(no. &i-Cc-1448-Claimant Awarded $124 v. Illinois Department of Central Management Services

This cause comes on to be heard following the filing of a joint stipulation whereby the parties have agreed to the entry of an award herein in the amount of $12,4,398.09. The parties stipulated as follows:

1. Claimant is a producer and seller of beef and beef products. Claimant’s total claim, excluding interest, is $177,044.33.The State and Claimant propose to settle that claim for $124,398.09.

2. In Fiscal Year 1984 the State of Illinois ordered from the Claimant various beef products, the total price of which was $140,485.65.These beef products were to be used by sixteen various State agencies and were to be paid for from eleven fiscal year 1984 line items.

3. Prior to September 20, 1983, Claimant had been selling meat products to the State and the State had been purchasing meat products from Claimant since 1976. Prior to September 20, 1983, all of the meat products tendered for sale by Claimant to the State were accepted and were found to be satisfactory to the State except for a portion of one 1979 shipment with respect to which it was found that Claimant had acted in good faith and that the problem, if any, was caused by the Meat Grading Branch of the United States Department of Agriculture.

4. Pursuant to contracts between Claimant and the State, beef and beef products with a value of $69,882.36 were delivered by Claimant to the State of Illinois, prior [*135] to September 20, 1983. The State has not paid for the beef and beef products delivered.

5. Sometime prior to September 20, 1983, the State became aware of allegations regarding improper meat processing practices by the Cattle King Packing Company, a company that the State understands is owned by the person or persons who own Claimant. On September 20, 1983, the State wrote to Claimant and advised Claimant that it refused to pay for the beef previously delivered by the Claimant and also refused to accept any further shipments of beef.

6. The beef delivered by Claimant and in the possession of the State of Illinois has not been tested for contamination and, because the passage of time has rendered any tests inaccurate, it is now too late to scientifically determine whether the beef received by the State was contaminated. Claimant contends that the beef products it delivered to the State were in accordance with the requirements of the United States Department of Agriculture and in accordance with the State and contract specifications; it has so sworn in its complaint and is prepared to so testify at trial. The State has no evidence that the beef products delivered to the State by the Claimant were anything other than in accordance with the requirements of the United States Department of Agriculture and in accordance with the State and contract specifications.

7. Of the beef held in storage by the State of Illinois 640 pounds of hamburger patties, 1,820 pounds of beef clods and 1,000 pounds of diced beef have been destroyed due to spoilage. Said spoilage occurred when the freezer in which the beef was stored malfunctioned.

[*136] 8. Beef and beef products which Claimant prepared for shipment to the State pursuant to contracts between them and which the State refused to accept has a value of $61,179.37. Claimant contends that because the meat has been prepared to satisfy State specifications, there is no market for the meat and it has not therefore been able to reduce the loss resulting from the State’s refusal to accept delivery. The State has no evidence to refute that contention.

9. Claimant contends that the beef products it prepared pursuant to the contract with the State and which the State refused to accept were in accordance with the requirements of the United States Department of Agriculture and in accordance with the State and contract specifications; it has so sworn in its Complaint and is prepared to so testify at trial. The State has no evidence that the beef products it refused to accept from Claimant were anything other than in accordance with the requirements of the United States Department of Agriculture and in accordance with State and contract specifications.

10. Claimant contends that reasonable storage charges for this meat comes to $4,381.75 for the period through December 14, 1983, and $51.55 per day thereafter, and the State has no evidence to refute that contention. The total storage charges so computed through February 28,1986, come to $45,982.60)

11. The Claimant’s total claim, excluding interest, is as follows:

Claimant also contends that in commercial transactions of the kind involved here it is entitled to interest on the money that has been withheld from it, and Claimant claims interest on both $69,882.36 (the value of the beef and beef products delivered) and on $61,179.37 (the value of the beef and beef products the State refused to accept). Interest on these amounts from October 1, 1983, throu h Februar 28, 1986, at a rate of 5%per annum, is $15,836.61. (Footnote inclufed in stipdtion) [*137]

