text:
    (No. 88-CC-0667
    Dewayne Williams, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 12, 1994.

      Order on petition for rehearing filed June 27, 1994.

    Dewayne Williams, pro se, for Claimant.
    Roland W. Rurris, Attorney General (Robert SklamBERG, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Dewayne Williams, an inmate in the Illinois Department of Corrections, filed his claim in the Court of Claims on September 24, 1987. Claimant’s claim is a claim for medical negligence. The cause was tried before Commissioner Fryzel.

Claimant testified that on June 26, 1984, while he was an inmate at the Menard Psychiatric Center, a homosexual touched him so Claimant hit him. Claimant was put in segregation for 15 days for hitting the other inmate. After his release from segregation, the other inmate ran up behind Claimant, jumped on Claimant’s back, and bit Claimant on the shoulder. Claimant was taken to the hospital where the wound was treated with a white cream and bandaged.

In 1985 or 1986, when Claimant was transferred to Joliet, he kept going to the hospital for pain in his shoulder. For several years, Claimant was told that he had a well-healed scar and nothing could be done for him. Sometime later he had x-rays taken of his shoulder. He had surgery and a cyst was removed from his shoulder. Claimant believes it may have been a tooth removed from his shoulder. He saw an x-ray and a little piece of something that looked like a chipped tooth was in his shoulder. The medical records indicate a cyst and foreign bodies were removed on August 10, 1987. According to Claimant, the x-rays disappeared. Claimant has a scar on his shoulder. He also had pain in his shoulder. Claimant seeks $6,000 in damages for pain, suffering, and for refusing Claimant medical treatment. Claimant presented no expert medical testimony. The Respondent presented no evidence.

Claimant’s claim is a cause of action sounding in medical negligence. An inmate who files a claim against the State alleging medical malpractice must establish a breach of duty through expert testimony, establish that the Respondent deviated from the standard of care, and establish through expert testimony that the deviation was a proximate cause of Claimants injury. (Pink v. State (1991), 44 Ill. Ct. Cl. 295.) Claimant has failed to present any expert testimony to establish the standard of care, that Respondent deviated from the standard of care, and that the deviation was a proximate cause of the Claimants injury. (O’Donnell v. State (1980), 34 Ill. Ct. Cl. 12.) The standard of care is that care which is provided to a patient by reasonably well-trained medical providers in the same circumstances in a similar locality. The standard must be generally accepted in the medical community, and it is not sufficient for the patient’s expert witness to testify that he would have acted differently in the same circumstances, or that alternative methods of proceeding exist. (Wilsman v. Sloniewicz (1988), 172 Ill. App. 3d 492.) The Claimant must establish the standard of care. Thomas v. State (1987), 40 Ill. Ct. Cl. 188; Bock v. State (1991), 43 Ill. Ct. Cl. 299.

The facts of this case are similar to the facts found in Ray v. State (1992), 44 Ill. Ct. Cl. 173. In Ray, supra, this Court denied the claims of an inmate who broke his finger in an altercation. In that case, it was alleged there was inadequate and negligent medical treatment, including delays in treatment and in obtaining an x-ray of the hand, which caused the finger to heal improperly. However, the Claimant failed to adduce proof as to the applicable standard of care and the State’s deviation from that standard and the claim was denied.

While the Court has indicated a deviation from the standard of care may be found if the inadequate care is obvious, such as where a sponge is left in during surgery, there still must be proof that the deviation was a proximate cause of the alleged injury. Bock v. State (1991), 43 Ill. Ct. Cl. 299; Purtle v. Hess (1986), 111 Ill. 2d 229.

The Court finds that inadequate care is not obvious in this case and the Court would have to rely on expert testimony to establish the standard of care and a deviation thereof. There is no competent proof of what foreign bodies were removed with the cyst or that the cyst was related to the bite. There is nothing in the record to establish the standard of care and if there was a deviation of that standard. There is also absolutely no competent evidence that the pain or seriousness of the injury was exacerbated by the States treatment or lack thereof and was therefore a proximate cause of Claimants injury.

The standard of proof for causation is that Claimant must prove by a preponderance of the evidence that Respondent’s conduct was a proximate cause of the injury. (Wise v. St. Mary’s Hospital (1978), 64 Ill. App. 3d 587.) Proximate cause is an essential element that must be proved in every medical malpractice case. Failure of the Claimant to establish that an act of medical negligence proximately caused the injuries suffered by the Claimant defeats the claim. (Tops v. Logan (1990), 197 Ill. App. 3d 284.) The Claimant sustains his burden by proving, generally through expert testimony, that Respondent’s breach of the applicable standard of care is more probably true than not the cause of Claimant’s injury. Borowski v. Von Solbrig (1975), 60 Ill. 2d 418; Bishop v. Baz (1991), 215 Ill. App. 3d 976.

Proximate cause is not established where the causal connection is contingent, speculative or merely possible. (Newell v. Corres (1984), 125 Ill. App. 3d 1087; Pumula v. Sipos (1987), 163 Ill. App. 3d 1093; Mazur v. Lutheran General Hospital (1986), 143 Ill. App. 3d 528; Piano v. Davidson (1987), 157 Ill. App. 3d 649.) The testimony in this cause as to proximate cause is non-existent. As the Claimant must establish that the failure to treat and x-ray to a reasonable degree of medical certainty more probably than not caused the injury, he has failed to sustain his burden of proof. Pumula v. Sipos (1987), 163 Ill. App. 3d 1093.

In this case, Claimant has failed to establish that a direct causal relationship exists between the Respondents alleged deviation from the standard of care and the Claimants resulting injury.

Those practicing in the medical arts in the penitentiary are held to the same standard of care as those practicing in the communities of our State. To hold otherwise would be to abandon reason and common sense. We must recognize, however, that constraints necessarily exist in correctional institutions which have or may have a negative impact on the ability to deliver medical services. The medical arts practitioner should not be held liable for injuries resulting from these constraints. However, these constraints, while interfering with proper medical care, do not lessen the standards required of the medical arts practitioner. There is nothing unduly burdensome in holding that physicians employed by the Department of Corrections give inmates whom they treat the same duty of care which they owe their patients in private practice. (Madden v. Kuehn (1978), 56 Ill. App. 3d 997, 1002.) In this case, however, there is no competent evidence that the prison physicians and medical providers deviated from the standard of care or that any actions of the physicians or medical providers proximately caused the injury of Claimant.

Based on the foregoing, it is the judgment of this Court that Claimants claim is denied.

ORDER

Frederick, J.

This cause comes on Claimants petition for rehearing, and the Court having reviewed the entire file and the Courts opinion, and the Court being fully advised in the premises, wherefore, the Court finds:

(1) That the Court properly decided this cause in its opinion rendered on April 12,1994.

(2) That Claimant failed to meet his burden of proof.

(3) That Claimant failed to prove by competent evidence that medical providers deviated from the standard of care which proximately caused the injuries complained of by a preponderance of the evidence.

Therefore, it is ordered that the petition for rehearing is denied.


source: Caselaw Access Project

author: Patchett, J.

license: Public Domain

text:
    (No. 88-CC-0687
    Carol J. Zimmerman, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 10, 1994.

    Robert W. Bach, for Claimant.
    Roland W. Burris, Attorney General (Thomas Gray, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This is a claim for injuries which were sustained by the Claimant, Carol J. Zimmerman, when she was attacked by James Armstead. At the time of the attack, Ms. Zimmerman was employed by Correctional Health Services, Inc., which had a contract with the State of Illinois to provide x-ray and other health-related services to the Pontiac Correctional Facility. James Armstead was an inmate at the Pontiac Correctional Facility, which is a maximum security facility operated by the Illinois Department of Corrections.

Following the attack, Ms. Zimmermans employer paid $29,550 in medical bills, $9,710 in temporary total disability benefits, and $30,000 in a lump sum settlement. The employer waived any lien they had against any monies that might be collected through this claim.

As her first witness, Ms. Zimmerman called Dale Bent. Mr. Bent is currently the chief phlebotomist at Stateville Correctional Center and had been working for the Department of Corrections for eight years at the time of the attack. He was working at the Pontiac Correctional Center Hospital on that occasion in the lab, which was next door to the x-ray room where Ms. Zimmerman worked. There was no door between the lab and the x-ray processing area. Mr. Bent received blood test results on his computer which was located in the x-ray processing room next to his lab. This made it necessary for him to go into the hallway, down the hall to the door of the x-ray room, and into the processing area to receive the computer report. Ms. Zimmerman knocked on the wall to notify Mr. Bent to come and get the reports when they came in. The door from the x-ray room into the main hallway was steel with one small window about five feet off the floor. There were no windows along the common wall between the x-ray room and the hallway. There was an officers room next to Mr. Bents lab, which was approximately 45 feet from the door to the x-ray room. Following the attack, a door was installed between the lab and the x-ray processing room.

The x-ray room and lab had been remodeled in March 1985. After moving in, Bent and Zimmerman discussed with Assistant Warden Washington, who was in charge of overseeing all the hospital programs, the problems caused by the physical layout of the officers room, lab, and x-ray areas. They specifically noted the problem of access to the x-ray room. They were concerned for both convenience and security reasons. Warden Washington agreed that there were problems with security and access in the new facilities, and he told both Bent and Zimmerman to send him a memo on the subject. Mr. Bent sent a memo to Warden Washington suggesting that a door be installed between the lab and the x-ray processing area in order to improve security and facilitate access to the processing area for both officers and Bent. Mr. Bent reiterated their earlier discussions concerning the problems with security. No response to the memo was received. About three weeks after the attack on Ms. Zimmerman, the door was installed.

