author: JUSTICE CHAPMAN

text:
    ELSIE M. JACKSON, Plaintiff-Appellant, v. NESTLE-BEICH, INC., Defendant- Appellee.
    Fifth District
    No. 5—89—0578
    Opinion filed March 28, 1991.

      William A. Mudge, of Lucco & Brown, of Edwardsville, for appellant.
    Marc A. Lapp, of Burroughs, Simpson, Hepler, Broom & MacDonald, of Edwardsville, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

On approximately May 26, 1988, plaintiff bought a sealed can of “Katydids” from defendant. Katydids are a chocolate-covered pecan-caramel candy. Plaintiff bit into one of the candies and allegedly broke a tooth on a hard pecan shell that was embedded in it. Plaintiff filed a two-count complaint; count I was based on a breach of warranty theory and count II was based on products liability.

After limited discovery defendant filed a motion for summary judgment arguing that if the harmful substance in a product is one that is natural to the food, its presence does not support a claim on either a breach of warranty or strict liability basis. The trial court allowed defendant’s motion in an order which stated in part:

“Plaintiff’s theories are breach of warranty and that the product was unwholesome and unreasonably dangerous for inclusion of a pecan shell in a candy containing pecans. The Court believes that the law of the State of Illinois is such that a food product is not rendered unwholesome by reason of inclusion therein of a substance natural to an ingredient thereof. The Court might personally wish the rule to be different but finds the law to be as set forth above and such to be the law even after the Suvada case relied upon by the Plaintiff.”

Plaintiff filed a timely appeal which challenges the continued viability of the foreign-natural doctrine in Illinois. We reverse.

The foreign-natural doctrine was apparently first announced some 55 years ago in the California case of Mix v. Ingersoll Candy Co. (1936), 6 Cal. 2d 674, 59 P.2d 144, which involved an injury claimed as a result of the plaintiff’s swallowing a sharp fragment of chicken bone in a chicken pie. The trial court’s dismissal of plaintiff’s complaint was affirmed on appeal:

“Bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on his guard against the presence of such bones. At least he cannot hold the restaurant keeper whose representation implied by law is that the meat dish is reasonably fit for human consumption, liable for any injury occurring as a result of the presence of a chicken bone in such chicken pie. In the case of Goetten v. Owl Drug Co. [1936], *** [59 P.2d 142], this day decided, we held that the application of the rule of implied warranty might impose a heavy burden upon the keeper of restaurants and lunch counters, but that considerations of public policy and public health and safety are of such importance as to demand that such obligation be imposed. This is true, but we do not believe that the onerous rule should be carried to absurd limits. Certainly no liability would attach to a restaurant keeper for the serving of a T-bone steak, or a beef stew, which contained a bone natural to the type of meat served, or if a fish dish should contain a fish bone, or if a cherry pie should contain a cherry stone — although it be admitted that an ideal cherry pie would be stoneless. The case of a chicken bone in a chicken pie is, in our opinion, analogous to the cited examples, and the facts set forth in the first count of the complaint do not state a cause of action.” Mix v. Ingersoll Candy Co. (1936), 6 Cal. 2d 674, 682, 59 P.2d 144, 148.

For some period of time the California courts followed Mix without question. (See Silva v. F.W. Woolworth Co. (1938), 28 Cal. App. 2d 649, 83 P.2d 76 (plaintiff denied recovery for turkey bone lodged in her throat when she ate a plate of roast turkey, vegetables and dressing, even though the bone was concealed in the dressing); Lamb v. Hill (1952), 112 Cal. App. 2d 41, 245 P.2d 316 (plaintiff denied recovery when injured by a fish bone in a dish of seafood mornay).) More recently the appellate courts of California seem to have split in their willingness to accept the Mix rationale. Evert v. Suli (1989), 211 Cal. App. 3d 605, 259 Cal. Rptr. 535, involved a plaintiff who broke a tooth when she bit into a piece of bone in a hamburger. Evert interpreted Mix as applying only in situations in which it is a matter of common knowledge that the food in question occasionally contains the injury-causing substance and also noted that the food in Mix had not been put through a meat grinder. A different division of the California appellate court reached the opposite conclusion in Mexicali Rose v. Superior Court (1989), 232 Cal. App. 3d 1223, 262 Cal. Rptr. 750, cert. granted (1989), 264 Cal. Rptr. 683, 782 P.2d 1139, which involved a plaintiff who had a chicken bone lodge in his throat while consuming a chicken enchilada. Two members of the panel in Mexicali Rose held:

“Compelled by stare decisis, we agree with petitioners that their demurrer should have been sustained.” (232 Cal. App. 3d at 1225, 262 Cal. Rptr. at 751.)

Judge Poche concurred, but wrote separately because of his concern “with the present state of the chicken bone law.”

“The problem is that Mix is wrongly decided in light of the modern law of products liability. That case is ripe for reconsideration by our Supreme Court. Until and unless that occurs I will explain to my luncheon companions why for sound legal reasons they should order a hamburger and pass up the chicken enchiladas.” Mexicali Rose, 232 Cal. App. 3d at 1229-30, 262 Cal. Rptr. at 753-54 (Poche, J., concurring).

After this brief review of California’s continuing problems with the foreign-natural doctrine, and in direct violation of Horace Greeley’s admonition, we will now move east to examine Illinois’ treatment of it. The only Illinois case to discuss the foreign-natural doctrine is Goodwin v. Country Club (1944), 323 Ill. App. 1, 54 N.E.2d 612, which involved the death of a woman who choked on a bone in a creamed chicken dish. Goodwin referred to what it considered to be the only four cases on the subject in the country at the time. Three of those cases held there was no liability for a natural object in food: Mix (chicken bone in chicken pie); Silva v. F.W. Woolworth Co. (1938), 28 Cal. App. 2d 649, 83 P.2d 76 (turkey bone in dressing); and Brown v. Nebiker (1941), 229 Iowa 1223, 296 N.W. 366 (bone in pork chop). The only other case, Bonenberger v. Pittsburgh Mercantile Co. (1942), 345 Pa. 559, 28 A.2d 913, reversed a directed verdict for the defendant for injuries sustained as a result of ingesting a piece of oyster shell. Goodwin found Bonenberger unpersuasive and instead adopted the rationale oí Mix:

“The instant case presents a situation involving the question of implied warranty of reasonable fitness of food for human consumption and whether such warranty is breached by the presence therein of a substance natural to the food being served, and not removed therefrom in the process of its preparation for consumption. *** Modem conditions require that establishments serving food shall be operated in a sanitary way and furnish food that is wholesome and fit to be eaten. However, such rule should be construed and applied in a reasonable manner, taking into consideration the common experience of life. When viewed in this light, it must be conceded that practically all meat dishes, whether they consist of beef, pork, fish or foul, do contain bones peculiar to the food being served.” Goodwin, 323 Ill. App. at 8, 54 N.E.2d at 615.

The only other Hlinois case that is similar to Goodwin was actually decided the day before Goodwin. Paolinelli v. Dainty Foods Manufacturers, Inc. (1944), 322 Ill. App. 586, 54 N.E.2d 759, involved the death of a child which resulted from the ingestion of a chicken.bone. The foreign-natural doctrine was not actually discussed in Paolinelli since the court was primarily concerned with evidence as to the source of the chicken bone and other issues. The court resolved these issues in the plaintiff’s favor, affirmed the award, and noted, albeit in passing, that:

“If the bone did not come from the jar of noodle soup mix, defendant cannot be held responsible. If the bone did come from the jar of noodle soup mix, the verdict of the jury should stand. If the bone came from the jar, that would be strong evidence that there was an omission on the part of defendant’s servants to observe some of the precautions about which they testified as to the preparation and filling of the jars.” Paolinelli, 322 Ill. App. at 597, 54 N.E.2d at 764.

The fact that there have been only three cases in Illinois in the last 50 years that were concerned with injuries caused by natural ingredients in food products suggests that the defendant may be overly concerned about the flood of litigation that refusing to recognize the foreign-natural doctrine might unleash. An examination of cases in other States reveals two things: (1) there has not been an overwhelming number of this type of case; and (2) the cases are presently about equally divided on the foreign-natural question with a possible slight trend toward its rejection. An nonexhaustive listing of cases follows:

