text:
    EFREN NAGUIT, Plaintiff-Appellee, v. STEPHEN F. SELCKE, Director of the Department of Registration and Education, et al., Defendants-Appellants.
    Fifth District
    No. 5—88—0239
    Opinion filed June 8, 1989.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Robert E. Becker and Kevin T. Hoerner, both of Kassly, Bone, Becker, Dix, Tillery & Reagan, P.C., of Belleville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendants, the Illinois Department of Registration and Education (now the Department of Professional Regulation) and its director, Stephen E Selcke, appeal under Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)) from an order of the circuit court of St. Clair County which preliminarily enjoined them from using certain medical records in bringing disciplinary action against plaintiff, Efren Naguit, a physician. As grounds for their appeal, defendants argue that issuance of a preliminary injunction was improper because plaintiff failed to establish the elements necessary to warrant such relief. We agree. We therefore reverse.

Based upon prescription records compiled by the Illinois Department of Alcohol and Substance Abuse, defendants initiated an investigation into whether plaintiff was improperly prescribing controlled substances to his patients. There is no dispute that such conduct, if established, would entitle defendants to “revoke, suspend, place on probationary status, or take any other disciplinary action as the Department may deem proper” with regard to plaintiff’s license to practice medicine under section 22(A) of the Medical Practice Act of 1987 (Ill. Rev. Stat. 1987, ch. 111, par. 4400 — 22(A)). Pursuant to their investigation, defendants issued a subpoena on April 13, 1987, in which they directed plaintiff to produce for inspection and copying all patient records, test results and medication records he had concerning 15 specific individuals. Plaintiff, who had secured counsel, honored this subpoena, and copies of the requested materials were turned over to one of defendants’ investigators by plaintiff’s office.

The April 13 subpoena indicated that it was being issued pursuant to section 110.140 of title 68 of the Illinois Administrative Code (68 Ill. Adm. Code §110.140 (Supp. 1986)). After plaintiff turned over the materials specified in this subpoena, plaintiff’s attorney complained that defendants had no right to those materials and demanded that they be returned immediately. Shortly thereafter, the Medical Practice Act of 1987 (Ill. Rev. Stat. 1987, ch. 111, par. 4400 — 1 et seq.) went into effect, and the law governing the licensing and regulation of physicians changed. Defendants then issued a second subpoena to plaintiff. This subpoena, dated November 4, 1987, requested records regarding the same 15 patients specified in the original subpoena. The type of records sought was also the same. The only difference was that the second subpoena contained no references to the Administrative Code, but instead indicated that it was being issued in accordance with section 38 of the new law (Ill. Rev. Stat. 1987, ch. 111, par. 4400-38).

Plaintiff refused to comply with the new subpoena. Instead, he filed an action for declaratory and injunctive relief in the circuit court of St. Clair County to challenge the legality of defendants’ actions in obtaining the medical records of his patients under the original subpoena. At the outset of the case plaintiff obtained a temporary restraining order against defendants. That order was soon dissolved, but a hearing was set on a request by plaintiff for preliminary injunctive relief. In the meantime, defendants filed a motion to dismiss pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615).

A hearing on the motion to dismiss and the motion for a preliminary injunction was held on January 28, 1988. On April 8, 1988, the circuit court issued a written order in which it denied defendants’ motion to dismiss, but granted plaintiff’s request for a preliminary injunction. Specifically, it “ordered that defendants are preliminarily restrained and enjoined from using any of the records here in question,

(1) as a basis for the revocation or suspension of plaintiff’s license to practice medicine, or
(2) to prosecute any alleged violation of the Medical Practice Act by plaintiff and from filing any complaint or obtaining the issuance of any process against plaintiff with the aid of the records in question,

pending disposition of plaintiff’s declaratory judgment action on the merits.” Defendants now appeal pursuant to Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)) from that portion of the circuit court’s order granting preliminary injunctive relief.

In order for a preliminary injunction to issue, a plaintiff must plead and prove the following: (1) a clear and ascertainable right in need of protection; (2) an irreparable injury if the injunction is not granted; (3) an inadequate remedy at law; and (4) a likelihood of success on the merits. (Meerbrey v. Marshall Field & Co. (1988), 169 Ill. App. 3d 1014, 1016, 524 N.E.2d 228.) Plaintiff here has not established even the first of these elements.

The basis for plaintiff’s claim is that the original subpoena issued by defendants was not authorized and that defendants obtained the records from him improperly. As we have previously indicated, however, the law subsequently changed and defendants issued a second subpoena in accordance with this new law. Plaintiff concedes that under the new law, defendants are now entitled to the materials they sought under the original subpoena, and there is no dispute that the second subpoena issued by the defendants conformed to the requirements of the new law. Under these circumstances, plaintiff can no longer claim any right not to turn over his records to defendants.

Once the Medical Practice Act of 1987 (Ill. Rev. Stat. 1987, ch. 111, par. 4400 — 1 et seq.) authorized defendants to subpoena the records in question here and a proper subpoena was issued pursuant to that statute, the question of whether defendants’ original subpoena was authorized became moot. (See Dobbs v. Chase (1981), 94 Ill. App. 3d 177, 180, 418 N.E.2d 919, 922.) This is so because even if that original subpoena were found to be improper, defendants could not be prevented from exercising the valid subpoena authority they now possess. The records would still have to be produced.

Plaintiff attempts to resist this conclusion by arguing that the finding of probable cause upon which issuance of the second subpoena was based depended on the contents of the records secured by the original subpoena. Accordingly, he reasons that if the first subpoena were found to be unauthorized, it would “taint” the second subpoena and thereby render improper the use of any records obtained under that subpoena as well. This argument is a variant of the exclusionary rule applied in criminal cases. What plaintiff fails to appreciate is that this is an administrative proceeding, not a criminal prosecution. (See Distaola v. Department of Registration & Education (1979), 72 Ill. App. 3d 977, 982, 391 N.E.2d 489, 493.) Plaintiff has not cited, and we have not found, any authority to support extension of the rule to cases such as this.

Even if, arguendo, the rule were applicable, it would be of no assistance to plaintiff. Plaintiffs claim that the second subpoena was tainted by the first is purely speculative. Although plaintiff was not required to “carry the same burden of proof that is required to support the ultimate issue” (Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 386, 483 N.E.2d 1271, 1277), he was required to establish, as we have previously indicated, that he is likely to be successful on the merits of his action. This he did not do. The evidence submitted to the trial court indicated that defendants relied upon precisely the same information in issuing the second subpoena as they had used in issuing the first. If this is in fact what happened, and there is no reason in the record to believe otherwise, the records obtained as a result of the first subpoena played no role in the procurement of the second subpoena and therefore could not possibly have caused it to be tainted.

For the foregoing reasons, the order of the circuit court of St. Clair County granting preliminary injunctive relief to plaintiff is reversed, and the preliminary injunction is dissolved.

Reversed.

