently complained of severe back pain. p. 6-11;

(d) On June 22, 1984, Dr. Guiterrez concluded that Claimant had no abnormal paraspinal soft tissue shadows or calcifications and there were no fractures or dislocations. There were normal inter-vertebral spaces, p. 41;

(e) A physicians examination, dated December 6, 1983, indicates discomfort in lower spine, p. 42;

(f) A December 2, 1983, medical history indicates back trouble, p. 45;

(g) A January 4, 1984, medical orientation form #1 indicates a back injury in 1978. p. 46;

(h) Complaints of chronic back pain on January 12, 1984. p. 47; and

(i) An August 30, 1984, medical screening at Vienna C.C., indicates complaints of broken back in 1978. p. 49.

There are numerous more indications in Claimants group exhibit no. 1, that Respondent had notice of prior back complaints. However, a review of the exhibit does not reveal that there are any diagnoses by anyone prior to the accident in question of what the specific back problems were.

After the accident, Dr. Wood apparently concluded in his consultation report dated December 23,1985, “that there appears to be a lumbar sprain with secondary dorsal muscle spasm syndrome.” The report also states that there is no sign of a herniated disc. A CAT scan of his spine apparently showed that certain discs were extending to the left.

Claimant testified that Officer Bassett told him to move the washer and dryer and he told Officer Bassett that he had a back problem. There are no witnesses to this conversation. There were no witnesses to the actual incident.

We are not aware of a claim where a prisoner was ordered to perform a task that was allegedly contrary to his known medical condition.

Although the record indicates that Claimant, on numerous occasions, informed the Respondent of prior back problems and of back pain, we find, as we did in Komeshak v. State (1985), 38 Ill. Ct. Cl. 100, that Claimant has not met his burden of proof. We find that Claimant has not shown that Respondent has breached its duty to exercise ordinary and reasonable care. This recommendation is based on Claimant’s testimony. He did not indicate that he requested help in moving the washer. Both witnesses for Respondent indicated that a prisoner could, and does, request help to perform certain tasks from inmates or employees. Claimant did not refute or rebut this testimony. Claimant knew his own condition and, if it was such that he could not move the washer by himself, he should have told Lt. Hoepker or Officer Bassett that he needed help. Claimant was a porter for nearly five months. His cleaning duties required physical activity and Claimant apparently voluntarily performed these duties.

A review of Claimants group exhibit no. 1 does not reveal that Respondent had notice of any specific physical or medical problem that would limit Claimants activities. There apparently was a procedure to be followed in the event a prisoner was to be limited in his physical activity and there is no evidence that there were any known limitations prescribed for the physical activity which Claimant could perform.

Claimant has not met his burden of proof.

It is therefore ordered, adjudged and decreed that this claim is dismissed and forever barred.


author: Frederick, J. Frederick, J.

text:
    (No. 88-CC-3892
    John Reyes, Special Administrator of the Estate of Francis Reyes, Deceased, Claimant, v. The Board of Trustees of the University of Illinois Hospital, Respondent.

      Order filed August 22, 1995.

      Order on petition for rehearing filed January 30, 1996.

    Ashman & Assoc. (David Bagdade, of counsel), for Claimant.
    Kralovec, Marquard, Doyle & Gibbons (James F. Donovan, of counsel), for Respondent.
   ORDER

Frederick, J.

This cause comes before the Court on Respondents motion to dismiss and motion to compel, and the Court having reviewed the pleadings, and the Court being fully advised in the premises, wherefore, the Court finds:

1. That Claimant filed his complaint as special administrator in the Court of Claims on April 25,1988.

2. That on May 2, 1995, this Court entered an order requiring an affidavit be filed pursuant to section 2 — 622 of the Illinois Code of Civil Procedure. 735 ILCS 5/2— 622.

3. That Respondent seeks to depose Claimant, John Reyes, and Claimants expert, Dr. Sam Sugar.

4. That Respondent was not a proper party to the circuit court action entitled, Reyes v. Dr. Juan Garcia, et al., No. 87-L-21119, in the Circuit Court of Cook County, Illinois.

