text:
    JEANETTE COATES, Indiv. and as Guardian of the Estate of Alonzo H. Coates, a Disabled Person, Plaintiff-Appellant, v. W.W. BABCOCK COMPANY et al., Defendants-Appellees.
    First District (4th Division)
    No. 1— 89—0948
    Opinion filed September 13, 1990.

      Donna Del Principe and Michael J. Kane, both of Kane, Obbish & Propes, of Chicago, for appellant.
    Tribler & Marwedel, P.C., of Chicago (D.J. Sartorio and Michael R. Stiff, of counsel), for appellees.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Jeanette Coates (plaintiff), individually and as guardian of the estate of her disabled husband, Alonzo Coates (Coates), appeal from the trial court’s dismissal with prejudice of the counts of her complaint against Reverend James Goodwin (Goodwin) and the Mount Olive Baptist Church (the Church) (hereinafter collectively referred to as defendants), alleging violations of the Premises Liability Act (Ill. Rev. Stat. 1989, ch. 80, par. 301 et seq.), the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, pars. 60 through 69), and loss of consortium. Plaintiff’s complaint alleged that Coates was injured when he fell from a ladder while installing ceiling fans on the Church’s premises pursuant to the defendants’ direction and supervision.

Because the high ceiling on the Church’s premises was an open and obvious danger, we conclude that the trial court properly dismissed plaintiff’s claim under the Premises Liability Act. In addition, although Coates volunteered to install the ceiling fans for no benefit or compensation to him and provided the ladder from which he fell, we determine that his status of volunteer did not warrant dismissal of plaintiff’s claim under the Structural Work Act. Accordingly, we affirm in part, reverse in part, and remand.

As ultimately amended, plaintiff’s complaint alleged the following pertinent facts. Prior to July 1986, the Church board of directors learned that its air conditioning unit was irreparably damaged. Coates was willing to donate and install ceiling fans, free of any cost to the Church, so that the Church would not have to purchase a new air conditioning system. Coates was a member of the board of trustees of the Church at the time, and Goodwin was Church pastor.

Coates began to install the ceiling fans, with the Church’s approval, on July 24, 1986. Defendants retained the right and authority to supervise and control his installation of the fans. Although not alleged in the counts of the complaint directed against defendants, it appeared from other allegations in plaintiff’s complaint that the ladder used by Coates had been obtained by him from his employer, a window cleaning company. Coates fell from the ladder while installing the ceiling fans, suffering serious injury.

In count III of her amended complaint, plaintiff alleged that defendants owed Coates a duty of reasonable care for his safety while he was on Church premises, in accordance with the Premises Liability Act. Plaintiff alleged that defendants breached this duty because they failed to use reasonable care in overseeing Coates’ work and failed to provide adequate equipment to enable Coates to safely install the ceiling fans.

Count IV of plaintiff’s suit alleged that the defendants violated the Structural Work Act. Specifically, plaintiff alleged that defendants failed to provide a safe, suitable and proper ladder for Coates’ support and weight, and that the ladder used by Coates was otherwise unsafe or unsuitable. Plaintiff’s amended complaint also included a derivative action for loss of consortium (count VIII).

In response to plaintiff’s amended complaint, Goodwin and the Church filed a motion to dismiss the counts of the amended complaint directed against them pursuant to section 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2— 619). Following a hearing, the trial court granted the defendants’ motion and entered an order that dismissed with prejudice counts III, IV, and VII as to defendants Goodwin and the Church. The court’s dismissal order found no just reason to delay enforcement or appeal. (107 Ill. 2d R. 304(a).) Plaintiff’s timely appeal followed.

Upon review, plaintiff asserts that defendants’ arguments regarding count III of the complaint, which alleges negligence on the part of the defendants under the Premises Liability Act, should be construed as contentions that this count was insufficient to state a claim for which relief may be granted, pursuant to section 2 — 615 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615.) Defendants concede on appeal that their motion to dismiss count III should have been brought under section 2 — 615, rather than under section 2 — 619 of the Code pertaining to affirmative matter that defeats the well-pleaded allegations of a plaintiff’s complaint. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9).) Accordingly, we consider whether the allegations of count III sufficiently state a claim for negligence under the Premises Liability Act to withstand a motion to dismiss brought under section 2 — 615 of the Code of Civil Procedure.

Under the Illinois Premises Liability Act, a possessor of land owes a duty to entrants to exercise “reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them.” (Ill. Rev. Stat. 1985, ch. 80, par. 302.) Plaintiff argues that the Church’s high ceiling was unreasonably dangerous because of the negligent manner in which defendants supervised Coates’ work and failed to provide him with proper equipment.

Plaintiff did not allege facts showing a defect in the premises which would cause an unreasonable danger to persons entering thereon. The condition which allegedly created an unreasonable danger and caused injury was the height of the ceiling, in excess of 20 feet, and the placement of the ladder by Coates to install the ceiling fans. However, it is well established that a landowner is not liable for injuries resulting from open and obvious dangers on the premises, including the open and obvious danger of falling from high places. (See, e.g., Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023.) We determine that Coates’ attempt to install the ceiling fans in the Church’s high ceiling by positioning his ladder in the Church pews was an open and obvious danger, and his injuries are therefore not recoverable from the defendants under the Premises Liability Act. Consequently, the trial court properly dismissed count III of plaintiff’s amended complaint.

Plaintiff attempts to invoke an exception to the general rule of nonliability for open and obvious dangers, i.e., that a landowner is liable for injuries resulting from open and obvious dangers on the land, where the landowner knew or should have known that the entrant would be distracted and momentarily forget the danger. (See, e.g., Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 142, 554 N.E.2d 223.) There is nothing in plaintiff’s amended complaint to indicate that defendants should have realized that Coates would be distracted and, forgetting the height from which he was working, act in such a manner that he would inadvertently fall from the ladder.

Plaintiff contends on appeal that she should be granted a remandment in order to amend count III of her complaint. However, the record indicates that the trial court offered plaintiff an opportunity to continue the court’s hearing with respect to defendants’ motion and that plaintiff declined the court’s invitation. It is readily apparent that plaintiff could have taken advantage of this continuance in order to draft amendments to count III of her complaint. Under these circumstances, we cannot say that defendants’ use of a hybrid motion to dismiss, relying upon both sections 2 — 615 and 2 — 619(a)(9) of the Code of Civil Procedure, prejudiced plaintiff in her response to defendants’ dismissal motion. Consequently, we do not believe that the trial court’s dismissal of count III should be reversed and remanded to provide plaintiff an opportunity to amend her complaint. See, e.g., Downers Grove Associates v. Red Robin International, Inc. (1986), 151 Ill. App. 3d 310, 502 N.E.2d 1053.

Based on the foregoing, we affirm the trial court’s dismissal of count III of plaintiff’s amended complaint.

Plaintiff also challenges the trial court’s dismissal with prejudice of count IV, which alleged that defendants violated the Structural Work Act. The trial court dismissed this count on the ground that Coates was not a “protected person” under that Act.

Defendants argue that Coates did not come within the purview of the Act because he volunteered to install the ceiling fans. The Structural Work Act protects “any person *** employed or engaged” on a ladder while undertaking the repair of a building. (Emphasis added.) (111. Rev. Stat. 1989, ch. 48, par. 60.) It is well established that the Act should be liberally construed in order to carry out its legislative purpose to protect persons engaged in extra-hazardous activities on or near a worksite. See, e.g., Ashley v. Osman & Associates, Inc. (1983), 114 Ill. App. 3d 293, 448 N.E.2d 1011.

In O’Brien v. Rogers (1990), 198 Ill. App. 3d 341, 555 N.E.2d 1005, the court held that the provisions of the Structural Work Act are applicable to one who volunteers to provide services that necessitate the use of a structural support to construct or repair a building. In reaching this conclusion, the court noted that the Act does not expressly limit its coverage to those who are paid for their labor. The court observed that the Act governs those who are “engaged” on a structural support as well as those who are “employed” thereon. The court reasoned that the term “engaged” would be rendered “completely superfluous,” and the beneficial purposes of the Act frustrated, if the Act were limited to those who use a structural support in the course of their employment. The court concluded that “the critical inquiry under the Act is the type of activity in which an individual is involved, not whether he receives compensation for that involvement.” 198 Ill. App. 3d at 348.

Based upon this precedent, we conclude that Coates was a protected person under the Act notwithstanding the voluntary nature of his services. The cases cited by defendants do not conflict with our conclusion. Holley v. Badgerow (1987), 162 Ill. App. 3d 572, 515 N.E.2d 1257, and Brown v. Village of Shipman (1980), 89 Ill. App. 3d 162, 411 N.E.2d 569, recognize that a sole proprietor who is personally in charge of the work performed on the owner’s premises is not a protected person under the Structural Work Act. However, there is nothing in the instant record to indicate that Coates was a sole proprietor personally in charge of installing the ceiling fans on the Church’s premises. Consequently, Holley and Brown are inapposite to the case at bar.

Defendants also argue that count IV of plaintiff’s amended complaint was insufficient because it does not allege specific facts to show that defendants were “in charge of” Coates’ activities. The Structural Work Act states in pertinent part that an “owner *** having charge of the *** repairing *** of any building * * * shall comply with all the terms” of the Act. (Ill. Rev. Stat. 1989, ch. 48, par. 69.) It has been held that mere ownership is insufficient to impose liability under the Structural Work Act and resolution of the issue of whether one is in charge of the work is a fact question that calls for an evaluation of the totality of the circumstances. (Zukauskas v. Bruning (1989), 179 Ill. App. 3d 657, 660-61, 534 N.E.2d 680.) In Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 321, 211 N.E.2d 247, the Illinois Supreme Court explained, “The term ‘having charge of’ is a generic term of broad import, and although it may include supervision and control, it is not confined to it.” See also ZukausJcas, 179 Ill. App. 3d at 662 (listing 10 factors considered significant in determining whether an owner “ha[d] charge of” the work).

