text:
    RUTH MONROE, Special Adm’r of the Estate of Melissa Monroe, Deceased, Plaintiff-Appellee, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant-Appellant.
    Fifth District
    No. 5—91—0430
    Opinion filed November 24, 1992.

      Donald J. Dahlmann and Leslie G. Offergeld, both of Walker & Williams, P.C., of Belleville, for appellant.
    Douglas R. Mendenhall and Steven W. Selby, both of Allen, Mendenhall, Delaney & Associates, of Alton, for appellee.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

This case comes before us as a permissive interlocutory appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308). The question we have agreed to consider is whether a passenger in an automobile has standing to bring a declaratory judgment action against an insurance company for its alleged violation of section 143a—2(3) of the Illinois Insurance Code (the Code) (Ill. Rev. Stat. 1987, ch. 73, par. 755a—2(3)). The circuit court answered in the affirmative. We affirm and remand.

We adopt defendant’s statement of facts, which was accepted by plaintiff, as our own. Only a few minor changes have been made.

On May 8, 1988, Melissa Monroe was a passenger in an automobile driven by Chance Gibbons which was struck by an automobile driven by John Warren. As a result of the collision, Melissa Monroe was fatally injured.

The vehicle driven by Chance Gibbons was covered by an automobile insurance policy issued by defendant, United States Fidelity and Guaranty Company, to James Gibbons. On January 14, 1991, plaintiff, Ruth Monroe, special administrator of the estate of Melissa Monroe, filed her amended complaint for declaratory relief against defendant. In her amended complaint, plaintiff alleged that the insurance policy issued by defendant to James Gibbons provided coverage for passengers in the vehicle, including plaintiff’s decedent. As a result, plaintiff alleged her decedent was a third-party beneficiary of the insurance contract between James Gibbons and defendant. Plaintiff set forth that pursuant to section 143a—2(3) of the Code, all motor vehicle insurers were required to offer uninsured/underinsured motorist coverage with limits equal to the bodily injury liability limits set forth in the insured’s motor vehicle policy and to offer the insured the right to elect or to reject said uninsured/underinsured motorist coverage equal to the bodily injury liability limits. (Ill. Rev. Stat. 1987, ch. 73, par. 755a—2(3).) It was further alleged that defendant failed to adequately communicate to its insured, James Gibbons, the statutorily mandated offer of uninsured/underinsured motorist coverage in the following respects:

“(a) Did not explain the purpose and benefits of uninsured/ under insured coverage.
(b) Did not explain that he could purchase uninsured/ underinsured coverage in the amount of $100,000 limit per person injured and the respective premium costs thereof.
(c) Did not specify the limits and premium costs of optional insurance coverage that he could intelligibly choose.
(d) Did not obtain written rejection from him to have the benefits of uninsured/underinsured coverage to the extent of his bodily injury coverage — $100,000.00 per person injured.”

Plaintiff’s amended complaint alleged that the aforementioned failures had the effect of denying uninsured/underinsured motorist coverage to the authorized limit and caused the insured, James Gibbons, to be without sufficient and adequate motor vehicle coverage for himself, his family members, and his passengers within the vehicle, including the deceased. Plaintiff further alleged that the coverage available under the policy of John Warren was insufficient to compensate for the death of plaintiff’s decedent. Under a third-party beneficiary theory, the relief sought by plaintiff was for the court, by operation of law, to reform the motor vehicle insurance policy issued by defendant to include underinsured motorist coverage in the amount of $100,000 for each person.

On January 16, 1991, defendant filed a motion to dismiss the amended complaint for declaratory relief which asserted that plaintiff lacked standing to sue because defendant owed no duty to plaintiff’s decedent under section 143a—2(3) of the Code. The only duty imposed under section 143a—2(3) of the Code, defendant argued in its motion, was to offer underinsured motorist coverage to its named insured, James Gibbons. A memorandum of law in support of the motion to dismiss the amended complaint for declaratory relief was filed by defendant on February 11, 1991, and plaintiff’s responsive memorandum of law in opposition was filed on March 18, 1991.

On March 25, 1991, the trial court denied defendant’s motion to dismiss. The trial court, however, noted that the issue raised in the motion was apparently one of first impression and allowed defendant to apply for a finding necessary for interlocutory appeal. On April 22, 1991, defendant filed a motion for certification pursuant to Supreme Court Rule 308(a) (134 Ill. 2d R. 308(a)), which was granted on June 6, 1991. Defendant’s application for leave to appeal was filed in this court on June 19, 1991, and was granted on July 16,1991.

The issue before us, as previously stated, is whether a passenger in an automobile has standing to bring a declaratory judgment action against an insurance company for its alleged violation of section 143a—2(3) of the Code. (Ill. Rev. Stat. 1987, ch. 73, par. 755a—2(3).) Defendant first argues that the statute itself and the legislative debates surrounding underinsured motorist coverage indicate that standing to assert a violation of sections 143a—2(3) and (4) is limited to the purchaser of a policy. Defendant also contends that the definition of “underinsured motor vehicle” found in section 143a—2(3) of the Code is irrelevant to the issue of standing. We disagree.

The law is clear that in order to have standing to bring an action for declaratory relief there must be an actual controversy and the party seeking relief must possess a personal claim, status or right capable of being affected. (Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 362 N.E.2d 298.) In cases where it is alleged that injury is due to the violation of a statute, the doctrine of standing requires that the plaintiff be a member of the class designed to be protected by the statute or one for whose benefit the statute was enacted and to whom a duty of compliance is owed. (Cottage-63rd Street Currency Exchange, Inc. v. Callahan (1982), 104 Ill. App. 3d 586, 432 N.E.2d 1258.) The plaintiff must have sustained a real injury, which is fairly traceable to the defendant’s conduct and which is likely to be redressed by the requested relief. Springfield Rare Coin Galleries, Inc. v. Johnson (1986), 115 Ill. 2d 221, 228, 503 N.E.2d 300, 303.

The statute in question, section 143a—2(3) of the Code, reads, in pertinent part:

“For the purpose of this Act the term ‘underinsured motor vehicle’ means a motor vehicle whose ownership, maintenance or use has resulted in bodily injury or death of the insured, as defined in the policy, and for which the sum of the limits of liability under all bodily injury liability insurance policies or under bonds or other security required to be maintained under Illinois law applicable to the driver or to the person or organization legally responsible for such vehicle and applicable to the vehicle, is less than the limits for underinsured coverage provided the insured as defined in the policy at the time of the accident.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 73, par. 755a—2(3).)

This statute is remedial legislation, and we are required to liberally construe it in order to effectuate its purpose. (S.N. Nielsen Co. v. Public Building Comm’n (1980), 81 Ill. 2d 290, 298, 410 N.E.2d 40, 44.) In the instant case, the insuring agreement concerning uninsured motor vehicle coverage states:

“INSURING AGREEMENT
A. We will pay damages which an ‘insured’ is legally entitled to recover from the owner or operator of an ‘uninsured motor vehicle’ because of ‘bodily injury:’
1. Sustained by an ‘insured,’ and
2. Caused by an accident.
The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the ‘uninsured motor vehicle.’
Any judgment for damages arising out of a suit brought without our written consent is not binding on us.
B. ‘Insured’ as used in this Part means:
1. You or any ‘family member.’
2. Any other person ‘occupying’ ‘your covered auto.’
3. Any person for damages that person is entitled to recover because of ‘bodily injury’ to which this coverage applies sustained by a person described in 1. or 2. above.” (Emphasis added.)

Section 143a—2(3) clearly allows a passenger in an automobile to recover under the automobile owner’s underinsured motorist coverage if the owner’s policy defines the passenger as an insured. Here, the policy provides that any person “occupying” the covered automobile is an “insured.” Therefore, plaintiff’s decedent, because she was “occupying” the Gibbonses’ automobile, was an insured under the Gibbonses’ policy now in question.

Defendant contends that section 143a—2 of the Code is “consumer” legislation and, as such, limits standing to the purchaser of the insurance policy. We agree wholeheartedly with defendant’s contention that section 143a—2 of the Code is consumer legislation. The legislative debates surrounding its passage certainly indicate that the purpose of the legislation was to protect the consumer. Our supreme court in Cloninger v. National General Insurance Co. (1985), 109 Ill. 2d 419, 488 N.E.2d 548, analyzed the statute in question and stated:

“The language of section 143a—2(3) and the legislative debates surrounding its passage, as well as the passage of its predecessor, section 143a—1, indicate that the legislature recognized that soaring medical costs often left injured parties only partially compensated for their injuries. The legislature was obviously concerned with adequately compensating injured parties. As stated by Representative Epton during a House debate on what would later be codified as section 143a—2(3): ‘[T]his Bill is in behalf of the consumer.’ House Debate, June 20, 1980, at 48.” (109 Ill. 2d at 424-25, 488 N.E.2d at 550.)

In our estimation, however, the fact that this is “consumer” legislation does not prohibit an automobile passenger, whose only connection to the automobile in which he was injured and the insurance policy thereon is his status as a passenger, from having standing to bring a declaratory judgment action against the automobile owner’s insurance company for its alleged violation of section 143a—2(3) of the Code. As the Cloninger court pointed out, injured parties should be adequately compensated and should have recourse when they are not.

The present situation, in our opinion, is no different from those instances in which a relative of the named insured has filed suit after an accident, claiming that the named insured’s insurance company failed to make a proper offer of optional coverage to the named insured. In several such situations, a relative has brought suit against the insurance company seeking reformation of the named insured’s policy without standing even being considered an issue. E.g., Overbey v. Illinois Farmers Insurance Co. (1988), 170 Ill. App. 3d 594, 525 N.E.2d 1076.

