author: JUSTICE WHITE

text:
    KENNETH E. HEERDEGEN, Plaintiff-Appellant, v. DONALD L. CUNDIFF, Indiv. and as Chief of Police of the Village of Hoffman Estates, Illinois, Police Department, et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—89—0403
    Opinion filed April 18, 1990.

      Stanley H. Jakala, of Berwyn, for appellant.
    Richard N. Williams, of Hoffman Estates, for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, Kenneth Heerdegen, appeals from an order of the circuit court upholding his dismissal by defendants, the Board of Fire and Police Commissioners of the Village of Hoffman Estates (Board) and Donald Cundiff, the chief of police of the Village of Hoffman Estates. Plaintiff argues that the court erred in finding that he was not entitled to a hearing prior to his discharge.

On July 3, 1986, plaintiff was hired as a police officer by the Village of Hoffman Estates (Village). At the time plaintiff was hired, a Village ordinance and the Board’s rules and regulations provided that patrol officer appointees would be given a one-year probationary period, which could be extended by the Board for an additional term not to exceed six months.

On July 23, 1987, the Board discharged plaintiff from the Hoffman Estates police department without prior notice or a hearing.

Plaintiff filed suit against the Board, seeking reinstatement. Plaintiff alleged that at the time of his discharge, he had completed his probationary period and attained the rank of permanent patrol officer and, therefore, he could be discharged only for cause and only after a hearing.

Defendants filed a motion for summary judgment. In their motion, defendants pointed out that on May 18, 1987, the Village ordinance governing patrol officer appointees had been amended and that the new ordinance provided for an 18-month probationary period which could be extended by the Board for six additional months. Defendants contended that by amending the ordinance, the Board effectively exercised its authority to extend plaintiff’s probationary period an additional six months and that as a result plaintiff was still on probation at the time of his dismissal.

The trial court granted defendants’ motion. The court agreed with defendants’ contention that the amendment to the ordinance extended plaintiff’s probationary period and held that as a probationary employee plaintiff was not entitled to a hearing prior to discharge.

In his appeal, plaintiff argues that the court erred in granting the Board’s motion for summary judgment. Plaintiff argues that under this court’s decision in Kapsalis v. Board of Fire & Police Commissioners (1986), 143 KENNETH E. HEERDEGEN, Plaintiff-Appellant, v. DONALD L. CUNDIFF, Indiv. and as Chief of Police of the Village of Hoffman Estates, Illinois, Police Department, et al., Defendants-Appellees. App. 3d 465, 493 N.E.2d 56, the new ordinance providing for an 18-month probationary period could not be applied retroactively unless the ordinance contained an express provision stating that it was to have a retroactive effect. Because there was no such provision, plaintiff contends that the new ordinance could not be applied to him.

Defendants argue that Kapsalis is inapplicable to the present case and that the court properly found that plaintiff was still on probation at the time of his discharge. Although we agree that Kapsalis is inapplicable, we find that the trial court erred in granting defendants’ motion for summary judgment.

In Kapsalis, plaintiffs were hired by the Burbank, Illinois, police board in October 1982 when city rules provided for, at the most, a one-year probationary period. In March 1983 a new ordinance was passed providing for a two-year probationary period for new police officers. In December 1983 plaintiffs were discharged without prior written notice or a hearing. Plaintiffs filed suit, alleging that at the time of their discharge they had completed their probationary periods and had become permanent employees and, therefore, they could not be discharged without a hearing and without cause. The trial court entered judgment in plaintiffs’ favor, and this court affirmed.

This court held that the March 1983 ordinance could not be given retroactive application absent a clear expression from the legislative body that such a result was intended. The court found that because the ordinance referred specifically to “new” officers, there was no basis for applying it retroactively.

As defendants point out, unlike Kapsalis, the Board in the present case possessed the authority to extend the one-year probationary period by an additional six months. Plaintiff does not dispute this fact, and the exercise of such authority has been upheld. (See Scheeler v. Fire & Police Comm’n (1980), 85 Ill. App. 3d 684, 407 N.E.2d 219.) Thus, the issue before us is not whether the new ordinance can be applied retroactively to change the probationary period of a previously hired employee, but whether the enactment of the new ordinance served as an exercise of the Board’s authority to extend the period. We do not believe that it did.

Initially we note that the new ordinance states only that original patrol officer appointees shall be on probation for 18 months and that the probationary period may be extended six months by the Board. Nothing in the ordinance indicates that it was intended to operate as an exercise of the Board’s authority to extend the probationary terms of plaintiff and other previously hired officers.

In support of their claim that the enactment of the new ordinance was intended as an exercise of the Board’s authority to extend the probationary period of previously hired officers, defendants rely on the minutes of a February 12, 1987, meeting of the fire and police commission, at which the chairman requested that the Village attorney be instructed to “draft the section to extend patrol officers [sic] probationary time to eighteen months.” Defendants also rely on a letter dated July 24, 1987, from Chief of Police Donald Cundiff, stating that “per the rules of the Board of Fire and Police Commissioners, all recently appointed police officers will serve an eighteen month probationary period” and listing plaintiff as one of the officers affected by the extended probationary period. We do not find either of these items persuasive.

Like the ordinance itself, the statement in the minutes of the February 12 meeting gave no indication that it was the Board’s intention to exercise its authority to extend the probationary period of previously hired employees from 12 months to 18 months. No reference is made in the statement to previously hired employees, and there is nothing that indicates any intent that the new section was to be applied to them. Thus, the statement provides no support for defendant’s claims.

Turning to the letter from Cundiff, we note that it purports to be based on the rules of the Board; however, as we pointed out above, there is nothing in the rules that indicates that the Board intended to exercise its authority to extend the probationary period of current employees. Further, the letter is dated 21 days after plaintiff’s probationary period was completed and one day after plaintiff was discharged. Accordingly, even if the letter could be considered as evidencing the Board’s intent to exercise its authority to extend probationary periods by six months, it could not be considered effective as to plaintiff.

In conclusion, we find that the trial court erred in ruling that plaintiff was a probationary employee on July 23, 1987, and we reverse the order granting defendants’ motion for summary judgment and remand for further proceedings consistent with this opinion.

The judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.

RIZZI and FREEMAN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE CERDA

license: Public Domain

text:
    N.W., Plaintiff-Appellant, v. AMALGAMATED TRUST AND SAVINGS BANK et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—89—0662
    Opinion filed April 18, 1990.

      Donald A. Kurasch, Ltd., of Chicago, for appellant.
    O’Connor, Schiff & Myers, of Chicago, for appellees.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

The plaintiff, N.W., was a tenant living in an apartment building located at 7379 North Damen in Chicago. She brought an action for damages against the owners and manager of the building, claiming that the defendants were negligent and that such negligence was the proximate cause of a sexual assault upon her by an unknown intruder. The trial court granted the defendants’ motion for summary judgment, and the plaintiff appeals.

At approximately 12:30 a.m. on August 1, 1983, an unknown intruder gained entrance into the plaintiff’s apartment and found her asleep in her bedroom. The intruder repeatedly raped her and forced her to perform fellatio. In her third amended complaint, the plaintiff alleges that prior to entering into a lease with the defendants, she specifically pointed out to defendants her status as a single woman living alone and expressed her concern for her safety from criminal activity. The plaintiff further alleges that the defendants promised her that the doors to the front and rear entrances were locked at all times and were always kept in good repair for the purpose of keeping intruders out of the premises, and that in reliance upon these promises she entered into a lease agreement with the defendants. The plaintiff asserts that the defendants assumed a duty to prevent intruders from gaining access into the common areas of the building and that defendants were under a duty to maintain the common areas of the building in a reasonably safe condition. The complaint charges, inter alia, that the defendants knew or should have known that the lock to the rear entrance door was broken, and that the defendants failed to repair the broken lock and negligently maintained the premises. Finally, the plaintiff alleges that the defendants’ negligent acts and omissions were the proximate cause of her physical and emotional injuries.

The plaintiff first entered into a lease with the defendants for a one-bedroom apartment on the third floor in September of 1979. The plaintiff answered an advertisement in the Chicago Sun-Times and was instructed by Parliament Enterprises (Parliament) to make an appointment with a Mr. Lorello, the building janitor. Lorello gave the plaintiff a tour of the premises and showed her two apartments. The building is U-shaped with a courtyard and is divided into sections, each with its own front entrance. The door to the front entrance is equipped with an automatic lock which requires a key for entry. There is also a rear entrance in the plaintiff’s section facing an alley behind the building. The door to the rear entrance is also equipped with a deadbolt lock requiring a key for entry.

The apartment that the plaintiff eventually leased has a back door in the kitchen with an automatic lock and a chain. The back door leads to an enclosed stairway, and at the base of the stairway is the door to the rear entrance facing the alley. The door to the rear entrance also leads to a gangway running alongside the building which has locked doors at both ends. Tenants living in the plaintiff’s section of the building possess keys for the door to the rear entrance. When shown the apartment, she expressed dissatisfaction with the lock on her kitchen door. Lorello assured her the kitchen door was secure because there was no way that unauthorized persons could get inside through the rear entrance. He told the plaintiff that the doors were always locked and that the locks were always kept in working condition. Lorello further added that he was in charge of maintenance and that his position at the building was his only employment. The plaintiff subsequently talked to the previous tenant, who told her that she had liked the apartment and that she had never had any problems with her personal safety.

Some three weeks prior to the attack, the plaintiff discovered the rear entrance door wide open. Upon closer inspection, she observed that the lock was broken and that the door remained ajar two or three inches after attempting to close it. The plaintiff stated that she notified employees of Parliament of the broken lock on at least six or seven occasions. The plaintiff also learned from her neighbors across the hall that the lock on the rear door had been broken longer than she thought and that they too had complained to Parliament. The plaintiff further stated that she spoke with the janitor, Terry Merkin, who had replaced Lorello a year and a half earlier, on a daily basis regarding the lock.

According to the plaintiff, the police were of the opinion that the assailant entered the building through the rear entrance and used a credit card and a tool to open her kitchen door. The plaintiff concedes, however, that tenants in her section have free access to the stairwell leading up to her kitchen door. She never saw the intruder enter her apartment nor did she observe how he left. The plaintiff admits she is unable to exclude other tenants or their guests as possible suspects. The plaintiff further stated in her deposition that during the years she resided at the defendants’ building, she was unaware of any criminal acts committed in the building.