Cases Continuing To Apply The Foreign-Natural Doctrine California
Mix, Silva, Evert, Mexicali, and Lamb v. Hill (1952), 112 Cal. App. 2d 41, 245 P.2d 316 (bone in chicken pie).
Georgia
Norris v. Pig’n Whistle Sandwich Shop, Inc. (1949), 79 Ga. App. 369, 53 S.E.2d 718 (piece of bone in barbeque pork sandwich).
Iowa
Brown v. Nebiker (1941), 229 Iowa 1223, 296 N.W. 366 (bone in pork chop).
Louisiana
Musso v. Picadilly Cafeterias, Inc. (La. Ct. App. 1965), 178 So. 2d 421 (cherry pit in a slice of cherry pie). Musso apparently presents a hybrid situation; defendants are not responsible on a breach of implied warranty of wholesomeness for natural contaminants, but they may be liable if the natural contaminants are left in the finished product as a result of negligence. See also Title v. Pontchartrain Hotel (La. Ct. App. 1984), 449 So. 2d 677 (pearl in fried oyster); Riviere v. J.C. Penney Co. (La. Ct. App. 1985), 478 So. 2d 965 (plaintiff broke tooth on a hamburger club sandwich but was unable to present any evidence of a deleterious substance).
Massachusetts
Webster v. Blue Ship Tea Room, Inc. (1964), 347 Mass. 421, 198 N.E.2d 309 (fish bone in fish chowder). But see Phillips v. Town of West Springfield (1989), 405 Mass. 411, 540 N.E.2d 1331 (bone in cubed turkey).
North Carolina
Adams v. Great Atlantic & Pacific Tea Co. (1960), 251 N.C. 565, 112 S.E.2d 92 (partially crystallized grain of corn in package of com flakes); Coffer v. Standard Brands, Inc. (1976), 30 N.C. App. 134, 226 S.E.2d 534 (unshelled filbert in jar of dry roasted mixed nuts).
New York
Courter v. Dilbert Bros., Inc. (1959), 19 Misc. 2d 935, 186 N.Y.2d 334 (piece of prune pit in jar of prune butter). But see Stark v. Chock Full O’Nuts (1974), 77 Misc. 2d 553, 356 N.Y.2d 403 (walnut shell in a nutted cheese sandwich).
Ohio
Allen v. Grafton (1960), 170 Ohio St. 249, 164 N.E.2d 167 (oyster shell in fried oysters).
Cases Not Adopting Foreign-Natural Doctrine
Alabama
Ex parte Morrison’s Cafeteria of Montgomery, Inc. (Ala. 1983), 431 So. 2d 975 (fish bone in fish filet). While Morrison approved the reasonable expectation test over the foreign-natural doctrine, it also held, as a matter of law, that a one-centimeter bone in a fish filet did not render the filet either unfit for human consumption or unreasonably dangerous. Plaintiff was a three-year-old child.
District of Columbia
Hochberg v. O’Donnell’s Restaurant, Inc. (D.C. 1971), 272 A.2d 846 (olive pit inside olive in a martini).
Florida
Koperwas v. Publix Supermarkets, Inc. (Fla. App. 1988), 534 So. 2d 872 (recognized the reasonable expectation test, but affirmed a directed verdict for the defendant on a piece of clam shell in a bowl of clam chowder because such a presence is so widely known); Zabner v. Howard Johnsons, Inc. (Fla. App. 1967), 201 So. 2d 824 (walnut shell in maple walnut ice cream).
Kansas
Johnson v. C.F.M., Inc. (D. Kan. 1989), 726 F. Supp. 1228 (coffee grounds in cup of coffee).
Maryland
Bryer v. Rath Packing Co. (1959), 221 Md. 105, 156 A.2d 442 (chicken bone in chicken chow mein dinner); Yong Cha Hong v. Marriott Corp. (D. Md. 1987), 656 F. Supp. 445 (chicken trachea or aorta in a fried chicken wing).
Massachusetts
Phillips v. Town of West Springfield (1989), 405 Mass. 411, 540 N.E.2d 1331 (bone in cubed turkey). But see Webster v. Blue Ship Tea Room, Inc. (1964), 347 Mass. 421, 198 N.E.2d 309 (fish bone in fish chowder).
New York
Stark v. Chock Full O’Nuts (1974), 77 Misc. 2d 553, 138 N.Y. Supp. 128 (walnut shell in nutted cheese sandwich). But see Courter v. Dilbert Bros. Inc. (1958), 19 Misc. 2d 935, 186 N.Y. Supp. 2d 334 (piece of prune pit in prune butter).
Oklahoma
Williams v. Braum Ice Cream Stores, Inc. (Okla. Ct. App. 1974), 534 P.2d 700 (cherry pit in cherry ice cream); O’Dell v. DeJean’s Packing Co. (Okla. Ct. App. 1978), 585 P.2d 399 (pearl in canned oysters).
Pennsylvania
Bonenberger v. Pittsburgh Mercantile Co. (1942), 345 Pa. 559, 28 A.2d 913 (oyster shell in canned oysters).
Rhode Island
Wood v. Waldorf System, Inc. (1951), 79 R.I. 1, 83 A.2d 90 (chicken bone in chicken soup).
Texas
Matthews v. Campbell Soup Co. (S.D. Tex. 1974), 380 F. Supp. 1061, (pearl in can of oyster stew); Jim Dandy Fast Foods, Inc. v. Carpenter (Tex. Ct. App. 1976), 535 S.W.2d 786 (chicken bone in a chicken breast that was cut differently).
Washington
Jeffries v. Clark’s Restaurant Enterprises, Inc. (1978), 20 Wash. App. 428, 580 P.2d 1103 (crab shell in “crab melt” sandwich).
Wisconsin
Betehia v. Cape Cod Corp. (1960), 10 Wis. 2d 323, 103 N.W.2d 64 (chicken bone in chicken sandwich).

The position of those courts which adhere to the foreign-natural doctrine was set forth in the earlier quote from Mix. The position of the courts which reject the doctrine is stated in Betehia v. Cape Cod Corp.:

“The ‘foreign-natural’ test applied as a matter of law does not recommend itself to us as being logical or desirable. It is true one can expect a T-bone in T-bone steak, chicken bones in roast chicken, pork bone in a pork chop, pork bone in spare ribs, a rib bone in short ribs of beef, and fishbones in a whole baked or fried fish, but the expectation is based not on the naturalness of the particular bone to the meat, fowl, or fish, but on the type of dish served containing the meat, fowl, or fish. There is a distinction between what a consumer expects to find in a fish stick and in a baked or fried fish, or in a chicken sandwich made from sliced white meat and in roast chicken. The test should be what is reasonably expected by the consumer in the food as served, not what might be natural to the ingredients of that food prior to preparation. What is to be reasonably expected is a jury question in most cases; at least, we cannot say as a matter of law that a patron of a restaurant must expect a bone in a chicken sandwich either because chicken bones are occasionally found there or are natural to chicken.” (Betehia, 10 Wis. 2d 323, 331-32, 103 N.W.2d 64, 68-69.)

The Betehia comments are amplified in O’Dell v. DeJean’s Packing Co. (Okla. Ct. App. 1978), 585 P.2d 399:

“Oftentimes, extensive damage and even death is caused by a substance in the prepared food that is ‘natural’ to the food item in its original state. Thus, there seems little logic in the ‘foreign-natural’ test. It appears the weakness in this test leads to ridiculous results. Where is the line drawn? For example, chicken bones are natural to chicken, but so are beaks, claws, and intestines. One therefore wonders what the courts in the jurisdictions following the ‘foreign-natural’ test would decide in the chicken soup case if it were a chicken beak or claw that caused the damage rather than a chicken bone, because all three parts are ‘natural’ to the chicken. ***
If one purchases a whole fish to bake surely he or she could ‘reasonably expect’ to find bones in it. However, if one purchases fish patties or fish sticks, it seems unrealistic to say he would ‘reasonably expect’ to find bones in the processed items. Likewise, if one purchases oysters in the shell it might be said one could ‘reasonably expect’ to find a pearl in one of the oysters. However, if one purchases canned processed oysters it seems unrealistic to say he could ‘reasonably expect’ to find a pearl in same. Herein lies the difficulty or confusion in food cases. The possibility of finding a harmful substance versus the probability of finding a harmful substance seems the key in analyzing these cases. ***
If one ‘reasonably expects’ to find an item in his or her food then he guards against being injured by watching for that item. When one eats a hamburger he does not nibble his way along hunting for bones because he is not ‘reasonably expecting’ one in the food. Likewise, when one eats processed oysters, normally one does not gingerly graze through each oyster hunting for a pearl because he is not ‘reasonably expecting’ one in the food. It seems logical some consideration should be given to the manner in which the food is normally eaten in determining if a person can be said to ‘reasonably expect’ an item in processed food. In the present case we think the average, ordinary, reasonably prudent person eating processed oysters would eat same by way of bites and would not nibble her way through each oyster because of the possibility of finding a pearl.” (Emphasis in original.) O’Dell, 585 P.2d at 402.

Turning for a moment from the cases to the commentators, we find that they are generally critical of the foreign-natural doctrine. See Schag, Consumer Expectation—The Test of a Substance Natural to a Food as a Legal Defect, 15 Food Drug Cosm. L.J. 311 (1960); A. Twerski, From Risk-Utility to Consumer Expectations: Enhancing the Role of Judicial Screening in Product Liability Litigation, 11 Hofstra L. Rev. 861, 930-33 (1983). But see Note, Sales-Foods-Implied Warranties, 17 Temple L.Q. 203 (1942-43).

In his book on the subject, Professor Dickerson states:

“Insofar as these cases rest on the notion of ‘naturalness’ in the sense that nothing that is an inherent part of the raw product itself can be a legal defect, they do not hold water. Sand is foreign to fresh spinach but not a legal defect. Conversely, salt crystals are natural to crab meat, oyster shells are natural to oysters, and yeast fermentation is natural to some soft drinks; and yet, as the next section shows, these substances have been treated as legal defects.
§4.3. The test of reasonable expectation. The better test of what is legally defective appears to be what consumers customarily expect and guard against. Canned foods are expected to be found already washed, cleaned, and trimmed, while the same foods in fresh form normally call for work of that sort by the consumer.” (R. Dickerson, Products Liability & the Food Consumer §§4.2, 4.3, at 185 (1951).)

A more pointed criticism is found in a note by Charles Janes entitled Products Liability — The Test of Consumer Expectation for “Natural” Defects in Food Products:

“With the prevalence of processed foods on the market today and the development of technology in the food industry, consumers increasingly rely upon food processors to inspect and purify the foods they consume. Many products today are even packaged in such a manner that inspection by the consumer is difficult if not impossible. One might imagine a consumer in a jurisdiction that applies the foreign-natural test tearing away the crust from a beef pot pie to search for tiny bones, or picking apart a cherry-nut ice cream cone to remove stray shells or pits.
In an era of consumerism, the foreign-natural standard is an anachronism. It flatly and unjustifiably protects food processors and sellers from liability even when the technology may be readily available to remove injurious natural objects from foods. The consumer expectation test, on the other hand, imposes no greater burden upon processors or sellers than to guarantee that their food products meet the standards of safety that consumers customarily and reasonably have come to expect from the food industry.” 37 Ohio St. L.J. 634, 651-52 (1976).

