author: JUSTICE BARRY

text:
    THE CITY OF PEORIA, Plaintiff-Appellee, v. STUART TOFT, d/b/a Alliance Communications, Defendant-Appellant.
    Third District
    No. 3-90-0489
    Opinion filed June 28, 1991.

      Stuart Toft, of Champaign, appellant pro se.

    Glenn H. Collier and David L. Thomas, Corporation Counsel, both of Peoria, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant Alliance Communications, a sole proprietorship owned by Stuart Toft, appeals from a judgment of the circuit court of Peoria County finding the business entity guilty of violating the City of Peoria’s parking ordinances and ordering it to pay a fine of $150 and court costs. The only issue raised on appeal is whether the trial court erroneously denied defendant’s motion to dismiss because of time barring. We affirm.

The six parking tickets at issue were written between January 23, 1987, and May 5, 1987. The City’s sworn complaint was filed in the circuit court of Peoria on February 5, and summons was served on defendant in Champaign, Illinois, on February 21, 1990. Prior to the date set for defendant to answer, defendant filed its motion to dismiss on the ground that the City had only two years to bring suit to recover on its parking tickets. The court, after hearing the parties’ arguments, denied the motion. The cause proceeded to a bench trial, and defendant was found guilty and fined as aforesaid.

Because of the “quasi-criminal” nature of the proceeding below, we are asked to determine whether the five-year limitation period of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 205), the two-year limitation period of the Code of Civil Procedure for statutory penalties (Ill. Rev. Stat. 1989, ch. 110, par. 13— 202), or the 18-month period allowed for a misdemeanor prosecution under the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch: 38, par. 3— 5) controls. From the briefs on appeal and our independent research, this appears to be an issue of first impression in the reviewing courts of this State.

The character and attributes of prosecutions for municipal ordinance violations were cogently surveyed in Village of Beckmeyer v. Wheelan (1991), 212 Ill. App. 3d 287, 289-90, 569 N.E.2d 1125, 1127-28. For purposes of the issue before us, the court’s summary merits quotation in pertinent part:

“Violations of municipal ordinances have for many years been characterized by the courts as ‘quasi-criminal’ in nature, hybrids presenting aspects of both civil and criminal nature (Johnston v. City of Bloomington (1979), 77 Ill. 2d 108, 111-12, 395 N.E.2d 549, 550), but not creating a third, distinct class of action. City of Waukesha v. Schessler (1941), 239 Wis. 82, 86, 300 N.W. 498, 500.
Municipal ordinance violations are tried and reviewed as civil proceedings, and the Civil Practice Law (Act) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 101 et seq.) applies to such prosecutions with certain aspects of the Act subject to limitation by the court. (City of Danville v. Hartshorn (1973), 53 Ill. 2d 399, 404, 292 N.E.2d 382, 385 (invocation and extent of discovery provisions of Act within trial court’s discretion).) ***
The burden of proof in these cases is that of the civil standard, a preponderance of the evidence, occasionally described as ‘a clear preponderance of the evidence’ (City of Chicago v. Joyce (1967), 38 Ill. 2d 368, 373, 232 N.E.2d 289, 291), rather than the criminal standard of ‘beyond a reasonable doubt.’ Just as the term ‘quasi-criminal’ does not create a third class of action, a ‘clear preponderance of the evidence’ does not create a third burden of proof. See Teter v. Spooner (1922), 305 Ill. 198, 211, 137 N.E. 129, 135.
***
The courts have rejected contentions that the time limitations of section 103 — 5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(b)) apply to ordinance violations prosecutions (e.g., City of Chicago v. Wisniewski (1973), 54 Ill. 2d 149, 152-53, 295 N.E.2d 453, 454). They have, instead, required diligent prosecution of ordinance violations under section 1 — 2—9 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 1 — 2—9), which requires prosecution ‘without unnecessary delay.’ The supreme court found in Wisniewski (54 Ill. 2d at 152-53, 295 N.E.2d at 454), that ‘it does not follow that because section 103 — 5(b) is not applicable, a prosecuting municipality may proceed on its own convenience.’ Accord City of Carbondale v. Irving (1977), 45 Ill. App. 3d 699, 704, 360 N.E.2d 118, 119-20.
Because the Code of Civil Procedure applies to these prosecutions, complaints alleging violations need not be drawn with the precision necessary in the drafting of a criminal indictment or information. City of Chicago v. Westphalen (1968), 95 Ill. App. 2d 331, 335, 238 N.E.2d 225, 227.”

Defendant suggests that section 1 — 2—1.1 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 1 — 2—1.1), relating to misdemeanors, requires application of criminal procedure rules. We disagree. Section 1 — 2—1.1 refers to violations prosecuted by an information or sworn complaint and punishable by incarceration. It does not apply to violations not punishable by a jail sentence. (Village of Mundelein v. Aaron (1983), 112 Ill. App. 3d 134, 445 N.E.2d 57.) Mr. Toft in this case was not arrested or otherwise deprived of liberty. His company’s violations of the parking ordinances subjected him to fines only.

The Illinois Municipal Code further provides that prosecutions for ordinance violations involving an arrest must be commenced “without unnecessary delay.” (Ill. Rev. Stat. 1989, ch. 24, par. 1 — 2—9.) But the Code is silent with respect to proceedings instituted upon service of summons.

In City of Crystal Lake v. Sak (1977), 52 Ill. App. 3d 684, 367 N.E.2d 989, the court held that civil standards relating to dismissal for want of prosecution apply to violations of municipal ordinances not involving an arrest. The issue in Sak concerned delay between the issuance of traffic citations and trial. The court distinguished this situation from that of Wisniewski, which involved an arrest and “unnecessary delay” between that arrest and the eventual trial. To the extent that the instant case did not involve an arrest, we find that the Sak court’s adherence to civil procedure rules and its rejection of Wisniewski-type limitations pursuant to section 1 — 2—9 apply to the resolution of the issue here.

Next, we find that the two-year limitations period for personal injuries (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 202) does not apply. Although the ordinance at issue permits the municipality to penalize the offender with a fine, this is not the sort of “statutory penalty” contemplated by the personal injury limitation statute. An “ordinance” is a local rule enacted by a unit of government pursuant to authority delegated by the State. By contrast, a “statute” bears the imprimatur of the State legislature (Battershell v. Bowman Dairy Co. (1961), 37 Ill. App. 2d 193, 185 N.E.2d 340), and the legislature’s use of the phrase “statutory penalty” does not evince an intent to encompass fines or other penalties exacted for violations of local laws. See Clare v. Bell (1941), 378 Ill. 128, 37 N.E.2d 812 (court rejected application of section 14 of statute of limitations (Ill. Rev. Stat. 1941, ch. 83, par. 15 (currently ch. 110, par. 13 — 202)) in suit involving county’s collection of real estate taxes and penalty).

The City of Peoria correctly points out that in the absence of any other specific limitations statute, the five-year limitation period for “civil actions not otherwise provided for” (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 205) applies. A complaint was filed and defendant was served with summons to answer for parking ordinance violations within this period. Accordingly, we hold that the circuit court of Peoria County committed no error in denying defendant’s motion to dismiss and entering judgment for the City.

The judgment of the circuit court is affirmed.

Affirmed.

McCUSKEY and GORMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    JOSEPH T. ABADIE, Plaintiff-Appellant, v. GARFIELD PAUL ROYER et al., Defendants-Appellees.
    Second District
    No. 2—90—1180
    Opinion filed June 27, 1991.
    Rehearing denied July 29, 1991.

      Raymond P. Concannon and Michael P. Concannon, both of Raymond P. Concannon, Ltd., of Chicago, for appellant.
    Lewis W. Terlizzi, of Brittain, Ketcham, Strass, Terlizzi, Flanagan, Weir, Johnson & David, P.C., of Elgin (Daniel E. Compton, of counsel), for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Joseph Abadie, appeals from an order of the circuit court which granted defendants’ motion for summary judgment as to all counts of his second amended complaint. The record contains no indication as to the basis of the trial court’s decision. This cause of action arose from the collision of a car being driven by plaintiff on a public highway and a horse owned by defendants, Garfield and Alvilda Royer. On appeal, plaintiff raises the following issues: (1) the Animal Control Act (Ill. Rev. Stat. 1987, ch. 8, par. 366) did apply to the facts of this case; (2) the trial court wrongly held that defendants were not negligent in their ownership and control of the horse; (3) the court below erred in finding that no question of fact existed as to defendants’ alleged violation of the Illinois Domestic Animals Running at Large Act (Ill. Rev. Stat. 1987, ch. 8, par. 1); (4) the amended complaint stated a cause of action under the res ipsa loquitur doctrine; and (5) the trial court erred in permitting defendants’ inadmissible conclusions to support their motion for summary judgment.

We initially note that summary judgment is a drastic and extraordinary remedy, and it must be granted only when the movant’s right to judgment as a matter of law is absolutely clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229.) Summary judgment should be granted by the trial court only when it is satisfied that the pleadings, affidavits, and other evidence present no genuine issue of material fact. (Knief v. Sotos (1989), 181 Ill. App. 3d 959.) A trial court must construe the record before it most strictly against the movant; conversely, the court must view the record in a light most favorable to the nonmoving party. (Knief 181 Ill. App. 3d at 963.) A reviewing court’s task is to determine whether the trial court correctly concluded that there were no genuine issues of material fact, and, if so, whether judgment for the moving party was correct as a matter of law. International Amphitheatre Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555.

