Organizing for America | C.L.I.C.K. for Justice and Equality: Illinois Department of Corrections & Sheridan Correctional Center: Illinois Attorney General's Motion for Summary Judgment

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Illinois Department of Corrections & Sheridan Correctional Center: Illinois Attorney General's Motion for Summary Judgment

By Fred from South Holland, IL - Mar 12th, 2009 at 6:14 pm EDT

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On February 19, 2009 the Illinois Attorney General's office filed a Motion for Summary Judgment regarding my claim for damages to my vehicle while parked in the parking lot at Sheridan Correctional Center. This is my response to their Summary Judgment request.

IN THE COURT OF CLAIMS – STATE OF ILLINOIS

FRED NANCE JR., )

)

Claimant, )

)

vs. ) No. 07 CC 3511

)

STATE OF ILLINOIS )

)

Respondent. )

NOTICE OF FILING

TO: Lynn Palmgren Commissioner David Neal

Assistant Attorney General 3180 Theodore Street, Suite 105

General Law Bureau Joliet, Illinois 60435

100 W. Randolph St., 13th Floor

Chicago, Illinois 60601

Please take notice that on March 3, 2009, I caused to be filed with the Clerk of the Court of Claims at 100 West Randolph Street, 10th Floor, Chicago, Illinois 60601, the attached Claimant’s Answer to the Respondent’s Motion for Summary Judgment.

CERTIFICATE OF SERVICE I, Fred L. Nance Jr., certify that I caused the above notice and claimant’s answer to the respondent’s motion for summary judgment to be served upon Commissioner David Neal, by U.S. mail, postage paid, to address listed above and Assistant Attorney General Lynn Palmgren by hand-delivering a copy to the address listed above on March 3, 2009. Respectfully submitted, Fred L. Nance Jr., ABD, MA, CADC IN THE COURT OF CLAIMS – STATE OF ILLINOIS

FRED NANCE JR., )

)

Claimant, )

)

vs. ) No. 07 CC 3511

)

STATE OF ILLINOIS )

)

Respondent. )

CLAIMANT’S MOTION FOR SUMMARY JUDGMENT AND ANSWER TO RESPONDENT’S MOTION FOR SUMMARY NOW COMES the Pro Se claimant, Fred Nance Jr., moving this Honorable Court to enter Summary Judgment in favor of Claimant pursuant to 735 ILCS 5/2-1005(a)(d), allowing Claimant to amend his pleading pursuant to 735 ILCS 5/2-1005(g), and deny Respondent’s summary judgment Instanter. In support of the Claimant’s request for Summary Judgment, amendment to petition and answer to Respondent’s Summary Judgment, Claimant states as follows:BACKGROUND

