text:
    MICHAEL HIGHLAND, Plaintiff, v. MARY BRACKEN, Defendant and Third-Party Plaintiff-Appellee (Steven D. Williams et al., Third-Party Defendants-Appellants).
    Fourth District
    No. 4—90—0047
    Opinion filed September 6, 1990.

      Richard E Record, Jr., and Mark R. Karpus, both of Craig & Craig, of Mattoon, for appellants.
    Janett S. Winter-Black, of Dilsaver, Nelson & Winter-Black, of Mattoon, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Third-party defendants, Steven Williams and the City of Mattoon (hereinafter referred to as third-party defendants), appeal a trial court’s order denying a motion for summary judgment regarding a third-party contribution action. Third-party defendants contend the contribution action was barred by the one-year statute of limitations contained in section 8 — 101 of the Local Governmental and Governmental Employees Tort Immunity Act (Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 8—101).

On May 20, 1987, defendant, Mary Bracken, travelled on a green light west through an intersection, colliding with a fire truck going north. The plaintiff, Michael Highland, was a passenger on the fire truck at the time of the collision. Highland then brought suit against Bracken. The original complaint was filed on April 19, 1989. Bracken’s answer of June 15, 1989, included a third-party complaint against third-party defendants, seeking contribution pursuant to section 13— 204 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 13—204) and the Contribution Among Joint Tortfeasors Act (Contribution Act) (Ill. Rev. Stat. 1987, ch. 70, pars. 301 through 305). Count I of the third-party complaint alleged ordinary negligence, and count II alleged wilful and wanton negligence. On January 4, 1990, the court granted third-party defendants’ motion for summary judgment in regard to count I of Bracken’s complaint, but denied summary judgment for count II. The court allowed this interlocutory appeal under Supreme Court Rule 308 (107 Ill. 2d R. 308).

Third-party defendants contend that since the contribution action was filed more than one year after the injury occurred, the statute of limitations of the Immunity Act supersedes that of the Contribution Act and bars Bracken’s cause of action for contribution. Third-party defendants further contend the cause of action for contribution accrues on the date the injury was received. Bracken argues the two-year statute of limitations included in the Contribution Act applies, and that the contribution cause of action does not accrue until payment is made or obligation for payment is incurred.

Relevant statutes include, first, the Immunity Act:

“No civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued. For purposes of this Article, the term ‘civil action’ includes any action, whether based upon the common law or statutes or Constitution of this State.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 85, par. 8— 101.)

The emphasis added denotes additional language amending that section (Ill. Rev. Stat. 1985, ch. 85, par. 8—101), and the reduction of the time limit for commencing such action from two years to one. (Pub. Act 84-1431, eff. Nov. 25, 1986 (1986 Ill. Laws 3740).) Second, the Code:

“No action for contribution among joint tortfeasors shall be commenced with respect to any payment made in excess of a party’s pro rata share more than 2 years after the party seeking contribution has made such payment towards discharge of his or her liability.” (Ill. Rev. Stat. 1987, ch. 110, par. 13—204.)

Third, the Contribution Act:

“A cause of action for contribution among joint tortfeasors may be asserted by a separate action before or after payment, by counterclaim or by third-party complaint in a pending action.” Ill. Rev. Stat. 1987, ch. 70, par. 305.

The main issue in this case is whether the cause of action for contribution “accrues,” for purposes of triggering the statute of limitations, at the time of injury, or whether it remains inchoate until the occurrence of certain other events. Black’s Law Dictionary defines “accrue” as to vest or to mature. (Black’s Law Dictionary 19 (5th ed. 1979).) “[A] cause of action accrues when facts exist which authorize one party to maintain an action against another.” (Meeker v. Summers (1979), 70 Ill. App. 3d 528, 529, 388 N.E.2d 920, 921.) Furthermore, “the statute of limitations begins to run from, and not until, the time that the cause of action *** accrues.” (Schreiber v. Hackett (1988), 173 Ill. App. 3d 129, 131, 527 N.E.2d 412, 413.) Accordingly, the accrual of a specific cause of action signals the beginning of the running of the statute of limitations, and the time of accrual varies for different causes of action depending on when the facts exist which allow and authorize that particular cause of action. While it is well settled that a cause of action for personal injury resulting from a tort accrues on the date of injury (Aetna Life & Casualty Co. v. Sal E. Lobianco & Son Co. (1976), 43 Ill. App. 3d 765, 768, 357 N.E.2d 621, 623), this is not necessarily so for a contribution action, which is itself a separate cause of action as indicated by section 5 of the Contribution Act.

A contribution action lies, for example, when (1) a payment is incurred or made in whole or in part on a common obligation, or something is done in the equivalent, so that this payment made by the joint obligor is in excess of his share of the common obligation (Harris v. Buder (1945), 326 Ill. App. 471, 475-76, 62 N.E.2d 131, 133); or (2) the party bringing the contribution action is sued by a complaining party, giving him notice of the nature and the potential amount of the obligation necessitating the contribution action (Withall v. Capitol Federal Savings (1987), 155 Ill. App. 3d 537, 541, 508 N.E.2d 363, 366).

Third-party defendants contend the date of accrual of a contribution action must be the date of injury, thereby barring third-party plaintiff’s cause of action. We disagree. In White v. Touche Ross & Co. (1987), 163 Ill. App. 3d 94, 516 N.E.2d 509, the court held the relevant date to determine whether to apply the Contribution Act was the date of injury, rather than the date the cause of action accrued. (White, 163 Ill. App. 3d at 101, 516 N.E.2d at 513-14.) In Stephens v. McBride (1983), 97 Ill. 2d 515, 455 N.E.2d 54, the supreme court stated a cause of action for contribution may accrue “years after the accident has occurred.” (Stephens, 97 Ill. 2d at 522, 455 N.E.2d at 58.) The supreme court has also held contribution actions must be brought during the pending action or it is barred (Laue v. Leifheit (1984), 105 Ill. 2d 191, 196, 473 N.E.2d 939, 941-42), and that “the right of contribution exists, although in inchoate form, from the time the person seeking recovery is injured.” Rakowski v. Lucente (1984), 104 Ill. 2d 317, 321, 472 N.E.2d 791, 793.

Accordingly, contrary to the contentions of the third-party defendants, White and McBride suggest the date of injury and the date the cause of action for contribution accrues are not necessarily the same. Therefore, we find that while this right of contribution exists from the time of injury, it exists in inchoate form, and does not ripen, mature, vest, or accrue, until either payment is made, obligated, incurred, or an action is brought against the defendant. This analysis is consistent with Laue, and as such, the third-party defendants’ contention in this regard is without merit.

This analysis is also consistent with section 2(a) of the Contribution Act, which states “where 2 or more persons are subject to liability in tort *** there is a right of contribution among them, even though judgment has not been entered against any or all of them.” (Ill. Rev. Stat. 1987, ch. 70, par. 302(a).) The date on which this inchoate contribution right of action arises is relevant when the determination of the extent of injury is at issue, since “ ‘liability’ is determined at the time of the injury out of which the right to contribution arises, and not at the time the action for contribution is brought.” (Stephens, 97 Ill. 2d at 520-, 455 N.E.2d at 57.) This date is also relevant when the injury occurred prior to the enactment of the Contribution Act, in which case the Contribution Act will not apply. (White, 163 Ill. App. 3d at 101, 516 N.E.2d at 514.) Conversely, the date the cause of action accrues is relevant in determining the time from which the relevant statute of limitations shall run. “[T]he statute of limitations appropriately runs from the time when the cause of action [for contribution] ripens but the naked right of contribution arises at an earlier time.” Verson Allsteel Press Co. v. Major Spring & Manufacturing Co. (1982), 105 Ill. App. 3d 419, 423, 434 N.E.2d 456, 459.

Therefore, this is the critical distinction between the right to and the accrual of a contribution action which allows this third-party-plaintiff to bring her action within the guidelines of the Contribution Act, the Immunity Act and the Laue decision. In this case, the right of contribution arose, but in inchoate form, at the time of the injury. The cause of action did not accrue for purposes of the statute of limitations until the date the action was filed against the third-party plaintiff. The cause of action for contribution was then no longer inchoate, and accrued or ripened on this date for purposes of the statute of limitations. The Immunity Act imposes a one-year statute of limitations from the date the cause of action accrued, which includes “any action” based on common law, statute or the Constitution of Illinois. (Ill. Rev. Stat. 1987, ch. 85, par. 8—101.) The term “any action” has been held to include a contribution action. (Heneghan v. Sekula (1989), 181 Ill. App. 3d 238, 241-42, 536 N.E.2d 963, 965-66.) Since an action for contribution is subject to applicable statutes of limitations (Hartford Fire Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill. App. 3d 515, 518, 511 N.E.2d 706, 708), and this contribution action was filed within the pending litigation and within a year of the filing of the original complaint, this action was timely under Laue and the Immunity Act.

