author: JUSTICE CHAPMAN

text:
    ROBERT C. BARTH, Plaintiff-Appellee, v. MAYNARD MASSA et al., Defendants-Appellants.
    Fifth District
    No. 5-88-0185
    Opinion filed July 17, 1990.

      Thomas A. LeChien, of Belleville, for appellant Michael Lee Massa.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Robert W. Schmieder, and Robert C. Black, of counsel), for appellants Maynard Massa and Sara Massa.
    Cook, Shevlin, Keefe & Ysursa, Ltd., of Belleville (Bruce N. Cook, of counsel), for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

On October 3, 1981, plaintiff Robert C. Barth, a Fairview Heights police officer, was shot and wounded in the right leg after responding to a burglary alarm at a sporting goods store. A little more than one year later defendant Michael Lee Massa, who was 15 years old at the time of the incident, confessed to the shooting.

Plaintiff filed suit seeking recovery for his injuries, and his third amended complaint named Michael’s parents, Maynard and Sara Massa, as defendants in count I, while counts II and III were directed against Michael for negligence and willful and wanton misconduct. At the close of plaintiff’s case, defendants Maynard and Sara Massa’s motion for a directed verdict was denied, as was a subsequent motion made at the close of all the evidence. The court did, however, enter a directed verdict in favor of the plaintiff against Michael Massa on counts II and III of the complaint after presentation of the defendants’ evidence. The jury returned a general verdict in favor of the plaintiff and against all three defendants in the amount of $130,000. The defendants’ post-trial motions were denied and they now appeal. For the reasons stated below, we reverse the judgment against the defendants Maynard and Sara Massa and affirm the judgment against defendant Michael Massa.

The testimony at trial established that the plaintiff responded to a burglar alarm at a sporting goods store at approximately 9:30 p.m. Sergeant Prindable, a fellow officer of the Fairview Heights police department, arrived on the scene at about the same time as the plaintiff. The officers observed a hole knocked through concrete blocks in the back wall of the store. The officers then heard a crashing noise coming from the front of the store and ran along opposite sides of the store toward the front. Plaintiff observed two figures running westbound and ordered them to halt. Plaintiff testified that one of them turned, lowered a gun over his left arm, and fired at plaintiff; plaintiff then fired one shot in return. The suspect, subsequently identified as defendant Michael Massa, fired a second shot which struck plaintiff in the leg. Plaintiff fell to the ground and heard, but did not see, a third shot. Sergeant Prindable testified that he heard the shots as he came around the side of the building and, upon seeing the plaintiff on the ground, fired six shots at the fleeing suspects, but both escaped.

Michael Massa testified that the gun used in the shooting was a Browning .9 millimeter handgun. Michael had purchased the gun, along with a shotgun and four rifles, one to two weeks before the shooting from a friend named Jeffrey Robb. The guns had been stolen, and Michael was aware of that fact when he bought them. Michael paid for the guns by withdrawing some money from his savings account — “maybe $100” — as a down payment and he paid the balance in installments from money he earned by working for his father as a veterinary assistant. Michael testified that he never told his parents about the stolen guns, and that he kept them hidden in the house. He stated that he never took the stolen guns out to show anyone, and to the best of his knowledge, his parents never knew that he had them.

Michael admitted that he and another boy broke into the sporting goods store to steal ammunition and other items. When the police arrived the boys ran out of the store through a front window and began running down the highway. Michael testified that as they were running away one of the officers fired at them and after the second or third shot he “jerked and the gun starting firing.” Michael also stated that he did not aim his gun at the plaintiff and he did not intend to shoot him.

Additional testimony by Michael and other witnesses established that prior to October 3, 1981, Michael owned three pellet or BB guns with his parents’ knowledge and permission. These included a C02 pellet revolver, a .177 caliber BB pistol, and a .22 caliber pellet-type air rifle. Pellets could not be fired out of the air rifle because the bolt was damaged. Michael also stated that he did not have C02 cartridges for the pellet revolver. Michael further testified that he possessed a firearm owner’s identification (FOID) card. He obtained the card so that he could go hunting with his father at his grandfather’s farm. His grandfather owned a 12-gauge shotgun, a pump rifle, and a bolt-action rifle which Michael would be permitted to use while hunting with adults. Michael also testified that he was a member of a target shooting club as well as a member of the National Rifle Association.

Several witnesses testified concerning an incident involving Michael and another boy, Paul Black, shooting BB’s or pellets at a group of boys from Michael’s backyard. Kathy Rosen testified that she went to the Massa home sometime in September 1981 and questioned Michael about an incident in which some of the neighborhood children, including Rosen’s two sons, were shot at by a pellet gun. She stated that Michael told her he was shooting at birds. Mrs. Rosen further testified that Sara Massa came to her home later that day to discuss the incident, and Rosen told Sara that the children had indicated that Michael had been shooting at them.

Robert Hansen, a former Fairview Heights policeman, testified that he received a report on September 22, 1981, of children being shot at with a pellet or BB gun. Eric Nystrom had reported that he had been struck in the thigh by a BB fired by Paul Black, who was with Michael in the Massa’s yard. Hansen spoke to Michael and his mother at their house, and Michael stated that he and Black were shooting at the trees and they were not aware that anyone had been hit by the BB’s. Hansen stated that he told Sara Massa that the matter would be referred to the youth services coordinator. Hansen also testified, over objection, that he told Sara that Eric Nystrom’s father had indicated that this was not the first such occurrence.

Bob Fendwald, youth counselor for the Fairview Heights police department, testified that he received a referral from Officer Hansen regarding Michael Massa in September of 1981. Fendwald testified that he spoke to Sara Massa on the telephone and informed her that counseling services were available, and that it appeared that this was not the first time that such a shooting incident had occurred. He stated that Mrs. Massa was told to call back if she desired counseling for Michael, but she did not do so.

Sara Massa testified that she recalled the visit from Officer Hansen in 1981, and that she talked to Kathy Rosen and Eric Nystrom’s father concerning the shooting incident on the same day. She denied, however, that anyone had ever suggested that her son needed counseling. Sara stated that she did not take Michael’s pellet rifle away from him following the incident because she knew that it did not work. Sara further testified that she was unaware that Michael had any rifles or other firearms in his possession at any time prior to his arrest.

Maynard Massa, Michael’s father, testified that he was aware of Michael’s interest in guns, but he was not aware of the presence of the stolen guns in his home until Michael was arrested for shooting Officer Barth. Maynard also testified that on occasion his father’s rifles and shotguns would be stored in his house after a hunting trip. These guns were usually stored in Michael’s bedroom closet because it was the largest one in the house. Michael testified that he knew that his grandfather’s guns were sometimes stored in his closet, but he “wasn’t supposed to mess with them.”

In addition to the testimony related above, plaintiff’s counsel elicited testimony from Maynard and Sara Massa concerning the events preceding Michael’s confession on October 20, 1982, regarding a phone call made by Maynard to Sara from the police station. This phone call was recorded without the knowledge or consent of Maynard or Sara and was the subject of a motion in limine by defense counsel. The trial court granted the motion and barred “any use at all of the transcript of that tape recording.” Maynard placed the phone call on October 19, 1982, after speaking to the police and to Michael, who was being questioned at the police station. According to Maynard, the police told him that they had reason to suspect that Michael had some guns, including a “Saturday night special,” and they requested that Maynard accompany them to search the Massas’ home. Maynard then called his wife at home and asked her to look through the house for the gun the police had referred to. He also told his wife to check the closet in Michael’s room and to remove “my” rifle and shotgun. Maynard testified that he was referring to his father’s guns which were sometimes kept in the closet, and that he used the term “my” because he used the guns more than his father. Maynard stated that he wanted the guns removed from his closet because he didn’t want the police to think that they were stolen weapons and he wanted to protect Michael.

Plaintiff’s counsel then introduced Maynard’s deposition testimony in which he stated that prior to the time the police searched his home in October of 1982, he was not aware of any firearms in the house except for the pellet guns. Maynard stated that he did not mention the possibility that his father’s guns might be in Michael’s closet because he was confused and misunderstood what plaintiff’s counsel meant by the word “prior.”

Sara Massa testified that Maynard called her from the police station and asked her to check Michael’s room for the handgun the police were asking about. He also asked her to check Michael’s closet for his shotgun and rifle and remove them. She stated that she searched Michael’s room for a pistol, but did not find one. She did find two “long guns” in the back of the closet in Michael’s room which she assumed belonged to her husband, and she removed them and placed them in her room. It was subsequently determined that these guns did not belong to Michael’s grandfather, but were instead two of the stolen weapons which Michael had purchased.

Ronald Berkhart, a Fairview Heights police officer who participated in the search of the Massa home, testified that he asked Sara Massa if there were any weapons in the house and she told him that there was a shotgun in her room. She also told Officer Berkhart that she had removed the gun the night before from Michael’s room.

