text:
    (No. 92-CC-0835
    Ida R. Chepan and Edwin William Chepan, Claimants, v. The State of Illinois, Respondent.

      Order filed December 18, 1998.

    Gilbert, Kimmel, Huffman & Prosser, Ltd. (Don E. Prosser, of counsel), for Claimants.
    Jim Ryan, Attorney General (Michael A. Wulf, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

This is a trip and fall sidewalk case that occurred at the Rend Lake Rest Stop on 1-57. The Claimant and her husband had stopped at the rest stop and the Claimant came to a section of sidewalk, which was allegedly uneven by “in excess of an inch,” and as a consequence of the unevenness in the sidewalk, the Claimant stumbled, fell and was severely injured. The weather was nice and it was a beautiful day. The Claimant and her husband were walking slowly because it was a nice day. Claimants husband testified that Claimants feet caught on the cement unevenness and she fell. Except for the markings and the barricade, Chepan exhibit no. 11, picture 15, shows the condition of the sidewalk on the day of the accident. The Claimant was wearing flat bottom tennis shoes.

After Claimant fell, she received first aid from Respondents representatives at the site of the rest stop, and then her husband took her to the Franklin County Hospital in Benton where she was treated. She was x-rayed and her wound was “sewed up.” Claimants eyeglasses were broken in the fall. Upon Claimants return to Pensacola, Florida, she went to her family doctor who ultimately removed her stitches. Claimant continued to attend at the offices of her family physician in Pensacola because she had pains in the upper part of her body and the doctor was prescribing muscle relaxants and pain killers. Ultimately, the Claimant saw an orthopedic doctor named Zorn, who ultimately performed surgery on Claimants rotator cuff. Claimant was in the hospital two or three days followed by bed rest at home for quite a while. Mrs. Chepan underwent physical therapy and attended at the office of her dentist because she kept having headaches. Also, she had problems chewing. Claimants dentist diagnosed that she had TMJ and sent her to a specialist named Greskovich. Claimant was prescribed an orthodontic splint that was like a mouth guard. Bills for the Claimants medical treatment identified as Chepan exhibit nos. 1 through 9 were admitted.

Claimants husband testified that exhibit no. 11, picture 15, accurately portrays the elevation of the concrete slab edge that allegedly caused, or contributed to cause, Claimant’s injury. Claimants husband testified that the slab of concrete was off-set “an inch or an inch and a quarter.” On cross-examination, Claimants husband testified in answer to whether he measured the protruding edge of the concrete slab. He stated, “I just stuck my finger down beside it. My finger is an inch long, my joint.” On further cross-examination, Claimant’s husband said in accordance with the complaint of the Claimant that, “it could have been three quarters [of an inch], but I’m saying I pushed my finger down in there and it came up to the first joint.” Claimant s husband testified that he measured with his finger by the number “1” which is seen on photo no. 2.

Claimant testified that she did not sée the difference in elevation of the two slabs of concrete. Claimant testified that the pain from her lacerated chin was excruciating. She also had pain in her shoulder that was “just bad, real bad.” When Claimant returned to Florida, she saw her family doctor, Dr. Nass. Claimant saw Dr. Nass on November 13th and he examined her and sent her to the hospital for x-rays for her knee, her shoulder and her neck. Claimant remembered that the stitches were removed on November 13th. Claimant went to her dentist, Dr. Kates, who referred her to Dr. Greskovich, who was a specialist, to treat Claimants headaches. Greskovich prescribed a splint that was like a mouth guard. Claimant also saw Dr. Zorn for her shoulder. Zorn was an orthopedic specialist. Zorn gave Claimant injections and ultimately recommended surgeiy to repair a torn rotator cuff. Claimant recalls that she was hospitalized from the surgeiy four days and had follow-up visits with Dr. Zorn thereafter. Zorn recommended that she have physical therapy. Claimant stated that her arm was painful for a long time after the surgery and was still painful at the time of the hearing. Thereafter, Zorn referred Claimant to Dr. Timmons who was a pain management physician. Timmons put her to sleep on multiple occasions and gave her some type of injections in the shoulder and back. Timmons also recommended that Claimant wear a belt that gives her support. After receiving the shots from Timmons, Claimant experienced “a great change.” Claimant contends that her life has changed, in that she cannot vacuum or lift cooking utensils. Claimant testifies that it hurts her to lift laundry out of the washer and put it in the dryer, and that she now has to ask her husband to do household activities which she did not have to do prior to the accident. Claimant contends that she can no longer do yard work, and that she is not independent like she used .to be and cannot do the things that she has previously done.

On cross-examination, Claimant indicated that she was paying close attention when she was walking because of her condition of nearsightedness. On cross-examination, Claimant repeatedly stated that she fell at a location shown on the left side of photograph no. 2 on Claimants exhibit no. 11.

Respondent admitted that another person fell at the same location where the Claimant fell on the same date (November 4, 1989). Apparently, the individual fell after Claimant fell. Judicial notice was taken of the “Illinois Accessibility Code” being a published report of the Capital Development Board appearing in 71 Illinois Administrative Code which restricts deviation from level surface on sidewalks for handicapped accessibility to one-half inch or less. (See Chepan exhibit no. 12.)

. The total of Mrs. Chepans medical expenses revealed in Claimants exhibit nos. 1 through 9 was $5,764.33.

The parties waived the filing of briefs.

Not every fall on a walkway under the care of the Respondent will support a recovery. In Heimann v. State (1977), 32 Ill. Ct. Cl. 111, Claimant brought suit against the State of Illinois for broken bones sustained by her in a fall on a pedestrian walkway of the Respondent. Claimant contended that Respondent permitted a tunnel-like depression to exist across the entire width of the walkway and failed to warn pedestrians of its existence, or to properly illuminate the area. Claimant contended that a depression “perhaps two inches deep, and maybe six inches wide, and then the width of the whole walk * * caused her to fall and sustain serious injuries. This Court held that the State of Illinois is not an insurer of the safety of persons on and upon walkways owned and maintained by the Respondent, and that Claimant bore the burden of establishing, by a preponderance of the evidence, that Respondent breached a duty of care toward the Claimant, and that the breach proximately caused the Claimants injuries. In the Heimann case, supra, Claimant’s claim was denied by this Court based on a lack of evidence to show that Respondent had actual or constructive notice of the existence of the alleged defect. (32 Ill. Ct. Cl. 111, 113.) This Court noted that the Claimant in the Heimann case offered no evidence to prove the time that the defect in the walkway existed, and from the photographs in evidence, the Court determined that the defect was not of such an obvious character as to put the State on notice of its existence. 32 Ill. Ct. Cl. 111, 113.

In Nolan v. State (1983), 36 Ill. Ct. Cl. 194, this Court denied a recovery in a sidewalk trip and fall case occasioned when the Claimant tripped over a handicap ramp on a patio or porch in a dark area at the Straiten Office Ruilding. In that case, this Court reiterated that the Claimant must prove the State had actual notice of a defect in the sidewalk or constructive notice and that in the absence of proof of a dangerous condition or that the State had knowledge or should have known of the dangerous condition, there could be no recovery. The Court noted there had been no previous accidents involving the ramp even though it had been in existence for a number of years. 36 Ill. Ct. Cl. 194, 199-200.

In Simpson v. State (1985), 37 Ill. Ct. Cl. 76, this Court denied a claim from a walkway trip and fall case originating at New Salem State Park. In that case, Claimant was walking on an asphalt pathway that was not level with adjacent terrain, but had a drop-off of one to one and one-half inches along its border. Claimant stepped off the asphalt without looking and slipped and fell, breaking bones in her right foot. (37 Ill. Ct. Cl. 76, 77.) This Court, in an opinion authored by Justice Roe, noted that the State knew of the condition of the pathway, but that the issue was whether the condition was unreasonably dangerous so as to give rise to an obligation on the part of the State to warn of the condition or otherwise protect the public using tire pathway. This Court recited that the drop-off was less than two inches, and that the general rule in such an instance has been clearly stated to be that while “minor” defects in a walkway are not actionable, it is within the purview of the trier of fact to determine negligence when the defect is such that a reasonably prudent man should anticipate some danger to persons walking upon the walkway, and that the problem was in defining what is a “minor” defect. In that case, the Court concluded from the photographs that any defect that existed was not so unreasonably dangerous as to create liability against the State. The condition shown was not found to be unacceptable or unreasonable; it should, however, be noted that this Court opined that there was no breaking in the pavement itself, but rather the ground along side the walkway was lower in some places than the walkway surface. 37 Ill. Ct. Cl. 76, 79.

In White v. State (1984), 38 Ill. Ct. Cl. 1, the Claimant maintained that a sidewalk had been constructed and maintained in a negligent manner so as to cause an unnatural accumulation of ice. Claimant contended that there was a slope in the sidewalk of 12lA percent causing an unnatural accumulation of ice. The evidence indicated that the slope of the 12-foot-wide sidewalk was from an elevation of 15 feet to 13 feet, 6 inches from edge to edge, involving a drop of IV2 feet.over a space of 12 feet. This Court, among other things, looked to the Illinois Supreme Court opinion in Arvidson v. City of Elmhurst (1957), 11 Ill. 2d 601, 145 N.E.2d 105. The Illinois Supreme Court set forth in clear language the rule of law applicable to a situation where a person falls on a defective sidewalk. One of the basic questions in determining liability is whether the sidewalk irregularity is too slight to impose a duty to remedy the defect. The Court stated:

“While courts are in marked disagreement as to when the sidewalk irregularity or defect is so slight that the question is one of law, and where it is one of fact for the jury; nevertheless, the decisions recognize that no mathematical standard can be adopted in fixing the line of demarcation, and that each case must be determined upon its own particular facts and circumstances.”