5. That the alleged tortious acts of Respondent occurred, at the latest, on October 7,1985.

6. That the claim was filed more than two years after the alleged negligent act or acts.

7. That the Claimant filed its original claim in the circuit court on October 1, 1987, and named the Respondent as a party in that case.

8. That in the circuit court action, the Respondent, Board of Trustees, filed a motion to dismiss on the grounds that the circuit court lacked subject matter jurisdiction. On April 4, 1988, the circuit court granted the Respondents motion and granted plaintiff leave to refile the case in the Illinois Court of Claims.

9. That, pursuant to section 22(g) of the Court of Claims Act (705 ILCS, 505/22(g)), the statute of limitations in this claim sounding in tort is two years from the date the claim accrues.

10. This claim accrued no later than October 7,1985.

11. Section 13 — 217 of the Code of Civil Procedure is a savings statute intended to extend the period of limitations under certain circumstances. The version of section 13 — 217 in effect at the time of the circuit courts dismissal of the prior litigation read:

“§ 13 — 217. Reversal or dismissal. In the actions specified in Article XIII of tins Act or any other act or contract where the time for commencing an action is limited, if judgment is entered for the plaintiff but reversed on appeal, or if there is a verdict in favor of the plaintiff and, upon a motion in arrest of judgment, the judgment is entered against the plaintiff, or the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff, his or her heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or entered against the plaintiff, or after the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District court for lack of jurisdiction.” 735 ILCS 5/13 — 217.

Thus, the savings statute in effect at that time provided for the refiling of an action, assuming the otherwise applicable limitations period had run, within one year of any of the following dispositions:

(1) judgment is entered for plaintiff but reversed on appeal;

(2) following a verdict in favor of plaintiff, judgment is entered against plaintiff for the result of a motion in arrest of judgment;

(3) plaintiff voluntarily dismisses the action;

(4) the action is dismissed for want of prosecution; or

(5) the action is dismissed by a United States District Court for lack of jurisdiction. See, e.g., Mares v. Busby (7th Cir. 1994), 34 F. 3d 533, 536.

In support of his contentions that section 13 — 217 of the Code of Civil Procedure should defeat Respondents motion, Claimant cites Roth v. Northern Assurance Co. (1964), 32 Ill. 2d 40, 203 N.E.2d 415, and its progeny. Roth dealt with an older version of the savings statute which contained the language “if the plaintiff is non-suited” in the place presently occupied by the language “the action is voluntarily dismissed by the plaintiff.” The Roth court construed the “nonsuit” provision as permitting a refiling within one year after a Federal court had dismissed for lack of jurisdiction. In so ruling, the Court was careful to stress that it read the savings statute as referring to involuntary nonsuits. (32 Ill. 2d at 43, 203 N.E.2d at 417.) Twelve years after the Roth opinion, this particular portion of the savings statute was amended by deleting “if tire plaintiff is nonsuited” and inserting “the action is voluntarily dismissed by the plaintiff,” to wit:

“§24. In the actions specified in this Act or any other act or contract where the time for commencing an action is limited, if judgment is given for the plaintiff but reversed on appeal; or if there is a verdict for the plaintiff and, upon matter alleged in arrest of judgment, the judgment is given against the plaintiff; or the action is voluntarily dismissed by the plaintiff if the plaintiff ia nonsuited, or tire action is dismissed for want of prosecution then, whether or not the time limitation for bringing such action expires during the pendency of such suit, the plaintiff, his heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or given against the plaintiff, or after the action is voluntarily dismissed by the plaintiff plaintiff is nonsuited or the action is dismissed for want of prosecution.” Public Act 79 — 1358; see, Laws of the State of Illinois, 79th General Assembly, pages 743-744 (emphasis added).