The recent Illinois Supreme Court decision in Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 460, stated Laue only established the procedural requirement that contribution actions must be filed during the pendency of the underlying direct action, and that Laue did not hold that every action filed during such litigation was necessarily timely filed. In Hayes, this meant even if an action was filed during the litigation, this did not save it from being barred by the statute of repose involved there, so Laue was not dispositive. (Hayes, 136 Ill. 2d at 460.) Likewise here, Laue does not support third-party defendants’ argument that a contribution action accrues at the time of injury simply because such an action must be filed during the pending lawsuit. We therefore find Laue is not dispositive of the issue of when a contribution action accrues.

Third-party defendants argue the legislature, through Public Act 84 — 1431, effective November 25, 1986 (1986 Ill. Laws 3740), nullified the Stephens decision, making it irrelevant to this decision. We disagree. The legislature is presumed to enact an amendment with the knowledge of previous case law. (Rinkenberger v. Cook (1989), 191 Ill. App. 3d 508, 512, 548 N.E.2d 133, 135.) Had the legislature intended to nullify or contradict Stephens, it would likely have stated so. (Hupp v. Gray (1978), 73 Ill. 2d 78, 382 N.E.2d 1211.) This public act incorporated the changes in section 8— 101 of the Immunity Act indicated previously, and also repealed the notice provisions of section 8—102 of the Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 8—102) which were the subject of Stephens. Yet, the plaintiff cites no discussion in the 1986 Senate or House debates on this act wherein the legislators specifically stated a desire to nullify Stephens, nor has our research disclosed any. The Stephens decision involved the overall policy of the Immunity Act, not specifically the two-year statute of limitations of section 8—101 and, accordingly, the reduction of this limitation is no indication of the intent to nullify the decision.

We also find it significant that this amendment to section 8 — 101 of the Immunity Act not only added language which states the term “civil action” includes “any action,” but retained the mandate that the cause of action must be commenced within the appropriate statute of limitations “from the date that the injury was received or the cause of action accrued.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 85, par. 8—101.) This indicates the legislature intended to keep the two phrases separate, and intended the Immunity Act’s statute of limitations to run from either the date the injury occurred or the cause of action accrued. Since the amendment to the Immunity Act allows this statute of limitations to apply to any action based on statute, such as the Contribution Act, this remains consistent with the Stephens court’s observation that a contribution action may accrue many years after the accident has occurred. Furthermore, the Stephens decision was available to the legislature, and it made no changes which require a contrary result here. Therefore, despite changes in the statute, third-party defendants’ contention that the legislature intended to nullify Stephens is without merit, and we hold the 1986 amendment did not do so.

The third-party defendants have cited a number of cases to support their arguments concerning these issues. These cases are, however, distinguishable, falling in one of several categories; e.g., (1) the contribution action is brought after the statute of repose, (2) the suit does not properly allege wilful and wanton negligence, or (3) the original injury occurred prior to March 1, 1978, making the Contribution Act inapplicable.

In Hayes, cited in third-party plaintiff’s motion for leave to submit additional authority, the supreme court held (1) the medical malpractice statute’s four-year limitation, section 13—212 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 13—212), was a statute of repose; (2) the contribution action was brought after this time period had run; (3) the statute of repose terminated the possibility of liability; and therefore (4) the contribution action itself was barred. (Hayes, 132 Ill. 2d at 461.) Hayes does not address whether the Contribution Act is more or less specific than other statutes, whether one statute of limitations should prevail over another, or whether a statute of limitations is distinguishable from a statute of repose. Accordingly, Hayes, as well as several cases cited by third-party defendants, is distinguishable in that it involves a statute of repose rather than a statute of limitations.

Third-party defendants argue that the fact contribution actions were brought in these cases after the statute of repose is not a relevant factor and is “beside the point.” We disagree. A statute of repose is essentially different from a statute of limitations, in that a limitations statute is procedural, giving a time limit for bringing a cause of action, with the time beginning when the action has ripened or accrued; while a repose statute is a substantive statute, extinguishing any right of bringing the cause of action, regardless of whether it has accrued. (Thornton v. Mono Manufacturing Co. (1981), 99 Ill. App. 3d 722, 726, 425 N.E.2d 522, 525.) Therefore, in the case of a contribution action, the cause of action may accrue many years after the injury has occurred, thereby setting the time running on the applicable statute of limitations, unless a statute of repose has run. In those cases, the right to bring such an action has been totally extinguished, regardless of whether the cause of action has accrued — in which case any discussion of the point in time when the cause of action accrued becomes irrelevant. Therefore, we do not find these repose cases helpful or determinative of this case.

Third-party defendants argue Stephens should be applied narrowly, that it dealt only with a now defunct notice provision, making the rest of the opinion mere dicta. We disagree. The Stephens court arrived at its holding on this notice provision through its analysis of the statute’s policies as a whole. As such, for this and other reasons stated previously, we find the Stephens analysis persuasive, and conclude its reasoning should not be narrowly limited.

Accordingly, we hold the right of a contribution action, while arising at the date of injury, is then an inchoate right, accruing or ripening at the time the action is brought against defendant, or at the time of payment or obligation therefor. To accept third-party defendants’ argument would mean the defendant would have to sue within one year while the original plaintiff could wait to file within the two-year statute of limitations applicable to torts. The defendant would be forced to file innumerable anticipatory causes of action against potential joint tortfeasors, which causes of action are unnecessary unless the original plaintiff sues. Such a result would be unfair to the defendant and would place an unreasonable and unjustifiable burden on the court system. Accordingly, public policy, as well as reasons previously stated, dictates the third-party defendants’ argument must fail.

In summary, the Immunity Act limitation is complied with as the third-party complaint was filed -within one year “from the date the cause of action accrued,” April 19, 1989. The Contribution Act was complied with as the same third-party complaint was filed within two years (Stephens, 97 Ill. 2d 515, 455 N.E.2d 54) and within the restrictions of Laue.

In view of our decision regarding the time of accrual of a contribution action, and since the defendant third-party plaintiff filed her contribution action within one year of the suit brought by the original plaintiff, we need not decide whether the Immunity Act supersedes the Contribution Act.

For the foregoing reasons, the circuit court is affirmed.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SPITZ

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD LEE CISCO, Defendant-Appellant.
    Fourth District
    No. 4—90—0071
    Opinion filed September 6, 1990.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

After a bench trial, defendant was convicted of criminal trespass to a residence, a Class A misdemeanor. (Ill. Rev. Stat. 1989, ch. 38, par. 19—4.) He was sentenced to a term of 140 days’ incarceration, with credit for time served. Defendant appeals, arguing the trial court erred at sentencing by considering, in aggravation, that defendant’s conduct threatened serious harm, a factor inherent in the charged offense.

Initially, we note the State filed a motion to dismiss this appeal on the basis of mootness, since the relief requested is vacatur of the sentence imposed and remand for a new sentencing hearing, and the sentence has been served. (People v. Murrell (1975), 60 Ill. 2d 287, 294, 326 N.E.2d 762, 766; In re D.G. (1988), 176 Ill. App. 3d 658, 660, 531 N.E.2d 426, 426-27.) This motion was denied and the State has renewed its mootness argument by brief. The courts have recognized an exception to the mootness doctrine, i.e., the public interest exception, when (1) the circumstances are likely to recur, (2) an authoritative determination for the future guidance of public officers is desirable, and (3) the short duration of the action would otherwise render the matter nugatory before the issue could be reviewed. (People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 622, 104 N.E.2d 769, 772; In re N.R. (1988), 172 Ill. App. 3d 14, 15, 525 N.E.2d 1193, 1194.) Defendant herein was sentenced on December 21, 1989, so the 140-day sentence has run. However, as this is a Class A misdemeanor, it falls within that group of cases wherein sentencing issues are likely to elude review; and the manner and circumstances under which the threat of harm was considered in sentencing for this offense is a problem likely to recur. Accordingly, we elect to consider this case within the public interest exception and proceed to its merits.

The facts as adduced at trial may be briefly summarized. The complaining witness lived in a house in Heyworth, Illinois, with her daughter. She and her daughter were up watching television during the early morning hours of November 11, 1989. A male friend had come over to join them at about 1:30 a.m. All the lights in the house were on. At about 2:45 a.m., the complainant heard several noises, i.e., squeaks, coming from the back of her house and got up and went to investigate. Walking back through her kitchen after checking her daughter’s room, she felt a cold breeze hit her knee and looked toward the back door, 10 to 15 feet away. The door, which had been left unlocked, “was opened with a head sticking through it.” She walked to the door and had her hand on the knob to pull it open when the person who was entering pulled it shut. She then opened the door to get a better look at the intruder and started screaming. She identified defendant as the person who had opened the door and stuck his head into her house. Police were summoned, and she told them Ronnie Cisco had been in her doorway, wearing a dark-colored leather jacket and jeans.

Defendant lived with his parents in a trailer in a trailer park adjacent to complainant’s residence. Officers went to the trailer, where they found defendant in his underwear on a cot in the living room. They asked him to dress and come outside, and he put on jeans and a dark-colored leather jacket. The officers took defendant to complainant’s residence in the back of a squad car and asked her if she could identify him, which she did.