Defendant attempts to analogize the instant case to Rockford Mutual Insurance Co. v. Economy Fire & Casualty Co. (1991), 217 Ill. App. 3d 181, 576 N.E.2d 1141. In that case, the dispute revolved around which of two insurance companies must provide coverage for the death of a passenger, Larry Gene Sneed, who died in an automobile owned by Suzanne and Charles Fred but driven by John M. Durbin, son of Suzanne Fred. The defendant, Economy, issued a policy of insurance to Suzanne and Charles Fred in which the Freds were the named insureds. The policy contained a separate “named driver exclusion endorsement” in which coverage afforded by the policy was to be voided if a claim or suit was the result of an accident in which the Fred automobile was being driven by John M. Durbin. Barbara Grace was the mother of the deceased passenger, Sneed. Grace was insured by Rockford. After Economy denied coverage for the death of her son because of the named driver exclusion, Grace made a claim against the uninsured motorist portion of her Rockford policy. Rockford then brought the declaratory judgment action, and the trial court entered summary judgment, finding that the Economy policy issued to the Freds was inapplicable. The trial court found that there was no conflict between the named driver exclusion endorsement and the uninsured motorist provision of the Economy policy, as the plaintiff had argued, and that the named driver exclusion endorsement did not violate public policy even though it voided uninsured motorist coverage. The declaratory judgment was affirmed on appeal. The Rockford, court specifically stated:

“The trial court found that the named driver exclusion endorsement, which bars any recovery for Sneed’s death under the uninsured motorist provision of the policy, does not violate the public policy expressed in section 143a of the Illinois Insurance Code. That section requires that every insurance policy include coverage for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured vehicles and hit-and-run vehicles. The trial court found, and we agree, that the purpose of the statute, and the public policy expressed therein, is to provide protection to policyholders and named insureds for whom protection is specifically contracted, and not to provide protection to third parties who are strangers to the contract of insurance. Policyholders and named insureds may recover under their own insurance policy when they are injured as a result of an accident in or with an uninsured motorist or vehicle, just as an injured third party may [emphasis added] recover under his or her own uninsured motorist insurance if he or she is injured as a result of an accident in or with an uninsured motorist or vehicle. Thus, if a passenger is injured in an uninsured vehicle, as in the instant case [emphasis added], that passenger must look to his own insurance policy for recovery under its [emphasis in original] uninsured motorist provision. Because this was the intention and purpose of the statute, it does not violate public policy to recognize the named driver exclusion endorsement in the Economy policy, which renders the vehicle insured thereunder an uninsured vehicle, treat it as such, and require Grace to seek recovery under her own Rockford policy for the death of her son.” (217 Ill. App. 3d at 186-87, 576 N.E.2d at 1145.)

Defendant argues that this language indicates that a passenger has no recourse but to look to his own insurance policy for recovery under its uninsured motorist provision. We disagree with this interpretation.

We limited the holding of Rockford to the facts therein, as indicated by the above language. Rockford is distinguishable from the present case, because in Rockford the Economy policy included a named driver exclusion endorsement denying any coverage should an accident occur while John M. Durbin was driving the automobile covered by the Economy policy. Here, there was no such named driver exclusion endorsement. The automobile in which Melissa Monroe was riding was insured and the uninsured motorist provision specifically made her insured under its terms. There are far too many instances we can call to mind in which a passenger may not have his own policy to look to for recovery. Many people in our State, minors, elderly persons, and people who rely on mass transportation, do not own automobiles, and, thus, do not have their own insurance policy. When a passenger enters an automobile, he should realistically believe he is covered by the owner’s policy. There are exceptions to this, such as the Rockford case, but the instant case does not fall into this category.

Defendant finally argues that to allow standing to a passenger of an automobile in a declaratory judgment action against an insurance company with whom the passenger had no dealings would allow lawsuits to be filed on the basis of total speculation and for that reason should not be allowed. In our estimation, such a fear does not justify denying plaintiff the opportunity to proceed. In order to reform the contract, plaintiff herein must prove defendant did, in fact, fail to make a proper offer of optional coverage to James Gibbons, the purchaser of the policy. (See Cloninger v. National General Insurance Co. (1985), 109 Ill. 2d 419, 488 N.E.2d 548.) The proof required will be no different and no more difficult than if James Gibbons was the plaintiff.

There is no question but that an injured passenger would stand to benefit or lose from the purchaser’s election or rejection of underinsured motorist coverage. Here, plaintiff’s decedent’s injury could be redressed if the Gibbonses’ policy included more than the minimum amount of uninsured motorist coverage and a like amount of underinsured motorist coverage up to the bodily injury limits of the policy. (Ill. Rev. Stat. 1987, ch. 73, par. 755a—2(3).) If defendant failed to make a proper offer of uninsured/underinsured motorist coverage to its insured, James Gibbons, plaintiff’s decedent, an “insured” under the provisions of the policy in question, has been injured and those injuries can be redressed by the relief requested in plaintiff’s complaint.

For the foregoing reasons, the order entered by the circuit court of Madison County, denying defendant’s motion to dismiss, is affirmed, and this cause is remanded for further proceedings consistent with this opinion.

Affirmed and remanded.

HARRISON and RARICK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
      In re PATRICIA BRAZELTON, a Person Found Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Patricia Brazelton, Respondent-Appellant).
    Fourth District
    No. 4—92—0449
    Opinion filed November 12, 1992.

      Robert E. Mclntire, Public Defender, of Danville (William S. Sohn, Assistant Public Defender, of counsel), for appellant.
    No brief filed for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Patricia Brazelton was the respondent to the State’s petition for involuntary commitment (Ill. Rev. Stat. 1991, ch. 91½, par. 3—701). On May 13, 1992, the circuit court of Vermilion County found the petition proved and Brazelton to be mentally ill and reasonably expected to inflict harm upon herself or another. The court ordered Brazelton committed to the Illinois Department of Mental Health.

. This matter is .before us, not for resolution upon the merits, but on the motion of Brazelton’s appointed appellate counsel to withdraw. Counsel has filed a motion which concludes the record on appeal presents no meritorious issues and any request for review would be frivolous. We find counsel’s motion deficient under Anders v. California (1967), 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396. There are arguably meritorious issues which could be raised. We therefore deny counsel’s motion to withdraw.

The United States Supreme Court in Anders set forth the procedures to be followed in order for appellate counsel, appointed to represent a defendant in a criminal case, to properly withdraw when he or she concludes the appeal is frivolous. Although counsel has not cited to the applicability of Anders to .this case, we have previously held the Anders procedure is applicable to appointed counsel’s motion to withdraw as appellate counsel on the appeal from an order of involuntary commitment. In re McQueen (1986), 145 Ill. App. 3d 148, 149, 495 N.E.2d 128, 129.

Under Anders, counsel’s request to withdraw must be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of the motion and brief must be furnished to the client, and the client must be given time to raise any points she chooses. The court will then review the record to determine whether the available arguments are wholly frivolous.

Counsel’s amended notice and proof of service indicates Brazelton has been provided with a copy of the motion. On motion of the court, Brazelton was provided with additional time to file points and authorities. None have been received. We now find the motion submitted by counsel deficient as it does not meet the Anders requirement that counsel refer to any argument in the record arguably supporting the appeal.

The attorney in an Anders situation is faced with an unusual difficulty. The attorney requesting the court’s permission to withdraw bears the knowledge a successful motion to withdraw necessitates the court’s determination that an appeal would be frivolous. An attorney is expected to zealously argue in favor of that which he is requesting of the court. The initial impulse of an attorney seeking to withdraw from a case is to emphatically maintain the correctness of the circuit court’s determination and the frivolous nature of any appeal. However, this impulse to convince the court of the merits of the motion to withdraw must be tempered by the duty to the client.

Counsel’s duty to the client mandates the attorney, to the extent possible, remain as an advocate of a client. The attorney may not act as an unbiased judge of the merits of the appeal. Rather, he must set out any irregularities in the trial process or other potential error, which, although in his judgment not a basis for appellate relief, might, in the judgment of his client, another attorney, or the court, arguably be meritorious. (United States v. Blackwell (11th Cir. 1985), 767 F.2d 1486, 1487-88.) After identifying the issues which could conceivably be raised on appeal, counsel must sketch the arguments in support of those issues, and then explain why he believes the arguments are frivolous. United States v. Edwards (7th Cir. 1985), 777 F.2d 364, 366.

In this case, counsel’s brief consists of a three-page recitation of the facts and a one-page argument. The argument does not identify issues which could be raised in support of Brazelton’s appeal, nor does it sketch Brazelton’s potential arguments. Instead, counsel’s argument cites one case regarding the standard of review on appeal, erroneously states the State’s burden of proof at trial as by a preponderance of the evidence, and concludes the trial court did not err in committing Brazelton because “[t]he evidence clearly and entirely supports the State’s position.”

This is similar to the document filed in United States v. Johnson (5th Cir. 1976), 527 F.2d 1328. In Johnson, counsel filed a brief con-taming a brief history of the case and a statement that counsel had searched the record and failed to find anything in the record that might arguably support the appeal. The court stated the brief was, in effect, nothing more than a no-merit letter, disapproved by the Supreme Court in Anders. (Johnson, 527 F.2d at 1329.) In Anders, appointed counsel filed a letter with the Court, stating he would not file a brief as there were no meritorious arguments to be raised on appeal, and he had expressed his views to the client. The Court found this inadequate as such a letter does not afford the Court or the client any guidance, and the Court is forced to determine the frivolity of the client’s contentions without the benefit of legal argument in support of the client’s position. Anders, 386 U.S. at 745, 18 L. Ed. 2d at 498-99, 87 S. Ct. at 1400.

