text:
    LEONA COCHRAN, Plaintiff-Appellee, v. THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., Defendant-Appellant.
    Fifth District
    No. 5 — 89—0474
    Opinion filed September 17, 1990.

      Dan A. Shaffer, of Evans & Dixon, of Edwardsville, for appellant.
    Floyd D. Peterson, Jr., of Law Offices of William W. Schooley, of Granite City, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Plaintiff-appellee was injured when she slipped and fell in a parking lot, used in common by all patrons of a shopping mall, and owned by L.E.G., an Illinois corporation. Defendant, the operator of The Great Atlantic & Pacific Tea Company, commonly known as “A & P,” leased space in the mall for its grocery store. Plaintiff had fallen in the parking lot, on a ramp, located at defendant’s door. At trial, the jury rendered its verdict in favor of the plaintiff. We affirm.

Defendant argues that as a lessee, it did not owe plaintiff a duty to maintain in a reasonably safe condition the area where plaintiff fell, because under the terms of the lease, the landowner, not the lessee, had the duty to maintain and repair the parking lot.

The relevant provisions of the lease are:

(1) “The Lessor agrees to illuminate, landscape, keep clean, free of ice and snow, and in good repair (including striping of the parking lot) the common areas, including parking areas, driveways, service areas, walkways and parkways of this Shopping Center,” and

(2) “That the Lessor has agreed to let and hereby does let and demise [sic] to the Lessee and the Lessee has agreed to take and hereby does take from the Lessor, for the purpose of a general merchandise business, the first floor in a store building known as Building No. 50 to be erected and constructed by the Lessor and a parking lot to be built adjacent thereto, upon the following described property owned by the Lessor, situated in the City of Decatur, County of Macon State of Illinois.”

Defendant’s first claim on appeal is that the circuit court erred when it, in limine, excluded the lease from evidence and compounded the error when it refused testimony that the landowner, not defendant, had repaired and maintained the parking lot. The circuit court excluded the evidence as irrelevant.

The admission of evidence is within the sound discretion of the circuit court and its ruling should not be reversed absent a clear showing of abuse. People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696.

Defendant argues that the evidence is relevant because its admission makes the existence of its duty to plaintiff less probable than it would be with the evidence excluded. See People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295 (applying Fed. R. Evid. 401).

In making this argument, defendant relies on Sydor v. Berger (1947), 332 Ill. App. 138, 73 N.E.2d 924. Sydor is an abstract opinion. The use of abstract opinions and Rule 23 orders (107 Ill. 2d R. 23) as precedent consistently has been condemned by courts of review-condemnation so universal that no citation is required. All con-damnation aside, it nevertheless is Illinois law that a lessee owes a duty to invitees to maintain premises in a reasonably safe condition and state of repair. Fitzsimons v. National Tea Co. (1961), 29 Ill. App. 2d 306, 173 N.E.2d 534, citing Jackson v. 919 Corp. (1951), 344 Ill. App. 519, 101 N.E.2d 591.

Evidence is relevant when it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. (People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295.) The lease and any testimony pertaining to the lease, therefore, were irrelevant. The issue before the circuit court was the common law duty of the lessee, not that of the landowner. Whether the landowner also had a duty to the plaintiff, or whether defendant could seek contribution from the landowner was not at issue.

There is no doctrine of “partial duty.” Duty either exists or does not, and if it does, it is not diminished in any way because someone else simultaneously owes a like duty. (See 65 C.J.S. Negligence §4(3), at 490 (1966).) Defendant had a duty to plaintiff. That duty is not to be diminished merely because the landowner also might have owed a like duty. The lease and the testimony that were excluded only could have been relevant to prove the landowner’s duty; they were not relevant to show the nonexistence of defendant’s duty under the holding of Fitzsimons.

The court has “inherent power” to admit or exclude evidence, and that power includes orders in limine. (Department of Public Works & Buildings v. Roehrig (1977), 45 Ill. App. 3d 189, 359 N.E.2d 752.) A reviewing court will not reverse a trial court’s order allowing or excluding evidence in limine unless, in entering the order, the court manifestly abused its discretion. People v. Williams (1978), 60 Ill. App. 3d 529, 377 N.E.2d 367.

Since the testimony and pictures introduced at trial clearly indicate that the area where plaintiff fell was within the area of entry and exit to and from defendant’s store and because of the holding in Fitzsimons, we see no abuse of discretion in excluding this evidence. See also Steinberg v. Northern Illinois Telephone Co. (1931), 260 Ill. App. 538.

The circuit court, therefore, did not err when it ordered the lease excluded in limine, and did not err in sustaining the objection to the testimony that was offered to prove that the landlord had repaired and maintained the parking lot in the past, because that evidence would prove only that the landlord also had a duty to plaintiff.

Defendant next claims that the circuit court erred when it denied its motion to bar the testimony, in whole or in part, of a radiologist, Dr. G. Richard Locke, pursuant to Illinois Supreme Court Rule 220(b)(1) (107 Ill. 2d R. 220(b)(1)).

After she fell, plaintiff went to Dr. Thomas Griffith, who, in the course of his treatment, referred plaintiff to Dr. Locke for diagnostic X rays and a CT scan.

Dr. Locke testified to the results of the X rays and CT scan he took; and he further was allowed to review other X rays that originally had been read by Dr. Gooley, another radiologist, and to give his opinion about what was shown in the other X rays.

Dr. Locke testified:

“Q. Doctor, you have films here taken by Dr. Gooley also, is that correct, x-ray films?
A. That is correct.
Q. And have you had a chance prior to today, prior to the time you talked to me or anything to review those films?
A. She checked in at 12:50 p.m. and had the procedures performed that afternoon. Dr. Gooley — I interpreted the CT images at 4:00 p.m., and Dr. Gooley interpreted the CT the other images at 8:00 a.m. The reason I interpreted the temporomandibular joint images was, I mean the CT images, was that Dr. Gooley was older and felt uncomfortable with the CT imaging.”
Dr. Gooley read the X rays, Dr. Locke the CT scan.
Dr. Locke was then asked by plaintiff’s counsel to examine the X rays taken by Dr. Gooley and to interpret them and relate to the jury what they showed.
Dr. Locke testified:
“Q. Now on the left hand side, what pathology is depicted in the X-ray films ***?
A. In the normal study the mandibular cardyle with the mouth closed is in the temporomandibular fossa. With the mouth open the candyle subluxes anteriorly out of this fora.
Q. What do you mean?
A. This would give the patient a clicking sound or difficulty in moving the jaw.”

This abnormality commonly is called TMJ and was not revealed in the CT scans taken by Dr. Locke.

Defendant claims that when Dr. Locke testified to the Gooley X rays he was not a treating physician, but rather was an expert within Rule 220, and since he had not been disclosed as an expert under Rule 220, that testimony should have been excluded. We reject this ' claim.

Rule 220(b)(1) provides:

“Disclosure.
*** In order to insure fair and equitable preparation for trial by all parties the identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party ***.” 107 111. 2d R. 220(b)(1).

Rule 220(a)(1) defines an “expert” as:

“[A] person who *** possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation and who may be expected to render an opinion *** at trial.” 107 111. 2d R. 220(a)(1).

Rule 220 bars the testimony of undisclosed experts. 107 Ill. 2d R. 220(b).

A treating physician is not an expert witness within the meaning of Supreme Court Rule 220. Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525.

The issue presented here is whether Dr. Locke is a treating physician or an expert witness to the extent that he testified interpreting X rays taken by another physician.

• 10 In deciding this issue, we return first to the theoretical underpinning of Tzystuck. The supreme court gave two bases for its holding in Tzystuck: (1) treating physicians are not retained to render an opinion at trial, but are consulted for treatment of a medical problem whether or not litigation is pending or contemplated; and (2) the committee comments to Rule 220 indicate that the drafters drew heavily upon Rule 26(b)(4) of the Federal Rules of Civil Procedure (Fed. R. Civ. P. 26(b)(4)). Federal courts interpreting Federal Rule 26(b)(4), as well as the advisory committee notes to Rule 26(b)(4), say that an expert who acquires information because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit rather than acquiring information because a lawsuit is contemplated or is pending should be treated as an ordinary witness. Tzystuck, 124 Ill. 2d at 235, 529 N.E.2d at 529.

As to the first basis, whether a physician is a treating physician or an expert depends on the physician’s relationship to the case, not the substance of his testimony. A testifying expert is one whose relationship with a litigant arose principally because a litigant retained him to render an opinion at trial. It is the expert’s relationship to the litigation, not the substance of the testimony, that makes him a testifying expert. (Dugan v. Weber (1988), 175 Ill. App. 3d 1088, 530 N.E.2d 1007; Beiermann v. Edwards (1990), 193 Ill. App. 3d 968, 550 N.E.2d 587.) A treating physician is one consulted for treatment. An expert is one consulted for testimony. (Beaman v. Swedish American Hospital Association (1989), 179 Ill. App. 3d 532, 534 N.E.2d 522; Wilson v. Chicago Transit Authority (1988), 126 Ill. 2d 171, 533 N.E.2d 894.) It is clear that Dr. Locke was consulted for treatment. He was a physician to whom plaintiff had been referred for treatment.