Summary judgment may be granted when the pleadings, depositions, admissions and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005.) A motion for summary judgment and its supporting documents must be construed strictly against the moving party and liberally in favor of the opponent. (Rowe v. State Bank (1988), 125 Ill. 2d 203, 214, 531 N.E.2d 1358.) Summary judgment is a drastic method of disposing of cases and should be granted only when the movant’s right is clear and free from doubt. Rowe, 125 Ill. 2d at 215.

In an action for negligence, a plaintiff must set out facts establishing the existence of a duty of care, a breach of that duty, and an injury proximately resulting from that breach. (Rowe, 125 Ill. 2d at 215.) In their motion for summary judgment, defendants dispute the existence of the elements of duty and proximate cause. The basic test for determining whether a duty exists is foreseeability, as the law imposes a duty to exercise ordinary care to guard against injuries which may naturally flow as a reasonably probable and foreseeable consequence of one’s act. (Mims v. New York Life Insurance Co. (1971), 133 Ill. App. 2d 283, 285, 273 N.E.2d 186.) The determination of whether to impose a duty also requires consideration of the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant. (Trice v. Chicago Housing Authority (1973), 14 Ill. App. 3d 97, 100, 302 N.E.2d 207.) Whether a duty exists is a question of law for the court. Morgan v. Dalton Management Co. (1983), 117 Ill. App. 3d 815, 818, 454 N.E.2d 57.

As a general rule, there is no duty to protect others against the criminal attacks of third persons absent a special relationship. (Gill v. Chicago Park District (1980), 85 Ill. App. 3d 903, 905, 407 N.E.2d 671; Restatement (Second) of Torts §315 (1965).) Where the parties stand in a special relationship, such as business invitor and invitee or innkeeper and guest, there exists a duty to protect against reasonably foreseeable criminal activity. (Rowe, 125 Ill. 2d at 215-16.) On numerous occasions, however, our supreme court has refused to confer this special status upon the landlord-tenant relationship. (Rowe, 125 Ill. 2d at 216.) Thus, in Illinois there is no general duty imposed upon landlords to protect tenants from criminal activity. (Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 208, 399 N.E.2d 596. See also Morgan v. Dalton Management Co. (1983), 117 Ill. App. 3d 815, 454 N.E.2d 57; Smith v. Chicago Housing Authority (1976), 36 Ill. App. 3d 967, 344 N.E.2d 536; Trice v. Chicago Housing Authority (1973), 14 Ill. App. 3d 93, 302 N.E.2d 207.) As with most general rules, however, there are exceptions. The plaintiff contends that the defendants assumed a duty to protect her under the voluntary undertaking rule or, in the alternative, that liability may be predicated on the defendants’ violation of their common law duty to maintain the common areas of the building in a reasonably safe condition.

In Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596, our supreme court held that liability may attach where a landlord voluntarily undertakes to provide security measures, but performs the undertaking negligently. In that case, the court held that the Chicago Housing Authority (CHA) engaged in a voluntary undertaking when it contracted with a security agency to provide protective services for tenants and social guests. The court added that the duty assumed by the CHA was limited to the extent of its undertaking and that the CHA could therefore be liable at most for negligent hiring. The holding in Pippin, which relied upon an earlier decision in Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 74, 199 N.E.2d 769, rests upon the principle stated in section 323(1) of the first Restatement. (Accord Phillips v. Chicago Housing Authority (1982), 89 Ill. 2d 122, 127, 431 N.E.2d 1038; Figueroa v. Evangelical Covenant Church (7th Cir. 1989), 879 F.2d 1427, 1435.) That section provides:

“One who gratuitously renders services to another *** is subject to liability for bodily harm caused to the other by his failure, while so doing, to exercise *** such competence and skill as he possesses.” (Restatement of Torts §323(1) (1934), quoted in Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 74.)

This principle was applied again by the supreme court in Phillips v. Chicago Housing Authority (1982), 89 Ill. 2d 122, 431 N.E.2d 1138. In Phillips, the plaintiffs decedent was thrown out a window after being sexually assaulted by an unknown person or persons. The complaint alleged that the CHA undertook to close off and secure certain floors to prevent access by criminals. The complaint then alleged further that the CHA performed the undertaking negligently by, inter alia, leaving keys to the closed-off floors and keys to elevators traveling to the closed-off floors in an area accessible to the public and by failing to inspect the doors to determine if the locks were working properly. The trial court dismissed the case for failure to state a cause of action, and the appellate court reversed. The supreme court affirmed the decision of the appellate court, holding that the complaint properly alleged a voluntary undertaking by the CHA to close off and secure certain floors in order to provide protection for the tenants. (Phillips, 89 Ill. 2d at 127.) Thus, a voluntary undertaking to protect tenants from criminal activity can be found where a landlord takes measures to prevent access by unauthorized persons.

The plaintiff argues on appeal that the defendants assumed a duty to protect her from criminal activity when the defendants promised to keep the door locks in working condition. Before addressing this contention, we note that section 323(1) of the Restatement covers injury caused by a negligent performance of a voluntary undertaking as opposed to a failure to act or nonfeasance. Liability for an omission to perform a voluntary undertaking is covered in section 325 of the first Restatement. To establish liability under section 325, a plaintiff must show: (1) a promise by the defendant to do an act or to render a service; (2) reliance upon the defendant’s promise; and (3) injury which was a proximate result of the defendant’s omission to perform the voluntary undertaking. (Restatement of Torts §325 (1934).) While reliance is not required where a negligent performance of a voluntary undertaking is alleged (Figueroa v. Evangelical Covenant Church, 879 F.2d at 1435), such reliance is required when a plaintiff wants to hold a defendant liable for an omission to perform an undertaking. (Nelson v. Union Wire Rope Corp., 31 Ill. 2d at 85-86; Restatement of Torts §325 (1934).) Because the plaintiff’s complaint charges the defendants with a failure to maintain and repair the door lock to the rear entrance as they had promised, the present case falls under section 325.

The plaintiff has made a sufficient showing of reliance. There was a promise by the landlord to maintain the locks in proper working condition at all times to prevent entry by unauthorized persons. This promise induced the plaintiff to sign a lease with the defendants. Further, there were repeated assurances by the building management that repair would be effected, thereby inducing the plaintiff to remain in her apartment and forego the opportunity to take safety precautions of her own. The question remains, however, whether the defendants’ promise to keep the door locks in good repair at all times constitutes a voluntary undertaking to protect the plaintiff from criminal acts of third persons.

This identical contention was advanced in Rowe v. State Bank, but was left unresolved as there was nothing in the record to substantiate the claim that the landlord ever covenanted to keep the door locks in repair or that the door locks were not functioning properly on the night of the criminal attack. (Rowe, 125 Ill. 2d at 218-19.) The court did state, however, in regard to illumination provided by the landlord in the common areas, that the furnishing of lighting in facilities of the type involved in Rowe is commonplace and furnished by virtually every landlord and, therefore, the provision of lighting in the common areas could not be regarded as an assumption of a duty to protect against criminal acts. (Rowe, 125 Ill. 2d at 218.) We consider that door locks are also commonplace and furnished by virtually every landlord. Therefore, we conclude that a promise to maintain door locks in working condition does not rise to a voluntary undertaking to protect tenants from criminal activity. See also Rabel v. Illinois Wesleyan University (1987), 161 Ill. App. 3d 348, 363, 514 N.E.2d 552; Carrigan v. New World Enterprises, Ltd. (1983), 112 Ill. App. 3d 970, 977-78, 446 N.E.2d 265.

The plaintiff also contends that the defendants breached their common law duty to maintain the rear entrance in a reasonably safe condition and that the failure to repair the rear entrance after repeated warnings proximately caused her injuries. The landlord’s duty to keep the common areas of the building in a reasonably safe condition is customarily regarded as an obligation to maintain and repair, not to police. (Trice, 14 Ill. App. 3d at 100.) It has been recognized in Illinois, however, that a landlord may also be liable to a tenant for injuries sustained in a criminal assault if a condition of the premises facilitated the criminal activity. (Rowe, 125 Ill. 2d at 224; Duncavage v. Allen (1986), 147 Ill. App. 3d 88, 497 N.E.2d 433; Stribling v. Chicago Housing Authority (1975), 34 Ill. App. 3d 551, 340 N.E.2d 47.) These decisions do not really create an exception to the general rule, as liability is not derived from any duty to guard against the criminal acts of third persons. Rather, they merely represent application of basic principles of proximate cause where the landlord breaches his duty to maintain the common areas of the building in a reasonably safe condition. (Rowe, 125 Ill. 2d at 224; Duncavage, 147 Ill. App. 3d at 96-97.) In Duncavage for example, a tenant was raped and killed by an assailant who had gained entrance into the decedent’s apartment through a window by climbing a ladder which the landlord stored in the adjacent yard. The complaint alleged that the window was incapable of being locked and that the same ladder had been used on a previous occasion to enter the same window to burglarize the same apartment. Citing Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 80, 117 N.E.2d 74, the court explained that while a criminal act may be an intervening event, the causal chain is not broken by the intervention of such an act if the criminal act was itself reasonably foreseeable at the time of the original wrongdoer’s negligence. (Duncavage, 147 Ill. App. 3d at 97.) The key to establishing liability is to show that the intervening criminal act was a reasonably foreseeable event at the time of the landlord’s failure to maintain the premises. See also Stribling, 34 Ill. App. 3d 551.

The plaintiff, however, has failed to present any evidence showing that criminal activity was reasonably foreseeable. There are no affidavits or other documentation showing previous occurrences of criminal activity (Applebaum v. Jewel Cos. (1979), 76 Ill. App. 3d 346, 348, 395 N.E.2d 57; Mrzlak v. Ettinger (1975), 25 Ill. App. 3d 706, 709-10, 323 N.E.2d 796; O’Brien v. Colonial Village, Inc. (1970), 119 Ill. App. 2d 105, 108, 255 N.E.2d 205) or special conditions showing that a criminal act was likely to result, (Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 379, 50 N.E. 497.) The defendants point to the plaintiff’s deposition for evidentiary facts showing that foreseeability is absent. Plaintiff stated that prior to signing her lease she questioned the previous tenant regarding her safety from criminal activity. The previous tenant responded that she had not been aware of any problems during her tenancy. The plaintiff further stated that she found the apartment desirable because the neighborhood was clean and quiet. Moreover, plaintiff herself admitted that during the period she resided at defendants’ building, she was not aware of any problems in the neighborhood up until the night of the incident.

