source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    JOHN L. ATWOOD et al., Plaintiffs-Appellants, v. WARNER ELECTRIC BRAKE AND CLUTCH COMPANY, INC., Defendant-Appellee (John L. Atwood et al., Plaintiffs-Appellants, v. Ethyl Corporation et al., Defendants-Appellees; Kristopher E. Johnson et al., Plaintiffs-Appellants, v. Ethyl Corporation et al., Defendants-Appellees).
    Second District
    No. 2-91-0930
    Opinion filed December 15, 1992.

      Thomas A. Debra and Harry C. Lee, both of Leonard M. Ring & Associates, of Chicago (Leonard M. Ring, of counsel), for appellants.
    Tressler, Soderstrom, Maloney & Priess, of Chicago (Stephen T. Gross-mark, of counsel), for appellees Ethyl Corporation and Diamond Shamrock & Dow.
    George F. Venci, of Chapman & Cutler, of Chicago (Michael W. Ford, of counsel), for appellee Warner Electric Brake and Clutch Company.
    Roseann Oliver, Suzanne M. Metzel, and John E. Rodewald, all of Pope & John, Ltd., of Chicago, for appellee McKesson Corporation.
    Thomas H. Neuckranz, Alfred A. Spitzerri, and James R. Studnicka, all of Williams & Montgomery, Ltd., of Chicago, for appellee Milwaukee Solvents.
    Peter S. Switzer and Thomas G. Ruud, both of Barrick, Switzer, Long, Balsley & Van Evera, of Rockford, for appellee Viking Chemical.
    Leo J. Sullivan, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellee Harcros Chemical Company.
   JUSTICE DUNN

delivered the opinion of the court:

This cause involves a number of toxic tort cases consolidated for the purposes of discovery. Plaintiffs, approximately 120 residents of Roscoe, Illinois, filed suit against eight defendants, including Warner Electric Brake & Clutch Company (Warner), for damages allegedly sustained as a result of long-term exposure to trichlorethylene (TCE), an industrial cleaning solvent. Plaintiffs appeal pursuant to Supreme Court Rule 308.134 111. 2d R. 308.

The questions certified for appeal are:

“I. Whether the trial court operating under discovery schedule orders and case management orders in these cases consolidated for discovery purposes and involving approximately 120 separate plaintiffs had the authority and/or discretion to:
(A) Require the plaintiffs in this cause to certify by a date certain that each plaintiff’s medical or personal injury claims have been identified and the cause of those claims have [sic] been identified and that the cause of those claims have [sic] been the exposure to materials which are the subject of these cases as required in the order of April 5th, 1990;
(B) Upon failure of the individual plaintiffs to certify as required in subparagraph A above, to order that any medical or personal injury claim that is not fully identified in these reports, including but not limited to prognosis of any injury or disease, and which is not identified as being causally related to the exposure to the materials which are the subject of these cases is barred?
II. Is the order of partial summary judgment of July 12th [sic] 1991, an appropriate manner in determining whether the claims should be barred; and, if so, whether the order was justified under the circumstances of this case?”

In April 1983, the Winnebago County Department of Public Health notified affected residents of Roscoe that the department found high concentrations of TCE and other volatile organic chemicals in the groundwater serving the wells of the community. The department informed residents that TCE had been found to be carcinogenic to animals and, as such, should be assumed human carcinogens. In their complaint, plaintiffs allege defendant Warner operated a manufacturing plant which used TCE in large volume degreasing operations of newly manufactured parts and for cleaning floors and machinery at the plant. Plaintiffs allege the residue water containing TCE was directed through plant drains to untreated lagoons on Warner’s property and percolated through the ground into the aquifer which supplied the City of Roscoe’s fresh water.

Plaintiffs filed the first of these consolidated cases, Atwood v. Warner Electric Brake & Clutch Co., in 1985. In July 1986, in Atwood v. Ethyl Corp. plaintiffs filed suit against the other seven defendants all of which were manufacturers or distributors of industrial solvents. The cases were consolidated for the purposes of discovery.

The first complaints filed in the Warner and Ethyl cases alleged one cause of action against defendants, rather than individual causes of action. On October 1, 1987, the trial court ordered plaintiffs to file individual causes of action in the Warner case. In their second amended complaint, filed January 13, 1988, although plaintiffs complied with the trial court’s order to file individual causes of action, each individual’s allegations merely incorporated identical counts of the complaint. Thus, each plaintiff alleged identical injury. Plaintiffs alleged that through their ingestion and use of the contaminated well water they had been continuously exposed to large concentrations of TCE and other volatile organic chemicals from the time they set up residence in Roscoe through July 1984. Plaintiffs alleged that as a direct result of defendants’ conduct they suffered rashes, dizziness, fatigue and prolonged malaise. They further alleged that through their ingestion of the contaminated water and the inhalation of the contaminated vapors therefrom they had suffered and will continue to suffer

“injury to [the] central nervous system, peripheral nervous system, cardiovascular system, reproductive system, genitourinary system and hypatic damage, and other injuries; that by reason of said injuries sustained, plaintiffs] [have] and will continue to suffer great pain. By reason of said injuries plaintiffs] [have] sustained emotional distress and mental anguish including fear of contracting and dying from cancer.”

On October 1, 1987, the parties entered into a discovery schedule agreement. The court put the agreement into the form of a discovery schedule order. That schedule required in part that plaintiffs produce reports of medical examinations by plaintiffs’ doctors or experts, and that plaintiffs submit to medical examinations by defendants’ doctors or experts before the depositions of the plaintiffs were scheduled. Plaintiffs agreed to produce reports identifying the injuries for approximately one-half of the plaintiffs by October 18, 1987, and for the remaining plaintiffs by February 10, 1988. This schedule was later made applicable to the cases against the remaining defendants.

On December 11, 1989, after plaintiffs received numerous extensions of time to comply with the discovery schedule, plaintiffs produced some, but not all, of the reports identifying their injuries. Because of the tremendous task discovery posed in the case and the delays which ensued, the trial court stated:

“[0]ne thing we may have to consider would be that the plaintiffs file some kind of a certificate, something as to each plaintiff, that you have completed all the examinations and that person is ready to be deposed and that you have provided all the reports so that way we are not going to be going back on anyone. If you have something else you have to get done or you feel needs to be done on a specific person, you get it done.”

The court suggested that defendants file a motion requesting some sort of certification.

On January 10, 1990, defendants filed a motion to compel plaintiffs to certify that each plaintiff had identified personal injury claims. In that motion, defendants requested, pursuant to Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)), that the court set a date certain by which each plaintiff would certify that he or she had identified his or her medical or personal injury claims and the cause of those claims. After hearing arguments and receiving proposed orders from both plaintiffs and defendants, the trial court granted defendants’ motion on April 5,1990.

The April 5 order was entered pursuant to Supreme Court Rule 219(c). (134 Ill. 2d R. 219(c).) It provided in pertinent part:

“IT IS HEREBY ORDERED that on or before July 5, 1990[,] each individual plaintiff and his or her attorney shall certify that:
(a) each plaintiff has been examined by each medical professional that the plaintiff, his or her attorney and/or his or her retained medical professionals], consulting or otherwise, deem necessary to evaluate each individual plaintiff’s medical, or personal injury, [sic] claims causally related to this case;
(b) each plaintiff has identified all of his or her medical, or personal injury, [sic] claims causally related to this case by way of the expert reports.
(c) each plaintiff is ready to be deposed. It is further ordered that any medical, or personal injury, [sic] claim that is not fully identified in these reportsf,] including, [sic] but not limited to, the prognosis of any injury or disease, and which is not identified as being causally related to exposure to materials which are the subject of these cases shall be barred.”

Each plaintiff was required to file a separate certification. The order excluded any newly developed personal injuries not ascertainable at the date of the filing of the certifications.

After plaintiffs were granted a number of extensions of time to file their certificates, the trial court granted its final extension on February 14, 1991. The trial court ordered plaintiffs to file the medical certificates by April 1, 1991. The court admonished plaintiffs that this was their final extension in this regard. Plaintiffs filed a number of certifications by April 1,1991.

On June 5, 1991, defendants filed a number of motions for partial summary judgment, two of which are relevant to this appeal. The first motion sought summary judgment for certain plaintiffs’ personal injury claims included in plaintiffs’ complaint, but not listed in plaintiffs’ certifications. The second motion sought summary judgment for certain claims listed in plaintiffs’ certifications which were not supported by the requisite medical reports.

The trial court granted defendants’ motions on July 8, 1991, and scheduled a hearing for July 12, 1991, to determine the precise language to be used in the order. In granting the motion, the court stated that it looked upon the situation as the enforcement of a prior order rather than a partial summary judgment. On July 12, the trial court entered its order which provided in part that there were no genuine issues of material facts raised by defendants in their motion and that, accordingly, defendants were entitled to judgments regarding those motions as a matter of law.

Specifically, the trial court found that any claims for personal injury not contained in plaintiffs’ medical certifications were dismissed with prejudice, as well as any claims contained in the certifications for which no medical report had been produced. Attached to the court’s order was a listing of plaintiffs’ claims to which the cause of action would be limited. The court also stated that its order was intended to be consistent with and implement the April 5,1990, order.

Plaintiffs sought reconsideration of both the summary judgment order and the April 5, 1990, order. The trial court declined to reconsider either order and certified the issue for appeal.

