author: JUSTICE SLATER

text:
    VEAR LaPORTE, Plaintiff-Appellant and Cross-Appellee, v. JOSTENS, INC., Defendant-Appellee and Cross-Appellant.
    Third District
    No. 3—90—0396
    Opinion filed May 21, 1991.
    Rehearing denied June 24, 1991.

      A. Randolph Comba, of Princeton, for appellant.
    Kavanaugh, Scully, Sudow, White & Frederick, P.C., of Peoria (David J. Dubicki, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiff appeals from the trial court’s entry of summary judgment in favor of defendant on her complaint for retaliatory discharge. Defendant appeals the trial court’s order denying its motion to dismiss.

Plaintiff was an at-will employee of defendant from November of 1981 to June 6, 1989, at which time her employment was terminated. Plaintiff was employed as a final inspector and worked in that capacity during her entire tenure at defendant’s plant. Her job involved constant overhead reaching and looking up and down on a continuous basis.

In 1984, 1986 and 1988, plaintiff suffered compensible work-related injuries to her cervical area and received worker’s compensation benefits for all three occurrences. For the last two occurrences, plaintiff filed applications for adjustment of claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.).

It is undisputed that prior to being terminated, plaintiff’s doctors recommended that she either find a different job at defendant’s plant or quit because of the injuries to her neck. Plaintiff thereafter discussed transferring to a different position with defendant’s personnel manager sometime in April or May of 1989. It does not appear from the record, however, that defendant’s personnel manager ever made any promises to plaintiff that she would be transferred to another position. In fact, it is not entirely clear what other positions, if any, were available within the plant at the time plaintiff was terminated. Regardless, plaintiff admitted at deposition that she was unaware of any other jobs within defendant’s plant that she could perform without additional training.

At the time plaintiff was terminated, defendant’s personnel manager read her the following preprepared statement:

“Vear, Jostens believes the current work assignment places you at risk of aggravating your injury or causing more serious injury. For this reason it is in the best interest for you and Jostens to terminate your employment and we recommend you pursue a job in a safer environment.”

Plaintiff admitted that she knew she was being fired because of her injury. Plaintiff maintains, however, that there were other positions within defendant’s plant that she could perform without causing additional injury to her neck. Plaintiff’s request for reassignment within the plant was denied.

Defendant moved to dismiss plaintiff’s complaint on the basis that her claim was one of employment discrimination based upon a physical handicap and therefore within the exclusive jurisdiction of the Illinois Human Rights Commission under the Illinois Human Rights Act (Ill. Rev. Stat. 1989, ch. 68, par. 1—101 et seq.). In the alternative, defendant moved for summary judgment on two grounds: (1) that plaintiff’s claim was barred by the exclusive remedy provision of the Illinois Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.5) and (2) defendant was not required to continue plaintiff’s employment where, as a result of her injury, plaintiff could no longer perform the duties assigned to her. The trial court, by order dated May 10, 1990, denied defendant’s motion to dismiss, denied defendant’s motion for summary judgment on defendant’s exclusive remedy of the Workers’ Compensation Act theory, but granted summary judgment to defendant on the basis that defendant had no obligation to continue plaintiff’s employment where her injury prevented her from returning to her former position. We affirm.

Initially, defendant asserts that the trial court should have dismissed plaintiff’s complaint as being a claim of employment discrimination based upon a physical handicap and therefore within the exclusive jurisdiction of the Human Rights Commission under the Illinois Human Rights Act. We disagree. Plaintiff’s complaint does not sound in discrimination, but is clearly phased under a retaliatory discharge theory. Jurisdiction.is therefore vested with the circuit court and not the Human Rights Commission.

Secondly, defendant asserts that plaintiff’s exclusive remedy was under the Illinois Workers’ Compensation Act. Again we disagree. In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, plaintiff complained that her employment had been terminated in retaliation for her filing a worker’s compensation claim. Defendant, as here, argued that plaintiff’s worker’s compensation claim was plaintiff’s exclusive remedy under the rationale that the Workers’ Compensation Act provides for criminal sanctions against employers who terminate or threaten to terminate an employee who files a worker’s compensation claim. (Ill. Rev. Stat. 1989, ch. 48, par. 138.4(h).) Defendant further argued that it was not prohibited by law from terminating an at-will employee who filed a worker’s compensation claim. Our supreme court held that to allow an employer to terminate an employee for filing a claim would seriously undermine the intended policy of the Workers’ Compensation Act to provide employees the protection of prompt and equitable compensation for their injuries. Secondly, the court determined the potential criminal sanctions an employer may face for violating the Workers’ Compensation. Act inured to the benefit of the State and did “nothing to alleviate the plight of those employees who are threatened with retaliation and forgo their rights, or those who lose their jobs when they proceed to file claims under the Act.” (Kelsey, 74 Ill. 2d at 185.) Defendant fails to distinguish Kelsey in arguing the exclusivity of the Workers’ Compensation Act. Kelsey clearly holds that retaliatory discharge claims are not precluded by the Workers’ Compensation Act and, therefore, the trial court correctly denied defendant’s motion for summary judgment on this basis.

Finally, plaintiff argues that the trial court improperly awarded summary judgment to defendant. Summary judgment is properly granted when “there is no genuine issue as to any material fact and *** the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c).) Plaintiff argues that a material issue of fact existed as to defendant’s intent for terminating plaintiff’s employment. As support for this proposition, plaintiff states that defendant’s personnel manager admitted other positions were available within the facility that plaintiff could perform and that he indicated to plaintiff she would be allowed to transfer to another department, at least for the second part of her daily shift. The record citations cited by plaintiff, however, do not support these alleged admissions. At best, the testimony cited by plaintiff indicates that there may have been other positions available which plaintiff may have been able to perform. A genuine issue of material fact is not created from assumptions or insinuations^

In this case, plaintiff has acknowledged that her employment was terminated because her injury made it impractical and unsafe for her to continue at her present position. Plaintiff nonetheless maintains that defendant had the obligation to transfer her to another position, rather than terminate her employment. We disagree.

Illinois law does not obligate an employer to retain an at-will employee who is medically unable to return to his assigned position. (See Horton v. Miller Chemical Co. (7th Cir. 1985), 776 F.2d 1351.) In Horton, plaintiff was employed as a truck driver/delivery man. He had a history of back injury and had previously filed a worker’s compensation claim against defendant. While unloading materials, plaintiff again injured his back and was taken off work by his doctor. When plaintiff presented the doctor’s slip to defendant, he was discharged for being a “bad risk.” Plaintiff then brought a retaliatory discharge action against defendant. Applying Illinois law, the Federal circuit court of appeals reversed a jury verdict and entered judgment notwithstanding the verdict for defendant. The court held that medical inability to work was a “legitimate nondiscriminatory reason” for discharge and the defendant’s failure to reassign plaintiff was immaterial to whether plaintiff was wrongfully discharged. Horton, 776 F.2d 1351.

Similarly, in Caterpillar, Inc. v. Human Rights Comm’n (1987), 154 Ill. App. 3d 424, 506 N.E.2d 1029, the employee was hired by Caterpillar as a radial drill operator and subsequently developed tennis elbow precluding her from returning to work in that capacity. The employee then filed a discrimination claim with the Human Rights Commission under the Human Rights Act and received a favorable result. This court, in reversing the Human Rights Commission on appeal, addressed the argument whether Caterpillar had an obligation to assign the employee to a position .within the factory she was able to perform. We determined the duty to reasonably accommodate a handicapped employee extended only to the employee’s present position; it did not require the employer to reassign or transfer an employee to another job. To hold otherwise would give handicapped workers unwarranted preferential treatment. (Caterpillar, 154 Ill. App. 3d 424, 506 N.E.2d 1029.) Although our decision in Caterpillar was made in the context of construing an employer’s obligations to a handicapped employee under the. Human Rights Act, we see no reason to reach a contrary result regarding an employer’s duty to reassign an employee in this situation. Without more, the mere fact that plaintiff in this case may have been able to perform other jobs within defendant’s plant is irrelevant to whether she was wrongfully discharged.

Finally, plaintiff has filed a motion to add the additional authority of Bray v. Stan’s Rental, Ine. (1990), 196 Ill. App. 3d 384, 553 N.E.2d 791, which is allowed without objection from defendant. In Bray, this court denied an employee’s motion for summary judgment on the basis that a genuine issue of material fact existed as to the employer’s motive for terminating the employee. Specifically, it was disputed whether the employer’s supervisory told the employee he was missing too many days due to his injury and that he was costing the company too much money. The record, however, did not indicate that the employee would never be able to return to his job, only that he would be temporarily unable to work. (Bray, 196 Ill. App. 3d 384, 553 N.E.2d 791.) In this case, plaintiff was injured such that she would never be able to return to her position. Moreover, at no time has plaintiff stated she was told she was being fired for costing the company too much money or missing too many days going to doctors. All plaintiff herein has ever said is she was fired because of her injury and that other positions in the factory were available which she believed she could do. These facts simply do not create a genuine issue of material fact supporting her retaliatory discharge claim.

For all of the foregoing reasons, the decision of the circuit court of Bureau County is affirmed.

Affirmed.

