text:
    (No. 79-CC-0516
    Akiba South Side Jewish Day School and Open Kitchens, Inc., Claimants, v. The State of Illinois, Respondent.

      Opinion filed November 9, 1983.

    John Duffy, for Claimant.
    Neil F. Hartigan, Attorney General (Mary A. Mulhern, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

Claimant seeks reimbursement for sums it claims it expended in performing a contract with the Illinois Office of Education (IOE) to provide meals to school children pursuant to the National School Lunch Act. 42 U.S.C. sec. 1751 etseq.

Claimant was a service organization or sponsor during the summer of 1977 under that Act. Claimant claims that it is entitled to reimbursement for meals provided in the amount of $541,530.00 but was paid only $360,491.00, leaving a balance due of $181,039.00.

The program is administered by the United States Department of Agriculture (USDA). Under this program the USDA grants money to the states to contract with service organizations or sponsors, such as Claimant, to provide free food services to children in poverty areas during the summer months. Claimant was allowed to and did contract with a food service management company, Open Kitchens, Inc., to actually prepare and deliver the meals to the sites. Federal regulations pertaining to the program are found in 7 C.F.R. sec. 225. The State of Illinois did not contribute any funds toward this program.

In 1977 the IOE agreed with the USDA to participate in the program. The IOE sent applications, handbooks and site handbooks to potential sponsors. The handbooks set forth the rules and regulations regarding the program (but did not set forth that statistical sampling would be used to audit payments under the program).

On May 10 or May 11, 1977, a training workshop was held at which time the program and the regulations were explained. On June 9, 1977, Claimant filed an application for sponsorship in the summer food program. Project sites such as schools, churches and community centers with summer children’s programs were selected and approved by the IOE. The children were to be served meals at the site. The Claimant had 167 sites. On June 24, 1977, Claimant signed a contract with the IOE (Claimant’s exhibit No. 1) which provided that Claimant would be a sponsor under the program and would receive reimbursement for meals served, and on June 27, 1977, Claimant commenced delivery of breakfast, lunch and supplement meals to the children at the sites. As of July 31, 1977, because a sampling monitoring program indicated a large number of ineligible meals were being claimed, the IOE cancelled the breakfast portion of the program and Claimant voluntarily cancelled the supplement meal portion of the program. The lunch program continued through August 27,1977.

Claimant presented a claim for reimbursement total-ling $541,530.00. According to Claimant’s certified public accountant, Sanford Aronin, of the C.P.A. firm of Checker, Simon and Rosner, the claim for reimbursement was done in accordance with the standards for audit issued by the Comptroller General of the United States and the United States Department of Agriculture audit guide No. 8270.6, dated March 1977. He further testified that Claimant had received the sum of $360,491.00 leaving a balance due of $181,039.00.

Respondent’s defense is that, based on an audit done on the program by the USD A, which audit was done on the basis of statistical sampling, the total amount reimbursable to Claimant was only $399,079.00, and that in addition to the $360,491.00 paid, there was paid, after the audit report, the sum of $38,588.00, thus leaving the amount at issue at $160,711.00.

On the question of the amount paid by Respondent to Claimant, the record is sparse. Claimant’s C.P.A. stated the amount paid was $360,491.00. The order of the U.S. Court of Claims, case No. 369-78, wherein the Claimant sued the United States directly and which case was denied on motion for summary judgment, indicated that only $360,419.00 was paid. The only evidence of payment of the disputed $38,588.00 was the testimony of Russell J. Hild, a witness for Respondent who was a supervisory auditor in the United States Office of Audit who testified as follows:

“Q. Do you have knowledge as to what actual amount has been in fact paid to Akiba for the 1977 summer lunch program?
A. It was up to what we had cited in the report, $399,079.00. And that wasn’t paid — I think at that time it was $360,000.00. But since then its been paid up to the maximum figure we had cited.
Q. So the total amount of the report, to your knowledge, has in fact been paid to Akiba pursuant to the figure of the audit report, is that correct?
A. Right.”

No date of payment was described. No cancelled checks, receipts or other documentary proof was offered as proof of payment. Claimant’s witness was an employee of the United States government and not of the State of Illinois and the source of his knowledge of payment was not brought out. Since payment is an affirmative defense, it is this Court’s opinion that Respondent has not sustained this burden as to the $38,588.00 and that there is therefore owed by Respondent to Claimant the sum of $38,588.00, regardless of the validity of the balance of the claim and of the Respondent’s defense thereto.

The bulk of Respondent’s defense is based on the USDA audit report which was done by statistical sampling and projections therefrom. The undisputed portion of the audit report gave 100% credit to Claimant for meals claimed in sites not included in the sampling. The issue revolves around the audit report giving credit for eligible meals based on a statistical sampling of sites. Meals that were deemed ineligible were deemed so for various reasons among which were that the meals were short on delivery, in excess of needs, eaten off the feeding site, had spoiled ingredients, had missing components, and were not served within the required time frame.

An understanding of the operation of the audit and of the summer lunch program is therefore necessary.

Meals under the program are delivered to the sites. The supervisors of the sites are employees of the church or organization which runs the youth program at that site. They are not Claimant’s employees. Meals are, according to the testimony of Andrew Lee of Open Kitchens, Inc., not delivered or served in a controlled environment. The sites are located in ghetto areas and are sometimes physically chaotic. The children are young and often undisciplined. The sites ranged from a minimum of 30 children per site to 400 per site. The sponsors were not required to have an employee present at each site on each day.

By far, the most meals deemed ineligible were meals claimed at sites in excess of the number of children in attendance, Since attendance of the children at a site is voluntary, a sponsor cannot predict with any accuracy how many children will attend on any particular day. Whether every meal is eaten at the site is also sometimes difficult for the sponsor to control or even observe at times.

The USD A had monitors who made observations on some days on some sites. Their observations were recorded and the results imparted to Claimant via “fast reports”, thereby giving Claimant some opportunity to make adjustments in the number of meals ordered for each site and to improve its performance in the other ways necessary to rectify errors. There is evidence in the record that Claimant did, in fact, in some cases rectify errors and adjust meals ordered, but in other cases, Claimant failed to make appropriate adjustments.

The monitors were college students on summer jobs. They were given some minimal training as to what to observe and how to record their observations. However, counting large numbers of meals to children who are not stationary could be difficult. All parties, including a monitor, Steve Lerner, agreed that some of the counting was a matter of judgment.

Normally, there were two monitors to a site although at times there was only one. Any differences in count as between the two monitors were resolved in favor of Claimant. The site supervisor, who was not a direct employee of Claimant, signed the monitors’ forms.

Larry Hartón was the auditor in charge and he reviewed the monitors’ forms. He testified that where there was a problem based on judgment he would resolve it in favor of Claimant. However, the most significant problem he noted was that Claimant continually made claims for leftover meals — meals delivered in excess of children receiving. However, cross-examination of Hartón and Lerner brought out several unexplained inconsistencies and potential errors.

According to the audit, approximately 48% of the total meals reported for the audited sites were counted as ineligible for reimbursement.

The monitors observed a total of 117 site-days (1 day’s operation at a feeding site) out of a total universe of 3,995 site days and projected the results at a 95% confidence level.

Dr. Herbert Arken testified for Respondent as an expert in the field of statistical sampling for audit purposes. He is an author of statistical auditing texts and numerous articles on the subject. He developed the statistical sampling plan which was ultimately used by the U.S. office of audit for the summer food program in 1977 and has been receiving $20,000.00 per year from the United States government for his expertise for many years.

Dr. Arken testified that probability sampling is widely used as an audit technique and is approved by the American Institute of Certified Public Accounts which sets the standards for the field of auditing and is used frequently by the Federal government and the Internal Revenue Service. There are a variety of sample plans available. The choice of a plan has a substantial effect on the magnitude of the sampling error. Simply stated, the more you sample, the less potential error there is in the result. If the sample is 100% there would, of course, be no error. In the case of this Claimant, the size of the sample and the plan used resulted in a 95% upper confidence level. This means that the audit is 95% certain that had the monitors examined every site on every day the value obtained would have been between the limits established from the sampling. In this case, the probability that the projection was incorrect was one in 20 or 5%. In the sampling plan, sampling error was taken into consideration so that, if the result were a mere projection of the samples, the amount found to be eligible would have been $44,000.00 less than that which finally resulted. To state it another way, allowance was made to Claimant for sampling error, in the amount of $44,000.00 because of the size of the sample even though it is 95% certain that the sampling error is something less than $44,000.00.

Dr. Arken testified that the audit calculations were correct and were done in accordance with generally accepted accounting practice and that an upper confidence level of 95% was the most commonly used figure in auditing.

On cross-examination, Dr. Arken admitted that errors in counting would alter the final result and that the effectiveness of his formula was dependent on the accuracy of the data which was gathered by the monitors.

Claimant called Dr. Haskell Benishay in rebuttal. Dr. Benishay is a professor at Northwestern University where he teaches economics, management, and statistics. Dr. Benishay testified that the statistical sampling audit did not take into consideration errors in measurement and errors in posting and if they were taken into account there would be more money due Claimant. Further, that a higher confidence level should have been used — 97.5%. He also said that the number of sites fluctuated from time to time and that this was a potential source of error in the audit. He was unable, however, to translate these potential errors into dollar figures.

On cross-examination, Dr. Benishay admitted his experience was basically in market research and econometrics and not auditing. He agreed that errors in counting might include an equal number of undercounting and overcounting.

