author: JUSTICE McNULTY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTONIO LOPEZ, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 89—0549
    Opinion filed June 21,1991.

      Michael J. Pelletier and Marc Davidson, both of State Appellate Defender’s Office, of Chicago, for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and David S. Meyerson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

On October 27, 1986, Nan Zhou’s apartment at 3415 North Marshfield in Chicago was burglarized. Zhou and his wife had returned home from the bank to find the front door of their apartment open, the dead bolt lying on the floor, and a man running out the back door. Following a police chase, a suspect matching the description given by Zhou was apprehended and later identified as defendant, Anthony Lopez. After a jury trial, Lopez was found guilty of residential burglary, and due to previous felony convictions, sentenced as a Class X offender to a 20-year term of incarceration.

On appeal, defendant first contends that a bona fide doubt existed as to his fitness and that the trial judge erred by not conducting a fitness hearing. The State maintains that this issue is not applicable, as a fitness hearing was not requested at any time before or after trial or at the sentencing hearing. The trial judge only became aware of defendant’s psychological problems when presented with the Treatment Alternatives to Street Crimes (TASC) report at the sentencing hearing. Even though statutory authority provides that a question as to defendant’s fitness may be raised at any time, before, during, or after trial (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 11(a)), defense counsel did not request a fitness hearing after presentation of the TASC report. Nevertheless, because it would be a violation of due process to convict a defendant who was mentally unfit to stand trial (People v. Murphy (1978), 72 Ill. 2d 421, 430, 381 N.E.2d 677; People v. Wilson (1984), 124 Ill. App. 3d 831, 464 N.E.2d 1158), the trial judge has a duty to order a fitness hearing sua sponte once facts are brought to the judge’s attention which raise a bona fide doubt of the accused’s fitness to stand trial or be sentenced. Murphy, 72 Ill. 2d 421, 381 N.E.2d 677.

Illinois courts have found that the applicable test of a defendant’s fitness for trial consists largely of his ability to understand the nature and purpose of the proceedings against him, and to assist in his own defense. (People v. Wilson (1984), 124 Ill. App. 3d 831; People v. Green (1983), 116 Ill. App. 3d 815, 452 N.E.2d 767.) A defendant has been found fit to stand trial even though he had a history of mental illness and suicide attempts, as long as he was able to understand the nature of the proceedings and the charges against him. (People v. Stevens (1989), 188 Ill. App. 3d 865, 544 N.E.2d 1208.) Where, however, a bona fide doubt is raised as to a defendant’s fitness to stand trial, the court must order a hearing held. (Ill. Rev. Stat. 1987, ch. 38, par. 104— 11(a).) Whether a bona fide doubt has been raised is a decision resting largely within the discretion of the trial court. (People v. Bivins (1981), 97 Ill. App. 3d 386, 422 N.E.2d 1044.) However, it has been determined that the mere fact that a defendant has suffered some mental disturbance or required psychiatric treatment at some time does not raise a bona fide doubt as to his fitness for trial. Green, 116 Ill. App. 3d 815, 452 N.E.2d 767.

In the case at bar, the presentence investigation indicated that Mr. Lopez stated that he was at Reed Mental Hospital during 1978-79, and that for three months in 1974 he was at Elgin State Hospital because he had attempted to commit suicide. Mr. Lopez had also suffered a drug overdose in 1981. A TASC psychological report indicated that Mr. Lopez had been kept in the residential treatment unit of the jail, and that his emotional and personality functioning were “characterized by anxiety, depression, impulsivity and angry outbursts.” It also noted that Mr. Lopez was basically a “fearful individual who can be irritable and unpredictable in his actions with others, leading to conflict and an inability to function appropriately in interpersonal relations.” The report also mentioned Mr. Lopez’s recent use of psychotropic medication and reported recent suicide ideation.

Defendant maintains that his past stays at mental hospitals, his prior suicide attempt, his taking of psychotropic medication, a recent refusal to take such medication, and the TASC report which recommended that he receive ongoing psychiatric services would lead to the conclusion at the very least that there was a bona fide doubt as to his fitness to be tried and sentenced. This argument misconstrues Illinois law, which as stated above, does not find mental illness and/or suicide attempts to be determinative of a defendant’s fitness to stand trial. Fitness implicates only the accused’s ability to be fit for trial; it does not refer to sanity or competence in other areas. People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.

Hlinois courts have found a bona fide doubt as to a defendant’s fitness under the following circumstance: when a defendant was unavailable at a sentencing hearing because he had eaten metal and glass (People v. Harris (1983), 113 Ill. App. 3d 663, 666, 447 N.E.2d 941, 944); when a defendant repeatedly stated that God was his attorney and the public defender informed the court that he was unable to communicate with the defendant (People v. Thomas (1969), 43 Ill. 2d 328, 330, 253 N.E.2d 431); when a defendant thought that a deputy was trying to kill him and he had to be removed from the court howling (People v. Johnson (1984), 121 Ill. App. 3d 859, 861, 460 N.E.2d 336, 338); when a defendant was taken into custody the same day he was released from the mental hospital after two judicially ordered commitments and given a cursory psychological exam when requested by the State (People v. McLain (1967), 37 Ill. 2d 173, 226 N.E.2d 21); and when a defendant whose fitness and ability to communicate with his counsel depended on medication and such medication was not given prior to the sentencing hearing (People v. Jackson (1978), 57 Ill. App. 3d 809, 814, 373 N.E.2d 583, 587). In all of the above circumstances, the defendants were not only mentally disturbed, but also presented the trial court with evidence that they could not understand the nature of the proceedings against them. In this respect they differ from the case at hand, in which there is no indication that Mr. Lopez, though undeniably mentally disturbed, failed to comprehend the charges against him.

Defendant further urges that the trial court was obligated to hold a fitness hearing pursuant to section 104 — 21(a) of the Illinois Code of Criminal Procedure of 1963, which provides that “[a] defendant who is receiving psychotropic drugs or other medications under medical direction is entitled to a hearing on the issue of his fitness while under medication.” (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 21(a).) The Illinois Appellate Court has construed this statutory provision and found that when a defendant’s use of psychotropic medication is made known to the trial judge before he has any real opportunity to assess defendant’s fitness, a proper exercise of discretion would indicate that a fitness hearing should be held. However, where the entire trial has proceeded with no bona fide indication to the trial judge that the defendant is unfit, no request for a hearing is made, nor is the circumstance of defendant’s taking the medication even made known to the trial judge until after the trial, the exercise of the judge’s discretion does not require him to sua sponte conduct a fitness hearing. (People v. Tilson (1982), 108 Ill. App. 3d 973, 439 N.E.2d 1298; People v. Balfour (1986), 148 Ill. App. 3d 215, 498 N.E.2d 547, appeal denied (1987), 114 Ill. 2d 548.) (The United States District Court and the Seventh Circuit Court of Appeals also denied habeas corpus relief in Balfour on due process grounds.) Balfour v. Haws (7th Cir. 1989), 892 F.2d 556.

We therefore find, based on the above authority, that the trial judge did not abuse his discretion in conducting a fitness hearing for defendant Lopez.

Defendant further contends that he was incorrectly sentenced as a Class X offender as the State did not adequately prove all elements required for enhanced sentencing. The Class X sentence enhancement statute provides as follows:

“When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second.” (Ill. Rev. Stat. 1987, ch. 38,1005 — 5—3(cX8).)

Thus, before a defendant may be sentenced as a Class X offender, it must be established that his first prior felony was committed after the effective date of this act, the second after conviction on the first, and the third after conviction on the second. A failure to establish that sequence requires vacating the sentence and remanding for resentencing. People v. Washington (1990), 195 Ill. App. 3d 520, 552 N.E.2d 1067.

The only evidence the State produced on defendant’s prior convictions was the Chicago police department record showing dates of prior arrests and convictions, as well as certified copies of two of the convictions. Although the State produced no evidence as to the dates of commission of the prior offenses, it argues that the dates of commission may be inferred from the dates of arrest. This argument is supported by the following First District Appellate Court decisions: People v. Kinzer (1991), 214 Ill. App. 3d 790; People v. Kennard (1990), 204 Ill. App. 3d 641, 561 N.E.2d 1188; People v. Williams (1990), 201 Ill. App. 3d 434, 559 N.E.2d 96, appeal allowed (1990), 133 Ill. 2d 570; and People v. Harris (1987), 157 Ill. App. 3d 70, 510 N.E.2d 107, appeal denied (1987), 116 Ill. 2d 567. However, a contrary position has been taken by the first division in People v. Pietruszynski (1989), 189 Ill. App. 3d 1071, 545 N.E.2d 942, appeal denied, (1990), 129 Ill. 2d 570; the fifth division in People v. Washington (1990), 195 Ill. App. 3d 520, 552 N.E.2d 1067, appeal denied (1990), 133 Ill. 2d 570; the third division in People v. Parks (1988), 168 Ill. App. 3d 978, 523 N.E.2d 130, and the second district in People v. Hamilton (1990), 198 Ill. App. 3d 108, 555 N.E.2d 785, appeal allowed (1990), 133 Ill. App. 3d 564. In the absence of a decision by the Illinois Supreme Court, we find the reasoning in Hamilton and Washington persuasive and therefore hold that the State must produce some evidence of the dates of commission of defendant’s alleged prior offenses. Consequently, we must remand for resentencing.

Defendant further contends that if we remand this cause for re-sentencing, principles of double jeopardy would preclude him from being retried as a Class X offender. In support of this argument, defendant relies on Hamilton. Again, in the absence of a decision by the Illinois Supreme Court, we choose to follow the reasoning in Washington and conclude that because the sentencing hearing in the instant action did not bear the hallmarks of a trial on the issue of guilt or innocence, double jeopardy does not attach, and that defendant may be retried as a Class X offender.

In line with our finding that the sentencing hearing does not amount to a mini-trial, we also hold that the standard of proof required to show the prior offenses is not beyond a reasonable doubt, and that proof of these offenses may be presented in any manner that the sentencing court, in its discretion, finds to be reliable and trustworthy. See People v. Shelton (1991), 208 LI. App. 3d 1094, 567 N.E.2d 680.