One of the first reported decisions construing the amendment came from the Court of Claims. (Gunderson and Wosylus v. State (1980), 33 Ill. Ct. Cl. 297.) The Court noted:

“Under the old statute, a plaintiff whose suit was dismissed involuntarily could commence a new action within one year of the dismissal order where the statute [of hmitations] expired during the pendency of the suit.
# # #
It is Respondent's contention that die new statute affords protection only to plaintiffs whose lawsuits are voluntarily dismissed and [that] its protection is [now] unavailable to plaintiffs whose actions are involuntarily dismissed." 33 Ill. Ct. Cl. atp. 298 (emphasis added).

The Court of Claims agreed with the States position and dismissed that claim. The Illinois Supreme Court has thoroughly studied these issues and has reached the same conclusion that this Court did in Gunderson. (See, e.g., Hupp v. Gray (1978), 73 Ill. 2d 78, 82-83, 382 N.E.2d 1211, 1213; Conner v. Copley Press, Inc. (1984), 99 Ill. 2d 382, 387-388, 459 N.E.2d 955, 957; and DeClerck v. Simpson (1991), 143 Ill. 2d 489, 577 N.E.2d 767.) In short, Gunderson accurately assessed the effect of the 1976 amendment. Dismissals for lack of jurisdiction are not voluntary dismissals by the plaintiff but are dismissals by the court on another ground, namely, lack of jurisdiction. Thus, under the amended savings statute, the Roth opinion and its progeny are inapposite; the amended section 13 — 217 did not allow Claimant an additional year to file his complaint in this Court.

In its most recent pronouncement on statutes of limitations, the Supreme Court wrote:

“Our decision produces a harsh result in that it extinguishes liability where such should plainly lie. That is, however, the nature of statutes of limitations. The statutes are inherently arbitrary in their operation in that they attach a complete bar to recovery of a valid claim or the imposition of criminal liability based on no more than the passage of time. While we express sympathy for plaintiff in this case, our duty is to adhere to our clearly established precedent.” Sepmeyer v. Holman (1994), 162 Ill. 2d 249, 256, 642 N.E.2d 1242, 1245.

It is especially important for the Court of Claims to strictly enforce its limitations provisions, for they are jurisdictional. (Illinois Bell Telephone Co. v. State (1981), 35 Ill. Ct. Cl. 345.) The Court of Claims does not have equitable jurisdiction to allow a Claimant to utilize defenses such as waiver, estoppel, or laches to overcome the Courts strict limitations provisions. In re Application of Ward (1981), 35 Ill. Ct. Cl. 398.

Accordingly, Respondents motion to dismiss is allowed.

It is ordered that this claim is dismissed with prejudice.

ORDER

Frederick, J.

This cause comes before the Court on Claimants motion for rehearing and reconsideration of the Courts order of August 22, 1995, and the Court having reviewed the motion, the briefs of the parties, the court file, heard oral arguments, and tire Court being fully advised in the premises, wherefore, the Court finds:

1. Section 790.40 of the Court of Claims Regulations (74 Ill. Adm. Code 790) specifies that cases are commenced by the filing of a verified complaint with the cleric of the Court of Claims.

2. Section 790.60(a) of the Court of Claims Regulations states that any complaint filed or pending in the Court of Claims shall be continued generally subject to the provisions of 790.70, until the final disposition of all other claims or proceedings arising from the same occurrence or transaction. (A general continuance granted by this Court is not to be construed as an opinion on the question of jurisdiction in any other court or tribunal.)

3. That pursuant to section 22(h) of the Court of Claims Act (705 ILCS 505/22(h)), all time limitations established under the Act and the rules promulgated under the Act are binding as jurisdictional.

4. That the savings statute interpreted by the supreme court in Roth v. Northern Assurance Co., Ltd. (1964), 32 Ill. 2d 35, and Williams v. Medical Center Commission (1975), 60 Ill. 2d 389, was substantially different from the savings statute in effect and at issue in this case.

5. That the legislature removed tire “if the plaintiff is non-suited” language from section 13 — 217 of the Code of Civil Procedure. 735 ILCS 5/13 — 217.