Dr. Arken, called by Respondent on surrebuttal, testified that statistical techniques used in econometrics and marketing opinion polls are different than those used in auditing and that in auditing they do not exceed the upper confidence level of 95% and are usually between 90 to 95% upper confidence level. However, if a 97.5% upper confidence level were used, Claimant would have $8,118.00 additional monies due. As to errors in measurement, the same was not a problem in statistical sampling audits because the errors in measurement have been built into the formula and are accounted for. He said, “If the errors are random errors and do not reflect a deliberate bias, and there is no evidence of that in this case, it is obvious that the average of those errors would be equal to zero or something close to it”. Stated another way, without deliberate bias, it is just as likely that a monitor would over count as under count. Dr. Arken maintained that the criticisms of Dr. Benishay were invalid and proceeded to explain at length his reasons for this statement.

Claimant argues that the state of the art of statistical sampling is not well enough developed to be used as a claims adjustment tool. In support, Claimant cites testimony by Dr. Arken that there was a one chance in 20 that the figures developed were wrong and that this average is insufficient to deny Claimant’s claim. We disagree. No court requires evidence that is 100% certain of truth. To adopt a standard suggested by Claimant would deprive the courts of most evidence. Most courts would be well satisfied with evidence that does not approach a 19 out of 20 certainty of truth.

Claimant notes the disagreement of the experts called in this case and argues that such disagreements illustrate confusion in the statistical community. We disagree. Mere disagreement of experts does not invalidate a mathematical formula application. We find that the testimony of Dr. Arken was clearly more logical and credible than that of Dr. Benishay.

Claimant argues that the monitors witnessed only $5,326.00 worth of meals they considered ineligible and that statistical sampling is not accurate enough to allow the withholding of $181,039.00 based on that small sample. Again we disagree. The most credible testimony was that there was a 95% probability that the withholding of money for ineligible meals was accurate based on that sampling. Any inaccurate counting or posting was built into the mathematical formula and accounted for. Errors in judgment in the sample were resolved in favor of Claimant. The conclusions of the audit report were founded on generally accepted accounting procedures.

This Court is further guided by the case of State of Georgia v. Califano (N.D. Georgia, 1977), 446 Fed. Supp. 404. This case involved a suit by the State of Georgia for reimbursement of monies paid by the State to doctors who had provided services to Georgia Medicaid recipients. It was defended on the basis that an audit conducted by the use of random statistical samples was invalid. The court said:

“The court concludes that the use of statistical samples was not improper. Projection of the nature of a large population through review of a relatively small number of its components has been recognized as a valid audit technique and approved by courts in cases arising under Title IV of the Social Security Act. (Cites omitted.) Moreover, mathematical and statistical methods are well recognized as reliable and acceptable evidence in determining adjudicative facts. (Cites omitted.) However, to find that statistics may be admitted as evidence of a proposition is not to say that the statistical model will always be conclusive. The weight which must be given to such statistical evidence is not necessarily one which must be considered by the fact finder in light of the practical difficulties in obtaining a claim by claim review! In the instant case, statistical sampling was the only feasible method of audit available to HEW . . . Audit on an individual claim by claim basis of the many thousands of claims submitted each month by each state would be a practical impossibility as well as unnecessary . . .”

Although the Georgia case differed in several important respects from the instant case, the logic of the reasoning as above quoted is compelling and could be transferred to the instant case.

So also is the decision in Illinois Physicians Union v. Miller (7th Circuit, 1982), 675 Fed.2d 151, in a claim challenging the procedures of the Illinois Department of Public Aid in auditing physicians who are reimbursed for medical expenses under Medicaid. The court held that the use of a statistical sampling and extrapolation auditing procedure is not arbitrary, capricious or discriminatory where there is an opportunity to rebut the initial determination.

In the instant case, it is the opinion of the Court that the audit report, while not conclusive, is admissible and valuable probative evidence. Claimant, although able to show a few instances of mistake, was unable to demonstrate that the samples taken were substantially incorrect. The few errors shown by Claimant were adequately covered by the formula used.

This commissioner further disagrees with Claimant’s contention that Claimant was never advised that a statisdeal sampling audit would be used as a claims adjusting tool and that had they been informed they would not have assumed the risk of joining the program. It is agreed that neither the contract nor the handbook authorized or informed the reader of such type of audit. The evidence was conflicting as to whether the matter was fully explained at the training session. Rabbi Jerry Miller, later a representative of Claimant, attended the session as did his brother, Glenn Miller, both of whom later administered the program for the Claimant. Rabbi Miller denied being told that statistical sampling would be used for the purpose of ascertaining reimbursement. He was supported by Claimant’s witness, George Hanlon, a deputy commissioner of the Department of Human Services of the City of Chicago, who also attended the training session. Hanlon could not recall that the participants in the session were told that statistical sampling would be used as a claims adjustment tool.

However, Respondent’s witness, as to this training session, was Larry Hartón, an auditor from the U.S. office of audit, who testified that he conducted a two-hour session at which, among other matters, he explained that his office would be conducting statistical sampling of the program including the amount of eligible meals served. He explained that for the first two weeks of the program the statistical sampling would not be used for the purpose of projection, but for the purpose of giving sponsors the opportunity to work out any bugs in their program with regard to the amount of meals ordered, accuracy of data, record keeping and required components of meals. He testified that Rabbi Miller voiced unconcern over the statistical sampling audit method, having had experience the previous year with this method while he administered a similar program for a different sponsor.

It is this Court’s opinion that Rabbi Miller must have known that neither the USDA nor the OEA had monitors on duty every day at every site. What other practical way would there have been for the USDA to protect itself from inaccurate or inflated claims? Moreover, the audit report is merely evidence, not requiring advance notice to a claimant.

Equally unavailing is Claimant’s argument that Claimant has no contractual right to pass on all of its losses to its vendor. Although the contract between Claimant and Open Kitchens, Inc., does not give Claimant the right to refuse payment to Open Kitchens, Inc., on the basis of statistical sample audits, Claimant would have the same right, in litigation between itself and Open Kitchens, Inc., to use as evidence the statistical sampling audit as does Respondent in this case.

Claimant argues that even if the audit was correct, Respondent’s only remedy pursuant to the contract was to terminate Claimant as a sponsor. We disagree, in that the contract provided as follows in Paragraph C:

“The Service Organization agrees to . . .6. Claim reimbursement only for the type or types of meals specified on the Site Information Sheet served to children during the approved meal service period at sites and account separately for any meals served to program adults.”

and further that Paragraph F of the contract relating to termination of the sponsoring organization is permissive, using the word “may” and does not imply that such is the exclusive remedy. Claims for ineligible meals constitute a breach of the contract, the remedies for which are set by general law and need not be spelled out in the contract.

Claimant also argues that all witnesses agreed that Claimant’s duty upon receiving information as to problems was to take corrective action and that where a sponsor does take corrective action it is doing all that it can reasonably do and therefore should not be “punished” by the use of the statistical sampling audit. While the extent of Claimant’s corrective action is disputed, it is evident by the audit that substantial corrective action was not fully taken at every site. The use of the statistical sampling audit is not punishment. It is merely one method and perhaps the only practical one of ascertaining the eligibility of meals. While Claimant did have the duty of taking corrective action, this duty was not the only one it had under the contract. It had the further duty of refraining from claiming ineligible meals.

More vexing, however, are Claimant’s contentions that the inherent difficulties in the program and certain deficiencies in the activities of the IOE as outlined in the audit report require an assumption of the risk by the Respondent.

As earlier outlined, the largest discrepancy in the figures of each party are in the area of leftover meals. This reflects the difficulty in predicting in advance the amount of meals necessary at a site while at the same time being certain that no child attending the site will be deprived of a meal. The sites were approved by IOE and the initial determination of the number of meals for each site was approved by IOE (although the responsibility for ordering correct amounts was the responsibility assumed by Claimant).

The audit report stated that:

“Some of the deficiencies in this report could have been significantly mitigated if the SA (IOE) had distributed sponsor applications earlier in the year. This would have provided the SA (IOE) immediate access to potential sponsors. This, along with effective management and staffing would have ...(c) enabled the SA (IOE) to timely monitor feeding site operations which probably would have reduced the ineligible meals . . . .”

Thus, the very audit report which constitutes the defense of Respondent points a finger at Respondent as sharing in the cause of the nonperformance. Therefore, we feel that Respondent, being somewhat culpable, should share somewhat monetarily in the loss occasioned by the ineligible meals. While Claimant’s theories of defense and evidence did not include a theory of sharing of risk, we feel that the audit report and the surrounding facts should be considered in a light most favorable to Claimant.

Accordingly, we think that the figures should be adjusted so that an upper confidence level of close to 100% be used. Using the figure of $8,118.00 testified to by Dr. Arken as being the additional money to be due Claimant at the confidence level of 97.5%, a doubling of that figure should be considered by the Court as approaching 100% confidence level and as being owed by Respondent to Claimant to remove all doubt as to the reliability of the result. Thus, it is hereby ordered that Claimant be, and hereby is, awarded:

(a) $38,588.00 being the amount claimed by Respondent to have been paid but for which Respondent failed to sustain its burden and,

(b) $16,236.00 being the amount necessary to remove all potential doubts and errors; for a total award of $54,824.00.

Claimant’s claim for interest is denied.


source: Caselaw Access Project

author: Holderman, J.

license: Public Domain

text:
    (No. 79-CC-0723
    Robert Stein, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 1, 1983.

    Steinberg & Burtker, Ltd., for Claimant.
    Neil Hartigan, Attorney General (Francis Donovan, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is an action to recover for personal injury sustained by Claimant, Robert Stein, on June 8, 1978, when the bicycle upon which he was riding struck an area of broken and defective pavement filled with water on the west side of Route 41 just south of West Park Avenue in Highland Park, Illinois. Claimant contended that the State was negligent in maintaining the area in question and had actual knowledge of the defect for a period of between six months to one year prior to June 8, 1978.

