author: JUSTICE NICKELS

text:
    AMERICAN FAMILY INSURANCE COMPANY, as Subrogee of Ismael T. Elizondo, Plaintiff-Appellee, v. ROBERT E. SEEBER, Defendant-Appellant.
    Second District
    No. 2—90—1004
    Opinion filed June 25, 1991.

      Roland W. Burris, Attorney General, of Springfield (Robert Ruiz, Solicitor General, and Deborah L. Ahlstrand and Rosalyn B. Kaplan, Assistant Attorneys General, of Chicago, of counsel), for appellant.
    Ryan & Ryan, Ltd., of Waukegan (Kathleen M. Ryan, of counsel), for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Defendant, Robert Seeber, appeals from a judgment entered in favor of plaintiff, American Family Insurance Company, as subrogee of Ismael Elizondo, in a negligence action. After a bench trial, defendant was found to be 55% at fault and liable for the damage to Elizondo’s automobile as a result of the collision between that vehicle and the State’s snowplow driven by defendant in the course of his employment as a roadway maintainer for the State. Defendant contends that: (1) the circuit court was without subject-matter jurisdiction to adjudicate plaintiff’s claim because the State was the real party in interest, and, as such, plaintiff’s claim could only be brought in the Court of Claims under the doctrine of sovereign immunity; and, alternately, (2) defendant was immune from suit individually under the doctrine of public official’s immunity. We affirm.

Defendant testified that on the evening of December 28, 1987, he was traveling eastbound on Route 137 in Libertyville approaching the intersection of Butterfield Road, which was controlled by a traffic light. Both roads were two lanes in each direction, with westbound Route 137 having an additional westbound left-turn lane at the intersection. It had been and was snowing, and defendant was operating a six-wheel truck equipped with a snowplow in the course of his employment by the Illinois Department of Transportation. The snowplow was equipped with two yellow oscillating lights, two red flashing taillights, red marking lights on its side, and four headlights, all of which were in working order and functioning. As defendant approached the intersection, he noticed a disabled car resting against the traffic signal located on the median on the west side of the intersection and which was partially blocking the innermost westbound lane of Route 137. Defendant turned left through the intersection, to the east of the disabled car so that his vehicle was between the disabled car and approaching westbound traffic. He thereby also blocked the inner westbound lane to westbound traffic while providing a more visible barricade of that lane to approaching westbound traffic. He stopped the snowplow part way through the turn and reversed before coming to rest in this position. Defendant did not see Elizondo’s vehicle until a split second before the collision.

Elizondo was traveling westbound on Route 137 in a pickup truck. He saw the snowplow begin to enter the intersection from approximately one-half mile away and slowed from 40 to 30 miles per hour before he reached the intersection. He was was unable to avoid the snowplow as it continued its turn through the intersection because of the snow-covered road conditions. Elizondo’s vehicle struck the blade of the snowplow as his vehicle entered the intersection.

Thus, testimony was conflicting as to whether defendant was still in the process of turning or whether he had stopped at the moment of impact. Testimony was equally conflicting as to the location of the snowplow in the innermost westbound lane, the location of Elizondo’s vehicle in the outer westbound lane, and the weather conditions. However, the police report of the accident, to which the parties stipulated and which was entered into evidence, stated that defendant was turning at the time of the collision and that his attention as he turned had been on the disabled car. The diagram included as part of the police report indicated that defendant’s vehicle had been partially blocking che outer westbound lane. The police report, however, belied Elizondo’s assertion that the roads were clear and indicated that they were in fact snow and ice covered, and it was snowing at the time of the collision.

Plaintiff paid Elizondo $3,721 to repair damage to his vehicle and, as his subrogee, filed a complaint asserting both common-law negligence and statutory violations as the basis of recovery against defendant. Defendant answered the complaint and raised an affirmative defense of public official’s immunity. The cause was set for mandatory arbitration, and, on the day the arbitration proceeding was scheduled to begin, defendant moved for judgment on the pleadings asserting that public official’s immunity precluded a judgment of liability against him. Defendant also, for the first time, similarly asserted the defense of sovereign immunity.

The trial court denied defendant’s motion, and, although barring defendant’s defense of public official’s immunity as to the common-law negligence claims of its complaint, the court ordered that defendant’s defense of public official’s immunity as to the statutory violations be presented at the arbitration proceeding. After entry of an award of damages by the arbitrators in favor of plaintiff, defendant rejected the award and proceeded to trial. It is the judgment of the court at that bench trial in favor of plaintiff that defendant now appeals, asserting that: (1) under the doctrine of sovereign immunity, the circuit court was without jurisdiction to hear plaintiff's claims because the defendant was merely a nominal party, and the State of Illinois was the party vitally interested in the outcome; and (2) if the doctrine of sovereign immunity is inapplicable, the doctrine of public official’s immunity nevertheless applies to defendant’s discretionary conduct in operating the snowplow, and, thus, defendant is immune from liability arising from such operation.

Sovereign immunity is a common-law doctrine based on the concept that the king could not be made subject to suit without his permission. (Oppe v. State of Missouri (1988), 171 Ill. App. 3d 491, 495.) The 1970 Illinois Constitution abolished common-law sovereign immunity but, however, delegated the power to recreate such immunity to the legislature. (Ill. Const. 1970, art. XIII, §4.) The legislature exercised this power (Ill. Rev. Stat. 1987, ch. 127, par. 801) and provided that actions sounding in tort against the State must be brought in the Court of Claims. (Ill. Rev. Stat. 1987, ch. 37, par. 439.8(d).) Therefore, determination of the proper jurisdiction focuses on whether the action is in fact one that subjects the State to liability or seeks to control the State (Kaiser v. Emrich (1980), 84 Ill. App. 3d 775, 777), as opposed to one that merely subjects a State employee to liability for his own acts of negligence while acting within the scope of his State employment. Bartholomew v. Crockett (1985), 131 Ill. App. 3d 456, 463.

Claims based on the negligent operation of an automobile are outside the doctrine of sovereign immunity. (Bartholomew, 131 Ill. App. 3d at 462, citing Hering v. Hilton (1958), 12 Ill. 2d 559; Gocheff v. State Community College (1979), 69 Ill. App. 3d 178; Pree v. Hymbaugh (1959), 23 Ill. App. 2d 211.) Sovereign immunity provides protection from suit to a governmental employee only when the alleged acts of negligence relate to an obligation incurred solely by virtue of employment by the State. (Bartholomew, 131 Ill. App. 3d at 463, citing Gocheff, 69 Ill. App. 3d at 184.) In contrast, negligence that may arise from the operation of an automobile is based on the duties owed by each driver, regardless of employment, to other drivers. (Bartholomew, 131 Ill. App. 3d at 463, citing Gocheff, 69 Ill. App. 3d at 184.) Defendant asserts, however, that operation of a vehicle that is essential to performance of a governmental employee’s obligations of employment is distinct from the operation of an automobile that is merely incidental to such employment. Defendant, thus, urges that the general rule that governmental employees are subject to individual suit for negligent operation of their vehicles is inapplicable.

Central to the arguments of both parties are our decisions in Madden v. Kuehn (1978), 56 Ill. App. 3d 997, and Kaiser v. Emrich (1980), 84 Ill. App. 3d 775. In Madden, we held that a duty that arises independent of any obligation imposed by public office is not subject to sovereign immunity. (Madden, 56 Ill. App. 3d at 1001.) Thus, under Madden, defendant was not immune to suit in the circuit court for negligence that arose independent of his obligations as a State maintenance worker (see Madden, 56 Ill. App. 3d at 1001), and the duty to operate his vehicle in a safe manner was such an independent duty. Bartholomew, 131 Ill. App. 3d at 463; Gocheff, 69 Ill. App. 3d at 184; see also, e.g., Hering, 12 Ill. 2d 559; Currie v. Lao (1990), 198 Ill. App. 3d 625; Pree v. Hymbaugh (1959), 23 Ill. App. 2d 211.

However, Madden noted the existence of the defendant’s liability insurance in finding that the State was not the “real party in interest.” (Madden, 56 Ill. App. 3d at 1001.) Kaiser, which defendant urges us to overrule here, resolved any question left undecided by Madden's reference to insurance as a factor in deciding whether the State possessed a vital interest in the asserted claim.

In considering the certified and limited question of interpretation of the self-insurance provision of the Civil Administrative Code of Illinois (Code) presented in Kaiser, we specifically addressed the effect of insurance coverage on the subject-matter jurisdiction of the circuit court to hear negligence claims against individuals who happened to be governmental employees. (Kaiser, 84 Ill. App. 3d at 776; Ill. Rev. Stat. 1989, ch. 127, par. 63b4(k).) The Code requires the State to defend, indemnify and hold harmless an employee against claims that are filed “in any proper judicial forum” and that arise from acts or omissions in the course of his employment. (Kaiser, 84 Ill. App. 3d at 777.) We held that this clear and unambiguous language created a specific exception to the requirement that suits only nominally against a State employee be brought only in the Court of Claims. (Kaiser, 84 Ill. App. 3d at 777.) Thus, Kaiser applied the reasoning of Madden specifically to the duties owed by each driver to other drivers and, further, recognized the codification and expansion of that reasoning as contained in the self-insurance provision.