After reviewing the foregoing we conclude that the foreign-natural doctrine originally set forth in Mix and adopted by the second district in Goodwin should not be followed. It is not merely a matter of the passage of time and the changing of attitudes that leads us to this conclusion. It appears to us that Mix and its progeny (which obviously includes Goodwin) have been unsound from the outset.

Taking, as Judge Poche calls them, “the chicken bone” cases as an example, they seem to be based on the following reasoning:

All chickens have bones in them.
All people know that all chickens have bones in them.
Therefore, all people know that all chicken dishes have bones in them.

Without attempting to rearrange these statements into a proper syllogistic form (S. Barker, The Elements of Logic, at 61-81 (1965)), but treating them generally as if they were, it is apparent that both the major and minor premises refer to bones in chicken in its natural state, but the conclusion has the additional element of chicken in a prepared dish. The conclusion, therefore, does not follow from either a logical or a commonsense view of the world.

While we admit that we may have oversimplified and perhaps overstated the position of Mix and Goodwin in the above example, that is not the only basis of our disagreement with their result. The ultimate conclusion of those cases deals not with knowledge on the part of the consumer, but with the consumer’s right to recover. The foreign-natural doctrine holds that because all, or some or many, people know that chicken bones will or may be present in chicken or chicken dishes, no person will be allowed to recover.

In arguing for the adaption of the Goodwin position counsel for defendant stated that different results should not be reached based upon whether the injury occurred in Peoria or Edwardsville, Illinois. We agree with that statement in general, but based on the foregoing discussion, we are unable to follow Goodwin. Perhaps the supreme court will resolve the split between districts.

We hold that the fact that the allegedly harmful ingredient is natural to the product is not an absolute bar to recovery. The naturalness of the claimed defect is only one of the factors to consider in the determination of whether the defendant has breached a warranty or manufactured an unreasonably dangerous product.

Therefore, the circuit court erred in granting the defendant’s motion for summary judgment and we reverse and remand.

Reversed and remanded.

HARRISON and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SPITZ

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEWAYNE WILLHOITE, Defendant-Appellant.
    Fourth District
    No. 4—90—0840
    Opinion filed May 1, 1991, nunc pro tunc.

      Daniel D. Yuhas and Lori L. Mosby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Tony Lee, State’s Attorney, of Paxton (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Following a jury trial conducted in the circuit court of Ford County, defendant Dewayne Willhoite was found guilty of theft of property having a value in excess of $300 (Ill. Rev. Stat. 1987, ch. 38, par. 16—1(a)(1)) for an incident which occurred on April 21, 1988, and he was sentenced to 30 months’ probation. Among the conditions of probation were the requirements that defendant (1) pay a probation fee of $25 per month, (2) serve a term of “periodic” imprisonment of six months, and (3) pay $800 restitution.

On appeal, defendant raises five issues. The first issue to be considered is whether the trial court’s sentencing order properly characterized the imprisonment as “periodic” because the order does not indicate any times of release within the six-month period. Nor does the order suggest a purpose for defendant’s periodic release. Arguing that day-for-day good-time credit does not apply to periodic imprisonment (Ill. Rev. Stat. 1989, ch. 75, par. 32), defendant contends the cause should be remanded for an issuance of an amended order omitting the word “periodic.” The State concedes this point. As a result, the cause will be remanded for an appropriate modification of the sentencing order and other court documents.

The second issue is whether the trial court erred by including in the sentencing order the following directive:

“In the event this probation should subsequently be revoked, time served on this probation shall not be credited by the Court against any sentence of imprisonment or periodic imprisonment subsequently imposed.”

In resentencing a defendant following a revocation of probation, time served on conditional discharge or supervision shall not be credited against a sentence of imprisonment in the absence of a court order to that effect. As the State indicates, the sentencing court has broad discretion in granting or refusing credit for time served on probation. (People v. Cozad (1987), 158 Ill. App. 3d 664, 511 N.E.2d 211.) However, it would seem appropriate for the determination to be made by the judge who sentences the defendant following revocation of probation and not by the judge who sentenced the defendant to probation. A similar predetermination was vacated in People v. Hancock (1986), 143 Ill. App. 3d 1027, 493 N.E.2d 730, wherein the trial court ordered that in the event the defendant did not pay restitution within SVz years of a 4-year probation, defendant was to spend the last six months of the probation in the county jail. In vacating that portion of the order, the appellate court reasoned that the trial court could not predetermine that the failure to pay restitution would be wilful.

In the case at bar, the factors pertinent to the awarding or refusing to award credit in the event of probation revocation may change dramatically during the term of a 30-month probation. As a result, it is inappropriate for the judge who sentences a defendant to probation to predetermine whether credit should be given for probation in the event the probation is subsequently revoked. To allow this trial court to make such a predetermination would remove discretion from the judge who would impose a sentence following probation revocation. Accordingly, the portion of the sentencing order directing that no credit be given for time served on probation in the event defendant is resentenced following a probation revocation is vacated.

Next, one of the conditions of defendant’s probation is that he pay $25 to the Crime Victims Assistance Fund. However, the statute which authorizes the ordering of such a payment sets a $25 fine for crimes of violence and $20 for other felonies and misdemeanors. (Ill. Rev. Stat. 1989, ch. 70, par. 510(c).) Since the section defining defendant’s offense of theft is not included in the definition of crimes of violence (Ill. Rev. Stat. 1989, ch. 70, par. 72(c)), the State concedes that the appropriate fine should have been set at $20. On remand, the trial court is directed to amend the order of probation to reflect the correct amount of this fine.

The fourth issue is whether the portion of the sentencing order directing defendant to pay a probation fee must be vacated because the statute which authorizes the imposition of such a fee has an effective date of January 1, 1989. (Pub. Act 85—1256, §2, eff. Jan. 1, 1989 (1988 Ill. Laws 2534, 2535); see Ill. Rev. Stat. 1989, ch. 38, par. 1005—6—3(h).) While defendant was sentenced subsequent thereto, the offense was committed prior to the effective date. Defendant argues that he was denied due process because he was not allowed to elect to be sentenced under prior law, as opposed to the law in effect at the time of the sentencing hearing.

A defendant is entitled to such an election where there has been a change in the law which is retrospective, affects substantial rights, and disadvantages defendant. (People v. Felella (1989), 131 Ill. 2d 525, 546 N.E.2d 492; U.S. Const., art. I, §10; Ill. Const. 1970, art. I, §16.) The election is offered to alleviate any potential prejudice to defendant from ex post facto legislation. However, the prohibition against ex post facto laws applies when the newly enacted legislation potentially increases the severity of the penalties for the previously committed crimes. (See People v. Hollins (1972), 51 Ill. 2d 68, 280 N.E.2d 710; People v. Strebin (1991), 209 Ill. App. 3d 1078.) The prohibition against ex post facto laws does not require that defendant be provided an election between the laws to be applied where the change in the law is procedural. (Felella, 131 Ill. 2d 525, 546 N.E.2d 492.) The State argues the imposition of costs which are compensatory are considered procedural matters even though the assessment creates an additional liability on defendant because such assessments are not considered punitive in nature. (See People v. Timmons (1983), 114 Ill. App. 3d 861, 449 N.E.2d 1366; People v. Harris (1979), 69 Ill. App. 3d 118, 387 N.E.2d 33; People v. DuMontelle (1977) , 49 Ill. App. 3d 187, 364 N.E.2d 95, rev’d on other grounds (1978) , 71 Ill. 2d 157, 374 N.E.2d 205.) The State’s reliance on People v. Johnson (1988), 175 Ill. App. 3d 908, 530 N.E.2d 627, is misplaced, however. In Johnson, the statute was amended to allow courts to tax an extradition fee. The legislative history demonstrated that the legislature’s intent was that the original statute was intended to cover extradition fees and the amendment was necessary only to rectify the courts’ interpretation to the contrary. No such amendment with corresponding legislative history is involved in the case at bar.

Nevertheless, the probation fee in the instant case is not an additional penalty. Instead, it is a compensable cost designed to offset the rising cost of probation as an alternative to imprisonment. As such, the taxing of such a fee is procedural and no election need be provided to defendant. The requirement the defendant pay said fee is affirmed.

The final issue is whether defendant is entitled to eight days’ credit toward his sentence of imprisonment for time spent in jail prior to sentencing. The State concedes defendant is entitled to credit for eight days spent in jail from May 25 to June 1, 1990. Therefore, on remand the order and documents of the court should be amended to reflect that credit is given for eight days defendant was in jail prior to sentencing.

For the foregoing reasons, while the defendant’s conviction is affirmed, the sentencing order of the circuit court is vacated in part, and the cause is remanded with directions.

Affirmed in part; vacated in part and remanded with directions.

LUND, P.J., and McCULLOUGH, J., concur.


author: PRESIDING JUSTICE LUND

text:
    TY M. POELKER, a Minor, by Carl R. Poelker, et al., his Parents and Next Friends, et al., Plaintiffs-Appellants, v. MACON COMMUNITY UNIT SCHOOL DISTRICT NO. 5 et al., Defendants-Appellees (Warrensburg-Latham Community Unit School District No. 11, Defendant).
    Fourth District
    No. 4—90—0321
    Opinion filed December 12, 1990.
    Modified on denial of rehearing May 22, 1991.