That since the initiation of this claim, the parties have engaged in extensive discovery and have entered into a joint stipulation.

This Court therefore finds that based upon the parties’ joint stipulation, the Claimant was injured when the bicycle upon which he was riding fell into a water-filled series of holes in the broken pavement of Route 41 just south of West Park Avenue in Highland Park, Illinois. That as a result of the fall from his bicycle, Claimant sustained a comminuted and displaced fracture of the olecranon process of his right elbow. His fracture required hospitalization and surgery at Highland Park Hospital, Highland Park, Illinois. The Court further finds that the Respondent had actual knowledge of the defective pavement in question for a period of at least six months and up to one year prior to June 8, 1978. (See Thien v. City of Belleville, 331 Ill. App. 337; Di Orio v. State (1950), 20 Ill. Ct. Cl. 53; Kamin v. State (1953), 21 Ill. Ct. Cl. 467.) The parties have further agreed that it is in their respective best interests to stipulate to these facts and to agree that the sum of six thousand ($6,000.00) dollars be awarded the Claimant to fairly and reasonably compensate him for the injuries he sustained resulting from the occurrence in question.

It is hereby ordered that the Court finds the parties’ joint stipulation to be fair and just and that the sum of six thousand ($6,000.00) dollars be awarded to the Claimant, Robert Stein, in full satisfaction of any and all claims presented to the State of Illinois under the above captioned cause.


author: POCH, J.

text:
    (No. 79-CC-0764
    Bernice Szydelko, Administratrix of the Estate of William J. Szydelko, Deceased, Claimant, v. The Department of Mental Health of the State of Illinois, Respondent.

      Opinion filed February 10, 1984.

      Order on denial of rehearing filed May 1,1984.

    Joel H. Greenburg, for Claimant.
    Neil F. Hartigan, Attorney General (Francis Donovan, Edward Hurley, and Hans G. Fladung, Assistant Attorneys General, of counsel), for Respondent.
   POCH, J.

This is a claim brought by Bernice Szydelko, as administratrix of the estate of William J. Szydelko, deceased, to recover damages for the alleged wrongful death of the Claimant’s decedent on August 28, 1978.

A hearing was conducted before Commissioner Joseph P. Griffin, who heard testimony of witnesses, received evidence and the briefs and arguments of counsel. The commissioner has duly filed his report, together with the transcript, exhibits and briefs now before us.

William J. Szydelko, decedent, age 32, was a patient at the Shapiro Developmental Center, a facility of the State of Illinois. He was first institutionalized when he was 25 years of age having a history of epilepsy.

During his stay at the Center, he was given various medications. On the day of his death, he was receiving: (a) phenobarbital, 60 mg., 3 times per day; (b) valium, 5 mg., 3 times per day; (c) serentil, 75 mg., 3 times per day; and (d) mysoline, 50 mg., 4 times per day.

On August 17, 1978, decedent’s dosage of serentil was increased from 50 mg., twice a day to 75 mg. three times a day, a 125% increase in dosage. It is Claimant’s contention that an increase in this dosage had an effect on decedent’s ability to swallow.

On August 28, 1978, decedent’s dinner consisted of braised beef and noodles. The pieces of beef were approximately 1/2 inch wide and 3/4 inch long. While eating his dinner, the decedent stood up, coughed out his milk, reached for his throat and collapsed. Effort was made to revive the decedent. Decedent was taken to St. Mary’s Hospital in Kankakee, Illinois, at 5:45 p.m. Decedent died at the hospital at 6:25 p.m. on August 28, 1978. Death was caused by meat mass inhalation asphyxia due to, or as a consequence of, associated mental retardation with chronic seizure disorder, and resuscitational.

Claimant claims that Respondent was negligent in rapidly increasing decedent’s dosage of serentil which had an adverse effect on his swallowing, and that Respondent failed to provide decedent with a soft diet and failed to properly supervise him at mealtime by not providing him with a medical technician one to one.

Decedent had a history of mental retardation at an early age. He was never gainfully employed.

Claimant expended the sum of three thousand five hundred ($3,500.00) dollars for the burial of her son.

Extensive medical testimony was submitted by both sides.

From the record, it is the opinion of the Court that the State was negligent in the care of the decedent which resulted in his death.

The Court therefore makes an award in the amount of eight thousand five hundred ($8,500.00) dollars, to Bernice Szydelko, administratrix of the estate of William J. Szydelko, deceased.

ORDER ON DENIAL OF REHEARING

The cause comes before the Court on Claimant’s petition for a rehearing of the decision of the Court of February 10, 1984, and Respondent having filed its objections and all parties having received due notice of the pleadings and the Court being fully advised hereby:

Finds that the petition for rehearing does not state with any merit any alleged errors overlooked by the Court. Pursuant to Rule 22 of this Court there is no legal or factual reason to modify the opinion of February 10, 1984.

It is hereby ordered:

That the petition for rehearing by Claimant be, and the same is hereby denied.


text:
    (No. 79-CC-0784
    Child Development Centers, Inc., an Illinois not-for-profit corporation, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 3, 1984.

    Allan G. Levine, for Claimant.
    Neil F. Hartigan, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant in this cause, Child Development Centers, Inc., hereinafter referred to as CDC, is an Illinois not-for-profit corporation which operates a residential facility caring for developmentally disabled children. CDC is licensed by the Illinois Department of Children and Family Services as a child care institute. CDC, through its president and administrator, Noel Hill, began organizing its program plans in 1976, and by early 1977 Mr. Hill began communicating with various people from the Illinois Department of Mental Health and Developmental Disabilities (DMHDD) regarding the rate of payment for services to DMHDD-sponsored clients placed in the proposed CDC facility. CDC actually commenced operation as a group home in June of 1977.

A contract for services was signed on August 15, 1977, by and between DMHDD and CDC. The contract was to be effective from July 1, 1977, through June 30, 1978, and provided for a per diem rate of $14.79 per child to be paid to CDC by DMHDD. The record is clear that even prior to signing this contract, CDC and various employees of DMHDD agreed that CDC should wait at least six months during its initial operation under the contract in order to determine its actual operational cost data. This was particularly important since CDC, as a new facility, had no prior cost history. The record is clear that the intention of both parties was that the initial rate of $14.79 per child could and would be reviewed and modified upon receipt of the aforementioned cost data and that a revised rate would become retroactively effective.

Pursuant to this understanding, CDC submitted financial records and schedules to DMHDD in February of 1978. Respondent did not act on this summation and no explanation as to why Respondent failed to act is in the record. In June of 1978, CDC again prepared its financial schedules and resubmitted them to DMHDD. Once again, no action was taken by Respondent and there is no explanation on the failure to act in the record.

In March 1979, CDC received word from DMHDD that a new rate had been established in the amount of $29.18 per day per child and that the new rate was made retroactive to July 1978. This meant that CDC was to operate its facility from July 1, 1977, through June 1978 at the original per diem rate of $14.79 instead of making the new rate retroactive to the starting date of said institution.

The real question, therefore, is whether or not this is a case of lapsed appropriation or one of contract interpretation and oral representation which was made by the Respondent hereto as an explanation of the written contract.

Claimant is basing its claim upon the new rate, which it believes is the correct rate, for a payment of $29.18 per diem retroactively to July 1, 1977, in an amount of $34,200.00.

It is Respondent’s position that the rate should not exceed the sum of $14.79 per diem until July 1978. The record is clear that Claimant did furnish the services for which it billed Respondent and that the services were satisfactorily performed by Claimant.

It is Claimant’s contention that the contract in question did not contain the complete understanding, agreement and undertaking of the two parties but that the actual agreement is shown by the correspondence of the parties which supported the proposition that CDC was to receive retroactive payment based on actual cost data.

The record abundantly supports the theory of Claimant that the actual cost of services rendered was not known by either party hereto, and that Claimant did keep records of the services rendered and the actual cost of the same and submitted this information to Respondent so retroactive payment could be made. The strongest evidence in this regard is that Respondent did offer in March of 1979 to retroactively pay for one year of service at the new rate which would have enabled Claimant to be paid for the period of July 1,1978, to June 30, 1979, at $29.18 per diem.

The testimony of Mr. Hill, which was largely uncontradicted, is borne out by the record itself. In a letter from the Department of Mental Health and Developmental Disabilities to Mr. Hill, it discloses at some length the rate review for the first six months of operation which is in direct support of the Claimant’s position and is not disputed by Respondent. It is interesting to note this letter was written August 15,1977. The letter further states “this per diem will be modified by any amounts of other financial support available to or on behalf of such clients, pursuant to Department rules.”

Respondent takes the position that a written contract was entered into and it was binding upon the parties and cannot be modified by parol evidence of the parties to the contract. It relies strongly on Illinois Central R.R. Co. v. State (1939), 10 Ill. Ct. Cl. 493, which is to the effect that a written contract cannot be changed by parol evidence of the parties.

The Court calls attention to Personal Finance Co. v. Meredith (1976), 39 Ill. App. 3d 695,702, where the court uses the following language:

“Furthermore, the language of a contract is not controlling as to the parties’ ‘agreement.’ Other circumstances such as course of dealing, usage of trade or course of performance are also relevant to the inquiry of the parties’ bargain in fact. We believe the relevance of these considerations expresses a legislative policy in favor of courts’ determining the actual agreement of the parties and against enforcing printed contract terms in a mechanical fashion. Therefore we cannot state that the instant clauses can never be unenforceable on the basis of unconscionability.”

The Court calls attention to Independent Mechanical Industries, Inc. v. State (1981), 34 Ill. Ct. Cl. 116, where an award was made for extra performance in a mental health center where the services were performed at the request of Respondent.

