John Doe v. State of Illinois

OPINION

BIRNBAUM, J. This claim for reimbursement of administrative litigation expenses in the amount of $94,350.27, plus reasonable expenses and attorney's fees for this claim, is brought pursuant to Section 10-55(a) of the Administrative Procedure Act ("APA") (5 ILCS 100/10-55(a)), following Claimant's successful defense and expungement of "indicated" (credible [*182] evidence) charges of child abuse against him by the Department of Children and Family Services ("DCFS"), pursuant to the Abused and Neglected Child Reporting Act ("ANCRA") (325 ILCS 5/1 et seq.). This case is before the Court after the parties herein entered into a Joint Stipulation of Facts. The parties also agreed to an In Camera review and inspection of the Recommendation and Opinion of Administrative Law Judge, Carol J. Mosolygo, In the Matter of [name redacted and hereinafter substituted in this Opinion as "John Doe"], Case SCR No. 1355603-B. The parties also agreed that the pleadings, briefs and other documents produced in discovery in the case at bar could be submitted to Commissioner Timoney in lieu of a formal hearing before a Commissioner of the Court of Claims.

PROCEDURAL BACKGROUND

On July 2, 2007, pursuant to the Illinois APA (5 ILCS 100/10-55(a)) and Section 8 of the Illinois Court of Claims Act (705 ILCS 505/8), the Claimant filed this action seeking $118,104.20 in attorney's fees and expenses. Specifically, the Claimant alleged that in May 2004, DCFS indicated charges of alleged child abuse against him and that allegations of abuse against him were made without reasonable cause. The Claimant filed an appeal from the indicated finding and an administrative hearing was conducted through DCFS as provided under the ANCRA (325 ILCS 5/1 et seq.) In June 2005, The Administrative Law Judge ("ALJ") determined that the Department did not prove the charges by a preponderance of the evidence.

The Claimant alleges that as a result of contesting the indicated finding, he incurred attorney's fees and expenses totaling $94,350.27. These specific attorney's fees and costs cover the time frame of October 6, 2003 to May 31, 2005. After the Director of DCFS adopted the ALJ's decision, the Claimant made a demand upon DCFS for the reimbursement of his attorney's fees and expenses. The Claimant never received a response to his demand. The Claimant alleges he incurred an additional $38,206.31 in attorney's fees and expenses in bringing this claim in this Court.

On November 12, 2009, the Claimant filed a Motion for Summary Judgment and the Respondent filed a Response. On July 29, 2010, the Court issued an Order denying the Claimant's Motion for Summary Judgment. The parties filed a Joint Stipulation of Facts on September 1, 2011, and on October 27, 2011, the Respondent submitted the Recommendation and Opinion of Administrative Law Judge, Carol J. Mosolygo, In the Matter of [John Doe], Case SCR No. 1355603-B, for In Camera review to Commissioner Timoney.

The parties thereafter filed Claimant's Brief on December 2, 2011; Respondent's Argument in Support of Denying Claim on January 14, 2012; and Claimant's Reply Brief In Support Of His Claim For Attorney's Fees on February 3, 2012.

FACTUAL BACKGROUND

This case concerns the last of three separate investigations conducted by DCFS of allegations of harm made against the Claimant concerning the same minor child and the subsequent successful appeal of an indicated finding of abuse by DCFS.

Claimant is the adoptive father of the minor child. From 1991 to 1999, Claimant resided with the minor child and her mother. Claimant and the minor child's mother were married in July of 1994. In 1995, Claimant adopted the minor child. Claimant and the [*183] minor child's mother separated in 1999 and, although her mother maintained custody of her, the minor child continued to have regular and frequent interaction with the Claimant.

In 2001, the minor child's mother started dissolution of marriage proceedings against Claimant, which both parties admit were very contentious. At no time prior to the initiation of the dissolution of marriage proceedings were there any allegations of inappropriate interactions between Claimant and his daughter. On May 19, 2003, a Judgment of Dissolution of Marriage was entered and the parties were awarded joint custody of the minor child. Thereafter, two separate DCFS hotline complaints were made in June 2003 and August 2003 relating to alleged abuse by the Claimant of the minor child. Both investigations by DCFS concerning these allegations were determined to be unfounded.

On December 16, 2003, just a little more than one month after the second investigation was closed, DCFS initiated the last of its investigations after an individual (later discovered to be the minor child) had sent an email to the Illinois Governor's office claiming that the Claimant "had physically, sexually, and emotionally abused her...."

The

email went on to say that DCFS had done nothing to protect her.

The report was assigned investigation #1355603-B, and Child Protection Investigator ("CPI") Mileece Kelly was assigned to conduct the investigation.

After CPI Kelly concluded her investigation, she informed the Claimant and his attorney that her investigation found the current allegations, #019 Sexual Penetration and #022 Substantial Risk of Sexual Injury, unfounded and the investigation would be closed.

On May 28, 2004, Ms. Barbara Duminie, CPI Kelly's supervisor, reviewed CPI Kelly's work, the documentation within the file, and discussed the case with CPI Kelly. Ms.

