American States Insurance Company v. State of Illinois

A MERICAN STATES INSURANCE COMPANY, Claimant, 0.THE

STATE OF ILLINOIS, Respondent.

Opinion filed May 17,I983.

RONALD E. HALLIDAY, for Claimant.

NEIL F. HARTIGAN, Attorney General (SUE MUELLER, Assistant Attorney General, of counsel), for Respondent.

HicHwAus-pothole-truck forced off road-claim allowed. Award was granted for damages which occurred when Claimant’s truck hit a large hole in highway, went out of control and landed in ditch, as evidence established that Claimant was not contributorily negligent and that State was aware of hole but 11,itl negligcwtly failed to properly repair hole or adequately warn travelling pnblic of danger, notwithstanding fact that patches had been attempted and a warning sign installed a short distance from hole.

J. HOLDERMAN,

The Claimant is a subrogee of its insured, James W. Stout, who was injured while driving a truck northbound [*688] on Illinois Route 26 on April 16, 1977. The truck involved was a 1968 International Harvester and the accident occurred around 1:30 p.m. Claimant was riding alone in said truck and was being followed by his son, Rex Stout, and according to the evidence, he was travelling at approximately 40-45 miles per hour.

According to the record, it appears that James Stout reached a point approximately 10 miles south of Lacon, Illinois, near an intersection with Banta Road, when he reached a bridge. The road surface up to that point had been smooth. There was a sign on the bridge warning of rough road. Upon seeing the sign, Mr. Stout reduced his speed by about 10 miles per hour. The evidence is to the effect that the driver was unfamiliar with the road since he had not driven over it for four to eight months prior to the accident.

After crossing the bridge, Mr. Stout observed a large chuckhole 40 to 60 feet from the end of the bridge. The distance from the sign to the chuck hole was between 100 and 125 feet. The evidence shows that the road where the hole was located was lower than the bridge pavement and therefore Mr. Stout was unable to see the hole until he had crossed the bridge. The evidence shows the hole was six to eight feet in diameter and from six to eight inches deep. Mr. Sto.ut’s son, Rex, who was the only eyewitness, testified that the hole measured 10 to 15 feet wide, six to eight feet long, and four to six inches deep. Mr. Stout also testified that the hole crossed over the center line and that it was so wide he could not have avoided it by driving off onto the shoulder.

As Mr. Stout struck the hole, the rear of his truck was thrown into the air, crossing the center line. The truck began to fishtail but Mr. Stout was able to control it and avoid a head-on collision with a pickup truck in the oncoming lane. The trailer then pulled into the ditch.

[*689] The trailer pulled the rear of the truck and it rolled over.

At the time of the accident, Mr. Stout had had the truck for less than one month. He testified he purchased the truck on February 28, 1977, for $7,350.00 and took delivery of it on March 1, 1977, but sent it back for repairs to the transmission. The record shows the truck was a total loss and the highest bid for salvage was $1,565.50. There were towing and storage expenses in the amount of $321.50 and a $500.00 deductible on the insurance policy, making a total claim of the subrogee of $5,581.00.

According to the record, Rex Stout returned to the scene of the accident less than four hours later to take pictures. Upon his return, he found the warning sign had been moved 50 to 75 feet behind the guardrail so that it provided an earlier warning. He further found that the Respondent’s maintenance workers were already engaged in repairing the road surface.

State Trooper Gene Kizer testified that he was the patrol officer for that area and lived nearby. He recalled this particular chuckhole but did not remember whether he notified the Illinois Department of Transportation of its existence. His testimony was disputed by Rex Stout who stated that trooper Kizer told him he had been trying to get the State to fix that road for a couple of months.

Mr. John Hartwig, a maintenance field engineer for the Illinois Department of Transportation, testified that

I

more than 77 tons of cold mix material had been used on that subsection from March 4 to April 16 of that year. He also testified that the State was aware of the rough road section and that cold patch is a temporary material. According to the time cards, which were introduced by Respondent, there was no further maintenance done after April 4.

[*690] Before Claimant can recover in a suit of this nature, he must prove Respondent was guilty of negligence, that he was free from contributory negligence, and that Respondent’s negligence was the cause of the accident. It is also required that the State have knowledge of the dangerous condition.

The evidence is clear that the State hadjactual knowledge of this condition because of the patches they had put on this particular area and because of the warning signs that were put up a comparatively short distance from the hole in question.