At trial, defendant presented the testimony of his father, who said defendant came in at 11:15 p.m. and left again, awakening him when he returned, estimating the time as between 1:30 and 2 a.m. Defendant’s younger brother testified defendant came in between 10:30 and 10:45 p.m. and went back out, but was in bed, appearing to be sound asleep, when he got up at 3:10 a.m. to use the restroom. A 16-year-old boy testified defendant went with him and some other friends to a youth group, like a Christian rock concert, and got back about 10:30 p.m., when defendant went with him to a trestle in the neighborhood and sat and talked until about 1:30 a.m. He said he saw defendant walk up and open the door to his trailer. On this evidence, the defendant was convicted.

At the sentencing hearing, the State presented, as evidence in aggravation, that defendant had a prior conviction for a residential burglary in May 1982, for which he had been sentenced to eight years’ imprisonment, and he was presently on a parole hold. Defense counsel argued there were several mitigating factors within the meaning of section 5 — 5—3.1 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.1), specifically: (1) “the defendant’s criminal contact neither caused nor threatened serious physical harm to another, and I would maintain that the actions described in this cause of action would fit within that first paragraph” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.1(a)(1)); and (2) while in prison, defendant had made efforts to improve himself by earning a GED and a sanitation license and, after his release, had obtained a job and was involved in church activities for the month before this offense occurred. The State then recommended a sentence of six months in jail, defense counsel argued for 21 days’ incarceration, and defendant exercised his right of allocution and asked for leniency.

In pronouncing sentencing, the court looked, first, to the defendant’s prior record and said failure to impose some sort of jail penalty would seem to deprecate the seriousness of the offense. The judge then stated:

“[The Court:] So this Court finds based upon the circumstances, prior record, and contrary to what defense counsel argues that it was no particular threat to anybody, I think anytime that there is an effort to enter any residence, especially when there’s [sic] people there, that it does put a threat not only to the people that may be there, but also to you if the reaction is such that—
DEFENDANT: Yes, sir.
THE COURT: —that perhaps they shoot you or something of that nature. It does create a threat. I mean, people don’t go around at that hour of the morning and enter residences uninvited without presenting what I would believe a serious threat. So based upon that the Court finds that under the circumstances that there ought be a jail penalty imposed, and the Court is going to impose a penalty of 140 days’ incarceration.” (Emphasis added.)

Defendant relies on cases challenging the consideration that the defendant’s conduct caused or threatened serious harm, a factor in aggravation under section 5—5—3.2(a)(1) of the Code (see Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3.2(a)(1)), including the decision of this court in People v. Allen (1981), 97 Ill. App. 3d 38, 39-40, 422 N.E.2d 254, 255 (burglary), and the decisions in People v. Maxwell (1988), 167 Ill. App. 3d 849, 852-53, 522 N.E.2d 288, 290-91 (unlawful delivery of a controlled substance), and People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906 (proceeds taken by a defendant cannot be considered as an aggravating factor in sentencing on burglary with intent to commit theft or on theft).

First, the court, in the comments to which defendant objects, was disagreeing with defense counsel’s characterization of the facts of the offense as showing a mitigating factor under section 5—5—3.1(a)(1) of the Code, stating its reasoning for rejecting this as grounds to be accorded weight in favor of withholding or minimizing a sentence of imprisonment. Second, to the extent that the court referred to defendant’s conduct as presenting a serious threat, it was addressing itself to the timing and circumstances of this particular conduct, permissible considerations in sentencing. Allen involved entry to an Aamco Transmission business at about 4 a.m. In reversing and remanding for re-sentencing, this court stated: “The situation is not like that in which the burglar engages in combat with the police, enters an occupied dwelling or other building, or has a confrontation with persons while in the building. For the aggravating factor to be applied properly, the risk of harm must be greater than that inherent in almost all burglaries.” (Emphasis added.) (Allen, 97 Ill. App. 3d at 40, 422 N.E.2d at 255.) Here, the comments were directed to the manner in which this offense was accomplished. Neither did the prosecutor refer to the defendant’s conduct as a factor in aggravation under section 5—5—3.2(a)(1), as in People v. Martin (1988), 119 Ill. 2d 453, 456, 519 N.E.2d 884, 885. Finally, it appears the comments were intended to emphasize upon the defendant, standing before the court with a prior burglary conviction, the serious consequences which might follow from entering the residences of others in the early morning hours. No error.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


author: JUSTICE LUND

text:
    MARY F. BONFIELD, Plaintiff, v. DONALD JORDAN et al., Defendants (Mary Catherine Jordan, Defendant-Third-Party Plaintiff-Appellant; The Village of Loami, Third-Party Defendant-Appellee).
    Fourth District
    No. 4—90—004
    Opinion filed September 6, 1990.

      Edward W. Huntley, of Holley, Keith & Huntley, of Springfield, for appellant.
    R. Mark Mifflin and Bridget E. Madigan Zalcman, both of Griffin, Winning, Cohen & Bodewes, P.C., of Springfield, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

This appeal presents the question of whether a third-party claim for contribution against a municipality is barred by the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, pars. 1—101 through 9— 107). An additional issue is whether the contribution claim is barred by the Recreational Use of Land and Water Areas Act (Ill. Rev. Stat. 1987, ch. 70, pars. 31 through 37).

On July 29, 1988, the plaintiff, Mary E Bonfield (Bonfield), filed suit against defendants Donald Jordan, Mary Catherine Jordan, and the Village of Loami (Village), claiming damages for injuries which she allegedly sustained in a slip and fall accident at the Loami Village Center Hall (Hall). The accident allegedly occurred on the evening of August 2, 1986, while Bonfield was attending a private party at the Hall hosted by the Jordans.

On September 30, 1988, the circuit court dismissed the count of Bonfield’s complaint directed to the Village on the ground that Bonfield failed to comply with the notice requirements of former section 8—102 of the Tort Immunity Act. (Ill. Rev. Stat. 1985, ch. 85, par. 8—102.) Subsequently, on April 18, 1989, Donald Jordan was dismissed from this litigation on Bonfield’s motion.

On May 16, 1989, Mary Catherine Jordan (Jordan) filed a third-party complaint against the Village, pursuant to “An Act in relation to contribution among joint tortfeasors” (Contribution Act) (Ill. Rev. Stat. 1987, ch. 70, pars. 301 through 305). She alleged that if Bonfield was injured in the manner stated in her complaint, the injuries were the direct and proximate result of one or more of several negligent acts or omissions on the part of the Village. Jordan requested that in the event a judgment was entered in favor of Bonfield and against her, she be awarded a judgment against the Village in an amount commensurate with its relative degree of culpability in causing Bonfield’s injuries and damages.

In an order entered July 27, 1989, the circuit court allowed the Village’s motion to dismiss Jordan’s third-party complaint. The court stated that the Village was “immune pursuant to the Tort Immunity Act,” but granted Jordan 28 days to replead. In a further order entered December 11, 1989, the circuit court denied Jordan’s motion for reconsideration of the July 27 order. In its December 11 order, the circuit court indicated that its July 27 order dismissing Jordan’s third-party complaint was intended to reflect that the dismissal was based on Bonfield’s failure to provide the Village with timely notice of her claim as required by the Tort Immunity Act. (Ill. Rev. Stat. 1985, ch. 85, par. 8—102.) The court further amended its previous order of dismissal to reflect that the order was entered with prejudice, and that Jordan was denied leave to replead her third-party complaint. The court also found, pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), that there was no just reason for delaying enforcement or appeal of its order.

Jordan asserts the circuit court erred in dismissing her third-party complaint. She maintains the present case is quite similar to Stephens v. McBride (1983), 97 Ill. 2d 515, 455 N.E.2d 54, in which the supreme court held a plaintiff’s failure to comply with the notice requirements of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 8—102) in a suit against a local governmental unit defendant does not bar a third-party action against that defendant on the basis of the same acts or omissions for which the plaintiff claims damages. Jordan asserts the Village’s efforts to distinguish Stephens from the present case are unavailing, and the applicability of Stephens to the facts of the present case is not obviated by the policy considerations underlying the 1986 amendments (Pub. Act 84— 1431, art. 1, §§2, 3, eff. Nov. 25, 1986 (1986 Ill. Laws 3740, 3741-42, 3753)) to the Tort Immunity Act. Ill. Rev. Stat. 1987, ch. 85, pars. 1—101 through 1—210.

The Village’s argument is premised on the assumption that the 1986 amendments of the Tort Immunity Act are inapplicable to this case. However, the Village argues that the policy considerations underlying those amendments, which were designed to provide additional protection against tort liability to units of local government, vitiate the supreme court’s holding in Stephens by underscoring the preeminence of tort immunities over contribution claims. The Village further argues that Stephens is factually distinguishable from the present case, because in Stephens, unlike in this case, the municipal defendant received a timely albeit defective notice of the claims against it.

We first address a suggestion by the Village that whether it is liable for contribution in this case is of relatively little consequence to Jordan. The Village states: “Jordan’s rights are protected even if she is precluded from pursuing her contribution claim because she may still argue at trial that the Village is the culpable party.” This statement ignores the purpose of a contribution claim. Jordan’s nonliability because another’s negligence was the sole proximate cause of Bonfield’s injuries would be a defense to Bonfield’s negligence allegations. Only if the trier of fact found that Jordan was partially, but not totally, responsible for Bonfield’s injuries would Jordan’s right to contribution become relevant. If the trier of fact would find the Village had also been negligent, it could then allocate to the Village a portion of the damages which Jordan otherwise would have to pay. Jordan’s right to contribution from the Village therefore would be an important remedy which she would not have by merely being able to argue that the Village, and not she, is the culpable party.