I

We turn now to our discussion of the first question certified on appeal. The first portion of that question asks:

“I. Whether the trial court operating under discovery schedule orders and case management orders in these cases consolidated for discovery purposes and involving approximately 120 separate plaintiffs had the authority and/or discretion to:
(A) Require the plaintiffs in this cause to certify by a date certain that each plaintiff’s medical or personal injury claims have been identified and the cause of those claims have [sic] been identified and that the cause of those claims have [sic] been the exposure to materials which are the subject of these cases as required in the order of April 5th, 1990[.]”

We conclude that it did.

Under the supreme court rules, trial courts have broad powers to supervise the discovery process. (Amoco Oil Co. v. Segall (1983), 118 Ill. App. 3d 1002, 1012.) The rules make it clear discovery procedures were designed to be flexible and adaptable to the infinite variety of cases and circumstances appearing in the trial court. (Mistler v. Mancini (1982), 111 Ill. App. 3d 228, 232.) Moreover, the increasing complexity and volume of litigation involves frequent recourse to discovery procedures. (Mistler, 111 Ill. App. 3d at 232.) In a case such as this, where the issues are as numerous and complex as the parties are plentiful, it is important to grant the trial court flexibility in managing the discovery process.

Supreme Court Rule 201 gives a trial court the authority to supervise all or any part of any discovery procedure. (134 Ill. 2d R. 201(c)(2).) In addition, Rule 201 grants a trial court the authority to sequence discovery for the convenience of the parties and witnesses and in the interests of justice. (134 Ill. 2d R. 201(e).) Rule 201 also provides that the trial of a case shall not be delayed to permit discovery unless due diligence is shown. 134 Ill. 2d R. 201(f).

Here, the trial court initially required plaintiffs to identify their injuries and produce medical reports in October 1987. When plaintiffs failed to comply with that discovery schedule order after numerous extensions of time, the trial court responded with its order of April 5, 1990, requiring plaintiffs to certify their injuries and causally relate them to exposure or be barred from bringing those claims, pursuant to Rule 219(c). Five years into the litigation, the defendants were still unaware of the exact nature of the claims against them. The trial court determined that it was imperative for plaintiffs to identify their claims and causally relate them to the cause of action before defendants began deposing the large number of plaintiffs’ experts and witnesses. We cannot say the trial court exceeded its authority under the discovery rules by requiring plaintiffs to comply with the April 5, 1990, order or be barred from asserting those claims.

Plaintiffs argue the trial court’s order required them to make a prima facie showing of injury and proximate cause as a condition precedent to discovery and that such a requirement violated their right to due process. We disagree. >

Due process is not a technical concept unrelated to time, place, and circumstances, but, rather, is a flexible concept which calls for such procedural protections as a particular situation demands. (People v. Webb (1989), 182 Ill. App. 3d 908, 912.) Plaintiffs in this case were not denied due process. Defendants attempted to obtain full discovery for nearly five years by means of numerous requests and interrogatories prior to the trial court’s April 5 order. Plaintiffs were given ample opportunity to comply with all discovery orders entered in this case. Because the litigation was making little progress after five years in the discovery stage, the trial court entered an order designed to implement full discovery, not to bar plaintiffs from bringing certain claims against defendants. Such an order did not violate plaintiffs’ right to due process.

Section (B) of the first question certified for review asks whether the trial court had the authority, upon the failure of the individual plaintiffs to certify as required, to order that any medical or personal injury claim that was not fully identified in these reports, including but not limited to prognosis of any injury or disease, and which was not identified as being causally related to the exposure to the materials which are the subject of these cases, be barred. We conclude the trial court acted within its authority.

Discovery rules establish guidelines for a fair and orderly procedure whereby discovery and full disclosure may be accomplished. The rules permit the imposition of sanctions upon a party deemed by the trial court to have abused or disregarded discovery rules or procedures. (Harris v. Harris (1990), 196 Ill. App. 3d 815, 819.) Rule 219(c) provides that when a party fails to comply with an order entered under the discovery rules, the court may enter any just order, including the dismissal of that party’s action, with or without prejudice. (134 Ill. 2d R. 219(c).) The appropriate sanction for a party’s noncompliance is a matter within the broad discretion of the trial court and absent abuse will not be disturbed on appeal. Harris, 196 Ill. App. 3d at 819-20.

Plaintiffs argue the barring of their claims is too drastic a sanction. They argue the courts have found the barring of a claim to be a severe sanction, not to be invoked except where the actions of the parties show a deliberate and willful disregard of the court’s authority. See Gallo v. Henke (1982), 107 Ill. App. 3d 21.

However, Illinois courts are becoming less tolerant of violations of discovery rules, even at the expense of a case being decided on the basis of the sanction imposed, rather than on the merits of the litigation. (Harris, 196 Ill. App. 3d at 820.) Clearly, the purpose of sanctions is to accomplish the goal of discovery, not to punish. At the same time, courts have an interest in promoting the unimpeded flow of litigation. Harris, 196 Ill. App. 3d at 820.

We conclude the trial court acted within its authority under Rule 219(c) and did not abuse its discretion by barring plaintiffs’ claims for which no certifications and medical reports had been filed. While it is true the record does not reveal plaintiffs acted in willful disregard of the trial court’s authority, considering the complex nature of the case and the large number of parties involved, the six-year delay in compliance with the discovery order was excessive and indicative of a lack of diligence or an inability to produce the required information.

II

The second and last question certified for review is whether the use of an order of partial summary judgment of July 12, 1991, was an appropriate manner to determine whether the claims should be barred and, if so, whether the order was justified under the circumstances of this case.

We have concluded the claims for which no certification was filed and claims not supported by the required medical reports were properly dismissed as a sanction under Rule 219(c). Although the trial court granted summary judgment as to these claims, we have the authority to affirm the trial court on any basis supported by the record. (See Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, 148.) However, as to claims defendants asserted were insufficient, despite the fact the required certifications and medical reports were filed, summary judgment may have been proper.

The law is clear that a defendant may move for summary judgment at any time as to all or any part of the relief sought against him or her. (Ill. Rev. Stat. 1991, ch. 110, par. 2—1005(b).) While a plaintiff need not prove his or her case at the summary judgment stage, he or she must at least come forward with enough evidence to adequately create a genuine issue of material fact. (Estate of Henderson v. W.R. Grace Co. (1989), 185 Ill. App. 3d 523, 530.) It is possible plaintiffs failed to establish a genuine issue of material fact regarding certain certified individual claims.

Thus, we conclude the trial court has the authority under Rule 219(c) to bar claims of plaintiffs who failed to file the required certifications and medical reports pursuant to the April 5, 1990, order of the trial court. We also conclude that the use of partial summary judgment proceedings under section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2—1005), and not sanctions under Rule 219(c), is the appropriate procedure to determine summarily the disputed claims of plaintiffs who complied with the April 5, 1990, order by filing certifications and medical reports.

However, the propriety of the summary dismissal of the personal injury claims of each of the plaintiffs who filed the required certifications and medical reports was not certified to us in this appeal, nor do we find the July 12, 1991, order as applied to these plaintiffs to be final and appealable at this time. We therefore do not review the summary dismissal of their individual claims in this appeal.

Accordingly, we affirm the April 5, 1990, order and remand the cause to the trial court for further proceedings consistent with the opinions set forth herein in answer to the questions certified to this court for review.

Affirmed in part; remanded for further proceedings.

INGLIS, P.J., and McLAREN, J., concur.


author: JUSTICE McLAREN

text:
    BONNIE S. BEVERLY, Plaintiff and Counterdefendant-Appellee, v. DAVID J. REINERT, Defendant and Counterplaintiff-Appellant (James L. Haderer et al., Third-Party Defendants-Appellees).
    Second District
    No. 2-92-0121
    Opinion filed December 3, 1992.
    Rehearing denied February 5, 1993.

      Clarence F. Wittenstrom, Jr., and Eric M. Johnson, both of Gromer, Wittenstrom & Meyer, P.C., of Elgin, for appellant.
    James F. Best and Sarah E. Senechalle, both of Fraterrigo, Best & Beranek, of Wheaton, for appellee Bonnie S. Beverly.
    Gilbert X. Drendel, Jr., pro se, and Eugene P. Sullivan, both of Drendel, Schanlaber, Horwitz & Tatnall, of Aurora, for other appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

The defendant and counterplaintiff, David J. Reinert (defendant), appeals from a trial court order dismissing his counterclaim against the plaintiff, Bonnie Beverly, and his third-party complaint against third-party defendants, James L. Haderer and Gilbert X. Drendel, Jr. The defendant alleged that the plaintiff and third-party defendants invaded the defendant’s privacy by publicly disclosing private information. The trial court held that the counterclaim and third-party complaint failed to state a cause of action (see HI. Rev. Stat. 1991, ch. 110, par. 2 — 615).

On appeal, the defendant argues that, according to the standards set forth in Miller v. Motorola, Inc. (1990), 202 Ill. App. 3d 976, his counterclaim and third-party complaint stated causes of action for invasion of privacy.

The plaintiff and the third-party defendants argue that the trial court properly dismissed the complaint because (1) the allegation that Drendel, the plaintiff’s attorney, transmitted certain information to the defendant’s attorney, and ultimately to Haderer, the plaintiff’s brother, via facsimile machine (fax) did not amount to an allegation that such information was publicly disclosed; and (2) the information allegedly disclosed was not private. The plaintiff and third-party defendants also request that we find this appeal frivolous and that we impose appropriate sanctions on the defendant (see 134 Ill. 2d R. 375(b)).

We agree with the trial court that the defendant failed to state a cause of action for public disclosure of private information. However, as Hlinois law has not firmly established the parameters of this tort, we decline to hold that the appeal is frivolous.

