H Enry Bazzoli v. State of Illinois

This matter coming to be heard on the joint stipulation of the parties, due notice having been given and the Court being fully advised in the premises, we find as follows:

The instant claim arises from damage sustained by Claimant’s automobile. The parties have met before the commissioner in several pretrial conferences and have agreed to settle the matter for $610.00. This figure appears to be reasonable and fair, and seems to have been reached after considerable deliberation.

The Court is not bound to accept such stipulations, but, at the same time, it hesitates to interpose a controversy between parties where none appears to otherwise exist. Where, as in the instant claim, the settlement appears to be reasonable and fair, and entered into with full knowledge of the facts and the law, we find no reason not to honor it.

Claimant is hereby awarded $610.00 in full and final satisfaction of the instant claim.

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(No.8l-CC-0047-Cla1m dismissed.)

M A RY BODINE, Claimant, v. THE STATE OF ILLINOIS, Respondent.

Order filed March 18, 1983.

MANION,JANOV, EDGAR & DEVENS, LTD., for Claimant.

NEIL F. H ARTIGAN, Attorney General (S U E MUELLER, Assistant Attorney General, of counsel), for Respondent.

PERSONAL INJunu-untimely notice-claim dismissed. Claimant’s action for personal injuries was dismissed for failure to comply with requirement of Court of Claims Act that notice of accident be given to clerk of Court of Claim5 and Attorney General and that notice contain certain specific information, ‘is notice provided by Claimant did not contain all of the required information and was not timely filed, notwithstanding Claimant’s contention that \ribstantial compliance was sufficient.

NOTICE-notice requirement not waived by State employees. Where Claimant’s attorney sent letters to certain State officers concerning claim, but failed to file timely and proper notice of claim with clerk of Court of Claims and Attorney General, claim was barred and case would be dismissed, notwith\tanding contention that actions of State officers waived notice requirement or operated as estoppel, as no State officer has authority to waive or arrest the running of limitations period in favor of State.

ROE, C. J.

This cause coming on to be heard on the motion of Respondent to dismiss, and the response thereto filed by Claimant, due notice having been given, and the Court being fully advised in the premises;

This is an action sounding in tort for compensation for personal injuries sustained by Claimant allegedly caused by one or more acts of negligence by the Respondent. Respondent moved for dismissal of the claim based on Claimant’s alleged failure to comply with section 22-1 of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.22-1). Said section requires that a claimant seeking compensation for personal injuries against the State of Illinois shall file within six months of the date of the injury a notice of intent to commence an action for personal injuries with the office of the Attor[*778]ney General and also in the office of the clerk of the Court of Claims and that notice shall include the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, a brief description of the accident, and the name and address of attending physicians, if any.

As pointed out in Respondent’s motion, the notice attached to Claimant’s complaint is clearly deficient in that it was not filed with the Attorney General’s office or the clerk of the Court of Claims and that it does not contain all of the information required by section 22-1. Section 22-2 of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.22-2) provides that where notice is not properly filed pursuant to section 22-1, any claim for personal injury shall be forever barred from further action in the Court of Claims for such personal injury. Therefore, the claim herein must be dismissed with prejudice.

In her memorandum in opposition to the motion to dismiss and her supplemental memorandum Claimant argues three points. First, it was argued that the cases in this Court which have construed sections 22-1 and 22-2 of the Court of Claims Act have indicated substantial compliance is the test of sufficiency of compliance and that Claimant has met that burden. Substantial compliance was said to have been met based upon an affidavit attached to the memorandum. The affidavit, by one of Claimant’s attorneys, recites that one week before the six-month period was. to expire, affiant wrote to Robert E. Kronst, district engineer for District 5 Highway, giving in the letter notice of the accident, time and place of the accident, a description of the injuries, a description of his theory of liability in the case, and an offer [*779] to discuss settlement. By letter dated January 10, 1980, and received shortly thereafter, Mr. Kronst directed af

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fiant to refer all claims to Robert C. Graham, Bureau of I Claims, Department of Transportation in Springfield. By I letter dated January 11, 1980, affiant wrote Mr. Graham a

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letter containing the same information that was in the I

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previous letter. By letter dated February 10, 1980, and I1 received shortly thereafter, a Mr. H. D. Piland, claims

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supervisor, responded denying the claim and suggesting I that Claimant file in this Court. By that time a little more I than three weeks had passed beyond the period for filing I notice.