In denying the claim, this Court stated:

“* **we suspect that the testimony of the various witnesses with respect to the depressions or holes in the walk is contradictory only in degree. VWiat we believe to be likely is that, whereas the sidewalk was obviously not as smooth as a dance floor, it was also not dangerously defective.” See 38 Ill. Ct. Cl. 1, 6.

In Gillmore v. State (1986), 40 Ill. Ct. Cl. 85, this Court denied recovery on a sidewalk fall where Justice Patchett recited in his opinion that the gap or unevenness of the concrete was only one inch to one inch and a half, and stated as follows:

"The Claimant simply failed to prove that the sidewalk was defective, and has further failed to prove by a preponderance of the evidence that the sidewalk was the actual cause of the injury.”

In the Gillmore case, this Court had available photographs admitted in evidence just as we have in the case at bar. (See Claimants exhibit no. 11.)

In Moore v. State (1991), 43 Ill. Ct. Cl. 204, this Court made an award for an injuiy caused by a manhole cover that was depressed below the surface of the concrete sidewalk two and one-half inches, finding that such a step down in a pedestrian walkway could be an unsafe condition and the State had notice of it. (See 43 Ill. Ct. Cl. 204, 206.) Allowing an award in that case, this Court found the Claimant to be guilty of 50% comparative fault.

A careful examination of the photographs and molding of the alleged defect in this case leads the Court to the conclusion that the difference in level in the two adjacent slabs of concrete in this case is of a deviance between one-half inch and three quarters of an inch.

Therefore, the claim is denied for the reason that there is no support in the reported decisions of this Court calling to extend the responsibility of the State to such a high degree of precision in avoiding deviations from level on public walkways. A deviation of the type involved in this case is too minor to be considered a “dangerous condition.” It does not seem unreasonable to expect persons making use of public walkways to anticipate the possibil-' ity of a one-half inch deviation from absolutely flat.


source: Caselaw Access Project

author: Sommer, C.J.

license: Public Domain

text:
    (No. 92-CC-1721
    Johnny Smith, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 20, 1998.

    Johnny Smith, pro se.

      Jim Ryan, Attorney General (Michael A. Wulf and Bradley R. Bucher, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

The Claimant, Johnny Smith, originally filed a complaint for $3.52 which was later amended to add additional sums of $1.72 and $.87 for a total claim of $6.11.

The issue is an interpretation of the Illinois Department of Corrections’ Rules, specifically section 525.130 “Outgoing Mail.” Section 525.130 provides as follows:

“(a) Committed persons shall be permitted to mail at State expense the equivalent of three one-ounce, first-class letters to the continental United States each week. This allowance may not be transferred from one committed person to another, nor may it accumulate from one week to another.
(b) Committed persons shall be permitted to send additional letters if they have sufficient funds in their trust fund accounts and attach signed money vouchers to cover the postage. Committed persons with insufficient money in their trust fund accounts shall be permitted to send reasonable amounts of legal mail and mail to clerks of any court or the Illinois Court of Claims and to certified court reporters at State expense. All other mail will be sent only if the committed person has sufficient funds to pay the postage.”

The Claimant testified that the Department interpreted the rules so that, if legal mail were sent out at State expense and an inmate later obtained money in his trust fund account, the amount of legal mail postage which had been advanced to the inmate was then reimbursed to the Department. He claims that, in the past, the amounts had not been charged to the inmate’s account.

Sharon Patchett testified that she is the administrative assistant for the assistant warden of operations at Pontiac Correctional Center. Ms. Patchett testified that she is familiar with the policies and procedures concerning legal mail and that it has always been the procedure of the Department that inmates were allowed to send out legal mail at State expense if they do not have funds in their trust account, so that the inmates’ legal issues would not be delayed. Ms. Patchett further testified that it has been the policy that, if the inmate subsequently received any funds in Iris trust account, the Department would be reimbursed for funds advanced.

This appears to be a matter of first impression with the Court of Claims. However, the Court has held that it is not the role of the Court to act as a Court of review over the administration of prison regulations except in cases where proof of violations of existing regulations tends to establish liability of the Respondent under recognized principles of tort law. Montgomery v. State (1988), 41 Ill. Ct. Cl. 190; Brady v. State (1977), 32 Ill. Ct. Cl. 240; Holmes v. State (1978), 32 Ill. Ct. Cl. 274.

Although the rules concerning mail could be more clearly written, it would be inconsistent for the Department to send legal mail at State expense, and without reimbursement, for an inmate who may have a substantial amount in his trust account the day after the mailing, but charge the mailing expense to an inmate with a small amount in his trust account at the time of the mailing.

It is therefore ordered that this claim is denied.


author: Frederick, J.

text:
    (No. 92-CC-2239
    Enrico Levy, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 15, 1998.

    Enrico Levy, pro se.

    Jim Ryan, Attorney General (Paul Ciastko, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Enrico Levy, a prisoner with the Illinois Department of Corrections, filed his original complaint on February 24, 1992. In that complaint, Claimant sought $3,200 for lost property due to Respondents agents negligence and for his emotional distress. The complaint cites an original claim number of 90-CC-0855. Claimant filed an amended complaint on March 17, 1992, seeking $100,000 in damages for being negligently shot by Correctional Officer Adams. The case was tried before one of the Courts Commissioners. At trial, the property damage claim was dropped under this case number.

The Facts

Claimant, Enrico Levy, testified that on May 11, 1991, when he was an inmate at Pontiac Correctional Center, three other prisoners attacked him in his cell number 322, West House. Claimant called to the guards for help and was shot by one of them. At the trial, Claimant testified that three men came to his cell and tried to jump on him. One of the men had a knife. Claimant tried to resist and get out of his cell. Claimant stated that one of the female guards, Kathy Simmons, fired warning shots at the men and then another guard came running and shot Claimant in the hip. Officer Michael Adams testified for Respondent that Guard Simmons fired no shots, and that he made repeated verbal commands for Claimant to drop a shank. Officer Adams then fired two shots when Claimant was holding a homemade knife and was stabbing at another prisoner. The second shot hit Claimant in the hip and Claimant was subsequently taken to a hospital. The Claimant was convicted in criminal Court of possession of a weapon based on his possession of the shank. The file contains various transcripts of sworn testimony by several guards and prisoners from Claimants criminal trial which basically support the fact that Claimant was stabbing another prisoner when he was shot by the prison guard. The file also contains an order from the Appellate Court of Illinois, Fourth District, affirming the trial Courts judgment.

At the beginning of the hearing, Claimant stated he thought the hearing was to be about the property claim. However, he did not have a copy of the complaint and there was no evidence or testimony about his property. The Court file shows two separate one-page complaints, both filed February 24, 1992, and both with the same case number, 92-CC-2239, and no other documentation. Claimant filed a motion for summary judgment on April 15, 1993, with a bill of particulars attached which fists various property items covering the years 1988 to 1991 which appear to total $548; however, no evidence or explanation can be found. The Claimants motion for summary judgment was denied by the Court on August 9, 1994, due to lack of an affidavit and the fact that material issues of fact remained.

The Law

To prevail, Claimant must prove by a preponderance of the evidence that the prison guard intentionally injured Claimant without adequate provocation. Peters v. State (1987), 40 Ill. Ct. Cl. 99; Ball v. State (1989), 42 Ill. Ct. Cl. 247; and Jones v. State (1994), 46 Ill. Ct. Cl. 324.

With regard to the use of force causing personal injury, this Court in Robinson v. State (1994), 47 Ill. Ct. Cl. 364, 369, stated that:

“The State of Illinois owes a duty to prison inmates to provide them with a safe place to live. Holt v. State (1990), 43 Ill. Ct. Cl. 195. The State also owes prison inmates the duty to provide them reasonable medical care. Russell v. State (1990), 43 Ill. Ct. Cl. 295. The Court will only impose liability upon the State for the criminal acts of third parties where the State’s agent participated in the alleged act or where the State’s agent anticipated or should have anticipated the criminal attack. Daugherty v. State (1991), 43 Ill. Ct. Cl. 317. This Court has also held that correctional officers may use such force as is reasonably necessary to restrain an inmate to protect all parties from injury. The Claimant has the burden of proving the State’s agents were negligent or used excessive force to prevail. Simmons v. State (1991), 44 Ill. Ct. Cl. 304.”

The testimony at the hearing, the investigations, and criminal trial clearly show that the shots were fired by the prison guard only after Claimant failed to drop the shank after numerous verbal warnings. The Claimant has failed to prove that the Respondent has breached any duty to the Claimant with regard to his being shot or the loss of property.

After carefully reviewing the testimony, we find the testimony of Officer Michael Adams to be more credible than the testimony of Claimant. Claimant has failed to meet his burden of proof.

