author: JUSTICE HARRISON

text:
    WILLIAM J. McCULLOUGH, Plaintiff-Appellant, v. ILLINOIS STATE BOARD OF EDUCATION, by Peter Feuille, Hearing Officer, et al., Defendants-Appellees.
    Fifth District
    No. 5 — 89—0481
    Opinion filed November 7, 1990.

      David T. Lumerman.and Stanford L. Sipple, both of St. Louis, Missouri, for appellant.
    John F. Borden, of Gosnell, Benecki, Borden & Enloe, Ltd., of Lawrenceville, for appellees Lawrenceville Unit School District No. 20, Richard Alsman, Donald Diggs, Jr., Robert K. Gosnell, Julie Ivers, Gerald Baker, James Seitzinger, and William Cummins.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, William J. McCullough, appeals from a judgment of the circuit court of Lawrence County which upheld, on administrative review, his dismissal as a tenured public school teacher for the Lawrence-ville Unit School District No. 20. Plaintiff raises three issues for our review: (1) whether plaintiff’s conviction for failure to file Federal income tax returns, together with his post-indictment conduct, constituted cause for dismissal under the Illinois School Code (Ill. Rev. Stat. 1987, ch. 122, par. 1 — 1 et seq.), (2) whether certain factual findings made by the hearing officer were against the manifest weight of the evidence, and (3) whether the hearing officer erred in concluding that the cause for plaintiffs dismissal was irremediable. For the reasons which follow, we affirm.

Plaintiff had been employed by the Board of Education of Lawrenceville Unit School District No. 20 (Board) since 1969. Plaintiff was certified to teach grades 6 through 12 and to administer kindergarten through grade 12. Plaintiff’s employment in the school district was divided between teaching social studies and science at the upper grade-school level and serving as principal of the St. Francisville grade school. During the 1986-87 school year, his last year with the district, plaintiff taught at the Brookside grade school.

Between 1980 and 1982, plaintiff made substantial profits from commodities trading, but did not file Federal income tax returns for those years. In 1983, the Internal Revenue Service (IRS) began an investigation of plaintiff, and in May 1983, served a summons on the school district for the disclosure of plaintiff’s financial and employment records. In 1986, a grand jury of the United States District Court for the Southern District of Illinois indicted plaintiff on three felony counts of tax evasion (26 U.S.C. §7201 (1986)), and three misdemeanor counts of failure to file tax returns (26 U.S.C. §7203 (1986)), for the years 1980, 1981, and 1982.

On the date of the indictment, the United States District Court issued a warrant for plaintiff’s arrest and the clerk telephoned plaintiff and told him that he was required to appear at his arraignment set for April 8, 1986. Plaintiff did not appear for arraignment, instead sending notice to the court that it had no jurisdiction of the subject matter or of him personally. Additionally, plaintiff sent to the court documents attempting to renounce his United States citizenship, claiming that the existing United States government and its IRS was a foreign, illegitimate and defacto government.

Upon plaintiff’s failure to appear for his arraignment on April 8, 1986, the United States District Court ordered him arrested. When plaintiff refused to submit voluntarily, United States marshals were forced to place him in shackles and take him into custody.

On April 10, 1986, plaintiff entered a plea of not guilty and was released on bond. On April 24 and May 1, 1986, plaintiff appeared in United States District Court and stated that he did not understand the charges against him. On May 1, 1986, following a hearing on the Federal government’s motion requesting a competency hearing on plaintiff, he was sent to the Federal Bureau of Prisons’ mental facility in Springfield, Missouri, for psychiatric examination and a determination of his competency to stand trial. The court ordered that the examination be completed within 45 days. However, as a result of plaintiff’s refusal to cooperate, on June 10, 1986, the Federal government was forced to make a motion for an additional 30 days in which to complete the psychiatric examination. On August 5, 1986, the court, relying upon the psychiatric report submitted by the medical center in Springfield, Missouri, found plaintiff mentally competent to stand trial.

Plaintiff appeared in United States District Court on January 30, 1987, for the purpose of entering a plea agreement that his counsel had negotiated with the Federal government. However, at this hearing, plaintiff refused to be sworn and intimated that he would not attend his trial scheduled for March 2, 1987. Plaintiff also became passively resistant by refusing to leave the courtroom voluntarily. As a result, the court directed United States marshals to remove plaintiff from the courtroom and place him in custody. Plaintiff was taken to the Williamson County jail, where he engaged in a hunger strike for some period of time.

On February 12, 1987, plaintiff was released from custody and transferred to the psychiatric unit at the Richland County Memorial Hospital in Olney, where he was treated on an in-patient basis by Dr. David Siddens, a clinical psychologist. In an April 12, 1987, letter to Judge James Foreman of the United States District Court, plaintiff apologized for his behavior and disavowed the documents he filed with the court on April 8, 1986. Plaintiff was released from the hospital on April 27, 1987, and continued to be treated on an out-patient basis by Dr. Siddens.

On April 29, 1987, plaintiff pled guilty to three misdemeanor counts of failure to file income tax returns for the years 1980, 1981, and 1982. In return, the Federal government agreed to dismiss the three felony counts of income tax evasion. As a result of plaintiff’s guilty plea, the court imposed a sentence that included the following: (1) five years’ probation, (2) the immediate payment of $100,000 to be applied to taxes due, (3) the payment of $25,000 in six months if the IRS determination of amounts due had not been made, (4) payment of all taxes due, plus penalties and interest, as determined by the IRS, (5) continued professional counseling, and (6) a prohibition on plaintiff’s engaging in the teaching profession during his five-year term of probation. Plaintiff could petition the court for eligibility to return to the teaching profession prior to the next school year and, indeed, in August 1987, the court removed this condition of plaintiff’s probation.

Several local and area newspapers as well as area radio and television stations had reported on the progress of the court proceedings and plaintiff’s unusual behavior from the date of the indictment. After plaintiff pled guilty, news of his actions, conviction and sentence was also publicized throughout the school district and the surrounding community.

Pursuant to section 24 — 12 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 24 — 12), which governs the removal or dismissal of teachers in contractual continued service, the Board approved a motion on May 20, 1987, effective June 19, 1987, dismissing plaintiff for incompetency, negligence, immorality and other sufficient cause. (See Ill. Rev. Stat. 1987, ch. 122, par. 10 — 22.4.) Plaintiff requested a hearing, which was conducted on August 26-28, 1987, before Peter Feuille, a hearing officer selected by the parties and appointed by the Illinois State Board of Education pursuant to section 24 — 12. After both sides had submitted briefs, the hearing officer, on November 3, 1987, issued his “Findings of Facts and Decisions,” which sustained the Board’s dismissal of plaintiff. Although the hearing officer concluded that the Board had failed to establish the charge of negligence, he found that “an ample preponderance of the evidence supports the teacher’s dismissal for reasons of incompetency, immorality, other sufficient cause, and [the] best interests of the school.” The hearing officer further found that the offending conduct was not caused by a temporary mental illness or distress and was not remediable.