6. That this Court has previously ruled adversely to Claimants position on this same issue in Nikelly v. Board of Trustees of the University of Illinois (1993), 45 Ill. Ct. Cl. 336.

7. That the Court has carefully reviewed all of the pleadings and the law in regard to the issue in this case and finds the Courts order of August 22, 1995, to be the correct order.

Therefore, it is ordered that Claimants motion for rehearing and reconsideration of order of August 22, 1995, is denied.

       This version of section 13 — 217 was later amended, effective January 7,1993, to allow similar refiling of an action dismissed by a United States District Court as a result of improper venue. P.A. 87-1252, section 2.

       The post-Roth decisions Claimant cites are: Williams v. Medical Center Commission (1975), 60 Ill. 2d 389, 328 N.E.2d 1; and Edwards v. Safer Foundation, Inc. (1st Dist. 1988), 171 Ill. App. 3d 793, 525 N.E.2d 987.

       There was no specific Federal dismissal provision in the savings statute at that time.


author: JANN, J.

text:
    (No. 88-CC-4264
    Gilda Sanders, Claimant, v. Board of Governors of State Colleges and Universities for Chicago State University, Respondent.

      Order filed August 22, 1995.

    Michael D. Pollard, for Claimant.
    Dunn Ulbrich Hundman Stanczak & Ogar (Douglas J. Hundman, of counsel), for Respondent.
   ORDER

JANN, J.

The Claimant, Gilda Sanders, slipped and fell on water on a concrete locker room floor at Chicago State University, 9501 South King Drive in Chicago, Illinois on May 30, 1986. She suffered a fractured tailbone, incurred medical bills totaling $448, lost $170 in income by missing 5 half-days at work, and spent several months in pain. The notice of claim was filed May 19, 1987, and the complaint was filed May 20, 1988. Claimant alleges Respondent allowed water to accumulate, did not provide nonslip surfaces and failed to warn persons of the allegedly dangerous condition. A hearing was held before Commissioner Michael E. Fryzel on April 27,1995.

At the hearing, the Claimant testified that she was coming back from a parent-toddlers swimming class with her two-year-old daughter. As they were walking through a corridor between the showers and the locker room, she slipped and fell on her coccyx, blacked out, and when she regained consciousness was surrounded by several people offering assistance. On her way out of the building, Claimant stopped at the door and reported the incident to a guard. Later that day, she went to Michael Reese emergency room. She was x-rayed, given pain medication and a donut hole cushion to sit on. Claimant had to sleep downstairs at home for two and a half months because she couldn’t climb stairs. Claimant could not work for several days, missing the half-days she normally worked as a nursery school teacher.

The only testimony regarding the condition of the corridor came from Claimant, who testified that there was a “considerable amount of water” and that the water did not seem to be going down the drain. Claimant also stated that there was more water in the corridor than there had been on the four or five previous occasions she had attended the swimming class.

Respondent did not present any witnesses. Respondent argued that the occurrence of an accident does not support an inference of negligence on the part of the State without proof of causation. Claimant must demonstrate proximate cause by establishing within a reasonable certainty that the Respondent’s acts or omissions caused her injury.

Claimant presented no evidence of negligence by Respondent in the design, construction or maintenance of the corridor. No testimony was offered that the water in the corridor constituted an unreasonably dangerous condition. There was no evidence as to Respondent’s notice of the condition or as to prior incidents occurring in the same area. It is reasonable to assume that the floor between a shower room and lockers adjacent to a swimming pool will become wet and more slippery than a dry floor. The facts herein are analogous to those in Fleischer v. State (1983), 35 Ill. Ct. Cl. 799, and Duble v. State (1967), 26 Ill. Ct. Cl. 87. These cases held that an invitee assumes all normal, obvious or ordinary risks attendant to use of the premises.

Based upon the foregoing, we hereby find Claimant has failed to meet her burden of proof to demonstrate negligence by Respondent.