Defendant finally argues that the trial judge abused his discretion at sentencing by not considering all the mitigating factors and by specifically considering defendant’s psychologial problems as an aggravating factor. Our careful review of the record indicates that the trial judge did not abuse his discretion at sentencing and merely considered the defendant’s psychological profile as a framework for his prior criminal convictions.

Because defendant was improperly sentenced as a Class X offender, we remand for a new sentencing hearing.

Remanded.

MURRAY and GORDON, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    COMMUNITY CONSOLIDATED SCHOOL DISTRICT No. 54, Plaintiff-Appellant, v. ILLINOIS STATE BOARD OF EDUCATION et al., Defendants-Appellees (Patrick S. et al., Defendants).
    First District (5th Division)
    No. 1 — 89—1019
    Opinion filed June 21, 1991.
    — Rehearing denied July 26,1991.

      John A. Relias and Jennifer A. Murphy, both of Vedder, Price, Kaufman & Kammholz, of Chicago, for appellant.
    Roland Burris, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE McNULTY

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County, denying the motion of Community Consolidated School District No. 54 (School District) for assessment or allocation of attorney fees against the Illinois State Board of Education (ISBE) and the Illinois Department of Mental Health and Developmental Disabilities (DMHDD).

This case arises out of a dispute regarding the appropriate educational placement of Patrick S., a handicapped child of primary school age, who is a resident in the School District. Prior to 1986, Patrick had been been placed by the School District in a special education class at the John Muir School. In May and June of 1986, following Patrick’s hospitalization for behavioral problems, the School District conducted multidisciplinary staff conferences to further evaluate Patrick’s special education needs. Representatives of DMHDD were invited to but did not attend the conferences. Following the conferences, the School District recommended that Patrick be placed at the Behavior Education Center, a more restrictive program than Patrick’s previous special education program.

Patrick’s parents disagreed with the placement, believing that Patrick’s special education needs required a residential placement instead, and therefore requested a Level I due process hearing in order to resolve the dispute. On September 29, 1986, the Level I hearing officer determined that Patrick’s educational needs were so complex as to require residential placement and that this residential placement was to be paid in full by the School District.

On October 9, 1986, the School District appealed from the Level I decision. During the pendency of this proceeding, Patrick’s parents filed a request with DMHDD for an Individual Care Grant to cover the room and board costs attendant to a residential placement. On November 17, 1986, DMHDD denied this request. On December 1, 1986, the Level II hearing officer affirmed the Level I decision finding in favor of residential placement for Patrick. The Level II hearing officer did, however, note that a procedural void exists in Illinois for the proper handling of cases such as Patrick’s and therefore the “school district is correct in their feeling that the problem has been, ‘politically dumped’ on the school district.” The Level II hearing officer modified the Level I decision to the extent that the school district was ordered to involve DMHDD or other State agencies in a multidisciplinary staff conference to determine an appropriate residential placement. The record does not indicate that this post-Level II conference was ever convened by the School District.

On January 2, 1987, the School District filed a declaratory action in the circuit court of Cook County seeking judicial review of the Level II decision. The suit was filed against Patrick, his parents, ISBE and DMHDD, seeking reversal of the Level II residential placement decision or, in the alternative, a declaration of funding responsibility of ISBE or DMHDD if the placement decision were upheld by the court.

On June 10, 1987, Patrick’s parents made an emergency motion to implement residential placement. The court granted the motion for interim residential placement and ordered the School District to pay the tuition, while ISBE and DMHDD were ordered to share in the cost of room and board. Patrick was placed at the Larkin Home for Children on August 3, 1987.

On March 28, 1988, Patrick’s parents filed an application for interim attorney fees pursuant to 20 U.S.C. section 1415(e)(4)(B) (1988) against the School District. On September 27, 1988, the trial court ordered the School District to pay Patrick’s parents $26,206.25 in attorney fees, having found that “the issue and disposition of the relative financial responsibility between ISBE and DMHDD for tuition, room & board, and Educational Advocate costs does not have any effect on petitioners’ rights under HCPA, 94 — 142.”

Thereafter, the School District moved to allocate the attorney fees either in whole, or in part, to ISBE and DMHDD on the ground that Patrick’s parents had prevailed against those agencies. The School District contended that since ISBE and DMHDD were ordered to pay for room and board, the School District was a prevailing party vis-a vis ISBE and DMHDD. The trial court refused to apportion the attorney fees, finding that the School District had “unreasonably prolonged” the proceedings leading to Patrick’s placement. It is from this order that the School District appeals.

The Education of the Handicapped Act (EHA) ensures that handicapped children are given access to free, public education by providing Federal funds to assist State and local agencies in meeting the special education needs of handicapped students. (20 U.S.C. §1400 et seq. (1988).) In 1986, Congress enacted the Handicapped Children’s Protection Act (HCPA), which amended section 1415(e)(4) of the EHA to provide that:

“[i]n any action or proceeding brought under this subsection, the court, in its discretion may award reasonable attorneys’ fees as part of the costs to the parents or guardian of a handicapped child or youth who is the prevailing party.” 20 U.S.C. § 1415(e)(4)(B) (1988).

Patrick’s parents were awarded attorney fees under section 1415, and the School District does not contest the parents’ entitlement to such fees. Rather, the School District claims that it too is a prevailing party vis-a-vis ISBE and DMHDD and as such is entitled to have the attorney fees either assessed or apportioned to ISBE and DMHDD under section 1415(e)(4)(B). Specifically, the School District contends it was the prevailing party in the judicial proceedings it initiated in light of the fact that the noneducational costs of Patrick's residential placement were allocated to ISBE and DMHDD.

Initially, we note that it would be contrary to the language of section 1415(e)(4)(B) to assess the attorney fees to the DMHDD and ISBE based on a finding that the School District was the prevailing party. It is well settled that attorney fees cannot be awarded to a successful litigant in the absence of an authorizing statute or contract. (Meyer v. Marshall (1976), 62 Ill. 2d 435, 343 N.E.2d 479.) Where statutory authority exists, courts may only enforce such a statute to the terms of its specific language. (Verni v. Imperial Manor of Oak Park Condominium, Inc. (1981), 99 Ill. App. 3d 1062, 425 N.E.2d 1344.) According to the plain language of section 1415(e)(4)(B), attorney fees may be granted to “parents or guardians of a handicapped child” who are prevailing parties. The section does not state that fees may be granted to school districts who are prevailing parties.

Furthermore, while Patrick’s parents may have prevailed against DMHDD and ISBE by having these agencies pay for the cost of residential placement, the parents also prevailed over the School District by the very fact that the parents did obtain residential placement for Patrick. To qualify as a prevailing party, a plaintiff must succeed in obtaining some relief from the defendant against whom attorney fees are sought. (Max M. v. Illinois State Board of Education (N.D. Ill. 1988), 684 F. Supp. 514, aff'd (7th Cir. 1988), 859 F.2d 1297.) The School District claims that from the outset, it agreed that Patrick required special education and it only disputed the necessity of Patrick’s residential placement and ISBE and DMHDD’s refusal to accept responsibility for the cost thereof. Thus, the School District contends that the direct and proximate cause of the attorney fees incurred by Patrick’s parents was the refusal of ISBE and DMHDD to accept their financial responsibility for the room and board costs attendant to Patrick’s residential placement.

A review of the record indicates that not only were the attorney fees incurred as a result of the refusal of ISBE and DMHDD to accept responsibility for the residential placement, but also as a result of the School District’s failure to acknowledge Patrick’s need for residential placement. In the administrative and judicial proceedings, the School District disputed both the necessity of Patrick’s residential placement and the State defendants’ refusal to accept responsibility for the cost thereof. It is abundantly clear from a review of the Level I and Level II decisions as well as the circuit court’s order of July 10, 1987, that the parents have always sought residential placement for Patrick and have always obtained rulings that Patrick was in need of residential placement. The School District, throughout the proceedings, alleged that there was no need for residential placement. While the School District offered placement for Patrick at the Behavior Education Center, this in no way approximated the residential placement that the parents sought from the outset. Had the parents accepted the School District’s placement offer, Patrick would not have been residentially placed. Given the fact that Patrick’s parents’ attorney fees were incurred in pursuit of a residential placement, which the School District opposed at the administrative and judicial levels, we would be remiss to find the School District free from responsibility for the attorney fees expended by the parents, the prevailing party in their pursuit of residential placement for Patrick.

While the School District is not completely relieved of responsibility for Patrick’s parents’ attorney fees, we refuse to hold the School District exclusively responsible for the fees. Rather, the responsibility for the fees should be apportioned among ISBE, DMHDD and the School District.

There is ample authority that in a section 1415 proceeding for fees, fees should be allocated between parties involved in the placement of children who need special education and in administering the decree. Where the parents of the handicapped child have prevailed against both State and local defendants in pursuit of a special education program, the award is apportioned. See Tonya K. v. Board of Education (7th Cir. 1988), 847 F.2d 1243 (the Chicago Board of Education and ISBE to share equally the attorney fees, where class action plaintiffs obtained consent decree from both defendants); Jose P. v. Ambach (2d Cir. 1982), 669 F.2d 865 (fee award assessed 80% to city defendant and 20% to State defendant in proportion to their violation of law).

Apportionment is only proper where a plaintiff has obtained relief from both defendants. Consequently, even where a plaintiff has filed suit against State and local defendants, courts have refused to apportion fees to a defendant against whom the handicapped child has not prevailed. See Max M. v. Illinois State Board of Education (N.D. Ill. 1988), 684 F. Supp. 514, aff’d (7th Cir. 1988), 859 F.2d 1297 (since plaintiffs succeeded in obtaining relief from School District but not against ISBE, the School District was assessed all of the fees); Counsel v. Dow (2d Cir. 1988), 849 F.2d 731 (since plaintiff prevailed within the meaning of section 1415 with respect to certain defendants but not with respect to others, court imposed the cost of attorney fees only upon those against whom plaintiff prevailed); J.G. v. Board of Education of the Rochester City School District (W.D.N.Y. 1986), 648 F. Supp. 1452, aff’d as modified & remanded (2d Cir. 1987), 830 F.2d 444 (State defendant not liable for fees where plaintiff prevailed against local educational defendants only).