Bent testified that after Ms. Zimmerman was attacked, she knocked on the access panel located in the wall between the lab and the processing room to attract his attention. He went out of his lab and down the hall into the x-ray area, where he saw the Claimant in the x-ray processing room. She was behind the door between that room and the x-ray room. Since Bent did not have a key to this door, and the Claimant was too severely injured to open it, she had to slide the keys under the door. Before opening the door, he ran back to the desk in the x-ray room to call for help. He found the line busy. He then ran into the hall and called for a sergeant who was in the officer’s room.

Upon cross-examination, Bent testified that the door leading from the x-ray room to the processing area was self-locking. There was also a self-locking solid steel door between the processing area and the dark room. There were correctional officers stationed in the health care unit. Unless an inmate was actually seeing a doctor, he was to be kept in a holding area, the protective custody holding area, or in the actual in-patient hospital.

There was no alarm button or warning signal in the x-ray area. There was no monitor that allowed the officers to observe what was going on in the x-ray area. The only phone in the x-ray area was in the x-ray room itself. An alarm system, which included a button to summon help, was built into the newly-remodeled infirmary area. Only one person, a nurse, worked in the infirmary area where the alarm was located.

The Claimant testified in her own behalf. At the time of the attack, she was 46 years of age, four feet, eleven inches (4' 11") tall, and weighed approximately 113 pounds. She had six children and began working outside her home in November 1972. She worked part time for three different employers while raising her six children through April 1980. She began x-ray training at Illinois Central College. After graduating as an x-ray technician, she found full-time employment with Correctional Health Services and was assigned to the Pontiac Correctional Center in July 1983.

Ms. Zimmerman participated in the conversation between Assistant Warden Washington and Dale Bent. During that conversation, she expressed concern for her safety, especially in the darkroom and processing room. She also expressed concern about the response time of officers in the event of a problem. A memo from Ms. Zimmerman to Assistant Warden Washington, dated March 18, 1985, was introduced into evidence. The memo suggested that a doorway be installed between the x-ray room and Mr. Bents lab, and also referred to Bents memo of March 15, 1985. There was never a response from Assistant Warden Washington, nor any action taken as of October 29, 1986, to improve access to the x-ray suite. No alarm system or monitors were installed in the x-ray area. As stated previously, there were no windows between the lab and the hallway.

Ms. Zimmerman was never given instructions with regard to self-defense or security when dealing with prisoners. She was not supplied with self-defense equipment; in fact, such items were expressly prohibited.

When prisoners were to be x-rayed, they would come into the x-ray lab with either a requisition from the prison doctor or a pass. The Claimant would let them into the lab area and x-ray them, either at the examining table or at the wall. While the x-rays were being performed, she would stand behind the protective lead wall in the x-ray room. She then would send the inmates back to the holding area. Afterwards she would take the film to the film processor, which was located in a separate room located between Bent’s lab and the x-ray room. There was a self-locking door between the x-ray room and the processing room. While the x-rays were being performed, the door from the x-ray room to the hall would be closed to prevent radiation from going into the hall. Ms. Zimmerman could not see out the window in this door because it was too high off the floor. She was never instructed to keep the door between the processing room and the x-ray lab closed. Ms. Zimmerman would take twelve to fifteen x-rays per day. She assumed the inmates would be screened by the doctor who saw them for violent propensities. Only those inmates who were from protective custody were escorted by guards. There had never been a guard assigned to her on a regular basis. If an inmate from protective custody was having an x-ray, the guard would stand behind the protective lead wall with the Claimant.

On October 29, 1986, inmate James Armstead came for a finger x-ray. Armstead was described as being approximately six feet tall, 180 pounds, and very muscular. He seemed cooperative and calm on that occasion. She xrayed his finger and sent him back to the holding area while she went back to process the x-ray film. After she put the film in the processor, she heard a knock at the door from the x-ray room to the hallway. She found Arm-stead, who told her that she had x-rayed only one finger. Supposedly, two had been injured. Since she was unsure whether she had overlooked something on the requisition, she had Armstead sit at the x-ray table while she checked the requisition. It indicated that only one finger was to be x-rayed. She then attempted to call the emergency room doctor to ask if she should x-ray the other finger. The line was busy. As she was hanging up the phone, she heard the film coming out of the processor and went into the processing room to get it. While in the processing room, she felt a presence behind her. She turned to find Mr. Arm-stead in the room with her.

Armstead said, “I’m going to kill you, bitch!” He then knocked her to the floor, choking and beating her on the face. Ms. Zimmerman temporarily lost consciousness during the attack. She awoke to find Armstead continuing his attack on her. She tried to poke him in the eyes and squeeze his groin to get him off of her. This was unsuccessful. Her last thought before losing consciousness was, “I’m gonna die.”

After regaining consciousness again, she noticed the door between the lab and the processing room was closed. She tried to scream, but no one heard her. She pulled herself up to a standing position and noticed that she was unable to see except for a small area out of the right eye. She went to the plumbing access panel between the lab and the processing room and banged on it to alert Bent. She and Bent had previously agreed that if she had trouble, she would knock continuously.

After a short time, Bent came to the door leading into the processing room. The Claimant could not open it because her hands were bloody and kept slipping off the knob. She finally slid the keys under the door, and Bent opened the door from the other side.

Ms. Zimmerman was taken from Pontiac Prison to St. James Hospital. She was in intensive care for the first day and night. She experienced severe pain in the head, neck, shoulders, knees, and generally throughout her body. She stayed at the hospital for four days before she was released. After her release, she was apprehensive, unable to sleep, and extremely frightened. Although she had lived alone in an apartment in Pontiac prior to the attack, she felt she could not be alone after the attack. She lived with different relatives for periods of time because she was too weak to take care of herself. Due to the injuries to her eyes, she experienced blurred vision for several weeks.

On December 1, 1986, approximately one month after the attack, Ms. Zimmerman was living with her daughter, Linda Pfister. She began having psychotic episodes. She made a telephone call to her daughter-in-law and told her to take her son, Joey, out of the house because Danny, Ms. Zimmermans son, was going to kill him. During the course of the evening on December 1, 1986, Ms. Zimmerman believed that her mothers face turned into someone elses. She became combative and tried to hit her mother. She was taken to St. Francis Hospital and remembers being combative before she lost consciousness. She woke up in the morning strapped to a bed and locked in her room at the psychiatric unit at St. Francis Hospital in Peoria. She was kept in isolation for two or three days. She then began seeing Dr. Remolina, a psychiatrist. She was prescribed Haldol, a neuroleptic, and Norpramin, an antidepressant. In addition, she attended group therapy sessions. She was discharged on her own request just before Christmas 1986 and went to live at the St. Augustine Manor.

In January 1987, Ms. Zimmerman noticed that she was very confused and had difficulty dealing with any kind of stress. During a trip to California to visit relatives, she experienced intermittent periods of crying, inability to concentrate, and great fear. She had never experienced any of these problems before the attack.

In February 1987, Ms. Zimmerman returned to St. Francis Hospital to visit a friend and became overwhelmed. She was unable to function and was admitted to the hospital psychiatric unit. On this occasion, she was hospitalized for approximately three weeks. She received medication and therapy under the care of Dr. Remolina. After her release from the hospital, Ms. Zimmerman began living in a rental house. She continued to see a psychiatrist on an out-patient basis and was taking Asendin, an antidepressant, and Loxitane, a neuroleptic. She also saw a psychologist on two or three occasions.

On June 16, 1987, Ms. Zimmerman attempted to return to Pontiac Correctional Center in her old job as an x-ray technician. She worked at Pontiac for three weeks and four days. At that point, she felt overwhelmed again, and she did not feel safe working at the hospital. She asked Vickey Bibey, who was at that time the hospital administrator, to have a guard present in the x-ray room while working. No guard was posted in the area. On July 17, 1987, Ms. Zimmerman considered suicide. She was once again hospitalized at St. Francis. During this hospitalization, she was administered electroshock therapy on six occasions. She remained hospitalized in the psychiatric unit for one month and began seeing Dr. Pinto, another psychiatrist.

In November 1987, approximately one year after the attack, Ms. Zimmerman returned to work for the first time since her three-week work period at Pontiac Prison in June 1987. She was employed by Peoria Ear, Nose and Throat as an x-ray technician on a full-time basis and made approximately $8 an hour. She worked at this job for approximately two months. She felt the job was overwhelming and had difficulty learning the new aspects of it. She left that employment on January 22, 1988, after being terminated. She next worked at Central Illinois Hearing Aid Center in April 1988, making $4 an hour. She worked there for five months before quitting due to the fact that she did not feel she could handle the job. From August 1988 to February 1989, Ms. Zimmerman worked one day a week as an x-ray technician at Midwest Medical Services and also cleaned houses. She earned approximately $125 per week between the two jobs. Ms. Zimmerman felt relieved that she could handle working as an x-ray technician for one day a week.

In March 1989, Ms. Zimmerman began working for East Peoria Multi-Specialty Group as an x-ray technician earning $9 an hour on a full-time basis. She continued to work there until July 6,1990, at which time she was fired. Ms. Zimmerman stopped taking the medications and seeing Dr. Pinto in September 1988. At the time of the hearing, she was not seeing any doctors or taking any prescriptions. She was working at Midwest Medical Services one day a week earning $10 an hour. She did not expect this job to become full-time employment.

Before the attack took place, Ms. Zimmerman never experienced feelings of being overwhelmed by her work duties. She has never been terminated from a job, and she has never felt fearful for her personal safety. She now feels unsafe in crowds and in the presence of strangers.

Ms. Zimmerman testified that she filed a suit in Livingston County against James Armstead for the attack. She received no funds or proceeds from a judgment obtained against him in the amount of $350,000. Her only recovery to date has been as a result of workers compensation. The total award was approximately $30,000.