Although a plaintiff opposing a motion for summary judgment does not have to prove her case, she must, if defendant precludes any possible liability through supporting documents, present some factual basis that would arguably entitle her to judgment. (Martin v. 1727 Corp. (1983), 120 Ill. App. 3d 733, 737, 458 N.E.2d 990; Cohen v. Washington Manufacturing Co. (1979), 80 Ill. App. 3d 1, 3, 398 N.E.2d 1202.) A motion for summary judgment asks whether the nonmovant has presented any evidence to raise a genuine issue of material fact. (Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 1056, 473 N.E.2d 444.) “Genuine” has been construed to mean that there is evidence to support the position of the nonmoving party. (Ralston, 129 Ill. App. 3d at 1058.) Where documents supporting a motion for summary judgment present evidentiary facts contrary to the allegations in the complaint, the plaintiff cannot rely upon the complaint alone to raise an issue of fact. (Lawrence v. Rubio (1980), 85 Ill. App. 3d 472, 476-77, 406 N.E.2d 195.) There is nothing in the record to show that the plaintiff needed additional time for discovery (Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 819-20, 416 N.E.2d 328; Coleman v. Verson Allsteel Press Co. (1978), 64 Ill. App. 3d 974, 979, 382 N.E.2d 36), and plaintiff cannot defeat a summary judgment by asserting that evidence would be forthcoming in the future. (Kimbrough, 92 Ill. App. 3d at 814.) Therefore, the court concludes that the criminal act was unforeseeable and constitutes a superseding cause of plaintiff’s injuries.

Assuming for the moment that the criminal act was reasonably foreseeable or that the defendants had in fact engaged in a voluntary undertaking to protect N.W. from criminal activity, the defendants also contend that the plaintiff cannot establish proximate cause. Proximate cause exists when the injury is “the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence.” (Greene v. City of Chicago (1978), 73 Ill. 2d 100, 111, 382 N.E.2d 1205.) It is not necessary that the precise injury which resulted have been foreseen. (Greene, 73 Ill. 2d at 111.) Ordinarily, the question of proximate cause is a question of fact. (Salinas v. Werton (1987), 161 Ill. App. 3d 510, 515, 515 N.E.2d 142.) Where, however, the material facts are undisputed and reasonable men would not disagree as to the inferences to be drawn from them, proximate cause becomes a question of law. (Salinas, 161 Ill. App. 3d at 515.) If, upon all the evidence contained in the record, nothing would be left to go to the jury, and the court would be required to direct a verdict, summary judgment is appropriate. Palumbo v. Frank’s Nursery & Crafts, Inc. (1989), 182 Ill. App. 3d 283, 288, 537 N.E.2d 1073.

The defendants contend that the method by which the assailant gained access to the plaintiff’s kitchen door can be determined only by engaging in speculation, surmise, and conjecture. Defendants rely upon the well-settled rule that liability cannot be predicated upon surmise or conjecture as to the cause of the injury. (Palumbo, 182 Ill. App. 3d at 288; Salinas, 161 Ill. App. 3d at 514.) Proximate cause can only be established when there is a reasonable certainty that the defendants’ acts caused the injury. (McCormick v. Maplehurst Winter Sports, Ltd. (1988), 166 Ill. App. 3d 93, 98, 519 N.E.2d 469; Salinas, 161 Ill. App. 3d at 514.) The defendants maintain that there is no evidence that the assailant was not a tenant or a social guest who would have had access to the plaintiffs kitchen door irrespective of whether the rear entrance was locked. The defendants further note that only evidentiary facts may be considered on a motion for summary judgment and, therefore, the statements made by the police to the plaintiff as related to us in her deposition must be ignored. Evidence which is inadmissible at trial is not admissible for purposes of summary judgment. (E.g., Fearon v. Mobil Joliet Refining Corp. (1985), 131 Ill. App. 3d 1, 8, 475 N.E.2d 549.) The defendants also point out that no one, including the plaintiff, observed the assailant enter or leave the apartment. The defendants assert, therefore, that there is not enough evidence to raise an issue of fact for proximate cause. We agree.

The only piece of evidence supporting the plaintiff on the issue of proximate cause is the fact that the lock was inoperable on the night of the attack and, hence, a mode of access to plaintiff’s apartment was available. From this the plaintiff infers that the assailant entered the building through the unlocked rear entrance. Such an inference would be quite reasonable but for the fact that access to the plaintiff’s kitchen door was also available to other tenants and their social guests. A mere possibility of a causal connection is insufficient to raise the requisite inference of fact. Warren v. Coca-Cola Bottling Co. (1988), 166 Ill. App. 3d 566, 573, 519 N.E.2d 1197; Monaghan v. DiPaulo Construction Co. (1986), 140 Ill. App. 3d 921, 925, 489 N.E.2d 409; Carrigan v. New World Enterprises, Ltd., 112 Ill. App. 3d at 978.

The plaintiff also asserts that the defendants are in violation of the Chicago Municipal Code. A violation of a statute or ordinance designed for the protection of life or property is prima facie evidence of negligence. (Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 390, 356 N.E.2d 93.) The plaintiff has, however, failed to plead any such violations, and points not raised in the complaint or passed on by the trial court cannot be presented for the first time on appeal. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, 342 N.E.2d 417; Galayda v. Penman (1980), 80 Ill. App. 3d 423, 429, 399 N.E.2d 656.

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

Judgment affirmed.

FREEMAN and WHITE, JJ., concur.

      Sections 323 and 325 of the first Restatement were collapsed into a single section in the Restatement (Second). Section 323 now reads:
      “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
      (a) his failure to exercise such care increases the risk of harm, or
      (b) the harm is suffered because of the other’s reliance upon the undertaking.” (Restatement (Second) of Torts §323 (1965).)
      We cite to the first Restatement, however, because later decisions have interpreted the supreme court’s holding in Pippin to be based on the first Restatement. (See Figueroa v. Evangelical Covenant Church (7th Cir. 1989), 879 F.2d 1427, 1435; Phillips v. Chicago Housing Authority (1982), 89 Ill. 2d 122, 127-28, 431 N.E.2d 1138.) Although our analysis in this case would not differ under the Restatement (Second), we nevertheless refer to the first Restatement for the sake of clarity and consistency. We call attention to the supreme court’s decision in Phillips refusing to require a showing of an “increase in [risk]” in order to impose liability under the voluntary undertaking rule. (Phillips, 89 Ill. 2d at 127.) On the other hand, the Restatement (Second) does come into play where one party voluntarily undertakes to perform an act or service for another party and a third person is injured by the first party’s negligence. See Pippin, 78 Ill. 2d at 210; Restatement (Second) of Torts §324A (1965).


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN BATINICH, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—0939
    Opinion filed April 18, 1990.

      Turner & Wolff, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Diann L. Doppelt, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Following a jury trial, the defendant, John Batinich, was convicted of committing the offense of delivery of a controlled substance (Ill. Rev. Stat. 1987, ch. 561/2, par. 1401(a)(2)) and was sentenced to a six-year term in the Department of Corrections. On appeal, the defendant contends that: (1) he was denied a fair trial when hearsay statements were made suggesting his involvement in other crimes; (2) the use of such hearsay statements implicating him in other crimes denied him his sixth amendment right to confront witnesses; (3) the trial court erred in precluding him from introducing evidence of his good reputation and character; (4) the prosecution improperly commented upon his post-arrest silence; (5) the trial court erred in giving certain jury instructions; and (6) he was not proved guilty beyond a reasonable doubt. We affirm.

On July 21, 1987, the defendant was arrested for selling eight ounces of cocaine to an undercover drug agent. The evidence reveals that on July 9, 1987, an informant advised an investigator from the Arlington Heights police department, Steven Divas, that the defendant was dealing in cocaine. Livas testified that he first met the informant, Jerry Lock, at the Palatine police department after Lock had been arrested for possession of cocaine. Lock agreed to act as an informant and was offered a deal if he supplied names of drug dealers and arranged transactions between the dealers and undercover agents. Lock supplied Livas with the defendant’s name and a transaction was arranged. On July 20, Investigator Livas contacted Agent Steven Traub from the Drug Enforcement Administration and asked Traub if he would act as the buyer in the operation. The evidence revealed that Agent Traub and Lock were similar in height, weight, and age, and both had graying hair and a mustache, and wore glasses. The seller was supposed to think that Agent Traub was Lock.

On the afternoon of July 21, Traub drove to a parking lot at a Baker’s Square restaurant located at Dempster and Greenwood avenues in Niles, Illinois. Shortly thereafter, the defendant drove into the parking lot and parked his car next to Traub. Traub testified that he exited his car and walked to the defendant’s vehicle whereupon the defendant asked him if he was Jerry. After a brief conversation, Traub returned to his car and retrieved an envelope containing $11,000. After Traub entered the defendant’s car, they left the parking lot and drove for several blocks until they arrived at an empty parking lot next to a bank only two blocks away from the restaurant. Traub testified that during the drive to the bank’s parking lot, the defendant asked him if they had met before. Traub testified that he replied that they had met a year earlier when they were involved in a transaction by Martha Washington Hospital. Traub further testified that the defendant questioned him about what kind of car he used in that transaction, apparently an effort to test his buyer to ensure he was dealing with who he thought was Lock. Once inside the bank’s parking lot, the defendant placed his hand under the dashboard behind the glove compartment and a grey plastic bag dropped to the floor at Traub’s feet. Traub picked up the bag and opened it. Inside he discovered a cylindrical-shaped object wrapped in tin foil. Traub peeled away the tin foil and found another plastic bag containing white powder. Traub testified that the defendant stated “there is [sic] eight there, there is [sic] eight there,” referring to their agreement to sell eight ounces of cocaine. Traub gave a prearranged arrest signal, and the officers who had been conducting surveillance effected the defendant’s arrest. A chemist testified that the substance delivered to Agent Traub was cocaine.