Plaintiff first argues that the Animal Control Act applies to the facts of this case. On April 18, 1988, at approximately 2 a.m., plaintiff was driving his automobile westbound on Hinois Route 38 in Campion Township, Kane County. Plaintiff momentarily looked down into the car’s interior. When he resumed looking ahead into the traffic lane, he saw a horse directly in his way. Plaintiff swerved to miss the horse but collided with it, killing the animal. The automobile then left the pavement and struck a fence. It was later determined that the horse, Sunny, belonged to defendants. As a result of the collision, plaintiff suffered facial lacerations, loss of vision and other related injuries.

In count I of his second amended complaint, plaintiff averred a violation of the Animal Control Act, which reads in relevant part as follows:

“If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained.” (Ill. Rev. Stat. 1987, ch. 8, par. 366.)

The trial court, without explanation, granted defendants’ motion for summary judgment as to count I.

In McQueen v. Erickson (1978), 61 Ill. App. 3d 859, this court addressed the issue of whether the legislature intended the Animal Control Act to apply to situations where domestic animals, such as horses, were running at large. The facts of the instant cause are similar to those of McQueen, wherein the plaintiff’s automobile collided with one or more of defendant’s horses, which had escaped and run out onto a highway.

After determining that the Animal Control Act applied to horses, this court found that the legislature, in adding language “or other animals” to the statute, did not intend to repeal outright or by implication any other statute, including the Domestic Animals Running at Large statute. The McQueen court concluded:

“Herein there is not a triable issue as to whether the defendant’s horses caused plaintiffs’ injuries and damages but only the question of law as to whether the legislature, with this amendment, contemplated the imposition of liability under the ‘dog-bite’ statute for damages caused by horses running at large. We hold that this catastrophic change in the law of domestic animals running at large could not have been contemplated by the legislature by the mere addition of the phrase ‘or other animals’ to the ‘dog-bite’ statute. [Citation.] Such a result would impose a great injustice on owners of horses and other domestic animals who heretofore have been liable only under the running at large statute for the activity of their horses where the owner has failed to use reasonable care in restraining his horse and where the owner had knowledge that his horse was running at large.” 61 Ill. App. 3d at 864.

McQueen has been cited with approval in other jurisdictions. In Zears v. Davison (1987), 154 Ill. App. 3d 408, plaintiff’s car struck defendant’s cow, which was wandering loose. Plaintiff sued defendant under both the Domestic Animals Running at Large and Animal Control statutes. Finding that the Animal Control Act did not apply to these facts, the Appellate Court, Third District, stated:

“Very persuasive in our decision today is the case of McQueen v. Erickson (1978), 61 Ill. App. 3d 859, 378 N.E.2d 614, where the court refused to apply the Animal Control Act, despite the fact that the requirements were technically met, to a plaintiff who was injured when her car struck the defendant’s horses running at large on the highway. The court in McQueen found that the statute was inapplicable to animals of the domestic variety who run at large and are covered under the running-at-large statute. To hold otherwise would work an injustice on animal owners who could then be liable under two statutes.” 154 Ill. App. 3d at 411-12.

In Moore v. Roberts (1990), 193 Ill. App. 3d 541, plaintiff was injured at a racetrack when competing race horses broke through the racetrack enclosure, threw the jockeys and ran among the crowd. Plaintiff’s complaint contained two counts premised on the Animal Control Act. The trial court dismissed both counts, and plaintiff appealed, arguing that the Animal Control Act should apply. Defendants argued that under the facts only the Domestic Animals Running at Large statute was applicable. The Moore court found that the race horses were clearly not grazing at pasture. The Appellate Court for the Fourth District then stated:

“In addition, in McQueen v. Erickson [citation], the appellate court held the Illinois Domestic Animals Running at Large Act created an exception to the [Animal Control] Act and, where the running-at-large statute will not support a cause of action, the general rule, the Act, will apply. For this reason, the Act, not the running-at-large statute, is the applicable law here.” 193 Ill. App. 3d at 543.

Plaintiff argues that McQueen is not determinative because it conflicts with our supreme court’s decision in Harris v. Walker (1988), 119 Ill. 2d 542. In Harris, plaintiff was injured in a fall from a horse which he had rented from defendant’s riding stable. The Harris court found that the legislature did not intend to create a statutory cause of action for a plaintiff renting a horse from a riding stable. The supreme court held that by accepting the risks of horseback riding, plaintiff removed himself from that class of persons protected by the Animal Control Act. Thus, Harris, which made no reference to McQueen, is not determinative of the instant case, wherein the facts and issues are entirely different.

Plaintiff also cites Chittum v. Evanston Fuel & Material Co. (1980), 92 Ill. App. 3d 188, in which the decedent was riding a horse owned by defendant. The horse ran out of control onto a highway, where it collided with another defendant’s cement truck, causing decedent’s death. In Chittum, the Appellate Court, First District, found that, under the Animal Control Act, a “dog or other” animal can cause injury “one, by an aggressive violent action designed to inflict injury and two, by an action which is in itself harmless but under a particular set of facts results in an injury.” (92 Ill. App. 3d at 191.) Accordingly, the court held that the amended complaint stated a valid cause of action as to those counts based upon the Animal Control Act. Further, the Chittum court determined that the Domestic Animals Running at Large statute was not applicable to the facts appealed at bar.

We note that a number of factors distinguish Chittum from the case at bar. Chittum made no reference to this district’s holding in McQueen v. Erickson. Further, the Chittum court was not required to decide whether the Domestic Animals Running at Large Act or Animal Control Act applied to the facts before it. Also, the Chittum accident arose from a situation in which a horse carried its rider onto the highway, rather than an owner’s alleged failure to enclose a horse.

It is readily apparent that Chittum and McQueen stand for opposite views as to the scope of the Animal Control Act. We believe that McQueen reaches the proper result, namely, that the owners of domestic animals, including livestock, are subject only to liability which arises from the Domestic Animals Running at Large statute. Accordingly, we find that the Animal Control Act did not apply to the subject case, and the trial court did not err in granting defendants’ motion for summary judgment as to count I of the second amended complaint.

Next, plaintiff maintains that the court below should not have granted defendants’ motion for summary judgment regarding count III of the second amended complaint, which was based on the Domestic Animals Running at Large statute. The parties do not disagree that said statute applies to the case at bar; they differ as to whether there is any genuine issue of material fact.

In support of his contention, plaintiff cites numerous passages from defendants’ deposition, which, he alleges, indicate their failure to keep Sunny properly enclosed. We agree.

The Domestic Animals Running at Large statute reads in relevant part:

“No person or owner of livestock shall allow livestock to run at large in the State of Illinois. All owners of livestock shall provide the necessary restraints to prevent such livestock from so running at large and shall be liable in civil action for all damages occasioned by such animals running at large; Provided, that no owner or keeper of such animals shall be liable for damages in any civil suit for injury to the person or property of another caused by the running at large thereof, without the knowledge of such owner or keeper, when such owner or keeper can establish that he used reasonable care in restraining such animals from so running at large.” (Ill. Rev. Stat. 1987, ch. 8, par. 1.)

To recover under this statute, plaintiff must allege and prove that defendants did not use reasonable care in restraining the animal and that defendants had no knowledge that the animal was running at large. O’Gara v. Kane (1976), 38 Ill. App. 3d 641.

There is no dispute that defendants were unaware that Sunny was loose until the morning following the accident. The remaining element required by the statute is whether defendants exercised reasonable care in restraining Sunny from running at large.

In his deposition, Garfield Royer testified that when he left for work on April 18, he was unaware that Sunny had escaped from the horse bam. At work, he was called by his wife, Alvilda, who told him that Sunny was not in the bam. The pony that shared the stall in the bam with Sunny was wandering loose within the barn’s interior. Normally, the pony and Sunny would be within the stall in the morning. Further, the latch to the barn’s pedestrian door, which led to an unfenced area between the barn and the Royer’s house, was not working properly. On the morning in question, Mrs. Royer found a hoof print in the dirt at the pedestrian door, which was essentially used by the Royers to enter and exit the bam. Mr. Royer admitted that a horse of Sunny’s size could push through this door if it were not properly latched. The other bam doors opened onto an enclosed, secure area and were the ones used to take the horses out of and into the bam.

In her deposition, Alvilda Royer conceded that the subject bam door could have been blown open by the high winds which were blowing in the early hours of April 18. Her daughter, who initially discovered Sunny’s disappearance, thought the subject door was open when she went to the bam in the morning of April 18 but could not say for sure. Mrs. Royer further conceded that the hoof print found near the subject door was Sunny’s, as the other horse and pony were unshod.

This deposition testimony demonstrates that material facts are in dispute as to whether defendants used reasonable care in restraining Sunny on the evening of April 17 and/or the early morning of April 18. Based on the record before us, we find that the trier of fact should determine this issue. Accordingly, we hold that the trial court erred in granting defendants’ motion for summary judgment as to count III.