Count I of plaintiff’s amended complaint, directed at Maynard and Sara Massa, alleged that they knew their son Michael possessed numerous guns and other associated equipment which were kept at the family residence. It further alleged that the Massas provided Michael with such guns and associated items, knew or should have known that Michael had previously misused guns in shooting at persons and private property and despite such knowledge they allowed Michael to possess various firearms. The complaint then alleged three specific negligent acts or omissions which constituted the proximate cause of plaintiff’s injuries. At the conference on jury instructions, however, plaintiff’s counsel agreed that one of the alleged acts of negligence was repetitive and therefore the jury was instructed that the defendants were charged with negligence in one or more of the following respects:

“(A) Negligently and carelessly failed to exercise parental control over their minor child, Michael Lee Massa, in that they allowed him to own or possess firearms or other weapons when they knew, or in the exercise of due care should have known, that such presented [a] hazard to other persons.
(B) Negligently and carelessly provided guns to Michael Massa when they knew, or should have known that he misused guns and presented a hazard to others.”

Defendants Maynard and Sara Massa contend that the allegations of plaintiff’s complaint, to the extent that they state a legally cognizable cause of action, are based on the theories of negligent parental supervision and negligent entrustment. Defendants argue that neither of these theories of liability is supported by the evidence and therefore the trial court erred in refusing to direct a verdict in their favor.

A verdict will be directed only where all of the evidence, when viewed in a light most favorable to the nonmoving party, so favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) Our examination of the defendants’ liability under plaintiff’s alternative theories is therefore based upon the Pedrick standard.

To prevail on a theory of negligent entrustment the plaintiff must show that the defendants entrusted a dangerous article to another whom they know, or should know, is likely to use it in a manner involving an unreasonable risk of harm to others. (Teter v. Clemens (1986), 112 Ill. 2d 252, 257, 492 N.E.2d 1340, 1342, citing 1 J. Dooley, Modern Tort Law §23.01, at 613 (1982).)

“ ‘It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.’ ” Teter, 112 Ill. 2d at 257, 492 N.E.2d at 1342, quoting Restatement (Second) of Torts §308, at 100 (1965).

From the evidence presented, it is clear that the defendants cannot be liable for negligent entrustment. Michael Massa shot the plaintiff with a stolen handgun which he had purchased one or two weeks prior tp the shooting. Michael testified that his parents were unaware of the existence of the pistol. Maynard and Sara Massa also testified that they had no knowledge of Michael’s possession of the gun. Clearly, the defendants cannot be liable for negligent entrustment of an article which they did not only not control, but did not even know existed.

The plaintiff argues, however, that the evidence supports an inference that Maynard Massa was aware of the existence of the stolen weapons located in Michael’s room. Plaintiff is apparently referring to the telephone conversation between Maynard and Sara Massa wherein Maynard told his wife to remove the rifle and shotgun from Michael’s closet. While it is true that negligence may be proved by circumstantial evidence, the inferences drawn from that evidence must be reasonable. (Kosrow v. Acker (1989), 188 Ill. App. 3d 778, 785, 544 N.E.2d 804, 808.) An inference of negligence cannot be established on the basis of mere speculation. (Kosrow, 188 Ill. App. 3d at 785, 544 N.E.2d at 808.) We do not believe that the jury could reasonably infer that Maynard or Sara Massa was aware that Michael possessed the stolen handgun prior to the October 3, 1981, shooting based upon Maynard Massa’s reference, more than one year later, to the rifle and shotgun in Michael’s closet. Any such inference would be pure speculation.

With regard to the allegation of negligent parental supervision, we note first that the general rule in Illinois is that parents are not liable for the torts of their minor children merely because of the parent-child relationship. (Basler v. Webb (1989), 188 Ill. App. 3d 178, 180, 544 N.E.2d 60, 62; Allstate Insurance Co. v. Pruitt (1988), 177 Ill. App. 3d 407, 411-12, 532 N.E.2d 401, 404.) Parents may be liable, however, for their negligence in failing to control their children under section 316 of the Restatement (Second) of Torts. (Basler, 188 Ill. App. 3d at 180, 544 N.E.2d at 62; Duncan v. Rzonca (1985), 133 Ill. App. 3d 184, 200, 478 N.E.2d 603, 613; Cooper v. Meyer (1977), 50 Ill. App. 3d 69, 72, 365 N.E.2d 201, 202-03.) Section 316 provides:

“A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child, and
(b) knows or should know of the necessity and opportunity for exercising such control.” Restatement (Second) of Torts §316, at 123-24 (1965).

To establish negligence under this section, the plaintiff must show: (1) that the parents were aware of specific instances of prior conduct sufficient to put them on notice that the act complained of was likely to occur (Kosrow v. Smith (1987), 162 Ill. App. 3d 120, 124, 514 N.E.2d 1016, 1019; Pesek v. Discepolo (1985), 130 Ill. App. 3d 785, 787, 475 N.E.2d 3, 4); and (2) that the parents had the opportunity to control the child (Campbell v. Haiges (1987), 152 Ill. App. 3d 246, 250, 504 N.E.2d 200, 203; Cooper, 50 Ill. App. 3d at 72, 365 N.E.2d at 203). We find that the evidence in this case, even when viewed most favorably to plaintiff, does not establish either of these elements.

Maynard and Sara Massa were aware that Michael was somehow involved in the BE gun shooting incident in September of 1981. Furthermore, construing the evidence most favorably to the plaintiff, they were told that this was not the first occurrence of this nature. We do not believe that these facts can reasonably be interpreted as putting the Massas on notice that Michael was likely to buy a stolen gun, commit a burglary, and shoot a police officer while attempting to escape. Moreover, even if we were to deem that the Massas had sufficient notice of Michael’s potential to misuse guns, there is simply no evidence of the opportunity to prevent the shooting of Officer Barth. “The duty of a parent is only to exercise such ability to control his child as he in fact has at the time when he has the opportunity to exercise it and knows the necessity of so doing.” (Emphasis added.) Restatement (Second) of Torts §316, comment b, at 124 (1965).

In Campbell v. Haiges (1987), 152 Ill. App. 3d 246, 504 N.E.2d 200, the trial court granted summary judgment to the defendant parents of a child who had attacked another child while in the care of a baby-sitter. The plaintiff’s complaint alleged, inter alia, that the parents knew of the child’s tendency for extreme violence, knew that they had the ability to control the child, and knew or should have known of the necessity and opportunity to exercise such control. In affirming the trial court, the appellate court noted that “the simplest answer to plaintiff’s complaint is that the [defendant’s parents] did not have the ability to control their child because they were both at work at the time of the alleged attack.” Campbell, 152 Ill. App. 3d at 250, 504 N.E.2d at 203.

In the instant case, it is undisputed that the shooting of Officer Barth did not occur in the presence of or in close proximity to defendants Maynard and Sara Massa. There is nothing to suggest that the Massas knew that when Michael left the house on October 3, 1981, he planned to break into a sporting goods store. Nor was there any evidence from which it could reasonably be inferred that they knew Michael was armed when he left the house that day. Absent some evidence that the Massas knew or should have known of the necessity and opportunity to control Michael’s conduct on that day, there can be no liability. (See Cooper, 50 Ill. App. 3d at 72, 365 N.E.2d at 203 (complaint against defendant parent was dismissed for failure to state a cause of action because, inter alia, the defendant was not at home and had no opportunity to control the conduct of the child at the time of the tort).) Section 316 does not, after all, purport to make parents vicariously liable for raising careless or delinquent children (see Restatement (Second) of Torts §316, Appendix, Reporter’s Notes, at 21 (1966) (“There is no ‘general responsibility for the rearing of incorrigible children’ ”)), but instead imposes a duty on parents to exercise that control which they “in fact [have] at the time” (Restatement (Second) of Torts §316, comment b, at 124 (1965)). No parental liability exists without notice of a specific type of harmful conduct and an opportunity to interfere with it. (Duncan, 133 Ill. App. 3d at 200, 478 N.E.2d at 613.) We find, therefore, that the trial court erred in denying Maynard and Sara Massa’s motion for a directed verdict. In view of our decision, we need not address the Massas’ other contentions of error.

We next consider the arguments of defendant Michael Massa that the trial court erred in: (1) directing a verdict in favor of plaintiff and against defendant for negligence and willful and wanton misconduct; (2) allowing the plaintiff to offer rebuttal evidence concerning the amount of money withdrawn from Michael’s savings account; and (3) allowing the plaintiff to present testimony of the BB gun shooting incident.

Michael first contends that the trial court should not have directed a verdict on count II of plaintiff’s complaint, alleging negligence, because based on the evidence presented the jury could have found that the plaintiff was comparatively negligent or that defendant’s conduct was not the proximate cause of plaintiff’s injury. Specifically, defendant argues that his testimony that Officer Barth fired first raised a triable issue of plaintiff’s negligence, and he further contends that because the bullet fragment recovered from plaintiff’s leg was never identified as a .9 millimeter bullet, there is a question of causation. Viewing the evidence in the light most favorable to the defendant (Pedrick, 37 Ill. 2d 494, 229 N.E.2d 504), we find that the court correctly directed a verdict in favor of plaintiff on count II.