The second of these two bases reveals the true theory of exclusion from disclosure as an expert, and two cases are examined to make the point: Smith v. Central Illinois Public Service Co. (1988), 176 Ill. App. 3d 482, 531 N.E.2d 51, appeal denied (1989), 124 Ill. 2d 562, 535 N.E.2d 921; and Voyles v. Sanford (1989), 183 Ill. App. 3d 833, 539 N.E.2d 801.

In both of these cases, occurrence witnesses, who were employed by a party, were allowed to give expert opinions even though they had not been disclosed as experts under Rule 220(b)(1). (107 El. 2d R. 220(b)(1).) In each case, the court reasoned that the identities of these witnesses were discoverable under Supreme Court Rule 201(b)(1) (107 El. 2d R. 201(b)(1)); therefore, there could be no surprise that these witnesses testified. The only surprise was that they gave expert opinions. Both courts held that neither a party nor an employee of a party who is intimately involved in the subject matter of the litigation need be disclosed as an expert witness pursuant to Rule 220(b)(1).

Smith and Voyles reveal the true basis of exempting from disclosure as an expert a witness who gets information as an actor or viewer of the occurrence. The basis is that there is little threat of surprise. (See Smith v. Central Illinois Public Service Co. (1988), 176 Ill. App. 3d 482, 531 N.E.2d 51.) There is little threat of surprise simply because the opponent knows or has easy access to the identity of such a witness through discovery. A treating physician’s identity is discoverable under Supreme Court Rule 201(b)(1) (107 Ill. 2d R. 201(b)(1)).

The purpose of Supreme Court Rule 220 is to accomplish full disclosure and to avoid surprise. There should be no surprise to an opponent when a treating physician testifies, even if that testimony is about matters that are within the scope of his expertise, but beyond the scope of his own acts that were done in furtherance of the treatment. In this case, defendant could not have been surprised by Dr. Locke taking the witness stand. The mere fact that he was called on to examine and give an opinion about X rays that he himself did not take also should not be surprising and, under these circumstances, should have been anticipated before trial and during discovery. The defendant would have known that these other X rays were in existence, would have known of the identity of Dr. Locke, and could have discovered Dr. Locke’s opinion about these other X rays prior to trial. Therefore, since Dr. Locke’s identity was known and since there could have been no surprise, the purpose of Rule 220 has been fulfilled.

Defendant last claims that the closing argument of the plaintiff misstated the law and that the court committed error when it overruled defendant’s objection to that argument.

Plaintiff, in closing argument, said: “They have a duty to fill these holes folks. This isn’t something they have a choice over.” Defendant objected. The court said: “Overruled. That is the law. Please proceed.”

The jury could not have been misled. Both plaintiff’s counsel and the court made correct statements of the law. There was no error in the ruling, nor did the ruling and the brief comment, “that is the law,” overemphasize any portion of the law or evidence. There was no prejudice.

The circuit court, therefore, is affirmed.

Affirmed.

GOLDENHERSH and RARICK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HOWERTON

license: Public Domain

text:
    OLYMPIC FEDERAL, Plaintiff-Appellant, v. AMERICAN INTERINSURANCE EXCHANGE, Defendant-Appellee.
    Fifth District
    No. 5-87-0862
    Opinion filed September 17, 1990.

      John R. Leitz, Jr., of Berwyn, and Stanton D. Ernest, of Fowler, Rhine, Cawley & Ernest, of Mt. Carmel, for appellant.
    No brief filed for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Plaintiff Olympic Federal, a financial institution, brought an action for declaratory relief against American Interinsurance Exchange, defendant, asking the circuit court to construe a policy of insurance issued by the defendant, insuring a 1984 Thunderbird owned by Howard Hodgson and upon which plaintiff had a lien.

Plaintiff alleged: it had made a purchase money loan for the automobile to Hodgson; a condition of the loan required Hodgson to insure the automobile; Hodgson had obtained insurance from the defendant; a renewal premium was due on July 25, 1985; defendant sent a renewal premium notice to Hodgson, but not to the plaintiff-lienholder; Hodgson did not pay the renewal premium; the automobile was totally destroyed in a traffic accident on August 4, 1985; and two days after the wreck, defendant sent to Hodgson and to plaintiff a notice that the insurance policy had expired on July 25, 1985.

Plaintiff alleged that if it had received notice that the premium had not been paid, it would have obtained substitute insurance before the car was totally destroyed.

The circuit court dismissed plaintiff’s complaint, reasoning that section 143.17 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 755.17) is written in two sections. Section (a) forbids nonrenewal unless the lienholder is given notice of intention not to renew; section (b) provides that section (a) does not apply when the insurance company has manifested its willingness to renew directly to the insured. Since Hodgson was the named insured, and since defendant, before the expiration date, had sent to him a notice of the renewal premium (which is a manifestation of a willingness to renew according to the Shiaras v. Chupp (1975), 61 Ill. 2d 164, 334 N.E.2d 129, case), section (b) provided that section (a) did not apply to the facts of the case. Therefore, the circuit court found there was no requirement that the insurance company send to the plaintiff-lienholder a notice of intention not to renew under the Insurance Code. The circuit court ruled that the policy had expired and that there was no coverage that could be extended to plaintiff.

We affirm and note that plaintiff brought its case solely under the Insurance Code. Had plaintiff presented a case brought under common law, perhaps there might have been a remedy. But, the case was not presented on any common law theory. It was brought under a statute. That builds a small room around us.

The Illinois Insurance Code commands an insurance company to renew an automobile insurance policy, unless it first sends to the insured 30 days’ notice of its intention not to renew. Ill. Rev. Stat. 1985, ch. 73, par. 755.17(a).

However, if the insurance company has manifested its willingness to renew directly to the insured, then this command does not apply. Ill. Rev. Stat. 1985, ch. 73, par. 755.17(b).

Notice of renewal and premium due sent to the insured by the insurance company is deemed a manifestation of willingness to renew; and where such notice has been sent to the insured, failure to pay the premium before the renewal date will result in the expiration of the policy. Shiaras v. Chupp (1975), 61 Ill. 2d 164, 334 N.E.2d 129.

The relevant provisions of the Insurance Code say:

“(a) No company shall fail to renew any policy of insurance *** unless it shall send by mail to the named insured and the mortgagee or lien holder *** at least 30 days advanced notice of its intention not to renew. An exact and unaltered copy of such notice shall also be sent to *** the lien holder ***. However, where cancellation is for nonpayment of premium, at least 10 days notice of cancellation shall be given.
(b) This Section does not apply if the company has manifested its willingness to renew directly to the named insured.” Ill. Rev. Stat. 1985, ch. 73, pars. 755.17 (a), (b).

Plaintiff argues on appeal: (1) that the language of the section relied upon shows that the legislature’s intent is to protect lienholders; and (2) that the use of the word “cancellation” in the last sentence of the statute (which deals with “nonrenewals” rather than “cancellations”) implies that the legislature intended this section to apply to cases such as this, so that if the insured did not pay premiums, the insurance company would have to give 10 days’ notice to a lienholder before the insurance coverage would terminate.

Inclusion of the word “cancellation” in a provision that deals with “nonrenewals” is enigmatic, to say the least.

The Insurance Code defines “cancellation” as follows:

“ ‘Cancellation’ or ‘cancelled’ means the termination of a policy by an insurer prior to the expiration date of the policy. A policy of automobile or fire and extended coverage insurance which expires by its own terms on the policy expiration date unless advanced premiums are received by the insurer for succeeding policy period shall not be considered ‘cancelled’ or a ‘cancellation’ effected by the insurer in the event such premiums are not paid on or before the policy expiration date.” Ill. Rev. Stat. 1985, ch. 73, par. 755.13(f).

This definition makes clear that “cancellation” and “nonrenewal” are separate terms. Furthermore, courts consistently have interpreted the provisions of the Insurance Code so as to maintain the distinction between these two terms, holding that they are not interchangeable. Steward v. Allstate Insurance Co. (1980), 92 Ill. App. 3d 637, 415 N.E.2d 1206; Shiaras v. Chupp (1975), 61 Ill. 2d 164, 334 N.E.2d 129.

“Cancellation” refers to a unilateral termination by an insurer before the end of the policy period, while “nonrenewal” refers to the automatic expiration of a policy at the end of the policy period. Shiaras v. Chupp (1975), 61 Ill. 2d 164, 334 N.E.2d 129.