In the present case, Claimant is asking for money to pay for services actually rendered to Respondent and its wards and there is no question raised whatsoever as to the value of said services. The Court also calls attention to Grogan v. State (1978), 32 Ill. Ct. Cl. 46, where the Claimant encountered unforeseen difficulties in the performance of a contract and agreed to perform additional work upon assurances of additional compensation. It is Claimant’s contention, which the Court believes is substantiated by the record, that in the present case additional services were performed for the benefit of Respondent and that it was clear from the very beginning that neither Respondent nor Claimant was in a position to tell what the actual cost of operating the institution would be until it had operated for at least six months.

The Court calls attention to Wilson Electric Co. v. State (1976), 31 Ill. Ct. Cl. 504, which states that where the State vests a person with apparent authority to order services, the Claimant reasonably relied upon his apparent authority to bind the State, and the Claimant performed the services, the State cannot deny that the person had actual authority to bind the State.

The fact that the correspondence of Respondent and the testimony of Mr. Hill is not contradicted by any of the State’s employees that Claimant had contact with bears out Claimant’s contention. A careful reading of the record discloses the fact that Mr. Hill’s testimony for Claimant gave specific dates of his contact with the individuals representing Respondent. It is further noted that he identified four particular individuals who worked for Respondent who indicated to him there would be a retroactive payment. Respondent, for some reason, did not see fit to call these individuals to the stand, so the testimony of Mr. Hill stands completely uncontradicted. A more significant fact supporting Claimant’s contention is that the only witness the Respondent called testified to the fact that there was to be a retroactive payment. In this testimony, no limitation was placed upon the time involved. This is significant because it is in direct support of the contention of Claimant that the record states unequivocally that there was to be a retroactive payment.

In Wilson Electric Co., supra, the Court used the following language on contracts and the apparent authority of the individuals representing the State. The Court, in its opinion, stated that Respondent had vested a certain individual “with apparent authority to order the non-warranty work on the sound system and that Claimant reasonably relied upon his apparent authority to bind the State in performing the work. Claimant’s employees did only the work requested by Rogers, and in these circumstances the State cannot now complain that Rogers did not have actual authority to bind the State.”

In the present case, we have at least four individuals with apparent authority to make retroactive payment, or agreement to that effect, bulwarked by the only witness of Respondent that the retroactive payment was contemplated.

It is the Court’s opinion, after a careful review of the evidence produced in this cause, that it was the intention of all parties from the very inception of the contract in question that retroactive changes would be made and that the Claimant would receive retroactive payments based upon the actual services requested by Respondent.

Award is hereby entered in favor of Claimant in the amount of $34,200.00.


author: Roe, C.J.

text:
    (No. 79-CC-0832
    Darrell Starcher, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 9, 1983.

    Heyl, Royster, Voelker & Allen (David L. Requa, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Sue M. Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This case arises out of an accident which occurred on the Interstate 72 East exit ramp off of Interstate 55 near Springfield, Illinois. Claimant alleges that the State was negligent in failing to give the appropriate warnings for the hazards of the exit ramp, that the State was negligent in failing to post the appropriate speed limit for the exit ramp, and that the State’s negligence was the proximate cause of the accident.

On April 15, 1977, Jack A. Rhonemus, an employee of Claimant, was traveling northbound on Interstate 55 in a semi-truck pulling a chemical tanker. According to testimony by Rhonemus, the tanker was three-fourths full. As Rhonemus approached the exit ramp for Interstate 72 East, he noted that the exit ramp speed was posted as a right turn with a speed limit of 50 m.p.h. Rhonemus therefore slowed down to 40 m.p.h. to adjust for the vehicle he was driving. Rhonemus testified that in his 16 years of truck driving he had determined that an adjustment of between 10 and 15 m.p.h. below the posted maximum speed limit was a sufficient adjustment to maintain a safe handling of his trucks. The reduction in speed from 50 m.p.h. to 40 m.p.h. was not adequate in this particular instance. The exit ramp in question turned out to be an “S” configuration rather than one right turn, and, as Rhonemus tried to correct for the unexpected left turn, the swishing liquid in the tanker caused the rear end of the truck to slide off the road, and the truck turned over in a ditch on the side of the exit ramp.

Rhonemus further testified that, in his opinion, because of the nature of the turn, the truck would have been able to make the turn at 25 m.p.h. but that even 35 m.p.h. would probably háve been too fast.

Tyre Rees, a State of Illinois highway engineer called as a witness by Claimant, testified that a ball bank indicator test performed on the exit ramp at the time it was constructed showed a maximum safe speed of 35 m.p.h. for the second curve. A ball bank indicator test performed by Rees two days after the accident showed substantially the same results. Rees further testified that the design geometries on the second curve indicate that it did not meet the requisite design specifications for a 50 m.p.h. curve.

The State’s sole defense seems to be that, according to testimony by Rees, it was the policy of the State at the time the exit ramp was constructed to indicate only the first curve of the exit ramp. This defense has no merit. According to the decisions of this Court “the State is under a duty to give warning by erecting proper and adequate signs at a reasonable distance from a dangerous condition of which it had notice, and failure to erect such signs constitutes negligence”. Hout v. State of Illinois (1966), 25 Ill. Ct. Cl. 301.

In this case the State certified to the drivers on its highways that under normal conditions they could exit on the Interstate 72 ramp at 50 m.p.h. They failed to warn the drivers that tests performed by their agents indicated that the second curve on the exit ramp was unsafe at speeds over 35 m.p.h. under normal conditions. Without this warning Rhonemus had no opportunity to adjust his driving speed to the dangerous condition. The State was therefore negligent in failing to warn drivers of the hazards of the exit ramp. This negligence was the proximate cause of the property damage suffered by the Claimant.

The damages were stipulated to by both parties. It is therefore ordered that Claimant, Darrell Starcher, be, and hereby is, awarded $1,000.00, and Harvester Corporation and Certain British Companies, Underwriters at Lloyds of London be, and hereby are, awarded $13,537.49.


text:
    (No. 80-CC-0185
    Rose Torres, Administratrix of the Estate of Benny Moy, Deceased, Claimant, v. The State of Illinois — Department of Mental Health and Developmental Disabilities, Respondent.

      Opinion filed July 22, 1983.

    Steinberg & Burtker, Ltd., for Claimant.
    Neil F. Hartigan, Attorney General (James Koch, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This is an action to recover for the personal injuries and wrongful death of Claimant’s decedent, Benny Moy, on January 13,1979. At the time of his death, Benny Moy was 22 years of age, mentally retarded and a resident assigned to Building No. 33 of the Respondent, Waukegan Developmental Center.

That since the initiation of this claim, the parties have engaged in extensive discovery and have entered into a joint stipulation.

This Court therefore finds that based upon the parties’ joint stipulation, it determines that during the latter part of 1974, or early 1975, the Respondent installed an alarm system in Building No. 33 of the Waukegan Developmental Center to notify personnel of said facility of the opening of exit doors. The alarm was installed by Respondent’s maintenance personnel who lacked professional training in the design and installation of such systems. That from the time of its installation, the alarm system did not function properly and was subject to repeated failures. Respondent’s servants and agents knew of the failures, yet failed to take the necessary steps to revise or otherwise replace said system.

That prior to his death, the Respondent also had actual knowledge of the Claimant’s decedent’s mental retardation as well as his inability of caring for his own safety.

The Court further finds that on January 13,1979, the alarm system to Building No. 33 was inoperable; that Respondent negligently and carelessly permitted the Claimant’s decedent to exit the building without the benefit of any clothing and without supervision. That as a proximate result of the Respondent’s negligence, the Claimant’s decedent froze to death on the grounds of the Waukegan Developmental Center. See Todd v. State (1978), 32 Ill. Ct. Cl. 87; Karluski v. Board of Trustees of the University of Illinois (1966), 25 Ill. Ct. Cl. 295.

The parties have agreed that it is in their respective best interests to stipulate to the foregoing facts and to agree that the sum of nine thousand ($9,000.00) dollars be awarded the administrator of Claimant’s estate as fair and just compensation for his injuries and wrongful death resulting from the occurrence in question.

It is hereby ordered that the Court finds the parties’ joint stipulation to be fair and just and that the sum of nine thousand ($9,000.00) dollars be awarded the Claimant, Rose Torres, administrator of the estate of Benny Moy, deceased, in full satisfaction of any and all claims presented to the State of Illinois under the above captioned cause.


text:
    (No. 80-CC-0384
    Illinois Bell Telephone, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 1, 1983.

    Benjamin Chess, for Claimant.
    Neil F. Hartigan, Attorney General (Glen P. Garner, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This claim comes before the Court on the joint stipulation of the parties, which states as follows:

1. The instant claim seeks recovery of damages based upon a vehicular accident between a truck belonging to Claimant and a vehicle belonging to a third party which damaged Claimant’s truck.

2, Said accident occurred on October 4,1977, at the intersection of U.S. Route 36 and Wykles Road, approximately 4 miles west of Decatur, Illinois.

3. The accident is alleged to have been proximately caused by a malfunctioning traffic signal at the intersection.

4. Both parties have agreed that it would be more economical in terms of both time and money to stipulate to the granting of an award of $400.00.

5. Respondent therefore concedes to liability in the amount of $400.00, and Claimant agrees to accept said amount as full and final satisfaction of its claim.

6. This agreement and stipulation has been made with full knowledge of the facts and applicable law.

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

It is the prerogative of the Court to adjudicate for itself the issues of negligence, proximate cause and damages, and in so doing, it is not bound by facts and conclusions agreed upon by the parties. At the same time, however, the Court is not mandated to reject stipulations and agreed amounts of damages; nor is the Court desirous of interposing a controversy where none appears to exist.