Duminie recommended that investigation #1355603-B be indicated. The allegations of #019 Sexual Penetration and #022 Substantial Risk of Sexual Injury were indicated against the Claimant prior to the completion of a clinical staffing. DCFS determined that credible evidence supported an indicated report of child abuse and neglect by the Claimant for the allegations of #019 Sexual Penetration and #022 Substantial Risk of Sexual Injury. Several days after CPI Kelly told the Claimant that her investigation would conclude the charges would be unfounded, she informed him that her supervisor, Ms. Duminie, had directed her to indicate the case. The Claimant contested the allegations of child abuse and requested his right to an administrative hearing through DCFS as provided under the ANCRA (325 ILCS 5/1 et seq.) Administrative Law Judge ("ALJ"), Carol J. Mosolygo, conducted an administrative hearing on May 25, 2005, wherein Claimant contested the allegations. The issue to be determined by ALJ Mosolygo was whether a preponderance of the evidence supported the indicated finding against the Claimant for allegations of harm #019 Sexual Penetration and #022 Substantial Risk of Sexual Injury.

On June 20, 2005, ALJ Mosolygo rendered her written Recommendation and Opinion regarding the allegations of #019 Sexual Penetration and #022 Substantial Risk of Sexual Injury against Claimant. In her Recommendation and Opinion, ALJ Mosolygo agreed with Claimant's assertion that DCFS failed to adequately investigate the allegations made by the minor child and her mother. ALJ Mosolygo determined that DCFS did not prove by a preponderance of the evidence that the Claimant was a perpetrator of child abuse, as defined in allegations of #019 Sexual Penetration and #022 Substantial Risk of Sexual Injury, and recommended that his request for expungement be granted. In ALJ Mosolygo's Recommendation and Opinion, she found that the facts and circumstances of [*184] the case failed to demonstrate that the Claimant was a perpetrator of child abuse as defined in allegations #019 Sexual Penetration and #022 Substantial Risk of Sexual Injury.

Specifically, Mosolygo's Recommendation and Opinion refers to Detective Nolan's report which stated that, after his investigation and the minor child's interview, he "again suspended his investigation because there was no medical corroboration of the minor child's allegations, her account of the incidents as well as the accounts of other witnesses were inconsistent, and he was unable to interview Claimant." (Emphasis added), ALJ Mosolygo's Recommendation and Opinion also refers to Officer Nolan's statements that "he told CPI Kelly that the Chicago Police Department was suspending the case because there was no evidence of a sex crime, the minor child's medical examination was normal, and there was nothing to corroborate her allegations." (Emphasis added). ALJ Mosolygo found that 14 days later, (after CPI Kelly concluded her investigation and informed Claimant and his attorney that her investigation found the allegations unfounded and the investigation was closed) (Emphasis added) DCFS Supervisor Barbara Duminie decided to indicate the case ''because the minor child consistently told CPI Kelly and Assistant State's Attorney at CCAC (Chicago Children's

Advocacy

Center) that she had been sexually abused by

Claimant.” In ALJ Mosolygo's

Recommendation and Opinion, she agreed with Claimant's assertion that the two prior abuse investigations, the investigation in the instant case and the evidence presented at the hearing demonstrate that the minor child and her mother manufactured the allegations immediately after the divorce was final in order to prevent him from having a relationship with the minor child.

On July 11, 2005, the DCFS Director's Office adopted ALJ Mosolygo's Recommendation and Opinion concerning the allegations of #019 Sexual Penetration and #022 Substantial Risk of Sexual Injury. The DCFS allegations of #019 Sexual Penetration and #022 Substantial Risk of Sexual Injury against the Claimant were not brought before or appealed to a Circuit Court for judicial review. DCFS did not respond to Claimant's demand for payment of attorney's fees and litigation expenses. The Respondent has denied that the allegations of harm #019 Sexual Penetration and #022 Substantial Risk of Sexual Injury against the Claimant were made without reasonable cause. Claimant alleges that as a result of contesting the indicated finding, he incurred attorney's fees of $94,350.27 covering the time frame of October 6, 2003 to May 31, 2005 and additional attorney's fees and costs for purposes of bringing this action, for which Claimant is entitled to receive, should the Court find in his favor.

ABUSED AND NEGLECTED CHILD REPORTING ACT

DCFS is required to conduct investigations into allegations of child abuse and neglect. 325 ILCS 5/1 et. seq. The purpose of the DCFS' investigation is to keep children safe. 325 ILCS 5/2. Once a report of child abuse or neglect is received by DCFS, the Child Protective Service Unit conducts an initial investigation and an initial determination whether the report is a good faith indication of alleged child abuse or neglect and therefore, requires a formal investigation. 89 Ill. Adm. Code §300.100.

DCFS defines "good faith" to mean that the report was made with the honest intention to identify actual child abuse or neglect. 89 Ill. Adm. Code §300.20. If the Child Protective Service Unit determines [*185] the report is a good faith indication of alleged child abuse or neglect, then a formal investigation is commenced. 89 Ill. Adm. Code §300.100(g)(h).

A formal investigation consists of activities conducted by DCFS investigative staff to determine whether a report of suspected child abuse or neglect is indicated, unfounded, or undetermined. 89 Ill. Adm. Code §300.20. These activities include: a) an evaluation of the environment of the child named in the report; b) a determination of the risk to the child if he or she continues to remain in the existing environment, as well as a determination of the nature, extent and cause of any condition listed in the report, the name, age and condition of other children in the environment; and c) an evaluation as to whether there would be an immediate and urgent necessity to remove the child from the environment if appropriate family preservation services were provided. Id.