Linda Pfister, Ms. Zimmermans daughter, testified that while she was growing up, Ms. Zimmerman cared for her six children, being almost totally in charge of income production, household management, and raising the children. Ms. Pfister testified that Ms. Zimmerman received very little help from Mr. Zimmerman. Ms. Pfister described her mother as mild-mannered, timid, and very easy to get along with prior to the attack. She was a good mother who handled the stress of working and raising a family without complaint. After the attack, Ms. Pfister noticed that her mother was very fearful, could not eat, and could not sleep. She noticed that even when she attempted to help her mother by paying bills, her mother was very suspicious and paranoid. She describes her mother now as very susceptible to any sort of stress and unable to handle people or work. Her mother is also now more irritable and gets upset easily. She has a hard time controlling her emotions, and her personality is almost the opposite of what it was prior to the attack.

Ms. Zimmerman introduced the testimony of Dr. Remolina. Dr. Remolina was a psychiatrist licensed to practice in the State of Illinois who first saw the Claimant during her first admission to the St. Francis Hospital psychiatric unit. On that occasion, Ms. Zimmerman appeared to have difficulty dealing with reality and her emotions. She was very irritable and agitated. The doctor testified that the history obtained from the Claimant was that she had been attacked by an inmate in October 1986 and had no prior history of psychiatric difficulties. Dr. Remolinas diagnosis was that the Claimant was suffering from an acute psychotic episode with depressive manifestations consistent with a depressive disorder. As previously indicated, he prescribed medications and followed her on an out-patient basis.

Dr. Remolina testified that during the second hospitalization, his diagnostic impression was once again that of manic depressive disorder. He prescribed different medications, as previously indicated. Once again, after her release Dr. Remolina continued to see her on an outpatient basis.

In July 1987, after attempting to return to work at the prison, Ms. Zimmerman was once again admitted to the psychiatric unit. On that occasion, she was very depressed and he was concerned about the possibility of suicide. At that point, Dr. Remolina felt that her condition was one of major depressive disorder recurrent, meaning that she continued to suffer recurrence of the symptomatology of depression. She was treated during this hospitalization with medication and electroshock treatments. After she was discharged on that occasion, she started seeing Dr. Arun C. Pinto, who had been covering for Dr. Remolina during his vacation.

In Dr. Remolinas opinion, Ms. Zimmerman was experiencing anxiety, lack of motivation, difficulty in decision making, difficulty in concentrating, physical symptoms, and an inability to carry on the ordinary affairs of daily life. These were all symptomatic of psychiatric depression. He further opined that there was a direct and definite causal connection between the attack and the psychiatric problems. He felt that Ms. Zimmerman would continue to have problems in holding a job, and that stressful types of situations could definitely influence a recurrence of her depressive disorder.

Ms. Zimmerman also introduced the testimony of Dr. Pinto. Dr. Pinto is also a psychiatrist, board certified in both adult and child psychiatry. He obtained a history from Ms. Zimmerman that she had been a fairly well-functioning woman until she was attacked at the prison. The history included the possibility that she had been raped. There was no history of any previous psychiatric problems. Psychological testing done while in the hospital indicated that Ms. Zimmerman had no evidence of minimum, major, psychiatric, or personality deviation problems other than a major depression recurrent. This depression had a definite post-traumatic quality to it.

Dr. Pinto began seeing Ms. Zimmerman on an outpatient basis after she was released from the hospital in August 1987. He noted that she had substantial problems with employment. He described Ms. Zimmerman as a person who tried very hard to cut down on her medication so that she would be able to feel more confident. On each visit, he would try to decrease the medicine. Dr. Pintos opinion was that the Claimants problem in holding a job following her attack was caused by her feelings of being overwhelmed, inadequacy, and of not being fully functional. These were consistent with his diagnosis of a depressive disorder.

In Dr. Pintos opinion, there was a direct causal connection between the attack of October 29, 1986, and Ms. Zimmermans psychiatric problems. He felt her prognosis was guarded. He stated that she could continue to have difficulty for a while, and maybe forever, based on this injury. The doctor stated that the difficulty he referred to would manifest itself in terms of feeling inadequate, unsafe, a lack of trust of other people, and inability to maintain employment. Given the history of Ms. Zimmermans difficulties for over a year following the attack, Dr. Pinto believes that the disability is permanent.

Ms. Zimmerman also introduced into evidence the disciplinary records of James Armstead. These records reveal that Armstead was sentenced to twenty years in the Department of Corrections for the offense of rape and six years for the offense of residential burglary. He was a parole violator who was sentenced as a career offender. ■ He entered the Joliet Correctional Center on November 2, 1983. He remained at Joliet until February 1986, when he was transferred to the Logan Correctional facility, a medium security facility. He remained at Logan for only seven months, until September 1, 1986. At that point, he was re-classified as a maximum security risk and transferred to Pontiac. He was involved in a physical altercation with another inmate on August 31, 1986, and had a physical altercation with a guard in November 1984. His record contains references to psychiatric problems, suicidal thoughts, suicidal ideation, and sexual deviation. All this information regarding James Armstead was contained in his master file prior to October 29, 1986.

The Claimant has the burden of proving by a preponderance of the evidence that the State was negligent for failing to exercise reasonable care over an individual in order to prevent foreseeable injury to Carol J. Zimmerman. The Claimant has overwhelmingly satisfied this burden. Despite the extremely serious nature of the disciplinary record of the inmate in question and his documented psychiatric problems, he appeared at the door of the x-ray room on the day in question completely unescorted by guards. During the time the Claimant x-rayed Armsteads finger, she" had no means of communicating with persons outside of the room other than the one telephone in the x-ray room. She had no means of protecting herself from attack and no means to make others aware of an attack once it had begun. In addition, there was no way for anyone outside the x-ray suite to observe what was going on within these rooms.

The law in the State of Illinois is clear that the State has to exercise care that individuals under its custody will not have the opportunity to inflict foreseeable injury upon others. (Berkin v. State (1972), 28 Ill. Ct. Cl. 154.) In this case, the State not only failed to exercise that care, they virtually made such an attack by an inmate inevitable. Armstead, who was six feet tall and weighed 180 pounds, was left completely alone with a woman who was four feet, eleven inches tall and weighed 113 pounds. The facts clearly show a breach of the Respondents duty to care. The Respondent was clearly put on notice of the problems in the x-ray suite by the memos of Bent and the Claimant. Corrective action was taken immediately after the attack.

A guard could have been assigned to escort Arm-stead and other inmates in need of x-rays. Testimony showed that inmates in protective custody were in fact supervised by guards. Respondent argued in its brief that the cost of providing guards to escort all inmates during x-rays would be too costly and therefore impracticable. No such evidence, however, was presented by the Respondent at trial. Furthermore, it is clear that guards are present at all times in this area of the hospital facility. Testimony from Bent and the Claimant indicated that the officer’s room was only a short distance down the hall from the x-ray suite. The court finds that there was no practical reason why guards could not have been available to escort inmates into the x-ray room, considering the physical layout of the x-ray facility. As previously indicated, there was no alarm or monitors installed in the x-ray unit. Incredibly, the only signal available to the Claimant was knocking on the plumbing access panel in the wall between the x-ray processing room and the lab in which Bent worked. There was no evidence introduced by the State to show that installing an alarm or a monitor were infeasible, impracticable, or unnecessary. It defies reason that a civilian employee left alone in an x-ray suite in a maximum security facility would have no means to summon help, other than to bang on a wall.

In its brief, the Respondent argues that the evidence fails to show the attack was foreseeable. This argument is totally without merit. Foreseeability only requires that the risk to the victim involve a recognizable danger, based upon some knowledge of existing facts, and some reasonable belief that harm may follow. (Prosser on Torts ch. 5, sec. 31, at 146 (4th ed.).) It is uncontroverted that both Ms. Zimmerman and Dale Bent discussed with the assistant warden the problems regarding security. In fact, the evidence suggests that Assistant Warden Washington agreed that security problems existed. Nothing, however, was done to correct the situation until after the attack. This clearly shows that the State was on notice with regard to the need for better access to this area.

Based on the facts stated above, we find liability.

The sole remaining issue is that of damages. The Claimants damages are limited to $100,000 pursuant to the provisions of 705 ILCS 505/8(d). The evidence introduced by the Claimant would justify an award far in excess of this. Photographs of the Claimant introduced into evidence graphically portrayed the horrible physical injuries which she suffered as a result of this unprovoked, brutal attack. As a result of the attack, she was hospitalized in a psychiatric unit on three separate occasions. She received numerous medications and electroshock treatments. It is not an exaggeration to say that her entire personality and her life were irreparably damaged as a direct result of this attack. The immense pain and suffering, both physical and mental, suffered by Ms. Zimmerman was shown by clear and uncontroverted evidence.

Evidence established that the Claimant has had difficulty holding any job since the attack which involves the slightest stress. Prior to the attack, she was making $353.08, or $18,360.16 per year. In 1987, her total gross income from all sources was $6,464, and in 1988 her total income was $7,733. Lost wages for those two years alone amount to $23,123.32. At the time of the hearing in this case, she was working one day a week, eight hours a day, for $10 per hour. Assuming that at age 50 she is going to work for another 15 years, these facts would support a claim for future lost wages in the amount of $213,000.

In regard to the medical damages in this case, the parties stipulated that $29,550 was paid by workers’ compensation. Arguably, there could be a set-off of $4,500 pursuant to section 2 — 1205.1 of the Code of Civil Procedure (735 ILCS 5/2- — 1205.1.) However, this amount, as well as the $30,000 lump-sum settlement paid to the Claimant, and the $9,703.68 payment for temporary total disability was obtained by reason of the employer’s statutory obligation under workers’ compensation. The case of Paschal, Buesing Bros. Trucking, Inc. v. State (1990), 43 Ill. Ct. Cl. 229, controls with regard to the question of set-offs in this matter. That case, citing Sallee v. State (1990), 42 Ill. Ct. Cl. 41, holds that workers’ compensation payments are not to be “set-off’ unless the employer has filed its lien as per the Workers’ Compensation Act. The employer’s lien can then be satisfied from the award of the Claimant. Both the Sallee case and Paschal case are based upon an interpretation of section 26 of the Court of Claims Act (705 ILCS 505/26), which states:

“There shall be but one satisfaction of any claim or cause of action and any recovery awarded by the court shall be subject to the right of set-off.”