On or about April 4, 2007 or April 5, 2007 Claimant’s 2006 Nissan Sentra (vehicle) was damaged on the passenger-front side by a hit-and-run vehicle while parked in the parking lot of Sheridan Correctional Center (Sheridan).
Claimant was employed by WestCare Foundation, Inc. (WestCare) at Sheridan.
On April 4, 2007 Claimant worked at Sheridan from 12:00 pm to 8:00 pm.
On April 5, 2007 Claimant worked at Sheridan from 7:30 am to 3:30 pm.
On April 4, 2007 and April 5, 2007 Claimant parked his vehicle in the parking lot at Sheridan, diagonally, facing another vehicle.
On April 4, 2007 Claimant left Sheridan at 8:00 pm and went straight home, parking in his garage.
Claimant did not see the front of his vehicle because he approached the vehicle from the rear, entering his vehicle and it was dark outside.
Claimant has a 2-car garage.
Claimant’s garage is attached to his home.
Claimant’s wife vehicle was parked in the garage upon the Claimant’s arrival at home.
On April 4, 2007 Claimant never saw damage to his vehicle because he pulled his vehicle into his garage front-end first, got out of his vehicle and went around his wife’s vehicle to enter the house.
On the morning of April 5, 2007 Claimant walked around his wife’s vehicle to enter his vehicle.
Claimant backed out of his garage, and drove to Sheridan.
Claimant reported for work at Sheridan at approximately 7:30 am.
Claimant pulled into a diagonal parking space, front-end first, facing another vehicle.
On April 5, 2007 Claimant left work at approximately 3:30 pm, approaching his vehicle from the rear, entering it and drove to his next employment.
On April 5, 2007 Claimant went to his 2nd job where he parked his vehicle in front of his place of employment for his 2nd job.
The Claimant exited his vehicle meeting his client at the entrance door of his 2nd place of employment.
The Claimant’s client asked him what happened to his vehicle.
The Claimant realized at that time that his vehicle had been damaged in the parking lot at Sheridan.
Claimant cannot reveal the identity of this client because of confidentiality, unless ordered by this Honorable Court.
Claimant can produce an Affidavit from the client upon order from this Honorable Court.
Claimant filed an Illinois Motorist Report (report #04-04-1200) with the Sheridan Police Department. (Claimant’s Exhibit C)
On April 6, 2007 Claimant completed and submitted an Illinois Department of Corrections’ (IDOC) 434 incident report to Sheridan’s Internal Affairs department, reporting damage to his vehicle, which happened on Illinois State property at Sheridan. (See Respondent’s Exhibit A)
Claimant gave Lieutenant Charles Truitt, Internal Affairs Coordinator at Sheridan, a picture of the damage to his vehicle to assist in his investigation. (Claimant’s Exhibit A)
Claimant talked to Lt. Truitt who informed the claimant that he could not definitively determine how his vehicle was damaged because the security cameras for Sheridan’s parking lot could not pick up the accident.
Claimant informed Lt. Truitt that his vehicle was not the only vehicle that was damaged in the last 30 to 60 days in the Sheridan parking lot.
Claimant informed Lt. Truitt that his colleague, Ms. Kyra Peters, reported serious damage to her vehicle by a hit-and-run driver at Sheridan while parked on State property.
Lt. Truitt acknowledged to the Claimant that he received a 434 incident report from Kyra Peters stating her vehicle had been hit by a car while it was parked in the parking lot at Sheridan.
Lt. Truitt informed the claimant that the parking lot cameras could not pick up who hit Kyra’s vehicle.
Lt. Truitt did nothing to correct the security camera problem.
Claimant wrote a letter to Illinois Department of Corrections Director Roger E. Walker explaining the accidents to his vehicle and the vehicle of Ms. Kyra Peters while parked in the Sheridan parking lot. (Exhibit B)
Mr. Walker never replied to the Claimant’s letter.
Kyra Peter’s vehicle was damaged in the parking lot of Sheridan by a hit-and-run driver before the Claimant’s vehicle was damaged in the parking lot of Sheridan.
Kyra Peters reported this accident/incident to Lt. Truitt at Sheridan through a 434 report.
Lt. Truitt, Warden Michael Rothwell nor Roger Walker did anything about the security cameras at Sheridan after learning they could not see Kyra Peters’ vehicle being damaged.

STANDARD OF REVIEW

Proximate cause requires the plaintiff to show that the defendant's negligence was (1) the actual cause or the cause in fact of his injury, i.e., but for the defendant's conduct, the accident would not have occurred; and (2) the legal cause of his injury, i.e., the defendant's conduct was so closely tied to the plaintiff's injury that he should be held legally responsible for it." McCraw v. Cegielski, 287 Ill. App. 3d 871, 873 (1996). Proximate cause "must be established to a reasonable certainty," and may not be "based upon mere speculation, guess, surmise or conjecture." Castro v. Brown's Chicken & Pasta, Inc., 314 Ill. App. 3d 542, 553 (2000). However, reasonable inferences supported by circumstantial evidence may support a finding of proximate cause. McCraw, 287 Ill. App. 3d at 873.
In deciding a motion for summary judgment the court considers the pleadings to determine what the issues are and in so doing it presupposes that the pleadings join the issue. Olivieri v. Coronet Insurance Co., 173 Ill. App. 3d 867, 870, 528 N.E.2d 986 (1987); Metropolitan Sanitary District of Greater Chicago v. Anthony Pontarelli & Sons, Inc., 7 Ill. App. 3d 829, 839, 288 N.E.2d 905 (1972).
A summary judgment is an appropriate remedy only if the pleadings, depositions, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Purtill v. Hess, 111 Ill. 2d 229, 240 (1986); 735 ILCS 5/2-1005 (West 2006).
Summary judgment is a drastic measure and should only be granted if the

movant's right to judgment is clear and free from doubt." Genender v. Erlich, 272 Ill. App. 3d 895, 899, 651N.E.2d 544 (1995).