The defendant testified that he thought he was delivering jewelry as a favor for a friend. He stated that on the evening of July 20 his friend, Lou Nanoz, called him at his home three or four times to arrange the delivery. The testimony revealed that Nanoz was in the automobile business and sold jewelry on the side. The defendant, who has been employed as an auto mechanic since he immigrated to Chicago from Yugoslavia in 1972, testified that he first became acquainted with Nanoz when they worked at the same dealership in the early 1980’s. The defendant testified that he was asked to meet an individual named Mike the following day. Mike contacted the defendant on July 21, and they arranged a meeting at a coffee shop next to the defendant’s place of employment. After picking up a package which he was told would contain jewelry, the defendant went back to work to change his clothing. The defendant stated that he left to run some errands and then drove to meet Jerry Lock, whom he had never met before. The defendant further testified that he concealed the package under the dashboard because he was driving a convertible. The defendant also stated that he drove to the bank parking lot because he wanted to go to a quiet place. The defendant further admitted to advising Traub that there were “eight” in the package, but testified that he was referring to what he believed were eight pieces of jewelry: three watches, two rings and three necklaces. The defendant denied knowing Jerry Lock prior to July 21 and denied participating in any deals with him. He further testified that he never looked inside the package and that he did not look when Traub opened it in his car.

The defendant’s wife testified and corroborated his testimony that Nanoz had called him several times on July 20. She also stated that she had never seen her husband in possession of drugs. Other witnesses corroborated the relationship between the defendant and Lou Nanoz and stated that Nanoz sold jewelry as a side business.

The defendant first argues that he was denied a fair trial because of statements referring to the defendant as a drug dealer and references to a prior drug deal between himself and Jerry Lock. The defendant asserts these statements were in violation of the rule against evidence of other crimes to show a defendant’s propensity to engage in criminal activity. The statements defendant complains of include: (1) remarks made during the prosecution’s opening statement referring to the defendant as a drug dealer and a conversation between the defendant and Agent Traub regarding a prior deal; (2) testimony by the undercover agents describing the same; and (3) a question posited to the defendant during cross-examination asking about the “prior deal.” The defendant additionally maintains that these statements were also inadmissible hearsay.

During the prosecution’s opening statement, the prosecutor stated that after a meeting with an informant, Investigator Livas “came away from that brief meeting with the name of a person” and that “the name he was given was John Batinich.” That statement was made immediately after the prosecutor explained that Livas had a meeting with an informant to obtain the names of persons involved in “narcotics trafficking in the northwest suburban area.” The defendant’s objection to these remarks was overruled. A short time later, the prosecutor reenacted a conversation that took place between the defendant and Agent Traub when the defendant mistakenly believed that he was talking to Jerry Lock. According to the prosecution’s version of that conversation, the defendant and Traub discussed a prior deal they did together. No objections were made to these opening remarks. The defendant next complains of testimony by Investigator Livas that Lock divulged a name of a “mid level dealer out of the northwest.” The defendant objected to the testimony as hearsay, but the trial judge overruled the objection. The defendant further complains about the testimony of Agent Traub implicating the defendant in a prior deal. The following testimony was elicited:

“Q. And what if anything was said after that?
A. Then right after that he said, ‘Have we met before?’ And I-.
Q. I am sorry.
A. He said, Have we met before? You know, in terms of a question.
Q. All right, did you reply?
A. Yes, I did. Well, it has been a while, approximately a year. I said I was in the car. You passed by. We did that other deal by Martha Washington Hospital.
Q. All right, I see. Did he talk about that other deal any further?
A. Only to say, after I said everything I knew about that deal or alleged deal, he asked me whose car was I in. And I said, Louie’s.
Q. And did he say anything after that?
A. Yes. He said, ‘No, no, no.’
Q. What was said next?
A. Then I said, well, I said, it was just like the car I am in today. It is not my car. I was just using somebody’s car. Then I assumed Louie was using somebody’s car at the previous deal.
Q. Did the defendant say anything after that?
A. Yes. He thought about a second, and he said, ‘Well, it was dark.’ ”

The defendant also made no objections to this line of questioning. However, the defendant did object during the prosecution’s cross-examination of the defendant when the prosecutor asked: “During the time were you doing a similar deal?” The trial judge sustained the defendant’s objection and instructed the jury to disregard the question.

The first facet of defendant’s argument is that the aforementioned references to drug dealing and the alleged prior deal denied him a fair trial because they constituted evidence of other crimes. The defendant cites People v. Pitts (1971), 1 Ill. App. 3d 120, 122, 273 N.E.2d 664, wherein the court explained that it was permissible to argue the issue of other crimes on the constitutional grounds of denial of fair trial although the issue is traditionally treated under the rules of evidence. In Pitts, testimony was elicited from the arresting officer that upon arrest, the defendant remarked that he was in trouble because he was on parole. The court held that the arresting officer’s testimony was inadmissible evidence of other crimes and denied the defendant a fair trial notwithstanding the action of the trial judge in striking the testimony and giving a cautionary instruction. The other facet to the defendant’s argument is that the evidence itself was incompetent because it was inadmissible hearsay. We address first those statements referring to the defendant as a drug dealer.

The general rule is that evidence of other crimes is inadmissible if its only relevance is to show that the defendant has a propensity to commit crime. (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 485 N.E.2d 1292.) Such evidence is excluded because the law distrusts the inference that because the accused has committed other crimes or wrongful acts, it is more likely that the accused has committed the crime charged. (Kimbrough, 138 Ill. App. 3d at 484.) Evidence of other crimes is admissible, however, when it is relevant for any purpose other than to show the defendant’s propensity to commit crimes. (Kimbrough, 138 Ill. App. 3d at 484.) It is well established that evidence of other crimes is admissible to show motive, intent and modus operandi. (Kimbrough, 138 Ill. App. 3d at 484.) It has also been held that evidence suggesting other criminal activity is admissible where the evidence is relevant to explain the circumstances of a defendant’s arrest (People v. Davis (1981), 93 Ill. App. 3d 187, 191, 416 N.E.2d 1179) and the arresting officer’s reasons for commencing surveillance (People v. Hunter (1984), 124 Ill. App. 3d 516, 529-30, 464 N.E.2d 659).

In the instant case, the trial judge did not permit Divas to testify as to the substance of his conversations with Jerry Dock. Divas testified to the fact that such conversations occurred and that he thereafter engaged in a course of action culminating in an undercover drug transaction. The testimony was relevant to explain the investigatory procedures leading to the defendant’s arrest. The court further finds that no objectionable hearsay was admitted. Although the testimony indicated that the informant gave the defendant’s name to Livas as a “drug dealer out of the northwest,” this testimony was not hearsay because it was not offered to prove the truth of the matter asserted. (People v. McNeal (1987), 160 Ill. App. 3d 796, 800-01, 513 N.E.2d 897; People v. Loggins (1985), 134 Ill. App. 3d 684, 692, 480 N.E.2d 1293; People v. Thomas (1975), 25 Ill. App. 3d 88, 92, 322 N.E.2d 597.) The testimony was elicited to explain why an undercover operation involving the defendant was set in motion. It is proper for an officer to explain the circumstances of his investigation and testify as to how he came upon the defendant’s identity. (McNeal, 160 Ill. App. 3d at 800-01; People v. Gully (1986), 151 Ill. App. 3d 795, 799; Thomas, 25 Ill. App. 3d at 92.) We further find that the evidence was not unfairly prejudicial.

Turning our attention to the statements referring to a prior deal between the defendant and Jerry Lock, the State contends the defendant waived review of the issue by failing to object when the' conversation between the defendant and Traub was described by the prosecutor in his opening remarks and by Traub on direct examination. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The court agrees that this issue was not properly preserved for review. In any event, the conversation about the prior deal was admissible. It is also well established that evidence of other crimes is admissible when relevant to prove the presence of knowledge and intent or the absence of an innocent frame of mind. (People v. Bartall (1983), 98 Ill. 2d 294, 309-10, 456 N.E.2d 59; People v. McKibbins (1983), 96 Ill. 2d 176, 185, 449 N.E.2d 821; People v. Goodman (1979), 75 Ill. App. 3d 369, 372-73, 393 N.E.2d 1233; People v. Cole (1963), 29 Ill. 2d 501, 503, 194 N.E.2d 269.) The State bore the burden of proving that the defendant “knowingly” possessed a controlled substance with intent to deliver. Further, the defendant claimed that he thought he was delivering jewelry as a favor for Lou Nanoz. He also stated that he had never before delivered jewelry on his friend’s behalf. Consequently, evidence that the defendant was involved in a prior deal was highly relevant. In People v. Miller (1983), 120 Ill. App. 3d 495, 499, 457 N.E.2d 1373, and People v. Hill (1978), 56 Ill. App. 3d 510, 512, 371 N.E.2d 1257, the second and fourth districts held that statements made by the defendant about future sales during the transaction for which the defendant was charged were admissible to show the defendant’s present state of mind during the transaction. The result should be no different when the defendant talks about prior sales during a transaction. Although Agent Traub’s testimony relating his conversation with the defendant about the prior deal was offered to prove the truth of the matter asserted, it was not objectionable hearsay as it disclosed admissions by the defendant (People v. McDowell (1984), 121 Ill. App. 3d 491, 499, 459 N.E.2d 1018) or was admissible as part of the res gestae. People v. Sessions (1968), 95 Ill. App. 2d 17, 24, 238 N.E.2d 94; People v. Calcaterra (1965), 33 Ill. 2d 541, 547, 213 N.E.2d 270.

The defendant argues next that the statements indicating that Jerry Lock implicated him as a drug dealer also denied him his sixth amendment right to confront witnesses. (U.S. Const., amend. VI.) Because Livas’ testimony was not offered to prove the truth of the matter asserted, but, rather, was offered to detail the investigatory steps leading up to the defendant’s arrest, the defendant was not denied his right to confront witnesses. (McNeal, 160 Ill. App. 3d at 800-01; Gully, 151 Ill. App. 3d at 798-99; Hunter, 124 Ill. App. 3d at 528-29. Cf. Tennessee v. Street (1985), 471 U.S. 409, 413-14, 85 L. Ed. 2d 425, 430, 105 S. Ct. 2078, 2081. See also People v. Johnson (1987), 116 Ill. 2d 13, 24, 506 N.E.2d 563 (holding that detectives “did more than simply recount what had been done” as their testimony regarding statements given by defendant’s accomplices “directly implicated the defendant in these crimes”).) Further, even if Livas’ testimony played a substantive role in the case, we conclude that any error in this regard was harmless error beyond a reasonable doubt. Johnson, 116 Ill. 2d at 26-28.

