author: JUSTICE DiVITO

text:
    ZADIE RICHARDSON, Plaintiff-Appellant, v. THE COUNTY OF COOK et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1 — 92—0818
    Opinion filed July 27, 1993.

      Irving M. Friedman and Michael B. Erp, both of Katz, Friedman, Schur & Eagle, of Chicago, and Becker, Baiser & Rapoport, of Highland Park (David J. Kupets, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Karen A. Covy, Frank J. Oles, Thomas M. Davy, and John Carreon, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff Zadie Richardson, an employee at Oak Forest Hospital, brought suit to recover for injuries she allegedly suffered from intentional torts committed by her supervisor and other employees at the hospital and for violation of her civil rights. Her suit also included a claim for punitive damages. The circuit court granted summary judgment for defendants, finding that the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1991, ch. 48, par. 138.1 et seq. (now codified as 820 ILCS 305/1 et seq. (West 1992))) provided the exclusive remedy for plaintiff, that no custom or policy established by defendants caused plaintiff’s injuries, and that punitive damages were inappropriate. This appeal is from that ruling.

Plaintiff filed suit against Cook County (the County); the Cook County Board of Commissioners (the Board); George Dunne, the president of the Board at that time; Oak Forest Hospital (the hospital), which was owned and operated by the County; Edmond Lawler, the director of the hospital; James Brodie, the director of security at the hospital; security officers L.J. DeWinters and Joseph Hale; and Janet Parejko, plaintiff’s supervisor at the hospital.

In her complaint, plaintiff alleged that on November 8, 1985, as she was leaving her work area for her scheduled lunch break, Parejko shoved her back into the room, struck her in the chest repeatedly, blocked the exit, and verbally threatened her.

Shortly thereafter, she alleged, she attempted to file a complaint against Parejko with hospital security, but officers Hale and DeWinters refused to accept it. Then, in response to a complaint filed by Parejko, and without any independent investigation, Hale and DeWinters arrested her. Plaintiff began suffering chest pains, as a result of which, under Hale’s direction, she was escorted to health services by male security officers. There, because of a suspected coronary condition, medical personnel instructed her to disrobe. Two male officers then accompanied her into the restroom and later remained with her during the examination.

The nine-count complaint stated that plaintiff was the victim of an unprovoked assault and battery, that she was falsely arrested, that she was falsely imprisoned, that defendants intentionally inflicted “severe emotional distress” upon her, and that defendants violated 42 U.S.C. §1983 (1988) by adopting and implementing a policy of supporting supervisors in confrontations with subordinate employees, by failing to properly train supervisors to prevent employee abuse, and by failing to train hospital security officers in proper investigation procedures. She also alleged that the conduct of defendants was “willful, wanton and malicious,” thus entitling her to punitive damages.

Defendants moved for summary judgment asserting that plaintiff’s action was barred by the exclusivity provision of the Act and that the policies she alleged did not exist. In response, plaintiff supplied excerpts of transcripts from a union grievance hearing involving a charge against Parejko before the labor relations board. The transcripts indicated that Parejko called employees at home when they were absent from work due to illness in order to determine when they would return; that Parejko became hostile when she learned that she was unable to suspend plaintiff for an unrelated incident; that Parejko stated that she would not be challenged by the union regarding the setting of vacation days; that Parejko stated that the department would be run according to her wishes; and that Parejko challenged an employee to a fight in front of a union steward. Following a hearing, the circuit court granted defendants’ summary judgment motion. This appeal followed.

Initially, we note that the Board and the hospital have been improperly named as defendants in this case. The Board is not a separate entity which can be sued. Rather, its powers are coextensive with the County. (See Ill. Rev. Stat. 1991, ch. 34, par. 5 — 1004 (now codified as 55 ILCS 5/5 — 1004 (West 1992)) (“[t]he powers of the county *** shall be exercised by a county board”); see also Mayes v. Elrod (N.D. Ill. 1979), 470 F. Supp. 1188, 1192 (holding that the sheriff’s office and the Board are indistinct from the County and therefore cannot be sued).) Similarly, the hospital is not subject to suit because it is owned and operated by the County and is not itself a legal entity. See Jackson v. Village of Rosemont (1988), 180 Ill. App. 3d 932, 937-38, 536 N.E.2d 720 (holding that Rosemont Horizon Stadium is merely a building operated by the Village of Rosemont and therefore is not a legal entity that can sue or be sued).

Plaintiff first contends that the circuit court erroneously concluded that the Act provided the exclusive remedy for her injuries. She asserts that because her injuries were intentional rather than accidental, they were not compensable under the Act. We disagree.

Under the Act, an employee has “[n]o common law or statutory right to recover damages from the employer *** or [its] agents or employees” for injuries incurred in the course of her employment. (Ill. Rev. Stat. 1991, ch. 48, par. 138.5(a) (now 820 ILCS 305/5(a) (West 1992)).) Instead, the Act provides the exclusive remedy for claims against an employer for accidental injuries in the work place by establishing liability without fault and by abrogating common law defenses. (Johnson v. Federal Reserve Bank (1990), 199 Ill. App. 3d 427, 433, 557 N.E.2d 328, appeal denied (1990), 133 Ill. 2d 558, 561 N.E.2d 693; Jablonski v. Multack (1978), 63 Ill. App. 3d 908, 910, 380 N.E.2d 924.) However, an employee’s action against her employer will not be prohibited if the “employee-plaintiff proves: (1) that the injury was not accidental; (2) that the injury did not arise from his or her employment; (3) that the injury was not received during the course of employment; or (4) that the injury was not compensable under the Act.” Meerbrey v. Marshall Field & Co. (1990), 139 Ill. 2d 455, 463, 564 N.E.2d 1222.

In the instant case, plaintiff asserts that the Act does not prohibit her cause of action because her injuries were intentional rather than accidental and because the injuries were not compensable under the Act, since they were neither causally related to her job nor occurred as a result of the performance of her duties. Defendants respond that all work-related injuries are considered “accidental” under the Act unless the employer directed, encouraged, or committed the intentional tort, and that nothing in the record demonstrates that defendants acted with the specific intent to injure. Defendants also maintain that plaintiff’s injuries are compensable under the Act because plaintiff’s own allegations demonstrate that the events took place at the hospital and that each individual defendant was acting within the course and scope of his or her employment.

Illinois courts have repeatedly held that an injury which was intentionally inflicted upon an employee by another employee is considered “accidental” for purposes of the Act if it was “unexpected and unforeseeable from the injured employee’s point of view.” (Meerbrey, 139 Ill. 2d at 463; see also Jablonski, 63 Ill. App. 3d at 910.) However, if the injuries were intentionally inflicted by the employer or its alter ego, or the injurious actions were commanded or expressly authorized by the employer, the exclusivity provisions of the Act will not apply and the employee may pursue a common law action against the employer. Meerbrey, 139 Ill. 2d at 464; Johnson v. Federal Reserve Bank (1990), 199 Ill. App. 3d 427, 433-34, 557 N.E.2d 328 (holding that the Act did not bar the plaintiff’s cause of action for intentional infliction of emotional distress where the injuries were inflicted “by persons acting *** as the alter ego of the [employer]”).