Under section 3 — 110 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110), the findings and conclusions of an administrative hearing officer on questions of fact are considered to be prima facie true and correct. Only if the findings are against the manifest weight of the evidence can they be set aside. (Massie v. East St. Louis School District No. 189 (1990), 203 Ill. App. 3d 965, 971; Board of Education v. Box (1989), 191 Ill. App. 3d 31, 37, 547 N.E.2d 627, 630.) The mere fact that an opposite conclusion is reasonable or that a reviewing court might have ruled differently does not justify reversal of the administrative findings and decision. (Fadler v. Illinois State Board of Education (1987), 153 Ill. App. 3d 1024, 1026, 506 N.E.2d 640, 642.) Plaintiff first takes issue not with the findings themselves, but with their legal effect, i.e., whether these findings constituted cause for dismissal.

No tenured school teacher may be removed from employment except for cause. (See Ill. Rev. Stat. 1987, ch. 122, par. 10 — 22.4; Fadler, 153 Ill. App. 3d at 1026, 506 N.E.2d at 642.) “Cause” to justify dismissal has been defined as: “some substantial shortcoming which renders continuance in employment detrimental to discipline and effectiveness of service; something which the law and sound public opinion recognize as a good reason for the teacher to no longer occupy his position.” (153 Ill. App. 3d at 1026-27, 506 N.E.2d at 642-42; see also Chicago Board of Education v. Payne (1981), 102 Ill. App. 3d 741, 747, 430 N.E.2d 310, 314-15.) Although no Illinois case specifically addresses whether a teacher’s failure to file income tax returns is sufficient cause to justify dismissal, Illinois courts have recognized that criminal conduct by a teacher diminishes his effectiveness and warrants dismissal.

In Payne, a case closely analogous to the case at bar, a teacher was arrested for, and pled guilty to, possession of marijuana for which he received a sentence of probation. This information came to the attention of school officials as a result of a newspaper article published upon a second arrest of the teacher for possession of marijuana and a controlled substance. As in the present case, the criminal conduct in Payne did not involve students or occur on the school’s premises. With respect to the sufficiency of the evidence to establish cause for dismissal, the court in Payne stated:

“[A] teacher’s actions are subject to much greater scrutiny than that given to the activities of the average person. We do not doubt that knowledge of a teacher’s involvement in illegalities such as possession of marijuana would have a major deleterious effect upon the school system and would greatly impede that individual’s ability to adequately fulfill his role as perceived by the Board.” 102 Ill. App. 3d at 748, 430 N.E.2d at 315.

Other cases have reached similar results. In Scott v. Board of Education (1959), 20 Ill. App. 2d 292, 156 N.E.2d 1, a teacher’s dismissal for two public intoxication arrests was upheld where the court found the incidents were publicly known and not in keeping with the dignity and leadership the board desired from teachers. In McBroom v. Board of Education of District No. 205 (1986), 144 Ill. App. 3d 463, 494 N.E.2d 1191, the court upheld a teacher’s dismissal for the theft of a student’s $290 check, finding that her credibility and effectiveness in teaching students honesty and ethical values was substantially impaired as a result of her misconduct and notoriety in the community.

In the case at bar, Board witnesses testified that teachers, administrators, parents and school children had lost respect for plaintiff, and that the publicity surrounding his criminal case and his behavior during its pendency had harmed the school’s reputation. Thus, the record supports the hearing officer’s finding that

“the Teacher’s totality of conduct, including his criminal conviction for failure to file income tax returns and his post-indictment behavior connected with this tax case, have sufficiently harmed the Teacher’s reputation and credibility, and have sufficiently damaged the respect and esteem in which the Teacher is held by his coworkers and other members of the school community, that he has had an adverse effect on the school and thus he can no longer serve as an effective Teacher in this District. In particular, he can [no] longer serve as an effective or credible role model for students, especially for instilling such desirable societal values as honesty and patriotism.”

Following the court’s reasoning in Payne, Scott, and McBroom, we conclude that plaintiff’s criminal conduct and its surrounding circumstances constitute sufficient cause to warrant dismissal.

Plaintiff next argues that his post-indictment conduct cannot be cause for dismissal where it resulted from a severe psychiatric condition. Section 10 — 22.4 of the School Code, on which plaintiff relies, creates an exception to the Board’s authority to dismiss a teacher, stating: “Temporary mental or physical incapacity to perform teaching duties, as found by a medical examination, is not a cause for dismissal.” (Ill. Rev. Stat. 1987, ch. 122, par. 10 — 22.4.) However, where plaintiff did not meet his burden of proof to establish a temporary mental incapacity or to show that he was dismissed because of that incapacity, the exception does not apply. See deOliveira v. State Board of Education (1987), 158 Ill. App. 3d Ill. 122, 511 N.E.2d 172, 180.

Section 10 — 22.4 requires that any temporary mental incapacity be found and determined by a medical examination. (Ill. Rev. Stat. 1987, ch. 122, par. 10 — 22.4.) Plaintiff fails to establish his temporary mental incapacity under the statute in that he submitted no report or testimony by a psychiatrist or other medical doctor to document his condition. Plaintiff’s treating psychologist, Dr. Siddens, did testify that plaintiff had suffered from a mental illness, which he described as “[a] personality disturbance with depressive and obsessive compulsive features,” which began in early adolescence. However, as defendant suggests, Dr. Siddens never claimed to have had any medical training or degree.

However, even if Dr. Siddens’ diagnosis were acceptable under the statute, plaintiff has failed to establish that his condition made him incapable of performing his teaching duties or that he was dismissed because of that incapacity. Both Dr. Siddens and plaintiff himself testified that his condition allowed him to function normally at school. Furthermore, the Board did not dismiss plaintiff for his mental condition but for his incompetency, immorality, other sufficient cause and the best interests of the school. Plaintiff does not claim that his mental condition excused his criminal conduct and, indeed, Dr. Siddens testified that although plaintiff was mentally disturbed, he was nevertheless accountable for failing to file tax returns. Thus, we agree with the hearing officer’s finding that the “conduct which resulted in the Teacher’s dismissal was not caused by a temporary mental illness or distress.”

Plaintiff’s third and final contention is that the hearing officer erred in concluding that his conduct was not remediable. This finding was significant because if conduct is remediable, the teacher is entitled to a written warning before being dismissed. Without such a warning, the Board is deprived of jurisdiction to terminate a teacher’s employment for the causes given. On the other hand, if the teacher’s conduct is irremediable, no written warning is required before dismissal action is initiated. Fadler, 153 Ill. App. 3d at 1028, 506 N.E.2d at 643.

The test for determining whether conduct is irremediable as established in Gilliland v. Board of Education of Pleasant View Consolidated School District No. 622 (1977), 67 Ill. 2d 143, 153, 365 N.E.2d 322, 326, is (1) whether damage has been done to the students, faculty or school, and (2) whether the conduct resulting in that damage could have been corrected had the teacher been warned. With respect to the first of these elements, there can be little doubt under the circumstances present here that the Board and the hearing officer could have concluded that plaintiff’s conduct was detrimental not only to his relationship with the students, but also to the reputation of and faith in the faculty and school as a whole. As this court recently stated in Massie, affirming a teacher’s dismissal for transporting two students to his home unchaperoned and permitting them to drink intoxicating beverages:

“In our society, public school teachers hold a special position of trust and moral leadership. Indeed, by statute they are obligated to inculcate their pupils* with the virtues of ‘honesty, kindness, justice and moral courage for the purpose of lessening crime and raising the standards of good citizenship.’ (Ill. Rev. Stat. 1987, ch. 122, par. 27 — 12.) To do what plaintiff did here is completely contrary to these principles.” Massie, 203 Ill. App. 3d at 957.