Prior to November 25, 1986, section 8 — 102 of the Tort Immunity Act required that units of local government be given notice of intention to commence civil actions against them. This notice was to be given within one year of the date the injury was received or the cause of action accrued. (Ill. Rev. Stat. 1985, ch. 85, par. 8—102.) Section 8—103 provides for dismissal of such actions if the required notice has not been given. (Ill. Rev. Stat. 1987, ch. 85, par. 8—103.) As of November 25, 1986, section 8—102 was repealed (Pub. Act 84—1431, art. 1, §3, eff. Nov. 25, 1986 (1986 Ill. Laws 3740, 3753)), and the statute of limitations applicable to actions against units of local government was reduced from two years (Ill. Rev. Stat. 1985, ch. 85, par. 8—101) to one year (Ill. Rev. Stat. 1987, ch. 85, par. 8—101).

Both parties have based their arguments on the assumption that the 1986 amendments of the Tort Immunity Act are inapplicable to Jordan’s third-party claim. Public Act 84 — 1431, which contains these amendments, specifically states that article 1 applies to causes of action which accrued on or after its effective date. (Pub. Act 84—1431, art. 27, §1, eff. Nov. 25, 1986 (1986 Ill. Laws 3740, 3839).) As this court held in its recent decision in Highland v. Bracken (1990), 202 Ill. App. 3d 625, a contribution action accrues when the defendant-third-party plaintiff is sued or when the third-party plaintiff pays or becomes obligated to pay an amount with respect to which contribution is sought. Thus, Jordan’s contribution claim accrued when Bonfield filed suit against her and the Village of Loami on July 29, 1988. Jordan filed her third-party complaint on May 16, 1989, which was within one year of this date. Since the 1986 amendments of the Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 8—101) thus do not unjustly or inequitably bar Jordan’s contribution action retroactively (see Champaign County Nursing Home v. Petry Roofing, Inc. (1983), 117 Ill.-App. 3d 76, 452 N.E.2d 847), the amended version of the Tort Immunity Act is applicable to Jordan’s contribution claim for purposes of determining whether Jordan’s third-party complaint was timely filed. Moreover, under the 1986 amendments no notice requirement applies to Jordan’s contribution claim. Because Jordan’s third-party complaint was filed within one year of the date her cause of action accrued and no notice requirement applies, her third-party action is not subject to dismissal on the grounds that it was not timely filed or was not preceded by proper notice.

The Village also asserts two bases for affirmance of the circuit court’s decision which were not addressed in the circuit court’s orders. First, the Village relies on section 3 — 106 of the Tort Immunity Act. Prior to November 25, 1986, section 3 — 106 provided:

“Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used as a park, playground or open area for recreational purposes unless such local entity or public employee is guilty of willful and wanton negligence proximately causing such injury.” (Ill. Rev. Stat. 1985, ch. 85, par. 3—106.)

Effective November 25, 1986 (Pub. Act 84 — 1431, art. 1, §1, eff. Nov. 25, 1986 (1986 Ill. Laws 3740, 3745)), this statute was amended to read:

“Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.” (Ill. Rev. Stat. 1987, ch. 85, par. 3—106.)

Both before and after the 1986 amendments, section 3 — 101 of the Tort Immunity Act provided:

“As used in this Article unless the context otherwise requires ‘property of a local public entity’ and ‘public property’ mean real or personal property owned or leased by a local public entity, but do not include easements, encroachments and other property that are located on its property but that it does not own, possess or lease.” Ill. Rev. Stat. 1987, ch. 85, par. 3—101.

The Village argues that the Hall is “public property intended or permitted to be used as a park, playground or open area for recreational purposes” within the meaning of section 3 — 106 of the Tort Immunity Act as it read prior to the 1986 amendments (Ill. Rev. Stat. 1985, ch. 85, par. 3—106), and therefore, Bonfield may recover for injuries allegedly sustained in the Hall only if they were caused by wilful and wanton negligence. As support for this argument, the Village asserts that the 1986 amendment of section 3 — 106 amounted to an interpretation or clarification of the preamendment version of that section, as opposed to a change in the law stated in the preamendment version.

Jordan maintains that because of the plain and popularly understood meaning of section 3 — 106 as it existed prior to the 1986 amendments, as well as the rule that statutes in derogation of the common law are to be strictly construed in favor of persons sought to be subjected to their application, the preamendment version of this statute does not apply to the Hall. Also, Jordan argues that the lack of ambiguity in the preamendment version of section 3 — 106 renders applicable to the 1986 amendment the presumption that amendatory language is intended to change the law as it previously existed.

Initially we must determine whether the preamendment or amended version of section 8 — 106 applies to Jordan’s contribution claim. A right of contribution arises when the injury on which the contribution claim is based occurs. This date is relevant in determining the existence of a substantive right of contribution. (Highland, 202 Ill. App. 3d 625.) Bonfield’s accident on which Jordan’s contribution claim is premised occurred on August 2, 1986. It follows that on the November 26, 1986, effective date of the amended version of section 3 — 106, Jordan had an inchoate right of contribution from parties other than herself who proximately caused Bonfield’s alleged injuries.

However, because Jordan’s contribution action did not accrue until after effective date of the 1986 amendment of section 3 — 106, the amended version is applicable to Jordan’s contribution claim unless there is some reason for holding the amendment may not be retroactively applied to Jordan’s right to seek contribution. (Champaign County Nursing Home, 117 Ill. App. 3d 76, 452 N.E.2d 847.) It is quite apparent that Jordan’s contribution claim would be barred under the amended version of section 3 — 106, for Bonfield’s claim and Jordan’s third-party claim are clearly based on “the existence of a condition of *** public property intended or permitted to be used for recreational purposes,” and “willful and wanton conduct proximately causing such injury” is not alleged. Ill. Rev. Stat. 1987, ch. 85, par. 3 —106.

Our determination as to whether the amended version of section 3 — 106 may be retroactively applied so as to bar Jordan’s right to seek contribution is not governed by such outmoded distinctions as whether vested or nonvested rights are involved, or whether section 3 — 106 affects rights or merely affects remedies. Rather, this question must be decided on the basis of whether fundamental concepts of justice, fairness, and equity militate for or against retroactive application of section 3—106 under the facts of this case. Champaign County Nursing Home, 117 Ill. App. 3d at 79, 452 N.E.2d at 850.

On the effective date of the 1986 amendment of section 3— 106, Jordan had an inchoate right to seek contribution from the Village. If Bonfield had sued Jordan a few days before that date, Jordan’s third-party complaint unquestionably would have been subject to the preamendment version of section 3 — 106, since her cause of action would have occurred before the effective date of the amendment. We hold that Jordan’s contribution action should not be barred solely because of Bonfield’s delay in filing suit and the resultant applicability of the amended version of section 3 — 106 to Jordan’s contribution claim. As in Highland, making the date on which the plaintiff chooses to file suit a potentially determinative factor as to a joint tortfeasor’s right to maintain a contribution action — or requiring the joint tortfeasor to file an anticipatory suit before being sued by the plaintiff — would be inherently unjust and inequitable. For this reason, we hold that Jordan’s third-party complaint against the Village is governed by the preamendment version of section 3 — 106.

In construing the preamendment version of section 3 — 106, we must give its words their plain and ordinary or commonly accepted meanings, unless to do so would defeat the General Assembly’s intent. (Illinois Telephone Association v. Illinois Commerce Comm’n (1977), 67 Ill. 2d 15, 364 N.E.2d 63.) Also applicable to interpretation of this statute is the rule of ejusdem generis, which provides that when general words follow specific words in a statute, the general words must be construed to include only things of the same kind as those indicated by the specific, words. Citizens Utilities Co. v. Illinois Commerce Comm’n (1971), 50 Ill. 2d 35, 276 N.E.2d 330.

In the preamendment version of section 3 — 106, the words “open area for recreational purposes” are more general than “park” and “playground.” Therefore, “open area for recreational purposes,” as used in this statute, refers to areas used for outdoor recreation which are similar to parks and playgrounds, such as baseball and soccer fields, camping areas, and hiking trails. Also perhaps included in the areas covered by this version of section 3 — 106 are buildings and structures which increase the usefulness of open outdoor recreational areas, such as bleachers and dugouts adjacent to baseball fields and restrooms located in parks and campgrounds. (See Annen v. Village of McNabb (1990), 192 Ill. App. 3d 711, 548 N.E.2d 1383.) The preamendment version of section 3 —106 does not, however, apply to buildings such as the Hall involved in the present case, which are not appurtenant to open areas used for outdoor recreational activities.

As the Village points out, when a statute is ambiguous, an amendment of that statute may indicate a legislative purpose to clarify the ambiguities in the statute rather than to change the law. (In re Marriage of Blaisdell (1986), 142 Ill. App. 3d 1034, 492 N.E.2d 622.) However, a statutory amendment is generally indicative of an intention to change the law as it previously existed (Weast Construction Co. v. Industrial Comm’n (1984), 102 Ill. 2d 337, 466 N.E.2d 215), especially where the statute was unambiguous prior to its amendment. See O’Connor v. A&P Enterprises (1980), 81 Ill. 2d 260, 408 N.E.2d 204.