Furthermore, the fact that the employee sustained no physical injury or trauma is irrelevant to the applicability of the Act. (See Pathfinder Co. v. Industrial Comm’n (1976), 62 Ill. 2d 556, 563, 343 N.E.2d 913 (holding that an employee who suffered a sudden and severe emotional shock after observing injury to a co-worker could recover under the Act even though she sustained no physical injury).) Rather, an injury is compensable under the Act if it was sustained during the course of employment and arose from that employment. (Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 237-38, 408 N.E.2d 198.) In Collier, the plaintiff sued his employer for the intentional infliction of emotional distress arising from the “extreme and outrageous” medical care he received from the company’s medical attendant when he was suffering from cardiac arrest. The circuit court struck the complaint for failure to state a cause of action and the appellate court affirmed. The supreme court then affirmed the appellate court, holding that plaintiff’s cause of action was barred by the exclusivity provision of the Act because emotional distress is compensable under the Act provided the distress arose out of the employment. The court then found that the plaintiff’s injury arose from his employment because “[h]e was at his place of employment performing his duties when he was stricken with an illness prompting immediately the injuries of which he complain[ed].” Collier, 81 Ill. 2d at 237-38.

In the present case, it is clear that Parejko’s alleged actions, as well as those of Hale and DeWinters, constituted intentional torts. However, no facts were presented suggesting that they were acting under the direction of their employer. The mere allegation in plaintiff’s complaint that defendants were acting within the scope of their authority “is not equivalent to an allegation that [the employer] expressly authorized [them] to commit the specific acts in question.” (Meerbrey, 139 Ill. 2d at 465.) Therefore, because the injuries were unexpected and unforeseen by plaintiff and not authorized by her employer, they must be considered “accidental” under the Act.

Further, the injuries were compensable under the Act because they were sustained during the course of plaintiff’s employment and arose out of a dispute regarding the performance of her duties. “[I]t is universally agreed that if [an] assault grew out of an argument over the performance of the work, *** quitting working, *** and the like, the assault is compensable.” (1 A. Larson, Workmen’s Compensation §11.12(b), at 3 — 212 to 3 — 221 (1993).) Thus, because common law actions against an employer based on respondeat superior are barred by the Act, plaintiff’s claims against the County and defendants Dunne, Brodie, and Lawler are inappropriate as a matter of law. We therefore affirm the circuit court’s disposition of plaintiff’s claims against those defendants.

The circuit court also granted summary judgment for defendants Parejko, Hale, and DeWinters. Plaintiff contends that this was improper because the Act does not prohibit actions against other employees who commit intentional torts. We agree.

Although the Act prohibits an employee from pursuing a negligence action against a fellow employee for injuries which occurred during the course of employment (Rylander v. Chicago Short Line Ry. Co. (1959), 17 Ill. 2d 618, 628, 161 N.E.2d 812 (noting that the purpose of the Act was to place the cost of industrial accidents on the industry)), it does not prohibit an employee from seeking redress against a co-employee for injuries arising out of intentional torts. (Meerbrey, 139 Ill. 2d at 471-72; Jablonski, 63 Ill. App. 3d at 915.) The rationale behind this distinction is that “ ‘[t]he socially beneficial purpose of the workmen’s compensation law was not meant to permit a person who commits an intentional tort to use the compensation law as a shield against liability.’ ” Meerbrey, 139 Ill. 2d at 472, quoting Jablonski, 63 Ill. App. 3d at 915.

In Meerbrey, the plaintiff sued his employer and one of its security guards for false imprisonment, false arrest, and malicious prosecution. He alleged that when he was working as a part-time cashier at his employer’s store, he was summoned to the security office where he was questioned by the security guard regarding a suspected theft. Following the interview, he signed a promissory note and subsequently paid the employer $500 pursuant to its terms. When he returned to the employer’s store approximately three weeks later in order to obtain his payroll check, the security guard arrested him and forcibly took him to the security office and eventually charged him with criminal trespass. The circuit court dismissed the plaintiff’s suit, finding that the claims against the employer were barred by the exclusivity provisions of the Act and that the plaintiff had failed to allege sufficient facts to support the claims against the security guard. The appellate court affirmed the circuit court’s ruling with respect to the employer, but found that the claims against the security guard were not precluded by the Act and that plaintiff had sufficiently alleged a cause of action. The supreme court affirmed the appellate court and stated for the first time that “the exclusive remedy provisions of the Act do not bar employees from pursuing a common law action against co-employees for injuries arising out of intentional torts.” Meerbrey, 139 Ill. 2d at 472.

As in Meerbrey, plaintiff here alleged that Parejko, Hale, and DeWinters each committed intentional torts upon her. Thus, under Meerbrey, we must reverse the circuit court’s order effectively dismissing the claims against defendants Parejko, Hale, and DeWinters because those actions are not precluded by the Act.

Plaintiff next contends that summary judgment was inappropriate with respect to her section 1983 claim because a genuine issue of material fact existed as to whether the County or the hospital established a policy which resulted in her injuries. She maintains that the incidents recounted in the transcript from the grievance hearing demonstrated that there existed a policy of supporting supervisors in confrontations with employees and that Parejko’s superiors knew or should have known of her violent tendencies, but “intentionally retained her in their employment and trusted her with the supervision of other employees.” Plaintiff also asserts that a genuine issue of material fact existed as to whether supervisory and security personnel were so poorly trained that there was “deliberate indifference” to the rights of those dealt with by employees.

The law is well established that a municipality cannot be held liable under section 1983 on a theory of respondeat superior. (Monell v. Department of Social Services (1978), 436 U.S. 658, 691, 56 L. Ed. 2d 611, 636, 98 S. Ct. 2018, 2036; see also Henry v. Farmer City State Bank (7th Cir. 1986), 808 F.2d 1228, 1237 (holding that a municipality will not be held liable merely because it employs a tortfeasor).) Instead, a government entity may be held liable only if, through some official policy, it causes the employee to violate another person’s constitutional rights. (Monell, 436 U.S. at 692, 56 L. Ed. 2d at 636, 98 S. Ct. at 2036; Leahy v. Board of Trustees of Community College District No. 508 (7th Cir. 1990), 912 F.2d 917, 922.) In order to satisfy her burden, a plaintiff must allege a specific pattern or series of incidents that support her allegation, rather than a bare allegation of policy or custom without a sufficient factual basis. (Henry, 808 F.2d at 1237; Strauss v. Chicago (7th Cir. 1985), 760 F.2d 765, 767-68.) The requisite policy or custom can be demonstrated by a failure to properly train employees when that failure amounts to a “deliberate indifference” to the rights of the persons with whom the employees come in contact. (City of Canton v. Harris (1989), 489 U.S. 378, 388, 103 L. Ed. 2d 412, 426, 109 S. Ct. 1197, 1204.) A plaintiff must demonstrate with particularity how the employee’s training was deficient and how that deficiency resulted in the ultimate injury. Canton, 489 U.S. at 390-91, 103 L. Ed. 2d at 428, 109 S. Ct. at 1206.

In the instant case, plaintiff failed to present adequate factual allegations that an improper policy existed. Although she argues that the transcripts from the grievance hearing established the existence of a policy, our reading of the transcripts leads to a contrary conclusion. Furthermore, other than her mere allegation that other unnamed persons have been detained or arrested without adequate investigation to determine if probable cause existed, plaintiff presented nothing to support her claim that the hospital security force was improperly trained with a deliberate indifference to the constitutional rights of others. Thus, summary judgment on the section 1983 action was proper in this case.

Plaintiffs final contention is that the circuit court incorrectly ruled that punitive damages were not available against all defendants.