Because a summary judgment is a drastic remedy that defeats the nonmovant's right to a trial, it should be granted only where the movant's right is "so clear as to be free from doubt." Community Bank of Greater Peoria v. Carter, 283 Ill. App. 3d at 508 (1996).
The purpose of summary judgment is not to try a question of fact but to determine if one exists. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 517, 622 N.E.2d 788, 792 (1993).
A triable issue precluding summary judgment exists where the material facts are disputed or, where the material facts are undisputed, reasonable persons might draw different inferences from the undisputed facts. Gilbert, 156 Ill. 2d at 518, 622 N.E.2d at 792.
Summary judgment should only be allowed when the right of the moving party is clear and free from doubt. Gilbert, 156 Ill. 2d at 518, 622 N.E.2d at 792.
Summary judgment is proper if, and only if, the pleadings, depositions, affidavits and other relevant matters on file show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Prowell v. Loretto Hospital, 339 Ill. App. 3d 817, 822, 791 N.E.2d 1261, 1265 (2003).
In determining whether a genuine issue of material fact exists, a court must construe the pleadings, admissions and affidavits strictly against the movant and liberally in favor of the opponent. Prowell, 339 Ill. App. 3d at 822, 791 N.E.2d at 1265.
All evidence before a court considering a summary judgment motion must be considered in the light most favorable to the nonmoving party (In re Estate of Hoover, 155 Ill. 2d 402, 410-11 (1993)), and summary judgment should be denied not only if there are disputed facts, but also if reasonable people could draw different inferences from the undisputed facts (Wood v. National Liability & Fire Insurance Co., 324 Ill. App. 3d 583, 585 (2001)).
Summary judgment is proper where, when viewed in the light most favorable to the nonmoving party, "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2002); Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315, 821 N.E.2d 269 (2004).

STATEMENT OF DISPUTED FACTS

The movant bears the initial burden of production in a motion for summary judgment. Williams v. Covenant Medical Center, 316 Ill. App. 3d 682, 689 (2000). A defendant moving for summary judgment may meet its burden of production either by presenting evidence that, left unrebutted, would entitle it to judgment as a matter of law or by demonstrating that the plaintiff will be unable to prove an element of its cause of action. Williams, 316 Ill. App. 3d at 688. Until the defendant supplies facts that would demonstrate its entitlement to judgment as a matter of law, the plaintiff may rely on the pleadings to create questions of material fact. Williams, 316 Ill. App. 3d at 689. However, should a defendant present such facts, the burden then shifts to the plaintiff to present some evidence allowing the imposition of liability on the defendant and supporting each element of his cause of action, thereby defining a material issue of fact to be determined at trial. Williams, 316 Ill. App. 3d at 689; Wortel v. Somerset Industries, Inc., 331 Ill. App. 3d 895, 899-900 (2002); Garcia v. Nelson, 326 Ill. App. 3d 33, 38 (2001).
What is at dispute here is that the Illinois Department of Corrections (IDOC) and Sheridan Correctional Center (Sheridan) is responsible for 3rd party acts on Illinois State property.
Claimant has stated that his vehicle was damaged by another vehicle while parked in Sheridan’s parking lot.
Like other issues of duty, whether a defendant has voluntarily undertaken a duty to a plaintiff is a question of law for the court Lange v. Fisher Real Estate Development Corp., 358 Ill. App. 3d 962, 973 (2005). Therefore, with a showing from which the court could infer the existence of a duty, recovery by a plaintiff is possible as a matter of law and summary judgment in favor of the defendant is improper." Haupt v. Sharkey, 358 Ill. App. 3d 212, 216 (2005).
The Respondent’s basic argument is that they meet the burden of summary judgment by presenting evidence that is not rebutted or showing that the Claimant would not be able to prove an element of his cause of action that they would be entitled to judgment as a matter of law.
Respondent’s argument is rebutted.
Respondent’s cannot prove that the Claimant’s vehicle was under video surveillance the “entire time” he was parked at Sheridan because by their own admission that video surveillance cameras cover 3 parking lots and 5 acres of land and is a time-loop video surveillance camera. (See Respondent’s Exhibit B ¶ 6 & C ¶ 4)
If Claimant’s vehicle was under “constant” video surveillance, Sheridan could not monitor any other vehicles or any other incidents occurring in the parking lots at the time they occur. (See Respondent’s Exhibit C, ¶s 2, 3 & 4) It would be impossible to have “Claimant’s vehicle under video surveillance during the entire time it was parked at Sheridan Correctional Center on April 4, 2007 and April 5, 2007….” (See Respondent’s Exhibit B, ¶ 6) This statement is false because it the Claimant’s vehicle would have to be under video surveillance for 8 hours.
Lt. Truitt purposely and maliciously provided a false Affidavit for the Respondent’s request for summary judgment.