Where, as in the instant claim, the Court is not called upon to decide between two contrary sets of facts and legal conclusions, the decision must rest upon the propriety and validity of the stipulation submitted by the parties. The joint stipulation in this case appears to have been freely and validly entered into by all parties concerned, with full knowledge of all the facts and law involved. We therefore approve and accept the stipulation before us.

Claimant, Illinois Bell Telephone, is hereby awarded $400.00.


text:
    (No. 80-CC-0771
    Christine L. Verda, Claimant, v. The State of Illinois, Respondent.

      Order filed August 1, 1983.

    Louis E. Olivero, for Claimant.
    Neil F. Hartigan, Attorney General (Saul Wexler, Special Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This cause coming to be heard upon the motion of the Respondent for summary judgment, due notice being given and the Claimant not having filed any response thereto and the Court being fully advised:

Finds that the cause of action filed by Claimant in the Circuit Court of Bureau County, Illinois, No. 80-L-70, against the Respondent’s employee alleging similar acts of negligence, resulted in judgment in favor of the employee after trial by jury. The complaints in this Court and in the circuit court are nearly identical, with common issues of law and facts alleged. Therefore this cause is subject to disposition upon motion for summary judgment.

Any liability of the Respondent in this Court is based upon the doctrine of respondeat superior. There are no other independent grounds of liability claimed to impose liability upon the Respondent. The verdict in favor of the agent of the Respondent on identical issues raised herein prohibits imposition of liability on the principal, the State of Illinois. See Hunt v. State (1979), 32 Ill. Ct. Cl. 443, 444.

The claim in this Court is also barred by the operation of the doctrine of res judicata. The prior adjudication of the case in the circuit court bars the claim in this Court. (Gall v. State (1977), 32 Ill. Ct. Cl. 136, 137; Consolidated Distilled Products v. Allphin (1978), 73 Ill. 2d 19, 22, 382 N.E.2d 217, 218.) The application of that doctrine applies to claims against masters and servants. In Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217, it was said:

. • that a judgment for either the master or servant, arising out of an action predicated upon the alleged negligence of the servant, bars a subsequent suit against the other for the same claim of negligence where the agency relationship is not in question. This result obtains even though the defendant in the subsequent suit was not a party to the first action . . .” 73 Ill. 2d 113, 122-23, 382 N.E.2d 1217, 1221.

The verdict in favor of the State’s employee is binding and conclusive in the claim against the State, even though the State was not a party defendant in the action in the circuit court. There are no disputed issues of fact for this Court to adjudicate. Therefore, as a matter of law, summary judgment is properly granted in favor of the Respondent.

It is hereby ordered:

That the motion of the Respondent for summary judgment be, and the same is hereby granted in favor of the Respondent and against the Claimant.

That the claim of the Claimant is therefore dismissed with prejudice.


text:
    (No. 80-CC-1031
    Nick Mavraganis and Ypapanti Mavraganis, Claimants, v. The State of Illinois, Respondent.

      Opinion filed May 9, 1984.

    Charles M. Pallardy, Ltd., for Claimants.
    Neil F. Hartigan, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This is an action by Claimants for injuries resulting from a one car accident which occurred on January 3, 1979, on the Stevenson Expressway (1-55) at approximately 2500 West in Chicago. Claimant, Nick Mavraganis, was the driver of the vehicle and Claimant, Ypapanti Mavraganis, was a passenger.

It was testified at the hearing and it is commonly known that the 1978-1979 winter was among the most severe in Chicago’s history. During the week prior to this accident some 14 or 15 inches of snow fell on the Chicago area. The snow was accompanied by many days of extremely cold temperature and high winds. For at least three to four days prior to the accident, State crews were plowing the highways 24 hours per day. The wind continually drifted snow back upon the roadways. Some of the members of the highway crews became disabled as a result of frostbite. The weather conditions were severe enough that the highway department had radio and television announcements warning people to stay home except for emergencies.

The section of the expressway involved is elevated about 60 feet above the ground. It consists of travel lanes, a shoulder, a 12-inch-high hub guard followed by a narrow walkway which is bordered by a three-foot-high crash wall or parapet. The snow plows do not remove snow. They push the snow to the side; in this case, onto the shoulder and against the crash wall. The snow formed a bank against the crash wall. The snow could not be removed except by picking it up and carrying it away but the State had no equipment for such an operation, and such equipment which, according to the State’s safety engineer, was never needed in the last 23 years except for the unusual winters of 1966-1967 and 1978-1979.

On the date of the accident at about 4:00 a.m., Claimant, Nick Mavraganis, was driving his car from his home to his place of employment. His wife, Claimant Ypapanti Mavraganis, was riding in the front passenger seat. He proceeded east on the Stevenson Expressway at about 25 m.p.h. He was familiar with this section of the expressway having travelled it for two years on his way to work. He had actually travelled it the day before under similar driving conditions as on the date of the accident. The general driving conditions were icy, although the middle lane was somewhat better than the other lanes. Snow was piled up on the shoulders up to the height of the crash wall. The temperature was below zero. As he passed California Avenue, going east, the roadway started a decline. He noticed ice “like a lake”. He started applying his brakes but the car accelerated and he lost control of his car. The car skidded, and next thing Claimant knew he was “flying somewhere in the air” and his automobile landed on the ground 60 feet below.

As a result of the accident, Claimant Nick Mavraganis suffered a rupture of his diaphragm, a diaphragmatic hernia and tear, a fracture of his right shoulder, and other injuries. He underwent a left closed thoracostomy surgery. His hospital and doctor bills totalled $19,477.81. His lost wages totalled $28,490.00. In order to walk he was required to use a walker until August 1979 and he still uses a cane.

Claimant, Ypapanti Mavraganis, suffered a fractured left arm and contusions and abrasions over all of her body. Her hospital and doctor bills totalled $2,356.80 and she lost wages in the amount of $4,488.00.

Claimants contend that, from the circumstances, it was apparent that Claimants’ auto skidded into the crash wall, and because the snow was piled there, Claimants’ auto was caused to be catapulted over the wall into the air. Claimants contend that the State was negligent in failing to close Stevenson Expressway to all traffic when it became apparent that the State was unable to properly maintain the highway due to weather conditions or to post signs warning of the dangerous conditions of which it obviously had actual notice.

This Court does not agree with these contentions. The accident in question was not the proximate result of the piling of snow against the crash wall. On the contrary, it was the proximate result of generally icy weather conditions and the speed of Claimants’ vehicle. The evidence showed that the State did everything possible to keep its highways free of snow and ice. The State is not held to a standard which requires that, at all times, it must keep its highways totally free from ice and snow, but merely that it use all reasonable means to do so. This Court is satisfied from the evidence that the State, working its plows and crews 24 hours a day for days on end did all that it was reasonably required to do.

According to the implications of the testimony, the speed at which Claimants were travelling, i.e., 25 m.p.h., was too fast for the conditions then and there prevailing. Had the snow not been piled against the crash wall, there might very well have been a collision between Claimants’ car and the crash wall itself resulting in possible injuries. Thus, while the piling of the snow against the crash wall might have accentuated the injuries, it did not cause them.

Nor is there any authority to the effect that the State is required to close a highway due to generally icy and snowy conditions. To require this would be to require the State to close all highways during such conditions. This Court should not place such a burden on the State.

To hold for the Claimants in this case would subject the State to liability for almost every accident caused at least partially by icy road conditions. This Court should not do so. Claimants contend that the doctrine of res ipsa loquitur applies in this case, claiming that inasmuch as the highway was under the sole management and charge of the State and that an accident happened, which in the ordinary course of things does not happen if those who have management thereof use proper care, it affords reasonable evidence, in the absence of explanation by the Claimants, that the accident arose from want of proper care. The Court does not agree that the doctrine applies in this case. While the State did have sole management and charge of the highway, it did not have management and charge of the Claimants’ automobile. Thus one of the prime elements of the doctrine is not present in this case.

In addition, the State contends that Claimant, Nick Mavraganis, was guilty of contributory negligence. Although 25 m.p.h. is generally slow in traversing a highway, it is obvious that Claimant was going at a speed at which he could not control his vehicle under the icy conditions prevailing. He also knew of the generally icy conditions having travelled the same highway the previous day. The burden of proving due care on the part of the Claimant is on the Claimant. Claimant did not introduce any evidence which met this burden.

Claimant contends that the doctrine of comparative negligence should apply. The doctrine of comparative negligence came into effect in Illinois as of June 1,1981. Since the trial of this case commenced and proofs were closed on May 12, 1981, the doctrine of comparative negligence does not here apply.

For the above reasons, this claim is hereby denied.


text:
    (No. 80-CC-1338
    Donna Feldman, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 12, 1984.

    Reibman & Hoffman, Ltd. (Sheldon N. Reibman, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Andrew R. Jarett, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

The Claimant, Donna Feldman, seeks damages for personal injuries she sustained when her car went over a snowbank which covered an entire median divider and was struck by another automobile coming from the opposite direction.

Basically, the facts of the accident as adduced by testimony are not in dispute. On February 18, 1979, at approximately 9:00 a.m., Claimant was driving north on the Edens Expressway and at about 5800 North, Claimant’s car was sideswiped by a “hit and run” van causing Claimant’s vehicle to swerve onto the median divider which was completely covered with snow. Claimant’s car went over the median divider and was struck by another automobile travelling in the southbound lanes of the Edens Expressway. It is not contested that Claimant suffered severe injuries as a result of this accident.

Apparently, the snow had been plowed onto the median in such a way as to create what amounted to a ramp (as described by Claimant) up and over which her car was propelled causing her to land in the southbound lanes where she was struck.