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

text:
    (No. 88-CC-4602
    Canteen Township, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 30, 1995.

      Order filed May 20, 1996.

    Philip R. Rice, for Claimant.
    Jim Ryan, Attorney General (Edwin Purham, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

Claimant filed a two-count petition alleging, in the alternative, that Respondent either intentionally or negligently “demolished, tore-up and destroyed” the pavement of five of Claimants streets — Park, Catherine, Ramey, Elm, and Major Streets — located within the Cahokia Mounds Historic Site. No formal responsive pleading was filed by Respondent to the petition, but Respondent did supply some cursoiy information about the streets in answering one of Claimants interrogatories:

• asphalt was removed from Park Street in 1987 and 1988;

• asphalt was removed from Catherine Street in 1989;

• Ramey Street is used as the main driveway to Respondents new museum;

• no changes were made to Elm Street; and

• Major Street, although platted, has never been constructed and does not physically exist.

Presently pending before the Court is a motion for summary judgment in which Respondent argues:

“Claimant does not hold sufficient legal tide in the property in question as a matter of law to entitie them [sic] to any alleged damages.”

No affidavits or deposition testimony have been offered by Respondent to support its motion. Rather, Respondent has simply tendered a memorandum of law containing a copy of the 1941 subdivision plat which dedicated these five streets. In its memorandum of law, Respondent contends that Claimant is not the owner in fee simple of the streets and, therefore, that Claimant lacks standing to request damages for whatever harm Respondent might have done to the pavement of these streets.

Three basic principles of summary judgment guide a consideration of Respondents motion:

1. Summary judgment is only appropriate when there is no genuine issue of material fact, and the moving party is otherwise entitled to judgment in its favor as a matter of law;

2. The movant has the burden of showing that, as a matter of law, it is entitled to summary judgment in its favor.

3. The evidence under consideration in ruling on a motion for summary judgment is to be strictly construed against the moving party and liberally construed in favor of its opponent.

Those principles of summary judgment in hand, the next area of law relates to the ownership ramifications which result when a street is dedicated to the public use.

The dedication of a street can take either of two forms: (1) a statutory dedication, which is created by the recording of a proper plat; or (2) a common law dedication, which results from other acts of a property owner. (Kirnbauer v. Cook County Forest Preserve (1st Dist. 1991), 215 Ill. App. 3d 1013, 1020, 576 N.E.2d 168, 173.) The distinction between the two types of dedication is critical, for a statutory dedication conveys a fee simple to the public entity responsible for the street, while a common law dedication merely grants the public an easement for street purposes. (Id., 215 Ill. App. 3d at 1020, 576 N.E.2d at 174.) Here, the 1941 subdivision plat is determinative: if it strictly complied with the provisions of the Plat Act in effect at that time, it is a statutory dedication; but if it failed to comply with all of the Acts requirements, a common law dedication resulted. Ill. Rev. Stat. 1941, chap. 109, par. 3; see also I.L.P. Dedication sec. 36.

Respondent has not specified how it believes the 1941 subdivision plat failed to comply with the relevant provisions of the Plat Act, and a review of the plat does not disclose any patent defects. The plat purports to be signed by the owners of the land, seems to have been prepared and certified by a licensed surveyor, appears to contain all of the technical descriptions and specifications called for by the Act, and was recorded in the appropriate office.

Given the legal standards by which motions for summary judgment are considered, it cannot be said as a matter of law at this point that the 1941 dedication was anything other than a proper, statutory dedication. As such, this dedication must be presumed to have conveyed a fee simple in the five streets to the public entity responsible for maintaining them. Since Respondent has not demonstrated that some other body besides Claimant was, or is, the entity responsible for maintaining these streets, there is no option but to infer, for purposes of this motion, that Claimant does have standing to bring this claim for the damage which Respondent allegedly did to the pavement of the streets.

Accordingly, the Court finds that Respondent has not sustained its burden of proof, and it is ordered that Respondents motion for summary judgment is denied.

ORDER

Sommer, C.J.