For the foregoing reasons, it is the order of the Court that Claimants claim be, and hereby is, denied.


author: JANN, J. Jann, J.

text:
    (No. 92-CC-2270
    Mark Davis, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 12, 1998.

      Order on petition for rehearing filed August 5, 1998.

    Mark Davis, pro se.

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

JANN, J.

This is a claim for personal injury pursuant to section 8(c) of the Illinois Court of Claims Act. (705 ILCS 505/ 8(c).) The Claimant alleges in his complaint that on March 12, 1990, he was injured while operating a table saw in the wood shop at the Centraba Correctional Center.

The Claimant seeks $35,000 in damages for permanent injuries, bodily pain and mental anguish that resulted from the tip of his right index finger being severed. He contends the Respondent failed to provide him with safe and adequate working equipment, proper supervision or a safe working environment.

A hearing was held before Commissioner Stephen R. Clark on May 2, 1996. Evidence at the hearing consisted of testimony from the Claimant and Ronald Winkler, a carpenter at Centraba, and the Claimants supervisor in the wood shop. Admitted into evidence were orders for dehveiy of saw blades to be sharpened by an outside contractor. The parties did not file briefs.

The Claimant testified that on March 12, 1990, he was dadoing a piece of wood, a procedure in which wood is cut to form a dado joint. He stated that he told his supervisor he was making a dado joint, and the supervisor said that was okay. The Claimant testified that he was cutting the piece of wood by pulling it through the saw instead of pushing it because the wood spbntered when he attempted to push it through the saw. He stated that the blade grabbed the wood and slung it in a counter-clockwise fashion turning the wood and his finger into the blade. The Claimant admitted that when he saw that the wood was sphntering, he did not seek help from his supervisor. The Claimant testified that during his two and one-half years at Centraba, he never received training with regard to safe procedures, that no safety program had been established, and that the equipment in the wood shop was not properly maintained. He stated that a tool was repaired only if it broke or became inoperable. He also said there was no way to sharpen saw blades at the facility, and that once, when the blades were sent out to be sharpened, they were returned in worse condition. He said the blades became dull by inmates dropping them in a saw bed at the end of the day instead of laying them down gently. The Claimant stated that the inmates had nothing to use to clean glue and sap off of the blades. The Claimant testified that, although he knew now that pulling wood through a saw is an improper technique, he had learned to use the technique by watching his supervisor and other inmates, and that pulling wood through a saw was an accepted technique in the shop. The Claimant testified that he had previously requested that his supervisor have an expert come to the facility to properly set up, adjust and align the power tools. The Claimant had worked in the wood shop for approximately three years prior to this injury.

Regarding his injury, the Claimant stated that he currently has no dexterity with his finger and has no feeling in the fingertip. He stated that he suffers from arthritis as a result of the injury. The Claimant now works as a cabinet maker, and using screws and nuts and doing fine detailed work has become more difficult. The Claimant also testified that the injury has interfered with his guitar playing. The Claimant stated that he missed two months of work in prison, where he earned $445 per month. He estimates that he will suffer $15,000 in lost future earnings. He stated that he now earns about $29,000 per year as a cabinet maker after his release from the Department of Corrections.

Ronald Winkler, the Claimant’s supervisor at the wood shop, testified that he had been a carpenter at Centraba since 1981. He stated that he would tell the inmates the do’s and don’ts with regard to using the tools in the shop. Winkler testified that .he told the Claimant not to run anything backwards through any type of saw. He stated that when he saw inmates doing this, he would shut the saw off and fire the inmate. It must be noted, however, that the Claimant was not fired, but was put back to work in the shop after his finger had healed. Winkler testified that on the day of the accident, the work the Claimant was doing was not one of his required duties that day.

Winkler testified that in-house personnel would perform routine maintenance on the machinery, such as cleaning and greasing parts. The saw blades were sent out to be sharpened. The orders for delivery showed that saw blades were sent out to be sharpened 15 times from June 3, 1986, through January 2, 1992. The latest date before the accident that saw blades were sent out to be sharpened was February 1, 1990. However, Winkler could not say when the blade that Claimant used was sharpened last. Winkler testified that after the accident, the blade the Claimant was using was sharp, and that the Claimant was cutting pine, which splinters even when the blade is sharp. On cross-examination, Winkler testified that he could not say in one instance where he was cutting lap joints with the Claimant, a Joe Arnold, and other inmates, that he did not run the wood backwards through a saw.

The Court has held that the State owes a duty to inmates of its penal institutions to provide them with safe conditions under which to perform their assigned work. In order to recover, the Claimant bears the burden of proving, by a preponderance of the evidence, that the State breached its duty of care, that he was free of contributory negligence, and that the negligence of the State was the proximate cause of his injury. (Rogers v. State (1991), 44 Ill. Ct. Cl. 149, 152.) The State also has a duty to supervise inmates as they work in order to provide a safe working environment. Francis v. State (1994), 46 Ill. Ct. Cl. 244, 249.

The Francis case is similar to the case at bar. The Claimant in Francis lost part of his thumb while cleaning a glue press. No supervisor was present while the Claimant and another inmate were trying to clean the glue press. The State also failed to have the inmates read the manufacturers instructions before attempting to clean the glue press. This Court found the State was negligent in failing to provide proper supervision and training. (Id. at 250.) In the instant case, it is apparent that there was no supervision of the Claimant while he was working. Also, orally giving inmates a list of dos and don’ts is a poor substitute for proper training and written instructions on using machineiy which has the capability of being dangerous to life and limb. Therefore, the Court finds the Respondent was negligent for failing to provide proper supervision and training in the operation of the wood shop machinery and tools.

The Court must also consider the conditions under which an inmate acts in the face of known danger to determine whether comparative fault should be assessed. (Douglas v. State (1989), 41 Ill. Ct. Cl. 29.) Herein, the evidence is that Claimant had been warned against pulling wood through a saw in the manner which led to his injuiy. Claimant also failed to seek the assistance of his supervisor when the wood he was sawing began splitting. Claimant was engaged in a voluntary project which was not an assigned task when injured. Claimant has demonstrated he did have permission to- work on the project which was to the ultimate benefit of the State, as he was repairing a case for drill bits used in the shop. Based upon the record, we find Claimant was contributorily negligent in the amount of 40 percent.

Claimant seeks $5,000 for the permanent nature of his injury, $15,000 for loss of future earnings and $15,000 for pain and suffering for a total of $35,000 in damages. Claimant presented no medical reports as to the limitations or impairments he suffers or is anticipated to suffer. He also failed to provide any evidence that his injuries have caused, or will cause, loss of earnings other than statements of his own opinions and conclusions. No departmental report was filed by Respondent which would, presumably, have included medical records relevant to Claimants injury.

The testimony at hearing indicates Claimant underwent two surgeries to reattach the tip of his finger and to perform a three-stage skin graft. The injury took about two months to heal during which time Claimant received pain medication. He said the medication was effective in relieving the pain and that he did not suffer great discomfort. The Court acknowledges that such an injury is clearly painful. We also note that Respondent did not cross-examine Claimant as to any medical aspect of his injury or impairment.

Claimant stated he has lost dexterity and feeling in his finger and his ability to perform as a cabinet maker has been impaired due to his injury. Claimant was unable to quantify the extent of his impairment other than to state his guitar playing is affected and he is “a little bit less than [I] he was” as a cabinet maker. Claimant was also unable to explain the amounts he requested as compensation, other than to state his request was based upon an assumption that the injury would be detrimental to his profession.

Based upon the record before us, we find Claimants injury resulted in pain and suffering and permanent injury valued at $15,000. Claimant has failed to prove loss of earnings.

Claimant is hereby awarded the sum of $9,000 in full and complete satisfaction of his claim.

This cause is hereby dismissed.

ORDER

Jann, J.

This cause comes before the Court on the Respondents petition for rehearing. Respondent bases its petition for a rehearing upon the basis of misapprehension of the evidence of record which the Court found to impute negligence upon Respondent.

We have carefully considered Respondents position and reviewed the record. Respondent raises no new issues of fact or law to be considered at rehearing but relies upon certain testimony of record, which it feels merits a finding that Claimant was more than 51% contributorily negligent, and the assertion that the case law cited in our opinion is distinguishable by factual specifics. Respondents arguments and the facts and case law cited in its memorandum of law were previously considered in our opinion awarding Claimant $9,000 on May 12, 1998. However, Respondent has ignored the testimony of its employee which indicated a scenario of practice and procedure adverse to its contentions herein.

Based upon the foregoing: It is hereby ordered that Respondents petition for rehearing is denied and our order of award is affirmed.


text:
    (No. 92-CC-3361
    Verga Gaston, Claimant, v. The State of Illinois, Respondent.

      Order filed December 22, 1998.

    Legal Assistance Foundation of Chicago (Jennifer Payne, of counsel), for Claimant.
    Jim Ryan, Attorney General (Michael F. Rocks, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Sommer, C.J.

This cause is before the Court on Claimants motion for sanctions, Respondents motion to dismiss (better titled motion for summary judgment) and Claimants response thereto.