GORMAN and McCUSKEY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    JOHN WEHMEIER et al., Plaintiffs-Appellees, v. UNR INDUSTRIES, INC., et al., Defendants-Appellants.—BILLY L. GRAY et al., Plaintiffs-Appellees, v. UNR INDUSTRIES, INC., et al., Defendants-Appellants.
    Fourth District
    Nos. 4—90—0447, 4—90—0538 cons.
    Opinion filed December 20, 1990.
    Modified on denial of rehearing June 25, 1991.
    Michael D. Freeborn, Steven M. Hartmann, and Brian P. Norton, all of Freeborn & Peters, of Chicago, for appellants.
    James Walker, Ltd., of Bloomington, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

The supremacy clause of the United States Constitution provides:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof *** shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby ***.” (U.S. Const., art. VI.)

The Constitution also states:

“The Congress shall have Power ***;
* * *
To establish *** uniform Laws on the subject of Bankruptcies throughout the United States.” U.S. Const., art. I, §8.

In chapter 11 of the Bankruptcy Code (Code) (11 U.S.C. §1101 et seq. (1988)), Congress has provided for reorganization plans for bankrupts. In section 1141(a) of the Code, Congress has set forth that when such a plan has met court approval, the plan is “binding” on all creditors, with exceptions not applicable here (11 U.S.C. §1141(a) (1988)). In this case, plaintiffs obtained valid judgments in the circuit court of McLean County against a trustee of a trust (Trust) subject to a plan created pursuant to section 1141(a) of the Code. Acting under otherwise valid Illinois procedures to enforce judgments, at plaintiffs’ request, the circuit court ordered the Trust to pay the judgments and held it in contempt when it failed to do so. The Trust has appealed.

We hold that because of the supremacy clause, the Code and the orders of the bankruptcy court acting pursuant thereto controlled over otherwise valid Illinois statutes, supreme court rules, common law principles, and State court orders involved in the plaintiffs’ attempts to enforce their judgments and rendered the attempt by the circuit court to enforce the judgments plaintiffs had obtained against the Trust void.

On October 28, 1988, an order of the bankruptcy court of the Southern District of New York confirming the second amended and restated plan of reorganization (Plan) for Johns-Manville Corporation and affiliated entities (Corporation) pursuant to chapter 11 of the Code became final. (In re Johns-Manville Corp. (S.D.N.Y. 1986), 68 Bankr. 618, aff'd (S.D.N.Y. 1987), 78 Bankr. 407, aff’d (2d Cir. 1988), 843 F.2d 636.) The major thrust of the Plan was the creation of the Trust to which we have referred. The assets of the Trust consisted of 80% of the common stock of the Corporation, certain insurance proceeds, cash, accounts receivable, and two bonds paying the Trust $75 million per year starting in 1991.

As is widely known, many of the products manufactured by the Corporation contained asbestos, and the bankruptcy of the Corporation arose from the tremendous number of tort claims proved against it. The Plan was perceived by the bankruptcy court as the best way to eventually pay all claimants. Its theory was to keep the Corporation alive as a viable entity and to use most of the profits for the purpose of paying claims over a substantial period of time. The trustees were given great discretion as to when to make payments to claimants.

At the time of the approval of the Plan, plaintiffs had suits in tort pending in the circuit court of McLean County seeking recovery against the Corporation, and the Trust was substituted as defendant in those cases. Continuation of those cases as a method of liquidating those claims was consistent with the Plan and the Code and was allowed by the terms of the Plan. After a trial by jury in consolidated cases, verdicts were obtained on December 21, 1989, in favor of the various plaintiffs and against the Trust. On May 1, 1990, after reducing the verdicts for amounts received from other sources and denying various post-trial motions, the circuit court entered judgments in favor of the following plaintiffs and against the Trust as follows:

William and Hazel Cochran $264,499
Joyce Schultz, individually and as administrator of the estate of Calvin Schultz, deceased . $141,759
John Wehmeier $593,054.33
Helen Bratcher, individually and as administrator of the estate of Ray Bratcher, deceased $196,652

Apparently dissatisfied with and frustrated by the refusal of the Trust to make any payment upon the plaintiffs’ judgments, on May 8, 1990, the plaintiffs served the Trust with citations to discover assets which directed the Trust to produce an officer to appear before the circuit court of McLean County on May 15, 1990, concerning the assets and income of the Trust. The Trust filed objections which included, inter alia: (1) the bankruptcy court had exclusive jurisdiction to resolve disputes concerning the trust agreement; (2) as the Plan gave the trustees great discretion in making payments, absent bad faith, fraud, or abuse of that discretion, none of which were alleged, the circuit court should not interfere with the exercise of that discretion by the trustees; and (3) the citation was improper under sections 2 — 1402(bXl) and (c) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pars. 2—1402(bXl), (c)), which concern court orders requiring a judgment debtor to make payment to satisfy a judgment when others may also have claim to the judgment debtors’ property.

On May 31, 1990, the circuit court overruled the- Trust’s objections and ordered the Trust and its trustees and executive director to pay the judgments before June 4, 1990. The Trust has appealed this order.

On June 19, 1990, pursuant to plaintiffs’ petition, the circuit court ordered the Trust to show cause why it should not be held in contempt for failure to make the payments ordered on May 31, 1990. On July 19, 1990, the circuit court held the Trust in civil contempt for its failure to pay pursuant to the May 31, 1990, decree, and ordered the Trust to pay plaintiffs $5,000 per day until the judgments were satisfied. The Trust also appeals the order.

The Plan clearly permitted suits against the Trust in State courts to establish tort claims arising from the conduct of the Corporation. Nothing in the Plan indicated the State courts should control the distribution of the assets of the Fund in the payment of claims. Any such procedure would obviously create chaos.

The supremacy of procedure under the Code over conflicting procedures is illustrated by the decision in Perez v. Campbell (1971), 402 U.S. 637, 29 L. Ed. 2d 233, 91 S. Ct. 1704. A judgment had been obtained in a State court in Arizona against a husband and wife for personal injuries and property damage arising from an automobile collision and remained unpaid. The driver husband was uninsured and, under legislation of that State, the husband, and wife’s failure to timely pay the judgment or furnish security for its payment required a suspension of both of their driving privileges. After obtaining a discharge in bankruptcy, they were still denied that privilege. After their request for a declaratory judgment in a Federal district court, the United States Supreme Court ultimately held they were entitled to driving privileges because, under the supremacy clause, the provisions of the Code prevailed over the State legislation.

The Perez Court concluded the purpose of the State legislation was to coerce payment of the tort judgment which was in conflict with the purpose of the Code to give debtors a fresh start free from the pressure of prior debt. Accordingly, the State legislation was deemed invalid to the extent it operated to coerce payment of a debt discharged in bankruptcy. Similarly, State laws in regard to preferences among creditors have been held preempted by those set forth in the Code. In re Smith-Douglass, Inc. (4th Cir. 1988), 856 F.2d 12, 15-16; Elliott v. Bumb (9th Cir. 1966), 356 F.2d 749, 754-55.

Here, plaintiffs, dissatisfied with the operation of the Plan, sought to use Illinois procedures for the collection of judgments. The purpose of these procedures is to enable judgment creditors to fairly recover from judgment debtors. The plaintiffs were deserving judgment creditors under a judgment which had not been stayed, and the circuit court sought to protect their rights. However, under the constitutional power given Congress to enact laws on bankruptcy, legislation on that subject is supreme, and a major purpose of those laws is to provide for a distribution of the bankrupt’s estate that is as fair as possible to all creditors. The circuit court clearly infringed upon the Federal power in this case in ordering payment to plaintiffs from funds of the Trust. In so doing, it exceeded its jurisdiction. The May 31, 1990, order for payment was void. It cannot support the contempt order. People v. Shukovsky (1988), 128 Ill. 2d 210, 222, 538 N.E.2d 444, 448.

We reverse the judgments of May 31, 1990, and July 19,1990.

Reversed.

STEIGMANN and KNECHT, JJ., concur.


author: JUSTICE BOWMAN

text:
      In re DAN DEVINE, a Person Found Subject to Involuntary Commitment (The People of the State of Illinois, Petitioner-Appellee, v. Dan Devine, Respondent-Appellant).
    Second District
    No. 2—90—0656
    Opinion filed May 24, 1991.
    Rehearing denied June 27, 1991.

      Guardianship & Advocacy Commission, of Elgin (William E. Coffin, of counsel), for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Respondent, Dan Devine, appeals from an order of the circuit court of Kane County which involuntarily committed him to the Department of Mental Health and Developmental Disabilities (Department). Respondent contends that the order must be reversed because the statutory provisions for involuntary commitment proceedings were not strictly followed. He also requests that the commitment order be expunged from court records.

Respondent, who was initially admitted to Elgin Mental Health Center (Center) as a voluntary patient, was readmitted on an involuntary basis after a petition and certificate were filed with the court pursuant to section 3—403 of the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1989, ch. 91½, par. 3—403). As required by the Code, the matter was set for hearing and respondent was given notice of the time and place of the hearing. (Ill. Rev. Stat. 1989, ch. 91½, pars. 3—403, 3—901.) The record shows that notice was prepared and served by an employee of the medical records department at the Center.