WELCH, P.J., and RARICK, J., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARK A. LUKA, Defendant-Appellee.
    Fifth District
    No. 5—87—0846
    Opinion filed June 13, 1989.
    Gregory Grigsby, State’s Attorney, of Taylorville (Kenneth R. Boyle, Stephen E. Norris, and Thomas A. Dossett, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Michael K. Radloff, of Ryan, Cini & Bennett, of Mattoon, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

On July 23, 1987, the defendant, Mark Luka, drove a truck which collided with a truck driven by Earl Reese, who subsequently died of his injuries. On July 27, 1987, the State charged the defendant with failure to reduce speed to avoid an accident in violation of section 11 — 601(a) of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1985, ch. 95½, par. 11 — 601(a)). After the State rested its case at a bench trial before the circuit court of Christian County on December 10, 1987, the defendant moved for dismissal of the charge, asserting that the complaint was fatally deficient under People v. Lundgren (1986), 149 Ill. App. 3d 458, 500 N.E.2d 727, in that it failed to apprise him of either his speed or the applicable speed limit in compliance with section 11 — 610(a) of the Code (Ill. Rev. Stat. 1985, ch. 95^2, par. 11— 610(a)). The court granted this motion and the State appealed. We reverse the circuit court and remand this cause for further proceedings.

The State contends on this appeal that the trial court erred when it granted the defendant’s motion to dismiss. The defendant was charged under section 11 — 601(a) of the Code (Ill. Rev. Stat. 1985, ch. 95½, par. 11 — 601(a)), which states that “[sjpeed must be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.” Section 11 — 610(a) of the Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 610(a)) prescribes that “[i]n every charge of violation of any speed regulation in this article the complaint, and also the summons or notice to appear, shall specify the speed at which the defendant is alleged to have driven and the maximum speed applicable within the district or at the location.” Section 11 — 610(a) applies to speed regulations within article VI of the Code. Article VI of the Code includes section 11 — 601(a). It is uncontested that the complaint issued to the defendant did not specify the speed at which the defendant was alleged to have driven nor did it specify the maximum speed applicable within the district or at the location of the accident.

In People v. Lundgren (1986), 149 Ill. App. 3d 458, 500 N.E.2d 727, the defendant was charged with failure to reduce speed to avoid an accident. In allowing the defendant’s motion to dismiss, the trial court found the complaint fatally deficient for not apprising the defendant of either her speed or the applicable speed limit in compliance with section 11 — 610(a) of the Code. On appeal, the Illinois Appellate Court for the Third District affirmed, holding that the language in section 11 — 610(a) was an unambiguous legislative mandate. Lundgren, 149 Ill. App. 3d at 459, 500 N.E.2d at 728.

In the recent decision of People v. Naber (1989), 180 Ill. App. 3d 629, the Illinois Appellate Court for the Fourth District declined to follow Lundgren, holding that the interpretation placed upon sections 11 — 601(a) and 11 — 610(a) of the Code by the review court in Lundgren leads to an absurd result. After carefully reviewing the language of these statutes, we conclude that we must agree with our colleagues in the fourth district.

According to the Illinois Supreme Court in People v. Steppan (1985), 105 Ill. 2d 310, 316, 473 N.E.2d 1300, 1303:

“The function of the courts in construing statutes is to ascertain and give effect to the intent of the legislature. [Citations.] In ascertaining the intent of the legislature, it is proper for the court not only to consider the language employed by the statute, but also to look to the ‘ “reason and necessity for the law, the evils to be remedied, and the objects and purposes to be obtained.’ ” [Citations.] Moreover, in construing statutes, the courts presume that the General Assembly, in passing legislation, did not intend absurdity, inconvenience or injustice.”

Failing to reduce speed to avoid an accident in violation of section 11 — 601(a) of the Code requires proof that the defendant drove carelessly and that he failed to reduce speed to avoid colliding with persons or property. (People v. Schumann (1983), 120 Ill. App. 3d 518, 526, 458 N.E.2d 182, 188.) The offense does not require proof that the defendant was exceeding the applicable speed limit. Since the offense can occur regardless of the speed of the defendant’s vehicle or the applicable speed limit at the location of the accident, it is illogical to require that the complaint allege the defendant’s speed and the applicable speed limit.

When the legislature enacted section 11 — 610(a), its intent was clearly to require a peace officer who arrests a defendant for driving a motor vehicle in excess of the speed limit to state the defendant’s speed and the applicable speed limit on the complaint. In such cases, the speed may be objectively determined because the officer usually paces the speeding vehicle or records the vehicle’s excessive speed on radar. When the officer issues a citation for failure to reduce speed to avoid an accident, however, the citation is generally issued after the vehicle has come to a sudden halt as a result of a collision. In this situation, the officer can make no observations of the speed of the defendant’s vehicle prior to the collision. The officer would have a nearly impossible task attempting to subsequently reconstruct an objective determination of the defendant’s speed for purposes of alleging that speed on the complaint. Under these circumstances, it is illogical to require the citation and complaint to contain an allegation of the defendant’s speed and the speed limit, neither of which is an element of the offense. (People v. Naber (1989), 180 Ill. App. 3d 629, 631.) To require that the offense be stated in specific terms of speed eliminates the purpose of the statute and we are unable to attribute such an intent to the legislature.

For the foregoing reasons, the order of the circuit court dismissing the citation and complaint against the defendant is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

WELCH, P.J., and RARICK, J., concur.


author: JUSTICE RARICK

text:
    DELLA KEENE, Guardian for Darrell W. Cope, an Adult Disabled Person, Plaintiff-Appellant, v. DIANE L. BIERMAN et al., Defendants-Appellees.
    Fifth District
    No. 5—88—0173
    Opinion filed June 16, 1989.

      John Paul Womick & Associates, Chartered, of Carbondale, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Karen S. Rosenwinkel, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Della Keene, as guardian for Darrell Cope, filed an action in the circuit court of Jackson County against Diane Bierman and Norman Hare for injuries Cope sustained in an automobile accident. Bierman was the driver of the car in which Cope was riding, and Hare was the engineer who designed the roadway. The record indicates that while returning from Lake Kincaid near Murphysboro, Illinois, Bierman swerved to avoid an animal in the road. The car left the roadway and struck a tree approximately three feet from the road. Cope suffered severe and permanent brain damage rendering him incompetent. The case against Bierman was settled and Keene proceeded against Hare alleging that Hare was negligent in designing the road. The State, on behalf of Hare, moved to dismiss the complaint alleging, inter alia, that the complaint was barred by statutory sovereign immunity and that the doctrine of public official immunity would bar recovery against Hare as he was an employee of the Illinois Department of Conservation at the time he designed the roadway. The trial court granted the State’s motion and dismissed the complaint with prejudice pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619).

The doctrine of public official immunity shields public officials from personal liability for actions taken in the exercise of their official discretion. (MidAmerica Trust Co. v. Moffatt (1987), 158 Ill. App. 3d 372, 511 N.E.2d 964.) An act is considered “discretionary,” as opposed to “ministerial,” where it is governmental in nature, that is, where it is unique to the particular governmental employment. (Stephens v. Cozadd (1987), 159 Ill. App. 3d 452, 512 N.E.2d 812.) The purpose of the doctrine is to allow public officials to freely exercise their judgment according to their perception of public needs without fear of personal financial liability or having to defend various policy choices in court. Kelly v. Ogilvie (1965), 64 Ill. App. 2d 144, 212 N.E.2d 279, aff’d (1966), 35 Ill. 2d 297, 220 N.E.2d 174.