      Darrell F. Parish and Linda M. Castleman, both of Owen, Roberts, Parish & Castleman, Ltd., of Decatur, for appellants.
    James V. Mancuso, Jr., of Decatur, for appellee Darlene Allen.
    Nicholas J. Neiers, of Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, for appellee Macon County Unit School District No. 5.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

This is an appeal from summary judgments granted defendants by the circuit court of Macon County. Plaintiffs Carl and Peggy Poelker, individually and on behalf of their son Ty Poelker, contend defendants Macon Community Unit School District No. 5 (Macon) and Darlene Allen owed a duty to refrain from wilful and wanton negligence relating to the lack of proper supervision of participants at a track meet held at Macon.

Warrensburg-Latham Community Unit School District No. 11 (Warrensburg) was also joined as a defendant, but is not a party to this appeal.

Facts

Macon hosted a track meet with Warrensburg, in which Ty M. Poelker (Ty) was a Warrensburg participant who, prior to the commencement of the track meet, was hit with a discus thrown by an eighth-grade schoolmate during the warm-up practice. The eighth-grade classmate had never thrown the discus before, and the warm-up process was not supervised.

I

The evidence submitted to the court at the time of the motion for summary judgment established Allen had been asked to measure the discus throws during the meet and to keep the records of the throws. She was not a school employee and had never acted in such a capacity before. She was not paid, and the facts presented in the trial court necessarily led to the conclusion that Allen was not responsible for the warm-up process. Neither Allen nor certified teachers or coaches were present at the discus throw area when the accident took place.

Summary judgment will be awarded if pleadings, depositions, and admissions on file, together with affidavits (if any), show there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Bowers v. Allstate Insurance Co. (1989), 192 Ill. App. 3d 725, 727, 549 N.E.2d 21, 22.) While a duty voluntarily undertaken must be performed with due care or with such competence and skill as the volunteer possesses (Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, 317, 412 N.E.2d 472, 474), the scope of the duty is limited by the extent of the undertaking (Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 209-10, 399 N.E.2d 596, 599).

Allen was inexperienced, never assisting in the discus competition before. She was not on staff, but was requested to measure the throws, watch for the fouls, and keep the records. There was no delegation of authority for warm-ups. The evidence before the trial court indicated the accident happened outside her undertaking, and the summary judgment granted in her favor was proper.

II

Granting the summary judgment against plaintiffs and in favor of Macon was based upon the conclusion there was no duty by Macon to supervise the discus warm-up activities. The existence of a duty of due care is a question of law which turns on foreseeability and likelihood of accident as well as the cost of prevention. (Reed v. Danville Concrete Products Co. (1981), 102 Ill. App. 3d 205, 207, 429 N.E.2d 605, 607.) The existence of a duty is a matter of law to be declared by the court. (Smith v. Rengel (1981), 97 Ill. App. 3d 204, 205, 422 N.E.2d 1146, 1147.) If no duty exists, there can be no recovery and summary judgment in defendants’ favor would be proper. Beal v. Kuptchian (1987), 164 Ill. App. 3d 191, 193, 517 N.E.2d 712, 714.

The issue now before this court concerns the existence of a duty. As we have said, in order for there to be a duty the occurrence must have been foreseeable. More than mere possibility of occurrence is required, and foreseeability alone will not create a legal duty. (Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, 233.) The relationship between defendant and plaintiff, the likelihood of injury, the magnitude of guarding against the injuries, and the consequences of placing that burden on the defendant should be considered. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140-41, 554 N.E.2d 223, 226-27.) The Ward opinion gives an excellent summary of the elements relevant to the question of whether a duty exists.

School districts are not immune from tort liability. (Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 25, 163 N.E.2d 89, 96.) Because of the in loco parentis status, teacher liability exists only if wilful and wanton misconduct is present. (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 173, 347 N.E.2d 705, 709.) A narrow exception allows liability for ordinary negligence in the supply of inadequate or unsafe equipment. Gerrity v. Beatty (1978), 71 Ill. 2d 47, 52, 373 N.E.2d 1323, 1326.

In support of plaintiffs’ response to Macon’s motions for summary judgment, plaintiffs filed the affidavit of Robert Keck, given as an expert in the organization and administration of track and field meets and based on generally accepted customs and policies for the organization and administration of dual junior high school track meets in central Illinois. Keck’s affidavit states, essentially, that (1) it is the duty of the host school of. a dual junior high school track meet in Illinois to arrange for and furnish qualified persons to serve as officials and judges of the events, including for the supervision of warm-ups for each event; (2) there is a corollary duty of the coach of the visiting team at such a meet to oversee the safety of his own athletes to the extent that, if he sees no judges present at an event for which his athletes have reported, he should immediately see that some qualified person goes to that area to provide supervision or take such other steps as are appropriate under the circumstances to protect the safety of his athletes; (3) to knowingly allow junior high school athletes to throw discus together without qualified supervision at all times would be to disregard the known danger such athletes throwing discus present to each other; and (4) to so allow such athletes to throw a discus together without any supervision while warming up for such a competitive event would, be a breach of generally accepted customs and policies applicable to the conduct of such track meets. The deposition testimony of Vickie Thomas, athletic director of Warrensburg-Latham Junior High School, was also relied on for proposition (1) above, i.e., it is the duty of the host school to see to supervising events; and, further, that the judge is customarily present when the contestants in a discus event go to that area to begin warming up.

As stated in Rowe v. State Bank (1988), 125 Ill. 2d 203, 214-15, 531 N.E.2d 1358, 1363-64:

“A motion for summary judgment and its supporting documents must be construed strictly against the movant and liberally in favor of the opponent. [Citations.] The remedy of summary judgment is a drastic method of disposing of causes and . should be granted only when the right of the movant is clear and free from doubt. [Citations.]
In an action for negligence, the plaintiff must set out sufficient facts establishing the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach. [Citations.] In the absence of a showing from which the court could infer the existence of a duty, no recovery by a plaintiff is possible as a matter of law and summary judgment in favor of defendant is proper. Whether under the facts of a case there is a relationship between the parties as to require that a legal obligation be imposed upon one for the benefit of another is a question of law to be determined by the court. Pelham v. Griesheimer (1980), 92 Ill. 2d 13, 18-19[, 440 N.E.2d 96, 98]; Barnes v. Washington (1973), 56 Ill. 2d 22, 26[, 305 N.E.2d 535, 538].” (Emphasis added.)

We conclude that Keck’s affidavit and Thomas’ deposition testimony support the inference that Macon had a duty; and Keck’s affidavit further supports the inference that, upon breach of that duty, injuries were foreseeable.

In its petition for rehearing, Macon argues Keck’s affidavit may not properly be relied upon by this court because, at the hearing on its motion below, Macon orally moved to strike this affidavit on the grounds that (1) it did not comply with Supreme Court Rule 191 (see 134 Ill. 2d R. 191), and (2) the subject matter sought to be shown was not the type requiring or permitting expert testimony. Macon states that the trial court granted its motion for summary judgment without ruling on its motion to strike.

Macon does not cite any portion of the 18-volume record to support its assertion that it made such an oral motion to strike the affidavit. The entries on the docket sheets make no reference thereto, and no bystander’s report of any hearing has been filed. (See 134 Ill. 2d R. 323(c).) In any event, Macon acknowledges in the petition for rehearing that it did not obtain a ruling on this oral motion. We conclude any objection to the affidavit was thereby waived.

Macon’s petition for rehearing also contends this court failed to apply the proper standard of review in that the trial court’s grant of summary judgment should not be reversed absent an abuse of discretion such that the plaintiff’s right to fundamental justice has been violated. This argument is without merit and incorrectly states the standard of review on the question of whether a legal duty exists. For purposes of summary judgment, whether a defendant had a duty is a question of law, to be determined in the first instance by the trial court. The standard of review of this question, however, is whether the trial court’s ruling was proper, essentially a de novo review.

We note the injured boy was a sixth grader, and another junior high school boy threw the discus. Considering the ages of the participants and the type of event, foreseeability of injury exists. We see no great burden by placing a supervisory responsibility upon the host school when considering the serious consequences of the possible accidents. We conclude that the hazardous nature of discus throwing by junior-high students requires supervision at warm-ups as well as the meet events. The trial court erred in entering summary judgment in Macon’s favor.

Affirmed in part; reversed and remanded in part.

GREEN and McCULLOUGH, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
    BRIGGS MANUFACTURING COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Doreen Miller, Appellee).
    Third District (Industrial Commission Division)
    No. 3—88—0638WC
    Opinion filed October 13, 1989.
    Rehearing denied May 20, 1991.

      David B. Mueller, of Cassidy & Mueller, of Peoria, for appellant.
    Gregory J. Saunders, of Perz, McGuire, Condon & Ridge, of Chicago, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The circuit court confirmed the Industrial Commission’s (Commission’s) decision to award the petitioner, Doreen Miller, 45% weeks of additional temporary total disability (TTD) benefits under section 8(b) of the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(b)). The respondent, Briggs Manufacturing Company, appeals.

The record shows that on February 24, 1981, the petitioner injured her back when a wet toilet bowl slipped from her hands while she was working for the respondent. As a result of her injury, she was off work until June 28, 1981. After returning to work on June 28, the petitioner resumed her regular duties until she was laid off due to a general layoff on October 3, 1981. Pursuant to section 8(b) of the Act, the arbitrator awarded the petitioner TTD benefits of $159.73 per week for 17% weeks. On review, the Commission in a decision issued December 28, 1983, modified the arbitrator’s award and found under section 8(dX2) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(d)(2)) that the petitioner was permanently partially disabled to the extent of 2%. The Commission further awarded the petitioner $218.25 for necessary medical expenses and approved the award of 17% weeks for temporary total disability.

