( No. 4892-Claimants Awarded $15 v. State of Illinois

On November 20, 1959, claimants filed their verified complaint in this Court. It consists of five counts, being a separate count for each individual claimant.

There appears to be no serious dispute of facts concerning the accident in question. The facts appearing from the evidence offered herein are as follows: On June 13, 1959, at about 12:30 A.M., claimant, Robert Waggoner, was driving a 1953 Dodge, 4-door automobile, which was owned by his father, (claimant, Lyndel K. Waggoner) in a southerly direction on Illinois State Route No. 45 in an area known as LaGrange Road. At 71st Street and LaGrange Road, claim[*131]ant, Robert Waggoner, stopped at a stop light estimated to be about seven blocks north of a bridge known as Canal Bridge, over which said Route No. 45 passes in Willow Springs, Cook County, Illinois. Illinois State Route No. 45 was at the time of the collision a four lane highway, with two lanes for southbound traffic and two lanes for northbound traffic. However, at the time of the collision in question, there was a repair zone extending about one-half mile in length involving the two inner traffic lanes approaching the said Canal Bridge. On the night in question, the two middle lanes of the bridge were in the repair zone, and were sealed off at both the north and south ends by barricades, thus permitting the two outer lanes to be open for traffic, creating one lane traffic in a north and south direction as to the outside lanes.

After stopping at the traffic signal aforesaid, claimant, Robert Waggoner, proceeded south in the inside lane of traffic, and continued in this lane to the place of the accident. Claimant, Robert Waggoner, testified that an automobile moved up along his right side, and drove along his right side to the place of the accident; that he was unable to turn into the outer or right-hand lane as the other automobile was too close to him at all times; and, that he did not have room to move into the outer lane.

As claimant approached the repair zone in question from the traffic signal at 71st Street and LaGrange Road, there were signs placed along the side of the highway as follows, and in the following order: A sign 36 inches square bearing the legend “Road Repairs Ahead, Please Drive Carefully;’’ a sign 3 feet by 3 feet bearing the legend “One Bridge Lane;” a sign 24 inches high and 18 inches wide bearing the legend “Keep to the Right;” a sign 3 feet by 3 feet bearing the legend “One-way Traffic;” and a sign 42 inches wide and 20 inches high bearing the legend “Barri[*132]cade Ahead.” These signs commenced approximately 1,000 feet from the bridge construction area, and were located approximately 200 feet apart going toward the bridge in a southerly direction. They were erected about 18 to 24 inches from the edge of the pavement.

To channel the traffic into the single lane across the bridge, which would be the outer lane, rubber cones were used as markers. These were held down by concrete blocks to prevent them from being displaced. The blocks, which were ordinary concrete building blocks, were used in their natural color, which color was approximately the same color as that of the highway. There was no illumination on the blocks or the cones, and no overhead lights illuminating the area. It was stipulated that the State of Illinois was in full supervision and control of the construction. David Guard, a construction foreman for the Division of Highways, State of Illinois, testified that he supervised the installation and traffic protection system set up around where construction work was in progress on State Kighways, and that rubber cones were used as markers to channel traffic into the single bridge lane, because they were soft, and would not damage the cone or the car, if hit.

As claimant, Robert Waggoner, approached the bridge in question, he was driving his vehicle at a speed between 40 and 50 m.p.h. Riding in the front seat with him was claimant, Mary Ellen Gore, and riding in the back seat was claimant, Guy Matson, and the decedent, Marilyn Rains.

At a point approximately 200 feet from the barricade, which was placed north of the bridge in question, and which sealed off the inner lane, claimant, Robert Waggoner, still driving in the inner traffic lane, struck a concrete block with the left front wheel of his vehicle. The impact blew out the left front tire, and caused the automobile to go out of control and strike the bridge railing. As the automobile struck the [*133] bridge railing, the doors came open, and claimant Gore and said Marilyn Rains were thrown onto the pavement. Claimant Matson had his foot hooked under the back seat, and his body hung out of the door, as the vehicle proceeded onward. Claimant, Robert Waggoner, remained in the automobile until it came to a halt.