In the Shiaras case, a notice of premium was sent. The policy expiration date came. The insured did not pay. The court ruled that the policy had not been “cancelled.” Rather, the court held that the policy had not been “renewed,” and therefore, there was no coverage for a wreck that happened 19 hours and 47 minutes after the policy had expired.

The difficulty is seen. If “cancellation” means what the cases interpreting the Code say it means, then its inclusion in the nonrenewal provision is enigmatic indeed. And, perhaps this enigma forms the basis of plaintiffs appeal.

However, we do not have to deal with this enigma. We do not have to interpret the statute. The plain, clear, express language of part (b) of the provision says, “This section does not apply if the company has manifested a willingness to renew directly to the named insured.” (Ill. Rev. Stat. 1985, ch. 73, par. 755.17(b).) Courts are to construe a statute by first looking to the words employed by the legislature. We may not alter the plain meaning of those words. People v. Cochran (1988), 167 Ill. App. 3d 830, 522 N.E.2d 261.

By the plain, express language of the statute, section 143.17(a) does not apply, if the insurance company sends out the premium notice to the insured in a timely manner. Since that was done in this case, section 143.17(a) has no application by operation of part (b) thereof.

Before we could rule for plaintiff and extend coverage, we would have to rewrite the statute by excising paragraph (b). We cannot rewrite the statute, however.

Cardozo put it this way: “We do not pause to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason. We take this statute as we find it.” (Frankfurter, Some Reflections on the Readings of Statutes, 47 Colum. L. Rev. 527, 534 (1947).) Taking it as we find it, the clear, express language of the statute compels us to affirm.

Here, the language of the statute is plain and admits of no more than one meaning. The duty of interpretation, therefore, does not arise.

If the legislature wants a case brought under its statutes to turn out the way plaintiff does, they, not the courts, should make the necessary statutory provisions.

We, therefore, affirm the circuit court.

Affirmed.

HARRISON and RARICK, JJ., concur.


author: PRESIDING JUSTICE LEWIS

text:
    DONALD P. CARONA, Plaintiff-Appellant, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellee.
    Fifth District
    No. 5 — 89—0147
    Opinion filed September 18, 1990.

      Robert W. Bosslet, Jr., of Morris B. Chapman & Associates, Ltd., of Granite City, for appellant.
    David C. Bohrer, of Oppenheimer, Wolff & Donnelly, of Chicago, and Paul M. Brown, of Coburn, Croft & Putzell, of Belleville, for appellee.
   PRESIDING JUSTICE LEWIS

delivered the opinion of the court:

The circuit court of Madison County entered a summary judgment for the defendant, Illinois Central Gulf Railroad Company, in a Federal Employer’s Liability Act (FELA) action (45 U.S.C. §51 et seq. (1982)) brought against the defendant by the plaintiff, Donald P. Carona, for injuries he allegedly sustained in a work-related accident on February 22, 1986. The basis of the court’s order granting the motion for summary judgment was a document entitled “Final Settlement and Release” signed by the plaintiff. The plaintiff appeals the circuit court’s order, contending that the circuit court erred when it granted the defendant’s motion (1) because there were genuine issues of material fact which were disputed, and (2) because his suit was not barred by the written release as (a) the release was limited to his injuries sustained at work on July 29, 1983, and this suit was for injuries incurred in a work-related accident on February 22, 1986, (b) the written portions take precedence over the printed form of the release, (c) any ambiguity in the release will be construed most strongly against the party drawing the document, and (d) a mutual mistake of fact will vitiate the release.

Before considering the issues raised on appeal, it is necessary to an understanding of this case to set forth the facts as revealed from the limited record presented. On January 5, 1984, the plaintiff filed a complaint against the defendant in which he alleged a cause of action under FELA for injuries to the rotator cuff of his left shoulder which he incurred in a work-related accident on July 29, 1983. On August 14, 1986, the plaintiff signed a document entitled “Full Settlement and Release” for this claim. Subsequently, on December 19, 1986, the plaintiff filed a second complaint against the defendant in which he alleged a second and separate cause of action under FELA for injuries sustained to the “muscles, tendons, ligaments, nerves, bones, discs, and soft tissues of his neck and cervical spine” incurred in a work-related accident on February 22,1986.

The defendant filed an answer to the plaintiff’s second complaint, and in the answer, in addition to denying the plaintiff’s allegation, the defendant also raised the defense that the plaintiff’s cause of action was barred by the “doctrine of payment and release.” Subsequently, the defendant filed a motion for summary judgment. As part of the defendant’s motion, the defendant filed an appendix in which the release, an affidavit of J. Randal Little, and excerpts of numerous discovery depositions were included. The plaintiff filed no documentation to counter the defendant’s motion. On February 3, 1989, the circuit court heard the parties’ arguments on the defendant’s motion for summary judgment and took the matter under advisement, and on February 14, 1989, the court entered an order granting the defendant’s motion. The plaintiff filed a motion to reconsider and a supplement to the motion which was subsequently denied, following a hearing, on March 1,1989.

A summary judgment is an extraordinary measure and should only be employed where the right of the movant is clear and free from doubt, and any evidence in support of the motion must be construed strictly against the moving party and liberally in favor of the opponent. (W.H. Lyman Construction Co. v. Village of Gurnee (1985), 131 Ill. App. 3d 87, 475 N.E.2d 273.) A summary judgment should only be granted where the pleadings, depositions, affidavits, and admissions on file show that there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law. (W.H. Lyman Construction Co., 131 Ill. App. 3d 87, 475 N.E.2d 273.) On review, all the grounds urged and the facts revealed in the record must be considered to determine if a genuine issue of material fact remained to be determined by a jury and that the defendant was entitled to summary judgment as a matter of law. (Moore v. Hill (1987), 155 Ill. App. 3d 1, 507 N.E.2d 1314.) With these principles in mind, we now address the case sub judice.

In the instant case, the court did not state the basis for his order granting the defendant’s motion; therefore, our analysis of the propriety of the circuit court’s order will encompass both of the grounds raised in the defendant’s motion for summary judgment. The first ground raised in the defendant’s motion was that the release signed by the plaintiff was a general release which barred the plaintiff’s suit. If the court’s decision for summary judgment was based upon the language of the release, then the court decided the case as a matter of law. Therefore, our first consideration must be the release itself. The terms of the release in question are in pertinent part as follows:

“I, (We), Donald R Carona, of the City or Town of Alton, State of Illinois, for the sole consideration of One Hundred Eighty Thousand Dollars ($180,000), in hand paid to me (us) by Illinois Central Gulf Railroad Company, the receipt whereof is hereby acknowledged, do hereby release, acquit, and forever discharge the said Illinois Central Gulf Railroad Company, its lessors, lessees, licensors, licensees, and any and all lines or companies owned, operated or controlled by or allied with it, their respective successors and assigns, and all others covered from any and all claims, demands, suits, actions, causes of action, and damages whatsoever, which I (we) now have or may in the future have against them, or any of them, in consequence, directly or indirectly, of any matter or thing done or suffered to be done by any of them prior to and including the date hereof, and more particularly on account of [a\n injury/ accident/incident that occurred while in the employ of the Illinois Central Gulf Railroad at or near New Orleans, La. on or about the 29th day of July 1983.
* * *
As a condition of this settlement the ICGRRCo will pay, upon presentation of supportive documentation any billing up to $3,500 for rehab services, to be completed within one year from this date. As a further condition of this settlement Donald P. Carona resigns from the service of the ICGFRRCo. and releases all labor claims.
* * *
THIS IS NOT A RECEIPT FOR WAGES-IT IS A GENERAL RELEASE” (Emphasis added to indicate the portions of the document that were handwritten.)

The release was executed by the parties on August 14, 1986. The defendant urged in its motion for summary judgment that the phrase “any and all claims, demands, suits, actions, causes of action, and damages” prevented the plaintiff from bringing his current claim. The plaintiff contends that the reference to the specific accident of July 1983 in the release limited the general language contained therein.

A release is a contract wherein a party relinquishes a claim to a person against whom the claim exists, and a release is subject to the rules governing the construction of contracts. (Chubb v. Amax Coal Co. (1984), 125 Ill. App. 3d 682, 466 N.E.2d 369.) It is well established that the intention of the parties controls the scope and effect of the release, and that this intent is discerned from the language used and the circumstances of the transaction. (Chubb, 125 Ill. App. 3d 682, 466 N.E.2d 369; Whitehead v. Fleet Towing Co. (1982), 110 Ill. App. 3d 759, 442 N.E.2d 1362.) A release cannot be construed to include claims not within the contemplation of the parties, and it will not be extended to cover claims that may arise in the future. (Chubb, 125 Ill. App. 3d 682, 466 N.E.2d 369.) It is also the law in Illinois that, where a release contains words of general release in addition to recitals of specific claims, the words of general release are limited to the particular claim to which reference is made. Whitehead, 110 Ill. App. 3d 759, 442 N.E.2d 1362.