While Claimant is correct that certain previous cases I have indicated that under certain circumstances claimants I have not been required to strictly comply with the section in minute detail with respect to the contents of the I notices, Claimant did not cite any cases nor could we find any which allowed a claimant to forego the filing of I a notice with both the Attorney General and the clerk of the Court of Claims as Claimant has done here. The wording of the statute is specific. It provides that notice shall be filed in the office of the Attorney General and I

, also in the office of the clerk of the Court of Claims. In the case of Thomas v . State (1960), 24 Ill. Ct. C1. 137, the Claimant allegedly gave notice to two employees of the Department of Conservation but -did not file a written notice with the clerk of the Court of Claims and the I Attorney General, as required by the statute. In finding I against the Claimant, the Court pointed out:

“It is obvious that claimant’s position is untenable. The State of Illinois

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operates through many departments, and employs thousands of employees. It may well be that a report of the accident was filed with the Department of Conservation, but such a report could not be regarded as a notice to the Attorney General and the Clerk of this Court.” Thomas, supra, at 139.

In Munch v . State (1966), 24 Ill. Ct, C1. 313, the Claimant urged the Court to deny a similar motion to

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[*780] dismiss raised by the Respondent on the grounds that it had notified at least two agencies of the State of Illinois of the accident within 30 days of the occurrence although no notice was filed with the clerk of the Court or the Attorney General. The personal injury counts of the claim were summarily dismissed.

It is also well established that service of the notice on either the Attorney General or the clerk of the Court but not both will not suffice in meeting the requirernents of the statute. (See Byrne o. State (1980), 34 Ill. Ct. C1. 248.) In the instant case we hold that Claimant has not complied with the notice statute.

Prior to the filing of Claimant’s supplemental memorandum, Respondent cited the case of McChesney and Baker 0. State (1918), 4 Ill. Ct. C1. 5, for the proposition that a State officer is without the power to waive or arrest the running of the statute of limitations on a claim against the State. In that case it was alleged that a letter sent to the Claimants by the State Auditor constituted a new promise to pay or an acknowledgment of the debt thereby arresting the running of the statute of limitations. On this issue the specific holding of the Court was as follows:

“We hold that this letter does not constitute an acknowledgment of the debt or a promise on the part of the State of Illinois, to pay this claim, and that James J. Brady, Public Auditor, had no authority to make a new promise for the State, or to, in any way arrest the running of the Statute of Limitations. If he did make such promise, that the contents of the letter would be insufficient to constitute a new promise or acknowledgment, if said Brady had authority to make a new promise on behalf of the State.

We hold that in a Court of Claims it is not necessary that the Statute of Limitations should be specially pleaded; that the Attorney General has no authority under the law, in any manner to waive or arrest the running of the Statute of Limitations in favor of the State.” Baker, supra, at 6, 7.

In reaching that conclusion the Court applied the rule announced in Finn o. U.S., 123 U.S. 227, in which Justice [*781] Harlan, who delivered the opinion of the Court, stated as follows:

“The general rule that the limitation does not operate by its own force as a bar, hut is a defense, and that the party making such ii defense must plead the Statute, if he wishes the benefit of its provisions, has no application to suits in Court of Claims against the United States. An individual may waive such a defense, either expressly or by failing to plead the Statute, but the Government has not expressly or by implication, conferred authority upon any of its officers to waive the limitation imposed by the Statute upon suits against the United States in a Court of Claims. Since the government is not liable to be sued as of right, by a claimant, and since it has consented to a judgment being rendered against it only in certain classes of cases brought within the prescribed period after the cause of action accrued, a judgment in the Court of Claims for the amount of the claim, which the record or evidence shows to be barred by Statute, would be erroneous.”