A formal investigation can result in an indicated report, an unfounded report, or an undetermined report. 89 Ill. Adm. Code §300.110(i)(2)(3). A report is indicated if DCFS concludes, after an investigation, that credible evidence of the alleged abuse and/or neglect exists. 325 ILCS 5/3. "Credible evidence" of child abuse or neglect means that the available facts, when viewed in light of surrounding circumstances, would cause a reasonable person to believe that a child was abused or neglected. 89 Ill. Adm. Code §336.20. A report is unfounded if DCFS concludes, after an investigation, that no credible evidence of the alleged abuse and/or neglect exists. Id. An undetermined report is any report of child abuse or neglect made to DCFS in which it was not possible to initiate or complete an investigation on the basis of the information provided to DCFS. Id.

After seeing to the safety of the child, DCFS notifies the subject of the report, in writing, of the existence of the report and his or her rights existing under the ANCRA in regard to amendment or expungement. 89 Ill. Adm. Code §300.20. In an appeal, the ALJ is required to present a written opinion and recommendation that includes a recommended decision on whether there is a preponderance of evidence of abuse or neglect based on information in the administrative record. 89 Ill. Adm. Code §336.120(b)(15).

Preponderance of the evidence means the greater weight of the evidence which renders a fact more likely than not. 89 Ill. Adm. Code §336.20. '

ILLINOIS ADMINISTRATIVE PROCEDURE ACT

The Illinois Administrative Procedure Act ("APA") (5 ILCS 100/10-55(a)(b)) standard for the granting of attorney's fees is as follows: (a) In any contested case initiated by any agency that does not proceed to court for judicial review and on any issue where a court does not have jurisdiction to make an award of litigation expenses…, any allegation made by the agency without reasonable cause and found to be untrue shall subject the agency making the allegation to the payment of the reasonable expenses, including reasonable attorney's fees, actually incurred in defending against that allegation by the party against whom the case was initiated.

(b) The claimant shall make a demand for litigation expenses to the agency. If the claimant is dissatisfied because of the agency's failure to [*186] make any award or because of the insufficiency of the agency's award, the claimant may petition the Court of Claims for the amount deemed owed.

If

allowed any recovery by the Court of Claims, the claimant shall also be entitled to reasonable attorney's fees and the reasonable expenses incurred in making a claim for the expenses incurred in the administrative action.

The

Court of Claims may reduce the amount of the litigation expenses to be warded under this Section, or deny an award, to the extent that the claimant ngaged in conduct during the course of the proceeding that unduly and unreasonably protracted the final resolution of the matter in controversy.

5 ILCS 100/10-55(a)(b).

The APA clearly establishes four elements for a litigation expense claim arising out of an administrative proceeding: (1) the proceeding was initiated by a state agency; (2) which made an allegation against claimant; (3) that was found to be untrue; and (4) was made without reasonable cause." Haas Baking Company v. State of Illinois, 54 Ill.Ct.Cl. 296 (2001); 5 ILCS 100/10-55(a). Under the AJPA., a claimant bears the burden of strict proof and persuasion on each element under 5 ILCS 100/10-55(a). Lake Environmental, Inc. v. State of Illinois, 54 Ill.Ct.Cl. 408, 414(2001).

The APA does not define "reasonable cause." See 5 ILCS 100/10-55. However, this Court has held that the reasonableness of the agency's charge is "to be determined as of the date of those charges and not retrospectively with the advantage of hindsight." Lake Environmental, Inc., supra at 414. Moreover, statutes that allow recovery of attorney's fees are in derogation of the common law and must be strictly construed by the Court. McHugh v. State, 45 Ill.Ct.Cl. 235 (1992). Additionally, recovery is not allowed simply because the agency failed to follow its own rule. Id. at 241, citing Ekco, Inc. v. Edgar, 135 Ill.App.3d 557 (4th Dist. 1985).

There is limited case law involving attorney's fees granted following the expungement of child abuse or neglect findings. However, in the cases in which attorney's fees were granted, it has been where the allegations were found by the Court to be obviously not true and that the charges should never have been filed. For example, McHugh, supra, involved the expungement of an indicated finding that a mother had burned her child's forearm. The mother denied burning her child and a doctor who examined the child three days after the alleged abuse occurred told the investigator that the age of the scar made it too difficult to determine its cause. Id. at 237. Additionally, the child changed his story several times. The Court of Claims awarded attorney's fees after citing the ALJ's conclusion that there was no credible evidence that the child had been burned. Id. at 242.

Significantly, the Court also noted that the ALJ's Findings of Fact included a finding explicitly stating that the allegation was untrue. Id.

Similarly, in Curry v. State, 55 Ill.Ct.Cl. 348 (2003), the ALJ expunged an indicated finding against a nurse at a health care facility for allegedly neglecting a child under her care. In that case, at the administrative hearing, the DCFS investigator recanted her findings, reversing her original finding that the nurse blatantly disregarded her caretaker responsibilities. The Court of Claims concluded that the case involved "the most straightforward claim of factually and legally baseless charges that this court has seen in quite some time." Id. at 356.

[*187] ANALYSIS

Claimant claims that he is entitled to the payment of the reasonable expenses, including reasonable attorney's fees, actually incurred in defending against the allegations made by DCFS in the sum of $94,350.27, plus reasonable expenses and attorney's fees for bringing this claim here pursuant to Section 10-55(a) of the APA (5 ILCS 100/10-55(a)). He argues he is entitled to reimbursement due to the Claimant's successful defense and expungement of indicated charges of child abuse against him by DCFS, pursuant to the ANCRA (325 ILCS 5/1 et seq.). Respondent asserts that the Claimant has failed to prove that DCFS made an allegation without reasonable cause, as required under the APA, and, therefore, the Claimant's claim for attorney's fees and costs should be denied. In the alternative, Respondent asserts that should this Court find the Claimant has proven that the Respondent made an allegation without reasonable cause, Claimant has failed to show that the attorney's fees and costs that he seeks are reasonable.