As a result of the accident, the evidence reveals injuries and damages as follows: Marilyn Rains was critically injured, and died on June 20, 1959, eight days after the accident. Respondent stipulated that the accident was the cause of her death. Marilyn Rains left surviving her father and her mother, the latter, Lissie Rains, being appointed as Administrator of her estate.

The evidence reveals that Marilyn Rains was 17 years of age, a bright, alert girl who had been an excellent student, and was already registered in college for the following Fall term. She had worked for periods of six months in drive-in theaters and restaurants. She had performed services around her home for both parents, and was to have commenced work at a mail order house the Monday after the accident in question. With monies she earned, she contributed to the support of the family. Her father worked as a barber, and her mother worked in a dress factory. Lissie Rains, as the representative of the estate, claims damages in the sum of $25,000.00.

Mary Ellen Gore, aged 17 at the time of the accident, suffered a brain concussion, and the evidence reveals, through the testimony of her physician who had known her since she was six years old, that she also suffered a traumatic neurosis, which condition the physician described to be permanent. Claimant Gore testified that she is afraid to drive at night, cries a great deal, has difficulty remembering things, and is more irritable than before the accident. Her doctor bill, as a result of the accident, was $50.00. She claims [*134] damages through her father, as next friend, in the sum of $25,000.00.

Guy Matson was treated at the hospital after the accident, and then released. No physician testified as to his injuries. Claimant Matson testified that a doctor told him that a nerve in his back had probably been injured, but that eventually it would go away. He further testified to pain for two or three days after the accident, and stated that his back bothered him when lifting. He further testified that his hair had been falling out since the accident. His medical bills, including X-Rays and drugs, totaled $47.69. He claims damages through his mother, as next friend, in the sum of $25,000.00.

Lyndel K. Waggoner, father of Robert Waggoner, was the owner of the automobile involved in the accident. The evidence shows that a bailment relationship existed between the owner and driver of the automobile at the time of the accident. Lyndel K. Waggoner testified that his car was a total loss, and that the fair cash market value of the car was approximately $300.00. Claimant, Lyndel K. Waggoner, also makes claim for an ambulance bill for $28.00, and doctor and X-Ray bills in a total amount of $65.00 for his son, Robert Waggoner.

Robert Waggoner received a mild compression fracture of the fifth vertebra. There was evidence that the condition caused pain and limitation of movement of the spine, and also the amount and type of work that claimant could do.

He was treated at a hospital after the accident, and then released. His total medicals, including X-Rays, amounted to $55.00. He claims damages through his father, as next friend, in the sum of $25,000.00.

It was stipulated between the parties that none of the claimants in this cause received any money or compensation [*135] from other sources, nor is there any claim pending before any other Court on behalf of any of the claimants.

I

Claimants contend that respondent was guilty of negligence, which proximately caused the injuries and damages, and that they were not guilty of contributory negligence.

Respondent contends that it was not negligent, that it discharged its duties toward claimants by erecting five large, illuminated, reflectorized signs warning of the particular danger, and that claimant’s failure to see the signs was the sole and proximate cause of the accident.

The Court finds that the primary issues are as follows: Was respondent guilty of negligence in maintaining the repair zone in question?

Was the negligence of respondent, if any, the proximate cause, or a proximate contributing cause of the injuries and damages suffered by claimants?

Were claimants, or any one of them, guilty of contributory negligence at the time and place in question?

Was the negligence of any claimant, or claimants, a proximate contributing cause of the injuries and damages sustained by claimants?

From the evidence in this case, it is clear that the State violated its duty by placing concrete blocks approximately eight inches high and six inches thick upon the highway in question, using said blocks in their natural color and without any illumination. A State employee testified that the blocks were used to hoId down the rubber cones, which in turn were used to channel the traffic into a single lane. The cones were used because they were soft, and would not damage an automobile when struck. The State apparently knew that the concrete blocks were likely to be struck by motorists, as a State employee testified that it was necessary to replace [*136] at least fifty or sixty concrete blocks, which were broken up by traffic during the three month period of construction.