Defendant argues that under Tennessee v. Garner (1985), 471 U.S. 1, 85 L. Ed. 2d 1, 105 S. Ct. 1694, a police officer may not use deadly force to apprehend a burglar unless it is necessary to prevent escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Thus, according to defendant, the jury could have found that plaintiff fired first, thereby inviting the defendant to return fire and contributing to his own injury. We find the defendant’s argument unpersuasive for several reasons. First, Garner held that a Tennessee statute authorizing the use of deadly force against an unarmed, nondangerous fleeing suspect was an unconstitutional violation of the fourth amendment’s protection against unreasonable seizures. The plaintiff in Garner had alleged a violation of his son’s constitutional rights when he was killed by a police officer while fleeing the scene of a burglary. Thus Garner was not a negligence action and is inapposite to the facts of this case. Furthermore, the majority in Garner acknowledged that an “armed burglar would present a different situation.” (Garner, 471 U.S. at 22, 85 L. Ed. 2d at 16, 105 S. Ct. at 1706.) It is undisputed that Michael Massa was armed with a .9 millimeter handgun.

Second, there is no evidence that the actions of Officer Barth, if he did indeed fire first, somehow contributed to his injuries. Defendant does not contend that he was startled by the shots, causing him to lose control of his weapon and resulting in the accidental shooting of the plaintiff.

Finally, we find untenable defendant’s argument that by shooting first Officer Barth “invited” him to return fire and thereby contributed to his injuries. Defendant has cited no authority, and we are aware of none, for the proposition that a police officer is contributorily negligent for the injuries he receives when engaging in a gun battle with a suspect.

With regard to the question of proximate cause, we find the defendant’s contention without merit. The plaintiff testified that he saw the fleeing suspect lower the gun over his arm and shoot in his direction. The other suspect did not fire a weapon. Plaintiff stated that he was hit in the leg by the second shot and then he heard a third shot as he fell. Two bullets were recovered at the scene and a third was removed from the officer’s leg. It is undisputed that the defendant’s gun discharged while he was fleeing the scene of the burglary. There is no question that the defendant’s conduct was the proximate cause of the plaintiff’s injuries.

Defendant also contends that the trial court should not have directed a verdict on count III, alleging willful and wanton misconduct, because: (1) there was evidence that the defendant did not intentionally fire his weapon; (2) the defendant was a minor and should not be held to the same standard of care as an adult; and (3) the question of proximate cause should have been decided by the jury. We note parenthetically that the defendant does not contend that it was inconsistent for the trial court to find that his conduct was both negligent and willful and wanton (cf. Hough v. Mooningham (1986), 139 Ill. App. 3d 1018, 487 N.E.2d 1281) and we therefore do not consider that question. In any event, negligence and willful misconduct are not necessarily mutually exclusive. Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 146, 383 N.E.2d 929, 937.

The defendant argues that the trial court should not have directed a verdict against him for willful and wanton misconduct because he testified that he did not aim at plaintiff and did. not intend to shoot him. Furthermore, defendant contends that his testimony showed that he did not intentionally fire his weapon, but instead that while running away he “jerked and the gun started firing.”

Conduct need not be intentional to be willful and wanton; it is sufficient if the act was “ ‘committed under circumstances exhibiting a reckless disregard for the safety of others’ ” (Landers v. School District No. 203 (1978), 66 Ill. App. 3d 78, 82, 383 N.E.2d 645, 647, quoting Hocking v. Rehnquist (1969), 44 Ill. 2d 196, 201, 254 N.E.2d 515, 518). Notwithstanding the defendant’s testimony, we find that the trial court correctly directed a verdict for willful and wanton misconduct. It is simply inconceivable that defendant, while running away from Officer Barth, could have unintentionally brought his weapon to bear on the plaintiff and then unwittingly fired three times, with one bullet striking the plaintiff, a second striking his police car, and the third landing in a building next to the burglarized premises. The inherent improbability of such an occurrence without an intentional or reckless act on defendant’s part, coupled with the plaintiff’s testimony that the defendant lowered the gun over his arm and fired directly at him, was such that no reasonable jury could have found for defendant. It has been held that pointing a loaded gun at another is such a gross deviation from the standard of care that it constitutes recklessness. (People v. Bauman (1975), 34 Ill. App. 3d 582, 589, 340 N.E.2d 178, 183.) We believe that carrying a loaded pistol while fleeing the scene of a crime and allowing it to discharge three times while it is pointing in the direction of one’s pursuers establishes, at a minimum, reckless disregard for the safety of others. Moreover, we find that the fact that the defendant was 15 years old at the time of the shooting does not require a different result. Defendant’s conduct was far below the degree of care that a reasonably careful 15-year-old with defendant’s mental capacity and experience and knowledge of firearms would use under the circumstances. With regard to defendant’s argument concerning proximate cause, the evidence, as related in our discussion of the negligence count above, was such that no triable issue was presented. We find that the trial court did not err in directing a verdict in favor of the plaintiff on count III of the complaint.

Defendant Michael Massa next contends that the trial court erred in allowing the plaintiff to offer rebuttal evidence regarding the amount of funds withdrawn from defendant’s savings account. During cross-examination by the plaintiff in the plaintiff’s case in chief, Michael testified that he paid about $200 or $230 for the stolen weapons. During Maynard and Sara Massa’s case in chief, testimony was elicited about Michael’s savings account and that he -withdrew about $100 to pay for the stolen guns. On cross-examination by plaintiff’s counsel, Michael stated that he thought he bought the guns about one week prior to the shooting. He also stated that while he did recall making a withdrawal from his savings account, he didn’t remember the amount of his initial payment for the guns, although he assumed it was about $100. After Michael presented his case in chief court was recessed. The next day, over counsel’s objection, the plaintiff introduced Michael’s savings account statement as rebuttal evidence. The statement showed that there was a withdrawal from the account on September 2, 1981, of $60 and another on September 21 of about $57. No other withdrawals were made in September or October. Defendant argues that the bank statement does not address a material issue, and does not explain, repel, contradict or disprove any evidence introduced by him. Defendant contends that if the bank statement was offered to contradict his testimony concerning withdrawals of money, which he made during his parents’ case in chief, then it should have been presented prior to Michael’s putting on his own case.

Rebuttal evidence is used to answer, explain, repel, contradict or disprove evidence introduced by the defendant. (Gabrenas v. R.D. Werner Co. (1983), 116 Ill. App. 3d 276, 283, 451 N.E.2d 1307, 1312; Brown v. Sexner (1980), 85 Ill. App. 3d 139, 149, 405 N.E.2d 1082, 1090.) The admission of rebuttal evidence is left to the discretion of the trial court, and its decision will not be disturbed on review unless an abuse of discretion is shown. (Gabrenas, 116 Ill. App. 3d at 284, 451 N.E.2d at 1312.) Moreover, the order in which evidence is presented is also a matter of the trial court’s discretion (Fedt v. Oak Lawn Lodge, Inc. (1985), 132 Ill. App. 3d 1061, 1068, 478 N.E.2d 469, 475; Savitch v. Allman (1977), 52 Ill. App. 3d 884, 888, 368 N.E.2d 224, 227), and an abuse of discretion is likely to occur only when a party is prevented from impeaching witnesses, supporting the credibility of impeached witnesses, or responding to new points raised by the opponent (Fedt, 132 Ill. App. 3d at 1068, 478 N.E.2d at 475).

The bank statement was offered to refute Michael’s testimony that he had withdrawn $100 from his bank account to pay for the stolen weapons. Plaintiff was attempting to disprove Michael’s testimony that he paid for the guns with his own money and apparently hoped to raise an inference that the money may have come from another source, presumably Michael’s father or mother. We do not find this to be improper rebuttal evidence, nor did the trial court abuse its discretion in allowing it following Michael’s case in chief. While it may have been more properly presented following Maynard and Sara Massa’s case in chief, we discern no prejudice to defendant in allowing it later, particularly since this evidence was introduced after the court had granted plaintiff’s motion for a directed verdict against Michael. Furthermore, defense counsel was given the opportunity to question Michael about the bank statement and elicited his explanation that he had withdrawn the money a couple of weeks before purchasing the guns. We find no error.

Defendant’s final contention is that the trial court erred in allowing the plaintiff to present hearsay testimony of the BB gun shooting incident. Defendant acknowledges that the trial court allowed the testimony for the limited purpose of showing that defendants Maynard and Sara Massa had notice of Michael’s misuse of guns. Out-of-court statements that are offered for an independent purpose rather than to establish the truth of the matter asserted are not hearsay. (Thornton v. University Civil Service Merit Board (1987), 154 Ill. App. 3d 1016, 1021, 507 N.E.2d 1262, 1266; Smith v. Solfest (1978), 65 Ill. App. 3d 779, 783, 382 N.E.2d 831, 834.) Nevertheless, defendant argues that the testimony did not establish notice because the evidence showed that Paul Black, not Michael Massa, shot the BB’s.

Whether or not the evidence established that Paul Black rather than Michael shot the boys does not affect the admissibility of the evidence. The testimony was admitted to show that Michael’s parents were told that he was involved in the incident. While the level of Michael’s actual participation in the incident would certainly affect the weight accorded to such evidence, there was no error in allowing the jury to consider it.

For the above-stated reasons, we reverse the judgment against defendants Maynard and Sara Massa and affirm the judgment against defendant Michael Massa.

Affirmed in part and reversed in part.

WELCH and HOWERTON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HOWERTON

license: Public Domain

text:
    ELIZABETH WINDEGUTH, Plaintiff-Appellee, v. NATIONAL SUPER MARKETS, INC., Defendant-Appellant.
    Fifth District
    No. 5-89-0622
    Opinion filed July 18, 1990.