Following the general layoff, the petitioner was called back to work for the respondent under light duty restrictions on January 27, 1983. Around December 7, 1984, she was again laid off, this time because of her medical restrictions. The petitioner testified that she looked for work once a week, but was unable to find a job until October 31, 1985, when she began working for Lament Limited doing “light work.” During this time the petitioner noticed that she still had problems with her back. She received some pain medication from her doctor on December 12, 1985. The petitioner worked at Lamont Limited until December of 1985 and then left because of a wage cut. She subsequently took a job as a waitress.

On December 10, 1984, the petitioner filed a petition pursuant to sections 19(h) and 8(a) of the Act (Ill. Rev. Stat. 1981, ch. 48, pars. 138.19(h), 138.8(a)) alleging that in the period since the Commission’s decision she had been further temporarily and totally disabled; that her permanent disability had increased, and that she was entitled to recover additional medical expenses. On May 13, 1987, the Commission entered an order finding that the petitioner had failed to prove she had sustained a material increase in her permanent disability, but that she was entitled to additional TTD benefits of 45% weeks and $400 of additional medical expenses. The circuit court confirmed the Commission’s decision.

The sole issue presented on appeal is whether the Commission’s award of permanent partial disability benefits precluded an award of additional TTD benefits in a subsequent proceeding.

Section 8(b) of the Act provides that TTD benefits are to be paid “as long as the total temporary incapacity lasts.” (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(b).) In the case at bar, the question thus becomes at what point if any did the petitioner’s temporary total incapacity end.

It is well settled that TTD benefits are available only from the time an employee is injured until he has recovered as much as the character of his injury will permit. (Archer Daniels Midland Co. v. Industrial Comm’n (1988), 174 Ill. App. 3d 918, 529 N.E.2d 237.) Temporary incapacity might be described as the period of the healing process. (Mt. Olive Coal Co. v. Industrial Comm’n (1920), 295 Ill. 429, 129 N.E. 103.) Once the Commission concludes that the petitioner’s condition has stabilized and that the permanent nature of the injury can be assessed, an award of temporary total disability is no longer appropriate under section 19(h). (Howard v. Industrial Comm'n (1980), 81 Ill. 2d 50, 405 N.E.2d 750.) Whether an employee has sustained an injury which renders him permanently disabled is a question of fact to be resolved by the Commission. Howard v. Industrial Comm’n (1980), 81 Ill. 2d 50, 405 N.E.2d 750.

Applying the above principles to the facts of the instant case, we find that the Commission erred in awarding the petitioner further TTD benefits.after it found her permanently disabled. The Commission’s finding on December 28, 1983, that the petitioner was permanently disabled to the extent of 2% was tantamount to a decision that she had recovered as much as the character of her injury would permit. Further, the Commission’s finding of permanent disability was a final order, and a subsequent court cannot question its propriety. (De Bartolo v. Industrial Comm’n (1940), 375 Ill. 103, 30 N.E.2d 677.) It therefore was improper under the Act and its interpretory case law for the Commission to award the petitioner TTD benefits for the period following the stabilization of her injury.

The petitioner makes a policy argument that TTD benefits under section 8(b) of the Act should be allowable even after a finding of permanency. She contends that it is incongruous to allow an injured worker further medical expenses and not allow her additional TTD benefits.

The petitioner’s arguments are unpersuasive. One of the purposes behind holding that the period of TTD should not be permitted to include any part of that period after the incapacity has become permanent is that an allowance for TTD is not deductible from an allowance for permanent partial disability or total permanent disability. (Western Cartridge Co. v. Industrial Comm’n (1934), 357 Ill. 29, 191 N.E. 213.) Moreover, permanent disability payments are not dependent on actual, proven wage loss, but rather the effect on earning capacity is conclusively presumed. (2 A. Larson, Workmen’s Compensation §58.11, at 10 — 323 to 10 — 324 (1987).) Accordingly, the Commission should not have awarded additional TTD benefits.

We therefore reverse the circuit court's confirmation of the Commission’s finding that the petitioner was entitled to 45% weeks of additional temporary total disability benefits under section 8(b) of the Act. The remainder of the circuit court’s decision is affirmed.

The judgment of the circuit court of Knox County is affirmed in part and reversed in part.

Affirmed in part; reversed in part.

McNAMARA, WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.


author: JUSTICE GORMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD E. CORDER, JR., Defendant-Appellant.
    Third District
    No. 3—90—0298
    Opinion filed April 15, 1991.

      Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Elizabeth A. King, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

Following a jury trial the defendant, Richard E. Corder, Jr., was convicted of aggravated battery and unlawful use of weapons by a felon (Ill. Rev. Stat. 1989, ch. 38, pars. 12—4(a), 24—1.1(a)). He was subsequently sentenced to concurrent terms of three years’ imprisonment. He appeals, and we affirm.

On appeal, the defendant first argues that his conviction for unlawful use of weapons by a felon should be reversed. Specifically, he contends that where the basis for the grand jury charge was a 1974 felony conviction but the basis relied upon at trial was a 1984 felony conviction, error occurred.

The record shows that the bill of indictment charged the defendant with unlawful use of weapons by a felon in that “he knowingly possessed on or about his person or on his land or in his own abode or fixed place of business a firearm and ammunition having been previously convicted of a felony under the laws of the State.” The defendant does not contest the fact that he had a gun in his possession when he shot the victim in the hand. Further, the evidence presented at the grand jury proceeding showed that the defendant had been convicted of aggravated battery in 1978. At trial, however, the evidence presented showed that the defendant had been convicted of unlawful possession of a controlled substance in 1984.

We note that the defendant has cited no case law to support his proposition that the grand jury and the trial jury must hear evidence of the same prior felony in order for an unlawful use of weapons conviction to stand. Here, the indictment did not specify a particular conviction that would be used to prove the State’s case. Instead, it merely stated that the defendant had been previously convicted of a felony. As such, we find that the State was not required to use the same prior conviction at trial that it used before the grand jury.

We also note that the defendant has not alleged that he was prejudiced by the use of different felony convictions. Further, the evidence would not support such an allegation, since the defendant was supplied in discovery with the State’s evidence regarding these convictions. Finally, the defendant was obviously aware that he had prior felony convictions. We therefore find that the defendant’s conviction for unlawful use of weapons was proper.

The defendant next argues that he was denied his right to a fair trial when the prosecutor made statements that defined the concept of reasonable doubt and made statements that focused the jury’s attention on the defendant’s failure to testify.

The record regarding the defendant’s reasonable doubt argument shows that defense counsel stated the following in his closing argument: “It is the burden of the State to prove beyond a reasonable doubt the guilt, not possibility, not more likely, not probably, but beyond a reasonable doubt.” The State, in its rebuttal, basically repeated defense counsel’s statement.

Where defense counsel invites or provokes a response from the prosecutor, the defendant is precluded from complaining that he was prejudiced by that response. (People v. Matthews (1979), 69 Ill. App. 3d 65, 387 N.E.2d 10.) In the case at hand, we find that the defendant invited the alleged error he now complains about. As such, we find that he is precluded from raising this issue on appeal.

Regarding the defendant’s argument that the State improperly commented on his failure to testify, the record shows that the comments were proper. The defendant called three witnesses in his own behalf. In addition, defense counsel vigorously cross-examined all of the State’s witnesses, including the victim. However, while some evidence was introduced regarding the credibility of the State’s witnesses, no evidence was produced that contradicted the victim’s testimony as to what had happened. In his closing arguments, the State’s Attorney twice commented that there had been no evidence presented to controvert the victim’s testimony.

The prosecutor is allowed a great deal of latitude during closing arguments. (People v. Smith (1988), 165 Ill. App. 3d 905, 520 N.E.2d 841.) In determining whether the defendant’s right to remain silent has been violated, the reviewing court must look to whether the prosecutor’s challenged statements were intended to direct the jury’s attention to the defendant’s failure to testify. (People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180.) A prosecutor may comment on the uncontroverted nature of the evidence even though the defendant may be the only person who could have contradicted the evidence. (Smith (1988), 165 Ill. App. 3d at 913, 520 N.E.2d at 845.) The character and scope of argument to the jury are left largely to the trial court, and the reviewing court must indulge in every reasonable presumption that the trial judge properly exercised the discretion vested in him. Smith (1988), 165 Ill. App. 3d at 913, 520 N.E.2d at 846.

Here, we find that the trial court did not abuse its discretion in allowing the complained-of remarks. Rather, the prosecutor’s comments were proper references to the uncontroverted nature of the State’s evidence. The prosecutor merely stated that there was a lack of defense testimony to contradict the victim’s statements, not that there was a lack of testimony from the defendant personally.

Accordingly, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

STOUDER, P.J., and BARRY, J., concur.


author: PRESIDING JUSTICE STOUDER

text:
    JOHN M. MYERS, Plaintiff-Appellee, v. INTERNATIONAL HARVESTER COMPANY (FARMALL WORKS), n/k/a Navistar International Transportation Company, Defendant-Appellant.
    Third District
    No. 3—90—0572
    Opinion filed April 15, 1991.
    Rehearing denied May 21, 1991.

      James M. O’Brien, of Pope, Ballard, Shepard & Fowle, Ltd., of Chicago, for appellant.
    Harrison H. Kavensky, of Winstein, Kavensky, Wallace & Doughty, of Rock Island, for appellees.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff, John M. Myers, brought this action for entry of judgment against the defendant, Navistar International Transportation Company. The trial court entered judgment in favor of the plaintiff, and the defendant appeals. We reverse.