The parties have devoted a great deal of time arguing about the form of the complaint and amended complaint. Respondent treated Claimants original complaint as a lapsed appropriation claim. Claimant later clarified that it is a claim for denial of benefits. The issue before ■ the Court is whether Claimant was wrongly denied a benefit and, if so, whether this Court should make this award.

The histoiy of tills claim is as follows: In January of 1991, the Department of Children and Family Services (“DCFS”) placed custody of three children with their mother under a protected supervision. In July of that same year, DCFS employees learned that these three children were not being cared for by their mother, but rather by their grandmother, Verga Gaston, the Claimant. In November of 1991, DCFS obtained custody of these three children and they were placed with Claimant. It has been alleged and remains undisputed that DCFS employees knew that the three children were in Verga Gas-tons home from July 1991 and that Ms. Gaston did not receive foster care payments until the children were officially placed with her four months later.

Claimant filed a complaint with this Court on June 30, 1992 seeking $2,853.06, the amount of foster care benefits denied from July 1 to November 1, 1991, with some adjustment for later overpayments. The Attorney General moved to dismiss this complaint on March 29, 1994, treating it as a lapsed appropriation claim, and arguing that because DCFS did not receive legal custody until November 1, 1991, Claimant was owed no money. Again, the nature of the complaint (lapsed appropriation v. denial of benefits) is not particularly relevant.

Claimant did not respond to this motion to dismiss, and it was eventually granted on June 29, 1994. Claimant sought leave to amend her complaint and did file an amended complaint on August 29, 1994. The claim was referred to a Commissioner for hearing.

Since that time, the parties have argued about discovery. Claimant forwarded interrogatories and a request to produce to Respondent on or about December 22, 1993. Claimant has filed a motion to compel and a motion for sanctions. The motion to compel was granted by Commissioner Sternik on November 18, 1997 and Respondent was ordered to respond to discovery within forty-five days. To this day, Respondent has not answered them. Respondents failure to answer discovery and to ignore an order of a Commissioner of this Court is inexcusable.

Respondent’s handling of this case has resulted in many hours of additional work for Claimant and the Court, and delayed this action for several years. For that reason, the Court is granting Claimant’s motion for sanctions and awarding Claimant’s attorney $500 as a sanction for delay and additional work.

As to the substance of Claimant’s claim, Respondent argues that DCFS is not responsible for Claimant’s grandchildren unless and until DCFS has legal custody of the children. DCFS did not have custody of the children in question until November of 1991. Furthermore, there is no mechanism for paying Claimant for substitute care until DCFS had custody. The fact that a DCFS caseworker knew that Claimant was caring for these children in no way entitles Claimant to any payments.

Claimant’s response to Respondent’s motion does not address these arguments, but only argues that this is not a lapsed appropriation claim. As mentioned above, the description of this claim is not particularly relevant.

Furthermore, it is this Court’s opinion that Claimant did not exhaust its administrative remedies by appealing the decision not to grant substitute care to the three Gas-ton children. While the DCFS regulations were not as clear in 1991 as they are today, it seems that an administrative appeal was available at that time. Payment issues are not specifically mentioned in DCFS regulations as they appeared in section 309.4 (“What May Be Appealed”) or in section 309.5 (“What May Not Be Appealed Through the Review and Appeal Process”) in the 1991 version. Section 309.4 did contain a “catchall” provision that allowed appeals for “(12) any issue of Department service policy when the child or family is aggrieved by its application to them.” 89 Ill. Adm. Code 309.4.

This provision is broad enough to cover appeals from DCFS s decision not to grant substitute care services to the Gaston children in 1991 and pay for them. Claimant, therefore, had an administrative remedy through the appeals process at DCFS, and failed to exhaust it. Claimant is required to exhaust administrative remedies (74 Ill. Adm. Code 790.60) and failure to do so is a ground for dismissal. (74 Ill. Adm. Code 790.90.)

It is hereby ordered that summary judgment is awarded to Respondent and this claim is closed. It is also ordered that Claimants attorney is awarded $500 as a sanction to cover attorney fees to bring this motion.


author: Raucci, C.J.

text:
    (No. 93-CC-0684
    Etha Lewis, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 14, 1999.
    Jimmie L. Jones, for Claimant.
    Rodriguez & Villalobos (Richard E. Girard, of counsel), for Respondent.
   OPINION

Raucci, C.J.

The Claimant has filed a two-count complaint against the Board of Governors and State College and Universities for Governors State University alleging a breach of contract and the tort of intentional infliction of emotion distress. She has alleged that the acts of employees of the State prevented her from completing her masters degree in school psychology at Governors State University.

Ms. Lewis was born in 1927 and earned her high school degree in Montgomery, Alabama. She graduated from business college in 1948 and sixteen years later, in 1964, she graduated from Wilson Junior College in Chicago. In 1975, she earned a degree in special education from Chicago State and then began employment with the Chicago Board of Education as a special education specialist. In 1980, she went on to earn a masters degree in urban education at Governors State University. She later enrolled in a doctoral program at Northern Illinois University, but subsequently withdrew from that program when she learned that the Board of Education and Governors State University were offering a school psychology program to train individuals for the Chicago school system. In 1990, she enrolled in the school psychology program at Governor's State. Previously she was certified to teach in the areas of learning disabilities, emotional disturbances, behavioral disorders and the educable but mentally handicapped. Candidates for the masters degree in the school of psychology were required to take courses 855, Intellectual Assessment; 857, Personality Assessment; and 858, Advanced Seminar. While not the only requirements for the degree, the Claimants participation in these courses resulted in this claim.

The applicable catalogue for students in 1991-1992 describes Psychology 858 in pertinent part as follows: “Psych 858 Advanced Seminar in Individual Assessment, Prerequisite: Psych 845, 855, and 857.”

In the winter trimester of 1991, Ms. Lewis registered to audit the Psychology 858 course. She did so because she had not yet completed the requirements of Psychology 857, the course on Personality Assessment which was one of the prerequisites for Psychology 858. She had taken course 857 from Dr. Lewandowski in the summer trimester of 1991, and. course 855, the Intellectual Assessment course, in the fall trimester. Much of the testimony revolved around the Claimants treatment by Dr. Graff in course 855. But it is clear that the Claimant’s failure to have a completed grade in course 857 by January, 1992 was the primary reason she was not allowed to register for credit for Psychology 858.

The Personality Assessment course, taught by Dr. Lewandowski in the spring/summer trimester of 1991, required the graduate students to administer certain tests to a grammar school student in a Chicago Public School, score that test and then report the results in a written and verbal report to the professor. The initial case study report submitted by the Claimant was not acceptable to the professor and the Claimant was requested to submit another report. Because she had not done so by August of 1991, she received an incomplete instead of a grade. As a remedial measure, Dr. Lewandowski suggested that the Claimant audit another professors 857 class, and she was agreeable to do so. By the end of the fall semester, Claimant still had not submitted the work required by Dr. Lewandowski. At this stage, the incomplete would normally be changed to an “F” pursuant to university policy, but the Claimant made application for what is referred to as an extended incomplete, stating that she had experienced personal problems and stress which had prevented her from completing her responsibilities in Dr. Lewandowskis class. In December of 1991, the school granted her an extension of the incomplete which allowed her more time to complete her unfinished work in the Psychology 857 class. Claimant was to complete the work by the middle of March as indicated by the language on the extension request form. In the interim, Dr.Woodward, the Psychology Department chair, met with the Claimant and, in reviewing her next semester classes, made it clear to her that she would not be allowed to take the Psychology 858 Advanced Seminar in Individual Assessment until she had completed both the work in Doctors Graff and Lewandowskis classes. After checking with Dr. Graff, it became apparent that an acceptable grade in her class was imminent. Dr. Woodward testified that the fact that Claimant seemed far from complete in Dr. Lewandowski s class prevented her from taking the 858 class. She then asked if she could audit Psychology 858 in order to get a head start, and Dr. Woodward said that it would be acceptable to him if it were acceptable with the teacher in the class.

The effects of audit registration were known to Claimant, an educator for much of her adult life. Finally, in April of 1992, Dr. Lewandowski gave her a “C” for her work in his class the previous year. Claimant then attempted to change her status in the 858 Advanced Seminar from audit to a registered student and receive a grade. The University’s unwillingness to allow her to make that change resulted in this claim.

There is little disagreement about the status of the law in this area. While, a university faculty is granted great leeway in its evaluation of students, it may not act maliciously or in bad faith by arbitrarily and capriciously refusing to award a degree to a student who fills the requirement for a degree. (Tanner v. Board of Trustees (1977), 48 Ill. App. 3d 680, 363 N.E.2d 208, 6 Ill. Dec. 679.) The Claimant’s position is that Professor Woodward acted arbitrarily in preventing the Claimant from making the switch from audit status to registered student in the 858 Advanced Seminar, and suggests that it was customary for a student with an incomplete to go on to the next class. In supporting this position, the Claimant presented evidence that there were other students on the same academic course for the school psychology program who escaped the notice of Dr. Woodward and were able to be registered in 858 even though they had not yet received grades in the prerequisites which were laid out in the catalogue for students by Governor’s State University in 1991-1992. The Claimant is correct. There were other students who did not do what they were supposed to do, who did not follow the catalogue and registered and took courses that they should not have been allowed to take for credit. The fact that certain individuals circumvented the rules of the University and were able to escape detection does not however, mean that Claimant should also be allowed to do so.