Both Sallee and Paschal hold that the law in the State of Illinois is that the collateral source rule is now applicable in the Court of Claims. The collateral source rule would be invoked to deny a set-off of workers’ compensation payments since they arise from an independent statutory source. The collateral source rule holds, in effect, that a tortfeasor is not entitled to a set-off for any sum paid from a source created by the plaintiff. Only in a case where a joint tortfeasor has made a payment to the plaintiff should that amount be set-off. The principle which underlies this rule is fully discussed in the Restatement of Torts, specifically section 920(a), which states as follows:

“920A. Effect of Payments made to Injured Party.
A payment made by a tort feasor or by a person acting for him to a person whom he has injured is credited against his tort liability, as are payments made by another, who is, or believe he is, subject to the same tort liability.
Payments made to or benefits conferred on the injured party from other sources are not credited against the tort feasors liability although they cover all or a part of the harm for which the tort feasor is liable. Therefore, under Illinois law, the Defendant is not entitled to the benefit of credits which he did not help to create. This has been held to be the law in this State for many years with regard to a variety of different types of payments received by injured parties, including workers’ compensation payments. (Bryntesen v. Carroll Construction Co., 36 Ill. App. 2d 167, 184 N.E.2d 129, affirmed (1962), 27 Ill. 2d 566, 190 N.E.2d 315; Rylander v. Chicago S.L.R. Co. (1959), 17 Ill. 2d 618,161 N.E.2d 812).”

In this case, Ms. Zimmerman’s employer is not a joint tortfeasor. Her cause of action against the employers arises not from tort, but from its statutory obligation under the Workers’ Compensation Act of this State. Therefore, the employer’s payments arise from a “collateral source.” No set-off will be allowed as a result of the workers’ compensation payments.

Finally, the Respondent argues that the Claimant is not entitled to an award because judgment was entered against the inmate who attacked her in the amount of $350,000. The record in this case clearly shows that a stipulation was entered into by counsel for both parties that the only claim for set-off by the Respondent would be for medical expenses paid as a result of the workers' compensation. We find that stipulation binding on subsequent counsel for the Respondent. In addition, however, a judgment against an inmate serving a lengthy prison term with no obvious source for paying the judgment does not prohibit a Claimant from recovering from the State of Illinois. The Claimant has a duty to exhaust her remedies. She did that by suing Armstead and receiving the $350,000 judgment. The argument advanced in the Respondents brief to the effect that any monies for which Armstead is liable should be set-off against the award of this Court, whether or not Armstead paid them, ignores the clear meaning of section 26 of the Court of Claims Act. Therein, the words “satisfaction” and “recovery” are clearly used to indicate that a set-off only applies to monies collected. In this case, the uncontroverted testimony was that no monies had been collected as a result of the judgment against Arm-stead. The Respondents theory of set-off is not supported by any prior decision of this Court.

In summary, the Claimant has overwhelmingly met her burden of proof. Respondents negligence clearly was a proximate cause of her injuries. We award Carol J. Zimmerman the sum of $100,000.


author: Frederick, J.

text:
    (No. 88-CC-1130
    Lloyd Francis, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 13, 1994.

    SCHOENFIELD & SWARTZMAN (RICH SCHOENFIELD, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Terence J. Corrigan, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Lloyd Francis, an inmate in the Illinois Department of Corrections, filed his complaint sounding in tort on October 28, 1987. An amended complaint was filed on July 29, 1988. The amended complaint alleges Claimant lost part of his thumb through the negligence of the Respondent when he was ordered to clean a glue press machine without proper training and which was not properly equipped.

The cause was tried before Commissioner Johnson.

The Facts

In July of 1987 the Claimant, Lloyd Francis, was incarcerated by the Illinois Department of Corrections (IDOC) in the Graham Correctional Center in Hillsboro, Illinois, as a result of a theft conviction. At that time, Claimant had been at Graham for about eight months.

The Graham Correctional Center operated a small furniture factory in one large room. The view across the factory was obstructed by the office area.

Claimants work assignment was to make cardboard boxes and to place furniture into those boxes. This had been his work assignment for six months or more, prior to the date of his injury on July 13,1987.

Mark Everett was employed by the State of Illinois Correctional Industries at Graham in July 1987. He was the “lead worker” which meant that he was the floor foreman.

On July 13, 1987, the Claimant was in an accident involving a glue press machine. The glue press was about 20 feet from the area where Claimant worked with the boxes. On the day of the accident, Claimant and John Williams were told to clean the glue press by a supervisor. The supervisors name was Mr. Nisely. The glue press had just been used for gluing particle boards and there was glue on the rollers of the machine. Claimant and Williams proceeded to try to clean the glue press with soap, water and a rag. Claimant was wiping the rollers with the rag. Claimant was not told to use the rag by supervisor Nisely.

The glue press was on while Claimant was wiping a roller with the rag. The roller pulled the rag into the machine and Claimant’s right thumb was caught in the roller. Claimant tried to pull back and part of his thumb was pulled off. Blood shot out of his thumb and he felt pain.

Williams wrapped a rag around Claimant’s thumb and took him to the front desk of the factory. Claimant was then rushed to the prison health care unit where he was seen by Dr. Baggia. During this time, Claimant did not see either Mr. Nisely or Mr. Everett. Claimant remained in the prison health care unit for about one half hour and then was taken by prison officials to the Hillsboro Area Hospital emergency room where he was examined by Dr. McFarlin. After receiving emergency care from Dr. McFarlin, the Claimant was transported by ambulance to Memorial Medical Center in Springfield. During this time, Claimant’s thumb was throbbing and he was in a great deal of pain. Before being placed in the ambulance for the trip to Springfield, Claimant was given Demerol.

Mr. Everett was not near the glue press when the accident occurred. It was Mr. Everetts job to circulate around the shop supervising a number of different stages of the operation. Mr. Everett could not remember how many stages he was supposed to have been supervising at the same time. Mr. Everett was informed of Claimants accident by the officer on the desk, Officer Shroyer.

There was a warning on the glue press not to put hands near the rollers. Claimant was aware of this warning. The manufacturers instruction manual for the glue press indicated a long-handled brush should be used to clean the rollers. The manufacturers manual for the glue press states, in part:

“READ AND UNDERSTAND THESE OPERATING AND SAFETY INSTRUCTIONS BEFORE OPERATING, CLEANING OR SERVICING THIS MACHINE. This instruction manual is a must for machine operators. It should be kept available so that they will become familiar with the operation, adjustment, lubrication, and safety instructions ° 0
EMPLOYER’S RESPONSIBILITY TO: PERMIT ONLY trained and authorized employees to operate equipment e 4 4. INSTRUCT, TRAIN AND SUPERVISE the safe method of work. AN ACCIDENT IS MOST LIKELY TO OCCUR WHEN OPERATOR IS UNFAMILIAR WITH MACHINE " • BE SURE YOUR OPERATOR IS PROPERLY TRAINED AND SAFETY RULES ARE CLEARLY UNDERSTOOD BEFORE YOU GIVE PERMISSION TO OPERATE OR CLEAN-UP.
MACHINE CLEAN-UP Operator is closer to machine during clean-up than during production. Extra care should be taken; follow tírese basic principals: DO NOT BEGIN CLEAN-UP UNTIL YOU HAVE READ AND UNDERSTAND THE CLEAN-UP INSTRUCTIONS. THE REVERSING FEATURE ON THIS MACHINE ENABLES IT TO ALMOST CLEAN ITSELF IF PROPER PROCEDURES ARE TURNING. HANDS SHOULD NEVER TOUCH ROLLS WHILE THEY ARE TURNING. WHENEVER ONE HAND IS NEAR A REVOLVING ROLL, KEEP OTHER HAND ON OPERATING CONTROL BAR 1 1 Mf rolls must be wiped, STOP die rolls, wipe accessible area, (witii operating bar) job in reverse to anodrer position, STOP rolls and wipe-repeat until rolls are wiped clean. Use paper wipes.
BRUSH with long handles may be used for clean-up 0 * 4. When used, hold brush at end of handle as far from roll as possible with other hand on operating control bar.”

Mr. Everett testified he warned all workers who used the machine about using safety around this machine. This usually was a ten-minute proceeding when new workers came in. He could not specifically remember warning Claimant but was sure he had done so. This was a dangerous machine requiring safety precautions.

At Memorial Medical Center in Springfield, the Claimant underwent surgery for a right thumb tip amputation. The surgery was performed by Dr. Zook who found that Claimant had suffered an avulsion of the palm side of his thumb beginning at the interphalangeal joint and extending to the tip of the thumb, that a segment of the distal phalanx bone was exposed, and that nerves as well as blood vessels had been avulsed. According to Dr. Zook, the damaged area was approximately 3 by 2.5 centimeters.

On the day of the accident, Dr. Zook performed a cross-finger flap operation in which he connected Claimants right thumb and index finger in an effort to repair the damage to Claimants nerves and blood vessels. This operation entailed grafting skin from Claimants left groin.

Claimant was released from Memorial Medical Center and returned to the prison where he was placed in the health care unit. He remained there for about a week and a half to two weeks. On July 30, 1987, the Claimant was brought back to Memorial Medical Center in Springfield where a second operation was performed to divide the cross-finger flap. In both operations, Claimant was given general anesthesia through an endotracheal tube. On August 10, 1987, Dr. Zook found that the Claimants wounds were “almost healed.”