In the instant case, apportionment of attorney fees is appropriate by virtue of the fact Patrick’s parents prevailed against the School District, DMHDD and ISBE in pursuit of residential placement for Patrick. The EHA enforcing regulations specifically provide that its requirements and obligations extend to all political subdivisions involved in the education of handicapped children (34 C.F.R. §300.2(b) (1990)) including:

(1) The State education agency;
(2) Local education agencies and intermediate educational units;
(3) Other State agencies and schools (such as Departments of Mental Health and Welfare and State school for the deaf and blind); and
(4) State correctional facilities.

Indeed, in Parks v. Department of Mental Health & Developmental Disabilities (1982), 110 Ill. App. 3d 184, 441 N.E.2d 1209, the court recognized that the EHA was binding on DMHDD and on all other educational agencies of Illinois. Accordingly, since DMHDD and ISBE are subject to the EHA, both agencies are also subject to the imposition of attorney fees in appropriate circumstances.

This is an appropriate circumstance in which to apportion fees among the three agencies. As discussed above, the School District was responsible for this litigation in light of the fact that it challenged Patrick’s need for residential placement. Furthermore, DMHDD refused to assume financial responsibility for the cost of residential placement, thereby compelling the School District to continue to litigate through administrative and judicial appeals. Representatives from DMHDD were invited to participate in the proceedings regarding Patrick’s placement. DMHDD, however, declined to participate in these proceedings. In addition, Patrick’s parents filed a request with DMHDD for an Individual Care Grant for the cost of room and board in residential placement. DMHDD also declined this request.

ISBE was involved in this dispute from its inception as a necessary consequence of its inherent and regulatory responsibility to oversee compliance with the EHA. (See 20 U.S.C. §1412(6) (1988); 34 C.F.R. §300.600 (1990).) The ultimate responsibility for assuring compliance with Federal law rests with ISBE. (Parks v. Pavkovic (N.D. Ill. 1982), 536 F. Supp. 296, 304, aff’d in part & rev’d in part on other grounds (7th Cir. 1985), 753 F.2d 1397; see Stuart v. Nappi (N.D. Conn. 1985), 610 F. Supp. 90 (court assessed fees upon both local and State defendants notwithstanding the fact that an order was never entered against the State defendant since the State educational agency is responsible for assuring that the local agencies comply with the policies of the EHA); Jose P. v. Ambach (2d Cir. 1982), 669 F.2d 865, 870-71 (in light of the fact that it is the responsibility of the State board of education to supervise local boards of education and to make sure that they are living up to their obligations to handicapped students, when the court entered an order against the local defendant commanding it to observe plaintiffs’ rights under the Handicapped Act, the court was doing the State defendant’s job).) In addition, the body responsible for rendering the Level II decision was the ISBE, and it ruled that the School District was fully responsible for the financial burden of the cost of the residential placement, thereby declining to assume the cost of the placement itself.

Ultimately, Patrick’s attorney fees were incurred as a result of the School District’s concern over whether Patrick was in need of residential placement, and if so, who would incur the cost of the placement. Had the School District not disputed Patrick’s need for residential placement, had DMHDD attended the multidisciplinary conference and granted the parents’ request for an Individual Care Grant and had ISBE carried out its duty to supervise the implementation of a residential placement for Patrick, these agencies might well have obviated the problem and for the need for this litigation altogether. Given the interrelationship between their responsibilities -with respect to Patrick's residential placement and focusing on the relative degree of culpability among the agencies, we conclude that the School District, ISBE and DMHDD are each equally responsible for the attorney fees.

For the reasons set forth above, the decision of the circuit court of Cook County denying plaintiff’s motion for allocation of attorney fees is reversed and the School District, DMHDD and ISBE are each assessed one third of Patrick’s parents’ attorney fees.

Reversed.

LORENZ, P.J., and GORDON, J., concur.


author: JUSTICE MURRAY

text:
    MARY YETSKY, Plaintiff-Appellee, v. ALLAN L. DUNTEMAN, JR., et al., Defendants-Appellees (The Village of Addison, Intervenor and Plaintiff-Appellant).
    First District (5th Division)
    No. 1 — 90—3380
    Opinion filed June 21,1991.

      Stuart D. Gordon, of Moss & Bloomberg, Ltd., of Bolingbrook, for appellant.
    Corboy & Demetrio, P.C., of Chicago (Philip H. Corboy, Thomas A. Demetrio, and Robert J. Single, of counsel), for appellee Mary Yetsky.
    Keevers & Hittle, of Chicago (Richard M. Hittle, of counsel), for appellees Allan L. Dunteman, Jr., and R.W. Dunteman Company.
   JUSTICE MURRAY

delivered the opinion of the court:

The Village of Addison (Village) appeals from an order of the circuit court of Cook County denying its petition to intervene in the action brought by Mary Yetsky (Yetsky), plaintiff, against Allan L. Dunteman (Dunteman) and the R.W. Dunteman Company (Company), defendants. The order was made final and appealable by the inclusion of the necessary language set forth in Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

The facts are undisputed. On December 16, 1988, Yetsky filed a complaint against Dunteman and Company, seeking to recover for damages she incurred as a result of a September 12, 1988, automobile accident, wherein she had been struck by a truck that was owned by the Company and operated by Dunteman.

At the time of the accident, Yetsky was an employee of the Village of Addison, which provided her with medical expense coverage as a benefit of her employment. In accordance with the Village’s group health care plan, the Village itself was responsible to pay up to $50,000 annually of an employee’s medical expense claims. Medical costs in excess of $50,000 were to be paid by Provident Life and Accident Company (Provident), pursuant to a contract entered into with the Village of Addison.

On June 15, 1990, the Village and Provident petitioned the trial court to intervene in Yetsky’s lawsuit against Dunteman and Company, pursuant to sections 2 — 408(a)(2) and (b)(2) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 408(a), (b)), claiming that they had an interest in the pending litigation based on their right of subrogation. The petitions were objected to by plaintiff and defendants alike, and on October 30, 1990, the trial court entered an order denying the petitions to intervene. Only the Village has appealed from this order.

On appeal the Village contends that the trial court abused its discretion in denying the petition to intervene. Recognizing that its right to intervene in Yetsky’s cause of action is dependent upon its right to subrogation, the only issue raised by the Village on appeal is whether it has a right to subrogation. Although a copy of the Village’s group health insurance plan was not made a part of the record, it appears that the right of subrogation was not included in the Village’s health plan and, consequently, the Village is not basing its claim of right to subrogation on a contractual right, but on a common law or equitable right.

Dunteman and Company respond by arguing that the order denying the petition to intervene fails to reveal the basis for the denial, but that the record shows that the Village’s affidavits, filed with its petition, were defective and did not set forth its right to subrogation as required by the statute. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 403(c).) Therefore, they contend that the trial court’s denial of the Village’s petition to intervene was a proper exercise of its judicial discretion. Yetsky argues that the Village has no common law right of subrogation in this case because it, in effect, “volunteered” to provide medical coverage to Yetsky and failed to reserve the right of subrogation. For this reason they believe the petition to intervene was properly denied. Both of these arguments have merit and, therefore, we affirm the trial court’s order.

In a factually similar case, Schultz v. Gotlund (1990), 138 Ill. 2d 171, 561 N.E.2d 652, our supreme court noted that there are two broad categories of subrogation rights: (1) contractual or conventional rights, and (2) common law or equitable rights. It then went on to hold that, although equitable subrogation rights have been implied where necessary to avoid an unfair result, such a right has not been recognized in the area of personal insurance. Thus, it ruled that, absent a subrogation provision in the policy of insurance, an insurance carrier was not entitled to share in the settlement or proceeds that its insured recovered from a third-party tortfeasor.

The Village attempts to distinguish the Schultz case by asserting that it is not an insurance carrier, but rather a public employer providing medical coverage through a group health insurance plan. However, we fail to see that the difference creates a distinction sufficient to allow the Village to assert an implied right of subrogation. The Village is, in effect, the insurer for the medical expenses of its employees up to the amount of $50,000 per year, while Provident is the insurer of the remainder. Had the Village included a subrogation clause in its medical coverage contract with its employees, it would have had a recognizable contractual right to subrogation for any medical expenses it paid for Yetsky. Absent such a provision, however, we do not believe that the right may be implied.

The Village relies heavily on the case Geneva Construction Co. v. Martin Transfer & Storage Co. (1954), 4 Ill. 2d 273, 122 N.E.2d 540, but its reliance is misdirected. That case involved an employer’s right to subrogation for workmen’s compensation expenses paid. In such instances an employer has an obligation under the law to provide compensation. This is not the case here, where an employer has no statutory duty to provide medical coverage. Thus, an employer may be deemed to have “volunteered” such a benefit and a common law right to subrogation will not be implied. See Bost v. Paulson’s Enterprises, Inc. (1976), 36 Ill. App. 3d 135, 139, 343 N.E.2d 168.

Because we find that the Village was not entitled to subrogation, we find that the trial court’s order denying the Village’s right to intervene was proper and not an abuse of discretion. Accordingly, we affirm.

Affirmed.

LORENZ, P.J., and McNULTY, J., concur.


author: JUSTICE McNAMARA

text:
    LEVOLIA ELLENS, Plaintiff-Appellant, v. CHICAGO AREA OFFICE FEDERAL CREDIT UNION et al., Defendants-Appellees.
    First District (6th Division)
    No. 1 — 90—1212
    Opinion filed June 21,1991.

      Chanon Williams, of Chicago, for appellant.
    Hinshaw & Culbertson, of Chicago (D. Kendall Griffith, Peter D. Sullivan, and Gary L. Bazydlo, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Levolia Ellens, filed suit against defendants Chicago Area Office Federal Credit Union (credit union); board of directors of Chicago Area Office Federal Credit Union (board of directors); and Cumis Insurance Society, Inc. (Cumis), to recover salary for services plaintiff rendered as treasurer to a federally organized credit union, and compensatory damages for depriving him of his right to sit on the credit union board of directors. The trial court granted defendants’ motion to dismiss eight counts of plaintiff’s complaint, and the remaining two counts were subsequently dismissed by the court for want of prosecution.