Initially, we find that summary judgment with respect to the County on this issue was proper because the County cannot be sued on the basis of respondeat superior, nor could punitive damages be imposed against it in a section 1983 action. (See City of Newport v. Fact Concerts, Inc. (1981), 453 U.S. 247, 69 L. Ed. 2d 616, 101 S. Ct. 2748 (holding that municipalities are immune from punitive damages under section 1983).) Similarly, because plaintiff is unable to establish a cause of action against defendants Dunne, Lawler, and Brodie, punitive damages could not be imposed on them. However, because punitive damages may be awarded for assault and battery committed with deliberate violence or oppression (Hough v. Mooningham (1986), 139 Ill. App. 3d 1018, 1024, 487 N.E.2d 1281) and for false arrests which are done “recklessly, oppressively, insultingly or wilfully, with a design to oppress and injure” (Robinson v. Wieboldt Stores, Inc. (1982), 104 Ill. App. 3d 1021, 1025, 433 N.E.2d 1005), a genuine issue of material fact remains concerning those issues as to defendants Parejko, Hale, and DeWinters. Therefore, summary judgment concerning punitive damages was inappropriate with respect to those defendants.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part and reversed in part and remanded for further proceedings regarding the claims against defendants Parejko, Hale, and DeWinters.

Affirmed in part; reversed in part and remanded.

McCORMICK, P.J., and HARTMAN, J., concur.

      Defendants maintain that Rodriguez v. Industrial Comm’n (1983), 95 Ill. 2d 166, 447 N.E.2d 186, rather than Meerbrey controls in the present case. In Rodriguez, the plaintiff, in a racially motivated attack, was struck over the head by a co-employee with a two-by-four. The court ruled that since there was no evidence of a personal dispute between the two men, the injuries were merely a general hazard of the workplace and were therefore compensable under the Act. (Rodriguez, 95 Ill. 2d at 174.) We believe however that Rodriguez and Meerbrey addressed two distinct issues: the former, whether certain injuries are compensable under the Act, and the latter, whether employees with a compensable injury could also maintain a cause of action against an intentional tortfeasor. See Fitzgerald v. Pratt (1992), 223 Ill. App. 3d 785, 789, 585 N.E.2d 1222, appeal denied (1992), 144 Ill. 2d 632, 591 N.E.2d 21 (noting the distinction between Meerbrey and Rodriguez).


source: Caselaw Access Project

license: Public Domain

text:
    MEMORY GARDENS CEMETERY, INC., Plaintiff-Appellant, v. THE VILLAGE OF ARLINGTON HEIGHTS et al., Defendants-Appellees (Wendy Zick et al., Defendants).
    First District (2nd Division)
    No. 1 — 92—1227
    Opinion filed July 27, 1993.
    Rehearing denied September 9, 1993.

      Marks, Marks & Kaplan, Ltd., of Chicago (Robert Marks and Robert J. Dargis, of counsel), for appellant.
    Altheimer & Gray, of Chicago (Jack M. Siegel, of counsel), for appellees.
    Gottlieb & Schwartz, of Chicago (Harvey I. Lapin and David J. Schwartz, of counsel), for amicus curiae.

   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff Memory Gardens Cemetery, Inc. (the Cemetery), applied to defendant Village of Arlington Heights (the Village) for a permit to build a mausoleum. Defendant building commissioner denied the application, and defendant zoning board of appeals (the Board) affirmed. The Cemetery then filed this declaratory judgment action, alleging that its proposed mausoleum did not require a special use permit under the Village’s zoning ordinance (the Ordinance), or if it did, that the Ordinance should be declared unconstitutional. After denying defendants’ motion to dismiss the declaratory judgment count and hearing the Cemetery’s case in chief, the circuit court granted defendants’ motion for judgment in their favor under section 2 — 1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1110). It held, under the Ordinance, a new mausoleum in an existing nonconforming cemetery is an extension or enlargement of the nonconforming use and thus requires a separate special use permit. We affirm.

The Cemetery has been in existence since 1924. Originally in unincorporated Cook County, it was annexed in 1929 by the Village. At that time, cemeteries were not a permitted use anywhere within the Village, but in 1959 the Village passed the Ordinance, which listed cemeteries as a special use in an R-3 zone. By then, at least one mausoleum had been completed at the Cemetery; there are now 13, for none of which the Village demanded a special use permit. In 1989, the Cemetery applied for a building permit to build another mausoleum. Defendant building commissioner denied the application on the ground that a special use permit was required because under the Ordinance, a mausoleum is a special use distinct from cemeteries. The Cemetery appealed this decision to the Board.

The Board affirmed the decision, reasoning that the mausoleum would be an impermissible expansion of the nonconforming use under the Ordinance because in the last 30 or 40 years, the percentage of the Cemetery’s burial sites in mausoleums had more than doubled. It also found that the construction of mausoleums had been “a substantial or fundamental change in the nature of the non-conforming use from basically an in ground burial facility to a mausoleum-type facility with substantial structures both in number and size.” The Board further concluded that “mausoleums are not included in the definition of cemetery, both in the legal sense and in the customary sense of the use of those terms” and that a mausoleum does not fall within the Ordinance’s definition of an “accessory” structure in a cemetery, given that it serves the same function, not a subordinate one.

The Cemetery filed suit in June 1989 against the Village, the building commissioner, the Board (as an entity and as to its members) (collectively, the Village defendants or defendants), and certain individuals who attended the Board proceeding. Without specifically asking for review under the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.), the Village asked that the Board’s decision be reversed and that the Village be ordered to issue the permit.

The first witness was the Cemetery’s architect, Arnold Moreno, who described the Cemetery and its surroundings. He explained that there are 13 existing mausoleum structures, four of which contain two “units” of 384 crypts each and are similar to the proposed building, which would have three “units” of the same size. Using a master plan, he described the Cemetery as bordered by Euclid on the north, Waterman on the west, and Miner on the south. Across Euclid there is a country club for most of the length of the Cemetery; to its west are residential units, which also are found across Waterman and across Miner. The proposed building, which was intended for the northeast comer of the property, was to be approximately 15 feet high, 176 feet long, and 37 feet wide; it would be the largest structure on the site.

Harvey Lapin, an attorney who wrote his master’s thesis on tax-exempt cemeteries and who teaches tax law as adjunct faculty at John Marshall Law School in Chicago, testified next. He also has drafted cemetery legislation for Illinois and other States and for the Federal government. Nevertheless, after voir dire by defendants, the court sustained defendants’ objection to him as an expert in zoning matters. In the Cemetery’s offer of proof, Lapin testified that in the industry, a cemetery is a place of final disposition of human remains, be it by earth burial, lawn crypt (below-ground entombment), mausoleum (above-ground entombment), or cremation. In his opinion, the new mausoleum would neither change the purpose or use of the Cemetery nor constitute an expansion or enlargement of it as a legal nonconforming use.

William Pailey, Jr., who has worked at the Cemetery since 1969 and is now the Cemetery’s general manager, vice-president, and treasurer, also testified. He told the court that the first burial at the Cemetery occurred in 1924 and that there have been mausoleum entombments since 1957. At the time of trial there were about 1,500 occupied spaces out of 4,100 total in the mausoleums, compared to approximately 15,500 occupied graves out of the 60,000 or 70,000 that could be accommodated in the 60% of the property laid out for in-ground burial. The 13 mausoleum buildings, 12 of which are in the southwest comer of the Cemetery, vary from 114 to 764 crypts. Through Pailey, Jr., the Cemetery entered evidence of a 1924 plat recorded with the county and of building permits from 1986, 1984, 1981, 1980, and 1973. He could not find permits for the seven mausoleums built prior to 1973.