At the conclusion of the hearing the court found that respondent was a person subject to involuntary admission and ordered him to be hospitalized with the Department. Respondent challenges the trial court order on the ground that it was void for want of subject-matter jurisdiction. Specifically, respondent claims he was not given proper notice of his commitment hearing and that the trial court order did not reflect compliance with the Code requirements that the treatment ordered should be the least restrictive appropriate alternative and be for a specified period of time. Respondent did not previously raise these objections even though he appeared at the hearing and was represented by counsel.

We will address, as a preliminary matter, respondent’s assertion that the trial court lacked subject-matter jurisdiction and, therefore, could not enter a valid order of commitment. Subject-matter jurisdiction is the power of the particular court to hear the general type of case that is before it (People ex rel. Scott v. Janson (1974), 57 Ill. 2d 451, 459; In re Wheeler (1987), 152 Ill. App. 3d 371, 373; Pecora v. Szabo (1981), 94 Ill. App. 3d 57, 67; Lemons v. Lemons (1978), 57 Ill. App. 3d 473, 476) and is not dependent on the sufficiency of the pleadings or the correctness of the trial court’s decision (Janson, 57 Ill. 2d at 459; Lemons, 57 Ill. App. 3d at 476) or the regularity of the proceedings (Wheeler, 152 Ill. App. 3d at 373; Lemons, 57 Ill. App. 3d at 476). We are unable to perceive any lack of power for the court below to hear this case. Pursuant to section 3—100 of the Code (Ill. Rev. Stat. 1989, ch. 91½, par. 3—100), the circuit court has jurisdiction over persons not charged with a felony who are subject to involuntary admission to a mental health facility. It is the statute which empowered the court to enter an order for respondent’s involuntary commitment. That power was not mitigated by faulty notice or any error in the court’s order itself. In Wheeler (In re Wheeler (1987), 152 Ill. App. 3d 371), the respondent argued that the court lacked subject-matter jurisdiction because the certifícate filed with the petition did not meet the statutory requirements. We applied the rules set forth above and found that any deficiencies in the petition or certificates could not affect the court’s power to enter an order of commitment. We are not persuaded by respondent’s argument that flawed compliance with the Code provision for notice, or an error, if any, in the order of the court deprived the court of its power to hear the petition seeking respondent’s involuntary commitment.

We turn now to the question of whether the notice given to respondent was so insufficient that the trial court order must be reversed. Respondent initially argues that he was not served with any notice at all because the signature on the return of service was not notarized, and the return, therefore, provides no proof that the purported signer either actually signed or signed under oath. There is no substance to this argument. The Code itself provides:

“Every petition, certificate and proof of service required by this Chapter shall be executed under penalty of perjury as though under oath or affirmation, but no acknowledgement is required.” (Ill. Rev. Stat. 1989, ch. 91½, par. 3—203.)

The absence of notarization does not affect the validity of service.

Respondent next proposes that notice was insufficient because it was given pursuant to an invalid order of the court. On January 17, 1990, the chief judge of the Kane County circuit court entered general order 90—1 pertaining to mental health hearings. Section 6 of the order provides for service of notice of hearings to respondents residing in mental health facilities. The language of section 6 which is pertinent here makes the Department responsible for providing actual notice to such respondents. According to the record, notice was prepared and served on respondent by an Elgin Mental Health Center employee pursuant to general order 90—1. Respondent takes the position that this notice was not adequate to fulfill the Code requirements.

We note that respondent refers to section 3—706 of the Code as the provision which contains the notice requirements applicable to him. However, respondent originally voluntarily entered the Center. The petition for involuntary commitment was a response to his written notice that he wished to be discharged. Section 3—403 controls this set of circumstances and provides that hearings on section 3—403 petitions are to be conducted pursuant to article IX of the Code (Ill. Rev. Stat. 1989, ch. 91½, par. 3—403). Section 3—901 of article IX pertains to hearings and, similar to the Code’s other notice provisions, states that “[t]he court shall direct that notice of the time and place of the hearing be given to the patient” (Ill. Rev. Stat. 1989, ch. 91½, par. 3—901). Respondent urges that general order 90—1 was beyond the authority of the chief judge and, therefore, notice and service pursuant to the order were not adequate to fulfill the Code requirement that the “court shall direct” the giving of notice. The record persuades us that the propriety of general order 90—1 is not relevant to the issue raised by respondent.

Our supreme court recently construed the notice provision of section 3 — 706 of the Code in order to determine whether strict compliance with the statutory notice requirements is necessary for a valid, involuntary admission order. (In re Splett (1991), 143 Ill. 2d 225.) Like section 3—901 in this case, section 3-706 states that “[t]he court shall direct” that notice be served on the respondent. (Ill. Rev. Stat. 1989, ch. 91½, par. 3—706.) While the record in Splett did not reflect that respondent had been served with formal notice of his admission hearing, respondent appeared with counsel at the hearing and made no objections to the sufficiency of notice. Nevertheless, in the absence of an affirmative showing that respondent had received formal notice, this court reversed the involuntary admission order on the ground that the State failed to comply with the notice requirements of section 3—706. See In re Splett (1990), 194 Ill. App. 3d 391.

On appeal, in its discussion of the notice issue in Splett, the supreme court opined that the absence of affirmative proof in the record that respondent received formal notice is not necessarily fatal to an involuntary admission order. According to the court, when it is evident that a respondent had actual notice, a commitment order based on clear and convincing evidence and issued after a hearing on the merits will be valid even when the record does not demonstrate that respondent received formal notice.

The Splett court focused on respondent’s appearance at the hearing and his representation by counsel; counsel’s answer of ready to proceed at trial, cross-examination of witnesses, and argument of the case; and respondent’s failure to object to the sufficiency of notice, to request a continuance, or to assert that he was prejudiced by lack of formal notice. On these facts the court found that the notice given to respondent and his attorney gave them time to prepare for the hearing and an opportunity to be heard on the disposition of the matter. The court concluded that the purposes of the notice provision of section 3—706 were fulfilled and any gap in the record relative to notice was harmless. The court refused to interpret the statute to require the doing of an empty formality when its purposes had otherwise been achieved. We find Splett dispositive of the notice issue now before us.

While notice here was required by section 3—901, rather than by section 3—706 as in Splett, notice was given for the same reason in both instances, i.e., a hearing on a petition for the involuntary admission of respondent to a mental health facility. Accordingly, the analysis employed by the Splett court is applicable here. This case differs from Splett, also, in that it is clear from the record that respondent was actually served with notice of his hearing. Notice is challenged only because, according to respondent, it did not comply exactly with the charge of section 3—901 that the court should direct that notice be given. However, the facts pertinent to notice in this case closely echo the Splett facts. Respondent appeared at his hearing and was represented by counsel. No objection was made that notice was insufficient. On the contrary, counsel answered in the negative when specifically asked by the court if there was any issue in regard to notice and service. Also, counsel did not request a continuance. In fact, when the court also asked if she had had an adequate opportunity to prepare, counsel responded that she had. Counsel cross-examined the State’s witness and conducted a direct examination of respondent. Finally, respondent makes no claim of prejudice to himself as a result of allegedly flawed notice, and we can find nothing in the record to indicate that his rights were abused. The circumstances of this case demand the same result as that reached by the supreme court in Splett.

Respondent here, like the respondent in Splett, received sufficient notice to assure that the purposes of section 3—901 were satisfied. The record -unquestionably demonstrates that respondent and his counsel had adequate time to prepare for respondent’s hearing and were given full opportunity to be heard as to the disposition of the petition for respondent’s involuntary admission. Since the legislative intent of section 3—901 was achieved, under Splett we need not insist on “the performance of an empty formality.” (Splett, 143 Ill. 2d at 232.) Defects in notice to respondent, if any, were harmless.

We will touch briefly on respondent’s further claim that the order committing him to the Department must be overturned because it neither specified a determinate period of hospitalization nor set out the least restrictive alternative treatment. Section 3—813 of the Code (Ill. Rev. Stat. 1989, ch. 91½, par. 3—813) directs that an initial order for treatment “shall be for a period not to exceed 60 days.” Section 3—811 of the Code (Ill. Rev. Stat. 1989, ch. 91½, par. 3—811) directs the court to order “the least restrictive alternative for treatment which is appropriate.” It is not disputed that the order here does not specifically and directly address either of these factors. The absence of a time period, however, does not affect the validity of the order because the statute itself sets a determinate period of 60 days for initial hospitalizations.

Respondent refers to the intent of the drafters of the Code to eliminate orders for indeterminate periods of treatment. The drafters themselves accomplished this goal by building determinate periods right into the Code. At the end of the first 60 days the patient must be discharged unless a new petition is filed. Subsequent hospitalizations are limited to 60 or 180 days. We note that the back of the order contains a “Notice To Persons Receiving This Order” which sets forth these statutory periods. We observe, too, that, while the court certainly could order a treatment period of less than 60 days, the Code does not require the court order to state an amount of time other than what is specified within the Code itself. Moreover, respondent does not argue that in his particular case a treatment period of less than 60 days should have been specified. On these facts we find that the order here complied with the statutory requirements relative to the duration of a period of treatment. See In re Grimes (1990), 193 Ill. App. 3d 119, 123.