This cause comes before the Court on the parties’ joint stipulation for settlement which states:

This claim arises from damages by Canteen Township because of the State’s incorporation of statutorily dedicated Canteen Township streets into the Cahokia Mounds State Historic Site.

The parties have investigated this claim, and have knowledge of the facts and law applicable to the claim, and are desirous of settling this claim in the interest of peace and economy.

Roth parties agree that an award of $20,000 to Canteen Township is both fair and reasonable in exchange for Canteen Township’s passage of a formal ordinance vacating all publicly dedicated streets which currently fall within the boundaries of the Cahokia Mounds State Historic Site.

Claimant agrees to pass a formal ordinance as described in the parties’ joint stipulation for settlement and agrees to accept, and Respondent agrees to pay, $20,000 to Canteen Township in full and final satisfaction of this claim and any other claims against Respondent arising from the events which gave rise to this claim.

The parties hereby agree to waive hearing, the taking of evidence, and the submission of briefs.

This Court is not bound by such an agreement but it is also not desirous of creating or prolonging a controversy between parties who wish to settle and end their dispute. Where, as in the instant claim, the agreement appears to have been entered into with full knowledge of the facts and law and is for a just and reasonable amount, we have no reason to question or deny the suggested award.

It is hereby ordered that Claimant Canteen Township is awarded $20,000 in full and final satisfaction of this claim.

        Wright v. St. John's Hospital (4th Dist. 1992), 229 Ill. App. 3d 680, 682-83, 593 N.E.2d 1070, 1072.

       Id.

        Smith v. Armor Plus Co., Inc., (2nd Dist. 1993), 248 Ill. App. 3d 831, 839, 617 N.E.2d 1346, 1352.

       Respondent’s arguments about a “qualified fee” are inapposite. “Qualified fee” refers to the fact that Claimant is not legally capable of conveying its fee; in other words, all Claimant is allowed to do is to vacate the streets in accordance with the statutory provisions. But that legal principle has no bearing on this claim of alleged damage to the pavement of Claimant’s streets, for Respondent has not attempted to argue that Claimant ever vacated those streets.


text:
    (No. 89-CC-0157
    Betty Hightower, Individually, and as Special Administratrix of the Estate of Donna Hills and as personal representative of Donna Hills, Deceased, for the use and benefit of Betty Hightower, Vincent Hills, Jr., Troy Hills, and Michael Miller, Claimants, v. The State of Illinois, Respondent.

      Opinion filed January 25, 1996.

      Order filed April 15, 1996.

    James T. J. Keating, for Claimants.
    Jim Ryan, Attorney General (David Rodriguez, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This cause comes before the Court on the issue of damages, the Court having previously found liability on the part of Respondent. The history of this case dates back to 1986. On October 12, 1986, Donna Hills, a severely mentally retarded woman, was placed at the Ludeman Developmental Center in Park Forest, Illinois. Donna Hills, who required 24-hour supervision, was left alone in a tub of water and drowned. Donna Hills was born on July 7, 1964. Claimants filed a verified complaint in this matter in a timely fashion. On October 18, 1993, the Court entered a default judgment against Respondent, on the issue of liability only, for failure of the Respondent to comply with orders relating to discovery and remanded this matter to the Commissioner assigned to the case for a hearing on damages.

On May 20, 1994, a proposed joint stipulation to settle this matter for four hundred twenty-five thousand dollars ($425,000) was filed with the Court. That joint stipulation was rejected by the Court on September 30, 1994, because there was no evidence or information to indicate how the settlement figure was reached, how the award was to be divided among the heirs, or whether there was any basis in law to support the award. Claimants filed a motion to reconsider that order which was subsequently denied. Accordingly, a hearing on damages was held and the following testimony was adduced.