The next witness was Thomas J. Pekras, for 15 years director of the State Comptroller’s Cemetery and Burial Trust Department, which administers relevant State statutes (registration, licensing, auditing, etc.) for 5,900 of the 10,000 Illinois cemeteries. In the last 15 years, he had met over 1,000 cemeterians, attended many conferences, and visited many cemeteries, including this one. Prior to his current position, he taught English and worked for the State Board of Education. He testified that in the private cemetery industry, as in his Department, a cemetery is “a place for the final disposition through a variety of means of dead human bodies,” and a mausoleum is “an above-ground structure within a cemetery where dead bodies are placed for final disposition.” Over defendants’ objection, he testified that in his opinion, the addition of a mausoleum to an existing cemetery thus would neither change a cemetery’s nature or purpose nor extend or enlarge the use of a cemetery. To the best of his knowledge, a mausoleum was a customary facility for final disposition in Illinois in general and at the Cemetery in particular; there is no classification of cemeteries in Illinois according to method of disposition. On cross-examination, Pekras testified that all his information came from the owners of the Cemetery, whom he did not know. He had not reviewed the pleadings or other papers. He conceded that his position concerned financial management of cemetery trust funds and had nothing to do with land use. He was unfamiliar with the Ordinance.

William Pailey, Sr., the Cemetery’s president since incorporation, testified that he supervised planning of the grounds for graves and mausoleums. He believed that the first mausoleum at the Cemetery was begun in 1955 and completed in 1957. Its permit application included a plot plan for 30 proposed mausoleums along the south and west sides of the Cemetery. Between 1955 and 1989, he recounted, 12 permits had been issued for 13 mausoleums, none of which had needed a special use permit. Although the Cemetery sought to enter the statements made by the Village attorney and the Village president during a Village Board meeting involving the Cemetery’s administration building, the circuit court sustained defendants’ objection, agreeing that these statements were not admissible.

Pailey, Sr., also testified that in the industry, a cemetery is “the [place for] disposition of human remains and it entails entombment in mausoleums, interment in ground spaces, what we call traditional burial, and inurnment in cremation ditches [sic],” so the addition of the mausoleum would not change the Cemetery’s purpose or use. Currently, he testified, there are approximately 11,000 or 12,000 occupied graves and about 1,500 or 2,000 occupied mausoleum crypts out of about 4,000 total; the mausoleum at issue would add approximately 1,000 more. In his opinion, any limit on the number of mausoleums at the Cemetery would depend on the community’s needs, and a crematorium would be part of a cemetery, so the Cemetery would be entitled to construct one without a special use permit.

Donald Massaro, the executive director of cemeteries for the Roman Catholic Archdiocese of Chicago for nine years, was the next witness. He too testified that in the industry, the word “cemetery” means a place for human remains and encompasses graves, mausoleums, scattering gardens, niches, and lawn crypts; cemeteries are not classified differently depending on the presence or absence of mausoleums. In his opinion, the addition of the mausoleum at issue would not change the nature or use of the property because mausoleums are an integral part of cemeteries. In his cemeteries, 10% of the 22,000 yearly interments are in mausoleums, the first of which was built in 1957. He further believed that a crematorium should be permitted in any cemetery that wanted to build one and that there should be no limitation, other than aesthetics, placed on the number of mausoleums on a site. He was “not entirely” familiar with the Ordinance, and he conceded that he did not know the meaning óf the term “nonconforming use,” that he had neither examined any of the zoning ordinances his cemeteries were subject to nor knew their zoning classifications, and that he “vaguely” knew what a special-use permit was. He also admitted that a mausoleum other than a private or family one was a relatively new concept in the United States.

As its final witness, the Cemetery called Rolf Campbell, a city planning and zoning consultant for over 40 years who has been qualified approximately 150 or 200 times as an expert witness in land use matters. He has represented municipalities and on occasion has testified on behalf of the Village. He also had been involved in writing standards contained within zoning ordinances for cemeteries, including the preparation of the technical aspects of the 1976 comprehensive amendment to the Cook County zoning ordinance. He testified that there was no zoning ordinance in Cook County prior to the 1940 version and that the Village enacted its first one, which did not mention cemeteries, in 1927. When annexed by the Village in 1929, he explained, the Cemetery was “grandfathered” as a nonconforming use. In his opinion, to a reasonable degree of land use certainty, the addition of the proposed mausoleum would neither expand nor enlarge the use of the Cemetery property, nor would it change the nature of its use. To him, the limit on the number of mausoleums that could be built at the Cemetery would be the physical capacity of the land, that is, the land not occupied by graves. Campbell conceded that he had designed only two cemeteries, both in Michigan and both over 30 years ago. On cross-examination, defendants attempted to establish that zoning ordinances generally treat cemeteries and mausoleums differently, but Campbell refused to agree, citing a number of other local zoning ordinances.

The Cemetery concluded its case, and defendants orally moved for judgment in their favor. They disparaged the Cemetery’s evidence as generally irrelevant on the question before the court, which they defined as whether the mausoleum represented an increase in intensity of the Cemetery’s use, which would make it an expansion of the nonconforming use, necessitating a special use permit. Weighing the evidence, they argued, the court would find that the Cemetery had not sustained its burden of proof. In reply, the Cemetery highlighted the Village’s own interpretation of the Ordinance, as evidenced by its granting the prior permits without requiring a special use permit, and the industry use of the word “cemetery” to include mausoleums. It also contended that constructing mausoleums merely increased business, which even under defendants’ cases could not be deemed an imr permissible intensification of use, or, alternatively, that this was a fact question raised by the affirmative defense and thus was inappropriate for decision at this time.

In its memorandum of opinion, the circuit court first reviewed the stipulated facts, the definition of “cemetery” in related State statutes, and the Board’s decision. It found that

“mausoleums are treated separately from cemeteries under Illinois law and the Zoning Ordinance. The findings and decision of the Board were supported by the evidence and the law and they were not against the manifest weight of the evidence or contrary to law.
The proposed construction of the mausoleums [sic] would constitute an expansion in a nonconforming use which violates the ordinance of the Defendant Village. The Defendant Village has the authority to make mausoleums a special use under its zoning ordinance.
Accordingly, this court finds that Plaintiff is not entitled to the issuance of a building permit for the proposed mausoleum without a special use permit and that Defendant Building Commissioner and Defendant Zoning Board of Appeals did not err in applying the facts and construing the ordinance and the law.”

I

Section 2 — 1110 of the Code of Civil Procedure states as follows:

“In all cases tried without a jury, defendant may, at the close of plaintiff’s case, move for a finding or judgment in his or her favor. In ruling on the motion the court shall weigh the evidence, considering the credibility of the witnesses and the weight and quality of the evidence. If the ruling on the motion is favorable to the defendant, a judgment dismissing the action shall be entered.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1110.)

In applying this statute, courts are guided by Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E.2d 43. There, the supreme court explained that in all cases, jury and non-jury alike, a plaintiff must make out a prima facie case by presenting at least some evidence on every element essential to his cause of action. If the plaintiff cannot, the defendant is entitled to judgment as a matter of law. If the plaintiff does present some evidence on each essential element of his case, however, the court, in its role as fact finder, then weighs the evidence. If this weighing results in negation of some of the evidence necessary to the plaintiff’s prima facie case, the defendant is entitled to judgment. The supreme court further explained that the analysis used for a motion under section 2 — 1110 differs from that used for a directed verdict in a jury trial, as articulated in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, because when ruling on these motions, the court weighs the evidence, assesses witness credibility, draws reasonable inferences from the testimony, and need not view the evidence in the light most favorable to the plaintiff. Thus, reversal of a ruling on such a motion is in order only if the decision is contrary to the manifest weight of the evidence. Zannini v. Reliance Insurance Co. (1992), 147 Ill. 2d 437, 449, 590 N.E.2d 457, 461-62.

