text:
    (No. 75-CC-0076
    Allen Hurst, Jr., Claimant, v. The State of Illinois, Respondent.

      Order filed February 22, 1983.

    Jerold Goldenhersh, for Claimant.
    Neil Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This cause having come for consideration on the joint stipulation of the Claimant and the Respondent and this Court being duly advised in the premises;

Finds, that this case was filed on or about July 18, 1974. The cause was continued generally by this Court pending the disposition of a matter in the St. Clair County Circuit Court. That action was dismissed on a motion for summary judgment which was allowed on August 3, 1978.

Briefly, the facts of this matter which are supported by exhibits attached to the joint stipulation are that several months prior to the date of the accident which occurred on August 20, 1972, the State hired a contractor to make an excavation near the northern boundary of Frank Holten State Park near the intersection of Lake Drive and 71st Street in the city of Centreville. In May 1972, a subcontractor of Hellrung Construction Company, A.J. Davinroy, d/b/a Davinroy Plumbing and Heating Company, pursuant to a contract with the Illinois Department of General Services, excavated a ditch approximately 20 feet long, 8 or 9 feet wide, and approximately 7 feet deep. Photographs of this ditch were attached to the joint stipulation as Exhibit No. 1. The excavation was approximately 10 feet from the southern edge of Lake Drive. On the day of the excavation, and for several days thereafter, residents living near the site of the excavation physically prevented the contractor from completing the excavation and placement of plumbing pipes and lines. The Illinois State Police and the Illinois Park Rangers came to the scene, and work was halted without the excavation being filled. The State highway maintenance department was contacted the same day, and State-owned barricades with reflecting lights were placed at the excavation by State workers. Davinroy did not perform any subsequent work on the excavation during May or June of 1972. On June 19, 1972, Davinroy wrote a letter to the office of the supervisory architect for the. State of Illinois informing him that work had been stopped on the excávation due to the obstruction caused by the area residents. This letter was attached to the joint stipulation as Exhibit No. 2. Probably, this work was terminated in later May 1972 by the State of Illinois. The subcontractor, Davinroy, was uncertain as to the last day work was performed, but in any event, the State of Illinois agreed to halt efforts to complete the project in December 1972. Mr. Davinroy’s affidavit and deposition concerning the work performed is attached to the joint stipulation as Exhibit No. 3.

The Claimant in this matter, Allen Hurst, Jr., gave a discovery deposition concerning this matter for the circuit court case, and a copy was attached to the joint stipulation as Exhibit No. 4. Briefly, the Claimant indicated that on August 20, 1972, he was returning to his wife’s residence at 7116 Park Avenue which was a short distance from the intersection of Lake Drive and 71st Street. Mr. Hurst had observed the excavation at this intersection about five times before the incident. The excavation had barricades, with reflectors -only, the first time he saw it in June 1972. On the evening of August 20, 1972, Mr. Hurst went to Blackburn’s Taven, arriving at approximately 8:30 p.m. Mr. Hurst had three beers at the tavern. He is a large man. He had not had anything else to drink during that day and was not intoxicated. At approximately 10:00 p.m., Mr. Hurst caught a ride with a man from the tavern who took him to the intersection of Lake Drive and 71st Street. Mr. Hurst cannot recall this man’s name and has never been able to identify or locate him. This acquaintance approached the intersection at 71st Street and pulled Ms vehicle off the road onto the shoulder. The area was -not illuminated. Mr. Hurst got out of the vehicle, turned to ask the man how much he owed him for the ride, and fell directly into the excavation. The acquaintance aided Mr. Hurst and took him from the hole to his wife’s residence. Mrs. Hurst then took Mr. Hurst to St. Mary’s Hospital in East St. Louis. At the time of this accident, there were no barricades around the excavation.

Mr. Hurst’s medical records are attached to the joint stipulation. Mr. Hurst was admitted and hospitalized with a diagnosis of fracture of left hip, greater trochanter. He was treated by Dr. Samuel S. Ezenwa. Mr. Hurst was hospitalized for 17 days, incurring charges of $1,190.80. Dr. Ezenwa’s services were in the amount of $220.00. Mr. Hurst was.released to go back to work in mid-January 1973, and he returned to work immediately. Prior to the occurrence, Mr. Hurst was employed by General Steel Industries, Inc., in Madison County, Illinois, as a fork-lift operator. He earned $3.49 per hour and worked 40 hours per week. He was off work from August 18, 1972, through January 16, 1973, for a period of 21 weeks. Mr. Hurst’s total-lost wages were $2,927.40. A verification statement concerning the wages lost was attached to the joint stipulation as Exhibit No. 6. Mr. Hurst continued to work at General Steel until the plant closed a few months after his return in 1973.

Mr. Hurst has recovered well, although he still feels fatigue in his left hip after a few days of work, and he has difficulty in running. There is some susceptibility to re-injury in this area. Mr. Hurst’s total special damages are $4,344.20. Mr. Hurst, at the time of his injury, endured considerable pain and suffering.

The Respondent has conceded liability for the Claimant’s injuries to the extént agreed in the joint stipulation. Mr. Hurst has set his damages at the amount of four times the specials or $17,376.80. No other evidence, either oral or written, was presented to the Court and both parties waived briefs. Both parties also agreed that this award would constitute full and final satisfaction of the claim herein or any other claim arising from this same occurrence.

While the Court is not necessarily bound by . a stipulation such as this, it has no desire to interpose a controversy where none appears to exist. The stipulation submitted by the parties appears to have been entered into freely and fairly, and its contents appear to be reasonable. The Court, therefore, finds no reason not to accept it.

It is hereby ordered,, that Claimant be awarded the amount of $17,376.80 in full and final satisfaction of this instant claim.


source: Caselaw Access Project

author: Poch, J.

license: Public Domain

text:
    (No. 75-CC-0331
    Mid-American Lines, Inc., Control of Bruce Motor Freight, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 8, 1983.

    Roy J. Solifsburg, Jr., for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

The Claimant seeks an award for an overpayment of freight license fees. The parties entered into a stipulation of facts in lieu of an evidentiary hearing before the commissioners of this Court. The undisputed facts are summarized as follows: In October 1971, Mid-American Lines, Inc., gained control of Bruce Motor Freight, Inc., by merger. That merger was approved by the Interstate Commerce Commission on December 31, 1973.

On December 22, 1971, Bruce Motor Freight, Inc., applied for pro rata license plates for 1972 and submitted the payment with its application. On July 5, 1972, they filed an amended application with the Secretary of State and at the same time claimed a refund. The parties agree that the amount claimed is $8,797.91.

The claim was filed with this Court on October 21, 1974.

The dispositive issue is whether or not this claim is barred by the applicable statute of limitations. Section 22(g) of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.22(g)) provides that all claims not otherwise mentioned in section 22 “must be filed within two years after it first accrues.”

The Claimant alleges that the claim did not accrue until it was advised by the Secretary of State in April or May 1974 that the claim for refund had been denied. This cause accrued at the latest on July 5, 1972, when the claim for a refund was filed with the Secretary of State and not when the claim was denied. The claim was not filed with this Court until over two years from the amended filing with the Secretary of State. Pursuant to section 22(g) of the Court of Claims Act, this claim is “forever barred” by the applicable provisions of section 22. It is not necessary to address the issue of the right of the Claimant to a refund on 'the merits of the claim where such claim is barred by operation of the applicable statute of limitations. Therefore, the claim must be denied.

It is hereby ordered that the claim is denied.


author: Roe, C.J.

text:
    (No. 75-CC-0759
    Donita Boaz, a minor, through her mother and next friend, Donna Boaz, Claimant, v. The State of Illinois, Respondent

      Opinion filed October 1, 1982.

    Hillebrand, Cook & Shevlin, Ltd. (Dennis W. Shevlin, of counsel), for Claimant.

      Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

Claimant’s action arises out of a suit filed by Donna Boaz on behalf of Donita Boaz, a minor, for injuries sustained by her on April 28, 1974. On that date, Donita Boaz, then eight years old, her mother, father and sisters arrived at Horseshoe Lake on Route 111, Nameoki Township, Madison County, Illinois, for an afternoon of fishing. The property is owned by. the State of Illinois and is maintained by the State for the recreational use of its citizens and visitors.

The record seems clear that shortly after their arrival, Donita wandered into an abandoned building commonly known as Lakeside Tavern. While upstairs, she severely lacerated her right leg when she stepped through a colored glass window lying on the floor of the second level of the building. Donita was admitted to St. Elizabeth’s Hospital in Granite City, Illinois, where she remained for approximately one month, during which time she underwent four surgical procedures to repair the injured leg. Due to the extent of her injuries, it will be necessary for Donita to undergo additional cosmetic surgery in the future. As both Claimant and Respondent succinctly suggest, the sole issue before this Court is whether the State of Illinois is liable for Donita’s injuries.

Claimant alleges that the structure through which the girl fell was a dangerous and attractive nuisance to children, and that Respondent knew the area was attractive to children and should have taken adequate precautions to prevent them from entering upon the property.

Claimant has in fact stressed the so-called attractive nuisance cases, most particularly Kahn v. James Burton Co. (1955), 5 Ill. 2d 614. As we paraphrased in Mislich v. State of Illinois (1976) 31 Ill. Ct. Cl. 428, and reiterate here, the doctrine of attractive nuisance can be summarized as follows:

“Where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. (Wagner v. Kepler, 411 Ill. 368.) The element of attraction is significant only in so far as it indicates that the trespass should be anticipated, the true basis of liability .being the foreseeability of harm to the child.” Kahn, supra, at 625.