The plaintiff began this litigation with a complaint to dissolve a partnership between her and the defendant. She alleged the following. On October 5, 1989, she and the defendant entered into an agreement, later amended, for the purchase and management of a residence at 918 Glen-more in Elgin (918 Glenmore). In accordance with the agreement, they purchased 918 Glenmore, obtained a mortgage, made payments on the mortgage and other relevant expenses. As partners, they managed 918 Glenmore. Since March 19, 1991, the plaintiff and the defendant had been irreconcilably deadlocked over the management of 918 Glenmore; the plaintiff wished to sell the property and the defendant wished to lease it to a third party or parties. Because the defendant would not consent to a dissolution, the plaintiff requested that the court dissolve the partnership, divide the proceeds equitably, and require the defendant to account for all partnership dealings and transactions.

In a second count, for injunctive relief, the plaintiff, a school teacher, alleged that the defendant had attempted to embarrass her in her place of employment and to cause her to be terminated as a teacher. Specifically, she alleged that the defendant: (1) wrongly accused her of removing some of his personal files from 918 Glenmore; (2) unjustifiably demanded the plaintiffs personnel files from the personnel director of her school district; (3) authorized his attorney to inform the plaintiff’s attorney by letter of May 9, 1991, that the plaintiff’s removal of the defendant’s files could be “official misconduct” which might cause her to be terminated; (4) on May 17, 1991, wrote the plaintiff that he intended to disclose to the local board of education and to the press “all of the letters of communication from both attorneys, the police report, letters from you, and documentation from [the mortgage lender] which I think tells the story of a poor school teacher [guilty of improper conduct].”

The defendant moved to dismiss the first count of the complaint and filed an answer to the second count. He also filed a three-count counterclaim against the plaintiff. Count I alleged that the plaintiff had breached an agreement under which she was to pay half of the monthly principal and interest on 918 Glenmore; that she had failed to pay real estate taxes and do maintenance work on the property as agreed; and that, on March 17, 1991, the plaintiff had moved out of 918 Glenmore, saddling the defendant with plaintiff’s share of the obligations since then. Count II alleged that the plaintiff had not fulfilled certain obligations of a contract to work for the defendant’s sporting goods store. Count III alleged that she unlawfully took various of the defendant’s possessions from 918 Glenmore and converted them to her own use.

Finally, the defendant filed a “Counterclaim and Third-Party Complaint for Invasion of Privacy” against the plaintiff and third-party defendants. Defendant alleged that, on May 10, 1991, one or more of these three people sent a fax from Drendel to the defendant’s attorney, Clarence Wittenstrom, Jr. The fax states in part that (1) the defendant’s contact with the regional school board was a malicious attempt to interfere with the plaintiff’s employment, and (2) the plaintiff planned to sue the defendant for this action and for his defamatory claims that the plaintiff had breached contracts and removed his personal files.

The defendant alleged that, on May 9, 1991, Drendel received a fax from the defendant’s attorney. On information and belief, the defendant alleged that either the plaintiff or Haderer, without defendant’s permission, faxed a copy of this letter to Drendel. The defendant alleged finally that, on April 12, 1991, one or more of plaintiff and third-party defendants faxed a letter from Drendel to the defendant’s attorney. In the April 12, 1991, letter, Drendel informed Wittenstrom that the defendant’s conduct had forced plaintiff to vacate 918 Glenmore; that the plaintiff wished that the house be sold and did not authorize the defendant’s attempts to rent out the house; and that the plaintiff would not pay for home repairs that were unnecessary and done without her consent.

The defendant asserted that these communications interfered with his privacy because, as fax technology is unreliable, the communications may have gone to the wrong parties (as a result of mistransmission) or may have been picked up by outside parties with proper receiving equipment. The defendant asserted that the unauthorized transmission and possible dissemination to unintended parties of the faxes had caused him to fear that he would lose the respect of those who knew him.

Attached as an exhibit was the defendant’s affidavit, stating that the defendant’s marriage to Dianne Reinert had been dissolved by judicial order on May 20, 1988; that some time in 1987, the plaintiff and the defendant had become lovers; that on or about August 15, 1987, the plaintiff started employment with the defendant’s sporting goods store; that, on October 6, 1989, the plaintiff and the defendant entered into a trust agreement to purchase 918 Glenmore and take out a mortgage; that on or about October 26, 1989, the plaintiff and her three sons moved into 918 Glenmore; that the defendant built certain improvements to the house and kept his business records there; and that the defendant and the plaintiff cohabited at 918 Glenmore until the plaintiff moved out on March 17,1991.

The plaintiff and third-party defendants moved to dismiss the invasion of privacy claims. They argued that the faxes were not communications to the public at large or to persons with whom the defendant had a special relationship; that the defendant had alleged only that the faxes could have been misdirected, not that any outside parties had actually received the transmissions; and that any facts disclosed were the subject of later litigation and thus not private.

The trial court dismissed the counterclaim and third-party complaint. The defendant moved to reconsider, submitting a proposed amended pleadings on his invasion of privacy claims.

The amended pleadings alleged that, before the plaintiff initiated the litigation, one or more of the plaintiff and third-party defendants faxed letters from Drendel to defendant’s attorney. The letters were dated April 12, 1991, May 10, 1991, and May 24, 1991. On information and belief, the defendant alleged that these faxes were broadcast via satellite. Also on information and belief, the defendant alleged that the plaintiff faxed her letter of May 9, 1991, to Drendel from the offices of her employer, the school district.

The defendant alleged in his amended pleading that the faxes publicized highly private and sensitive matters to “the general public and/or to a particular public,” i.e., Haderer. These sensitive matters included (1) the defendant’s contact with the regional school superintendent; (2) the plaintiff’s threat to sue the defendant for interference with her employment; (3) that the defendant and plaintiff owned a “love nest” at 918 Glenmore; and (4) that the defendant pursued a romantic relationship with the plaintiff.

The amended pleadings alleged that these matters reached members of the public including (1) secretaries in Drendel’s and Wittenstrom’s offices, who broadcast the faxes and thus had special access to the matters contained therein; (2) Haderer, the plaintiff’s brother, whose knowledge of the private matters was “embarrassing and devastating” to the defendant; and (3), on information and belief, unknown individuals in the school district office or Haderer’s insurance office (wherever the plaintiff faxed her May 9,1991, letter) and in Drendel’s law office.

On information and belief, the defendant alleged further that the faxes were sent via satellite and were intercepted by persons whose personal computers were equipped to enable them to receive such transmissions. The defendant alleged that fax transmission is not established as reliably confidential, as faxes are often delivered to the wrong persons.

In addition to the exhibits attached to his original pleading, the defendant attached a copy of the May 23, 1991, fax from Drendel to Wittenstrom. In this fax, Drendel touched on the last two of the four allegedly private matters noted above. Also, Drendel stated that the plaintiff had none of the defendant’s belongings. Haderer and others had helped her move out of 918 Glenmore, and any belongings they had removed inadvertently had been returned to the defendant. Drendel also reminded Wittenstrom that the defendant’s attempts to discredit the plaintiff through the press or the board of education could result in the plaintiff taking legal action.

The court denied the defendant’s motion to reconsider and found that there was no just reason to delay enforcement or appeal of the order (see 134 Ill. 2d R. 304(a)). The defendant timely appealed.

The public disclosure of private information is one species of the tort of invasion of privacy. (Miller, 202 Ill. App. 3d at 978; Restatement (Second) of Torts §652A, at 376 (1977).) We agree with the parties that the first district case of Miller (202 Ill. App. 3d 976) is the principal authority in Illinois on the elements of this cause of action.

In Miller, the plaintiff alleged that her employer had invaded her privacy when, without her authorization, the employer told her co-workers that she had undergone mastectomy surgery. The circuit court dismissed her complaint on the ground that she had failed to state any cause of action for the invasion of privacy. The appellate court reversed and remanded the cause for trial. Insofar as relevant here, the appellate court held that the plaintiff had adequately pleaded a cause of action for the public disclosure of private information.

Miller held generally that, to state a cause of action for the public disclosure of private facts, a plaintiff must allege that (1) the defendant published, (2) private (not public) facts, and (3) the matter published was such that the publicity would be highly offensive to a reasonable person. (Miller, 202 Ill. App. 3d at 978.) In Miller, the defendant conceded that the plaintiff had met the second requirement, and the court concluded without difficulty that, as the matter disclosed was a personal and sensitive one, the plaintiff had adequately pleaded the third element of the tort. Thus, Miller focused its discussion on what a plaintiff must allege to satisfy the requirement of publicity.

Miller adopted a modification of the Restatement’s definition of publicity. Under the Restatement test, there is no “publicity” unless “the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” (Restatement (Second) of Torts §652D, Comment a, at 384 (1977).) Under Miller, egregious conduct resulting in disclosure to a limited audience is actionable if “a special relationship exists between the plaintiff and the ‘public’ to whom the information has been disclosed [such that] the disclosure may be just as devastating to the [plaintiff].” Miller, 202 Ill. App. 3d at 980.

In support of this flexible standard, Miller cited McSurely v. McClellan (D.C. Cir. 1985), 753 F.2d 88, and Beaumont v. Brown (1977), 401 Mich. 80, 257 N.W.2d 522.