Next, plaintiff argues that the trial court should not have granted defendants’ summary judgment motion as to counts II and IV of the second amended complaint, sounding in negligence and res ipsa loquitur, respectively. We find this contention to be meritless. Under a common-law negligence theory, plaintiff has to show that the animal involved had a “mischievous propensity to commit such an injury and the owner had notice of it or that the injury was attributable to some other neglect on his part.” Domm v. Hollenbeck (1913), 259 Ill. 382, 385.

In Forsyth v. Dugger (1988), 169 Ill. App. 3d 362, the appellate court cited this same portion of Domm. In dismissing plaintiff’s argument that Domm allowed recovery for common-law negligence, the Forsyth court stated:

“However, we do not so read Domm, and no other cases so holding have been brought to our attention. In Beckert v. Risberg (1964), 50 Ill. App. 2d 100, 106, [citation], the plaintiff alleged a common law count for recovery asserting defendant was negligent in not keeping his dog secured. The court acknowledged the last clause indicates liability might be predicated on some other neglect, but it observed that the cases have uniformly held that in a common law count alleging injury by a dog, it is necessary to allege and prove the owner’s knowl-

edge of the animal’s mischievous propensity. This necessity of alleging and proving this knowledge was affirmed by the supreme court.” 169 Ill. App. 3d at 367.

This view was echoed in Zears v. Davison (1987), 154 Ill. App. 3d 408, 410, wherein the court found under a common-law negligence action, in order to recover, the plaintiff had to prove that the subject animal had a dangerous disposition of which defendant was aware.

Here, there is no evidence of Sunny’s “mischievous propensity” or defendants’ awareness of same. Consequently, the trial court properly granted summary judgment as to count II (negligence) of the second amended complaint. Having so found, we do not need to address plaintiff’s argument regarding the propriety of count IV (res ipsa loquitur). “Res ipsa loquitur is not a separate theory of recovery; rather, it is a rule of evidence which gives use to an inference or presumption of negligence by circumstantial evidence.” (National Tea Co. v. Gaylord Discount Department Stores, Inc. (1981), 100 Ill. App. 3d 806, 809.) If, as here, the underlying negligence action is unfounded, then a res ipsa loquitur cause of action cannot stand.

Finally, plaintiff argues that defendants’ conclusions in support of the motion for summary judgment were inadmissible under Supreme Court Rule 191(a) (134 Ill. 2d R. 191(a)) and the trial court erred in not striking them. Said rule states in relevant part:

“Affidavits in support of and in opposition to a motion for summary judgment *** shall not consist of conclusions but of facts admissible in evidence ***.” 134 Ill. 2d R. 191(a).

Admittedly, certain deposition statements made by defendants in regard to their theory that an unknown person entered the bam prior to the subject accident and led Sunny through the pedestrian doorway should not have been included to support the motion for summary judgment. While the court erred in not striking said portions of the motion, we find such error harmless as the trial court had available to it sufficient facts upon which to make its judgment.

For the reasons stated above, we affirm the trial court’s order granting summary judgment as to counts I, II and IV of the second amended complaint. Further, we reverse said order as to count III and remand this cause of action for further proceedings consistent with this opinion.

Reversed and remanded with directions.

GEIGER and BOWMAN, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE COUNTY OF BOONE et al., Plaintiffs-Appellants, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellees.
    Second District
    No. 2—90—1253
    Opinion filed June 25, 1991.

      Roger T. Russell, State’s Attorney, of Belvidere (Peter M. Murphy, Assistant State’s Attorney, of counsel), for appellants.
    Roland W. Burris, Attorney General, of Springfield, and Eugene L. Griffin and Jerome A. Siegan, both of Arvey, Hodes, Costello & Burman, of Chicago (Eugene P. Schmittgens, Assistant Attorney General, of Springfield, and Larry C. Jurgens, Daniel N. Malato, and Rosalyn B. Kaplan, Assistant Attorneys General, of Chicago, of counsel), for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiffs, Boone County and the Boone County Board of Review (Board), appeal from an order of the circuit court which affirmed an administrative decision finding that the Belvidere Oasis, property owned by defendant, the Illinois State Toll Highway Authority (Tollway Authority), was exempt from real estate taxes for 1985. Plaintiffs raise one issue on appeal: whether the trial court erred in determining that, under the 1985 version of the Revenue Act of 1939 (Revenue Act) (Ill. Rev. Stat. 1985, ch. 120, par. 482 et seq.), only property which is leased is subject to taxation.

On March 26, 1986, the Board denied the Tollway Authority exempt status on real estate taxes for the Belvidere Oasis for the year 1985. The Tollway Authority requested a hearing before defendant, the Illinois Department of Revenue (Department). Following a hearing on the matter, the Department recommended that the property be tax exempt. The Department made the following factual findings.

The Tollway Authority owned two parcels of land comprising the Belvidere Oasis. On the oasis were a restaurant and two service stations. The Tollway Authority entered into separate “Operating Agreements” with McDonald’s Corporation and with Mobil Oil Company which concerned the operation of the restaurant and the service stations. Neither agreement used the terms “lease,” “quiet enjoyment,” or “covenant,” nor did they contain a legal description of the property. The agreements required the restaurant and service stations to operate 24 hours per day, 365 days per year.

In the McDonald’s agreement, the Tollway Authority had the right to “preapprove” the uniforms worn by McDonald’s employees, determine the size and number of signs, and approve the menu and prices McDonald’s charged. McDonald’s was required to have a full-time rest room attendant on duty between 6 a.m. and 10 p.m., and the rest rooms were to be open, clean and available at all times. The service station operator was required to honor Master Card and Visa, in addition to its own credit card. No alcohol could be sold or served at the oasis, and neither operator could install video games. The Tollway Authority received a fixed compensation plus a percentage of gross receipts.

The Tollway Authority’s oasis inspector visited the Belvidere Oasis weekly in 1985 to determine if the operators were complying with the conditions of the operating agreements. The three-hour inspection included both service stations and the restaurant. The inspector reported any violations to the manager or the operator.

The administrative law judge concluded that the Tollway Authority allowed the operators to occupy and operate a restaurant and two service stations trader agreements which were licenses, and not leases. The Tollway Authority did not transfer any interest in real estate, and it had the right to control strictly the operations at the oasis. The Tollway Authority exercised these rights by conducting weekly inspections of the facilities and enforcing compliance with the agreements.

Plaintiffs filed a complaint for administrative review in the circuit court. The trial court found that a lease is not a license, and, therefore, the legislature decided to change the law in 1987 to eliminate the distinction between leases and licenses for taxing purposes. (Compare Ill. Rev. Stat. 1985, ch. 120, par. 500.5, with Ill. Rev. Stat. 1987, ch. 120, par. 500.5.) The court construed the statutory amendment as having a prospective effect only. The court accordingly affirmed the Department’s decision. This appeal followed.

Plaintiffs contend that the trial court erred in determining that, because the agreements here were licenses, the property was tax exempt. Plaintiffs do not dispute the Department’s factual finding that the agreements at issue were licensing agreements and not leases.

Unless specifically exempted by statute, all property is subject to taxation. (Girl Scouts of Du Page County Council, Inc. v. Department of Revenue (1989), 189 Ill. App. 3d 858, 861.) Where the facts are undisputed, the determination whether property is exempt from taxation is a question of law. (Harrisburg-Raleigh Airport Authority v. Department of Revenue (1989), 126 Ill. 2d 326, 331.) The Department’s decision is entitled to deference unless it was based on an erroneous, arbitrary, or unreasonable construction of the statute. (Harrisburg-Raleigh Airport, 126 Ill. 2d at 331.) Statutes granting exemptions from property taxes are to be construed strictly in favor of taxation, and the taxpayer bears the burden of proving that it is entitled to the exemption. 126 Ill. 2d at 331.

The statute under which the Tollway Authority claimed an exemption is section 22 of the act which established tollways, which states:

“All property belonging to the Authority, and the toll highways, shall be exempt from taxation. However, such part of that property as has heretofore been or shall hereafter be leased by the Authority to a private individual, association or corporation for a use which is not exempted from taxation under Section 19 of the Revenue Act of 1939, is subject to taxation as provided in Section 26 of the Revenue Act of 1939, regardless of any provision in such a lease to the contrary.” (Ill. Rev. Stat. 1985, ch. 121, par. 100 — 22.)

In 1985, section 19.5 of the Revenue Act, which applied to leased State property, provided that leased property was not exempt from taxation, so that the lessee would be liable for paying the property taxes. (Ill. Rev. Stat. 1985, ch. 120, par. 500.5.) Section 19.5 was amended, effective December 14, 1987, to provide that “leases shall include licenses, franchises, operating agreements and other arrangements under which private individuals, associations or corporations are granted the right to use property of the Illinois State Toll Highway Authority.” Ill. Rev. Stat. 1987, ch. 120, par. 500.5.

Plaintiffs argue that the 1987 amendment was a clarification of the law, not a change, and, therefore, a license is the same as a lease under the 1985 version of the statute. Plaintiffs do not contend that the 1987 amendment to section 19.5 should be applied retroactively.