1. The occupier knows that young children frequent the vicinity;

2. There is a defective structure or dangerous agency present on the land;

3. That structure or agency is likely to cause injury because of the child’s inability to appreciate the risk; and

4. The expense of remedying the situation is slight.

Claimant has essentially paraphrased the Kahn decision in defining five elements necessary to establish liability under the doctrine of attractive nuisance. Claimant argues that all five elements are present here and indeed are indisputable. We agree.

1. The defendent must be in possession or control of the premises and of the instrumentality which cause the injury.

There is no dispute about the fact that the State of Illinois owned and had possession of the abandoned Lakeside Tavern.

2. The premises or instrumentality must have been exposed or readily accessible to children.

Here the premises were near Horseshoe Lake on Illinois State Park property where many families spend time in recreation. There were apparently no signs, fences, locks or warnings or any kind on the building.

3. The instrumentality must have been dangerous in itself and likely to cause injury to those coming in contact with it.

In this case, Claimant asserts the instrumentality was the pane of glass which was on the second floor of the abandoned building and which, at the same time, comprised part of the ceiling for the first floor. Apparently, the glass was painted so that no one would have known that it was glass or that there was no support under it.

4. The premises or instrumentality must have been attractive and alluring to young children incapable because of their youth of comprehending the danger. As Judge Holderman noted in Mislich, supra, at 433:

“The boy who was injured was eight years of age at the time of the accident. This Court and the Courts of Illinois have repeatedly held that the Illinois law requires a minor over the age of seven years to exercise that degree of care which a reasonably careful person of the same age, capacity, intelligence and experience would exercise under the same or similar circumstances. See Simmons v. State of Illinois, 26 Ill.Ct.Cl. 351.”

We note nothing in the record that would persuade us that any eight-year-old child exercising perhaps greater care than the Claimant might not have also stepped on the painted glass, which in effect was the dangerous instrumentality.

5. Defendant in control or possession of the premises must have foreseen or have been negligent in not foreseeing that children would come into contact with the instrumentality.

Here Claimant asserts that it should have been foreseeable that children would come into contact with the instrumentality since it was located on an Illinois State park used frequently by many families.

The Respondent’s position is that the State of Illinois is not an insurer of all persons who use and enjoy State parks. It called our attention to Steadman v. State of Illinois, 22 Ill.Ct.Cl. 446, Finn v. State of Illinois, 21 Ill.Ct.Cl. 117, and Penwell v. State of Illinois, 22 Ill.Ct.Cl. 477, where this Court stated:

“While it is true that Respondent is under a duty to exercise reasonable care in maintaining its parks, it is likewise the law that Respondent is not an insurer against accidents occurring to patrons while using the park facilities."

The Respondent also takes the position that before the State can be held liable for an injury on property maintained by it, the State must have actual or constructive notice of the hazardous condition. In Finn, supra, this Court held that:

. . to require constant inspection in a park of some size, where the State maintains several thousand acres for the benefit of the public, would place an undue hardship and extraordinary burden on the State, by and through its agents and servants.”

We think the State has missed the point. None of the cases cited by Respondent in its brief specifically deals with a defective structure. In Steadman, Finn, and Hansen v. State of Illinois, 24 Ill.Ct.Cl. 102, all cited by the Respondent, this Court dealt with the question of the State’s liability when adults are injured by natural hazards in a State park or recreational facility.

We look to our opinion in Mislich, supra, where an eight-year-old boy fell from an “I” beam on the Crawford Avenue bridge. We determined that the boy fell from an ordinary bridge, that there was nothing unusual about it, there was nothing in particular to attract young people to it, and there was nothing defective about the structure, it being a standard structure used on Interstate 80 for overpasses:

“It appearing that the Claimant has failed to prove the contentions in his complaint and in particular that this was a defective structure or that there was negligence on the part of the Respondent, this claim is hereby denied.”

In all of the above-cited caes, unlike the instant case, there is a definite lack of a defective structure or dangerous condition which we deem essential to liability under the attractive nuisance doctrine.

It is true, as we have often held, that for the State to be liable for an injury, it must have actual or constructive notice of the hazardous condition. In this case, apparently, the State had previously boarded up the building which in our judgment is sufficient evidence to indicate at least constructive notice of a potentially hazardous condition, and had thereafter failed to inspect or in any way remedy this situation. The record is devoid of any other attempt by the State to reasonably maintain the structure or, failing that, to adequately warn its citizens of potential danger therefrom. We believe the record reflects that the State had the requisite notice of the hazardous condition and negligently failed to remedy that condition in any manner.

Finally, the Respondent argues that the Recreational Use of Land and Water Areas Act, Ill. Rev. Stat. 1977, ch. 70, pars. 31-37, severely limits the duty on the part of the Respondent to exercise care towards any person using the land for recreational purposes. The Respondent cites Vaughn v. State of Illinois (1977), 31 Ill.Ct.Cl. 465, wherein the State was charged with negligence in failing to provide warning signs of safety hazards and rescue equipment at a dam or spillway. In that case this Court looked to the following language of the Act:

“Section 3. Duty of care or warning of dangerous condition. Except as specifically recognized or provided in Section 6 of this Act, an owner of land owes no duty of care to keep the premises safe for entry or use by any person for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.
Section 4. Effect of invitation or permission. Except as specifically recognized by or provided in Section 6 of this Act, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:
(a) Extend any assurance that the premises are safe for any purpose.
(b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.
(c) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such person or any other person who enters upon the land.
o * *
Section 6. Willful or malicious acts — Injury suffered by persons paying admission. Nothing in this Act limits in any way any liability which otherwise exists:
(a) For willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.
(b) For injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof ...”

We also looked to section 8(d) of the Court of Claims Act (Ill.Rev.Stat. 1979, ch. 37, par. 439.8(d)), which is this Court’s jurisdictional authority for claims sounding in tort. It provides in pertinent part as follows:

“(d) All claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit. . ..” (Emphasis added.)

Vaughn involved a factual situation where a boat was caught in a current and, in trying to escape, two passengers were swept over a spillway. We determined that the Recreational Use of Land and Water Areas Act would have absolved a private party owner of any duty of care toward a person using the land or water for recreational purposes (except the duty to willfully or maliciously fail to guard against or warn against a dangerous condition). The State was similarly absolved of such duty pursuant to the provisions of Section 8(d) of the Court of Claims Act.

A number of distinctions can be drawn between Vaughn and the instant claim, but basically only one is necessary. The Act specifically refers to the “use of land for recreational purposes” and it is clear to us that the structure (Lakeside Tavern) in which Donita Boaz was injured simply cannot be considered “land for recreational purposes” within the legislative intent of the Act.

Accordingly, it is hereby ordered that the Claimant be, and hereby is, awarded the sum of $30,000.00.


author: Holderman, J.

text:
    (No. 75-CC-0956
    Robert Bernhard and Shirley Bernhard, Claimants, v. The State of Illinois, Respondent.

      Order filed July 14, 1982.

      Order filed April 20, 1983.

    Clinton, Tongren & Grim (Robert S. Grim, of counsel), for Claimants.
    Neil F. Hartigan, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Holderman, J.

Claimants originally filed a suit in the circuit court of Will County against the Troy Township Board of Auditors, the County of Will, and Roy L. Cousins, Superintendent of Highways for Will County. After a verdict for $25,000 was entered in Claimants’ favor, post-trial motions were filed, raising the possibility of a new trial. Claimants, for valuable consideration therein stated, executed a release of the Troy Township Board of Auditors and a covenant not to sue Will County, Roy L. Cousins, or any other Will County official.

Respondent contends that the release of one tortfeasor is the release of all. In support of its position, Respondent cites the case of Jeanguenat v. State of Illinois (1982), 76-CC-1987, in which this Court cites the cases of Alberstett v. Country Mutual Insurance Co. (1979), 79 Ill. App. 3d 407, and McGill v. State of Illinois, 29 Ill. Ct. Cl. 450. In the latter case, it was held that “the law is well established in this State, as Respondent suggests, that the release of one tortfeasor releases all joint tortfeasors.” The Court relied on Illinois Law & Practice Releases, Section 25. It was further held that the fact that the joint tortfeasors were sued in different forums did not change the operation of the above-stated rule of law.

It is hereby ordered that this claim be, and the same is, hereby dismissed with prejudice.

ORDER

Holderman, J.

This matter coming before the Court on the joint stipulation of the parties to the entry of an award in the amount of thirteen thousand and no/100 ($13,000.00) dollars in favor of Claimants herein, representing full and final settlement of their complaint as earlier filed herein, the Court having jurisdiction of the subject matter hereof and the parties hereto, and being fully advised in the premises, doth find as follows':

1. That the nature of the claim herein is in tort; moreover, recovery is sought pursuant to section 8(d) of the Court of Claims Act. (Ill.Rev.Stat. 1979, ch. 37, par. 439.8(d)).

2. That Claimants are the joint owners of the following real property, namely:

Northeast Quarter of Section 29, Troy Township, 35 North Range 9 East of the Third Principal Meridian, in Will County, Illinois, 160 acres more or less.