As we stated in McQueen, the motion-to withdraw “accompanied by a detailed memorandum which discusses all aspects of the case and concludes that there are no viable grounds for appeal” provides a proper basis for an Anders motion. (McQueen, 145 Ill. App. 3d at 149, 495 N.E.2d at 129.) The only issue discussed by this motion is an incorrect burden of proof. Counsel’s two references to the “preponderance of the evidence” burden of proof would have had the effect of misleading rather than assisting Brazelton since the State's burden of proof in an involuntary commitment is by clear and convincing evidence. (Ill. Rev. Stat. 1979, ch. 91½, par. 3—808.) The brief does not review “all aspects of the case” to determine whether there are any justiciable issues or meritorious grounds for appeal. (McQueen, 145 Ill. App. 3d at 149, 495 N.E.2d at 129.) Counsel’s motion to withdraw is denied and counsel is instructed to submit a brief in support of respondent’s position on appeal.

Motion denied.

McCULLOUGH and LUND, JJ., concur.


author: JUSTICE CHAPMAN PRESIDING JUSTICE GOLDENHERSH,

text:
    JOE L. THOMPSON, Plaintiff-Appellee, v. ILLINOIS POWER COMPANY et al., Defendants-Appellants (Koehring Bantam Division, Defendant-Appellee).
    Fifth District
    No. 5—91—0323
    Opinion filed November 20, 1992.
    GOLDENHERSH, P.J., dissenting.

      Theodore J. MacDonald, Jr., and J. Todd Hayes, both of Burroughs, Simpson, Hepler, Broom & MacDonald, of Edwardsville, for appellant Illinois Power Company.
    Stephen L. Corn, Kenneth F. Werts, and Nancy R. Kuhnke, all of Craig & Craig, of Mattoon, for appellant Tomcal Contracting, Inc.
    John W. Bell and William G. Beatty, both of Johnson & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellee Koehring Bantam Division.
    Bruce N. Cook, of Belleville, for appellee Joe L. Thompson.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiff sustained an electrical shock while climbing off a crane that had become entangled in a high-voltage line. Plaintiff went to trial against three defendants, Koehring Bantam Division, manufacturer of the crane, TomCal Contracting, Inc. (TomCal), owner/operator of the crane, and Illinois Power Company (Illinois Power), owner of the electrical line. Plaintiff sought actual and punitive damages against Koehring Bantam Division and Illinois Power. Plaintiff sought only actual damages against TomCal, which had admitted liability before trial The jury found Koehring Bantam Division not liable, returned a verdict of $1,600,000 against TomCal and Illinois Power, and assessed the latter two defendants’ culpability at 99% and 1%, respectively. Defendants TomCal and Illinois Power appeal the plaintiff’s judgment, and defendant TomCal also appeals from the jury’s denial of its contribution claim against Koehring Bantam Division.

Defendants raise several issues including the late disclosure of an expert witness and the court’s direction of a verdict on the question of comparative negligence. Since we reverse on these two points, there is no need to discuss the remaining issues.

On the day of plaintiff’s injury TomCal was removing a series of concrete barriers from a road construction site. Tom Caldieraro, president of TomCal, was operating the crane, and plaintiff was in the crane’s rear cab. The crane was used to lift the barriers from the ground and to place them on a flatbed truck located a few feet north of the crane. The approximate locations of the vehicles and most of the workers involved are shown in exhibit A. Illinois Power owned the high-voltage lines shown in the diagram.

After Tom Caldieraro had loaded a few of the barriers onto the truck, he saw Mr. Giloman, the laborer who hooked up the barriers, fall to the ground and curl up. (Giloman is not shown on the diagram; he was a little north of the area shown.) Caldieraro realized that the crane boom had contacted the electrical lines and raised the boom in an attempt to clear the contact. When this attempt was unsuccessful, Caldieraro jumped clear of the crane. At the time Caldieraro jumped, the tires beneath the operator’s cab were on fire.

During these maneuvers plaintiff was in the rear cab of the crane, and he was facing south waiting for Caldieraro to signal him to move the crane to a new location. Plaintiff first became aware of a problem when he looked in his outside rearview mirror and saw the tires on fire. At approximately the same time plaintiff saw Caldieraro jump from the crane. Plaintiff then opened the door to get out, and, as his foot neared the ground, he felt the current surging through his body.

' Plaintiff could have seen that the crane had contacted the line if he had turned around and looked up. Plaintiff testified he was unaware of the fact that the crane had contacted the line when he .left the crane. Defendant Koehring Bantam Division’s exhibit 9, a booklet of “Rulés on Safety” for the operation of cranes, warned about the dangers of operating near overhead lines and provided that, if a power line was hit, the occupants of the crane should:

“*stay inside the cab until line is cleared or power is shut off[;]
*if you must leave the cab, be sure to jump completely clear of the machine.”

After plaintiff testified and was cross-examined about his ability to return to work, Dan Gruber was called to the stand. Defendants objected to Gruber’s testimony because he had not been disclosed either as an ordinary witness or as an expert under Supreme Court Rule 220 (134 Ill. 2d R. 220). The court overruled the objection, and Gruber was allowed to testify to the current working agreement (which defendants had offered to stipulate to) and that a person with plaintiff’s limitations could not do the work of an oiler.

Before turning to the substantive issues in the case, we will address TomCal’s forum non conveniens argument. Plaintiff originally filed this case in Madison County, but after some months he voluntarily dismissed it and refiled it in neighboring St. Clair County. Defendants filed forum non conveniens motions which were denied, and TomCal raises the denial on appeal.

Trial courts have broad discretion in ruling on forum non conveniens motions although their ruling can be reversed for an abuse of that discretion. (Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 506 N.E.2d 1291.) This case involves an accident which happened in Madison County and an injured plaintiff from St. Clair County. Seventeen witnesses testified, seven were from St. Clair County, three were from Madison County, one from Macoupin County, one from Macon County, one from St. Louis, Missouri, and one each from Nevada, Michigan and New Mexico. Under these circumstances we find no abuse of discretion in the trial court’s denial of the forum non conveniens motions. Boner v. Peabody Coal Co. (1991), 142 Ill. 2d 523, 568 N.E.2d 883.

With regard to the Rule 220 issue, the plaintiff contends that Gruber was not an expert witness because he was not retained to render an opinion and cites Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525, in support of his position. Tzystuck involved a treating doctor as did Boatmen’s National Bank v. Martin (1992), 223 Ill. App. 3d 740, 585 N.E.2d 1328, which allowed an undisclosed opinion precisely because the witness was a treating doctor. We recently examined Tzystuck and several of the cases which had expanded the treating-doctor exception to Rule 220 and concluded that the expansion of the exception was unwarranted. (See Wakeford v. Rodehouse Restaurants of Missouri, Inc. (1991), 223 Ill. App. 3d 31, 584 N.E.2d 963.) As we pointed out in Wakeford, a requirement of disclosure of all witnesses who are going to render an opinion places little burden on the proponent of the witnesses and prevents the surprise use of expert testimony on crucial issues. In this case, one of the defendants had admitted negligence. Therefore, the only issues remaining for determination as to that defendant were the extent of plaintiff’s injuries and disabilities and his comparative negligence. The latter was removed by a directed verdict, a ruling we will discuss shortly, and the use of an undisclosed expert on the damage question becomes more significant in view of the liability admission.

Plaintiff contended that Gruber was called to counter the defendants’ cross-examination of plaintiff on his ability to work. Plaintiff also stated, however, that Gruber was called to refute the cross-examination testimony of Dr. Salyapongse, one of plaintiff’s treating doctors, on the same issue. We note that Dr. Salyapongse’s testimony was presented by evidence deposition, and the deposition was taken over six months before the trial. This case, therefore, does not present a situation of some emergency necessitating the disclosure of a new expert. Plaintiff knew six months before trial that defendants were contesting the issue of his inability to return to work and yet plaintiff did not disclose Gruber until several days into the trial.

Counsel contemplating whether to provide their opponents with the names of experts would be well advised to heed Robert Frost’s admonition to,

“The witch that came (the withered hag) to wash the steps with pail and rag, was once the beauty, Abishag.”

Frost titled the poem and closed it with the same warning, “Provide, provide!” D. Sohn and R. Tyre, Frost: The Poet and His Poetry 112 (1969).

More important than Frost’s warning are the supreme court rules. The supreme court has called for the disclosure of experts by implementation of Rule 220, and it has also firmly stated:

“At the risk of stating the obvious, it should be pointed out that the rules adopted by this court concerning criminal defendants and guilty pleas are in fact rules of procedure and not suggestions.” People v. Wilk (1988), 124 Ill. 2d 93, 103, 529 N.E.2d 218.

Turning to the issue of the directed verdict for the plaintiff on the question of his comparative negligence, we conclude that the trial court erred in that ruling also. The standard for directed verdicts was set forth years ago in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504:

“In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick, 37 Ill. 2d at 510, 229 N.E.2d at 513-14.

What was the evidence on this issue? The record reveals that plaintiff had worked on and off as an oiler for three years. When he arrived for work the morning of his injury, the crane unit had already been located. While plaintiff did not position the crane near the Illinois Power lines, they were obviously present in relatively close proximity to the crane on which he was working. When the crane contacted the lines, the contact point was behind and above the plaintiff, and he testified he did not know contact had been made. Plaintiff did know, however, that the tires on the crane were on fire and that a fellow workman had jumped from the crane. The safety rule book referred to earlier warned occupants of cranes to stay inside the cab or to jump clear. Plaintiff did neither.