The defendant further contends that the trial court erred in refusing to permit him to introduce evidence of his good reputation and character. The record discloses that the defendant sought to present evidence that he is a law-abiding citizen. A defendant in a criminal case may present evidence of his good character in order to establish that his character traits are inconsistent with the commission of the crime charged. (People v. Flax (1986), 147 Ill. App. 3d 943, 951, 498 N.E.2d 667, 672.) The decision to admit such evidence is within the sound discretion of the trial judge. (People v. Kurena (1980), 87 Ill. App. 3d 771, 778, 410 N.E.2d 277.) However, such evidence must relate to the specific character trait involved in the offense charged. (People v. Hall (1987), 159 Ill. App. 3d 1021, 1027, 513 N.E.2d 429.) A defendant cannot introduce evidence that he has never been convicted, charged or arrested in order to establish good character. (Flax, 147 Ill. App. 3d at 952.) Therefore, the trial court did not abuse its discretion. The court further finds that even if such evidence should have been admitted, it was harmless error. See Kurena, 87 Ill. App. 3d at 778.

The defendant also contends that reversible error occurred when the prosecutor asked him if he had told the police upon arrest that he thought the package contained jewelry. The defendant argues that the question was an impermissible comment upon the defendant’s silence in violation of Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240. In Doyle, the Court held that silence following recitation of the Miranda warnings is always insolubly ambiguous because such silence may be nothing more than the arrestee’s exercise of his right to remain silent, and that it is fundamentally unfair to use a defendant’s post Miranda silence against him after inducing him to remain silent. (Doyle, 426 U.S. at 617-18, 49 L. Ed. 2d at 97-98, 96 S. Ct. at 2244-45.) Questions such as the one asked here are intended to invite the jury to infer from the defendant’s silence that his exculpatory story is a recent fabrication. (People v. Tate (1978), 63 Ill. App. 3d 119, 127, 379 N.E.2d 693.) Nevertheless, where, as here, the question is promptly objected to and not answered, and the court sustains the objection and instructs the jury to disregard the question, there is no “use” of the defendant’s silence. (Greer v. Miller (1987), 483 U.S. 756, 97 L. Ed. 2d 618, 107 S. Ct. 3102.) Moreover, we find that even if the question was error, it was harmless beyond a reasonable doubt in view of the overwhelming evidence supporting the jury’s verdict.

The defendant argues next that the trial judge erred in giving certain jury instructions. Over the defendant’s objections, the trial court submitted to the jury Illinois Pattern Jury Instructions, Criminal, No. 3.11 and No. 3.06 — 3.07 (2d ed. 1981) (IPI Criminal 2d). IPI Criminal 2d No. 3.11 pertains to prior inconsistent statements, and IPI Criminal 2d No. 3.06 — 3.07 pertains to statements by the defendant which would constitute admissions, confessions or false exculpatory statements.

The defendant asserts that there was no evidence of prior inconsistent statements and, therefore, IPI Criminal 2d No. 3.11 should not have been given as it probably misled the jury. The State contends that the instruction was properly given, citing the testimony of Investigator Traub regarding the conversation he had with the defendant where the defendant made statements acknowledging the prior deal. The defendant denied the substance of this conversation and denied his involvement in any prior deals. Although the defendant was not impeached in the traditional sense, Investigator Traub’s testimony served dual roles in that it served as substantive evidence showing knowledge or the absence of an innocent frame of mind and was also inconsistent with the defendant’s testimony. Therefore, the instruction is not objectionable on the grounds asserted by the defendant.

The defendant further maintains that IPI Criminal 2d No. 3.06 — 3.07 should not have been given, arguing that it unduly emphasized the credibility of the defendant over that of the other witnesses. The instruction was undoubtedly given because of Traub’s testimony regarding his conversation with the defendant. The instruction directs the jury to determine whether the defendant did in fact make the statements, and if so, the weight to be attributed to the statements. The instruction did not unduly emphasize the credibility of the defendant.

Although both instructions covered the same evidence, the court finds that the instructions were not confusing or repetitive. We therefore hold that there was no abuse of discretion.

Finally, the defendant contends that he was not proved guilty beyond a reasonable doubt. In determining whether the evidence is sufficient, the reviewing court must view the evidence in the light most favorable to the prosecution and then determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.) After examining the record, we are convinced that there was sufficient evidence. The defendant’s sole defense was that he thought he was delivering a package of eight pieces of jewelry. The evidence showed, however, that he hid the package under the dashboard and drove to a secluded location to make the transfer. The evidence also showed that while driving from the restaurant to the secluded bank parking lot, he took a route consisting of a series of turns and a distance of eight blocks to reach a destination only two blocks from the point of departure, the logical inference being that the defendant took care to ensure he was not being followed. Thus, even if we ignore the testimony regarding the defendant’s prior drug deal with Jerry Lock, we believe the jury could have rationally concluded beyond a reasonable doubt that the defendant knowingly delivered cocaine.

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

Judgment affirmed.

B1ZZI and FREEMAN, JJ., concur.


author: JUSTICE FREEMAN

text:
    YVETTE BRANSON et al., Plaintiffs-Appellants, v. R & L INVESTMENT, INC., Defendant-Appellee.
    First District (3rd Division)
    No. 1—89—1033
    Opinion filed April 18, 1990.

      Mark S. Schaffner, of Chicago, for appellants.
    Pretzel & Stouffer, Chartered (Robert Marc Chemers, of counsel), for appellee.
   JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiffs, Yvette and William Branson, appeal from a judgment of the circuit court of Cook County granting summary judgment (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005), in favor of defendant, R & L Investment, Inc.

On March 17, 1984, plaintiff, Yvette Branson, was delivering mail to a public laundromat at 3401 North Southport in Chicago. The laundromat was owned and operated by defendant, R & L Investment, Inc., which leased the premises from Bresler Realty. Summary judgment was entered as to defendant Bresler Realty, and that order is not involved in this appeal.

Plaintiff’s discovery deposition was taken on March 20, 1986. According to her, the entrance to the laundromat is constructed with a ramp immediately inside the entrance door. The ramp is approximately four feet long and escalates approximately six inches, resulting in a slope of 12.5%. This ramp is covered by a ribbed rubber mat. About two feet away, parallel to the entry ramp, is a second ramp for the exit door. The exit ramp is identical to the entry ramp, except that its surface is covered with tile only; there is no protective ribbing.

About five to six feet from the entrance, at the top of the exit ramp, was a puddle of standing water. The floor from the entrance to this point was dry. Due to poor lighting, plaintiff was unable to see the water until after she had stepped in it. The water was not in one spot; there was a “little here and a little water there.” Plaintiff stated that she did not know where the water came from. The closest washing machine was between six inches to one foot from the puddle.

According to plaintiff, it had been snowing for two hours prior to the time of her fall. After entering the building, plaintiffs shoes were still wet from whatever substance had not come off her soles on the matting outside of defendant’s premises. When plaintiff stepped into the water, she lost her footing and fell. She attempted to maintain her balance by planting her foot, but due to the construction of the exit ramp, she was unable to do so. At oral argument, plaintiff’s attorney stated that the ramp did not cause plaintiff’s fall, but its location and the lack of any safety covering on it prevented her from breaking her fall. As a result of the fall, plaintiff sustained severe personal injuries.

Plaintiff filed a complaint against defendant alleging negligence, in that defendant (1) caused or permitted water and other slippery substances to collect on its floor; (2) failed to remove water and slippery substances from its floor; (3) maintained its floor in an unsafe and slippery condition; (4) maintained its exit ramp in an unsafe condition; and (5) failed to warn customers of the unsafe condition of its floor and exit ramp. Defendant moved for summary judgment based on plaintiff’s deposition testimony. Summary judgment was granted, and plaintiff now appeals. We affirm.

Summary judgment may properly be granted if the pleadings, exhibits, affidavits and depositions on file disclose no genuine issue of material fact such that the movant is entitled to judgment as a matter of law. (Kroll v. Sugar Supply Corp. (1983), 116 Ill. App. 3d 969, 975, 452 N.E.2d 649.) Upon review of the trial court’s entry of summary judgment, the appellate court must evaluate whether the trial court ruled correctly in finding that no genuine issue of material fact was raised and whether, as a matter of law, entry of the judgment was correct. (Fuller v. Justice (1983), 117 Ill. App. 3d 933, 938, 453 N.E.2d 1133.) Summary judgment should be granted only in cases where the evidence, construed most strongly against the movant, establishes clearly and without any doubt that he has a right thereto. (Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 605, 456 N.E.2d 958.) Applying these principles, we then determine whether the trial court correctly granted summary judgment.

Given the facts presented here, we believe that the proper analysis for resolution of the issues before us requires the application of those principles generally applied in slip-and-fall cases involving ice, snow and water. (See Smalling v. La Salle National Bank (1982), 104 Ill. App. 3d 894, 896, 433 N.E.2d 713; Greenwood v. Leu (1973), 14 Ill. App. 3d 11, 302 N.E.2d 359.) Under these established principles, defendant could not be held liable for plaintiff’s injuries absent some showing that the accumulation of the water on defendant’s floor was of an unnatural origin or that defendant aggravated a natural condition. (McCann v. Bethesda Hospital (1979), 80 Ill. App. 3d 544, 400 N.E.2d 16; Fitzsimons v. National Tea Co. (1961), 29 Ill. App. 2d 306, 173 N.E.2d 534.) However, at oral argument, plaintiff urged that resolution of this appeal does not turn on a determination of the origin of the water. Rather, she argues, the correct focus of our analysis should be on whether defendant had a duty to provide some protective covering on the exit ramp.

Plaintiff first contends that the owner of a business owes a duty to persons on its property to provide a nonskid surface on a grade incline. She maintains that, based on the reasoning in Stroyeck v. A.E. Staley Manufacturing Co. (1960), 26 Ill. App. 2d 76, 167 N.E.2d 689, a defendant is liable for injuries sustained by a plaintiff when the defendant builds a structure, such as a ramp, and fails to provide any safeguards, such as protective matting. The unprotected ramp, plaintiff argues, creates an unreasonable risk upon which liability for injuries may be imposed. We disagree.