3. That during the years 1959 and 1960, the Division of Highways of the Department of Public Works and Buildings of the State of Illinois (hereinafter referred to as the State of Illinois) constructed and/or caused to be constructed, or had constructed in its behalf, a massive and elevated solid earth highway embankment identified as Federal Aid Interstate Route 80 Highway: Said highway was imposed through Sections 28 and 29 of Troy Township, Will County, Illinois, and more particularly through the southern portion of Claimants’ above-described real property (a true and correct photocopy of an aerial photograph of Claimants’ property is attached hereto, marked Exhibit A, and made a part hereof: the photograph shows the boundaries of Claimants’ property and the position of the subject highway as imposed thereon).

4. That the natural drainage of surface and subsurface water of approximately 749 acres followed a course from north to south and thence, southeast over and upon the southeasterly quarter of Claimants’ aforementioned property (a true and correct photocopy of a topographical map prepared by George Reiter and Associates is attached hereto, marked Exhibit B, and made a part hereof. This said map illustrates the topography of Claimants’ real property and especially the flow of surface and subsurface water from approximately 749 acres in the southeast portion thereof).

5. That in furtherance of said natural north to south drainage of a substantial area of acreage lying westerly of the Claimants’ aforementioned property, there is a natural drainage ditch passing through said premises and extending from north to south through the east-west line of said highway embankment.

6. That during the years 1959 and 1960, the State of Illinois constructed, caused to be constructed and/or had constructed on its behalf a conduit extending through the solid and elevated highway embankment having been designed for the purpose of facilitating the drainage of the surface flow of water through the said highway embankment.

7. That the conduit mentioned in the immediately preceding paragraph as initially installed had an approximate 36" diameter and was wholly inadequate for its intended purpose.

8. That prior to the construction of the subject embankment, Claimants’ property was properly drained and the natural and normal flow of surface and subsurface water followed certain patterns and directions as herein-before described without obstruction or impasse.

9. That as a result of the construction of the subject embankment and the installation of the subject 36"-diameter conduit, the natural flow of surface and subsurface water in and about the southeasterly quarter of Claimants’ property was unnaturally obstructed, dammed, levied and/or otherwise destroyed and impeded, and water flow was thereby unnaturally prevented from following its path from north to south across Claimants’ property.

10. That as a result of the premises as set forth in the immediately preceding paragraph, storm water runoff would frequently pond, thereby depriving Claimants of the use, benefit and value of many and substantial acres of their previously tillable farmland: Claimants were caused to suffer immediate and continuing damage on each and every occasion of heavy rainfall.

11. That as a further result of the premises set forth in paragraph No. 10, hereinabove, Claimants suffered a substantial diminution in the market value of their property.

12. That no other claim has been previously presented to any State department or officer thereof.

13. That the Claimants herein are owners of the claim or interest filed herein and obtain their interest in said claim as owners of said property at all times pertinent hereto.

14. That no assignment or transfer of the claims or any part thereof, or interest, has been made.

Therefore, it is hereby ordered that the Claimants be and the same are hereby awarded the sum of thirteen thousand and no/100 ($13,000.00) dollars in full and final settlement and satisfaction of their Claim.


text:
    (No. 76-CC-1469
    Build Institute, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 5, 1983.

    Betram A. Stone, for Claimant.
    Tyrone C. Fahner, Attorney General (Glen Larner, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is a claim brought by Build Institute, a not-for-profit corporation. This corporation was organized as a private educational operation which, as its primary function, offered vocational training to students sent to it by the Department of Vocational Rehabilitation of the State of Illinois (DVR). Specifically, Claimant seeks to recover from the State the sum of $11,190.80, which is the amount claimed due for services allegedly rendered to DVR during certain periods in 1975. In its complaint, Claimant presented this matter as one of lapsed appropriation. Respondent, however, defended the claim on the basis that there has been no showing that the services allegedly performed have, in fact, been performed.

This cause has been subject to much delay, many motions, and other, pretrial matters, but was finally heard before the commissioner on September 22, 1981. Each party has submitted its brief and the Court has read the transcript of evidence presented at the hearing.

The lapsed appropriation allegation fails if the services for which Claimant filed were not rendered.

Claimant has the burden of proving the elements of its case by a preponderance of the evidence. Specifically, it has the burden of showing that it rendered the services to DVR in 1975 for which it is seeking payment.

A careful review of the record shows that Claimant has failed to make out a prima facie case. Claimant only produced.one witness, Gene Woods, a founder of Build Institute, as well as its president. His testimony basically addressed itself to the general operation of the institute. He admitted lack of personal knowledge of the specific services which are the basis of this claim, and he did not identify nor did he present any business records of the institute. It was his contention that many of the records of the institute had been lost with the Internal Revenue Service and/or the Federal Grand Jury, and he also alleged that some of the records had been destroyed in a fire on the premises in which they were stored. This, however, does not relieve the burden of proof imposed upon Claimant to prove its claim.

Claimant failed to produce any witnesses who, by their own personal knowledge, could have testified to the exact services rendered and the details concerning those services. Claimant also could have presented witnesses who made and maintained the business records which would have presumably contained the details with respect to the services in question.

It is the opinion of this Court that Claimant failed completely to produce the proof necessary on which to base recovery. Claim dismissed.


text:
    (No. 76-CC-1621
    Port Authority of New York and New Jersey, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 1, 1982.

    Heckenkamp and Fuiten (David L. Drake, of counsel), for Claimant.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

Claimant brought this claim under section 8(b) of the Court of Claims Act (Ill.Rev.Stat. 1977, ch. 37, par. 439.8(b)), alleging breach of a lease agreement. Both parties stipulated to the facts of the case, but only the Respondent filed a brief.

On July 1, 1971, the State of Illinois, Department of General Services, and the Claimant executed a written lease wherein the Department of Revenue, by and through the Department of General Services, would lease certain office space from the Claimant in the World Trade Center in New York City. The original lease under which the location was rented expired January 31, 1974. The basic rent during the period of this lease was $1,330.64 per month due in advance on the first day of each month. Following the expiration date of the lease, the Department of Revenue continued to occupy and pay rent on the above rented premises until May 3, 1974, upon which date it vacated the premises. Prior to May 15, 1974, Harry Bietch of the Department of General Services had corresponded with Claimant, indicating that the Department would vacate the premises on or about May 15, 1974. No rent for that month of May has been paid to date.

Claimant did not attach a copy of the lease to its complaint as required by the Civil Practice Act (Ill.Rev. Stat. 1977, ch. 110, par. 1 et seq.), and Respondent only attached a copy of the second page of the lease to the departmental report. Therefore the record is silent as to many potentially significant facts and issues. However, the stipulation of facts and issues was filed March 1, 1978, and Respondent’s brief was filed a year and half later, and because the case has been pending inactive for so long we will apply the law and base our decision on the record as it stands without further delay.

According to the law in Illinois (neither side raised any issues as to choice of law), in the absence of an agreement to the contrary, the holding over of a. tenant creates a periodic tenancy. Although Claimant did not make its position known to the Court, Respondent states in its brief that it was Claimant’s position that the period was month to month.

It is Respondent’s position that section 4(b) of the lease agreement varies the common law rule. It provides as follows:

“(b) If the commencement date of the letting under this Agreement is other than the first day of a month, the basic rental for the. portion of the month during which the letting is effective shall be paid in advance and shall be the amount of the monthly installment prorated on a daily basis using the actual number of days in the month, and if the expiration or termination date of the letting is other than the last day of the month, the basic rental for the portion of the month during which the lettin'g is effective shall be the amount of the monthly installment similarly prorated.”

The commencement date of the letting under the agreement was the first day of the month. Therefore the first half of the clause quoted above is inapplicable. The original lease expired January 31, the last day of the month. The holding over created a month-to-month tenancy beginning on the first day of the month and ending on the last day of the month. In the absence of an agreement otherwise, -periodic tenancies are terminated upon notice equal to the length of the period. There is no indication that the notice by Mr. Bietch was timely or any agreement to the contrary. Therefore the lease terminated or the term expired at the end of the month, in this case May, and the second half of the clause quoted above would also be inapplicable.

In conclusion, we find that nothing in the record before us gives reason to depart from the common law rule and Claimant is due rent for the month of May 1974.

It is hereby ordered that Claimant be, and hereby is, awarded the sum of $1,330.62.


author: Perlin, J.

text:
    (No. 76-CC-1942
    Millernese Calvin, Administrator of the Estate of Christopher Calvin, Deceased, Claimant, v. The State of Illinois, Respondent.

      Order on motion to strike filed September 21, 1976.

      Opinion filed March 1, 1982.

      Order on petition for extension of time filed April 29, 1982.

      Order on motion to close record filed August 19, 1982.

    Harvey L. Walner & Associates, Ltd., for Claimant.
    Tyrone C. Fahner, Attorney General (John R. Fanone, Assistant Attorney General, of counsel), for Respondent.
   ORDER ON MOTION TO STRIKE

Perlin, J.

This matter coming on to be heard upon the motion of Respondent to strike from the complaint Dr. Jack Saporta, superintendent of Tinley Park Mental Health Center, and to strike the ad damnum as it exceeds the statutory limit, the Court being fully advised in the premises, and, having given due consideration to the allegations of said complaint, and to said motion,

It is hereby ordered that said Dr. Jack Saporta, superintendent of Tinley Park Mental Health Center, be stricken as Respondent.

It is further ordered that the ad damnum of $1,000,000 be stricken as it exceeds the statutory limit.