Here, the release signed by the parties contained words of general release; however, the release also specifically referred to the incident of July 29, 1983. Under the law, this specific language reflects that the parties intended to release only those actions which would arise in the future from the July 1983 accident. In the action brought by the plaintiff in 1986, he alleged that his injuries were due to a separate and unrelated accident which occurred in February of 1986. Since this action was not a claim which arose out of the 1983 incident, the plaintiff’s second complaint was not barred under the language of the release.

Further, the circumstances surrounding the signing of the release reinforce the conclusion that the parties only intended to bar those actions arising out of the July 1983 incident. In the plaintiff’s discovery deposition, he stated he was aware of his injuries incurred in .February, i.e., before the signing of the release; however, the only discussion between himself and the railroad’s representative, J. Randal Little, at the time of the signing of the release was about the plaintiff’s injuries incurred in the 1983 accident. Likewise, J. Randal Little stated in his affidavit that at the time of the signing of the release he had no knowledge of any injury to the plaintiff subsequent to the July 1983 incident. Since both of the parties limited their discussion to the July 1983 incident, it cannot be said that the parties intended to release the subsequent 1986 claim. Additionally, the record reveals that the plaintiff was not represented by counsel at the time of the signing of the release. As a layman, the plaintiff’s perception that the release only related to his first injury should not prevent him from bringing suit for other unrelated claims for which the defendant may be liable, and to so hold would violate public policy. These circumstances support our determination that the release did not legally bar the plaintiff’s 1986 claim, and the circuit court’s decision that the defendant was entitled to a summary judgment as a matter of law under the language of the release was erroneous.

The defendant relies on Rakowski v. Lucente (1984), 104 Ill. 2d 317, 472 N.E.2d 791, to support its argument that the release was unambiguous and that the release barred any claims in existence before the execution of the release. We find that Rakowski is not dis-positive of the instant case. In Rakowski, Lucente executed a release in favor of Rakowski following an automobile accident in which both were involved. Subsequently, Rakowski and his passengers sued Lucente for personal injuries. In turn, Lucente countersued Rakowski for contribution for the passengers’ injuries. The supreme court found that the release signed by Lucente barred his countersuit. In Rakowski, all of the claims being sought arose out of the particular incident named in the release and all of the claims came into being at the time of the specific accident. In the case sub judice, the plaintiff has filed a claim based upon a separate and distinct accident from the incident particularized in the executed release. The supreme court did not address the specific issue raised in this case in Rakowski, and because of the factual differences between Rakowski and this case, we find that Rakowski does not apply.

Having determined that the language of the release did not bar the plaintiff’s suit as a matter of law, we next consider the second ground raised by the defendant’s motion for summary judgment, whether the plaintiff’s 1986 injuries were a continuation of his 1983 injuries. This determination is a factual one, and if the defendant presented sufficient evidence to show there was no dispute as to this material issue, then the court’s order allowing the summary judgment was proper, for the release would then bar the plaintiff’s suit. Our review of the evidence presented by the defendant leads to the conclusion that different inferences can be drawn from this evidence as to whether the plaintiff’s injuries of 1986 were new injuries or were a continuation of his prior injuries of 1983.

The defendant, in support of its contention that the plaintiff’s injuries were a continuation of his previous injuries, presented numerous excerpts of discovery depositions of physicians and a chiropractor, as well as portions of the plaintiff’s discovery deposition. In the plaintiff’s deposition, he testified that on February 22, 1986, he was pulling on a switch when he first felt pain in the upper part of his back. The pain was predominantly in the center of his back, just below his neck. He thought at first that the pain was coming from his shoulder; however, he had not experienced a pain similar to this before this incident. After throwing the switch, the plaintiff told the conductor of the train that the switch was bad and should be reported, and he also told the conductor that he thought he had pulled “something.” This incident occurred early in the plaintiff’s work shift, and he continued to work until his shift ended, approximately six hours later. His pain did not abate during the day, and the more work he did, the worse the pain became. The plaintiff worked his next regular shift, about 20 hours later, on February 24, 1986, but he stated he told the engineer and the flag man that he was unable to work. The plaintiff asked for personal leave on February 25, 1986, which he subsequently changed to sick leave. The plaintiff did not return to work after February 26,1986.

The excerpt of Dr. Tom Bennington’s discovery deposition revealed that the doctor had seen the plaintiff on February 18, 1986, and then again in August of 1986. At the plaintiff’s visit in August of 1986, the doctor did not perform a physical examination of the plaintiff, but administered manipulation therapy. The doctor’s diagnosis of the plaintiff’s condition was cervical radiculitis (inflammation of the root of a spinal nerve as it emerges from the spinal cord), and the doctor stated that he treated “this as though it were an exascerbation [sic] of the same old thing I had seen him on for the last several years.” The doctor did not associate the plaintiff’s condition with a particular injury at the work place, and the doctor had no knowledge of the incident of February 22, 1986. The doctor testified that he did not believe that the plaintiff was in the area around February 22, 1986, and that the plaintiff was unavailable for the doctor to see him before August of 1986.

Dr. George Schoedinger testified in the excerpt of his discovery deposition that he had examined and evaluated the plaintiff, and that both he and Dr. Dusek had treated the plaintiff. Dr. Schoedinger first saw the plaintiff on November 3, 1983, and the plaintiff’s last visit to him was on July 22, 1986. Dr. Schoedinger saw the plaintiff on February 28, 1986, and at this visit, the plaintiff had no new complaints which were different from his previous problems, and the doctor attributed the plaintiff’s complaints to the July 1983 incident. The symptoms that the plaintiff complained of were tightness about the shoulder, a feeling of “popping” when he used his upper limb, and pain. The plaintiff did not complain of neck pain to Dr. Schoedinger.

Dr. Schoedinger conducted a physical examination of the plaintiff, and his examination revealed that the plaintiff’s range of motion of his cervical spine was unimpaired. Dr. Schoedinger also determined that the plaintiff was essentially nondiagnostic with respect to his cervical spine and neck. It was Dr. Schoedinger’s opinion that if the plaintiff had had a neck injury a few days prior to February 28, 1986, the injury would have manifested itself in some fashion. The doctor stated it would be highly unusual for someone to have a cervical spine injury and have no symptoms. The doctor went on to state that a person may not develop a full bone symptom complex immediately, but that this may develop in a number of days or even weeks. The doctor found that the plaintiff had no neurological abnormality, and on February 28, 1986, the doctor determined that there was no evidence that the plaintiff had a cervical disc injury. The doctor felt that the plaintiff presented conditions which were solely related to the left shoulder girdle, and that the left shoulder girdle was the same condition as the doctor had previously diagnosed the plaintiff to have. The doctor did find that the plaintiff had “denervation potentials involving his left deltoid, which is consistent with an injury to his axillary nerve (the nerve which goes around the armpit and into the deltoid muscle),” but that the plaintiff had a history of injury to the left shoulder and it was possible the axillary nerve was injured at that time.

In the excerpt of Dr. Dennis Dusek’s discovery deposition, Dr. Dusek testified that he saw the plaintiff for the first time on March 25, 1985. Dr. Dusek had seen the plaintiff on January 31, 1986, just prior to the incident of February 22, 1986, at which time Dr. Dusek released the plaintiff for work. It is inferred from the deposition that Dr. Dusek had repaired the plaintiff’s rotator cuff injury incurred in the 1983 accident. Dr. Dusek next saw the plaintiff on July 27, 1986, and at that visit, the plaintiff had new complaints. The plaintiff complained of some numbness and muscle spasms in his shoulder on the left side. The doctor stated that the urgency of these symptoms was different from previous visits, and that these symptoms had not surfaced before; therefore, the doctor assumed the symptoms were relatively new.

The doctor was aware that the plaintiff had been off work on sick leave. The doctor had the plaintiff undergo an EMG (electromyogram) and a nerve conduction study. The doctor found that the plaintiff’s EMG was normal, as was the nerve conduction study. The nerve conduction study did reveal that the left deltoid muscle had mild denervation potentials which was consistent with mild left axillary neuropathy. The doctor found it difficult to say why the axillary nerve might have been injured, but gave the rotator cuff repair as one possibility. The doctor ruled out that the plaintiff had a cervical disc injury, and in his opinion, the plaintiffs condition was caused by his trauma of July 1983.