At the time of the trial, the Claimant was 33 years old. He was a high school graduate. At the time of the trial, the Claimant was incarcerated on a burglary conviction in Galesburg and his job assignment was to sweep with a broom. The Claimant continued to be paid his prison wages after the accident, even though he could no longer work in the factory.

The Law

The State owes a duty to prison inmates to provide safe working conditions, including safe and adequate work tools with which to perform their assigned work. Reddock v. State (1978), 32 Ill. Ct. Cl. 611; Hughes v. State (1984), 37 Ill. Ct. Cl. 251.

The manufacturers manual stated that a long-handled brush should be used to scrub glue off of the rollers and the States only witness, Mark Everett, testified that using such a brush was the proper way to clean the machine. A long-handled brush was an essential work tool needed to safely clean the rollers of the glue press, but there was no brush of any kind available to Claimant on the day of the accident. The State negligently caused Claimant to be injured by failing to provide him with the proper equipment, namely a long-handled brush, to scrub the glue off of the glue press rollers.

The glue press manufacturers manual specifically calls for using paper wipes to use in wiping off the rollers after first scrubbing the rollers with a long-handled brush. The State provided Claimant with only rags to use to wipe off the rollers, instead of the paper wipes specified by the manufacturer’s manual. Paper wipes are safer to use on rollers than rags because a paper wipe is more likely than a rag to tear away, rather than to pull a worker’s hand into the machine. The State negligently caused Claimant to be injured by failing to provide him with the proper equipment, namely paper wipes, to wipe the rollers.

IDOC has a duty to supervise inmates as they work in order to provide a safe working environment. (Hughes v. State (1984), 37 Ill. Ct. Cl. 251.) No supervisor was present while Claimant and another inmate were trying to clean the glue press, nor could Mark Everett, the supervisor, see across the factory from where he was to the glue press. The State negligently caused Claimant to be injured by failing to provide proper supervision for the inmates cleaning the glue press.

The manufacturers manual stated in several places that anyone who was going to clean the glue press should read the instructions in the manual before attempting to do so. Contrary to the manufacturers instructions, Claimant was never given the glue press manual to read before he was told to clean it.

The State violated the manufacturers safety recommendations by not having inmates who cleaned the glue press first read the manual on how to do so and thereby negligently failed to provide proper supervision and training in how to safely clean the glue press and negligently failed to provide a safe work environment.

Assuming that Claimant had received some instructions on how to clean the glue press in the past, those instructions were not proper or sufficient as, at most, those were a few minutes of perfunctory verbal instructions, given quite some time before Claimant worked on the glue press, without having Claimant read the instruction manual, without warning about the danger of the rollers to ones hands, without warning that whenever one hand was near a roller, another hand should be on the operating control bar, and without warning that when scrubbing or wiping the rollers, the machine should be stopped and a hand should be kept on the control bar.

The State negligently caused Claimant to be injured by failing to properly instruct Claimant on how to clean the glue press. The glue press ripped off part of Claimants thumb, tearing it down to the bone and damaged both blood vessels and nerves. Claimant suffered severe pain at the time of the accident and for weeks thereafter.

Claimant underwent two (2) operations to repair the damage to his thumb and both of those operations required general anesthesia. The first and more extensive of those operations entailed not only sewing the thumb and index finger together, but also grafting tissue from Claimants groin to graft onto his thumb. Claimants injury was to his right thumb and he is right-handed.

Claimant has been left with a permanent disability whereby the bottom of his thumb from the joint to the tip lacks feeling and the remainder of the bottom of his thumb is overly sensitive to sensation and thus affects Claimants ability to pick up small objects and to write. The Claimant had no medical bills or lost wages.

As an inmate, the Claimant was required to take orders and carry them out. To refuse to do so would subject him to disciplinary action. He did not occupy a position of independence which a person outside a penitentiary occupies. His choice of actions being limited, he kept silent and did as he was ordered. (Goodrich v. State (1984), 36 Ill. Ct. Cl. 326.) However, with the advent of comparative negligence, the Court has looked at the conditions under which the inmate acts in the face of known danger to determine if any comparative fault should be assessed. Douglas v. State (1989), 41 Ill. Ct. Cl. 29.

In the present case, the glue spreading machine was self-cleaning, it was proper to leave the machine turned on during the cleaning operation. Claimant was aware that he should not put his hands near the moving rollers. There were some warnings to the Claimant not to put his hands near the rollers.

We, therefore, find that Claimant was 30% negligent. The value of Claimants injury is $20,000. This total must be reduced by Claimants 30% comparative negligence to $14,000.

Therefore, it is ordered that an award of $14,000 is hereby entered in favor of Claimant, said award being in full and complete satisfaction of Claimants claim.


text:
    (No. 88-CC-1298
    Linda M. Oleson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 12, 1994.

    Talbert & Mallon (Lance K Mallon, of counsel), for Claimant.
    Roland W. Burris, Attorney General (David Bo Mattson, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This claim arises out of a slip and fall which occurred on April 7, 1987, at the Pere Marquette State Park. Mrs. Oleson, accompanied by her husband and son, were at the park at approximately 6:00 to 6:30 p.m. They stopped at a scenic overlook to dispose of trash. The Claimants car pulled along side the trash can, leaving a space of four feet to open the door. When she stepped out of the car towards the trash can, Mrs. Olesons right foot slipped and caught on a pile of debris. The debris was described as chunks of asphalt or rocks, ranging in size from 12 inches to small pebbles. Mrs. Oleson twisted her ankle and right arm from her elbow to her shoulder. After the fall, she looked where she had Mien and saw chunks of debris in a pile about three feet by one foot wide.

Prior to exiting the vehicle, Mrs. Oleson had noticed the difference in level between the road and shoulder. The road had a jagged area between it and the gravel shoulder. This was not the area where Mrs. Oleson fell. She states that she never saw the pile of chunks on her many previous visits, but she had noticed on prior visits that the edge of the road had become jagged. Mrs. Ole-son did not report the accident to the park but left to go to the hospital. It was still light outside at the time of the accident, and it should be noted that Mrs. Oleson Was wearing Nurse-Mate rubber-soled shoes at the time of the fall.

Mrs. Oleson went directly to the Alton Memorial Hospital. She returned the next morning and was examined by Dr. Michael Taylor. An arthrogram was performed on the Claimant and fluid was removed from her shoulder. She received a shoulder immobilizer. The diagnosis was a contusion injury and sprain to the right shoulder capsule with subsequent development of inflammation.

The doctor ordered physical therapy. His opinion was that the injury was causally connected to the fall of April 7, 1987, in the park. The doctor treated her up until July 1987 and once in 1991 when she received a cortisone injection. He also saw her once in 1992. When he released her in May 1987, he recommended follow-up visits. She did not follow up with the doctor because she received free care from the doctor for whom she subsequently became employed. Her employer prescribed an anti-inflammatory medication which she takes on a daily basis.

Mrs. Oleson missed six weeks of work immediately following the accident. She claims to continue to have pain in her right arm, limiting her activities. She attended a class at Lewis & Clark Community College for pain management.

Claimants special damages are specified as follows:

Alton Memorial Hospital $106.86

Alton Memorial Hospital 228.87

Alton Physical Therapy 326.00

Alton Medical Imaging Consultants 15.00

Dr. Michael Taylor 483.00

Total medical damages $1,239.73

Lost wages from 4/8/87 through 5/25/87 $1,200.00

Richard Brown, a former park superintendent, testified that the roadway at the overlook was jagged as a result of wear and tear. He also testified that there were no warnings posted about the jagged roadway or resulting debris. Mr. Brown had received complaints about road conditions along the overlooks prior to 1987, and he had received complaints about the overlook in question in April 1987. The staff at the park would patch the potholes when they could, but complete re-pavement or shoulder work was the responsibility of the Capital Development Board. The park superintendent testified that he requested that the Capital Development Board repair the roads and overlooks prior to 1987, but the request was denied.

Mr. Richard Niemeyer, the current park superintendent, testified that he was aware of the jagged area along the roads and overlooks, but had not noticed the broken-off fragments. His testimony in other respects was basically consistent with that of Mr. Brown.

To prevail on her claim, Mrs. Oleson was required to prove by a preponderance of the evidence that the State had the duty to maintain the area in question, that the State breached the duty, and that such breach was the proximate cause of her injury. (Dellorto v. State (1979), 32 Ill. Ct. Cl. 435; Preikschat v. State (1985), 37 Ill. Ct. Cl. 29; Calvert v. State (1985), 38 Ill. Ct. Cl. 104.) The State is entitled to notice of the existence of danger or hazards posed to the public and a sufficient period of time to cure such problems. Merkel v. State (1949), 19 Ill. Ct. Cl. 106.

We hereby hold that the State had sufficient notice in the present case. Complaints had been made about the overlook in question in April 1987. The superintendent had requested assistance from the Capital Development Board, but that assistance had been denied. We find that the State breached its duty by allowing the roadway and overlook to deteriorate, thereby causing a hazard to individuals using the park. The State even anticipated that the particular area in question would be used by people, as evidenced by placing a trash can at the site of the overlook. In addition, the State failed to post any warning as to the danger of crumbling asphalt and debris. The State has a duty to warn visitors against conditions in the park that might endanger pedestrians. Dumermuth v. State (1966), 25 Ill. Ct. Cl. 353.

Despite this, we find that the Claimant had some degree of comparative fault. Reasonable people should always look where they are placing their feet when walking. Therefore, we assign the Claimant 25% comparative fault. We set the total damages of a sum of $10,000, and after deducting 25% comparative fault, we award the Claimant $7,500.


author: Frederick, J. Frederick, J.

text:
    (No. 88-CC-1443
    Pat Frank De Leo and Norman Hafron, Claimants, v. The State of Illinois, Respondent.