Plaintiff said he did not know contact had been made, but negligence is based not only on what actors know but also on what they should know. It is uncontroverted that plaintiff could have seen the contact between the crane and the power lines if he had turned and looked. Given a situation of a crane on a construction site located near overhead power lines whose tires suddenly burst into flame and whose co-workers jumped clear, it would not be unreasonable to require a person to look for the source of the flames and the jumping. Under these same circumstances, if the plaintiff had, without looking, moved the crane unit forward and contacted and injured a workman on the ground, could the trial court have properly directed a verdict for plaintiff on the issue of his negligence? We think not, but the same standard applies, whether the conduct is negligence by the defendant or comparative negligence by the plaintiff:

“Logic demands that one rule govern both the direction of verdicts and determination of the presence or absence of negligence or contributory negligence as a matter of law, for in both situations the issue is whether a court or the jury should decide the negligence issue.” (Pedrick, 37 Ill. 2d at 503, 229 N.E.2d at 510.)

Under the circumstances, the trial court erred in directing a verdict on the issue of plaintiff’s comparative negligence.

Our resolution of these two issues requires reversal and remand for a new trial on damages only as to defendants TomCal and Illinois Power.

As mentioned earlier, the jury returned a verdict for Koehring Bantam Division. Plaintiff has not appealed that result. TomCal, however, appealed the adverse judgment on its counterclaim against Koehring Bantam Division. We have reviewed the record and do not find that result to be against the manifest weight of the evidence and, therefore, affirm the judgment on the verdict in favor of Koehring Bantam Division. See Netzel v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 808, 537 N.E.2d 1348.

For the foregoing reasons, the judgment of the circuit court is affirmed in part and reversed in part, and this cause is remanded for a new trial on damages only as to TomCal and Illinois Power. While we reverse and remand for a new trial on damages only, we realize that evidence of the defendants’ negligence will have to be presented to the jury so that it can make a meaningful judgment of plaintiff’s comparative negligence.

Affirmed in part; reversed and remanded in part.

WELCH, J., concurs.

PRESIDING JUSTICE GOLDENHERSH,

dissenting:

I respectfully dissent.

The reasons for my dissent from the majority opinion are its disposition of the alleged Rule 220 violation (134 Ill. 2d R. 220) by allowing the testimony of Mr. Gruber and its treatment of the trial court’s directed verdict concerning comparative negligence.

The majority opinion explicitly states or implies numerous points concerning Mr. Gruber: that he is an expert witness who would fall under the disclosure requirements of Rule 220; that he was called by surprise to defendants after the cross-examination of plaintiff and equally after the reading of the evidence deposition of Dr. Salyapongse, which all the parties had for a period of time prior to trial; and that since his being called as an expert violated Rule 220, the trial court of necessity had to bar his testimony and failure to do so was reversible error based on Rule 220. All of these positions are erroneous.

The colloquy between counsel and court indicates that the major reason for calling Mr. Gruber was the extensive cross-examination of plaintiff concerning his ability to return to work as an oiler or a similar job, given his physical limitations:

“MR. CORN [defense counsel]: We have been advised by Mr. [Bruce] Cook [plaintiff’s counsel] that he intends to call a fellow whose name I did not catch.
MR. COOK: Gruber. Dan Gruber. G-r-u-b-e-r.
MR. CORN: Who apparently is going to be called to identify the 1990 contract and to give some other type of testimony. Mr. Gruber’s name has not been identified at any time during the proceedings; has not been identified as a person having any knowledge of facts. Bruce has indicated that he’s going to ask some questions about what would oilers do for light duty. We have never been able to depose this person. I would object to him being called as a witness, and ask the Court to rule outside the presence of the jury.
I will, from my client’s standpoint, concede the lack of foundation for the contract, and the contract can go in without any proof. I will stipulate it is the contract that has the overtime. I strenuously object.
MR. MacDONALD [defense counsel]: I’d join in that, Judge.
MR. BELL [defense counsel]: Koehring will also.
MR. COOK: The problem is interrogatories are not particular and no one has asked me that point; that the necessity for Mr. Gruber has arisen as a result of the cross-examination of the defendants who have made much in the examination of Dr. Salyapongse, in the examination of Mr. Thompson, about what he can or cannot do. And what I intend to ask Mr. Gruber is can a person in his condition, can he perform the duties of an operating engineer in the oiler category, or actually I guess, as an oiler, and that’s all. I’m going to ask him, anyway, same thing you asked him, anybody with a 25-pound weight capacity who has part of their foot off and can’t climb, whether or not they can work as an oiler. I don’t know what his answer will be, other than what he’s told me previously.
MR. BEATTY [defense counsel]: If the Court please, that’s not a matter of fact, that’s a matter of opinion. He’s asked this witness to state an opinion as to what Mr. Thompson could do or not do given Mr. Thompson’s physical situation. I think that falls under the Rule 220. There is a continuing obligation on the Plaintiff under 220 to provide us with the names of additional witnesses, or what they have to say. The obligation is not among — not upon the defendants to ask the Plaintiff for that information. The rule, Illinois Supreme Court Rule 220, sets the continuing obligation upon the Plaintiff to provide us with that information, and if an opinion is going to be rendered, it is necessarily the type of opinion that would fall under 220, and there has never been any disclosure, or supplementation of the 220 responses.
MR. COOK: Your Honor, he’s strictly not a 220 witness. 220 contemplates very clearly in the Supreme Court Rules that he’s a witness hired for the purpose of testimony. There has been much testimony — he is a fact witness in this case. My client is a member of his union. His union has a hiring hall or referral system, and he is merely a fact witness. Fact witnesses may be asked opinion questions, and he is not a 220 witness. 220 witnesses are people who are hired to testify. I would agree that I have to supplement the interrogatoríes, but this is as a response to their cross-examination, and to the case made by them, suggesting that this man could do this work. And if they will all stipulate that he can’t work as an oiler, given his condition, then I don’t have any problem.
MR. BEATTY: First of all, Your Honor, this witness is being called upon to testify as to something which is beyond the ken of the ordinary juror, and that is with regard to the duties of an oiler and whether or not Mr. Thompson could perform those duties given his present circumstances and condition.
So, first of all, it is expert testimony in the nature since it is beyond the ken of the ordinary juror, and it is an opinion, because it’s not a factual issue. He’s being asked to express an opinion given certain conditions, given certain medical conditions, given certain limitations, can this person do this job. This is not a fact. That’s not a matter of fact. That is a matter of this witness’ opinion, and since it’s an opinion that is expressed on an item beyond the ken of the ordinary juror, it’s an expert opinion. It falls under Rule 220. There is an automatic duty, and continuing duty on the part of Mr. Cook to disclose it if it wasn’t disclosed, and it should be barred.
MR. COOK: That’s just not the law.
MR. BEATTY: It is the law.
MR. COOK: You ought to read Rule 220 and the cases on it.
MR. BEATTY: Bruce, I have, thank you.
MR. COOK: 220 is a witness hired for the purpose of testimony.
MR. CORN: Retained.
MR. COOK: I’m sorry. Take it up with the Supreme Court.
MR. CORN: Doesn’t say employed. It says retained.
MR. COOK: I’m sorry, we haven’t retained him.
THE COURT: I’ll overrule the objection.”

The trial court, after hearing argument on the objection based on Rule 220, allowed Mr. Gruber’s testimony. Mr. Gruber’s direct testimony on the pointed issue was the following:

“Q. Where are you employed, sir?
A. I’m employed by Operating Engineer’s Local 520 in Granite City, Illinois.
Q. What do you do there, sir?
A. I’m a business representative, business agent.
Q. How long have you done that?
A. I’ve been a business agent a little over a year.
Q. Before that were you a member of your own union, sir?
A. Yes, I am.
Q. And what have you done as an operating engineer?
A. I was an oiler and apprentice for 24 years, and then I’m a journeyman now.
Q. And, does your union have members who have various job categories, operators, oilers, things of that nature?
A. Yes, we do.
Q. Have you worked as an oiler?
A. Yes, that’s the term we use for apprentice is oiler.
* * *
Q. (by Mr. Cook) Tell the jury what type of work oilers are expected to do if they are members of Local 520.
A. Yes, they basically help in the assembly, the disassembly, the cleaning, maintenance, and the lubrication of heavy equipment as defined in the contract. Heavy equipment meaning bulldozers, cranes, concrete plants, derricks, and so forth.
Q. Could a person do that duty generally if he had a 25-pound weight lifting restriction?
A. No.
Q. If a person is unable to climb ladders, can he perform as an oiler?
A. No.
MR. COOK: I don’t think I have anything further. Thank you, Mr. Gruber.”

He was cross-examined on the point as follows:

“CROSS EXAMINATION BY MR. STEPHEN CORN
Q. Mr. Gruber, are you familiar with Art Hayes?
A. Yes, sir.
Q. He was an oiler out of your local, wasn’t he?
A. Yes, sir.
Q. He had one arm?
A. Yes, sir.
Q. There is another oiler there in your union that has one arm, isn’t there?
A. Yes, sir.
Q. Do you remember the oiler back in the 70s which was a paraplegic?
A. No, sir.
Q. Don’t remember him?
A. No, sir.
MR. CORN: Thank you. I have nothing further.”