Plaintiff’s amended complaint alleged that on the day of the incident, the defendants owned, operated, managed, maintained and controlled the Church premises. Plaintiff alleged that defendants retained the right and authority to supervise and control Coates’ installation of the ceiling fans. Plaintiff further alleged that defendants were in charge of the installation of the ceiling fans. Allegations such as these have been found sufficient to state a claim that an owner “ha[d] charge of” the work under the Structural Work Act. (See, e.g., Warren v. Meeker (1973), 55 Ill. 2d 108, 302 N.E.2d 54.) We conclude that plaintiff’s amended complaint is factually sufficient in this regard.

Defendants also assert that count IV of plaintiff’s amended complaint was deficient because it failed to state specific factual allegations showing that their alleged violation of the Structural Work Act was wilful. The Act states that “[f]or any injury to person ***, occasioned by any wilful violations of this Act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby.” (Ill. Rev. Stat. 1989, ch. 48, par. 69.) It has been held that the term “wilful” means “with knowledge,” and may be inferred from the circumstances surrounding the incident as alleged in the complaint. (See, e.g., Shaheed v. Chicago Transit Authority (1985), 137 Ill. App. 3d 352, 484 N.E.2d 542; Fedt v. Oak Lawn Lodge, Inc. (1985), 132 Il. App. 3d 1061, 478 N.E.2d 469.) Based upon our review of plaintiff’s amended complaint, we conclude that it is sufficient to demonstrate that defendants’ alleged violation of the Structural Work Act was wilful.

Because we find count IV of plaintiff’s amended complaint sufficient to overcome defendants’ dismissal motion, we conclude that plaintiff’s derivative action for loss of consortium was also improperly dismissed.

For the reasons stated, the trial court’s dismissal of count III is affirmed, the trial court’s dismissal of counts IV and VII is reversed, and the cause is remanded for further proceedings.

Affirmed in part; reversed in part and remanded.

LINN and JIGANTI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JIGANTI

license: Public Domain

text:
    WASTE MANAGEMENT, INC., et al., Plaintiffs-Appellants, v. INTERNATIONAL SURPLUS LINES INSURANCE COMPANY et al., Defendants-Appellees and Cross-Appellants (Matthew W. Cockrell, Contemnor-Appellant).
    First District (4th Division)
    No. 1 — 89—2636
    Opinion filed September 13, 1990.

      Rivkin, Radler, Dunne & Bayh, of Chicago (Bruce D. Drucker, Matthew W. Cockrell, and Victoria A. Walkowicz, of counsel), for appellants.
    Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers, Robert J. Franco, Michael A. Clarke, Scott 0. Reed, Andrew G. Witik, James P. Moran, and Mark D. Roth, of counsel), for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

These cross-appeals from a contempt order concern the applicability of the attorney-client and work-product privileges to documents which are necessary to resolve an issue raised by the party claiming the privileges. The plaintiffs, Waste Management, Inc., and Chemical Waste Management, Inc. (insureds), owned and operated five hazardous waste disposal sites which were the subject of several lawsuits alleging that the sites had leaked toxic chemicals. The present cross-appeals concern only the litigation with respect to the site located in Furley, Kansas (the Miller litigation). The insureds defended and settled the lawsuit, then sought indemnity from the defendants, International Surplus Lines Insurance Company and American Special Risk Insurance Company (insurers), pursuant to an environmental impairment liability insurance policy. The insurers denied coverage, and both parties filed declaratory judgment actions requesting a determination of their respective rights and liabilities under the policy.

The two declaratory judgment actions were consolidated, and during the course of discovery, the insurers requested production of the files of the insureds’ defense counsel in the underlying Miller litigation as well as the defense files in an action between the insureds and the prior owners of the site (the Nunn litigation). The insureds withheld certain of the documents based on the attorney-client and work-product privileges and provided the court with a detailed log of the withheld documents. The court ordered production of the files from the Miller litigation but denied the insurers’ request for production of the files from the Nunn litigation. Counsel for the insureds subsequently informed the court that the insureds would not comply with the court’s order to produce the underlying defense files from the Miller litigation. Counsel was held in contempt and fined $100. The insureds have appealed the contempt citation, arguing that the materials ordered to be produced were privileged. The insurers have appealed from that portion of the order which refused to compel the production of the underlying defense files in the Nunn litigation. The insurers maintain that by suing the insurers for reimbursement for their costs in defending and settling the Miller litigation, the insureds have put the reasonableness of those costs at issue and may not claim a privilege with respect to communications or documents necessary to resolve that issue. The insurers also claim that the documents are discoverable by application of the common-interest doctrine and by virtue of the cooperation clause in the insurance contract.

The Miller litigation arose in January of 1982, when a class action was filed in the United States District Court for the District of Kansas alleging that the insureds owned and operated a hazardous waste site located in Furley, Kansas, and were responsible for personal injury and property damage from the migration of toxic wastes. The Miller plaintiffs alleged that the insureds were negligent in the selection and operation of the waste disposal facility, that they negligently violated various regulations governing the operation of hazardous waste disposal sites and that they concealed material facts concerning test results at the site. The plaintiffs sought to recover for nuisance, negligence, strict liability and trespass. The insureds retained counsel and defended the Miller action, which was eventually settled in 1986 for $2,400,000. During the pendency of the Miller litigation, the insureds were sued by the prior owners of the site for breach of a promissory note tendered as part of the sale of the site (the Nunn litigation). The insureds then counterclaimed against the prior owners, alleging negligent design, construction and operation of the site. The insureds obtained a judgment against the prior owners in the amount of $10,675,342.17 and subsequently settled with certain of the prior owners for $1,500,000.

In their declaratory judgment action, the insureds are seeking reimbursement of $2,150,000 in settlement cost and legal fees of $850,000 incurred in defending the Miller litigation. The insurance policy pursuant to which the insureds seek indemnity contains two provisions which are of particular importance to the instant appeal. First, the policy obligates the insurer only to indemnify covered expenses and does not impose upon the insurer a duty to defend. The policy provides, in pertinent part:

“In consideration of the Premium and subject to the limitations, terms and conditions herein expressed, the Insurers agree to indemnify the Insured against all sums which the Insured shall be obligated to pay for damages by reason of the liability imposed upon the Insured by law ***.”

The policy specifically provides indemnification for the costs and expenses of litigation in defense of a covered claim. Second, the policy contains a cooperation clause, which provides:

“The insured shall cooperate with the company and, upon the company’s request, assist in making settlements, in the conduct of suits and in enforcing any right of contribution or indemnity against any person or organization who may be liable to the insured because of injury or damage with respect to which insurance is afforded under this policy; and the insured shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for first aid to others at the time of accident ***.”

In their complaint against the insurers, the insureds alleged that they had “performed all of their obligations and conditions precedent” under the insurance policy. The insureds further alleged that the $850,000 in defense costs incurred in the Miller litigation were reasonably and necessarily incurred and that the $2,400,000 settlement was reasonable and necessary. The insureds alleged that the insurers were notified of the settlement in advance and agreed by letter not to contest its reasonableness. The insurers’ answer denied coverage under the policy for various reasons and further denied that the insureds had met all of their obligations and conditions precedent. The insurers admitted sending a letter to the insureds agreeing not to contest the Miller settlement, but asserted that the letter was “based on information then known to it.” In its declaratory judgment action, the insurers alleged that one of the reasons for its denial of coverage for the Miller litigation was the insureds’ failure to advise the insurers of the Nunn litigation. The insurers alleged that their failure to report the Nunn litigation constituted a breach of the cooperation clause which required the insureds to cooperate with the insurers in enforcing any right of contribution or indemnity the insurers might have against third parties.

As stated earlier, the insurers sought discovery of the complete files of defense counsel in the Miller and Nunn litigation. The insureds withheld certain of the documents claiming that they were privileged from discovery pursuant to Supreme Court Rule 201(bX2), which states:

“All matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure. Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney.” 107 Ill. 2d R. 201(b)(2).

The objectives of pretrial discovery are to enhance the truth-seeking process, to enable attorneys to better prepare for trial, to eliminate surprise and to promote an expeditious and final determination of controversies in accordance with the substantive rights of the parties. (Mistler v. Mancini (1982), 111 Ill. App. 3d 228, 231-32, 443 N.E.2d 1125.) Disclosure is the object of all discovery procedures. (Buehler v. Whalen (1977), 70 Ill. 2d 51, 67, 374 N.E.2d 460.) Privileges, which protect certain matters from disclosure, are not designed to promote the truth-seeking process but rather to protect some “outside” interest other than the ascertainment of truth at trial. (E. Cleary, McCormick on Evidence §92, at 192 (2d ed. 1972).) For this reason, privileges are to be strictly construed as an exception to the general duty to disclose. (People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 535, 332 N.E.2d 649.) As stated in Taylor v. Taylor (1977), 45 Ill. App. 3d 352, 354-55, 359 N.E.2d 820, 821, when the principles of disclosure and privilege clash:

“[A] balance must be struck and an appropriate resolution will not be forthcoming by a wooden application of some general formula. The answer must lie, instead, in an analysis of the particular circumstances giving rise to the problem, ever mindful of the policy considerations which furnish a basis for the two principles.”

The insureds rely upon two privileges. First, they claim that certain documents are protected from disclosure because they were generated in preparation for trial and contained the theories, mental impressions, or litigation plans of their attorneys. This is commonly known as the work-product doctrine and is intended to prevent a “complete invasion of counsel’s files.” (Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 108, 432 N.E.2d 250, 252.) This doctrine stems from the belief that an attorney should not be deterred from adequately preparing for trial because of the fear that his efforts will be disclosed to opposing counsel. (Hickman v. Taylor (1947), 329 U.S. 495, 91 L. Ed. 2d 451, 67 S. Ct. 385.) In other words, the law recognizes that an attorney should not be permitted to try a case on “wits borrowed from the adversary.” Hickman, 329 U.S. at 516, 91 L. Ed. 2d at 465, 67 S. Ct. at 396 (Jackson, J., concurring).

Given the above-stated purpose, we do not believe that the work-product privilege applies to the documents sought by the insurers in the case at bar. The materials in question were not prepared for the instant declaratory judgment action. They were prepared by the insureds’ attorneys in preparation for the underlying lawsuits against the insured. Disclosure at this time could have no effect on the insureds’ attorneys’ ability to adequately prepare for the underlying suits. Therefore, although the work-product privilege may have been available to protect the documents from disclosure to the Miller and Nunn plaintiffs in the underlying litigation, we do not believe that it can be properly invoked to protect them against disclosure to the insurers in the present lawsuit.