Plaintiff misinterprets Stroyeck. The fact that the sidewalk in Stroyeck was sloped was not the basis upon which liability was imposed. The court there had evidence that the defendant’s engineers had studied the sloped sidewalk and had proposed changes to decrease the degree of the slope. From this evidence, the court stated that it was a fair inference that a lesser grade was practical. Liability was properly based on the fact that the defendant had knowledge that the sloped sidewalk created a hazardous condition during seasonal changes.

Such is not the case here. First, as plaintiff concedes, defendant’s ramp was not the cause of her fall. Second, even had the ramp been the cause of the fall, the absence of some safety covering, in and of itself, would not have rendered the ramp negligently designed. In Stroyeck there was an abrupt change where the sidewalk met the grade change. Here, there was no sudden grade change, there was only an incline. Third, unlike in Stroyeck, there were neither allegations nor any evidence that defendant knew or should have known that the ramp created a hazardous condition.

Finally, plaintiff did not allege in her pleadings that her injury resulted from the negligent design of the ramp. All of the allegations in the complaint focus upon the unsafe condition of the ramp and floor as a result of the slippery condition. Aside from plaintiff’s testimony that the ramp was 12.5% in grade, no evidence was introduced on the issue of design. If plaintiff, like in Stroyeck, had evidence that the ramp was negligently designed, that it was the proximate cause of her fall, and that defendant had knowledge of the hazardous condition of the ramp, it was incumbent upon her to produce it prior to the hearing on defendant’s motion for summary judgment to support her prima facie case.

By her argument, plaintiff urges the imposition of a duty on storeowners who install ramps on their premises to provide mats or some other safeguards. Acceptance of plaintiff’s argument would impose an unfair burden on storeowners without any guarantee of insulation from liability. Plaintiff has cited to no cases which support her theory of the case, and we decline to impose the duty which she so vigorously advocates. Moreover, we believe that defendant showed, by placing the rubber matting on the entrance ramp, which was the ramp first encountered by persons coming indoors from out of the elements, that he exercised reasonable care in making his premises safe for entry.

Plaintiff next argues that defendant has created, by design and maintenance, an unnecessarily and unreasonably dangerous condition. She argues that she was required, because of the positioning of washers, to walk along a narrow unprotected ramp, in order to reach the counter to deliver the mail, and because the area was ill lighted, she was unable to see the water until she had stepped in it.

The physical layout of defendant’s premises was not an issue before the trial court; thus, we consider it waived for purposes of our review. However, the issue of lighting was contained in plaintiff’s deposition and argued at the hearing on the motion. Thus, we will address it.

Property owners have a duty to provide a reasonably safe means of ingress and egress from their place of business, and this duty is not abrogated by the presence of a natural accumulation of ice, snow, or water. (Kittle v. Liss (1982), 108 Ill. App. 3d 922, 925, 439 N.E.2d 972.) When a means of ingress and egress is prescribed for invitees, it is the duty of the inviter to properly illuminate, give adequate warning of, or cause to be repaired a known, dangerous condition. Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 87, 523 N.E.2d 594.

In Kittle, the plaintiff slipped and fell on a patch of ice on defendant’s unlighted staircase. The plaintiff alleged that the fall was the result of an unnatural accumulation of ice on the step and a failure to provide adequate lighting. On appeal, the court held that while the plaintiff had not presented evidence of an unnatural accumulation of the ice, there was a triable issue of fact as to whether the owner provided adequate lighting in accordance with his duty to provide a reasonably safe means of ingress and egress. Kittle, 108 Ill. App. 3d at 925-26.

The defendant in Kittle argued that his case was controlled by the holding in Newcomm v. Jul (1971), 133 Ill. App. 2d 918, 273 N.E.2d 699, where the court held that a restaurant operator was under no duty to warn, by way of illumination, against hazards which were the result of natural accumulations of ice and snow on the sidewalk. The Kittle court distinguished Newcomm on its facts. The court stated that Newcomm involved a level sidewalk, not a stairway, as a means of ingress and egress, and thus, lighting in the area was not as necessary to customer safety as it was in Kittle. See also Allgauer v. Le Bastille, Inc. (1981), 101 Ill. App. 3d 978, 428 N.E.2d 1146 (stairway which is concealed or difficult to adequately see held to present question for jury as to whether defendant breached duty to give warning of hidden dangers).

Since plaintiff presented no evidence to the contrary, we consider, for purposes of this argument, that the water on defendant’s floor was natural in origin. Here, there was no evidence that, but for the water, entry onto defendant’s premises would not have been safe. Plaintiff here did not, as in Kittle, fall on a staircase. She fell on defendant’s floor. There is no evidence to indicate that the ramp, which she claims contributed to her fall, was hidden or difficult to see. In fact, the lighting was adequate enough to enable plaintiff to read and confirm the name and address on the letter which she was delivering to the laundromat.

We believe the reasoning in Newcomm to be sound, and we therefore follow it. There the court stated:

“If liability of a business owner may not be predicated on falls resulting from natural accumulations of ice and snow it follows that the business owner is not required to warn of the presence of such natural accumulations of ice and snow. The duty of warning against a particular condition or hazard co-exists with the corresponding liability for the consequences or hazards of the condition if no appropriate warning is given.
* * *
Absent any evidence that the ice or snow was the result of an unnatural or artificial accumulation thereof the only inference is that it was a natural accumulation and if so defendant was under no duty of warning (by way of illumination) against the hazards thereof.” Newcomm, 133 Ill. App. 2d at 921-22.

Since defendant is not liable for injuries sustained by invitees in falls caused by natural accumulations of ice and snow, he cannot be held liable for a failure to provide adequate safeguards to prevent plaintiff or others from falling as a result of those natural accumulations. There is no evidence that the means of ingress and egress was unsafe for any reason other than the accumulation of water. Thus, we do not find the issue of lighting to have been a triable issue for the jury-

Plaintiffs alternate contention on appeal is that there was sufficient evidence in the record to send the case to the jury. Specifically, she argues that since no one could testify as to the precise source of the water, the source may be determined by inferences. Thus, she argues, based on the location of the washing machines in relation to the place of her fall, it could be inferred that the water resulted either from a leaking washing machine or from a customer having spilled it.

Inferences may be drawn from the facts which are not in dispute, and if reasonable persons could draw different inferences from these facts, then a triable issue exists. (Armagast v. Medici Gallery & Coffee House, Inc. (1977), 47 Ill. App. 3d 892, 896, 356 N.E.2d 446.) However, a fact is not established from circumstantial evidence unless the circumstances or events are so related to each other, as to make the conclusion the only probable, not possible, one which can be drawn from them. (Johnson v. Burlington Northern, Inc. (1982), 107 Ill. App. 3d 130, 135, 437 N.E.2d 334.) In light of the facts presented in this case, we cannot infer, from the mere presence of the washing machines, that the water was of an unnatural origin.

While a plaintiff in a slip-and-fall case need not prove his case at the summary judgment hearing, in order to defeat the defendant’s motion, the plaintiff must affirmatively show that the origin of the water was unnatural or caused by defendant. (Shoemaker v. Rush-Presbyterian-St. Luke’s Medical Center (1989), 187 Ill. App. 3d 1040, 543 N.E.2d 1014; Lohan v. Walgreens Co. (1986), 140 Ill. App. 3d 171, 488 N.E.2d 679; Bakeman v. Sears, Roebuck & Co. (1974), 16 Ill. App. 3d 1065, 1070, 307 N.E.2d 449; Byrne v. Catholic Bishop (1971), 131 Ill. App. 2d 356, 266 N.E.2d 708.) A finding of an unnatural or aggravated natural condition must be based upon an identifiable cause of the water accumulation. (Lapidus v. Hahn (1983), 115 Ill. App. 3d 795, 450 N.E.2d 824 (leaky roof); McCann v. Bethesda Hospital (1979), 80 Ill. App. 3d 544, 400 N.E.2d 16 (sloping parking lot); Stroy eck, 26 Ill. App. 2d 76, 167 N.E.2d 689 (improper sidewalk construction).) Mere speculation or conjecture is not sufficient to establish liability. (Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 817, 416 N.E.2d 328.) Absent such a showing, summary judgment for the defendant is appropriate since the court owes no duty to reason some remote factual possibility. Gilberg v. Toys “R” Us, Inc. (1984), 126 Ill. App. 3d 554, 558, 467 N.E.2d 947.

It was essential to plaintiff’s cause to show that the origin of the water was of an unnatural origin, or that the natural accumulation was aggravated by artificial causes. Since she did not so show, plaintiff has failed to sustain her burden of proof. We conclude that there were no issues of material fact, and summary judgment was proper.

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

Affirmed.

CERDA, P.J., and RIZZI, J., concur.


text:
    JULIA KIM et al., Plaintiffs-Appellants, v. JONG KIM et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—89—2166
    Opinion filed April 18, 1990.

      Topper & Weiss, Ltd., of Chicago, for appellants.
    Brenda Register, of James J. DesVeaux, of Chicago, for appellees.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Plaintiffs, Julia Kim and Yuong Sik Kim, appeal from the dismissal of count I of their complaint that alleged the negligence of Julia’s husband, defendant Jong Kim (defendant Kim). The trial court held that because interspousal tort immunity was a matter of substantive law, an amendment to the statute which eliminated interspousal immunity for nonintentional torts during coverture was not applicable retroactively so that count I was barred under the prior statute, which only permitted interspousal suits for intentional torts involving physical harm. Plaintiffs argue on appeal that the trial court erred in dismissing count I because interspousal tort immunity was a procedural law and that the amendment therefore applied to their claim filed after the amendment’s effective date for a tort committed prior to that date.

Count I of plaintiffs’ complaint filed on January 6, 1988, alleged that on May 2, 1987, plaintiffs were passengers in a car driven by defendant Kim in a negligent and reckless manner. Plaintiffs sought compensation for personal injuries, lost earnings, and past and present medical bills. Count II alleged the negligence of defendant Carlos Bucio.

Pursuant to a request to admit, plaintiff Julia Kim admitted that on May 2, 1987, she was married to defendant Kim. Defendant Kim moved to dismiss the complaint on the basis that a wife was unable to sue her husband for a tort committed during the marriage. After defendant’s motion was granted, plaintiff Julia Kim filed a motion for reconsideration which also requested that a Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) finding be made. The trial court did not vacate the dismissal, but it did make the Rule 304(a) finding. Plaintiffs appeal from the denial of the motion for reconsideration.