On appeal, Keene argues that Hare is not insulated from liability for his acts of negligence simply because he was an employee of the State. Keene contends that, as a registered professional engineer, Hare was obligated to meet a standard of care required by all those in his profession, and, while Hare may argue that his design of the roadway was not negligence, he cannot argue that by virtue of his employment he is free to disregard the standard of care owed by all professional engineers. In support of this argument, Keene cites Madden v. Kuehn (1978), 56 Ill. App. 3d 997, 372 N.E.2d 1131. In Madden, an action was brought against a physician for a negligent diagnosis which resulted in the death of a prison inmate. In declining to apply the doctrine of public official immunity, the court held the duty owed by the physician to his inmate patient was no different from that owed to his patients in the private sector and was not unique to his government employment. (Madden (1978), 56 Ill. App. 3d at 1002, 372 N.E.2d at 1134.) The decision in Madden was based on the activity of the physician, not his status as a professional, and therefore we do not find Madden dispositive of Keene’s argument. Further, in Madden, because the physician was treating a particular individual, a doctor-patient relationship existed between them regardless of the fact that the doctor was actually employed by the State. No such relationship can be said to exist in this case between Hare and Cope. Hare had no relationship with Cope as an individual and therefore his status as a professional would not give rise to any basis for liability. Any duty owed by Hare was owed to the public generally. See Lusietto v. Kingan (1969), 107 Ill. App. 2d 239, 246 N.E.2d 24.

Hare’s affidavit indicates that he was employed by the Department of Conservation as the Regional Engineer for Region 5 of the Department of Conservation and that he reviewed and sealed the plans for the roadway in question. The plans for the roadway were drawn by the Water Resources Department of the Illinois Department of Transportation. From this we conclude that Hare’s activity was clearly governmental in nature and that the doctrine of public official immunity applies.

The judgment of the circuit court of Jackson County is affirmed.

Affirmed.

WELCH, P.J., and HARRISON, J., concur.


author: JUSTICE GOLDENHERSH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEROME DIXON, Defendant-Appellant.
    Fifth District
    No. 5—87—0408
    Opinion filed June 16, 1989.

      Daniel M. Kirwan and Mary M. Menard, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

After a bench trial in the circuit court of St. Clair County, defendant, Jerome Dixon, was found guilty of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — l(a)(l)) and sentenced to 25 years in the Department of Corrections. On appeal, defendant raises the following issues: (1) whether the trial court denied his right to a trial by jury when the court repeatedly denied his motion to sever; and (2) whether he was denied his right to a fair trial when the trial judge sitting as finder of fact prejudged defendant’s case.

On December 5, 1986, an indictment was filed charging defendant as well as Carlos Wilson, Frederick Patterson, Lee West, Edward Washington and Cortez Gregory with the murder of John Weir, The public defender’s office was appointed to represent the defendant but later a motion to withdraw was filed, alleging that since defendant and the other codefendants were all represented by the public defender’s office, it would give rise to a conflict of interest. The trial court granted the leave to withdraw and appointed private counsel for defendant.

Defendant’s counsel filed a motion to sever on January 12, 1987, with a memorandum of law in support. On January 16, 1987, the court held a hearing on the motion to sever. However, the court granted the motion to sever only Washington from the other codefendants and ordered that Washington be tried separately.

On February 25, 1987, defendant again presented his motion to sever but the trial court denied the motion. When the joint trial began on March 9, 1987, the trial court addressed defendant’s motion in limine to exclude any codefendants’ testimony regarding defendant’s participation in the offense. The trial court denied the motion and defendant subsequently waived his right to a trial by jury. After jury selection, the court denied defendant’s renewed motion to sever. Defendant’s bench trial was conducted simultaneously with the jury trials of Wilson, West, Patterson and Gregory.

At the bench trial, the following facts were adduced. Rochelle Quilling, a resident of 43F Roosevelt Homes, saw most of the fight on October 5, 1986, because the fight occurred in the backyard of the home in which she was residing. Between 9:30 and 10 p.m. that night, her niece ran into Rochelle’s sister’s bedroom where Rochelle was watching television and told her that Freddie Patterson was fighting a young man. (The young man was later discovered to be John Weir, the deceased victim.) Rochelle looked out her sister’s bedroom window and did not see anything. She left the window until her nephew came into the bedroom and told her that a fight started again. She then looked again and saw a group of three young men dragging Weir around the side of the building. The young men dragging Weir were Patterson, West and an unknown male.

Rochelle left the window again but came back and saw that Weir was being held up by some of the young men while others were punching and kicking him. There were about 13 young men involved in the beating. They were beating Weir in her backyard. She heard some of them yell “Kill him,” and then saw some of them beating Weir with chairs. At this point, the beating had been going on for about 15 minutes. She then saw West pick up a chair and hit Weir across the chest, causing Weir to fall.

Rochelle again left the window to find her brother Randy, but he was not home. When she went back to the window, she saw that they stood Weir up again and began kicking and punching him. At this time, she left the window, going downstairs and outside into the backyard. She saw that they were still beating Weir as others held him up. West again picked up a chair and said “Let him go so I can hit him with this chair.” At that point, a young man called “Peanut” (later identified by her sister, Eutha Quilling, as Rufus Lloyd) stopped West and told him not to do it because West had already hit him once.

After Rochelle left and went inside again and called the police, she came back outside. She heard Lloyd tell defendant Dixon to “stop beating the guy and fighting him,” and “Quit fighting the boy and beating the boy.” She then heard defendant respond that he was going to kill him because he should not be stealing from the “Folks.” (“Folks” is a term for members of the Disciples street gang.) Wilson yelled, “Kill the m— f- — ,” and she heard Patterson say as he stood over Weir, “I don’t like St. Louis jimmies no way.” Patterson, Gregory, West, defendant and the rest of the group began to beat and kick Weir. During this time she saw “Winkie” (whom she later identified as Edward Washington) stand on top of the garbage can stand and jump off onto Weir’s chest. Someone then yelled, “Drag him to the water. Drag him to the water.” Gregory and Patterson grabbed Weir by the legs and began to drag him to the water but did not put him in the water because someone yelled “Don’t put him in the water. Put him in the trunk of the car.” They then dragged him from the water to the trunk of Weir’s car.

During that time Benny (later identified as Elliott Johnson by Weir’s aunt, Geraldine Brady) asked Wilson to stop the beating, stating, “You don’t have to kill him. Just beat his ass.” Wilson responded, “We going to kill this m— f-— because he shouldn’t be stealing from the Folks,” and then continued to yell, “Kill that m— f- — .” They eventually dragged Weir back to the car and threw him on top of the hood. She knew that all four codefendants and defendant Dixon were members of the Disciples street gang.

Randy Quilling, Rochelle’s brother, stated that on that night between 9 and 9:30 p.m., he left his girlfriend’s house in Washington Park to go home to 43F Roosevelt Homes. He entered the home through the back door, went upstairs and lay down in his bedroom. Ten minutes later his niece told him that there was a fight outside and that “Freddie Patterson has just busted a dude in the face.” He went downstairs and opened the back door but saw that everyone was gone. He looked around the comer of the house and saw people holding a young man up by the shoulder.

Randy went back inside and into the living room. Twenty minutes later he heard a great deal of arguing outside and again went outside through the back door. He saw five or six young men dragging Weir by his feet from the side of the house to the trash can support. Four men picked Weir up and Patterson began to beat Weir in the face. Washington was also involved in beating Weir. Eventually, more of the young men began to beat up Weir. Wilson said, “Kill him. Kill him.” At that time they let Weir go and he fell to the ground. Soon thereafter, Washington stood on top of the trash can support and jumped onto Weir’s chest. Washington then beat Weir in the chest with a chair. Someone then yelled, “Throw him in the water.” As they again began to drag Weir, Johnson said, “Don’t throw him in the water.” When they dragged Weir back, Patterson kicked Weir in the chest. Randy then called the police. Defendant yelled, “Throw the s- of a b— into the trunk.” At that time Patterson checked Weir’s pulse and stated that he was dead and that they should leave. Randy knew that defendant and his codefendants were members of the Disciples street gang.