In Dr. Bruce Vest’s discovery deposition, Dr. Vest testified that he saw the plaintiff on August 12, 1986. At that time, the plaintiff complained of cervical pain radiating into the right side with a marked restriction of motion. The plaintiff had given the doctor a 10-day history of cervical neck pain, i.e., that 10 days prior to the visit the plaintiff had an onset of severe neck pain without trauma. A MRI (magnetic resonance imaging) test conducted by the doctor indicated the plaintiff had a mild degeneration of a disc at C5-C6 with a slight posterior bulging and was suggestive of a mild compression of the dural sac. Based on the history taken by the doctor, the doctor had no knowledge of an accident or a single event that would have caused the plaintiff’s condition.

Dr. Lee Vander Lugt testified that at the plaintiff’s first visit to him, he diagnosed the plaintiff’s condition as cervical sprain syndrome and post-reconstructive surgery on the left shoulder and possibly a left C8-T1 radiculopathy (disease of the roots of the spinal nerves). The tests the doctor ran on the plaintiff were normal, and the doctor found no evidence of a herniated or ruptured disc at the cervical spine and no evidence of nerve impingement.

Dr. Brinkley, a chiropractor, testified that he first examined the plaintiff on August 1, 1986. At that time, the plaintiff complained of severe pain in the lower neck and right shoulder girdle. According to Dr. Brinkley, the plaintiff told him that the pain had been bothering him for two days and had begun after the plaintiff had “cranked” a winch at home.

Dr. Brinkley’s examination of the plaintiff revealed that the plaintiff had severe spasms of the muscles in the neck area. Dr. Brinkley determined that the plaintiff’s neck problems appeared to have existed for more than two days prior to his examination, but that the problem had become severe the two days prior, i.e., that there was an acute exacerbation of a chronic problem. Dr. Brinkley could not state when the plaintiff’s problems started.

From the evidence of the foregoing depositions, we determine that more than one inference could be drawn regarding the plaintiff’s injuries. One doctor found that the plaintiff had mild degeneration of a cervical disc; one doctor determined that the plaintiff had cervical sprain syndrome; a third doctor diagnosed the plaintiffs condition as cervical radiculitis; and the other two doctors determined that the plaintiff did not have a cervical disc injury but these doctors did not give an opinion as to whether, the plaintiff may have a cervical sprain. The evidence thus presented by the defendant does not remove doubt as to how or when the plaintiff’s injuries arose nor does it negate the plaintiff’s allegations that he suffered injury to his neck in February 1986. If the circuit court determined that the defendant was entitled to summary judgment upon the evidence presented by the defendant, it appears that the court tried the plaintiff’s claim on the evidence and resolved any doubts in the defendant’s favor. It is not the role of the court to try the issues to determine if a summary judgment is proper, but the sole purpose of a summary judgment is to determine if in fact triable issues exist. We find that the determination that the defendant was entitled to summary judgment is not free and clear from doubt and that there is a genuine dispute as to a material fact presented, and accordingly, we hold that the circuit court erred when it granted the defendant’s motion for summary judgment.

Lastly, we note that the plaintiff has set forth other arguments regarding why this court should reverse the circuit court’s decision; however, because of our disposition of this case, it is unnecessary to consider these additional arguments presented by the plaintiff.

For the foregoing reasons, the order of the circuit court of Madison County allowing the defendant’s motion for summary judgment is reversed, and this cause is remanded to the circuit court for further proceedings.

Reversed and remanded.

HOWERTON and GOLDENHERSH, JJ., concur.


author: JUSTICE WELCH

text:
    THE PEOPLE ex rel. WILLIAM J. KILQUIST, Sheriff of Jackson County, Plaintiff-Appellee, v. LINDA BROWN, Defendant-Appellant (Jackson County Merit Commission, Defendants).
    Fifth District
    No. 5 — 89—0812
    Opinion filed September 18, 1990.

      R. Courtney Hughes, of Carbondale, for appellant.
    Michael L. Wepsiec, Assistant State’s Attorney, of Murphysboro, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Appellee William J. Kilquist, sheriff of Jackson County, filed a complaint for administrative review on behalf of the People of the State of Illinois against the Jackson County Merit Commission and Linda Brown, appellant herein. The individual members of the merit commission were also joined as defendants in the complaint. Brown, a merit commission employee and sergeant with the Jackson County sheriffs department, had previously filed a grievance with the merit commission claiming that Sheriff Kilquist’s action in transferring her from her position as sergeant of communications on the first shift to deputy sheriff jail sergeant on the third shift violated article IV, paragraph I, of the commission’s regulations. This regulation promulgated by the merit commission allowed the sheriff to “appoint current merit personnel to either Deputy Sheriff Patrol Office [sic], Deputy Sheriff Jailer, or Dispatcher providing the appointment is agreeable with both the sheriff and employee.” (Jackson County Merit Commission Regulations, art. IV, par. I (1984).) Brown contended and the commission agreed that the regulation was violated because Sheriff Kilquist had not obtained her consent to the transfer and had not even broached the subject of the transfer with her prior to her notification thereof. The grievance was therefore sustained by the commission but Sheriff Kilquist refused to recognize its decision and return Brown to her original position. Instead Sheriff Kilquist filed the instant proceeding seeking judicial review of the board’s action, claiming that enactment of the regulation itself was an ultra vires act unauthorized by statute, case law, custom or policy.

The circuit court of Jackson County determined that the only question to be determined on administrative review was the legal issue of whether article IV, paragraph I, of the Jackson County Merit Commission Regulations was ultra vires. After oral argument, the court agreed with Sheriff Kilquist that enactment of this regulation was an impermissible action in excess of the commission’s authority under the Sheriff’s Merit System Act (Act) (Ill. Rev. Stat. 1987, ch. 125, par. 151 et seq.), and reversed the decision of the merit commission. Brown appeals from the court’s order of November 21, 1989, which made this determination and asks this court on review to reverse the court below and remand with instructions in favor of reinstating her former position. The sole issue presented for review by this court is whether the Jackson County Merit Commission’s regulation contained in article IV, paragraph I, which requires that all intradepartmental transfers of merit commission employees be consensual to both the merit employee and the sheriff, is an ultra vires regulation under the Sheriff’s Merit System Act.

The Sheriff’s Merit System Act, effective January 1, 1981, provides for the adoption and implementation of merit systems by the county boards of certain Illinois counties identified in the Act (111. Rev. Stat. 1987, ch. 125, par. 152), by ordinance which provides for the appointment of an entity called a Sheriff’s Office Merit Commission. (Ill. Rev. Stat. 1987, ch. 125, par. 153.) The Jackson County Merit Commission was formed pursuant to this Act and on June 28, 1984, adopted certain regulations including article IV, paragraph I, the regulation under scrutiny by this court today. The basis for the determination by the court below that enactment of this regulation was ultra vires was a legal interpretation that enactment of this regulation was beyond the scope of the commission’s authority under the Sheriff’s Merit System Act. (Ill. Rev. Stat. 1987, ch. 125, pars. 151 through 169.) As appellee notes, the law reposes with the courts the authority to review as a question of law the statutory interpretation of terms and legislation establishing administrative agencies and governing their operation. Miller v. Department of Public Aid (1979), 69 Ill. App. 3d 477, 482, 387 N.E.2d 810, 815.

Sheriff Kilquist maintains that adoption of this regulation was beyond the scope of the commission’s administrative authority because it violates section 7 of the Sheriff’s Merit System Act, which sets forth in pertinent part the duties and jurisdiction of the merit commission:

“The Merit Commission shall have the duties, pursuant to recognized merit principles of public employment, of certification for employment and promotion, and, upon complaint of the sheriff or states attorney as limited in this Act, to discipline or discharge as the circumstances may warrant.” (Ill. Rev. Stat. 1987, ch. 125, par. 157.)

Because Brown’s transfer was to a position of same rank with no decrease in pay, Sheriff Kilquist argued that the Act did not empower the merit commission to review or regulate this intradepartmental transfer which neither promoted nor demoted a merit employee. Moreover, Sheriff Kilquist urges that a reversal in favor of the appellant will hinder his authority in assigning existing personnel to vacant positions within the sheriff’s department, a result which will compromise and could defeat the purpose of the department.

Brown argues, however, that promulgation of article IV, paragraph I, was authorized by section 7 when read in conjunction with section 9 of the Sheriff’s Merit System Act, governing rules and regulations, which states:

“Pursuant to recognized merit principles of public employment, the Commission shall formulate, adopt and put into effect, rules, regulations and procedures for its operation and the transaction of its business.
The Commission shall set standards and qualifications for each class.” (111. Rev. Stat. 1987, ch. 125, par. 159.)