There exist factual conflicts between the testimony of Dr. Lewandowski and the Claimant as to why it took so long for the Claimant to receive a grade in his class. Claimant maintains that she did, in fact, hand in the required assignment and that Dr. Lewandowski either lost it or failed to grade it in a timely fashion. This does not change the fact that, as late as December 17, 1991, Claimant was seeking additional time to complete her requirements in the 857 class, a class that was supposed to be completed in August of 1991.

Prerequisites are built into an educational program to insure an orderly progression in the development of skills of the students, so that the student is not taking classes for which he is not prepared. At Governor’s State there were evidently a number of students who felt that the rules regarding prerequisites did not apply to them. At the time, unfortunately, Governor’s State relied on the honor system when it came to prerequisites thereby vesting discretion in the students themselves as to their fitness to proceed to the next level. Dr. Woodward, in effect, admitted that the system employed by Governor’s State during the relevant time period was ineffective and that there were students who were successful in evading the requirements laid down by the University. However, there were others, as Dr. Woodward testified, who were detected and removed from courses because of an incomplete grade in a prerequisite. Claimant was not the only student who was affected by Dr. Woodward’s decisions to enforce the conditions of the catalogue regarding prerequisites. By simply enforcing the University requirements that she complete prerequisites for Psychology 858 before taking the class, the University certainly did not act in an arbitrary or capricious fashion.

The claim will be denied.

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


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

text:
    (No. 93-CC-2240
    Randall W. Sherman, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 31, 1994.

      Opinion filed December 18, 1998.

    Nicoara & Steagall (John P. Nicoara, of counsel), for Claimant.
    Jim Ryan, Attorney General (Gregory T. Riddle, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

This is a claim for personal injuries allegedly caused by a cable strung across a portion of a bicycle path at the Rock Island Trail State Park. The Claimant specifically pleaded ordinaiy negligence, and the Respondent has filed a motion to dismiss grounded on the Recreational Use of Land and Water Areas Act. (745 ILCS 65/1 et seq.) That Act provides in pertinent parts:

“§3. Except as specifically recognized by or provided in Section 6 of this Act, an owner of land owes no duty of care to keep the premises safe for entry or use by any person for recreational or conservation purposes, or to give any warning of a natural or artificial dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.”
# # O
“§6. Nothing in this Act limits in any way liability which otherwise exists: (a) For willful and wanton failure to guard or warn against a dangerous condition, use, structure or activity.”

Thus, the Respondents position is that, absent allegations of willful and wanton conduct, this claim must be dismissed. The Claimant has replied to the motion by citing several cases which he contends bar the Respondent from invoking the immunity of the Act in this instance; in the alternative, the Claimant has asked leave to amend his claim to plead allegations of willful and wanton conduct.

The Claimants argument against the applicability of the Act is that the premises in question were and are “used for more than casual recreational purposes.” The seminal case cited in support of that argument is Miller v. United States (7th Cir. 1979), 597 F.2d 614. Miller found that the Recreational Use of Land and Water Areas Act (745 ILCS 65/1 et seq.) had to be read in pari materia with a different State statute, the Campground Licensing and Recreational Area Act. (210 ILCS 95/1 et seq.) It held that the Licensing Act applied to areas that are maintained “primarily” for recreational purposes and that the Recreational Use Act was only available for lands which are used on a “casual basis” for recreational purposes. (597 F.2d at 616.) The Miller Court did not explain in its opinion why it believed the Licensing Act operated to the exclusion of the Recreational Use Act, and it was left to the 7th Circuit Court in a subsequent case to construct an explanation:

■ “The government asks us to reconsider our holding in Miller that landowners subject to the Licensing Act may no longer claim immunity from tort liability under the [Recreational] Use Act 4 4 *. The government points out 4 4 4 that the two acts are not literally inconsistent, which is true but ignores their purposes. The [Recreational] Use Act, passed in 1965, was designed to encourage landowners to open up their property for free public recreation. By 1971, when the Licensing Act was passed, the state had become concerned about safety and health at recreational areas, whether or not operated on a user-fee basis, that contained facilities for overnight stays. The Licensing Act brought these areas under a detailed scheme of licensing requirements and other regulatory controls 4 4 *. It would be odd if, having brought under the strict safety and health requirements of the Licensing Act a subset of the landowners who had been encouraged by the earlier [Recreational] Use Act to open their land to public recreation, the state wanted these landowners to continue to enjoy the almost complete immunity from tort liability conferred by that act. . . . Since the Licensing Act contains no provisions relating to tort liability at all, it may reflect a preference for a regulatory over a common law system for preventing accidents in recreational areas. But we imagine that its overriding concern is safety, and so conceive the Act would be undermined if landowners subject to it continued to enjoy the tort immunity of the [Recreational] Use Act with its very different purpose of encouraging the opening of land for public recreation free of charge but at the price of some danger to tire public. Also, the Licensing Act bespeaks concern for recreational areas where the landowner 4 4 4 has taken steps to encourage recreational uses by providing overnight facilities; and the fact that he has done so suggests he has the resources to protect users from safety hazards.” Davis v. United States (7th Cir. 1983), 716 F.2d 418, 427-28. (Emphasis added.)

Illinois appellate courts subsequently adopted the Miller doctrine without scrutinizing its underpinnings. (See, e.g., Logan v. Old Enterprise Farms, Ltd. (5th Dist. 1989), 188 Ill. App. 3d 920, 544 N.E.2d 998 [later reversed by the Illinois Supreme Court on other grounds and issues at 139 Ill. 2d 229, 564 N.E.2d 778 (1990)], and Phillips v. Community Center Foundation (1st Dist. 1992), 238 Ill. App. 3d 505, 606 N.E.2d 447.) The issue raised in the instant case is whether the Miller doctrine is applicable to the Rock Island Trail State Park so as to bar the Respondent from claiming the immunity of the Recreational Use Act.

It must initially be emphasized that the Miller doctrine only relates to facilities that fall under the scope of the Licensing Act. Section 4 of that Act specifically limits its application to “recreational areas that are campgrounds,” and section 2 of the Act contains detailed definitions of operative terms such as “recreational area,” “recreational activities,” and “campground” which are critical to a determination of the threshold question: Is the Rock Island Trail State Park a “recreational area that is a campground?” Because neither party has addressed the point, the Court will presume for purposes of this opinion, without prejudice to the Respondent, that the park is in fact subject to the Licensing Act. However, were the Rock Island Trail State Park not actually governed by the Licensing Act, then the Miller doctrine would be irrelevant, and the Recreational Use Acts immunity would definitely come into play.

Hence, we move forward to directly address the viability of the Miller doctrine. Section 25 of the Licensing Act sets forth exceptions to application of the Act, and that section was recently amended by the General Assembly to include the following new text:

“Nothing in this Act shall be construed to impose any additional duty of care on an owner of land who either directly or indirectly invites or permits without charge, as defined in the Recreational Use of Land and Water Areas Act, any person to use such property for recreational purposes.” See P.A. 85— 959, section 4 (Laws of Illinois, 85th General Assembly, 1987 Session, Volume III, page 4287).

This amendment to section 25 of the Act became effective on December 8, 1987, and invalidated the Miller doctrine by striking at the very heart of the rationale which the 7th Circuit Court had used to support Miller in the later Davis decision. By specifically providing that the Licensing Act does not furnish a duty of care for purposes of tort liability, this amendment broadened the immunity available for landowners allowing free recreational use of their land. Thus, the Licensing Act is no longer “undermined” by the immunity set forth in the Recreational Use Act. Quite the contrary, it now expressly adopts and approves of the willful and wanton standard of care which the legislature, in all reality, probably never had intended to limit to so-called “casual” use facilities. In short, this amendment abolished the judicial construction that there was a distinction between areas maintained “primarily” for recreational purposes versus those used only on a “casual basis” for such purposes.

We find that the immunity set forth in the Recreational Use of Land and Water Areas Act is applicable to the present claim and that, as presently pleaded, this claim must be dismissed.

It is therefore ordered that the Respondents motion to dismiss is allowed, and the claim filed herein on March 5, 1993, is dismissed. The Claimant is granted an additional thirty (30) days from the date of this opinion to file an amended complaint pleading facts which could or might satisfy the “willful and wanton” threshold for overcoming the Recreational Use Acts immunity.

OPINION

Sommer, C.J.

Claimant, Randall Sherman, brings this action against Respondent, State of Illinois, seeking damages for personal injuries suffered when he struck a cable while riding his bicycle on October 6, 1992, on the bicycle path of the Rock Island Trail State Park. Claimants amended petition asserts that Respondent was guilty of one or more of the following willful and wanton acts or omissions:

“(a) Causing the aforesaid cable to be strung across the bike path when it knew or reasonably should have known that such cable would present a hazard to permitted and intended users of the path, after it knew or reasonably should have known that one or more other bicyclists had sustained a similar mishap by virtue of the same hazard;
(b) Caused such cable to be strung across the bike path without providing a means or method to make such cable visible to permitted and intended users of the bike path, after it knew or reasonably should have known that one or more other bicyclists had sustained a similar mishap by virtue of the same omission;
(c) Failed to give adequate warning by way of signs and barricades of the existence of said cable, after it knew or reasonably should have known that one or more other bicyclists had sustained a similar mishap by virtue of the same omission;
(d) Permitted said cable to remain across the path when it knew or reasonably should have known that said cable was present and that it presented a hazard to permitted and intended users of the bike path, after it knew or reasonably should have known that one or more otiier bicyclists had sustained a similar mishap by virtue of the same hazard.”