Defendant asserts that, under our decision in Kaiser, the circuit court’s jurisdiction over claims against State employees is subject to the whim of the director of central management and that the circuit court is only vested with jurisdiction when the director elects on behalf of the State to act as self-insurer. Defendant further urges that such result is inconsistent with the need for uniform application of jurisdictional requirements. However, such assertion mistakes the basic import of Kaiser.

Kaiser recognized that subject-matter jurisdiction to determine suits involving the individual negligence of State employees is always vested in the circuit court. The presence of insurance has long been held irrelevant to a determination of jurisdiction. (Watson v. St. Annes Hospital (1979), 68 Ill. App. 3d 1048, 1053-54.) Although suits against State employees covered under a self-insurance plan may involve the State’s interest or exert some control over its conduct, such interest and control are in the State’s capacity as insurer, rather than in its sovereign capacity. Only when the State is itself sued as an insurer does sovereign immunity strip the circuit court of subject-matter jurisdiction and instead place jurisdiction in the Court of Claims. (Kaiser, 84 Ill. App. 3d at 777; Ill. Rev. Stat. 1989, ch. 127, par. 63b4(k).) Kaiser merely explained the clear and unambiguous legislative pronouncement that the mere presence of self-insurance and its possible resultant impact on the nonsovereign interests of the State does not strip such jurisdiction from the circuit court. Thus, the inconsistency urged by defendant as a basis to overrule Kaiser is based on a contorted and unsupported reading of that precedent, which we reject.

Defendant further urges us to follow the Appellate Court for the Third (third district) and Fourth (fourth district) Districts, which have precluded suit of a State employee based on negligent operation of a vehicle that was integral to that employee’s employment obligations. However, in the fourth district’s decision in Townsend v. Gaydosh (1990), 197 Ill. App. 3d 339, the defendant’s alleged negligence was based on noncompliance with statutory requirements, which the court dismissed as inapplicable to a person performing work on the roadway as provided in the same statute. (Townsend, 197 Ill. App. 3d at 342; Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 205(f).) The court further dismissed plaintiff’s allegation of common-law negligence in reliance on Mower v. Williams (1949), 402 Ill. 486, holding that “[highway maintenance workers *** [are] agents of the State, whose acts require official discretion and judgment.” (Townsend, 197 Ill. App. 3d at 342, citing Mower, 402 Ill. at 493.) However, Mower was effectively overruled in Hering (12 Ill. 2d 559). See Madden, 56 Ill. App. 3d at 1001 (recognizing invalidity of Mower rationale and adopting “actions and duties unique to a particular public office” as standard for sovereign immunity); Free, 23 Ill. App. 2d at 217-18 (Hering directly passed on erroneous holding of Mower).

Nor do the cases from the third district offer defendant the support that he seeks. In Prince v. McElroy (1990), 207 Ill. App. 3d 190, the third district merely adopted the flawed reasoning of Townsend. However, in its earlier decision in Currie v. Lao (1990), 198 Ill. App. 3d 625, appeal allowed (1990), 133 Ill. 2d 553, the third district recognized that the duty of care of a driver arises independently of the obligations of public office and is, thus, not subject to sovereign immunity. (Currie, 198 Ill. App. 3d at 631.) Thus, these precedents offer no basis on which to overrule our decision in Kaiser, as urged by defendant.

Having determined that defendant did not enjoy sovereign immunity and was amenable to suit in the circuit court, we turn to defendant’s second contention that he enjoyed public official’s immunity for his conduct in operating a snowplow. Public official’s immunity provides that State officials and employees are fully protected from liability for actions taken in the exercise of their official discretion. (People v. Patrick J. Gorman Consultants, Inc. (1982), 111 Ill. App. 3d 729.) However, ministerial, rather than discretionary, acts are not protected by the doctrine of public official’s immunity. Mora v. State (1977), 68 Ill. 2d 223, 233.

Cases holding that State employees’ conduct was within their official discretion and subject to public official’s immunity have generally involved actions and duties unique to a particular public office. (Madden, 56 Ill. App. 3d at 1001.) The actual basis for distinction between discretionary and ministerial conduct is the underlying public policy of a public official’s need for freedom to exercise his judgment based on his “best perception of public needs.” (Madden, 56 Ill. App. 3d at 1002, citing Kelly v. Ogilvie (1965), 64 Ill. App. 2d 144, 147, affd (1966), 35 Ill. 2d 297.) Mere exercise of judgment and skill do not confer “discretionary” status upon conduct. (Madden, 56 Ill. App. 3d at 1002.) Rather, an act must be “essentially ‘governmental in character.’ ” Madden, 56 Ill. App. 3d at 1002, citing Mora, 68 Ill. 2d at 233; Lusietto v. Kingan (1969), 107 Ill. App. 2d 239, 244.

Defendant asserts that the operation of his vehicle was an act of official discretion and, therefore, he is immune from suit based on negligence arising from such operation as a public official. However, each of the cases cited by defendant in support of this assertion is distinguishable.

Initially, although a corrupt or malicious motive will operate to deny immunity to a public official acting in a discretionary manner (Larson v. Darnell (1983), 113 Ill. App. 3d 975, 977), the question before us is whether the operation of a snowplow is in the first instance discretionary conduct. Thus, the precedents argued by defendant that required a finding of malice or corrupt motives, or an intentional misuse of power, are not relevant to our inquiry. (See Larson, 113 Ill. App. 3d at 977.) Rather, our inquiry is solely on the nature of defendant’s conduct in operating the snowplow.

Defendant again relies on Mower to argue that any negligence in the operation of his snowplow was subject to immunity. However, Mower concerned sovereign immunity. (Mower, 402 Ill. at 488.) Sovereign immunity is founded on concepts entirely distinct from those which underlie public official’s immunity and protects different interests. (Lusietto, 107 Ill. App. 2d at 244.) Moreover, despite defendant’s urging to the contrary and as we recognized in Madden, Mower’s conclusion that the operation of a vehicle was a governmental function was effectively, if not explicitly, overruled in Hering. Madden, 56 Ill. App. 3d at 1001; see also Pree, 23 Ill. App. 2d at 217-18.

Nor do Mora and Lusietto offer any reasoning that could warrant reversal of Kaiser as urged by defendant. In both, the alleged negligent conduct concerned not the operation of a vehicle, but the manner in which the roadway was maintained. The road commissioner’s failure to direct the road maintenance staff to fill a pothole, which was struck by the plaintiff’s auto and resulted in his injuries, was the subject of suit in Lusietto. Lusietto, 107 Ill. App. 2d at 242.

So, too, in Mora, the alleged negligent conduct was the failure of the head of the traffic district to direct the head of the traffic division to conduct a study of the roadways to determine the need for a no-passing zone on a curved, hilly stretch of road where the plaintiff was injured in attempting to pass another vehicle. (Mora, 68 Ill. 2d at 232.) Thus, neither case addressed public official’s immunity for the operation of a vehicle, with the resultant independent duty of the driver to operate his vehicle in a safe manner. Rather, both Mora and Lusietto concerned the duty owed by the plaintiff to the public generally and, therefore, concerned essentially discretionary governmental functions.

The judgment of the trial court finding that the circuit court had subject-matter jurisdiction over plaintiff’s negligence claim arising from defendant’s operation of his vehicle in the course of his employment as a State employee and that defendant enjoyed no public official’s immunity for negligence arising from such independent duty is affirmed.

Affirmed.

BOWMAN and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD JUSTICE NICKELS,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. J.W. AUSTIN, Defendant-Appellant.
    Second District
    No. 2—89—0616
    Opinion filed June 27, 1991.
    Rehearing denied July 31, 1991.

      NICKELS, J., specially concurring.
    G. Joseph Weller, Paul J. Glaser, and Thomas A. Lilien, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, J.W. Austin, appeals his convictions of and sentences for two counts of attempted first degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4(a), 9 — l(aXl)). Defendant raises two issues on appeal: whether he was denied the effective assistance of counsel where his attorney failed to seek jury instructions on attempted second degree murder; and whether the concurrent 10-year sentences are excessive.

At the jury trial, Lunetta “Lucy” Powell testified that she lived in the same apartment building as defendant. Lucy had known defendant for over a year prior to the incident. Defendant helped Lucy get a job at the cafeteria at Rockford College in November 1988. Defendant was employed there in food service and in maintenance. In December 1988, or January 1989, defendant loaned Lucy $50 so that she could pay her electric bill. In January, defendant told her to “forget about it” because Lucy had “bought him a half a gallon of booze and *** gave him five or ten dollars or something[,] and he says [sic] we’ll call it even.”

