author: PRESIDING JUSTICE BUCKLEY

text:
    BERNARD KALATA, Plaintiff-Appellee and Cross-Appellant, v. ANHEUSER-BUSCH COMPANIES, INC., Defendant-Appellant and Cross-Appellee.
    First District (1st Division)
    No. 1 — 89—1999
    Opinion filed September 28, 1990.

      Cassiday, Schade & Gloor, of Chicago (Timothy J. Ashe and Lynn D. Dowd, of counsel), for appellant.
    Grotefeld, Johnson & Pekala, Chartered, of Chicago (Frank E. Glowacki and Carol M. Douglas, of counsel), for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Anheuser-Busch Companies, Inc. (defendant), appeals from a damages award entered in favor of Bernard Kalata (plaintiff) for personal injuries plaintiff sustained after slipping on a snow-and ice-covered landing located at a warehouse owned by defendant and leased to plaintiffs employer. Defendant contends on appeal that the trial court erred when it concluded that defendant negligently permitted an unnatural accumulation of ice and snow to occur and that the absence of a second handrail proximately caused plaintiffs injury. For the following reasons, the judgment in favor of plaintiff is reversed and the case is remanded for entry of judgment in favor of defendant.

On January 9, 1984, at approximately 6:30 a.m., plaintiff arrived at defendant’s warehouse and proceeded to enter it. After a short, work-related stay inside, plaintiff and his assistant, Robert Ubriarco, prepared to exit the building. Ubriarco exited first and slipped, but did not fall, as he proceeded down the left side of the stairs. Plaintiff followed next, carrying some work-related items in his right hand. As plaintiff began to descend down the left side of the stairway, he slipped on snow-covered ice located on the landing. At the time of his fall, plaintiff was holding the left railing; the stairway contained no righthand railing.

At trial, plaintiff predicated his claim for relief on defendant’s negligence in permitting its gutters and roof to leak water onto the landing upon which he fell. Plaintiff further alleged that the landing was defective in that it lacked a sufficient pitch to allow water to properly drain. Finally, plaintiff claimed that defendant negligently failed to install both a canopy over the landing in order to prevent water from accumulating upon it and a second handrail along the right side of the stairway.

At the close of the evidence, the trial court entered judgment in favor of plaintiff in the amount of $361,217.41, but reduced the award by 50% to $180,608.70 due to plaintiff’s comparative negligence. The trial court found that plaintiff’s injuries were caused by water dripping from the roof and gutters of defendant’s building and the absence of a second handrail. The trial court made no express findings, however, as to whether the landing upon which the water dripped was defective, or whether defendant negligently failed to install a canopy.

The first issue on appeal is whether defendant negligently permitted an unnatural accumulation of snow and ice to occur on its landing. The law in Illinois with respect to this issue is well settled.

In Graham v. City of Chicago (1931), 346 Ill. 638, 641, 178 N.E.

911, 912, the Illinois Supreme Court adopted the rule that a municipality is not liable for injuries that occur on its streets and sidewalks as a result of a natural accumulation of ice and snow. The court reasoned that it would be unreasonable to place a duty on a city to remove natural accumulations because of the significant drain on resources this duty would impose. Graham, 346 Ill. at 641, 178 N.E. at 912.

Significantly, the Graham court distinguished situations where a city could be charged with creating an artificial accumulation of snow or ice. In these situations, because the rationale of limited resources no longer applies, imposing a duty on the city to correct the condition would not be unreasonable where the city has actual or constructive notice of the condition. (Graham, 346 Ill. at 641, 178 N.E. at 913.) Thus, in Graham, the city was found liable for a fall on an icy sidewalk which occurred when the city overflooded an adjacent ice rink.

The law set forth in Graham has been generally extended to private landowners. (See Riccitelli v. Sternfeld (1953), 1 Ill. 2d 133, 115 N.E.2d 288 (property owner is under no obligation to clear snow from sidewalks adjacent to premises).) Even where the injured party can be assigned an invitee status, or is a tenant who slips on ice located within an area common to all tenants, there is no duty of a private landowner to remove natural accumulations. (See Cronin v. Brownlie (1952), 348 Ill. App. 448, 109 N.E.2d 352 (landlord-tenant); Anderson v. Davis Development Corp. (1968), 99 Ill. App. 2d 55, 241 N.E.2d 222 (proprietor-invitee).) In short, liability hinges not on the relationship between the defendant and the injured party, but rather on the determinations of whether the accumulation was natural or unnatural, whether the defendant created it directly or indirectly, and whether defendant can be charged with knowledge of its existence. Shoemaker v. Rush-Presbyterian-St. Luke’s Medical Center (1989), 187 Ill. App. 3d 1040, 1043, 543 N.E.2d 1014, 1016; Gilberg v. Toys “R” Us, Inc. (1984), 126 Ill. App. 3d 554, 557, 467 N.E.2d 947, 949.