Second, the insureds claim that the documents sought by the insurers are protected from disclosure by the attorney-client privilege. The purpose of the attorney-client privilege is to encourage and promote full and frank consultation between a client and his attorney by removing the fear of compelled disclosure of the communication. (Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 117-18, 432 N.E.2d 250.) The insureds argue that this purpose would be frustrated if the insureds knew there was a possibility that such attorney-client communications would be disclosed to their insurers in a subsequent coverage action. The insurers rely upon three arguments to support their assertion that the attorney-client privilege does not apply to the materials which they seek to discover. First, they maintain that by alleging that the defense fees and settlement costs were reasonable and necessary, the insureds have put the communications between the insureds and their attorneys in the underlying lawsuits at issue. Although there is no Elinois case law on point, several courts from other jurisdictions have held that where a party puts allegedly privileged communications at issue, it cannot claim a privilege with respect to those communications. Second, the insurers contend that the privilege is not available because the insureds and insurers both had a common interest in the underlying litigation, i.e., limiting the liability on the underlying claims. Third, the insurers maintain that in light of the cooperation clause contained in the insurance policy, the insureds could not have reasonably expected that their communications with their attorneys in the underlying lawsuits would have been protected from disclosure to the insurers.

The insureds have cited several cases in support of their contention that the attorney-client privilege is not available with respect to communications put at issue by the party claiming the privilege. In Merritt v. Superior Court (1970), 9 Cal. App. 3d 721, 88 Cal. Rptr. 337, J.A. Stafford Trucking Company was insured by the Reserve Insurance Company. Merritt obtained a judgment against the insured in an underlying personal injury suit, then filed an action against the insurer on the basis that the insurer failed to protect the interests of its insured. Merritt alleged that the insurer disabled Merritt’s personal injury attorney from settling the case within policy limits by furnishing conflicting and irreconcilable statements concerning the amount of insurance coverage which confused Merritt’s attorney. The insurer sought discovery of communications between Merritt and his personal injury attorney. Merritt claimed that the communications were protected from disclosure by the attorney-client privilege. The court found that “the theory of [Merritt’s] lawsuit placed in issue the conduct and state of mind of his personal injury counsel in failing to propose a settlement” and held that the communications sought by the insurer were subject to discovery. Merritt, 9 Cal. App. 3d at 730, 88 Cal. Rptr. at 342.

Truck Insurance Exchange v. St. Paul Fire & Marine Insurance Co. (1975), 66 F.R.D. 129, involved a factual situation very similar to the one before us. In that case, the insurer, Truck Insurance, defended and settled a lawsuit brought against its insured, American Security Van Lines. Upon learning that American Security was also insured by St. Paul Fire & Marine Insurance Company, Truck Insurance brought an action against St. Paul for indemnity or contribution. St. Paul denied liability and also sought discovery of the defense file from the underlying lawsuit to determine whether the attorney fees and settlement costs incurred by Truck Insurance were reasonable. Truck Insurance claimed that the underlying defense files were protected from discovery by the attorney-client privilege. The court refused to uphold the claim of privilege, holding that in defending and settling the underlying lawsuit, Truck Insurance was in effect acting on behalf of St. Paul and that both parties had a common interest in the outcome of the litigation. The court likened the situation to one in which two clients are represented in a matter of common interest by a single attorney. In that situation, the attorney-client privilege is not available to either client in a subsequent lawsuit between the two on the grounds that there could have been no expectation of confidentiality at the time the communications were made. (E. Cleary, McCormick on Evidence §91, at 191 (2d ed. 1972).) The court further stated that Truck Insurance could not claim a privilege with respect to the files of underlying defense counsel because the information contained therein was “at issue” where St. Paul was contesting the reasonableness of defense counsel’s actions in defending and settling the underlying lawsuit. Other courts have followed the reasoning employed in Truck Insurance. Charlotte Motor Speedway, Inc. v. International Insurance Co. (1989), 125 F.R.D. 127; Donovan v. Fitzsimmons (1981), 90 F.R.D. 583.

The insureds in the instant cause argue that failure to treat the materials in question as privileged would have the effect of creating a new and unwarranted “exception” to the doctrine of attorney-client privilege. In our view, this argument fails to recognize that it is the privilege which constitutes an exception to the general rule of disclosure. (People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 535, 332 N.E.2d 649.) We are not convinced that the protections afforded by the attorney-client privilege will be unduly eroded by a failure to apply it in situations where the allegedly privileged documents or communications are put at issue by the holder of the privilege.

The question then becomes whether the insureds, by suing the insurers for indemnity for settlement costs and defense fees, put the files of counsel who defended the underlying lawsuits at issue. With respect to the Miller litigation, the insureds’ complaint alleged that the defense fees and settlement costs were reasonable and necessary. The insurers argue that one of the factors determining reasonableness is the advice given to the insureds by their attorneys and that the communications between the insureds and their attorney and the attorney’s work product constitute the only source of that information. Also at issue, according to the insurers, are the nature of the damages, whether the liability in the Miller action was for clean-up costs not covered under the policy, and why certain parties were brought in for contribution and others released. We agree with the trial court’s determination that by asserting the reasonableness of its defense fees and settlement costs, the insureds put in issue documents from the underlying defense files which related to that issue. However, we do not believe that the court was correct in ordering production of the defense files in their entirety without first conducting an in camera inspection to determine whether the requested documents were in fact relevant to the issue of reasonableness. While the privilege may not be asserted with respect to documents put at issue, it is possible that the underlying defense files contain materials that do not relate to the issue of reasonableness. For example, certain of the documents may relate to communications regarding the coverage issues which are the subject of the instant declaratory judgment action. An in camera inspection would ensure that the attorney-client privilege is protected as to those documents which properly fall within the privilege. For this reason, we remand the cause to the trial court for the purpose of conducting in camera inspections in accordance with the views expressed in this opinion.

In their cross-appeal, the insurers contend that the trial court erred in finding that the Nunn documents were not placed in issue by the insureds because the insureds did not request fees er-eosts expended in defending that litigation. However, the insureds alleged that they met all of their obligations and conditions precedent under the insurance policy. The insured has the obligation to prove compliance with conditions in a policy prior to any obligation of an insurer to perform. (Whalen v. K mart Corp. (1988), 166 Ill. App. 3d 339, 343, 519 ,N.E.2d 991; Perlman v. Time, Inc. (1985), 133 Ill. App. 3d 348, 353, 478 N.E.2d 1132.) One obligation, as stated in the cooperation clause quoted above, was to cooperate with the insurer with respect to its rights to contribution and indemnity against third parties who might be liable to the insureds. The insureds are suing for indemnity for the Miller litigation, in which the underlying plaintiffs sued the insureds for, among other things, negligent design and operation of the waste disposal site. In the Nunn litigation, the insureds counterclaimed against the prior owners of the site for negligent design and operation of the landfill. They obtained a judgment of approximately $10 million which they settled with certain of the prior owners for $1.5 million. The insurers seek the files from that litigation to discover whether, in their conduct of the counterclaim and settlement, the insureds violated the insurance policy by impairing certain rights of contribution or indemnity held by the insurers against the prior owners. By alleging that they met all of their obligations and conditions precedent, we believe that the insureds placed the Nunn documents at issue. In accordance with our decision concerning the Miller documents, the Nunn documents would also be subject to in camera inspection for the purpose of determining whether they are relevant to the issue raised by the insureds.

In light of our disposition, it is unnecessary for us to discuss the argument of the insurers concerning the common interest doctrine and the cooperation clause.

Accordingly, the judgment of the circuit court is affirmed in part, reversed in part and remanded to the trial court for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

McMORROW, P.J., and JOHNSON, J., concur.


author: PRESIDING JUSTICE COCCIA

text:
    MARY ROHE, as Mother and Next Friend of Patrick J. Rohe, a Minor, et al., Plaintiffs-Appellants, v. PINAKINI S. SHIVDE et al., Defendants-Appellees.
    First District (5th Division)
    No. 1— 87—1439
    Opinion filed September 14, 1990.

      James H. Canel, Ltd., of Chicago (James H. Canel, of counsel), for appellant.
    Brian C. Fetzer, of Johnson, Cusack & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellee Pinakini S. Shivde.
    Lord, Bissell & Brook, of Chicago (Judy Platt Perlman, Hugh C. Griffin, and Diane I. Jennings, of counsel), for appellee Little Company of Mary Hospital.
   PRESIDING JUSTICE COCCIA

delivered the opinion of the court:

This action was brought on behalf of Patrick Rohe (Patrick), by his mother and next friend, Mary Rohe, and by Mary and Dennis Rohe, to recover for injuries sustained by their minor son as a result of alleged medical malpractice. Specifically, plaintiffs’ complaint, filed in April 1982, charged that Dr. Pinakini Shivde (Dr. Shivde) was negligent in failing to diagnose and treat Patrick’s bilateral, congenital hip dislocation and that Little Company of Mary Hospital (the Hospital) was both primarily and vicariously liable for the negligent medical care which Patrick received. The complaint also requested damages for Patrick’s pain, suffering and disability, and for the parents’ related medical expenses. Following protracted discovery, and a negotiated settlement with a later-added physician defendant, the trial court entered a final and appealable order on April 10, 1987, granting summary judgment in favor of the Hospital and denying plaintiffs’ motion to vacate a previous order granting summary judgment to Dr. Shivde. From these orders, plaintiffs now appeal.