Plaintiff contends that his dismissal was nevertheless improper because the Board failed to establish that the conduct resulting in the damage could not have been corrected had plaintiff been warned. Specifically, plaintiff argues that the Board should have warned plaintiff to “clear up the situation quietly or else risk his job” when it first became aware of the IRS investigation into plaintiff’s financial affairs in 1983. This contention is wholly untenable.

First, the Board did not know of any misconduct by plaintiff in 1983. It knew only that the IRS was requesting information and could not assume that plaintiff was guilty of a crime. Second, regardless of whether the conduct was remediable in 1983, it was certainly not remediable after plaintiff was convicted and the conviction and plaintiff’s attendant conduct were well publicized.

It has been held that the second prong of the remediability test is inapplicable to situations involving the criminal conduct of a teacher. (McBroom, 144 Ill. App. 3d at 473, 494 N.E.2d at 1198.) We are not dealing here with simple deficiencies in teaching or differences in methods of punishment. Plaintiff’s conduct has no legitimate basis in our society, and to claim that it was remediable distorts the thrust and purpose of the rule. (See McBroom, 144 Ill. App. 3d at 474, 494 N.E.2d at 1198.) Where plaintiff can no longer function as a role model to impart basic societal values and qualities of good citizenship to his students, his conduct is irremediable.

For the foregoing reasons, we hold that the circuit court was correct in sustaining the hearing officer’s order of dismissal of plaintiff as a teacher in Lawrenceville Unit School District No. 20. Accordingly, the judgment of the circuit court of Lawrence County is affirmed.

Affirmed.

RARICK and HOWERTON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    MARTHA WASHINGTON, as Parent, Guardian and Next Friend of Glennet Washington, a Minor, Plaintiff-Appellant, v. CHICAGO BOARD OF EDUCATION, Defendant-Appellee.
    First District (6th Division)
    No. 1 — 89—1862
    Opinion filed September 28, 1990.
    Rehearing denied November 21,1990.

      Schneider & Schneider, P.C., of Chicago, for appellant.
    Boyd & Warlick, P.C., of Chicago (T. Lee Boyd, Jr., of counsel), for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Glennet Washington, was a student at the Sawyer Elementary School and was injured when she slipped on some ice while using a stairway in the school. Through her mother, Martha Washington, she filed a complaint for damages against the Chicago Board of Education (the Board). The defendant filed a motion to dismiss supported by a memorandum in which it maintained that under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 105) a school district may not be held liable for any injuries suffered as a result of weather conditions including the accumulation of ice. The defendant also filed a reply memorandum in which it contended that the plaintiff had failed to plead sufficient facts which would establish a claim for willful and wanton misconduct on the part of the Board.

The judge dismissed the complaint with prejudice on the ground that the claim was barred under the Tort Immunity Act. He did not pass on the question of whether the complaint alleged sufficient facts to establish willful and wanton misconduct on the part of the Board. In this court, the Board urges that the dismissal order be affirmed on both grounds, that is, the failure of the complaint to state a cause of action for willful and wanton misconduct and the fact that the claim is barred under the Tort Immunity Act. The plaintiff contends that the complaint was sufficient and that the Tort Immunity Act does not apply. We emphasize that she makes no argument that she should have been permitted to amend the complaint.

Before discussing the complaint itself, it is appropriate to set forth the applicable law governing liability of schools for injuries suffered by students because of the condition of school property or because of actions by agents of school districts. First, the supreme court has enunciated the rule that school districts may be held liable for injuries to students only if the school district was guilty of willful and wanton misconduct. (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705.) Second, a school district, like any other public entity, is not liable for injuries caused by a natural accumulation of ice or snow, even though it had knowledge that the accumulation caused a dangerous condition. (See Wolter v. Chicago Melrose Park Associates (1979), 68 Ill. App. 3d 1011, 386 N.E.2d 495.) We have determined that we need not discuss the applicability of the Tort Immunity Act since we believe that the complaint was properly dismissed for failure to state a cause of action for willful and wanton misconduct.

The plaintiff’s amended complaint alleges the following in a single count:

The Board owned and operated Sawyer Elementary School. A stairway located at the back of the school was used by the students as a main door for ingress and egress during the lunch recess. The Board had a duty to use reasonable care in supervising the students, including the minor plaintiff, in using its property, so as to insure that the property was in a reasonably safe condition for foreseeable use by people exercising ordinary care.

At the defendant’s direction and while using ordinary care, the plaintiff left the school using the back stairway on which ice had formed in a dangerous and conspicuous manner. The icy condition made the stairway unsafe for careful use and existed for a sufficient length of time so that the defendant knew or should have known of the dangerous condition and could have remedied or otherwise protected the children from the danger. In descending the stairs, the plaintiff slipped on the icy condition and fell to the ground sustaining grievous injuries.

The defendant intentionally breached its statutory duty to supervise the children and provide for their safety by the following willful and wanton acts or omissions:

“(a) wilfully and wantonly, with reckless disregard for the safety of the students at Sawyer School, failed to adequately supervise the students, including plaintiff, by directing the students to exit the school for lunch recess by means of the aforesaid stairway upon said premises, where upon [sic] said stairway there existed a dangerous, conspicuous and icy condition, not safe for careful usage, when said condition had so existed for a sufficient length of time for defendant to have remedied or warned against such condition;
(b) wilfully and wantonly, with reckless disregard for the safety of the students at Sawyer School, including plaintiff herein, failed to inspect the aforesaid stairway then and there existing upon its premises, where in the exercise of reasonable care, said defendant knew or should have known the defendant would direct the aforesaid students to use the stairway to exit said premises for lunch recess, where said stairway was not safe for careful usage due to the conspicuous and dangerous icy condition that had so existed for a sufficient length of time for defendant to have remedied or warned against such condition.” (Emphasis added.)

The definition of willful and wanton negligence, which has been repeatedly cited by courts of this State, was enunciated in Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 583, 69 N.E.2d 293, 300, as follows:

“A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care. [Citations.]”

In determining the legal sufficiency of a complaint, it is our duty to take all well-pleaded facts as true and view the factual allegations in the complaint in the light most favorable to the plaintiff. It is also our duty to disregard mere conclusions of law which are unsupported by the facts alleged. (Pollack v. Marathon Oil Co. (1976), 34 Ill. App. 3d 861, 341 N.E.2d 101.) Our first task, therefore, is to identify the conclusions in the complaint. To begin, the mere allegation that the acts were done willfully and wantonly is conclusional. (See Booker v. Chicago Board of Education (1979), 75 Ill. App. 3d 381, 394 N.E.2d 452.) So also is the bare allegation that the stairs were unreasonably dangerous. (See Ramos v. Waukegan Community Unit School District No. 60 (1989), 188 Ill. App. 3d 1031, 544 N.E.2d 1302.) And so also is the allegation that the Board knew or should have known of the dangerous condition of the stairs. (See Majewski v. Chicago Park District (1988), 177 Ill. App. 3d 337, 532 N.E.2d 409.) On this point, Woodson v. North Chicago Community School District No. 64 (1989), 187 Ill. App. 3d 168, 543 N.E.2d 290, is instructive. The plaintiff was injured when he tripped over a hurdle while running a relay race. The complaint alleged that the equipment was deficient because safety padding and protective devices were not provided; that the plaintiff tripped over a hurdle and was injured; that his injuries were the “foreseeable and predictable result of a fall during a hurdle race being run in a gymnasium and were the common and severe result of tripping over a hurdle”; and that the injuries were of the type which “might commonly be expected to result” from a failure to provide appropriate safety equipment. The appellate court held that those allegations were conclusions. 187 Ill. App. 3d at 173.