Dr. Rrian Kern, who is board certified in emergency medicine, testified that he examined Donna Hills on October 12, 1986. Dr. Kern indicated that Donna Hills died from drowning in a bathtub on that date. According to Dr. Kern, before Ms. Hills died she had some pain and suffering even though she was profoundly mentally retarded because she was still able to feel. Specifically, Dr. Kern indicated that Claimants’ decedent would have been gasping for breath and able to see out of the bathtub. However, she would not have been able to integrate the necessary information in order to get out of the tub and save herself. According to Dr. Kern, the pain would have lasted five to ten minutes before Donna Hills lost consciousness.

Betty Hightower, the mother of Donna Hills, testified that Donna became mentally retarded at the age of three and a half years old. Before that time she was a “normal little girl, playful and cheerful.” After Donna became mentally retarded, Ms. Hightower and her family continued to care for her at home for six and a half years, from approximately 1967 to 1974. Since Donna was profoundly mentally retarded, she required involved, 100% care, including taking her to the bathroom, washing her, dressing her, feeding her, and entertaining her, and other care. Ms. Hightower was assisted in taking care of Donna by Donna’s siblings, Claimants Michael Miller, Vincent Hills, Jr., and Troy Hills.

In 1974, Donna was placed in a State home because her seizures had increased and the family could no longer take care of her at home. Donna was first placed at Reed for approximately five months. Ms. Hightower visited Donna three times during the time Donna was at Reed.

After Donna left Reed, she was placed at Dixon for five years. Ms. Hightower would visit Donna about every four months. She could not visit more often because she did not own a car. While Ms. Hightower requested that Donna come home on visits, she was advised that it was too far for her to come on the train. Ms. Hightower would call the staff at Dixon to inquire about Donna on a regular basis. Since Donna could not speak, she did not speak to her, and because of the arrangements at Dixon, Donna was not able to hear Ms. Hightowers voice on the telephone.

Ms. Hightower was not satisfied with the care and treatment Donna was receiving at Dixon and therefore she asked for Donna’s transfer. Donna was subsequently transferred to the Ludeman Center in 1979. The Ludeman Center was closer to Ms. Hightower’s residence. While Donna was at Ludeman, Ms. Hightower would bring Donna home for two to three week intervals about every four months. In addition, Ms. Hightower and her children would visit Donna at Ludeman and would call Donna so she could hear their voices. According to Ms. Hightower, she was planning on bringing Donna home to live with her.

Also, according to Ms. Hightower, Donna knew her and was happy when she came to visit. When they were together, they would hug and rock. Donna would be sad when Ms. Hightower left.

Ms. Hightower learned that Donna was dead after she received a call and went to the hospital. When she learned how Donna had died, she felt hurt and betrayed. Ms. Hightower loved Donna and misses her. She thinks about Donna all of the time.

Troy Hills is Donna’s younger sister. Troy was 20 years old when Donna died. Troy was approximately six years old when Donna was first placed in an institution. While Donna lived at home, Troy would help with the day-to-day activities (including washing and feeding Donna) to the best of her ability. She also played with Donna. Troy was also the only one Donna would let fix her hair. When other people tried, Donna would cry or throw a tantrum.

After Donna was institutionalized, Troy would visit her several times a year. Also, when Donna started coming home to visit, Troy and her brothers would take care of Donna while their mother was at work. Troy enjoyed caring for Donna. While Donna was placed at Ludeman, Troy would call so Donna could hear her voice. Troy loved her sister and misses her. Troy named her own daughter Donna, after her sisters name. Troy still thinks about her sister.

Michael Miller is Donnas older brother. He was nine years of age when Donna was born. Michael lived at home with Donna until 1972 when he left to enroll in the Job Corps. During the time he was at home, he helped his mother take care of Donna by feeding her, dressing her, and under certain circumstances, restraining her.

Michael would return home to visit for three to four days at a time when Donna was home to visit. During that time period he would help take care of Donna. Donna recognized him when he came to visit and would be happy. The fact that Donna was mentally retarded encouraged him to obtain a bachelors degree in social work. When Michael found out his sister had drowned, he was “angry, hurt and numb.” Michael loved his younger sister and misses her.