OPINION

Holderman, J.

This matter is before the Court upon a motion by Respondent to dismiss this cause and Claimant’s objection to said motion.

This action was brought by Millernese Calvin, administrator of the estate of Christopher Calvin, her deceased son.

Christopher Calvin was 22 years of age with a long history of mental illness. At the time of his death, he was a patient at Tinley Park Mental Health Center.

The deceased graduated from grammar school in 1965, graduated from Harper High School in 1969 where he was an all-city basketball player, and attended the University of Illinois beginning in 1969. He played basketball for a short time on the freshman team but became ineligible due to poor grades. He later enrolled at Robert Morris Junior College, played basketball there, and graduated. He then enrolled at Northwestern University on a partial scholarship in 1972 and played only two games for the team. He dropped out of Northwestern University, re-enrolled in the fall of 1973 but was not able to function normally, and again dropped out.

The only work the deceased did was part-time or summer jobs and made no more than $100 per month at any one of them.

In 1973, he was treated for his problems at Jackson Park Hospital and later at the Tinley Park Mental Health Center. In May of 1974, he had an emotional breakdown and returned to Tinley Park for several weeks. In the latter part of 1974, he talked to his mother about being put out of his misery and told of hearing voices which told him to kill himself. He became more and more agitated, angry and nervous, and returned to Tinley Park in April of 1975. During this time, he allegedly told his mother he had gone to the nearby tracks and laid his head down. He also told her that he had been placed in restraints prior to a home visit in late May. While home on this visit, he wanted to return to Tinley Park because he was afraid. In his mother’s home and while she was present, he went into the bathroom where he was found with his left wrist bleeding. He was treated at Jackson Park Hospital and returned to Tinley Park on June 1.

The Tinley Park Mental Health Center is a State mental hospital consisting of approximately 500 acres.

The deceased was described as being a big, fast person, weighing from 195 to 210 pounds.

The record discloses that when he was agitated, he became restless, would talk louder and his voice would rise. He would pace the floor. When he was calm, he was polite and spoke pleasantly.

On his last visit home, shortly before his death, the deceased acted calm, was low-voiced and quiet. In that condition, he was returned to Tinley Park.

While he was at Tinley Park, the deceased was in a confined area and could not leave without permission and the doors to the area were opened and closed only with a key in the hands of authorized personnel.

On the day he met his death, the deceased was in the confined area and could not leave without supervision. He asked permission to leave the area but was refused. When he talked to the individual in charge of the desk, he was calm and quiet. He then went and sat down without any unusual actions or activity on his part. The area where he was sitting was the T.V. area and was a comparatively short distance from the exit door.

When Mrs. Munson, an attendant at the hospital, was leaving, he bolted through the door, brushing her aside. She went to look for him but he was already gone. She immediately returned to the unit and informed a Mrs. Simpson, who called security. Mrs. Munson heard Mrs. Simpson tell security that he was suicidal and make some reference to the tracks.

The incident occurred at approximately 5:40 p.m., and at 6:05 p.m., the mental center was informed of his death, as he had been found on the tracks. Approximately 25 minutes had elapsed from the time of his escape until the report of his death. In the interim, security had been searching for him.

Claimant alleges that Respondent was guilty of the following acts of negligence: (1) it failed to provide proper medical care; (2) it failed to provide proper supervisory control; and (3) it failed to provide proper and trained security guards.

Dr. Joseph Bongiorno testified for Claimant. He specializes in psychiatry and is on staff with Michael Reese Hospital and is also in private practice. It was his opinion that the treatment of the deceased was inadequate, that he should have been confined to an individual room under lock and key, and a staff member should have been available to soothe him. Because this was not done, he was of the opinion that the restraint, therefore, was deficient. He stated additional medication was needed and if enough had been given from the onset, his condition would have improved. He also disagreed with the medical center’s policy of allowing the patient to go to his home at intervals. He testified that no real measure is available to prevent a suicide short of restraint, and that a patient might require restraining regardless of the law regulating the use of such restraints.

Members of the hospital staff testified that before restraints were used, a patient would have to exhibit some evidence of needing restraints by either being agitated, fighting, by throwing chairs, or some similar activity. It was their testimony that none of these acts occurred on the day the patient died. The last time the patient had been in restraints was because he had been screaming and twisting and asking for restraints.

One of the staff from the hospital testified that the criteria for using restraints was whether the patient was so uncontrollable that he might hurt himself or others, and even though a patient requested restraints, a doctor’s order was still required. She further testified that on the day he met his death, he did not ask for restraints as he had done on previous occasions and he exhibited no characteristics requiring restraints.

Dr. Zita Lezeau, a physician at Tinley Park Mental Center, testified that she was the doctor in charge of decedent’s ward. She testified that he had been placed in restraints on May 20 and May 24. She stated she was treating him for deep depression but was not overlooking his schizophrenia, and that he had never been off the ward without an escort. She also stated he had been receiving Navane, and after he refused to take it, she administered an injection of Thorazine. She testified that patients have to be treated as individuals and that medicine is prescribed based upon their history and symptoms, and that restraints are used only as a last resort and then only to prevent hurt or damage to the person or to others. She stated she had never seen him in a condition that required restraints, and there was no indication he needed restraints when he returned from his last home visit.

Dr. John Davis, employed by the Illinois State Psychiatric Institute in Chicago, testified on behalf of Respondent. He had no interest in the outcome of this case and received no fee or compensation to appear at the trial.

Dr. Joseph Bongiorno, the psychiatrist who testified on behalf of Claimant, stated he was hired by Claimant and was being paid for his appearance and his testimony.

Dr. Davis had a long history of education in the psychiatric field and has held several positions of importance dealing with the treatment of mental disorders. Among them, he has been consultant to 12 different groups, including the Food and Drug Administration, the A.M.A., and the National Academy of Science; he has served on the editorial board of eight journals, has won several awards, has membership in 19 societies, and has written five books in the area of psychiatric disorders and disease. Most important to the case at hand, he has written a paper entitled, “Comparative Doses and Costs of Anti-psychotic Medication.” This paper deals with various drug doses and how they relate to chlorpromazine.

Dr. Davis testified that the patient was receiving what he considered to be a high dose of various types of medication; in one instance, he was given over three times the average dose. However, he stated, many textbooks advocate higher doses. He also testified that although a patient is given three times the average dose, this does not necessarily mean there will be three times better results. He stated he had never heard of any person being kept in restraints for many days and the length of time is limited by the Mental Health Code. His testimony differed sharply with the testimony of the doctor called by Claimant.

Dr. Davis testified that he believes home visits are important for the patient, and the fact that the deceased had asked to leave the ward on the day he met his death would not necessarily alert the nurses to a possible suicide.

The last witness was Timothy Gawley who testified he had seen an individual near the railroad tracks which abut the Tinley Park Mental Health Center, and that he saw this man get hit by the train.

This Court has held, as have other courts, that before recovery can be made in cases like this, Claimant must prove there was a lack of proper and reasonable care. The courts have also held that Respondent cannot be held liable unless it knew, or should have reasonably been expected to know of or to predict decedent’s sudden escape. Karulski v. Board of Trustees (1966), 25 Ill.Ct.Cl. 296; Slater v. Missionary Sisters of the Sacred Heart (1974), 20 Ill. App. 3d 464, 314 N.E. 2d 715.

The courts have held that where a Claimant fails to prove by a preponderance of the evidence that Respondent did not exercise the degree of care owed to its patient, the claim will be denied. Gianos v. State (1975), 30 Ill.Ct.Cl. 373; also Krulfki v. State, 25 Ill.Ct.Cl. 296.

In reviewing the records in this case, it appears we are dealing with an individual whose main interest in life was to be able to play basketball professionally. That he was unable to do so had a profound effect on him.

It is interesting to note that this individual, when he felt an attack coming on, would ask to be placed in restraints without showing any physical evidence that said restraints were needed. Ón the day of his death, he had not indicated any desire for the restraints nor did his actions indicate he should be placed in restraints. He did not become agitated when he was refused permission to leave his ward but merely sat down in the T.V. area. His next move was when he suddenly bolted to the door, when it was opened by one of the ward personnel.

The record is devoid of any evidence showing Respondent knew, or should have known, that this individual was contemplating an immediate act or a suicide attempt.

It is the opinion of this Court that the Claimant has not met the burden of proof that is required before an award can be made and that Respondent provided reasonable medical care and treatment to said patient.

Award denied.

ORDER ON PETITION FOR EXTENSION OF TIME

Holderman, J.

This matter comes before the Court upon petition by Claimant for extension of time for filing petition for rehearing.

It is hereby ordered that Claimant’s petition be, and the same is, granted, and Claimant is given until June 1, 1982, to file said petition for rehearing.

ORDER ON MOTION TO CLOSE RECORD

Holderman, J.

This matter coming to be heard on the motion of Respondent to close the record herein, and it appearing to the Court that Claimant has received due notice of said motion, and the Court being fully advised in the premises; . .

It is hereby ordered that the motion of Respondent be, and the same is, hereby granted and the record on this claim is hereby closed.


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    (No. 76-CC-2389
    Stephen Mydlo and Mary Mydlo, Claimants, v. The State of Illinois, Respondent.

      Opinion filed December 6, 1982.