      Order filed May 10, 1993.

      Order filed September 24, 1993.

    Hinshaw & Culbertson (Paul L. Pawlowski, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Thomas L. Ciecko, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Frederick, J.

The Claimants filed their complaint seeking thirty thousand dollars ($30,000) on November 12, 1987. The troubled history of this claim is set forth in the Courts order of February 26, 1993, denying Claimants’ motion to reconsider the joint stipulation filed January 9,1989.

The case is back before the Court on what is in effect the parties’ third attempt to satisfy the inquiries of the Court as to why this Court should approve the parties’ stipulation awarding damages to Claimants.

This Court, from the beginning, has wanted to know just how the State was liable and we have used our authority that stipulations are not necessarily binding on this Court to deny the parties’ stipulation to date. Moore v. State (1987), 40 Ill. Ct. Cl. 212.

From the pleadings, we can determine that Beatrice Steward was a business invitee. The State’s duty to a business invitee is that the State owes such visitors the duty to use reasonable care in keeping the premises reasonably safe and this duty includes the duty to use reasonable care to discover any defects or dangerous conditions existing on the premises. The invitee need not prove the State had actual knowledge of the dangerous condition which caused the invitees injury, but the invitee must prove that the State, by using reasonable care, could have discovered the condition. Long v. State (1987), 40 Ill. Ct. Cl. 39.

The State, however, is not an insurer against accidents occurring to invitees on State property. (Schrup v. State (1990), 42 Ill. Ct. Cl. 257.) Invitees on State property assume the normal, obvious and ordinary risks attendant on the use of the premises. (Thornburg v. State (1986), 39 Ill. Ct. Cl. 139.) To show negligence, a claimant must prove the State was negligent in its maintenance of the premises in that it had actual or constructive notice of a dangerous condition. (Samuelson v. State (1986), 38 Ill. Ct. Cl. 257.) The duty of the State, therefore, may be different than that of the non-State property owner.

With this background, we must carefully review the stipulation and pleadings of the parties to determine if we should approve in whole or in part the stipulation of the parties. (A & H Plumbing & Heating v. State (1990), 42 Ill. Ct. Cl. 195.) Close scrutiny of the latest stipulation and prior pleadings fails to show that the parties have agreed or that there is proof that the State was negligent and that it had actual or constructive notice of a dangerous condition that caused the injuries of Beatrice Steward. There is also no agreement or proof as to whether and how the States negligence, if any, exceeded that of Claimants. We invite Claimants and Respondent to file an amended stipulation spelling out in detail the answers to our two remaining inquiries. In the event the amended stipulation answers those questions to the Courts satisfaction, we will look favorably on entering an award as we do not seek to stop the parties from settling. However, we do have an obligation and a duty to review stipulations and any order of payment where the State is negligent.

For the foregoing reasons, the joint stipulation of the parties filed March 23, 1993, is not approved and the cause is remanded to the Commissioner assigned to the case for further proceedings.

ORDER

Frederick, J.

This cause coming on the amended joint stipulation of the parties and the Court being fully advised in the premises:

Wherefore, the Court finds:

(A) That the amended joint stipulation filed July 27, 1993 adequately responds to the Courts concerns regarding liability.

(R) That while the Court is not bound by stipulations we do not seek to inject controversy where none exists.

(C) That the amended joint stipulation filed July 27, 1993 by the parties is adopted by the Court as the findings of the Court.

Therefore, it is ordered:

(1) That Claimants are entitled to contribution.

(2) That Claimants are awarded thirty two thousand four hundred dollars ($32,400).

(3) That the draft shall be made payable to Beatrice Steward, Pat Frank De Leo and Norman Hafron.

(4) That concurrent with the delivery of the draft the Claimants shall provide the Respondent with a full and final release signed by Beatrice Steward and both Claimants, their heirs and assigns, releasing the State from any further liability from the occurrence stated in the complaint and amended joint stipulation and which waives, releases and relinquishes any other claims against the State by Claimants and Beatrice Steward arising out of and in connection with the incident complained of.

(5) That the entire amount of the proceeds awarded herein shall be paid by Claimants to Beatrice Steward.


author: Sommer, J.

text:
    (No. 88-CC-2461
    BroMenn Healthcare d/b/a Brokaw Hospital, Claimant, v. The State of Illinois, Respondent.

      Order filed August 5, 1993.

    Markowitz & Lawrence (William B. Lawrence, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Christine Zeman, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Sommer, J.

This cause coming to be heard on the motion to dismiss filed by the Respondent and the motion of this Court, due notice having been given, and this Court being fully advised, finds:

(1) That this Court is engaged in a program of clearing its dockets of cases in which no action has occurred for some years.

(2) That this claim involves a written contract between the Department of Mental Health and the Claimant to provide professional services.

(3) That this claim is for funds over and above the amount of the contract.

(4) That this Court cannot order payment of claims for professional services in excess of the written contract amount. Brokaw Hospital v. State (1979), 32 Ill. Ct. Cl. 810.

(5) That the Court finds it was a pre-existing practice to allow the contract amount to be over-run; and the payment of the over-run would be stipulated thereto by the Department and Attorney General.

(6) That in this claim and others in 1986, the Department and Attorney General suddenly refused to stipulate to the over-run.

(7) That this Court may not grant a judgment in quantum meruit.

(8) That the same subject matter and claim was briefed and decided in the claim of Franciscan Sisters d/b/a St. Elizabeth’s Hospital v. State (1987), 86-CC-155.

(9) That this Court ruled in Franciscan Sisters, supra, that the claim for over-runs must be dismissed.

(10) That this Court must dismiss the present claim.

(11) That, however, the Claimant may wish to present this claim to the General Assembly due to the fact that the pre-existing practice was suddenly changed by the Department and Attorney General.

(12) That for the purposes of presentation to the General Assembly, this Court finds that services were billed in the amount of $158,193.48 by the Claimant, and the amount was not contested by the Department, and could have been paid for but for exceeding the contract limit, which could have been amended. Additionally, according to the departmental report, sufficient funds did lapse from F.Y. 85 appropriation number 050-46220-4467-1500.

It is therefore ordered that this claim is dismissed.


text:
    (No. 89-CC-0022
    Nicolette M. Steger, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 15, 1993.

    Brady, McQueen, Martin, Collins & Jensen (Loren S. Golden, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Arla Rosenthal and Robert J. Sklamberg, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Frederick, J.

On May 14, 1988, the Claimant, Claimants ex-husband, Robert Steger, and Claimants children went to the Bone Center of the Braden Auditorium at Illinois State University to watch Claimants son, Patrick, receive an award at a young writers/authors ceremony. Patrick was to receive an award for something he had written. There were several hundred people at the ceremony. The awardees were third and fourth grade children. The doors to the auditorium were opened at 1:00 p.m. and the Steger family entered at that time. Robert Steger, the father, noticed a slippery substance on the floor at the back wall near the door of the auditorium and saw a small child slip on that substance. Mr. Steger was the only one who saw this slip and he told no one about it.

Claimant and the others in their party went to their seats and sat down. About 15 minutes later, Mrs. Steger and her daughter went to get a program and walked to the back of the auditorium. Claimant walked behind her daughter. Claimant then slipped on some vomit on the floor and injured her right knee. This resulted in a tom ligament. Dr. Carson, Claimant’s expert witness, indicated there would be some permanence to the injury. Claimant was on cratches about a month. The substance slipped on appeared to be vomit.

Three student managers were present in their office adjacent to the ballroom at the time of the accident. Angela Dahl testified by deposition and Jill Jacobs testified in person. Angela Dahl was advised of the spill from the woman in the lobby shop. Jill Jacobs called the building service worker and Angela walked to the ballroom to check on the spill. Angela believes it was about five minutes from the time she was told of the spill until she got down to the area of the spill. The janitor was just arriving to clean up the spill when she arrived. Jill Jacobs testified that her job included supervising building service workers and making sure rooms were properly set up and cleaned. She testified that she received notice at 1:15 p.m. that someone had thrown up. She wrote the time down. An unknown person reported it to the gift store, whose personnel radioed her. She testified that another student manager was on duty since two events were taking place in the building. She testified she was in charge of two buildings. After receiving notice of a “spill,” she radioed a janitor to clean it up. The janitor cleaned it up within three or four minutes. She testified her room was 30 seconds from the room in which the “spill” occurred. She further testified that she then went to see the spill and saw Claimant on the floor and offered assistance. A janitor was already there cleaning the vomit from the floor. She estimated it took two minutes for the janitor to get to the “spill.”

This student manager also testified that Claimant told her her knee went out. She stated that Claimant wanted to stay until the event was over. The manager said that if Claimants husband went to the office, he could get a wheelchair for transport to the nurses station or to go home in her car. She further testified that there was an individual who was the auditorium manager in charge of ushers, staff and nurses. He was not in charge of the ballroom that day and his whereabouts were unknown.

The janitor then testified that it took him two to three minutes to get to the spill and only a few minutes to clean up the spill. He testified that the spill was about two feet long. A university nurse testified that she offered aid to Claimant at the scene. She also offered Claimant a wheelchair. Later on, she observed Claimant standing in the doorway of the first aid room. The nurse was surprised since she was going to get her a wheelchair. The nurse examined her and saw some swelling and discoloration with good movement to her ankle. Claimant told her that her knee had popped out before. Claimant declined to get x-rayed as she preferred to see her private doctor. Claimant subsequently underwent arthroscopic surgery on her knee.