Proximate cause requires the plaintiff to show that the defendant's negligence was (1) the actual cause or the cause in fact of his injury; and (2) the legal cause of his injury, i.e., the defendant's conduct was so closely tied to the plaintiff's injury that he should be held legally responsible for it." McCraw v. Cegielski, 287 Ill. App. 3d 871, 873 (1996). Proximate cause "must be established to a reasonable certainty," and may not be "based upon mere speculation, guess, surmise or conjecture." Castro v. Brown's Chicken & Pasta, Inc., 314 Ill. App. 3d 542, 553 (2000). However, reasonable inferences supported by circumstantial evidence may support a finding of proximate cause. McCraw, 287 Ill. App. 3d at 873.
Claimant can demonstrate evidence that the Respondents were aware that their video surveillance camera could not view accidents occurring in their parking lots because they could not identify who hit Kyra Peters vehicle.
The Respondents did nothing to correct the problem of their video surveillance camera system after acknowledging to Kyra Peters that they could and did not see who hit her vehicle while it was parked in the parking lot at Sheridan.
During 2007, Claimant was employed by WestCare Foundation, Inc. at Sheridan.
Kyra Peters, an employee of WestCare Foundation, Inc at Sheridan, reported her vehicle damaged by a hit-and-run driver while she was parked in the parking lot at Sheridan.
Kyra Peters reported her vehicle damaged before the Claimant reported his car damaged.
Kyra Peters is a witness at trial.
Claimant is presenting evidence that the video surveillance cameras at Sheridan did not pick up Kyra Peters vehicle being damaged by another vehicle parked in the Sheridan parking lot.
Lt. Truitt reviewed the videotapes of the date and time as indicated in the Incident Report (Official IDOC document 434) of Kyra Peters’ vehicle being damaged when it was parked in Sheridan’s parking lot stating he (Lt. Truitt) could not determine from the video surveillance when Kyra Peters’ vehicle was damaged.
Lt. Truitt and Warden Michael Rothwell had working knowledge that the security cameras at Sheridan could not pick up Ms. Peters vehicle being damaged by a hit-and-run driver.
Lt. Truitt and Warden Michael Rothwell knew that the security cameras used for surveillance of the parking lots at Sheridan were insufficient to monitor 3 parking lots and 5 acres.
Claimant did not list in his allegations Respondent’s failure to monitor his vehicle while parked in the parking lot at Sheridan due to the brevity of the property claim form issued by the State of Illinois, Illinois Court of Claims.
If this Honorable Court believes the Claimant’s “Property Damage Form” fails to alleged sufficient data to state an appropriate claim, Claimant has requested to amend his petition/complaint for clarity by citing 735 ILCS 5/2-1005(g) if this Honorable Court believes that because the Claimant did not “specifically” mention his vehicle being monitored by video surveillance cameras, which respondent’s hang their hat on for summary judgment.
A plaintiff fixes the issues in controversy and the theories upon which recovery is sought by the allegations in his complaint. The very purpose of a complaint is to advise the defendant of the claim it is called upon to meet. In ruling on a motion for summary judgment, the court looks to the pleadings to determine the issues in controversy a plaintiff's remedy in such a circumstance is to move to file an amended complaint [under section 2-616(a) or section 2-1005(g) of the Code of Civil Procedure.” Gold Realty Group Corporation v. Kismet Café, Inc., d/b/a Muskies, and Gonen Reha Arica, Ill. 2d (2005).

ARGUMENT

Respondents suggest the video surveillance is continuous.
The Respondents suggest the video surveillance at Sheridan, specifically; the cameras surveying 3 parking lots and 5 acres of land sufficiently monitor all activity in the parking lots at Sheridan.
This surveillance is done in “still” time frames for a designated period of time, which Lt. Truitt shared with the Claimant in their interview process.
It is conceivable, and for reasonable minds or people, to believe when the Claimant’s vehicle was damaged the surveillance camera did not pick up the incident because the camera was surveying other parking lots or the 5 acres of land Respondents admit too in their Summary Judgment report (Exhibit C, ¶4).
Lt. Truitt concurred with this analysis when talking with the Claimant.
The proximate cause of an injury can become a question of law only when the facts are not only undisputed but are also such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn from them. Mack, 283 Ill. App. 3d at 57, 669 N.E.2d at 612-13.
In addition, Lt. Truitt informed the Claimant that even though he could see his vehicle parked in the parking lot of Sheridan, he could not see the damage to the Claimant’s vehicle because of how the Claimant’s vehicle was parked.
Claimant’s vehicle was parked with the front end facing another vehicle, which may have been the vehicle that damaged the Claimant’s vehicle.
Claimant’s damage was to the front end of his vehicle. (Exhibit A)
Claimant alleges that the respondent’s negligence caused Claimant’s vehicle to be damaged in the parking lot at Sheridan because the Respondents did nothing upon learning that another employee of WestCare Foundation, Inc. at Sheridan had her vehicle damaged by a hit-and-run driver.