    Ripplinger, Dixon & Hoffman (George R. Ripplinger, Jr., of counsel), for Claimants.
    Tyrone C. Fahner,. Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

Claimants Stephen and Mary Mydlo have brought this action to recover for permanent salt damage done to premises that they occupy by reason of a salt storage pile maintained by Respondent on property adjacent and uphill from Claimants’ property. Evidence conceiving the facts was heard by a commissionér of this Court. The following summarizes the evidence.

The Claimants purchased their home in Fair view Heights in 1962. Adjacent to Claimants’ property and behind the lot, the State of Illinois maintained a salt pile. The salt pile was located on property that was higher than the lot upon which the Mydlos’ home was located. It was agreed by the parties at the hearing that as a result of the location of the salt pile on Respondent’s storage area, salt had permeated a portion of the Claimants’ land and continued to do so at the time of the hearing. Respondent, through the cooperation of Claimants, has attempted many different ways of remedying the problem of salt permeation on Claimants’ property and the resultant destruction of ground cover and grass. The attempts by Respondent to correct the condition have not improved the condition. The parties stipulated at the hearing before the commissioner that the only issue to be determined by the Court was the amount of compensation to be paid to the Claimants.

Claimants called David F. Gordon, a real estate appraiser from Belleville, Illinois. Mr. Gordon had been an appraiser since 1946 and testified that he had done an appraisal on the property of the Claimants. The appraiser testified that the Claimants own a one-story, one-family home which was built in 1964, and that the damage to said property was in the total sum of $10,724.00, which includes an assessment of $4,200.00, which was damage to the remainder of the property as a result of the existence of the condition, and $1,872.00 for screening or fencing necessary to obviate the effects of the damaged portion of Claimants’ lot.

An appraiser called by the State, Lee Bierman, who was an appraiser with qualifications comparable to the appraiser called by Claimants, testified that the amount of the damage to Claimants’ lot was $2,075.00.

Claimants argue that the measure of damages for property damaged by a public use but not taken is the same in a landowner’s action at law to recover damages as in a condemnation proceeding. (Kane v. City of Chicago (1946), 392 Ill. 172, 64 N.E.2d 506, 509.) Further, Claimants argue that the salt-affected property at the rear of Claimants’ lot must be considered to be a complete aiid permanent taking. We. do not accept this argument. That fact that a portion of the back yard will not sustain grass growth does not render the property totally unuseable. However, there has been damage to the property for which Claimants are entitled to remuneration.

First, there appears to be little question that the portion of the back yard affected has been permanently damaged. As noted above, we do not perceive the damage to constitute a “complete, permanent taking.” For that reason, we recommend that Claimants’ testimony to the effect of the “taking” be reduced from the sum of $4,652.00 to $2,326.00. With respect to the matter of erecting a fence, we are not conviced that under the law with respect to damages such as the kind in the case at bar that Respondent is responsible for building a screening fence for aesthetic purposes. We recommend, therefore, no award with respect to the estimated cost of fencing.

Finally, with respect to damage to the remainder, testified by Claimants’ appraiser to be $4,200.00, we believe that Claimants’ appraisal should be accepted at face value. Neither in the evidence produced by Respondent nor in any brief did the Respondent rebut or contradict this testimony. The commissioner, who heard the testimony of the witnesses, has recommended that the Court assess the damages of $6,526.00. We believe his conclusion to be reasonable.

We, therefore, award Claimants the sum of six thousand five hundred twenty six ($6,526.00) dollars.


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    (No. 76-CC-2704
    Warren Achievement Center, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 28, 1982.

    Richard L. Whitman, Sr., for Claimant.

      Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant in this matter is a non-profit organization located in Monmouth, Illinois. Its function is to meet the needs of mentally and physically handicapped people in a number of ways.

In addition to the Illinois Department of Mental Health and the Illinois Division of Vocational Rehabilitation, several other agencies provide funds to support various Warren Achievement Center (WAC) operations.

Donald P. Tomlin is the director of Achievement Industries, a part of WAG. He has been with WAC since June of 1972.

It is necessary for the operation of their programs that. they have certain motor vehicles to aid and further the cause of said programs.

Claimant purchased several different types of vehicles, including a station wagon, vans, and passenger automobiles. For the years 1974, 1975 and 1976, these motor vehicles were registered and State licenses were purchased.

On October 24, 1980, a joint stipulation was entered into between the parties whereby it was agreed that the affidavit of Donald P. Tomlin would be submitted in lieu of his testimony and, with the submission of his affidavit, a hearing before the Court would be waived.

In his affidavit, Mr. Tomlin stated that in 1973 he made three phone calls to the Office of the Secretary of State trying to ascertain if there was any way to secure a reduction of the cost of registering the vehicles owned by WAC. In the first two conversations, an employee of the Secretary of State’s office, unidentified, gave him the unequivocal answer of “no.” Mr. Tomlin alleges during the third phone call, he was told that there were no provisions under which WAC could gain a reduction in its registration costs. This subject was also unidentified.

On December 5, 1973, Mr. Tomlin wrote to the Secretary of State, making the same inquiry as in the phone calls. The letter was not answered. In July of 1976, Mr. Tomlin learned that there are provisions under which WAC could have obtained its registration plates at a greatly reduced charge. He received this information from Vern Wideler, director of a similar workshop for the handicapped in Galesburg.

WAC’s applications for registrations were made on normal application forms until 1977. On November 1, 1976, WAC filed this claim for a total refund of $5,237.00.

This Court in several instances has passed upon the right to a refund. One of the first cases is found in Wright & Wagner Dairy Co. v. State, 12 Ill.Ct.Cl. 149, where the Court stated:

“Where one pays a license fee, without compulsion or duress, which the law would not compel him to pay, such payment is voluntary and made under a mistake of law and cannot be recovered.”

This law is followed in Warren v. State, 14 Ill. Ct. Cl. 84, and South Side Petroleum Co. v. State, 16 Ill. Ct. Cl. 284, and it has never been changed.

This fee was paid voluntarily by Claimant and there is no statute authorizing a recovery for fees so paid. The affidavit filed by Claimant is lacking in any corroborating evidence.

Claim denied and case dismissed.


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    (No. 77-CC-0371
    The Dearborn Associates of Chicago, Claimant, v. The State of Illinois, Respondent.

      Order filed October 29, 1980.

      Amended order filed January 30, 1981.

      Opinion filed December 6, 1982.

      Amended opinion filed March 14, 1983.

      Amended amended opinion filed April 7, 1983.
    Robert W. Dziubla, for Claimant.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Holderman, J.

This matter comes before the Court upon motion of Claimant for partial summary judgment filed August 19, 1980, to which Respondent has made no answer nor response.

Claimant’s motion requests the Court enter an order granting partial summary judgment for certain enumerated items totalling the sum of $35,522.37, plus prejudgment interest at the statutory rate from and after December 5, 1975.

Claimant cites section 2 of “An Act in relation to the rate of interest” (Ill.Rev.Stat., ch. 74, par. 2) as its basis for requesting interest. Said statute provides, among other things, payment of five (5%) per cent interest per annum for all monies after they become due or money withheld by an unreasonable and vexatious delay of payment.

It appears from the record in this cause that there is not any dispute as to the amount claimed by Claimant and that this amount was due from December 5, 1975.

Award is hereby entered in favor of Claimant in the amount of $35,522.37, plus interest at the rate of 5% from December 5, 1975, to date of payment.

AMENDED ORDER

Holderman, J.

This matter comes before the Court upon motion of Claimant for partial summary judgment filed August 19, 1980, to which Respondent has made no answer nor response.

Claimant’s motion requests the Court enter an order granting partial summary judgment for certain enumerated items totalling the sum of $35,522.37, plus prejudgment interest at the statutory rate from and after. December 5,1975.

Claimant cites section 2 of “An Act in relation to the rate of interest” (Ill.Rev.Stat., ch. 74, par. 2) as its basis for requesting interest. Said statute provides, among other things, payment of five (5%) per cent interest per annum for all monies after they become due or money withheld by an unreasonable and vexatious delay of payment.

It appears from the record in this cause that there is not any dispute as to the amount claimed by Claimant and that this amount was due from December 5, 1975.

Award is hereby entered in favor of Claimant in the amount of $35,522.37. Interest is not allowable.

OPINION

Holderman, J.

This is a claim filed alleging breach of a contract, which contract was for architectural, engineering and professional services between the Capital Development Board (CDB) and The Dearborn Associates (TDA) for the Benito Juarez High School project in Chicago, Illinois. The breach complained of is for non-payment of professional services rendered between March 25, 1975, and December 8, 1975. In its complaint, TDA sought an award for $75,159.62. On January 30, 1981, the Court, of Claims entered an amended order granting partial summary judgment to Claimant in the amount of $35,522.57. The remaining amount in dispute is $39,637.05.

There are two issues involved in this case: (1) Whether the project had been completed through the design development phase at the time of Claimant’s termination; and (2) Whether interest on an award is allowed in the Illinois Court of Claims.

On March 25, 1975, a contract was executed between the CDB and TDA for architectural and engineering services for the Benito Juarez High School in Chicago, Illinois. Under the contract, TDA was to provide services in seven phases on the project.

On June 24, 1975, the contract was modified and the number of phases was reduced from seven to four. The first three phases of the project were deleted from TDA’s contract but the contract did provide that TDA was to perform certain services in conjunction with RMC, a Mexican architectural firm which had been hired as a design concept consultant, and the Turner Construction Company. The contract provided that GDB’s manual of procedures would be a part of TDA’s contract and would apply to its work. The purpose of the manual of procedures was to standardize the whole architectural process both in terms of services and fees.