The majority holds that this scenario constituted a violation of Rule 220 and implies that the violation was prejudicial, that barring of Gruber was mandatory, and that failure to do so was reversible error.

Rule 220, as with other rules promulgated by our supreme court, needs to be applied according to the intent indicated by its language. While we have held that a witness such as Gruber probably comes under Rule 220 and should be disclosed (see Wakeford v. Rodehouse Restaurants of Missouri, Inc. (1991), 223 Ill. App. 3d 31, 584 N.E.2d 963), the majority takes a major leap by saying that failure to disclose per se constitutes prejudicial and reversible error. Rule 220 reads as follows:

“Rule 220. Expert Witnesses
(a) Definitions.
(1) Definition of expert witness. An expert is a person who, because of education, training or experience, possesses knowledge of a specialized nature beyond that of the- average person on a factual matter material to a claim or defense in pending litigation and who may be expected to render an opinion within his expertise at trial. He may be an employee of a party, a party, or an independent contractor.
(2) Consulting expert. A consulting expert is a person who possesses the same qualifications as an expert witness and who has been retained or specially employed in anticipation of litigation or preparation for trial but who is not to be called at trial to render opinions within his area of expertise.
(b) Disclosure.
(1) Expert witness. Where the testimony of experts is reasonably contemplated, the parties will act in good faith to seasonably:
(i) ascertain the identity of such witnesses, and
(ii) obtain from them the opinions upon which they may be requested to testify.
In order to insure fair and equitable preparation for trial by all parties the identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party either within 90 days after the substance of the expert’s opinion first becomes known to that party or his counsel or, if the substance of the expert’s opinion is then known, at the first pretrial conference in the case, whichever is later. In any event, as to all expert witnesses not previously disclosed, the trial court, on its own motion, or on the motion of any party after the first pretrial conference, shall enter an order scheduling the dates upon which all expert witnesses, including rebuttal experts, shall be disclosed. The schedule established by the trial court will sequence the disclosure of expert witnesses in accordance with the complexities of the issues involved and the burdens of proof of the respective parties as to those issues. All dates set by the trial court shall be chosen to insure that discovery regarding such expert witnesses will be completed not later than 60 days before the date on which the trial court reasonably anticipates the trial will commence. Upon disclosure, the expert’s opinion may be the subject of discovery as provided in paragraph (c) hereof. Failure to make the disclosure required by this rule or to comply with the discovery contemplated herein will result in disqualification of the expert as a witness.
(2) Consulting expert. Except as provided in paragraph (c)(5) hereof, a party need not disclose the identity of a consulting expert.
(c) Discovery.
(1) Upon interrogatory propounded for that purpose, the party retaining or employing an expert witness shall be required to state:
(i) the subject matter on which the expert is expected to testify;
(ii) his conclusions and opinions and the bases therefor; and
(iii) his qualifications.
(2) The party answering such interrogatories may respond by submitting the signed report of the expert containing the required information.
(3) A party shall be required to seasonably supplement his answers to interrogatories propounded under this rule as additional information becomes known to the party or his counsel.
(4) The provisions of paragraphs (c) and (d) hereof also apply to a party or an employee of a party who will render an opinion within his expertise at the time of trial. However, the provisions of paragraphs (c) and (d) do not apply to parties or employees of entities whose professional acts or omissions are the subject of the litigation. The opinions of these latter persons may be the subject of disclosure by deposition only.
(5) The identity, opinions and work product of consulting experts are discoverable only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject matter by other means. However, documents, objects and tangible things as defined in Rule 214 which are in the possession of a consulting expert and which do not contain his opinions may be obtained by a request for that purpose served upon the party retaining him.
(6) Unless manifest injustice would result, each party shall bear the expense of all fees charged by his expert witness or witnesses.
(d) Scope of Testimony. To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, depositions or requests to produce, his direct testimony at trial may not be inconsistent with or go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings.” (134 Ill. 2d R. 220.)

As of a 1985 amendment, the sanctions under Rule 219 (134 Ill. 2d R. 219) encompass Rule 220. One notes that this amendment of Rule 219 by the supreme court postdates the promulgation of Rule 220. Rule 219(c), in pertinent part, reads as follows:

“If a party, or any person at the instance of or in collusion with a party, unreasonably refuses to comply with any provision of part E of article II of the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:
(i) that further proceedings be stayed until the order or rule is complied with;
(ii) that the offending party be debarred from filing any other pleading relating to any issue to which the refusal or failure relates;
(iii) that he be debarred from maintaining any particular claim, counterclaim, third-party complaint, or defense relating to that issue;
(iv) that a witness be barred from testifying concerning that issue;
(v) that, as to claims or defenses asserted in any pleading to which that issue is material, a judgment by default be entered against the offending party or that his action be dismissed with or without prejudice; or
(vi) that any portion of his pleadings relating to that issue be stricken and, if thereby made appropriate, judgment be entered as to that issue.” (Emphasis added.) (134 Ill. 2d R. 219(c).)

The Committee Comments concerning Rule 219 state:

“Subparagraph (c) was amended in 1985 to make it clear that the sanctions provided for therein applied to violations of new Rules 220 and 222, as well as any discovery rules that may be enacted in the future.” (Ill. Ann. Stat., ch. 110A, par. 219(c), Committee Comments, at 150 (Smith-Hurd Supp. 1992).)

The Supplement to Historical and Practice Notes states:

“The 1985 amendment to this section corrected the limiting reference to rules 201 through 218 which formerly appeared in paragraph (c). Accordingly the rule now provides sanctions for violation of the rule on discovery of. expert witnesses (rule 220) and the rule on simplified discovery in small cases (rule 222), and will automatically apply to any rules added to this part of the Supreme Court Rules in future.” Ill. Ann. Stat., ch. 110A, par. 219(c), Supplement to Historical and Practice Notes, at 151 (Smith-Hurd Supp. 1992).

The intent of the supreme court by its rules and amendments is clear. Violation of Rule 220 is a matter to be dealt with by the sound discretion of the trial court, and the remedies available to that court include all of those actions enumerated under Rule 219(c), including the remedy of barring the expert witness enumerated in Rule 219(c) and Rule 220. The implication of the majority’s holding is that faced with a Rule 220 violation a trial court has no discretion and must bar the offending witness. While the various appellate districts have differed as to the degree of discretion, the prevailing view is that the trial court does possess some degree of discretion. (Marshall v. Osborn (1991), 213 Ill. App. 3d 134, 571 N.E.2d 492; Scheibel v. Groeteka (1989), 183 Ill. App. 3d 120, 538 N.E.2d 1236; Dietrich v. Jones (1988), 172 Ill. App. 3d 201, 526 N.E.2d 450; Fischer v. G. & S. Builders (1986), 147 Ill. App. 3d 168, 497 N.E.2d 1022; see also Schnuck Markets, Inc. v. Soffer (1991), 213 Ill. App. 3d 957, 572 N.E.2d 1169, leave to appeal denied (1991), 141 Ill. 2d 560, 580 N.E.2d 134 (violation was harmless error); Phelps v. O'Malley (1987), 159 Ill. App. 3d 214, 511 N.E.2d 974 (limited discretion).) The majority opinion ignores this line of cases and ignores the clear intent evidenced by the inclusion of Rule 220 under the Rule 219 sanctions. Schnuck Markets, Inc. v. Soffer (1991), 213 Ill. App. 3d 957, 572 N.E.2d 1169; Uhrhan v. Union Pacific R.R. Co. (1992), 230 Ill. App. 3d 725, 596 N.E.2d 221.

As applied to the instant case, the record fails to sustain a holding of abuse of discretion. The majority opinion, first of all, does not even approach the trial court’s holding as a question of discretion. In reviewing the circumstances of Mr. Gruber’s being called as a witness, the limited amount of testimony that he gave, the minor position of Dr. Salyapongse’s deposition, the testimony of Mr. Gruber, and the apparent lack of any prejudicial result of the decision to call him, I conclude that this record fails to support any abuse of discretion on the part of the trial judge. While it is surely preferable that all potential expert witnesses, and even those who might marginally be considered experts, should be disclosed as per the time limits of Rule 220, in the real world of heated and highly contested trials in substantial cases such as this one, events do occur at the last minute, and a trial court should not be handcuffed in exercising its sound discretion. See Vallejo v. Mercado (1991), 220 Ill. App. 3d 1, 580 N.E.2d 655.

Discretion also enters into the trial court’s assessment of comparative negligence in this cause. The supposed basis for comparative negligence in this cause is that plaintiff, in exiting the cab when he discovered that the tires were on fire, failed to obey the applicable work rule in his exit. Plaintiff’s testimony as to his exit was that he did not exit in the normal manner but also did not totally jump clear of the cab. On the basis of this record the trial court refused to submit the issue of comparative negligence to the jury.

An analogous situation to the question before this court is found in Uhrhan v. Union Pacific R.R. Co. (1992), 230 Ill. App. 3d 725, 596 N.E.2d 221. While an FELA case, the circumstances for its consideration of the question of comparative negligence are close to this. In Uhrhan, a switchman tripped over debris while lantern-signalling other members of his work crews. Defendant railroad’s safety rule required workers to be aware of tripping hazards and report or correct them, but our court held it inapplicable and the giving of the contributory negligence instruction as error.

Applying the circumstances and reasoning of the Uhrhan case to the case at bar, it is my opinion that the action of the trial court in refusing to submit the issue of comparative negligence to the jury was within its sound discretion and should not be overturned. The record does not show a clear violation of defendant’s safety rule under these circumstances.