Lucy testified further that on February 2, 1989, she was under the influence of alcohol when she reported for work. At approximately 11 a.m., defendant noticed Lucy was intoxicated and told her that she should not have been working that day and that she ought to go home. Lucy then tried to call someone to get a ride home. Lucy was not certain, but she thought she took the bus home around noon. Lucy did not know what time it was when she got home, but she thought it was before 2 p.m. Delbert Hodges, Lucy’s boyfriend, was already at her apartment, which did not have a telephone. The two began drinking beer when she got home. According to Lucy, they resumed drinking at 5 or 6 p.m. and continued to drink until defendant came over.

Lucy believed that it was between 8:30 and 9 that night that defendant arrived at the apartment. Lucy and Hodges were watching television. Lucy admitted defendant into the apartment. According to Lucy, defendant had been drinking, and his speech was slurred and he was staggering. Defendant sat in a chair by the end of the kitchen counter; Hodges was sitting on the couch, and Lucy sat on a table next to the couch. After defendant sat down, he took a gun from behind his back and put it between his legs. Lucy asked what defendant was doing with the gun, but defendant did not answer.

According to Lucy, defendant and she then discussed Lucy’s “messing up at work.” Hodges did not take part in the conversation. A short while later, Lucy’s brother Marvin came over. He sat on the couch next to Hodges. When Marvin entered the apartment, defendant put the gun in the back of his pants. Marvin stayed for only a few minutes.

Lucy testified farther that in the meantime defendant continued to discuss Lucy’s work performance with her. Defendant was upset about it, and Lucy told him that she should not have come to work after drinking and that she would quit if that made defendant “look bad.” Defendant then accused Lucy of having an affair in the store room with a co-worker. Lucy denied that and told defendant that she and the co-worker had gone down to the basement to get food from storage. Defendant then got ready to leave and mentioned the $50 which Lucy owed him. Lucy further testified: .

“He says, ‘By the way, I want my $50 back.’ And I said, T thought we were even.’ And he says, ‘No.’ And I says, ‘Oh, you change your mind now?’ And he says, ‘Yeah, you’re god damn right.’ And then he said, ‘Well,’ he says, ‘Well, I want it tomorrow because I didn’t pick up my check Thursday.’ And I told him I would pay him some of it tomorrow, you know, and he says he want [sic] all of it. And I say, ‘Well, I don’t really owe you the 50 anyway, I only owe you a partial of the 50.’ And he says he wanted [it] tomorrow and he don’t care if he gets it from me or Delbert. And Delbert — then Delbert says — says, ‘Man, how much does she owe you?’ And he says, ‘$50.’ Delbert said, ‘Don’t worry, I’ll go to the bank and get it for you tomorrow.’ ”

Defendant then walked towards the door, stopped and said, “ ‘Well, I’ll tell you guys what, I’m gonna go to jail tonight because somebody’s gonna die.’ ” Defendant pulled the gun out and fired it at Lucy. Lucy tried to move out of the way of the bullet, but it struck her in the back of her upper left thigh. Hodges was still sitting on the couch, and defendant pointed the gun at him and fired. Defendant fired again, yet Hodges was still sitting there, so Lucy told him to get out of the way, and she “hit the floor and *** crawled in the pantry.” Lucy heard shots while she was in the pantry.

According to Lucy, she came out of the pantry and saw defendant and Hodges wrestling. Defendant saw Lucy and pointed the gun at her again. Lucy ducked back into the pantry and heard more shots. She felt like she had to do something, so she came back out. Lucy then saw that defendant was halfway out the door, which Hodges was trying to close. Lucy and Hodges pushed defendant out and closed the door. Lucy helped Hodges to the couch then went to the window and started yelling for help. Subsequently, Lucy noticed that there was a hole in one of her kitchen cabinets. Lucy denied that she or Hodges threatened or approached defendant before he started shooting.

Delbert Hodges testified that he had a rod in one of his legs which prevented him from running or bending his leg. Hodges’ testimony was substantially similar to Lucy’s regarding the events the night of the shooting. Marvin left the apartment after drinking one beer because Hodges sent him to the liquor store to get some more beer. According to Hodges, defendant stayed about an hour. Defendant said he was going to “kill somebody tonight.” Defendant was standing by the counter when Hodges heard Lucy say defendant had a gun. Hodges heard a shot, and then defendant shot Hodges in the groin. Hodges was still sitting down. Hodges got up, not fully aware that he had been shot, and went towards defendant. Defendant kept shooting at Hodges. Hodges then pushed defendant out the door. After he was taken to the hospital, Hodges learned that he had been shot twice in the arm, and once in the wrist, groin area and chest. Hodges stated that he did not have a weapon, nor did he yell at or threaten defendant.

Hodges admitted that he had a “fifth [of wine] and a couple of beers” before noon on February 2, 1989. Hodges thought Lucy came home from work around 10 a.m. Hodges fell asleep for a while, then resumed drinking around 2 p.m. Hodges estimated that between himself and Lucy, they consumed two fifths of wine and a 12-pack of beer by 7 p.m. Hodges thought it was 6 p.m. when defendant came to the apartment and that defendant stayed for nearly two hours. Hodges believed defendant was drunk that night because he was “hollering at Lucy.” According to Hodges, he was not drunk that night, but he “was feeling pretty good.”

Reverend George Poole testified that he was the president of the resident counsel of the building in which defendant and Lucy lived. Shortly before 9 p.m., Reverend Poole was in his office on the main floor of the building when defendant came into the office. Defendant had blood on his jacket, so Poole asked if he had been hunting. Defendant told Poole:

“ ‘No, Reverend, I want to surrender myself to you. I want to turn myself in. I just shot two people. *** They’re up on the eighth floor.’ ”

Defendant then laid a gun on the desk and said that “he just didn’t like nobody to misuse him.” Poole was surprised because he had never known defendant to be violent. Poole immediately called the police. He then took the gun and locked it in a desk drawer. While they were waiting for the police to arrive, defendant gave Poole $310 to give to defendant’s girlfriend. According to Poole, there was an odor of alcohol on defendant’s breath.

Mark West of the Rockford police department testified that he went to Reverend Poole’s office following the shooting. Poole gave him the gun. Defendant told West, “ T did it. She owed me fifty bucks. Nobody does me wrong.’ ”

Arlene Powell, Lucy’s mother, testified that late in the morning on the day of the shooting she received a call from Lucy. Arlene went to pick up Lucy at work, but she was not there. Arlene spoke with defendant, who told her that Lucy had been drinking, and she needed to go home. Defendant asked for Arlene’s telephone number and said he would call her. Defendant also said he would be getting off work at 5 p.m.

Arlene further testified that sometime before 5 o’clock that afternoon, defendant called Arlene. He told her “that he had got off early and he was in Loves Park drinking good whiskey,” and he asked if Arlene had found Lucy. Arlene said she had not, and defendant told her he would call back. Defendant also told Arlene that he was mad and he had a bad day. Arlene did not know what time it was when defendant called back. According to Arlene, defendant sounded like he was drunk. He asked if Arlene had found Lucy. When she said no, defendant asked if she checked at Lucy’s home and at Deborah’s house. Defendant said “he was going to get his gun and go over to Deborah’s house and kill up some people.” Arlene told defendant she did not want to talk to him anymore that night and hung up.

Defendant testified that he was 56 years old, and he had worked at Rockford College for the past four years. Defendant had gotten the gun used in the shooting after he had been robbed and beaten. Defendant had a permit for the gun. At 9:30 a.m. the day of the shooting, one of the cafeteria workers came to defendant and told him that Lucy was drunk and that defendant had to get her out of the cafeteria. Defendant looked for Lucy for about five minutes, and he found her at the telephone. Lucy was crying, and she told defendant that she called her mother. Defendant told Lucy that she had to go home. According to defendant, Lucy had reported for work drunk three times before that, and no one but defendant could get her to leave.

Defendant further testified that at 1 p.m., Lucy’s mother came to the cafeteria. Defendant talked with her for a while and asked for her phone number because he “wanted to call her and tell her what the boss said. He said he didn’t want [Lucy] out there drunk no more. If she couldn’t come to work straight, he couldn’t use her.”

Defendant then testified that he left work early to help one of the cooks deliver instruments and amplifiers in Loves Park. At about 3 o’clock in the afternoon, defendant drank half of a half-pint of brandy. Defendant returned home around 5 o’clock. Defendant called Arlene, but she did not know where Lucy was. At approximately 8 p.m., defendant called Arlene again and asked her to tell Lucy that her supervisor said that Lucy was fired. Defendant denied that he said anything regarding people dying. Defendant intended to go to Lucy’s apartment first, then to a neighbor’s apartment to return $10 defendant borrowed, and then to his mother’s house. Defendant had his gun with him because his mother lived in a bad neighborhood where defendant had been robbed.