As to the determination of whether an accumulation is natural or unnatural, a plaintiff must affirmatively plead and prove an unnatural accumulation. (DeMario v. Sears, Roebuck & Co. (1972), 6 Ill. App. 3d 46, 50, 204 N.E.2d 330, 332.) The cases on this element of plaintiff’s case show that this requirement is not met unless plaintiff shows a defect in the underlying premises, or an affirmative, yet negligent, undertaking by the defendant to remove the snow or ice. Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 145, 407 N.E.2d 1031, 1033. See Graham, 346 Ill. 638, 178 N.E. 911 (overflow from ice rink); Bellino v. Village of Lake in the Hills (1988), 166 Ill. App. 3d 702, 520 N.E.2d 1196 (no allegation that underlying street contained defect); Lapidus v. Hahn (1983), 115 Ill. App. 3d 795, 450 N.E.2d 824 (water repeatedly dripped in torrents from roof into a depression on platform); Bansch v. Donnelly (1979), 77 Ill. App. 3d 922, 396 N.E.2d 869 (no showing that alteration of building’s facade altered natural flow of water); Jones v. City of Rock Island (1968), 101 Ill. App. 2d 174, 242 N.E.2d 302 (defective condition of curbing, gutter and adjacent sidewalk); Durkin v. Lewitz (1954), 3 Ill. App. 2d 481, 123 N.E.2d 151 (hole in gutter).

Turning to the facts of this case, plaintiff alleged that the ice on the landing where he fell was attributable to water dripping from defendant’s gutter or roof. Plaintiff, however, offered no direct testimony, whether lay or expert, to show that a design deficiency existed in the roof or gutter. While the absence of direct evidence of a defect is not fatal to plaintiff’s claim, the circumstantial evidence plaintiff presented fails to raise a triable issue of whether a design deficiency existed.

Plaintiff and Ubriarco testified as to how water came off the roof after a heavy rainfall or snowfall. This testimony is not helpful to plaintiff, because January’s climatological report received in evidence and reviewed by the parties’ experts demonstrates that no heavy snowfall occurred. The only snowfall of significance, three inches on January 1, 1984, occurred more than one week before the date of plaintiff’s injuries.

Plaintiff also testified in reference to the source of the ice on the landing. He stated how water always came from the gutter. Ubriarco made a similar statement, except he testified that water came off the roof over the gutter. This testimony is insufficient. First, there is absolutely no testimony that this condition existed at or near the date of the accident. The testimony was from a historical perspective. Second, because no foundation was offered for these statements, it is not clear from the record whether these statements refer to heavy or light snowfalls. Even if they refer to drippings from light snowfalls, the two statements are inconsistent. While one may conceivably infer a defect from evidence that water drips from the bottom of a gutter, or that water leaks from between the roof and a gutter, an inference of a defect cannot be drawn where water flows over a gutter. In the former situations, a properly manufactured and installed gutter should catch normal roof runoff. In the latter, where ice fills the entire gutter, normal roof runoff will run over the gutter. This is an entirely natural process. See Linde v. Welch (1981), 95 Ill. App. 3d 581, 582, 420 N.E.2d 490, 492.

Plaintiff also testified that any time there was snow on the roof or ground and it was a sunny day, water would come off the roof. This testimony again, however, reveals nothing regarding the existence of a defect. Dripping water from above, without more, is not sufficient by itself to justify a conclusion that a defect existed.

Both plaintiff and Ubriarco also testified as to icicles, but differed as to their location. Plaintiff testified that icicles would be located along the side of the building, while Ubriarco stated they would also hang over the rain gutter. Again, this testimony cannot support a conclusion that defendant’s gutter or roof was defective. Moreover, this testimony only reflects conditions at some time in the past.