I. CLAIMANT IS ENTITLED TO AN AWARD OF EXPENSES AND ATTORNEY'S FEES UNDER THE ILLINOIS APA (5 ILCS 100/10-55(a)).

Claimant's claim for attorney's fees and costs is granted. In this case, the Claimant has proven that DCFS made an allegation against Claimant without reasonable cause and found to be untrue, as set forth in the Illinois APA. Merely having the indicated finding against him expunged, does not alone entitle Claimant to attorney's fees under the APA.

In order to be entitled to attorney's fees, Claimant must prove that the decision of CPI Kelly's supervisor, Ms. Duminie, to overrule the CPI's decision and indicate Claimant for the allegations against the minor child, was made without reasonable cause and that it was proven to be untrue. It is not necessary for this Court to review de novo the DCFS investigator}' file relied upon by the ALJ in rendering her decision to determine that Claimant has met his burden in this matter. Lake Environmental, Inc., supra at 414.

The issue before the Court is not the correctness of DCFS's action, but whether its action was unreasonable using the available credible evidence at the date of the indicated finding. To that end, the issue becomes whether the initial factual evidence leading to the indicated finding met the ANCRA requirement of credible evidence and, if so, whether there was reasonable cause to do so under the standard set forth in the APA.

The Claimant argues that the unreasonableness of DCFS' decision has been shown through the ALJ's findings and recommendation in the administrative hearing.

Claimant specifically relies upon the ALJ's finding that DCFS failed to adequately investigate the allegations. However, the adequacy of DCFS' investigation does not necessarily determine the unreasonableness standard under the APA. This Court agrees that the ANCRA requires DCFS to err on the side of protecting children. DCFS must utilize reasonable care with the credible evidence at the time of the initial investigation. That standard does not apply to the additional evidence gained through the administrative hearing. The ALJ did not make any explicit finding of unreasonableness regarding the evidence DCFS relied upon to indicate the charge. However, in ALJ Mosolygo's Recommendation and Opinion, she agreed with Claimant's assertions that DCFS failed to adequately investigate the allegations made by the minor child and that the two prior abuse investigations, the investigation in the instant case and the evidence presented at the [*188] hearing, demonstrate that the minor child and her mother manufactured the allegations immediately after the divorce was final in order to prevent him from having a relationship with the minor child. ALJ Mosolygo also concluded that the credible evidence presented at the hearing clearly established that Claimant did not sexually abuse the minor child. The instant case is similar to that in McHugh, supra, where this Court granted attorney's fees, finding that it was obvious that the allegations were not true and that the charges should not have been filed. In the instant case, the facts known at the time of the indicated finding demonstrate that the finding was made without reasonable cause.

This Court places great weight on the following findings, based upon facts known to DCFS at the time of the indicated finding, in determining that the indicated finding was made without reasonable cause: (1) That Claimant and the minor's mother were involved in a contentious divorce; (2) The timing of the allegations in relation to the conclusion of the two previous unfounded investigations; (3) That CPI Kelly, upon concluding her investigation, informed the Claimant and his attorney that her investigation found the current allegations unfounded and the investigation was closed; (4) Detective Nolan's report, which stated that, after his investigation and the minor child's interview, he "again suspended his investigation because there was no medical corroboration of the minor child's allegations, her account of the incidents as well as the accounts of other witnesses were inconsistent, and he was unable to interview Claimant." (Emphasis added); (5) Officer Nolan's statements that "he told CPI Kelly that the Chicago Police Department was suspending the case because there was no evidence of a sex crime, the minor child's medical examination was normal, and there was nothing to corroborate her allegations." (Emphasis added); (6) That 14 days later, (after CPI Kelly concluded her investigation and informed

Claimant

and his attorney that her investigation found the allegations unfounded and the investigation was closed) (Emphasis added) DCFS Supervisor Barbara Duminie decided to indicate the case "because the minor child consistently told CPI Kelly and Assistant State's Attorney at CCAC (Chicago Children's Advocacy Center) that she had been sexually abused by Claimant."; (7) The inadequacy of the investigation conducted by DCFS, as determined by ALJ Mosolygo; and (8) The finding of ALJ Mosolygo that she agreed with Claimant's assertion that the two prior abuse investigations, the investigation in the instant case and the [*189] evidence presented at the hearing, demonstrated that the minor child and her mother manufactured the allegations immediately after the divorce was final in order to prevent him from having a relationship with the minor child. This Court finds that the decisions made by Detective Nolan and CPI Kelly, and the two people most involved in the investigation of the facts of the allegations, are credible. The reversal of those decisions was unreasonable.

II.

THE ATTORNEY'S FEES AND EXPENSES REQUESTED BY THE CLAIMANT ARE REASONABLE.

When requesting fees and costs pursuant to the Illinois APA, a court should conduct some inquiry into reasonableness of hours, as well as the remainder of the fee petition, and may, if necessary, require an evidentiary hearing into reasonableness of a fee petition.

Art v. State, 292 Ill.App.3d 1059, (1 st Dist. 1997).

The party seeking the fee award bears the burden of proving the reasonableness of the hours worked and the hourly rates claimed. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). In determining what, if any, attorney's fee award is appropriate, the starting point is the lodestar. Id. 433.