The Rock Island Trail State Park is a 27-mile-long former railroad right-of-way that extends from Alta to Toulon and generally runs in a north-south direction. The path of the removed railroad tracks has been converted for walking, jogging and bicycling. For purposes of this decision the path shall be called the “trail.” The trail is from eight to twelve feet wide and is limestone surfaced. Periodically, the trail crosses public roads. To prevent motor vehicles from entering the trail from the roads, Respondent constructed cable gates on each side of the road. The cable gates consisted of two six-inch by six-inch wood posts planted vertically into the ground. On each post there were red and orange reflectors nailed to both sides of the post. White PVC pipe was extended between the posts on the cable. Orange reflective tape was strung every so often on the PVC pipe. The cable was affixed to the posts at least on one side by a padlock which would allow Respondents employees to temporarily take down the cable to permit service vehicles to enter the trail. There is an area to walk around the gates on the outside of the posts.

The portion of the trail Claimant was traveling on the day of the accident was from Alta to Princeville, a distance of ten miles. He was returning to Alta from Prince-ville when the accident occurred. There are 14 roads which cross the trail from Alta to Princeville. On each side of each road a cable gate blocked access to the trail. The cable Claimant struck while bicycling was located on the gate on the south side of Cedar Hills Drive.

Claimant testified that on October 6, 1992, he entered the trail of the Rock Island Trail State Park at Alta at 3:30 p.m. It was a warm, bright, overcast fall day. He bicycled from Alta to Princeville. Along the way he crossed Cedar Hills Drive. Upon reaching Princeville, he took a three to five-minute break and then started his return trip. As he approached Cedar Hills Drive he had to slow down to get around the cable gate on the north side of the road. After checking for traffic in both directions, he crossed the road, looked for another cable immediately, but did not see one. As he accelerated he looked up periodically, but did not see anything. Suddenly, the cable was in front of him and he did not have time to stop. He does not remember striking the cable.

After the impact Claimant believes he lost consciousness. The next thing Claimant remembered was awakening and finding a stranger with him. Claimant was lying on the ground and his bicycle was on its side with a flat tire. He could not recall his name and address. Another person who came upon Claimant after the accident loaded Claimant and his bicycle into his truck. Claimant was unable to recall the direction of his residence, but after riding in that direction his memory began to return and he was able to find his house.

After returning home, Claimant called his wife at her place of employment. She came home and took him to Proctor Hospital where he spent four days. Claimant had suffered abrasions and a dislocation of his left shoulder, fractured ribs and a basilar skull fracture. After a twelve-day wait to permit his abrasions to heal, Claimant underwent an operation so that a screw could be inserted to bring the parts of the shoulder joint into proper alignment. This screw was removed in another procedure on December 1, 1992.

Claimant testified that the cable gates on the Rock Island Trail are usually ten to fifteen feet from the highway. He identified Claimants exhibit 1 as photographs that he took on October 11 or 12,1992, of typical road crossings of the Rock Island Trail. He testified that the location of his accident was the only site on his trip where the posts and cable were located approximately 200 feet off the' road and back around a slight curve. He identified Claimants exhibit 2 as a photograph he had taken on October 11, 1992, that shows the site of the accident. The cable was down and unsecured. He identified Claimants exhibit 3 as a photograph of the accident site which he took on either October 11 or 12, 1992. The photograph shows the site from the direction Claimant was traveling when the accident occurred. The cable is up and secured in the photograph.

Claimant further testified he had been on the trail approximately a dozen times in the preceding three to four months. When he had ridden the trail prior to the accident, the cables from Alta to Dunlap were sometimes all up and sometimes all down. Occasionally, two or three would be up while the others were down. From the north edge of Dunlap to Princeville, the cables were always down. His accident occurred in the portion of the trail where the cables were randomly up or down.

On cross-examination Claimant testified he typically tried to get his bicycling in after work, and each time he would enter the trail at Alta and usually would go as far as Princeville before returning. As he approached each cross road he would encounter a cable gate. The cable gates had an area that bikers and hikers would use to walk around the outside of the posts. After crossing the road he would encounter another cable gate. Each of the twelve times prior to the accident that he had traveled from Alta to Princeville and back he had encountered the gate where the accident occurred twice. If the cable was up he would take his bike around the post.

Claimant further testified on cross-examination that on the day of the incident he was riding a twelve speed, narrow-tired bike with handles that almost looked like rams horns. His hands were on the portion of the handlebars that circle underneath so he could keep a grip on the brakes. When he accelerated he tucked his head down so that he was looking straight down'for short periods of time. After he crossed Cedar Hills Drive he didn’t see a gate so he started to accelerate and put his head down. About 50 or so feet later he looked up and didn’t see anything in front of him. He then put his head down in the tuck position. Though he couldn’t give an exact number of times he looked up before the accident, he knew it was more than twice. He identified Claimant’s exhibits 5A and 5B as Polaroid pictures from Cedar Hills Drive to the gate where the accident occurred. The pictures were taken by his wife who later testified that she took the pictures on October 8, 1992. Exhibit 5B is a picture taken from the edge of Cedar Hills Drive looking south; which is the direction Claimant was traveling when the accident occurred. He testified he could not see a cable depicted in exhibit 5B. However, he could see something white that appeared to be crossing the path.

Claimant also testified on cross-examination that he was nearsighted and was required to wear corrective lenses for driving. He was not, however, wearing glasses on the day of the accident and never wore glasses the 12 previous times he was on the trail. When Claimants attorney was later given leave to recall Claimant, Claimant testified that during the lunch break he recalled that on the day of the accident he was wearing prescription sunglasses.

Harold Deatheridge was called as a witness by both Claimant and Respondent. He is an employee of the Illinois Department of Natural Resources who started working at the Rock Island Trail State Park as a site technician in January of 1987. His duties include maintenance and repair of the trail. Mr. Deatheridge testified that the most popular access point to the trail is the Alta parking lot. From Alta to Princeville is considered the lower portion of the trail. He estimated that in 1992, the year of Claimants accident, approximately twenty-thousand people used the trail and probably ninety percent of those people used the lower portion. He further testified that trail users probably consist of seventy-five percent bikers and twenty-five percent people on foot. Mr. Deatheridge admitted hearing of maybe four bicycling accidents on the Rock Island Trail involving cable gates. He could only specifically recall three of the incidents. One accident was the one involving Claimant. Another was an incident involving a Mr. Art Oakford who, in 1992, struck a post of a cable gate while daydreaming, but did not strike the cable. Mr. Deatheridge heard about a third incident involving an unknown individual who, in 1989, ran into a cable somewhere on the trail. Mr. Deatheridge did not believe there was an accident report made about the incident and didn’t know whether the incident involved any personal injury or property damage. He also had no information that the person riding the bicycle could not see the cable. Mr. Deatheridge was also unaware of any other accident involving bikers running into the cable where Claimant’s accident occurred. Mr. Deatheridge was unaware of any complaints from people using the trail that they had difficulty seeing the cable where Claimant’s accident occurred.

Robert Espeseth testified as an expert witness for Claimant. He is a Professor Emeritus from the University of Illinois Department of Leisure Studies, who at one time had been Chief of Planning for the Wisconsin State Parks. He has spent over 30 years in the design of bike trails. He recalled testifying in support of the Rock Island Trail State Park at a hearing held in Peoria in 1974. During the course of the inception and development of the trail he recalled Jerry Schaefer, the Regional Land Manager for the Illinois Department of Conservation, asking about his experience with trails in Wisconsin and some of the aspects of development and design. Mr. Schaefer was concerned about keeping vehicles off the trail and inquired as to the type of barriers that had been used in Wisconsin. Professor Espeseth related to him that in many cases barriers had not been used at all, but where they were used, they were either removable or they were hinge posts that would drop down. Cables, chains or other barriers were never used across the entire trail because of safety factors and the possibility of collision by bikers.

Professor Espeseth visited the trail in October of 1995, to examine the accident site. He was shown Claimants exhibit 3, tire blown-up photograph of the cable gate where Claimant’s accident occurred, and asked whether that cable gate constituted a substantial and significant breach of the standards of good and safe design principles to be used on bicycle paths. He responded that there are other alternative methods of safe barriers, such as use of removable posts, bollards, and hinge posts. Claimant’s exhibits 13, 14 and 15 illustrate alternative barrier designs. Professor Espeseth was not familiar with any other trails that utilize either cables or chains for blocking access along a bikeway. He further testified that use of a cable is substantially more dangerous than use of a bollard because it completely blocks the access of bicycles and you have to go around the posts to continue traversing the trail. He also testified that the cable Claimant struck was difficult to ascertain because of coloration of the cable, a broken part of PVC cover, and mottled sunlight coming through the trees and leaves.