Plaintiff appeals from the dismissal of all 10 counts. The central element for dismissal found in counts II through X concerns the lack of support for plaintiff’s claim of compensable damages. Plaintiff’s failure to provide an adequate justification for his damage calculation is of paramount importance in the dismissal of those nine counts, and outweighs our need to discuss other significant factors taken into account by the trial court in the dismissal of each individual count.

The following facts are adduced from the record. During 1982 and 1983, plaintiff served as a member of the board of directors of the credit union, and also as its treasurer. On March 30, 1983, plaintiff was reelected to the board for a two-year term.

On March 22, 1983, plaintiff issued a check to another board member, Amelia King, -without obtaining board approval, in violation of express credit union regulations. At a meeting on April 7, 1984, the board discussed the facts and circumstances relating to the issuance of the check to King. Plaintiff refused to answer any of the board’s inquiries regarding this incident. On April 17, 1984, the board voted to vacate plaintiff’s office on the board for misconduct. The board notified Cumis, its insurance company which provided surety-ship coverage, of its decision to remove plaintiff from the board. Cumis replied stating that plaintiff’s bond coverage would be terminated under the board’s comprehensive policy of fidelity insurance.

On July 26, 1984, plaintiff made a request to the board for $6,000 as payment for services rendered as treasurer of the credit union. The board refused plaintiff’s request for payment.

In 1985, plaintiff was again elected to the board of directors by the membership of the credit union. The board refused to seat plaintiff or otherwise allow him to participate in board meetings or affairs because bond coverage of plaintiff under its policy with Cumis had been terminated.

In 1984, plaintiff and King filed suit in the United States District Court, Northern District of Illinois, against five individual board members seeking recovery for his salary as treasurer. Federal jurisdiction was based upon the Federal Credit Union Act, 12 U.S.C. §1761 (1988) (the Act). On September 9, 1986, trial was conducted resulting in a directed judgment in favor of defendants.

The U.S. magistrate made the following conclusions of law: (1) the board acted properly within its authority when it removed plaintiff as a member of the board of directors of the credit union; (2) pursuant to the business judgment rule, the board is presumed to have acted on an informed basis, in good faith, and in the honest belief that the action taken to vacate plaintiff’s position on the board was in the best interests of the credit union; (3) the board’s actions in vacating plaintiff’s position were not arbitrary or capricious; and (4) plaintiff was not entitled to recover any compensation for his services as treasurer from defendants.

On November 18, 1987, plaintiff filed this complaint in the circuit court of Cook County against the credit union, the board of directors, Rosemarie Armstrong individually and as a member of the board of directors, and Cumis. Plaintiff sought damages in excess of $50,000 for counts II through IX as compensation for deprivation of his right to run for, hold and serve as a member of the board of directors; to attend board meetings, and to otherwise function as a member of the board. In count X plaintiff alleges civil conspiracy among defendants, for which he claims $500,000 as damages to his reputation and for deprivation of his right to sit on the board of directors. Plaintiff also charges in his conspiracy count that defendants acted with malice, and requested punitive damages of $1,000,000.

COUNT I

In count I, plaintiff sought recovery of the same salary ($6,000) at issue in the Federal action, but named the credit union as defendant instead of the five individual board members. The credit union argues that plaintiff is barred from litigating this claim on the ground of res judicata. We agree.

Under the doctrine of res judicata, a final judgment on the merits which is rendered by a court of competent jurisdiction is conclusive as to the rights of the same parties or their privies, but that judgment bars a later action only if it involves the same cause of action. Significantly, it is conclusive not only as to every matter raised in the first action, but also as to any matter which might have been raised. Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 461 N.E.2d 959; Benton v. Smith (1987), 157 Ill. App. 3d 847, 510 N.E.2d 952.

The essential elements of res judicata are (1) an identity of parties or their privies in the two suits; (2) an identity of causes of action in the earlier and the later suit; and (3) a final judgment on the merits in the earlier suit. (Best Coin-Op, Inc. v. Paul F. Ilg Supply Co. (1989), 189 Ill. App. 3d 638, 545 N.E.2d 481.) In order for a previous judgment to be conclusive, it must appear clearly and certainly that the precise issue was decided in the previous action. (Coulter v. Renshaw (1981), 94 Ill. App. 3d 93, 418 N.E.2d 489.) The party asserting the preclusion bears the burden of showing with clarity and certainty what was determined by the prior judgment. People ex rel. Scott v. Chicago Park District (1976), 66 Ill. 2d 65, 360 N.E.2d 773; Redfern v. Sullivan (1982), 111 Ill. App. 3d 372, 444 N.E.2d 205.

In this case, res judicata is operative as a bar against count I because the issue of plaintiff’s compensation for services rendered as treasurer for the credit union was previously decided in the Federal action. (King v. Armstrong (N.D. Ill. September 9, 1986), No. 84 C 9439.) While plaintiff named the credit union in the present case instead of the five individual board members, privity exists because the board members were agents of the credit union. As such, an adjudication in favor of the agent would necessarily exonerate the principal. (Hays v. Louisiana Dock Co. (1983), 117 Ill. App. 3d 512, 521, 452 N.E.2d 1383, 1390.) Plaintiff’s request for salary represents the same cause of action in which the Federal magistrate found that plaintiff was properly removed from the board of directors and was not entitled to compensation for his services as treasurer.

We conclude, therefore, that the trial court correctly dismissed count I on the basis of res judicata because the Federal court action was a final determination on the merits of plaintiff’s claim for compensation.

COUNT II

Count II is a tort claim against the board of directors of the credit union seeking damages for violation of the board’s alleged duties under the Act. Plaintiff contends that this provision imposes a statutory duty upon the board to provide him with bond coverage from the time he was reelected to a two-year term in December 1985. Plaintiff argues that the board made no attempt during the two-year period to provide a bond for him in violation of its statutory duty.

COUNT III

Count III, also brought against the board of directors, alleges that the board violated a duty imposed by the bylaws of the credit union and its own policy, practice and custom to insure and obtain adequate fidelity coverage for plaintiff. He contends that notwithstanding the fact that the board had purchased fidelity coverage from Cumis, the board had a duty to secure a bond for plaintiff from Cumis or another insurer.

COUNT IV

Count IV complains that the board acted outside of its authority granted by statute, regulations or bylaws in refusing to seat plaintiff on the board of directors.

COUNTS V, VI & VII

Counts V, VI and VII incorporate the allegations of counts II, III and IV respectively; however, these three counts seek recovery from the credit union instead of the board of directors.

COUNTS VIII & IX

These two counts seek recovery against Cumis for failing to provide plaintiff with bond coverage. Plaintiff maintains that Cumis breached its duty under two written agreements to insure the credit union against loss of property caused by any credit union employee or directors, and to insure the board of directors against liability for any wrongful act.

In count IX, plaintiff complains that Cumis lacked a good, valid, legitimate reason to deny bonding of plaintiff, and that Cumis had a duty to deal in good faith with the insured once he was reelected to the board in December, 1985.

COUNTX

Count X alleges that all of the defendants conspired to deprive plaintiff of his right as a member of the credit union to sit on the board of directors. In furtherance of this alleged conspiracy, plaintiff asserts that defendants committed the following acts: (1) Cumis refused to provide bonding coverage to plaintiff, and sent a letter to the board of the credit union stating that coverage would no longer be provided to plaintiff under the discovery bond; (2) the board of directors advised plaintiff that he could not serve, sit or meet with the board; (3) the board did not obtain bonding for the plaintiff.

We turn to the issue of plaintiffs damages. The trial judge found that plaintiff failed to set forth damages with any specificity, and that plaintiff’s allegations that his damages consisted of his inability to sit on the board of directors did not constitute compensable damages. After dismissing counts I through VII and count X, the trial judge allowed plaintiff the opportunity to replead counts VIII and IX pursuant to section 2 — 612 of the Illinois Code of Civil Procedure (111. Rev. Stat. 1987, ch. 110, par. 2 — 612). Plaintiff declined to replead these counts or provide the judge with any indication as to the method utilized to calculate damages. The judge subsequently dismissed counts VIII and IX for want of prosecution.

It is well established that it is the plaintiff’s burden not only to establish that he sustained damages, but he must also establish a reasonable basis for computation of those damages. (Kohlmeier v. Shelter Insurance Co. (1988), 170 Ill. App. 3d 643, 525 N.E.2d 94.) With respect to computation of damages, we find the following passage from Corpus Juris Secundum to be instructive:

“Computation of the amount of damages should be made on a fair and reasonable basis adequately reflecting the injury as revealed by the pleadings and evidence.” 25A C.J.S. §194, at 259 (1966).

After review of the record in counts II through X, we find that dismissal was proper in view of plaintiffs failure to show how he sustained any damages. Plaintiff has not alleged any personal or employment injuries, or that he sustained any loss of economic or property interests as a result of not being able to sit on the board of directors of the credit union. Moreover, plaintiff does not seek reinstatement of his position as a board member.

We find the record devoid of any support whatsoever to support plaintiff’s claim for compensatory damages in the amount of $50,000 for each count. The purpose of compensatory damages is to compensate the plaintiff for damages sustained and not to punish the defendant or to award a windfall to the plaintiff. (McLane v. Russell (1989), 131 Ill. 2d 509, 546 N.E.2d 499.) Since damages cannot be awarded on the basis of speculation or conjecture, plaintiff’s claims must fail. Schoeneweis v. Herrin (1982), 110 Ill. App. 3d 800, 443 N.E.2d 36.

Plaintiff’s prayer for punitive damages fares no better. Punitive damages are awarded when a tort is committed with fraud, actual malice, deliberate violence or oppression, or when a defendant acts in a willful or grossly negligent manner such as to indicate a wanton disregard of others. (Kohlmeier v. Shelter Insurance Co., 170 Ill. App. 3d 643, 525 N.E.2d 94, citing Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) The intent behind the imposition of punitive damages is to punish the defendant, to teach him not to repeat his intentional, deliberate and outrageous conduct, and to deter others from similar conduct. (Cornell v. Langland (1982), 109 Ill. App. 3d 472, 475, 440 N.E.2d 985, 987.) We do not find Cumis’ refusal to provide bond coverage to plaintiff after his previous discharge for misconduct to be an unreasonable action. Further, we do not believe that the credit union’s unwillingness to obtain bond coverage from another source to be the type of conduct that should warrant the imposition of punitive damages.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

RAKOWSKI, P.J., and LaPORTA, J., concur.


author: JUSTICE McNAMARA PRESIDING JUSTICE RAKOWSKI,

text:
    LONNIE MAXWELL, Plaintiff-Appellant, v. HOBART CORPORATION, Defendant-Appellee and Third-Party Plaintiff (Northwestern Memorial Hospital, Defendant).
    First District (6th Division)
    No. 1 — 90—2017
    Opinion filed June 21,1991.