Defendants respond that Illinois courts consistently have held that licenses are distinguishable from leases for taxing purposes. (See Stevens v. Rosewell (1988), 170 Ill. App. 3d 58; Jackson Park Yacht Club v. Department of Local Government Affairs (1981), 93 Ill. App. 3d 542; In re Application of Rosewell (1979), 69 Ill. App. 3d 996.) In Stevens, the court followed the rule that licenses are not taxable interests in real estate, noting that a license, as opposed to a lease, merely gives another the right to use the premises for a specific purpose with the owner retaining possession and control. Stevens, 170 Ill. App. 3d at 62.

Although these cases did not construe section 19.5 of the Revenue Act, their interpretation of similar sections of the Revenue Act applies to section 19.5 because statutes relating to the same subject are to be interpreted consistently, and statutory terms are given their ordinary meaning when not defined specifically (Williams v. Illinois State Scholarship Comm’n (1990), 139 Ill. 2d 24, 50-52). It is presumed that the legislature intended to change the existing law when it has amended a statute that has been the subject of judicial interpretation. (In re Marriage of Sutton (1990), 136 Ill. 2d 441, 447.) Thus, there is a presumption that the legislature intended to change the law to eliminate the tax-exempt status from licensed property.

In attempting to rebut this presumption, plaintiffs point out that in 1989 the legislature further amended section 19.5 stating specificaUy that the 1989 amendment “is a clarification of existing law and shall not be considered as a change in the law.” (Ill. Rev. Stat. 1989, ch. 120, par. 500.5.) The 1989 amendment added the phrase “and shall include all such property without regard to the size of the leased parcel” to the list of Tollway Authority property which is not tax exempt. Ill. Rev. Stat. 1989, ch. 120, par. 500.5.

Plaintiffs’ argument is not supported by the rules of statutory construction. Amendment of an ambiguous provision indicates an intention to clarify the law. (Brownridge Institute of Karate, Inc. v. Dorris (1987), 162 Ill. App. 3d 483, 486.) There was an inherent ambiguity in section 19.5 prior to the 1989 amendment. The first paragraph of that section required State agencies to file a certificate of ownership and a copy of any written agreements regarding parcels of land of one acre or more. (Ill. Rev. Stat. 1987, ch. 120, par. 500.5.) The second paragraph merely stated that the leased property would be assessed to the lessee, who would be liable for the amount of the tax. (Ill. Rev. Stat. 1987, ch. 120, par. 500.5.) Thus, it was not clear whether only parcels of one acre or more would be taxed, or whether any parcel of leased property would be taxed regardless of whether the State agency had to file a certificate of ownership and a copy of the lease.

By contrast, as defendants assert, the 1985 version of the statute was clear and unambiguous. The statute only excluded leased property from the exemption, and the term “leased” has a definite meaning. As the court in Application of Rosewell explained:

“ ‘ “An instrument that merely gives to another the right to use premises for a specific purpose, the owner of the premises retaining the possession and control of the premises, confers no interest in the land and is not a lease, but a mere license.” [Citation.]
A lease possesses the property of passing an interest in the land, and partakes of the nature of an estate. [Citation.]
A license is an authority to do some act on the land of an other, without passing an estate in the land, and “being a mere personal privilege, it can only be enjoyed by the licensee himself, and is not therefore assignable so that an under tenant can claim privileges conceded to a lessee.” [Citation.]’ ” (Application of Rosewell, 69 Ill. App. 3d at 1001, quoting Holladay v. Chicago Arc Light & Power Co. (1894), 55 Ill. App. 463, 466-67.)

When “the original statutory language is clear, the court has declined to view an amendment as simply clarifying the legislature’s intention.” State of Illinois v. Mikusch (1990), 138 Ill. 2d 242, 252.

Furthermore, the 1989 amendment concerned the size of the parcel taxed, which had not been the subject of judicial inteipretation, whereas the term “leased” had been interpreted in the context of tax exemptions. We therefore conclude that the legislature intended to change the law in 1987 to include licenses and operating agreements in the category of Tollway Authority property which is not considered tax-exempt.

Moreover, since the statutory language is clear and unambiguous, courts should apply it as written without resorting to aids of statutory construction. (Henry v. St. John’s Hospital (1990), 138 Ill. 2d 533, 541.) Consequently, we decline to consider any statements of legislators made during debate on the 1987 amendment. Applying the plain language of the statute as it existed during the tax year 1985, we agree with the determination of the Department that, since the agreements were not leases, the Tollway Authority’s licensed property was exempt from taxation.

Due to our resolution of the issue on appeal in defendants’ favor, we need not address the Tollway Authority’s argument that the 1987 amendment to section 19.5 is unconstitutional.

The judgment of the circuit court of Boone County is affirmed.

Affirmed.

WOODWARD and INGLIS, JJ., concur.


author: JUSTICE McLAREN

text:
      In re MARRIAGE OF KAREN L. BERK, Petitioner-Appellant, and JAMIE BERK, Respondent-Appellee.
    Second District
    No. 2—90—1009
    Opinion filed July 1, 1991.

      Hayes, Pesek & Webb, of Oak Brook (Charles J. Pesek, of counsel), for appellant.
    Lehrer, Flaherty & Canavan, P.C., of Wheaton (Maureen Flaherty, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Petitioner, Karen Berk, appeals from the trial court’s judgment denying her petition for removal of children from Illinois. We affirm.

The marriage of Karen and Jamie Berk was dissolved November 24, 1984. Karen was granted sole custody of the minor children, Allison, bom in 1975, and Robbie, bom in 1978. Karen and the children lived in Batavia, as did Jamie. In December 1989 Karen decided to marry Dave Guilbault, an optometrist living in Humboldt, Saskatchewan, Canada. Jamie would not consent to the removal of the children to Humboldt, so Karen filed her petition for leave to remove the children on April 4, 1990. Karen married Guilbault in June and lived with him in Humboldt. Karen and the children returned to Batavia for the hearing and to begin school. Following the hearing, the court denied Karen’s petition. This appeal followed.

Leave to remove a child from the State of Illinois is governed by section 609 of the Illinois Marriage and Dissolution of Marriage Act (Act), which states in relevant part:

“(a) The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal.” (Ill. Rev. Stat. 1989, ch. 40, par. 609.)

On review, a strong and compelling presumption exists in favor of the trial court’s determination; this court will not disturb the trial court’s judgment unless that judgment results in manifest injustice or is against the manifest weight of the evidence. In re Marriage of Eckert (1988), 119 Ill. 2d 316, 330.

The trial court found “that the testimony has established only that there would be a neutral impact upon the children by a move” and that “[t]he evidence here is not sufficient to meet that burden” set out in section 609 of the Act. Therefore, it denied the petition.

Karen now contends that the trial court’s judgment was against the manifest weight of the evidence. The court heard testimony that Jamie “religiously” exercised his visitation rights and often attended or was involved in the children’s extracurricular activities. Most members of the children’s extended family, including those on Karen’s side, live in Illinois, many not far from the children’s Batavia home. Jamie had remarried approximately 2V2 years before the hearing, and the children had a good relationship with Jamie and his wife.

Karen testified that she had visited Guilbault for a total of approximately 25 days over the course of a year before she decided to marry him. The children only had about 10 days’ contact with Guilbault before their mother’s marriage. Karen also testified about the living conditions and environment in Saskatchewan. Humboldt is a rural community of about 5,000 people located approximately 1,300 miles from Chicago and 200 miles from the Unites States’ border. Saskatoon, a metropolitan area of approximately 185,000 people, is about 60 miles away, and Regina, capital of Saskatchewan, is about 140 miles away. Karen testified that cultural events were available in both of those cities. Guilbault owned a five-bedroom home on a large lot in Humboldt within walking distance of the Humboldt schools. Karen testified that the Humboldt schools were comparable to the Batavia schools in curriculum, facilities and extracurricular activities. Karen also testified that Guilbault earned approximately $100,000 Canadian (approximately $86,800 American at that time) and that she had arranged a job in Humboldt, contingent upon emigration, that would pay her $26,000 Canadian; she earned $24,000 American at her job in the United States. Finally, Karen testified that the quality of her life, and that of the children, would be greatly enhanced by the move to Humboldt, since a family unit would be created, and she could live with the man she loved.

Jamie testified to some of the difficulties the children would encounter because of such a move, including adapting to a new culture and a rural environment, leaving friends and family far behind, and traveling between Humboldt and Chicago, a difficult proposition because of expensive and limited air transport between Chicago and Saskatchewan. Jamie also pointed out differences between the educational systems, such as the fact that American history is not taught in Canada and that only 45% of the children in Humboldt attend college. He also stated that removal of the children to Humboldt would damage his ability to maintain quality time spent with his children; the offer of extended visitation in the summer was not comparable to the current system of visitation every other weekend.

The court also conducted in camera interviews with the children. Allison, age 14, told the court that she had a good relationship with both parents and their spouses. She stated that she would miss her father and her friends if she moved to Canada, but she was “getting bored with” Batavia and wanted to move to Canada. She also told the court that her decision had nothing to do with wanting to stay with her mother:

“I mean if my dad was moving up to Canada, I would want to move up there because I just think — I think it’s a different place and stuff.”