Brown acknowledges that formulation of regulations governing vertical transfers (promotion and demotion) of merit employees is evident under the plain meaning of the statute, while authority to formulate regulations governing horizontal transfers, such as is involved in the instant case, is not. However, Brown argues that an administrative agency may validly exercise its discretion to accomplish in detail that which is authorized in general terms by the enabling statute. (Boles Trucking, Inc. v. O’Connor (1985), 138 Ill. App. 3d 764, 778, 486 N.E.2d 362, 369.) Moreover, she maintains that the legislative history of the Sheriff’s Merit System Act clearly evidences an intent to confer on the commission the power and authority to regulate intradepartmental or horizontal employee transfers.

Brown urges that because the authority of the merit commission is ambiguous as delineated by the Act, a resort to the legislative history thereof is appropriate wherein support for job security for merit employees, whether the transfer be horizontal or vertical, is a contemplated goal and that the real issue is how much internal control the sheriff should have over his department. Brown also relies on law enforcement personnel’s special treatment under the law generally as evidence of a legislative intent to protect merit employees’ job security, horizontally as well as vertically. Finally, Brown argues that the reason for creation of merit commissions under the Act was continuity of employment under each sheriff’s administration and therefore as a matter of public policy the adoption of this regulation should not be found ultra vires.

We are cognizant of the fact that this issue is one of first impression. However, the supreme court has outlined the guidelines for our determination of whether the promulgation of this regulation was an ultra vires act by the commission in Schalz v. McHenry County Sheriffs Department Merit Comm’n (1986), 113 Ill. 2d 198, 497 N.E.2d 731. An administrative agency such as the merit commission is a creature of statute and has no general or common law powers. (Schalz, 113 Ill. 2d at 202, 497 N.E.2d at 733.) Any power or authority claimed by an administrative agency must find its source within the provisions of the statute by which the agency was created or devolve by fair implication and intendment from the express provisions of the Act as an incident to achieving the objectives for which the commission was created. (Schalz, 113 Ill. 2d at 202-03, 497 N.E.2d at 733.) Section 9 of the Sheriff’s Merit System Act which created the merit commissions is the enabling provision which grants the commission authority to make rules for its own operations and does not expressly authorize the commission to promulgate substantive rules of conduct for members of the sheriff’s department. (Schalz, 113 Ill. 2d at 203, 497 N.E.2d at 733.) Any authority to enact substantive regulations concerning internal matters of the sheriff’s office, therefore, must arise as an incident to the commission’s fulfillment of its statutory objectives. (Schalz, 113 Ill. 2d at 203, 497 N.E.2d at 733.) It is fundamental that administrative agencies cannot extend the substantive provisions of a legislative enactment or create substantive rights through exercise of their rulemaking powers. Fahey v. Cook County Police Department Merit Board (1974), 21 Ill. App. 3d 579, 583, 315 N.E.2d 573, 576.

The issue then becomes what are the statutory functions of the merit commission and in what areas has regulation been upheld as incident to carrying out those statutory functions. The supreme court in Schalz determined that the commission was without authority to enact a regulation governing secondary employment of deputy sheriffs because such a regulation was not incidental to any of the functions of the commission expressed in section 7 of the Act: certifying applicants for employment positions, certifying employees for promotion, and disciplining or discharging employees upon complaint of the sheriff or State’s Attorney. (Schalz, 113 Ill. 2d at 204, 497 N.E.2d at 733.) The supreme court has also determined that the Sheriff’s Merit System Act must be construed, under the public policy of this State, to provide some method of review of disciplinary suspensions imposed by the sheriff. (Wagner v. Kramer (1985), 108 Ill. 2d 413, 420, 484 N.E.2d 1073, 1076.) We note, however, that the commission has no authority under the statute or the holding in the Wagner case to review a sheriff’s written letter of reprimand. (People ex rel. Narczewski v. Bureau, County Merit Comm’n (1987), 154 Ill. App. 3d 732, 736, 506 N.E.2d 402, 405.) The rationale of the court in Narczewski is that such an interpretation would be highly impractical and cumbersome to implement and would virtually eliminate a sheriff’s authority to impose minor disciplinary sanctions without having to justify the sanctions to a county merit commission. We note the similar argument of Sheriff Kilquist that giving merit employees what is in fact veto power of proposed intradepartmental transfers will severely erode the sheriff’s authority over operation of the department.

Brown argues that the objective of section 7 of the Act is the protection of merit commission employees on vertical movements or, essentially, job security. Likewise she theorizes that the objective of regulation article IV, paragraph I, is protection of job security, so that a merit employee will not be moved into a department in which she is not experienced or in which she has no desire to work. Although Brown appears to be arguing that the intradepartmental transfer could be deemed a de facto demotion or disciplinary action, Sheriff Kilquist correctly notes that there is no evidence in the record to indicate that the transfer was a disciplinary sanction. Moreover, we refuse to categorize intradepartmental transfers as disciplinary in nature which necessarily presumes lack of good faith on the part of the sheriff.

We simply do not read the objective of section 7 of the Act as broadly as appellant would so urge, and we do not believe that regulation of horizontal or intradepartmental transfers of merit employees by the commission is an incident to achieving the objectives for which the commission was created. Section 7 duties of the merit commission are qualified by the phrase “pursuant to recognized merit principles of public employment.” Cardinal among these well-known principles is that the purpose of civil service laws is to provide a method which ensures competent service for governmental bodies, free of the spoils system. (Fahey, 21 Ill. App. 3d at 586, 315 N.E.2d at 578.) To encourage their application and retention, qualified personnel are assured of tenure in their positions. (Fahey, 21 Ill. App. 3d at 586, 315 N.E.2d at 578.) Once an employee has qualified for a merit appointment and passed through a probationary period, a civil servant’s tenure lasts during good behavior and efficient service. (Fahey, 21 Ill. App. 3d at 586, 315 N.E.2d at 578.) Tenure is “property” as the due process clause of the fourteenth amendment (U.S. Const., amend. XIV) has been interpreted. (Dauel v. Board of Trustees of Elgin Community College (7th Cir. 1985), 768 E2d 128, 129.) On the other hand, we note that personnel disputes in State and local government over work assignments do not implicate the objectives of the fourteenth amendment. Brown v. Brienen (7th Cir. 1983), 722 F.2d 360, 365.

Protection of the merit employee’s due process property right in tenure or continued employment in a particular position is set forth in section 7 of the Act and the case law which has defined or limited the merit commission’s rulemaking authority to discipline, demote or discharge a merit employee. In addition, section 14 of the Sheriff’s Merit System Act sets forth the due process procedure involved for any removal, demotion, or suspension of a merit employee sought by the sheriff:

“Except as is otherwise provided in this Act, no certified person shall be removed, demoted or suspended except for cause, upon written charges filed with the Merit Commission by the sheriff. Upon the filing of such a petition, the sheriff may suspend the certified person pending the decision of the Commission on the charges. After the charges have been heard, the Commission may direct that the person receive his pay for any part or all of this suspension period, if any.
The charges shall be heard by the Commission upon not less than 14 days’ certified notice. At such hearing, the accused certified person shall be afforded full opportunity to be represented by counsel, to be heard in his own defense and to produce proof in his defense. ***
* * *
If the charges against an accused person are established by the preponderance of evidence, the Commission shall make a finding of guilty and order either removal, demotion, loss of seniority, suspension for a period of not more than 180 days, or such other disciplinary punishment as may be prescribed by the rules and regulations of the Commission which, in the opinion of the members thereof, the offense justifies. If the charges against an accused are not established by the preponderance of the evidence, the Commission shall make a finding of not guilty and shall order that the person be reinstated and be paid his compensation for the suspension period, if any, while awaiting the hearing.” (Ill. Rev. Stat. 1987, ch. 125, par. 164.)

Where, as here, the regulation governs a transfer involving neither promotion nor demotion, discipline or discharge of a merit employee, it cannot be said that the commission was attempting to attain the objectives of the Act by its promulgation of said regulation.

Moreover, we have reviewed the pertinent portion of floor debates making up the legislative history of the Sheriffs Merit Commission Act which Brown contends is clear evidence of a legislative intent to confer on the Commission the power to regulate intradepartmental transfers, and we reject such contention. In response to a question of how the Du Page County Merit Commission operated, Senator Philip replied:

“Du Page County does have the merit position, and what it in effect does, it allows the Merit Commission to decide on who will work in the sheriff’s department; and what they do in our county is, you have to take a test, you go before that merit board and they recommend to the sheriff three people for each one of those positions, and then the sheriff is allowed to pick those people. Now, if the sheriff wants to fire somebody or transfer some *** somebody, he has to go back to the merit board.” (81st Ill. Gen. Assem., Senate Proceedings, June 26, 1980, at 6.)