      James A. Gottschalk, of St. Louis, Missouri, for appellant.
    James R. Moore, of Carterville, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Plaintiff slipped and fell on a grape in defendant’s grocery store. Plaintiff alleged that defendant was negligent in failing to: (1) keep the “floor area clean and free of produce and debris”; (2) place “sufficient mats or other nonskid surfaces in the aisle”; and (3) “give adequate warning of the hazard to plaintiff.”

Plaintiff withdrew the first claim of negligence by agreeing to give defendant’s proposed jury instruction that omitted this claim.

Defendant’s motions for directed verdicts on the other two allegations were denied, and a jury returned a verdict for plaintiff for $12,799.92.

Defendant claims that the circuit court erred in denying defendant’s motion for directed verdict for two reasons: (1) the evidence that plaintiff slipped and fell on a grape on defendant’s floor was not sufficient to prove defendant was negligent in failing to keep the floor area free of produce and debris; and (2) plaintiff’s evidence was insufficient to make a prima facie case that defendant was negligent in either failing to put mats in the aisle or failing to warn plaintiff that fruits and vegetables could be on defendant’s floor.

Defendant argues that to prove defendant negligent insofar as the presence of the grape on the floor, plaintiff must prove either: (1) the grape came to be on the floor through defendant’s negligence; or (2) defendant had actual knowledge the grape was on the floor, but failed to remove it; or (3) the grape had been on the floor a sufficient length of time so that it should have been discovered, thereby giving defendant constructive notice of its presence. Hayes v. Bailey (1980), 80 Ill. App. 3d 1027, 400 N.E.2d 544; Hresil v. Sears, Roebuck & Co. (1980), 82 Ill. App. 3d 1000, 403 N.E.2d 678.

Defendant correctly states law that does not apply to this case. Plaintiff withdrew the claim to which that law would apply and submitted the case on the theories that defendant failed to place sufficient mats on the floor and failed to warn.

Hresil, cited by defendant, is distinguishable because it is a constructive notice case. Constructive notice was not a theory of liability that was submitted to the jury in this case.

We turn then to defendant’s second claim; namely, that plaintiff failed to make a prima facie case. Specifically, defendant claims plaintiff did not prove that defendant’s alleged negligence in either failing to provide sufficient nonskid mats or in failing to warn was the proximate cause of plaintiff’s injury. Defendant argues that there is no proof that another mat, a larger mat, or a warning would have prevented plaintiff’s fall.

To prevail in a negligence suit, the plaintiff must prove that the defendant owed her a duty, that the duty was breached, that the plaintiff has suffered damages, and that the defendant’s breach of duty was the proximate cause of plaintiff’s damages. (Filipetto v. Village of Wilmette (1985), 135 Ill. App. 3d 781, 784, 482 N.E.2d 358, 360.) If the result of the defendant’s negligence is one that an ordinarily prudent person would have foreseen as likely to occur, then the defendant will be held responsible. (Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 393, 493 N.E.2d 1022, 1029.) There may be more than one proximate cause of an injury (Dodson v. Spain (1987), 154 Ill. App. 3d 1034, 1036, 507 N.E.2d 1306, 1307), and where the defendant owes a duty of due care, he may be liable even if his acts or omissions did not create the source of damage (Scott & Fetzer, 112 Ill. 2d at 393, 493 N.E.2d at 1029). The issue of proximate cause is ordinarily left to the trier of fact. Scott & Fetzer, 112 Ill. 2d at 393, 493 N.E.2d at 1028; Filipetto, 135 Ill. App. 3d at 784, 482 N.E.2d at 360.

In this case the defendant’s employees testified it was not unusual for grapes to be on the floor, for grapes to roll off the mats, and, in heavy shopping traffic, for grapes to appear on the floor within two minutes. The store manager testified he knew there was a hazard, that grapes on the floor are very slippery, and that a person is less likely to slip on food present on a mat than when food is on the floor.

Verdicts ought to be directed and judgments entered only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant, that no contrary verdict based on the evidence could stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

There is adequate evidence to support the jury’s finding that the defendant’s failure to provide adequate mats or warn of the dangerous condition was a proximate cause of plaintiff’s injury.

Next, defendant argues the circuit court erred in admitting Dorothy Treece’s testimony that she fell on grapes in defendant’s store a year and one-half before plaintiff’s fall. Defendant argues the two accidents were not substantially similar, making Treece’s accident irrelevant. Defendant relies on Simmons v. Aldi-Brenner Co. (1987), 162 Ill. App. 3d 238, 515 N.E.2d 403, which states:

“ ‘To make the proof of other independent accidents competent, the condition or thing shown to be the common cause of danger in such accidents must be the condition or thing contributing to the danger of the accident complained of.’ ” Simmons, 162 Ill. App. 3d at 246, 515 N.E.2d at 409.

Moore v. Bloomington, Decatur & Champaign R.R. Co. (1920), 295 Ill. 63, 67, 128 N.E.2d 721, 722-23.

We first address substantial similarity.

If the evidence of prior accidents is being offered only to show the defendant’s notice of the generally hazardous nature of the accident site, then the proponent does not have to establish a foundation showing the similarity between the prior accidents and the present accident. In fact, evidence of dissimilar prior accidents is relevant to the issue of whether the defendant knew the accident site was generally hazardous. Henderson v. Illinois Central Gulf R.R. Co. (1983), 114 Ill. App. 3d 754, 449 N.E.2d 942.

On the other hand, if the evidence is being offered to show the existence of a particular danger or hazard, then a foundation must be laid establishing the similarity between the prior accident and the present accident. Only similar accidents are relevant to show the existence of a particular danger. Henderson v. Illinois Central Gulf R.R. Co., 114 Ill. App. 3d at 758, 449 N.E.2d at 945.

In this case, the circuit court correctly admitted the evidence to prove notice.

Treece’s fall shows defendant’s knowledge of the hazardous condition. Both plaintiff and Treece slipped on grapes that were not on the mats and fell in the produce aisle. Treece’s testimony showed defendant knew she had fallen on grapes in the aisle of defendant’s store. Therefore, her testimony is relevant.

In the language of Simmons, the common cause of both falls was produce laying on the tile floor of the aisle, away from the matted area.

The admission of evidence is discretionary with the circuit court.

The circuit court did not abuse its discretion in admitting Treece’s testimony.

The circuit court is affirmed.

Affirmed.

CHAPMAN and WELCH, JJ., concur.


author: JUSTICE GORMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM M. BIESIADA, Defendant-Appellant.
    Third District
    No. 3-89-0434
    Opinion filed July 13, 1990.
    Rehearing denied September 4, 1990.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Larry VanDerSnick, State’s Attorney, of Cambridge (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

Following a jury trial, defendant William M. Biesiada was found guilty of two counts of second degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a)(1)) and four counts of armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A— 2). The trial court vacated one second degree murder conviction and one armed violence conviction (predicated on the murder charge) and sentenced the defendant to four consecutive 10-year prison terms. The defendant appeals his convictions and sentences. We affirm.

The record reveals the following information. The defendant was a member of a group of people who had been “feuding” with a rival group in the neighborhood. While the feud had been taking place for some time, it had escalated significantly during the summer of 1988. The events of August 18 and 19, 1988, precipitated the incident that led to the defendant’s arrest and subsequent conviction.

Donovan Bellcour, 15-year-old nephew of the defendant’s girlfriend, Dixie Heaton, testified that on August 18, 1988, at approximately 10 p.m., he was involved in a fight with members of the rival group. After being knocked to the ground by Bill Johnston, Donovan was kicked in the abdomen by Brian Hardy. The Kewanee police department responded to the altercation and separated the two groups, ordering them to return to their homes. No arrests were made. Donovan was having trouble breathing and was taken to the hospital by his mother, Becky Zapisek.

Members of the rival group went to Brian and Verna Hardy’s house. Members of the defendant’s group congregated at Dixie Heaton’s house. The Heaton house is located across the street from the Hardy house.

Members of the rival group sat on the Hardy house porch and yelled obscenities toward the Heaton house. When 15-year-old Melissa Blank joined the rival group on the Hardy porch, she was advised in celebratory terms that Donovan had been sent to the hospital as a result of a fight between Donovan and Brian and Bill. Comments were directed toward the Heaton house that the defendant’s new truck would be “trashed.” The defendant moved the truck closer to the Heaton house.

Becky Zapisek and her sister returned to the Heaton house at approximately 11:45 p.m. on August 18, 1988. They were greeted by jeers of “sluts” and “bitches” as they exited the car and entered the Heaton house. Once inside, Becky related to the group that Donovan was going to be kept overnight in the hospital for observation of possible liver or kidney damage.

According to the testimony of Becky, the defendant had a close relationship to Donovan. In response to the news about Donovan, the defendant had a worried, panicky look on his face and began pacing inside the house. Becky related that when the defendant opened the door facing the porch and looked outside, members from the rival group shouted “bastard” and “retard” and told him to go back inside. Threats were made that the house and his truck would be trashed. The defendant came back inside. Becky testified that he resumed pacing about the inside of the house, was pale and seemed to be getting more upset. The defendant then left the house and walked toward his truck. Becky testified that she heard name-calling and yelling as the defendant walked into the yard. She turned to talk to Dixie and heard gunshots. She turned and saw the defendant pointing a gun at the Hardy residence.