      RAKOWSKI, P.J., dissenting.
    Charles A. Boyle & Associates, Ltd., of Chicago (Charles A. Boyle and Liana A. Bizios, of counsel), for appellant.
    Tressler, Soderstrom, Maloney & Priess, of Chicago (Francis A. Spina, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Lonnie Maxwell, filed a two-count complaint against defendant Hobart Corporation for injuries sustained on June 8, 1986, when his hand became caught in a waste equipment machine manufactured by defendant. The complaint, which sounds in negligence and strict products liability, alleged that the system activated without warning while plaintiff attempted to clear a jam. At the time of the accident, plaintiff was employed by Northwestern Memorial Hospital (Northwestern) in the food service area.

A test performed at Northwestern following the accident revealed that plaintiff’s blood-alcohol level was .136 grams. In re-spending to interrogatories, plaintiff indicated that he had consumed alcohol within the 24 hours prior to the accident, but failed to state the quantity consumed or the time.

Defendant issued a subpoena to Northwestern for production of all its records regarding plaintiff. (Defendant subsequently initiated a third-party claim against Northwestern.) Northwestern informed defendant that it refused to produce records from its “Employee Assistance Program” without plaintiff’s authorization. Plaintiff refused to execute a release and Northwestern continued to refuse to produce the records. (Although the treatment records at issue are not part of the record on appeal, we gather from plaintiff’s brief and from the parties at oral argument that the records concern plaintiff’s treatment for alcoholism.)

Defendant subsequently filed its motion to compel disclosure of the employee assistance program records. The judge directed plaintiff to produce the records for in camera inspection and requested that both parties file briefs on whether the records were discoverable.

On May 11, 1990, after a hearing on defendant’s motion and an in camera review of the records, the court ruled that the documents designated by Bates stamp series 300 were not privileged and were, therefore, discoverable. The court returned all the documents to plaintiff and ordered him to produce them within 14 days. The court also determined that the series 100 and 200 documents, not at issue on appeal, were protected from disclosure.

Despite the court’s order, plaintiff refused to produce the discoverable documents. Defendant moved to compel plaintiff’s compliance or, alternatively, for a rule to show cause against plaintiff’s attorney. At the hearing on the motion, plaintiff, through counsel, indicated that he would not comply with the order due to the sensitive nature of the records. The court then entered a contempt order against the attorney, from which this appeal is taken.

The sole issue on appeal is whether the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1987, ch. 91V2, par. 801 et seq.) or the Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1987, ch. 111½, par. 6358 — 2) protects the records from disclosure. We consider each act separately.

Initially, we note that a trial court is afforded great latitude in ruling on discovery matters, and this court will not disturb such rulings on appeal absent a manifest abuse of discretion. (Computer Teaching Corp. v. Courseware Applications, Inc. (1990), 199 Ill. App. 3d 154, 556 N.E.2d 816.) Pretrial discovery presupposes a range of relevance and materiality much broader than that of admissiblity of evidence at trial. (134 Ill. 2d R. 201(b)(1); Brostron v. Warmann (1989), 190 Ill. App. 3d 87, 546 N.E.2d 3.) Moreover, privileges are to be strictly construed as exceptions to the general duty to disclose during discovery. Waste Management, Inc. v. International Surplus Lines Insurance Co. (1990), 203 Ill. App. 3d 172, 560 N.E.2d 1093.

Plaintiff first maintains on appeal that the trial court erroneously found that Northwestern’s records regarding plaintiff’s treatment for alcoholism were not protected by the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act).

Section 10 of the Confidentiality Act provides, in pertinent part:

“(a) Except as provided herein, in any civil *** proceeding, *** a recipient, and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient’s record or communications.” (Ill. Rev. Stat. 1987, ch. 9½, par. 810(a).)

The Confidentiality Act defines “recipient” as “a person who is receiving or has received mental health or developmental disabilities services.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 911/2, par. 802(6).) Further, the statute defines “record” as follows: “[A]ny record kept by a therapist or by an agency in the course of providing mental health or development disabilities service to a recipient concerning the recipient and the services provided.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 9DA, par. 802(7).

Plaintiff argues that alcoholism treatment is a mental health service within the meaning of the privilege. In support of this contention, plaintiff directs us to references to alcoholism as a “mental disorder” by the American Psychiatric Association and the World Health Organization. We decline, however, to rely on such sources when to do so would defy principles of statutory construction and ignore legislative intent. Although the legislature did not define “mental health services” for purposes of the Confidentiality Act, we cannot conclude that the legislature intended “mental health services” to include alcoholism treatment.

It is a well-settled rule of statutory construction that when two statutes deal with the same subject, one specific and one general, the more specific statute controls. (Crawford County State Bank v. Marine American National Bank (1990), 199 Ill. App. 3d 236, 556 N.E.2d 842.) The Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1987, ch. 9½, par. 801 et seq.) became effective on January 1, 1979. The Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1987, ch. 111½, par. 6351 et seq.), on the other hand, became effective on July 1, 1988. While both statutes protect against disclosure of treatment records, the latter pertains particularly to treatment of alcohol abuse. Because the records at issue here specifically concern alcoholism treatment, the record disclosure provisions of the Alcoholism Act, rather than the Confidentiality Act, control. We decline to give the Confidentiality Act the expansive construction urged by plaintiff.

Moreover, even if the Confidentiality Act protected alcoholism treatment records, we find that the statutory exception to the nondisclosure mandate applies here to permit disclosure. (Ill. Rev. Stat. 1987, ch. 91½, par. 810(a)(1).) The exception to the privilege arises:

“[I]n a civil *** proceeding in which the recipient introduces his mental condition or any aspect of his services received for such condition as an element of his claim or defense, if and only to the extent the court in which the proceedings have been brought *** finds, after in camera examination of testimony or other evidence, that it is relevant, probative, not unduly prejudicial or inflammatory, and otherwise clearly admissible; that other satisfactory evidence is demonstrably unsatisfactory as evidence of the facts sought to be established by such evidence; and that disclosure is more important to the interests of substantial justice than protection from injury to the therapist-recipient relationship or to the recipient or other whom disclosure is likely to harm.” Ill. Rev. Stat. 1987, ch. 91½, par. 810(a)(1).

Plaintiff maintains that the exception does not apply because he did not raise his mental condition as an issue. Additionally, he argues that the records are irrelevant to any issue in this case. Neither argument is persuasive.

We note that the law is by no means settled in this area. Some States’ statutes expressly provide for a waiver when the privilege holder places his physical or mental condition at issue. (See City & County of San Francisco v. Superior Court (1951), 37 Cal. 2d 227, 231 P.2d 26; Davidge v. Davidge (D.C. App. 1984), 451 So. 2d 1051; Werner v. Kliewer (1985), 238 Kan. 289, 710 P.2d 1250; Piller v. Kovarsky (1984), 194 N.J. Super. 392, 476 A.2d 1279; Wimberly Resorts Property, Inc. v. Pfeuffer (Tex. App. 1985), 691 S.W.2d 27; City of Portsmouth v. Cilumbrello (1963), 204 Va. 11, 129 S.E.2d 31.) Other States reach the same result by finding an implied waiver in this situation. (See Bond v. District Court (Colo. 1984), 682 P.2d 33; Mathis v. Hilderbrand (Alaska 1966), 416 P.2d 8; McNutt v. Keet (Mo. 1968), 432 S.W.2d 597.) Still other jurisdictions have held that the filing of a pleading does not constitute a waiver of privilege as to a physical or mental condition described in the pleading. See Wilson v. Bonner (1983), 166 Ga. App. 9, 303 S.E.2d 134; Lewkow v. Grade Square Hospital (1982), 114 Misc. 2d 732, 452 N.Y.S.2d 290; Neese v. Neese (1968), 1 N.C. App. 426, 161 S.E.2d 841.

We believe that plaintiff placed his physiological and biological condition at the time of the accident into issue and made discoverable all information relating to that condition. To prevail in a strict liability action, plaintiff must show not only some defect in the product or design, but also that the condition of the product proximately caused the injury. (Rios v. Navistar International Transportation Corp. (1990), 200 Ill. App. 3d 526, 558 N.E.2d 252.) Although a plaintiff need not allege freedom from contributory negligence, the issue of plaintiff’s comparative fault applies in any strict liability case. (Byrne v. SCM Corp. (1989), 182 Ill. App. 3d 523, 538 N.E.2d 796.) Plaintiff cannot initiate litigation in which his physical condition is a critical consideration, then use the privilege to shield truth-seeking about that condition. (Cf. Dillenbeck v. Hess (1989), 73 N.Y.2d 278, 536 N.E.2d 1126, 539 N.Y.S.2d 707 (defendant did not waive privilege by denying allegations in complaint); Clark v. District Court Second Judicial District (Colo. 1983), 668 P.2d 3 (defendant did not waive privilege by denying allegations in complaint where plaintiff placed defendant’s physical and mental problems at issue).) Moreover, a manufacturer of a product can avoid all responsibility when evidence shows that another’s conduct was the sole proximate cause of injury. (Soto v. E. W. Bliss Division of Gulf & Western Manufacturing Co. (1983), 116 Ill. App. 3d 880, 452 N.E.2d 572.) Based upon the foregoing principles, we believe that plaintiff impliedly introduced his condition as an issue when he filed this suit.