Eutha Quilling, 29 years old, sister of Rochelle and Randy, also lived at 43F Roosevelt Homes. Around 9:30 to 10 p.m. on October 5, she was in her bedroom watching television. At approximately 9:45 p.m. she heard some “cussing and hollering” in her backyard. When she looked out her bedroom window, she saw Patterson and another young man (Weir) fighting and others trying to break it up. After five minutes she left the window.

However, she went back to the window because she heard lots of noise, laughing and talking. She saw that the young men had drinks. Again she left her window to watch television but returned to the window around 10:30 p.m. She saw that the young men were holding Weir by his arms and beating him. Weir told them to break his arms, break his legs, but not kill him. They were hitting him in the face, neck and chest. Afterward, someone threw him on the ground. Eutha left the window because her smaller children were in the bathroom and were upset. As she looked out the bathroom window, they were again hitting Weir. She left the bathroom and went to her bedroom to sit down but she kept going back to the window to look out. The next thing she saw was the young men dragging Weir to the water and kicking him but then dragged Weir back to the trash can. She saw one young man get on top of the trash can but that was all because she left the window. She looked out again and saw the young men drag Weir to a car. Patterson and Gregory were talking about throwing Weir in the trunk, but did not. At that point Patterson checked Weir’s pulse and said he was dead. Eutha did call the police, who told her to call 911, but she did not because her little girl was crying. The young men who were kicking and hitting Weir were West, Wilson, Gregory, Washington, Patterson and defendant. During the fight, she heard Wilson yell, “Kill the m— f- — . Let him die. He don’t steal from the Folks [a term for members of the Disciples street gang]. You bet he don’t steal no more.” Others were yelling “Kill him.” She did not know the victim. Sometime during the fight, she heard a knock on her door. It was Elliott Johnson, whom she gave permission to use the phone.

Elliott Johnson took the stand and said that he knew Weir for a couple of weeks. He met Weir through Weir’s aunt. He, Weir and Gregory drove to the Roosevelt Homes that evening to look for Patterson. Gregory wanted to talk to Patterson about some money. Weir was driving a car his aunt gave him to use and they picked up Gregory’s girlfriend, Angie. After they had stopped the car, it would not start and they tried to find someone to give it a jump start. When they did not find anyone to give them a jump start, they returned and sat in the car. At that time, Wilson came up with his radio. At some point, Weir had his radio out. Wilson’s and Weir’s radios were on and they were listening to them.

The group then left and went to a liquor store on Bunkum Road. At the liquor store, Johnson met with defendant, who asked him about Weir. When they left the liquor store, defendant was with them. When they reached the car about six more people came. About an hour later Wilson discovered his radio missing. Defendant went to Weir’s car and found the radio. Weir said, “How did the radio get into the car?” Wilson began to argue with Weir. Defendant hit Weir and then Wilson hit Weir. Soon Washington and West joined in hitting Weir. Weir did not hit back. Johnson, Patterson and Gregory tried to break up the fight. After the group hit Weir a little while longer, Weir fell and Wilson kicked Weir once. Gregory pushed Wilson away and they began to argue.

Patterson helped Weir off the ground and said he was going to call someone to get them. At that point Johnson went to the Quillings’ house to use the phone. Johnson called his own mother and Weir’s aunt. When he returned outside, he saw Patterson make an attempt to do mouth-to-mouth resuscitation. Johnson and Patterson put Weir on top of his car. The ambulance came and took Weir.

Dr. Stephen Nuernberger, pathologist with the St. Clair County Coroner’s office, examined Weir’s body. He observed that Weir’s body had multiple abrasions and contusions of the head and chest. Muscles of the anterior chest wall revealed multiple areas of hemorrhage. The right lung had collapsed and there was a laceration of the sac around the heart and of the right ventricle of the heart. Underneath the scalp were multiple subgaleal hemorrhages. He concluded that death was “due to rupture of the right ventricle caused by traumatic compression of the chest and due to multiple blows to the chest and head.”

At the conclusion of the State’s evidence, defendant presented two persons to attest to his reputation for truth and veracity. Defendant thereafter took the stand.

Defendant stated that he was 18 years old, unemployed and last attended twelfth grade at East St. Louis High School in the special education program. He was a member of the Disciples street gang for three years but he is not a member now and has not been a member since he was arrested for burglary in 1985.

Between 6 and 7 p.m. on October 5, 1986, defendant was with Cory Phillips at the liquor store. About five minutes later, Weir, Johnson, Gregory, Cynthia Johnson and another girl came into the liquor store. Cory and Elliott talked for a while. Defendant learned that Cory and Elliott were supposed to get money from Weir, and Cory asked if Weir was a Vice Lord (another street gang). Defendant did not know the victim’s name until he was arrested that night.

Defendant left the liquor store and walked Gary Rodd home because he was drunk. Defendant went back to the liquor store and saw, in addition to Weir’s group, Patterson and Wilson. They told him about the fight between Weir and Patterson. They all left after Patterson bought some alcohol for them.

When they arrived at 43F Roosevelt Homes parking lot, they began drinking, singing, dancing and talking. At some point Washington arrived. The music was coming from Wilson’s and Weir’s portable radios. Wilson had left the group. When he came back he discovered that his radio was gone and started to ask Patterson, then defendant himself about it. Defendant told him that he saw Weir go to his car and that Weir was the only one near the radios. Wilson asked Weir but Weir said he did not know. At that point everyone began to look for Wilson’s radio. Wilson found his radio in Weir’s car. Wilson also found his missing tape in Weir’s pocket and took it from Weir. Weir then jumped at Wilson and Wilson hit Weir. Weir fell down and that is when Washington jumped on his chest. Someone then kicked Weir in the chest.

Defendant denied hitting Weir during the fight but stated that prior to Weir’s fight with Wilson he hit Weir because Weir accused him of putting the radio in his car. Patterson then began to drag Weir to the water but Johnson told him not to do it. Patterson and Johnson picked Weir up and put him on the hood of his car. Defendant did not see Weir take the radio and did not hear anyone yell anything during the fight.

Defendant’s first issue is whether the trial court erred when it refused to grant his motion to sever. Defendant specifically argues that when the trial court repeatedly denied his motion, it forced defendant to forgo his constitutional right to a jury trial. The State responds that after an examination of the record and case law, severance was not necessary because “the defenses presented were not genuinely antagonistic prior to the point in time at which defendant’s trial was severed from that of the other defendants.” The State also points out that defendant’s waiver was knowing and voluntary.

It is well established that every person accused of an offense has the right to a trial by jury unless the accused has voluntarily and understandingly waived that right in open court. (Ill. Rev. Stat. 1985, ch. 38, par. 103 — 6; Ill. Const. 1970, art. I, §8.) The test of voluntariness depends upon the facts and circumstances of each case. (People v. Rynberk (1980), 92 Ill. App. 3d 112, 118, 415 N.E.2d 1087, 1092.) In this case the test of voluntariness is connected with the grant or denial of a defendant’s motion to sever.