Finally, the need to show a specific defect was particularly acute here because of the general slipperiness of the surrounding area. On cross-examination, plaintiff testified that it was snowing on the day of the accident and that it snowed the night before the accident. It was below freezing that morning, and the parking lot and street conditions were slippery. Plaintiff testified that he slipped in the parking lot just prior to entering the warehouse and that the steps on which he entered were slippery. Because of this testimony, plaintiff’s showing of some defect in the gutter or roof was necessary to show that any accumulation of ice on the landing was not an accumulation attributable to slippery conditions in general.

In addition to plaintiff’s failure to submit any evidence of a defect in the gutter or roof, plaintiff has also failed to submit any evidence of a defect in the landing. Plaintiff presented John Gliottoni as an expert to support his theory that the landing was defective in that it was not sloped. Gliottoni testified that based upon a reasonable degree of construction standards, the pitch of the landing should have been one-quarter inch per foot. Because the landing was 48 inches wide, Gliottoni stated the landing should pitch one inch towards the parking lot. He claimed that without this pitch, the landing was not in a safe condition because water could not properly drain.

Plaintiff has presented no cases to support his position that a landing’s lack of a slope, by itself, constitutes a defect in the sense that the lack of a slope permits water to accumulate unnaturally. Our review of Illinois case law indicates that a lack of a slope is not the type of a defect for which recovery has been allowed. (See Lapidus v. Hahn (1983), 115 Ill. App. 3d 795, 450 N.E.2d 824 (water trapped by depression in platform); Jones v. City of Rock Island (1968), 101 Ill. App. 2d 174, 242 N.E.2d 302 (gutter and sidewalk in broken and uneven condition); Stroyeck v. A.E. Staley Manufacturing Co. (1960), 26 Ill. App. 2d 76, 167 N.E.2d 689 (sidewalk with 13.6% grade).) Accordingly, we conclude that Illinois law does not support plaintiff’s assertion that the landing was defective.

The second issue on review is whether the trial court erred when it concluded that the absence of a second handrail proximately caused plaintiff’s injury. The record demonstrates that the stairway where plaintiff fell contained only a handrail along the left side and that this lack of a second handrail violated section 67 — 10.3 of the Chicago Building Code. Under this section, all stairways are required to have dual railings except where the stairway is less than 44 inches wide. The record reflects that defendant’s stairway was wider than 44 inches.

At the close of the trial, the trial court made the following ruling as to the absence of the second handrail:

“There is also a finding that there was no handrail on there, which is not a violation, per se, but if there had been a handrail on there, the plaintiff could have come out of the door, grasped the handrail there and maybe not have taken the two steps.
We don’t know what the plaintiff would do, but if there had been a handrail on the building, he could have used the handrail.”

In Illinois, a defendant’s violation of a statute or ordinance designed for the protection of the public is prima facie evidence of negligence, and a plaintiff may recover if he shows the violation proximately caused plaintiff’s injury. (Pharr v. Chicago Transit Authority (1984), 123 Ill. App. 3d 205, 209, 462 N.E.2d 753, 756.) Here, the evidence is insufficient to show any connection between plaintiff’s fall and defendant’s violation of the ordinance. First, no testimony in the record exists showing that plaintiff would have proceeded down the right side of the stairway had a right handrail been provided. Second, even if a right handrail existed, the testimony shows plaintiff may have slipped anyway. At the time of his fall, plaintiff was holding the left handrail, yet it did not prevent him from falling. Also, plaintiff testified that his right hand was holding a tin can, clipboard and route book at the time of his fall. Thus, a question exists as to whether he would have used the right handrail had one been provided. Third, even if plaintiff testified he would have taken a different path, no testimony exists to show that plaintiff’s path would have taken him around the ice upon which he fell. In short, the conclusion that a connection exists between plaintiff’s fall and the violation of the ordinance is mere conjecture. Liability cannot be predicated upon surmise or conjecture as to the cause of the injury; proximate cause may only be established when there is a reasonable certainty that defendant’s acts caused the injury. (Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 817, 416 N.E.2d 328, 331.) Thus, the trial court’s finding that the absence of a second handrail proximately caused plaintiff’s fall was not supported by the evidence.

For the foregoing reasons, the judgment entered in favor of plaintiff is reversed and the case is remanded for entry of judgment in favor of defendant.

Reversed and remanded.

CAMPBELL and MANNING, JJ., concur.

