VOLUME 47 Containing Cases in Which Opinions Were Filed and Orders of Dismissal Entered, Without Opinion For: Fiscal Year 1995—July 1, 1994-June 30, 1995
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REPORTS OF Cases Argued and Determined IN THE COURT of CLAIMS OF THE STATE OF ILLINOIS VOLUME 47 Containing cases in which opinions were filed and orders of dismissal entered, without opinion for: Fiscal Year 1995—July 1, 1994-June 30, 1995 SPRINGFIELD, ILLINOIS 1996 (Printed by authority of the State of Illinois) (X604527—300—7/96) PREFACE The opinions of the Court of Claims reported herein are pub- lished by authority of the provisions of Section 18 of the Court of Claims Act. 705 ILCS 505/1 et seq., formerly Ill. Rev. Stat. 1991, ch. 37, par. 439.1 et seq. The Court of Claims has exclusive jurisdiction to hear and de- termine the following matters: (a) all claims against the State of Illi- nois founded upon any law of the State, or upon any regulation thereunder by an executive or administrative officer or agency, other than claims arising under the Workers’ Compensation Act or the Workers’ Occupational Diseases Act, or claims for certain expenses in civil litigation, (b) all claims against the State founded upon any contract entered into with the State, (c) all claims against the State for time unjustly served in prisons of this State where the persons im- prisoned shall receive a pardon from the Governor stating that such pardon is issued on the grounds of innocence of the crime for which they were imprisoned, (d) all claims against the State in cases sound- ing in tort, (e) all claims for recoupment made by the State against any Claimant, (f) certain claims to compel replacement of a lost or destroyed State warrant, (g) certain claims based on torts by escaped inmates of State institutions, (h) certain representation and indemni- fication cases, (i) all claims pursuant to the Law Enforcement Offi- cers, Civil Defense Workers, Civil Air Patrol Members, Paramedics, Firemen & State Employees Compensation Act, (j) all claims pur- suant to the Illinois National Guardsman’s Compensation Act, and (k) all claims pursuant to the Crime Victims Compensation Act. A large number of claims contained in this volume have not been reported in full due to quantity and general similarity of con- tent. These claims have been listed according to the type of claim or disposition. The categories they fall within include: claims in which orders of awards or orders of dismissal were entered without opin- ions, claims based on lapsed appropriations, certain State employees’ back salary claims, prisoners and inmates-missing property claims, claims in which orders and opinions of denial were entered without opinions, refund cases, medical vendor claims, Law Enforcement Of- ficers, Civil Defense Workers, Civil Air Patrol Members, Paramedics, Firemen & State Employees Compensation Act claims and certain claims based on the Crime Victims Compensation Act. However, any claim which is of the nature of any of the above categories, but which also may have value as precedent, has been reported in full. ii OFFICERS OF THE COURT JUDGES ROGER A. SOMMER, Chief Justice Morton, Illinois Chief Justice - January 15, 1993— Judge - February 26, 1987—January 15, 1993 RANDY PATCHETT, Judge NORMA F. JANN, Judge Marion, Illinois Chicago, Illinois March 26, 1985— May 1, 1991— RICHARD MITCHELL, Judge ROBERT FREDERICK, Judge Jacksonville, Illinois Urbana, Illinois February 24, 1993— June 1, 1992— ANDREW M. RAUCCI, Judge DAVID A. EPSTEIN, Judge Chicago, Illinois Chicago, Illinois November 9, 1994— June 20, 1994— February 28, 1984—June 1, 1992 To align rule MATTHEW J. FINNELL JOSEPH MICHAEL MATHIS, JR. Court Administrator Staff Counsel Springfield, Illinois Springfield, Illinois COMMISSIONERS BRUNO P. BERNABEI (Died 6-20-95) JERRY DOUGLAS BLAKEMORE Spring Valley, Illinois Chicago, Illinois *See Memorial, p. vi. MICHAEL FRYZEL STEPHEN CLARK Chicago, Illinois Belleville, Illinois J. PATRICK HANLEY JOSEPH P. GRIFFIN (Retired 12-31-95) Chicago, Illinois Chicago, Illinois MICHAEL J. KANE WATTS C. JOHNSON (Retired 4-30-96) Chicago, Illinois Princeton, Illinois EVERETT McLEARY STEPHEN PACEY Chicago, Illinois Paxton, Illinois RICHARD H. PARSONS (Resigned 8-25-95) ROBERT RATH Peoria, Illinois Harrisburg, Illinois ELIZABETH M. ROCHFORD THOMAS STERNIK Lincolnwood, Illinois Chicago, Illinois THEODORE WEINBERG (Died 5-31-96) JEFFREY WHIPPLE Chicago, Illinois Lake Forest, Illinois GEORGE H. RYAN Secretary of State and Ex Officio Clerk of the Court January 14, 1991— KATHERINE A. PARKER CHLOANNE GREATHOUSE Deputy Clerk and Director Deputy Clerk and Director Springfield, Illinois Springfield, Illinois March 1, 1995— January 1, 1984—February 28, 1995 iii CASES ARGUED AND DETERMINED IN THE COURT OF CLAIMS OF THE STATE OF ILLINOIS REPORTED OPINIONS FISCAL YEAR 1995 (July 1, 1994 through June 30, 1995) (No. 77-CC-2021—Claim denied; petition for rehearing denied.) SHIRLEY MAE MCCLELLAN, Administrator of the Estate of CHARLES EDWARD