The preamendment version of section 3 — 106 clearly describes the areas to which it applies. Therefore, it cannot be said that the 1986 amendments of this statute were intended to clarify ambiguities. Instead, consistent with the legislative intent of expanding the protections which the Tort Immunity Act provides to units of local government, the 1986 amendment was intended to expand the scope of section 3 — 106 to include within its coverage buildings and other enclosed areas used for recreational purposes. This intent is underscored by the presence of the words “including but not limited to” in the amended version of section 3 — 106. These words demonstrate a legislative intent to expand the scope of this statute to cover virtually all public property used for recreational purposes.

The definition of “public property” in section 3—101 of the Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 3—101) does not support the Village’s argument that the preamendment version of section 3—106 bars Jordan’s contribution claim. Section 3—101 provides that the definition of public property contained therein is inapplicable if “the context otherwise requires.” Because the preamendment version of section 3—106 contains a different definition of the public property to which it applies, the section 3 — 101 definition of public property does not apply to section 3 — 106. For the foregoing reasons, we hold that at the time Bonfield allegedly was injured, section 3 — 106 of the Tort Immunity Act did not apply to the Loami Village Center Hall and that Jordan’s contribution claim against the Village therefore is not barred by that statute.

Finally, the Village argues that the Hall is within the purview of the Recreational Use of Land and Water Areas Act (Ill. Rev. Stat. 1987, ch. 70, pars. 31 through 37). The Village states that since Jordan has not alleged that the Village wilfully or wantonly failed to warn of dangers in the Hall, this legislation also provides a basis for affirmance of the dismissal of Jordan’s third-party complaint.

At the time Bonfield allegedly was injured, the Recreational Use of Land and Water Areas Act provided in pertinent part:

“Except as specifically recognized by or provided in Section 6 of this Act, an owner of land owes no duty of care to keep the premises safe for entry or use by any person for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.” Ill. Rev. Stat. 1985, ch. 70, par. 33.
“Nothing in this Act limits in any way any liability which otherwise exists:
(a) For willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.” Ill. Rev. Stat. 1985, ch. 70, par. 36.
“ ‘Recreational purpose’ includes, and is limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, snowmobiling, motorcycling, camping, picnicking, hiking, cave exploring, nature study, water skiing, water sports, bicycling, horseback riding, and viewing or enjoying historical, archaeological, scenic or scientific sites.” (Ill. Rev. Stat. 1985, ch. 70, par. 32(c).)

Effective December 8, 1987, this legislation was amended. (Pub. Act 85-959, §2, eff. Dec. 8, 1987 (1987 Ill. Laws 4282, 4284-85).) The principal changes which these amendments made in the above-quoted sections are that (1) in section 3, the words “recreational or conservation purposes” were substituted for the words “recreational purposes” (Ill. Rev. Stat. 1987, ch. 70, par. 33); (2) the Act is now inapplicable to “willful and wanton” failures to warn or guard against dangerous conditions (Ill. Rev. Stat. 1987, ch. 70, par. 36(a)); and (3) “ ‘[r]ecreational or conservation purpose’ ” is defined to include, inter alia, “any activity undertaken for *** relaxation, or pleasure on land owned by another” (Ill. Rev. Stat. 1987, ch. 70, par. 32(c)).

Jordan was sued by Bonfield and her right to contribution thus accrued after the effective date of the 1987 amendments of the Recreational Use of Land and Water Areas Act. Since the activities in which Bonfield was engaged when she allegedly was injured were undertaken for pleasure or relaxation on land owned by another, the 1987 amendments, if applicable to Jordan’s contribution action, would at least arguably bar Jordan’s claim for contribution on an ordinary negligence theory. For the reasons stated in our discussion concerning the applicability to this cause of the 1986 amendment of section 3 — 106 of the Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 3—106), we hold that it would be inherently unjust and inequitable to apply the 1987 amendments of the Recreational Use of Land and Water Areas Act to this case, thereby retroactively defeating Jordan’s inchoate right to seek contribution from the Village on an ordinary negligence theory. We therefore hold that the Recreational Use of Land and Water Areas Act, as it existed before the 1987 amendments, applies to the case at bar.

The general purpose of the Recreational Use of Land and Water Areas Act is to encourage owners of real estate which is well suited for outdoor recreational uses, such as wooded areas, wetlands, and large-bodies of water, to permit members of the public to use such areas for outdoor recreation on a casual basis. (See Logan v. Old Enterprise Farms, Ltd. (1989), 188 Ill. App. 3d 920, 544 N.E.2d 998.) In view of the purpose and the specific language of this Act prior to the 1987 amendments, an indoor private party simply was not a “recreational purpose” within the purview of this legislation when Bonfield allegedly sustained her injuries.

For all of the above reasons, we reverse the circuit court order which dismissed Jordan’s third-party complaint against the Village of Loami and remand this cause to the circuit court for further proceedings consistent with our decision.

Reversed and remanded.

KNECHT, P.J., and GREEN, J., concur.


author: PRESIDING JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN LOWE, Defendant-Appellant.
    Fourth District
    No. 4—89—0970
    Opinion filed September 13, 1990.

      Scott J. Butler, of Rushville, for appellant.

      John B. Leonard, State’s Attorney, of Mt. Sterling (Kenneth R. Boyle, Robert J. Biderman, and Beth McGann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

After a jury trial in the circuit court of Brown County, defendant John Lowe was convicted of aggravated battery for committing a battery “on or about a public way.” (Ill. Rev. Stat. 1987, ch. 38, par. 12— 4(b)(8).) Defendant now appeals, raising constitutional challenges to the phrase “on or about a public way” as used in the statute. We affirm.

On February 27, 1989, Mr. James Assell, while working in his capacity as park superintendent at the Siloam Springs State Park office, noticed the defendant hauling a load of hay which appeared to exceed the maximum weight limit for the park road. Assell left his office and followed defendant down the road to defendant’s farm. Assell parked his truck and walked toward defendant to discuss the weight limitations for the park road. Following a brief conversation regarding the weight limit for the park road, defendant began pushing As-sell. These facts are uncontested by both parties.

On August 11, 1989, a jury trial occurred. Assell testified he parked his truck on the public road before walking toward the defendant. He further testified before he could leave the defendant’s property, defendant began pushing him toward the road and tried to shove him into his truck. The shoving occurred both on defendant’s property near the public road and on the public way as well.

Defendant and his son, Paul Lowe, testified Assell did not park on the public way. Rather, they insisted Assell parked clearly on defendant’s property. They further testified Assell refused to leave defendant’s property when requested to do so, and defendant only pushed Assell in an attempt to remove him from his property. Defendant introduced a photograph into evidence depicting, in his opinion, where the altercation occurred.

Mr. Jesse Smith, Jr., an assistant superintendent in the Brown County highway department, testified the right of way was 40 feet wide. He further testified he was unsure as to the exact demarcation between defendant’s property and the public road.

During closing arguments, defendant argued his use of force was reasonable to remove a trespasser, and the entire episode took place on private property, not a public way. The State argued that although the exact boundary line could not be ascertained, such evidence was unnecessary since the State only had to prove the altercation occurred “on or about a public way.”

Approximately an hour into the deliberations, the jury returned a written question to the court which stated, “What does ‘about’ mean in, on or about public property?” After consulting dictionaries and hearing the arguments from both attorneys on the meaning of the word, the judge decided the proper definition was “in the immediate neighborhood of; near.” Counsel for defendant objected to this definition on the grounds a more accurate definition would be, “immediately adjacent to.” Alternatively, he argued the wording of the statute is unconstitutionally vague. The judge rejected this argument and, in a written response, instructed the jury, “The word ‘about’ means: ‘in the immediate neighborhood of; near.’ ” Shortly thereafter, the jury returned with a verdict finding defendant guilty of the offense of aggravated battery.

On appeal, defendant raises vagueness and overbreadth challenges to the phrase “on or about a public way,” challenges the trial judge’s instructions to the jury, and alternatively argues the State failed to prove him guilty beyond a reasonable doubt.

Defendant’s constitutional challenge to the aggravated battery statute can be broken down into three specific contentions: (1) defendant’s due process rights were violated because the word “about” in the Illinois aggravated battery statute is unconstitutionally vague; (2) defendant’s due process rights were violated because the use of the word “about” deprives him of his right to use justifiable force against trespassers to his real property; and (3) the statute denies defendant his right to equal protection of the laws constitutionally afforded because there is no rational basis for distinguishing between a landowner who removes a trespasser “on or about a public way,” and a landowner who removes a trespasser onto other privately owned property. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2; Ill. Rev. Stat. 1989, ch. 38, pars. 7—3, 12—4(b)(8).