      Because plaintiff failed to prove the accumulation was other than natural, defendant was under no duty to install a canopy. See Greenwood v. Leu’s IGA Food Liner (1973), 14 Ill. App. 3d 11, 16, 302 N.E.2d 359, 363 (where accumulation is natural, an owner has no duty to provide adequate safeguards to prevent falls).


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    STEVE WEBER, Plaintiff-Appellee, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF WHEELING et al., Defendants-Appellants.
    First District (1st Division)
    No. 1 — 89—2524
    Opinion filed September 28, 1990.

      Klein, Thorpe & Jenkins, Ltd., of Chicago, and James A. Rhodes, of Wheeling (Arthur C. Thorpe and Patrick L. Lucansky, of counsel), for appellants.
    Noel T. Wroblewski, of Combined Counties Police Association, of "Wheeling, for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Wheeling police officer Stephen Weber sent a letter of resignation, with a subsequent effective date, to the Board of Fire and Police Commissioners (Board). Before the effective date, Weber asked the Board to grant him a leave of absence in lieu of resignation. The Board refused, maintaining that because Weber’s resignation was irrevocable when filed with the Board, it had no jurisdiction to consider Weber’s request. Weber filed a complaint for administrative review. The trial court found that Weber’s resignation was conditional, that he had rescinded it before its effective date, ordered the Board to reinstate Weber, and remanded for hearings to determine back pay and seniority. The Board appeals. For the reasons below, we reverse.

On May 25, 1987, police officer Steve Weber submitted a written resignation to the Board of Fire and Police Commissioners of the Village of Wheeling. The resignation stated: “I am terminating my employment with the Village of Wheeling and the Wheeling Police Department effective (30) calendar days from this date.”

On June 16, the minutes of the Board showed that Weber’s resignation had been received: “1. From Sergeant Stephen Weber, dated June 15, 1987 regarding termination 30 calendar days from this date or June 24, 1987.” The minutes also showed that the Board was conducting a search to fill the vacancy left by Weber.

On June 17, Weber wrote a second letter to the Board, which stated in relevant part:

“Due to personal and family health reasons, I am asking the board to consider a six (6) month leave of absence in lieu of my resignation. I am further requesting that this leave commence on or before July 1,1987.
I apologize for such short notice for this request and I understand that if the Board does not see fit to grant the leave I request, I will consider my termination date of June 24, 1987, to stand ***.”

On June 19, the Board responded to Weber’s request: “Please be advised that the Board has accepted your resignation at our regular meeting of June 16, 1987. Further, any leave of absence requests are not under the jurisdiction of the Board as our Rules and Regulations do not address this matter.”

On June 30, the Board held a special meeting to consider Weber’s request for a leave of absence in lieu of resignation, but refused on the grounds that once a resignation was filed, the Board had no power to rescind the resignation. Weber’s request for a rehearing was refused. Weber filed a complaint for administrative review.

As previously stated, the trial court ruled that Weber’s resignation was conditional because it was effective at a future date, and found that Weber had rescinded his resignation before its effective date. The trial court ordered the Board to reinstate Weber and remanded for a hearing on back pay and seniority. The Board appeals.

We initially note that review of the Board’s determination lies within the jurisdiction of both the trial and appellate courts. Any action by the Board to consider Weber’s request after his resignation would have implicated the Board’s powers under the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 1 — 2—1.1 et seg.), and the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101). The Board exercised its powers under those statutes to determine that it had no jurisdiction to act on Weber’s requests. Accordingly, review of the Board’s decision was within the jurisdiction of the trial court, and the trial court’s order was final, notwithstanding remand, because determination of back pay and seniority would not raise disputed questions of fact; the order entitled Weber to back pay and seniority, and all that was left was the calculation of such by the Board. Supreme Court Rule 301 (107 Ill. 2d R. 301) provides for the appeal of every final judgment by the circuit court.

Although the trial court properly reviewed the Board’s decision, its reversal of the Board was error. The resignation of a public officer is effective and irrevocable when received by or filed with the officer authorized to fill his vacancy (People ex rel. Adamowski v. Kerner (1960), 19 Ill. 2d 506, 512, 167 N.E.2d 555 (Kerner)), and that rule applies not only to elected positions, but also to nonelected public officers such as firemen and policemen. (Stearns v. Board of Fire & Police Commissioners (1978), 59 Ill. App. 3d 569, 375 N.E.2d 877; Gras v. Clark (1977), 46 Ill. App. 3d 803, 361 N.E.2d 316, appeal denied (1977), 66 Ill. 2d 630.) Here, the trial court ruled that the subsequent effective date made Weber’s resignation conditional, and therefore, Kerner was inapplicable. But Kerner explicitly applies whether the resignation is effective “forthwith or at a future date.” (Kerner, 19 Ill. 2d at 512.) Thus, the trial court erred.