We judge that the allegations that the equipment was defective and that the injury was the foreseeable and predictable result of a fall which might commonly be expected to result from a failure to provide appropriate safety equipment are the equivalent of allegations that the defendant knew or should have known of the inadequacy of the safety equipment provided.

Stripped of all of the conclusions alleged, the factual allegations of the complaint in this case are reduced to the fact that the plaintiff was injured on the school stairway during noon recess on a school day; that the defendant directed the students to exit the school by means of the stairway; that the stairs were in an icy condition; and that the defendant failed to inspect the stairway. In our judgment, the allegations of the complaint, at best, establish a claim for ordinary negligence.

Two cases illustrate the deficiencies in the complaint. In Woodson v. North Chicago Community School District No. 64 (1989), 187 Ill. App. 3d 168, 543 N.E.2d 290, the appellate court affirmed the dismissal of a complaint and noted the complete absence of any allegations as to the height of the hurdles, the number of hurdles the plaintiff was required to jump over; the number of hurdles he jumped over; the spacing between the hurdles; whether the race required the students to perform another maneuver, such as running through tires, before encountering another hurdle; whether the race took place at a training session in which tripping on the hurdle would be expected; nor did the complaint allege that the plaintiff was too short to surmount a hurdle safely.

In Ramos v. Waukegan Community Unit School District No. 60 (1989), 188 Ill. App. 3d 1031, 544 N.E.2d 1302, the complaint alleged that the plaintiff, a 10-year-old elementary school child, was injured because of a cracked and uneven sidewalk which was in an “unreasonably dangerous condition.” The appellate court upheld the trial court’s dismissal of the complaint alleging willful and wanton misconduct:

“These counts state that the sidewalk was in an unreasonably dangerous and hazardous condition, but do not contain allegations of fact showing why it was unreasonably dangerous. While the amended complaint alleged that the sidewalk was cracked and uneven, it does not state facts showing why this cracked and uneven sidewalk was unreasonably dangerous or that defendants knew or should have known of its condition. For instance, the sidewalk may have had a hairline crack, which would not be actionable as slight inequalities or other minor defects in a sidewalk are not actionable. [Citation.] If plaintiff’s complaint had alleged, and described, that the sidewalk had a substantial unevenness of its surface, it may have demonstrated that defendants acted intentionally or with a reckless disregard for the safety of others by directing children to play there. [Citation.]” (Emphasis added.) 188 Ill. App. 3d at 1038.

For comparison purposes, we refer to Hadley v. Witt Unit School District 66 (1984), 123 Ill. App. 3d 19, 462 N.E.2d 877 (complaint stated a cause of action where an instructor failed to direct a student to wear safety glasses after observing him engage in the obviously dangerous task of hammering a piece of scrap metal through a hole in an anvil); and Scarano v. Town of Ela (1988), 166 Ill. App. 3d 184, 520 N.E.2d 62 (complaint sufficient because it alleged that other children had fallen from a slide which was over six feet high, had no handrail between its parallel steps, had steps, a platform and handrails that were worn and smooth, had loose handrails around the platform, had exposed metal and concrete footings and was situated above a packed dirt and stone surface on other occasions. The complaint also alleged that the defendant knew of the previous incidents).

We believe the shortcomings noted in Woodson and Ramos are comparable to the shortcomings in the pleadings in this case. The plaintiff has failed to plead any facts to indicate why the icy condition was dangerous or conspicuous or why it was not safe for careful use. The allegedly icy condition could have been a small patch of ice on a single step or a sheet of ice completely covering each step. Without some description of the nature and extent of the ice, there are no facts from which we can conclude that the plaintiff was subjected to a high probability of harm.

We are not unmindful of the difficulties facing a pleader in distinguishing between ultimate facts and conclusions and between pleading too much and too little. (See 3 R. Michael, Illinois Practice, Civil Procedure Before Trial, §23.4 at 307-14 (1st ed. 1989).) But recognition of the difficulties does not justify our departure from the rule that Illinois is a fact-pleading jurisdiction. We repeat that the plaintiff made no attempt to amend the complaint in spite of the fact that the defendant raised the issue of the sufficiency of the complaint. In this court, the plaintiff has not answered the cases cited by the defendant.

We conclude, therefore, that the complaint failed to allege a cause of action for willful and wanton misconduct. In view of the position we take, it is unnecessary for us to pass on whether or not the claim is also barred under the Tort Immunity Act. A reviewing court may affirm a dismissal of a complaint on any grounds which are supported by the record, regardless of whether the trial court relied on those grounds or whether the trial court’s reasoning was correct. Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 527 N.E.2d 303.

For these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

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


author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD NAVARRO, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 88—1803
    Opinion filed September 28, 1990.
    Rehearing denied November 19, 1990.

      Louis B. Garippo, Susan G. Feibus, and Thomas A. Moore, all of Louis B. Garippo, Ltd., of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and James S. Yeldman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

On May 26, 1988, Gerald Navarro (Navarro) was convicted of delivery of more than 30 grams of a controlled substance (Ill. Rev. Stat. 1983, ch. 56V2, par. 1401 (a)(2)) and sentenced to six years in the custody of Illinois Department of Corrections. Navarro appeals his conviction and sentence.

Navarro was indicted and initially tried in a bench trial with two codefendants, James Geraldi and Michele Carone. Geraldi and Navarro were found guilty at the bench trial but Carone’s motion for a directed verdict was granted.

Navarro retained new counsel who filed a supplemental motion for a new trial alleging ineffective assistance of counsel. The motion was granted.

Prior to the retrial Navarro attempted to waive a jury. Based on the then State statute the State invoked its then right to a jury trial in criminal cases (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 1). The trial court rejected Navarro’s jury waiver. Navarro’s retrial before a jury resulted in a guilty verdict and the imposition of a six-year sentence. The State concedes Navarro must be retried since the Illinois Supreme Court held in People ex rel. Daley v. Joyce (1988), 126 Ill. 2d 209, 533 N.E.2d 873, that the statute giving the State a right to a jury in a criminal matter was unconstitutional. Subsequently, the Illinois Supreme Court held that the Joyce decision should be applied retroactively. People v. Gersch (1990), 135 Ill. 2d 384, 553 N.E.2d 281.

However, in addition to that issue, Navarro raises the issues of double jeopardy, whether the trial court erred when it admitted hearsay statements of a codefendant and whether the trial court erred when it refused a jury instruction. Since reversal of the conviction is necessary, we address only the double jeopardy issue. The other errors, if any, are evidentiary in nature and the failure to instruct. If retrial is necessary it is assumed that those errors, if errors at all, will be corrected.

The nub of Navarro’s double jeopardy issue is the fact that after the initial bench trial the trial court granted Navarro’s motion for a new trial and then held a jury trial that ended with a finding of guilty. Navarro contends that in light of the court’s statements which questioned the outcome of defendant’s trial, the trial court effectively expressed a reasonable doubt as to defendant’s guilt.