The issue presented is whether the amendment permitting spouses to sue each other for torts committed during the marriage should be applied retroactively when the statute previously only permitted interspousal suits for intentional torts involving physical harm.

The interspousal immunity statute prior to the amendment at issue here stated in part:

“[Pjrovided, that neither husband nor wife may sue the other for a tort to the person committed during coverture, except for an intentional tort where the spouse inflicted physical harm.” (Ill. Rev. Stat., 1986 Supp., ch. 40, par. 1001.)

The statute as amended effective January 1, 1988, stated in part:

“A married woman may, in all cases, sue and be sued without joining her husband with her, to the same extent as if she were unmarried. A husband or wife may sue the other for a tort committed during the marriage.” Ill. Rev. Stat. 1987, ch. 40, par. 1001.

In Brandt v. Keller (1953), 413 Ill. 503, 109 N.E.2d 729, the court interpreted a predecessor statute as amended in 1874 which stated only that a married woman could in all cases sue and be sued without joining her husband with her to the same extent as if she were unmarried. Decisions under pre-1874 versions of the statute which did not contain the language “in all cases” had held that a married woman was only permitted to sue her husband where necessary to protect her own property. (Brandt, 413 Ill. at 512.) The court concluded that the 1874 amendment which added the phrase “in all cases” was intended to expand the rights of a married woman to sue. (Brandt, 413 Ill. at 512.) If a married woman could assert contract rights against her husband, as was previously held, she should also be able to assert tort rights against him. Brandt, 413 Ill. at 513.

After Brandt, the statute was amended to read that “neither husband nor wife may sue the other for a tort to the person committed during coverture.” (Ill. Rev. Stat. 1953, ch. 68, par. 1.) In Heckendorn v. First National Bank (1960), 19 Ill. 2d 190, 166 N.E.2d 601, this version of the statute was interpreted to prevent a widow’s suit against her husband’s estate for a tort committed during coverture. (Heckendorn, 19 Ill. 2d at 193.) The court held that if a cause of action could not exist against the husband, it could not survive his death. Heckendorn, 19 Ill. 2d at 193.

In Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384, 396 N.E.2d 528, the issue was whether the interspousal immunity statute barred a spouse from obtaining insurance benefits from her insured based on injuries received in a collision of the automobile being driven by her spouse. Recovery had been permitted in other jurisdictions if the insured showed conduct by the tortfeasor spouse which entitled the insured to recover damages even though a defense would defeat actual recovery. Allstate, 77 Ill. 2d at 388-89.

In this context, the court held that the effect of the 1953.amend-ment, which changed the result in Brandt that a spouse could bring an action in tort against the other spouse, was

“not to destroy the cause of action of the injured spouse, but to confer immunity on the tortfeasor spouse, which like a defense based upon the statute of limitations can be waived by the defendant spouse.” (Allstate, 77 Ill. 2d at 390.)

It was held that the defense of statutory immunity did not affect the insured’s legal entitlement to recovery under the insurance policy. Allstate, 77 Ill. 2d at 390.

Allstate was relied upon by the second district in Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, 1077, 430 N.E.2d 236, in stating that the interspousal immunity was a procedural and not a substantive bar to actions between spouses. On the basis that the cause of action existed but just could not be enforced, interspousal immunity was held not to bar a tortfeasor’s contribution from a spouse who was immune from direct suit by the injured spouse. (Wirth, 102 Ill. App. 3d at 1081-82.) The same reasoning was later used by the second district to hold that parent-child tort immunity did not prevent contribution from a parent of an injured minor plaintiff. Larson v. Buschkamp (1982), 105 Ill. App. 3d 965, 969, 935 N.E.2d 221; see also Perkins v. State Security Insurance Co. (1989), 192 Ill. App. 3d 103, 106 (parent-child immunity is personal defense to mother so that minor plaintiffs were not substantively barred from suing mother).

In Farmers Insurance Group v. Nudi (1982), 108 Ill. App. 3d 151, 155-56, 438 N.E.2d 1260, an injured spouse was not barred from recovering benefits under her husband’s insurance policy for injuries sustained while he was driving. The court stated that, because of Allstate, interspousal immunity was now construed as a procedural bar to actions between spouses. (Farmers, 108 Ill. App. 3d at 153.) It was held that a substantive bar prevented a cause of action from accruing so that a third party could invoke the immunity as a defense, whereas a procedural bar was personal to the spouse and did not inure to the benefit of third parties. Formers, 108 Ill. App. 3d at 153.

In Williams v. Williams (1982), 108 Ill. App. 3d 936, 439 N.E.2d 1055, Allstate was distinguished, and the court held that interspousal immunity was not a personal defense but was a statutory disability which could be invoked by the spouse’s insurer when defending the other spouse’s suit for negligence. But in an affirmance which modified the appellate court’s judgment, the Illinois Supreme Court vacated without comment that portion of the judgment which held that the insurer could invoke the defense. Williams v. Williams (1983), 98 Ill. 2d 128, 131, 455 N.E.2d 1388.

The amendment to the interspousal immunity statute that permitted suits for intentional torts was applied retroactively by the third district in State Farm Mutual Automobile Insurance Co. v. Palmer (1984), 123 Ill. App. 3d 674, 681, 463 N.E.2d 129, on the bases that Allstate established that interspousal immunity was a procedural defense and that there was no specific legislative intent to implement the statute only prospectively because it stated it would take effect upon becoming law (as opposed to an effective date later than the date of the governor’s signature of approval). State Farm, 123 Ill. App. 3d at 680-81.

An amendment relating to substantive rights must be applied prospectively. (Dworak v. Tempel (1959), 17 Ill. 2d 181, 187, 161 N.E.2d 258.) In the absence of a savings clause, an amended statute may be applied retroactively “where the legislature so intended and where the statute affects the remedy or matters of procedure.” (Mailer v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390, 415 N.E.2d 1034, cert. denied (1981), 451 U.S. 921, 68 L. Ed. 2d 312, 101 S. Ct. 2000.) Changes in procedure or remedies will not be applied retroactively to deprive a vested, constitutionally protected right. (Maiter, 82 Ill. 2d at 390-91.) A vested right is more than a mere expectation based upon the anticipated continuance of the existing law; it must be a legal or an equitable title to the present or future enjoyment of property. Rodriguez-Erdman v. Ravenswood Hospital Medical Center (1987), 163 Ill. App. 3d 464, 471, 516 N.E.2d 731.

The interspousal immunity statute at issue does not expressly state the legislature’s intent as to retroactivity. The House bill containing the amendment was passed by the General Assembly on June 25, 1987, was approved on September 20, 1987, and pursuant to statute (Ill. Rev. Stat. 1987, ch. 1, par. 1201(a)), became effective on January 1, 1988, because the bill was passed prior to July 1 and did not provide for an effective date.

Plaintiff argues that the amendment to the statute permitting spouses to sue one another for torts committed during the marriage only affects a matter of procedure, and plaintiff cites the cases discussed above which relied upon Allstate to find that interspousal immunity was a procedural bar to a spouse’s cause of action and was not a substantive law. Allstate involved the application of interspousal immunity to a spouse’s recovery from her insurer and not from her spouse and did not address the issue of retroactivity. We therefore disagree with Palmer and Wirth which held that Allstate established that interspousal immunity was a procedural matter.

An amendment which imposes a new liability on defendant is substantive. (Dworak v. Tempel (1959), 17 Ill. 2d 181, 187, 161 N.E.2d 258 (amendment expanded the classification of persons entitled to bring dram shop actions so that defendants were subjected to new and greater liability).) The 1987 amendment conferred the new ability upon a spouse to file a cause of action for nonintentional torts and exposed spouses to liability for nonintentional torts for which their spouses could not have sued them prior to the amendment. The amendment is therefore not a matter of procedure or remedy but relates to substantive rights, so that the amendment cannot be applied retroactively. This result is consistent with the refusal to apply lengthened statutes of limitation retroactively to revive causes of actions which were previously barred. See, e.g., Arnold Engineering, Inc. v. Industrial Comm’n (1978), 72 Ill. 2d 161, 167, 380 N.E.2d 782.

The judgment of the circuit court is affirmed.

Affirmed.

FREEMAN and WHITE, JJ., concur.


author: PRESIDING JUSTICE McMORROW

text:
    STEVEN CLARK, Plaintiff-Appellant, v. PENN VERSATILE VAN, Defendant-Appellee (The Roscoe Company et al., Defendants).
    First District (4th Division)
    No. 1—88—1597
    Opinion filed April 19, 1990.

      Michael W. Rathsack, of Chicago, for appellant.
    Fraterrigo, Best & Beranek, of Chicago (Fredrick J. Fraterrigo, Keith G. Dronen, and Kevin G. Nedved, of counsel), for appellee.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff Steven Clark (Clark) appeals, pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), from summary judgment for defendant, Penn Versatile Van (Penn), in an action to recover damages for personal injuries under theories of negligence and strict tort liability.

Clark filed a six-count amended complaint against Penn, The Roscoe Co. (Roseoe) and Z. Frank, Inc., for injuries he sustained while riding in a van designed and manufactured by Penn and sold to Roscoe by Z. Frank. Those counts of the complaints directed against Roscoe and Z. Frank remain pending in the trial court and are not at issue in this appeal.

The facts as alleged in counts II and VI of Clark’s complaint and taken from the deposition testimony are as follows. Clark was a sales representative from the Philadelphia office of Pace Corporation, a company which markets commercial soap products through other companies, such as Roseoe, an industrial laundry service. Pursuant to a contract between Pace and Roseoe, one of Clark’s job responsibilities while in Chicago was to accompany Roscoe’s drivers on their sales routes to train them in the techniques of promoting Pace products. Clark had been in Chicago for this purpose two weeks before the events at issue and was completing a second, five-day trip when the injurious incident occurred.

Each day, Clark rode with a different driver in the driver’s designated van. All of the vans were substantially identical and were the same type used by most industrial laundry services. The vans were commonly referred to as “step vans” because there is a step approximately midway between the outside ground level and the inside floor on the right side of the vehicle. The doors on the driver’s side were bolted closed to prevent the drivers from stepping out into traffic. The driver entered and exited the van through the right-side sliding door. Seating in the van was limited to a driver’s seat; there were no seats for passengers, nor were there any handrails or handgrips. The inside of the van consisted of a cab compartment and a rear cargo area which could be closed off by a sliding door which ran horizontally on a half-inch track directly behind the cab area. The motor was housed in a compartment which was to the right of the driver inside the cab. The floor was made of steel and was grooved but level.