Weber argues that the policy underlying Kerner, that the public must know who is, and who is not, a public officer, should not be applied to police officers, who, Weber contends, are not public officers as contemplated by Kerner, but rather “public employees.” Weber’s distinction, however, is without merit. Section 10 — 2.1—4 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 10 — 2.1—4) provides that full-time members of a regular police department are city officers. (See also Stearns v. Board of Fire & Police Commissioners (1978), 59 Ill. App. 3d 569, 572, 375 N.E.2d 877.) Police officers are therefore endowed not only with the benefits and protections, but the duties and limitations, of being a public officer.

Weber further argues that Illinois should allow a resignation to be withdrawn before it is accepted or acted upon, or rescinded if the authorizing body consents. Kerner, however, decided by the supreme court, holds to the contrary.

Here, notwithstanding Weber’s contention that strained family relations negated his intent to relinquish his position, his letter of resignation, dated May 25, unequivocally stated that he would terminate his employment in 30 calendar days. The Board meeting minutes of June 16 show that the letter had been received and acted upon. Even were Weber’s proposed rule applied, his resignation was effective and irrevocable when he made his June 17 request for a leave of absence in lieu of resignation, and the Board correctly determined that it had no jurisdiction to consider that request. Accordingly, we reverse the judgment of the circuit court of Cook County.

Reversed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: PRESIDING JUSTICE COCCIA

text:
    MELISSA WALL, Plaintiff-Appellant, v. BERNARD C. PECARO, Defendant-Appellee.
    First District (5th Division)
    No. 1 — 88—2729
    Opinion filed September 7, 1990.
    Rehearing denied November 8, 1990.

      Robert P. Sheridan, of Chicago, for appellant.
    Cassiday, Schade & Gloor, of Chicago (Kevin G. Burke and Susan E. Conner, of counsel), for appellee.
   PRESIDING JUSTICE COCCIA

delivered the opinion of the court:

I

Plaintiff Melissa Wall appeals from an order entered by the circuit court, dismissing an intentional infliction of emotional distress claim she brought against defendant Bernard Pecaro, M.D. In the same order, the circuit court also denied Wall’s motion for leave to file a second amended complaint. We have concluded that the circuit court abused its discretion by not granting her leave to amend; accordingly, the case must be reversed and remanded.

II

Wall filed a six-count pro se complaint on August 14, 1985. She named Susan Panek, M.D., Stephen G. Marshall, D.D.S., Neil B. Ha-gen, D.D.S., Peter Polverini, M.D., Northwestern University Medical Center, and Dr. Pecaro as defendants. Count IV was directed against Pecaro. Wall alleged that on March 18, 1985, she sought medical treatment from Pecaro, regarding a tumorous growth in the roof of her mouth. Wall charged that he negligently treated her, in that he made an improper diagnosis, causing her to suffer severe emotional distress. Wall further alleged that Pecaro intentionally inflicted severe emotional distress upon her. According to Wall, Pecaro urgently recommended that she submit to unnecessary treatment — the surgical removal of significant portions of her head’s internal structures and tissues, as well as the abortion of her 51/2-month-old fetus — and repeatedly told her that if she failed to undergo these procedures, her cancer would spread rapidly.

Pecaro moved to dismiss Wall’s complaint on October 11, 1985. He argued that her complaint alleged two separate causes of action against him — namely, negligence and intentional infliction of emotional distress — in the same count, contrary to section 2 — 613 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 613). On November 27, 1985, Wall’s current counsel appeared for her and was given leave to respond to Pecaro’s motion to dismiss or file an amended complaint. On February 18, 1986, Wall voluntarily dismissed all defendants apart from Pecaro, pursuant to section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1009).