On cross-examination Professor Espeseth testified he estimated that fifteen to twenty thousand people a year probably used the trail. He also acknowledged that someone who was daydreaming could possibly run into the posts, bollards and hinge posts that he had indicated were alternative safe barriers. However, he thought the possibility of collision would be reduced by having openings along the trail rather than a complete blockage of the trail.

Professor Espeseth was not permitted to testify, consistent with his affidavit submitted in response to Respondent’s motion for summary judgment, that the gating system used by Respondent was a willful and wanton breach of the standard of care because that opinion went to the ultimate issue in this claim. Claimant contends that the failure to allow the testimony was improper, citing Zavala v. Powermatic, Inc. (1995), 167 Ill. 2d 542, 658 N.E.2d 371, 212 Ill. Dec. 889. In Zavala the Supreme Court of Illinois determined that the trial court properly allowed an expert’s opinion regarding the ultimate issue in the case, stating at 167 Ill. 2d 545, 658 N.E.2d 373, 212 Ill. Dec. 891:

“It has been settled for some time that expert opinion testimony on an ultimate fact or issue does not impermissibly intrude on the fact finders rule. (Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118, 122, 273 N.E.2d 809.) That notion applies in both civil and criminal contexts in this State so long as all other requirements for the admission of expert testimony are met. (See generally Freeding-Skolie Roll-Off Service, Inc. v. Hamilton (1985), 108 Ill. 2d 217, 221, 91 Ill. Dec. 178, 483 N.E.2d 524; People v. Pugh (1993), 157 Ill. 2d 1, 24, 191 Ill. Dec. 10, 623 N.E.2d 255.) The reason: the trier of fact is not required to accept the expert’s conclusion. Merchants National Bank, 49 Ill. 2d at 122, 273 N.E.2d 809; see also Hamilton, 108 Ill. 2d at 221, 91 Ill. Dec. 178, 483 N.E.2d 524; see generally Note, The Admissibility of Expert Witness Testimony: Time to Take the Final Leap?, 42 U. Miami L. Rev. 831, 896 (1988) (noting that Federal Rule of Evidence 704, which abolishes the ultimate issue rule, is based on notions that a jury, instructed on the deference to accord, functions best under full presentation and cross-examination of expert testimony).”

Claimant notes that Courts have routinely permitted experts to state opinions regarding standard of care and cites Anderson v. Chesapeake & Ohio Railway Co. (1st Dist. 1986), 147 Ill. App. 3d 960, 498 N.E.2d 586, 262 Ill. Dec. 262 and Van Holt v. National Railroad Passenger Corp. (1st Dist. 1996), 283 Ill. App. 3d 62, 669 N.E.2d 1288, 218 Ill. Dec. 762, as examples. In Anderson, plaintiffs expert witness was permitted to testify that a railroad crossing was “extrahazardous.” In Van Holt, plaintiffs expert was permitted to testify that a work area was in violation of the Federal Employers Liability Act because it did not provide the railroad employee with a safe place to function or work. Claimant has not presented, and this Court has not found, a decision in which an expert was permitted to testify that a party’s conduct was willful and wanton.

The decision in Zavala would appear to allow testimony regarding the ultimate issue of whether conduct was a willful and wanton breach of the standard of care. Professor Espeseth’s testimony should therefore have been allowed. However, as noted in Zavala, the trier of fact is not required to accept the expert’s conclusion.

William Kapitko, the site superintendent at Jubilee College State Park, was called as a witness for Respondent. He was the site superintendent for the Rock Island Trail State Park and was involved in developing the bike trail. He testified that the post and cable system was erected so the trail wouldn’t develop any more vehicular damage. He could not recall if the post and cable system was suggested by a landscape architect, if it was just something that was mutually agreed upon, or if it was something that had been observed that had been done on other sites throughout the State and currently still is. To his knowledge, cable gates also exist at the Hennepin State Trail, Rice Lake Fish and Wildlife Area, Anderson Lake Fish and Wildlife Area, Green River Conservation Area, Sand Ridge State Forest and at Jubilee College State Park. He had also observed bicycling activity at all those sites.

Mr. Kapitko further testified he was unaware of any other incidents involving a bicycle rider striking a cable other tiran Mr. Sherman. He also testified that depending on the time of day and position of the sun, other cables on the trail are in the shade besides the one where Claimant’s accident occurred.

On cross-examination, Mr. Kapitko testified that, in regard to the recreational facilities using cable gates that he discussed on direct examination, the Rock Island Trail State Park and Jubilee College State Park were the only facilities where more than fifty percent of the people were bicycling. He further testified that the system of reporting accidents that was used relied upon support officers, emergency vehicles and what could be physically observed. He also testified Mr. Deatheridge had not told him about other accidents of which Mr. Deatheridge had some recollection.

A willful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of the impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care. (Ziarko v. Soo Line Railroad (1994), 161 Ill. 2d 267, 641 N.E.2d 402, 204 Ill. Dec. 178.) Claimant contends the testimony of Harold Deatheridge regarding prior accidents on the trail involving the gating system is sufficient to prove Respondent was put on notice of the dangerous conditions created by its gating system. Claimant asserts it is not necessary to prove that any accidents occurred at the exact location as the gate where.Claimants accident occurred because the gates used throughout the trail are substantially identical. Claimant cites Rucker v. Northfolk and Western Railway Co. (1979), 77 Ill. 2d 434, 396 N.E.2d 534, 33 Ill. Dec. 145, for the proposition that all he needs to establish is a substantial similarity between the prior occurrences and the incident in question. The only other evidence presented by Claimant regarding possible notice to Respondent of a'dangerous condition was the testimony of Professor Espeseth that during the inception and development of the trail he told Jerry Schaefer, the Regional Land Manager of the Illinois Department of Conservation, that cables, chains or other barriers were never used in Wisconsin across an entire trail because of safety factors and the possibility of collision by bikes. Claimant further contends that Professor Espeseths opinion that the gating system used by Respondent was a willful and wanton breach of the standard of care should be considered as a separate basis for concluding that Respondent is liable for Claimants injuries.

Respondent contends any accidents established by Mr. Deatheridge s testimony falls short of proving willful and wanton conduct on the part of Respondent. As noted by Respondent, of the thousands of people who used the bike path prior to 1992, Respondent was only aware of Claimants accident, the accident involving Art Oakford who ran into a post and not a cable in 1992, and an additional accident which occurred on the trail, supposedly in 1989, although there was no information regarding where the accident occurred, whether any personal injury or property damage occurred, or whether the individual riding the bicycle could not see a cable. Respondent asserts that if you take away Claimants accident in 1992, because the willful and wanton conduct must occur prior to Claimants accident, the only accidents involved are the Oakford accident and the 1989 accident. According to Respondent, the Oakford accident must be excluded from consideration because there was no evidence that Mr. Oakford ran into a cable. Therefore, the only accident left of which Respondent may have had notice was the accident Mr. Deatheridge heard about in 1989, although there was no report where on the trail the accident occurred, whether there was any personal injury or property damage, or whether the individual involved could see the cable. In response to Professor Espeseth’s testimony that he was told by Jerry Schaefer that in Wisconsin they never used cables, chains or barriers across the entire trail because of safety factors and the possibility of collision by bikers, Respondent asserts that all Professor Espeseth was testifying to was that he told Mr. Schaefer he had never used the cable gates in Wisconsin, not that tire use of cable gates somehow violated some accepted standard for bike paths.

At the close of Claimant’s case, Respondent moved for a motion for directed verdict. A directed verdict should be entered only in those cases in which all of the evidence, when viewed in the aspect most favorable to the opponent, so overwhelmingly favors the moving party that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria and Eastern Ry. Co. (1967), 37 Ill. 2d 404, 220 N.E.2d 504.) The evidence that has been presented regarding Respondents possible knowledge that its gating system presented a dangerous condition consisted of the testimony of Harold Deatheridge concerning prior accidents and the testimony of Professor Espeseth. This evidence, when viewed in the aspect most favorable to Claimant, would overcome the motion for directed verdict.

To prevail on the merits in this claim, Claimant must prove by the preponderance of the evidence that, by using its cable gating system, Respondent acted in a willful and wanton manner. Claimant must specifically prove that Respondent either knew or failed to discover its cable gates were dangerous through recklessness or carelessness. Claimant has failed to meet his burden of proof. The only evidence presented regarding Respondent’s possible knowledge prior to Claimant’s accident that the cable gates were dangerous was testimony about prior accidents by Harold Deatheridge and the testimony of Professor Espeseth that he informed Jerry Schaefer during the development of the trail that cable gates were not used in Wisconsin because of safety concerns. This Court agrees with Respondent that Mr. Deatheridge s testimony falls short of proving willful and wanton conduct. Except for Claimant’s accident, Mr. Deatheridge had no knowledge that could be imputed to Respondent of any accident involving a cable gate where the alleged cause of the accident was the inability to see a cable. This Court agrees with Respondent that Professor Espeseth’s informing Jerry Schaefer that cable gates were not used in Wisconsin did not put Respondent on notice that the particular cable gates Respondent would choose to use would be dangerous because a bicyclist would not see a cable. Claimant did not produce evidence that Respondent had received any complaints that people using the trail had difficulty seeing the cable. Claimant also did not provide evidence showing that Respondent failed to discover its cable gates were dangerous through recklessness or carelessness.