Defendant further testified that he arrived at Lucy’s apartment sometime after 8 p.m. Defendant advised Lucy that their supervisor wanted defendant to tell Lucy not to come to work anymore. Defendant also asked Lucy to give him $50 the following day after she got paid because she had promised to repay him. Defendant explained that he did not ask for the money before that because Lucy’s “first paycheck was small ***. *** [T]he next one she got 200 and some dollars and she went off and bought it all up in drugs ***.” Hodges then asked Lucy if she owed defendant $50, to which she responded, “[n]ot really.” Defendant then testified:

“[W]hen she told him that the reason she didn’t think she owed me $50 [was] that I had been trying to get her to go to bed with me. And that time, Mr. Hodges jumped up. He said, ‘what?’ And he jumped — he lunged up and come after me and he had got about halfway between the couch and me. And knowed [sic] that he was coming to do something to me because he was — you know, he was running.
So *** when I started shooting at him to turn him around, I tried to hit him in the arm, I couldn’t tell I had hit him because he was still coming.
* * *
*** I know they were going to do something. *** [H]e jumped up and come after me like that with that tone of voice and everything. And I had been jumped on before, and I don’t like taking chances, I don’t like to be hurt.”

According to the defendant, when Hodges grabbed him, defendant began backing up towards the door. Hodges “ran in on” defendant. They scuffled for a minute, and then defendant shoved Hodges and got out the door. According to defendant, Lucy intended to join in the scuffle, and that is when defendant shot her. Defendant stated that he did not intend to shoot Lucy, but she got hit because defendant “was just shooting.” Defendant denied that he intended to kill Lucy or Hodges, and he “had nothing against the people.”

Defendant further testified that after leaving the apartment, he went down to Reverend Poole’s office. Defendant gave Poole the gun and told him defendant had shot a person. Defendant also told Poole to call the police. Although defendant did not see either Hodges or Lucy with a weapon, defendant believed “they had something.” Defendant knew he shot at Hodges three times.

Larry Little, defendant’s supervisor, testified that defendant “was an exceptional employee.” On the morning of the shooting, Lucy arrived at work “somewhat intoxicated.” Lucy was quite loud, and Little tried to get her to leave without creating a disturbance. Little had defendant try to talk Lucy into leaving. According to Little, Lucy left the cafeteria around 10 a.m. Defendant worked until 2:30 or 3 p.m. Defendant’s reputation with the students around the campus was “excellent.”

Charles Cornele and Linda Cornele also testified that defendant’s reputation in the community was excellent and that defendant was “very upstanding.”

Shirley Nabors testified that defendant was “very gentle and kind to everyone.” Nabors was at defendant’s apartment the afternoon before the shooting. Defendant came home around 5 p.m. and was not intoxicated. Defendant did not appear in a bad mood. Neither Nabors nor defendant had anything to drink that evening. Shortly before 9 p.m., defendant said he was going to repay the neighbor, and he would come right back before going to visit his mother. According to Nabors, defendant and Lucy were “real good friends.” Occasionally, defendant invited Lucy to dinner at Nabors’ apartment.

Detective Hanson testified in rebuttal regarding the statement defendant gave after the shooting. According to Hanson, defendant said that when Hodges came towards him, defendant pulled his gun out and shot Hodges three times. Defendant thought he shot Hodges once in the chest, once in the stomach and once in the side. After Hodges was shot, Lucy started running towards the pantry, and defendant shot her once before she made it to the pantry. Defendant “ ‘shot her because she was lying about [defendant] going to bed with her.’ ”

The jury returned verdicts of guilty of attempted murder of both Delbert Hodges and Lucy Powell. Defendant filed a motion for a new trial alleging, among other things, that the State did not prove that defendant intended to kill the victims. The motion was denied, and the cause proceeded to sentencing.

Reverend Poole testified that defendant helped some of the handicapped residents of the apartment complex and that he was not aggressive or argumentative. In addition, Poole stated that defendant was a deacon in his church. Finally, Poole noted that the residents of defendant’s building held a meeting to express support for defendant because he had contributed to the welfare of the residents of the complex.

Charles Cornele testified that defendant was law abiding and that he was always trying to get other people out of trouble. He helped young people get jobs at the cafeteria, which “straightened them out.” Shirley Nabors also testified that defendant helped others. Defendant also called several other witnesses who also testified to defendant’s law-abiding nature and his record of hard work. Defendant expressed remorse for the shooting and stated that he never intended to kill anyone or do them any harm.

The court recognized that defendant had been a good person but that “something went wrong that night,” that “something snapped and [defendant] helped it snap by drinking and carrying a gun.” The court noted that the minimum sentence would be appropriate considering defendant’s lack of criminal history; however, since both victims suffered permanent injury and there were two convictions, the minimum sentence should not be imposed. The court, therefore, imposed concurrent sentences of 10 years’ imprisonment.

On appeal, defendant first contends that he was denied the effective assistance of counsel because his attorney failed to seek jury instructions on attempted second degree murder. In order to resolve this issue, we must first determine whether such an offense as attempted second degree murder exists. This necessitates a comparison between the voluntary manslaughter statute which was repealed in 1987 (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2) and the second degree murder statute which was enacted in 1987 (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2).

The voluntary manslaughter statute provided in pertinent part as follows:

“A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing *** but his belief is unreasonable.” (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2(b).)

The second degree murder statute provides in pertinent part as follows:

“A person commits the offense of second degree murder when he commits the offense of first degree murder as defined in paragraphs (1) or (2) of subsection (a) of Section 9 — 1 of this Code
[(a) A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:
(1) He either intends to HU or do great bodily harm to that individual or another or knows that such acts will cause death to that individual or another or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — l(aXl), (aX2))] and either of the following mitigating factors are present:
***
(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing *** but his belief is unreasonable.” Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(aX2).

By way of historical background, our supreme court held that there was no such offense as attempted voluntary manslaughter when the defendant is acting under an unreasonable belief that self-defense was necessary. (People v. Reagan (1983), 99 Ill. 2d 238, 240.) However, even the Reagan court acknowledged that there could be such an offense but for the fact that our attempt statute requires specific intent and voluntary manslaughter is not a specific intent crime. (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(a); Reagan, 99 Ill. 2d at 241.) The real dilemma, as outlined in Reagan, is that the specific intent required was not just the intent to kill but to kill without legal justification. (99 Ill. 2d at 240.) Since one cannot intend an unreasonable result (People v. Viser (1975), 62 Ill. 2d 568, 581), no such offense as attempted voluntary manslaughter based upon an unreasonable belief is possible.

The defendant relies on People v. Moore (1990), 204 Ill. App. 3d 694, for the proposition that Illinois law now recognizes the offense of attempted second degree murder. In Moore, the defendant, who was convicted of attempted second degree murder, argued on appeal that there was no such offense because one cannot specifically intend a sudden and intense passion. The Appellate Court, Third District, recognized that prior to the change in the murder statute, effective July 1, 1987, there had been no such offense as attempted voluntary manslaughter, which was the killing of a person without legal justification while the defendant was acting under a sudden and intense passion resulting from serious provocation. (See Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2.) The Moore court explained, however, that under the present law, to find a defendant guilty of second degree murder, the trier of fact must first find that the State has proved all the elements of first degree murder and then must consider whether the defendant acted under a sudden and intense passion resulting from serious provocation. (Moore, 204 Ill. App. 3d at 698; Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2(aXl).) The court reasoned that since the intent element is unrelated to the mitigating factor of provocation, a defendant could be convicted of attempted second degree murder. Moore, 204 Ill. App. 3d at 698.

The special concurrence in this case argues that the flaw in the argument advanced in Moore is that the voluntary manslaughter statute also required the State to first prove all of the elements of murder. (People v. Shumpert (1989), 126 Ill. 2d 344, 351.) The special concurrence takes the position that the only substantive change the legislature made in repealing the voluntary manslaughter statute and enacting the second degree murder statute was to realign the burden of proof as to mitigation. This ignores the fact that the statute was in fact completely rewritten as well as renamed.

What the Moore court did was to recognize that under the new statute the intent element was dealt with separately from the question of provocation thus eliminating the problem of the “unintended result.” While Moore dealt with the “sudden and intense passion” form of mitigation and expressly stated that the question of unreasonable self-defense was not being addressed, we believe that the rationale for its conclusion that such an offense exists applies in the case at bar as well. To illustrate, in order for the defendant in this case to be found guilty of attempted second degree murder, the jury must first find that defendant intended to kill without lawful justification; in other words, the self-defense argument raised by the defendant must be rejected in order for the attempt to kill to be without lawful justification. Then the question of mitigation is addressed. Although the jury rejected the self-defense argument, it could still determine that defendant actually thought he needed to act in self-defense but that he was mistaken. Thus, although both voluntary manslaughter and second degree murder require that the elements of murder be proved first, the key is, as the Moore court observed, that the second degree murder statute requires a two-step process, rather than considering the defendant’s intent along with the applicable statutory mitigation, as was the case with the voluntary manslaughter statute. Therefore, we conclude that the offense of attempted second degree murder based upon an unreasonable belief in the need for self-defense does exist.