In sum, the majority opinion contains two major flaws. By far the most egregious is its evisceration of any shred of discretion resting in the trial court in its application of Rule 220, contrary to the intent of the language our supreme court used in promulgating Rule 220 and in amending Rule 219. In their evaluation of the evidence presented in the trials before them, our trial courts face an immense challenge in presiding over heated adversarial contests with the goal that the parties have their day in court and a fair trial. We do not promote these ends by severely restricting or eliminating the amount of discretion a trial judge may properly exercise when faced with the complexities and surprises that a trial necessarily entails.

For the foregoing reasons, I respectfully dissent from the majority’s opinion.


author: JUSTICE COOK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BRIAN PAUL INNIS, Defendant-Appellee.
    Fourth District
    No. 4—92—0145
    Opinion filed November 12, 1992.

      Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Robert I. Auler, of Auler Law Offices, P.C., of Urbana, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

Defendant Brian Paul Innis pleaded not guilty to a charge of unlawful transportation of alcohol (Ill. Rev. Stat. 1989, ch. 95½, par. 11—502(a)) and requested a jury trial. The trial court granted defendant’s motion to suppress all evidence seized as a result of the stop of his vehicle. After filing a certificate of impairment and declaration of intention to file an interlocutory appeal, the State appeals pursuant to Supreme Court Rule 604(a). (134 Ill. 2d R. 604(a).) We affirm.

On November 16, 1991, at about 4:20 p.m., defendant stopped his vehicle on a country road in rural Champaign County because he recognized a friend approaching from the other direction. Defendant’s friend also stopped his vehicle in the road and they had a brief conversation while remaining in their vehicles. Moments after they stopped, two Department of Conservation vehicles approached with flashing lights and at least one of the conservation officers drove around the parked vehicles to block the roadway. As defendant began to pull away, he was flagged down by Department of Conservation police officer Kim Knight, and told to stop his truck on the side of the road.

Officer Knight then walked up to defendant’s truck and told him to get out so she could search his vehicle for weapons. Officer Knight told defendant to stand in front of his vehicle and they had a short discussion. Officer Knight asked defendant if he had been hunting earlier that day and informed defendant he was in a wildlife habitat. Defendant indicated he had killed a deer “earlier in the day” but that he was done hunting for the day. When the conservation officer searched defendant’s truck, she found an open can of beer between the front seats and an open bottle of brandy behind the driver’s seat. Defendant testified that the open alcohol was not visible from the officer’s position standing on the road. After the conservation officer found the open alcohol, defendant was given a citation for unlawful transportation of an open alcoholic beverage in a motor vehicle in violation of section 11—502(a) of the Illinois Vehicle Code (Vehicle Code). Ill. Rev. Stat. 1989, ch. 95½, par. 11—502(a).

On December 6, 1991, defendant pleaded not guilty and requested a jury trial. On February 3, 1992, defendant filed a motion, to suppress any and all evidence seized as a result of the stop and search of his vehicle on November 16. At the February 10, 1992, hearing on the motion to suppress, the State requested a continuance based on a February 10 letter from the Department of Conservation indicating that Officer Knight had been injured in an accident and had not yet been released by her doctor to return to work. The motion was denied because it was not in writing or supported by an affidavit as required by section 114—4(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 114—4(a)), and because the State failed to show due diligence since there was no evidence presented that Officer Knight had been subpoenaed. At the hearing defendant was the only witness to testify in regard to the incident. After closing arguments by both parties, the trial court granted defendant’s motion to suppress, finding as follows:

“It’s been proven by Mr. Innis’ testimony that he violated 1113—01 [sic] [(section 11—1301 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95½, par. 11—1301))]. From his testimony, they weren’t just there for a passing second. They were sitting there. *** And I think that although there was a reason to stop the vehicle, I can’t believe that every vehicle that is stopped out on the road for any minor traffic violation is subject to search, ordering people out of the vehicle, and search immediately.
* * *
She had learned from the defendant that he had been hunting earlier and that she was going to search for weapons, but the problem is that she couldn’t have even looked in the vehicle from what I’ve heard and seen any weapons or anything.
* * *
This is a minor traffic stop for illegal parking on the roadway at best; and it would appear from what I heard and what I heard is uncontradicted, it turned into the search subsequent to the defendant being out of the vehicle. In fact, he was ordered out of the vehicle.
* * *
I am not sure and no one has been able to give me any citation that this officer was acting in an area that she could act in, so the Motion to Suppress is allowed.”

The State argues on appeal that defendant’s motion to suppress should have been denied because Officer Knight acted properly, was within her jurisdiction when she stopped defendant, and conducted a legal search of his vehicle. We disagree, affirming the trial court’s decision to grant the motion to suppress.

The trial court found that defendant was stopped for a minor traffic violation, which turned into a search subsequent to defendant getting out. of his vehicle and stating he had been hunting that day. Because the trial court is in the best position to determine the facts and weigh the credibility of the witnesses (People v. Akis (1976), 63 Ill. 2d 296, 298, 347 N.E.2d 733, 734; see also People v. Foskey (1990), 136 Ill. 2d 66, 76, 554 N.E.2d 192, 197), the trial court’s decision on a motion to suppress will not be disturbed unless that finding is determined to be clearly erroneous. Foskey, 136 Ill. 2d at 76, 554 N.E.2d at 197.

In reviewing the decision of the trial court to grant defendant’s motion to suppress, the first step is to determine the reason Officer Knight stopped defendant. In this case the trial court was at a disadvantage in making such a determination because Officer Knight did not testify at trial. The evidence presented supported the trial court’s determination that defendant was stopped pursuant to section 11—1301(a) of the Vehicle Code, which provides:

“Outside a business or residence district, no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the roadway when it is practicable to stop, park or so leave such vehicle off the roadway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of 200 feet in each direction upon such highway.” (Ill. Rev. Stat. 1989, ch. 95½, par. 11-1301(a).)

The trial court’s determination that defendant was stopped for a minor violation of the Vehicle Code will not be disturbed as it is supported by the testimony of defendant, the only witness.

The next step is to determine whether Officer Knight had authority to stop defendant for a minor violation of the Vehicle Code. The trial court, relying on the law as inadequately presented by ill-prepared attorneys at the hearing on the motion to suppress, was unsure whether Officer Knight was acting within her jurisdiction in stopping defendant. Section 63b2.2 of the Civil Administrative Code of Illinois (Civil Code) provides for the law enforcement powers of conservation officers as follows:

“In addition to the arrest powers prescribed by law, Conservation Police Officers are conservators of the peace and as such have all powers possessed by policemen, except that they may exercise such powers anywhere in this State. Conservation Police Officers acting under the authority of this Section are considered employees of the Department and are subject to its direction, benefits and legal protection.” (Ill. Rev. Stat. 1989, ch. 127, par. 63b2.2.)

In accordance with section 63b2.2 of the Civil Code, Officer Knight had the power to stop defendant as a matter of law since any vehicle committing a traffic violation within the State of Illinois would be within her jurisdiction.

The last step is to determine whether Officer Knight had the authority to search defendant’s vehicle subsequent to a lawful stop for a minor traffic violation. The validity of all searches must be determined from the particular facts and circumstances of each case. (People v. Watts (1981), 93 Ill. App. 3d 420, 424, 417 N.E.2d 247, 250.) Generally, to justify a full warrantless search of an automobile following a mere traffic violation, the circumstances must reasonably indicate that a more serious crime has been committed. (People v. Penny (1989), 188 Ill. App. 3d 499, 502, 544 N.E.2d 1015, 1017; People v. Lawrence (1988), 174 Ill. App. 3d 818, 822, 529 N.E.2d 63, 65-66.) Mere suspicion or curiosity is not enough to justify a search. (Penny, 188 Ill. App. 3d at 502, 544 N.E.2d at 1017; see Arizona v. Hicks (1987), 480 U.S. 321, 326, 94 L. Ed. 2d 347, 354-55, 107 S. Ct. 1149, 1153.) In the alternative, there may be justification to search a vehicle stopped for a minor traffic offense, if there is a “reasonable and articulable suspicion” the defendant is armed and dangerous. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; People v. O’Neal (1990), 203 Ill. App. 3d 654, 657, 561 N.E.2d 448, 450.) Here, Officer Knight did not- testify at the hearing on the motion to suppress, and the evidence presented did not show that Officer Knight believed any crime other than the minor traffic violation or a possible violation of the Wildlife Code (Ill. Rev. Stat. 1989, ch. 61, par. 1.1 et seq.) had occurred.

Although Officer Knight did not have the authority to conduct a warrantless search of defendant’s vehicle based on a violation of the Vehicle Code, the search took place after Officer Knight questioned defendant about his hunting activities and was, therefore, pursuant to section 1.19 of the Wildlife Code. (Ill. Rev. Stat. 1989, ch. 61, par. 1.19.) The trial court indicated that while the stop was for a minor traffic violation, Officer Knight conducted the search after determining that defendant had been hunting earlier that day, and “this was more than a search for stopping or parking.” It appears the trial court determined that defendant was stopped for a violation of the Vehicle Code, but searched pursuant to the Wildlife Code. The trial court made a correct determination of the factual basis supporting Officer Knight’s stop and search of defendant’s vehicle, and applied the appropriate standard in finding the search illegal.