Illinois criminal law precludes a retrial of a defendant in cases among others where there was a determination in the former trial that the evidence was insufficient to warrant a conviction (Ill. Rev. Stat. 1989, ch. 38, par. 3 — 4(a)(1)) or where in setting aside, reversing or vacating a conviction, “the defendant was thereby adjudged not guilty.” (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 4(d)(2).) Neither situation exists in the present case. Therefore, we reject Navarro’s argument and reverse and remand as required by People ex rel. Daley v. Joyce (1988), 126 Ill. 2d 209, 533 N.E.2d 873.

Navarro alleges that although the trial court granted a new trial based upon ineffectiveness of counsel rather than evidence insufficiency, the trial court’s comments supported a factual finding that the evidence at trial was insufficient. Navarro refers to statements made by the trial court when granting the new trial. The trial court specifically stated:

“It is possible and in fact, perhaps well I won’t say likely, but certainly possible the result would have been different had those attorneys prepared in a suitable manner or had some other attorneys prepared in a suitable manner.”

Navarro also refers to the trial court’s comment that the case against Navarro was a “close case” and that the court had given “this matter some thought for days afterwards.”

The trial judge applied the standard set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and ordered a new trial for Navarro due to the ineffective assistance of his initial counsel. The trial court did not order the new trial due to a lack of evidence or an adjudication that Navarro was not guilty. Illinois’ concepts of double jeopardy do not prohibit a new trial where the procedure in the initial trial was flawed by the ineffective assistance of counsel; if they did, any defendant no matter how guilty could escape a retrial by his or her attorney feigning incompetency. If such were the situation, any counsel who defended an accused who was guilty beyond a reasonable doubt would have to be incompetent in order to satisfy the constitutional mandate of effective assistance of counsel.

Neither under the State nor Federal constitution nor any Illinois statute is the State precluded from retrying a defendant based on a trial error rather than evidentiary error. (People v. Fierer (1990), 196 Ill. App. 3d 404, 553 N.E.2d 807; Burks v. United States (1978), 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141.) To hold otherwise would be putting form over substance in criminal matters. In Burks the court noted that double jeopardy does not preclude retrial of a defendant where the reason for reversal is trial error, that is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, as distinguished from evidentiary insufficiency. The trial court’s decision to grant Navarro a new trial was based on the issue of the competency of his initial counsel, not the weight of the evidence. Had the trial court based its ruling in the first trial on the insufficiency of the evidence, the case against Navarro would have been concluded, no matter the correctness of the conclusion. Under our law Navarro is only entitled to a third bite on the apple of innocence, not the right to swallow it. If there were divine constitutional rights of due process, Adam and Eve, and maybe the rest of us, would still be in the Garden of Eden.

We reverse and remand for a new trial assuming that at the third trial Navarro’s rights, including the requirement that his guilt be established with proper evidence and beyond a reasonable doubt, be zealously protected. '

Reversed and remanded.

COCCIA, P.J., and GORDON, J., concur.


author: JUSTICE McCULLOUGH

text:
    PRECISION UNIVERSAL JOINT, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Fernando Sanchez, Appellee).
    First District (Industrial Commission Division)
    No. 1—89—1752WC
    Opinion filed June 29, 1990.
    Rehearing denied November 27,1990.

      Sonnenschein, Carlin, Nath & Rosenthal, of Chicago (Alan M. Posner and Sanford M. Pastroff, of counsel), for appellant.
    Karlin & Fleisher and David A. Novoselsky & Associates, both of Chicago (Theodore A. Gilbert, David A. Novoselsky, and Tammy A. Koester, of counsel), for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant filed an application for adjustment of claim for a back injury. The case was heard before the arbitrator ex parte because no one appeared on behalf of respondent. The arbitrator issued a decision awarding benefits. The decision recited, among other things, that timely notice of the accident was given to the respondent. That finding was based on a “stipulation” sheet prepared by claimant’s attorney and admitted by the arbitrator at the hearing.

Approximately six months later respondent filed a petition for review of the arbitrator’s decision after claimant filed suit in circuit court to enforce the award. Respondent contended the arbitrator lacked personal jurisdiction over it because respondent had never received any notice that workers’ compensation proceedings had been initiated by claimant or ruled upon by the arbitrator. Alternatively, respondent argued the arbitrator lacked subject-matter jurisdiction because the record did not establish claimant had given respondent notice of the accident within the 45-day period following the injury.

The Industrial Commission (Commission) conducted lengthy evidentiary hearings, which were limited principally to the question of whether respondent had received notice of the filing of the application for adjustment of claim, notice of hearing before the arbitrator, and notice of the arbitrator’s decision. Upon the evidence presented, the Commission concluded it had personal jurisdiction over respondent because the requisite notices had been provided. Therefore, the Commission dismissed the petition for review as untimely.

Respondent sought review in the circuit court and again raised the issues of lack of both personal and subject-matter jurisdiction. Claimant responded by filing a motion to dismiss the petition for review. The circuit court affirmed the Commission’s determination it had personal jurisdiction over respondent. Although it agreed with respondent that it was entitled to raise the issue of subject-matter jurisdiction, on the merits, the circuit court examined respondent’s evidence in support of its claim and concluded adequate notice of the injury was provided by claimant. Accordingly, the circuit court confirmed the decision of the Commission dismissing the petition for review as untimely because it was not filed within 15 days after the arbitrator’s decision. Respondent appeals.

On appeal respondent has abandoned any claim the Commission lacked personal jurisdiction over it. Without recounting the evidence, it is sufficient to state that there was substantial testimony supporting the finding that agents of respondent received notice of the filing of the application for adjustment of claim and all subsequent notices pertinent to this proceeding including the arbitrator’s decision.

Respondent contends, however, the record fails to establish subject-matter jurisdiction on the theory there was no evidence showing claimant reported the injury to respondent within 45 days after the accident. We disagree.

Claimant was awarded compensation by the arbitrator on September 16, 1985. Under section 19(b) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(b)) the time for any review taken to the Commission is 15 days and, in the absence of fraud, the arbitrator’s decision is conclusive and becomes the decision of the Commission. In this case, respondent did not appear or defend at arbitration, nor was any appeal taken to the Commission within the requisite time period.

The arbitrator made a specific finding in its decision that notice of the injury had been given in timely fashion based on a representation by claimant’s counsel to that effect in the “stipulation” sheet. This exhibit was admitted without objection when respondent did not appear and defend at the arbitration hearing.

While we agree that the supreme court has held the giving of notice under section 6(c) (Ill. Rev. Stat. 1987, ch. 48, par. 138.6(c)) is jurisdictional and a prerequisite to the right to maintain a proceeding under the Act (Ristow v. Industrial Comm’n (1968), 39 Ill. 2d 410, 235 N.E.2d 617), we cannot agree with respondent’s contention the record wholly fails to support the finding of the arbitrator that notice was adequately given.

In the first instance, there is nothing to support a charge of fraud perpetrated against the arbitrator and no such claim has been made. Furthermore, the arbitrator’s finding was based on some evidence, namely the unrebutted representation in the “stipulation” sheet and in the application for adjustment of claim that timely notice had been given to respondent. Therefore, the record is not devoid of any evidence to support the finding.

Respondent’s attempt to present additional evidence contesting the issue of notice is unavailing. The purpose of presenting additional evidence is to take testimony not offered at the original hearing because it was not available at that time. Additional review is not to be granted to a party who, being informed as to each step in the proceeding, thereafter declines to defend and, after the cause goes against it, offers a defense. Had the issue of the sufficiency of the notice been raised at the arbitration hearing, claimant would have had an opportunity to present additional evidence to support his position beyond the unrebutted representation notice had been given. In the absence of an objection, appearance, or any indication respondent sought to contest this point, claimant was not obligated to present more when, in the discretion of the arbitrator, additional proof was not required.