Under section 114 — 8 of the Code of Criminal Procedure of 1963, a trial court will grant a severance where “[a] defendant or the State is prejudiced by a joinder of related prosecutions or defendants in a single charge or by joinder of separate charges or defendants for trial.” (Ill. Rev. Stat. 1985, ch. 38, par. 114 — 8.) The test for whether severance of persons jointly indicted for a commission of a crime should be granted is whether the defenses are of such an antagonistic nature that severance is imperative for a fair trial (People v. Baer (1976), 35 Ill. App. 3d 391, 400, 342 N.E.2d 177, 184) and separate trials are appropriate to avoid prejudice (People v. Daugherty (1984), 102 Ill. 2d 533, 541, 468 N.E.2d 969, 972). A defendant’s motion for severance must specifically demonstrate the prejudice he fears and mere apprehensions of prejudice are insufficient. (People v. Bean (1985), 109 Ill. 2d 80, 92, 485 N.E.2d 349, 355.) Granting or denying a motion to sever is within the discretion of the trial court, and a decision to sever will not be reversed unless it is demonstrated that the trial court abused its discretion. People v. Lee (1981), 87 Ill. 2d 182, 186, 429 N.E.2d 461, 463.

Defendant alleges that the post-arrest statements, made by Wilson, Patterson and Gregory which implicated defendant as having instigated and participated in the “unfortunate melee” which led to Weir’s death point out the prejudice. However, the State announced at the January 16 motion hearing that it was not going to use the pretrial statements, and, in fact, the State did not use those statements.

In People v. Braune (1936), 363 Ill. 551, 2 N.E.2d 839, the supreme court defined a classic example of antagonistic defenses as one in which each defendant protests his innocence and condemns the others, thereby creating a situation where “actual and substantial hostility existfs] between the defendants over their lines of defense.” (363 Ill. at 555, 2 N.E.2d at 841.) In this case, defendant did not present any plans of defense which demonstrated a true conflict which rose to the level of prejudicial antagonism. Furthermore, as the State argued at the January 16 motion hearing:

“If we tried this one time, if we tried it six times, we will produce the identical evidence, the same witnesses. We will say the same things. And they will inculpate every one of these individuals to the same degree. They are all going to be actually involved. *** They talk about the differences. But the difference they are referring to is only talking about differences in some of the statements that a few of these defendants have made. That’s not even in the State’s case.”

In this case defendant does not deny being present during the beating. Only if codefendants had taken the stand, absolved themselves of the offense and stated that defendant was the perpetrator would a true antagonistic defense be involved and a severance be necessary. This court finds that prior to the trial court eventually granting the severance, no actual antagonistic defense was present. After defendant’s case was severed, the testimony defendant feared was elicited at trial. Although defendant unsuccessfully sought to exclude the testimony of his codefendant, he nonetheless knowingly and voluntarily waived his right to a jury trial. after the court fully advised defendant of the ramifications of the waiver.

When defendant made his second motion for severance, he requested that the cause be severed and put on the non-jury docket. When the court granted defendant’s motion for severance after the State presented its evidence, defendant could have made a motion for a jury trial and the trial court in its discretion could have granted it. People v. Hall (1986), 114 Ill. 2d 376, 499 N.E.2d 1335.

Defendant cites People v. Simpson (1974), 24 Ill. App. 3d 835, 321 N.E.2d 464. However, Simpson is factually distinguishable. In Simpson, the defendants were forced to choose between having a jury trial while being inadequately prepared or having a bench trial at a later date so the defense could adequately prepare. In this case, defendant was adequately prepared. The trial court continued the case because defendant’s initial defense counsel at that time was not prepared. Defendant was not forced to choose between a bench trial over a jury trial. The trial court was adequately aware of the various defenses of the individuals involved. None of the codefendants or defendant presented such actual and substantial antagonistic defenses which would have been prejudicial to defendant. While the cumulative effect in Simpson denied the defendants a right to a trial by jury, the cumulative effect in this case did not force defendant to waive a jury trial. A reasonable possibility is that the waiver was a legitimate trial strategy, since counsel knew that defendant’s defense was a very technical one and a jury might not fully understand or accept such a defense. Furthermore, defendant has not established how his trial strategy would have differed if severance were granted earlier. (See People v. Lekas (1987), 155 Ill. App. 3d 391, 508 N.E.2d 221.) Thus, this court finds the trial court did not abuse its discretion and defendant voluntarily and understandingly waived his right to a jury trial.

In defendant’s second and final issue, he claims the trial court denied him a fair trial because the trial court had prejudged the case. The record reveals the following.

At the close of the State’s evidence, defendant’s counsel moved for mistrial alleging that he had been prevented from questioning Eutha Quilling regarding any rewards or inducement she or her family had been given in exchange for their testimony. As a result, it hindered him in presenting defendant’s defense and highly prejudiced defendant. Counsel for the other defendants also moved for mistrial.

When the trial court denied the motions for mistrial, counsel for Patterson requested the court to enter an order restraining the State and any other counsel from mentioning threats or anything else regarding protective custody either in closing argument or elsewhere because it was prejudicial. The State and counsel for defendant objected. At that point, the trial court questioned counsel for defendant on the benefits of establishing any threats to the Quillings since defendant and the others all have connection with the Disciples street gang. However, the trial court could not see any benefit to defendant’s defense theory and that the only party to benefit was the State.

Counsel for defendant and the trial judge then had the following exchange:

“MR. STEGMEYER [counsel for defendant]: Well, let’s assume hypothetically that we could develop the defense that Mr. Jerome Dixon, in fact, had withdrawn from any activity or participation in the Disciples as a gang member. Let’s assume that, as a matter of fact, he might have been acting as an undercover for the police department because of his feelings about the gang and what they had done. And, therefore, at the time this occurred, he was a participant merely as an undercover man. And if that were developed, then certainly some of the questions that may come out may be pertinent to that defense. That’s an assumption. That’s purely an assumption. That’s one of the problems, your Honor.
THE COURT: Well, the reason I consolidated the cases to begin with was economy with respect to the disposition of these cases, principally with regard to the State’s evidence with these events and somewhat bizarre concepts of defense. If Defendant Dixon wants to pursue these pipe dreams individually, I will consider severance and let you present these things later in the week.
MR. STEGMEYER: Well, that — that is and was, you know, one of the thoughts we had as far as his defense was concerned. And I can see it’s very antagonistic to the other defenses, your Honor.
THE COURT: That he is an undercover agent?
MR. STEGMEYER: No, not an undercover agent. But, in fact, there could be some evidence that he cooperated with the police in many endeavors that were detrimental to the Disciples. As a matter of fact, he could be called an informant.
THE COURT: Well, I will sever Jerome Dixon on this point. The adjournment of his case will be a little longer than Monday. If the defendant wants the last Quilling witness brought back to pursue that Cahokia versus Roosevelt Homes situation, I will direct the State to bring her back.
MR. STEGMEYER: Thank you, your Honor.
THE COURT: Mr. Hanks, do you have some suggestion before I formalize this ruling?
MR. HANKS: [Assistant State’s Attorney]: No, your Honor.
THE COURT: The Court orders Jerome Dixon severed for the balance of the trial. I expect that we will proceed with that case the latter part of next week. Are there any other motions?”

The State claims that defendant’s trial counsel made no objection to the court’s remarks at the time or in the post-trial motion and thereby waived the issue on appeal and the plain error doctrine would not apply.