On December 5, 1975, CDB wrote to TDA advising them that, pursuant to Article 8, par. 8.3 of the contract, TDA was terminated effective 15 days following receipt of the letter. The letter was received by TDA on December 8, 1975.

On December 18, 1975, TDA forwarded to CDB all drawings it had prepared to that date. These included 42 architectural sketches designated as “definitive design drawings.”

It is the contention of Respondent that when the contract was terminated, the design development phase of the contract was not completed.

It is Claimant’s contention that Respondent, through various agents, stated that the manual procedure did not apply to its work, and the rules of the manual were . waived. Respondent denies there was such a waiver and points out that while any evidence to such a waiver was oral, said waiver, by documents and notes, was not substantiated by the evidence.

This Court, in L. Balkin Builder, Inc. v. State (1939), 11 Ill. Ct. Cl. 407, laid down the following rule:

“Oral testimony inadmissible to vary terms of contract. In the absence of any fraud, parole testimony cannot be received to change, vary or alter the terms of a written contract.”'

It is the opinion of the Court that the terms of the original contract cannot be changed by oral evidence as presented by Claimant in this cause.

It is the finding of this Court that Claimant was not compensated for work performed under the contract and that a fair value for said services rendered unpaid at the time of the termination of the contract is $15,000.00.

Claimant has requested interest for the failure of Respondent to make payments for work performed. This Court has previously held that interest on awards is not allowable. See Coach Corp. of Freeport v. State (1949), 18 Ill.Ct.Cl. 156; also Toombs v. State (1977), 32 Ill. Ct. Cl. 205.

An award is hereby, entered in favor of Claimant in the amount of fifteen thousand ($15,000.00) dollars, as full, final and complete settlement of all claims in this cause.

AMENDED OPINION

Holderman, J.

This matter comes before the Court upon petition of Respondent for clarification filed January 5, 1983. Claimant did not respond to said petition.

In the Court’s opinion of December 6, 1982, an award was entered in favor of Claimant in the amount of $15,000.00. A re-reading of the facts in this case would indicate that such an award could be construed as allowing a case based upon a quantum meruit recovery. This Court has expressly disallowed recovery on quantum meruit basis. See Sunley v. State (1976), 31 Ill.Ct.Cl. 176, and Hofer v. State (1978), 32 Ill.Ct.Cl. 745, 751.

In order to clarify the situation, the Court hereby vacates its opinion of December 6, 1982, and dismisses said cause.

AMENDED AMENDED OPINION

Holderman, J.

This matter comes before the Court upon a joint motion by Claimant and Respondent requesting an amended opinion be entered by this Court.

Said joint motion sets forth that it is the opinion of Claimant and Respondent that an award should be made based upon the express terms of the contract between the parties hereto, and further suggests that the award should be in the amount of $15,000.00.

An amended amended opinion is hereby entered granting claimant the amount of $15,000.00, based upon the contract between Claimant and Respondent.


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    (No. 77-CC-0515
    James Tarkowski, Claimant, v. The State of Illinois, Respondent.

      Order on motion to strike filed April 17, 1978.

      Order on motion to dismiss filed September 27, 1979.

      Opinion filed April 14, 1983.

      Order on motion to vacate dismissal filed June 1, 1983.

    Alice Neff Browne, for Claimant.
    Aries, Hoyt & Williams, for Respondent.
   ORDER ON MOTION TO STRIKE COMPLAINT

Holderman, J.

This matter comes before the Court on a motion by Respondent to strike the complaint and objection to motion filed by Claimant.

Objection to motion is hereby overruled and motion to strike is granted and Claimant is hereby given sixty (60) days in which to file a new complaint.

ORDER ON MOTION TO DISMISS

Holderman, J.

This matter comes before the Court upon motion to dismiss filed by Respondent.

Respondent’s motion sets forth that the Ford pickup truck which sustained the damages complained of was owned by Claimant’s son, James Tarkowski, and that on August 2, 1979, at a Court of Claims hearing, Claimant admitted that his son, James Tarkowski, signed the first amended complaint.

Respondent’s motion states that Claimant indicated, in a July 19, 1979, statement, that he was not in the truck at the time of the occurrence and, therefore, did not have any interest in said cause. Respondent further states that it assumed that because the complaint was signed “JTarkowski, Claimant Pro Se” it referred to Claimant, John Tarkowski, rather than his son.

Respondent’s motion is based on the grounds that Claimant did not have any interest in the subject matter of this lawsuit.

It is hereby ordered:

That Respondent’s motion to dismiss be, and the same is, granted and this cause is dismissed.

OPINION

Holderman, J.

On April 25, 1976, James Tarkowski was involved in an automobile accident on State Highway Route 14 at Rowhling Road. The traffic lights were inoperative and there was light snow on the ground and it was windy. Temporary stop signs had been placed on the poles of the traffic signals at the time of the accident in question.

It is Claimant’s contention that Respondent failed to maintain the traffic signals at the scene of the accident. It is Claimant’s further contention that the stop sign was mounted on a pole by a single strap which allowed the sign to vibrate back and forth in the gusty wind and was very difficult to see because of its small size. The accident in question took place at 4:13 p.m.

This complaint was originally filed under the name of J. Tarkowski and was dismissed on Respondent’s motion on the grounds that, at the hearing before a commissioner on August 2, 1979, John Tarkowski testified that the property damage was actually sustained by his son, James Tarkowski, who signed the complaint, and that John Tarkowski had no interest in the subject matter and could not represent his son, James Tarkowski. On December 28, 1979, this Court vacated the order dismissing this claim and granted Claimant leave to secure an attorney. Claimant was still listed in the caption of the case as “J- Tarkowski.” On May 27, 1980, the commissioner entered an order requiring the full name of Claimant to be indicated on the caption of the cause and on other documents to be filed, and thereafter, in compliance with this order, James Tarkowski has appeared as Claimant on all documents filed by Claimant.

On March 19, 1981, a hearing was conducted at which time John Tarkowski stated that this claim had been assigned by James Tarkowski to John Tarkowski “for collection” on October 2, 1979. At this time the commissioner noted that the claim had been filed on behalf of James Tarkowski and all documents filed had indicated the Claimant as James Tarkowski and that the claim might be denied on the grounds that John Tarkowski was not the Claimant of record. Thereupon, John Tarkowski renounced his ownership of the claim and orally moved the Court to amend the complaint to change the name of Claimant to John Tarkowski.

After the hearing and prior to a ruling on the motion to amend, Claimant filed, on April 6, 1981, a document signed by John Tarkowski “voluntarily returning” the claim to James Tarkowski. It was the opinion of the commissioner at the time of the hearing on March 19, 1981, that John Tarkowski was not the Claimant listed and therefore this claim might be dismissed as having been brought by the wrong party. The assignment of this claim was evidently done to excuse the necessity of a court appearance by James Tarkowski.

James Tarkowski, the owner of the truck involved in the accident and the driver of said truck, was not called to testify at the hearing. The evidence shows that an automobile collided with a Ford truck at the intersection and that a short time later a Ford truck was found by John Tarkowski having damage similar to the damage sustained by the truck involved in the accident.

There was no evidence of any negligence on the part of Respondent and there was no evidence submitted showing that the driver of the truck or the automobile could not see the stop sign. There was even a lack of evidence as to who was the driver of each vehicle. There was no evidence as to actual constructive notice of the defects in the traffic signal.

This Court has repeatedly held that before there can be a recovery, it must be shown that Claimant was free from contributory negligence and that there was negligence on the part of the Respondent and that such negligence was the proximate cause of the accident complained of. See National Bank of Bloomington v. State (1980), 34 Ill.Ct.Cl. 23.

Claimant having failed in every respect to meet the requirements as above set forth, this cause is hereby dismissed.

ORDER ON MOTION TO VACATE DISMISSAL

Holderman, J.

This matter comes before the Court as a result of a communication from J. Tarkowski in the form of a letter in which he requests that the previous order of dismissal be vacated. The letter also states that due process requires a hearing on the facts.

The Court once again has reviewed the transcript and the file. The file discloses a hearing was held before a commissioner on March 19, 1981.

This cause arose as a result of an automobile accident on a State highway. At the hearing, the driver of Claimant’s car did not testify as to the facts surrounding the accident in question. The Court dismissed this case on the grounds that Claimant had not met the burden of proof required in accident cases such as this. This Court has consistently held that in cases such as the one at bar, Claimant must show the State was guilty of negligence, that such negligence was the proximate cause of the injury, and Claimant was free from contributory negligence. See National Bank of Bloomington v. State (1980), 34 Ill.Ct.Cl. 23.

It is the Court’s opinion that Claimant failed in his burden of proof; therefore, Claimant’s motion to vacate the order of dismissal is denied and the original order of dismissal is reaffirmed and this cause is dismissed.


text:
    (No. 77-CC-0908
    Mardel Carlson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 31, 1983.

    Phillip F. Maher, for Claimant.
    Neil F. Hartigan, Attorney General (William R. Wallin, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

The Claimant, Mardel Carlson, as executrix of the estate of her daughter, Patsy Joyce Gunn, seeks a recovery based. upon the wrongful death of her daughter against the State which treated her at both the Tinley Park Mental Health Center, a unit of the Department of Mental Health and Developmental Disabilities, and the Illinois Research Hospital, a part of the University of Illinois.