In Claimant’s supplemental memorandum in opposition to the motion to dismiss she called our attention to a relatively recent appellate court case containing a current discussion of the issues of waiver and estoppel. In Louise o. Department of Labor (1980), 90 Ill. App. 3d 410, the court stated generally that:

“The law disfavors estoppel against governmental entities. The sound governmental functions. (Hickey 0. Zllinois Central Railroad Co. (1966), 35 I..2d 427, 220 N.E.Pd, 45, cerf. denied (1967), 386 U.S. 934, 17 L.Ed2d 806, 87 governmental functions. (Hickey 0. Zllinois Central Railroad Co. (1966), 35 I11.2d 427, 220 N .E.2d, 45, cerf. denied (1967), 386 U.S. 934, 17 L.Ed.2d 806, 87 S.Ct. 957. Our supreme court has stated however, that this governmental immunity is qnalified and that estoppel may be invoked against a governmental body in certain instances.” (90Ill. App. 3d 410,414.)

An instance where the State would be estopped due to actions of an agent would be very rare, although we are not prepared to rule it out entirely. Although we tend to agree with the result reached in Louise, we do not necessarily agree with how it was reached. The plaintiffappellant in Louise was a victim of a rather bizarre series of events. She had been determined by a claims adjuster to have been ineligible for unemployment benefits. According to the provisions of the governing statute, unless such a person, within nine days after notice of a determination of ineligibility was mailed to his or her last known [*782] address, files an appeal, the determination of ineligibility becomes final. She went to the proper office and stood ready and willing to file a timely appeal but was prevented from doing so by certain affirmative acts of the defendant-appellee’s employee. There was evidence that the office was being moved and her file could not be located. Upon returning at a date beyond the nine-day period but at a time given by the person who refused to allow her to file initially, she was told that she could not file.

The situation in Louise is very different from the case at bar. No one affirmatively prevented or refused to allow the Claimant to file her notice of intent. Nobody had any responsibility to inform Claimant of the requirements of section 22-1 of the Court of Claims Act. Having examined the record we cannot say that the words or actions or both of the Respondent’s employees can be construed to constitute a waiver or operate as an estoppel.

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

(No. 8 CC-0552-Claimant awarded $750.00.)

CLIFFORD A. BURNS, Claimant, u. THE STATE OF ILLINOIS,

Respondent.

Opinion filed December 21,1982.

CLIFFORD A. BURNS, pro se, for Claimant.

TYRONE C. FAHNER, Attorney General (SUE MUELLER, Assistant Attorney General, of counsel), for Respondent.

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PRISONERS AND INMATES- Welding shop injury-unsafe footwear-claim allowed. Claim allowed for injuries sustained when piece of steel fell on foot of inmate of correctional facility, as record established that authorities who supervised Claimant’s work in welding shop were aware of Claimant’s lack of appropriate, footwear and did nothing to correct situation, and lack of safety shoes contributed to Claimant’s injury.

COMPARATIVE NEGLIGENCE-welding shop injury-correctional fucilityAlvis applied. Claimant’s negligence in failing to observe dangerous condition which resulted in piece of steel falling onto his foot while he was working in welding shop of correctional facility was at least 50%of the cause of his injury, and under the comparative negligence rule announced in Alvis, his award would be appropriately reduced.

ROE, C. J.

This is a tort action brought by Claimant, Clifford A. Burns, an inmate at Menard penitentiary, against the State of Illinois for personal injuries. The complaint states I that Claimant was injured on April 2, 1980, while he was

l employed at his job at Menard penitentiary in the welding shop. As he was reaching for some gloves on a rack, a round piece of steel rolled off the rack and injured l Claimant’s left foot. Claimant charges Respondent with careless negligence and wilful and wanton acts in that he I was not provided with safety shoes and was not provided with a safe place of employment. Claimant seeks damages from Respondent in the sum of ten thousand dollars ($10,000.00). I

Claimant testified that his job at Menard was a

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welder. (Trans. 4.)Claimant testified that “someone just

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forgot to put the steel stops down inside this rack.”

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(Trans. 6.) Claimant described the piece of steel that had struck his foot as weighing approximately 400 pounds. 1 (Trans. 7.) Other inmates were responsible for placing the steel in the rack. (Trans. 8.) Claimant had not noticed the condition of the steel getting stacked too high. (Trans. 8.) There was nothing that would have prevented Claimant from noticing that the steel was stacked too high, but he “just didn’t look.” (Trans. 8.)