Essentially, the Claimant contends that the State had a duty to maintain the highway in a safe manner and that by plowing snow onto the median in such a way as to create a ramp, the State breached its duty and in fact negligently created a dangerous condition on the expressway.

The Respondent’s contentions, however, with which we must unfortunately agree are that: (1) the State exercised reasonable care under the circumstances, (2) this type of accident was not reasonably foreseeable, (3) the State had no prior knowledge of the alleged dangerous condition, and (4) the State’s plowing technique creating the ramp was not the proximate cause of the injuries sustained.

This Court has held on numerous occasions that the State of Illinois is not an insurer of every accident which occurs upon its public highways. (Link v. State (1969), 24 Ill. Ct. Cl. 69; Palecki v. State (1971), 27 Ill. Ct. Cl. 108.) The State of Illinois is charged only with maintaining its highways in a reasonably safe condition and with using reasonable diligence in doing so. (Garrett v. State (1956), 22 Ill. Ct. Cl. 343.) We have also held that the State’s duty of due and reasonable care extends to maintenance of the shoulders of roadways for the uses for which they are reasonably intended. Welch v. State (1966), 25 Ill. Ct. Cl. 270.

We are not unmindful of the fact that the winter during which this accident occurred was one of the worst winters in the history of Chicago. Respondent’s witness, Joseph J. Kostur, Jr., who was in charge of the plowing operations for this sector for the Department of Transportation, testified that crews had been plowing the highways 24 hours each day for two or three days prior to the accident. In addition to the plowing, the road surfaces were also treated with salt. The nature of the plowing equipment used by the Department of Transportation is such that snow is plowed to the side of the roadway and deposited on both the shoulder and the median, thus clearing the roadway for the monitoring public, but creating mounds of snow on the shoulders and medians which cannot be removed unless they are actually shoveled onto a truck and carried away. Under the severe weather conditions as existed during this time in Chicago, we believe the State’s first duty is to clear the major roadways for use by the public and we can ask of the State nothing more than to use all available equipment and manpower. In keeping Edens Expressway open for traffic, we believe the State met its duty.

In order for Claimant to recover, she must also prove that the State had actual or constructive notice of the dangerous condition that existed on the median strip. As we review the record, there was certainly no proof, in fact, no allegations of actual notice of the alleged dangerous condition. As to constructive notice of a dangerous condition, each case must be decided on its own facts. (Palecki v. State, supra.) In the instant case, the Claimant has not proved that the State had knowledge or should have known of any dangerous condition. In fact, Mr. Kostur testified that there had never been any accidents involving snow plowing procedures which created a ramp effect. Even if the ramp could be considered dangerous, that alone does not constitute negligence on the part of the Respondent, as was set forth in Palmer v. State (1964), 25 Ill. Ct. Cl. 1: “The mere fact that a defective condition existed, if, in fact it did exist, is not in and by itself sufficient to constitute an act of negligence on the part of the Respondent”. The Claimant has not established by any evidence that the State knew or should have known of the allegedly dangerous condition created by the plowing of the expressway. Therefore, there is no proof that the Respondent was negligent.

Even assuming the State negligently created a dangerous condition on the median divider, which we reject, such negligence merely created a condition and was not a concurrent or proximate cause of the accident. In Storen v. City of Chicago (1940), 373 Ill. 530, 27 N.E.2d 53, the court held that the maintenance of a depressed curb did not constitute a concurrent cause of plaintiff’s injury when a third party struck a parked car which was propelled along the street curb until it reached an opening in the curb at which point it careened onto the parkway injuring plaintiff. The court stated that even if the maintenance of the depressed curb constituted negligence, such negligence was not an act concurrent with the negligence of the driver who struck the parked car. The court held that the depressed curb did nothing more than furnish a condition and that the proximate cause of the accident was the negligence of the driver who struck the parked car. The court stated:

“If, however, a negligent act or omission does nothing more than furnish a condition making an injury possible, and such condition, by the subsequent act of a third person, causes an injury, the two acts are not concurrent and the existence of the condition is not the proximate cause of the injury.” 373 Ill. 530, 533, 27 N.E.2d 53, 55.

The record in this case is clear that Claimant was struck by a hit and run van causing her to lose control of her vehicle, which in turn caused her to careen into (in this case over) the median. We find, therefore, that the proximate cause of the accident was the negligence of the driver who struck Claimant’s vehicle. The Court regrets this unfortunate occurrence but is of the opinion that this claim must be denied.

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


text:
    (No. 80-CC-1362
    City of Springfield, Illinois, a Municipal Corporation, Claimant, v. Illinois Department of Transportation, Respondent.

      Order filed May 10, 1983.

      Order on denial of rehearing filed August 18,1983.

    Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., for Claimant.
    Neil F. Hartigan, Attorney General (W. J. Simhauser, Special Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This cause coming to be heard upon the motion of the Claimant for summary judgment, the motion of the Respondent for summary judgment and objections and briefs being filed by each party in opposition to the other’s motions for summary judgment and upon the motion of the Respondent seeking reconsideration of the ruling of this Court in its order of April 16, 1982. Each party has had the opportunity to respond to all issues raised by the other and this cause has been orally argued before the Court. The Court has been fully advised on all matters before the Court and hereby finds:

1. The Claimant, City of Springfield, has filed a two-count complaint on February 20, 1980, against the Respondent, Illinois Department of Transportation. The complaint seeks indemnification in the sum of $250,000.00 and Count II seeks contribution from the Respondent for its pro rata share of the judgment entered against the Claimant.

2. The undisputed facts are as follows: An action seeking damages for personal injuries was filed by Charles Janssen against the Claimant and Respondent in the Circuit Court for the Seventh Judicial Circuit Court on August 9, 1974, for injuries sustained by Janssen on August 26,1973, in Springfield, Illinois. The State and its officers were dismissed upon motion from the action in the circuit court. The case was tried against the City of Springfield and the jury returned a general verdict against the city in favor of the plaintiff Janssen in the sum of $250,000.00. The appellate court of Illinois reversed that judgment. On leave to appeal being granted the supreme court of Illinois reversed the appellate court and affirmed the judgment of the circuit court (Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 404 N.E.2d 213), including the amount of the judgment. That opinion details the relevant facts.

3. The judgment has been satisfied in full by the City of Springfield.

4. The supreme court in Janssen found that the City of Springfield was guilty of active negligence in failing to warn the plaintiff of the dangerous condition created by the traffic island in question.

The supreme court also held that the city had jurisdiction and control over the outer 28 feet of the road surface and thus had a statutory duty to warn those motorists including plaintiff. 79 Ill. 2d 435, 444.

5. The city did not tender the defense of the Janssen suit to the State in the circuit court.

6. The City of Springfield seeks summary judgment based upon the claim of active negligence in the construction and design of the traffic island.

The State seeks summary judgment on the ground that the Claimant’s complaint states no basis in law or fact which allows indemnity or contribution.

I.

CONTRIBUTION

The rule of law allowing contribution among joint tortfeasors was judicially pronounced by the supreme court of Illinois in Skinner v. Reed-Prentice Division (1978), 70 Ill. 2d 1, 374 N.E.2d 437. That decision, which was a complete change in existing Illinois law, was to be applied prospectively to causes of action arising out of occurrences on or after March 1, 1978. (70 Ill. 2d 1, 16-17.) See also, Stevens v. Silver Mfg. Co. (1978), 70 Ill. 2d 41, 374 N.E.2d 455; Robinson v. International Harvester Co. (1978), 70 Ill. 2d 47, 374 N.E.2d 458.

The General Assembly of our State has also enacted legislation allowing contribution among tortfeasors. (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.) This Act applies only to causes of action arising on or after March 1, 1978. Ill. Rev. Stat. 1979, ch. 70, par. 301.

This Court in Manescalco v. State, 35 Ill. Ct. Cl. 933, in a case similar to the instant case, held that there is no right of contribution among tortfeasors for occurrences arising on or before March 1, 1978. In Manescalco an auto accident occurred on March 11, 1976, on State property. An action was brought against the Claimant Manescalco in the circuit court and judgment was rendered against him. He then filed an action in this Court seeking contribution and indemnification from the State. That claim for contribution was dismissed. We held there, and so follow and hold here, that there is no right of contribution among the Claimant, City of Springfield and the Respondent due to the prospective-only application of the rule of contribution pronounced by both the supreme court of Illinois and by our legislature.

The Claimant seeks to overcome the prospective application of the contribution rule by claiming that no such issue arose until after the jury’s verdict against the city after March 1,1978. We find that the cause of action in this case arose when the occurrence in question occurred on August 26,1973. (See Balmes v. High-Foco, A.B. (1982), 105 Ill. App. 3d 572, 434 N.E.2d 482; Davis v. FMC Corporation (S.D. Ill. 1982), 537 F. Supp. 466, 467.) It is the date of the occurrence that controls herein, not the date the verdict is returned against the party seeking contribution that controls or the date the party pays more than its pro rata share of the damages. Therefore, there is no right of contribution from the Respondent to the Claimant.

II.

INDEMNITY

Whether or not there is any right to indemnity based upon the facts and circumstances has been vigorously contested and thoroughly briefed and argued by able counsel for both sides in this case.

There is no claim by the city for express indemnity based upon any agreement providing for indemnification between the parties.