The failure of the notice to refer to the restrictiveness of the treatment is not fatal, either. The statute directs the court to order the least restrictive alternative treatment. It does not say the court must make a finding that the treatment it is ordering is the least restrictive alternative. The record here plainly shows that the State’s primary witness responded affirmatively when asked if confinement in Elgin Mental Health Center was the “least restrictive environment” for respondent. In our view the trial court accurately followed the Code directive.

In light of our resolution of the other issues presented by respondent, we need not address his request that the order for his involuntary admission be expunged.

For the reasons set forth above, the order of the circuit court of Kane County is affirmed.

Affirmed.

INGLIS and UNVERZAGT, JJ., concur.


text:
      In re PAUL MURPHY, a Person Found Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Paul Murphy, Respondent-Appellant).
    Second District
    No. 2—89—1323
    Opinion filed May 24, 1991.
    Rehearing denied June 27, 1991.

      William E. Coffin, of Guardianship & Advocacy Commission, of Elgin, Thomas J. Carlisle, of Guardianship & Advocacy Commission, of Springfield, and Jeff Plesko and Penelope Karnes, both of Legal Advocacy Service, of Carbondale, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Respondent, Paul Murphy, appeals from an order of the circuit court of Kane County for his involuntary admission to Elgin Mental Health Center (Center). He contends the order is void for failure to comply with statutory requirements regarding notice and treatment information.

On November 30, 1989, pursuant to requirements of the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1987, ch. 91½, par. 1—100 et seq.), a petition and two psychiatrists’ certificates were executed for the purpose of securing the involuntary admission of respondent to a mental health facility. (Ill. Rev. Stat. 1987, ch. 91½, pars. 3—701, 3—702.) That same day a notice of hearing was prepared and served on respondent, who was residing at the Center as the result of a prior involuntary admission, by an employee of the Center. The next day, December 1, 1989, the petition, certificates and notice of hearing were filed with the clerk of the Kane County circuit court.

Respondent and his counsel appeared at the hearing held on December 8, 1989. At the beginning of the proceedings the court asked if there was any issue regarding timeliness of the petition or notice. Counsel for respondent answered, “I don’t believe so, Judge.” The State then called Dr. Nicola, a psychiatrist who had examined respondent, as its first and only witness.

Dr. Nicola testified that respondent suffered from schizoaffective disorder manifesting itself in grandiose delusions, periods of agitation, and occasionally in acting out toward other people. The doctor described respondent's mistaken belief that he had a wife in Dallas and that he had had special contact with Germans, which resulted in his getting a bank account in an Illinois bank. Also, since the beginning of November 1989, respondent had exhibited agitation and/or physical aggression on six occasions. Twice he knocked other patients to the floor, and one time he started a fight with another patient.

In Dr. Nicola’s opinion respondent was reasonably expected to inflict serious physical harm upon himself or another in the near future and was unable to provide for his basic physical needs so as to guard himself from harm. The doctor described respondent’s contact with reality as “seriously impaired,” sometimes even as to who people are and what their intentions toward him may be, and indicated that when he would misinterpret, he would be likely to act out. Respondent’s treatment plan and treatment goals were addressed by the witness, and, finally, Dr. Nicola testified that the Center would be the least restrictive environment for respondent since he was not able to cooperate and was “unstable and explosive with almost any kind of provocation.”

Respondent testified on his own behalf. He acknowledged that he had not become stabilized and did not know how he was going to get out of the Center. Much of his initial testimony was rambling and not responsive to counsel’s questions. However, he did indicate that he felt like he was doing better and that he was taking his medication regularly. He thought he would not hurt himself or anyone else.

The court found that the State had proved by clear and convincing evidence that respondent continued to be a person subject to involuntary admission. After also finding that the Center would be the least restrictive environment for respondent, the court ordered his admission to the facility.

Respondent first challenges the validity of the court’s order on the ground that he did not receive proper notice of his involuntary admission hearing. Section 3—706 of the Code (section 3—706) (Ill. Rev. Stat. 1987, ch. 91½, par. 3—706) requires the court to set a hearing on petitions for involuntary admission and to direct that notice of the time and place of the hearing be served upon respondent. The record reflects that in this case notice was served the day before the petition and certificates, which initially invoked the aid of the court, were filed. Accordingly, notice could not have been given at the direction of the court. Respondent posits that, even though he was actually served and appeared at the hearing with counsel, the service of notice did not comport with the statutory requirements and, therefore, the order for his involuntary admission must be reversed.

An issue similar to the one raised here was recently addressed by our supreme court in In re Splett (1991), 143 Ill. 2d 225. In Splett the record did not affirmatively show that respondent had been served with formal notice of his admission hearing, as required by section 3—706. Respondent had, however, appeared at the hearing accompanied by counsel and had not asserted that notice was deficient. Nevertheless, the order for respondent’s involuntary admission was reversed by this court on the ground that there had not been strict compliance with the Code. (See In re Splett (1990), 194 Ill. App. 3d 391.) On appeal to the supreme court the appellate court decision was affirmed on other grounds. However, in the course of its opinion the supreme court construed section 3—706 in order to resolve the question of whether strict compliance with the statutory notice requirements is necessary for a valid involuntary admission order.

The Splett court indicated that where it is evident a respondent received actual notice of an involuntary admission hearing, a commitment order based on clear and convincing evidence, issued after a hearing on the merits, may be considered proper despite the failure of the record to demonstrate that respondent received formal notice. After pointing out that the purposes of section 3—706 were satisfied by respondent’s actual knowledge of the hearing, the court refused to construe the statute as “requiring the performance of an empty formality when the legislative intent has been otherwise achieved.” (Splett, 143 Ill. 2d at 232.) The actual notice given to respondent was sufficient to meet the purposes of section 3—706 since it gave respondent and his attorney time to prepare for the hearing and an opportunity to be heard in the disposition of the matter. The court focused on respondent’s appearance at the hearing and his representation by counsel who answered ready, cross-examined witnesses, and argued the case. Too, neither respondent nor counsel objected to the sufficiency of notice or requested a continuance. Nor did respondent contend that he was prejudiced by the lack of formal notice. Accordingly, the absence of proof that respondent was properly served with formal notice of the hearing was considered by the court to be harmless.

The case under consideration here differs from Splett in that it is not disputed that respondent was served with notice of his hearing. Rather, notice is attacked only because it was not given at the direction of the court as is called for in section 3—706. However, respondent appeared at the hearing and was represented by counsel. When specifically asked by the court, prior to the start of the hearing, counsel indicated that she did not believe there was any issue regarding timeliness of the petition or notice. Counsel did not at any subsequent time challenge the sufficiency of notice or request a continuance in order to better prepare for the proceeding. On the contrary, while she declined to cross-examine the State’s witness, she did complete a direct examination of respondent. We think it fair to conclude from these facts that the notice served on respondent gave him and his counsel adequate time to prepare for the commitment hearing and certainly provided them with an opportunity to be heard in regard to the ultimate resolution of the petition. Respondent does not claim that he was prejudiced by less than perfect service of notice, and the record does not reveal to us any infringement of respondent’s rights.

Under these circumstances we think, as it was expressed in Splett, that the legislative intent of section 3—706 was achieved and that to invalidate a commitment order merely because service was not directed by the court would be to require “the performance of an empty formality.” (Splett, 143 Ill. 2d at 232.) If anything, the case for upholding the commitment order is even stronger here than in Splett. This record, unlike that in Splett, affirmatively shows that respondent was served with notice. The sole problem is that notice was accomplished before the court had a chance to so direct. Under Splett, this flaw is not enough to trigger reversal of the order for respondent’s involuntary commitment.

Respondent next contends that the commitment order is void because the commitment proceedings did not comply with statutory provisions pertinent to information on treatment for his illness. Section 3—810 of the Code (section 3—810) (Ill. Rev. Stat. 1987, ch. 91½, par. 3—810) provides that prior to disposition of a petition for involuntary admission a report is to be prepared regarding alternative treatment settings, a social investigation of the respondent, and a preliminary treatment plan. The report is to be considered by the court in determining an appropriate disposition. Section 3— 813(a) (Ill. Rev. Stat. 1987, ch. 91½, par. 3—813(a)) provides that when a petition is filed for the continued involuntary admission of a patient in a mental health facility, a current treatment plan is to be filed also. Neither a section 3—810 predisposition report nor a formal section 3—813(a) current treatment plan can be found in the record.

Respondent asserts that the absence of the report and treatment plan reflects a lack of statutory compliance which warrants reversal of the order for his involuntary admission. The State responds that the record reflects substantial compliance with the statute and the lack of any formal documents is harmless error. We will address first the parties’ contentions regarding section 3—813(a).

Section 3—813(a) specifically states that if a petition for continued involuntary admission is filed “the facility director shall file with the court a current treatment plan which includes an evaluation of the patient’s progress and the extent to which he is benefiting from treatment.” (Ill. Rev. Stat. 1987, ch. 91½, par. 3—813(a).) Section 3—813 also provides for additional periods of involuntary treatment for “so long as the patient continues to be subject to involuntary admission.” (Ill. Rev. Stat. 1987, ch. 91½, par. 3—813(b).) It is apparent from a consideration of section 3—813 as a whole that one of its purposes is to ensure that patients repeatedly admitted without their consent receive the kind of care and treatment they need on a continuing basis. The language of section 3—813(a) requiring the filing of a treatment plan helps to achieve that purpose by providing a mechanism whereby the court can, first, ascertain that ongoing treatment has actually been delineated for each admittee and, second, verify and evaluate any treatment which has been given. In short, the statutory language helps both to define and facilitate the court’s ongoing supervision of the care, treatment, and progress of patients repeatedly admitted against their will.