The constitutionality of the Illinois aggravated battery statute has been previously challenged and upheld under both due process and equal protection challenges. (People v. Watson (1987), 118 Ill. 2d 62, 514 N.E.2d 167 (upholding the statute under an equal protection challenge); People v. Handley (1983), 117 Ill. App. 3d 949, 454 N.E.2d 350 (upholding the statute under a due process challenge); People v. Cole (1977), 47 Ill. App. 3d 775, 362 N.E.2d 432 (upholding the statute under both due process and equal protection challenges).) These cases addressed the same issues present here.

This constitutional challenge and its subparts derives from the instruction given by the judge when defining the word “about” at the request of the jury. The issue of the judge’s instruction to the jury, which is discussed under a separate section of this opinion, will be briefly discussed here.

I

After receiving the question from the jury on the meaning of the word “about,” the judge, relying on Wester’s Seventh Collegiate Dictionary, instructed the jury the word “about” means, “ ‘in the immediate neighborhood of; near.’ ” Defendant objected to this instruction as violating his due process rights. Specifically, defendant insists the use of the word “about” in the aggravated battery statute fails to give fair notice of the prohibited conduct. Defendant contends the statute could be interpreted so justifiable use of force in the removal of a trespasser is prohibited when such force spills “on or about a public way.” Defendant also contends a statute this vague allows overly broad prosecutorial discretion. He suggests a more appropriate definition of the word “about” would be: “immediately adjacent to the public way; so close to the public way as to interfere with the public’s travel.”

The State argues the alleged unconstitutionality of the statute has been properly dealt with by the courts and these decisions should be dispositive. (Watson, 118 Ill. 2d 62, 514 N.E.2d 167; Handley, 117 Ill. App. 3d 949, 454 N.E.2d 350; Cole, 47 Ill. App. 3d 775, 362 N.E.2d 432.) The State further contends the wording of the statute is consistent with its legislative intent. Ill. Ann. Stat., ch. 38, par. 12—4, Committee Comments—1961, at 465 (Smith-Hurd 1979).

The aggravated battery statute provides in relevant part:

“(b) A person who, in committing a battery, commits aggravated battery if he either:
* * *
(8) Is, or the person battered is, on or about a public way, public property or public place of accommodation or amusement.” Ill. Rev. Stat. 1987, ch. 38, par. 12—4(b)(8).

When ascertaining the legislature’s intent, this court must consider both the language of the statute and the evil sought to be remedied. (Handley, 117 Ill. App. 3d at 952, 454 N.E.2d at 353.) The committee comments on the statute explain the reason such a statute is necessary by indicating this provision “involves a battery committed under aggravated circumstances from which great harm might and usually does result (although it did not in the particular case), and therefore it constitutes a more serious threat to the community than a simple battery.” (Ill. Ann. Stat., ch. 38, par. 12 — 4, Committee Comments—1961, at 465 (Smith-Hurd 1979).) This court, when faced with this issue in Cole and Handley, agreed when considering both the committee comments and the language of the statute, the intent of the legislature is manifestly clear: to protect the public health and safety by treating batteries which occur on or about a public way more harshly than a simple battery. (See also Ill. Rev. Stat. 1987, ch. 38, par. 12—4(b)(8); Ill. Ann. Stat., ch. 38, par. 12—4, Committee Comments—1961, at 465 (Smith-Hurd 1979); Cole, 47 Ill. App. 3d at 779-80, 362 N.E.2d at 435.) Thus, section 12 —4(b)(8) of the Criminal Code of 1961 (Code) relates directly to the evil sought to be remedied. Cole, 47 Ill. App. 3d at 780, 362 N.E.2d at 435; Handley, 117 Ill. App. 3d at 952, 454 N.E.2d at 353.

The defendant cites Handley in support of his initial due process contention. In Handley, this court rejected vagueness and over-breadth challenges to the same portion of the aggravated battery statute. (Ill. Rev. Stat. 1987, ch. 38, par. 12—4(b)(8).) A statute need only be sufficiently certain to give a person of ordinary intelligence fair notice his contemplated conduct is forbidden by law. If a statute meets this requirement it is consistent with the due process clause of both the Federal and State constitutions. (Handley, 117 Ill. App. 3d at 950-51, 454 N.E.2d at 352.) Criminal statutes are inherently limited to words as their medium. For this reason, the impossible burden of mathematical certainty is neither expected nor imposed by either the Federal or State Constitution. (Handley, 117 Ill. App. 3d at 951, 454 N.E.2d at 352; People v. Caliendo (1980), 84 Ill. App. 3d 987, 405 N.E.2d 1133.) When deciding a vagueness question, a court will assign the words of the statute their ordinary or popularly understood meaning, unless there exists legislative intent to the contrary. (People v. Schwartz (1976), 64 Ill. 2d 275, 280, 356 N.E.2d 8, 10.) Thus, because the defendant challenges a specific word within the phrase of a statute, this court must assign the word “about” with its “ordinary or popularly understood meaning.”

In this case, the trial court defined the word “about” as “in the immediate neighborhood of; near.” The same definition can be found within the various definitions offered in Corpus Juris Secundum (C.J.S.), which lists: “almost; approximately; almost or approximately; around; at; in close correspondence to; in continuity or proximity to; in the immediate neighborhood of; more or less. It also has been defined as near” (1 C.J.S. About, at 329 (1985).) The tendered definition also accords with other randomly selected sources. See also Black’s Law Dictionary 7 (5th ed. 1979); The Oxford Universal Dictionary 6 (rev. 1955).

C.J.S. explains “[t]he phrase ‘on or about’ is used in reciting the date of an occurrence or conveyance, or the location of it, to escape the necessity of being bound by the statement of an exact date or place.” (67 C.J.S. On; Upon, at 866 (1978).) Even when referring to the word “about” by itself, C.J.S. explains, “[t]he use of the word negatives the idea that exact precision is intended; but the variation legally permissible varies with what appears as reasonable in the contemplation of the parties under the circumstances.” (1 C.J.S. About, at 329 (1985); see also Black’s Law Dictionary 7 (5th ed. 1979).) With this in mind, it is clear the legislature not only wanted to protect the public, but also wanted the courts to have broad discretion in determining whether a person committed a battery “on or about a public way” in order to facilitate reaching this goal. The legislature purposely chose terms with this flexibility in order to insure the broad protection of the public health and safety. Had the legislature intended to specify an exact demarcation, they would have drafted the statute without adding the words “or about” to follow the word “on.”

When attempting to preserve public health, morals, welfare, and safety, the legislature’s police power may be broadly exercised. (Cole, 47 Ill. App. 3d at 780, 362 N.E.2d at 435.) The intent of the legislature is clear. While it is impossible to assign a definition that offers an exact demarcation and at the same time keep the broad legislative purpose behind the statute intact, the definition given by the trial court was a permissible definition. The defendant’s void for vagueness challenge must be rejected.

II

Defendant’s second due process argument is the use of the word “about” in the aggravated battery statute deprives him of his right to use justifiable force against trespassers to his personal property. (Ill. Rev. Stat. 1987, ch. 38, par. 7—3.) In essence, defendant’s contention is the two statutes conflict when concurrently applied. To demonstrate this conflict, he argues the idea of applying the aggravated battery statute to include the removal of a trespasser once such removal reaches the unknown demarcation of “about a public way” deprives defendant of a defense afforded to him by law. Therefore, he concludes the statute is in violation of his due process rights. The State, however, argues that section 12 — 4(b)(8) of the Code is not in conflict with section 7—3 of the Code. Instead, the State argues section 12— 4(b)(8) limits the use of force allowed against a trespasser once that force spills “on or about a public way.”

There is no Illinois case law on this issue. A careful analysis of the statutes, and the legislative intent behind the statutes, reveals no conflict exists. As the State correctly argues, section 12 — 4(b)(8) of the Code limits the amount of force permitted when removing a trespasser. The statute regarding the use of force in defense of one’s property reads as follows:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other’s trespass on or other tortious or criminal interference with either real property (other than a dwelling) or personal property, lawfully in his possession or in the possession of another who is a member of his immediate family or household or of a person whose property he has a legal duty to protect. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent the commission of a forcible felony.” Ill. Rev. Stat. 1987, ch. 38, par. 7—3.

The statute has been determined constitutional in that it apprises defendant of when he has committed a battery “on or about a public way.” Thus, a defendant removing a trespasser will also be sufficiently apprised. Although an exact boundary line may not be ascertainable, the statute is consistent with the evil sought to be remedied. In order to protect even those members of the public who were not with absolute certainty “on” a public way, the statute was constructed to avoid the restrictive nature of a narrow word or phrase.

There may be a case where a trespasser could encroach so far onto one’s property that the property owner’s right to use justifiable force to remove the trespasser would not be interrupted by section 12 — 4(b)(8) of the Code; this would, however, necessarily depend on the circumstances of the particular case. The facts of this case do not lend themselves to consideration of a defendant’s right to remove one who is substantially encroaching on his property. Assell was traveling on a public road to speak with defendant, who also had been on the public road, and the altercation occurred “in the immediate neighborhood of” the public road. Assell falls within the class sought to be protected by the statute, and a reasonable jury could conclude the force used by defendant was excessive.

Statutes of mathematical certainty that fit together perfectly are not always intended by the legislature, nor is such required by law. Given the legislature’s intent, the phrase “on or about a public way” is as specific as it can be. Because of the facts of this case, the importance behind the legislature’s goal, and the fact the defense of justifiable use of force is not eliminated but merely limited by the aggravated battery statute, defendant’s second constitutional challenge must also be rejected.