Any claim of implied indemnity is governed by the pre-tort relationship between the parties as well as the qualitative distinction between the parties as to their respective degrees of fault. The Respondent must show to have some pre-tort relationship upon which a duty to indemnify may be established. (Muhlbauer v. Kruzel (1968), 39 Ill. 2d 226, 230, 234 N.E.2d 790, 793.) The reasoning in Muhlbauer has been followed consistently due to the persuasive rationale underlying the theory of indemnity. The cases relied on by the city are not persuasive in light of Muhlbauer. Since the decision of the supreme court in Skinner v. Reed-Prentice Division, supra, allowing contribution there is no reason to dilute the well-reasoned theory that there must be a pre-tort relationship between the parties giving rise to a duty to indemnify in order to permit implied indemnity between the parties. In Van Jacobs v. Parikh (1981), 97 Ill. App. 3d 610, 422 N.E.2d 979, the appellate court reaffirmed the holding and underlying rationale of Muhlbauer. 97 Ill. App. 3d 610, 613.

This Court in Manescalco v. State (1982), 35 Ill. Ct. Cl. 933, has reached the same conclusion that has been reached in Muhlbauer and Van Jacobs, that requires some pre-tort relationship creating a duty to indemnify in order for implied indemnity to be applicable.

In order for Claimant to allege a cause of action under passive-active indemnity, it must allege a pre-tort relationship and allege a qualitative difference between its own negligence and the claimed negligence of the State. The complaint must allege sufficient facts to show a relationship exists or circumstances occurred which implied a duty to indemnify.

The Claimant argues that there is a pre-tort relationship between the parties. The city refers to the construction and maintenance agreements between the city and the State as made reference to in the opinion of the supreme court in Janssen v. City of Springfield, supra. The parties had agreed to jointly construct the pavement surface in question and subsequently agreed to have the State maintain the center 24 feet and the city would maintain the remainder. The city also had notice of the dangerous condition created by the traffic island in 1964 and requested that the State remedy it. (79 Ill. 2d 435, 441.) Apparently nothing was done to the traffic island before Janssen’s injuries.

The complaint filed by the Claimant does not specifically allege a pre-tort relationship between the parties. There is nothing in the record before us to allow the conclusion that these construction and maintenance agreements between them gives rise to an express indemnity agreement.

The appellate court in Van Jacobs v. Parikh (1981), 97 Ill. App. 3d 610, 613, 422 N.E.2d 979, required, in order to state a cause of action for indemnity, that the complaint allege a “duty to indemnify, arising not from the relative fault of the parties, but from the pre-tort relationship of the parties.” The City of Springfield fails to state such a relationship and in the absence of such relationship is not entitled to indemnity from the State of Illinois.

In addition to the pre-tort relationship there must be a “qualitative distinction between the conduct of the parties” in order to state a cause of action for indemnity. Van Jacobs v. Parikh, supra, at 613; Muhlbauer v. Kruzel (1968), 39 Ill. 2d 226, 230, 234 N.E.2d 790, 793.

This “qualitative distinction” is often referred to as active v. passive negligence. In the instant case the jury found the city to be negligent and thus responsible for its own acts or omissions. The supreme court affirmed the judgment against the city because the city had the duty to warn motorists of hazards adjacent to the roadway even though the hazard was not within the control of the city itself. (79 Ill. 2d 435, 450-51.) The city was therefore found to be negligent and its negligence was a proximate cause of injury to Janssen.

The question of whether the city’s negligence is active rather than merely passive must be addressed. If it is active the city will be barred from indemnification by the State. (Van Jacobs v. Parikh, supra, at 613.) The decision of the appellate court in Warzynski v. Village of Dolton (1974), 23 Ill. App. 3d 50, 317 N.E.2d 694, revd on other grounds (1975), 61 Ill. 2d 475, 338 N.E.2d 25, is helpful in resolving this issue. In Warzynski the village sought indemnification from the driver of an auto that struck a raised sewer cover when the passenger sued the village and recovered a judgment for her injuries. The appellate court went into detail in discussing active v. passive negligence and stated:

“The basis for allowance of indemnity is predicated upon a finding of a higher degree of culpability by one tort-feasor, so that placing the entire burden on him would be warranted . . . the verdict of the jury in favor of the plaintiff against the Village necessarily found the condition of 155th Place to be a proximate cause of her injuries. . . . We believe that the actions of the Village in proximately causing the injury to plaintiff were of such a nature that its conduct should be deemed active negligence. This would militate against any action for indemnity against Novak, regardless of whether his conduct might also be considered active negligence." 23 Ill. App. 3d 50, 58, 317 N.E.2d 694, 700.

In the instant case the negligence of the City of Springfield is a proximate cause of the injuries to Janssen. This negligence is at least equal to the negligence of the State in their respective duties to maintain the area in question. We find the following language in Warzynski to be persuasive.

“We believe the negligence to the Village in allowing the sewer on an unlighted street to be raised above the street level was at least equal to the negligence of Novak as he drove in darkness over said sewer, and can only be viewed as an active or affirmative participation in the wrong . . . we retain our belief there is no clear justification to permit the total shifting of responsibility from the Village to Novak.” 23 Ill. App. 3d 50, 68, 317 N.E.2d 694, 703.

The negligence of the city in failing to warn motorists of hazardous conditions affecting the street has been established by the verdict of the jury and the affirmance of the judgment by the supreme court of Illinois in Janssen v. City of Springfield, supra. In that appeal the position of the city was based upon “legal rather than factual questions.” (79 Ill. 2d 435, 452.) The failure to argue the factual questions concerning liability on appeal leaves only one conclusion: that the facts supported the verdict and that the city was negligent. We find that the negligence of the city was “active or affirmative participation in the wrong.” Warzynski, 23 Ill. App. 3d 50, 58, 317 N.E.2d 694.

Because the city’s negligence is active there is no basis to shift the responsibility to the Respondent and the city is not entitled to indemnification from the State.

The issues raised are legal issues. There are no genuine issues of material fact and therefore disposition by means of summary judgment is appropriate. Due to the disposition of all issues by the ruling on the motions for summary judgment there is no necessity to consider or rule upon the Respondent’s motion to reconsider the order of this Court of April 16, 1982.

The motion of the Claimant for summary judgment be, and the same is hereby denied.

The motion of the Respondent for summary judgment be and the same is hereby granted and judgment is entered in favor of the Respondent and against the Claimant and the Claimant’s complaint is hereby dismissed with prejudice.

It is hereby ordered:

That the motion of the Claimant for summary judgment be, and the same is hereby denied.

That the motion of the Respondent for summary judgment be and the same is hereby granted and the complaint of the Claimant seeking indemnity is hereby dismissed.

ORDER ON DENIAL OF REHEARING

Poch, J.

This matter coming on before this Court on Claimant’s petition for rehearing and Respondent having filed its objections and all parties having received due notice of the pleadings and the Court being fully advised in the premises;

It is hereby ordered that the petition for rehearing is hereby denied.


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    (No. 80-CC-1811
    Petersburg Plumbing and Heating Company, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 25, 1984.

    Heckenkamp & Simhauser, P.C., for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

The case at bar is yet another claim by a contractor seeking to recover damages arising out of the breach of a contract by the Secretary of State relating to the remodeling and rehabilitation of the Illinois State Capitol Building which began in the latter half of calendar year 1977. This Claimant had contracted to perform the heating and air conditioning work. As in the other claims, the Respondent breached the contract by failing to vacate certain areas of the Capitol which were undergoing renovation, the result being that the contractor was prevented from proceeding with the work from time to time, particularly when the legislature was in session.

Although at all relevant points in time this Claimant stood ready and willing to perform its end of the contract, it was not until April of 1980 that the Claimant completed its work, nearly a year and one-half after the projected completion date. Claimant promptly filed this claim. The damages arose out of the lengthy suspensions and delays of the work. In calculating the dollar amount of its bid and in agreeing to the contract Claimant had relied on being able to complete the project within the time specified and agreed to. Other claims of a similar nature which arose out of the delays in this project have been awarded and paid. See R. D. Lawrence Construction Company v. State (1983), 35 Ill. Ct. Cl. 709.

In its complaint Claimant seeks the sum of $26,537.00. However, the Claimant and the Respondent subsequently entered into a compromise and agreed that $13,494.52 represented a fair and reasonable settlement of this claim. Said amount was arrived as itemized below:

Additional labor................... $ 3,599.43

Insurance......................... 1,461.09

Tool rental........................ 700.00

Nonproductive labor............... 4,750.00

Supervision (supervisor time actually spent at construction meetings)....+ 1,224.00

Subtotal ......................... $11,734.52

Overhead and profit at 15%.......+ 1,760.10

Total............................. $13,494.52

We have reviewed the entire record in this matter including the evidence offered in support of the settlement, find that the settlement was arrived at fairly by arms length negotiation, and agree with the parties that it is fair and reasonable according to the facts of this case. Therefore, we hereby award the Claimant the sum of $13,494.52.


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    (No. 80-CC-2148
    Chester Neubauer, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 23, 1984.

    Theodore E. Diaz, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This claim is the result of an accident between the Claimant’s automobile and a snowplow owned and operated by the State of Illinois. This accident occurred at about 10:00 a.m. on January 30,1980, on Illinois Route 157 just north of the city limits of Edwardsville.

Udell Wehling, an employee for the Illinois Department of Transportation, was plowing the southbound lane of Route 157, which is a two-lane highway with traffic flow in both directions. On the day in question, there were several cars traveling south on Route 157 behind the plow. Claimant was the third car in this line. As Respondent’s plow reached the Edwardsville city limits, the plow stopped on the right side of the southbound lane because the driver had reached the end of his route to plow and was preparing to turn around and plow the northbound lane. The line of traffic started to pass the plow in the northbound lane. The first two vehicles passed safely. While Claimant’s auto was passing, Respondent’s plow turned left into Claimant’s auto and struck Claimant’s auto along the right side of the auto with the left front of the blade of the plow. The cost of repair of damages to the Claimant’s auto was $2,207.56.