The lodestar is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Id. at 433. When calculating attorney's fees, the reasonable hourly rate is to be derived from the market rate for the services rendered. Denius v. Dunlap, 330 F.3d 919, 930 (7M Cir. 2003). The starting point for determining an attorney's market rate is his opportunity cost; that is, the rate the attorney could have received from a client whom he charged by the hour for the same type of work. Cooper v. Casey, 97 F.3d 914, 920 (7th Cir. 1996). The opportunity cost is inferred from the actual rates that clients pay the attorney multiplied by the number of hours worked. Youakim v. McDonald, 171 F.R.D. 224, 229 (N.D. Ill. 1997). The actual billing rate for the attorney doing comparable work in that particular type of litigation is the presumptively appropriate market rate. Denius, supra at 930; Cooper, supra at 920. Any hours claimed that the court believes are based upon inaccurate or misleading records should be excluded. Abkowicz v. West Bend Co., 789 F.2d 540, 550 (7th Cir. 1986).

Thus, Claimant's counsel is presumptively entitled to the rate he would charge his paying clients, but no more than the prevailing market rate. "Judges have to be careful when they are spending other people's money." Cooper, supra at 920. Thus, the market rate is set at what a client will pay willingly, not what the taxpayers are billed in another case. The party seeking an award of fees should submit evidence supporting the hours worked and the rates claimed. Hensley, supra at 433.

Attorney's fees are specified as "the sum total of plaintiffs attorney's fees derived from" an action. Baumgarden v. Challenge Unlimited, Inc., 2006 WL 539514 at *3 (S.D. Ill. 2006).

In calculating a reasonable attorney's fee, the Court has a common and accepted framework, which involves three steps: "making a threshold determination regarding who is a prevailing party; determining a 'lodestar figure' comprised of a reasonable fee multiplied by a reasonable number of hours expended on the litigation; and adjusting the 'lodestar figure' upward or downward based on a variety of factors." Barbee v. Christy-Foltz, 2011 WL 285617 (C. D. Ill. 2011).

The facts of each case determine the amount of the fee to be awarded. Hensley, supra at 430. The reasonableness of attorney's fees are to be viewed in light of all the circumstances for the time and effort expended. Dunning v. Simmons, 62 F.3d 863, 973 (7th Cir. 1995), citing Blanchardv. Bergeron, 489 U.S. 87,93 (1989).

[*190] In contesting the indicated charges by DCFS, Claimant hired the firm of Durkin and Roberts to represent him in his administrative appeal. As part of that appeal, Claimant acquired and paid $94,350.27 in attorney's fees and costs. After prevailing upon administrative review, Claimant retained the firm of Feldman, Wasser, Draper & Cox to pursue this claim for attorney's fees. As a result of this claim, Claimant has accumulated an additional $38,206.31 in attorney's fees and costs. Attorney Feldman demonstrated that his experience and resulting success in this case justifies this award of attorney's fees.

Respondent claims that this matter did not become contested until the Claimant requested an administrative hearing. On the contrary, Claimant contested this case from the very first allegation that was made against him. It was not until the third investigation that he hired Durkin and Roberts as his lawyers in October of 2003. At that time, Claimant was actively contesting the charges that DCFS had alleged against him and his lawyers were actively working to help have the charges against him be unfounded.

After the Claimant was indicated, his lawyers began working on having this finding expunged and began preparing for an administrative hearing. The fees charged by Durkin and Roberts were necessary in contesting the charges that had been made against Claimant. Respondent claims that some fees were improper because they concerned prior DCFS investigations. This is inaccurate. Claimant did not hire Durkin and Roberts until the third investigation had begun and all work that Durkin and Roberts performed for him was related to the third investigation. None of the charges from Durkin and Roberts concern the Claimant's divorce proceedings either. Claimant's lawyers at Durkin and Roberts did have to meet with Claimant's previous divorce attorney, Maol Sloan, to get a better understanding of the background of the case and what issues the Claimant was facing. These meetings, conversations and reviews of documents did not affect Claimant's divorce, but were related to contesting the DCFS charges against him. As such, all claims made by the Claimant for fees and costs should be granted.

Claimant's attorneys in his administrative review hearing charged between $325.00 and $450.00 an hour. These fees are reasonable considering the expertise and experience of attorneys Janis Roberts and Thomas Durkin.

The attorney fee rates of Claimant's current counsel are also reasonable. Attorney Feldman's rate of $250.00 an hour is reasonable considering his experience and talents.

Previous associate attorney Spencer and current associate attorney DiFilippo's rates are also considered reasonable for the Springfield area, considering their work experience.

CONCLUSION

For all of the foregoing reasons, Claimant’s claim for attonrey’s fees and costs is granted, as Claimant has proven that DCFS made an allegation without reasonable cause.

Further, Claimant has shown that the attorney’s fees and expenses totaling $94,350.27 be awarded Claimant, covering the time frame of October 6, 2003 to May 31, 2005, and an adittional amount of $38,206.31 in attorney’s fees and expenses in bringing this claim in this Court, for a total award of $132,556.58.

[*191] No. 06-CC-3576 - Claim awarded) PERRY J. RICHARDSON, Claimant, v. STATE OF ILLINOIS, Respondent.

Opinion filed April 24, 2014 JOHN WUNSCH, for Claimant JILL OTTE, Assistant Attorney General, Respondent.

Negligence- Elements- To prevail, Claimant must prove that Respondent breached its duty to Claimant, that Respondent's breach was the proximate cause of Claimant's injury, and that the injury was foreseeable.