Ill

Defendant next contends the statute denies him the equal protection of the laws. Specifically, he argues there is no rational basis for distinguishing between a landowner who removes a trespasser “on or about a public way” and one who removes a trespasser onto other privately owned property.

This same challenge has previously been dealt with and rejected by the court in Cole (47 Ill. App. 3d at 779-80, 362 N.E.2d at 435-36). The defendant in Cole, as does defendant in the instant case, requested the court to adopt the dissent in People v. Lockwood (1976), 37 Ill. App. 3d 502, 346 N.E.2d 404, which argued the mere fortuitous circumstance of being located upon a public way is not a rational basis for distinguishing between batteries occurring on private property and those occurring on a public way. (Lockwood, 37 Ill. App. 3d at 509, 346 N.E.2d at 409 (Moran, J., dissenting).) The Cole court refused to adopt the dissenting view from Lockwood, and stated:

“The equal protection and due process clauses of our State and Federal constitutions do not guarantee absolute equality, but only equality in the eyes of the law. Their guarantees assume that governments may recognize and act upon factual differences which exist between individuals, classes and events [citations], and that the police power may be broadly exercised by the legislature to preserve public health, morals, welfare and safety.” Cole, 47 Ill. App. 3d at 779-80, 362 N.E.2d at 435.

To meet constitutional scrutiny, classification under the statute must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons in similar circumstances shall be treated alike. (Watson, 118 Ill. 2d 62, 514 N.E.2d 167.) Regardless of the outcome of removing a trespasser onto other privately owned property, instead of “on or about a public way,” the fact remains the intent of the legislature is to protect those “on or about a public way.” Once it is determined that the force used to remove a trespasser spilled “on or about a public way,” the property owner, and all others so situated, may be guilty of aggravated battery under section 12 — 4(b)(8) of the Code.

“Whether the course chosen by the General Assembly to achieve a desired result is either wise or the best means available is not a proper subject of judicial inquiry.” (Garcia v. Tally (1978), 72 Ill. 2d 1, 10, 377 N.E.2d 10, 14 (and cases cited therein); see also Watson, 118 Ill. 2d at 68-69, 514 N.E.2d at 170.) Defendant’s equal protection challenge has been dealt with and rejected by previous courts, and we likewise reject it here.

Defendant relies heavily upon People v. Clark (1979), 70 Ill. App. 3d 698, 388 N.E.2d 1107, arguing the definition of the word “about” in this case is contrary to the holding in Clark. Defendant further argues that the C.J.S. definition referred to in Clark (70 Ill. App. 3d at 700, 388 N.E.2d at 1109), although also vague, is preferable to the trial court’s definition here. Defendant last suggests a more appropriate definition of the word “about” would be “immediately adjacent to the public way; so close to the public way as to interfere with the public’s travel.” The State contends the term was sufficiently defined to the jury in a way that reflected the legislature’s goal of dealing more harshly with batteries which occur in the immediate neighborhood of public roadways. Furthermore, the State contends that the C.J.S. definition which the defendant argues would be preferable to the definition given by the trial court is virtually synonymous with the trial court’s definition.

In Clark, after a bench trial, defendant was convicted of aggravated battery. The appellate court held the statute did not extend to cover a battery which occurred 95 to 100 feet from Illinois Highway 152 on a dirt lane “turnaround” located on private property, and used to park one’s vehicle while fishing, as having occurred “on or about a public way.” (Clark, 70 Ill. App. 3d at 700, 388 N.E.2d at 1109.) The Clark court reduced the degree of the offense of which defendant was convicted to battery and remanded for sentencing. Clark’s holding is not, as defendant argues, contrary to the definition given by the trial judge. Rather, the holding in Clark is an example of how the flexibility of the statute allows different outcomes in light of the facts of a particular case. This discretion is precisely what the legislature intended when drafting the statute with the word “about.” (1 C.J.S. About, at 329 (1985).) Unlike the altercation in Clark, here the incident took place only 10 to 15 feet from the public way — if the defendant’s version of the offense were believed.

The court in Clark refers to C.J.S., explaining the word “about” has been judicially defined to mean “reasonably nearby or convenient of access.” (Clark, 70 Ill. App. 3d at 700, 388 N.E.2d at 1109, citing 1 C.J.S. 344 (1936).) Defendant contends the definition adopted by the court in Clark is vague, but more appropriate than the definition, “in the immediate neighborhood of; near,” given by the trial court in the case at bar. This argument is without merit. The definition in Clark is indeed virtually synonymous with the trial court’s definition. It is highly unlikely a reasonable jury would come to a different result if given the definition referred to in Clark. Either definition would have been appropriate.

Defendant’s contention that the more appropriate definition would have been “immediately adjacent to the public way; so close to the public way as to interfere with the public’s travel” is also without merit. Not one of the definitions offered under the word “about” even remotely suggests such exactness or precision as to location. To limit the meaning to the definition offered by defendant would be in direct conflict with the legislature’s intent. The State accurately supported the validity of the instruction given when explaining that defining “about” as meaning “in the immediate neighborhood; near” merely recognizes the inherent relativity of the term, and is consistent with the holding in Clark. Handley, 117 Ill. App. 3d at 951, 454 N.E.2d at 352; People v. Johnson (1980), 87 Ill. App. 3d 306, 308, 409 N.E.2d 48, 50; Black’s Law Dictionary 7 (5th ed. 1979); Webster’s Ninth New Collegiate Dictionary 45 (1984).

The legislature purposely selected the word “about” because any other word would lessen the protection sought to be given to the public and would not allow such batteries to be dealt with as intended. Defendant’s due process challenge, claiming he was deprived of his right to use justifiable use of force, must be rejected.

Defendant contends the State failed to meet its burden of proof because the word “about” should have been “more narrowly and accurately defined.” He further argues that had it been so defined, the exact location of the altercation would have been questionable so as to raise a reasonable doubt.

To reverse the convictions, the evidence in the record must be so unsatisfactory as to raise a reasonable doubt of the defendant’s guilt. (People v. Lewis (1981), 88 Ill. 2d 129, 151, 430 N.E.2d 1346, 1356, cert, denied (1982), 456 U.S. 1011, 73 L. Ed. 2d 1308, 102 S. Ct. 2307; People v. Williams (1972), 3 Ill. App. 3d 1036, 1039, 279 N.E.2d 735, 737-38.) Such a showing cannot be made here. First, the trial judge properly instructed the jury that the word about means “in the immediate neighborhood of; near.” An exact location is not necessary to find that a person committed a battery on or about a public way. Second, the trial judge properly instructed the jury on the defense of justifiable use of force. The jury concluded from all of the evidence and after proper instructions that defendant was guilty beyond a reasonable doubt.

There was sufficient evidence to find defendant guilty of aggravated battery. The jury was the trier of fact here, and viewed the evidence and judged the credibility of the witnesses. (People v. Yates (1983), 98 Ill. 2d 502, 518, 456 N.E.2d 1369, 1377.) Because there was sufficient evidence for a jury to conclude that a battery occurred “on or about a public way,” its decision and the conviction should be affirmed.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


text:
      In re ESTATE OF RUSSELL A. MARTIN, Deceased (Veronica Deanne Martin, Ex’r, Plaintiff-Appellant, v. Menard Electric Cooperative, Defendant and Third-Party Plaintiff-Appellee (John Chalmers, Third-Party Defendant-Appellee)).
    Fourth District
    No. 4—90—0107
    Opinion filed August 30, 1990.

      William H. Knuppel, of Boggs & Knuppel, P.C., of Havana, for appellant.
    Karen L. Kendall, of Heyl, Royster, Voelker & Allen, of Peoria, and Gary L. Borah and Francis J. Lynch, both of Springfield, for appellee John Chalmers.
    Matthew J. Maddox and George B. Gillespie, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Springfield, for appellee Menard Electric Cooperative.
   JUSTICE LUND

delivered the opinion of the court:

Russell A. Martin (decedent) was killed as a result of making contact with Menard Electric Cooperative (Menard) transmission lines. The accident happened while the decedent was on top of and cleaning a feed bin located on farm property owned by John Chalmers. Decedent was using a 20-foot aluminum pole, which came in contact with uninsulated wires carrying 7,200 volts of electricity. The wires were approximately 13 feet above the bin. Plaintiff Veronica Deanne Martin, executor of decedent’s estate, brought the present wrongful death action, and Chalmers was made a third-party defendant by Menard. Following a motion for summary judgment filed by Menard, the trial court, citing the third district decision in Icenogle v. Myers (1988), 167 Ill. App. 3d 239, 521 N.E.2d 163, entered judgment in favor of Menard. Plaintiff now appeals.

Summary judgment should be granted only when the pleadings, depositions, and admissions, together with any affidavits, show there is no genuine issue as to a material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c); Bank of Pawnee v. Joslin (1988), 166 Ill. App. 3d 927, 930, 521 N.E.2d 1177, 1179.) However, the determination of whether a legal duty exists is a question of law to be determined by the trial court. (Watkins v. Mt. Carmel Public Utility Co. (1988), 165 Ill. App. 3d 493, 496, 519 N.E.2d 10, 12.) The issue on this appeal is whether the facts show a legal duty.