While we would follow Moore and find that defendant could be convicted of attempted second degree murder, we agree with the State that defendant was not prejudiced by counsel’s failure to seek an instruction on this offense. To prevail on a claim asserting the ineffective assistance of counsel, a defendant must establish that counsel’s conduct was professionally deficient and, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 688, 695-96, 80 L. Ed. 2d 674, 698-99, 104 S. Ct. 2052, 2068-69; People v. Albanese (1984), 104 Ill. 2d 504, 526.) Competency of counsel is presumed (People v. Stewart (1984), 101 Ill. 2d 470, 492), and alleged incompetence arising from a matter of trial tactics or strategy will not, by itself, support a claim of the ineffective assistance of counsel (People v. Hillenbrand (1988), 121 Ill. 2d 537, 548).

For the jury to have convicted defendant of attempted second degree murder, it would have been required to find that defendant’s actions were motivated by either a sudden and intense passion resulting from serious provocation or an actual, but unreasonable, belief that the circumstances required the use of deadly force as a means of self-defense. (Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 2(aXl), (aX2).) The evidence showed that Hodges could not jump or run because he had a rod in his leg, Lucy was shot in the back of the leg, and the angle of the bullet lodged in the kitchen cabinet established that the gun was aimed downwards when that shot was fired. Based on this evidence and defendant’s statements to Reverend Poole and Officer West, that nobody misuses defendant or “does him wrong,” the jury could not have found that defendant mistakenly believed that he had to use deadly force because Hodges and Lucy were charging at him. Had the jury believed defendant’s testimony in that regard, it probably would have convicted him of aggravated battery, not attempted first degree murder. In addition, misuse of a person or lying by the victim is not conduct sufficient to excite an intense passion in a reasonable person. (See People v. Chevalier (1989), 131 Ill. 2d 66, 71-72.) We therefore conclude that, even had the attempted second degree murder instruction been given, there is not a reasonable probability that defendant would have been convicted of attempted second degree murder rather than attempted first degree murder. Since defendant was not prejudiced by the alleged error, his ineffective assistance of counsel claim must fail (see People v. Stewart (1990), 141 Ill. 2d 107, 118-19), and his conviction will not be reversed.

Defendant next contends that the trial court abused its discretion when it sentenced defendant to concurrent terms of 10 years and when it considered what might have happened if the victims had died.

Supreme Court Rule 615(bX4) grants the appellate court the discretionary power to reduce an excessive sentence. (134 Ill. 2d R. 615(bX4).) However, we will not use this power unless the trial court abused its discretion in sentencing defendant. (People v. Andrews (1989), 132 Ill. 2d 451, 464.) Where a sentence is within the statutory limits, we may not reduce it merely because we might have balanced the sentencing factors differently and imposed a different sentence. People v. Streit (1991), 142 Ill. 2d 13, 19.

Attempted first degree murder is a Class X felony (Ill. Rev. Stat. 1989, ch. 38, par. 8 — 4(cXl)), which carries a mandatory term of imprisonment of between 6 and 30 years (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 5—3(cX2)(B), 1005 — 8—l(aX3)). The statutory factors in mitigation which applied here are that defendant had no history of prior criminal activity, and his character indicates that he is unlikely to commit another crime. (See Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 5—3.l(aX7), (a)(9).) The aggravating factor found by the trial court was that defendant’s conduct caused serious harm. See Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(aXl).

Although the court discussed what might have happened had the victims died and that defendant might have been eligible for consecutive sentences since two people were shot, from our reading of the record we conclude that these comments did not reflect the trial court’s basis for the sentences. The trial court considered defendant’s contributions to the community and his lack of criminal history. The trial court decided to sentence defendant to a term only four years longer than the minimum because defendant shot two people, one of them three times, and caused permanent injury to both of them. As noted above, this is a proper factor to consider in aggravation. In light of the circumstances, we do not believe that the sentence was the result of an abuse of discretion.

The judgment of the circuit court is affirmed.

Affirmed.

BOWMAN, J., concurs.

JUSTICE NICKELS,

specially concurring:

I would affirm the trial court; however, I do not agree with the underlying analysis of the majority as to defendant’s alleged ineffective assistance of counsel. The majority relies on the decision of the Appellate Court for the Third District in People v. Moore (1990), 204 Ill. App. 3d 694, which recognized the offense of attempted second degree murder, and proceeds to review defendant’s attorney’s failure to request such a jury instruction to determine if that omission affected the outcome of the proceeding. (See People v. Albanese (1984), 104 Ill. 2d 504, 525-26.) However, such review is unnecessary because the Illinois Supreme Court has expressly rejected the existence of an offense of attempt based on an underlying offense of voluntary manslaughter, which is both the predecessor of and, for these purposes, indistinguishable from second degree murder. People v. Reagan (1983), 99 Ill. 2d 238, 240-41.

In Reagan, the supreme court rejected the surface appeal of the argument accepted in Moore and by the majority here, that conduct susceptible to charges of second degree murder if the victim dies can form the basis of attempted second degree murder if the victim survives. (Reagan, 99 Ill. 2d at 241.) Just as with voluntary manslaughter, to prove attempted second degree murder, the State must still prove that the defendant had the specific intent to “kill[ ] an individual without lawful justification.” (Ill. Rev. Stat. 1985, ch. 38, par. 9— 2; Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4, 9 — 1, 9 — 2; Reagan, 99 Ill. 2d at 240-41.) However, a defendant guilty of second degree murder either believes himself lawfully justified and cannot, therefore, intend to kill without lawful justification or is acting under strong provocation engendering a sudden and intense passion, which, too, cannot be intended. (See Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 2(aXl), (aX2).) Thus, the killing without lawful justification that results is unintended, and “[t]here is no such criminal offense as an attempt to achieve an unintended result.” People v. Viser (1975), 62 Ill. 2d 568, 581, cited bj Reagan, 99 Ill. 2d at 240.

Moore is the only authority that has recognized the offense of attempted second degree murder; however, it is in direct conflict with Reagan. (Compare Reagan, 99 Ill. 2d at 240-41, with Moore, 204 Ill. App. 3d at 698.) The legislature in enacting the 1987 second degree murder statute renamed voluntary manslaughter and, more importantly, substantively realigned the burden of proof so that a defendant must now prove either provocation or unreasonable belief by a preponderance of the evidence, rather than the State disprove either beyond a reasonable doubt. (People v. Shumpert (1989), 126 Ill. 2d 344, 351-52.) In so doing, the second degree murder statute defines the offense in terms of first degree murder and then considers the mitigating factors of unreasonable belief or provocation. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a).) Based solely on that change, Moore found that the second degree murder statute transformed voluntary manslaughter into a specific intent crime because the State must first prove a defendant guilty of the specific intent crime of first degree murder. (Moore, 204 Ill. App. 3d at 698.) However, voluntary manslaughter also required the State to first prove each of the elements of murder. (Shumpert, 126 Ill. 2d at 351.) Thus, the legislature neither changed the essential nonspecific nature of the offense of second degree murder nor diminished the applicability of Reagan and Viser.

The majority’s analysis of the effect of defendant’s attorney’s failure to request a jury instruction on “attempted second degree murder” is unnecessary, and I do not partake in it. I concur in the balance of the majority opinion regarding the other issue raised concerning defendant’s sentence.


author: JUSTICE GEIGER

text:
    SANDY BIEN, Plaintiff-Appellant, v. FOX MEADOW FARMS LTD. et al., Defendants-Appellees.
    Second District
    No. 2—90—0844
    Opinion filed June 28, 1991.
    Rehearing denied August 1, 1991.

      Carr & O’Rourke Associates, of Chicago (Glenn J. Jazwiec, of counsel), for appellant.
    Aries, Hoyt & Taden, of Chicago (Lisa Lantero, of counsel), for appellees.
   JUSTICE GEIGER

delivered the opinion of the court:

The plaintiff, Sandy Bien, appeals from an order granting the defendants, Fox Meadow Farms Ltd. (Fox Meadow), Elizabeth A. Yackley, and Patty Johnson, summary judgment. The trial court found that the plaintiff released her right to recover in negligence against them. The plaintiff’s contested issues can be summarized as whether the release that she signed relieves the defendants of liability. We affirm.