Complicating the procedural posture of this case, however, is the type of question presented here, which is one of construction of a zoning ordinance, and the applicable standard of review. In this regard,

“the construction of a statute, ordinance or constitutional provision is a question of law. Accordingly, the reviewing court may make an independent determination and need not defer to the decision of the trial court. [Citation.] Zoning ordinances are to be construed the same way as statutes. [Citation.] Effect should be given to the intention of the drafters by concentrating on the terminology, its goals and purposes, the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the ordinance. [Citations.] Because agencies can make informed judgments on the issues based upon their experience and expertise, it is generally recognized that courts will give substantial weight and deference to an interpretation of an ambiguous statute by the agency charged with the administration and enforcement of the statute. [Citation.]
***
A reviewing court will defer to the administrative entity’s practical construction of the ordinance unless it is clearly erroneous, arbitrary or unreasonable.” Monahan v. Village of Hinsdale (1991), 210 Ill. App. 3d 985, 993-94, 569 N.E.2d 1182, 1188 (declaratory judgment action).

See also Scadron v. City of Des Plaines (1992), 153 Ill. 2d 164, 185, 606 N.E.2d 1154, 1163 (court’s task is to ascertain and give effect to legislature’s true intent and meaning by starting with plain and commonly understood meaning of language unless otherwise intended while looking at ordinance as a whole); County of Lake v. Zenko (1988), 174 Ill. App. 3d 54, 60, 528 N.E.2d 414, 417 (property owners should be able to rely on zoning ordinance terms to have commonly understood, ordinary meaning unless defined or otherwise indicated).

We must reject the Village’s challenge to the circuit court’s refusal to admit certain testimony and alleged disregard for all the testimony concerning the Village’s history in interpreting its Ordinance, the industry’s interpretation, and definitions in various statutes. As explained above, the construction of the Ordinance is a question of law, not of fact. Furthermore, not only is our review of a ruling on a question of law de novo, but also we seek the plain and ordinary meaning of the Ordinance’s wording, for which definitions by other legislatures and in the industry offer little guidance. City of Evanston v. O’Leary (1993), 244 Ill. App. 3d 190, 614 N.E.2d 114 (separate legislative enactments are of little value, for they may use words differently, depending on context, legislative purpose, and practical results of particular interpretation).

II

Addressing this question of law, the Cemetery contends that when the Village wished a particular use to be deemed separate and distinct rather than an integral part of a broader and more encompassing use category, the Village gave it a separate listing in the Ordinance’s index or defined it. The Ordinance’s Use Table, stresses the Cemetery, contains the words “cemeteries, crematories or mausoleums” on a single line, there is no definition for any of these terms, and there are no separate listings in the index. From these clues, the Cemetery concludes, “cemetery” and “mausoleum” are synonymous for the purposes of the Ordinance, just as “church” is synonymous with “place of worship.”

We examine the Ordinance itself, which defines “use” as “[t]he purpose or activity for which the land, or building thereon, is designed, arranged or intended, or for which it is occupied or maintained, and shall include any manner or performance of such activity with respect to the performance requirements of this code.” (Arlington Heights, Ill., Zoning Ordinance §3.2 — 151 (1959).) It also states that “[a] lawfully established use *** which becomes non-conforming with respect to this code on the effective date thereof or as a result of any subsequent amendment thereto may be continued except as otherwise provided in this Section.” (Arlington Heights, Ill., Zoning Ordinance §7.1 (1959).) If a use is nonconforming, it may not be extended, enlarged, or changed to another nonconforming use. Arlington Heights, Ill., Zoning Ordinance §§7.4 — 1, 7.2 (1959).

Under the Ordinance, special use permits are needed for “[c]emet[e]ries, crematories or mausoleums.” (Emphasis added.) (Arlington Heights, Ill., Zoning Ordinance §4 — 1, Permitted Use Table (1959).) Illinois courts have held countless times that use of the disjunctive indicates that the writer intends to draw a distinction among the words used. (People v. Frieberg (1992), 147 Ill. 2d 326, 349, 589 N.E.2d 508, 518 (“As used in its ordinary sense, the word ‘or’ marks an alternative indicating the various members of the sentence which it connects are to be taken separately” unless a literal reading is inconsistent with an apparent legislative intent).) Thus, the use of the disjunctive here indicates that the Village intended that the two words be considered separate uses for the purposes of the Ordinance. Moreover, at the time the Ordinance was passed in 1959, the Cemetery contained at least one mausoleum, so use of the two words with the disjunctive indicates that the Ordinance views below- and above-ground disposition differently. We also find significant that the third of these three words, crematories, refers to a use quite different from a place for final disposition of human remains. In addition, we are mindful that among the purposes of the Ordinance is regulation of the intensity of land use and prevention of overcrowding. (Arlington Heights, Ill., Zoning Ordinance §§2.5, 2.12 (1959).) In this light, a definition of “cemetery” would not include mausoleums because the latter are structures built above ground and afford far more intense use of the same land. Here, for example, the proposed mausoleum would contain the remains of approximately 1,000 people but would occupy only approximately 6,500 square feet, whereas 1,000 graves surely would require far more area.

Accordingly, we hold that for the purposes of the Ordinance, a mausoleum is a use separate and distinct from that of a cemetery, so the Cemetery is not entitled to a building permit for the proposed mausoleum without first obtaining a special use permit. Given this disposition, we need not address the Cemetery’s contentions that mausoleums are accessory or integral to cemeteries, or that the circuit court erred in relying on the administrative record and in finding that a mausoleum constitutes an extension or enlargement of the Cemetery use for the purpose of the Ordinance. As for the Cemetery’s argument that to construe the Ordinance as making cemeteries and mausoleums distinct and mutually exclusive is contrary to the logic of a 1988 special use permit granted for a “cemetery garden” at a church, with the caveat that no mausoleum be built, we do not consider it, for this fact was not brought to the attention of the circuit court.

For the reasons stated above, we affirm the judgment of the circuit court.

Affirmed.

McCORMICK, P.J., and EGAN, J., concur.


author: JUSTICE CAMPBELL

text:
    TOMMIE DUNLAP, Plaintiff-Appellant, v. ILLINOIS FOUNDERS INSURANCE COMPANY, Defendant-Appellee.
    First District (1st Division)
    No. 1 — 91—3002
    Opinion filed July 26, 1993.
    Hokin & Melber, of Chicago (Gary S. Hokin, of counsel), for appellant.
    Leahy, Eisenberg & Fraenkel, Ltd., of Chicago (Thomas J. Finn and John J. McInerney, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff Tommie Dunlap appeals an order of the circuit court of Cook County denying plaintiff’s complaint for a declaration that defendant Illinois Founders Insurance Company (Founders) owed plaintiff coverage under a fire insurance policy.

The record on appeal indicates the following facts. On July 6, 1989, Plaintiff filed his complaint for declaratory judgment against defendant. Plaintiff alleged that defendant issued a fire insurance policy to plaintiff for a multiple-unit apartment building at 304 West 154th Place in Harvey, Illinois. This policy provided in part as follows:

“SECTION VI — PERILS INSURED AGAINST
This policy insures against all direct loss caused by:
* * *
8. VANDALISM OR MALICIOUS MISCHIEF, meaning only the willful and malicious damage to or destruction of the property covered.”