We need not discuss the silent danger of electricity, as the topic has been adequately discussed in prior cases. (See Merlo v. Public Service Co. (1942), 381 Ill. 300, 312-13, 45 N.E.2d 665, 673.) Nor need we dwell on the economic burdens relating to electric transmission lines. See Watkins, 165 Ill. App. 3d at 499, 519 N.E.2d at 14.

The plaintiff attempted to allege a duty owing by Menard by using the following allegations:

“6. Prior to the time of the occurrence, although it knew or should have known of the existence and use of said feed bin and the fact that persons climbed upon it by means of an external ladder, the [defendant caused a certain distribution line, consisting of uninsulated wires carrying 7200 volts, to be strung and thereafter maintained almost directly over said feed bin and negligently caused or permitted the uninsulated wires to pass and thereafter remain approximately [tjhirteen (13) feet above the top of said feed bin.
7. That prior to and at the time of the occurrence, although it knew or should have known the highly charged uninsulated wire passing directly over said feed bin would injure or kill persons who might come in contact with it through any conductor of electricity and also knew, or should have known, that individuals using said feed bin would climb on top of said bin by means of the external ladder on said feed bin, the [djefendant was guilty of one or more of the following negligent acts or omissions:
A. It approved the location of said distribution line over said feed bin in spite of the [tjhirty (30) foot wide [ejasement it had been granted by the owner of the property on April 26, 1976.
B. It failed to properly inspect said distribution line after it was completed and to remedy the dangerous condition created by the location of the distribution line in close proximity to the feed bin which was accessible to pedestrians by means of an external ladder.”

It is clearly established for purposes of the motion for summary judgment that the decedent climbed to the top of a 17-foot-high feed storage bin for the purposes of scraping crusted feed from the inside of the bin. The method of cleaning required the use of a long-handled paddle or scraper which was inserted through the top of the bin. The handle or pole used was made of aluminum and was 20 feet in length. The Menard transmission lines were constructed approximately 13 feet over the bin and installed after the bins were constructed. The 20-foot pole came into contact with wires, or electricity arced.

Summary judgment in the present case was entered in Menard’s favor based upon the decision in Icenogle, which was in turn principally based upon the supreme court decision in Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465. The facts in Icenogle were, to an extent, similar to the present case. The injured party was on top of a grain bin with a long-handled paint sprayer which made contact with transmission lines, which were 12 feet (at the nearest point) from the crown of the bin. However, the bin was a grain bin, not a feed bin. The power lines were on a public right-of-way, not over the bin, and the spray-paint equipment was not necessary to regularly clean the inside of the bin. While the grain bin had perpendicular sides and, when empty, access to the inside was available at the ground level, the bin in the present case was cone-shaped on both the top and bottom, and access to the interior was necessarily from the top.

Genaust involved the alleged duty to warn, and the opinion stated that the danger of electricity is common knowledge to those with ordinary intelligence and experience. Accordingly, there is no duty to warn. Forseeability is a question necessarily present in determining the existence of a duty, and it is not objectively reasonable to expect an ordinarily intelligent and experienced adult to bring a conductor of electricity close to the electric lines. See Genaust, 62 Ill. 2d at 466, 343 N.E.2d at 471; Carroll v. Commonwealth Edison Co. (1986), 147 Ill. App. 3d 909, 912-13, 498 N.E.2d 645, 647.

It would appear that Genaust established a rule freeing electric power suppliers from liability when an ordinarily intelligent and experienced person brings a conductor in contact with any visible electric power lines. However, Merlo and cases citing Merlo (see Schmall v. Village of Addison (1988), 171 Ill. App. 3d 344, 349-50, 525 N.E.2d 258, 262; German v. Illinois Power Co. (1983), 115 Ill. App. 3d 977, 982, 451 N.E.2d 903, 906) have followed the rule that:

“[A]n electric company using highly charged wires owes the legal duty toward every person who, in the exercise of a lawful occupation in a place where he has a legal right to be, whether for business, pleasure or convenience, is liable to come in contact with the wires to see that such wires are properly placed with reference to the safety of such persons and are properly insulated. (18 Am. Jur. p. 485.) This is nothing more than the ordinary care required under the circumstances when put into practice. The reason for requiring insulation and vigilance in maintaining the wires in proper condition is the deadly and dangerous power of the current carried along such wires.” (Merlo, 381 Ill. at 314-15, 45 N.E.2d at 674.)

In Merlo, the power lines were on a public street adjoining a sewer project when a drag-line cable came into contact with the uninsulated or partially insulated lines. In Schmall, a crane used in changing a light pole came into contact with uninsulated power lines. In both cases it was held that there were sufficient allegations of a duty. The power lines were in view, but the courts held that the power company could foresee the possibility of work being done near the lines.

One might find Genaust and Merlo inconsistent. Genaust appears to say the danger is apparent with the wires being in view and, thus, it is not foreseeable that people would come in contact with wires. Merlo appears to recognize that, in certain areas, activity near power lines is such that safety requirements such as adequate insulation are needed, irrespective of the obviousness of the danger. Regardless of the appearance, Genaust and Merlo have been found to be not inconsistent. In Watkins, the appellate court stated:

“It is our opinion that the circumstances in the present case imposed no duty upon defendant Utility to take precautions against an accident that was not reasonably foreseeable. In determining whether a duty exists, a court must apply a foreseeability test that brings within the scope of defendant’s liability any injury which is objectively reasonable to occur, and not everything which might conceivably occur. (Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 466, 343 N.E.2d 465, 471.) The injuries in the cases cited above, upon which plaintiffs rely, were objectively reasonable to occur, whereas the injury in the instant case falls within the ‘might conceivably occur’ category. For example, it is objectively reasonable to foresee that a crane operated below live electrical wires wreaks havoc and cries out for utility company attention, as in Burke and Merlo, whereas the construction of storage tanks in the vicinity of live electrical wires portrays no such impending doom. That someone might work upon these storage tanks holding a 14-foot pole angled above and away such that the pole would contact the electrical wires is clearly in the ‘might conceivably occur’ category rather than the ‘objectively reasonable’ category.” Watkins, 165 Ill. App. 3d at 499, 519 N.E.2d at 14.

In Schmall, a summary judgment in favor of the electric utility company was reversed where a crane used in the repair of a light pole came into contact with an uninsulated transmission line. The appellate court’s decision stated:

“Due to the nature of the business, however, a utility company using highly charged wires owes a duty to see that such wires are properly placed and/or properly insulated where the conditions and circumstances reasonably indicate that persons might come in contact with or proximity to the wires. [Citations.] Plaintiff here alleged a breach of the above duty due to Edison’s constructive knowledge of the proximity of the light pole to the high voltage lines and the foreseeability that someone working on the light pole might come in contact with the lines.” Schmall, 171 Ill. App. 3d at 350, 525 N.E.2d at 262.

We conclude the test whether the wires are properly located or insulated relates to whether the condition and circumstances reasonably indicate that people might come into contact with the transmission lines. Together with this test, we judge foreseeability by whether it was objectively reasonable to expect an injury to occur, not whether an injury might conceivably occur.

In the present case, Menard obtained a 30-foot right-of-way and placed the uninsulated transmission lines so that lines hung 13 feet above and nearly over the center of an existing feed bin. The bin, in place before the wires, was obviously a part of a farm feeding operation. Menard is one of many electrical cooperatives initially established in the 1930’s to provide electricity to rural America. Historically, farm homes and farm operations have been the largest component of the makeup of cooperative customers. We conclude that cooperatives should be aware of the demands of, and methods used, in farm operations. To blindly allow the installation of transmission lines over a livestock feeding operation and free the cooperative from liability because of an obvious existence of the wires is contrary to the Merlo decision and is somewhat ludicrous. The present facts are different from Icenogle, wherein the lines were located over a public right-of-way and were not over the grain bin.

We are aware that the plaintiff in Carroll was injured when he came in contact with uninsulated transmission lines while installing lightning rods on the top of a farm shed. There, as here, the lines were crossing private property. Carroll followed Genaust. However, the type and use of the structure must be considered.

We conclude that regardless of the 13-foot clearance over the feed bin, it was objectively reasonable to foresee that the farm operator and employees would be, for example, filling the bin with augers which, during the placement process, could reach 13 feet above the bin and, in cleaning the crusted feed from inside the 17-foot bin, would be using equipment sufficient in length to make contact with the power lines. The foreseeable danger calls out for protection of at least adequate insulation of the wires in the area of the bin. In so holding, we find the facts exceed the “might conceivably occur” test. While the lines are observable, it is foreseeable that someone who has a right to do so would be working on the bin and be in danger of making contact with the lines. In so holding, we necessarily conclude the Merlo case and its progeny are more appropriate to the facts in this case than the Genaust case and its progeny.

Both Merlo and Genaust preceded the adoption of comparative negligence. (See Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886.) Comparative negligence will be applicable in the trial of the present case.

Reversed and remanded.

KNECHT, P.J., and GREEN, J., concur.