The State points out that Dr. Nicola testified to the existence and contents of a comprehensive treatment plan and that the record contains a report entitled “Monthly Review of the Comprehensive Treatment Plan” which was filed on January 16, 1990, over a month after respondent’s hearing. On these facts the State argues that the purpose of section 3—813(a) was fulfilled and urges us to find compliance with the statute. This we cannot do.

Section 3—813(a), dealing as it does with repeat admissions, provides some measure of assurance that a patient receives ongoing treatment and that his progress is monitored and evaluated by an objective court. In other words, section 3—813(a) represents an attempt to prevent patient neglect. The only way the court can fulfill this important oversight function is to have available for review, first of all, written verification that a treatment plan has in fact been, and continues to be, in place. Even more significantly, there is little way the court can monitor a patient’s progress or the results of his treatment unless the plan called for by section 3—813(a) is made part of the record each time the patient’s hospitalization is continued. It is well known that some patients remain in mental health facilities for long periods of time. Section 3—813(a) protects these patients by mandating that their records be constantly updated and filed with the court in order that they can be reviewed. In this regard we note that section 3—209 of the Code (Ill. Rev. Stat. 1987, ch. 91½, par. 3—209) requires that a patient’s treatment plan be reviewed and updated as the patient’s condition warrants, but not less than every 30 days. Assuming a treatment plan is maintained in accord with section 3—209, there should be little difficulty in filing a current plan at the same time a petition is filed for a patient’s readmission.

In the instant case, the report cited by the State was filed on January 15, 1990, far too late to be of any assistance to the trial court in making an evaluation of respondent’s progress. While Dr. Nicola’s testimony may have helped the trial court during this particular readmission hearing, such testimony would not normally be filed as part of the court record and, thus, would not be available for review by a future court at a future admission hearing. In the absence of a properly filed treatment plan we cannot say the purpose of section 3—813(a) has been fulfilled. Nor, in light of the importance of the treatment plan as a tool for future evaluations, can we say that respondent has not suffered any prejudice due to the lack of a plan. We conclude that the failure to comply with section 3—813(a) warrants reversal of the order for respondent’s involuntary admission to a mental health facility. See also In re Long (1990), 203 Ill. App. 3d 357, 362; In re Lamb (1990), 202 Ill. App. 3d 725, 729-30.

Since we have decided that the disputed order must be reversed due to its failure to comply with section 3—813(a), we need not address respondent’s challenge based on section 3—810.

In accord with the reasons set forth above, the order of the circuit court of Kane County is reversed.

Reversed.

NICKELS and INGLIS, JJ., concur.


author: JUSTICE McLAREN PRESIDING JUSTICE REINHARD,

text:
    ILLINOIS BELL TELEPHONE COMPANY, Plaintiff and Counterdefendant-Appellee and Cross-Appellant, v. THE CITY OF HIGHLAND PARK, Defendant and Counterplaintiff-Appellant and Cross-Appellee.
    Second District
    No. 2—90—0663
    Opinion filed May 30, 1991.
    Rehearing denied June 27, 1991.

      REINHARD, P.J., dissenting.

      Michael F. Bonamarte III, of DeSanto & Bonamarte, P.C., of Waukegan, for appellant.
    William P. Anderson, of Fuqua, Winter, Stiles & Anderson, Ltd., of Waukegan, for appellee.
   JUSTICE McLAREN

Defendant, the City of Highland Park (City), appeals from the judgment of the circuit court in favor of plaintiff, Illinois Bell Telephone Company (Bell), on Bell’s negligence complaint. The City raises two issues on appeal: (1) whether the trial court’s judgment was against the manifest weight of the evidence; and (2) whether a City ordinance granting plaintiff certain rights in the City bars it from maintaining its cause of action. Bell cross-appeals that part of the judgment which found it 40% comparatively negligent and awarded Bell $10,992.31. In its cross-appeal, Bell raises the following issues: (1) whether the trial court erred in finding that the City had not committed an intentional trespass; (2) whether, as a matter of law, the City cannot raise the defense of contributory negligence to an intentional trespass; (3) whether the trial court’s finding that Bell was 40% comparatively negligent was against the manifest weight of the evidence. We affirm in part and remand.

Bell filed a two-count complaint in the circuit court against the City, alleging that on October 11, 1985, the City was performing construction work in the area of 1440 Oakwood in Highland Park. During the course of this construction, an underground Bell cable was damaged. Count I alleged that the City committed a trespass by performing construction at 1440 Oakwood without Bell’s consent or knowledge. Count II alleged that the City was negligent because it failed to locate cables under the street and performed its excavation without regard for others’ property; negligently augered under the street so as to damage Bell’s equipment; disregarded paint and stakes locating Bell’s equipment; and damaged Bell’s equipment.

The City raised the affirmative defense of contributory negligence. The City alleged that it requested information from Bell regarding the location and identity of underground cables and Bell representatives did not tell the City that there were three ducts under the street.

The City also included a counterclaim for declaratory judgment. The City alleged that it enacted an ordinance granting Bell certain rights in Highland Park. The City alleged, in relevant part, that section 4 of the ordinance provided:

“The Company shall, at its own expense, defend all suits that may be brought against the Municipality on account of or in connection with the violation by the Company of any of the obligations hereby imposed upon or assumed by it, or by reason of or in connection with any damage to life, limb or property as a result of any of the structures constructed by it under or by virtue of this ordinance, and shall save and keep harmless the Municipality from any and all damages, judgments, costs and expenses of every kind, that may arise by reason thereof; provided, that notice in writing shall be immediately given to the Company of any claim or suit against the Municipality which, by the terms hereof, the Company shall be obligated to defend, or against which the Company has hereby agreed to save and keep harmless the Municipality and provided further that the Municipality shall furnish to the Company all information in its possession relating to said claim or suit, and cooperate with the company [sic] in the defense of said claim or suit. The governing body of the Municipality may, if it so desires, assist in defending any such claim or suit, but solely under the direction of the Company or its attorneys, and the Company shall not be required to reimburse the Municipality for expenses incurred by it in case of the election so to assist.”

Based on this section, the City contended that the suit between the parties was not allowed and that Bell had implicitly waived its right to claim damage to its property caused by the City.

At the bench trial, Michael Becvar testified that he worked for Bell as a cable splicer. On October 11, 1985, his supervisor sent Becvar to 1440 Oakwood to repair the facility. When Becvar arrived on the scene, City employees had damaged a cable and were trying to dig it up to see what was the problem. According to Becvar, the cable was so badly damaged that it had to be replaced, rather than repaired. The damaged cable was a “1200 pair lead cable,” which consisted of 1,200 wires surrounded by lead.

At 1440 Oakwood, Bell had three ducts between two manholes, but on October 11, 1985, Becvar was unaware that there were three of them. Becvar described the ducts as “a six-duct with two, two, and two; *** a nine-duct which is three by three, and another nine-duct, three by three.” According to Becvar, the damaged cable was in the middle duct, which was one of the lower two ducts. On cross-examination, Becvar admitted that he was “not 100 percent positive” that the damaged cable had been laid in the duct system.

The court asked Becvar in which of the ducts was the damaged cable. Becvar responded that he was not sure because they could not get at the cable to repair it. The court also asked what the hole looked like. Becvar stated that there was a hole in the bottom part of a 2V2- to 3-inch cable. In addition, Becvar explained that the ducts were encased in red clay tile, which was then covered with concrete. Becvar admitted that he did not know whether the damaged cable was protruding from an encasement of clay and concrete. Becvar further explained:

“In the manhole you have a concrete wall. You can tell it’s clay duct tile by looking inside of it, but it’s a flush manhole wall, and you have your six-duet and a few inch spacing, then your nine-duct, and then your next nine-duct. It was a flat concrete wall.”

According to Becvar, there are holes in the concrete for service access.

On redirect examination, Becvar indicated that it was not possible to tell from within the manhole whether the entire three-duct system was encased in concrete because of a separate wall on the inside of the manhole.

Steven Harlow, a locator for Bell, testified that, as a general practice, the JULIE system, a multiutility locating system, contacts Bell after it receives a request for Bell cable information. Harlow then goes to the site and refers to plat maps, which indicate what type of cable is placed in the ground and its general location. Harlow then uses a dynatel to locate physically the cable within six inches. Harlow then marks the spot with orange paint and orange stakes.

Harlow further testified that on the cable exchange map, which depicts the configuration of ducts, it was not apparent that there were three ducts at 1440 Oakwood. The map depicted the manholes and one duct run. Harlow does not locate the depths of ducts, and when there is more than one duct on top of each other, Harlow would mark that there was a duct system. Harlow admitted that Bell had knowledge of what they had underground.