When asked by the court how she would decide this case, Allison said, “It would be a hard question. I don’t know.”

Robbie, age 12, also stated that he wished to move to Canada “[b]ecause it’s fanner [sic] up there and a new experience.” He would be “[a] little upset” if he remained in Batavia with Jamie, but he “would get over it.” He also told the court that he would miss Jamie and his friends if he moved to Canada.

A determination of the best interests of a child must be made on the factual circumstances of each case, not on the basis of a bright-line test. (Eckert, 119 Ill. 2d at 326.) In Eckert, our supreme court enunciated the following several factors to consider in determining the best interests of a child:

“The court should consider the proposed move in terms of likelihood for enhancing the general quality of life for both the custodial parent and the children. [Citations.] The court should also consider the motives of the custodial parent in seeking the move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation. [Citations.] Similarly, the court should consider the motives of the noncustodial parent in resisting the removal. [Citation.] It is also in the best interests of a child to have a healthy and close relationship with both parents, as well as other family members. Therefore, the visitation rights of the noncustodial parent should be carefully considered. [Citations.] Another factor is whether, in a given case, a realistic and reasonable visitation schedule can be reached if the move is allowed. [Citation.]” (Eckert, 119 Ill. 2d at 326-27.)

Karen first argues that the court failed to apply properly the Eckert factors in that it failed to consider the enhancement in Karen’s quality of life that would result from removal of the children to Humboldt. Karen admits that the court stated that it considered the effect of the proposed move on the quality of life for both the children and Karen. However, Karen then points out that the court did not specifically mention the effect on Karen’s quality of life in its oral decision; therefore, according to Karen, the court did not properly apply the Eckert standard. We disagree.

We first note that the court stated:

“It is beyond the scope of this oral decision to recite in full detail all of the facts that were heard and considered by this court in reaching its decision and the same is not necessary.
But for the help of counsel and the parties, and for anyone reviewing the record, I would like to make the following comments.”

The fact that the court did not list specifically the impact on Karen’s quality of life, and thus that of the children, does not mean that the court did not consider it. The court specifically stated that it considered the factors set out in Eckert; the court is not required to announce the weight and significance it attaches to all evidence heard. A brief statement indicating the court’s decision and its reasons for reaching that decision is sufficient. (See People v. Lieberman (1989), 186 Ill. App. 3d 277, 282.) We conclude that the court properly considered the “quality of life” factor set out in Eckert.

Karen next argues that the court’s ruling was against the manifest weight of the evidence because the legislature has expressed a strong presumption in favor of continuing existing custodial relationships. She contends that the denial of her petition for removal would of necessity cause a change in the children’s custody. To support this argument, Karen cites section 610(b) of the Act, which is concerned with modifications of custody judgments. (See Ill. Rev. Stat. 1989, ch. 40, par. 610(b).) While admitting that a removal petition is not a petition to modify (see In re Marriage of Gratz (1989), 193 Ill. App. 3d 142, 150), Karen states:

“[T]he practical consequences of granting or denying the petition here can not [sic] be ignored ***. [She] had thus made a strong irrevocable commitment to the move and it was clear she intended to move to Humboldt whether the removal petition was granted or denied. Therefore, denial of the petition necessarily meant a change in custody.”

The only reason that a change of custody would occur in this case is because Karen has made an “irrevocable commitment” to move, even though the court determined that the move was not in the best interests of the children. Karen, in her own brief, argues that the decision was made to move even if the children could not come with her. Custodial parents and their spouses must remember that they do not make decisions in a vacuum. Decisions must be made in an environment in which the best interests of the children are paramount. This State’s courts are in place to protect the children’s interests and will not be intimidated or threatened by “irrevocable” actions of parents. Karen has made her choice to move to Humboldt. She must now live with the consequences of that decision. The presumption of section 610 of the Act is not applicable here. The preservation of the existing family unit is an element to be considered in determining the best interests of the children, but it is only one of many elements. We do not conclude that the court’s decision was against the manifest weight of the evidence in light of this argument.

Karen further argues that the court’s ruling was against the manifest weight of the evidence because the move would substantially improve the quality of her own life. While we do not dispute the obvious benefits that would accrue to Karen if she were allowed to remove the children to Humboldt, we conclude that Karen misconstrues the Eckert decision and overstates the importance of the impact of the move on her own quality of life. The trial court’s focus at all times remains on the best interests of the children. The increase in the custodial parent’s quality of life is only important insofar as it increases the children’s quality of life and furthers the children’s best interests. Karen cites a string of cases for the proposition that a woman’s wish to live with her husband was sufficiently compelling to warrant removal of children from the State. Four of these cases, In re Marriage of Shalashnow (1987), 159 Ill. App. 3d 760, In re Marriage of Lichtenstein (1986), 139 Ill. App. 3d 881, In re Marriage of Brady (1983), 115 Ill. App. 3d 521, and In re Marriage of Feliciano (1981), 103 Ill. App. 3d 666, were decided prior to Eckert and employed a lesser burden of proof explicitly rejected in Eckert. (See Eckert, 119 Ill. 2d at 325-26.) These cases are of no value. We further wish to repeat here that the best interests of a child must be determined on the facts of each case, not by a bright-line test (Eckert, 119 Ill. 2d at 326); therefore, citation to and discussion of prior removal cases is of little value in determining whether removal should be allowed. However, we wish to comment on In re Marriage of Gratz (1989), 193 Ill. App. 3d 142, cited by Karen. Gratz is distinguishable from the case before us, as this court therein cited health benefits accruing to both the child and the spouse resulting from the removal of the child to Arizona. However, Karen argues that the health factors were not the motivating factor behind the decision but “were developed solely to provide justification for the move which was motivated by the desire of the custodial parent to move with her spouse to Arizona.” We are unaware of how Karen gained this insight and furthermore note that this court based its decision on the evidence present in the record, not on a secret motivation of one of the parties. Karen also cites In re Marriage of Taylor (1990), 202 Ill. App. 3d 740, and In re Marriage of Zamarripa-Gesundheit (1988), 175 Ill. App. 3d 184, two cases which do rely to a great extent on the reasoning that a positive effect on the custodial parent’s quality of life, which indirectly enhances the children’s quality of life, is enough to prove the move to be in the child’s best interest. For example, in Zamarripa-Gesundheit, the court stated:

“[T]he move would enhance the general quality of life for the family because, in Martin’s opinion, Seattle is the place he wants to raise a family. Because Susan wants to be with her husband, we can only conclude that the couple and therefore the family which consists of Martin, Susan, and Dafna will be happier by allowing removal. If removal was denied and Martin chose to remain in Illinois with his wife, he would be frustrated at not being able to pursue what for him is best for his family. If Martin moves to Seattle and removal is denied, then Susan is left with the choice of leaving Dafna behind or letting her new husband go ahead without her.” (Zamarripa-Gesundheit, 175 Ill. App. 3d at 189.)

To the extent that Taylor and Zamarripa-Gesundheit rely on the rationale that the increase in the custodial parent’s quality of life is sufficient to prove a removal to be in a child’s best interests, we reject those cases and their rationale. It is virtually impossible to envision a situation wherein the custodial parent does not wish to live with a new spouse. If the obvious happiness the spouse would receive from being able to live with a new spouse were sufficient to prove removal in the child’s best interests, court supervision of the proceedings would be unnecessary, and at best, ceremonial. A custodial parent must prove more than his or her own desire to live with a new spouse to prove that a child’s best interests will be served by removal. The court here properly considered the benefit to Karen and included it in its equation that resulted in a neutral impact upon the children’s best interests. The court did not err in its consideration. The court here held that “viewing this evidence as a whole,” including the impact on Karen’s quality of life, “there would be a neutral impact upon the children” by allowing the removal. We conclude that the trial court properly considered the impact of removal on Karen’s quality of life, along with other factors, in determining the best interests of the children. Therefore, it committed no error.

Karen raises other arguments that fall trader the heading of “against the manifest weight of the evidence,” including the increased standard of living to be allegedly achieved by living in Humboldt and the wishes of the children to move to Humboldt. Our thorough review of the record leads us to conclude that the court adequately considered these factors and made its decision in accordance with the weight of the evidence. An increased standard of living, while beneficial to the children, will occur in almost every case of remarriage, as another income is added to the family. While it must be considered, it cannot alone be determinative. As to the children’s wishes, the court stated that it “considered] the wishes of the children in this regard as expressed to this court.” The court found those wishes “not controlling,” but further stated that it would give those wishes “the appropriate weight.” From the record, we cannot conclude that the court did not adequately consider the children’s wishes. In addition, the testimony of the children does not show that their wishes to move were strong or based on anything other than achieving a change of scenery. We conclude that the court adequately considered the children’s wishes.