In McSurely, the Federal appellate court ruled that under the particularly egregious facts of the case the coercive disclosure of highly sensitive and personal matters to an audience of a single person was actionable. There, the plaintiffs, husband and wife Alan and Margaret McSurely, sued various Kentucky and Federal officials on several grounds. One was invasion of the wife’s privacy. Federal investigators seized the wife’s personal papers, including love letters from before her marriage from columnist Drew Pearson. These letters revealed intimate details of the romance between Pearson and the woman Pearson called “Dearest Cucumber.” The Federal investigator then stood next to Alan McSurely, forcing him to read these letters and other of his wife’s personal papers of which he had previously been unaware. The revelations embarrassed both plaintiffs and eventually helped to undermine their marriage.

In discussing the invasion of privacy claim, a matter of State law, McSurely recognized that Kentucky courts were flexible in applying the Restatement test for publicity. “Egregious conduct” was actionable even where it did not precisely fit the Restatement categories; indeed, even publication to a single person could be actionable. (McSurely, 753 F.2d at 112.) Such was the case here, where the disclosure was particularly cruel and coercive, involved extraordinarily intimate aspects of the wife’s past, and served no legitimate purpose.

Similarly, Beaumont held that the circumstances are relevant to a determination of whether private facts have been “publicized.” Thus, disclosure to a single person could be actionable “publicity” given strong enough circumstances. In Beaumont, the plaintiff was a member of the United States Army Reserve. The defendants, his employers, wrote a letter to the army reserve. These letters severely criticized the plaintiff’s job performance and character. The supreme court of Michigan held that the defendants were not entitled to summary judgment. The court explained that the plaintiff had raised an issue of fact as to whether disclosure to the army reserve administration constituted “publicity.” The court rejected a “numbers game” as a test of “publicity.” (Beaumont, 401 Mich, at 104, 257 N.W.2d at 531.) It reasoned that, even though the derogatory letter was itself addressed only to a single bureaucrat, the plaintiff raised the inference that the letter circulated through the bureaucracy and resulted in official action against him.

Beaumont stressed that, in a determination of whether certain information has been “publicized,” the relationship between the audience and the plaintiff is at least as important as the size of the audience. Thus, “[a]n invasion of a plaintiffs right to privacy is important if it exposes private facts to a public whose knowledge of those facts would be embarrassing to the plaintiff. Such a public might be the general public, if the person were a public figure, or a particular public such as fellow employees, club members, church members, family, or neighbors, if the person were not a public figure.” Beaumont, 401 Mich. at 105, 257 N.W.2d at 531.

Citing the language we have quoted, the Miller court held that the plaintiff had stated a cause of action for the public disclosure of private facts. Although the plaintiffs fellow employees could not be equated with the general public, the disclosure of intimate personal matters to people with whom she had such a close and distinctive relationship satisfied the requirement of “publicity.” The court stressed that this special relationship could make even the relatively limited disclosure particularly embarrassing or devastating to the plaintiff. Miller, 202 Ill. App. 3d at 976-77.

We now apply Miller to the case at bar. A reviewing court should affirm the dismissal of a pleading for failure to state a cause of action only if no set of facts based on the pleading will entitle the claimant to relief. (Bank of Northern Illinois v. Nugent (1991), 223 Ill. App. 3d 1, 9.) It is clear to this court that all the well-pleaded facts of the counterclaim and third-party complaint do not amount to a cause of action for the public disclosure of private facts. We believe that the defendant’s pleadings are legally deficient as to all three elements of the tort.

First, we believe the trial court correctly decided that, as a matter of law, the defendant did not sufficiently allege the public disclosure of private facts. We need not plunge into a discussion of the comparative reliability of mail and fax communications. In this regard, the defendant has alleged no more than the possibility that unknown individuals might have accidentally received or perhaps eavesdropped upon the otherwise private and confidential communications between the plaintiff’s attorney and the defendant’s attorney. Such possible interception by nobody in particular constitutes neither disclosure to the public (as the Restatement requires) nor disclosure to a limited “public” with whom the defendant might have a special relationship (the Miller test).

That secretaries in the attorneys’ offices helped to broadcast such faxes cannot reasonably support the defendant’s claim of “publicity.” Such clerical workers stand in no special relationship to the defendant. Equally as important, to allow the defendant to characterize such transmission as “publicity” would make practically any confidential correspondence between law offices actionable. To make such legitimate and essentially private communications actionable invasions of privacy would be an absurd and intolerable expansion of the tort. Because the free flow of information is important to our society, courts should proceed with caution in defining what communications constitute invasions of privacy. Leopold v. Levin (1970), 45 Ill. 2d 434, 440; Bradley v. Cowles Magazines, Inc. (1960), 26 Ill. App. 2d 331, 334.

Finally, the alleged disclosure to the plaintiff’s brother does not constitute actionable publicity. We find it remarkable that the defendant would sue his former paramour on the basis that he had a “special relationship” with her brother. Moreover, the exhibits upon which the defendant relies make the conclusion inescapable that Haderer learned little or nothing of which he was not already well aware, given that he removed many of her belongings from the “love nest” at 918 Glenmore.

The defendant’s pleadings also fail to allege that private facts were disclosed, thus leaving the second element of the cause of action unsatisfied as a matter of law. We note that, insofar as the defendant alleges that faxes from the plaintiff’s attorney to his attorney may constitute an invasion of his privacy, the defendant, by authorizing his own attorney to send the plaintiff’s attorney a fax, ought to have reasonably foreseen the allegedly tortious communication as a response. We find it ironic that the defendant claims personal privacy rights (particularly vis-a-vis the plaintiff) in his communications with public officials regarding plaintiff’s employment records — particularly as the defendant himself threatened to disclose sensitive information, involving the parties’ personal relationship, to the school board and to the mass media.

• 4 Finally, we hold that the defendant’s pleadings failed to raise the third element of the tort of public disclosure of private information, i.e., that the matter made public was highly offensive to a reasonable person (see Miller, 202 Ill. App. 3d at 978). As we have noted earlier, the defendant’s own disclosures or threatened disclosures are the cause of most if not all of the communications he now claims are highly offensive. This is not a case where one party has gratuitously publicized matters in which another party had a legitimate expectation of privacy. From the defendant’s own pleadings and exhibits, we conclude that he has failed to allege that either the plaintiff or the third-party defendants made disclosures that he could reasonably find highly offensive.

Having concluded that the trial court properly dismissed the defendant’s counterclaim and third-party complaint for invasion of privacy, we now turn to the request by the plaintiff and the third-party defendants for sanctions on appeal. Pursuant to Supreme Court Rule 375(b) (134 Ill. 2d R. 375(b)), a reviewing court may impose sanctions against a party for an appeal which is either frivolous or not taken in good faith. An appeal will be deemed frivolous where it is not reasonably well grounded in fact and not warranted by existing law or a good-faith argument for the extension, modification or reversal of existing law. (134 Ill. 2d R. 375(b); State Farm Fire & Casualty Co. v. Miller Electric Co. (1992), 231 Ill. App. 3d 355, 360.) An appeal will be deemed to have taken for an improper purpose if the primary purpose of the appeal is to delay, harass, or cause needless expense. 134 Ill. 2d R. 375(b).

Rule 375(b) sanctions are penal and should be applied only to those cases falling strictly within the terms of the rule. (In re Marriage of Sykes (1992), 231 Ill. App. 3d 940, 949-50.) We appreciate the misgivings with which the plaintiff and the third-party defendants view the defendant’s motives for bringing this appeal. We also must state that, at best, the defendant’s arguments on appeal approach frivolity, as they find scant support in existing law.

Alternatively, the tort of public disclosure of private information has received very little definition or elaboration from the courts of Illinois. The appeal is from a dismissal for failure to state a cause of action, and thus we are called to make an independent ruling of law rather than a deferential review of a discretionary trial court ruling. Under these circumstances, we choose not to find this appeal frivolous.

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

Affirmed.

INGLIS, P.J., and BOWMAN, J., concur.


author: JUSTICE LUND

text:
    HOMEWOOD FISHING CLUB, Plaintiff-Appellee, v. ARCHER DANIELS MIDLAND COMPANY, Defendant-Appellant.
    Fourth District
    No. 4-92-0092
    Opinion filed December 28, 1992.
    Rehearing denied January 27, 1993.

      Wayne L. Bickes and Kurt B. Bickes, both of Bickes & Bickes, Ltd., and A. James Shatter and James E. Peckert, both of Kehart, Shatter, Hughes & Webber, P.C., both of Decatur, for appellant.
    Harlan Heller, of Heller, Holmes & Associates, P.C., of Mattoon, and Kenneth Baughman, of Monticello, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Defendant Archer Daniels Midland Company (ADM) appeals the denial of its post-trial motion following a jury verdict in favor of plaintiff, the Homewood Fishing Club (Homewood), for $3,750,000 in compensatory and punitive damages, based upon acts or omissions of ADM which allegedly caused pollution of a small shallow lake owned by Homewood. We reverse.

ADM’s west plant is located in Decatur on a 25-acre site. That site is part of a 380-acre watershed, to the south of which lies approximately 14 acres of land owned by Homewood. Seventeen residences owned by Homewood’s members are situated on that land, along with the Homewood lake. The lake is adjacent to Lake Decatur, with a spillway located between the two lakes. All storm water runoff from the 380 acres goes to a small unnamed tributary, which in turn feeds into the lake. The lake, originally some five acres in size, was constructed in 1914. In the mid-1960’s, Homewood residents dammed up the northern portion of the lake and filled it in, reducing the lake’s size to under three acres.