[*784] Claimant broke the big toe on his left foot and stated that the weather “bothers it just a little bit” and that sometimes “the toe gets numb.” (Trans. 9.) Claimant does not limp or have discomfort in the toe as he walks. (Trans. 10.) Claimant stated there was nothing he could clo physically before the accident that he couldn’t do at the time of the hearing. (Trans. 10.)

Claimant testified that prior to this accident he had asked the people at the welding shop whether steel-toed shoes were furnished. (Trans. 12.) He asked for steel-toed shoes from the clothing house and was advised that he could not obtain them. (Trans. 12.)

Officer Bowen, in charge of security in the welding shop at the time Claimaint was injured, testified that he could not remember Claimant requesting steel-toed shoes. (Trans. 27.)

Officer Brown testified that he did not remember

Claimant requesting a pair of steel-toed shoes and thought

that he would remember something like that had it

occurred. (Trans. 32.) Officer Brown testified that he

could remember exactly the kind of shoes that Resident

Burns wore while in the welding shop because he consid

ered the tennis shoes worn by Claimant to be an unsafe

practice. (Trans. 34.)Officer Brown testified that in addi

tion to his job in overseeing the conduct of inmates so they didn’t injure each other or obtain contraband, he was responsible to see to it that the employees or residents of the facility did not get injured or hurt. (Trans. 34-35.) When he observed the kind of shoes that the Claimant repeatedly wore to his job, he considered that to be unsafe. (Trans. 35.)On one occasion he asked the Claimant why he wore tennis shoes to work. He did not remember Claimant’s response. (Trans. 35.)Brown testified that he had authority to a certain extent to direct inmates to do or refrain from doing certain actions which [*785] were considered to be dangerous. (Trans. 35.) Officer Brown said he had a right to bring a halt to any condition which he thought would create a danger to inmates. (Trans. 35.) Officer Brown testified that he knew of no regulation regarding footwear and that the inmates could “wear anything on their feet they wanted to.” (Trans. 36.) Officer Brown testified that when he observed the condition that Claimant’s footwear was unsafe, he did nothing about it. (Trans. 37.) Furthermore, Officer Brown testi- I fied that he had made no recommendation to his supervisor or to correctionaI officers in the chain of command that the inmates working in the steel shop be provided with some sort of adequate footwear to protect against injury. (Trans. 38.)

The State of Illinois is required to exercise the same standards of care and safety as would be required of private industry. (McGee v . State of Zllinois (1977), 31 Ill. Ct. C1. 326, Hoskins v . State of Zllinois (1965), 25 Ill. Ct. C1. 234, 237.) It is clear in the case at bar that Claimant was not furnished with proper protective footwear for the job to which Claimant was assigned by the Department of Corrections, Furthermore, Claimant’s supervisors were aware of the dangerous condition created by the lack of appropriate footwear and did nothing to correct the situation. The evidence is in conflict as to whether Claimant affirmatively requested protective footwear or not; the evidence is not in conflict, however, as to the point that the footwear being utilized by inmates occupying Claimant’s job position was inadequate and dangerous and that this condition was known and recognized by those in charge of safety and supervision.

Under these circumstances, it appears that Claimant has demonstrated that the State was negligent. However, Claimant testified that the condition by which he was injured was a condition which would have been readily [*786] apparent to him had he observed the manner in which the steel was stacked on the steel rack at the time that he approached the rack. Claimant testified that he just didn’t look. Claimant was an experienced welder and testified that he was well acquainted with the hazards and dangers of his job. We find, therefore, that Claimant’s negligence in connection with the injuries sustained by Claimant was at least 50%of the cause of this injury.

Under the new standard of tort responsibility as previously announced by the Illinois Supreme Court in AZvis 0. Ribar (1981), 85 111.2d 1, 421 N.E.2d 886, we find that Claimant’s damages in total were in the sum of $1,500.00 and that due to his comparative negligence it is found that Claimant is due the sum of seven hundred fifty dollars ($750.00) under the rule announced in the Alvis case.

It is therefore ordered that Claimant ‘be, and hereby is, awarded the sum of $750.00.