On cross-examination defendant acknowledged he was informed by Officer Knight he was parked in a wildlife habitat. Defendant also admitted he had been hunting earlier in the day and had killed a deer. Section 1.19 of the Wildlife Code (Ill. Rev. Stat. 1989, ch. 61, par. 1.19) allows conservation officers to examine vehicles which they have “reason to believe” contain wild birds or mammals taken or held in violation of 'the Wildlife Code. In People v. Layton (1990), 196 Ill. App. 3d 78, 552 N.E.2d 1280, cert. denied (1991), 501 U.S. 1219, 115 L. Ed. 2d 999, 111 S. Ct. 2830, this court considered a situation where a conservation officer checked “quite a few hunters” and their vehicles for possible violations of the Wildlife Code. The inspections by the conservation officer in Layton occurred immediately after the hunters returned to their vehicles from the hunting area. While the defendant in Layton was standing at the back of his truck with his dogs, the conservation officer inspected him and the back of his truck for possible violations of the Wildlife Code. The officer was “checking hunting licenses, type of weapon, type of shot used and carried, game harvested and carried in game bags or oversized clothing and, in vehicles, areas or containers which might contain illegal game.” (Layton, 196 Ill. App. 3d at 79, 552 N.E.2d at 1281.) The officer looked behind the front seat of that defendant’s crew-type cab and found an opaque plastic bag of a size which might contain illegal game. The officer discovered cannabis inside the bag. In Layton, we held section 1.19 of the Wildlife Code necessarily authorizes some brief stop and investigation by a conservation officer, and that “ ‘[rjeason to believe,’ i.e., probable cause to search, arises from indicia that the person in question is a hunter, immediately or very recently engaged in hunting.” (Layton, 196 Ill. App. 3d at 88, 552 N.E.2d at 1287.) Those indicia were not present here. The exception we recognized in Layton “is a narrow one.” (Layton, 196 Ill. App. 3d at 88, 552 N.E.2d at 1287.) This case is distinguishable from Layton and requires a different result. In Layton we found the search was necessary because it occurred immediately after the hunters returned to their vehicles from the hunting area. It was clear from the facts in Layton that the individuals inspected were hunters who had “immediately or very recently engaged in hunting.” (Layton, 196 Ill. App. 3d at 88, 552 N.E.2d at 1287.) In this case defendant testified he had been hunting in the morning, and he told Officer Knight he was done hunting although he had killed a deer earlier that day. Defendant was stopped and searched at approximately 4:30 p.m., many hours after he had finished hunting. There was no testimony indicating that defendant fit a “hunter’s profile,” i.e. wearing hunting garb, carrying a weapon, and carrying game or a game bag. (See Layton, 196 Ill. App. 3d at 88, 552 N.E.2d at 1287.) Accordingly, the search conducted by Officer Knight pursuant to the Wildlife Code did not fit into the narrow exception of permissible searches recognized in Layton.

There are different standards for vehicle searches by conservation officers pursuant to the Wildlife Code and searches pursuant to a routine traffic stop for a violation of the Vehicle Code. Warrantless searches pursuant to section 1.19 of the Wildlife Code are limited to necessary searches by conservation and game officers pursuing possible violations of the Wildlife Code. (Layton, 196 Ill. App. 3d at 88, 552 N.E.2d at 1287.) This is a narrow exception. In this case it was not clearly erroneous for the trial court to find defendant’s vehicle was unlawfully searched pursuant to the Wildlife Code.

For the reasons stated, we affirm the trial court’s finding that the search was unlawful and the trial court’s granting of defendant’s motion to suppress.

Affirmed.

GREEN, P.J., and LUND, J., concur.


author: JUSTICE McCULLOUGH

text:
    ROBERT L. PORTER, Plaintiff-Appellant, v. URBANA-CHAMPAIGN SANITARY DISTRICT, Defendant-Appellee.
    Fourth District
    No. 4—92—0434
    Opinion filed November 12, 1992.

      Robert L. Porter, of Champaign, appellant pro se.

    Edward M. Wagner and Michael R. Robinson, both of Heyl, Royster, Voelker & Allen, of Urbana, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Robert L. Porter appeals from an order of the circuit court of Champaign County dismissing with prejudice his pro se second-amended small claims complaint against defendant Urbana-Champaign Sanitary District. The question in this case really is how precise a small claims complaint must be in designating the theory on which a pro se plaintiff is proceeding. We reverse and remand for further proceedings.

The second-amended complaint alleged defendant was indebted to plaintiff in the sum of $276 for cleanup costs resulting from defendant’s negligent discharge of sewage into the lower level of plaintiff’s residence on December 29, 1990, and for trespass as a result of the same unauthorized discharge of sewage into plaintiff’s residence. On oral motion of defendant, plaintiff was required by the trial court to file a bill of particulars. In the bill of particulars, plaintiff described the overflow of sewage into the residence and the efforts of himself and his family to stop the overflow and to remove the sewage from the residence. However, plaintiff did not identify in the bill of particulars any actions or inactions on the part of defendant which caused the sewage overflow.

Defendant filed a motion to strike and dismiss the second-amended complaint pursuant to section 2—619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2—619). In this motion, the following three grounds for dismissal were raised: (1) section 3—103(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1989, ch. 85, par. 3—103(a)) expressly provided that a local public entity is not liable for the injury caused by the adoption of a plan or design of construction of, or improvement to, public property where the plan or design had been given prior approval by a legislative or other body authorized to grant such approval and the affidavit of Carl Garrison, defendant’s executive director, stated the sewer system was constructed in accordance with plans given prior approval by various governmental bodies authorized to grant such approval; (2) the second-amended complaint and bill of particulars failed to allege a “prima facie case” of negligence; and (3) the second-amended complaint and bill of particulars failed to allege a “prima facie case” of intentional trespass. In dismissing the second-amended complaint with prejudice, the trial court’s order did not set forth the reasons for the dismissal. Because the dismissal order failed to specify the grounds for the dismissal, this court must review every issue raised in the motions argued on appeal. Had the trial court recorded its reasons, judicial efficiency would have been promoted. Powell v. Village of Mt. Zion (1980), 88 Ill. App. 3d 406, 407, 410 N.E.2d 525, 527-28.

In Rowan v. Novotny (1987), 157 Ill. App. 3d 691, 693-94, 510 N.E.2d 1111, 1112-13, the distinction between section 2—615 and section 2—619 motions was discussed as follows:

“The purpose of section 2—619 is primarily that of affording a means of obtaining at the outset of a case a summary disposition of issues of law or of easily proved issues of fact. The basis of the motion must go to an entire claim or demand. (Ill. Ann. Stat., ch. 110, par. 2—615, Historical and Practice Notes (by Albert E. Jenner, Jr., Philip W. Tone and Arthur M. Martin) (Smith-Hurd 1985).) Although defects that appear on the face of the pleading attacked may, according to the letter of the section, be reached by a section 2—619 motion, the section is not designed for that purpose. (Leitch v. Hine (1946), 393 Ill. 211, 66 N.E.2d 90.) In other words, if the only ground of a motion is a defect that appears on the face of the pleading attacked the appropriate method of reaching that defect is by a motion under section 2—615.”

The distinction is important here because, in small claims cases, section 2—619 motions may be made without prior leave of court, but section 2—615 motions may not. 134 Ill. 2d R. 287(b).

Here, two of the allegations in defendant’s motion to dismiss allege, in effect, the failure to state a cause of action. While it is true that the motion refers to the bill of particulars as well as the complaint, there is some doubt that the presence of a bill of particulars can change what would ordinarily be a section 2—615 motion into a section 2—619 motion since the bill of particulars is deemed part of the complaint it particularizes (Bejda v. S GL Industries, Inc. (1979), 73 Ill. App. 3d 484, 488, 392 N.E.2d 38, 42, aff’d in part, rev’d in part on other grounds (1980), 82 Ill. 2d 322, 412 N.E.2d 464), and the proper remedy when a bill of particulars is deficient is to strike the pleading to which the bill of particulars relates. Generally dismissal of the complaint with prejudice is not appropriate in the absence of deliberate, contumacious, or unwarranted disregard of the court’s authority, none of which is present in this case. (Village of Pawnee v. Knostman (1983), 115 Ill. App. 3d 842, 849-50, 450 N.E.2d 1272, 1277-78; see also Ill. Rev. Stat. 1989, ch. 110, par. 2—607(b).) However, we need not decide the question of the propriety of the form of the motion to dismiss since plaintiff has not raised it, and the issue is waived for purposes of review. (134 Ill. 2d R. 341(e)(7).) The doctrine of waiver applies to pro se litigants as well as to those represented by attorneys. See In re A.H. (1991), 215 Ill. App. 3d 522, 529-30, 575 N.E.2d 261, 266, appeal denied (1991), 142 Ill. 2d 654, 584 N.E.2d 126; People v. Clay (1988), 167 Ill. App. 3d 628, 631, 521 N.E.2d 243, 246.

Therefore, we must determine whether the small claims complaint is sufficient and whether section 3—103 of the Act bars recovery by plaintiff as a matter of law. Ordinarily, when reviewing the granting of a motion to dismiss, all well-pleaded facts alleged in the complaint are taken as true, and the reviewing court considers whether any set of facts could be proved which would entitle plaintiff to relief. Allegations which are conclusions, unsupported by specific facts, are not deemed admitted. (Toys “R” Us, Inc. v. Adelman (1991), 215 Ill. App. 3d 561, 564, 574 N.E.2d 1328, 1330.) Of course, the pleading requirements in small claims cases are quite different. A small claims complaint must simply set forth the following:

“(1) plaintiffs name, residence address, and telephone number, (2) defendant’s name and place of residence, or place of business or regular employment, and (3) the nature and amount of the plaintiff’s claim, giving dates and other relevant information. If the claim is based upon a written instrument, a copy thereof or of so much of it as is relevant must be copied in or attached to the original and all copies of the complaint, unless the plaintiff attaches to the complaint an affidavit stating facts showing that the instrument is unavailable to him.” (134 Ill. 2d R. 282(a).)