Several people were at the Hardy house when the defendant started shooting. Some were on the porch while others were inside. It was the testimony of several witnesses that the defendant retrieved a rifle from his truck and, in rapid succession, discharged it in the direction of the Hardy house. Brian Hardy was killed instantly by a shot to the head. Melissa Blank was shot twice, once in the shoulder and once in the hip. Sandra Blank, Melissa’s mother, was shot once in the leg. Marilyn Johnston, Verna and Bill’s mother, was shot once, the bullet travelling through one leg and lodging in the second leg.

After firing the shots, the defendant threw the gun in his truck and exited the area at a high rate of speed. He was apprehended without incident approximately one hour later. The defendant indicated in police reports that he did not recall the shooting but did recall people running and yelling. He recalled driving in his truck, but did not know that he fired a gun or where he disposed of it. The gun was never recovered. The defendant did not testify at trial.

The defendant was subsequently charged with two counts of first degree murder (Brian Hardy), three counts of attempted murder (Melissa Blank, Sandra Blank and Marilyn Johnson), and four counts of armed violence (one predicated on the murder of Brian Hardy, and three predicated on the aggravated battery of Melissa Blank, Sandra Blank and Marilyn Johnston).

Following a trial by jury, the defendant was found guilty of two counts of second degree murder and four counts of armed violence. He was found not guilty of the three attempted murder charges. The trial court vacated one of the second degree murder convictions as well as the armed violence conviction in regard to the murder of Brian Hardy. The trial court sentenced the defendant to four consecutive 10-year terms of imprisonment. The defendant appeals his convictions and sentences, raising several issues for this court’s consideration.

The defendant initially contends that he was not proved guilty of armed violence beyond a reasonable doubt. The defendant argues that the purpose of the armed violence statute is to deter the commission of a felony while armed with a dangerous weapon. Accordingly, since the evidence in the instant case shows that the underlying felony, aggravated battery, was not planned and the defendant was not armed until the precise time of the shooting, his convictions for the armed violence counts must be reversed.

We cannot agree with the defendant’s position. In People v. Eure (1986), 140 Ill. App. 3d 387, 488 N.E.2d 1267, the defendant was convicted on two counts of aggravated battery and one count of armed violence predicated on aggravated battery causing great bodily harm. The court in Eure distinguished People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48 (armed violence predicated upon voluntary manslaughter), and People v. Fernetti (1984), 104 Ill. 2d 19, 470 N.E.2d 501 (armed violence predicated upon involuntary manslaughter), noting that aggravated battery is a specific intent crime and since the use of a weapon can be deterred, “the purposes of the armed-violence statute may therefore be achieved by application of that offense to the predicate felony of aggravated battery.” People v. Eure (1986), 140 Ill. App. 3d 387, 395, 488 N.E.2d 1267.

While it is true that the facts in Eure are different from the facts involved in the instant case, we find that the same principles apply. In the instant case, the jury found the defendant guilty of three counts of armed violence predicated upon aggravated battery causing great bodily harm. Clearly the intent of the armed violence statute is to deter the commission of a felony while armed with a dangerous weapon. Whether the defendant had that weapon on his person prior to the commission of the predicate offense should not be the determinative factor. We read the statute broadly such that, prior to the underlying offense taking place, whether the defendant has a weapon on his person or whether he simply has ready access to that weapon, as long as he employs the dangerous weapon during the course of the underlying felony, the armed violence statute may properly be applied.

The defendant next makes a two-part argument that the armed violence statute was unconstitutionally applied to him in this case, resulting in an unjust sentencing scheme. The defendant first contends that he was subjected to greater penalties for wounding the three female victims than for killing Brian Hardy.

This contention was raised in People v. Decker (1984), 126 Ill. App. 3d 428, 467 N.E.2d 366. In Decker, the defendant was acquitted of attempted murder but was convicted of two counts of armed violence and aggravated battery. The defendant argued that the Class X penalty for armed violence was unconstitutionally disproportionate because it was more severe than the potential punishment for the more serious offense of voluntary manslaughter. As in the instant case, the defendant in Decker relied heavily upon People v. Wisslead (1983), 94 Ill. 2d 190, 446 N.E.2d 512, in support of her argument.

The court in Decker rejected the defendant’s argument. The court noted that the decision in Wisslead depended upon a comparison of closely related offenses, classifiable as included and greater. However, the court noted that voluntary manslaughter is unrelated to and fundamentally different from aggravated battery, and aggravated battery is not a lesser included offense of it. Decker, 126 Ill. App. 3d at 434.

The court acknowledged that the death of the victim is one respect in which voluntary manslaughter is more serious than the offense of armed violence predicated upon aggravated battery. But the court also noted that such a circumstance is inherent in every comparison of voluntary manslaughter with an offense in which no one is killed, and if that were the only criterion, armed violence with a category I weapon could never be predicated upon a nonfatal felony. The court also noted in other respects, such as the offender’s motive, voluntary manslaughter is less serious than armed violence predicated upon aggravated battery. Therefore, the court concluded that aggravated battery causing great bodily harm, when committed with a weapon, may be considered more serious than voluntary manslaughter committed with a weapon and that the statutory scheme producing that result was constitutional. Decker, 126 Ill. App. 3d at 435.

We find Decker persuasive. As in Decker, it can be said that the death of the victim is one respect in which second degree murder is a more serious offense than armed violence predicated upon aggravated battery. However, the defendant’s motive in second degree murder is less culpable than the motive of a defendant in aggravated battery. Additionally, armed violence predicated upon aggravated battery is unrelated to and fundamentally different from second degree murder. We conclude that the sentencing scheme in providing for a greater potential penalty for armed violence predicated upon aggravated battery than for second degree murder is not unconstitutional.

The defendant’s second argument in regard to this issue contends that the armed violence statute was unconstitutionally applied to him. The defendant argues that the presence of a dangerous weapon rendered him subject to the same potential penalty for aggravated battery as for attempted murder even though he was found not guilty of attempted murder and aggravated battery was a lesser included offense of attempted murder in this case.

The defendant’s entire argument is based upon a misconception that armed violence predicated upon aggravated battery for causing great bodily harm is a lesser included offense of attempted murder. An included offense is an offense which is established by proof of the same or less than all of the facts or a less culpable mental state than that which is required to establish the commission of the offense charged. Ill. Rev. Stat. 1987, ch. 38, par. 2 — 9(a).

In order to be found guilty of the offense of attempted murder, there is no requirement that a category I weapon, or for that matter, any other weapon, be used. Moreover, in order to be found guilty of attempted murder there is no requirement that the defendant suffer great bodily harm. Therefore, armed violence predicated upon aggravated battery for causing great bodily harm is not an included offense of attempted murder.

The defendant’s third issue contends that he was subjected to double enhancement in the sentencing scheme, which resulted in consecutive terms of imprisonment.

The defendant was sentenced to four consecutive sentences pursuant to section 5 — 8—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(a)), which provides in relevant part:

“The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury *** in which event the court shall enter sentences to run consecutively ***.”

The defendant maintains that the mandatory sentencing provision should not have been applied here because the element of great bodily harm was used to raise misdemeanor battery to felony aggravated battery, which, in turn, formed the predicate for the Class X felony of armed violence, thus triggering the mandatory imposition of consecutive sentences. The defendant cites no authority for this proposition.

We cannot agree that this constituted double enhancement. The statute does not require that all of the offenses under this section cause severe bodily harm. It clearly states “one of the offenses” causing such harm is sufficient. Considering the Class 1 second degree murder of Hardy and the three Class X armed violence convictions, the plain language of the statute directs the consecutive sentences. Accordingly, we find that the trial court properly followed the statute in sentencing the defendant to consecutive sentences.

The defendant raises additional issues that the judge at sentencing considered improper factors and that the sentence of 40 years was excessive. After examining the briefs of both parties and the record before us, we are of the opinion that these issues are without merit.

The decision of the circuit court of Henry County is affirmed.

Affirmed.

STOUDER and BARRY, JJ., concur.


author: JUSTICE BARRY

text:
    MICHAEL FERNANDES, Plaintiff-Appellant, v. JEREMY MARGOLIS, Defendant-Appellee.
    Third District
    No. 3-89-0170
    Opinion filed July 27, 1990.

      Jerry Serritella, of Peoria, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Michael Fernandes, plaintiff, appeals from an order of the circuit court of Peoria County dismissing his complaint against defendant Jeremy Margolis, Director of the Department of State Police, for retaliatory discharge and for enforcement of his right to a hearing prior to termination of employment as a probationary trooper with the Department.

Because this appeal is from a dismissal order, the allegations of the complaint must be considered true for purposes of the appeal. Plaintiff has alleged in count I that defendant is head of the Illinois Department of State Police, that plaintiff was hired by defendant as a police officer on June 15, 1986, that on May 27, 1987, defendant terminated plaintiff’s employment after a four-month period when plaintiff was enforcing traffic laws by writing traffic tickets and warnings, that two different supervising officers warned plaintiff that he was writing too many tickets and warnings, that defendant has unlawfully set limits on the number of citations a trooper should issue, and that plaintiff was terminated for issuing substantially more traffic citations than other officers. Under count I plaintiff sought back pay, an injunction requiring defendant to reinstate plaintiff, and damages of $15,000 for “humiliation, emotional distress and loss of reputation.”