The facts necessary to this appeal are as follows. The plaintiff had been taking horseback riding lessons weekly at Fox Meadow from August 2, 1986, until the date of her injury. On August 2, 1986, the plaintiff was told to sign a document “for insurance purposes.” She did not remember reading the document before signing it, but thought that she needed to sign it so that Fox Meadow could “add her to their insurance.” The document, entitled “RELEASE,” contained the following language:

“The undersigned being of lawful age *** desires to enter upon the premises of FOX MEADOW FARM LIMITED, *** and/or to use horses and the facilities either owned or controlled by the owners of said FOX MEADOW FARM LIMITED, and being duly aware of the risk of injury and hazards inherent upon entering upon said premises and/or the riding of horses ***, hereby elects voluntarily to enter upon said premises and to participate in said hazardous activities.
Therefore, each of the undersigned for and in consideration of their permission to enter upon said premises, ride said horses and/or participate in said equestrian activities, do hereby voluntarily assume all risks of loss, damage, or personal injury, including death, that may be sustained by any or each of the undersigned which may hereinafter occur on account of, or in any way growing out of *** said equestrian activities.
The undersigned further expressly understands and agrees to indemnify and hold harmless FOX MEADOW FARM LIMITED, Elizabeth A. Yackley, *** their employees and agents, against any and all further claims or damages, costs or expenses incurred by FOX MEADOW MEADOW FARM LIMITED, their employees and agents, as a result of any accident, injury or property loss which may incurr [sic] while the undersigned is upon said premises or is engaged in equestrian activities and which may result from the negligence of the undersigned, FOX MEADOW FARM LIMITED, Elizabeth A. Yackley, *** and their employees, agents, third parties or any combination thereof.
* * *
CAUTION: READ BEFORE SIGNING.”

There was a lesson schedule on the back of the document.

The plaintiff signed the document, and defendant Yackley signed above a line designated as “Witness.” The plaintiff then paid a $15 fee for the day’s activities. She never signed another document during the time that she took lessons, but continued to pay $15 each time she entered Fox Meadow’s property.

On February 28, 1988, the plaintiff had a lesson. Defendant Johnson, an independent contractor for Fox Meadow and the plaintiff’s instructor, directed her to ride a horse named Scout. Although the plaintiff did not want to ride Scout because he had a tendency to thrash his head after a jump, she did ride Scout to avoid having to ride Sunny, a horse that the plaintiff found to be “reckless and unpredictable.”

Just after her first jump, the plaintiff observed that Scout thrashed his head. She told Johnson about her problem with the horse. Johnson told her to pull the reins tighter after the jump. After her second jump, the plaintiff pulled the reins tighter, but again observed that Scout thrashed his head. Johnson then told her to pull the reins even tighter after the jump. As the plaintiff was completing her third jump, she adhered to Johnson’s suggestion and pulled even tighter on the reins. She completed the jump and rode approximately 20 feet past it. Scout began violently thrashing his head and ultimately threw the plaintiff off his back. She fell and was injured.

The plaintiff brought this case, initially against Fox Meadow and Yackley. She later amended her complaint to include Johnson. The defendants moved for summary judgment, which the trial court granted. After the trial court denied the plaintiff’s motion for reconsideration, this appeal followed.

Before reaching the issue on appeal, we must first address the plaintiff’s motion to strike the defendants’ statement of facts. (See 134 Ill. 2d R. 341(eX6).) We have taken the motion with this case, and we deny it.

The plaintiff argues that the defendants have inaccurately portrayed the facts of this case. She points to a sentence in the defendants’ statement of facts that does not have a record citation. The plaintiff then contends that a phrase, “the release clearly states,” in the defendants’ statement of facts is argumentative. She further finds fault in the defendants’ “bolding” certain words in the release. We find that the statement of facts does not hinder or preclude review. (See Oakleaf v. Oakleaf & Associates, Inc. (1988), 173 Ill. App. 3d 637, 646.) We deny the plaintiff’s motion to strike.

We now turn to the substantive issues raised in the appeal. They can be summarized as whether the trial court properly found that the release relieved the defendants of liability.

Exculpatory agreements are generally enforceable unless their enforcement would be against the settled public policy of this State or there is something in the social relationship of the parties which militates against upholding the agreement. (Falkner v. Hinckley Parachute Center, Inc. (1989), 178 Ill. App. 3d 597, 602.) We note that a release to go horseback riding has been upheld, with the court’s reasoning that the risk of being thrown from a horse is apparent to all but the most inexperienced of horseback riders. See Harris v. Walker (1988), 119 Ill. 2d 542, 549-50.

The plaintiff first argues that the release had a fixed duration. According to that argument, the release terminated when the plaintiff left the Fox Meadow premises on August 2, 1986, the day that she signed it.

The trial court, however, found that the language of the release, as a matter of law, provided that the release was to be effective each time that the plaintiff entered Fox Meadow’s property, even though the release does not specify its duration. Where no definite time is fixed during which a contract continues, it is terminable at the will of either party. (Gage v. Village of Wilmette (1924), 315 Ill. 328, 331; First National Bank v. Sylvester (1990), 196 Ill. App. 3d 902, 910.) The construction of a release is governed by the rules of law for contracts. Polo National Bank v. Lester (1989), 183 Ill. App. 3d 411, 414.

Here, after the plaintiff signed the release, neither party elected to terminate it. Further, the language of the release states that the plaintiff assumed “all risks of loss *** that may be sustained by *** each of the undersigned which may hereinafter occur on account of, or in any way growing out of *** said equestrian activities.” (Emphasis added.) We find that the release continued until either party exercised its right to terminate it. Since the release had not been terminated by either party, we therefore agree with the trial court that the release continued to be effective on the day of the accident.

The plaintiff next argues that her injuries do not fall within the scope of the release.

In Harris v. Walker (1988), 119 Ill. 2d 542, the plaintiff rented a horse from the defendants’ riding stables. (119 Ill. 2d at 545.) The horse became “spooked or ‘side-shocked’ ” and threw the plaintiff. (119 Ill. 2d at 549.) Before riding the horse, the plaintiff signed an exculpatory agreement relieving the defendants from liability that might be incurred “while on the premises or for any injury which may result from horseback riding.” (119 Ill. 2d at 548-49.) The trial court granted summary judgment in the defendants’ favor. The appellate court reversed the judgment, but the supreme court affirmed the trial court’s granting of summary judgment. (119 Ill. 2d at 545.) The supreme court found the terms of the release to contain broad language which would encompass the plaintiff’s injury. (119 Ill. 2d at 549.) We find the Harris case to be controlling here.

The plaintiff argues that the Harris case is distinguishable from this case. She first argues that, unlike in Harris where the plaintiff was an experienced rider, she classified herself as a “beginner.” We note that she had been taking horseback riding lessons from the defendants for over two years before the accident. Further, the Harris court found “that only the most inexperienced of horseback riders would not understand that under certain circumstances a horse may *** cause a rider to fall from the horse.” (119 Ill. 2d at 549.) As the trial court correctly found here, the plaintiff was not “the most inexperienced of horseback riders.” She, like the Harris plaintiff, could appreciate the risk of being thrown from a horse.

The plaintiff then argues that Harris is inapplicable since the plaintiff there merely rented a horse, while she was on Fox Meadow’s property for riding lessons. Again, we see no basis to distinguish the case. The question is whether the plaintiff could appreciate the risk that a horse could throw her. The release, as worded, is broad enough to encompass “any accident, injury or property loss.”

Finally, the plaintiff argues that Harris is inapplicable here since the plaintiff there admitted that he read and fully understood the release that he signed. The plaintiff here stated that she may neither have read the release before signing, nor understood that she was signing a release.

A release or exculpatory agreement may be set aside if there is either fraud in the execution or fraud in the inducement. (Rudolph v. Santa Fe Park Enterprises, Inc. (1984), 122 Ill. App. 3d 372, 374.) Fraud in the execution occurs where the party was induced to sign the agreement not knowing it was a release, but believing it to be another type of document; fraud in the inducement is where the party is induced to enter into the release by false representations by the other party. (Koch v. Spalding (1988), 174 Ill. App. 3d 692, 697.) A party has a general duty to read documents before he signs them, and his failure to do so will not render the document invalid. Rudolph, 122 Ill. App. 3d at 375-76.

The plaintiff here argues that she thought that she signed the release so that she could be included in Fox Meadow’s insurance coverage. However, she still failed to read the document even though the words, “CAUTION: READ BEFORE SIGNING,” appeared just above her signature. Further, the document is captioned “RELEASE.” The plaintiff has not raised a question of fact that she was fraudulently induced to sign the release. The plaintiff is not entitled to relief simply because she has failed to exercise reasonable care before signing the release. See Rudolph, 122 Ill. App. 3d at 376.

By following Harris, we reach the same conclusion that the tidal court did, i.e., that the broad language of the release relieves the defendants from liability. We find that the trial court did not err in granting the defendants’ motion for summary judgment.