Harlow had gone to locate cable at 1440 Oakwood at the City’s request. He marked a double orange line and wrote “T/duct” to show the location of the telephone duct. Harlow went into the pit that the City employees had dug. Harlow shined a flashlight through a four- to six-inch hole in which copper tubing had already been placed. He saw where the workers had bored through and damaged a cable. The duct markings ran parallel to the street, and the boring hole ran perpendicular to the street and intersected with the duct markings.

Stephen Nitschneider, a Bell engineer, testified regarding the age of various types of underground structures. According to Nitschneider, the damaged cable had been installed in the mid 1950’s. Nitschneider also indicated that the configuration of three ducts stacked on top of each other was not uncommon in Highland Park. In response to a question posed by the court, Nitschneider explained that if there was a loose cable, not in a duct, the map would show the existence of such a cable. Nitschneider further clarified what the map showed, since the map did not depict the duct work itself. According to Nitschneider, if the cable “was outside of the duct work it would be outside of this manhole, it would be a line between the two manholes.”

Jack Donald Wood, a safety manager for Bell, testified that he was Harlow’s supervisor. Wood stated that Bell never marks the depth of its cables or ducts because the grade could change as much as three to four feet. Bell locators do not identify multiple structures which are located one on top of another; they merely mark the area as a duct or a cable. According to Wood, other utilities also do not mark for depth or multiple structures. Custom and practice in the industry is that the party augering must make sure that the auger’s path is clear of any underground structures. Wood further testified that the type of cable which was damaged was always put in a duct, although he admitted that he was not sure that the damaged cable was in a duct system.

When Wood learned of a problem at 1440 Oakwood he went to the site and asked the workers whether they hit a cable. The workers did not know that had happened, since they thought their line was below Bell’s structures. Wood described the area as two pits, one on either side of the orange markings. Wood got into one pit, which was about five feet deep. The City was putting the hole through to a “catch pit,” where they would hook up the water line to the service to the house. Wood looked through the hole and saw the damaged cable next to copper tubing. Wood did not notice any artificial structures anywhere around the hole. Wood also could not see any Bell ducts on the walls of the pit as there was mud and clay. In Wood’s opinion, the cost of repair to the cable, $18,320.52, was reasonable for the damage sustained.

Bell called John Shelton, a foreman of the water division for the City, as an adverse witness. Shelton was the foreman of the crew installing new water lines at 1440 Oakwood. Shelton explained that the crew dug two pits, one on the east side of the street across from the house, and the other in the driveway of the house. To make the hole to the receiving pit, the crew used a hole auger, which Shelton described as similar to “a small ground torpedo,” powered by compressed air. The sending pit was in the northbound lane of the street.

The crew used a rod and shovel to locate the Bell structures. Shelton stated that the locator only indicated that there was one duct, but the crew found two ducts. Shelton knew the auger hole was under those two ducts. The copper service line was placed five feet down, at the bottom of the pit.

With a rod that was four feet long and five-sixteenths of an inch thick, Shelton probed the area where the “hole hog” was to go through, prior to making the hole. The crew then sent the “hole hog” through. Shortly thereafter, someone from Bell came by and asked if they had hit a telephone line. Shelton did not know that they had. He thought the hole was below the lines. Shelton looked through the hole and saw the broken cable. Shelton stated that they never found a third duct, but one was located later, alongside the top duct. According to Shelton, the “hole hog” maintained its grade under the road and ended up where the crew intended it to go. The crew put the hole about one foot below the second duct. The broken cable was 18 inches from the wall of the receiving pit.

Shelton further testified that they thought there was only one duct. They found the second duct accidentally. They exposed the ducts with a shovel and then probed around underneath the second duct, but felt nothing. Shelton stated that he had never encountered a Bell structure five feet below grade. Other cables were at a depth of 18 inches to 2 feet.

The court asked Shelton whether Bell ever indicated there were multiple structures when the City was digging. Shelton responded:

“The phone company generally [does] not, they mark what is there, and what we normally do is dig down and expose what is telephone [sic]. Normally it’s one cable, and that is what we find and locate, and then we will continue with our excavation.”

Shelton assumed that, if there were multiple ducts, the locator would write the number of ducts, or would hold an on-site meeting to explain what was underground. Shelton had never before encountered duct work, although there are cables present in approximately half of the water department digs. The greatest depth at which Shelton had encountered a cable was three feet down.

Shelton found the first duct one foot under grade and exposed it. He probed underneath that duct and found the second duct. The two were separated by a four-inch layer of wood, and the whole thing was encased in concrete. Shelton probed down to determine how far down the concrete went, which was approximately three feet. They then probed the area where the “hole hog” was to go through.

At the close of Bell’s case, the City made a motion for a directed verdict, which was denied. The City then recalled Shelton to testify. Shelton stated that duct systems are not prevalent throughout Highland Park because they are used for main lines which run cables between municipalities. When the crew uncovered the first duct, Shelton assumed it was one large duct. It was not until they had exposed it with a shovel that Shelton realized there were two separate ducts. Shelton probed into the wall of the receiving pit at the level where they were going to put the “hole hog.” The crew probed in several places, at different heights from the bottom of the second duct past the grade where the hole would be, covering a 12- to 18-inch area.

All three ducts were uncovered after the cable was damaged. According to Shelton, the three ducts were not one on top of another, but were in an “L” shape, with two ducts side by side and the third on the bottom.

The court questioned Shelton about the probe. Although they probed the area where the auger subsequently hit the cable, the crew did not hit anything with their probe. As Shelton explained:

“[I]f it’s a three-inch cable, we could have missed it; you know, by probing over it, under it. When you can’t see into the ground some of this is luck of the draw, you know, you hope you hit everything in there. *** [I]f you hit something you are obligated or expected to expose it. Unfortunately, we didn’t hit anything.”

Shelton stated that they probed at the five-foot depth because they found a duct that they were not aware of, and it only took an extra five minutes to probe to see if there was anything else there.

Shelton took some pictures in the hole of a dig site at 1530 Oak-wood, taken after the dig at 1440 Oakwood. In the hole was an exposed cable. Shelton testified that he never saw any duct work around the cable, that it was lying on the ground, and he saw nothing broken out. There were two ducts, one on top of the other, and the cable was outside of those ducts. The crew completely excavated under the second duct, and there was nothing underneath it. Shelton stated that the arrangement was what he had encountered at 1440 Oakwood.

Michael Prosser testified that he was in the crew which did the digging at 1440 Oakwood. Prosser had never encountered duct work. According to Prosser, the crew probed beneath the second duct not only to make sure there were no other Bell structures, but also to watch out for the City’s storm sewers. Prosser, like Shelton, testified that, after the duct work was exposed, it was in an “L” configuration, with two ducts side by side and one below.

Prosser stated that after they had hit the cable, he cleared away the earth from around the cable. Prosser did not see any clay, concrete or mortar debris. Prosser was able to see the cable. According to Prosser, the crew had been more careful in probing on this dig than on other digs because of the duct work. Prosser had no reason to believe there were any loose cables in the ground under the duct work. Prosser overheard some Bell employees “discussing how they were going to put [the cable] back together, and it seemed that they couldn’t understand why it wasn’t in a duct.”

Prosser explained how they used the rod to determine whether there was anything buried. The rod is four feet long, and since they have to be in the hole to use it, they cannot push it straight in. Prosser stated that they started above the level at which they intended to auger and probed at different angles, working their way down. Prosser further stated that after they had found the second duct, Prosser had no reason to believe there was an exposed cable underneath. The crew was “probing for another duet, not a cable; *** if [they] were probing for a cable [they] might have spaded back farther.” (Emphasis added.)

William Hall, a backhoe operator for the water division, testified that he dug the receiving pit at 1440 Oakwood. Hall explained how he dug to the bottom depth of the manhole, and then elongated the hole to accommodate the “hole hog.” Hall dug the pit to a depth of 5x/z feet. When the crew encountered the duct work, shovels were used to expose the duct.

Hall also helped uncover the cable after it was damaged. Hall did not see any clay, cement or mortar debris. Hall described the duct configuration the same as Shelton and Prosser had. Three feet below grade was the deepest Hall had ever encountered a Bell line, before or after the incident. The cable in question was two feet deeper than that.

Bell recalled Nitschneider to testify in rebuttal. He stated that the inside dimension of a 3 by 3 duct is 3x/2 inches. The exterior of it is about 14 inches. Although equipment sometimes settles, Nitschneider noted that it usually does not settle to a depth of five feet. That is an unusual depth for Bell structures. Nitschneider knew of other structures laid at such depth, but none in Highland Park. Nitschneider explained that there are only one or two trunk lines within Highland Park and one of them is under Oakwood Avenue. Nitschneider did not know if a trunk line was hit, or if it was a subscriber cable.

After hearing the arguments of counsel, the court gave its decision. The court found all the factual testimony “to be largely credible.” The court explained, “I don’t know as a matter of fact whether that bottom cable was encased in a duct or not; but I am going to enter a finding in this case that it was not.” The court gave the following reasons as the basis of this finding: the witnesses who were in the hole and who looked at the damage and said there was no duct visible; there was not any pulverized concrete or tile; there was no testimony regarding any repair to a damaged duct; and there was no testimony that there were other cables left unprotected.