The State, at the time of the accident, had no one assigned to make periodic checks to see if the concrete blocks were in place, and had apparently left the repair zone unattended until the Monday following the accident in question. A State witness, Mr. Guard, admitted that some peril existed in placing concrete blocks upon the highway, but attempted to excuse this act by saying that it was the best thing available to hold down the rubber cones. This does not in any way discharge the duty owed by the State to motorists on the highway. The automobile in question struck one of the concrete blocks, which was placed upon the highway by respondent, before it went out of control. The proof indicates negligence on the part of respondent, which was the proximate contributing cause of the accident in question.

The evidence further shows that claimant, Robert Waggoner, was guilty of contributory negligence proximately contributing to the cause of the injuries and damages in question, and he is barred from recovery against the State. (Bloom vs. State of Illinois, 22 C.C.R. 582.)

Claimant, Robert Waggoner, drove approximately 1,000 feet, and passed five warning signs without seeing them.

Yet, he testified that he was watching the road during this period. It would appear from the evidence that these signs were within his range of vision. The law charges a person with the duty of seeing that which is clearly visible and within his range of vision. (Dickinson vs. Rockford Van Orm n Hotel Co., 326 Ill. 686.) Robert Waggoner obviously failed to keep a proper lookout for traffic signs placed along the highway. This negligence on his part contributed to cause the accident in question.

The evidence shows that the claimant passengers and the claimant owner of the damaged automobile were free [*137]

I

from contributory negligence. There can be no contributory negligence in the contemplation of the law where there is an exercise of ordinary and reasonable care. (Lasko vs.

Meier, 394 111. 71.) It is not seriously contended in this cause by respondent that there is any lack of due care on the part of claimants other than Robert Waggoner, nor is there any evidence of their lack of due care in the record.

The driver, Robert Waggoner, had complete control over the operation of the vehicle in question, and his negligence cannot, of course, be imputed to the guest passengers. (Lasko vs. Meier, 394 Ill. 71.) Permissive use by a son of his father’s car creates a bailor-bailee relationship between Lyndel K. Waggoner and his son, Robert. The negligence of Robert is not imputable to his father. (Gilman vs.

Lee, 23 Ill. App. 2d 61.) Lyndel K. Waggoner may, therefore, recover for damages to his automobile. As to damages expended for medicals claimed to be expended for his son, Robert Waggoner, it appears that in Count 11, Par. 10 of the complaint filed herein, that Lyndel K. Waggoner has set over and transferred any right to recover for said medicals to his son, Robert Waggoner, and this claim is considered under Robert Waggoner’s claim for injuries: From a consideration of all the facts in the case, we find : 1. That respondent was guilty of negligence, which was a proximate contributing cause of the injuries and damages in question. 2. That the claimant driver, Robert Waggoner, was guilty of contributory negligence, which proximately contributed to the cause of the accident in question. 3. That the other claimants in this cause were free of any contributory negligence, which was a proximate cause of the injuries and damages in question.

[*138] The duty of the State to motorists using public highways under its control is to exercise ordinary care to keep them reasonably safe for such use, or to warn of unsafe conditions existing. ( Rickelman vs. State of Illinois, 19

C.C.R. 54.)

The evidence of damages is not disputed, and we find that damages have been proven by all claimants.

The claim of Robert Waggoner, by Lyndel K. Waggoner, his father and next friend, is, however, denied because of his failure to prove that he was in the exercise of due care for his own safety at the time of the accident.

The claim of Lyndel K. Waggoner for damages to his car is allowed, and an award, therefore, is made to claimant, Lyndel K. Waggoner, in the sum of $300.00.

We find that Guy Matson, formerly a minor, but now of age, suffered damages in the amount of $547.69, and an award, therefore, is made to claimant, Guy Matson, in the sum of $547.69.

We find that Mary Ellen Gore Skvier, formerly a minor, but now of age and married, suffered damages in the amount of $750.00, and an award, therefore, is made to Mary Ellen Gore Skvier, in the sum of $750.00.

Lastly, we find that the claim of Lissie Rains, as Administrator of the Estate of Marilyn Rains, deceased, be allowed to the extent of $14,000.00, and an award, therefore, is made to claimant, Lissie Rains, as Administrator of the Estate of Marilyn Rains, deceased, in the amount of $14,000.00.