The record shows that the plaintiff filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.). Thereafter, on July 26, 1989, the Industrial Commission (Commission) entered an order finding that the plaintiff was permanently and totally disabled. As part of the Commission’s award, the defendant was to provide the plaintiff with “an installed, all-season Coronado whirlpool.” In its findings, the Commission also stated that the whirlpool was to be installed in the plaintiff’s home. Neither party appealed the Commission’s decision.

The record further shows that due to the size of the 10-person whirlpool, it could not be installed in the plaintiff’s home. The parties proceeded to obtain construction bids on the cost of building a separate structure in which the whirlpool could be installed. It was determined that the total cost for the whirlpool and structure would be approximately $38,000.

No construction was started, however, due to a dispute between the parties as to whether separate meters needed to be installed to measure the electrical power and cost of heating the whirlpool. The parties also disagreed about who would be responsible for the costs of heating, maintaining, and cleaning the unit. Finally, the parties disagreed about where the whirlpool should be installed since it could not be put in the plaintiff’s home. In conjunction with this, a question arose as to what amenities were to be installed in the separate structure if it were built.

Thereafter, on February 5, 1990, the defendant filed a request with the Industrial Commission seeking a hearing to resolve the disputed issues. A hearing was set for April 20, 1990, and was later rescheduled for July of 1990.

On February 9, 1990, prior to any hearings by the Commission, the plaintiff filed a complaint for judgment in the circuit court of Rock Island County. The plaintiff requested that the trial court enter judgment against the defendant pursuant to section 19(g) of the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g)). On July 12, 1990, the court entered judgment in favor of the plaintiff and ordered the defendant to provide the plaintiff with an installed whirlpool.

On appeal, the defendant argues that the trial court improperly entered judgment against it since proceedings for review were pending before the Commission. We agree.

When no proceedings for review are pending, a party may present a certified copy of the Commission’s final decision to the circuit court of the county in which the accident occurred or either of the parties is a resident, whereupon the court shall enter a judgment in accordance therewith. Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g); see Ahlers v. Sears, Roebuck Co. (1978), 73 Ill. 2d 259, 383 N.E.2d 207.

Here, in February of 1990 the defendant filed a motion with the Commission requesting that it review and clarify its order regarding the installation of the whirlpool. The trial court did not enter its judgment until July of 1990, a date well past the commencement of the action before the Commission. As the record shows then, a petition for review involving the same issue presented to the trial court was pending before the Commission at the time of the trial court proceedings. Therefore, since the statute specifically provides that entry of judgment is not possible when review proceedings are pending, we find that the trial court’s entry of judgment was premature.

We note that the plaintiff filed a motion, which was taken with the case, requesting that we impose sanctions against the defendant for filing a frivolous appeal. Based on our disposition of the case, we deny the plaintiff’s motion.

The judgment of the circuit court of Rock Island County is reversed.

Reversed.

McCUSKEY and SLATER, JJ., concur.


author: JUSTICE McCUSKEY

text:
    RAOUL REQUENA, Special Adm’r of the Estate of Rosa Garcia, Deceased, Plaintiff-Appellant, v. FRANCISCAN SISTERS HEALTH CARE CORPORATION et al., Defendants-Appellees.
    Third District
    No. 3—89—0786
    Opinion filed April 17, 1991.

      Patrick J. Kenneally, Ltd., of Chicago, and Roman R. Okrei, of Stefanich, McGarry, Wols & Okrei, of Joliet (Sheila T. Kirchheimer, of counsel), for appellant.
    Stephen R. Swofford and Peter G. Panno, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Bruce L. Carmen, of counsel), for appellee Franciscan Sisters Health Care Corporation.
    Pamela Davis, Robert J. Baron, and George J. Vosicky, all of Rooks, Pitts & Poust, of Joliet, for appellees Roy Alcala and R. Singh.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The plaintiff, Raoul Requena, special administrator of the estate of Rosa Garcia, filed a medical negligence action against Drs. Roy Alcala, R. Singh (hereinafter referred to as Alcala and Singh), and St. Joseph Medical Center (hereinafter referred to as St. Joseph’s) on behalf of Rosa Garcia, deceased. The plaintiff appeals the verdict and judgment entered in favor of the defendants, Alcala and Singh.

On January 26, 1986, Rosa Garcia, who had been suffering from congestive heart failure, complained of severe chest pain. Family members transported her to St. Joseph’s, where a doctor examined and admitted her. At the time of this admission, she suffered from plural effusion, left bundle branch block, and possible pneumonia. In addition, the doctor determined she experienced a myocardial infarction as well as premature ventricular contractions (PVC’s).

Following her admission, no additional tests or treatment was conducted or undertaken, other than those administered in the emergency room. Alcala, the emergency room physician, determined the PVC’s were chronic and did not further treat this condition. Despite her family’s concerns and objections, Rosa Garcia was released four days later still complaining of chest pain.

On February 2, 1986, she returned to St. Joseph’s complaining of chest pain plus nausea. She was examined by Singh, who failed to administer any diagnostic tests with regard to her symptoms. Singh prescribed an antacid and released her. A doctor testifying for the plaintiff opined that Singh should have conducted diagnostic tests, e.g., orthostatic hypotension, reviewed her medical chart and file, and admitted her.

On February 3, 1986, Rosa Garcia reappeared at St. Joseph’s in worse condition, i.e., low blood pressure and vomiting. Singh ordered a psychiatric exam and admitted her. Dr. Van Arsdell (hereinafter Van Arsdell) assumed the responsibility of her care. Two days later, Rosa Garcia experienced total heart failure and died.

A doctor testifying for the plaintiff stated that Alcala’s and Singh’s failure to properly examine and treat Rosa’s condition was the proximate cause of her death. A doctor testifying for the defendants stated the proximate cause of death was the substandard care provided by Van Arsdell. The same witness indicated that Van Arsdell exercised poor judgment by ordering the administration of excessive intravenous fluid to a patient with such a weak heart.

Van Arsdell, on the date of his deposition, arrived at defendants’ attorneys’ law office one hour early. For approximately one hour, Van Arsdell discussed the facts of this case with defendants’ counsel. Defense counsel advised Van Arsdell in advance of his deposition of possible areas of inquiry by plaintiff’s counsel. Later, Van Arsdell acknowledged he discussed the facts of this case with defense counsel. However, it was never specifically known what was discussed or revealed between Van Arsdell and defense counsel. Van Arsdell indicated he did not know which party defense counsel represented.

The case proceeded to trial, and during jury deliberations, the jury requested clarification of certain testimony and instructions. The trial judge advised the jury, without the presence or involvement of either counsel, to base their decision on their recollection of the evidence. The trial judge did not otherwise answer the jury’s inquiry or clarify the instructions. Neither attorney was advised of this dialogue until after the announcement of the verdict.

During a post-trial motion hearing, the trial judge justified his handling of the jury’s inquiry by indicating that neither counsel was available at the pivotal time. Therefore, the trial judge concluded he could not have brought the matter to their attention. Both counsel claimed to be readily accessible during the jury deliberations. The jury returned verdicts for the defendants, and the trial court entered judgment. This appeal follows.

Plaintiff raises numerous issues on appeal. The first issue is whether the trial court committed reversible error by permitting plaintiff’s treating physician, Van Arsdell, to testify following his ex parte communication with defendants’ attorney. We believe reversible error did occur. We remand this case for a new trial with the instruction that Van Arsdell is prohibited from testifying on retrial.

It is well-settled law that a defense attorney is prohibited from engaging in ex parte communications with plaintiff’s treating physician. (Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952.) The Petrillo case has been adopted and followed by the third district in Yates v. El-Deiry (1987), 160 Ill. App. 3d 198, 513 N.E.2d 519. Petrillo holds that where there are ex parte communications between defense counsel and plaintiff’s treating physician, it is reversible error to allow plaintiff’s treating physician to testify at trial. (See Elliott v. Koch (1990), 200 Ill. App. 3d 1, 558 N.E.2d 493.) The theory behind this harsh yet necessary prohibition is based upon the doctor/patient privilege. In Yates, this same type of ex parte communication resulted in reversible error when the defendant was allowed to call plaintiff’s treating physician to testify. “Prejudice and improper conduct can be implied from the fact that the plaintiff’s treating physician has violated his ethical and fiduciary obligations owed to his patient by engaging in ex parte conferences concerning the patient with the patient’s legal adversary and without plaintiff’s consent.” Yates v. El-Deiry, 160 Ill. App. 3d at 203.

In the case of Mahan v. Louisville & Nashville R.R. Co. (1990), 203 Ill. App. 3d 748, 561 N.E.2d 127, the Fifth District Appellate Court recently permitted plaintiff’s treating physician to testify after he had a brief ex parte conversation with defendant’s attorney just prior to the doctor’s deposition. In Mahan, the court found the conversation lasted no more than 30 seconds. Further, the court in Mahan found the communication did not result in the disclosure of any private or confidential information regarding the patient and, therefore, was distinguishable from Yates.

The present case is distinguishable from Mahan since the conversation between defense counsel and Van Arsdell was more than brief. Further, and more importantly, defense counsel here attempted to advise the treating physician of possible questions that would be asked by plaintiff’s counsel during the deposition. In the instant case, defense counsel initiated the conference with Van Arsdell. During the conference, defense counsel provided the treating physician with medical records from which he could base his testimony. He also described to Van Arsdell the allegations within plaintiff’s complaint and explained the- defense theory. Defense counsel admittedly discussed the treatment of plaintiff with Van Arsdell. The strong public policy of Petrillo is based on preserving the confidential and fiduciary relationship between a physician and patient. The communication in the instant case jeopardized that policy and was improper. Prejudice to the plaintiff can be implied from the facts and circumstances of the improper ex parte communication in this case. Here, the plaintiff’s treating physician has violated his ethical and fiduciary obligation owed to plaintiff. The ex parte communication between Van Arsdell and defense counsel was without the patient’s consent and concerned the patient’s treatment.