Assuming arguendo that Senator Philip was referring to a horizontal job transfer rather than a demotion during these floor debates, the legislature chose not to include review of intradepartmental transfers among the express functions of the commission in section 7. A primary rule of statutory construction is that the court must look to the very words of the statute to ascertain the legislative intent. (Fahey, 21 Ill. App. 3d at 584, 315 N.E.2d at 576.) Moreover, the entire statute must be considered and also the evil to be remedied and the object to be attained. (People v. Ivy (1985), 133 Ill. App. 3d 647, 653, 479 N.E.2d 399, 403.) Although the judiciary possesses authority to read language into a statute'that has been omitted through legislative oversight (In re Custody of Carter (1985), 137 Ill. App. 3d 439, 442, 484 N.E.2d 1175, 1177), we do not believe, based upon the purpose behind the Act as well as the constitutional protection set in place in sections 7 and 14 thereof providing administrative review of a sheriff’s intent to discipline, demote, suspend, or discharge a merit employee, that intradepartmental transfers, which are not entitled to the same constitutional protections, were intended by the legislature to be subject to administrative regulation or review. While we are mindful that a court on review must give deference to the factual findings of an administrative agency, a reviewing court is not bound to give deference to an administrative agency’s statutory construction and must instead exercise independent review and judgment. (Illinois Bell Telephone Co. v. Human Rights Comm’n (1989), 190 Ill. App. 3d 1036, 1046, 547 N.E.2d 499, 506.) It is the judgment of this court that article IV, paragraph I, of the Jackson County Merit Commission Regulations was not promulgated as an incident to the fulfillment of the statutory objectives of the Act and its promulgation was therefore an ultra vires act on the part of the commission. Accordingly, we affirm the November 21, 1989, order of the circuit court of Jackson County.

Affirmed.

LEWIS, P.J., and RARICK, J., concur.


author: JUSTICE HARRISON

text:
    CHARLES MASSIE, Plaintiff-Appellant, v. EAST ST. LOUIS SCHOOL DISTRICT NO. 189 et al., Defendants-Appellees.
    Fifth District
    No. 5 — 89—0761
    Opinion filed September 19, 1990.

      Harry J. Sterling, of Sterling & Kelley, P.C., of Fairview Heights, for appellant.
    Edward L. Welch, of Welch & Bush, P.C., of East St. Louis, for appellee East St. Louis School District No. 189.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Charles Massie, appeals from a judgment of the circuit court of St. Clair County which upheld, on administrative review, his dismissal as a tenured public school teacher for the Board of Education of East St. Louis School District No. 189. Three issues are presented for our review: (1) whether the procedures followed in securing plaintiff’s dismissal met the requirements of due process, (2) whether certain factual findings made by the administrative hearing officer were against the manifest weight of the evidence, and (3) whether the administrative hearing officer erred in concluding that the cause for plaintiff’s dismissal was irremediable. For the reasons which follow, we affirm.

The record before us established that plaintiff was employed by the Board of Education of East St. Louis School District No. 189 as a high school teacher. Plaintiff had worked for the Board for many years and entered upon “contractual continued service” pursuant to section 24 — 11 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 24 — 11), i.e., he was tenured. 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 January 4, 1988, to dismiss plaintiff from his employment “for cause.” See Ill. Rev. Stat. 1987, ch. 122, par. 10-22.4.

Various charges were specified in the Board’s motion. Among these were that:

“On a Saturday, November 21, 1987, in the late afternoon or early evening hours [plaintiff] did transport two female students of the East St. Louis Senior High School to his place of residence in Fairview Heights, St. Clair County, Illinois, where said students were permitted to drink large quantities of various intoxicating liquors to the extent that one of them became intoxicated.”

As required by section 24 — 12 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 24 — 12), the Board served written notice of the charges upon defendant within five days of the adoption of its motion and appended to the written notice a bill of particulars. Plaintiff, by his attorney, then made a written request to the Board for a hearing on the charges before a disinterested hearing officer. The Board, in turn, forwarded a copy of plaintiff’s request to the Illinois State Board of Education in accordance with the provisions of section 24— 12 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 24 — 12). Plaintiff and the Board selected a hearing officer from a list provided by the State Board, and the hearing officer, Howard Z. Gopman, accepted the appointment.

A hearing before Gopman was conducted on April 21 and 22, 1988. Nineteen witnesses were called to testify. These included plaintiff, his son, his wife, various students and former students from East St. Louis High School, parents of students, teachers, and the principal of East St. Louis High. Following the hearing, the parties submitted memoranda of law, and on December 16, 1988, the hearing officer rendered his decision. In that decision, the hearing officer concluded that the Board had sustained its burden of establishing its charge that on November 21, 1987, plaintiff had transported two female students, namely, Cynthia White and Reidie Mitchell, to his home, where they were “permitted to drink intoxicating beverages to the extent that Cynthia White became intoxicated.”

Although the hearing officer concluded that the Board had failed to establish its other charges, he found that plaintiff’s “taking the two students to his home unchaperoned and permitting them to drink intoxicating beverages” constituted “either immoral behavior or ‘other sufficient cause’ [for dismissal] under Section 10 — 22.4” of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 10 — 22.4). The hearing officer further found that the offending conduct established by the Board was not remediable, and he ruled that plaintiff had received all the process to which he was due. Accordingly, the hearing officer sustained the Board’s motion to dismiss plaintiff from his employment, and plaintiff’s employment was thereby terminated.

As authorized by sections 24 — 12 and 24 — 16 of the School Code (Ill. Rev. Stat. 1987, ch. 122, pars. 24 — 12, 24 — 16), plaintiff then sought administrative review of the hearing officer’s decision in the circuit court of St. Clair County pursuant to article III of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.). Following a hearing, the circuit court upheld the hearing officer’s decision, and plaintiff now appeals.

On this appeal, plaintiff argues, as he did before the circuit court, that his due process rights were violated by the procedure used to discharge him. In support of his claim plaintiff cites Cleveland Board of Education v. Loudermill (1985), 470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487. That case involved the termination of two Ohio public employees. Under Ohio law, those employees could be terminated only for cause. The United States Supreme Court held that the employees therefore had a property right in continued employment and that they could not be deprived of that right without due process. The question then became how much process was due.

The record showed that Ohio law did provide that if such employees were terminated, they were entitled to a full administrative hearing following the termination and to judicial review of the administrative decision. The Supreme Court held, however, that this was not sufficient. Rather, the Court held that in addition to the post-termination administrative procedures provided by Ohio law, the State was also required to provide notice of the charges and an opportunity to respond to those charges before the termination took effect. 470 U.S. at 545-47, 84 L. Ed. 2d at 506-07,105 S. Ct. at 1495-96.

In this case, plaintiff claims that the Loudermill standard was not met because he was not adequately apprised of the charges against him or given an opportunity to respond to those charges before he was dismissed. This is factually and legally incorrect. Plaintiff’s argument is premised on the assumption that he was actually discharged on January 4, 1988, when the Board adopted its motion calling for his dismissal. Such was not the case. A motion for dismissal filed pursuant to section 24 — 12 of the School Code (111. Rev. Stat. 1987, ch. 122, par. 24 — 12) is not itself an order of dismissal. The only time a motion for dismissal will operate to terminate a tenured teacher is where the teacher does not request a hearing on the charges against him. Where, as here, a hearing is requested, no dismissal occurs until the hearing officer renders his decision. 111. Rev. Stat. 1987, ch. 122, par. 24 — 12; Combs v. Board of Education (1986), 147 Ill. App. 3d 1092, 1099, 498 N.E.2d 806, 811.

Pending a hearing on a school board’s motion for dismissal, the most that the board can do by statute is suspend the teacher. (Ill. Rev. Stat. 1987, ch. 122, par. 24 — 12.) That is precisely what the Board did here. Indeed, the statutory notice which the Board sent to plaintiff on January 6, 1988, expressly indicated that he was being “suspended pending any hearing which is conducted in connection with this matter,” and that his “suspension [was] effective January 4, 1988.” (Emphasis added.)

This suspension was to be without pay. Proceedings to suspend tenured teachers without pay are not governed by the procedural requirements of section 24 — 12 of the School Code (111. Rev. Stat. 1987, ch. 122, par. 24 — 12). Although tenured teachers who face suspension without pay are therefore not entitled to a section 24 — 12 hearing, they are nevertheless entitled to procedural due process. The requirements of procedural due process are satisfied in the context of a suspension hearing where the school board acts pursuant to an established policy, provides written notice of the charges upon which the suspension proceedings are based, and provides a reasonable opportunity for a hearing at which the teacher may be represented by counsel and is permitted to cross-examine witnesses and to present evidence on his own behalf. Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc. (1987), 118 Ill. 2d 389, 406-07, 515 N.E.2d 1211, 1230.