This court agrees that failure to raise an objection during trial or the post-trial motion effectively waives this issue on appeal. As to whether it may be considered under the doctrine of plain error, this court is guided by the standards in People v. Gacy (1984), 103 Ill. 2d 1, 468 N.E.2d 1171, and their application in People v. McDaniels (1986), 144 Ill. App. 3d 459, 494 N.E.2d 1275. Gacy explains the criteria as whether the evidence is-closely balanced or if the claimed error is of such a magnitude that the defendant was denied a fair and impartial trial. (103 Ill. 2d at 28, 468 N.E.2d at 181.) People v. McDaniels applied the Gacy criteria in examining a trial judge’s remarks and the context in which they were made, that context including the stage of trial as well as the remarks themselves. Although one may reasonably conclude the instant remarks were unfortunate or ill-advised, we conclude that defendant was not denied a fair and impartial trial by these remarks and that the evidence in this case as a whole was not closely balanced. (People v. Gacy (1984), 103 Ill. 2d 1, 468 N.E.d 1171.) Further, we conclude that the situation here is not similar to People v. McDaniels.

For the foregoing reasons, this court affirms the judgment of the circuit court of St. Clair County.

Affirmed.

RARICK and CHAPMAN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. THOMAS MOORE, Defendant-Appellee.
    Fifth District
    No. 5—87—0687
    Opinion filed June 16, 1989.

      John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Christopher Cueto and Kathleen A. Moore, both of Cueto, Daley, Williams, Moore & Cueto, Ltd., of Belleville, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

The People appeal from the order of the circuit court of St. Clair County which suppressed the results of defendant’s breath test on the basis of res judicata. On appeal, the only issue presented by the parties is whether a finding of no probable cause to arrest at a summary suspension hearing is determinative of the issue of probable cause to arrest in a criminal prosecution for the offense of driving while intoxicated.

On February 6, 1987, defendant was arrested for driving under the influence of alcohol and/or drugs (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501(a)(4)). On June 26, 1987, after a hearing on defendant’s petition to rescind statutory suspension of his driver’s license (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501.1), the court granted the petition. The court found that a wide right turn or a very wide right turn does not constitute probable cause for a stop. The court sustained defendant’s objection to admission into evidence of the police reports which the State wished to use to prove the results of the breath test. The court reasoned that the police reports were hearsay and that the reports lacked foundation.

On September 9, 1987, defendant filed a motion to suppress on the basis that the issue of probable cause to arrest had been litigated in the statutory summary suspension hearing. The court held that the doctrine of collateral estoppel prevented relitigation of the issue of probable cause to arrest and suppressed the results of the breath test.

A prior judgment may have preclusive effects in a subsequent action under both res judicata and collateral estoppel. (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 251, 461 N.E.2d 959, 961.) The doctrine of res judicata provides that a final judgment on the merits is conclusive as to the rights of the parties and their privies and, as to them, precludes a subsequent suit involving the same claim, demand, or cause of action. In order for a prior judgment to be raised as an absolute bar, there must exist between the two actions an identity of parties, subject matter, and cause of action. Collateral estoppel, or issue preclusion, is a branch of res judicata and is founded on the same policy, that is, to promote judicial economy and prevent repetitive litigation. To determine whether issue preclusion should be applied, the pertinent questions are whether the issue decided in the prior adjudication is the same as the one presented in the suit in question, whether there has been a final judgment on the merits, and whether the party against whom estoppel is asserted was a party or in privity with a party to the prior adjudication. It has also been stated that the doctrine applies to a controlling fact or question material to the determination of both causes. (Stratemeyer v. West (1985), 136 Ill. App. 3d 1095, 1096, 484 N.E.2d 399, 400-01.) The doctrine of collateral estoppel applies to criminal cases as well as civil and serves the laudable purpose of preventing repeated litigation of the same factual issue. People v. Hooker (1981), 96 Ill. App. 3d 127, 130, 421 N.E.2d 301, 303-04.

In the case at bar, the issue of probable cause to arrest defendant for driving under the influence was decided at the prior hearing on the petition to rescind the summary suspension. The issue was again raised in the criminal prosecution. The doctrine of collateral estoppel applies where there is a final judgment, and a non-final order does not bar a subsequent action. (People v. Busija (1987), 155 Ill. App. 3d 741, 745, 509 N.E.2d 168, 171.) Implied consent hearings are civil in nature, and an appeal as of right may be taken from the final judgment disposing of the petition. (People v. Malloy (1979), 76 Ill. 2d 513, 395 N.E.2d 381.) The State, however, did not appeal from the court’s decision to grant defendant’s petition; therefore, a final judgment was entered. Lastly, the State was a party to both the hearing on the petition and the present case. This court concludes that the doctrine of collateral estoppel applies, and the State cannot now relitigate whether the police officer had probable cause to arrest defendant. Accordingly, the order of the circuit court which suppressed evidence is affirmed.

The State relies on People v. Stice (1988), 168 Ill. App. 3d 662, 523 N.E.2d 1054. In Stice, defendant was placed under arrest for driving under the influence of alcohol (DUI) in violation of section 11 — 501 of the niinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95½, par. 11 — 501) and took a breath test, with the result being 0.17. Accordingly, he received a statutory summary suspension of three months. (Ill. Rev. Stat. 1985, ch. 95½, par. 11 — 501.1.) Stice filed a petition asking that the suspension be rescinded, and, at the hearing, the court found that there was not enough evidence to show the officer had reasonable grounds to believe defendant was under the influence of alcohol at the time of arrest. The State did not appeal the rescission of the suspension. Stice then filed a motion to dismiss the traffic charge alleging the State was collaterally estopped from relitigating the issue of probable cause for his arrest. The motion was denied, and Stice was convicted of DUI.

On appeal, Stice again contended that the court’s determination at the summary suspension hearing, that the officer had no reasonable grounds to arrest him, should apply to the criminal case pursuant to the doctrine of collateral estoppel. The Stice court affirmed the conviction and reasoned that the difference between a rescission hearing and a criminal trial for DUI establishes that the doctrine of collateral estoppel does not apply. The court reasoned that the purpose of a rescission hearing, which is a type of administrative hearing, is to grant a prompt post-suspension review of the suspension so as to comply with due process requirements. As such, the hearing is designed to be expeditious, and, in fact, allows evidence to be presented by means of the officer’s written report. (Ill. Rev. Stat. 1985, ch. 95½, par. 2 — 118.1(b).) The court concluded that if collateral estoppel were applicable, the desire for expediency would be defeated and the State would feel a need to call its witnesses to protect the DUI prosecution and rescission hearings would be treated as mini-trials.

This court respectfully declines to follow the holding in Slice for the following reasons. The function of a preliminary hearing in a criminal prosecution is to insure a prompt determination of whether the crime charged was committed and, if so, whether probable cause exists to believe that defendant was the perpetrator. (People v. Puleo (1981), 96 Ill. App. 3d 457, 465, 421 N.E.2d 367, 373.) But if defendant files a pretrial motion to suppress evidence which is heard and granted at the preliminary hearing, that ruling is res judicata of the issues raised by the motion. (People v. Taylor (1972), 50 Ill. 2d 136, 277 N.E.2d 878; People v. Gaddis (1972), 4 Ill. App. 3d 691, 692, 292 N.E.2d 479, 480.) A finding of probable cause is an absolute defense to an action for malicious prosecution. (Kompare v. Stein (7th Cir. 1986), 801 F.2d 883, 891.) The failure to utilize the statutory procedure in section 12 of the Uniform Arbitration Act (Ill. Rev. Stat. 1981, ch. 10, par. 112) to vacate an award precludes an attack on the validity of that arbitration award in a collateral proceeding. (Bertling v. Roadway Express, Inc. (1984), 121 Ill. App. 3d 60, 64, 459 N.E.2d 265, 267-68.) This court finds no reason to deny the use of collateral estoppel in a criminal prosecution for DUI when lack of probable cause has been determined in a rescission hearing.