The record discloses that Patrick was born at 3:35 a.m. on September 5, 1981, at Little Company of Mary Hospital in Chicago. Immediately after birth, he was taken from the delivery room to the Hospital’s neonatal intensive care unit, suffering from respiratory distress. Dr. Shivde was contacted by the intensive care nursery at approximately 4 a.m., and again at 5 a.m., and gave telephone orders to his attending nurse at these times. Dr. Shivde first saw Patrick on her regular daily rounds of the neonatal intensive care unit later that day and conducted a physical examination sometime prior to 12:50 p.m. The results of this examination included a diagnosis of polycythemia and secondary hypoglycemia. During the next five days, Patrick remained in the intensive care unit, where he was visited and examined by Dr. Shivde on a daily basis. Dr. Shivde also spoke with Mary Rohe several times about his condition. Despite the onset of jaundice on the third day, Patrick made gradual progress. By September 10, when he was discharged from the Hospital, his respiratory distress and other diagnosed medical problems had disappeared, with the exception of a mild heart murmur. At discharge, Dr. Shivde informed his mother about the heart murmur and advised her to make an appointment with a pediatrician to have it checked. At no time, from his admission to the intensive care nursery until his discharge from the Hospital, did Dr. Shivde note anything in Patrick’s medical chart relating to his hips or discuss the condition of his hips with his mother.

In a discovery deposition taken December 10, 1982, Mary Rohe testified that when Patrick was about one month old, she first noticed that his right foot turned outward. When this condition did not change during the next few months, she had Patrick examined by an orthopedic specialist in February 1982. The specialist determined that Patrick had congenitally dislocated hips and arranged his admission to Christ Hospital in Oak Lawn, Illinois, for immediate treatment with traction. This treatment was followed by surgery to reposition and cast the hips. Four subsequent hospitalizations were required in order to recast Patrick’s hips until they were properly repositioned. In July 1982, the cast was removed and Patrick was fitted for a brace. At the time of the deposition, he was still required to wear the brace at night.

Little Company of Mary is a licensed not-for-profit hospital which in September 1981 maintained newborn nurseries and a neonatal intensive care unit. The Hospital entered into a written contract with Dr. Shivde’s professional corporation, Neonatologist, Limited, in July 1977. Under the terms of the agreement, Dr. Shivde received an annual salary in return for carrying out specific administrative duties. These included supervising the operations of the newborn nurseries and intensive care unit, formulating medical policies for these units consistent with Hospital regulations, staffing these facilities under the direction of the department of pediatrics, providing educational programs in the field of neonatology to Hospital staff, and providing 24-hour coverage of the newborn facilities, with a neonatologist available for assistance at high-risk deliveries. The contract further provided that all infants admitted to the neonatal intensive care unit of the Hospital were to be admitted under the name of physicians employed by Neonatologist, Limited, which assumed full responsibility for their care. Although compensated by the Hospital for the above-mentioned administrative responsibilities, Dr. Shivde’s professional corporation billed the infants’ parents directly for the medical services which she provided in the Hospital’s neonatal intensive care nursery. The contract, executed July 1, 1977, was by its terms automatically renewable from year to year, absent 90-day written notice prior to the expiration of a term.

In her discovery deposition of August 30, 1983, Dr. Shivde stated that her relationship with the Hospital changed somewhat after 1978. She explained that between 1978 and 1982, when she left the Chicago area to practice in another State, she did not operate under a written contract with the Hospital or receive an annual salary. Instead, the Hospital paid her “minimal compensation,” essentially for arranging for a neonatologist to be available on call, 24 hours per day, for its high-risk newborns. She further stated that, during those years, she and the Hospital considered all of the infants in the neonatal intensive care unit to be her “private patients,” and that all admissions to the unit were made in her name. In other words, she regarded the newborns admitted to the Hospital’s intensive care nursery as “[her] practice,” and billed their parents directly for her medical services. Although a small number of pediatricians, all of whom had staff privileges at the Hospital, were also permitted to treat newborns there, she estimated that she provided about 90% of the newborn care at the Hospital during the relevant period. In addition, any sick infants, such as Patrick Rohe, were exclusively under her care. From the record before us, it is not clear whether Dr. Shivde and the Hospital were, in fact, still operating under the terms of the July 1, 1977, contract in September of 1981. We note that the Hospital’s motion for summary judgment, which it amended, by leave of the court, specifically to “clarify the status of Dr. P. Shivde vis-a-vis *** [the] Hospital,” refers to the attached, July 1, 1977, “service agreement executed between it and Dr. Shivde as support [for the premise] that there was no employment relationship between the two for professional services actually rendered to patients by Dr. Shivde or her corporation in the Neonatal Intensive Care Unit at [the] Hospital at the time of this incident.” (Emphasis added.) In any event, the defendants’ consistent position throughout this litigation has been that Dr. Shivde was not an employee of the Hospital at any time relevant to this case.

Dr. Shivde’s discovery deposition further reveals that she was certified in pediatrics by the American Board of Pediatrics in December 1980. Although she stated that she was preparing to take a subspecialty Board examination in November 1983, she was not Board certified in any pediatric subspecialty as of August 1983. Her medical training in pediatrics, and to a lesser degree, in neonatology, was quite extensive. It included post-graduate work in India and a two-year residency at Christ Hospital, both in pediatrics, as well as a two-year fellowship in neonatology at Christ Hospital, completed in 1977. Dr. Shivde estimated that between 1973 and 1981, she performed thousands of “newborn examinations,” which include manipulation of the infant’s hips to detect dislocation or subluxation.

Dr. Shivde described in detail the hip examination which she performed on newborn infants as a matter of routine practice, and its significance. She stated that she regularly administered “Ortalini’s test,” a procedure which involves flexing the infant’s hips and knees and abducting the hips to determine if a hip is dislocated. She also performed the “Barlow maneuver,” which involves the physician pushing the head of the femur back and out, with his thumb, in order to determine whether it can be dislocated. As Dr. Shivde explained, if an infant’s hips could be dislocated or subluxed in the course of either of these tests, a congenital problem was indicated and she would consult an orthopedic specialist about the condition. She further stated that detection of subluxation or dislocation of the hips in the course of the newborn examination is important because failure to detect such conditions could result in dysplasia of the hip joint, or acetabulum, which holds the head of the femur. Medical consequences of this condition include muscular problems, contractures, and disability. Dr. Shivde also agreed with the statement that the prognosis for a good recovery and good development of the acetabula in affected infants was related to early intervention and treatment.

Dr. Shivde’s deposition testimony focused on both “newborn examinations” and “discharge examinations” of newborn infants, both of which she routinely conducted .at the Hospital. The discharge examination was done just before an infant left the Hospital and involved the same procedures as the newborn examination, including Ortalini’s test and the Barlow maneuver. Dr. Shivde stated that if an infant’s hip is dislocatable at birth and is also dislocatable at discharge, her initial diagnosis of a hip problem is confirmed. Plaintiffs’ counsel inquired about hip dislocations which were diagnosed, and determined to be congenital, at a later time in the postnatal period. He asked whether the hips would also have been dislocatable or subluxible at birth. Dr. Shivde responded that in most cases, a congenital dislocation would have been detectable from birth; however, in a small percentage of cases, perhaps from 1% to 5%, hips which are found to be normal at birth could be dislocatable in the future. She explained that, generally, these are subluxible hips with unstable joints which would later dislocate. Because the Barlow maneuver is “not [one] hundred percent sensitive,” these unstable joints are not detected, during either the newborn or discharge examination, in a very small percentage of infants.

Asked if she could specifically recall Patrick Rohe and his medical problems following birth, Dr. Shivde stated that she would not have remembered him without the opportunity to review his medical chart, as he was not one of her most seriously ill newborns. However, she was able to describe his condition and his course of treatment, as previously summarized, by referring to the medical chart which she had prepared at the time.

The Little Company of Mary medical chart for Patrick Rohe, consisting of three pages, is the only written documentation of Patrick’s medical treatment which is included in the record on appeal. The first page, titled “Physician’s Record of Newborn Infant,” is a preprinted examination form listing 14 areas for examination, such as “General Appearance,” “Eyes,” “Lungs,” and “Heart.” Item number 14 is “Extremities (Including Clavicles and Abduction of Hip Joints).” Next to the listed items are two columns, headed “Admission Examination” and “Discharge Examination,” with space for the physician to designate one of two codes for each of the 14 items. The codes are “0,” for “No Abnormality,” and “X,” for “Abnormality.” There is added space for the physician’s description of abnormal findings and for the physician’s “progress notes.” While some basic information, such as Patrick’s date of birth and birth weight, are recorded at the top of this form, which is dated September 5, 1981, and signed by Dr. Shivde, no codes or descriptions of abnormal findings appear next to any of the 14 items. Instead, the notation, “See Progress Notes Please,” appears in this space. The second page of Patrick's medical chart, labeled “Progress Notes,” is a summary of the infant’s condition and treatment over the five-day period from September 5 to September 10, 1981. It is entirely in Dr. Shivde’s handwriting. A third page, labeled “Discharge Summary,” is a typewritten summary drafted from the progress notes on the second page and signed by Dr. Shivde. The discharge summary lists the final diagnosis of Patrick’s medical condition, for which he was treated, as “hyperviscosity with secondary hypoglycemia [and] hyperbilirubinemia.”

As Dr. Shivde acknowledged at her deposition, no reference whatsoever, positive or negative, is made to Patrick’s hips on any page of his medical chart. Dr. Shivde stated that there are several things which she checks in the course of examining every newborn infant, but does not chart, because she tends to restrict her notations to positive, or abnormal, findings. Nonetheless, she recalled doing a second “complete” and “thorough” physical examination, as outlined in the printed admission and discharge examination form, at the time of Patrick’s discharge from the Hospital on September 10, 1981. She stated that, during this examination, she would have reviewed Patrick’s hips. If she had had a positive finding, she would have recorded that fact and would have sought a consultation with an orthopedic surgeon regarding the management of the child’s condition.

Plaintiff’s amended complaint, filed June 18, 1982, specifically charged Dr. Shivde with (1) failing to perform a clinical examination to assess the presence of congenital hip dislocation; (2) failing to inform the parents of the need for follow-up care in the presence of congenital hip dislocation; (3) failing to perform adequate diagnostic tests; and (4) failing to consult with an orthopedic physician in the presence of congenital hip dislocation. It alleged that plaintiffs’ pain, suffering, and medical costs were the proximate result of these negligent acts.