Negligence- Duty- The State and its agencies owe its wards and patients a duty of protection and reasonable care. Respondent has a duty to exercise reasonable care in restraining and controlling dangerous mental health persons in Respondent's custody so they will not have the opportunity to cause foreseeable harm to themselves or others.

Negligence- Foreseeable injury- As to whether the injury to Claimant was foreseeable, the requirement of foreseeability does not require the precise injury to be foreseen.

Negligence- Foreseeable injury- Duty / factors- The factors affecting duty and forseeability are the magnitude of the risk, the burden of requiring the State to guard against the risk, and the consequences of placing this burden on the State.

OPINION

BURNS, J. This claim is before the Court upon a recommendation from Commissioner Herbert B. Rosenberg following an evidentiary hearing.

Claimant, Perry J. Richardson, a disabled person appearing individually and by and through his Mother and Next Friend Marian Richardson, and Marian Richardson, individually, are seeking damages in tort in the amount of $100,000 for physical injuries, medical bills, pain and suffering, disability, disfigurement, loss of income, diminished economic capacity, increased risk of future injury, and miscellaneous future medical expenses related to three complained incidents on April 4, 2005, August 23, 2005, and January 19, 2006.

Claimant is a mentally disabled individual at the Samuel H. Shapiro Development Center ("Shapiro"), a site operated by Respondent. Claimant alleges that during the April 4, 2005 incident, the Shapiro staff was negligent in restraining and controlling Claimant, which caused injuries to Claimant. Claimant alleges that during the August 23, 2005 incident, the Shapiro staff was negligent in restraining or controlling another Shapiro [*192] patient, thereby causing injuries to Claimant when that patient ran away from a designated area and struck Claimant while Claimant was on a flight of stairs which caused Claimant to fall down the flight of stairs. Claimant alleges that during the January 19, 2006 incident, the Shapiro staff was negligent in restraining and controlling Claimant, which caused injuries to Claimant. Claimant also alleges that medical expenses were incurred during each of these three incidents and that these medical expenses may be recovered under the Illinois Family Expense Act (750 ILCS 65/15).

Mr. Karl Hunsicker of the Law Offices of John C. Wunsch, P.C. appeared on behalf of the Claimant at the evidentiary hearing on August 26, 2011. Ms. Jill K. Otte from the Office of the Illinois Attorney General appeared on behalf of the Respondent. Ms. Carol A. Dorencz of Lisa A. Kotrba & Associates, Ltd., a Certified Shorthand Reported, produced a transcript of the hearing.

Claimant was deposed on April 11, 2011. Dr. Alexander Michalow, M.D., was deposed on April 16, 2011. An evidentiary hearing was conducted before Commissioner Herbert B. Rosenberg on August 26, 2011 where the two depositions were admitted into evidence and testimony was provided by Ms. Richardson, by Sharon Gross, a unit director at Shapiro, and by Wayne Maltman, a maintenance employee at Shapiro. Respondent's departmental reports were also admitted into evidence. Each of the three complained incidents is discussed as follows:

FACTS AND LEGAL ANALYSIS

Incident on April 4, 2005 Several notes in Respondent's departmental reports, as well as the testimony of Sharon Gross, indicate that in the early a.m. hours on April 4, 2005, Claimant had a violent behavioral episode. Claimant approached a Shapiro staff monitoring area and threatened Shapiro staff members. Claimant physically struck Shapiro staff members. In response to Claimant's behavior, Shapiro staff placed Claimant in physical restraints. Claimant thrashed around while in the physical restraints before calming down to a point where the restraints were removed the next morning. At some point during the incident, Claimant's face made contact with the bed frame resulting in a swollen jaw, but no fractures or dental injuries. Respondent's departmental reports classify Claimant's injury as accidental. An anonymous call to the Office of Inspector General alleged that an improper restraining technique was used during the incident. Ms. Gross provided testimony regarding the restraint policy in effect at Shapiro, which is to use restraints as the last resort. Also, Ms.

Gross testified that Ms. Richardson expressed concern as the cause of the injury to Claimant. Ms, Gross testified that an investigation was conducted that concluded that Claimant accidentally hit his face on the bed headboard during physical restraining, which was required because nothing else worked, after maladaptive behavior by Claimant.

As presented in Little v. State, 54 Ill.Ct.Cl. 353 (2001), the State and its agencies owe its wards and patients a duty of protection and reasonable care. For a Claimant to recover against the State in a negligence claim, Claimant must prove by a preponderance of the [*193] evidence that the duty was breached by a negligent act or omission and that such negligence was the proximate cause of the injuries sustained. Id.

Claimant has not sustained the burden of proof with respect to the April 4, 2005 incident. While counsel for Claimant argued that the Shapiro staff restrained Claimant a little too forcefully, most of the evidence in the record suggests the following: (i) that Claimant was acting violently at the time of the incident; (ii) that it was necessary to place Claimant in physical restraints due to his violent behavior; and (Ill) that the cause of Claimant's injury was from accidently striking the bed frame while fighting against the physical restraints. The only evidence to suggest otherwise was an anonymous report of improper restraint that was neither described in detail nor corroborated.

Based on the evidence entered into the record, Claimant has failed to meet the burden of proof. Claimant did not provide enough credible evidence to show that the injury to Claimant's jaw was caused by anything other than accidental means. Claimant's claim with respect to this incident is denied.