Claimants doctors deposition shows that her prior knee injuiy had some part of but not most of what happened to cause the ligament surgery which resulted from the fall. The surgery she had in regard to this injury was for a tom ligament and tom cartilage. Claimant suffered pain, she could put no weight on her limb for 10 days, and she suffered discomfort for some time. Claimant also had physical therapy for six weeks. She lost two months from work. Claimants medical bills and lost wages totaled $10,542.09. A substantial portion of the wage loss was covered by disability insurance leaving the total medical and wage loss at $7,982.09.

The evidence is that someone vomited or spilled something that looked like vomit in the university ballroom either shortly before or at about the time the doors were opened at 1:00 p.m. The evidence is that Claimant slipped on the “spill” between 1:00 p.m. and 1:15 p.m. The evidence further shows that upon notification by an unknown individual, Respondent had it cleaned up in a few minutes. Claimant argues that 15 minutes (or more) is too long a response time to a dangerous situation. Respondent says there was no constructive or actual notice until 15 minutes after the spill occurred and that a response of three to five minutes afterwards is reasonable.

The State of Illinois is not an insurer of the safety of persons visiting its buildings but rather such visitors are owed a duty of reasonable care in maintaining the premises. Claimant was an invitee to whom a duty of reasonable care for her safety was owed by Respondent to Claimant. (Berger v. Board of Trustees (1988), 40 Ill. Ct. Cl. 120.) The Claimant has the burden of proving by a preponderance of the evidence that Respondent breached its duty of care, that Claimant was free of contributory negligence in line with our decisions on comparative negligence, that the negligence of Respondent proximately caused the injury, and that the State had actual or constructive notice of the dangerous condition from all the circumstances in the case. Berger, supra, at 124.

The State has no duty to clear away every possible source of injury. A legal duty requires more than the possibility of occurrence and the State, like any other person, is charged with a duty only when harm is legally foreseeable. The issues of foreseeability and duty involve many factors, including the magnitude of the risk, the burden of requiring the State to guard against the risk, and the consequences of placing this burden on the State. Wilson v. State (1989), 41 Ill. Ct. Cl. 50.

In the case before us we find that the possibility of slippery foreign substances being on the floor of this building with hundreds of people, including children being present, was clearly foreseeable. The burden of guarding against this risk was minimal as employees were already on hand for this purpose. Unfortunately they were sitting in a room 30 seconds away as people were walking into the ballroom to find their seats.

We find this to be a very close case. In almost all other circumstances, three to four minutes of actual notice would not be sufficient to charge the State with a duty. However, in this case, the Claimant has proven by a preponderance of the evidence that the State had actual notice of a dangerous situation. The negligence occurred when one of the student managers, only 30 seconds away, did not immediately go to the area of danger and warn the Claimant and others of the danger. The testimony of Claimant and her doctor also satisfies the court that a causal connection exists for the injuries suffered by Claimant. Claimant was free from contributory negligence in that the substance was difficult to see. We note that the janitor had trouble finding the slippery substance on the floor.

We have reviewed the damages and believe that an award of $25,000 fairly compensates the Claimant for her past and future damages. It is therefore ordered that an award of $25,000 is hereby entered in favor of Claimant, said award being in full and complete satisfaction of Claimants complaint.


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    (No. 89-CC-0632
    Ahmet T. Arguden, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 10, 1993.

    Joseph V. Roddy, for Claimant.
    Siegan, Barbakoff & Assoc. (Norman Jeddeloh, of counsel), for Respondent.
   OPINION

Frederick, J.

The Claimant, Ahmet T. Arguden, filed his complaint in the Court of Claims on September 1, 1988. Claimant alleged that on September 29, 1986, he was the victim of a false arrest in regard to an alleged theft at the Chicago Circle Center Book Store on the University of Illinois Chicago Circle campus. In Count II of the complaint, the Claimant alleged a malicious prosecution claim against the Respondent for causing criminal charges to be lodged against Claimant.

The cause was tried by the Commissioner assigned to the case.

The Facts

Claimant was a student and was also teaching at the University of Illinois, Chicago campus, in the fall semester of 1986. Claimant had completed his Masters degree in 1984 and was working on his Ph.D. in geology. Claimant completed his Ph.D. in 1989.

At about noon on September 29, 1986, Claimant went into the University bookstore to purchase a pair of handball gloves. In the bookstore there was an open area immediately inside the electronic doors. Further inside, there was a charge desk and several cashiers. Past the other side of the charge desk and cashiers’ stations was where the merchandise was located. The handball gloves were in the very back of the store. Claimant went to the back of the store and picked out a pair of handball gloves. Claimant testified the gloves were in disarray and he had to go through the pile to find a matching pair. Claimant then proceeded to the charge desk. Claimant testified there were lines of people at the charge desk. One such line extended into the merchandise section of the store and another line extended into the area between the counter and the entrance to the bookstore.

Claimant further testified that while he was waiting in line by the charge desk, he was approached by Steven Bradd, a security officer-employee of tibe bookstore. Claimant testified that Bradd held Claimant’s right arm and led Claimant out of the line and downstairs to an office.

Claimant was brought into an office and informed that he was accused of stealing the handball gloves. Claimant was requested by Bradd to sign a form admitting that he had stolen the gloves. Claimant was advised that if he did sign the form the matter would be referred to the university discipline committee. He was further advised that if he did not sign the form, the university police would be called. Claimant refused to sign the form and police officers were called. Claimant was handcuffed, led through the bookstore, through the Circle Center building, and through part of the campus to the police car. Claimant was then taken to the police station where he was charged with theft. He was detained until Dr. Rodolfo, a professor at the university, arrived and posted bond for Claimant. Claimant was charged with misdemeanor retail theft and appeared in court at least three times. At the last court appearance, the charges against him were stricken with leave to reinstate. The charge was never reinstated.

Claimant testified that the aggravation and trauma of the incident caused a delay in the completion of his Ph.D. dissertation of about one year.

The Claimant acknowledged that he was familiar with the University Bookstore and had been in the bookstore many times prior to the incident. Claimant knew that it was necessary to go to a charge desk to get a charge slip before charging goods. Claimant testified he waited in charge line A until his turn came. At that point, he asked the charge desk attendant for the price of the gloves. However before he had the opportunity to do anything else, according to the Claimant, Bradd approached him in the line, touched him on the arm, and told Claimant to come with him to the lower level of the bookstore and accused him of theft. Bradd was polite to Claimant.

The Claimant testified that at the first court appearance, his own lawyer asked for a continuance and that there was never a finding by a court of “not guilty” on the criminal charge. Claimant asserts that he suffered emotional upset due to this incident and that he was required to pay an attorney $500 to defend the criminal charge.

The Claimant prepared a statement describing the incident one day after the incident to assist him in accurately remembering and providing testimony. Claimant says that the statement is inaccurate since it suggests that he was actually in charge line B at the time of the Bradd apprehension. The Claimant contends that the statement is inaccurate because he temporarily went to charge line B but then returned back to charge line A.

The Claimant never saw any counselor or medical provider as a result of this incident. Claimant is not aware of any damage to his reputation and does not claim any form of disability. Claimant does not know of any situation in which the university “published” any information about this incident to any person and he suffered no adverse action in his own department as a result of the incident.

Dr. Rodolfo, a geology professor at the University of Illinois at Chicago for over 20 years, testified that Claimants reputation for truth and veracity was of the highest nature. Dr. Rodolfo also testified that he went with Claimant to the bookstore the next day to go over the incident with Claimant step by step. Dr. Rodolfo observed the racks of gloves but testified the racks of gloves were not in a state of disarray when he viewed them. Dr. Rodolfo was the Claimants faculty advisor and knew Claimant well. Dr. Rodolfo considers himself to be a friend of Claimants. He also asserted that the Claimant was delayed in the completion of his Ph.D. by one year as a result of his obsession with the incident.

Steven Bradd was a security guard at the University Bookstore on September 29, 1986. Bradd testified he observed the Claimant enter the bookstore and go to the handball glove rack. Bradd considered the handball glove area a “trouble spot” because it was in a secluded area where retail thefts occur more frequently. Bradd had previously inspected the whole store and made sure the handball glove racks were neat. Bradd observed the Claimant remove a pair of gloves from a box, try them on, then throw the box onto the rack and walk away with the gloves folded up in his hand.

Bradd recovered the box and then followed the Claimant to the charge desk. Bradd positioned himself so that he did hear the Claimant ask the person behind the charge desk the price of the gloves. After the Claimant went to the charge desk, the handball gloves were balled up in Claimants hand so that they could hardly be seen. Bradd testified that the Claimant looked around from time to time throughout the incident.

Bradd testified that after Claimant asked the price of the gloves, the Claimant looked to his left and right, walked by a cashier line and begem walking towards the bookstore exit. At that point, Bradd apprehended the Claimant.

Bradd testified he identified himself as “bookstore security” and requested the Claimant to accompany him to discuss the incident. He took the Claimant to an office and accused him of committing retail theft. Bradd told the Claimant that he could either resolve this matter through the student disciplinary proceeding or Bradd would call the police. According to Bradd, the Claimant initially refused to sign the letter referring the matter to student discipline but later offered to sign it as the police were handcuffing him.

Bradd testified he acted to detain the Claimant solely because he believed the Claimant was committing retail theft.

On September 29,1986, there was an electronic gate at the store. The gate would set off an alarm if goods not deactivated were carried through it. The price tag would set off the alarm. Cashiers at the time of purchase deactivated the alarm. The price tag on the handball gloves was on the box. The gloves Claimant had were out of the box.

Michael Landeck, the stores general manager, testified that, when he came to the University Bookstore, he established a loss prevention program to minimize retail theft. Landeck wrote a training manual for that purpose and trained Steven Bradd in appropriate techniques for minimizing retail theft. He stated that it was consistent with the training manual and a good practice to apprehend and detain suspects in an area between the last point of purchase and the doorway to the exterior. He also stated that this was consistent with practice in the industry. Landeck also confirmed that the price tags on the products trigger the bookstore’s electronic gate unless desensitized by bookstore cashiers using a procedure obvious to any customer at the bookstore.