The allowance of Professor Espeseths opinion that the gating system used by Respondent was a willful and wanton breach of the standard of care also does not help Claimant meet his burden of proof because that opinion does not have to be accepted by the trier of fact. The record indicates thousands of bicyclists used the trail prior to Claimants accident without a reported accident allegedly caused by the inability to see the cable at the gate where Claimant’s accident occurred or any other gate on the trail. There wasn’t any evidence produced that any accidents had occurred at any of the other State facilities where similar cable gates were used. Claimant had previously encountered the gate where the accident occurred when the cable was up without incident. On the day of the accident Claimant had encountered the gate on his way to Princeville before his return trip. Professor Espeseths view that alternative methods of safe barriers could have been used that were safer than cable gates does not prove Respondent should have known its gating system was dangerous, especially when the volume of trail usage without accidents allegedly caused by difficulty seeing cables is considered along with the lack of complaints of difficulty seeing cables.

It is therefore the opinion of this Court that this claim be, and hereby is, denied.

       See page 43 of the November 6, 1987 Senate debates on this amendment as it appeared in House Bill 1421. Interestingly, at least one federal district judge thought that such was the case even after Miller and Davis but prior to this statutory amendment: “[T]he Licensing Act does not establish standards of care.” Hall v. United States, 647 F. Supp. 53, 56 (Central Dist. Ill., 1986, Judge Baker).


author: Epstein, J. Epstein, J.

text:
    (No. 93-CC-3138
    Gonzalo M. Padilla, Claimant, v. The State of Illinois, Respondent.

      Order filed April 6, 1998.

      Order on petition for rehearing filed April 20, 1999.

    George C. Pontikes & Associates (George C. Pontikes, of counsel), for Claimant.
    Jim Ryan, Attorney General (Tomas A. Ramirez, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Epstein, J.

This employees wrongful discharge claim is before us on the Respondents motion to dismiss: (1) for failure to exhaust Claimants administrative remedies, (2) as barred by settlement of the parties; (3) as barred by the limitation of section 11 of the State Labor Relations Act. (5 ILCS 315/11.) Also before us is the Claimants motion for an extension of time, to the end of February 1998, to respond to the motion to dismiss.

We have reviewed the complaint, the motion to dismiss, and the Claimants extensive motion for an extension of time, and have noted the failure of the Claimant to file anything further despite the passage of the requested additional time in his motion.

We now take up the exhaustion aspect of the Respondent s motion to dismiss, which we are constrained to grant on the pleadings. The Claimants complaint as well as the Respondents submissions establish the undisputed — and admitted — fact that the Claimant, following his disputed discharge by the (former) Department of Mental Health and Developmental Disabilities ("DMHDD”) did not pursue the arbitration remedy provided for in his union contract with the State, of which he claims to be (and we assume for this purpose that he is) a third-party beneficiary. That arbitration procedure was an available remedy for his discharge (and may have been his sole remedy, although we do not decide that).

Under the exhaustion of remedies doctrine of section 25 of the Court of Claims Act (705 ILCS 505/25) and of Rule 790.90 of the Court of Claims Regulations (74 111. Admin. Code §790.90), a failure to pursue an alternative remedy or source of recovery precludes a judgment of this Court against the State. When, as here, the alternative remedy has been waived or is no longer available, and our statutory exhaustion precondition can no longer be met, this Court can never render an award for the Claimant— even if he or she were otherwise entitled to relief — and thus, the claim becomes jurisdictionally deficient. .

Accordingly, and irrespective of the merits of the underlying claim, irrespective of the jurisdictional issues that arise on this claim for breach of a collective bargaining agreement, and irrespective of the other issues raised in the Respondents motion to dismiss which we do not reach and on which we express no view, this claim must be dismissed for failure of the Claimant to exhaust his available alternative remedy of arbitration.

We do not perceive that there is any reason, at this ultra-tardy stage or on this one issue, to wait further for Claimant to respond. The Court will entertain a timely motion for rehearing in the event that Claimant can point to any misapprehended law or facts in this order.

It is therefore ordered:

1. Claimant’s motion for an extension of time in which to respond to the motion to dismiss is denied as moot; and

2. This claim is dismissed with prejudice and forever barred.

ORDER .

Epstein, J.

This employment termination claim is back before the Court on the Claimant’s petition for rehearing of our order of April 6, 1998, in which we dismissed this claim with prejudice for failure of Claimant to exhaust his administrative remedies, as required by section 25 of the Court of Claims Act. (505 ILCS 5/25.)

This action is based on the collective bargaining agreement (“CBA”) between Claimant’s union, the American Federation of State, County and Municipal Employees (“AFSCME”), and the Respondent’s Department of Central Management Services and former Department of Mental Health and Developmental Disabilities (“DMHDD”), which Claimant seeks to enforce as a third-party beneficiary. Claimant alleges that his employment with DMHDD was terminated without “just cause” in violation of the CBA.

It is undisputed that the Claimant did not pursue his grievance through all of the internal DMHDD procedures provided under the four-step grievance and arbitration procedures in Article V of the CBA; Claimants grievance was settled and the administrative process terminated shortly before his arbitration was scheduled.

However, Claimant now asserts that his claim was settled by AFSCME without his concurrence and over his objection (petition for rehearing, pars. 5-6) and that he did not willingly fail to pursue his administrative grievance remedies (ibid., pars. 7-8):

“7. Pursuant to Article V, Section 1 of the collective bargaining agreement, only the union has the authority to submit a grievance to arbitration. Therefore, [Claimant] could not have proceeded with this claim, independently of the union when the union attorney refused to proceed with the arbitration.
8. It is clear that [Claimant] had no further administrative remedies to exhaust before proceeding * * * in this Court.”

Although it is not clear on the face of the CBA whether or not AFSCME has the exclusive right to bring and control employment grievances on behalf of its members, as Claimant contends, it is clear that Article V authorizes the union to represent its members in the grievance process, and the agreement is at least susceptible of the construction that Claimant postulates. For purposes of the motion to reconsider, the Court will accept Claimants interpretation of the union’s controlling role in the grievance process, including the final arbitration procedure.

Thus, we arrive at the exhaustion avoidance argument now advanced by this Claimant: that he should be excused from the exhaustion requirement (or that it does not apply to him) because he did not control his administrative claim and because he did not approve of the abandonment of the grievance procedures that was effected for him by the union.

We reject this argument. Claimants reliance on the notion of a rogue agent — i.e., his own union allegedly acting contrary to his wishes and interests — is grandly misplaced.

First, the Claimant, as principal or beneficiary, is bound by his authorized agents authorized actions. There is no claim here that AFSCME’s settlement of Claimants employment claim and its termination of his administrative grievance was unauthorized or illegal or otherwise not binding. To the contrary, Claimant asserts that the union had complete control of his grievance despite his disapproval and objection; that contractually-delegated control is the crux of his argument for rehearing. That control, however, is also part of the parties’ bargained-for agreement in the CBA.

Second, having contracted away his autonomy as to employment grievances to his union, the Claimant cannot now disclaim that representation without grounds that are not alleged here:

“A wrongfully discharged employee may bring an action against his employer in the face of a defense based on failure to exhaust contractual remedies. However, the employee must allege and prove that the union, as bargaining agent, breached its duty of fair representation in its handling of the employees grievance. (Swieton v. City of Chicago (1st Dist. 1984), 129 Ill. App. 3d 379, 383, 84 Ill. Dec. 543, 472 N.E.2d 503.) Similarly, an employee may sue his employer after a grievance procedure or arbitration, provided that the employee first obtains a court finding that the union breached its duty of fair representation in the prior proceedings. (Vaca v. Sipes (1967), 386 U.S. 171, 17 L.Ed. 2d 842, 87 S. Ct. 903.) Cosentino v. Price (1st Dist. 1985), 136 Ill. App. 3d 490, 495, 483 N.E.2d 297, 300, 91 Ill. Dec. 15,18."

Third, even if Claimant could successfully divorce himself from the acts of his union representative, insofar as the record shows, he did not attempt to contest AFSCME’s acts and did not seek to pursue the arbitration or to repudiate the settlement he now claims to have disapproved.

Fourth, and still assuming arguendo that the CBA grants complete control over employee grievances to the union, the Respondent, as contracting employer, has a right to rely on that contractual control provision and the settlement that it produced. Claimant cannot unilaterally abrogate or avoid the contract.

In the final analysis, it simply does not matter who actually made the decision not to pursue Claimants grievance. It was not pursued by him or on his behalf. Pursuit of his claim to exhaustion of the administrative process is a statutory condition of obtaining relief in this Court. We find no basis on which to permit this claim to proceed in the face of this undisputed record of an intentional failure to exhaust administrative remedies by an authorized contractual agent who settled the claim.

Finally, we observe in passing that Claimants premise — that the union has complete control of its members’ employment claims under the CBA — is facially inconsistent with Claimant’s standing to bring this claim in this Court “independently of the union,” as he states he is doing. We do not reach this issue, but point this out as another unresolved twist in Claimant’s position on rehearing.

For all of the foregoing reasons, Claimant’s petition for rehearing is denied.