In count II plaintiff alleges that defendant has issued regulations to govern the discharge of a probationary officer in the State Police Field Training Program Manual. The manual provides for a review board to evaluate each probationary officer during the 15th week of field training and again during the 11th month of the probationary period to determine whether the officer should be advanced or should receive additional training or should not be retained. In the event the review board determines that the probationary trooper should not be retained, he is referred to the special board for action. Proceedings before the special board are spelled out, and the probationary officer shall have an opportunity to address the board.

In the case before us, the complaint alleges that plaintiff was denied his right to be evaluated by a review board and to address the special board and that this amounted to a denial of due process rights.

Defendant’s motion to dismiss asserts that plaintiff was seeking relief against defendant in his official capacity, that such suits must be filed in the Court of Claims pursuant to section 1 of “An Act in relation to immunity for the State of Illinois” (Ill. Rev. Stat. 1987, ch. 127, par. 801), that plaintiff has filed a complaint with the Court of Claims, and that the circuit court lacks jurisdiction over the Department of State Police.

In announcing its decision, the trial court stated that the substance of the cause of action here is against the State of Illinois and that, applying the doctrine of sovereign immunity, the circuit court would not accept jurisdiction in this case.

Plaintiff contends that the circuit court erred in dismissing his complaint for want of jurisdiction, and we agree as to count II. The Court of Claims Act (Ill. Rev. Stat. 1987, ch. 37, pars. 439.8(a), (b)) vests exclusive jurisdiction in the Court of Claims over all tort and contract claims against the State and claims founded on administrative agency regulations.

Whether the State is the actual defendant depends not upon the formal identification of the parties but upon the issues involved and the relief sought. (Senn Park Nursing Center v. Miller (1984), 104 Ill. 2d 169, 470 N.E.2d 1029.) When the State will be directly and adversely affected, the suit is one against the State, but where the head of a State department has violated the State’s Constitution or laws, an action against that officer is not an action against the State. (Sass v. Kramer (1978), 72 Ill. 2d 485, 381 N.E.2d 975.) In other words, legal official acts of State officers are in effect acts of the State itself, but illegal acts performed by State officers are not, and such officers may be restrained by an action instituted by a citizen. Herget National Bank v. Kenney (1985), 105 Ill. 2d 405, 475 N.E.2d 863.

In a recent case involving discharge of a probationary employee of the Department of Corrections, violations of administrative rules governing an employee’s right to notice and hearings were held to be subject to remedy in the circuit court. In Farmer v. McClure (1988), 172 Ill. App. 3d 246, 526 N.E.2d 486, the court said:

“Violations of [administrative] rules are illegal and the shield of sovereign immunity does not protect such actions. A mandamus action to direct an official to perform an official duty properly can be brought in circuit court.” 172 Ill. App. 3d at 254, 526 N.E.2d at 492.

These principles govern count II of the case before us. The cause of action against defendant is for failure to follow the termination procedures contained in the Field Training Program Manual of the Department of which defendant was the director. Plaintiff alleges that this manual contains regulations for the Department of State Police. Violations of such regulations in discharging a probationary officer are unlawful actions not immunized by the doctrine of sovereign immunity or by the Court of Claims Act.

Defendant argues that he has a statutory right to discharge a probationary officer at will pursuant to section 9 of “An Act in relation to the Department of State Police” (Ill. Rev. Stat. 1987, ch. 121, par. 307.9). That statute grants defendant’s authority to discharge a probationary employee at will, but defendant has apparently directed that certain procedures shall be followed relating to those probationary officers who have reached the stage of field training. Having issued such regulations, whether directly or indirectly through his employees, defendant cannot violate his own regulations with impunity.

As to count I, which asserts a cause of action for retaliatory discharge, the parties have cited no cases ruling on the question of whether the Court of Claims has exclusive jurisdiction of such tort actions. However, we are aware of Morton v. Hartigan (1986), 145 Ill. App. 3d 417, 495 N.E.2d 1159, where the court held that the supervisors of a State employee, including the Attorney General, have a defense of absolute immunity from a claim for retaliatory discharge. Such an action can only be brought against the employer, the State of Illinois. An action for wrongful discharge from State employment, even when, as here, seeking injunctive relief in addition to money damages, must be brought in the Court of Claims. (Ellis v. Board of Governors of State Colleges & Universities (1984), 102 Ill. 2d 387, 466 N.E.2d 202.) We hold that the dismissal of count I was not error and is affirmed.

As indicated above, we conclude that it was error to dismiss count II for lack of subject matter jurisdiction. Count II is, therefore, remanded to the circuit court for further proceedings.

Affirmed in part; reversed in part and remanded.

HEIPLE, P.J., and STOUDER, J., concur.


author: JUSTICE STOUDER

text:
    METROPOLITAN WASTE SYSTEMS, INC., et al., Petitioners, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    Third District
    No. 3-90-0021
    Opinion filed August 7, 1990.

      Jenner & Block, of Chicago (Russell J. Hoover, of counsel), for petitioners.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Matthew J. Dunn and Michelle D. Jordan, Assistant Attorneys General, of Chicago, of counsel), for respondent Pollution Control Board.
    Daniel J. Bute, of Ottawa, for respondent City of Marseilles.

      George Mueller, of Hoffman, Mueller, Creedon & Twohey, of Ottawa, for amicus curiae.

   JUSTICE STOUDER

delivered the opinion of the court:

The petitioners, Metropolitan Waste Systems, Inc., Spicer, Inc., and Spicer Properties, Inc., sought local siting approval from the respondent, the city of Marseilles, for a new regional pollution control facility. Following a hearing conducted pursuant to section 39.2(d) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1989, ch. HV-k, par. 1039.2(d)), the city denied the petitioners’ request for siting approval. The petitioners appealed the city’s decision to the respondent, Illinois Pollution Control Board (PCB), pursuant to section 40.1 of the Act (Ill. Rev. Stat. 1989, ch. IIIV2, par. 1040.1), and the PCB affirmed the decision of the city. The petitioners appeal.

The issues raised on appeal are: (1) whether the city was authorized under the Act to alter the intended service area; and (2) whether the PCB properly found that the city’s denial of the petitioners’ local siting application was not against the manifest weight of the evidence.

In January 1988, the petitioners filed a request with the city for site location approval for a new regional pollution control facility pursuant to section 39.2 of the Act. Various objectors then filed suit seeking to enjoin the city council from conducting the required hearing, claiming that the city was institutionally biased in favor of the application. The trial court dismissed the suit, and this court affirmed the dismissal. Woodsmoke Resorts, Inc. v. City of Marseilles (1988), 174 Ill. App. 3d 906, 529 N.E.2d 274.

The city then retained an environmental attorney, Harvey Sheldon, to act as an independent hearing officer for the application. Following a lengthy hearing, Sheldon concluded that criteria (i) and (iii) through (ix) of section 39.2(a) of the Act (Ill. Rev. Stat. 1989, ch. 111V2, pars. 1039.2(a)®, (a)(iii) through (a)(ix)) had been met by the petitioners. With regard to criterion (ii), however, Sheldon concluded that more site-specific data regarding the bedrock were required.

The petitioners then moved to reopen the hearing and to extend the date for decision in order to address Sheldon’s concerns. The motion was denied, and before the city rendered a final decision, the petitioners withdrew their application.

On January 17, 1989, the petitioners filed a new application for site approval for the same location as the 1988 application. In addition, the petitioners submitted the results of additional bedrock studies. After the public hearing, Sheldon, the hearing officer for this application also, determined that the petitioners had met their burden of proof on each of the criteria set forth in section 39.2 of the Act.

On July 26, 1989, the city issued its decision. The city adopted Sheldon’s findings and recommendations with respect to sections 39.2(a)(iii) through (a)(ix). (Ill. Rev. Stat. 1989, ch. lllVa, pars. 1039.2(a)(iii) through (a)(ix).) The city, however, found that the petitioners failed to meet their burden of proof regarding criteria (i) and (ii). (Ill. Rev. Stat. 1989, ch. llD/z, pars. 1039.2(a)(i), (a)(ii).) The city, therefore, denied site approval. In so doing, the city rejected the findings of the expert it retained to review the application. We note, however, that no question was raised regarding whether the city is authorized to summarily reject the opinion of its own retained expert in such a technical field.

On July 27, 1989, the petitioners filed their petition with the PCB pursuant to section 40.1 of the Act. (Ill. Rev. Stat. 1989, ch. HV-k, par. 1040.1.) The petitioners argued that the city’s decision finding that the petitioners failed to meet their burden of proof on section 39.2(a) criteria (i) and (ii) was against the manifest weight of the evidence.

On December 6, 1989, the PCB issued its order and opinion upholding the city’s decision. A majority of the PCB held that the hearing was fundamentally fair and the city’s findings that the petitioners had failed to meet criterion (ii) were supported by the manifest weight of the evidence. However, no majority could be reached on whether the city’s findings that the petitioners had failed to meet criterion (i) were against the manifest weight of the evidence.

The PCB members subsequently filed three supplemental opinions. In sum, the three supplemental opinions demonstrate that: (1) Three PCB members believed that the city could alter the “intended service area,” while three PCB members believed that the city could not alter the “intended service area,” and (2) by a 4 to 2 vote, a majority of the PCB members believed that the city’s denial on criteria (i) and (ii) was not against the manifest weight of the evidence.