A party properly notified of an application for benefits, who sits back, fails to appear at the arbitration hearing, fails to file a timely review proceeding, in the absence of fraud, cannot complain that the arbitrator’s finding of fact as to notice of injury is not correct.

While we conclude the trial court erred in considering additional evidence presented by respondent beyond that contained on the face of the record from the arbitration proceeding, the conclusion of the trial court was the correct one. The record before the arbitrator supports the finding that adequate section 6(c) notice was given. Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

BARRY, P.J., and McNAMARA, WOODWARD, and LEWIS, JJ., concur.


author: JUSTICE SCARIANO

text:
    B.C. et al., Plaintiffs-Appellants, v. J.C. PENNEY COMPANY, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—88—0453
    Opinion filed September 18, 1990.
    Rehearing denied November 16,1990.

      Donald A. Shapiro and David A. Statham, both of Donald A. Shapiro, Ltd., of Chicago, for appellants.
    Kiesler & Berman, of Chicago (Edward L. Cooper, of counsel), for appellee Maggio Construction Co.
    Keevers & Hittle, of Chicago (Dawn A. Himley, of counsel), for other appellees.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff B.C. was abducted from the parking lot of the River Oaks Shopping Center in Calumet City and taken to a nearby construction site within the center, where she was beaten and raped. She filed a complaint charging defendants with negligence, after which the trial court granted motions to dismiss filed by defendants-appellees J.C. Penney Company, Inc., J.C. Penney Properties, Inc. (collectively, Penney), and Maggio Construction Company (Maggio). We affirm.

B.C. was shopping in a store in the River Oaks Shopping Center at approximately 8 p.m. on March 8, 1985. On returning to her car in the parking lot, she was threatened by a man with a knife, who forced her to drive to a construction site within the shopping center. Defendant J.C. Penney Properties, Inc., had leased the property from the shopping center, and defendant J.C. Penney, Inc., was the owner of the store under construction pursuant to a contract with defendant Maggio Construction Company. A wire fence surrounded the construction area, but the gate had been left unlocked. Plaintiff was forced inside and assaulted.

Plaintiff filed an original and four amended complaints. Count I of the fourth amended complaint charges all defendants with negligence in failing to maintain proper security in the parking lot and at the construction site. The complaint further alleges that defendants knew or should have known of a history of prior violent attacks in the shopping center parking lot, and that defendants had negligently failed to lock the gate of the construction site and to provide adequate lighting at the site. Count III contends plaintiff was a third-party beneficiary to the construction contract between Maggio and Penney, which required that Maggio take measures to properly secure the construction site. Counts II and IV are loss of consortium claims asserted by plaintiff’s husband.

On June 18, 1987, the trial court granted Penney’s motion for judgment on the pleadings and Maggie’s motion to dismiss, basing her ruling on the absence of foreseeability, and making no reference to plaintiff’s third-party beneficiary argument. The order included a Supreme Court Rule 304(a) finding (107 Ill. 2d R. 304(a)). Plaintiff’s motions for reconsideration and for leave to file a fifth amended complaint were denied on January 8, 1988. This appeal was taken from the orders of June 18,1987, and January 8, 1988.

I.

THE CASE AS TO PENNEY

Our standard of review is well defined and well established: in ruling on the propriety of a grant of judgment on the pleadings, all well-pleaded facts in the complaint are assumed to be true. (Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 552-53, 359 N.E.2d 113, 117.) Further, the motion “draws all fair inferences from the respondent’s pleadings[,] and contemplates that the moving party is entitled to judgment as a matter of law.” Baker-Wendell, Inc. v. Edward M. Cohon & Associates, Ltd. (1981), 100 Ill. App. 3d 924, 927, 427 N.E.2d 317, 319.

Under Illinois law, the general rule is that one does not owe a duty to protect another from the criminal acts of third parties unless the plaintiff and defendant are in one of a small number of special relationships set forth in section 314A of the Restatement (Second) of Torts (1965): common carrier-passenger, innkeeper-guest, possessor of land-invitee, and custodian-person in lawful custody. (Rowe v. State Bank (1988), 125 Ill. 2d 203, 531 N.E.2d 1358; Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538; Zimring v. Wendrow (1985), 137 Ill. App. 3d 847, 485 N.E.2d 478; Hosein v. Checker Taxi Co. (1981), 95 Ill. App. 3d 150, 419 N.E.2d 568.) We find that no special relationship exists between plaintiff and Penney in this case. Plaintiff argues the fact that she was a business invitee with respect to the shopping center means she must also be treated as Penney’s invitee, but this does not logically follow, nor does plaintiff cite any authority to support such a theory. On the contrary, a business invitee has been defined as one who enters the land of another by express or implied invitation, in connection with the other’s business or activities, with resulting mutual benefit to the other and the invitee. (Grimwood v. Tabor Grain Co. (1985), 130 Ill. App. 3d 708, 474 N.E.2d 920.) None of these factors is present in this case.

Plaintiff contends in the alternative that Illinois decisions have deviated from a strict application of the special relationship rule, and argues that all persons are under a duty to refrain from any action which facilitates a foreseeable criminal act. (Duncavage v. Allen (1986), 147 Ill. App. 3d 88, 497 N.E.2d 433, appeal denied (1987), 113 Ill. 2d 573, 505 N.E.2d 352; Stribling v. Chicago Housing Authority (1975), 34 Ill. App. 3d 551, 340 N.E.2d 47.) In Duncavage, the complaint alleged that a criminal’s .entry of an assaulted tenant’s apartment was facilitated by the landlord’s failure to properly light the exit area of the building, to remove a ladder stored by the landlord in the yard near the tenant’s window, and to properly maintain a lock on the window used to gain access to the apartment. A prior unrelated burglary had occurred in the same apartment under the same circumstances, a fact alleged to have been known to the landlord. The court discussed the policy underpinnings of the duty concept (147 Ill. App. 3d at 96, 497 N.E.2d at 437), and noted that imposing a duty of care on these facts would not be unduly burdensome (147 Ill. App. 3d at 97-98, 497 N.E.2d at 439). While the court determined that a duty arose from a landlord’s responsibility to maintain the common areas and from certain requirements of local building code ordinances, its holding that a duty could also be based on facilitating a reasonably foreseeable criminal act (147 Ill. App. 3d at 97-99, 497 N.E.2d at 438-39), although not strictly necessary to the opinion, would seem to depart from the special relationship rule.

A similar conclusion was reached in Stribling, where the plaintiffs’ apartment was burglarized on three occasions by persons breaking through the wall of an adjacent vacant apartment. Plaintiffs complained of the first two incidents to the landlord, but it failed to seal off the vacant premises. The court imposed a duty to protect against the second and third burglaries based solely on the foreseeability of these crimes, again without reference to the special relationship rule.