Count II of the amended complaint charged the Hospital with negligence in failing to provide neonatal care consistent with the prevailing standard for similar institutions. Specifically, plaintiffs alleged that the Hospital (1) failed to require attending pediatricians to perform a newborn examination for the assessment of congenital hip dislocation as required by Hospital rules and procedures; (2) permitted physicians unskilled in the performance of neonatal care to provide such care; and (3) permitted an infant to be discharged from the neonatal intensive care unit “without having ascertained” whether there was a presence or absence of congenital hip dislocation. In addition, plaintiffs’ “Second Amended Complaint,” filed November 3, 1983, further alleged that the Hospital was negligent in restricting the care of neonates “so that only a physician uncertified in pediatrics and uncertified in *** neonatology was providing that care exclusively within the nursery of [the] [Hjospital.”

On April 25, 1984, the trial court ordered that all of plaintiffs’ expert witnesses were to be deposed on or before August 1, 1984, and that all of defendants’ experts were to be deposed before September 10, 1984. However, plaintiffs’ “Answers to Interrogatories,” filed November 9, 1984, stated that plaintiffs’ experts were not yet determined. At a subsequent pretrial conference, the court extended the deadline for deposing plaintiffs’ experts until March 20, 1985, and set May 20, 1985, as the date for closing all discovery. Plaintiffs eventually presented one expert witness, Dr. Benjamin Emmanuel (Dr. Emmanuel), who was deposed on May 21, 1985. Dr. Emmanuel stated at his deposition that he had very briefly reviewed Patrick’s medical chart. However, he further stated that he knew nothing about the Hospital, did not know what treatment was rendered to Patrick, and had no opinion with regard to the care and treatment of Patrick by the Hospital. Dr. Emmanuel also testified that he had no opinion with regard to the conduct of Dr. Shivde. The parties agree that Dr. Emmanuel made no statements at any time which were directly critical of either Dr. Shivde or the Hospital. Nor did Dr. Emmanual suggest or imply that either of the defendants might not have complied with the appropriate standard of care in the treatment of Patrick Rohe.

On June 7, 1985, Dr. Shivde moved the court, pursuant to Supreme Court Rules 219 and 220, to bar plaintiffs from presenting any expert testimony at trial, and to limit the testimony of Dr. Emmanuel to those opinions elicited at his deposition. (107 Ill. 2d Rules 219, 220.) In support of her motion, Dr. Shivde pointed out that plaintiffs had missed previous discovery deadlines before presenting Dr. Emmanuel, who had no opinion as to her conduct or Patrick’s medical care, and that plaintiffs had also failed to disclose any additional expert witnesses. The Hospital subsequently filed a similar motion. In an order dated August 8, 1985, the court granted both motions. The order specifically states that “[p]laintiff is barred from presenting any expert testimony as to Dr. Shivde [and] Little Co. of Mary Hospital aside from what may be elicited from Dr. Shivde as an adverse witness.”

On September 30, 1985, Dr. Shivde moved for summary judgment. (111. Rev. Stat. 1985, ch. 110, par. 2 — 1005.) Her motion relied on her deposition testimony, the trial court’s order barring plaintiff from presenting additional expert testimony, and a sworn affidavit which she attached to the motion. Dr. Shivde’s affidavit stated: (1) that she was a licensed Illinois physician, Board certified in pediatrics; (2) that she practiced in the specialty of neonatology at the Hospital from 1977 until 1982; (3) that she had knowledge of the standard of care of a reasonably well-qualified pediatrician and neonatologist in the Chicago area in 1981; (4) that, in her opinion, the standard of care requires that a newborn’s hips be examined twice in the nursery to detect dislocation or subluxation: (5) that she performed the appropriate examinations of Patrick Rohe’s hips, namely, the Ortalini Test and the Barlow maneuver, “upon two occasions — September 5, 1981 and September 10, 1981”; (6) that the examinations “revealed no abnormalities, no dislocation, and no subluxation,” and, “in view of the normal test results, the standard of care did not require that [she] inform Patrick’s parents as to the possible presence of a congenital hip dislocation or *** perform or order additional diagnostic tests or call in an orthopedic consultation”; and (7) that based on her review of Hospital records, her recollection of Patrick Rohe, and her knowledge, training and experience in neonatology, it was her opinion, to a reasonable degree of medical certainty, that she “complied in every way with the standard required of a reasonably well-qualified [p]ediatrician and [njeonatologist in [her] care and treatment of Patrick J. Rohe” at the Hospital in September 1981.

In response to the summary judgment motion, plaintiffs argued that a material issue of fact existed with regard to whether Dr. Shivde had actually performed the newborn and discharge examinations of Patrick’s hips which her own testimony had established as the applicable medical standard. Furthermore, they noted that Dr. Shivde had conceded that only in a very small percentage of cases would a physician not detect a congenital hip dislocation when properly examining a newborn, and also that failure to detect such condition increases the risk of harm to an infant. However, Dr. Shivde had noted absolutely nothing indicative of a hip examination in Patrick’s medical chart. Plaintiffs therefore urged the court to find that, viewing the motion in a light most favorable to them, a factual question remained that would preclude summary judgment in the doctor’s favor.

Dr. Shivde, in her reply to plaintiffs’ response, maintained that plaintiffs were attempting to argue that the standard of care for a reasonably well-qualified neonatologist requires that the results of a hip examination be charted. However, as she noted, plaintiffs had not provided expert testimony to establish such a standard, while she had presented both deposition testimony and an affidavit stating that she had knowledge of the appropriate standard of care and that she had complied with it. For these reasons, she believed that summary judgment in her favor should be entered.

On December 26, 1985, the trial court granted Dr. Shivde’s motion for summary judgment. A similar motion was then filed by the Hospital, citing plaintiffs’ failure to produce any expert witnesses to establish the Hospital’s applicable standard of care, or to establish that either Dr. Shivde or the Hospital breached the applicable standard, and that such a breach caused Patrick’s injuries. The Hospital’s motion also relied upon the trial court’s previous order barring plaintiffs from presenting any additional expert witnesses at trial. On April 21, 1986, the Hospital’s motion for summary judgment was granted.

At this juncture, the trial court proceedings were unfortunately complicated by the entry of an order dismissing the entire case for want of prosecution, due to an administrative mix-up, on March 7, 1986. It would serve no purpose to recount the serpentine maze of motions and orders which vacated the dismissal and eventually reinstated summary judgments in favor of both defendants. It is sufficient to state that on April 10, 1987, the trial court denied plaintiffs’ motion to vacate the December 26, 1985, order granting summary judgment to Dr. Shivde, found that order to be final and appealable, and further ordered that “the motion for summary judgment of Little Company of Mary Hospital is granted.”

Opinion

Plaintiffs first contend that several material issues of fact should preclude summary judgment for Dr. Shivde. They maintain that factual questions remain regarding (1) whether Dr. Shivde did perform the required diagnostic examinations on Patrick Rohe as part of a newborn examination and again as part of a discharge examination, but failed to document them; (2) whether she performed the required examinations, but was unable to diagnose the congenital hip dislocations because they were of a rare or unusual variety that may occur in a small fraction of all cases and are not diagnosable in newborns; and (3) whether, even if the examinations were properly done, she was also under a duty to document a complete and detailed physical examination upon Patrick’s admission and discharge from the nursery. For reasons which follow, we find that the trial court correctly determined that Dr. Shivde was entitled to summary judgment as a matter of law.

It is well established that summary judgment is appropriate where there is no material issue of fact. (Diggs v. Suburban Medical Center (1989), 191 Ill. App. 3d 828, 548 N.E.2d 373; Prather v. Decatur Memorial Hospital (1981), 95 Ill. App. 3d 470, 420 N.E.2d 810.) A defendant may move for summary judgment at any time (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(b)), and the trial court will grant the motion if “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law” (111. Rev. Stat. 1987, ch. 110, par. 2— 1005(c); Addison v. Whittenberg (1988), 124 Ill. 2d 287, 294, 529 N.E.2d 552, 555). However, if there are facts upon which reasonable persons may disagree, or varying inferences could fairly be drawn from the facts, the motion must be denied and resolution of these facts and inferences must be made at the trial. (Diggs, 191 Ill. App. 3d at 832, 548 N.E.2d at 376; Montes v. Hawkins (1984), 126 Ill. App. 3d 419, 423, 466 N.E.2d 1271, 1274.) Conversely, where facts contained in an affidavit in support of a motion for summary judgment are not contradicted by a counteraffidavit, such facts must be taken as true, and the nonmovant risks entry of summary judgment. Diggs, 191 Ill. App. 3d at 833, 548 N.E.2d at 376; Bennett v. Raag (1982), 103 Ill. App. 3d 321, 326, 431 N.E.2d 48, 51.

In order to recover for medical negligence, plaintiffs must establish the breach of a duty. (Conrad v. Christ Community Hospital (1979), 77 Ill. App. 3d 337, 341, 395 N.E.2d 1158, 1160.) This duty is the accepted medical standard of care in the community. (Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 600, 491 N.E.2d 803, 814.) Consequently, the well-settled general rule is that a plaintiff in a medical malpractice case must present expert testimony to establish all of the following: (1) the applicable standard of care against which defendant’s actions may be measured; (2) defendant’s deviation from the standard of care; and (3) that the defendant’s deviation from the standard proximately caused the plaintiff’s injury. (Addison v. Whittenberg (1988), 124 Ill. 2d 287, 297, 529 N.E.2d 552, 556; Purtill v. Hess (1986), 111 Ill. 2d 229, 241-42, 489 N.E.2d 867, 872; Roberts v. Sisters of Saint Francis Health Services, Inc. (1990), 198 Ill. App. 3d 891, 896, 556 N.E.2d 662, 666; Diggs v. Suburban Medical Center (1989), 191 Ill. App. 3d 828, 833, 548 N.E.2d 373, 377.) Generally, expert testimony is needed to support a charge of malpractice because jurors are not skilled in the practice of medicine and would find it difficult without expert testimony to determine a lack of skill or care on the part of a physician. (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 256-57, 381 N.E.2d 279, 282.) Exceptions to this general rule are few. For example, expert testimony is not required to establish the applicable standard of care where the physician’s treatment is so common or the act so grossly negligent that a layperson could readily evaluate it in light of his own knowledge and experience. (Purtill v. Hess (1986), 111 Ill. 2d 229, 242, 489 N.E.2d 867, 872; Walski, 72 Ill. 2d at 256-57, 381 N.E.2d at 282.) In the usual case, where expert testimony is required to establish the applicable standard of care, it is well settled that the testimony of the defendant doctor may suffice to establish the standard. (Beals v. Huffman (1986), 146 Ill. App. 3d 30, 38, 496 N.E.2d 281, 287; Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 598, 491 N.E.2d 803 813; Anderson v. Martzke (1970), 131 Ill. App. 2d 61, 65, 266 N.E.2d 137, 139.) Illinois courts have also held that where a defendant doctor submits his own affidavit in support of a summary judgment motion, and in his affidavit asserts that he was familiar with the standard of care in the geographic location and that the treatment and care rendered by him was in compliance with that standard, “and where the plaintiff has failed to bring forth evidence to the contrary even though afforded ample time to so do, then such an affidavit is sufficient for entry of summary judgment in favor of the physician.” Taylor, 142 Ill. App. 3d at 600, 491 N.E.2d at 814, quoted in Beals, 146 Ill. App. 3d at 38, 496 N.E.2d at 287.