Value of beef and beef products

delivered to State ................... $69,882.36

Value of beef and beef products the

State refused to accept. .............. $61,179.37

Storage ............................ $45,982.60

Total. ....... $177,044.33

12. The parties have agreed that $124,398.09is a fair and just settlement in this case.

13. A settlement in this amount was previously presented to this Court. The Court declined to acquiesce in the settlement, citing sparseness of the record. Each of the above facts are true and many of them are now in the record pursuant to three sets of interrogatories and requests to admit facts that Claimant has served on the State. Also, because of additional storage since the settlement was first presented, Claimant’s claim is now $25,053.31 greater.2

14. Since the previous settlement was offered, the funds out of which these products would have been purchased have lapsed. Inasmuch as the Claimant has been able and willing to perform its obligations under the contract and the Respondent is unable to certify that the product delivered and offered was unacceptable, the Court should approve this settlement.

15. The departmental report of Central Management Services is attached hereto and incorporated herein.

Wherefore, the Claimant and Respondent jointly pray that this Court enter an award in favor of the Claimant in the amount of $124,398.09.

Because of the passage of time, Claimant’s interest claim is also $6,553.51 greater. (Footnote included in stipulation) [*138]

We have reviewed the stipulation and the record and now find sufficient support for approving the agreed award.

We note however, a discrepancy in the stipulation and the evidence. Paragraph 14 of the stipulation indicates that since the previous settlement was presented to the Court the funds appropriated with which payment for the products would have been made have lapsed. The previous joint stipulation was filed on October 5, 1984, during fiscal year 1985. The internal memorandum dated December 9, 1985, attached to the stipulation now before us and offered as a departmental report also indicates that fiscal year 1985 funds were obligated for these purchases and had lapsed. If that was in fact the situation, then the State could have settled this matter without this Court’s participation. The agency which entered into the purchase contracts could have made the payment any time up to September 30,1985.

Elsewhere in the record all other documentation, including paragraph 4 of the stipulation before us, the previous settlement stipulation, and the invoices attached to the complaint, indicates that this was a fiscal year 1984 obligation, funds for which would have lapsed on September 30,1984, more than nine months after the complaint was filed.

Correct and complete fiscal data is essential to a decision in this type of case. Approximately one month after the filing -of the stipulation before us, the Respondent filed a substitute internal memorandum. It was identical in substance to the aforementioned memorandum except “FY84” had been substituted for “FY85” as the year of the appropriation. This is the only place in the record where the important issue of lapsing of sufficient funds is addressed. While the report offered [*139] in connection with the previous stipulation provided appropriation line items, it did not provide lapsed balances.

This 'settlement is hereby approved and the Claimant is hereby awarded the sum of $124,398.09 in full and final satisfaction of this claim.

( No . 84-CC-1825-Claim denied.) KELLY THORNBURG, Claimant, 2). THE STATE OF ILLINOIS and BOARD OF REGENTS FOR NORTHERN ILLINOIS UNIVERSITY,

Respondents. ,

Opinion filed December 22,1986. 1 .

HEYL, ROYSTER, VOELKER & ALLEN (DANIEL R. SIMMONS, of counsel), for Claimant.

NEIL F. HARTIGAN, Attorney General (CLAIRE E. B. GIBSON, Assistant Attorney General, of counsel), for Respondents.

NEGLIGENcE-duty of landowner to invitee. A landowner has an obligation to use reasonable care and caution to keep his premises reasonably safe for the use of a business invitee, however, he is not an insurer of the safety of his invitees, and such persons assume normal, obvious or ordinary risks attendant to the use of the premises.

SAME-slip-and-fall-State fulfilled its duty-claim denied. The Court of Claims denied the claim of a State university student-employee who slipped and fell on the stairway in the entrance of a university building, notwithstanding the fact that the stairway was wet due to a heavy snow on the exterior, since the evidence established that the university officials had taken reasonable precautions to protect persons using the stairway, and allowing an award under the circumstances would be contrary to the law and would result in requiring the State to be an insurer of the safety of those using the stairs.

[*140] HOLDERMAN, J.

This claim involves a slip and fall case arising out of an incident which occurred in the Holmes Student Center at Northern Illinois University, DeKalb, Illinois, on January 22, 1983, when a student employed by the University fell and injured herself on a stairway in the entrance of the building which was wet because of heavy snow conditions on the exterior of the building premises.