Plaintiff alleged that between August 13, 1988, and August 20, 1988, vandals entered the insured building and extensively damaged the building. Plaintiff promptly made a claim for coverage under the Founders policy. Defendant denied coverage, stating in part that: (1) plaintiff had fraudulently misrepresented material circumstances of the loss; (2) plaintiff had admitted that much of the property was damaged by theft, which is excluded under the policy; (3) plaintiff failed to protect the property from further loss; and (4) the loss was excluded from coverage under the terms of the policy. This last exclusion provided in part as follows:

“Perils Not Included. This company shall not be liable for loss by fire or other perils insured against in this policy caused, directly or indirectly by: *** (h) order of any civil authority ***.”

Plaintiff contended in his complaint that he was not guilty of fraudulent misrepresentation, that he did not violate the terms of the policy and that the policy did not exclude coverage for his loss in this instance.

Before trial, plaintiff gave a sworn statement to defendant. Plaintiff indicated in his statement that he acquired the building at issue in 1986. According to plaintiff, the building was insured by defendant from 1986, but the 1987 renewal policy was cancelled at some point for failure to pay the premium.

The case went to trial beginning on April 30, 1991. During the trial, deposition testimony of William Cattorini, who was hired by Founders to inspect the building, was read into the record on at least two occasions. The. record indicates that Cattorini inspected the building on July 28, 1988. Cattorini indicated that the vacant apartments had been boarded up, reflecting management’s effort to maintain the building. Cattorini noted that exposed stairways were dry-rotting and recommended repairs. Cattorini also noted that a number of windows were broken or boarded up and recommended repair. Cattorini further noted that dry wall was broken, floor tiling was missing and buckling, and that some units were cluttered with debris and trash. Cattorini recalled that a number of units were vacant, but could not recall whether a majority of them were vacant. Cattorini noted in his report to defendant that the building was “starting to go,” but that it could issue a policy for another year without a major catastrophe or claim against defendant.

Cattorini characterized the neighborhood in which plaintiff’s building was located as run down and deteriorating, with many vacant buildings. He noticed gang slogans and groups of young adults on the street corners. He believed that the gangs vandalized the buildings in the neighborhood in order to further gang activities. He also stated that based on his personal knowledge of the neighborhood, it would be very difficult to put units that had been boarded up back into circulation.

Plaintiff testified that in early August 1988, 28 or 29 of the units in the building were occupied. Plaintiff stated that the building was receiving utilities and was in a state of good repair at that time.

Plaintiff testified that he left town on August 13, 1988, and returned on August 23, 1988. Plaintiff indicated that he viewed the building on August 24, 1988, and observed serious damage from vandalism had been done to the building; many windows had been broken. Approximately 24 of the units remained occupied. Plaintiff immediately called his insurance broker and spoke to an insurance adjuster the following day.

Tenants continued to vacate the building. Damage to the building from vandalism, including graffiti, also continued to occur. Plaintiff and Roy Atterbury, who had performed maintenance and janitorial work for the building, boarded up the vacant apartments as they became vacant. By the middle of September 1988, only seven or eight units remained occupied. Plaintiff signed the property over to the City of Harvey, which then destroyed the building. Plaintiff made a claim under his insurance policy, which defendant denied.

On cross-examination, plaintiff testified that he could not recall whether he had stated in an earlier affidavit that on August 2, 1988, the City of Harvey, acting through its building commissioner, posted a notice of nonoccupancy due to building code violations and terminated utility services. Plaintiff also denied, in a series of questions, that 80% of the units needed scraping and painting, repairs to doors, storm doors, window glass and screens. Plaintiff stated that he was unaware of any structural damage to the foundation of the building. Plaintiff admitted that there was a broken sidewalk at the property. Plaintiff also admitted that the stairs and rails and the landing could have used a major overhaul, but stated that it was nothing serious.

Leonard Campbell testified that he was employed as a building inspector for the City of Harvey. Campbell indicated that he determines building code violations as part of the ordinary course of his employment. Campbell indicated that after inspecting a building, he ordinarily did not report to anyone before determining whether there was a building code violation. In a case where the mayor or his director knew of the problem, Campbell stated that he would report the violations to them to determine whether they wanted the matter expedited or handled in the normal manner.

Campbell testified that he initially inspected plaintiff’s building in March 1988. At that time, Campbell noted that there were housing code violations and that the building lacked a certificate of occupancy, i.e., the building had been rented without an inspection. Campbell sent notice of these violations to plaintiff. Campbell indicated that to his knowledge, these violations were never corrected.

Campbell then testified that he returned to plaintiff’s building on July 6, 1988. In the basement of the building, Campbell observed water damage, trash and debris and evidence of rats. Campbell stated that the situation was deteriorating.

Campbell further testified that he returned to the building again on July 29, 1988. He handed a notice to all tenants indicating that there was unsafe equipment in the building and that the building was not fit for human occupancy.

This notice appears in the record in conjunction with a sworn statement plaintiff gave to defendant under the terms of the insurance policy at issue. The notice is dated July 29, 1988, and is addressed to all tenants of plaintiff’s building from the City of Harvey. The notice indicates that all electrical power to the building will be shut off as of August 1, 1988, due to building code violations.

Plaintiff’s sworn statement indicates that he received this notice from tenants on the evening of July 29, 1988. The papers included in conjunction with the sworn statement also include a letter from City of Harvey Building Commissioner William Jones to the Chicago Housing Authority asking for assistance to the tenants regarding relocation to other apartments.

Campbell testified that he reinspected the building on August 4, 1988, and observed numerous building code violations. Campbell related these violations in great detail in his testimony.

Campbell testified that he sent a letter by registered mail to plaintiff dated August 12, 1988, notifying plaintiff of the numerous building code violations. Campbell indicated that he received a receipt for certified mail dated August 16, 1988, signed by plaintiff. The receipt was admitted into evidence.

Campbell further testified that he visited the building on four or five other occasions in August and September 1988. He never saw anyone making repairs or boarding up apartments.

On cross-examination, Campbell was questioned about a complaint he filed in court regarding the building code violations in this case. Plaintiff asked about the purpose of filing such a complaint. A colloquy ensued between both counsel and the trial court, which indicated it did not see the relevancy of the question. The question was not answered. The trial court asked Campbell whether the court made a finding on the complaint; Campbell indicated that he did not know. Campbell denied that such complaints were filed to obtain eviction notices. Plaintiff renewed his question regarding the purpose of filing the complaint; the trial court again indicated that it saw no purpose to the inquiry.

Roy Atterbury testified that he helped plaintiff board up the building after the damage that occurred in August.

Doris Maul testified that she was a former tenant of plaintiff’s building. She testified that in the middle of August 1988, the gas and electric companies shut off their services. The tenants began to vacate the premises. People began breaking into the apartments, breaking the windows and taking whatever they could out of the building.

Clyde Rowe testified that he was a contractor who viewed the building in July 1988, in order to give plaintiff an estimate for painting and redecorating work. Rowe stated that at that time, the building was nice and average. Rowe viewed the building again at the end of August 1988; doors were broken, dry wall was smashed and fixtures torn out of the building. Rowe saw the building a third time in the middle of September 1988; the damage had become so severe that it was impossible to repair.