ADM’s west plant is a grain processing and storage facility operated as a soybean extraction plant, a com germ extraction plant, and a vegetable oil refinery. ADM first began operations there in 1961. The pollution alleged to have been caused to the lake by ADM stems from storm water runoff from the west plant through a 24-inch tile leading to an outlet at the head of the Homewood tributary. That tributary feeds the lake, flowing through the dammed-up northern portion to the now-existing portion of the lake.

Homewood originally filed suit against ADM on July 23, 1984, essentially making the same allegations of pollution to the lake as are made in the instant case. However, Homewood sought to bring that action in a representative capacity on behalf of its members. Certain counts of its complaint were dismissed by the trial court. Homewood voluntarily dismissed the remaining counts and appealed. This court affirmed the trial court’s dismissal in a Rule 23 order (Homewood Fishing Club v. Archer Daniels Midland (1988), 176 Ill. App. 3d 1176 (unpublished order under Supreme Court Rule 23)), holding that Homewood could not bring the action on behalf of its members. Homewood filed its complaint in the instant case on January 20, 1989. The trial court ruled that this filing related back to the date of the filing of Homewood’s July 23, 1984, complaint. It also ruled that Homewood’s complaint in this case alleged a temporary nuisance and, pursuant to the provisions of section 13—205 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13—205), all claims for damages arising prior to July 23,1979, were barred.

The final version of Homewood’s complaint was in three counts. Count I alleged intentional acts or omissions on the part of ADM in creating a nuisance. In general, it alleged: (1) in 1971, ADM constructed two 200,000-gallon tanks at its west plant, one for waste-water processing and the other for collecting storm water falling on the plant site; (2) the tanks were of inadequate size to hold the natural rainfall falling on the plant grounds, resulting in (a) the collection of storm water in the tanks containing contaminated oil and milling byproducts from the plant grounds, and (b) the discharge from the tanks into the Homewood tributary and ultimately into the lake; (3) the discharges were accompanied by excessive or illegal amounts of bean oil, hulls, and other organic material in sufficient quantities to seriously reduce the dissolved oxygen level in the lake, contaminate the water and the bottom of the lake with these materials, and cause the lake bottom deposits to become turbid and to contain excessive amounts of oil and grease; (4) damage to the lake included killing of fish, filling the lake with sludge and discoloring it, creating high concentrations for biochemical oxygen demand (BOD), suspended solids, and oils, and making it unusable for recreational purposes; (5) despite knowledge of the condition, ADM failed to abate it until June 1986; and (6) ADM’s acts were intentional because its agents allowed these discharges to continue after being informed as early as 1972 of the contaminated discharges, as evidenced by its agents attempting to clean or treat them, and its agents admitted the contamination to the Illinois Environmental Protection Agency (IEPA). Count I asked for compensatory damages of $5 million.

Count II alleged wilful and wanton misconduct and asked for $5 million in compensatory damages and an award for punitive damages. It alleged substantially the same acts alleged in count I and, in addition, alleged that ADM had committed one or. more of the following acts which were either wilful and wanton or undertaken with a conscious disregard of, or utter indifference to, the rights of Homewood: (1) constructing inadequate holding facilities for rainwater falling on the plant, thereby utilizing the lake as a “sludge pit” for ADM’s contaminated storm water, since discharge from the tanks was designed to flow into the lake; (2) advising IEPA in 1971 that it intended to completely shut off the storm water discharge from the plant to the lake, but failing to do so, and falsely advising the IEPA in 1974 that it had done so; (3) failing to abide by its agreement with the United States Environmental Protection Agency (USEPA) to prepare an engineering report dealing with the storm water discharge problem by August 1976; (4) denying that ADM had caused the lake pollution, when it knew, or had reason to know, that in fact it was the cause; and (5) failing to take action to remedy the discharge problem until sued by the State of Illinois in 1980 or fined by the Illinois Pollution Control Board (Pollution Board).

Count III alleged negligence on the part of ADM, based upon many of the acts set forth above. It also alleged that ADM’s agents and employees (1) failed to construct an adequate holding tank to contain normal rainfall on its west plant; (2) failed to conduct adequate engineering studies to determine the capacity of its drainage system and to construct and maintain an adequate drainage system; (3) violated section 12 of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1991, ch. IIIV2, par. 1012) and rules of the Pollution Board by discharging contaminated effluent from its premises; (4) on July 28, 1979, allowed discharge contaminated with milling by-products to flow over the sides of the storm water clarifier by negligently failing to turn off the lift station pumps which fed the tank; and (5) on June 26, 1981, negligently pumped sludge from the storm water clarifier through a leaking hose connection, allowing approximately 200 gallons of sludge to run into the storm water system, thereby causing contaminated water to be discharged into the lake. Count III asked for compensatory damages of $1 million.

Although Homewood was barred from claiming any damages for acts that occurred prior to July 23, 1979, the trial court did allow presentation of evidence at trial of pre-July 23, 1979, acts for the limited purpose of demonstrating notice to ADM of the discharges and of determining whether ADM’s post-July 23, 1979, acts were intentional or wilful and wanton. The trial court instructed the jury, both orally and in the written instructions, that it could consider such evidence only for the limited purposes stated and not for the purpose of assessing damages.

The trial in this cause spanned 22 days in May and June 1991, and 41 witnesses testified either in person or by deposition. The evidence is summarized only as is necessary for an understanding of our disposition of this case.

ADM officials and employees testified concerning the nature of the west plant process, storm water collection, and drainage system. Prior to the mid-1970’s, water from the plant’s processing operations went to the process water clarifier, a concrete tank holding from 180,000 to 200,000 gallons. There, lightweight materials such as vegetable oil rose to the top of the water and were continuously removed by a skimming mechanism. The heavier materials settled to the bottom and were then pumped out of the clarifier to the Decatur sanitary district. The storm water clarifier was physically identical to the process water clarifier, but it received only rainwater falling on the plant grounds. That water was treated in the same manner as the process water. The purpose of the storm water clarifier was to separate liquids from solids so that water discharged through the storm sewer line would have a high percentage of solids removed. Unlike process water, the only storm water the sanitary district would take was the sludge accumulated at the bottom of the storm water clarifier and the dry weather flow (water from cleaning operations) which was pumped by two 250-gallon-per-minute pumps. The sludge was pumped out of the storm water clarifier to the process water clarifier and on to the sanitary district. All other storm water went to the Homewood tributary.

In the late 1970’s, ADM changed its storm water treatment to the first flush concept. This theory holds that the first tank of storm water is the most polluted. The Decatur sanitary district agreed to accept this first 200,000 gallons of storm water. After this concept was employed, there was no pumping of sludge from the storm water tank. Any storm water beyond that first 200,000 gallons went to the Homewood tributary.

Some expert witnesses testified as to recommendations they made to ADM in the 1970’s and 1980’s to build additional storm water holding facilities. Since ADM admittedly did not follow these recommendations, Homewood sought to use this evidence at the trial to show ADM’s wilful and wanton misconduct on the issue of the discharges. However, it was the consensus of experts who testified that any recommendations to ADM prior to 1986 as to building such additional holding facilities was premised upon the assumption that ADM could discharge all its storm water to the sanitary district. One expert testified that from an engineering standpoint, there was no single solution to achieving pure storm water runoff other than 100% capture of the water. The evidence showed that it was not until 1986 that the sanitary district agreed to take all of ADM’s storm water. Prior to that time, it was undisputed by the witnesses who testified that had ADM tried to construct storm water facilities adequate to hold all rainwater that fell on the west plant, it could have done nothing with the water once the holding facilities were full. The evidence also showed that once permission was received from the sanitary district to discharge all storm water to the district, ADM placed a 500,000-gallon storm water holding tank on the west plant property and made other improvements to increase the capacity of its storm water retention facilities. There had been no discharges to the tributary since 1986, with ADM’s storm water holding capacity at approximately one million gallons by that time.

Several witnesses testified concerning the condition of the lake and events which occurred prior to July 23, 1979. James See, a former resident of Homewood, testified as to his contacts with ADM employees after oil overflowed into the lake in 1970 or 1971, killing fish, ducks, and birds. ADM sent employees to clean up the banks of the lake.

Bonnie Hudson testified that the Homewood tributary runs through her property. About 1970, it began to have an odor. In 1972, the water turned gray and had a bean odor. ADM employees dumped oxidizer in it. She saw reddish-black lumps along the edges and bottom of the creek, pulsating with long white worms. She had contacts with ADM employees in 1972 and 1973 concerning problems with pollution in the creek. After a heavy rainfall in June 1974, she saw red worms and bean oil residue along the creek and there was a terrible smell. For several days in August 1974, the creek water was either brown and thick or gray.

Robert Patterson, secretary of Homewood, testified that Home-wood records show there was a concern about the condition of the lake in 1946. The north end was a mud flat, and the lake was filling up with sediment. A contract was let in 1947 for the creation of two earthen structures at the lake, forming two separate pools. The upper pool was to serve as a sediment basin and the lower pool as the main fishing spot. There was also a concern in 1950 about unsanitary conditions at the lake due to open sewers in its watershed. An October 1961 letter from the Illinois Department of Conservation (Conservation Department) advised Homewood that the main problem in maintaining the lake as a good fishing lake was that the water was too shallow. There was a very poor fish population. A winter or summer fish kill is likely when the water is so shallow, and not much could be done to help the lake unless it could be deepened. In 1962, the north part of the lake was dammed and filled in to reduce the amount of silt to the south part of the lake. In 1963, there were continuing efforts to reduce siltation. In 1967, further advice was received from the Conservation Department to restock the lake and to remove trash, debris, and other unwanted materials from the lake.