There can be no dispute that these requirements were met here. The Board commenced suspension proceedings against plaintiff pursuant to Board Policy No. 520.17. In the notice of charges and bill of particulars which the Board served on plaintiff on January 6, 1988, the Board notified plaintiff that a suspension hearing would be held on the charges set forth therein. In accordance with the Board’s policy, the Board appointed an independent hearing officer to preside over that hearing, and the hearing was conducted one week later. Plaintiff has not claimed that he did not have adequate time to prepare for this hearing. At the hearing, which lasted two days, plaintiff was represented by counsel, and there is no suggestion in the record that he was denied the opportunity to cross-examine witnesses or to fully present the evidence then available to him.

The hearing officer’s determination was, to say the least, ambiguous. Because of this ambiguity, the Board decided not to discontinue plaintiff’s pay. Although plaintiff’s suspension remained in effect, he was not removed from the payroll during the pendency of the dismissal proceedings. Suspending an employee with pay in this way pending a pretermination hearing was expressly sanctioned by the United States Supreme Court in Cleveland Board of Education v. Loudermill (1985), 470 U.S. 532, 544-45, 84 L. Ed. 2d 494, 505-06, 105 S. Ct. 1487, 1495, where an employer “perceives a significant hazard in keeping the employee on the job.” In view of the nature of the various charges against plaintiff, the Board in this case could certainly have perceived that allowing plaintiff to continue his classroom duties would have posed such a hazard.

Although plaintiff thus received not one, but two, hearings prior to his ultimate termination, he nevertheless suggests that his due process rights were violated because he was not given notice and an opportunity to be heard prior to the time the Board adopted its January 4, 1988, motion calling for his dismissal from employment. This argument is wholly without merit. As our previous discussion has indicated, due process requires only that plaintiff be given notice and an opportunity to be heard prior to his termination (Cleveland Board of Education v. Loudermill (1985), 470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487), or prior to a suspension without pay (Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc. (1987), 118 Ill. 2d 389, 406-07, 515 N.E.2d 1211, 1230). Plaintiff has not cited, and we have not found, any authority which suggests in any way that a tenured school teacher is entitled to notice and an opportunity to be heard before dismissal or suspension proceedings are even initiated.

Plaintiff next contends that the circuit court erred in affirming the hearing officer’s finding that plaintiff had, in fact, transported two female students to his home and permitted them to drink enough intoxicating liquor that one of them became intoxicated, as had been charged by the Board. This argument must also fail. 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. (Board of Education v. Box (1989), 191 Ill. App. 3d 31, 37, 547 N.E.2d 627, 630.) This is not such a case.

While the testimony adduced at the pretermination hearing was not entirely consistent, plaintiff himself admitted that on the evening of November 21, 1987, he picked up Cynthia White and Reidie Mitchell and drove them to his home. Both girls were students at East St. Louis High School and were well known to plaintiff. Plaintiff picked up the girls after receiving a telephone call from Cynthia indicating that she had been drinking and could not return to her own home in that condition.

At plaintiff’s house were snack foods, soda, wine and “wine coolers.” When the group reached plaintiff’s house, he offered the girls soda and chips. Plaintiff also testified, however, that Cynthia pointed to some wine on the refrigerator in the kitchen and “said we are still going to have something to drink later on.” To this plaintiff responded, “That is fine.” Plaintiff related that Cynthia then “asked a, couple things about the alcohol and I said to her yes, that is pretty good wine there if you have a taste for it.”

Plaintiff did not remain at the house with the girls. Instead, he left for a dinner engagement. Before leaving, however, he did not lock up his liquor, nor did he tell the girls not to drink any of it. According to plaintiff, he simply told Cynthia “something again to the effect that if you go get drunk tonight, you are not going to like it, it is not all it is cracked up to be.” Plaintiff also recalled that he “said a couple things about if you decide to go drinking tonight, you are going to have to be careful, don’t mix your drinks and don’t have any sweet drinks because you will be sick as a dog tomorrow.”

Both Reidie and Cynthia testified that when plaintiff left for his engagement, they drank his wine. Although the girls apparently did not consume much, Cynthia testified that she had never had anything to drink before and that what wine she did consume caused her to become intoxicated. That Cynthia had become intoxicated was confirmed by Reidie and was not really ever denied by plaintiff.

By the time plaintiff returned home, Cynthia was asleep. Plaintiff attempted to “sober her up” by taking her into the bathroom, splashing water on her, and either yelling at her or slapping her. After plaintiff succeeded in rousing Cynthia, he drove Cynthia and Reidie from his home back to East St. Louis, where they lived. Although it was after midnight by this time, plaintiff did not drop Cynthia off in front of her house. Rather, he let her out of his truck at a school yard across from her house. He apparently did so because he thought that if she walked across the school yard in the chilly night air it would help her to “sober up.”

By way of mitigation, plaintiff asserted that when he left his house on the evening of November 21, 1987, he had no actual knowledge that Cynthia and Reidie intended to consume alcohol at his house. Although plaintiff does not deny discussing the consumption of alcohol with Cynthia, he claims that he thought that this conversation concerned Cynthia’s plans to drink at someone else’s house sometime later in the evening. The hearing officer evidently believed that this claim was simply not credible, and we see no basis for second-guessing his judgment. If plaintiff did not know, he should have known, under all of the circumstances present here, that Reidie and Cynthia would drink his liquor, if left unsupervised, and that they might become intoxicated in the process. There is therefore ample support for the hearing officer’s finding that plaintiff “did transport the two female students to his house where they were permitted to drink intoxicating beverages to the extent that Cynthia White became intoxicated.”

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. If the teacher’s conduct is irremediable, on the other hand, no written warning is required before dismissal action is initiated. Fadler v. State Board of Education (1987), 153 Ill. App. 3d 1024, 1028, 506 N.E.2d 640, 643.

As a general rule, the test for determining whether conduct is irremediable 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. (153 111. App. 3d at 1027, 506 N.E.2d at 643.) 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 his students, but also to the reputation of and faith in the faculty and school as a whole. 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 “[hjonesty, kindness, justice and moral courage for the purpose of lessening crime and raising the standard of good citizenship.” (Ill. Rev. Stat. 1987, ch. 122, par. 27 — 12.) To do what plaintiff did here is completely contrary to these principles.

We live in a time when substance abuse among young people has become pervasive. In recognition of this problem, our legislature has mandated the annual observance in public schools of “ ‘Just Say No’ Day” as a day

“on which children and teenagers declare and reaffirm their commitment to living a life free of drugs and alcohol abuse, and as a day on which to hold and participate in appropriate special programs, ceremonies and exercises, in the public schools and elsewhere, tending to encourage children to lead a healthy lifestyle, aware and free of the dangers of using drugs and alcohol abuse.” Ill. Rev. Stat. 1987, ch. 122, par. 27 — 20.2.

“Just Say No” is and must be more than an empty slogan. It is a call to action to help save a generation of young people from a blighted future. Teachers and parents must be united in this effort. Neither can succeed without the support and cooperation of the other. That this is so is amply demonstrated by the record before us. The evidence showed that Cynthia White’s mother clearly disapproved of her drinking. She did what she could to discourage it, but no parent can possibly control a teenager every hour of every day, and as a result of plaintiff’s irresponsible acts, her best efforts were rendered meaningless.

The public schools certainly cannot solve all our social problems. At a minimum, however, we believe that parents have the right to assume that the professional educators into whose hands they entrust the education and welfare of their children will not abuse that trust by providing their children with a haven for illicit and health-threatening behavior. When teachers conduct themselves as did plaintiff here, their conduct therefore does more than jeopardize the welfare of the particular students involved; it betrays the public trust and threatens the integrity of the entire public school system.

Plaintiff contends that his dismissal was nevertheless improper because the Board failed to establish the second element for determining whether conduct is irremediable, namely, whether the conduct resulting in the damage could have been corrected had the teacher been warned. This contention is wholly untenable. We are not dealing here with simple deficiencies in teaching or differences in methods of punishment. As in Fadler v. State Board of Education (1987), 153 Ill. App. 3d 1024, 1029, 506 N.E.2d 640, 644, we believe that the situation before us falls instead within the category of cases where the more appropriate focus is not whether the conduct itself could have been corrected by a warning, but whether the effects of the conduct could have been corrected. As in Fadler, we must conclude that the circumstances here are such that

“[a] warning, even if effective in stopping plaintiff’s conduct, would not be effective in correcting the *** damage to the students or the damage to the reputation of the faculty, school district and plaintiff himself. *** Plaintiff’s conduct has no legitimate basis in school policy or society. No purpose would be served by giving plaintiff a written warning. We conclude, therefore, plaintiff’s conduct is irremediable.” 153 Ill. App. 3d at 1029, 506 N.E.2d at 644.

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 East St. Louis School District No. 189. Accordingly, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

RARICK and HOWERTON, JJ., concur.