After receiving evidence and hearing argument, the trial court found in favor of defendant. The trial court concluded that coverage was excluded as being directly or indirectly caused by an order of civil authority. Plaintiff filed a motion for reconsideration, which was denied. Plaintiff now appeals.

Initially, we note that a trial court’s denial of declaratory relief is discretionary and will not be reversed absent an abuse of that discretion. We also note, however, that this discretion is subject to searching appellate review and is not given the same deference accorded the trial court in other contexts. (E.g., Schneiderman v. Kahalnik (1990), 200 Ill. App. 3d 629, 633, 558 N.E.2d 334, 337.) In this case, the trial court determined that coverage was excluded because the loss was directly or indirectly caused by an order of civil authority under the terms of the policy.

Plaintiff questions whether the notice issued by Campbell was actually an order of civil authority. The parties have cited no Illinois case law addressing this specific issue, and our research has disclosed none. Instead, plaintiff cites a number of cases from other jurisdictions for the proposition that a loss does not fall within an “order of civil authority” exclusion when the order was outside the authority of the official who issued it. See, e.g., Reed v. Newark Fire Insurance Co. (1907), 74 N.J.L. 400, 65 A. 1053.

It has often been noted that this court is not bound by the decisions of the opinions of other State courts. (See, e.g., People v. Lawrence (1991), 208 Ill. App. 3d 292, 295, 566 N.E.2d 878, 881.) However, it is well established in Illinois that contracts of insurance are subject to the same rules of construction as other types of contracts. (Butler v. Economy Fire & Casualty Co. (1990), 199 Ill. App. 3d 1015, 1021, 557 N.E.2d 1281, 1285.) The primary objective of contract construction is to effectuate the intent of the parties; that intent should be determined, where possible, from the plain language of the document. See People ex rel. Willett Motor Coach Co. v. Board of Education of the City of Chicago (1988), 171 Ill. App. 3d 166, 174, 524 N.E.2d 1155, 1160.

In this case, the language of the exclusion relevant to the issue is unambiguous. The existence of an “order of civil authority” presupposes the existence of authority. Accordingly, we conclude that the policy exclusion in this case does not apply to actions outside the scope of the official’s authority.

The question remains as to whether the official exceeded his authority in this case. A presumption exists that public officials act in accordance with the law. (C B S, Inc. v. Partee (1990), 198 Ill. App. 3d 936, 948, 556 N.E.2d 648, 655.) However, if contrary evidence is introduced, any such presumption disappears. See Scheibel v. Groeteka (1989), 183 Ill. App. 3d 120, 139, 538 N.E.2d 1236, 1249; English v. Village of Northfield (1988), 172 Ill. App. 3d 344, 347, 526 N.E.2d 588, 590.

The record in this case, including the July 29; 1988, notice, indicates that Campbell had the authority to make a finding that the building was unsafe for human habitation. The record contains no evidence as to whether Campbell had the authority to issue the type of notice issued here or whether some emergency situation existed. Given the aforementioned rules of presumption, it would appear that we should presume that Campbell acted within the scope of his authority in issuing the particular notice at issue here.

However, the rules regarding presumptions apply where a party has affirmatively failed to introduce contrary evidence. These rules coexist with the rule that a reversal may be warranted where a trial court’s erroneous exclusion of evidence causes substantial prejudice and affects the outcome of the proceeding. (See Leary v. Eng (1391), 214 Ill. App. 3d 279, 284, 573 N.E.2d 352, 356.) The record indicates that plaintiff repeatedly attempted to question Campbell about a court action Campbell filed regarding the building at issue here. Plaintiff’s questions were repeatedly interrupted by opposing counsel and the trial court. The record further indicates that the trial court did not see any purpose to the inquiry.

This court does see the purpose of the inquiry. If (as plaintiff suggests) Campbell’s issuance of the notice of termination of utility services required judicial approval, Campbell’s actions may have exceeded his authority. If there was no authority for Campbell’s actions, the loss would fall outside the scope of the policy exclusion. The trial court mistakenly believed that the issue was irrelevant. Consequently, the trial court mistakenly precluded plaintiff from eliciting testimony that may have rebutted the presumption upon which the judgment relies. Given the record in this case, we cannot affirm the judgment based solely on the presumption that Campbell acted within his authority.

Of course, this court may affirm the decision of the trial court for any reason appearing in the record, regardless of whether the reasoning of the trial court was correct. (Muck v. Van Bibber (1992), 223 Ill. App. 3d 830, 835, 585 N.E.2d 1147, 1157.) However, we are not required to search the record to affirm. (Muck, 223 Ill. App. 3d at 835, 585 N.E.2d at 1151.) Where there are multiple arguments left unresolved by the trial court, it may be more prudent in a particular case to vacate the judgment and remand the case for further proceedings. (See Muck, 223 Ill. App. 3d at 835-37, 585 N.E.2d at 1151.) This case, in which defendant interposed numerous defenses, is such a case.

For all of the aforementioned reasons, we vacate the judgment of the circuit court of Cook County and remand the case for further proceedings.

Vacated and remanded.

MANNING, P.J., and O’CONNOR, J., concur.


author: JUSTICE McLAREN

text:
    JOHN DOE, a Minor, by his Mother and Natural Guardian, Jane Roe, Plaintiff-Appellee, v. JAN CARLSON, Clerk of the Circuit Court of Kane County, Defendant (Moose International, Inc., Defendant-Appellant).
    Second District
    No. 2 — 92—1250
    Opinion filed September 7, 1993.

      John C. Bartler, David T. Poulos, and Daniel E. O’Brien, all of McKenna, Storer, Rowe, White & Farrug, of Wheaton, for appellant.
    James C. Byrne, of Joliet, for appellee.
    Paul G. Krentz, of Murphy, Hupp, Foote, Mielke & Kinnally, of Aurora, guardian ad litem.

   JUSTICE McLAREN

delivered the opinion of the court:

On October 16, 1992, the circuit court of Kane County granted plaintiff’s motion for summary judgment and ordered that a writ of mandamus be entered directing the Kane County circuit court clerk (hereinafter Kane County clerk) to permit plaintiff’s attorney complete access to two separate case files (Nos. 88 — L—0275 and 88 — L— 0276 consolidated) which had previously been impounded by an agreed order involving defendant, Moose International, Inc. On October 19, 1992, another order was entered which allowed plaintiff’s attorney the right to photocopy the contents of these files.

On appeal, defendant asserts that (1) plaintiff did not present sufficient proof to support the writ of mandamus, (2) the writ of mandamus was not a proper vehicle to compel the opening of a previously impounded court file, and (3) the trial court erred in issuing the writ of mandamus in light of the earlier impoundment order. We affirm in part and vacate in part.

During 1988, five separate lawsuits were filed on behalf of five minor girls who were allegedly molested at a child-care facility, Moose International, Inc. All five of these cases were consolidated for discovery, and the parties agreed to impound the files in order to protect the identity of the young girls. The cases were subsequently settled for an undisclosed amount. The language of the impoundment order issued by the circuit court of Kane County was as follows:

“Access to this file is restricted to the court, the parties, law enforcement officers and/or law enforcement agencies involved with the associated criminal proceedings which have been brought against Donald Doyle. No other person shall have access to this file without a specific order of this court.” (Emphasis added.)

In April 1992, plaintiff also filed a lawsuit against Moose International. Plaintiff’s suit, filed in Will County, made similar allegations against Moose International and sought damages resulting from sexual abuse which occurred while he was a resident of the facility. Aware of the earlier Kane County cases against Moose International, plaintiff sought access to those impounded files in order to obtain evidence or facts that would support his allegations of Moose International’s liability.