Vincent Hills is Donnas younger brother. He was 22 years old when Donna died. Before Donna was institutionalized, Vincent would help with Donnas everyday activities. He also played with her. Vincent would visit Donna at Ludeman every two to three months and helped to take care of her when she came home on extended visits every three to four months. Vincent loved his sister and misses her.

According to Michael and Vincent, their mother, Betty Hightower, has been overprotective of them since Donna died.

Donnas funeral cost one thousand seven hundred eighty-four dollars ($1,784). According to standard mortality tables, the deceased and the Claimants had more than 30 years left in which to enjoy each others companionship at the time of Donna’s death.

In this matter there are five Claimants: the estate of Donna Hills; Betty Hightower, the mother of the decedent; Troy Hills, the sister of the decedent; Michael Miller, the older brother of the decedent; and Vincent Hills, the younger brother of the decedent. The claim of the estate is for Donna’s conscious pain and suffering before her death and funeral expenses. The other claims are for loss of society. Under Illinois law, all of the claims are compensable. (Copeland v. Illinois Department of Mental Health and Developmental Disabilities (1989), 41 Ill. Ct. Cl. 125; Drew v. Gobel Freight Unes (1991), 197 Ill. App. 3d 1049.) All of the Claimants in this matter have presented evidence as indicated herein to support their respective claims.

Respondent in this matter does not dispute that Claimants have established their respective claims. However, Respondent disputes Claimants’ request for the maximum amount of damages by arguing that all instances of loss of society should not be valued at the statutory maximum. It is always a very difficult task measuring pain and suffering and loss of society. In this case we have a severely mentally retarded decedent who could not work, speak or integrate ideas. The decedent’s mother, Claimant Betty Hightower, visited with the decedent less than 65 days a year. The two brothers and one sister saw the decedent less often. A maximum award is not indicated under the peculiar facts of this case.

Based on the foregoing, it is the finding of the Court that the estate of Donna Hills be awarded the sum of twenty-six thousand seven hundred eighty-four dollars ($26,784) for pain and suffering and funeral expenses. The evidence established that the decedent endured between five and ten minutes of conscious suffering and had a funeral bill of one thousand seven hundred eighty-four dollars ($1,784). Betty Hightower, the Mother of the decedent, should be awarded sixty thousand dollars ($60,000) for loss of society. The evidence established that Ms. High-tower had spent time taking care of her daughter, loved her and missed her. Troy Hills, the sister of the decedent, should be awarded thirty thousand dollars ($30,000) for loss of society. The evidence established that Ms. Hills had a relationship with her sister, spent time taking care of her, loved her and missed her to the extent that she named her daughter Donna, after the deceased. Michael Miller, the-' older brother of the decedent, and Vincent Hills, the younger toother of the decedent, should each be awarded eighteen thousand dollars ($18,000) for loss of society. The evidence established that Mr. Miller and Mr. Hills had relationships with their sister, spent time taking care of her, loved her and missed her.

For the foregoing reasons, it is the order of the Court that twenty-six thousand seven hundred eighty-four dollars' ($26,784) is awarded to the estate of Donna Hills; sixty thousand dollars ($60,000) is awarded to Betty Hightower, mother of the decedent; eighteen thousand dollars ($18,000) is awarded to Vincent Hills, Jr., the brother of the decedent; thirty thousand dollars ($30,000) is awarded to Troy Hills, the sister of the decedent; and eighteen thousand dollars ($18,000) is awarded to Michael Miller, the brother of the decedent, in full and final satisfaction of all of the Claimants’ claims.

ORDER

Frederick, J.

This cause comes before the Court on the Claimants’ motion to add interest to awards, and the Court having reviewed the court file, and the Court being fully advised in the premises, wherefore, the Court finds:

1. That Supreme Court Rule 219(c)(vii) should not apply to the facts of this case retroactively.

2. That the imposition of interest would not be appropriate.

Therefore, it is ordered that Claimants' motion to add interest to awards is denied.