It was Landeck’s responsibility to keep track of court dates for the Claimant’s case. He conceded that, after several appearances, the case was, in effect, dismissed for lack of prosecution because the witnesses from the University failed to attend.

The Law

The Claimant seeks a finding of liability on the theory of false imprisonment and on a theory of malicious prosecution. False imprisonment consists of an unlawful restraint, against the will of an individual’s personal liberty or freedom of locomotion. (Dutton v. Roomac, Inc. (1981), 100 Ill. App. 3d 116, 426 N.E.2d 604.) False arrest is one means of committing false imprisonment. (Shemaitis v. Froemke (1955), 6 Ill. App. 2d 323, 127 N.E.2d 648.) Claimant has the burden of proving by a preponderance of the evidence that the security officer imprisoned him, that the security officer did not have probable cause to detain or arrest him, and that he suffered damages therefrom. Ivancic v. Stole (1961), 24 Ill. Ct. Cl. 81.

In Dutton, supra, the Court stated that “an arrest authorized by statute cannot be grounds for civil liability.” Since security officer Bradd detained and arrested the Claimant pursuant to section 16A — 5 of the Criminal Code (720 ILCS 5/16A — 5), the detention and arrest herein cannot be grounds for false imprisonment. Section 16A — 5 states:

“Any merchant who has reasonable grounds to believe that a person has committed retail theft may detain such person, on or off the premises of a retail mercantile establishment, in a reasonable manner for a reasonable length of time for all or any of the following purposes:
(a) To request identification.
(b) To verify such identification.
(c) To make a reasonable inquiry as to whether such person has in his possession unpurchased merchandise and, to make reasonable investigation of the ownership of such merchandise.
(d) To inform a peace officer of the detention of the person and surrender that person to the custody of a peace officer ° °

A detention pursuant to the aforesaid statute does not constitute an unlawful arrest or unlawful detention and does not render the merchant liable to the person detained. (720 ILCS 5/16A — 6.) Additionally, section 16A — 4 of the Criminal Code states that

"If any person: (a) conceals upon his or her person or among his or her belongings, unpurchased merchandise displayed, held, stored or offered for sale in a retail mercantile establishment; and (b) removes that merchandise beyond the last known station for receiving payments for that merchandise in that retail establishment such person shall be presumed to have possessed, carried away, or transferred such merchandise with the intention of retaining it or with the intention of depriving the merchant permanently of the possession, use or benefit of such merchandise without paying the full retail value of such merchandise.”

To conceal merchandise means that, although there may be some notice of its presence, that merchandise is not visible through ordinary observation.

Security Officer Bradd testified that he had Claimant under constant surveillance from the time he entered the store until he was apprehended. Bradd observed the Claimant look around nervously. The Claimant also discarded the package back on the rack. The package had the price tag affixed which would trigger the security alarm unless desensitized by a cashier after the purchase. The gloves were balled up and barely visible in Claimants hand while he carried them. Claimant passed the cashier and proceeded toward the doors. All of these actions would indicate to a reasonable merchant that a theft was occurring and that there was probable cause for the arrest. There was no evidence of malice shown on the part of Bradd. It appeared that Bradd acted politely and professionally. Claimant even testified that Bradd did not wish to cause him harm. Bradd s testimony is credible and reasonable.

A thorough review of the contradictory testimony of Claimant and Bradd leaves the Court with the finding that all of the contradictions in their testimony can be attributed to the point of view of the person giving that testimony except for the matter of the place of arrest. One could view the Claimant as one who becomes confused when he picks up a pair of gloves without a price tag. With the crowded conditions and the different lines, he goes beyond the correct line and has no real intent to steal. However, in view of the security officer, the furtive looks, the discarding of the box, the balling up of the gloves, and the going beyond the last point of payment reasonably add up to probable cause for an arrest for retail theft.

The point of the initial contact between Claimant and Bradd is the most troublesome part of the case. Claimant argues he was in line to pay. Bradd testified Claimant was past the last point of payment and heading for the doors. We find that the area where Bradd testified he encountered Claimant was an appropriate area to effectuate a shoplifter under the law. The issue becomes one of credibility. Bradd was unimpeached. Claimant appeared very credible except on one point. Claimant testified the gloves were in a state of disarray. Bradd had recently checked the glove area and he testified the gloves were neatly racked and boxed. Being neat helped Bradd as he watched for shoplifters. Professor Rodolfo viewed the glove area the next day. The gloves were not in a state of disarray. Although the gloves were viewed on the next day by Professor Rodolfo, this is important evidence which leads the Court to find the testimony of Bradd more credible than the testimony of Claimant. We therefore find that Claimant has failed to prove by a preponderance of the evidence that he was falsely arrested. Probable cause existed for the arrest.

For the Claimant to prevail in his malicious prosecution claim he must prove by a preponderance of the evidence that a criminal proceeding was commenced by a defendant, that the proceeding terminated in favor of plaintiff, that probable cause was lacking, that the defendant acted with malice, and that the plaintiff suffered special damages. Joiner v. Benton (1980), 82 Ill. 2d 40, 411 N.E.2d 229.

As we have previously found that probable cause existed- for this arrest and because we find that Claimant failed to prove any malice on the part of Respondent, this claim must also fail. The burden of proof is upon Claimant to establish that Respondent acted with malice and had no probable cause to institute the theft proceeding. Even if Claimant and Bradd’s testimony were equally credible (and we have found Bradd’s testimony to be more credible), Claimant would not prevail. (Ivancic v. State (1961), 24 Ill. Ct. Cl. 81.) We, therefore, find that Claimant has failed to bear his burden of proving the elements of his case and this claim is denied.


text:
    (No. 89-CC-0781
    Olaf Eugene Olson, Jr., Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 25, 1994.

    Olaf Olson, Jr., pro se, for Claimant.
    Roland W. Burris, Attorney General (Lawrence C. Rippe, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Olaf Eugene Olson, Jr., an inmate with the Illinois Department of Corrections, seeks money damages from Respondent, State of Illinois, in the sum of $202.75 for the loss of property confiscated by Respondents agent during a shakedown.

Claimant testified that on October 20, 1987, while he was incarcerated at Pontiac Correctional Center, the shakedown took place. Items of clothing were removed from Claimants possession by the agents of the Respondent. These items are listed on the exhibit attached to Claimants complaint. Claimant filed a grievance and it was ruled to be without foundation. The grievance was denied because of information given to the grievance committee that all of Claimant’s clothing had been “ripped” and that Claimant’s clothing had been destroyed. Upon Claimant’s appeal to the Administrative Review Board, the decision of the Institutional Grievance Committee was affirmed, once again based on the report indicating that the clothing had been tom or altered. At the hearing in this case, Claimant denied that his clothing was ripped or tom when removed from his possession.

The Respondent offered no evidence.

The clothing items in question were fully described in the “Bill of Particulars” set forth in paragraph 9 of Claimant’s complaint for a claimed total value of $202.75. Similar items are listed under different names on the shakedown record dated October 20,1987.

The property alleged to have been confiscated from the Claimant and destroyed is listed as follows:

(a) One (1) full power suit $36.95

(b) One (1) full power suit $36.95

(c) One (1) full power suit $36.95

(d) One (1) bench shirt $36.95

(e) One (1) dead lift shirt $36.95

(f) One pair squat briefs $18.00

Claimant’s Exhibits 1 through 6 were offered and received into evidence as follows:

Claimant’s Exhibit 1 — Request for Payment dated 11/5/86 for a total of $45.00 for a dead lift shirt and protein;

Claimants Exhibit 2 — Portion of Personal Property Inventory Record dated 7/7/87 showing Claimant’s possession of 5 super suits, 1 super suit bottom and 1 knee wrap;

Claimant’s Exhibit 3 — Personal Property Receipt dated 11/20/86 from Frantz Sports Center for 3 cans of protein powder and one dead lift shirt;

Claimant’s Exhibit 4 — A Personal Property Receipt dated 7/2/87 from Frantz Sports Center for one squat suit and 2 pair of squat wraps;

Claimant’s Exhibit 5 — A Request for Payment dated 6/9/87 to Frantz Sports Center for $42.90 for one squat suit and 2 pairs of squat wraps;

Claimant’s Exhibit 6 — A Shakedown Record dated 7/2/87 showing receipt by Respondent’s agents of 4 pairs of super wraps, 1 super suit, and 1 flag football belt.

The values described of the lost items by the Claimant were the purchase price. Claimant testified that one of the squat suits was brand new and cost $36.95. Claimant testified that he had not even had a chance to try it on. The other items were used and had an effective useful life of from two to three years. The other items were less than a year old.

For reasons known only to the agents of the Respondent, Claimant’s items of clothing were confiscated from his possession and destroyed. Respondent chose not to introduce any evidence at the hearing. Claimant introduced credible evidence of the value of his clothing and of the fact that he lawfully acquired and possessed some articles of like clothing of an apparent value or cost as set forth in the complaint. Upon the proof in the case at bar, the burden of proceeding with evidence that the clothing was, indeed, contraband due to its deteriorated condition, or was rightfully removed from the possession of the Claimant and destroyed, fell upon Respondent. (Doubling v. State (1976), 32 Ill. Ct. Cl. 1.) The Respondent has failed to meet its burden.

Under these circumstances, the Claimant is entitled to an award of money damages. The Claimant should be awarded the full purchase price of the new "squat suit” valued at $36.95 and two-thirds of the value of the remainder of the personal property claimed using a one-third allowance for depreciation, bringing the total award to $147.48.

For the foregoing reasons, the Claimant is hereby awarded $147.48 in full satisfaction of his claim.