Applying these principles to the case at bar, we conclude that plaintiffs did not meet their burden of contradicting the facts asserted in Dr. Shivde’s sworn affidavit with contrary evidence, so as to create a material issue of fact which would preclude summary judgment in the doctor’s favor. First, the parties do not contend that the newborn examinations and diagnoses at issue here would fall into any recognized exception to the general rule requiring expert medical testimony to establish the applicable standard of care. Furthermore, they agree that Dr. Shivde has, by her own sworn affidavit and deposition testimony, established the accepted standard of medical care by which her conduct should be judged. Nonetheless, plaintiffs claim that a question remains as to whether Dr. Shivde complied with that standard. They contend that her affidavit contradicts her deposition testimony in that “she claims specific detailed recall of performing the required examinations on two specific dates, September 5 and September 10, 1981,” while at her discovery deposition, taken two years earlier, “she had no recollection pertinent to this litigation of treating Patrick Rohe.” We must disagree. Having carefully reviewed defendant Shivde’s discovery deposition, and having compared it with her later-filed affidavit, we can find no significant discrepancies; nor do we find that one contradicts the other. The following are pertinent excerpts from Dr. Shivde’s deposition transcript:

“Q. [Plaintiff’s attorney]: Do you recall anything about the infant independent of the chart?
A. [Dr. Shivde]: After going through the chart, I did recall but if you were to ask me otherwise, I would not have recalled.
* * *
Q. And having looked at the chart, does that refresh your recollection about this child?
A. Yes.
Q. Now, having looked at the chart, do you remember anything about him that is not contained in the chart?
A. Yes, obviously, the — I haven’t read the examination of the hips which I do with every newborn, but there are several other things which I check and I don’t note them because they are negative points and I sort of restrict myself to the positive things.
Q. Is there anything else that you, having looked at the chart, recall about Patrick Rohe, having refreshed your recollection?
A. I remember his initial respiratory distress.
* * *
Q. Did you make a note of your initial examination of the infant?
A. Right. In the progress notes.
Q. Is that the 9-5-81 note?
A. Yes.
* * *
Q. Would you look at the newborn examination form. It’s forward of that.
A. Yes.
Q. Okay. Did you make an entry on that sheet?
A. Right.
Q. What did you — what entry did you make?
A. I just wrote, ‘See progress notes,’ because there are several findings that usually — .
* * *
Q. And then you signed off on it?
A. Right.
* * *
Q. Do you recall doing anything specifically at the time you last saw the infant on the 10th, aside from writing that [progress] note?
A. I did an examination, you know. Before discharge, I do [a] complete physical again.
Q. You would have repeated the same physical examination?
A. Yes, thorough physical.
Q. And at the time of discharge, you would have been aware of the discharge and admission examination forms that you had in the hospital?
A. Yes.
Q. Do you recall whether or not you did a systems review as outlined in the admission discharge examination form at the time of discharge?
A. Yes. That’s what we do in a physical exam.
Q. Do you — and I take it as part of that examination, you would have reviewed the hip?
A. Right.
Q. And if you had had a positive finding on the examination of the hips, you would have recorded it?
A. Right. I would have taken a consultation.
* * *
Q. Can you explain [the later-diagnosed hip dislocation not being detectable or discerned at either the newborn or discharge examination]?
A. It might have been a subluxated hip which is not detectable several times. I had done my examination.”

Although the language used in these excerpts, and in other portions of Dr. Shivde’s deposition, may not mirror the more precise, formal language of her affidavit, the two documents are consistent in the essentials. Her testimony is that, having refreshed her recollection of Patrick by reviewing his chart, she could and did recall treating him at the Hospital in September 1981, and that she twice performed a complete physical examination as outlined in the Hospital’s admission/ discharge form, according to her routine procedure, although she admittedly did not chart some of her normal findings. She performed the first examination of Patrick when she first visited him in the nursery on September 5, which the chart indicates was at approximately 12:50 p.m., or about nine hours after his birth. She then repeated the same “complete” physical examination of Patrick just prior to his discharge from the Hospital on September 10. In short, her deposition testimony in no way impeaches, or raises an issue of material fact with regard to, the assertions in her later-filed affidavit.

Moreover, plaintiffs have failed to present any factual basis, by way of counteraffidavit or expert testimony, to refute the specific assertions made in Dr. Shivde’s affidavit, either as to the standard of care required or as to the fact that she complied with that standard in her treatment of Patrick. Where plaintiffs have failed to present evidence which would indicate expert medical opinion to sustain the allegations in their complaint as contrasted to the affidavits filed by defendants, or that they would be able to obtain such expert medical opinion in the future, then summary judgment in favor of defendants is proper. (Bennett v. Raag (1982), 103 Ill. App. 3d 321, 327, 431 N.E.2d 48, 52.) Here, plaintiffs had more than ample time to bring forth at least one expert who could either refute Dr. Shivde’s statement of the applicable standard, or her assertion that she complied with that standard, or to suggest that Dr. Shivde’s conduct may have in some way caused Patrick’s injuries or increased his risk of injury. They have not done so. Plaintiffs missed discovery deadlines several times before presenting Dr. Emmanuel, who had not read Patrick’s chart completely and stated that he knew nothing about the Hospital or Patrick’s condition and had no opinion concerning either the applicable standard of care or the conduct of either defendant. Furthermore, the court’s order of August 8, 1985, specifically barred plaintiffs from adducing any further expert testimony from Dr. Emmanuel or any other expert, other than what Dr. Shivde might provide as an adverse witness.

We also note that plaintiffs have never challenged the trial court’s order barring additional expert testimony. Plaintiffs state that they raised no objection because they do not dispute the applicable standard of care, which has already been established by Dr. Shivde. However, plaintiffs also have a duty to produce expert testimony supportive of their position with respect to breach of the standard and with respect to proximate cause. As this court stated in a recent decision affirming summary judgment in favor of a defendant physician:

“The motion for summary judgment was granted more than six years after this case was initially filed. Plaintiff had ample opportunity during this six-year period to obtain an opinion critical of [the physician’s] care to raise a genuine issue of material fact, precluding summary judgment, but plaintiff failed to do so. ***
* * *
This case is similar to many of the other decided cases where summary judgment was granted after plaintiff’s expert witnesses failed to offer opinions critical of a defendant’s care. [Citations.] *** [I]t is incumbent on the plaintiff to substantiate his allegations through expert testimony in order to defeat a motion for summary judgment. The failure of a nonmovant in a medical malpractice case to bring forth experts, who will raise the necessary inferences sufficient to defeat a motion for summary judgment, is fatal and will result in the entry of summary judgment to the movant.” (Emphasis added.) Diggs v. Suburban Medical Center (1989), 191 Ill. App. 3d 828, 833-34, 548 N.E.2d 373, 377-78.

It is the plaintiff’s duty in a medical malpractice case to present the testimony of at least one expert witness who will at least raise an inference that the conduct of the defendant physician did not comply with the applicable standard of care. In another case recently decided by this court, summary judgment in favor of a physician was reversed, where, unlike the instant case, this threshold requirement was met. (Cwiertnia v. Zaborowski (1989), 192 Ill. App. 3d 841, 549 N.E.2d 655.) In Cwiertnia, one of the plaintiff’s experts indicated that the defendant, a junior status resident, had the duty to note in the medical record that he had considered a diagnosis of pulmonary embolism, in order to bring that aspect of the patient’s condition to the attention of his superiors, even though his superiors had final responsibility for patient care. This expert also indicated surprise at the fact that such a finding was not noted by the defendant. Although other expert witnesses had stated that the defendant complied with the applicable standard of care, and the first expert also testified that the lack of charting would not have caused the patient’s injury if defendant’s medical superiors had, in fact, discussed pulmonary embolism at the time they made their treatment decision, the suggestion of possible noncompliance made by the expert was alone sufficient to raise an issue of fact precluding summary judgment. (Cwiertnia, 192 Ill. App. 3d at 846-47, 549 N.E.2d at 659-60.) The crucial distinction between Cwiertnia and the instant case is that plaintiffs have failed to present any expert testimony whatsoever which even raises an inference that Dr. Shivde did not comply with the applicable standard of care and that such noncompliance may have been a factor in causing or exacerbating Patrick’s later-diagnosed hip problems.

We recognize, of course, that it is often difficult for plaintiffs to secure a medical expert to testify against a member of the same profession. For this reason, courts should afford plaintiffs every opportunity to secure the services of an expert before granting summary judgment based on a failure to support their allegations with the required medical testimony. (Chiero v. Chicago Osteopathic Hospital (1979), 74 Ill. App. 3d 166, 176, 392 N.E.2d 203, 211.) However, we cannot say that summary judgment in this case was premature. Three years and four months elapsed between the filing of plaintiffs’ initial complaint and the order of the court barring further expert testimony; five years elapsed between the complaint and the final order of summary judgment in favor of defendants. Plaintiffs do not contend that they could have produced additional experts, or that such experts, if produced, would have been critical of defendants’ conduct. Under these circumstances, the trial court properly found that summary judgment in favor of Dr. Shivde was appropriate.