Wall’s amended complaint was filed on April 16, 1986. The allegations of the amended complaint are similar to those of the original complaint. Wall alleged that upon seeking medical treatment from Pecaro on March 18, 1985, he recommended that she submit to his surgical removal of significant portions of her head’s internal structures and tissues, as well as the abortion of her viable S^-month-old fetus. Wall claimed that Pecaro stated that these procedures were necessary to save her life from cancer. After that date, Wall now alleged, she advised Pecaro that he was discharged, but he insisted that she allow him to perform the surgeries and even called her at home. Wall averred that Pecaro’s statements were made with the intent that they cause her emotional pain, suffering, and distress. By reason of Pecaro’s statements and actions, Wall concluded, she suffered severe emotional distress.

Pecaro filed his answer on April 28, 1988. Pecaro admitted that he was a licensed physician, that he saw Wall on March 18, 1985, that he discussed various alternative courses of treatment with her, and that he attempted to call her at home to advise her about pathology reports. In all other respects, Pecaro denied the allegations of Wall’s amended complaint.

On April 28, 1988, Pecaro was given leave to withdraw his answer and file a motion to dismiss. Pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615), Pecaro moved to dismiss Wall’s amended complaint on May 12, 1988. Relying on Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 360 N.E.2d 765, Pecaro argued that Wall failed to state a cause of action for intentional infliction of emotional distress. Specifically, he argued that Wall failed to allege facts showing that his conduct was extreme and outrageous, that her emotional distress was severe, and that his conduct was such that he knew severe emotional distress was certain to result.

On August 3, 1988, Wall filed her response to Pecaro’s motion to dismiss. Wall argued that Pecaro did not show that his conduct was not outrageous. According to Wall, Pecaro intentionally acted to terrify her, even after she discharged him, so that she would submit to needless surgery, which would have resulted in the removal of half her face and the loss of her then unborn child. Wall contended that Pecaro’s conduct was not merely calculated to cause emotional distress; rather, it was specifically intended to cause emotional distress so as to overbear her will and cause her to agree to the procedures he desired to perform. Wall asserted that Pecaro knew she did not have cancer, or at least did not know that she did. Furthermore, Pecaro knew that Wall had discharged him and that her new doctors determined that she did not have cancer. Yet Pecaro unlawfully continued to communicate with her. Pecaro, Wall urged, was motivated by the fact that he and his colleagues mishandled her treatment from the outset: his associate had engaged in irregular conduct with respect to an excision on her mouth, and the subsequent diagnostic procedures were substandard. Because Wall later obtained proper diagnosis and treatment, and because she suffered no injury as a result of the earlier negligence, she elected not to proceed against those who were only negligent. However, Wall maintained, Pecaro planned to assist his associate in avoiding liability by destroying her face, thereby removing the evidence of negligence. Wall affirmed that the evidence would support her theory, that Pecaro’s conduct was outrageous, and that she stated a cause of action for intentional infliction of emotional distress. But if the circuit court found that her amended complaint was not properly pleaded, she prayed, it should allow her to cure any deficiencies by filing a second amended complaint. Finally, Wall noted, her amended complaint was filed solely for the purpose of removing the defendants charged with negligence in her original complaint.

On August 3, 1988, a hearing was held on Pecaro’s motion to dismiss. As in his motion, Pecaro argued that Wall’s amended complaint failed to set forth the factual allegations necessary to support a cause of action for intentional infliction of emotional distress. Even if the allegations of Wall’s response were considered, Pecaro contended, she failed to state a cause of action. Wall replied that she had sufficiently alleged the tort’s elements. In any event, Wall asserted, any deficiencies could be cured by amendment. However, the circuit court stated:

“The Court is probably being influenced by the fact that now I have a recollection of both Mr. and Mrs. Wall being here in my chambers for 45 minutes to an hour, in reviewing the complete situation with them and talking to them, everything that is in these motions, and even talking to them, and I think the Court has heard all the evidence in the case that would be presented, maybe seeing the situation closer than even a trial judge would see the situation; and if my recollection serves me right, Mr. Sheridan [Wall’s attorney], my advice to them was that they did not have a sufficient case.
I told them that even taking it in the best of light that they would have to show a more severe reaction to what had occurred to be successful in their case, and did I not advise them to non-suit the case?”

Notwithstanding the circuit court’s remarks, Wall asked for leave to file a second amended complaint. But the circuit court ruled that, even considering the allegations of Wall’s response, no amendment would help. The circuit court then concluded that no cause of action had been stated and sustained the motion to dismiss. Counsel for Wall confirmed counsel for Pecaro’s understanding that if she had been allowed to file a second amended complaint, it would have included the facts set forth in the response.