The record reveals that plaintiff’s blood-alcohol level after the accident measured .136 grams. If plaintiff had been operating a motor vehicle at the time of the accident, instead of a waste disposal system, our laws would presume plaintiff was “under the influence of alcohol.” (Ill. Rev. Stat. 1987, ch. 95^2, par. 11-501.2(b)(3).) It is possible that plaintiff’s intoxication may have contributed to or even proximately caused the accident. In addition, the records at issue may lead to discoverable information regarding defendant’s third-party claim against Northwestern. (Monier v. Chamberlain (1966), 35 Ill. 2d 351, 221 N.E.2d 410.) Specifically, if Northwestern knew that plaintiff suffered from chronic alcoholism at the time of the accident but allowed him to operate hazardous machinery, there may exist a basis for Northwestern’s liability. Because plaintiff’s condition of sobriety bears on his capacity to have properly used the machine and, in turn, on plaintiff’s comparative fault and Northwestern’s liability, such condition is relevant. Moreover, such discovery is critical in order for defendant to defend against plaintiff’s claim and to prosecute its third-party claim against Northwestern. In our view, the trial court in its discretion could find, after an in camera review, that the records were relevant and probative to issues in the case. Further, the court could properly find that the interests of substantial justice outweighed any harm to plaintiff from disclosure.

We find Pritchard v. SwedishAmerican Hospital (1989), 191 Ill. App. 3d 388, 547 N.E.2d 1279, and Thiele v. Ortiz (1988), 165 Ill. App. 3d 983, 520 N.E.2d 881, cited by plaintiff, inapposite to this case. In Thiele, this court held that the filing of a wrongful death action did not place decedent’s mental condition at issue. The court rejected defendant’s argument that decedent’s mental condition and relationship with his family were relevant to the loss of society claim and upheld the trial court’s order precluding disclosure of psychological evaluations of decedent.

Unlike Thiele, this case does not pertain to a condition that “may be only peripherally” related to plaintiff’s claim, as the court there reasoned. (Thiele, 165 Ill. App. 3d at 993, 520 N.E.2d at 888.) Rather, as indicated above, plaintiff’s blood-alcohol level has a direct bearing on plaintiff’s claim and Hobart’s defense. Moreover, unlike in Thiele, the records here relate to proximate cause, a critical element of proof in a tort case. Defendant in Thiele alleged that the records at issue related to a loss of society claim in a wrongful death action, which pecuniary injury our law presumes. Bullard v. Barnes (1984), 102 Ill. 2d 505, 468 N.E.2d 1228.

Pritchard, cited by plaintiff for the proposition that recipient must place his mental condition at issue, does not apply here. In Pritchard, a medical malpractice case, this court concluded that plaintiff could not place defendant-doctor’s mental condition at issue. Rather, to waive protection under the Confidentiality Act, the “recipient” must place his mental condition at issue. In this case, plaintiff’s, not defendant’s, condition is at issue. Moreover, as we have indicated above, plaintiff placed his condition at the time of the accident at issue when he filed this action.

Nor do we believe that Tylitzki v. Triple X Service, Inc. (1970), 126 Ill. App. 2d 144, 261 N.E.2d 533, or Webb v. Quincy City Lines, Inc. (1966), 73 Ill. App. 2d 405, 219 N.E.2d 165, requires us to find otherwise. These cases hold that a plaintiff who alleges pain and suffering as an element of damage does not place his mental condition at issue. In both cases, plaintiffs sustained physical injuries resulting from accidents. Both courts recognized that physical trauma does not necessarily result in pain and suffering. Indeed, the Webb court wrote: “[W]e find it difficult to conclude that one undergoing pain and suffering suffers deterioration in mental condition. Nor do we think that in either alleging or considering pain and suffering originating in physical trauma we ipso facto have trauma affecting the mentality.” (Webb, 73 Ill. App. 2d at 408, 219 N.E.2d at 167.) Similarly, the Tylitzki court wrote: “We agree that it is the affirmative aspect which should be controlling. The privilege is too important to be brushed aside when the mental condition of the plaintiff may be only peripherally involved.” (Emphasis added.) (Tylitzki, 126 Ill. App. 2d at 149, 261 N.E.2d at 536.) In this case, we simply cannot say that plaintiff’s condition at the time of the accident is only “peripherally involved.” Rather, as noted previously, plaintiff’s condition of sobriety is a central issue and bears on proximate cause, plaintiff’s comparative fault and the third-party defendant’s liability. As such, Webb and Tylitzki are distinguishable.

Accordingly, we conclude that the Confidentiality Act does not protect alcoholism treatment records from disclosure. Moreover, even assuming the Confidentiality Act applied to the records, the trial court properly found them discoverable under the statutory exception.

We next consider plaintiff’s contention that the Alcoholism Act (Ill. Rev. Stat. 1987, ch. 111½, par. 6358 — 2) protected the records from disclosure. The Alcoholism Act provides that a client’s records pertaining to treatment of alcoholism are confidential and may be disclosed only as authorized by the statute. One exception to the statutory mandate of confidentiality provides in pertinent part:

“Whether or not the patient, with respect to whom any given record referred to in this Section is maintained, gives his written consent, the content of such record may be disclosed ***
*** [i]f authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor. In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the practitioner-patient relationship, and to the treatment services.” Ill. Rev. Stat. 1987, ch. 111½, par. 6358-2.

Plaintiff argues that defendant did not demonstrate good cause for production of the records and that the trial court, therefore, abused its discretion in ordering disclosure. We disagree.

Although we recognize that relevancy alone does not equal good cause, it is an important consideration. Here, contrary to plaintiff’s assertion, the records are relevant to the issues in this case. Plaintiff’s lack of sobriety may have affected his capacity to properly operate defendant’s waste disposal machine. As already noted, the records may contain evidence to defeat plaintiff’s claim or assist defendant in prosecuting its third-party claim against Northwestern, or may lead defendant to such relevant evidence for trial. See Computer Teaching Corp. v. Courseware Applications, Inc., 199 Ill. App. 3d 154, 556 N.E.2d 816.

Although we agree with plaintiff’s characterization of the records as “highly personal and sensitive,” and his contention that disclosure may affect the practitioner-patient relationship if it continues to exist, these concerns do not outweigh the need for disclosure. Further, there is no evidence in the record that plaintiff was still receiving treatment services through Northwestern’s employee assistance program when the trial court ordered disclosure of the records in May 1990. The potential for injury to plaintiff is inconsequential when juxtaposed against defendant’s right to discover evidence in its defense.

Nor are we persuaded by plaintiff’s argument that defendant’s failure to use other discovery methods, such as supplementary interrogatories, requests for production and additional depositions, to prepare its defense mitigates against a finding of good cause. Because plaintiff refused to consent to disclosure of the records, presumably he would not respond to such alternative discovery, raising the same discovery privilege. A practitioner being deposed would similarly raise the privilege. Although the Alcoholism Act applies to the records at issue, the trial court in its discretion properly found good cause for disclosure.

In summary, we are persuaded that plaintiff put his condition in issue and that defendant Hobart is not on a fishing expedition. The interest in having truth triumph outweighs plaintiffs interest in preventing disclosure and such result is consistent with a sound construction of the statutes and the modern trend toward open and full discovery and fundamental fairness between the parties.

In summary, plaintiff’s refusal to comply with the trial court’s order has no basis in either the Confidentiality Act or the Alcoholism Act.

For the foregoing reasons, the judgment of the circuit court of Cook County ordering the disclosure of the records at issue and finding plaintiff’s counsel in contempt of court is affirmed. We direct plaintiff to turn the records over to defendant within 21 days after the filing of this opinion. Plaintiff’s counsel shall be purged of contempt upon compliance with this direction.

Judgment affirmed with directions.

EGAN, J., concurs.

PRESIDING JUSTICE RAKOWSKI,

dissenting:

While I agree with the majority regarding the inapplicability of the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1989, ch. 91½, par. 801 et seq.), I disagree that plaintiff impliedly introduced his mental health condition as an issue when he filed this suit. No Illinois court has ever held that the mere filing of a negligence or strict liability action ipso facto places at issue the mental condition of the plaintiff so as to waive the statutory privilege. Nor does the majority cite any other authority to support its position.

The exception relied upon by the majority to exclude application of the statutory privilege to the facts of this case reads in pertinent part as follows:

“Records and communications may be disclosed in a civil, criminal or administrative proceeding in which the recipient introduces his mental condition or any aspect of his services received for such condition as an element of his claim or defense, if and only to the extent the court *** finds, after in camera examination of testimony or other evidence, that it is relevant, probative, not unduly prejudicial or inflammatory, and otherwise clearly admissible; that other satisfactory evidence is demonstrably unsatisfactory as evidence of the facts sought to be established by such evidence; and that disclosure is more important to the interests of substantial justice than protection from injury to the therapist-recipient relationship or to the recipient or other whom disclosure is likely to harm.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 91½, par. 810(a)(1).

While the majority states that plaintiff’s alcohol treatment records are relevant, probative and the interests of substantial justice require disclosure, the threshold inquiry is whether the plaintiff placed his mental condition at issue. Whether the sought after information is relevant, probative, not unduly prejudicial or inflammatory, etc., are only germane inquiries where the court has first determined that the plaintiff has placed his mental condition in issue.

In Webb v. Quincy City Lines, Inc. (1966), 73 Ill. App. 2d 405, 219 N.E.2d 165, the court held that a complaint alleging pain and suffering as a damage element did not place the plaintiff’s mental condition in issue. The Webb court went on to state, “[W]e think we are under compulsion, therefore, to read section 5.2 literally and hold that the privilege exists unless ‘mental condition’ is specifically made a part of either the claim or defense.” (Webb, 73 Ill. App. 2d at 408; see also Tylitzki v. Triple X Service, Inc. (1970), 126 Ill. App. 2d 144, 261 N.E.2d 533.) Both of these cases stand for the proposition that the privilege is not waived where a plaintiff files a complaint containing a pain and suffering allegation. Yet, the majority in the case sub judice holds that the mere filing of the complaint in and of itself constitutes waiver.