The Kane County clerk refused to allow plaintiff to view the files of the earlier cases because of the prior impoundment order. Accordingly, plaintiff made a motion, before the circuit court of Kane County, to view the impounded files. Plaintiff subsequently asked that a writ of mandamus be entered against the Kane County clerk, which would compel him to permit plaintiff to inspect the impounded files. Moose International filed an appearance and sought to prevent plaintiff from obtaining access to the impounded files on the grounds that (1) the agreed order resulting in the impoundment has the binding force of a contract and (2) the court’s exercise of its authority to impound the files should not be overturned. The Kane County clerk, in opposition to plaintiff’s requested relief, argued that the prior impoundment was proper and should be upheld to protect the valuable privacy interests of the parties involved.

The circuit court of Kane County ordered that the writ of mandamus issue and that plaintiff’s attorney be allowed to inspect the files in question subject to the condition that the attorney agree to maintain the anonymity of the minors identified in those case files. In making its ruling, the trial court relied upon its inherent authority to control its own files. The court determined that, absent protective orders or other more explicit prohibitions, court records shall remain accessible to the public. Moose International has filed an appeal of the trial court’s decision, but the Kane County clerk has not.

Defendant now argues that the trial court erred when it issued the writ of mandamus because such writs should only be used to enforce rights that have already vested and they should not be used as a tool to facilitate discovery. Defendant also argues that plaintiff is unable to establish a vested right in support of a writ of mandamus because there are insufficient facts to establish a connection between plaintiff’s case and the earlier impounded cases and because plaintiff has failed to establish a sufficient governmental interest which would justify issuing the writ. In response, plaintiff asserts that courts have inherent powers to modify orders of impoundment and that the right to the issuance of a writ is premised upon the public’s right to inspect and copy judicial documents as recognized at common law and by Illinois statutes. 705 ILCS 105/16(6) (West 1992).

A writ of mandamus is a remedy at law to command a public official to perform some ministerial, nondiscretionary duty. (People ex rel. Ryan v. Retirement Board of the Firemen’s Annuity & Benefit Fund (1985), 136 Ill. App. 3d 818.) A petitioner seeking a writ of mandamus must show a clear and unequivocal right to have the duty performed. (Machinis v. Board of Election Commissioners (1987), 164 Ill. App. 3d 763, 767.) A writ of mandamus is not proper where the right of a petitioner must first be established or the duty of the officer sought to be coerced must first be determined. (Machinis, 164 Ill. App. 3d at 767.) Thus, a complaint for writ of mandamus must set forth all the material facts necessary to demonstrate a clear right to the writ. (Thomas v. Village of Westchester (1985), 132 Ill. App. 3d 190, 196.) In sum, the only purpose of a mandamus proceeding is to enforce rights already lawfully vested. Flick v. Kramer (1987), 151 Ill. App. 3d 836, 841.

We will not reverse the issuance of a writ of mandamus unless the grant is against the manifest weight of the evidence. (Central Transport, Inc. v. Village of Hillside (1991), 210 Ill. App. 3d 499, 510.) In the present case, we determine that the trial court’s grant of the writ of mandamus was against the manifest weight of the evidence because plaintiff did not have a vested right to view the impounded files in light of the language in the impoundment order.

In general, court documents are public records and are, as a result, freely accessible. Specifically, the Clerks of Courts Act indicates, in relevant part:

“All records, dockets and books required by law to be kept by such clerks shall be deemed public records, and shall at all times be open to inspection without fee or reward, and all persons shall have free access for inspection and examination to such records, docket and books, and also to all papers on file in the different clerks’ offices and shall have the right to take memoranda and abstracts thereto.” (705 ILCS 105/16(6) (West 1992).)

However, this statutorily prescribed access to public records is not absolute and is subject to the inherent power of the trial court to impound its own records. According to Deere & Co. v. Finley (1981), 103 Ill. App. 3d 774, 776, “[t]he existence of the statute permitting access to [court] records does not abrogate the trial court’s inherent power to control its files and to impound any part of a file in a particular case.” Thus, although there is a presumption favoring public access to judicial records, a court, in its sound discretion, may impound records if it is shown that the interests asserted for restricting access outweigh those in. support of access. (In re Marriage of Johnson (1992), 232 Ill. App. 3d 1068, 1072-73.) In the present case, the trial court impounded the records in order to protect the names of child abuse victims from public disclosure, and our supreme court has held that such considerations can justify the court’s imposition of limited public access to court documents. See In re A Minor (1992), 149 Ill. 2d 247.

The instant impoundment order imposed restricted access to the court files and required those seeking access to obtain an appropriate court order. Having encountered such an impoundment order, the Kane County clerk properly denied access to the documents of concern. In order to comply with the impoundment order, a specific order of the circuit court of Kane County should have been presented. Plaintiff never made such a presentation. Therefore, plaintiff did not have a clear unequivocal right to view the documents. In sum, without the presentation of an appropriate court order, accompanied by a wrongful rebuke of that presentation by the circuit court clerk, plaintiff’s rights had not vested and the mandamus action was premature. See Kramer v. City of Chicago (1978), 58 Ill. App. 3d 592, 598.

By way of illustration, in Deere, the plaintiff brought a writ of mandamus action against the circuit court clerk in an effort to gain access to specified court files. The circuit court clerk had refused access to these files because some of the materials had been impounded, apparently in order to maintain the confidentiality of certain trade secrets. The trial court ruled that the impoundment orders were broad enough to prevent the plaintiff from gaining access to the entire court file and, thus, denied the writ of mandamus. However, the appellate court believed that the earlier impoundment order did not encompass the entire court file. Accordingly, the court determined that manda mus was proper for those parts of the file which had not been impounded. However, with respect to those documents which were specifically impounded, a writ of mandamus was not the proper course of action. (Deere, 103 Ill. App. 3d at 778.) In the present case, the files of concern were impounded in their entirety, and, as was true for the impounded portions of the court file in Deere, plaintiff had no right to view or inspect those materials absent a court order stating otherwise. Therefore, in the absence of a vested right to view the documents, the writ of mandamus was improperly sought and incorrectly granted.

As previously mentioned, plaintiff made a motion to view the impounded documents. This motion was not explicitly ruled upon. The motion to view could not have been the basis for the issuance of the writ of mandamus because a party cannot acquire rights in the context of a mandamus action. (Flick, 151 Ill. App. 3d at 841.) However, the trial court in making its findings of fact, determinations of law, and granting the relief requested cited legal bases other than mandamus. The court effectively granted the motion to view and the petition seeking mandamus. For the reasons stated above, we determine the portion of the judgment granting mandamus was improper, and we vacate that portion of the judgment.

The remaining portion of the judgment allowing the right to view with conditions and limitations was addressed by the parties at trial and in this court. We have reviewed the record to determine if the trial court abused its discretion in allowing petitioner to view the file. (In re Marriage of Johnson (1992), 232 Ill. App. 3d 1068, 1073.) We conclude there was no abuse of discretion and the portion of the judgment allowing the view is affirmed.

For the above reasons, we vacate that portion of the judgment granting the writ of mandamus and affirm that portion of the judgment affirming the viewing of the impounded file.

The judgment of the circuit court of Kane County is affirmed in part and vacated in part.

Affirmed in part; vacated in part.

BOWMAN and DOYLE, JJ., concur.