The appropriate relief to be granted for this violation is to prohibit Van Arsdell from testifying at retrial because his testimony has been tainted by virtue of the improper ex parte communication.

The widely accepted Petrillo case emphasizes the safeguards of the formal discovery process and suggests the same be implemented and used throughout a case in order to preserve the privileges and rights that the parties should possess and enjoy. The ex parte communication between defense counsel and Van Arsdell undermined the confidence that Rosa Garcia placed with Van Arsdell when she received his medical assistance. The physician/patient privilege can only be waived by the patient. It cannot be waived by the doctor.

Plaintiff next contends the trial court erred by permitting one of plaintiff’s former treating physicians to testify on the grounds of relevancy and remoteness. This doctor diagnosed and treated the plaintiff for congestive heart failure approximately 21k years prior to her death. We believe the testimony of this doctor is relevant to establish the plaintiff’s preexisting cardiac condition and the symptoms she experienced. He should be permitted to testify only as to those matters within his personal knowledge. The fact this doctor’s recall was minimal could be exploited during cross-examination. Evidence of an injured person’s health and condition before an injury is admissible to show the extent, nature, and effects of the injury. However, the evidence must be sufficiently connected with the injury to be material. (Shaheed v. Chicago Transit Authority (1985), 137 Ill. App. 3d 352, 484 N.E.2d 542.) This is a matter involving a preexisting condition that could significantly reduce the life span of the plaintiff and thereby reduce damages accordingly. The fact that plaintiff suffered from a known or easily diagnosable illness that began nearly 2V2 years prior is not too remote in time and is relevant to the medical negligence questions concerning the defendants’ diagnosis and treatment of plaintiff at the time immediately preceding her death.

Plaintiff next argues the trial court erred by dismissing with prejudice the allegations against St. Joseph’s based on a deficient medical report attached to plaintiff’s first amended complaint. The medical report is required by section 2 — 622 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—622). The plaintiff filed with the first amended complaint the requisite medical report issued by an expert. The expert stated within the medical report that he believed there was reasonable cause to file a medical malpractice action against the defendants, including St. Joseph’s. We find that the medical report sufficiently complies with the language, spirit, and intention of section 2 — 622 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2—622.) After reviewing the pertinent medical records, the expert identified St. Joseph’s as a potential defendant in this matter. However, we find that each defendant was enumerated with specificity. Therefore, the medical report was sufficient and the trial court erred by dismissing St. Joseph’s from the case. The technical requirements of this statute should not interfere with the spirit or purpose of the statute. The appellees in this case have shown no prejudice since all defendants were named in the expert’s medical report. Therefore, the absence of strict technical compliance with the statute is one of form only and not of substance. The technical requirements of the statute should not be utilized to deprive the plaintiff of his substantive rights. (McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 520 N.E.2d 293.) The purpose of the enactment was not to insurmountably burden the plaintiff with hurdles prior to filing, but to reduce the number of frivolous lawsuits filed concerning complex and difficult areas of medical malpractice.

The plaintiff next argues the medical certificate requirement within section 2 — 622 of the Code of Civil Procedure is unconstitutional. Based on our decision with regard to the sufficiency of the medical report attached to plaintiff’s first amended complaint, it is not necessary that we reach a finding of this issue.

The plaintiff raises several issues concerning the trial court’s dialogue with the jury following the evidentiary portion of the trial. In consideration of the result reached on the aforementioned issues, it is not necessary to address these arguments in depth. However, a brief discussion should occur. The plaintiff contends the trial court committed reversible error by failing to correctly advise and clarify the instructions when it received written inquiry from the jury. We disagree. It is within the trial court’s discretion' to allow or refuse a request for clarification from the jury. (Kingston v. Turner (1987), 115 Ill. 2d 445, 505 N.E.2d 320.) In this situation, the trial court admitted Illinois Pattern Jury Instructions and allowed them to remain without clarification. The trial court acted within its discretion and did not commit error. Furthermore, there was no suggestion the instructions were incomplete or the jury was confused.

The plaintiff next argues the trial court committed reversible error by denying the jury’s request for a transcript of the testimony of the defendant, Singh. We disagree. It is -within the discretion of the trial court to refuse the jury’s request for a review of the transcript. (People v. Pierce (1974), 56 Ill. 2d 361, 308 N.E.2d 577.) The plaintiff further argues that error occurred because the trial court failed to discuss the jury’s request with counsel. We disagree. The trial judge acted within his discretion.

For the reasons mentioned, the circuit court of Will County is reversed, and this matter is remanded for a new trial consistent with the holdings herein.

Reversed and remanded.

STOUDER, P.J., and SLATER, J., concur.


text:
    MILDRED BRYANT, Indiv. and as Ex’r of the Will of D. Eugene Bryant, Deceased, Plaintiff-Appellant, v. KROGER COMPANY, Defendant-Appellee.
    Third District
    No. 3—90—0235
    Opinion filed April 17, 1991.
    Safford, West, Tornow & Jaeger, of Peoria (Medley A. Tornow, of counsel), for appellant.
    Stephen R. Swofford, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, and Edward T. Habecker, of Thomas & Hinshaw, Culbertson, of Peoria (Terrence K. McGrath, of counsel), for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The plaintiff, Mildred Bryant, as executor of the will of D. Eugene Bryant, deceased, appeals a determination by the trial court dismissing the estate of Eugene Bryant’s cause of action for loss of consortium. We reverse.

The plaintiff, Mildred Bryant, filed a complaint contending she sustained injuries on December 16, 1987, as a result of a fall which occurred on defendant’s premises and arose out of defendant’s negligence. The plaintiff’s husband, D. Eugene Bryant, died November 13, 1989. Mr. Bryant, by his executor, Mildred Bryant (hereinafter plaintiff), filed as count I of the complaint an action for damages experienced by Mr. Bryant as a result of the loss of consortium of his spouse from December 16, 1987, to the date of his death, November 13, 1989. Defendant filed a motion to dismiss count I of plaintiff’s complaint on the basis that a loss of consortium action did not survive the death of the plaintiff. After a hearing and submission of legal memoranda, the trial court dismissed count I of the plaintiff’s complaint with prejudice.

The sole issue for appeal is whether plaintiff’s cause of action for loss of consortium survives or abates at his death.

In Illinois, the determination of whether an action abates upon the plaintiff’s death is governed by common law rules and the statutory provisions which, in effect, change the common law. Such decision depends upon the nature of the cause of action involved. See McGill v. Lazzaro (1978), 62 Ill. App. 3d 151, 379 N.E.2d 16.

The common law distinguished between those actions which survive and those which abate based upon the type of injury the deceased plaintiff had suffered. “If the interest to be protected was primarily a property interest, then the action survived; however, if the interest was primarily personal, the action was held to abate. [Citation.]” (Shapiro v. Chernoff (1972), 3 Ill. App. 3d 396, 403, 279 N.E.2d 454.) At common law, the death of either party abated tort actions. Butterman v. Chamales (1966), 73 Ill. App. 2d 399, 220 N.E.2d 84.

The Illinois survival statute changed the common law to allow representatives of the deceased to maintain an action which had accrued during the deceased’s lifetime. (Merrihew v. Chicago City Ry. Co. (1900), 92 Ill. App. 346.) The statute does not create a statutory cause of action. It merely permits a representative of the decedent to maintain those statutory or common law actions which have already accrued to the decedent before he or she died. National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 383 N.E.2d 919.

The Illinois survival statute provides, in relevant part:

“In addition to the actions which survive by the common law, the following also survive: *** actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property ***.” (Ill. Rev. Stat. 1989, ch. 110½, par. 27—6.)

Early interpretations of the survival statute were very restrictive. (See, e.g., Holton v. Daly (1882), 106 Ill. 131.) However, beginning with Saunders v. Schultz (1960), 20 Ill. 2d 301, 170 N.E.2d 163, our supreme court began to interpret the statute more expansively.

In McDaniel v. Bullard (1966), 34 Ill. 2d 487, 216 N.E.2d 140, the court held that a wrongful death action was “personal property” under the survival statute and therefore survived the death of the decedent. The court there overruled its own prior decisions which had construed the term “personal property” in the survival statute to apply only to “tangible” or “chattel” property which could be “seen and handled.”

“We think the statute ought no longer be given such a narrow, technical construction. Whatever may be the distinction between a property right in its most general sense and ‘real or personal property,’ we cannot consider property tangible merely because people usually thought of it that way in the 19th century. Such a rule of statutory construction would lead to absurd consequences and would largely defeat the object of the Survival Act in modern society. Broad terms like ‘personal property’ must be construed with reference to the conditions of present-day life. The fact that particular forms of it were not in existence at the time of enactment, or were not specifically contemplated by the lawmakers, does not limit the application of the statute. Legislative enactments which are prospective in operation, and phrased in terms comprehensive enough to include things of the same class subsequently coming into existence, should be held applicable where such is consistent with the general legislative purpose. The act involved here does not say ‘goods and chattels,’ as it might well have done had it contemplated the narrow scope given to it in the Wilcox and Jones cases. Instead it employs the all-embracing term ‘personal property.’ ” 34 Ill. 2d at 490-91.