Finally, Karen argues that reasonable alternative visitation was available. The court heard testimony regarding the difficulty of air travel between Humboldt and Chicago and also Karen’s offer to drive the children to Chicago for extended summer visits. Karen proposed visitation of six weeks in the summer, alternating Christmas and spring break vacations and three to six days when Jamie was in Regina, Saskatchewan, on business. Taking Karen’s calculations at face value, this totals 58 days’ visitation annually. Jamie’s current visitation includes alternating weekends from Friday evening to Sunday evening, summer vacation of one to two weeks and five holiday visitations for a total of 71 days. Karen offers 18% fewer days, substantially fewer than under the existing visitation. While an exact day-for-day rescheduling of visitation is not always possible or necessary, a reduction of visitation by almost one-fifth is substantial. In light of this discrepancy and the aforementioned difficulty in travel between the two cities, we conclude that the trial court’s decision was not against the manifest weight of the evidence, as the court could easily find the required changes in visitation unreasonable and unrealistic under the Eckert criteria.

For these reasons, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

GEIGER and INGLIS, JJ., concur.


author: PRESIDING JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROGER A. BYRD, Defendant-Appellee.
    Fourth District
    No. 4—90—0804
    Opinion filed June 26, 1991.

      Richard J. Ringhausen, State’s Attorney, of Jerseyville (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    5. Russell Meyer, of Alton, for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Defendant Roger A. Byrd was charged with driving under the influence of drugs, alcohol, or a combination thereof (DUI), and driving with a breath-alcohol concentration of 0.10 or more. (Ill. Rev. Stat. 1989, ch. 951/2, pars. 11 — 501(aX4), (aXl)O The trial court granted defendant’s motion to suppress the result of defendant’s breath test. The State appeals from and we reverse the suppression order.

On April 29, 1990, two officers of the Grafton police department stopped at Cassen’s Bait Shop to use the restroom. As the officers were leaving, they observed a pickup truck driven by the defendant back into another vehicle in the parking lot. As Officer Jones approached the defendant, he noticed that defendant was staggering and smelled strongly of alcohol. The defendant failed a field-sobriety test. After Officer Jones gave defendant the standard motorist’s warning (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.1(c)), defendant consented to a breath test. The test disclosed an alcohol concentration of 0.17. Officer Jones issued two citations and retained the defendant’s license.

The cause proceeded to a hearing where the statutory summary suspension of defendant’s license was rescinded. At a later hearing, defendant moved to suppress the results of the breath test because he was apprehended on private property. The trial court granted defendant’s motion, reasoning that defendant was misadvised as to the consequences of his refusal to take a breath test.

On appeal, the State contends that the trial court erred in suppressing the breath-test result because, in a DUI prosecution, a trial court is not required to determine whether the defendant voluntarily consented to the test. We agree.

Prior to 1982, section 11 — 501(c)(3) of the Illinois Vehicle Code (Vehicle Code), provided that “[ejvidence based upon a chemical analysis of blood, urine, breath or other bodily substance shall not be admitted unless such substance was procured and such analysis made with the consent of the person as provided by this Chapter.” Ill. Rev. Stat. 1981, ch. 95V2, par. ll-501(cX3).

In People v. Todd (1975), 59 Ill. 2d 534, 322 N.E.2d 447, our supreme court criticized the consent requirement of section 11 — 501 and recognized that police officers may constitutionally seize bodily substances from a defendant when probable cause is present and the evidence may quickly dissipate:

“This is an unfortunate result and a cruel anomaly. Since Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826, it is clear that a compulsory blood test does not violate any constitutional rights of an individual merely because he objected to such tests. Further, the absence of a formal arrest may not taint a limited search, given probable cause and evidence that may dissipate. (See Cupp v. Murphy (1973), 412 U.S. 291, 36 L. Ed. 2d 900, 93 S. Ct. 2000.) A number of cases, dealing specifically with the question of blood tests and the removal of blood from a person without consent, have upheld the constitutional right to do so even where the person was unconscious and, in some cases, without a formal arrest so long as probable cause is present. [Citations.]
Thus, absent a more limiting statutory provision, the taking of a blood sample does not require the consent of the donor.” (Todd, 59 Ill. 2d at 544-45, 447 N.E.2d at 453.)

As the consent requirement of section 11 — 501 was abolished by the General Assembly effective January 1, 1982 (Pub. Act 82 — 311, §1, eff. Jan. 1, 1982 (1981 Ill. Laws 1734, 1735)), this statute no longer provides a restriction on compulsory tests of bodily substances.

This court has also recognized that compulsory testing would be permissible under Schmerber absent a statutory limitation. (People v. Frazier (1984), 123 Ill. App. 3d 563, 463 N.E.2d 165.) In Frazier, this court interpreted a prior codification of section 11 — 501.1(c) of the Vehicle Code which provided, “if a person under arrest refuses upon the request of a law enforcement officer to submit to a test *** none shall be given.” (Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 501.1(c).) This court concluded that section 11 — 501.1(c) expressed “the legislature’s decision to prohibit involuntary blood and breath tests, though they would be constitutionally permissible under Schmerber v. California.” Frazier, 123 Ill. App. 3d at 566, 463 N.E.2d at 168.

Like the consent requirement set forth in prior codifications of section 11 — 501, the prohibition on involuntary blood and breath tests prescribed in section 11 — 501.1(c) has been legislatively abolished. The current codification of section 11 — 501.1 articulates the civil consequences of a refusal to submit to testing, but in no way suggests that consent is a requirement for the admissibility of test results in a DUI prosecution. See Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.1.

In the absence of any statutory limitations, we need only determine whether the administration of a breath test without the defendant’s informed consent ran afoul of constitutional safeguards. Warrantless and involuntary tests of bodily substances do not violate any constitutional rights so long as the search is supported by probable cause, the evidence is of an evanescent nature, and the means and procedures employed in taking the substance are reasonable. (See Cupp v. Murphy (1973), 412 U.S. 291, 36 L. Ed. 2d 900, 93 S. Ct. 2000; Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826; People v. Todd (1975), 59 Ill. 2d 534, 322 N.E.2d 447.) In the instant case, the record reveals sufficient probable cause to support the use of a breath test. Two police officers observed the defendant back his truck into a parked vehicle. When the defendant exited his truck, he staggered and smelled strongly of alcohol. Further, the evidence is evanescent in nature. Alcohol in the bloodstream of a DUI suspect begins to dissipate shortly after drinking stops. There is no time to seek out a magistrate and secure a warrant. (Schmerber, 384 U.S. at 770-71, 16 L. Ed. 2d at 920, 86 S. Ct. at 1836.) Finally, a breathalyzer test is a minimal intrusion and a reasonable means to measure a suspect’s blood-alcohol level.

We conclude that defendant’s consent, informed or otherwise, was not statutorily or constitutionally required for the arresting of&cer to administer a breath test. Therefore, the trial court’s order suppressing the results of the breath test because the defendant was misadvised as to the consequences of refusal was manifestly erroneous.

Reversed.

STEIGMANN and KNECHT, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    DWIGHT FITT, as Ex’r of the Estate of Duane Fitt, Deceased, Plaintiff-Appellant, v. THE CITY OF MATTOON et al., Defendants-Appellees.
    Fourth District
    No. 4—90—0661
    Opinion filed June 26, 1991.

      Fritzshall & Gleason, of Chicago (Rick A. Gleason, of counsel), for appellant.
    Sebat, Swanson, Banks, Garman & Townsley, of Danville (Ralph J. Swanson, of counsel), for appellee City of Mattoon.
    William A. Sunderman, of Brainard, Bower & Kramer, of Charleston, for appellee County of Coles.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff’s decedent Duane Fitt died in an automobile accident on September 9, 1988, at the intersection of Illinois Route 45 and County Road 400 in Mattoon, Illinois. Plaintiff Dwight Fitt filed an action against defendants City of Mattoon (City) and County of Coles (County), alleging, inter alia, their negligent maintenance and control of the intersection caused the death of Duane Fitt. The trial court entered summary judgment for defendants, finding the defendants owed no duty to plaintiff’s decedent and the proximate cause of the accident was the negligence of a third party. Plaintiff appeals the summary judgment orders. We affirm.

The following facts are undisputed. Illinois Route 45 is a four-lane highway with two northbound lanes and two southbound lanes separated by a median strip. This road intersects in the City with County Road 400, a two-lane road extending in an east-west direction. County Road 400 is regulated by stop signs erected in traffic islands situated on the east and west edges of Route 45 where it intersects County Road 400. The stop signs were originally erected by the State in the 1960’s and have since then been maintained by the State and under State control. County Road 400 to the east of Route 45 is under the control and jurisdiction of the County and County Road 400 to the west of Route 45 is maintained by the City.

On September 9, 1988, Wilbur Smith was traveling in an easterly direction on County Road 400 in a half-ton pickup. The weather was clear and the roads were dry. Smith stopped at the stop sign at the intersection of Route 45 for approximately 15 seconds, looked for other traffic on Route 45, and saw one yellow car traveling south in the westernmost lane of Route 45 with its right turn signal activated to turn west at the intersection. Smith began to cross the southbound lanes of Route 45 before the yellow car completed its right turn. Smith was halfway across the inside passing lane of the southbound lanes when plaintiff’s decedent’s motorcycle struck the driver’s side of the pickup near the back wheels. Smith stated he never saw the motorcycle or heard any squealing before the impact.