MCCLELLAN, Deceased, Claimant, v. THE STATE OF ILLINOIS, Respondent. Opinion filed August 30, 1988. Order on petition for rehearing filed June 27, 1994. SPOMER & SPOMER (W. C. SPOMER, of counsel), for Claimant. ROLAND W. B URRIS, Attorney General (CLAIRE GIB- SON TAYLOR, Assistant Attorney General, of counsel), for Respondent. PRISONERS AND INMATES—State not insurer of inmates’ safety. The State is not an insurer of the safety of persons imprisoned by the Department of Corrections. SAME—inmate killed in tractor accident—no evidence of negligence or defective equipment—claim denied. A wrongful death claim brought by the estate of an inmate who was killed in a tractor accident while working at a correctional facility was denied, based upon lack of evidence in support of al- 1 2 legations that the inmate had been forced off the road by the operator of a State-owned vehicle, or that the tractor was defective, unusually dangerous, or in violation of applicable State or Federal regulations. OPINION BURKE,J. This cause coming to be heard upon the report of the Commissioner, after hearing before said Commissioner, and this Court being fully advised in the premises, finds that the Claimant is the widow and administrator of the decedent’s estate. The decedent was killed on September 10, 1977, as a result of a tractor accident at the Menard Correctional Center. Claimant brings this action for wrongful death pursuant to section 22—1 of the Court of Claims Act. 705 ILCS 505/22—1. Claimant alleges that at the time of decedent’s death he was exercising due care and caution for the safety of his person. Claimant further alleges that the tractor furnished to decedent was dangerously defective because the brakes were inoperable and it was not equipped with a roll bar and that the Respondent knew or should have known of the tractor’s defective condition. Claimant and the decedent were married December 27, 1976, and no children were born of the marriage. The decedent had five adult children by a previous marriage. Claimant testified that prior to the decedent’s incarcera- tion at Menard Correctional Center on January 10, 1977, the decedent did farm work, construction work and was a minister. Decedent graduated high school and completed two years of college. Decedent earned approximately six thousand dollars ($6,000) in the year preceding his death. Claimant further testified that decedent provided his chil- dren with advice, communication, and financial support. Decedent was a good husband who took care of his home 3 and did repairs. Claimant stated decedent was careful in his habits and had been observed operating tractors in a careful manner in the performance of agricultural pur- suits. Claimant called Chesley W. Stevens as a witness to testify as to the condition of the tractor operated by the decedent at the time of his death. Mr. Stevens operated a welding and fabrication shop in the city of Cairo, Illinois. He had installed roll-over protective devices on tractors, jeeps, and pick-up trucks. Mr. Stevens was familiar with the type of tractor operated by the decedent at the time of his death. The tractor did not have a roll bar. A roll bar protective system could have been affixed or attached to the tractor, and such a system would have cost approxi- mately $300 in labor and materials in 1977. A seat belt could have also been installed on the tractor according to the witness. The witness had attached seat belts and three roll bars on tractors manufactured prior to 1976. The parties stipulated to the admission of certain documents and things in evidence including the depart- mental report identified as Respondent’s exhibit “1.” The scene of the accident could have been viewed from the Menard Psychiatric Unit. Resident David Carlson of that unit claimed to have seen the accident which resulted in McClellan’s death. Carlson did not testify at the hearing in this case. The investigation report reveals that Carlson claimed that a red pick-up truck with a spotlight on top of the cab forced McClellan’s tractor from the road into a deep ditch where it overturned. The internal investigation conducted by the Department of Corrections authorities revealed that the pick-up truck described by Carlson was not used on the day of McClellan’s death. Indeed, there was no institutional vehicle being driven on the farm when McClellan’s death occurred. 4 The Claimant argued in the alternative that liability on the part of the Respondent is established on two addi- tional grounds. The first is that the State did not furnish the decedent a safe place to work and safe equipment. Secondly, the decedent was forced off the farm road by a vehicle owned and operated by the Respondent. As to the Respondent’s second point, prima facie evi- dence of the statement of Carlson is included in the de- partmental report which was admitted as set forth above. The result of the internal investigation with respect to the statement of Carlson was offered and received by this Court in accordance with that stipulation.