On the morning of June 29, 1984, the final day of his second trip to Chicago, Clark met the driver with whom he was to ride for the day. On all prior occasions, personnel from Roscoe had provided him with a stool or folding chair on which to sit while riding in the van. On that date, however, the driver was unable to find anything on which Clark could sit. Although Clark periodically sat on the motor compartment, he was able to do so for only short periods because the housing became very hot. Consequently, he stood in the van most of the day. He balanced himself at stops, starts and turns by pressing the palm of his hand against the ceiling of the van.

As they were travelling to the final stop of the day, a car cut in front of the van, causing the driver to brake abruptly. Clark lost his balance and was propelled backward. The heel of his shoe became caught in the track of the sliding door. As a result, his body twisted around and he fell onto his right knee on the floor of the cargo area. Clark subsequently underwent three surgical procedures to repair the damage to his knee.

According to the deposition testimony of the driver of the subject van, another route driver and the vice-president of Roscoe, unauthorized passengers were not allowed to ride in the vans. However, it was common practice for newly hired drivers to accompany experienced drivers for a 30-day training period and for supervisors to ride with drivers for evaluation purposes or to familiarize them with new routes. On such occasions, the passenger usually sat on a stool next to the right-side sliding door. Pace sales representatives were authorized to ride in the vans and continued to do so after the incident at issue.

After arguments by counsel, the trial court found that the van was not unreasonably dangerous and granted Penn’s motion for summary judgment. Clark’s timely appeal followed.

Opinion

Clark contends that the trial court erred in granting summary judgment for Penn because a genuine issue of material fact existed as to whether the absence of a passenger seat and handgrip constituted a defective and unreasonably dangerous condition of which Penn failed to warn, despite the foreseeability of injuries as a result of this defect to persons Penn knew or should have known would ride in the van as passengers.

Specifically, Clark argues that the deposition testimony established, and Penn knew or should have known, that persons such as supervisors, driver-trainees and others would and did ride as authorized passengers in the vans it designed, and that without a seat and/or handbar for support and balance, a passenger could be injured, particularly in the event of unexpected movement or stopping of the van. He maintains that the foreseeability of injuries was increased by (a) the grooved construction of the floor and the presence of a sliding-door track behind the passenger area, which could cause an unsteady passenger to lose his footing or trip; (b) the absence of anything behind the passenger area to rest or brace against so as to avoid falling backward into the open cargo area; and (c) the absence of any warnings against the presence of passengers in a vehicle with a passenger area.

It is well settled that to recover in a strict product liability action, a plaintiff must plead and prove that the injury resulted from a condition of the product; that the condition was an unreasonably dangerous one; and that the condition existed at the time the product left the manufacturer’s control. (Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368; Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401.) Illinois courts have stated that a defective product is unreasonably dangerous when, in its manufactured state, the product fails to perform in the manner reasonably to be expected in light of its nature and intended function. Hunt v. Blasius, 74 Ill. 2d 203, 384 N.E.2d 368; Dunham v. Vaughan & Bushnell Manufacturing Co., 42 Ill. 2d 339, 247 N.E.2d 401; Kokoyachuk v. Aeroquip Corp. (1988), 172 Ill. App. 3d 432, 526 N.E.2d 607.

Although foreseeability of danger is a factor, foreseeability alone does not give rise to a manufacturer’s duty in the law of products liability. A manufacturer is not under a duty to design a product which is totally incapable of injuring anyone who foreseeably comes into contact with it; nor does products liability law make a manufacturer the insurer of all foreseeable accidents involving its products. (Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368.) A legal inference of defectiveness cannot be drawn merely from the occurrence of an injury. (Miller v. Dvornik (1986), 149 Ill. App. 3d 883, 501 N.E.2d 160; Kokoyachuk v. Aeroquip Corp. (1988), 172 Ill. App. 3d 432, 526 N.E.2d 607.) The plaintiff must establish that the injuries derive from a distinct defect which subjects persons who use or are exposed to the product to an unreasonable risk of harm, i.e., dangerousness to an extent beyond that which would be contemplated by the ordinary person with ordinary knowledge common to the community relative to the product’s characteristics (Hunt v. Blasius, 74 Ill. 2d 203, 384 N.E.2d 368; Miller v. Dvornik, 149 Ill. App. 3d 883, 501 N.E.2d 160). Injuries are not compensable where they derive from those inherent propensities of a product which are open and obvious to all who come into contact with the product. Hunt v. Blasius, 74 Ill. 2d 203, 384 N.E.2d 368.

As to warnings, the general rule is that a duty to warn arises where there is unequal knowledge with respect to the risk of harm, and the manufacturer, possessed of such knowledge, knows or should know that harm might occur absent a warning. Since the purpose of a warning is to apprise persons coming into contact with the product of dangers of which he is unaware so as to enable him to take appropriate precautions to protect himself, it logically follows that warnings serve no purpose and, hence, are not required where the dangers are open and obvious. Kokoyachuk v. Aeroquip Corp. (1988), 172 Ill. App. 3d 432, 526 N.E.2d 607; Miller v. Dvornik (1986), 149 Ill. App. 3d 883, 501 N.E.2d 160.

Although there was some conflicting deposition testimony, Penn does not dispute on appeal that it designed and manufactured the van without either a passenger seat or handbar, or that Clark’s injuries were related to those conditions. Conversely, Clark does not allege that his injuries resulted from a malfunction of the van or that the van was not operating properly at the time of the occurrence. There being no serious disagreement on these points, the remaining inquiry is whether the van, in its manufactured state, was defective and unreasonably dangerous by reason of the absence of passenger seating or some type of handgrip.

Penn asserts, as it did in its motion for summary judgment, that the van was not unreasonably dangerous because it performed in the manner reasonably to be expected in light of its nature and intended function, which was to transport only one person, i.e., the driver. Penn also argues that the lack of a passenger seat and the absence of a handgrip are inherent propensities of step-down delivery vans and that these conditions are open and obvious to all who come into contact with the vehicles.

Clark acknowledges that the absence of a passenger seat in the subject van was “self-evident.” It is his position, however, that the inquiry should not be simply whether a person entering the van would recognize that there was no passenger seat, but also whether that person would appreciate the danger posed by that condition. Clark additionally argues that in contrast to seating, or the lack of it, the absence of a handgrip is not an open and obvious condition, and that a person entering a vehicle not only has no legal obligation to conduct a safety inspection but also no reason to look for safety devices — at least not until one is needed, by which time an appreciation of the danger posed by its absence is too late. He maintains that whether the absence of a seat and/or a handbar created an unreasonable risk of harm to persons, like himself, who would foreseeably ride as passengers in the van were questions which should have been presented to a jury for resolution.

We consider first Clark’s argument that the design of the van was such that it was foreseeable to Penn that persons would ride as passengers in it and that such a person could be injured because of the absence of seating or a handgrip. Under the principles enunciated earlier, foreseeability is only one factor in determinations of liability based on the design and manufacture of a product. Penn’s liability depends upon whether the van in its manufactured state was unreasonably dangerous because it failed to perform in the manner reasonably to be expected in light of its nature and intended function. Under this standard, injuries resulting from inherent propensities of the van which were open and obvious to all who came into contact with it are not compensable.

The consistent and undisputed deposition testimony was that the van was a standard, commercial van of the design used by most industrial laundry services and was virtually identical to the other 35 to 45 vans owned and used by Roscoe. The vehicle was equipped with three doors: a standard door on the driver’s side, which was bolted closed by Roscoe personnel, a door at the rear, and a sliding door which ran along the right passenger side of the vehicle. The van was designed and intended to be used primarily for pickups and deliveries by a single, driver/delivery person. The existence of the sliding door permitted the driver to enter and exit the van with laundry pickups or deliveries from the side rather than the rear, and the absence of a passenger seat in the front compartment facilitated the driver’s ingress and egress through that side door.

Regarding the inside arrangement, Clark testified that he had ridden in identically designed vans belonging to Roscoe as well as to industrial laundries in several other cities on numerous previous occasions. Clark stated at his deposition that “there is virtually no place to sit in these vans. Being designed for just a driver and material, *** there’s nothing there for a second person, there’s no place to sit unless you want to sit on the floor.” (Emphasis added.) He also testified that even when provided with a folding chair or stool to sit on, he was unstable while riding. Clark also stated that “there’s nothing to hold onto ***. The only thing you can hold onto would be the door handle itself. *** As far as any type of handrail, * * * there is not [sic].”

On the basis of the record before us, it is clear that the nature and intended function of the van was that of a delivery vehicle for use by one person and that the absence of a seat and handrail was an open and obvious condition of which Clark was personally and specifically aware. Thus, the van does not come within the products liability law definition of being unreasonably dangerous.

Moreover, the record establishes that whatever dangers were posed by the absence of a seat and handgrip did not rise to the level of an “unreasonable risk of harm” under the legal definition of that concept. The following colloquy occurred during Clark’s deposition:

“Q. Did you appreciate the risk of a possible sudden stop while you were riding in the van in a sitting position the first time you were in town, the first five-day period you were in town? Did you appreciate the risk of a sudden stop?
A. Yes.
Q. You did appreciate the risk?
A. Sure.
Q. And you appreciated the risk when you were standing up in the van on the date of the accident?
A. Yes.”

The question is normally whether the risk of harm was beyond that which would be contemplated by an ordinary person with ordinary knowledge with respect to the product’s characteristics. In this case, Clark expressly acknowledged his personal understanding of the risk of riding in a van which he knew from his own observation and experience did not have a passenger seat or handrail, and which he described as being designed for “just a driver and material.”

Finally, inasmuch as the lack of a passenger seat and/or a handhold did not constitute an unreasonably dangerous condition or subject Clark to an unreasonable risk of harm, it logically follows that no warning of their absence was required.

For the reasons stated, we find that the trial court correctly ruled that Penn was entitled to summary judgment as a matter of law.

The order of the trial court is, therefore, affirmed.

Affirmed.

JIGANTI and LINN, JJ., concur.