We turn next to that portion of the trial court’s order granting summary judgment to the Hospital. Because we have determined that summary judgment was proper as to Dr. Shivde, it necessarily follows that no claim against the Hospital based on vicarious liability for her conduct can stand. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 533, 513 N.E.2d 387, 399.) Therefore, we need not address the issues related to agency and apparent agency which plaintiffs have raised. There remains a question, however, as to whether summary judgment for the Hospital was premature because the Hospital may have breached an independent duty toward Patrick Rohe, making it directly liable for Patrick’s injuries.

There are two theories of liability for recovery against a hospital in a medical malpractice case: (1) the hospital may be liable based upon a principal-agency relationship between the hospital and the physician; and (2) the hospital may owe a duty independent of any relationship between physician and patient to review and supervise the medical care administered to a patient. (Reynolds v. Mennonite Hospital (1988), 168 Ill. App. 3d 575, 578, 522 N.E.2d 827, 829; Beals v. Huffman (1986), 146 Ill. App. 3d 30, 41, 496 N.E.2d 281, 289.) For example, a hospital has a duty to know the qualifications and the standard of performance of the physicians who practice on its premises. It is a breach of the hospital’s duty of care to its patients to permit a physician whom the hospital knows or should have known is unqualified, or negligent, to practice on its premises. (Reynolds v. Mennonite Hospital, 168 Ill. App. 3d at 578, 522 N.E.2d at 829; Pickle v. Curns (1982), 106 Ill. App. 3d 743, 739, 435 N.E.2d 877, 881.) Illinois courts also recognize that a hospital can be charged with direct negligence in failing to review, and in certain instances, supervise the medical care given a patient under a doctor’s care within the hospital (Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253; Johnson v. St. Bernard Hospital (1979), 79 Ill. App. 3d 709, 399 N.E.2d 198), or to use reasonable care in maintaining medical records (Fox v. Cohen (1980), 84 Ill. App. 3d 744, 406 N.E.2d 178).

Hospitals must comply with the standards of proper care which guide institutions holding themselves out as devoted to the care and saving of human life. (Johnson v. St. Bernard Hospital (1979), 79 Ill. App. 3d 709, 716, 399 N.E.2d 198, 204; Scardina v. Colletti (1965), 63 Ill. App. 2d 481, 489, 211 N.E.2d 762, 766.) The standard to which the hospital must conform its conduct is the accepted standard of care in the medical community. (Johnson, 79 Ill. App. 3d at 718, 399 N.E.2d at 205.) Our supreme court, in Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253, held that hospital regulations adopted by the Illinois Department of Public Health under the Hospital Licensing Act (Ill. Rev. Stat. 1963, ch. lll½, pars. 142 through 157), accreditation standards of the American Hospital Association, and the defendant hospital’s own bylaws were relevant, although not conclusive, in establishing the standard of care which the hospital owed its patient. The court reasoned that this type of evidence performed much the same function as testimonial evidence of custom and practice in the medical community. (Darling, 33 Ill. 2d at 332, 211 N.E.2d at 257.) Like the common-knowledge and gross-negligence exceptions, the use of hospital licensing regulations, accreditation standards, and bylaws to establish a hospital’s standard of care remains one of the few judicially recognized exceptions to the general requirement of expert testimony to establish the applicable standard of care in medical malpractice cases. (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 258, 381 N.E.2d 279, 283; Chiero v. Chicago Osteopathic Hospital (1979), 74 Ill. App. 3d 166, 173, 392 N.E.2d 203, 209.) Nonetheless, while the hospital’s bylaws may be properly introduced in evidence of the applicable standard of care, the plaintiff in a medical malpractice case still has the burden of establishing that a violation of such standards proximately caused the injury complained of. First National Bank v. Porter (1983), 114 Ill. App. 3d 1, 12, 448 N.E.2d 256, 264; Eckley v. St. Therese Hospital (1978), 62 Ill. App. 3d 299, 305-06, 379 N.E.2d 306, 311.

In their second amended complaint, plaintiffs’ specific allegations against the Hospital were that it failed to “require” attending pediatricians to perform a newborn examination for hip dislocation as required by Hospital rules and procedures; “permitted” an infant to be discharged from its neonatal intensive care unit without ascertaining whether there was a “presence or an absence” of hip dislocation; permitted physicians “unskilled” in neonatal care to provide such care; and restricted the care of neonates within the hospital to a physician “uncertified in pediatrics and uncertified in *** neonatology.” Plaintiffs further alleged that as a result of these negligent acts on the part of the Hospital, Patrick Rohe suffered injury and disability.

On appeal, plaintiffs concede that no expert offered an opinion as to the Hospital’s standard of care or criticized its conduct relative thereto. However, they ask this court to accept portions of the Hospital’s bylaws as evidence of that standard. They further contend that the Hospital’s duty to create a “Maternity Service Plan,” in compliance with State administrative regulations adopted pursuant to the Hospital Licensing Act, meant that provisions of this plan, incorporated into the Hospital’s bylaws, established the Hospital’s standard of care with respect to newborn infants. We note that the record on appeal contains no official Hospital documents other than the July 1, 1977, contract with Dr. Shivde’s professional corporation and Patrick’s three-page medical chart. Nor does the record include a copy of the pertinent Department of Public Health regulations governing neonatal intensive care in licensed hospitals, as set forth in chapter 77 of the Illinois Administrative Code (77 Ill. Adm. Code §250.1810 et seq. (1985)). Nonetheless, the record does reveal that on September 22, 1986, the Hospital produced certain internal documents, including rules and regulations relating to infant care in its nurseries in September 1981. As set out in plaintiffs’ “Response to Motion of the Defendant, Little Company of Mary Hospital, for Summary Judgment and Motion of the Plaintiff to Vacate the Order *** Granting Summary Judgment to the Defendant, Pinakini S. Shivde, M.D.,” relevant portions of the Hospital’s maternity service plan state as follows:

“VI
LEVEL OF CARE (15-2.5)5
* * *
3. Admission to the Neonatal Intensive Care Nursery is limited to infants needing intensive care for observed and/or anticipated problems resulting from high-risk pregnancy and/or labor ***. ***
4. LCMH has a neonatologist on the staff who is on call twenty-four hours a day. ***
* * *
*** Dr. Pinakini S. Shivde is the neonatologist on staff at LCMH ***. ***
* * *
XVIII
MEDICAL RECORDS (15-3.8)8.
* * *
2.4 (Infant Records) Report of a complete and detailed physical examination within 24 hours following birth; report of a medical examination within 24 hours of discharge, and one at least every three days during the hospital stay.”

The section on medical records is also quoted in the Hospital’s responsive brief on appeal.

Furthermore, plaintiffs are correct in stating that the Hospital’s maternity service plan derives exclusively from regulations promulgated to administer the Hospital Licensing Act (111. Rev. Stat. 1981, ch. lllVa, par. 142 et seq.). The Illinois Administrative Code, title 77, chapter I, part 250; Hospital Licensing Requirements, contains the following pertinent regulations relating to neonatal intensive care in licensed hospitals:

“Section 250.1820 Maternity and Neonatal Service Regulations (Perinatal Service)
* * *
[(e)] (1) Maternity and Neonatal Service Plan. Hospitals performing maternity and newborn services must submit for the Illinois Department of Public Health’s approval, a plan developed by the nursing department, medical staff, and approved by the governing authority of the hospital, for the management of the obstetric and neonatal patients. The Department will approve plans that comply with the requirements of Sub-part O, Hospital Licensing Requirements.
(2) The hospital’s written Maternity and Neonatal Service Plan shall be known to medical staff and nursing personnel and more specifically to maternity and nursery personnel. ***
* * *
Section 250.1830 General Requirements for All Maternity Departments
* * *
[(f)(5)] (C) Level III or Intensive Care:
(i) The Chief of Neonatal Pediatrics should be eligible for certification by the American Board of Pediatrics’ subspecialty board of neonatal-perinatal medicine, and is responsible for care in intensive care areas. Only physicians eligible for certification in neonatal-perinatal medicine should be responsible for care of infants in the Intensive Care area, but other physicians should be encouraged to participate. The Chief should be full-time with the hospital service. There should be sufficient number of qualified or certified neonatologists to assure availability of such care at all times. ***
* * *
[(h)] (2) Infant records. For each infant there shall be accurate, and complete medical records. The medical records shall include:
* * *
(D) Report of a complete and detailed physical examination within 24 hours following birth; report of a medical examination within 24 hours of discharge and one at least every three days during the hospital stay.” 77 Ill. Adm. Code §§250.1820 (eff. April 22, 1979), 250.1830 (eff. April 22, 1980).

We will assume, as plaintiffs contend, that the Hospital’s standard of care with regard to written documentation of newborn examinations and the qualifications of physicians providing intensive care to newborns is sufficiently established by the Hospital’s own maternity service plan and the pertinent administrative regulations under the governing statute. Nonetheless, in order to successfully overcome summary judgment in favor of the Hospital, plaintiffs must also have produced expert testimony establishing, or at least suggesting, both the Hospital’s noncompliance with these policies and regulations, and that such noncompliance may have proximately caused Patrick Rohe’s injuries. This plaintiffs have entirely failed to do. First, only expert testimony could have established whether Dr. Shivde’s detailed “progress notes” and “discharge summary,” prepared to document at least four examinations of the infant over a five-day period, were not in compliance with the applicable record-keeping standards as indicated above. Moreover, while the law in this State is that a hospital may be liable in circumstances where it knew or should have known that a physician on its staff would ignore express hospital policy in the care and treatment of patients, the courts do not recognize “the existence of a duty on the part of the hospital’s administration to insure that each of its staff physicians will always perform his duty of due care to his patient.” (Pickle v. Curns (1982), 106 Ill. App. 3d 734, 739, 435 N.E.2d 877, 881.) Nor do plaintiffs allege, must less substantiate, that the Hospital failed to review the performance of Dr. Shivde as to her conduct in examining newborn infants or her compliance with Hospital policy in charting the findings of those examinations. In fact, they nowhere allege or substantiate that the Hospital knew or should have known of her alleged noncompliance with any Hospital policy on any occasion.