Stan Schwartz, a resident of Homewood since 1955, testified as to the building of the dam in 1962. He stated the reason for building the dam was that the north part of the lake had filled in to the point that it was swampy and mosquito infested. The hope was to prevent that from happening to the south part of the lake. The lake was drained, allowed to dry, and then a dam was built with railroad ties and filled with dirt and broken concrete. The north end of the lake smelled bad when the bottom deposits were stirred up. In about 1963, residents added more fill to the dammed-up part of the lake, a process that continued for two or three years. When the lake was drained in 1962, there were four or five feet of silt in the south half of the lake. Schwartz described it as a black mucky mess. Neither he nor his children swam in the lake. He also stated that the Conservation Department told residents in 1961 that fish would not propagate in the lake because the oxygen content of the water was too low and the water was too shallow.

There was also evidence of discharges occurring subsequent to July 23, 1979. Bonnie Hudson testified that in June 1981 she observed the creek water was very thick, oily, and had a cloudy gray color with a bean smell. In July 1981, she observed slime and red-worm bacteria. In August 1981, there was a cloudy brownish flow with a bean smell.

Thomas Tarvin, a former resident of Homewood, testified that on June 26, 1981, he observed a discharge coming from the ADM tile which had an unpleasant odor. Half the lake was a cloudy gray color. From time to time while he lived there from 1980 to 1989, he noticed bean oil on the lake water. In the summer the water would be a blackish-yellow color. He also saw other pollution in the lake such as grass clippings and pop bottles that would wash down the stream to the lake after heavy rains.

Nancy Abernathy testified that on July 28, 1979, she saw meal particles throughout the lake. The fish died. There was an “atrocious” smell which lasted about a week.

Leonard Bridges, a former IEPA scientist, testified that on July 28, 1979, he investigated a fish kill at the lake. ADM had reported that its storm water clarifier had overflowed about 800,000 gallons, which went into the storm, sewer carrying 10 to 12 barrels of bean oil to the tributary. He observed floating scum and bean oil on the lake, floating dead fish, and fish gasping for air. The smell was that of a bean or vegetable-type oil. Tests showed no oxygen in the water. Samples taken of the bottom deposits were black, odorous, and septic. On June 26, 1981, he went to the lake in response to a complaint and observed a brown discharge with a bean oil odor at ADM’s storm water outlet to the tributary. He observed that the discharge from ADM’s storm water clarifier was similar to that coming from the outlet.

The July 28, 1979, discharge was caused by a failure to turn off pumps to the storm water clarifier once it became full after a rain. About 10,000 to 15,000 gallons from the first flush water discharged to the tributary. After this, ADM put a mechanical float on top of the clarifier which would automatically kill power to the pumps. The June 26, 1981, discharge was accidentally caused when employees swept sludge from the storm water holding tank into drains that were thought to go to the process water treatment system, but in reality went to ADM’s outlet to the Homewood tributary. Some 50 to 60 gallons of sludge were discharged in this manner. There was also a discharge on June 6, 1986, after a rainfall of just under seven inches. A discharge of 235,000 gallons was made to the tributary on that date from an estimated 5.3 million gallons of rain that fell on the plant during that rainfall.

ADM’s west plant has 25 acres from a 380-acre watershed. It was undisputed at trial that the lake has received, and is continuing to receive, significant pollutants from sources other than ADM. This pollution comes from urban storm water runoff from many different sources in the lake’s watershed and from the sewer system in that area. John Guillou, a hydraulic engineer, testified that part of the watershed is extensively sewer. Tilled land in the area would produce about three tons of sediment per acre, per year. This material flows into the lake. There would be about 100 pounds of street sediments and pollutants going into the lake each year. The lake’s watershed is six times greater than the maximum recommended by the Conservation Department. Guillou further testified that a lake such as Home-wood lake would require regular dredging to maintain adequate depths.

Thomas Berns, a professional engineer and an expert witness for Homewood at trial, testified that Homewood lake, like all others, undergoes an aging process whereby it will eventually fill with silt and die. He said that placing the silt dam and the fill material at the north end of the lake was counterproductive to the maintenance of the lake, because the smaller lake was now absorbing twice the pollutants and sediment that it would have without the size reduction. A small lake in Dlinois should have a ratio of 10 to 20 acres of watershed to one surface acre of water. The Homewood lake has about 150 acres of watershed for each surface acre of water. The problems that may develop with a larger watershed include turbidity due to siltation, soft water, low nutrients due to frequent water exchange, dam failure, and sedimentation.

Several witnesses testified to ADM’s failure to comply with IEPA and USEPA regulations regarding discharge permits, reports, and effluent limitations. This evidence was admitted by the trial court to demonstrate ADM’s alleged intentional or wilful and wanton misconduct in regard to the discharges.

ADM was required to have a National Pollutant Discharge Elimination System (NPDES) permit to operate the two clarifiers. The evidence showed that at certain times during the 1970’s it did not have such a permit. The permit prohibited ADM from discharging effluent that had more than four milligrams per liter (mg./l.) of BOD and more than five mg./l. of suspended solids. The evidence generally showed that ADM was unable to meet these restrictions, which one expert witness described as “stringent.” Another expert witness admitted, as an example, that storm water runoff from the K mart parking lot would not meet those restrictions. Essentially, water meeting the restrictions of ADM’s NPDES permit would be drinkable. Evidence as to specific discharges indicated that, in each case, the BOD and suspended solids greatly exceeded the permit restrictions. Evidence also showed that ADM, at times, failed to file reports with the IEPA after discharges of storm water that did not meet permit restrictions and failed to file routine reports at the required times.

In an effort to show ADM’s wilful and wanton misconduct, Home-wood adduced evidence that ADM had failed to comply with USEPA directives in an agreement made in 1975, between the agency and ADM, to bring ADM’s storm water discharges into compliance with its permit restrictions. ADM was to submit a progress report, engineering report, and complete construction by June 1977. ADM officials admitted the deadlines were not met. However, they testified as to efforts made by ADM to improve its housekeeping at the west plant and to reduce or eliminate dust and bean spillage, which in turn would improve the storm water quality.

Various experts testified to the present condition of the lake’s bottom deposits and to the manner and costs of repair to the lake.

Daniel Goodwin, a professional engineer and expert witness for Homewood, testified as to his examination of the lake and soil samples taken from the lake. He stated the lake sediment had a very greasy, slimy consistency to it, as well as an “obnoxious” odor. There was no oxygen present in the sediment, as indicated by the gas bubbles rising to the surface of the water when the bottom deposits were disturbed. The organic material causing this situation could be natural, such as leaves, or could be such things as bean meal or vegetable oil. His opinion was that the lake is seriously deteriorated in terms of its ability to sustain any beneficial uses. Goodwin felt the sediment samples between his fingers and concluded that the samples contained oil. However, he could not say whether it was vegetable oil or some other type of oil. He also testified that, in his professional opinion, discharges from ADM into the tributary since July 1979 had resulted in accumulation of large quantities of unnatural, highly organic and oily materials which, even today, blanket the bottom of the lake. It would take a long time for the lake to recover from the pollution received from ADM since July 1979.

Goodwin testified that there is a great deal of sediment in the lake, much of it caused when the north part of the lake was filled in. He could not say how much sediment was in the lake in 1979, and there is no practical way to separate the sediment existing prior to 1979 from that accumulated since. Nonetheless, he recommended dredging the lake to its approximate depth when constructed in 1914.

Berns testified that the lake was in deplorable condition in 1984 when he first viewed it. The sediment was very greasy, slimy, and oily. While the original depth of the lake would have been between 12 and 16 feet, it now only averages three to five feet deep. He had reviewed ADM’s discharge monitoring reports and observed that on several occasions since July 23, 1979, ADM’s discharges had exceeded the limitations of its NPDES permit by several hundreds of volumes of concentrations. He gave the opinion that ADM was the source of the noxious material in the lake bed after July 1979. Berns was aware that ADM’s was not the only outlet to the tributary, but he did not concern himself with other sources of pollution in the lake’s watershed. He stated he had no knowledge as to how deep the sediment is today or how deep it was in 1979, nor did he have any knowledge of the condition of the lake prior to July 23, 1979. He also testified that it is possible that there were oil and grease deposits in the lake prior to 1979 and, if so, those deposits would have smelled as bad then as they do today. Those deposits would also have likely been slimy and oily in 1979. He also stated that he had not made any study on how much material was discharged by ADM since 1979, how much stayed in the lake and how much passed over the spillway to Lake Decatur, or how long it would take for the materials that stayed in the Home-wood lake to biodegrade. Berns also testified there is no way to calculate precisely the amount of fats, oil, and grease in the silt at the bottom of the Homewood lake. He testified the cost to restore the lake to its 1914 condition would be $1.6 million.

Richard Helm, an expert witness testifying for ADM, stated that he had taken soil samples from the lake bottom and from the fill area at the north end of the lake. He performed a “fats, oil and grease” test and a test for petroleum hydrocarbons (petroleum-based oil). His opinion was that the majority of oil and grease present in the samples was in the form of petroleum hydrocarbons. He stated that soybean meal and oil are biodegradable and, according to IEPA standards, 25 pounds of soybean oil could be discharged into a lake such as the Homewood lake every day forever and it would continuously biodegrade, with the lake maintaining the same dissolved oxygen level. However, he admitted that he had no knowledge of the actual load discharged into the lake by ADM.