The court further found that the cable was at a depth greater than that experienced by the City’s employees. However, the discovery of the second duct gave them reason to investigate further. The crew investigated the area where the damage was but did not find anything. The court stated “[a] fourteen inch high duct encasing cables *** would have been impossible not to find; but even given the size of the cable without duct work, it is difficult to understand how they wouldn’t have located it.” The court initially stated that the City had a duty to make reasonable efforts to locate Bell’s cable and to excavate in a reasonably safe manner so as to not damage the cable. The court also found that Bell had a duty to notify the City of the location of underground cables and, where there is something unusual at the site, to advise the excavator of that. Here, the number of ducts and the depth of the bottom cable were unusual.

The court concluded that both parties were negligent. Contrary to its initial description of the City’s duty, the court found the City was negligent “in failing to locate the cable that it eventually struck, particularly in the circumstance where it knew or had reason to know there was something unusual,” and it should have examined the particular depth to determine if there was a cable there. The court explained, “I think the city breached its duty in not locating the cable that was at that depth.” The court found Bell breached its duty by not telling the excavator something about the unusual circumstances. The court found that Bell proved damages in the sum of $18,320.52, but because Bell was 40% negligent, it entered judgment for Bell in the amount of $10,992.31. The court also found that the trespass count was actually a negligence count since there was no intentional damage. The court found that counts I and II were the same and, to avoid redundancy, entered judgment on count II only.

The City filed a post-trial motion, preserving the issues raised in this appeal. On May 15, 1990, the court denied the part of the post-trial motion which related to the finding of negligence. On June 15, 1990, the court, in a written order, entered judgment in favor of Bell and against the City on the City’s counterclaim. The City timely appealed. Bell also filed a timely cross-appeal. We will address the City’s appellate contentions first.

The City contends that the trial court’s judgment was against the manifest weight of the evidence because the City’s crew had no reason to know there was a cable in the location where they intended to auger and that the crew acted reasonably in probing the area, but not finding anything. The standard for reviewing the trial court’s finding is whether the judgment was against the manifest weight of the evidence. (De Kalb Bank v. Purdy (1990), 205 Ill. App. 3d 62, 78.) A judgment is against the manifest weight of the evidence if the opposite conclusion is clearly evident. Rybak v. Provenzale (1989), 181 Ill. App. 3d 884, 891.

The City, relying on Penrod v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1979), 68 Ill. App. 3d 75, 81, and Barnes v. Rakow (1979), 78 Ill. App. 3d 404, 407, refers to the maxim that one who in the course of his business or profession contracts to supply information for the guidance of others in their business may be liable for negligence if he fails to supply material information which could affect a business decision of the person receiving the information. According to the City, this maxim applies to the present case because, at the City’s request, Bell provided information.

Bell argues that Penrod and Barnes are distinguishable because, in those cases, the defendant was in the business of supplying information, whereas plaintiff was in the business of supplying telephone service, not information.

We agree with Bell that the City’s authorities are distinguishable because Bell here is not in the business of supplying information. In addition, Penrod and Barnes were cases in which the plaintiff sought damages from a defendant who supplied incorrect information. (See Barnes, 78 Ill. App. 3d at 407; Penrod, 68 Ill. App. 3d at 81-82; see also Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 453-54.) To determine whether the court correctly found the City liable, whether Bell was negligent in supplying information is not important; the issue is whether the City acted reasonably upon finding that the information provided it by Bell was faulty. Thus, we only shall be concerned with the City’s assertion that it acted reasonably, considering that it had no knowledge that there was another structure or cable beneath the second duct.

Bell argues that the City was required to make sure that there was no Bell equipment where the crew ran their auger. According to Bell, “[t]he fact that the City looked but did not find this large cable, or more probably the duct it was in does not relieve the city of negligence.” Bell cites Grass v. Hill (1981), 94 Ill. App. 3d 709, 715, for the proposition that “one cannot look with an unseeing eye and not see that which he could have viewed by the proper exercise of his sight.”

Bell’s argument is flawed in several respects. First, the cable was not “large,” but was only three inches in diameter and was not in a duct, contrary to Bell’s assertions. Based upon information from Bell, defendant was to look for a duct not a cable. The crew found two ducts which arguably could have put them on notice that there was a third duct, which, in fact, there was. However, there was nothing that would have put defendant on notice that it should have been looking for a 2/2- to 3-inch cable. Defendant was apprised of a duct system 36 inches in depth. The cable was 2xk to 3 inches in depth. The crew were using a probe that was five-sixteenths of an inch thick, and they could not push it straight in horizontally at the point where the auger was to go because the probe was too long for the width of the pit. The crew had to probe downward at varying angles.

In addition, the rule on which Bell relies is inappropriate in the present case. In Grass, the court applied the maxim to a driver who did not keep a proper lookout when passing other vehicles. (Grass, 94 Ill. App. 3d at 714-15.) Here, there was nothing to “see” but a wall of earth. The crew were fishing around to determine whether there was anything in that area. The crew’s task was even more difficult than finding the proverbial needle in a haystack, because the crew did not even know if there was anything there. The unrebutted testimony showed that the City’s crews had never encountered a Bell structure five feet below grade. Even if the presence of the second duct alerted the crew to the possibility of another structure, Prosser testified that they were looking for another duct, which is significantly larger than a bare cable, and that if they had known there was a cable in there somewhere, the crew would have probed deeper into the earth.

DeYoung v. Alpha Construction Co. (1989), 186 Ill. App. 3d 758, cited by Bell, also is distinguishable from the present case. In DeYoung, the construction crew did not hand dig after they found one gas line but used a backhoe which “snagged” the second gas line. (De Young, 186 Ill. App. 3d at 764.) By contrast, in the present case the crew not only probed beneath the first duct, but also hand probed beneath the second duct. They did not “blithely disregard” the possibility that there was another structure beneath the second duct.

We must now determine whether it was against the manifest weight of the evidence for the trial court to conclude that the City was negligent by not finding the cable. The testimony showed that several times the crew probed around the area where they intended to auger. As previously noted, the probe was only five-sixteenths of an inch thick, and, as Shelton testified, they “could have missed it *** by probing over it, [or] under it.” Prosser testified that the crew were more careful during this dig than they usually were, and if they had known they were probing for a cable, they “might have spaded back farther.”

The trial court found that the City was negligent because the crew failed to find the cable, rather than determining whether the crew’s search was reasonable. The mere fact that damage resulted does not raise the presumption that the City was negligent. (Mort v. Walter (1983), 98 Ill. 2d 391, 397.) The trial court needed to determine whether the City breached its duty, i.e., whether it acted reasonably, not whether it found or did not find the cable. (See Widlowski v. Durkee Foods (1990), 138 Ill. 2d 369, 373.) The trial court specifically stated that the City was under a duty to find the buried cable, that the City breached the duty because it failed to find the cable, and finally that damage was proximately caused. The court applied an improper duty upon the City. The court should have determined the City had a duty to act reasonably in attempting to locate the buried cable, that it did or did not act reasonably in its attempts, and that damages were or were not proximately caused. We therefore vacate the court’s finding as to negligence as to defendant and remand for further proceedings. We will review the remaining issues raised in this appeal as they are not moot.

The City’s second appellate contention is that the indemnity agreement embodied in the ordinance, which granted Bell certain rights in the City, bars Bell from maintaining its cause of action. The City premises its argument on section 4 of the agreement, which states that Bell shall defend all suits brought against the City “by reason of or in connection with any damage to *** property as a result of any of the structures constructed by it under or by virtue of this ordinance,” and further states that Bell “shall save and keep harmless the City from any and all damages, judgments, costs and expenses of every kind, that may arise by reason thereof.”

The current state of the law is that indemnification provisions in construction contracts which relieve an entity of liability for its own negligence are void as against public policy. (Dowling v. Otis Elevator Co. (1989), 192 Ill. App. 3d 1064, 1070.) However, since the agreement here was entered into in 1965, it predates the enactment of the statute (Ill. Rev. Stat. 1989, ch. 29, par. 61). Therefore, the rule enunciated by our supreme court in Westinghouse Electric Elevator Co. v. La Salle Monroe Building Corp. (1946), 395 Ill. 429, applies. (Cox v. Lumbermens Mutual Casualty Co. (1982), 108 Ill. App. 3d 643, 646.) The Westinghouse court held that indemnity agreements are disfavored and must be strictly construed. (Westinghouse, 395 Ill. at 433-35.) When construing an indemnity clause, the court must consider the language and provisions as a whole. (Owens v. Midwest Tank & Manufacturing Co. (1989), 192 Ill. App. 3d 1039, 1042.) An indemnity agreement will not be construed as relieving one from liability for his own negligence absent an expression of that intention in clear and unequivocal terms. Dowling, 192 Ill. App. 3d at 1070-71.

Although the language of the indemnity clause appears to support the City’s assertion, a reading of the entire section indicates that it was the intention of the parties that Bell agreed to defend all suits brought against the City by a third party based on Bell’s violation of the conditions of the ordinance or as a result of damages caused by Bell’s equipment. In particular, the requirement that Bell defend the City and the option that the City may assist in defending such claim at the direction of Bell or its attorneys would be rendered absurd under the City’s interpretation. We will not read into the provision an implied agreement by Bell to waive any claims it might have against the City for damages negligently caused by it to Bell’s property.