Even if we take at face value the statement in Dr. Shivde’s discovery deposition that she routinely reviewed several things listed in the Hospital’s admittance/discharge examination form which she did not note because she “sort of” restricted herself to the positive findings, and infer from that statement that the Hospital may have known that this was her routine practice, there is neither expert testimony nor other evidence to suggest that Dr. Shivde’s failure to chart negative, or normal, findings on Patrick’s chart, after conducting her required examinations, in any way contributed to Patrick’s hip problems. The same reasoning applies to plaintiffs’ allegations that the Hospital restricted the care of neonates to an unqualified physician, “uncertified in pediatrics and uncertified in *** neonatology.” Certainly, the standards set forth in its own regulations and in the Illinois Administrative Code establish the duty of care owed to the Hospital’s patients in terms of staffing the neonatal intensive care unit. However, there is unrebutted testimony that Dr. Shivde was certified in pediatrics in December 1980 and that she was studying for a Board subspecialty examination at the time of her deposition in 1982. While her deposition does not state that she was preparing for the neonatology examination, specifically, plaintiffs concede in their reply brief on appeal that Dr. Shivde was certified in neonatology by 1985. Furthermore, plaintiffs have presented no expert testimony to even suggest that Dr. Shivde was not “eligible for certification” by the American Board of Pediatrics’ subspecialty board of neonatal-perinatal medicine in September 1981, or that she was not either a “qualified or certified” neonatologist at that time, or that one such neonatologist did not meet the Hospital’s standard of care to the number of patients it then served. Finally, they have presented no expert testimony to establish that such deficiencies, if they existed and were known or should have been known to the Hospital, might have proximately caused Patrick’s injuries. It is precisely the absence of such expert testimony which distinguishes this case from several others where appellate courts have determined that triable issues of fact existed. See, e.g., Northern Trust Co. v. Weiss Memorial Hospital (1986), 143 Ill. App. 3d 479, 493 N.E.2d 6 (where expert testified that a specially trained nurse, as required under the applicable standard, should have notified a physician of infant’s symptoms more than six hours earlier than the nurse without special training who was left in charge of hospital’s nursery, and that failure to notify a physician earlier increased risk of brain damage suffered by infant); First National Bank v. Porter (1983), 114 Ill. App. 3d 1, 448 N.E.2d 256 (where there was substantial testimony that hospital’s chairman of obstetrics and gynecology ignored hospital’s written policy relating to examination and release of women believing that they were in labor, told staff nurses to follow another policy, and failed to correct the procedure actually being followed when directly informed of the incorrect practice by another staff physician, as well as expert testimony that nurses’ adherence to the incorrect procedure may have increased the likelihood of infant’s mental retardation during the birth process); Johnson v. St. Bernard Hospital (1979), 79 Ill. App. 3d 709, 399 N.E.2d 198 (where expert testified that hospital breached its own standard of care, as established by its bylaws and by custom and practice in the community, by not using reasonable efforts to assist a staff physician to obtain a consultation with a staff orthopedic specialist when informed of the specialist’s refusal to consult with the treating physician, and that patient’s death was possibly attributable to medical staff’s failure to detect a bone fracture).

For the above-stated reasons, we conclude that plaintiffs have failed to present any expert testimony as to the elements of breach of duty and proximate cause which would overcome the Hospital’s motion for summary judgment. With regard to neither defendant have they presented a factual basis which would arguably entitle them to judgment in their favor, based on the applicable law. Accordingly, the trial court’s order of April 10, 1987, denying plaintiffs’ motion to vacate the previous order granting summary judgment to the Hospital, is hereby affirmed.

Affirmed.

LORENZ and MURRAY, JJ., concur.

       Although it appears that the Hospital produced these documents nearly three years after plaintiffs filed their “Notice to Produce,” specifically requesting them, on October 28, 1983, there is no evidence in the record that plaintiffs ever filed a motion to compel compliance with the request (107 Ill. 2d R. 219(a)), as directed in the trial court’s February 6,1985, order setting closing dates for discovery in this case.


author: JUSTICE LORENZ

text:
    CARLOTTA LOVING, for her Daughter, Rashonda Dean, Plaintiff-Appellant, v. CHICAGO HOUSING AUTHORITY, Defendant-Appellee.
    First District (5th Division)
    No. 1— 89—1837
    Opinion filed September 14, 1990.
    Stanley J. Heller, of Thomas R. Cirignani & Associates, of Chicago, for appellant.
    Moore & Maisel, of Chicago (Gary K. Moore and Thomas J. Branit, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff Carlotta Loving appeals from dismissal of her complaint, filed on behalf of her daughter, in which she sought to state a cause of action for negligence against the Chicago Housing Authority (CHA) for injuries her daughter suffered from contact with an uninsulated steam pipe in a CHA apartment.

We affirm.

On May 11, 1989, plaintiff filed a single-count complaint, as amended, against the CHA alleging that her seven-month-old daughter was severely burned when her lower left leg and foot became “wedged between the wall and radiator pipes” in the CHA apartment of her daughter’s babysitter. In the complaint, plaintiff asserted liability against the CHA under a theory of negligence for its failure to supply insulation around the steam pipes.

The circuit court dismissed the complaint with prejudice pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), finding the allegations did not state a cause of action under Hubbard v. Chicago Housing Authority (1985), 138 Ill. App. 3d 1013, 487 N.E.2d 20, and Trotter v. Chicago Housing Authority (1987), 163 Ill. App. 3d 398, 516 N.E.2d 684, in which the appellate court determined the CHA owed no duty to insulate steam pipes.

This appeal followed.

Opinion

On appeal, plaintiff argues that Hubbard was wrongfully decided and that Trotter, at least indirectly, supports that contention.

In Hubbard, the circuit court dismissed an action based, in part, on negligence against the CHA for injuries suffered from contact with a steam pipe in a CHA apartment. The complaint alleged the CHA was negligent in placing steam pipes along the surface of the apartment walls where tenants would come in contact with them and that the steam pipes were not covered with any type of insulating material.

The first division of this, court affirmed the dismissal of the complaint. The court noted the well-settled rule that a landlord is not liable to his tenant for injuries the tenant may sustain in the apartment and further observed the failure of the complaint to allege the steam pipes were defective. The complaint alleged merely that the steam pipes were exposed and hot. The court therefore reasoned that the question of liability was similar to that presented in Dargie v. East End Bolders Club (1952), 346 Ill. App. 480, 105 N.E.2d 537, where the appellate court had earlier determined liability based on negligence did not exist for the failure to cover a steam radiator which was being used for its intended purpose and which was not defective. (Hubbard, 138 Ill. App. 3d at 1015, 487 N.E.2d at 22.) Further, the court rejected the argument that the CHA could be liable under the duty to repair clause in its lease because the complaint did not allege the steam pipe was in need of repair. Hubbard, 138 Ill. App. 3d at 1016, 487 N.E.2d at 22.

In Trotter, a majority of the same appellate court panel, again relying on Dargie, reaffirmed Hubbard.

However, in a thoughtful dissent, Justice Buckley, who had joined in the unanimous decision in Hubbard, disagreed with the court’s analysis. Justice Buckley pointed out that Trotter differed both procedurally and factually from Hubbard. (Trotter, 163 Ill. App. 3d at 404-OS, 516 N.E.2d at 687-88 (Buckley, J., dissenting).) Trotter involved an appeal from the grant of a motion for summary judgment in favor of the CHA, not the dismissal of a complaint based on the failure to state a cause of action as the court had considered in Hubbard. Further, the record in Trotter contained facts generated through discovery indicating that the portion of pipe which had caused the injury had, at some time, been covered with some type of insulating material, that that was the normal condition of the steam pipes in the apartment, and that the CHA had been made aware of the uninsulated section of steam pipe.

Citing the distinction long recognized in Illinois between nonfeasance and misfeasance, Justice Buckley reasoned summary judgment was improper. The record in Trotter indicated the CHA had voluntarily undertaken a duty to insulate the steam pipe, necessarily raising the issue of whether the CHA subsequently exercised reasonable care with respect to that duty. (Trotter, 163 Ill. App. 3d 406, 516 N.E.2d 689 (Buckley, J., dissenting).) Because the record also indicated insulation was missing where it had once been supplied, a question of fact existed which should have precluded the determination of no liability as a matter of law. Trotter, 163 Ill. App. 3d 406, 516 N.E.2d 689 (Buckley, J., dissenting).

In contending Hubbard was incorrectly decided, plaintiff in the instant appeal points out that radiators, which radiate heat from steam over a large surface area, are factually different from steam pipes, which merely convey steam to the radiator, a difference noted in the dissent in Trotter. Plaintiff seizes on that difference, reasoning that the court’s reliance on Dargie, a case involving an uncovered yet properly functioning radiator, in Hubbard, a case involving an exposed yet properly functioning steam pipe, was flawed.

We do not agree. Although we acknowledge that covering a radiator might, in some circumstances, inhibit its intended function to emit heat in an apartment space, while insulating a steam pipe does not in the same way effect its purpose to convey heat to the radiator, we do not believe the issue of the CHA’s legal liability turns on that distinction. Logically, if a duty could exist for creation of an unreasonably dangerous condition based on the use of a properly functioning, normally exposed steam pipe, a duty should similarly arise to prevent contact with a radiator, to the extent possible without inhibiting its intended function, because the danger in either case is materially the same. For example, an enveloping grating, secured away from a radiator’s surface, might serve the purpose.

However, consideration of all possible safeguards from contact with an exposed steam pipe or radiator goes beyond the scope of relevant analysis in determining liability here. The CHA is not an insurer against all injuries suffered in its tenants’ apartments. We agree with the court’s analysis in Hubbard and, in the absence of allegations in the instant complaint of a voluntary undertaking to provide insulation around the steam pipe or allegations that the pipe was defective or in disrepair, plaintiff’s complaint fails to state a cause of action against the CHA.

We therefore affirm the order of the circuit court dismissing plaintiff’s complaint.

Affirmed.

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