[*139] (No. 4 9 1 4 4 l a i m a n t awarded $360,000.00.)

E. H. MARHOEFER, J R ., Co., AN ILLINOIS CORPORATION, Claimant, us. STATE OF ILLINOIS, Respondent.

Opinion filed May 28, 1965.

HEALY, NEWBY,BARRETT AND HEALY, Attorneys for Claimant .

WILLIAM G. CLARK, Attorney General; LESTER SHAPIRO AND ERWIN H. GREENBERG, Special Assistant Attorneys General, for Respondent.

CoNmcTs-ext7a compensation allowed under. Where evidence disclosed that respondent was solely responsible for delays and change of plans, which prevented claimant from completing his contract, an award will be made for increased costs incurred by claimant.

PERLIN,C.J. This action was instituted by claimant, E. H. Marhoefer, Jr., Co., an Illinois corporation, for damages in the sum of $493,544.88resulting from alleged unreasonable delays in completion of a construction contract, which was awarded to claimant by the State of Illinois. At hearing, claimant increased its ad damnum to $591,695.60.

At the conclusion of a lengthy hearing, during which the parties submitted a great number of exhibits, books and documents, the following stipulation was entered into by and between the attorneys for claimant and the Attorney General of Illinois representing respondent :

STIPULATION OF FACT

“It is hereby stipulated by and between the parties hereto, by their respective attorneys, after trial of the within cause before the Special Commissioner appointed to hear same, and upon presentation of all the evidence both oral and documentary, as follows: “1. That the Court has jurisdiction of the parties to and the subject matter of this cause. “2. That the complaint was brought under Chap. 37, Par, 439.8 of the 111. Rev. Stats. “3. That claimant is in the general contracting business, and has been [*140] so engaged for many years last past, and has offices at 2424 North 25th Avenue, Franklin Park, Illinois. ‘4. That claimant is the sole owner of the claim herein alleged against the State of Illinois, and that no other person or corporation has any interest in said claim. “5. That, on or about August 21, 1956, claimant as a general contractor submitted to the Department of Public Works and Buildings of the State of Illinois its proposal for the general work for the Illinois Psychiatric Institute State Hospital to be erected at 1601-1659 West Taylor Street, Chicago, Illinois. “6. Prior to the submission of said proposal, the respondent required bidders to include in same certain allowances for hardware, which allowance was included in claimant’s proposal submitted August 21, 1956 to respondent. “7. That claimant’s proposal was accepted, and a contract was entered into between claimant and respondent, dated September 18, 1956, pursuant to which contract claimant agreed to do the work described therein and in the plans and specifications and other contract documents for a total contract amount of $4,259,524.00 comprised as follows: ‘SCOPE OF WORK: ‘Proposal No. 1 for the General Work for the Illinois Psychiatric Institute State Hospital (Eleven Story Building), 1601-1659 West Taylor Street, Chicago, Illinois, as shown on the drawings, and as speciEed, the sum of. .$4,297,924.00 ‘Proposal No. 9 for the General Work (Eleven Story Building )-in event that the electrically controlled locks for the Patients’ Rooms and Stairway Doors are not installed, thus changing the special shaped door frames for these doors to standard door frames, and changing the locks to standard locks, as shown on the drawings, and as specified, except that the electrically operated locks shall be provided for Door B to Stair W, Door B to Stair N, Door B to Stair S, and Door H2 from Corridor 500 W to Public Corridor 500, in all stones from the 5th to the Ilth, inclusive, is accepted and authorized, deduct the sum of. .. .. .... .. .. .... ............... 43,700.00 $4,254,224.00 ‘Proposal No. 11 for the General Work-in event that the installation of ’Detention Screens’ in lieu of ‘Protective Screens’ at all windows where the protective screens are indicated, as shown on the drawings, and as specified, is accepted and authorized, add the sum of.. 5,300.00 $4,259,524.00’ “8. That said contract originally provided a hardware allowance of [*141] $168,000.00, which said amount was modified by Addendum No. 2 in the amount of $38,000.00 from said hardware allowance by the elimination of certain locks and other hardware, all as is more particularly set out in Proposal No. 9, which contained a deductive hardware allowance of $38,000.00. That the final allowance for hardware provided for under the contract documents amounted to $168,000.G0 less the $38,000.00 covering the change in locks and other hardware requirements bringing the net hardware allowance under the contract documents to $130,000.00. That said net hardware allowance of $130,000.00 was the true and correct amount of same, and is the amount used by respondent in computing the hardware allowance credits and debits with respect to claimant’s payments.