On August 4, 1988, the circuit court entered a written order. This order provides in part:

“That the Plaintiff’s Motion for leave to file a Second Amended Complaint is denied, the court finding that, even in consideration of the amendments suggested in Plaintiff’s Response and by Counsel in open Court, no amendment could state a cause of action for intentional infliction of emotional distress.”

Consequently, Pecaro’s motion to dismiss was granted, and Wall’s cause was dismissed with prejudice. Wall then appealed to this court.

Ill

On appeal, Wall argues that her amended complaint — when read together with her response to Pecaro’s motion to dismiss — states a cause of action for intentional infliction of emotional distress. In the alternative, she contends that the circuit court should have granted her leave to file a second amended complaint. Pecaro retorts that, even considering the facts alleged in Wall’s response, she has failed to state a cause of action. In addition, he maintains, the circuit court did not abuse its discretion in denying her leave to amend. See Lordahl v. Mauro (1982), 109 Ill. App. 3d 478, 481, 440 N.E.2d 989, 991; Whildin v. Kovacs (1980), 82 Ill. App. 3d 1015, 1017, 403 N.E.2d 694, 696.

The tort of intentional infliction of emotional distress was first recognized by the supreme court of Illinois in Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157. In the recent case oí McGrath v. Fahey (1989), 126 Ill. 2d 78, 533 N.E.2d 806, the supreme court discussed the tort at length. The court stated that the plaintiff must plead facts indicating that: first, the defendant’s conduct was truly extreme and outrageous; second, the defendant either intended that his conduct inflict severe emotional distress, or knew that there was a high probability that his conduct would cause such distress; and third, the defendant’s conduct in fact caused severe emotional distress. See McGrath, 126 Ill. 2d at 86, 533 N.E.2d 809.

McGrath is most relevant to our case, however, because the supreme court identified several factors that should be considered in determining whether the tort defendant’s conduct is sufficiently outrageous. Among the factors to be considered, the court observed, is the defendant’s awareness that the plaintiff is peculiarly susceptible to emotional distress, by virtue of some physical or mental condition or peculiarity. Behavior that — although rude, abrasive, or extremely inconsiderate — might not otherwise be actionable may be deemed outrageous if the defendant knows the plaintiff is peculiarly susceptible to emotional distress. See McGrath, 126 Ill. 2d at 89-90, 533 N.E.2d at 811.

The second element, the defendant’s intent, is not unduly complex. But the third element — causation—has proved to be troublesome. Since recognizing intentional infliction of emotional distress in Knierim, the supreme court has returned to the Restatement (Second) of Torts section 46 (1965), as well as its comments and illustrations, when applying the tort’s elements. (See, e.g., Davis, 66 Ill. 2d at 89, 360 N.E.2d at 766-67; McGrath, 126 Ill. 2d at 86, 533 N.E.2d at 809.) In this case, we have found the following language from section 46’s comment y to be helpful:

“Severe emotional distress. The rule stated in this Section applies only where the emotional distress has in fact resulted, and where it is severe. *** Severe distress must be proved; but in many cases the extreme and outrageous character of the defendant’s conduct is in itself important evidence that the distress has existed. For example, the mere recital of the facts in Illustration 1 above goes far to prove that the claim is not fictitious.” (Restatement (Second) of Torts §46, comment y at 77-78 (1965).)

Illustration 1, in turn, provides:

“As a practical joke, A falsely tells B that her husband has been badly injured in an accident, and is in the hospital with both legs broken. B suffers severe emotional distress. A is subject to liability to B for her emotional distress. If it causes nervous shock and resulting illness, A is subject to liability to B for her illness.” Restatement (Second) of Torts §46, illustration 1, at 73 (1965).