The Commissioner’s report, together with the parties’ briefs, set out the facts in detail.

There was a substantial dispute as to whether the condition of the stairway and entryway was as testified by Claimant, Kelly Thornburg, and her witnesses, or was in the condition testified to by the University employees. Claimant alleged the entryway was overlaid by a carpeting which was saturated with water and that the water trailed off down a terrazzo floor and stairway area. The University employees testified there was not a wet condition as described by Claimant. The Commissioner found the condition of the entrance and stairs to be as testified by Claimant.

The parties agreed as to the exterior weather conditions based on University weather data. The University maintenance department testified as to the procedure in cleaning and drying areas subject to inclement weather conditions. There was detailed testimony as to the scheduling and the methods involved.

The legal questions involved in this matter are undisputed, that is, what duty does a landowner have to a business invitee to care for his safety in the factual situation presented. A review of the authorities cited by both sides indicates that a landowner has an obligation [*141] to use reasonable care and caution to keep his premises reasonably safe for the use by a business invitee. However, he is not an insurer of the safety of his invitees and such persons assume normal, obvious or ordinary risks attendant to the use of premises.

Claimant cites two cases, Hamby v. State, 31 Ill. Ct. C1. 487 and Pavlik v. State, 31 Ill. Ct. C1. 469, in which both Claimants recovered on a slip and fall fact situation. Respondent, on the other hand, cites three cases noted in the Commissioner’s report, Duble v. State, 26 Ill. Ct. C1.87, Fleischer v. State (1983),35 Ill. Ct. C1. 799, and Ponds v. State, 33 Ill. Ct. C1. 79, in which recovery was denied. In all of the foregoing cases, the Court’s decision was based on various interpretations as to (a) whether the Respondent recognized its obligation to business invitees, or (b) whether Respondent had exercised a reasonable degree of care in remedying a condition for the safety of its invitees. In both Hamby and Pavlik, the Court found that Respondent had not exercised a reasonable degree of care as required. In Pavlik, the factual dispute revolved around a highly polished terrazzo floor which became even more slippery when wet. There was no indication there was any evidence that the State had taken any steps to acknowledge or remedy this slippery condition. In Hamby, on the other hand, the Court commented that the State completely failed to explain why it had not remedied the condition in question, commenting: “The State fails to explain why it made no effort to refute claimant’s testimony by calling an employee of the Secretary of State’s office who could testify as to the facts of the occurrence. The testimony is unrefuted that the rain was heavy, although intermittent, on the day of the incident. It appears that the State had sufficient notice of the raining condition and should have made some effort to keep the floor of the facility dry. In failing to do so, we think the State failed to use that degree of care reasonable under the circumstances, and that the State’s negligence was a proximate cause of the claimant’s injury.” Humby u. State, 33 Ill. Ct. (21.489.

[*142] In the three cases noted by the Commissioner in his report, it is clear that Respondent recognized its obliga

tion with regard to conditions and the danger for business invitees and had taken steps to remedy them. Similarly, in the case before the Court, it is clear that the University recognized its obligation to its invitees with regard to the wet condition of the entrance foyer and stairs. The precise issue in this case then becomes, whether the steps taken by the University were reasonable and at what point a requirement of further action by the University becomes overburdensome and makes it an insurer of the safety of its business invitees. Considering the Commissioner’s factual findings, the sheer size and extent of the University property, and the testimony of the maintenance personnel, it seems unreasonable to require further action by the University to remedy the condition of the entrance. The maintenance program recited by the University’s witnesses clearly indicates that it recognized its obligations and took reasonable steps to fulfill them. Short of stationing a maintenance person at every door of every building, it is difficult to see how a loss such as the one claimed in this case could be prevented. Such an extreme requirement would make the University an insurer of Claimant’s safety.

It is the opinion of this Court that the University did everything that was reasonably necessary to safeguard the public in the use of its premises, and that to make a contrary finding would change the law of the State of Illinois relative to the duties of Claimant and its responsibility.

Claim is denied.