However, we must reject this analysis in light of the supreme court’s most recent third-party criminal assault case, which involved the issue of the defendant landlord’s duty to protect employees of its commercial tenant from criminal attacks. (Rowe v. State Bank (1988), 125 Ill. 2d 203, 531 N.E.2d 1358.) The court underscored the continued vigor of the special relationship rule, observing that it has “repeatedly held that the simple relationship between a landlord and a tenant, or a landlord and those on the premises with the tenant’s consent, is not a ‘special’ one imposing a duty to protect against the criminal acts of others.” (125 Ill. 2d at 216, 531 N.E.2d at 1364.) Plaintiffs in Rowe avoided the strictures of the special relationship rule only because they successfully argued that the landlord had negligently performed a voluntary undertaking to ensure that outstanding master keys were properly secured and accounted for. (125 Ill. 2d at 221-23, 531 N.E.2d at 1367-68.) Plaintiff argues the applicability of the voluntary undertaking theory with respect to the claim she asserts against Maggio, as will be seen in section IIA of this opinion, but she does not advance it in connection with the case she pleads against Penney.

Although the Rowe court noted the broad-based policy considerations involved in determining the existence of a legal duty (125 Ill. 2d at 227-28, 531 N.E.2d at 1369-70), and cited both Duncavage and Stribling with approval (125 Ill. 2d at 223, 531 N.E.2d at 1368), we do not deem it the determinative announcement of the demise of the special relationship rule that plaintiff urges us to recognize. See also Petrauskas v. Wexenthaller Realty Management, Inc. (1989), 186 Ill. App. 3d 820, 829, 542 N.E.2d 902, 908, appeal denied (1990), 128 Ill. 2d 671, 548 N.E.2d 1077 (“To impose a duty in this case would serve to greatly expand the scope of a landlord’s duty almost to the point of abolishing the general rule that a landlord has no duty to protect his tenants from the criminal acts of third persons”).

Moreover, even assuming that a policy-oriented duty analysis can override the special relationship rule in certain circumstances as suggested by Stribling and Duncavage, prior criminal activity in those cases had occurred on the defendant’s property, thus enhancing foreseeability, an important consideration in finding the existence of a legal duty. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 526, 513 N.E.2d 387, 396, cert, denied (1988), 485 U.S. 905, 99 L. Ed. 2d 236, 108 S. Ct. 1077; M. Polelle & B. Ottley, Illinois Tort Law 397 (1985).) In contrast, the complaint in this case alleges prior criminal acts occurring only in the shopping center parking lot, thus justifying retention of the case in the circuit court against defendant owners of the center, but we fail to apprehend how the same duty can be logically extended to apply to Penney and its contractor without imposing an intolerable burden on these defendants and all other persons similarly situated, and without expanding the concept of foreseeability well beyond its last frontier. Stribling and Duncavage are therefore distinguishable and would not sustain plaintiff’s position even if we applied the analysis of these decisions.

Plaintiff’s final attempt to obviate the rigors of the special relationship rule is predicated on the contention that the Calumet City Building Code imposes a duty on those constructing new buildings to properly secure the construction site. However, we need not address this issue on appeal since plaintiff failed to raise it before the trial court. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 324 N.E.2d 417; Tomaso v. Plum Grove Bank (1985), 130 Ill. App. 3d 18, 473 N.E.2d 588.

Accordingly, we hold that the trial judge here properly held as a matter of law that Penney owed plaintiff no duty of care on the facts of this case.

II.

THE CASE AS TO MAGGIO

A.

We next address plaintiff’s contention that Maggio breached a duty to exercise reasonable care. Our analysis is similar to that applied to plaintiff’s claims against Penney, and here, too, we conclude that the trial court did not err in its dismissal of Maggio.

Maggio’s motion to dismiss the fourth amended complaint was filed pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). Although the motion challenged primarily the legal sufficiency of the complaint and should consequently have been filed pursuant to section 2 — 615(a) of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615(a); Bescor, Inc. v. Chicago Title & Trust Co. (1983), 113 Ill. App. 3d 65, 66, 446 N.E.2d 1209, 1211; Moreno v. Joe Perillo Pontiac, Inc. (1983), 112 Ill. App. 3d 670, 445 N.E.2d 1184), we decline to permit that circumstance to inure to the benefit of plaintiff because Maggio’s invocation of an inapt motion has not prejudiced her case. (Compare Downers Grove Associates v. Red Robin International, Inc. (1986), 151 Ill. App. 3d 310, 502 N.E.2d 1053 (prejudice not demonstrated), with Eddings v. Dundee Township Highway Commissioner (1985), 135 Ill. App. 3d 190, 478 N.E.2d 888 (prejudice shown).) Accordingly, we shall treat the motion as a section 2 — 615 matter, and again accept all well-pleaded facts of the complaint and all reasonable inferences from them as true. Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 499, 520 N.E.2d 37, 38.

All of the arguments we have addressed above in connection with the operation of the special relationship rule in plaintiff’s claim against Penney, she raises also as to Maggio, but we find them to be of no more persuasive a resonance as to the one defendant than they were to the other. However, plaintiff advances the additional contention that Maggio voluntarily undertook to provide proper security measures at the construction site and was therefore required to exercise reasonable care in performing this undertaking. (Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596; see generally Figueroa v. Evangelical Covenant Church (7th Cir. 1989), 879 F.2d 1427.) This duty was allegedly breached when Maggio failed to lock the gate on the evening of March 8, 1985, and by Maggio’s failure to provide adequate lighting on the site.

Under Illinois law, an assumed duty can arise in two distinct contexts. (Pippin, 78 Ill. 2d 204, 399 N.E.2d 596.) The first is the voluntary assumption of a duty as stated in the Restatement of Torts section 323(1) (1934):

“One who gratuitously renders services to another, otherwise than by taking charge of him when helpless, is subject to liability for bodily harm caused to the other by his failure, while so doing, to exercise with reasonable care such competence and skill as he possesses.”

(See, e.g., Phillips v. Chicago Housing Authority (1982), 89 Ill. 2d 122, 431 N.E.2d 1038; Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769.) Thus, in Nelson, an insurance company that performed a number of gratuitous inspections of construction equipment owned by its insured was held to owe a duty of reasonable care to employees of the insured and to employees of subcontractors hired by the insured who were injured after an inspection failed to uncover an equipment defect.

Second, Illinois has also adopted section 324A of the Restatement (Second) of Torts (1965), which involves the situation where one party agrees to perform services for another which inure to the benefit of a third party:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”

See, e.g., Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 493 N.E.2d 1022.

The choice of one or the other of these two bases of liability can in some cases be a critical consideration because section 324A obviously imposes additional requirements not found under the Nelson analysis. In the case at bar, plaintiff has indiscriminately cited both lines of decisions, although her brief gives primary emphasis and devotes extended discussion to cases or portions of cases applying the Nelson rule. (See Phillips, 89 Ill. 2d 122, 431 N.E.2d 1038; Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, 317, 412 N.E.2d 472, 474-75.) We are not convinced that this choice is the correct one, in view of the fact that Maggio was acting pursuant to its contractual agreement with Penney, rather than directly for the benefit of persons such as plaintiff. See Figueroa, 879 F.2d at 1433-35.

In any event, this distinction is not relevant here, because we do not believe an assumed duty exists under either analysis. The scope of an assumed duty under Nelson is limited by the extent of the undertaking and the agreement of the parties. (Pippin, 78 Ill. 2d at 209-10, 399 N.E.2d at 599; see generally Figueroa, 879 F.2d at 1437.) For example, the hiring of a security service by an employer does not indicate that the employer undertook to protect employees from criminal assaults by outsiders. (York v. Modine Manufacturing Co. (1982), 110 Ill. App. 3d 235, 442 N.E.2d 282.) We can see no reason why this extent-of-the-undertaking limitation should not similarly apply where the promise of undertaking is made for the protection of a third party, thus falling within the scope of section 324A. Accord Homer v. Pabst Brewing Co. (7th Cir. 1986), 806 F.2d 119, 123 (applying Illinois law); Santillo v. Chambersburg Engineering Co. (E.D. Pa. 1985), 603 F. Supp. 211, 213, aff’d (3d Cir. 1986), 802 F.2d 448.