The Claimant and Respondent have entered into a joint stipulation settling this claim. This stipulation indicates that on September 9, 1975, Claimant’s decedent was readmitted as a patient at the Tinley Park Mental Health Center. On October 7, 1975, decedent started having grand-mal seizures and on the same day was transferred to the Illinois Research Hospital, where she died on October 11, 1975. The decedent’s death resulted from a 40-hour period of seizure activity.

Claimant also filed a suit in the circuit court of Cook County, No. 75 L 24002, against other institutions and individuals who had provided treatment to the decedent. This claim was settled for $22,000. The State has filed a lien against the estate of the decedent in the amount of $10,000 for treatment rendered to the decedent.

The parties have further agreed that no further evidence will be introduced, and that the rights to a hearing and to file briefs have been waived.

Lastly, Claimant in consideration of the payment of the above stated amount, waives, releases and relinquishes any and all claims whatsoever, which are the subject of the instant complaint against the State of Illinois, and any department or agency or any individual acting as an employee or agent of the State of Illinois or any of its departments or agencies.

It is the prerogative and duty 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 agreed upon by. the parties to the action. At the same time, the Court is not mandated to reject stipulations and agreed amounts of damages; nor is the Court desirous of creating a controversy where none appears to exist. (Kowaczek v. State (1979), 33 Ill.Ct.Cl. 70, 72.) Where the parties agree to compromise a claim, this Court should not and will not arbitrarily set aside an agreement absent an indication of possible fraud or duress on the part of one of the parties. (A & T Movers v. State (1980), 33 Ill.Ct.Cl. 77, 79.) There is no such indication present here.

The Court has reviewed the facts set forth in the joint stipulation. It appears that the stipulation is accurate, and that it has been entered into legitimately. The Court is also of the opinion that an award of $22,000 less a set-off of $10,000 is a fair and reasonable amount for the settlement of this claim.

It is hereby ordered that the sum of $22,000 be awarded claimant, less a set-off of $10,000 resulting in a net award of $12,000.00 (twelve thousand dollars and no cents).


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    (No. 77-CC-1193
    Louis R. Andrews, Claimant, v. The State of Illinois, Respondent.

      Order filed May 11, 1983.

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

This cause coming to be heard on the Respondent’s motion for summary judgment, due notice having been given and this Court being fully advised in the premises finds as follows:

This claim arose out of an automobile accident which occurred on July 17, 1976, at 5759 South Michigan Avenue in the city of Chicago. The claimant alleges various acts of negligence against the State regarding the general maintenance of the highway and specifically that the State was engaged in some manner of construction and/or repair of the highway at said location. The accident allegedly occurred when Claimant struck a pile of sand which had been left in the roadway.

The Respondent answered the complaint denying maintenance responsibility and that it had been engaged in any manner of construction and/or repair of South Michigan Avenue at the accident scene.

The Respondent further pleaded affirmatively that a maintenance agreement existed between the State and the city of Chicago on the date of the accident which covered the area of the accident. The State also pleaded that no permits for any type of work on South Michigan Avenue had been issued by the Department of Transportation before or on the date of the accident.

No response to the affirmative matters raised in Respondent’s answer was made by Claimant. Therefore, these matters now stand admitted for purposes of the motion before the Court. McClure Engineering Associates v. Winter (1980), 84 Ill.App.3d 231, 405 N.E.2d 28.

In order to recover in cases of this nature, the Claimant has the burden of proving by a preponderance of the evidence that the Respondent had actual or constructive knowledge of the defect which is alleged to have caused the accident. Lind v. State (1977), 31 Ill.Ct.Cl. 322, 325.

The defect complained of here was a pile of sand on South Michigan Avenue. In its answer and in the motion for summary judgment which is supported by affidavit, the State has denied any knowledge of either the pile of sand or any construction or repair work which might have involved the use of sand.

More importantly, the State had contracted with the city of Chicago to maintain South Michigan Avenue at the accident location. This practice is one with which this Court is familiar. Given the responsibilities of the State to maintain its roadways, it is not uncommon that municipalities are looked to to perform this service on the State’s behalf. These agreements, like the one involved herein, are supported by valuable consideration. That is, in return for using its manpower and its equipment to maintain a roadway which would otherwise be the State’s responsibility, the municipality is paid certain monies based on the amount of roadway covered by the agreement.

If, as alleged by Claimant, a pile of sand was left unmarked on South Michigan Avenue, it follows that the city of Chicago under its agreement with the State was in the better position and, indeed had the duty to post warnings, remove the sand or otherwise act in a reasonable manner.

That State does not control the city of Chicago. In entering into maintenance agreements, the State relies on the city to control and supervise its employees in the maintenance of highways under said agreements. The State cannot be held liable for acts of persons not in any way under its control. Allen v. State (1981), 34 Ill.Ct.Cl. 291.

It is hereby ordered that Respondent’s motion be, and the same hereby is, granted. Judgment is entered for Respondent. This claim is dismissed with prejudice.


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    (No. 77-CC-1597
    James Ronald Cowan, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 15, 1982.

    James Ronald Cowan, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

The claimant, James Ronald Cowan, seeks payment for holidays during which he worked while employed by the State of Illinois as a youth supervisor at the Pere Marquette Resident Center at Grafton, Illinois.

Due to the present out-of-State residence of the Claimant and the economic hardship and inconvenience which would be imposed upon the Claimant if he were to attend a hearing, the parties waived their rights to a hearing and submitted their cases on the record. They stipulated that the record shall consist of the complaint and attached documents, a copy of the departmental report with attached documents, a copy of Department of Personnel Rule 3-200 which was in effect during the relevant time period, and a copy of a memorandum of understanding between respondent and Claimant’s collective bargaining agent.

The departmental report, which is prima facie evidence of the facts contained therein pursuant to Rule 14 of the Rules of the Court of Claims, indicates that Claimant was compensated for 14 1/2 days of accumulated holiday time, but was not allowed time off or payment for 10 1/2 days of accumulated holiday time that had not been taken by him within the 12-month period. Department of Personnel Rule 3-200, which was in effect at the time Claimant terminated his employment, provides as follows:

“HOLIDAY OBSERVANCE: Where employees are scheduled and required to work on a holiday, equivalent time off will be granted within the following twelve month period at a time convenient to the employee and consistent with the agency’s operating needs.”

Time or compensation is forfeited if not taken during the 12-month period. Because Claimant accrued the holiday time on days outside of the 12-month period they are deemed forfeited and we are constrained to deny this claim.

On February 10, 1977, a memorandum of understanding between the State of Illinois and The American Federation of State, County and Municipal Employees became effective with regard to the collective bargaining agreements RC-6 and RC-9, a copy of which was attached to the departmental report. This memorandum of understanding specifically states that employees may be reimbursed for time off or may take time off for holidays forfeited by operation of collective bargaining agreements RC-6 and RC-9 or the Department of Personnel Rules. No mention is made of former employees. In addition, paragraph 2 of the memorandum of understanding makes provision for future requests. There is no provision made for requests by former employees. Furthermore, although the memorandum of understanding indicates in paragraph 2 that an employee’s request for holidays should be timely made and in accordance with the contract procedure, Claimant has not produced any evidence to show that his demands for holiday time were timely made or in accordance with contract procedure.

The Claimant states “The Memorandum of Understanding was issued for the specific purpose of recanting, retracting and rescinding the stipulated enforced Personnel Rule in question, to wit the restoration and restatement and/or reimbursement for the accumulated time formerly rescinded or abrogated.” This statement is quite incorrect in that the heading of the memorandum specifically says it is with regard to RC-6 and RC-9 collective bargaining agreements, not personnel rules, and although the Department of Personnel rules are mentioned in the body of the memorandum, nowhere is the purpose of the memorandum stated as being “recanting, retracting and rescinding,” of a personnel rule. The purpose of the memorandum of understanding is just as it states, to restore holidays earned and requested but forfeited by employees.

Claimant seems to have been confused by the allocation of the funds for reimbursement for holiday time. He states that “The State had knowledge and record of exactly how many accumulated holidays were involved in the separation.” (Over $5,000.00 of this sum has been returned to the State treasury). The departmental report indicates that there was $5,776.47 remaining in their appropriation for personnel services, juvenile field services, region IV, fiscal year 1976. Nineteen seventy-six was prior to the issuance of the memorandum of understanding. Therefore, the Department of Corrections was not even aware of these “reparations,” and their appropriation was obviously merely an estimate of the amount of money they would need to reimburse employees without regard to the memorandum. The departmental report furthermore states that they would have paid and did have money to pay this expense if it had been permissible to pay it, which clearly indicates that the sum of money was allocated without regard to the memorandum of understanding and did not take that memorandum into consideration.

Claimant indicates that he has copies of letters and papers on in-service training which would substantiate the on-going problem of difficulty of taking vacation days in his former department. Unfortunately, the Court has not been furnished with any of these papers, and must find his claim unsubstantiated.

Wherefore, it is hereby ordered that this claim be, and hereby is, denied.


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    (No. 77-CC-2225
    Allen J. Robertson, Richard A. Robertson and Lenore A. Robertson, Claimants, v. The State of Illinois, Respondent.

      Opinion filed April 14, 1983.