That, claimant’s claim that it is entitled to $38,000.00 because of an error of the respondent in computing the correct amount of said allowances after giving consideration to the deductive Proposal No. 9 is not supported by the evidence, and, therefore, the Court finds in favor of respondent and against claimant with respect to said claim for $38,000.00 hardware allowance alleged credit. “9. That claimant commenced construction of the building pursuant to the plans and specifications and other contract documents, and experienced certain small delays in pouring the first floor concrete slab, which said delays were caused by contractors of respondent, but that said delays were not unreasonable, and, therefore, claimant is not entitled to reimbursement from respondent for additional costs incurred by reason of these small delays. “10. That respondent unreasonably delayed claimant in choosing a hardware supplier, and in approving the finished hardware schedules required by the metal door frame and metal door manufacturer in order to properly and promptly manufacture said door frames and doors. That because of this delay the metal door frames and doors could not be manufactured in time to meet the progress schedule of claimant, and that this in turn interfered with the sequence of claimant’s work on the interior masonry walls of the project, and in so doing decreased efficiency of performance of said work by claimant. That these delays were without fault on the part of claimant or its subcontractor, suppliers, employees or agents but solely the fault of respondent, and said delays were unreasonable in extent.

That, as a result of said delays, claimant was obliged to incur additional costs for both direct and indirect labor, equipment rental expense, and overhead expenses in the total amount of $197,961.75, and is entitled to reimbursement from respondent for said amount. “11. That during the course of the construction respondent changed the design of windows in the curtain wall of the building from center pivoted windows to double hung windows. That this change was not provided for in the plans and specifications or other contract documents on which claimant originally bid, and was not made a part of it until on or about April 26, 1957 after all the engineering and design of the curtain wall and its center pivoted windows, as originally required by the plans and specifications and other contract documents, had been completed. That because of this change, which was required by respondent, all the engineering and [*142] detailed computations and drawings had to be re-calculated and re-drafted, and claimant Iost its place in the manufacturing schedule of its supplier.

The delays entailed by all of the foregoing, which were due to no fault of claimant, but due solely to the fault of respondent, caused claimant additional costs in direct and indirect Iabor, equipment rental expense, and overhead, all of which would not have had to have been incurred by claimant had not the change in window design from center pivoted to double hung windows been made by respondent. That these delays were unreasonable in extent, and caused change of sequence of work, and reduced efficiency in the performance thereof by claimant. That by reason of the foregoing claimant was further damaged in the amount of $125,332.57 for additional costs, which claimant had to incur because of said change of window design, which would not have had to have been incurred had there been no such change, and claimant is, therefore, entitled to be reimbursed for said additional costs in said amount by respondent. “12. That claimant was further delayed by respondent because of several smaller changes in the plans and specifications from those provided for in the plans and specifications. That one of these delays involved the construction of an ambulance entrance canopy. That a further delay occurred when respondent decided to construct a basement passageway, and then later abandoned this proposed construction. An additionaI delay occurred when changes were made in the x-ray room design, which held up completion of other work in the area. A further delay occurred when respondent changed the original plans and specifications by requiring claimant to construct bases for nurses’ cabinets in the nurses’ stations throughout the eleven story hospital building, and a further delay was caused by respondent when it required claimant to install and construct lightweight concrete locker bases for 356 lockers made of metal. That all of the foregoing 5 delays were unreasonable, and because of same work was held up, which could have been finished earlier had not said delays occurred. That as a result claimant was obliged to incur additional expense for direct and indirect labor, equipment rental and overhead, and, since this was towards the end of the performance of the entire job, respondent was responsible for increased costs due to escalation of direct labor by reason of an increase in union rates required to be paid for same. That the work that was held up could have been performed before these rates went into effect had not such delays occurred. That none of these delays were the fault of claimant, its subcontractor, suppliers, employees or agents, but were solely caused by respondent, and said delays were unreasonable. That the additional costs incurred by claimant due to these 5 delays, which would not have had to have been incurred by it were it not for said delays, amounts to $31,210.57, and claimant is entitled to reimbursement for said amount from respondent. “13. That, by reason of all of the above and foregoing delays, additional insurance premiums had to be paid for the total period of said delays.