Furthermore, the purpose of indemnity agreements is at odds with the City’s interpretation. Indemnity allows “one less culpable, although legally liable to third persons, [to] escape the payment of damages assessed against him by putting the ultimate loss upon the one principally responsible for the injury done.” (Emphasis added.) (John Griffiths & Son Co. v. National Fireproofing Co. (1923), 310 Ill. 331, 339.) We therefore conclude that the trial court properly denied the City’s request for declaratory relief.

We now turn to Bell’s cross-appeal. Bell first contends that the trial court erred in not finding that the City committed an intentional trespass. According to Bell, the City committed an intentional trespass when the City’s crew sent their “hole hog” across an area that was clearly marked by Bell’s stakes and paint, and they damaged a cable which was located where it had a right to be. In support of this argument, Bell cites Illinois Bell Telephone Co. v. Charles Ind Co. (1954), 3 Ill. App. 2d 258.

In Ind, the defendant was installing a storm sewer under the street. The city’s surveying crew staked the parkway to indicate where the trench was to be dug, and the stakes indicated the depth of the excavation. While using an excavating machine, defendant began breaking the cement around the manhole. The defendant proceeded about 600 feet when the hoe came in contact with the plaintiff’s cable, damaging it. Plaintiff claimed that the defendant was liable to it for a trespass. The appellate court found:

“[Defendant had a right to excavate where it did in constructing a storm sewer for its employer. Plaintiff, at that time, enjoyed a possessory or proprietary interest, granted it by the city in the portion of the street where defendant was excavating. The permit from the city gave defendant no right to interfere with this interest and when its excavating hoe struck and damaged plaintiff’s cable defendant committed a trespass for which it became liable.” Ind, 3 Ill. App. 2d at 278.

The City argues that Bell’s reliance on Ind is misplaced because, in that case, the excavator did not ask Bell to locate its cables before the excavator began digging. The Ind court held that Bell did not have an affirmative duty to seek out the excavator and inform it of where its cables were located and the excavator had the duty to inform itself of the location of the Bell’s property. In the present case, the City argues, Bell provided information at the City’s request and part of Bell’s business is to provide the information. In addition, Bell knew the City was about to begin excavating.

We agree with the City that Ind is factually distinguishable from the present case. The court’s focus in Ind was the defendant’s failure to notify the utility of the intent to excavate. (See Ind, 3 Ill. App. 2d at 275-77.) Here, the City called the JULIE system and requested information regarding the location of any underground structures, and the crew then hand dug and probed under the area marked “DUCT.” Furthermore, we cannot read Ind as standing for the proposition that an unintentional intrusion is a trespass, in light of our supreme court’s requirement of intent or negligence, unless the intrusion is caused by an ultrahazardous activity. Dial v. City of O'Fallon (1980), 81 Ill. 2d 548, 553, 555-57.

The other cases cited by Bell are distinguishable because, in those cases, the defendant knew there was a cable present, if not its precise location. (See Wisconsin Telephone Co. v. Reynolds (1958), 2 Wis. 2d 649, 87 N.W.2d 285; Southwestern Bell Telephone Co. v. Frio Materials Co. (Tex. Civ. App. 1978), 571 S.W.2d 376.) In the present case, the crew was alerted to the possibility that there might have been another duct present, but the crew had no way of knowing that there was a cable in the area at a depth at which Bell structures were unknown.

There are three general types of trespass: “(1) conduct intended to cause an intrusion on the plaintiff’s premises; (2) negligent conduct that causes an intrusion; and (3) conduct that is ultrahazardous and causes an intrusion, so that liability is said to be strict or absolute.” (Dial, 81 Ill. 2d at 553.) The trial court believed that Bell alleged the second type of trespass, which “is now governed by the general principles of negligence.” (See Dial, 81 Ill. 2d at 553.) The trial court concluded that the trespass count was in fact a negligence count and, therefore, it was the same as count II.

Bell argues, however, that it was alleging an intentional trespass. For a person to be liable for an intentional trespass, there must be “a high degree of certainty that an intrusion of another’s property will result from the act of the defendant.” (Dial, 81 Ill. 2d at 555.) “In other words, a person must know with a high degree of certainty that the intrusion will naturally follow from his act before liability for trespass attaches.” (Dietz v. Illinois Bell Telephone Co. (1987), 154 Ill. App. 3d 554, 559.) The evidence does not support the conclusion that the crew knew with a high degree of certainty that augering in that spot would cause an intrusion onto Bell’s property. We therefore conclude that the trial court properly refused to enter judgment for Bell on its trespass count.

Because of our conclusion that the City did not commit an intentional trespass, we need not address Bell’s second contention, that as a matter of law the City could not claim the defense of contributory negligence for the City’s intentional trespass.

Bell finally contends the finding Bell was contributorily negligent was against the manifest weight of the evidence. (See Apcon Corp. v. Dunn (1990), 204 Ill. App. 3d 865, 869.) Bell does not dispute the trial court’s apportionment of its share of comparative fault, but instead argues only that it was not negligent at all.

Because Bell is apparently confused about the facts adduced and the trial court’s findings regarding its liability, we will briefly summarize them. The trial court found the excavating crew damaged a cable which was not in a duct. The cable was five feet below grade. Bell knew the City’s crew were excavating to put in new water lines. Bell’s employee only marked “DUCT” on the curb, but did not indicate that there was also a loose cable in that area; nor did Bell hold a meeting with the crew to discuss the unusual circumstances present at the site. There was evidence that Bell knew of all the structures it had placed underground in Highland Park. The City’s employees had never encountered one of Bell’s structures at a depth of five feet. The deepest structure they had encountered had been three feet below grade, and most of Bell’s structures were 18 inches down. These findings are supported by the evidence.

A plaintiff has the duty to exercise reasonable care to avoid an injury. (Beeler v. Chem-Lawn Corp. (1989), 183 Ill. App. 3d 648, 654.) Consequently, contributory negligence is the lack of due care for one’s own safety. (Gruidl v. Schell (1988), 166 Ill. App. 3d 276, 280.) The trial court found that, once Bell decided to give information to the excavator, Bell had a duty to notify the City of the location of the underground cable and to advise the excavator that there was something unusual at the site. The trial court found Bell failed to do these things and thus breached its duty. We agree with the trial court’s conclusion that Bell did not exercise due care to avoid injury to its property, and, therefore, the finding of contributory negligence was not against the manifest weight of the evidence.

The judgment of the circuit court of Lake County is affirmed in part and remanded in part with directions that the trial court determine whether the City’s actions under the circumstances constituted reasonable efforts to locate whatever, if anything, the City may reasonably have believed, at the time of the excavation, was present below the configured Bell ducts and to dig, bore, or excavate in a reasonably safe manner. The question of duty and breach thereof is not to be based upon knowledge after the fact.

Affirmed in part; remanded in part with directions.

BOWMAN, J., concurs.

PRESIDING JUSTICE REINHARD,

dissenting:

I dissent from the majority’s partial disposition of this cause on the ground that the trial court imposed an improper duty on the City of Highland Park (City), an issue not raised by any party below or on appeal. The failure to raise this issue is not surprising in light of the fact that the record simply does not support it.

The majority construes the trial court’s comments as imposing an absolute duty on the City “to find the buried cable” rather than to take reasonable steps to attempt to locate the cable before digging. In essence, the majority believes that the City was held to a standard of strict liability for failing to locate the cable. A careful review of the trial court’s remarks below indicate that this is simply not the case.

During closing arguments, the trial court and the attorney for Illinois Bell discussed the nature of the duty owed by the City. The trial court clearly stated that “there isn’t any strict liability here.” In announcing its findings on this issue, however, the court stated that it could not see how the City failed to find the cable when it knew of other cables lying within a few inches or feet of it. The court then stated:

“The city under these circumstances had a duty to take, make reasonable efforts to locate Illinois Bell’s cable, and once having done that, dig or bore or excavate in a reasonably safe manner so as [not] to damage those cables.”

The court proceeded to announce its finding on other issues presented. Finally, in the statement focused on by the majority, the court then summarized its findings, including the finding relating to the duty question:

“The court having found that each side had a duty owing to the other, the court also finds that each side breached that duty to some extent, the city in failing to locate the cable that it eventually struck, particularly in the circumstance where it knew or had reason to know there was something unusual, and frankly I gave weight, some considerable weight to Mr. Anderson’s argument that maybe the city’s only obligation was, once having determined the depth at which it was going to drill the particular depth to see if there was a cable there.
I think the city breached its duty in not locating the cable that was at that depth.” (Emphasis added.)

Thus, the court concluded that if the City had made reasonable efforts to locate any cables at the depth of its planned excavation it would have discovered the cable. The court did not hold the City absolutely liable for locating the cable regardless of its location and depth.

If the majority believes that the City should not be held liable for its acts under the facts of this case, then it should address the question of whether the trial court’s finding of negligence was against the manifest weight of the evidence. While I would not hold that the trial court’s finding is against the manifest weight, the majority could have taken the contrary position on this point without unfairly slighting the trial court’s careful consideration of the issue. Unfortunately, the majority has eschewed this direct approach in favor of one which is based upon comments taken out of context.

While I agree that the other issues raised in the appeal and in the cross-appeal are without merit, I dissent from the majority’s opinion. I would affirm the judgment of the circuit court in its entirety.