All that is necessary in a small claims case for the complaint to be sufficient is that it clearly notify the defendant of the nature of plaintiff’s claim. (Miner v. Bray (1987), 160 Ill. App. 3d 241, 243, 513 N.E.2d 580, 581.) Particularly in small claims cases, the complaint is to be liberally construed because the small claims procedure is designed to be simple and inexpensive. Murray v. Cockburn (1984), 124 Ill. App. 3d 724, 727, 464 N.E.2d 842, 843-44.

In determining the propriety of the trial court’s order, the first issue is to determine the question of law, whether section 3—103(a) of the Act bars plaintiff’s cause of action in this case. A panel of this court, sitting as the Third District Appellate Court, has stated the following:

“Under section 3—103(a) of the Act, the City has immunity for the plan or design of the sewer grating, because the record shows the then Illinois Department of Public Works approved the design at the time of the construction project. However, under section 3—103(a), the City does not have immunity, if after the sewer grating was put in, ‘it [appeared] from its use that [the design] has created a condition that it is not reasonably safe.’ Ill. Rev. Stat. 1987, ch. 85, par. 3—103(a).” (Cole v. City of East Peoria (1990), 201 Ill. App. 3d 756, 761, 559 N.E.2d 769, 773, appeal denied (1990), 133 Ill. 2d 553, 561 N.E.2d 687.)

In this case, plaintiff is not alleging a cause of action based on the design or plan of construction of defendant’s sewer system, but on defendant’s negligence or intentional failure to properly operate the system so as to prevent the sewage overflow onto his property. Section 3—103(a) of the Act does not bar this small claims action by plaintiff.

Next, we determine whether the complaint and bill of particulars state a cause of action. Here, plaintiff alleged negligence and trespass resulting from an overflow of sewage onto his property. A request for a bill of particulars is not permitted in a small claims case without prior leave of court (134 Ill. 2d R. 287(b)). Because of the informal nature of small claims cases, granting a request for a bill of particulars is discouraged. Assuming, for the sake of argument only, that a bill of particulars was appropriate in this case, we note the object of the bill is to supply a deficiency in the complaint. (Bejda, 73 Ill. App. 3d at 488, 392 N.E.2d at 42.) The effect of the bill of particulars is to restrict plaintiff at trial to proof of the particular cause or causes of action referred to therein (Bazzell-Phillips & Associates, Inc. v. Cole Hospital, Inc. (1977), 54 Ill. App. 3d 188, 191, 369 N.E.2d 337, 340), but the bill of particulars need not state more than the party is bound to prove (Bejda, 73 Ill. App. 3d at 488, 392 N.E.2d at 42).

With regard to the allegation of negligence in count I of plaintiff’s amended complaint, for recovery based on negligence plaintiff must prove defendant breached a duty owed to plaintiff, which breach proximately caused the alleged injury. (Konicki v. Village of Hinsdale (1981), 100 Ill. App. 3d 560, 563, 427 N.E.2d 325, 327.) The doctrine of res ipsa loquitur is available in sewer malfunction cases. (Hull v. City of Griggsville (1975), 29 Ill. App. 3d 253, 256, 330 N.E.2d 293, 296.) The doctrine applies whenever an event occurs (1) which would not have occurred in the absence of negligence, (2) the event was caused by an instrumentality within the exclusive control of defendant, and (3) plaintiff has not contributed to the occurrence of the event. In Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 592, 491 N.E.2d 803, 808-09, this court stated as follows:

“Res ipsa loquitur involves a species of circumstantial evidence permitting the trier of fact to draw an inference of negligence (Guebard v. Jabaay (1983), 117 Ill. App. 3d 1, 11, 452 N.E.2d 751, 758); the doctrine permits circumstantial evidence as proof of negligence where direct evidence is primarily within the control of the defendant (Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 304-05, 312 N.E.2d 259). Once properly invoked, the doctrine operates to shift the burden of going forward with the evidence to the defendant, though any presumption of negligence may then be rebutted by the defendant. Walker v. Runner (1978), 72 Ill. 2d 495, 381 N.E.2d 689; McLaughlin v. Rush-Presbyterian St. Luke’s Medical Center (1979), 68 Ill. App. 3d 546, 386 N.E.2d 334.
*** The doctrine, however, does not affect the necessity or manner of proof of proximate cause; it is relevant only to the nature of proof from which the trier of fact may draw an inference of negligence. (Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 312 N.E.2d 259; McMillen v. Carlinville Area Hospital (1983), 114 Ill. App. 3d 732, 736, 450 N.E.2d 5, 9.) Such an inference cannot be based solely upon the fact of a rare and unusual result. (Guebard v. Jabaay (1983), 117 Ill. App. 3d 1, 13, 452 N.E.2d 751, 759.) To submit a res ipsa claim to a jury, there must be evidence or testimony to establish the rare and unusual event or condition coupled with proof of a negligent act. Spidle v. Steward (1980), 79 Ill. 2d 1, 10, 402 N.E.2d 216, 220; Cassady v. Hendrickson (1985), 138 Ill. App. 3d 925, 486 N.E.2d 1329.”

There are distinctions between Taylor and the case at bar. The likelihood of a need for expert testimony is less in this small claims case than it would be in Taylor, a medical malpractice case. In Taylor, the court noted no facts were alleged supporting a causal link between the broken leg and decedent’s death. (Taylor, 142 Ill. App. 3d at 589, 491 N.E.2d at 807.) In this case, there are sufficient allegations of fact showing a causal connection between the sewage overflow and the damage such that a court could not determine, as a matter of law, that no proximate causal connection existed. The only question here is whether there are sufficient facts alleged from which the trial court could find a duty existed in defendant not to discharge sewage onto plaintiff’s property and that, in the absence of negligence, the discharge would not have occurred.

It has long been the law of this State that a municipality has a duty to refrain from discharging sewage onto private property. (City of Jacksonville v. Lambert (1872), 62 Ill. 519, 521-22; Powell v. Village of Mt. Zion (1980), 88 Ill. App. 3d 406, 407-10, 410 N.E.2d 525, 527-30; 9 Ill. L. & Prac. Cities, Villages, and Other Municipal Corporations §559 (1954).) Therefore, the only question which remains is whether the overflow would not have occurred in the absence of negligence by defendant.

A complaint need not set out the evidence plaintiff intends to present, but only ultimate facts (County of Cook v. Illinois Wine & Spirits Co. (1981), 93 Ill. App. 3d 710, 713, 417 N.E.2d 812, 815), and this is particularly so where a small claims complaint is involved. It is clear’from the complaint and the bill of particulars that plaintiff alleged the overflow resulted from defendant’s negligence. We decline to apply the strict requirements of Taylor to this small claims complaint. Plaintiff ought to have been allowed his day in court. Whether plaintiff can prove negligence is a question not before this court.

The final point to consider is whether the trespass count was properly dismissed. In Dial v. City of O’Fallon (1980), 81 Ill. 2d 548, 556-57, 411 N.E.2d 217, 222, the Illinois Supreme Court noted that an action for trespass may be based on negligent or intentional intrusion onto the land. Unintentional, nonnegligent intrusion does not form a basis for liability even if the entry onto the land caused harm to a legally protected interest. The recovery of damages for a single injury may be sought under multiple theories, but only one recovery may be had. (Dial, 81 Ill. 2d at 558, 411 N.E.2d at 222.) Count I of plaintiff’s second-amended complaint alleges a cause of action for negligent intrusion onto plaintiff’s property, and therefore, in order to avoid duplication, count II is deemed to state a cause of action for intentional trespass.

In a trespass action for intentional intrusion, plaintiff must prove the defendant had knowledge, to a high degree of certainty, that the sewage overflow onto his property would follow from defendant’s acts or omissions. (See Dial, 81 Ill. 2d at 556, 411 N.E.2d at 221.) Plaintiff argues in his brief that on three prior occasions when the sewer overflowed defendant paid plaintiff for the damages caused. Unfortunately, plaintiff did not include these facts in the bill of particulars. These prior occurrences could possibly be construed by a trier of fact as providing to defendant the knowledge, to a high degree of certainty, that if defendant did not do something to change the situation, a sewage overflow onto plaintiff’s property would occur, and as a result, a subsequent sewage overflow was an intentional trespass. In this case, the bill of particulars does not include any other facts from which an action for intentional trespass could be derived. However, the proper remedy for a deficient bill of particulars is to strike the pleading, not dismiss the cause with prejudice. Therefore, the trial court should have stricken count II of plaintiff’s small claims complaint because the bill of particulars does not set out facts supporting an action for intentional trespass. The trial court should not have dismissed the second-amended complaint with prejudice.

Small claims court is a somewhat less formal hall of justice. It is inconsistent with the simple and inexpensive procedures outlined in the supreme court rules for small claims proceedings (134 Ill. 2d Rules 281 through 289) to allow attorneys to file numerous motions (including a request for a bill of particulars) in an attempt to discourage pro se litigants from utilizing the small claims court. In many of these cases, it is more efficient for the trial court to try the case and decide it on the merits than it is to consider motions of the parties attacking the opponent’s pleadings, especially in light of the less formal pleading requirements in small claims cases.

For the foregoing reasons, the judgment of the circuit court of Champaign County is reversed, and the cause is remanded for further proceedings not inconsistent with this disposition.

Reversed and remanded.

STEIGMANN and LUND, JJ., concur.