All of the statutory criteria set forth in section 39.2(a) must be satisfied before a local board may approve a local siting application. (Waste Management of Illinois, Inc. v. Pollution Control Board (1987), 160 Ill. App. 3d 434, 513 N.E.2d 592.) In reviewing the PCB’s decision in the instant case, we are limited to a determination of whether the administrative agency’s decision is contrary to the manifest weight of the evidence, and, as such, a reviewing court should not reweigh the conflicting testimony. City of Rockford v. County of Winnebago (1989), 186 Ill. App. 3d 303, 542 N.E.2d 423.

In the petitioners’ application, the proposed service area for the facility is made up of La Salle, Grundy, Kendall, Will, Du Page, Kane, McHenry, Cook, and Lake Counties in Illinois. One of the petitioners’ principal witnesses, Dr. Charles Haas, testified at the hearing that in his opinion the facility is necessary to accommodate the waste needs of the area it is intended to serve. While Haas testified that existing facilities had only a 41/2-year life expectancy, he also stated that, when considered individually, Grundy County had a facility with a remaining life expectancy of 7.7 years, Du Page County’s facility had a remaining life expectancy of nine years, Kane County’s facility had a life expectancy of 6.5 years, and La Salle County’s facility had a remaining life expectancy of seven years. The city and PCB concluded, therefore, that the petitioners’ facility is not needed in the area intended to be served.

Under criterion (i), the petitioners must establish that the site location is necessary for the area to be served. (Ill. Rev. Stat. 1989, ch. IIIV2, par. 1039.2(a)(i).) In reviewing PCB decisions regarding site location approval, an applicant need not show absolute necessity in order to satisfy criterion (i). (Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 122 Ill. App. 3d 639, 461 N.E.2d 542.) In denying the petitioners’ application, the city noted the petitioners did not establish that the facility was necessary because, absent the inclusion of Cook and Lake Counties in the intended service area, the instant facility was not needed. Section 39.2(a)(i) of the Act provides that the applicant has the burden of establishing that “the facility is necessary to accommodate the waste needs of the area it is intended to serve.” (Ill. Rev. Stat. 1989, ch. lllVa, par. 1039.2(a)(i).) We read the statute to mean that it is the applicant who defines the intended service area, not the local decision-making body. Therefore, because the city had no authority to amend the intended service area and because the city itself noted inferentially that with Cook and Lake Counties included in the intended service area, the petitioners would have proven need, we conclude that the petitioners satisfied criterion (i).

Section 39.2(a)(ii) requires that the petitioners establish that the “facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected.” (Ill. Rev. Stat. 1989, ch. lll1^, par. 1039.2(a)(ii).) The petitioners presented expert testimony to the effect that the proposed facility would comply with criterion (ii). The city presented expert testimony to the effect that the facility would not comply with criterion (ii). The petitioners argue that their witnesses were the only credible witnesses to testify in the instant case.

The petitioners assert that the opinions expressed by the city’s expert witness, Dr. Nolan Aughenbaugh, have no recognized scientific basis. Dr. Aughenbaugh stated that in his opinion, the site is underlain by a continuous system of vertical fractures that extends all the way to the St. Peter sandstone protecting the St. Peter aquifier. He further stated that, contrary to the petitioners’ expert, the clay liner was not sufficiently plastic to prevent flexure. Dr. Aughenbaugh, moreover, admitted that he had no way to verify his theory. We note that this St. Peter sandstone overlays the entire State of Illinois. Therefore, according to Dr. Aughenbaugh’s theory, there is no way to build a safe landfill in the State of Illinois. It is the PCB, however, that is the governing body properly designated with the duty to weigh the credibility, or lack thereof, of such witnesses. Accordingly, since it is not our function to determine which witnesses are more expert than others, and since we may not decide controverted facts, we are of the opinion that the PCB’s decision as to criterion (ii) will stand.

For the foregoing reasons, we affirm the decision of the Illinois Pollution Control Board.

Affirmed.

SCOTT and GORMAN, JJ., concur.


text:
    ROBERT E. PRATT, Plaintiff-Appellee, v. MARY I. PRATT WATSON, Defendant-Appellant (Union National Bank of Streator, Defendant).
    Third District
    No. 3-89-0669
    Opinion filed August 10, 1990.

      Daniel J. Bute, of Ottawa, for appellant.

      Melvin Hoffman, of Hoffman, Mueller & Creedon, P.C., of Ottawa, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff, Robert E. Pratt, filed a petition in which he sought to have a resulting trust established in his favor upon certain real property. The trial court held that the plaintiff was the beneficial owner of the property and entered an order in his favor. The defendant, Mary I. Pratt Watson, appeals. We affirm.

The record shows that prior to 1977 the plaintiff was a co-owner with Albert Baldwin of a certain piece of real estate. The plaintiff and Baldwin each owned a one-half interest, and the real estate taxes were generally paid by Baldwin with the plaintiff providing half of the funds. The 1976 taxes were not paid, however, and the property was subject to a tax sale at which Midwest Land Development Corporation (Midwest) was the successful bidder.

Thereafter, the plaintiff attempted to redeem the property, and Midwest challenged the redemption by filing a petition to expunge the redemption. Two creditors of Baldwin unsuccessfully attempted to intervene in this action. Midwest and the plaintiff then entered into an agreement whereby each was to have a one-half beneficial interest in a land trust set up pursuant to the agreement. Following the advice of his attorney, the plaintiff named the defendant as the nominee beneficiary of the trust in order to insulate himself from Baldwin’s creditors.

After the dissolution of the parties’ business relationship, the plaintiff requested that the defendant reconvey the property. The defendant refused, and the plaintiff filed a petition requesting that the trial court order the defendant to convey the property to him.

The plaintiff testified at the hearing on his petition that the defendant knew the land was not hers and that it was to be reconveyed to him at a later date. He also testified that this was not the first time such an arrangement had been made between the parties and that on the prior occasion the defendant had reconveyed the property to him. This testimony was corroborated by the plaintiff’s attorney, Michael Guio.

The defendant, who was the plaintiff’s daughter, office manager, secretary, and agent, testified that it was not her understanding that she was to reconvey the property to the plaintiff. She stated that it was her understanding that the plaintiff had given the property to her. In addition, she testified that at no time was she informed that she was a mere nominee and not the owner of the property.

Other evidence showed that the defendant, while acting as the plaintiff’s agent, had often signed papers on the plaintiff’s behalf. In addition, no evidence was presented establishing that any creditors of the plaintiff had any present or possible future interest in the property.

Following the hearing, the trial court specifically found that the conveyance to the defendant was not a gift. In addition, it found that the plaintiff had no creditors at the time the property was conveyed. The court therefore imposed a resulting trust in favor of the plaintiff on the defendant’s interest in the trust.

On appeal, the defendant first argues that the conveyance was a gift.

Whenever the validity of an inter vivos gift is questioned, the donee has the burden of proving by clear and convincing evidence the validity of the gift. In addition, if it appears that the donee was a fiduciary of the donor, then the proof must be even more clear, convincing, and unequivocal. (In re Estate of Ray (1972), 7 Ill. App. 3d 433, 287 N.E.2d 144.) To establish the existence of a valid gift, the donee must show that the donor intended to convey a gift. A trial court’s finding that a gift did not occur will not be disturbed on appeal unless the record as a whole clearly shows the contrary. Cuellar v. Cope (1974), 17 Ill. App. 3d-743, 308 N.E.2d 213.

The record in this case establishes that the plaintiff entrusted his business affairs to the defendant. From this evidence the trial court found that a fiduciary relationship existed between the parties. Neither party contests this finding, and we find no error with it. (Carey Electric Contracting, Inc. v. First National Bank (1979), 74 Ill. App. 3d 233, 392 N.E.2d 759.) As such, the defendant was obligated to prove the gift by evidence which was “more clear, convincing, and unequivocal” than ordinarily necessary.

The testimony of the plaintiff and Mr. Guio indicated that the plaintiff did not intend to give the property interest to the defendant. Further support for this position is found in the fact that the parties had entered into such an agreement in the past and the defendant had understood that the conveyance was a business transaction and not a gift. Although the defendant presented conflicting evidence, we find that this only created a credibility issue best left to the trial court for resolution. We therefore conclude that there was a sufficient basis in the record to support the trial court’s finding that the plaintiff did not intend to give the defendant the property interest.

The defendant next argues that the plaintiff’s conveyance to her was a fraudulent conveyance meant to hinder or defraud his creditors and as such was binding on the parties to the transfer.

Every transfer of property made with the intent to disturb, delay, hinder, or defraud creditors is void as against such creditors. (Ill. Rev. Stat. 1987, ch. 59, par. 4.) As a general rule, however, the transfer is binding on the parties to the transfer since the law will not permit a party to deliberately place his property out of his control for a fraudulent purpose and then, through the intervention of a court of equity, assist him in regaining the property after the fraudulent purpose has been accomplished. Rather, it will leave the parties as it finds them. (Peric v. Chicago Title & Trust Co. (1980), 89 Ill. App. 3d 271, 411 N.E.2d 934.) The exception to this rule is that if no actual fraud has occurred and no creditors were threatened, damaged, or hindered, then the court can properly reconvey the property to the transferor. See Rossow v. Peters (1917), 277 Ill. 436, 115 N.E. 524; Annot., 6 A.L.R.4th 862 (1981).