Courts of other jurisdictions, in addressing similar statutes, have refused to find waiver merely because a party filed a pleading in an action where his physical or mental condition may be an issue. In Dillenbeck v. Hess (1989), 73 N.Y.2d 278, 536 N.E.2d 1126, 539 N.Y.S.2d 707, a case involving a physician-patient privilege and an exception similar to the Illinois exception, the court refused to apply the waiver doctrine even though it found that defendant’s physical condition at the time of the accident was clearly in controversy. In Dillenbeck, the defendant had been drinking rather heavily over a seven-hour period leading up to the accident, and there was at least some suggestion that she may have been “shut off” by a bartender because of her intoxicated condition. The court held that

“defendant’s physical condition at the time of the accident is ‘in controversy’ within the meaning of [the statute] and thus potentially subject to discovery.
The information sought by plaintiffs, however — hospital records relating to defendant’s physical condition and blood alcohol content following the accident — indisputably falls within the scope of the physician-patient privilege as information acquired by a physician ‘in attending [defendant] in a professional capacity, and which was necessary to enable him to act in that capacity’ [Citation]. Defendant cannot be said to have waived the privilege simply by denying the allegations in the complaint or by testifying that she cannot remember any details of the incident where the fact of her memory loss is not being advanced to excuse her conduct [citation]. Nor has she waived the privilege by asserting the defenses of comparative negligence and the failure of plaintiffs to wear seat belts since neither defense seeks to excuse the conduct complained of by asserting a mental or physical condition. Moreover, the mere fact that the privilege presents an obstacle to plaintiffs’ discovery of legally pertinent information that would assist them in proving their claim is not, as the dissent seems to suggest, evidence that the privilege is not properly recognized in this case. Indeed, it is inherent in the very nature of an evidentiary privilege that it presents an obstacle to discovery and it is precisely in those situations where confidential information is sought in advancing a legal claim that such privilege is intended to operate. Were we to carve out an exception to the privilege whenever it inhibited the fact-finding process, it would quickly become eviscerated.” Dillenbeck, 73 N.Y.2d at 288-89, 536 N.E.2d at 1133, 539 N.Y.S.2d at 714.

See also Koump v. Smith (1969), 25 N.Y.2d 287, 250 N.E.2d 857, 303 N.Y.S.2d 858.

In Clark v. District Court (Colo. 1983), 668 P.2d 3, 10, a case involving the Colorado physician-patient and psychologist-client privileges, the court held:

“Given the clear terms of these statutory privileges, it would be inappropriate for us to read into the statutory scheme an implied waiver based on nothing more than the privilege holder’s act of filing a pleading in a case in which his physical or mental condition may be an issue. In our view, the appropriate inquiry under such circumstances should be whether the privilege holder has injected his physical or mental condition into the case as a basis of a claim or an affirmative defense.”

Thus, while my research has been unable to uncover any cases on the issue of whether waiver shall be applied merely as a result of a law suit being filed, I think the above authority reveals that such is not the case. Indeed, comprehensive reviews of the psychotherapist-patient and physician-patient privileges never even address the issue of whether the mere filing of a negligence action constitutes a waiver of the privilege. (See generally Annot., Privilege, in Judicial or Quasi-Judicial Proceedings, Arising from Relationship Between Psychiatrist or Psychologist and Patient, 44 A.L.R.3d 24 (1972); Annot., 21 A.L.R.3d 912 (1968).) In both of these annotations waiver is only discussed when filing a suit is in conjunction with some other factor which could constitute waiver.

While the majority reasons that plaintiff’s state of intoxication may have caused the accident, and thus is relevant to the issue of plaintiff’s comparative fault, it is important to note that comparative fault is an affirmative defense. Thus, it is capable of being waived by defendant (Terminal Freezers, Inc., v. Roberts Frozen Foods, Inc. (1976), 41 Ill. App. 3d 981, 984, 354 N.E.2d 904) and is not necessarily placed in issue with the filing of the complaint. Likewise, a defendant may fail to pursue third-party relief against an employee-plaintiff’s employer, and even if third-party relief is initiated and plaintiff’s mental condition becomes an issue, it is not an element of plaintiff’s claim.

Nor do I agree with the majority position that the Illinois Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1989, ch. 111½, par. 6351 — 1 et seq.) does not protect the records from disclosure. The good-cause exception to the Act, relied upon by the majority to allow disclosure of the records, provides that such record may be disclosed

“[i]f authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor. In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the practitioner-patient relationship, and to the treatment services.” Ill. Rev. Stat. 1989, ch. 111½, par. 6358-2(3).

In its analysis of the statute, the majority seems to equate good cause with information that is either relevant or could lead to relevant information. While inquiries concerning relevancy are always proper in discovery disputes, the concept of relevancy applies to a much broader spectrum of information than does the issue of good cause. Because all discovery is limited to matters that are either relevant or could lead to relevant information, the equating of good cause with relevancy would completely eradicate the privilege within a lawsuit context. Such a result could hardly have been the intent of the legislature when it enacted the privilege. In my opinion, the following language used by the Dillenbeck court concerning the physician-patient privilege is most appropriate to the case sub judice:

“Moreover, the mere fact that the privilege presents an obstacle to plaintiffs’ discovery of legally pertinent information that would assist them in proving their claim is not, as the dissent seems to suggest, evidence that the privilege is not properly recognized in this case. Indeed it is inherent in the very nature of an evidentiary privilege that it presents an obstacle to discovery and it is precisely in those situations where confidential information is sought in advancing a legal claim that such privilege is intended to operate. Were we to carve out an exception to the privilege whenever it inhibited the fact-finding process, it would quickly become eviscerated.” Dillenbeck, 73 N.Y.2d at 289, 536 N.E.2d at 1133, 539 N.Y.S.2d at 714.

For the foregoing reasons it is my opinion that production of the “Employees Assistance Records” is barred by the Illinois Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1989, ch. 111½, par. 6351 — 1 et seq.).

Accordingly, I would reverse the judgment of the circuit court and vacate the finding of contempt along with the resulting fine.


author: JUSTICE COCCIA

text:
    BRUCE E. RUEGGER, Plaintiff-Appellant, v. INTERNATIONAL HARVESTER COMPANY, Defendant-Appellee and Third-Party Plaintiff (T.H. Ryan Cartage Company, Inc., Third-Party Defendant).
    First District (2nd Division)
    No. 1 — 90—0783
    Opinion filed June 25,1991.

      James A. Swanson, of Oak Brook, for appellant.
    Arnstein & Lehr, of Chicago (Louis A. Lehr, Jr., Arthur L. Klein, and John T. Wagener, of counsel), for appellee.
   JUSTICE COCCIA

delivered the opinion of the court:

Plaintiff Bruce E. Ruegger appeals from an order entering summary judgment in favor of defendant International Harvester Company in this products liability case. Plaintiff contends on appeal that genuine issues of material fact remain as to whether or not defendant owes a duty to plaintiff. (Third-party defendant T.H. Ryan Cartage Company is not a party to this appeal.)

The record in this summary judgment case sets forth the following relevant facts.

On July 1, 1974, Navistar International (previously known as International Harvester) manufactured the 1974 model COF-4070B cab-chassis in question. The cab-chassis was sold to Lee Truck Sales. When Lee Truck Sales ordered the cab-chassis from defendant, it generated a vehicle order which listed the components Lee Truck Sales wanted on the vehicle. The cab-chassis in question is described by Federal regulations as an “incomplete vehicle” because it requires further manufacturing operations.

When the cab-chassis left defendant’s possession, it did not have a “fifth wheel,” which is a device used to couple the trailer to the tractor, carry the load, and to articulate the tractor both horizontally and in some degree vertically. Without the fifth wheel, the cab-chassis cannot be hooked up to any kind of a trailer. Thus, the vehicle could perform no useful function without the addition of a fifth wheel and truck body of some type. The fifth wheel would be located behind the cab and mounted on the frame rails.

The cab includes a glad hand storage bracket, which was placed four feet above the ground so that the glad hands could be removed while the truck driver was standing on the ground. The “glad hand connections” are the air brake and electrical line connections between the cab and the truck body which would later be added.

In May 1975, Lee Track Sales sold the cab-chassis to T.H. Ryan Cartage Company, plaintiffs employer. T.H. Ryan knew at the time of the purchase that it would be leasing the cab to the C.A. Roberts Company account, to pull flatbed and half-side trailers. This type of truck had connections which could be reached from the ground. T.H. Ryan knew at the time it purchased the chassis that a fifth wheel, deck plates and grab handles could be ordered from defendant as optional equipment. They were not ordered, since the deck plates and grab handles were only necessary if the glad connections could not be reached from the ground.

When deciding the proper type of cab-chassis to buy for an account, T.H. Ryan would consider, e.g., how much weight was to be hauled, how many axles were required, and the amount of power needed. These details changed whenever the cab-chassis was to be assigned to a new account.

T.H. Ryan sometimes ordered trucks with fifth wheels on them; sometimes bought a fifth wheel from someone other than the dealer and installed it itself; and sometimes used fifth wheels from old tractors which it had in its shop.

When the lease to C.A. Roberts expired, T.H. Ryan assigned the cab-chassis to the Hy-Temp lease, and it was driven by plaintiff. HyTemp used a different type of truck body than C.A. Roberts had used. This truck body now made it impossible to reach the glad connections from the ground. From 1978 to 1980, plaintiff drove the cab-chassis in question. Because he could not reach the glad connections from the ground, he climbed up behind the cab to reach the connections. There was no deck plate on which he could stand, so he balanced himself on the truck’s frame rails. Plaintiff had asked T.H. Ryan several times to install a deck plate on the truck, but T.H. Ryan did not do so, although it had previously done so for plaintiff on other trucks.

On July 9, 1980, plaintiff fell from the truck. He was attempting to connect the glad hands to the Hy-Temp van trailer. Plaintiff testified at a deposition that he was standing on the frame rails when he lost his footing and fell between the frame rails and drive shaft, striking his back on the edge of the frame rails.

The parties conducted extensive discovery proceedings, including depositions of many of defendant’s expert engineers and employees. Many of them testified that the absence of a deck plate and grab hold was dangerous for a truck driver who was standing on the truck’s frame rails while trying to adjust the glad hand connections. They also agreed that one probable end use of the cab-chassis manufactured by defendant was as a semi-tractor such as the one Hy-Temp used when plaintiff was injured.

John Stilson, plaintiff’s expert engineer, testified in a deposition that the product manufactured by defendant is a semi-tractor, that the deck plates and hand holds which were omitted are safety equipment, and that the omission of this equipment contributed to plaintiff’s fall. Stilson opined that defendant should have warned the user of danger in working in the area behind the cab and on the frame rails without this safety equipment.