We quickly dispose of the plaintiff’s three remaining arguments. The arguments are the following: (1) whether defendant Yackley, who signed the release under the heading of “Witness,” could “accept” the release on behalf of all the defendants; (2) whether the defendants’ motion for summary judgment is inadequate because the defendants initially failed to attach a copy of both sides of the release; and (3) whether the trial court erred in finding that defendant Johnson is covered under the release.

The plaintiff offers no case citation to support her arguments. Thus, she has not complied with Supreme Court Rule 341(eX7) (134 Ill. 2d R. 341(eX7)). We are entitled to be cited pertinent authorities (see Lazy ‘L’ Family Preservation Trust v. First State Bank (1988), 167 Ill. App. 3d 624, 627), and we therefore reject these arguments.

The decision of the circuit court of Du Page County is affirmed.

Affirmed.

McLAREN and INGLIS, JJ., concur.


author: JUSTICE BOWMAN

text:
    BYRON COMMUNITY UNIT SCHOOL DISTRICT No. 226, Plaintiff-Appellee, v. DUNHAM-BUSH, INC., Defendant-Appellant (Unteed, Scaggs, Nelson, Ltd., et al., Defendants).
    Second District
    No. 2—90—0388
    Opinion filed July 3, 1991.

      Douglas P. Roller and Daniel J. Klier, both of Rooks, Pitts & Poust, of Chicago, for appellant.
    Michael J. Foley and Lorence H. Slutzky, both of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., and Geoffrey G. Gilbert, of McBride, Baker & Coles, both of Chicago, Moehle, Smith & Nieman, P.C., and Stephen C. Pemberton, of Williams & McCarthy, both of Oregon, Thomas H. Boswell, of Thomas & Hinshaw, Culbertson, of Rockford, and Lisa A. Treviranus, of Ward, Murray, Pace & Johnson, P.C., of Sterling, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Byron Community Unit School District No. 226 (Byron), brought this action against defendant, Dunham-Bush, Inc. (Dunham), for various breach of warranty and breach of contract claims. Appeal was allowed pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308) after a motion for summary judgment by Dunham was denied. We affirm.

The pleadings and exhibits reveal the following sequence of events. Dunham manufactured, sold and serviced industrial heating and cooling equipment. Defendant sold an electric heating and air-conditioning system to plaintiff for use in the high school the district was building at a cost of $180,000, exclusive of freight charges. Byron paid an additional $5,000 for a second-year warranty and summer-winter check on the system, and $3,000 for factory supervision of installation and start-up. The Dunham system was delivered to the high school site in November 1981, but there is no record of the precise date of delivery or installation. The system was put into operation the following May.

It subsequently became apparent the system was not heating the school properly. Repairs were undertaken, but, as of the fall of 1985, the problem had not been completely resolved. In October 1985 Byron suggested that Dunham enter into a “stand-still” agreement in order to allow time for Byron and Dunham to resolve the dispute over the heating system without litigation. Under Byron’s proposal Byron would agree not to bring a suit against Dunham until the following May if Dunham would agree not to assert the delay accruing between November 1, 1985, and May 1, 1986, in support of an argument that suit was barred by the statute of limitations. Byron also indicated that its request for a “stand-still” arrangement was being extended to the building architect and engineer and would require unanimous approval to become effective.

Dunham assented to the agreement by a letter of November 5, 1985. By letter of November 18, 1985, Buchanan-Bellows (Buchanan), the building engineer, indicated it would not enter into any such agreement, and Byron so informed Dunham. Byron also asked Dun-ham if its position on the statute of limitations question was changed as a result of Buchanan’s negative response. According to the affidavit of Geoffrey Gilbert, then counsel for Byron, in a phone conversation of November 25, 1985, Robert Melroy, counsel for Dunham, responded on behalf of Dunham that Buchanan’s refusal to participate did not alter the position of Dunham-Bush.

In April 1986 Byron filed suit against several defendants, including Dunham. The complaint included counts against Dunham for breach of express warranty (count II), breach of implied warranties of fitness for a particular purpose and workmanlike performance (counts IV, V), and breach of a contract of which Byron was a third-party beneficiary (count III). Dunham responded by filing a motion to dismiss pursuant to section 2 — 619(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619(5)) or, in the alternative, a motion for summary judgment. In regard to the motion to dismiss, Dunham asserted that Byron’s suit was barred by the statute of limitations found in section 2 — 725 of the Uniform Commercial Code (Code) (Ill. Rev. Stat. 1985, ch. 26, par. 2 — 725). Dunham also offered legal arguments as to why it was entitled to summary judgment relative to each count of Byron’s complaint.

In January 1989 the court granted summary judgment in favor of Dunham on all pertinent counts of the complaint. The court made no findings and did not set forth the basis for its decision. A month later, on February 16, 1989, the court vacated its order granting summary judgment and granted leave to Byron to file a second amended complaint. The amendment pleaded the facts surrounding the “stand-still” agreement; asserted that, in reliance on Dunham’s representation that it would not plead a statute of limitations defense, Byron had delayed filing suit until April 24, 1986; and contended that Dunham had either waived its right to assert or was estopped from asserting Byron’s delay in filing suit from November 1, 1985, until April 24, 1986, as a defense.

Dunham subsequently filed a “Renewed Motion of Defendant Dun-ham Bush for Summary Judgment on Statute of Limitations Defense.” Oral argument on the motion was limited to the statute of limitations issue. Following argument the trial court indicated that it had granted defendant’s original motion for summary judgment on the basis that Byron’s action was time barred by the statute of limitations. The judge further explained that, based on his subsequent research, he had decided the original order was erroneous, so he had reversed himself and vacated that order. He now believed that the estoppel issue raised by Byron presented factual questions which should be decided by a fact finder. Dunham’s motion for summary judgment was denied. The court also denied Dunham’s subsequent motion for reconsideration but certified the estoppel and statute of limitations question for interlocutory appeal. The issue was framed as follows:

“Whether a defendant can be equitably estopped from asserting a statute of limitations defense by a plaintiff where there exists no fiduciary relationship between the parties and where plaintiff has full knowledge of the statute and the date upon which it shall run.”

Defendant’s application for leave to appeal was allowed on May 15, 1990.

Dunham contends that it was improperly denied summary judgment because, as a matter of law, Byron’s estoppel argument was insupportable and, therefore, the cause of action was barred by the Code’s statute of limitations. Summary judgment, which is a drastic means of terminating litigation, should be granted only when the right of the movant is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) A motion for summary judgment shall be allowed when the pleadings, depositions, admissions, and affidavits on file demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 233-34.) The evidence must be strictly construed against the party moving for summary judgment and liberally in favor of the opponent. (Logan, 139 Ill. 2d at 234.) If facts are identified upon which reasonable persons may disagree, or inferences which can be drawn from the facts lead to different conclusions, the motion must be denied and the differing facts and inferences resolved at trial. (Certified Mechanical Contractors, Inc. v. Wight & Co. (1987), 162 Ill. App. 3d 391, 400.) After carefully reviewing the record in light of these principles, we conclude the trial court correctly determined that Byron should be allowed to invoke the doctrine of estoppel and thus properly denied Dunham’s motion.

An estoppel is an impediment or bar to the assertion of a right, arising as a result of a man’s own act. (Greer v. Carter Oil Co. (1940), 373 Ill. 168, 176-77.) The doctrine of estoppel is invoked to prevent fraud and injustice (Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 449; Carey v. City of Rockford (1985), 134 Ill. App. 3d 217, 218). The test is whether, under all the circumstances of the particular case, conscience and honest dealing require that defendant be estopped. (Carey, 134 Ill. App. 3d at 218; Lincoln-Way Community High School District No. 210 v. Village of Frankfort (1977), 51 Ill. App. 3d 602, 609-10.) Estoppel arises when a party, by his word or conduct, intentionally or through culpable negligence, induces reasonable reliance by another on his representations and thus leads the other, as a result of that reliance, to change his position, to his injury. (Payne v. Mill Race Inn (1987), 152 Ill. App. 3d 269, 277; Gary-Wheaton Bank v. Meyer (1984), 130 Ill. App. 3d 87, 95-96; Wilson v. Illinois Benedictine College (1983), 112 Ill. App. 3d 932, 939.) While an intent to mislead is not necessary, the reliance by the other party must be reasonable. (Wilson, 112 Ill. App. 3d at 939.) As we understand it from the question certified by the trial court, Dunham makes a two-pronged argument that Byron has not presented a viable case for estoppel.