Although a driving license is a privilege (see Ill. Rev. Stat. 1987, ch. 951/2, pars. 6 — 202, 6 — 203) rather than a right, the suspension of this privilege has substantial consequences. The period of summary suspension can range from three months to one year. (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 208.1.) One’s interest in a driver’s license is a significant interest, although a party seeking to have a summary suspension rescinded bears the burden of proof. (People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210.) In a rural area, such as that which constitutes the vast majority of counties in the Fifth District, suspension of one’s driving privileges is a major penalty, as public transportation, including taxicabs, is virtually nonexistent. If the State believes that the police reports are inadequate to establish probable cause at the suspension hearing, this court can discern no reason why the State should not be barred, due to collateral estoppel, upon a finding of no probable cause if it fails to call the arresting officer or others to supplement the reports and to establish probable cause. If probable cause is found at the suspension hearing after the officer testifies, there would be no need to file a motion to suppress on the basis of lack of probable cause to suppress. The evidence presented at the suspension hearing may be indicative of the strength or weakness of the State’s case. The State might decide to dismiss a DUI criminal prosecution if the hearing indicates weakness in its case or the defendant might decide to plead guilty if the hearing suggests a strong case for the State.

In conclusion, this court holds that the finding at a suspension hearing of no probable cause to arrest defendant for DUI precludes the State from relitigating that issue in a criminal prosecution for DUI, absent an appeal from the court’s finding at the rescission hearing. The judgment of the circuit court of St. Clair County is, therefore, affirmed.

Affirmed.

LEWIS and HOWERTON, JJ., concur.


author: JUSTICE INGLIS

text:
    MARIA GARCIA, as Mother and Next Friend of Roberto Garcia, a Minor, Plaintiff-Appellant, v. JAMES JIMINEZ, Defendant-Appellee.
    Second District
    No. 2—88—0813
    Opinion filed June 9, 1989.

      Paul Armstrong, of James H. Porn, Ltd., of Chicago, for appellants.
    John M. McGuirk, of Shearer, Blood, Agrella, Boose, McGuirk & Petersen, of St. Charles, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Maria Garcia, as mother and next friend of plaintiff, Roberto Garcia, a minor, appeals from a trial court judgment entered on a jury verdict in favor of defendant, James Jiminez. Plaintiff’s action sought damages for injuries sustained by the minor when he ingested lead-based paint chips from an apartment plaintiff leased from defendant. On appeal, plaintiff argues that (1) the jury verdict was contrary to the manifest weight of the evidence; (2) the trial court erred in denying plaintiff’s motion for a directed verdict at the close of the evidence; (3) the trial court erred in denying plaintiff’s motion in limine and allowing defendant to defend this action on the basis that he lacked any knowledge that the apartment contained lead-based paint; and (4) the trial court erred in directing a verdict for defendant at the close of plaintiff’s case as to count III of the complaint based on defendant’s breach of a covenant to repair. We affirm.

In February 1979, defendant purchased a building located in Elgin, Illinois. At the time of purchase, the building was badly in need of repair and was in violation of the Elgin building code. Defendant stated that the building was dirty and required plastering, dry walling, and painting.

In June or July 1979, Maria Garcia contacted defendant about renting the upstairs apartment of the building. Maria inspected the premises and told defendant that it needed some work. Defendant agreed to make repairs, although no particular repairs were specified. Maria moved into the apartment with her husband and three children, including plaintiff, prior to any repairs being made. Within the next few weeks, defendant and Maria’s husband made repairs to the ceiling and walls of the hallway, paneled the bathroom, and did miscellaneous painting.

In September 1979, plaintiff became ill and suffered from convulsions and seizures. Plaintiff was hospitalized and diagnosed with acute lead poisoning. An inspection of the premises disclosed high levels of lead in the walls and woodwork, particularly around the windows. Maria stated that she had observed plaintiff eating paint chips from the apartment from the first week they had moved in. Maria further stated that she had told defendant about the paint chips, but defendant denied any such communication. As a result of the lead poisoning, plaintiff has suffered permanent neurological damage.

On September 12, 1981, plaintiff brought the instant action against defendant. After numerous amendments, plaintiff’s complaint was submitted for trial on four counts. Counts I and II were based in negligence and negligence arising from the violation of a city ordinance. Count III alleged that defendant breached a covenant to repair, and count IV sounded in nuisance. Prior to trial, plaintiff made a motion in limine to preclude defendant from introducing any evidence or arguing that he did not know that the premises contained lead-based paint. Plaintiff’s motion was denied, and the trial proceeded. Defendant moved for a directed verdict at the close of plaintiff’s case. The trial court denied defendant’s motion as to counts I and II sounding in negligence but granted defendant’s motion as to counts III and IV. At the close of defendant’s case, plaintiff moved for a directed verdict. The trial court denied that motion. The jury reached a verdict in favor of defendant on counts I and II, and the trial court entered judgment on that verdict. The trial court denied plaintiff’s post-trial motion, and plaintiff filed this timely appeal.

Plaintiff’s primary argument on appeal is that defendant should not have been permitted to present evidence or argue that he did not know or have reason to know that the premises contained lead-based paint. Plaintiff asserts that defendant’s lack of knowledge of the toxic condition of the paint chips was irrelevant to a determination of liability. Thus, plaintiff challenges the jury verdict and the trial court orders denying his motion in limine and motion for directed verdict on that basis.

In support of his argument, plaintiff cites our supreme court’s decision in Kahn v. James Burton Co. (1955), 5 Ill. 2d 614. In Kahn, an 11-year-old child was injured while playing on a lumber pile located on a vacant lot owned by a third party. (5 Ill. 2d at 616.) In holding the defendant lumber company liable, the court acknowledged the general rule that a owner or person in possession or control of property is not under a duty to keep the premises safe as against trespassers. (5 Ill. 2d at 625.) However, the court created an exception to that rule as applied to minors where the plaintiff shows that (1) the owner or person in possession of the property knows or has reason to know that minors frequent the premises; (2) there is a defective or dangerous condition on the premises; (3) because of their immaturity, the minors are incapable of appreciating the risks of the defective or dangerous entity and are likely to be injured by it; and (4) the expense or inconvenience of remedying the condition is slight compared to the risk to the children. (5 Ill. 2d at 625.) While Kahn involved a landowner’s duty to a trespassing plaintiff, at least one court has given the doctrine equal application to a landlord-tenant relationship. See Rahn v. Beurskens (1966), 66 Ill. App. 2d 423, 428-30.

In the instant appeal, defendant does not challenge the application of Kahn or that he owed plaintiff, as his tenant, a duty of care. Rather, at the heart of the controversy between these parties is whether defendant knew or should have known that a defective or dangerous condition existed on the premises. Plaintiff asserts that proof of that fact was satisfied by evidence indicating that defendant knew that paint and plaster chips were peeling from the walls. Plaintiff further asserts that defendant’s argument that he did not know that the premises contained lead-based paint was irrelevant to the issue of liability and thus prejudiced his case. We disagree.