Incident on August 23, 2005 The deposition of Claimant and the testimony of Wayne Maltman establish that on August 23, 2005, Claimant was assisting Mr. Maltman in carrying supplies up a flight of stairs at one of the Shapiro buildings. When Mr. Maltman reached the second floor and opened the door, another Shapiro resident ran out the door and down the stairs. Claimant testified at his deposition that he saw the other individual coming at him fast and that there was nothing he could do to prevent the collision. This Shapiro resident collided with Claimant and knocked Claimant down the stairs. Claimant was treated for an injury to his right knee. Ms. Gross testified that, based on a review of departmental reports, the Shapiro resident that collided with Claimant was under a restrictive level of supervision at Shapiro.

This Shapiro resident was either on a one-to-one level of supervision, which would require one Shapiro mental health technician be assigned to supervise that particular Shapiro resident, or on a visual observation level of supervision, which would require a Shapiro mental health technician to keep the Shapiro resident within eyesight.

With respect to Claimant's knee injury, Dr. Michalow states in his deposition that he examined Claimant on August 31, 2005, eight days after the incident, Dr. Michalo's opinion is that the incident caused a tear in Claimant's lateral meniscus and anterior cruciate ligament ("ACL"). Claimant had surgery to remove the lateral meniscus, but Claimant has not had his ACL repaired or replaced because the ACL tear was not a high grade tear. Dr. Michalow stated that this type of injury initially causes pain and that it has a short-term rehabilitation with most patients needing a few sessions but no more than a month of rehabilitation. The future effects of Claimant's injury are unknown, but some patients may develop arthritis. Ms. Richardson testified that Claimant had some rehabilitation done after the surgery on his knee. She also testified that since the incident, Claimant has complained to her about his knee when Claimant is performing physical activities like riding a bike or playing ball.

[*194] As stated in Smith v. State, 47 Ill.Ct.Cl. 118 (1994), Respondent has a duty to exercise reasonable care in restraining and controlling dangerous mental health persons in Respondent's custody so they will not have the opportunity to cause foreseeable harm to themselves or others. To prevail, Claimant must prove that Respondent breached its duty to Claimant, that Respondent's breach was the proximate cause of Claimant's injury, and that the injury was foreseeable. Id.

In the present case, the evidence in the record shows that another Shapiro resident took advantage of a door opened by Mr. Maltman and escaped from his supervising mental health technician. This individual was under a restrictive level of supervision that required the mental health staff to keep him within eyesight at a minimum. While the Shapiro resident might have escaped from the Shapiro mental health staff for only a few moments and have been in the adjacent stairwell, the fact remains that the mental health technician responsible for watching this Shapiro resident was unable to keep this Shapiro resident under the required level of observation, which might have prevented the occurrence of this incident. Therefore, the Respondent has breached its duty to control the Shapiro resident who was under a restrictive level of supervision.

With respect to proximate cause, Mr. Maltman's testimony establishes that it was the Shapiro resident running into Claimant that caused Claimant to fall down the stairs and Dr. Michalow's deposition provides an expert opinion that this fall was the cause of Claimant's knee injury. Therefore, Claimant has satisfied the proximate cause element to prove Respondent's negligence.

As to whether the injury to Claimant was foreseeable, the requirement of foreseeability does not require the precise injury to be foreseen. Smith at 129. Respondent cited the case Karpowicz v. Board of Trustees of the University of Illinois, 60 Ill.Ct.Cl. 201 (2008) regarding the need for the occurrence to be legally foreseeable. Karpowicz states that the factors affecting duty and forseeability are the magnitude of the risk, the burden of requiring the State to guard against the risk, and the consequences of placing this burden on the State. Karpowicz at 208. Karpowicz involved a pedestrian who was struck by traffic on a street near the University of Illinois campus, where the University was employing crowd and vehicle control prior to a sporting event. The Court in Karpowicz found that the State did not have a duty to the pedestrian since the pedestrian did not utilize a designated crosswalk when crossing the street. The present case differs from the facts in Karpowicz since Claimant was permitted to be in the stairwell at the time the other Shapiro resident collided with Claimant. In Claimant's case, a mental health resident that required a restrictive level of observation ran off into a stairwell and was temporarily unsupervised.

In this situation, the possibility of an individual on the stairs being knocked down the stairs is well within the realm of possibilities. The risk of injury when a Shapiro mental health resident escapes supervision can be significant. Also, there is no additional burden upon the State to guard against this risk. Respondent had already placed the Shapiro resident who collided with Claimant on a restrictive level of supervision and had incurred the expense of doing so. The consequence of placing this burden on the State is to make the Respondent perform a duty that the Respondent has already agreed to perform in [*195] supervising this Shapiro resident. Based on these facts, the injury to Claimant is found to have been legally foreseeable.

The injury to Claimant is found to be entirely caused by Respondent's breach of its duty to adequately control the Shapiro resident who was under a restrictive level of supervision. Claimant was not in an unauthorized area at the time of the incident.

Claimant was in fact assisting Mr. Maltman in delivering supplies. Based on Claimant's deposition, Claimant also appeared to be aware of what was happening around him, but was unable to avoid being knocked down by the Shapiro resident. In short, Claimant was injured through no fault of his own, so there is no comparative negligence to reduce any award.

Under the law, Claimant is entitled to recover damages from the breach of Respondent's duty that caused injury to Claimant. The record includes medical bills related to this incident that total $16,037.88. Claimant should be awarded $16,037.88 for the medical bills incurred from his injury.

Claimant also seeks damages for pain and suffering, disability, disfigurement, loss of income, diminished economic capacity, increased risk of future injury, and miscellaneous future medical expenses. Claimant testified at his deposition that when he fell down the stairs he was "in pain. Real pain." Richardson Dep. 7:9-10. Ms. Richardson's testimony shows that Claimant also had to have some rehabilitation for his knee.