That the additional insurance premiums for this period of time, which had to be paid by claimant, but which would not have had to have been paid [*143] were it not for such delays, amounts to $5,495.11. That claimant is entitled to be reimbursed by respondent for said amount. “14. That a flood occurred in a construction project known as the Pediatric Building, which was being constructed by Pathman Construction Company, a direct contractor of respondent. That an exceptionally heavy rainfall occurred on the night of April 27, 1959 and in the early morning of April 28, 1959. That, as a result of said rainfall, a flood occurred in the Pediatric Building, flowed into the Illinois State Psychiatric Hospital, and caused certain damage therein. That respondent is not responsible to claimant for said flooding or for the damage occasioned thereby, and claimant is, therefore, not entitled to any reimbursement from the State of Illinois for said flood damage. “15. That claimant has included in its claim additional financing costs incurred by it because of respondent’s withholding of the claimant’s retention money, and further for additional financing costs due to the failure of respondent to pay the claims involved in this proceeding. That claimant is not entitled to any payment from respondent for either of these items of alleged damage. “16. That claimant performed all construction work required under the terms and conditions of the plans and specifications and other contract documents, and that said work was accepted and approved by respondent.

That claimant was not reimbursed for any of the above and foregoing claims asserted by it against respondent. “17. That, in summary, claimant is entitled to be reimbursed from respondent for the following amounts, and only those amounts: ‘Expenses incurred by claimant because respondent failed to properly coordinate the approval of certain finished hardware schedules and the choosing of a supplier for such hardware, which expenses claimant would not have had to incur except for delays caused by such failure .......................................... $197,961.75 ‘Expenses incurred by claimant because respondent changed the design of windows from center pivoted windows to double hung windows, which claimant would not have had to incur except for delays caused by such change .................................... 125,332.57 ‘Expenses incurred by claimant because of numerous changes and additions in the work to be done toward the end of the construction period, which would not have had to have been incurred except for the delay caused by such changes and additions.. ..................... 31,210.57 Additional insurance premium expense due claimant caused by respondent’s delays. ....................... 5,495.11 TOTAL. ........................... $3f30,000.00’ “It is further stipulated by and between the parties by their respective attorneys that the filing of the briefs and abstracts; and all notices with respect thereto, be and the same are hereby waived, and that a Judgment [*144] Order be entered in the amount of THREE HUNDRED SIXTY THOUSAND, AND N0/100 ($360,000.00) DOLLARS in favor of claimant and against respondent.”

Also submitted into the record by the Attorney General as a Report of the Department of Public Works and Buildings is a communication from the Director of said Department, dated May 21, 1965, which is as follows: “Honorable William G . Clark

Attorney General

State of Illinois

160 North La Salle Street

Chicago, Illinois

Re: Claim of E. H. Marhoefer, Jr., Co. vs. State of Illinois, Illinois Court of Claims #4914 Dear Mr. Clark: After thoroughly reviewing the above claim on an extensive examination of the facts and circumstances surrounding same and considering the evidence presented at the trial of the case involving said claim, it is hereby acknowledged that the Department of Public Works and Buildings owes the sum of $360,000.00.This amount is arrived at after eliminating all amounts claimed, except it is based on delays which we feel are actionable.

Very truly yours, /s/ FRANCIS S. LORENZ

Director”

In view of the stipulation of the parties hereinbefore in toto set forth, supported by the Report of the Department of Public Works and Buildings hereinabove cited, it is the opinion of this Court that claimant be awarded damages in the sum of $360,000.00.