The rule set forth in Kahn brought Illinois law into harmony with section 339 of the Restatement (Second) of Torts (Restatement (Second) of Torts §339 (1965)). (See Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 326.) Under the Restatement, whether a person has reason to know that a dangerous condition exists depends on whether that person “has information from which a person of reasonable intelligence, or of the superior intelligence of the actor, would infer that the fact in question exists, or would govern his conduct upon the assumption that it does exist.” (Restatement (Second) of Torts §339, comments g, h, at 201 (1965).) A landlord’s conduct is to be weighed on the theory that he will not neglect a condition which common experience teaches is dangerous and where the likelihood of injury is reasonably foreseeable. (Rahn, 66 Ill. App. 2d at 429.) A dangerous condition is one which is likely to cause injury to the general class of children, who by reason of their immaturity, might be incapable of appreciating the risk involved. (Corcoran, 73 Ill. 2d at 326; Kahn, 5 Ill. 2d at 625.) The Kahn court stated:

“[T]he true basis of liability [-is] the foreseeability of harm to the child. Whether the lumber pile was sufficiently attractive to entice children into climbing upon it, whether its condition would involve danger from such activity, and whether the contractor should have anticipated the probability of the accident, were matters for determination by the jury.” (Emphasis added.) Kahn, 5 Ill. 2d at 625.

In Niemann v. Vermilion County Housing Authority (1981), 101 Ill. App. 3d 735, 738-39, the court engaged in an extensive discussion regarding a defendant’s knowledge that a dangerous condition existed on his property. In Niemann, the minor plaintiff was injured when her companion struck her in the eye with a stick while the two were playing on a trash pile on the defendant’s property. (101 Ill. App. 3d at 736-37.) The court distinguished between inherently dangerous objects and ordinarily innocuous objects. (101 Ill. App. 3d at 738.) The court concluded that a stick was not, as a matter of law, an inherently dangerous object, and thus, the plaintiff was required to show something more in order to raise a duty on the part of the defendant. (101 Ill. App. 3d at 738.) The court stated:

“[R]ecent cases *** recognize that an innocuous condition, although not in and of itself dangerous, may become so when joined with other nondangerous situations or instrumentalities. [Citation.] Thus, the rule is not that it is the defectiveness or dangerousness of the agency or condition which makes the injury foreseeable. Rather, it is the knowledge of the presence of children, the type of agency or condition, and the surroundings which make up the dangerousness that makes the injury foreseeable and thereby establishes the duty to remedy.” (Emphasis added.) 101 Ill. App. 3d at 739.

In the instant action, plaintiff alleged that a foreseeable risk of harm was created because defendant knew or should have known that paint and plaster were peeling from the walls of the premises and that minors on the premises, who because of their immaturity could not appreciate the risks of doing so, might eat those substances. Plaintiff further alleged that the paint chips contained lead and therefore contributed to plaintiff’s injuries. Notwithstanding these allegations, plaintiff asserted that defendant should have been precluded from denying knowledge that the premises contained lead-based paint. In so arguing, plaintiff seeks to impose a form of strict liability on landowners whose property contains lead-based paint. Such a result is not contemplated by the cases.

In our opinion, paint chips, like dirt, coins, stones, or other objects that children may place in their mouths, are not in and of themselves sufficient as a matter of law to establish the dangerousness that makes an injury foreseeable and creates a duty to remedy. However, the actual or constructive knowledge that the paint chips contain a toxic substance, such as lead, combined with the actual or constructive knowledge that a child may ingest those paint chips, will create such a duty. (See Niemann, 101 Ill. App. 3d at 739 (in order to allege a duty, the plaintiff’s complaint must allege that an innocuous condition or agency has combined with some other surroundings or circumstances which render it dangerous to children).) The trial court must be able to conclude that the condition exposes children to risks greater than they encounter normally. 101 Ill. App. 3d at 739.

Plaintiff was allowed to allege and prove that the premises contained lead-based paint, thus establishing the element of the existence of a dangerous condition. As defendant’s actual or constructive knowledge of the dangerous condition is required to establish liability, defendant was entitled to deny knowledge of that condition at trial. Thus, the trial court’s orders denying plaintiff’s motion in limine and his motion for directed verdict were not error. Furthermore, since we decline to hold defendant to a standard of strict liability merely because the premises contained lead-based paint, we cannot conclude that the jury verdict was against the manifest weight of the evidence. The jury may have concluded that defendant did not know or have reason to know that the premises contained lead-based paint, or even that defendant did not know or have reason to know that the paint was peeling. The record indicates that defendant made certain repairs to the premises, and defendant specifically denied that he was informed that the paint was peeling. Accordingly, we cannot conclude that the jury’s verdict was against the manifest weight of the evidence.

Plaintiff’s remaining contention on appeal is that the trial court erred in granting defendant’s motion for directed verdict on count III of his complaint based on breach of a covenant to repair. We disagree.

A trial court may enter a directed verdict in a jury trial in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510; Thomas v. Nel son Brothers Furniture Co. (1988), 167 Ill. App. 3d 49, 53.) In determining whether the trial court erroneously directed a verdict, the reviewing court is to apply the same standard that was applied at the trial level and take into consideration the fact that the trial court heard and saw the witnesses. Thomas, 167 Ill. App. 3d at 53.

Ordinarily, a landlord does not owe a duty to a tenant to make any repairs for any defects on the demised premises unless he agrees to do so by the terms of some express covenant or agreement. (Jones v. Chicago Housing Authority (1978), 59 Ill. App. 3d 138, 140.) In the instant action, plaintiff presented evidence indicating that at the time of entering into the oral agreement to rent the premises, defendant agreed to make repairs. Maria Garcia testified at trial as follows:

“Q. And can you tell us what you said to Mr. Jiminez and what Mr. Jiminez said to you?
A. Well, I asked him about the rent amount, the deposit, and he told me about that apartment needs some repair.
Q. What, if anything, did he say about those repairs?
A. Well, he said — we went — after we went in looking to the apartment I told him that there was need of repairs, because it was really in bad shape, and he say that he will get it fixed up and make it real nice for us to live, and it was under that agreement that we decide to move in.”

Defendant also testified as an adverse witness concerning his agreement to repair the premises as follows:

“Q. And did you tell her at that time that there were repairs that had to be done on this building, this unit?
A. Well, more than anything she could see that there were repairs needed.
Q. And did you tell her that you were going to do those repairs?
A. I don’t remember the extent of explanation involved.
Q. Did you tell her you were going to do repairs on the premises?
A. I said I as [sic] going to paint and everything, and do work, yes.”

Both Maria Garcia and defendant testified extensively that defendant or defendant and Maria’s husband did perform certain repairs on the premises, including plastering, dry walling, painting, paneling, and installing ceiling tiles. In considering defendant’s motion for directed verdict on count III of plaintiff’s complaint for breach of a covenant to repair, the trial court, after considering the evidence, stated:

“With respect to Counts 3 and 4, while I agree that there has been some testimony in the nature of — and I think from Mrs. Garcia for the most part, in the nature of a representation that things would be fixed up, there’s nothing in the nature of a quid pro quo, a promise, any kind of promise to undertake of any nature that could be enforced.
And to that extent, Count 3 and Count — and with respect to Count 4, similarly, I don’t think the evidence is nearly sufficient. Motion for directed finding will be granted.” (Emphasis added.)

We must agree with the trial court that considering the evidence presented in the light most favorable to plaintiff, there is no evidence of a promise specific enough to constitute a covenant to repair. Nor is there any evidence to support plaintiff’s assertion that defendant breached a promise to make repairs. At best, the record indicates that defendant agreed to fix up the premises and, in fact, performed several repairs within the first weeks of plaintiff’s tenancy. Based on the record before us, we cannot say that the trial court erred in directing a verdict in defendant’s favor on count III.

For the reasons expressed above, the judgment of the trial court is affirmed.

Affirmed.

UNVERZAGT, P.J., and LINDBERG, J., concur.