In his complaint, plaintiff alleged defendants (1) possessed, operated, managed, maintained, or controlled the traffic control signage and devices at the intersection, including the signage on County Road 400; (2) knew the traffic control devices provided at the intersection were inadequate and improper for providing safe movement of traffic; and (3) were negligent in (a) failing to maintain or inspect the intersection, (b) allowing the intersection to become dangerous due to inadequate traffic control signs, (c) failing to provide adequate traffic control devices at the intersection, and (d) failing to warn of the existence of unsafe and dangerous conditions at the intersection. Further, plaintiff alleged the accident was a direct and proximate result of defendants’ acts and failures to act.

Each defendant filed a motion for summary judgment contending it was undisputed that each had no duty to control or manage traffic control devices at the intersection which were exclusively controlled and maintained by the State. Further, the defendants asserted the evidence established, as a matter of law, that the proximate cause of the accident was the negligence of Wilbur Smith. In support of their motions, defendants presented the deposition testimony of various State, County, and City officials familiar with the management and control of the intersection of Route 45 and County Road 400.

Murray Walker, the street superintendent for the City, testified the intersection of Route 45 and County Road 400 is within the city limits of Mattoon. Walker stated the city council and police department have jurisdiction over the replacement and maintenance of traffic control devices within the city limits but the City does not perform any such work at the intersection. Walker stated the State was responsible for the placement and regulation of the traffic devices on Route 45 and either the County or the Township of Mattoon or Paradise was responsible for traffic signs on County Road 400. Walker stated the City and State police as well as the county sheriff could issue tickets in the intersection. Walker stated the City had the responsibility for maintaining the surface of the roads at the intersection but not the traffic signs. Walker admitted the intersection was safer after traffic lights were installed after this accident and also that the City entered into an agreement in November 1988 with the State to maintain the lights and the intersection. Walker stated the agreement provided the City was responsible for repairing the lights, with the bill for any repair going to the State. Before the agreement, the City had no responsibility for maintenance of the traffic signs at the intersection. Walker assumed the State installed the stop sign which was at the intersection at the time of the accident.

Randall Malone, superintendent of highways for the County, testified the intersection was within the county limit and County Road 400 to the east of Route 45 is a county road while to the west it is a City road. Regarding County Road 400, one mile to the west of Route 45, but excluding the intersection, the City or Township of Mattoon is responsible for the erection and placement of signs. Malone stated he was the person who decided whether to erect or maintain traffic control signs and devices on county roads in the County. While County Road 400 to the east of Route 45 is a county road, according to State policies, it is not a county road within the county system up to the point where it meets and intersects with Route 45. Malone viewed an exhibit displaying the intersection of Route 45 and County Road 400 and concluded the areas on County Road 400 including the final approach on this road to Route 45 to the east and west were maintained by the State, not the local authorities, as was the very center of the intersection of the two roads. The State’s maintenance responsibilities in these areas included erection of traffic signs. Within these areas, the County was prohibited from putting up signs but could change the road surface with the State’s permission. Beyond the areas on County Road 400 to the east and west which were maintained by the State, the County could put up signs which would be for County purposes, such as a curve sign to the east or a stop sign for the frontage road. Malone stated the area of the intersection maintained by the State is State property and the County needs the State’s permission to erect any signs. The State is responsible for erecting signs protecting State roadways and these signs include stop signs, traffic lights, and “stop ahead” signs. Malone stated the County entered into an agreement with the State after the traffic lights were put at the intersection but this agreement was different from the agreement regarding general maintenance in effect previously.

Carroll Thomas Dunn, chief of the Bureau of Traffic (Bureau) for the Illinois Department of Transportation, testified the County maintains County Road 400, also known as highway 19, to the east of the intersection with Route 45 and the City maintains the road to the west. Dunn stated “maintenance” includes only signs in advance of the stop sign at Route 45. Dunn stated the State maintains Route 45 including where it intersects with County Road 400. On September 9, 1988, Dunn stated there were stop signs on Route 45 controlling the northbound and southbound traffic which were installed by the Bureau. Dunn described the State’s right-of-way, which extends 40 feet to the east and west of Route 45 on County Road 400 and within which the State retains jurisdiction to install signs. The City and County may not put up any signs in this area which conflict with the State’s stop signs. Outside the right-of-way, the City and County are free to install signs without State permission. The State installed the signs on the traffic islands at the intersection in the 1960’s and continued to control them up to the day of the accident. Dunn admitted there is an area in the intersection which is within State jurisdiction but is maintained by local authorities. Technically, the local authorities have the jurisdiction to place signs in these areas, but Dunn stated the State will not allow the local authorities to erect any signs. The local authorities would have to explain why it was necessary that a sign be erected and if the State was persuaded, the State would erect the sign at no cost to the local authorities.

Dunn stated the Bureau inspects every traffic sign within a district two times a year and evaluates every year all of the State’s highways to determine which ones had a higher than average accident rate. This intersection was identified by the State as a high accident location for the first time in 1983. Dunn was familiar with the Route 45-County Road 400 intersection as he had travelled through it four times a year on inspection trips. In January 1988, Paradise Township wrote to the State asking that lights be installed at the Route 45-County Road 400 intersection. While Dunn did not think this intersection was any more dangerous than any other in the district, he stated it was safer after left-turn lanes and traffic lights were installed after this accident in late 1988. Dunn emphasized the City and County have no authority to install traffic lights or other traffic control devices at the intersection without the State’s permission and, if the State decided traffic control devices were necessary, it would install them. Dunn was not aware of the City or County ever asking that traffic signs be installed at the intersection. Dunn wrote a letter to Malone in April 1988 conveying the news that left-turn lanes and traffic lights were proposed for the intersection and the City and County would be responsible for 5% of the cost of construction.

Dunn stated the City and County may maintain the intersection number signs at this intersection in their respective areas on County Road 400. Regarding the maintenance agreement between the State and the City and County, signed after this accident, Dunn stated before this agreement, there were agreements in effect from time to time with local authorities regarding maintenance of the intersection.

In their motions for summary judgment, defendants alleged (1) the evidence established they owed no duty to plaintiff because traffic signage of the intersection was under the exclusive control of the State; (2) section 3 — 104 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act (Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 104) immunized defendants from liability; and (3) the proximate cause of plaintiff’s injuries was the negligence of Wilbur Smith, not the lack of maintenance of the traffic signs at the intersection.

In response to defendants’ motions for summary judgment, plaintiff asserted the evidence established defendants retained some control and jurisdiction over the intersection. Moreover, defendants, who clearly controlled County Road 400 to the east and west of the intersection, had a duty to warn of hazards at the intersection by posting warning signs on County Road 400 pursuant to section 11 — 304 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 951/2, par. 11— 304).

The trial court granted defendants’ motions for summary judgment, finding (1) each defendant owed no duty to plaintiff; (2) section 3 — 104 of the Immunity Act immunized defendants from any liability to plaintiff; and (3) the proximate cause of plaintiff’s injuries was the negligence of Wilbur Smith. On appeal, plaintiff reasserts the same arguments he raised in the proceedings below.

The purpose of summary judgment proceedings is to ascertain whether there is an issue of fact to try and not to try the fact issue. (Fishel v. Givens (1977), 47 Ill. App. 3d 512, 362 N.E.2d 97.) Thus, summary judgment is proper where the pleadings, affidavits, and depositions on file show there is no genuine issue of material fact and, therefore, the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005; Kroll v. Sugar Supply Corp. (1983), 116 Ill. App. 3d 969, 452 N.E.2d 649.) The trial court must construe the pleadings, affidavits, and depositions in the light most favorable to the nonmoving party. (Wilmere v. Stibolt (1987), 152 Ill. App. 3d 642, 646, 504 N.E.2d 916, 918.) Summary judgment will not be reversed absent an abuse of discretion by the trial court such that the plaintiff’s right to fundamental justice is violated. West v. Kirkham (1991), 207 Ill. App. 3d 954, 958, 566 N.E.2d 523, 525.

In a negligence action, the question of duty is one of law decided by the trial court. (Griglione v. Town of Long Point (1989), 184 Ill. App. 3d 20, 539 N.E.2d 1348.) Similarly, the question of the division of responsibility between various governmental agencies for road maintenance is generally one of law for the courts. Bentley v. Saunemin Township (1979), 77 Ill. App. 3d 598, 602, 396 N.E.2d 285, 288.

At the outset, we discern there are two questions involved in ascertaining whether defendants owed plaintiff a duty: whether the defendants maintained any jurisdiction over the intersection and what jurisdiction over County Road 400 the defendants retained. While a negative answer to the former may absolve defendants of liability in the intersection, the second question must also be considered. See Heintz v. Vorwerk (1983), 115 Ill. App. 3d 899, 451 N.E.2d 551.

Plaintiff first argues summary judgment was improper because Dunn’s testimony regarding two schematic diagrams of the intersection, which were admitted into evidence, established the defendants have authority to erect traffic signs in the intersection. Plaintiff distorts the evidence. Dunn’s actual testimony was that the City and County could erect signs on County Road 400 in advance of the intersection but they had no authority or jurisdiction to maintain or control the stop signs erected at the intersection by the State, or to erect any other traffic signs in the intersection. As to the diagrams, Dunn testified the defendants had “jurisdiction” to erect signs in the intersection, which was described as “State jurisdiction maintained by locals,” but the State would not allow the defendants to erect any signs in this area. The evidence was undisputed that the responsibilities of the City and County in the intersection and on County Road 400 immediately adjacent to Route 45 extended only to the maintenance of the road surface. Section 11 — 303 of the Code provides the State is responsible for placing and maintaining traffic control devices on State highways and local authorities may not erect any traffic control signs on such highways without permission of the State. (Ill. Rev. Stat. 1989, ch. 95*12, par. 11 — 303.) The fact that each party’s law enforcement officials could enforce traffic laws in the intersection is irrelevant to the issue of who had the responsibility and duty to maintain traffic control devices at the intersection.