CONCLUSION

Respondents state “Claimant would not be able to prove that the Respondent was negligent and its negligent proximately caused Claimant’s property because no evidential facts exist to support this allegation….” (Respondent’s Summary Judgment report at ¶32)
The purpose of summary judgment is not to try a question of fact but to determine if one exists. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 517, 622 N.E.2d 788, 792 (1993).
Respondents negligence is a material fact, and at issue here. Respondents did nothing to assure the surveillance cameras at Sheridan were monitoring their parking lots appropriately upon learning that Kyra Peters’ vehicle had been damaged by a hit-and-run driver, and that the surveillance cameras did not pick up the perpetrator of the damage. In Eliot v. Williams (2004) the court reports "a defendant may be held liable even if his negligence is not the sole proximate cause of the plaintiff's injuries, so long as his conduct contributed in whole or in part to the injury." This is admissible evidence, satisfying Brown, Udell & Pomerantz, Ltd. v. Ryan, 369 Ill. App. 3d (1st Dist. 2006).
Discovery will reveal Kyra Peters filed an IDOC 434 Incident Report stating her vehicle had been damaged by a hit-and-run driver in Sheridan’s parking lot, which Lt. Truitt reported he could not find evidence through his examination using the surveillance cameras for the parking lots, even though Ms. Peters’ vehicle was damaged in Sheridan’s parking lot on the date and time she reported it.
Kyra Peters’ damage to her vehicle on Illinois State property at Sheridan raises issues of material fact and is evidentiary for the Claimant’s damage to his vehicle on Illinois State property at Sheridan. Proximate cause is ordinarily a question for the jury to decide. Mack v. Ford Motor Co., 283 Ill. App. 3d 52, 57, 669 N.E.2d 608, 612 (1996).
The issue of proximate cause in a negligence suit is generally an issue of material fact to be determined by the trier of fact; however, it can be determined by a court as a question of law if "the facts as alleged show that the plaintiff would never be entitled to recover." Abrams v. City of Chicago, 211 Ill. 2d 251, 257-58 (2004).
To recover damages based on negligence, plaintiff must allege and prove that defendant owed a duty to plaintiff, that defendant breached that duty, and that the breach was a proximate cause of plaintiff’s injuries. First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 256 (1999).
In order for a Claimant to prevail in a property damage claim, the claimant must prove by a preponderance of the evidence that the State was negligent, that the negligence was the proximate cause of the claimant’s injuries and damages. Amos v. State, 55 Ill. Ct. Cl. 368 (2003)
The Claimant’s answer to the Respondent’s Motion for Summary Judgment has sufficiently met this standard.
Claimant’s vehicle cannot be under surveillance during the entire time it was parked at Sheridan’s parking lot as Respondents claim because as Respondents report the surveillance camera, specifically camera #3 as reported by Warden Michael Rothwell (Exhibit C, ¶ 4) that views the Claimant’s vehicle covers 3 parking lots and 5 acres of land. The Respondents Summary Judgment report is full of contradictory statements, such as demonstrated here. The Respondents report there surveillance cameras remain stationary for extended periods of time. (See Exhibit C, ¶ 4)

What is the extended period of time? What determines the period time that the surveillance camera is stationary? These are material facts at issue and in dispute.WHEREFORE, based on the foregoing, the Claimant respectfully moves this Court to deny summary judgment to the Respondent.The Claimant is only requesting the expense for repairs to his vehicle, which is $567.26 at this time. (Claimant’s Exhibit D) If the Claimant is forced to forego additional cost through litigation, Claimant will request legal fees and whatever this Honorable Court deems necessary and appropriate. Respectfully submitted, Fred Nance Jr., ABD, MA, CADC, NCRS

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