The McDaniel court held that a loss of support action could also be encompassed within the definition of “personal property” and survive the death of the decedent.

“The word ‘property’ is a generic term and its meaning in any case must be determined by the sense in which it is used. Looking at the context in which ‘personal property’ is used here, and at the object of the Survival Act as a whole, we can see no good reason why the ordinary meaning should not be given to the phrase so as to include the cause of action on behalf of next of kin to recover for loss of support.” 34 Ill. 2d at 491.

The McDaniel court stated further that “there is no reason why an estate that has been injured or depleted by the wrong of another should not be compensated whether the injured party is living or not. [Citation.] The rule of abatement has its roots in archaic conceptions of remedy which have long since lost their validity. The reason having ceased the rule is out of place and ought not to be perpetuated.” (34 Ill. 2d at 494.) The common law rule of abatement evolved because tort actions were originally regarded as punitive. Today, however, damages for most torts are recognized as compensatory rather than punitive. Therefore, there is absolutely no reason why an estate that has been injured or depleted by the wrong of another should not be compensated whether the injured party is living or not. McDaniel, 34 Ill. 2d at 494.

Similarly, in Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, the supreme court discussed the disapproval of abatement and the enlarging of survival statutes. The court stated as follows:

“This disfavoring of abatement and enlarging of survival statutes has been general. In Prosser, Handbook of the Law of Torts (4th ed. 1971), at page 901, it is said: ‘[T]he modern trend is definitely toward the view that tort causes of action and liabilities are as fairly a part of the estate of either plaintiff or defendant as contract debts, and that the question is rather one of why a fortuitous event such as death should extinguish a valid action. Accordingly, survival statutes gradually are being extended; and it may be expected that ultimately all tort actions will survive to the same extent as those founded on contract.’ And at page 906 Prosser observes that where there have been wrongful death and survival statutes the usual holding has been that actions may be concurrently maintained under those statutes. The usual method of dealing with the two causes of action, he notes, is to allocate conscious pain and suffering, expenses and loss of earnings of the decedent up to the date of death to the survival statute, and to allocate the loss of benefits of the survivors to the action for wrongful death.” 56 Ill. 2d at 429.

In Walter v. Board of Education of Quincy School District No. 172 (1982), 93 Ill. 2d 101, 108, 442 N.E.2d 870, the court held that the teacher-plaintiff’s mandamus action for reinstatement and back pay could be appealed by the executor of her estate and survived by virtue of the portion of the Survival Act allowing recovery for “actions to recover damages for an injury to *** personal property.” (Walter, 93 Ill. 2d at 108.) The Walter court, citing to McDaniel, decreed: “The Survival Act is a remedial statute and is liberally construed in order to prevent abatement.” Walter, 93 Ill. 2d at 108. See also Raisl v. Elmwood Industries, Inc. (1985), 134 Ill. App. 3d 170, 479 N.E.2d 1106 (wherein the court held that compensatory damages for retaliatory discharge were considered “personal property”).

This court has considered the Illinois Survival Act (Ill. Rev. Stat. 1987, ch. 110½, par. 27—6) on two recent occasions. In Stonestreet v. Iroquois County Sheriff’s Merit Comm’n (1986), 150 Ill. App. 3d 1092, 502 N.E.2d 862, this court cited McDaniel with approval and held that a suit by a police officer challenging his discharge by the sheriff and county commission did not abate with his death.

Likewise, in Williams v. Palmer (1988), 177 Ill. App. 3d 799, 532 N.E.2d 1061, this court held that plaintiff’s cause of action for tortious interference with his contractual relations survived his death. The Williams court underscored its intent to follow the McDaniel case trend of expanding the boundaries of “personal property” under the Survival Act.

Other States have also followed the trend of the McDaniel court. For example, in the case of Nathan v. Touro Infirmary (La. 1987), 512 So. 2d 352, the supreme court of Louisiana held that a patient’s claim for damages for medical malpractice did not abate on his death because his claim was, in essence, a property right. The court explained the interest as follows:

“We next determine whether Herbert Nathan’s action abated upon his death or whether it was a property right. C.C.R art. 428 states:
'An action does not abate on the death of a party. The only exception to this rule is an action to enforce a right or obligation which is strictly personal.’ ***
Thus, the code clearly provides generally that Herbert Nathan’s action does not abate upon his death unless it is ‘strictly personal.’ In Guidry v. Theriot, 377 So. 2d 319, 323 (La. 1979), we found that a victim’s action for recovery of tort damages is not strictly personal and that C.C.P. art. 428 legislatively overruled ‘the jurisprudence which had adopted the common law rule that a tort action abates on the death of the victim.’ We specifically reaffirmed J. Wilton Jones Co. v. Liberty Mutual Insurance Co., 248 So. 2d 878 (La. App. 4 Cir. 1971), which held that a victim’s action to recover tort damages is not strictly personal, and is inherited by the beneficiary’s heirs upon the beneficiary’s death. See Johnson, Death on the Calíais Coach: The Mystery of Louisiana Wrongful Death and Survival Actions, 37 La. L. Rev. 1, 52 (1976).
C.C.P. art. 426 provides:
‘An action to enforce an obligation is the property of the obligee which on his death is transmitted with his estate to his heirs, universal legatees, or legatees under a universal title, except as otherwise provided by law. An action to en- . force an obligation is transmitted to the obligee’s legatee under a particular title only when it relates to the property disposed of under the particular title.
These rules apply also to a right to enforce an obligation, when no action thereon was commenced prior to the obligee’s death.’
In Turner v. Southern Wheel and Rim Service, Inc., 332 So. 2d 770 (La. 1976), we had concluded that C.C.P. art. 428 and C.C.P. art. 426, the general principles regarding abatement of actions, were applicable to a worker’s compensation claim; we held that the right of an obligee to enforce an obligation is his property that is transmitted upon his death to his heirs or legatees even where the obligee did not commence an action thereon, unless the obligation sought to be enforced is strictly personal. Under these statutory and jurisprudential authorities, Herbert Nathan’s claim for damages for medical malpractice did not abate on his death.” 512 So. 2d at 354.

Similarly, in the case of Katz v. Filandro (1987), 153 Ariz. 601, 739 P.2d 822, citing to the McDaniel case in a footnote, the Arizona Court of Appeals held that a claim for economic support became a property right in the beneficiary’s estate where the beneficiary-plaintiff has died. The court concluded that even though the statutory beneficiary dies during the course of a wrongful death action, the claim for economic support vests as a property right in the estate and survives to his/her representative.

“There is support for this view in Arizona, where the courts have focused on the time of the wrongful death in determining the existence of beneficiaries, and not the time the action is brought or the time of trial. Professor Dobbs in his Handbook on the Law of Remedies (1973) (‘Dobbs’) states as follows:
‘Courts are divided on the question whether there is any action at all for the decedent’s death where the sole beneficiary dies. Some allow a recovery by the beneficiary’s estate, some deny recovery altogether where the beneficiary has himself died, and some permit or deny recovery depending on whether suit was brought before or after the beneficiary’s death.’
Dobbs, supra, at 569 (footnotes omitted). We hold that Bobbi’s claim for loss of economic support survived her death for two reasons. First, it is not a claim specifically excluded under the terms of the survival statute. Second, we agree with the jurisdictions that have determined that the cause of action vests in the plaintiff/beneficiary immediately upon the wrongful death, becomes a property right in the beneficiary and survives to his representative. Once the cause of action has accrued, it is not extinguished by the death of a specific named beneficiary. ‘The object of the revival statute and the wrongful death statute was to give and preserve to parties damaged a complete recovery and opportunity to recover complete loss sustained because of wrongful injury and death.’ Holmes v. City of New York, 269 A.D. 95, 54 N.Y.S.2d 289 (1945).” 153 Ariz. at 605-06, 739 P.2d at 826-27.

The court in McDaniel allowed loss of support to survive under the Act. However, McDaniel did not address whether loss of consortium also survived under the Act. Therefore, in keeping with the approach of McDaniel and its progeny, we hold that plaintiff’s claim for loss of consortium is “personal property” within the meaning of the Survival Act. Thus, plaintiff’s claim for loss of consortium does not abate at death. We find the term “personal property” as used in the Act is comprehensive enough to include loss of consortium.

Claims for loss of consortium include, in addition to loss of support, elements of companionship, felicity and sexual intercourse. (See Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881.) The legal theory underlying a loss of consortium claim was based upon the common law- concept that the wife was the husband’s chattel and that any injury to the wife constituted an injury to the husband’s personal property for which he was entitled to compensation of damages. (See Martin v. Kiendl Construction Co. (1982), 108 Ill. App. 3d 468, 438 N.E.2d 1187.) Obviously, the historical milieu with which the rule originated has been completely changed. Today, a wife is no longer viewed as her husband’s chattel, but stands as his equal in the eyes of the law. Dini v. Naiditch (1960), 20 Ill. 2d 406,170 N.E.2d 881.

Moreover, the property interest to be protected here does not rest on any medieval theory but on the injury done to the marital relationship. Consortium represents the interest of the injured party’s spouse in the continuance of a healthy and happy marital life, and this cause of action seeks to compensate for injury done to that very relationship. (See Millington v. Southeastern Elevator Co. (1968), 22 N.Y.2d 498, 239 N.E.2d 897, 293 N.Y.S.2d 305.) We find “personal property” is a generic term which should not be limited to just tangible goods. The law must keep pace with changes in our society. Accordingly, consortium should be viewed as a type of personal property interest. Therefore, this interest requires coverage under the Survival Act.

Based on the foregoing, the decision of the trial court is reversed.

Reversed.

SLATER and BARRY, JJ., concur.