The assumed duty claimed to exist here goes beyond the agreement of the parties and exceeds the scope of the undertaking. Plaintiff relies on paragraph 9.2 of the contract between Penney and Maggio, which states in pertinent part:

“9.2 SAFETY OF PERSONS AND PROPERTY 9.2.1 Contractor shall take whatever precautions for the safety of, and shall provide whatever protection as may be necessary to prevent damage, injury or loss to:
(a) employees and other Persons engaged in the Work or
who may be affected thereby;
* * *
(c) any part of the Site or property adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities, not designated for removal, relocation or replacement in the course of construction; including but not limited to:
* * *
(iv) providing all necessary guards, barricades, railings, lights, warning signs and similar protective devices.”

Paragraph 9.2.1(c)(iv) clearly refers to the providing of guards and barricades for the purpose of protecting the site itself and adjacent property. And although paragraph 9.2.1(a) addresses the protection of' “Persons engaged in the Work or who may be affected thereby,” we deem it to be intolerably procrustean to stretch such general language to include a duty to protect persons transported involuntarily onto the site and criminally assaulted.

For this reason, and for the reasons set out in section I of this opinion, we affirm the trial judge’s ruling that Maggio did not owe plaintiff a duty of care.

B.

Plaintiff also claims that the trial judge erred in rejecting her argument that she was a third-party beneficiary to the contract between Maggio and Penney, and that Maggio had breached a contractual duty imposed by paragraph 9.2.1 of the agreement, which we have set forth above. We note that this third-party liability theory is a distinct cause of action from plaintiff’s assumed duty tort analysis, and that failure to establish an assumed duty does not necessarily preclude her contractual claim. See, e.g., Radosevic v. Virginia Intermont College (W.D. Va. 1987), 651 F. Supp. 1037, 1040 n.7; Hill v. Sonitrol of Southwestern Ohio, Inc. (1988), 36 Ohio St. 3d 36, 521 N.E.2d 780.

In addressing these contentions, we note that although the issue was briefed and argued below, the trial judge never specifically addressed this matter in her ruling from the bench, and the written judgment order merely states that defendants’ motions were granted. We therefore do not have the benefit of the judge’s reasons for her implicit denial of plaintiff’s contract claim. However, a reviewing court can sustain the decision of the trial court based on any grounds found in the record. Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, 148, 478 N.E.2d 384, 389.

A third party acquires no rights to damages arising from the breach of a contract entered into by others unless the agreed-to provision at issue was intentionally included for the direct benefit of the third party. (Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44, 421 N.E.2d 182; Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 178 N.E. 498; Wheeling Trust & Savings Bank v. Tremco, Inc. (1987), 153 Ill. App. 3d 136, 505 N.E.2d 1045.) This intent “must affirmatively appear from the language of the instrument when properly interpreted and construed.” (Parrett, 346 Ill. at 257-58, 178 N.E. at 501.) It is not necessary that the contract specifically name a third-party beneficiary if it adequately defines a class of individual beneficiaries. (Altevogt, 85 Ill. 2d at 55, 421 N.E.2d at 187.) However, there is a strong presumption that the parties to a contract have not acted for the benefit of anyone other than themselves, and this presumption can be overcome only by language “ ‘so strong as to amount practically to an express declaration.’ ” People ex rel. Hartigan v. Community Hospital (1989), 189 Ill. App. 3d 206, 218, 545 N.E.2d 226, 233, quoting Metro East Sanitary District v. Village of Sauget (1985), 131 Ill. App. 3d 653, 658, 475 N.E.2d 1327; see also 17 Am. Jur. 2d Contracts §304, at 730 (1964).

In this case, the language of paragraph 9.2.1(a) is far from an “express declaration” that Maggio intended to be bound by contract to protect third persons brought forcibly onto the construction site from criminal attacks. While the agreement does refer to precautions to protect “other Persons engaged in the Work or who may be affected thereby,” this language is hardly enough to overcome the presumption against plaintiff’s third-party beneficiary theory. Further, it is worth comparing the wording in the instant case with that encountered in Baker v. S.A. Healy Co. (1939), 302 Ill. App. 634, 24 N.E.2d 228, where plaintiffs relied on a contract between the Sanitary District of Chicago and a corporation hired to construct a sewer. The contract contained a number of provisions specifically stating that the contractor agreed to repair or rebuild damaged property at its own expense, thus enabling the plaintiff property owners to assert claims as third-party beneficiaries. 302 Ill. App. at 654-55, 24 N.E.2d at 238.

We conclude that plaintiff has failed to demonstrate that she was intended to be a beneficiary to the contract; accordingly, we hold that the trial judge properly dismissed plaintiff’s third-party beneficiary claim against Maggio.

Ill

Finally, we address plaintiff’s contention that the trial court erred in denying her motion to file a fifth amended complaint. Neither the order denying the motion nor the transcript of the hearing indicates on what ground the motion was denied. At any rate, we find that the trial judge acted well within her discretion in denying the motion.

The denial óf a motion to file an amended complaint must be affirmed unless plaintiff can demonstrate an abuse of discretion. (People ex rel. Hamer v. Jones (1968), 39 Ill. 2d 360, 235 N.E.2d 589; Bowman v. County of Lake (1963), 29 Ill. 2d 268, 193 N.E.2d 833.) “Among the factors to be considered in deciding that discretion was properly exercised is whether the proposed amendment would cure the defective pleading; whether it could cause prejudice or surprise to other parties; the timeliness of the proposed amendment; and whether previous opportunities to amend the pleadings could be identified.” Talas v. Youngstown Sheet & Tube Co. (1985), 134 Ill. App. 3d 103, 107, 479 N.E.2d 1052, 1055; accord Lakeside Villas Homeowners Association, Inc. v. Zale Construction Co. (1986), 145 Ill. App. 3d 505, 495 N.E.2d 1100.

In this case, the preferred fifth amended complaint would still fail to state a claim upon which relief may be granted. It is slightly more specific in that instead of alleging “a history of previous violence in said parking lot,” it refers to “two rapes and numerous assaults, armed robberies and other violent crimes,” all in the lot. This change, along with a number of other minor changes, is not a material one and does not rectify the defects or supply the omissions discussed above. Indeed, plaintiff’s proposed fifth amended complaint seems to present an even less convincing case for recovery than does her fourth amended complaint, since it omits Maggio altogether from its negligence count. Moreover, a party does not have a right to file unlimited amendments of a complaint. (Latex Glove Co. v. Gruen (1986), 146 Ill. App. 3d 868, 497 N.E.2d 466.) Five attempts at the portals of a trial, taking into consideration all of the factors and circumstances discussed above, plus what plaintiff has to offer in a sixth assay, are quite enough.

For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

DiVITO, P.J., and HARTMAN, J., concur.

       Although both B.C. and her husband C.C. are plaintiffs in this action, we shall, for obvious reasons, make reference throughout this opinion only to B.C. as plaintiff.