First, according to defendant, the absence of a fiduciary relationship between itself and Byron undercuts the basis for estoppel. It appears that defendant has raised this particular issue in response to the trial court’s reliance on Witherell v. Weimer (1981), 85 Ill. 2d 146 (Witherell I) and Witherell v. Weimer (1987), 118 Ill. 2d 321 (Witherell II). The trial court cited these two cases as the basis for reversal of its conclusion that Byron’s cause of action was barred by the Code’s statute of limitations. In pertinent part the Witherell cases found that the plaintiff-patient should be given an opportunity to prove the allegations upon which she sought to estop the defendant-doctor from asserting a statute of limitations defense. In so finding, the court noted that the doctor-patient relationship is fiduciary in nature and one in which the patient places great reliance on the doctor. Witherell, however, did not make a fiduciary relationship an element of estoppel. Defendant seems to recognize this when it characterizes a fiduciary relationship as a factor the courts “will consider” and remarks that evidence of such a relationship “lends support for a case of equitable estoppel.” In sum, the absence of a fiduciary relationship between Dunham and Byron is not fatal to Byron’s estoppel argument.

Defendant’s second argument focuses on the element of estoppel which calls for reasonable reliance. Dunham asserts that the “standstill” agreement on which Byron relies, if there was such an agreement, was void and unenforceable. Furthermore, according to the argument, Byron and Dunham dealt at arm’s length, and Byron should be charged with knowledge that the agreement was not valid. Defendant bases this argument on the statute of limitations set forth in the Code:

“An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.” Ill. Rev. Stat. 1989, ch. 26, par. 2 — 725(1).

Dunham claims the language prohibiting extension of the statute of limitations reflects a public policy against expanding the statutory time limit and posits that any contract which purports to expand should not be enforced on any grounds, including grounds of estoppel. Defendant then characterizes the “stand-still” agreement as an attempt to extend the Code’s time limit and urges that Byron should not be allowed to claim that it reasonably relied on what it knew or should have known to be an improper agreement. The culmination of defendant’s argument is that, because the agreement is unenforceable as a matter of public policy, Byron cannot show the reasonable reliance element of estoppel. We do not agree with defendant’s characterization of the parties’ agreement.

Dunham correctly cites George v. City of Danville (1943), 383 Ill. 454, for the proposition that all parties, when dealing at arm’s length, are charged with knowledge that contracts which violate the public policy of the State are invalid. Defendant also correctly posits that the law in existence when a contract is executed is considered a part of the contract the same as if it were incorporated in the contract. (Denton Enterprises, Inc. v. Illinois State Toll Highway Authority (1979), 77 Ill. App. 3d 495, 504.) In both George and Denton the courts refused to apply estoppel to prevent a party from repudiating a prior contract, even though the party seeking estoppel had relied to its detriment on that contract. The court’s decision in Denton turned on a finding that the parties’ agreement was in clear violation of a statute and, therefore, contrary to public policy. Similarly, in Denton the court found that the applicable statute had not been followed in modifying a contract and determined that the injured party should be held to be aware of the relevant statutory limitations. In our opinion George and Denton are not controlling in the present case because the agreement between Byron and Dunham was not made in violation of the statute.

The basic and most fundamental principle of statutory construction is to give effect to the intent of the legislature. (American Country Insurance Co. v. Wilcoxon (1989), 127 Ill. 2d 230, 238; City of Springfield v. Board of Election Commissioners (1985), 105 Ill. 2d 336, 340-41.) Courts should examine first the language of the statute as the best indication of the intent of the drafters. (American Country Insurance Co., 127 Ill. 2d at 238; County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 151.) If the statutory language is clear, the court must give it effect and need not look to extrinsic aids for construction. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 277.) These principles control our discussion of the Code’s statute of limitations.

The language of section 2 — 725(1) on which Dunham relies provides that the parties “may not extend” the period of limitation “[b]y the original agreement.” The original contract for sale of the heating/ cooling unit to Byron was executed in 1980. Dunham does not contend that the original contract contained a limitation period different from that provided in the Code. The dispute over applicability of the statute of limitations arises from the alleged stand-still agreement, which was not a factor in this case until 1985. Thus, on its face, the statute does not prohibit an agreement such as the one at issue here.

Moreover, we think the legislature’s use of the word “original” reflects a deliberate and careful choice which was meant to describe precisely the scope of applicability of the statutory time limit. Evidently the legislature wished to impose the four-year statute of limitations specifically on original agreements. Had the legislature intended for the restriction to apply across the board it would have been easy enough — easier, in fact, than adding the word “original”— simply to indicate that “by agreement” the parties may not extend the period of limitation. The plain language of section 2 — 725(1) reveals an intent to prevent parties from establishing their own, extended limitation period at the outset of their agreement, in disregard of the limit set forth in the statute. By clearly referring to the initial contract, the legislature appears to have left open the door for parties, such as Byron and Dunham in this case, to suspend the running of the statute in the event they recognize the possibility that more time might enable them to resolve their differences. All in all, we are not persuaded that the six-month stand-still agreement constituted a violation of public policy as embodied in section 2 — 725(1).

We do not believe, either, as urged by Dunham, that the agreement conflicts with the spirit of section 2 — 725(1). The purpose of statutes of limitations is not to shield a wrongdoer but to provide a defendant fair opportunity to investigate factors giving rise to liability while such evidence is still discoverable, i.e., before the facts are obscured by the lapse of time or the death, departure, or defective memory of witnesses. (Beynon Building Corp. v. National Guardian Life Insurance Co. (1983), 118 Ill. App. 3d 754, 762.) Surely, in this case the purpose of the statute was not frustrated by the parties’ agreement. The record reflects that all the parties involved had been actively trying to find a solution to the problems with the heating/cooling system almost from the time it was installed, or at least since the first heating season. Dunham was one of those parties. Consequently, it is reasonable to believe Dunham was aware of and had access to evidence which might be discoverable, or perhaps was discovered, throughout the period of limitations. Too, Dunham would likely have been aware of the status of significant witnesses and could have taken steps to preserve testimony if it became necessary.

The stand-still agreement was suggested only as the end of the four-year time period approached and only as a method of gaining time to resolve matters. There is significant indication in the record that the parties believed they could settle their dispute without litigation. Thus, the six months’ extra time was not intended to make it more difficult for Dunham to defend itself in the event Byron brought suit. As we see it, the agreement worked no violence even to the spirit of the statute of limitations. In the absence of conflict between the agreement and the statute, Byron’s knowledge of the statute does not bar the application of^estoppel. Consequently, Byron is not precluded, as a matter of law, from showing that it reasonably relied on the alleged stand-still agreement with Dunham.

Having decided the certified questions favorably to Byron, we need only further note that estoppel is ordinarily a question of fact, to be determined by the trier of fact (Lawrence v. Board of Education of School District 189 (1987), 152 Ill. App. 3d 187, 201). Only where there is no dispute as to the material facts, and only one inference can be drawn from the facts, does estoppel become a question of law. (Pantle v. Industrial Comm’n (1975), 61 Ill. 2d 365, 369.) However, if the facts are contested or if reasonable minds might draw different inferences from undisputed evidence, estoppel becomes a question of fact. Pantle, 61 Ill. 2d at 369.

In order to discover the legal posture of the estoppel issue in this case, we have carefully reviewed the complaint, motions for summary judgment, replies to the motions, and the parties’ various supporting memoranda. We find that Byron alleged a series of facts to support its claim that it agreed to forestall filing a suit in return for Dunham’s commitment not to raise a limitations defense. Dunham does not appear to dispute these facts in and of themselves. However, it is abundantly clear in both the record and the parties’ appellate briefs that they draw vastly divergent inferences from the facts and that their differing interpretations go to the heart of Byron’s estoppel argument. Under these circumstances the question of the presence of estoppel is to be decided by the fact finder. (Pantle, 61 Ill. 2d at 369.) Also, since differing inferences can be drawn from the material facts, summary judgment was properly denied. (Certified Mechanical Contractors, Inc. v. Wight & Co. (1987), 162 Ill. App. 3d 391, 400.) In our view Byron is entitled to try to prove the allegations which comprise the basis for its estoppel argument. See Witherell v. Weimer (1981), 85 Ill. 2d 146, 160.

The additional issues raised by Byron, which relate to the applicability of the Code’s statute of limitations, are beyond the scope of the questions certified by the trial court. Consequently, they are also beyond the proper scope of this review. Supreme Court Rule 308 (134 Ill. 2d R. 308) is an exception to the general rule that only final judgments are appealable and, therefore, should be exercised sparingly. (Koch v. Spalding (1988), 174 Ill. App. 3d 692, 698; People v. Pollution Control Board (1984), 129 Ill. App. 3d 958, 965.) A court allowing an appeal under Rule 308 may not expand on questions that were brought before it by the circuit court. (Koch, 174 Ill. App. 3d at 698; Getto v. City of Chicago (1981), 92 Ill. App. 3d 1045, 1048.) At any rate, in light of the conclusion we have reached on the estoppel issue, we see no need to discuss any of the other issues raised.

Based on the reasoning set forth above, the order of the circuit court of Ogle County denying reconsideration of defendant’s motion for summary judgment is affirmed, and this matter is remanded for further proceedings.

Affirmed and remanded.

NICKELS and INGLIS, JJ., concur.