In the case at hand, the evidence showed that the plaintiff used the defendant as a nominee in an attempt to protect his property from Baldwin’s creditors. However, no evidence was presented showing that the plaintiff actually defrauded any creditors. In fact, no evidence was presented establishing that he had any creditors with any interest in the conveyed property. Therefore, we find that the trial court did not err in holding that the plaintiff was entitled to the property since no fraud occurred in this case.

In conclusion, we hold that the trial court did not err in finding that the conveyed property was not a gift and in ordering a resulting trust established in the plaintiff’s favor.

The judgment of the circuit court of La Salle County is affirmed.

Affirmed.

HEIPLE, P.J., and BARRY, J., concur.


text:
    KERRI KARARO, Plaintiff-Appellant, v. CARMELO C. RUIZ, Defendant-Appellee.
    Third District
    No. 3-89-0235
    Opinion filed August 10, 1990.

      Laird M. Ozmon, of Laird M. Ozmon, Ltd., of Joliet (James P. Stevenson, of counsel), for appellant.
    Ruth E. VanDemark, of Wildman, Harrold, Allen & Dixon, of Chicago, and David J. Cahill, of Wildman, Harrold, Allen & Dixon, of Wheaton (Robert T. Grueneberg, of counsel), for appellee.
   JUSTICE STOUDER

The plaintiff, Kerri Kararo, filed a medical malpractice claim against the defendant, Dr. Carmelo C. Ruiz. The trial court granted the defendant’s motion to dismiss, finding the plaintiff’s cause of action was barred by-the applicable statute of limitations. The plaintiff appeals.

The plaintiff was bom on January 13, 1968. The plaintiff filed her complaint against the defendant on January 12, 1989, and filed an amended complaint on February 27, 1989. In her complaint, the plaintiff alleged that on and prior to November 16, 1984, the defendant was retained to treat certain pains the plaintiff was experiencing. The plaintiff alleged that among other things, the defendant was negligent in misdiagnosing the plaintiff as suffering from Crohn’s disease (terminal ileitis) and negligently preformed an unnecessary appendectomy on the plaintiff. The complaint also stated that on July 17, 1987, the plaintiff learned that she was not suffering from Crohn’s disease.

The defendant filed a motion to dismiss pursuant to section 2— 619(a)(5) of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(aX5)), asserting the action was barred by the applicable statute of limitations. The trial court granted the motion, finding that because the plaintiff discovered the alleged negligence when she was 19 years old, her medical malpractice claim was subject to the limitations imposed by section 13 — 212(a) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212(a)). Since the plaintiff’s complaint was filed more than four years after the alleged negligence occurred, the trial court found the action time barred.

On appeal, the plaintiff contends the trial court erred in not applying the period of limitations found in section 13 — 212(b) of the Code.

Subsections (a) and (b) of section 13 — 212 state:

“(a) Except as provided in Section 13 — 215 of this Act, no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.
(b) Except as provided in Section 13 — 215 of this Act, no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 8 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death where the person entitled to bring the action was, at the time the cause of action accrued, under the age of 18 years; provided, however, that in no event may the cause of action be brought after the person’s 22nd birthday. If the person was under age of 18 years when the cause of action accrued and, as a result of this amendatory Act of 1987, the action is either barred or there remains less than 3 years to bring such action, then he or she may bring the action within 3 years of July 20, 1987.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 110, pars. 13— 212(a), (b).

The controversy in this case centers on the meaning of the the word “accrued” in section 13 — 212(b). Prior to the 1987 amendment, section 13 — 212 read in pertinent part: “If the person entitled to bring the action is, at the time the cause of action occurred, under the age of 18 years, or under legal disability or imprisoned on criminal charges, the period of limitations does not begin to run until the disability is removed.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212.

In medical malpractice cases, the Illinois Supreme Court has adopted the “discovery rule,” which holds that the cause of action accrues when the person injured learns of his injury or should reasonably have learned of it. (Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869; Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 262 N.E.2d 450.) A form of the discovery rule has been made an explicit part of section 13 — 212(a). The defendant argues that the use of the word “accrued” in section 13 — 212(b) means that the injured party must discover the injury before turning 18 in order for the that section to apply. If the injured party discovers the injury after turning 18, then the four-year period of repose found in section 13 — 212(a) must be applied to determine whether the injured party has timely filed.

In the instant case, the parties agree that the injury was discovered on July 17, 1987. Because the plaintiff was over 18 years of age when her cause of action “accrued,” the defendant argues that the four-year period of repose found in section 13 — 212(a) rather than the eight-year period of repose in section 13 — 212(b) applied. Since plaintiff’s original complaint was filed more than four years after November 16, 1984, the action was time barred.

It is fundamental that courts, when interpreting a statute, must ascertain and give effect to the legislature’s intention in enacting the statute. (Maloney v. Bower (1986), 113 Ill. 2d 473, 498 N.E.2d 1102.) However, statutes of limitation must be construed in the light of their objectives and must be liberally construed to fulfill the object for which they were enacted. (Mathis v. Hejna (1969), 109 Ill. App. 2d 356, 248 N.E.2d 767.) Statutes of limitation consistently have been construed so as to preserve a minor’s right to a day in court. Dachs v. Louis A. Weiss Memorial Hospital (1987), 156 Ill. App. 3d 465, 509 N.E.2d 489.

In light of these principles, we find the applicable period of repose to be determined by the time when the injury occurred. We find no intent on the part of the legislature to shorten the eight-year period of repose simply because the injury is discovered after the injured party turns 18. Parties are limited to at most four years after reaching age 18 in which to bring suit. This four-year period coincides with the four-year period of repose contained in section 13 — 212(a). The plaintiff in this case filed her suit within two years of discovery. The negligence is alleged to have occurred when the plaintiff was 16 years old. We find that because the alleged negligent acts occurred when the plaintiff was a minor, the eight-year period of repose in section 13 — 212(b) applied, and she had two years from the date of discovery to file her claim. Therefore, the trial court erred in granting the defendant’s motion to dismiss.

Since we find the plaintiff’s complaint was timely filed, we need not address the other arguments raised by the parties.

For the foregoing reasons, the judgment of the circuit court of Will County is reversed and the cause remanded for proceedings consistent with this opinion.

Reversed and remanded.

BARRY and SCOTT, JJ., concur.


author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. KEVIN A. HARRISON, Defendant-Appellee.
    Third District
    No. 3-89-0570
    Opinion filed August 10, 1990.
    Samuel Naylor VI, State’s Attorney, of Carthage (Judith Z. Kelly and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Albert V. Ancelet, of Capps, Ancelet & Stoverink, of Carthage, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The State charged the defendant, Kevin A. Harrison, with failure to reduce speed to avoid an accident (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 601(a)). The trial court subsequently dismissed the charge, relying on our ruling in People v. Lundgren (1986), 149 Ill. App. 3d 458, 500 N.E.2d 727. The State appeals, asking this court to reconsider Lundgren.

The record shows that the traffic citation issued to the defendant did not allege the speed at which he was traveling or the speed limit at the location of the accident. In Lundgren, we held that a complaint which fails to incorporate this information is fatally deficient.

We based our Lundgren decision on section 11 — 610(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951á>, par. 11 — 610(a)), which requires that all complaints for violation of article VI speed regulations must specify the defendant’s alleged speed and the applicable speed limit. Given the plain and unambiguous language of section 11— 610(a), we found that it applied to the article VI offense of failure to reduce speed to avoid an accident.

Since our Lundgren decision, the Fourth and Fifth Districts of the Illinois Appellate Court have ruled that a complaint charging this offense need not list the defendant’s speed or the applicable speed limit. (People v. Naber (4th Dist., 1989), 180 Ill. App. 3d 629, 536 N.E.2d 118; People v. Luka (5th Dist., 1989), 184 Ill. App. 3d 84, 540 N.E.2d 14.) Both courts noted that a complaint for failure to reduce speed to avoid an accident is normally issued after the vehicle has come to a sudden halt as a result of a collision, with the peace officer having made no observations of the speed of the defendant’s vehicle prior to the collision. Accordingly, requiring the officer to state on the citation the defendant’s speed has the practical effect of making it nearly impossible to charge someone with this offense. This runs afoul of the rule of statutory construction stating that repeal by implication is not favored and will not be found unless the legislature clearly intended that result. (People v. Moffitt (1985), 138 Ill. App. 3d 106, 485 N.E.2d 513.) Further, both courts noted that there is no reason for listing the defendant’s speed or the applicable speed limit in a section 11 — 601(a) complaint, since those facts are not elements of the offense. One can commit this offense at any speed, even when driving below the speed limit.

Having reconsidered this issue, we agree that requiring the State to include the defendant’s speed in the complaint simply places an impossible, and meaningless, burden upon it. We further agree that there is no clear indication the legislature intended to repeal section 11 — 601(a). Accordingly, we hereby overturn Lundgren and hold that a complaint charging the offense of failure to reduce speed to avoid an accident need not allege the speed of the defendant’s vehicle nor the applicable speed limit.

The judgment of the circuit court of Hancock County dismissing the charge against the defendant is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

HEIPLE, RJ., and BARRY, J., concur.