Additionally, Dr. Michalow testified at his deposition that this type of injury caused immediate pain at the time of the initial injury. The evidence on record shows that Claimant experienced pain from his injury. Claimant should be awarded $5,000 for the pain and suffering from his injury.

With respect to disability, Claimant's injury is permanent to the extent that Claimant has "permanent loss of the ACL" in his right knee. Michalow Dep. 14:20-21. Also, as Dr. Michalow testified at his deposition, Claimant had a lateral meniscectomy, so Claimant is missing the part of his lateral meniscus with the tear. Claimant's mother testified that Claimant has complained of mild pain when performing physical activities.

On the other hand, Respondent's departmental reports show that Claimant's involvement in the Special Olympics has not been diminished subsequent to Claimant's injury. Plus, Claimant stated in his deposition that he can ride his bike for about 70 minutes at a time to keep in shape for the Special Olympics. Overall, there is enough evidence on record to show that Claimant has incurred some degree of disability due to the permanent nature of the ACL injury to his right knee. Therefore, Claimant should be awarded $5,000 for the partial disability to his knee.

As to Claimant's economic earning capacity, Respondent's departmental reports contain payroll reports of amounts earned by Claimant prior to and subsequent to his injury. There is no evidence that Claimant's economic earning capacity has been impacted due to his injury. With respect to Claimant's claim of an increased risk of future injury, there is nothing in the record to indicate that Claimant is at risk of future injury. Finally, with respect to future medical expenses, Dr. Michalow's testimony at his deposition was that the long-term consequences of Claimant's injury are unknown. While other patients [*196] may develop arthritis at some point, the available evidence does not conclude with a reasonable degree of medical certainty that Claimant will develop arthritis and incur future medical expenses.

Overall, Claimant is awarded $26,037.88, of which $16,037.88 is for medical expenses, $5,000 for pain and suffering, and $5,000 for a partial disability. Respondent has asserted a right to set-off, since the $16,037.88 in medical bills has been paid by the State on Claimant's behalf, directly by Shapiro and through Medicaid. The Court has reviewed the Respondent's Motion For Set-Off, filed May 1, 2007; and grants the motion. Therefore, Claimant's award of $26,037.88 shall be reduced by the amount of $16,037.88 to reflect the medical bills paid by the State on Claimant's behalf.

Incident on January 19, 2006 Several notes in Respondent's departmental reports indicate that on January 19, 2006, Claimant had a physical altercation with another Shapiro resident. In response to Claimant's behavior, Shapiro staff placed Claimant in physical restraints. Claimant was later noted to have a swollen cheek and some scratches and abrasions. Respondent's departmental reports classify Claimant's injury as self-inflicted.

As presented in Little v. State, 54 Ill.Ct.Cl. 353 (2001), the State and its agencies owe its wards and patients a duty of protection and reasonable care. For a Claimant to recover against the State in a negligence claim, Claimant must prove by a preponderance of the evidence that the duty was breached by a negligent act or omission and that such negligence was the proximate cause of the injuries sustained. Id.

The Claimant has not sustained the burden of proof with respect to the January 19, 2006 incident. Counsel for Claimant alleges that Claimant was physically beaten and punched. However, the evidence in the record does not establish the cause of Claimant's swollen cheek. The burden is on Claimant to prove by a preponderance of the evidence that Respondent breached its duty of care and that Respondent breached its duty of care to Claimant. Based on the evidence entered into the record, Claimant has failed to meet the burden of proof. Claimant did not provide enough evidence to show that the injury to Claimant's cheek was caused by Respondent breaching a duty of care to Claimant.

Claimant's claim with respect to this incident is denied

Illinois Family Expense Act

For each of these three incidents, Claimant has also claimed to have incurred medical bills and expenses which would enable recovery pursuant to the Illinois Family Expense Act. The Illinois Family Expense Act (750 ILCS 65/15) provides that the expenses of the family are chargeable to the property of both a husband and wife. A child's medical expenses are family expenses under the Illinois Family Expense Act. See, Proctor Hosp. v.

Taylor, 279 IU.App.3d. 624(1996).

[*197] Turning to the incidents at hand, there are no medical bills entered into the record related to the incidents on April 4, 2005 or January 19, 2006. Therefore, there is no basis for any relief to be granted.

With respect to the August 23, 2005 incident, Ms. Gross testified that Claimant's medical expenses were paid by Respondent. Also, Ms. Richardson testified that Shapiro paid Claimant's medical bills and that she has not paid any of Claimant's medical bills.

Since Claimant did not incur any out of pocket expenses, there are not any damages that require a remedy under the Illinois Family Expense Act. Therefore, Claimant's three claims under the Illinois Family Expense Act are denied.

IT IS HEREBY ORDERED:

1. Claimant's negligence claims with respect to the April 4, 2005 incident and the January 19, 2006 incident are denied; 2. Claimant's three claims under the Illinois Family Expense Act are denied; 3. Claimant is awarded $26,037.88 with respect to the negligence claim related to the August 23, 2005 incident, of which $16,037.88 is for medical expenses, $5,000 for pain and suffering, and $5,000 for a partial disability. Claimant's award is subject to set-off for medical expenses paid by Respondent. The Claimant, therefore, shall be awarded $10,000; and 4. The award to Claimant should be paid to a Guardian of the Estate of Perry J. Richardson. Claimant shall file with the Court letters of office issued by the probate division of a court of competent jurisdiction.