Counsel for ADM was allowed to read a memorandum to the jury from the IEPA, which indicated sludge samples from the Homewood lake had been taken in December 1980 and tested by the agency some 63 days later. Results of those tests indicated no soybean oil or other vegetable oil in the samples. The detection limit for soybean oil is five parts per million. Homewood attempted to impeach this evidence by testimony from Goodwin that the tests were not valid because the accepted time limit on testing samples is 28 days and the IEPA had waited 63 days before testing. However, other evidence indicated the effect of the extra time would be uncertain, that it would depend on the conditions under which the samples were stored and that any reduction in detectable oils would not have been to zero.

Dennis Garceau, former ADM west plant manager, testified that during the trial he visited the lake and took some samples from the bottom deposits. The samples had a rotten smell and an oil-type smell, similar to fuel oil.

Charles Jolly, a drilling supervisor and geologist employed by a consulting engineering firm, testified that he drilled at the lake in early 1991 and took samples all the way down to the original lake bottom. He found decaying organic, smelly material right on top of the original glacial bottom. Above the organic material was fill material consisting of asphalt, concrete rubble, and other material placed there when the silt dam was built. He testified that under the law of superposition, the bottom layer is always the oldest.

John Guillou testified further as to these soil borings. In his opinion, because the fill material was on top of the organic material, the organic material was deposited prior to the added fill material. He also testified that he observed a bank of digested sewage at the northern part of the lake by the fill area. He saw sewage seeping out between the pieces of concrete fill. The odor was one of sewage, and testing of samples confirmed the material was sewage from the intestinal tracts of warm-bodied animals. Based upon the accumulation of ash he saw, Guillou stated his opinion that this sewage had been seeping into the lake for many years. He stated that what is making the lake shallow is not organic material that may have flowed or is still flowing into the lake; rather, it is the sediment or soil that has flowed into the lake from its watershed. Guillou also gave his opinion that there are three things wrong with the lake: (1) it was not properly designed because of the mammoth size of its watershed; (2) there is sewage flowing into the lake; and (3) it does not have sufficient capability of receiving oxygen to take care of the nutrients that are flowing into the lake because it is too small for its watershed. Guillou admitted that he had not investigated the discharges from ADM into the lake.

The jury returned a verdict in favor of Homewood for $800,000 in compensatory damages and $2,950,000 in punitive damages. The trial court entered judgment on the verdict. ADM's post-trial motion was denied, and this appeal followed.

ADM argues that it was entitled to a judgment notwithstanding the verdict (n.o.v.) as to the punitive damage award or, in the alternative, that we should grant a remittitur of this award. For the reasons discussed below, we conclude the punitive damage award must be vacated in toto.

Verdicts should be directed and a judgment n.o.v. should be entered only where all the evidence, when viewed in a light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.

Punitive damages are awarded for the purpose of punishing the offender and to deter that party and others from committing similar acts of wrongdoing in the future. (Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 350, 41 L. Ed. 2d 789, 811, 94 S. Ct. 2997, 3012; Loitz v. Remington Arms Co. (1990), 138 Ill. 2d 404, 414, 563 N.E.2d 397, 401.) Punitive or exemplary damages may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts wilfully or with such gross negligence as to indicate a wanton disregard for the rights of others (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 186, 384 N.E.2d 353, 359), or for conduct involving some element of outrage similar to that found in crime. The conduct must be outrageous, either because the defendant’s acts are done with an evil motive or because they are done with reckless indifference to the rights of others. (Restatement (Second) of Torts §908, Comment b, at 464-65 (1979).) Wilful and wanton misconduct is that which usually approaches the degree of moral blame attached to intentional harm, since the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious disregard of that risk. (Bresland v. Ideal Roller & Graphics Co. (1986), 150 Ill. App. 3d 445, 457, 501 N.E.2d 830, 839.) Because of their penal nature, punitive damages are not favored in the law, and for this reason, caution must be used to see that they are not unwisely awarded. (Deal v. Byford (1989), 127 Ill. 2d 192, 203, 537 N.E.2d 267, 272; Kelsay, 74 Ill. 2d at 188, 384 N.E.2d at 360.) While the amount of punitive damages is a question for the jury, the initial decision of whether punitive damages may be awarded in a particular case is a matter of law for the trial judge to decide. J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc. (1987), 118 Ill. 2d 447, 453, 516 N.E.2d 260, 263; Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 211, 454 N.E.2d 210, 219.

In the instant case, the jury was given the following issues instruction on count II of Homewood’s complaint, i.e., the count requesting punitive damages:

“1. Plaintiff claimed it sustained damages and that the conduct of the defendant was wilful and wanton in one or more of the following respects:
a. Defendant maintained a storm water collection and retention tank upon its property which was inadequate to hold all of the rainfall which fell on the grounds of the ADM West Plant which conduct was undertaken deliberately with the intention to harm the plaintiff.
b. Defendant maintained a storm water collection and retention tank upon its property which was inadequate to hold all of the rainfall which fell on the grounds of the ADM West Plant which conduct was undertaken with an utter indifference to or a conscious disregard for the safety of plaintiffs property.
2. Plaintiff further claims that one or more of the foregoing was a proximate cause of plaintiff’s damages.
3. Defendant denies doing any of the things claimed by plaintiff, denies defendant was wilful and wanton in doing any of the things claimed by plaintiff and denies that any claimed act or omission on defendant’s part as a proximate cause of plaintiff’s damage.
4. Defendant further denies that plaintiff sustained damages or sustained damage to the extent claimed.”

Insufficient evidence was introduced by Homewood at trial to support the jury’s verdict under this instruction. All the experts and former IEPA employees who testified as to the alleged inadequacy of ADM’s storm water system stated that, while increasing the capacity of the storm water holding tank was recommended to ADM at various times during the 1970’s and early 1980’s, these recommendations were predicated upon the assumption that once the tank was full, ADM would be able to discharge the water someplace other than to the Homewood tributary. This was not possible until the Decatur sanitary district agreed in 1986 to accept all of ADM’s storm water. This fact was explicitly acknowledged by many of the witnesses.

At trial, Homewood called Richard Kaptain, executive director of the sanitary district, as a rebuttal witness. He had worked for the sanitary district in various capacities for the last 16 years, the last two as executive director. Through this witness, Homewood attempted to show that ADM could have discharged its polluted storm water to the district prior to 1986.

Kaptain testified that no clean storm water was allowed to be discharged to the sanitary district prior to 1986 by any source. However, there were no standards governing what was to be considered “polluted” storm water. When asked about the discharge of polluted water to the district, Kaptain gave the following responses:

“Q. [By plaintiff’s counsel:] What about polluted storm water?
A. There was some question about that. Uh — we were concerned, if I recall. This has been a period of time for me, and I was not the manager at the time. I recall that — uh—we really didn’t want any storm water but — uh—we were working within the limits of the Contract or the Agreement. I’m not sure I answered your question very straight.
Q. At that time were you receiving storm water from or did you agree to receive storm water from ADM that had a B.O.D. and Suspended Solids analysis greater than what they could discharge in — uh—accordance with an N.P.D.E.S. Permit?
A. If you will give me a minute. Uh — I don’t think we ever agreed to — uh—accept storm water per se. We were concerned with the capacity of the 18-inch interceptor on Division and 34th Street. Though — uh—I’m trying to work with my memory here. There’s some question about whether we would accept some polluted water — uh—with a very limited volume. We might have done that. I truly can’t remember.”

The only thing that is clear from this testimony is that Kaptain had no knowledge of whether ADM could have discharged its polluted storm water to the sanitary district prior to 1986. Given all the testimony to the contrary on this question, the evidence overwhelmingly supported ADM’s claim that it could not have done anything with the storm water, even if it had built the storage facilities to capture 100% of the rainwater which fell on the west plant. Once the facilities were full they would be useless, and all storm water would once again inevitably be discharged to the Homewood tributary.

The gist of Homewood’s punitive damage claim against ADM is that ADM’s failure to build storm water holding facilities large enough to prevent any discharges to Homewood was intentional and constituted wilful and wanton misconduct, which proximately resulted in damage to the lake. However, it was not the holding facilities themselves which caused the discharges. ADM’s west plant is in the Home-wood lake’s watershed. All storm water from that 380-acre watershed naturally drained to Homewood. The purpose of ADM’s storm water facilities was merely to improve the quality of the storm water before it entered the tributary. Regardless of whether those storm water facilities existed, rainwater would have drained from the west plant grounds to the tributary. In fact, it may be suggested that the evidence showed that had those facilities not been in place, water would have sheet discharged off the plant grounds, resulting in greater pollution in the water than had it been treated in the storm water clarifier or the first flush discharged to the sanitary district.

Homewood also relies upon ADM’s failure to comply with its agreement with the USEPA in connection with its 1975 NPDES permit that it would achieve compliance with the effluent limitations of its permit by submitting engineering studies, preliminary plans, and starting and completing construction of facilities by certain dates. Homewood says this is evidence of ADM’s wilful and wanton misconduct and that such conduct itself justifies punitive damages. We disagree with this contention. This failure was not the proximate cause of the Homewood lake pollution or evidence of ADM’s wilful and wanton misconduct. It must be noted that Homewood did not plead in count II of its complaint that this failure was a proximate cause of any damage to the lake. As indicated in the issues instructions to the jury on that count, Homewood claimed, and had to prove, that failure by ADM to build facilities to hold all rainwater falling on the plant was wilful and wanton and that this failure caused damage to Home-wood. All of the pre-July 23, 1979, evidence, including the failure to abide by USEPA mandates, was admitted for the limited purpose of showing notice to ADM of the discharges and the wilfulness and wantonness of its conduct in discharging its storm water to Homewood. The jury was instructed that it could not consider this evidence on the issue of damages. Thus, this conduct could not support an award of damages, either compensatory or punitive.