Plaintiff also contends summary judgment was improper because defendants have a duty under section 11 — 304 of the Code to erect warning signs on County Road 400 in advance of the intersection. Section 11 — 304 provides:

“Local authorities and road district highway commissioners in their respective maintenance jurisdiction shall place and maintain such traffic-control devices upon highways under their maintenance jurisdiction as are required to indicate and carry out the provisions of this Chapter, and local traffic ordinances or to regulate, warn, or guide traffic. All such traffic control devices shall conform to the State Manual and Specifications and shall be justified by traffic warrants stated in the Manual. Placement of traffic-control devices on township or road district roads also shall be subject to the written approval of the County Superintendent of Highways.” (Ill. Rev. Stat. 1989, ch. 95*k, par. 11-304.)

This section, which requires local authorities to post signs to regulate, warn, and guide traffic on highways under their maintenance jurisdiction, “imposes an obligation on local authorities to warn motorists of those hazards which are incident to that portion of a highway which remains under local maintenance jurisdiction.” (Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 448, 404 N.E.2d 213, 219.) Here, the only portions of the highways involved in this case which remained under the local jurisdiction of the defendants were those areas beyond 40 feet to the east and west of Route 45 on County Road 400. In these areas, the defendants could post signs such as curve signs or a stop sign at the frontage road.

While section 11 — 304 of the Code imposes an obligation on local authorities to post warning signs, section 3 — 104 of the Immunity Act immunizes local authorities from any tort liability for failing to fulfil this duty. Section 3 — 104, which was substantially changed effective November 25,1986, provides:

“Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to initially provide regulatory traffic control devices, stop signs, yield right-of-way signs, speed restriction signs, distinctive roadway markings or any other traffic regulating or warning sign, device or marking, signs, overhead lights, traffic separating or restraining devices or barriers.” (Ill. Rev. Stat. 1989, ch. 85, par. 3-104.)

Plaintiff argues this provision does not provide defendants with immunity because his complaint does not allege defendants failed to initially provide traffic control devices in the intersection. As stated, defendants have no control or jurisdiction to erect any traffic control devices in the intersection. Plaintiff does not address the effect of this provision on defendants’ obligation to provide warning signs on County Road 400 in advance of the intersection. However, we conclude section 3 — 104 provides defendants with the complete defense of immunity from liability to plaintiff for failure to act in accordance with section 11 — 304 of the Code. While we agree with plaintiff that the Immunity Act, being a derogation of the common law, must be strictly construed against the local public entity (Davis v. Chicago Housing Authority (1988), 176 Ill. App. 3d 976, 979, 531 N.E.2d 1018, 1020, quoting Reynolds v. City of Tuscola (1971), 48 Ill. 2d 339, 270 N.E.2d 415), where the language of a statute is clear, the court must give it effect. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 469 N.E.2d 167.) We find no ambiguity in section 3 — 104.

Plaintiff relies on Janssen, where the supreme court determined local authorities were liable under sections 11 — 303 and 11 — 304 of the Code (Ill. Rev. Stat. 1973, ch. 951/2, pars. 11 — 303, 11 — 304) for failing to warn of hazards on a State road which was under the jurisdiction of State and local authorities. The hazard in Janssen was adjacent to the roadway and not within the control of the local governmental unit. Janssen is distinguishable first on its facts and second, and more importantly, because the law relied upon in part by the court has changed significantly. In Janssen, unlike here, the road involved was subject to the mixed jurisdiction of the State and local authorities. Further, in support of its conclusion, the Janssen court relied on section 3 — 104(b) of the Immunity Act, repealed in 1986, which provided as follows:

“Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to provide traffic warning signals, signs, markings or other devices unless such a signal, sign, marking or device was necessary to warn of a condition which endangered the safe movement of traffic, and which would not be reasonably apparent to or anticipated by a person in the exercise of due care.” (Ill. Rev. Stat. 1973, ch. 85, par. 3-104(b).)

The current version of section 3 — 104 grants immunity to local authorities for failing to initially provide traffic regulating signs and “warning sign, device or marking.” (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 104.) Janssen is of no help to the plaintiff. In Newsome v. Thompson (1990), 202 Ill. App. 3d 1074, 560 N.E.2d 974, the court concluded Janssen is no longer controlling because section 3 — 104 contains a broadened version of former subsection (a) and immunizes Illinois municipalities from liability for failing to post any traffic warnings. We agree with the Newsome court and find the trial court properly found defendants immune from liability to plaintiff based on section 3 — 104 of the Immunity Act.

In his reply brief, plaintiff asserts Newsome is not well reasoned and this court should follow Dinges v. Gabardi (1990), 202 Ill. App. 3d 732, 560 N.E.2d 21. In Binges, a case arising under the current version of section 3 — 104, the plaintiff alleged, inter alia, that the local authorities failed to warn motorists that a stop sign on a county road at an intersection with a State road had been knocked down. Plaintiff further alleged that when she traveled through the intersection, there was no stop sign and she did not see the downed stop sign. The local authority in Binges raised section 3 — 104 as an affirmative defense. The trial court agreed with the defendant and dismissed plaintiff’s complaint. The Second District Appellate Court reversed, finding Janssen was still good law and that those decisions interpreting former section 3 — 104(a) (Ill. Rev. Stat. 1985, ch. 85, par. 3 — 104(a)), which was “virtually identical” to the current version of section 3— 104, were controlling.

We find Binges is distinguishable on its facts and disagree with its analysis of the law. In the case presented, there is no evidence that the stop sign at the intersection was not seen or obeyed by Smith. As to the law applied in Binges, that court found former section 3 — 104(a) was “virtually identical” to section 3 — 104. We disagree and note former section 3 — 104(a) did not provide absolute immunity to local authorities for their failure to post warning signs while the current version of section 3 — 104 expressly grants such immunity. We emphasize the following language added to section 3 — 104 which is otherwise identical to former section 3 — 104(a):

“Neither a local public entity nor a public employee is liable *** for an injury caused by the failure to initially provide regulatory traffic control devices *** or warning sign, device or marking, signs, ***.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 104.)

This language distinguishes Binges, a case arising under this section, from the cases it relied upon which construed former sections 3— 104(a) and 3 — 104(b) (Janssen, 79 Ill. 2d 435, 404 N.E.2d 213; Smith v. County of White (1989), 191 Ill. App. 3d 569, 548 N.E.2d 19; DiOrio v. City of Chicago (1981), 99 Ill. App. 3d 1047, 425 N.E.2d 1223), a fact noted by Justice Geiger in his dissent (Dinges, 202 Ill. App. 3d at 738, 560 N.E.2d at 25 (Geiger, J., dissenting)). As noted, we find Newsome supports our conclusion.

In light of our conclusion on the first issue, a discussion of the proximate cause issue is not necessary.

Finally, plaintiff contends the deposition testimony of Murray Walker did not meet the requirements of Supreme Court Rule 191(a) (134 Ill. 2d R. 191(a)) and, therefore, summary judgment should not have been granted. Rule 191(a) directs, in pertinent part, that affidavits in opposition to a motion for summary judgment shall be made on the personal knowledge of the affiant and shall affirmatively show the affiant, if sworn as a witness, can testify competently thereto. Supreme Court Rule 212(aX4) provides discovery depositions taken under Rule 212 may be used for any purpose for which an affidavit may be used. (134 Ill. 2d R. 212(aX4).) Depositions used in support of or against a motion for summary judgment must comply with Rule 191. Stando v. Grossinger Motor Sales, Inc. (1980), 89 Ill. App. 3d 898, 412 N.E.2d 600.

The City submitted the discovery deposition of Walker in support of its motion for summary judgment. Throughout much of his testimony, Walker stated he either “did not know,” “was unaware,” or “had no idea” in response to the questions posed regarding who was responsible for maintenance in the intersection and on County Road 400. On appeal, the City contends Walker’s testimony was used only to support its contention that it had not maintained County Road 400 immediately to the west of the intersection with Route 45. According to the City, Walker’s testimony on this issue was within his personal knowledge and, thus, properly considered in support of the motion for summary judgment.

We agree with the City. As street superintendent for the City, Walker would have knowledge of the City’s obligations regarding County Road 400 to the west and, therefore, be competent to testify within his knowledge that the City did not perform any maintenance on this portion of the road. Further, even if portions of Walker’s deposition testimony may not comply with Rule 191(a), there was sufficient additional evidence to support the trial court’s order granting summary judgment for the defendant. This fact distinguished this case from Stando, relied upon by the plaintiff.

For the foregoing reasons, the orders of the trial court granting summary judgment for defendants are affirmed.

Affirmed.

GREEN and STEIGMANN, JJ., concur.