    Robert W. Schmieder, for Claimants.
    Neil F. Hartigan, Attorneys General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimants in this cause are Allen J. Robertson, Richard A. Robertson and Lenore A. Robertson. On September 18, 1977, Allen J. Robertson and his mother, Lenore A. Robertson, were involved in an accident on U.S. Route 66 (temporary Interstate 55) while driving north to Chicago. The accident took place 10 to 15 miles north of Pontiac, Illinois, near Odell, Illinois.

Allen J. Robertson was returning to school at Northwestern University. He, his mother, and another friend, Gary Willard, left the Belleville, Illinois, area at approximately 7:00 a.m. Allen J. Robertson was driving, his mother was seated in the front seat next to her son, and next to her was Garry Willard.

The car was in the right hand lane of a four-lane highway and was travelling at approximately 55 miles per hour. The driver suddenly noticed a large hole in the pavement and veered to his left to avoid the hole, which he did. The car, however, skidded and in veering to the right, it left the roadway, hit a shoulder which sloped downward away from the highway, then left the shoulder and went into a ditch, striking a telephone pole.

The hole in question in the right hand lane of the highway was approximately eight inches deep, and 2 1/2 to 3 feet in diameter. There was evidence that an attempt had recently been made to patch this hole.

An employee of the State of Illinois, William Hog-gins, who was in charge of highway maintenance on this portion of the highway, testified that this hole had been patched the previous Thursday, September 13. He testi-. fied it had been raining that day and they had to drive some distance to obtain a hot mix. Throughout this whole section of road, the State of Illinois was engaged in a program of permanent patching. The maintenance worker testified that on September 13 he could not do a permanent patching job on this particular hole because of the rain and that he did not cut out the sides and make them straight. He further stated he used a hot mix on this date but that it was not recommended with moisture in the ground, but stated he felt he could get by with it. He admitted that when you do a temporary patching it will fail within a short period of time. He further stated he went back to check on it on Friday, because he knew that this type of patching would fail.

A Joseph Marek, who was in charge of field maintenance, stated that when you do temporary patching, you use a cold mix. He testified when you use a hot mix, you use a roller, and when you use a cold mix, you tamp it or run your truck over it. However, on this hole, they used a hot mix, but tamped it contrary to accepted practice. Marek further testified that with reference to the shoulder, it was 12 feet wide, but as one went away from the concrete highway toward the ditch, the shoulder itself dropped approximately 11/2 feet. Marek acknowledged that a roller is a better method of compacting a hot mix as opposed to tamping it down. He also admitted that there was a problem with this section of the road prior to September 18. Marek further testified that despite the fact there were known maintenance problems, there were no warning signs advising of the condition of the road or warnings to reduce speed, and that this section of the highway was in very poor condition.

The evidence shows that the day after the accident, the hole was temporarily patched with a cold mix. No one apparently knew how long the hole had been in existence. There were apparently no warning signs of the sloping shoulder, no warning signs to reduce speed, and no warning signs indicating the condition of the shoulder or the road.

As a result of the accident, Allen Robertson sustained damages to his bicycle and rack, valued at $60.00, Lenore Robertson sustained a cut on the lid of her eye, a broken toe and a bruised knee, and her total expenses were: ambulance, $78.20; hospital, $115.40; lodging, $59.09, Dr. Hipskind, $35.00; towing, $55.00; storage, $9.00; and lost wages, $555.00, and Richard Robertson stated his 1970 Ford automobile was completely destroyed and was valued at $2,000.00.

Richard Robertson testified that he was informed by Joseph Marek that when the State learned of this accident, they closed off this lane of the highway.

This Court has previously held that the State has a duty to maintain its streets in a reasonably safe condition. This Court has also held that the State has a duty to the public to exercise reasonable care in establishing, maintaining, and supervising its parks and highways. (See Murray v. State, 24 Ill.Ct.Cl. 399.) The State also has a duty to warn of a danger that exists which could not be discovered by the public. See Hansen v. State, 24 Ill. Ct. Cl. 102.

There are several Court of Claims cases that have held the State to be guilty of negligence in maintaining highways, among the first being Hoffman v. State, 27 Ill. Ct. Cl. 111, where a missing stop sign was the proximate cause of the accident.

In Kerns v. State of Illinois, 21 Ill. Ct. Cl. 443, the State was held liable because it had actual constructive knowledge that the general area of the road was pockmarked with chuckholes. The same holding was made in Scudiero v. State, 26 Ill. Ct .CL 457. In Sisco v. State, (1963), 24 Ill. Ct. Cl. 306, this Court held that the State was liable for damages caused by a pothole even though the hole had been patched at least once. In this case, as the present case, Claimant’s car fell into a pothole on a State road.

It is apparent to this Court that the State of Illinois was negligent in several ways:

1. It used a hot patch, or a hot mix, on a rainy day, when it was not recommended;

2. In using a hot patch, it had no roller to obtain compaction when it knew or should have known that compaction would have prevented deterioration of roadway;

3. It failed to warn of the condition of this roadway, although it had knowledge that this was a very dangerous section of highway due to potholes. It also failed to warn motorists to reduce their speed, and in fact, allowed them to maintain travel at the maximum speed limit of 55 m.p.h.;

4. It failed to warn of the condition of the shoulder of the road, and failed to inspect the highway, even though it knew that it had applied a hot mix in rainy weather, and that it was subject to deterioration. It also negligently and improperly applied the hot mix by not cutting off the sides of the hole to smooth it out, since smooth sides prevent further deterioration; and

5. It failed to block off the highway.

This Court has held on many occasions that before the Claimant can recover, he must show that he was free from contributory negligence, that the State was guilty of negligénce, and that Respondent’s negligence was the proximate cause of the accident.

It is the opinion of this Court that Claimant was free from contributory negligence, that the State was guilty of contributory negligence, and that the State’s negligence in failing to warn Claimant of the dangerous condition of the highway was the proximate cause of the accident.

Award is hereby entered ini favor off Claimant, Allen J. Robertson in the amount of $60.00; Claimant, Richard A. Robertson in the amount of $2,000.00; and Claimant, Lenore A. Robertson in the amount of $1,500.00.


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    (No. 78-CC-0248
    Ernest T. Reynolds and Theresa Reynolds, Co-Administrators of the Estate of Aileen Reynolds, Claimants, v. The State of Illinois, Department of Mental Health & Developmental Disabilities, Respondent.

      Opinion filed May 23, 1983.

    Richard J. Friedman, Sr., and Eugene T. Sherman, for Claimants.

      Neil F. Hartigan, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim, sounding in tort, seeks damages for the wrongful death of Claimant’s intestate who committed suicide, and is based on the alleged negligence of Respondent. The Claimant seeks relief based on two theories of recovery. The first theory is a wrongful death count which alleged that the State had negligently failed to look after, guard or care for the decedent. Claimant further alleged that this negligence was the proximate cause of decedent’s death by suicide. The second theory of recovery alleges res ipsa loquitur regarding the decedent’s death.

The evidence shows that Aileen Reynolds was examined and admitted to the Illinois State Psychiatric Institute (ISPI) on July 3, 1976 at or around 5:00 a.m. This was a holiday weekend and the inpatient units were closed for the three-day period.

At the time of the admitting examination, Dr. Marta Banegis noted under the chief complaint section in her admission notes as follows:

Patient conscious, alert, not oriented to time, said it was March 7, 1976; oriented to place and person — constantly preaching the Bible; doesn’t respond in another way. Has not eaten for the past four (4) days, has not slept six (6) hours in four (4) days. Has been sleeping in different places — does not cooperate to permit interpretation. Poor judgment — denies hallucinations. Denies usage of drugs.

The doctor then made a provisional diagnosis of acute ■ psychotic episode and described Aileen’s prognosis as good.

Decedent was assigned to an unlocked and minimally staffed ward which was described by the nurse in charge, Nurse Grimes, as an open unit, a therapeutic environment, a unit that was the least restrictive as possible. Over the course of the 34 hours in which the decedent was present in the unit, decedent attempted to escape on several occasions. Finally, on July 4, 1976, decedent escaped from ISPI.

On the morning of July 6, 1976, decedent was observed to jump in the Chicago River, force her head under the water and drown.

The burden of proof is on the Claimant to warrant the imposition of liability and negligence against the hospital. The State, by the Department of Mental Health, owes its patients the duty of protection and must exercise reasonable care toward the patients as the patient’s known condition may require including safeguarding of a patient from dangers due to mental incapacity when such mental incapacities are known or by the exercise of reasonable care ought to be known. The State is not, however, an insurer of the safety of the patients under the care of its Department of Mental Health. Estate of Gianos v. State (1975), 30 Ill.Ct.Cl. 373.

It is the opinion of this court, that the Claimant did not sustain its burden and has failed to prove a negligent act committed by the State in regard to the manner in which it looked after, guarded or cared for Aileen Reynolds. The Claimant further failed to prove a causative factor between any alleged negligence and the subsequent death by suicide by Aileen Reynolds. (Dimitrijevic v. Chicago Wesley Memorial Hospital (1968), 92 Ill.App. 2d 252, 236 N.E. 2d 309.) For the foregoing reasons, the Claimant’s theory of recovery under negligence for the wrongful death of the decedent is denied.

Furthermore, the doctrine of res ipsa loquitur has no application to the factual basis of this case. Therefore, Claimant’s second theory of recovery also fails.

For the above stated reasons, the claim must be and is hereby denied.