Further, under evidence adduced at trial, ADM’s failure to abide by these USEPA mandates was not evidence of its wilful and wanton misconduct as to the post-July 23, 1979, discharges. While we do not condone ADM’s failure to comply with USEPA directives, it is clear that the purpose of the directives was to allow ADM to meet the limitations of its NPDES permit, limitations that were described by one expert witness as “stringent.” Another expert acknowledged that storm water runoff from the K mart parking lot would not meet such limitations. Yet another expert stated that water meeting the effluent limitations would be drinkable. It was not specified in this agreement with the USEPA what facilities were to be constructed or other steps taken to meet the effluent limitations. Testimony at trial clearly indicates that no one knew what ADM could do to meet the limitations of its permit, short of preventing all discharges to Homewood. Evidence did show that ADM embarked on an expensive program of improvements to the plant for the purpose of reducing dust and other material on plant grounds that rainwater would come in contact with, in an effort to improve the quality of the discharges to Homewood.

Homewood would have us affirm the punitive damage award, when evidence shows this would merely serve to punish ADM for failing to do the impossible. However, this would clearly be improper under the standards discussed above. The failure of ADM to build facilities to capture 100% of the rainwater which fell on the west plant was not done with the intent to harm Homewood. Nor was it done with utter disregard for the safety of Homewood. The evidence, taken in its light most favorable to Homewood, simply does not warrant the award of any punitive damages under count II of its complaint, and the trial court erred in denying ADM’s motion for judgment n.o.v.

We now turn to the compensatory damage award. ADM claims the verdict was against the manifest weight of the evidence and that the trial court erred in denying its motion for judgment n.o.v. as to counts I and III. The parties also disagree as to the proper measure of damages. However, in view of our holding, we need not reach this latter question.

Count I alleged intentional conduct on ADM’s part in not building a storm water retention tank adequate to hold all the rainfall on ADM’s plant site. Thus, count I stands on much the same footing as does count II. As to count II, we have already decided that ADM’s conduct in this regard was not wilful or wanton. Similarly, its conduct was also not intentional and, to the extent the jury’s verdict was based on count I, it cannot stand. We will therefore focus our attention on count III, which alleged negligence.

Homewood claims it proved, by a preponderance of the evidence, that ADM’s actions were responsible for the condition of the lake bed. Homewood did show that ADM discharged various quantities of organic material into the lake via its storm water system and the tributary. However, in order to establish ADM’s liability, Homewood was required to show that ADM’s action in discharging this material was a proximate cause of the alleged damage. That damage consisted of black and oily lake bottom deposits that smelled bad, a seriously reduced oxygen level in the lake, and excessive sediment in the lake causing it to be too shallow to support aquatic life and recreational activities.

Proximate cause is one which causes injury or damage through a natural and continuous sequence of events unbroken by any effective intervening cause. (Millette v. Radosta (1980), 84 Ill. App. 3d 5, 24, 404 N.E.2d 823, 837.) A plaintiff must prove it is more probable than not that the defendant’s conduct caused the injury complained of. (See Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 394, 493 N.E.2d 1022, 1029.) Whether a defendant’s conduct is to be considered a proximate cause of the injury complained of presents a question for the trier of fact. (Ray v. Cock Robin, Inc. (1974), 57 Ill. 2d 19, 23, 310 N.E.2d 9, 12.) The defendant’s act need not be the sole, last, or nearest cause of the injury. It is sufficient if it occurs with some other cause acting at the same time which, in combination therewith, causes the injury. (Kinsch v. Di Vito Construction Co. (1964), 54 Ill. App. 2d 149, 154, 203 N.E.2d 621, 624.) In addition, to be recoverable, damages must be actual — not speculative, remote, or uncertain. Chicago Title & Trust Co. v. Walsh (1975), 34 Ill. App. 3d 458, 471, 340 N.E.2d 106, 115; York v. Grand Trunk Western R.R. Co. (1979), 71 Ill. App. 3d 800, 806, 390 N.E.2d 116, 121.

Homewood relies on the expert testimony of professional engineers Daniel Goodwin and Thomas Berns that, in their respective opinions, ADM was the cause of much of the condition of the lake’s bottom deposits. ADM insists these opinions were based on speculation and conjecture.

It is well established that an expert may not guess or state an opinion based upon conjecture. Coffey v. Brodsky (1987), 165 Ill. App. 3d 14, 24, 518 N.E.2d 638, 644; Wehmeier v. U N R Industries, Inc. (1991), 213 Ill. App. 3d 6, 23, 572 N.E.2d 320, 332.

It is undisputed that storm water discharges from ADM rarely, if ever, met the effluent limitations of its NPDES permits. For the reasons discussed above, any negligence on ADM’s part did not arise from the configuration of its storm water treatment system. However, from the evidence presented to it, the jury could have found negligence on ADM’s part in the matters of housekeeping on plant grounds and in the two discharges that resulted from actions or inactions by ADM employees on July 28, 1979, and June 26, 1981. It could have found that these discharges resulted in the deposit of contaminated water into the lake. However, the difficulty with Home-wood’s case stems from a failure to connect ADM’s post-July 23, 1979, discharges to the present condition of the lake.

Although both Goodwin and Berns testified that ADM was responsible for that condition, Homewood failed to produce any evidence to support those opinions. Even assuming that the jury could have properly concluded from the conflicting evidence that the 1981 testing done by the IEPA (which found no soybean oil in samples taken in late 1980) was flawed because of the method used, Home-wood still produced no evidence that any material discharged by ADM into the lake after July 23, 1979, remained there at the time of trial or was responsible for the condition of the lake.

Charles Jolly testified as to analysis of samples taken from the lake in early 1991. That analysis found organic materials deposited in the lake directly on top of the original lake bottom. On top of this organic material was fill material which had been used to create the dam built by Homewood residents in the mid-1960’s, in an effort to reduce the silt buildup in the remaining two acres of the lake. He testified that under the law of superposition, the bottom layer is always the oldest. This testimony was not contradicted by Homewood. Obviously, this would mean that the organic material was deposited prior to July 23, 1979. John Guillou also testified with reference to these soil samples. His opinion also was that the organic material had been deposited prior to the fill material — well before 1979. There was no evidence produced tending to show that any organic material discharged by ADM after July 23,1979, was still in the lake.

The fact that the bottom deposits had an offensive odor or were black and oily does not, by itself, connect those conditions to ADM. Although there was an abundance of evidence that ADM did discharge pollutants into the lake over the years, the undisputed testimony of all the experts was that this material was biodegradable. However, no one could say how long this process would take. Thomas Berns testified that he had no knowledge of how much organic material was discharged by ADM since July 23, 1979, how much might have gone on to Lake Decatur, or how long it would take for the materials that stayed in the Homewood lake to biodegrade. Moreover, he testified there was no way in which to determine, with precision, the amount of fats, oil, and grease existing in the lake’s bottom deposits. While we recognize that precision is not required, there was no scientific evidence of any fats, oil, or grease in the lake bed. Simply feeling the sediment between one’s fingers, even those of a distinguished scientist such as Goodwin, is inadequate to establish ADM’s liability.

It was clear from the evidence that the lake’s problems began many years prior to July 23, 1979. As early as 1946, Homewood residents were concerned about the condition of the lake, as the north end was filling up with sediment. In 1947, a portion of the lake was separated to serve as a sediment basin. In 1961, Homewood residents were advised by the Conservation Department that the water in the lake was too shallow and lacked sufficient oxygen to support an adequate fish population. In 1962, residents drained the lake and filled in the northern portion of the lake in an effort to reduce the amount of silt going to the south part of the lake. The northern part had filled in to the point that it had become swampy and mosquito infested. The bottom deposits of that part of the lake smelled bad when disturbed. In 1962, there were already several feet of silt in the south half of the lake. One witness described it as a black mucky mess. Some of the expert witnesses who testified stated that a lake the size of Home-wood, with its excessive watershed, would require a regular program of dredging to maintain its viability. There is no dispute that this was not done. No evidence was adduced to tie ADM’s storm water discharges to the excessive siltation in the lake. Testimony established these deposits were the result of a too large watershed. There was no evidence that ADM’s post-July 23, 1979, discharges caused the lake’s pre-1979 condition to worsen.

We are cognizant that a jury verdict is not to be overturned on appeal unless, having viewed the evidence in the light most favorable to the plaintiff, the reviewing court determines the verdict to be clearly erroneous or against the manifest weight of the evidence. (Rice v. Merchants National Bank (1991), 213 Ill. App. 3d 790, 801, 572 N.E.2d 439, 446-47, appeal denied (1991), 141 Ill. 2d 559, 580 N.E.2d 133.) A verdict is contrary to the manifest weight of the evidence only when the verdict is wholly unwarranted by the evidence or is clearly the result of passion or prejudice. Curry v. Summer (1985), 136 Ill. App. 3d 468, 482, 483 N.E.2d 711, 721.

Having reviewed the evidence with these standards in mind, we find that the jury’s verdict was against the manifest weight of the evidence as to count III of Homewood’s complaint and that the trial court erred in denying ADM’s motion for judgment n.o.v. as to this count. The verdict of the jury and the judgment of the trial court thereon must therefore be reversed.

Reversed.

STEIGMANN, P.J., and COOK, J., concur.