Wehling, the driver of the snowplow, testified he stopped to turn around in a service station on the east side of the highway. He testified he had activitated his left turn signal about 120 feet before he stopped. He observed the first two vehicles pass him on the left and then he checked his outside rear view mirror to see if traffic was clear. He saw no other vehicles, including that of Claimant, and he then began his left turn. He then observed the blade on his truck strike the side of Claimant’s auto.

Claimant testified he saw Respondent’s truck stop in the southbound lane and the two vehicles directly in front of Claimant then proceeded to pass the plow in the northbound lane. Claimant further testified he saw no turn signal on the truck and started to pass when the truck made a left turn into his car.

Claimant’s wife, a passenger in Claimant’s car, verified Claimant’s version of the accident.

Another witness, Frances Smithson, a passenger in the car directly behind Claimant, testified on Claimant’s behalf and stated she observed no turn signals on Respondent’s truck. She further testified she had been in the line of traffic following the plow, that the traffic moved slowly behind the plow for some distance prior to the accident, and that the vehicles behind the plow proceeded to pass the plow in an orderly manner, without quick acceleration, after the plow stopped.

Section 11 — 804(a) of the Illinois Vehicle Code provides that no driver may “turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. No person may so turn any vehicle without giving an appropriate signal in the manner hereinafter provided.” Ill. Rev. Stat. 1978, ch. 95½, par. 11 — 804(a).

Three witnesses testified that Respondent’s driver failed to signal his left turn. Respondent’s driver admitted he observed the first two vehicles behind him pass his plow on the left. He stated he looked in his outside rear view mirror and saw no other vehicles attempting to pass him. This, however, does not correspond with the testimony of the other witnesses, who all testified that Claimant drove his auto in a smooth procession behind the first two vehicles around Respondent’s truck. Respondent’s driver admitted that he did not check for traffic behind or passing him by looking over his shoulder behind him other than what he could see in his outside rear view mirror.

It would appear from the evidence introduced that Respondent’s driver was negligent in making his left turn without a proper signal and without first establishing such a turn was reasonably safe, and this negligence was the proximate cause of the Claimant’s damages.

Respondent’s driver testified when he stopped his plow, he was within 100 feet of an intersection. Such passing is prohibited by statute. (Ill. Rev. Stat. 1978, ch. 95½, par. 11 — 706(a)2.) Violation of a statute is not evidence of negligence per se but is only prima facie evidence which may be rebutted by a showing that, under the facts and circumstances of the case, the alleged violation did not constitute negligence. (Johnson v. Pendergast (1923), 308 Ill. 255, 139 N.E. 407.) Moreover, the party seeking to use the statute to his benefit must show the statute was designed to protect him. Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 117 N.E.2d 74.

It is the Court’s opinion that the statute prohibiting passing within 100 feet of an intersection was clearly designed to protect persons within the intersection, such as a vehicle turning off or onto a roadway on which the passing occurred. It is the Court’s further opinion that even if Claimant had violated the statute, such violation did not constitute negligence under the present circumstances since Claimant clearly performed his passing maneuver in a manner which was reasonable and safe and was therefore not guilty of contributory negligence.

It is the Court’s further opinion that the negligence of Respondent was' the proximate cause of the accident and Claimant should be awarded $2,207.56. An award in that amount is hereby entered on behalf of Claimant.


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    (No. 80-CC-2242
    Roy Clark Crile, Sr., as father and next friend of Roy Clark Crile, Jr., a minor, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 23, 1984.

    Lee Phillip Forman, Ltd., for Claimant.
    Neil F. Hartigan, Attorney General (Glen Earner, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This claim arises from personal injuries sustained by Roy Clark Crile, Jr., when he fell into an open manhole while playing near an expressway on property maintained by the State of Illinois.

The Claimant, Roy Clark Crile, Jr., was a minor aged fourteen years old on January 27,1980. At that time, the Claimant intended to go sledding with his brother on a hill adjacent to the tollway right of way. The Claimant testified that he walked on a slant going north up a hill near the Dolton Avenue exit when he noticed a hole with a sign half way over it. The Claimant was curious and kneeled down and as he did he slipped into the hole which turned out to be a form of sewer.

As a result of this fall, the Claimant received a fractured right oscalcis. This injury was treated by closed reduction of the fracture using a Bohler clamp, application of a plaster cast and subsequent physical therapy.

Illinois authorities have held that a landowner is required to protect his premises frequented by small children against dangerous or hazardous conditions which might in a natural and probable sequence cause injury to a child. (Beechy v. Village of Oak Forest (1973), 16 Ill. App. 3d 240; Driscoll v. Rasmussen (1966), 35 Ill. 2d 74, 219 N.E.2d 483.) The State, therefore, has a duty to protect its premises against dangerous or hazardous conditions which may cause injury to children.

Illinois law has also consistently held that the State is not liable unless it has actual or constructive notice of the defect that caused the injury. Kriesal v. State (1978), 32 Ill. Ct. Cl. 101; Sewell v. Board of Trustees of Southern Illinois University (1979), 32 Ill. Ct. Cl. 430.

In the instant case, there is no evidence that the State had actual knowledge or notice of the fact that the manhole cover was missing. Furthermore, there can be no finding that the State had constructive notice as to the condition of this particular manhole.

Constructive notice is present where a defective condition exists for such a length of time that public authorities, by the exercise of reasonable care and diligence, might have known of the condition and had the opportunity to remedy the same. (Palermo v. City of Chicago Heights (1971), 2 Ill. App. 3d 1004.) The unreasonable length of time the defect existed is thus the crucial element in constructive notice. In the instant case, the record reflects that Claimant presented no evidence as to the length of time that the manhole cover was missing. Therefore, any conclusion regarding the same would be speculative. “The mere fact that a defective condition existed, if, in fact it did exist is not in and of itself sufficient to constitute an act of negligence on the part of the Respondent”. Palmer v. State (1964), 25 Ill. Ct. Cl. 1.

For the foregoing reasons the claim of Roy Clark Crile, Sr., as father and next friend of Roy Clark Crile, Jr., a minor, is denied.


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    (No. 81-CC-0541
    Ridgeway Hospital, Claimant, v. The State of Illinois, Respondent.

      Order filed April 19, 1984.

    Jerry Goldberg, for Claimant.
    Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This cause comes on to be heard on the motion by the Respondent to dismiss and the response thereto filed by the Claimant, due notice having been given, and the Court being advised:

This is a claim for in-patient psychiatric hospitalization services rendered to one Laura Forbes, a mentally handicapped minor who was adopted by Mr. and Mrs. Forbes pursuant to a subsidized adoption agreement with the Department of Children and Family Services wherein said Department agreed to pay for the services which are the subject matter of this claim. The Claimant originally sought the sum of $20,330.70 but later conceded that its recovery would be limited to the reduced amount of $17,582.00 in accordance with the appropriate index established by the Department of Public Aid.

The record is clear that Laura Forbes was adopted on December 24,1974, at which time a subsidy agreement was executed between the Department and Laura’s adoptive parents which provided that the Department would pay $127.00 per month or as much as was needed for therapy for Laura and that the subsidy agreement was in effect during the period of Laura’s hospitalization at the Claimant hospital. The Department acknowledges that the hospital was properly authorized, that the services rendered were satisfactory and that the sum of $17,582.00 is due and owing the Claimant. However, the line item appropriations out of which this claim should have been paid, fiscal years 1978 and 1979 Adoption Services 001-41817-4400-05-00, were insufficient to cover the amounts being claimed and previous claims have totally exhausted the balances remaining. Although other funds were available for transfer, the Department was required to obtain authorization by the General Assembly to transfer those other funds but did not do so.

Despite the Department’s concession that the instant claim is valid and should be paid, payment of this claim by either the Department or this Court would violate the express provisions of Section 30 of the Finance Act (Ill. Rev. Stat. 1983, ch. 127, par. 166), which prohibits a State agency from contracting in an amount in excess of its appropriations. Our recent opinion in Long v. State (1983), 35 Ill. Ct. Cl. 748, is dispositive of the issues here. Accordingly, we are constrained to deny this claim.

Claim denied.


text:
    (No. 81-CC-0618
    Willie Spivey, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 3, 1984.

    David S. Pochis, Ltd. (Alan D. Katz, of counsel), for Claimant.

      Neil F. Hartigan, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This cause comes before the Court, upon the joint stipulation of the parties to the instant claim. Said stipulation states as follows:

1. The instant claim sounds in tort and seeks recovery for personal injuries suffered as a result of an allergic reaction by Claimant to a certain drug administered to him on July 8, 1979, while he was a patient at Madden Mental Health Center.

2. The attorneys for the respective parties have conducted discovery, and, after evaluating the applicable facts and law and discussing the matter during several pretrial conferences with Commissioner Terrence Lyons, conclude that it would be in the best interests of the State and the Claimant to settle the claim without trial.

3. Both parties agree that an award of $7,000.00 would be a fair, reasonable and appropriate amount of compensation.

4. Both parties agree that said award would constitute full and final satisfaction of this claim and any other claim arising from the same facts as gave rise to the instant claim.

5. Both parties hereby waive trial, the taking of evidence and the submission of briefs for the instant claim.

Although the Court is not bound by a stipulation such as this, it is also not desirous of interposing a controversy where none appears to exist. As long as the stipulation appears reasonable and fair, we see no reason to question its validity or to force the parties to take the time and expense of proving facts which they prefer not to dispute. The stipulation herein appears sufficient to sustain the granting of an award in the agreed amount.

Claimant is hereby awarded the sum of $7,000.00 (seven thousand dollars and no cents) as full and final satisfaction of the instant claim.