Both parties moved for summary judgment. The trial court subsequently entered summary judgment in favor of defendant.

Summary judgment is appropriate where the pleadings, depositions and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 272 N.E.2d 497.

Plaintiff contends that the trial court erred in determining, as a matter of law, that defendant owes no duty to plaintiff. The issue of duty may be decided as a question of law. (Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465.) In a strict liability action, the injury must result from a condition of the product; the condition must be unreasonably dangerous; and the condition must exist at the time the product leaves the manufacturer’s control. Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182; Medina v. Air-Mite Devices, Inc. (1987), 161 Ill. App. 3d 502, 515 N.E.2d 770.

Here, no dangerous condition existed at the time the cab-chassis left defendant’s control. Defendant manufactures and sells vehicles which could be used to pull a tractor-trailer such as the one plaintiff drove when he was injured. The essential parts missing included the truck body itself, and a “fifth wheel,” which is a coupling in the form of two disks which rotate on each other for use in attaching a semi-trailer or other body to a tractor. See, e.g., Dennis v. Ford Motor Co. (3d Cir. 1973), 471 F.2d 733.

Other cases involving the addition of a unit behind a truck's cab have found the manufacturer of the cab owes no duty where a subsequent party adds a unit of some type. See, e.g., Dennis v. Ford Motor Co., 471 F.2d 733 (no duty owed by defendant manufacturer of truck cab-chassis where fifth wheel is later added by different party); Verge v. Ford Motor Co. (3d Cir. 1978), 581 F.2d 384 (no duty owed by defendant manufacturer of a truck cab-chassis where different party later converts vehicle into garbage truck); Elliott v. Century Chevrolet Co. (Tex. Civ. App. 1980), 597 S.W.2d 563 (no duty owed by defendant manufacturer of truck chassis where different party later installs beer storage unit behind chassis); see also Willeford v. Mayrath Co. (1972), 7 Ill. App. 3d 357, 287 N.E.2d 502 (no duty owed by defendant manufacturer of farm elevator component parts where different party later assembles the parts).

Here, defendant did not assemble the cab-chassis, determine its ultimate use in connection with some type of fifth wheel and truck body, or choose the type of optional equipment which might be either helpful or necessary to make the final vehicle safe. The vehicle at issue was a standard cab-chassis used for many different purposes, including pulling a semi-trailer, straight truck, garbage truck or tow truck.

In 1974, defendant manufactured the cab-chassis ultimately incorporated into the tractor-trailer combination from which plaintiff fell six years later. Defendant sold the cab-chassis to Lee Truck Sales, an independent dealer which could choose to use the product in a variety of ways. When the vehicle left Navistar, it did not include a fifth wheel. Plaintiffs expert witness, John Stilson, testified that “[i]t’s very rare that a [buyer] purchase[s] a factory-installed fifth wheel.” Instead, “they go out and get one from some after market shop. It is pretty standard.”

Russell Noble testified that the manufacturer could not know what the customers would use the cab-chassis for, even if the manufacturer made the assumption that the cab-chassis would pull a semitrailer. He explained why a manufacturer would not install deck plates as standard equipment on a cab-chassis:

“The fact that a vehicle is going to be used as a tractor in a semi-trailer combination does not automatically mean that an individual has to climb on the back of the cab in order to do his hooking and unhooking. Secondly, the vast majority of fleets desire to have local sources for the application of their deck plates and/or do it themselves. Third, there is no knowledge or little knowledge at the time this vehicle is produced, even with this line setting ticket that we have, as to what type of fifth wheel it’s going to have, whether it will be a fixed fifth wheel, a slider, or what type of other equipment, such as toolboxes, will be mounted back of cab. So a manufacturer cannot safely predict the configuration of a satisfactory deck plate on every chassis cab he manufactures.”

Lee Sholund, a reliability analyst employed by defendant, testified that it “would not be a very wise” decision for defendant to install deck plates as standard equipment because defendant would not know such information as “fuel tank size, wheel bases, cab lengths, fifth wheel locations.”

Robert McAfee, a design engineer for defendant, testified that when designing the cab-chassis in question, they “were concerned [in] the design of the vehicle with a lot of flexibility to the end user to adapt an unfinished vehicle if you will, a partially completed vehicle by government specifications, so that the customer could then finish that vehicle in accordance with the uses they had in mind.” He explained that, “[q]uite frankly we didn’t know all the uses that they would put our vehicles. I think they anticipated, if I might call it, the normal use or the intended use of the CO-4070-B.” That normal use was only genetically defined by defendant as “on-highway premium heavy duty vehicle for straight truck application, for dump truck application or semi tractor application.”

McAfee also testified that in addition to using the cab-chassis for a semi-tractor, “[t]here are other operations they could use it for, and since it went to Lee Truck Sales, which is a retailer, what he had in mind I doubt if he knew, because it depends on the customer that comes in looking at it, because a lot of these trucks are modified at the dealer level to satisfy a customer’s particular use.”

In fact, even if a fifth wheel had been included by the manufacturer, it would still be impossible to know the end use of the vehicle. McAfee testified that approximately 95% of fifth wheels are generic, and not designed for any specific type of trailer. You cannot tell by the design of a fifth wheel that kind of trailer is going to be towed by a cab-chassis. Thus, even if a certain manufacture of a fifth wheel is put on a tractor, that tractor is not limited by the fifth wheel to pulling a specific kind of trailer.

In 1975, T.H. Ryan bought the cab-chassis for the purpose of leasing it to C.A. Roberts Company, knowing that company would be using it to pull flatbeds and half-side trailers. T.H. Ryan did not order the optional deck plates and grab holds from defendant, knowing C.A. Roberts’ drivers could reach the glad hand connections from the ground. In fact, at the point defendant sold the cab-chassis, it could not know whether to include one or several deck plates, or no deck plates at all. For example, T.H. Ryan installed a sliding fifth wheel which could be moved back and forth along the frame rails. Depending on the use of the vehicle and position of the fifth wheel, anywhere from zero to five deck plates might have been used. Defendant had no way of knowing the ultimate user’s needs, and thus the equipment was optional, not standard.

In 1978, when Hy-Temp began leasing the vehicle in question, it served a completely different purpose. The glad hands could no longer be reached from the ground, due to the different fifth wheel used by Hy-Temp. The fact that T.H. Ryan refused plaintiff’s repeated requests to correct this perceived danger by adding optional equipment has no relevance to the determination before this court, i.e., whether defendant owed a duty where no dangerous condition existed at the time the cab-chassis left the manufacturer’s control.

Defendant had no control over T.H. Ryan’s method of assembly, subsequent leasing, and usage of the vehicle without the use of a deck plate or grab hold. The ultimate makeup of the cab-chassis sold by defendant was determined later, long after its purchase, and that makeup changed as each user adapted the vehicle to its own needs over the years. (See Willeford v. Mayrath Co. (1972), 7 Ill. App. 3d 357, 287 N.E.2d 502.) Thus, the product was not in a dangerous condition when it left defendant’s control. The dangerous condition, if any, arose not from the manufacture by defendant in 1974, but instead from the later assembly and subsequent lessee’s particular usage of the vehicle in 1980, without the inclusion of the deck plate and grab holds.

Plaintiff also argues that defendant invited drivers to climb up behind the cab when they placed a platform on top of the fuel tank.

Plaintiff testified at a deposition and explained the maneuvering necessary to climb up behind the tractor: “[Tjhere’s a step on the battery box. There’s a step, and then you step up on the battery box and there’s a handle on the side of the tractor to do that with. Then you have a step up on the saddle tank which would be the left saddle tank.” He continued: “When you’re standing on the battery box you’re basically level with your saddle tank and at that time then you can make the move with your right leg and foot to the saddle tank and you reach for the holders.” On top of the saddle tank is a “little standing platform.” Finally, you would end up on the saddle tank with both feet, and your body turned. “Well, then that’s after you release your left hand off of the rail, you’re onto the saddle tank. You pull yourself over and you’re onto the platform on the saddle tank.” However, there was “no way you can stand on that platform on the saddle tank and reach the trailer without stepping on the rail.”

It is clear from this testimony that the platform on the saddle tank was not a stair designed so that the driver could easily step up onto it in order to reach the glad hand connections. In fact, it required some athletic maneuvering just to get on top of the fuel tank, and even more precarious maneuvering to get onto the frame rails.

Moreover, other testimony indicates that the fuel tank platform was for mechanics who were working on the tractor, not for drivers attempting to attach glad hand connections to the trailer.

Claude Travis, an expert engineer for defendant, testified at a deposition that the step was “partially under the cab and it — it’s used by mechanics, to a large degree, when they are working on the engine transmission.” Travis also acknowledged that drivers probably used the platform, too.

Ronald C. Oldsen, a senior engineer for defendant, testified at a deposition that the purpose of the platform was for the “operator and/or the maintenance people. As you can see, that particular step extends partially underneath the cab, also, and it’s primarily designed as a service aid for access to the engine compartment, tool stand or for a serviceman to stand on or sit on, as he’s working on the engine area.”

John Sullivan, an engineer for defendant, testified at a deposition that the tank platform is standard on this type of vehicle. It is used for service. “It’s an area where mechanics like to stand or sit.” To get up to that platform, you “need another step down below to climb up.” You could order this extra step “on the fuel tank strap.”

“Q. So you got a step on top of the tank but then you would make them order the step in order to get to the step that’s standard?
A. If I recall that’s the way it was. This one on top of the fuel tank was also there for maintenance purposes.”

Sullivan also acknowledged that the platform could be used to reach the glad hands “whe[n] they’re in their storage location.”

We find that the mere existence of the fuel tank servicing platform is not sufficient to establish a genuine issue of material fact as to the duty the defendant manufacturer owed plaintiff such that plaintiff could withstand the motion for summary judgment. The evidence does not permit a reasonable inference that defendant invited drivers to climb behind the cab-chassis to adjust the glad hand connections and thereby created a dangerous condition.

We conclude that the lack of a deck plate or hand holds cannot serve as a basis for imposing a duty on the defendant manufacturer here. The trial court properly entered summary judgment as a matter of law in favor of defendant.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

HARTMAN and DiVITO, JJ., concur.