The record is clear that the road where the hole was located was lower than the bridge pavement and was not visible to the oncoming traffic until the traffic was within a short distance from the hole in question. The fact that Respondent moved the warning sign back further after this accident occurred is strong evidence to the fact that the sign had not been placed far enough away from the hole to give the travelling public enough time to slow down to avoid accidents.

It is clear from the record that Claimant was free from contributory negligence and that the proximate cause of the accident was Respondent’s failure to repair this pothole and to adequately warn the travelling public of its danger.

An award is hereby made in favor of Claimant in the amount of $5,581.00.

[*691] ( No . 79-CC-0724-Claimant awarded $11,000.00.)

R EGNAL J. JONES, Claimant, U:THEBOARD OF GOVERNORS

O F STATE COLLEGES AND UNIVERSITIES, Respondent.

Opinion filed February 4,1983.

JULIUS L. SHERWIN, for claimant.

NEIL F. HARTIGAN, Attorney General (K ENNETH G. KOMBRINK, Special Assistant Attorney General, of counsel), for Respondent.

CoNTRAcTs-elements of contract. Contract exists when there is an offer accepted by recipient and consideration for performance of certain acts.

SAME-emplo yment contract-breach by State-claim allowed. Claimant was entitled to damages for breach of employment contract which occurred when State refused to accept Claimant when he reported to commence teaching at beginning of academic year he had agreed to work, as State university had niade unconditional written offer of position to Claimant which was accepted by letter of acceptance drafted by Claimant, notwithstanding State’s claim that refnsal to sign acceptance letter drafted by university constituted refnsal of offer, as State’s written offer had no such conditions.

POCH,J.

The Claimant, Regnal J. Jones, has filed a claim against the Board of Governors of the State Colleges and Universities seeking $15,000.00 in damages for an alleged break of an employment contract. The claimant had been employed by the Chicago State University as a nontenured assistant professor of biology for a number of years before the academic year 1976-1977 at a salary of $15,000.00.

On June 14, 1976, the vice-president for academic affairs, Dr. Allan DeGiulio, sent a letter to the Claimant offering him a probationary contract as assistant professor commencing September 1, 1976. The letter went on to indicate that tenure could be possible a year later. The Claimant sent Dr. DeGuilio a letter that was received at Chicago State University on June 24, 1976, which stated in part “I accept the University’s offer. of employment [*692] for the academic year 1976-77.” During negotiations before June 24, 1976, the Claimant was asked to sign a letter of acceptance drafted by the University. He refused to do so and sent in his own letter of acceptance.

The Claimant reported to work at the commencement of the academic year in September 1976. He was refused a class assignment and was not allowed to teach at the University. During that academic year he attempted to obtain other suitable employment but was able to work for only two months and earned only $4,000.00.

The Claimant seeks damages for the alleged breach of the employment agreement offered by the University and accepted by the Claimant. The Respondent claims that the refusal to sign the acceptance letter drafted by the University is a refusal to‘accept all terms and conditions of the offer and thus is not an acceptance.

The written offer of June 14, 1976, issued by the University was not conditioned upon other conditions or time restrictions upon its acceptance. It was not withdrawn before the acceptance.

A contract exists when there is an offer accepted by the recipient and consideration for the performance of certain acts. In this case the University made an unconditional written offer of June 14, 1976, to the Claimant. The Claimant’s acceptance was received by the University on June 24, 1976. The consideration was for the Claimant to teach and for the University to provide a place to teach and to pay the annual salary of $15,000.00. Therefore, there was valid employment contract existing on June 24, 1976. The refusal of the University to accept the Claimant when he reported to work at the commencement of the academic year constitutes a breach of the Claimant’s contract entitling him to an award of damages for the breach.

[*693] The Claimant was able to find work for the academic year 1976-77 for only two months and earned $4,000.00. That sum is to be credited against the award of damages. If the University had allowed the Claimant to work he would have been paid $15,000.00 for the 10- month academic year. The breach of the employment contract by the Respondent entitles the Claimant to an award of the salary he would have have earned pursuant to the contract ($15,000.00) less the amount actually earned through other employment ($4,000.00). Therefore, the Claimant is entitled to an award of eleven thousand dollars ($11,000.00),

It is hereby ordered that the Claimant, Regnal J. Jones, be awarded the sum of eleven thousand dollars ($11,000.00).