As previously mentioned, the circuit court considered the facts alleged in Wall’s response to Pecaro’s motion to dismiss in determining whether her amended complaint stated a cause of action for intentional infliction of emotional distress. For the sake of argument, we shall consider those facts as well. Applying the facts to the principles that have emerged from the foregoing authorities, we must conclude that Wall stated a cause of action. Pecaro’s alleged conduct was clearly outrageous. That is, following McGrath, Pecaro must have known — or as a doctor can be charged with the knowledge — that by reason of her pregnancy, Wall was peculiarly susceptible to emotional distress, especially because the procedures he recommended would have resulted not only in the loss of her viable fetus but also the loss of half her face. The second element is likewise satisfied, for it is Wall’s theory that Pecaro specifically intended to cause her emotional distress in order to obtain her consent to unnecessary surgery. Be that as it may, Pecaro can be charged with the knowledge that there was a high probability that his conduct would cause Wall severe emotional distress. Lastly, in view of section 46’s comment j and illustration 1, quoted above, the character of Pecaro’s conduct is in itself evidence that Wall experienced severe emotional distress. Pecaro’s alleged conduct is at least as outrageous, if not more so, than the conduct described in illustration 1. Were we to hold that Wall did not state a cause of action in this case, we would in effect be holding that doctors may intentionally inflict emotional distress upon their patients with impunity.

It must be remembered, of course, that when reviewing the dismissal of a complaint pursuant to section 2 — 615, an appellate court must interpret all allegations in a light most favorable to the nonmovant. The section 2 — 615 motion admits all well-pleaded facts and all reasonable inferences to be drawn from them. (See Iverson v. Scholl, Inc. (1985), 136 Ill. App. 3d 962, 965, 483 N.E.2d 893, 896.) Consequently, we do not not wish to be understood as implying that Pecaro is guilty of the monstrous conduct alleged by Wall. Pecaro has consistently denied her allegations. Upon remand he may ultimately prevail, perhaps by obtaining summary judgment. Moreover, we do not suggest that all patients who react unfavorably to a doctor’s diagnosis have a cause of action for intentional infliction of emotional distress. Unavoidably, many patients will experience emotional distress-even severe emotional distress — when given a diagnosis that requires surgery with grave consequences. But it is only where a doctor acts outrageously, where he intends to inflict severe emotional distress, and where such distress in fact results that a cause of action for intentional infliction of emotional distress can be stated.

If we ignored the allegations of Wall’s response and concluded that her amended complaint failed to state a cause of action, however, reversal would still be necessary. It is settled that an action should not be dismissed for failure to state a claim unless it is clear that no set of facts can be proven under the pleading which would entitle the plaintiff to relief. (See Iverson, 136 Ill. App. 3d at 965, 483 N.E.2d at 895-96.) And, when ruling on a section 2 — 615 motion, only facts apparent from the face of the pleading may be considered. (See R. Michael, 3 Illinois Practice: Civil Procedure Before Trial ch. 27, §27.4, at 504 (1989).) Here the circuit court based its ruling (that no cause of action for intentional infliction of emotional distress could be stated) upon its discussions with Wall and her husband at a pretrial conference, which supposedly revealed to it that she did not suffer sufficiently severe emotional distress. By basing its decision to deny Wall leave to amend on the grounds of what it learned at a pretrial conference, which is dehors the record, we think the circuit court abused its discretion. (See Eisenberg, Appellate Review of Discretion ary Judicial Determinations, 2 Appellate Law Review 8, 12 (1990) (when circuit court applies wrong legal criteria or follows incorrect procedure in exercising its discretion, reversal is generally required).) Therefore, the order of August 4, 1988, must be reversed and the cause remanded so that Wall may file a second amended complaint.

IV

Because the circuit court abused its discretion by denying Wall leave to amend, the order dismissing her case against Pecaro is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded with directions.

LORENZ and MURRAY, JJ., concur.


author: JUSTICE SCARIANO

text:
    THE COUNTY OF COOK, Appellant, v. THE ILLINOIS LOCAL LABOR RELATIONS BOARD et al., Appellees.
    First District (2nd Division)
    No. 1 — 88—3146
    Opinion filed September 18, 1990.
    Rehearing denied November 7, 1990.

      Cecil A. Partee, State’s Attorney, of Chicago (Iris E. Sholder and Diane Kristen, Assistant State’s Attorneys, of counsel), for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (William D. Frazier, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Local Labor Relations Board.

      Daniel I. Koen, of Cornfield & Feldman, of Chicago, for appellee American Federation of State, County & Municipal Employees.
   JUSTICE SCARIANO

delivered the opinion of the court:

This dispute arises out of a request by the appellee union that Cook County (the County) bargain over the possible termination or other change in employment of certain temporary civil service appointees based on the results of a civil service examination covering their position. The union filed an unfair labor practice charge after the County refused to bargain, and the Illinois Local Labor Relations Board held that the issue was a mandatory subject of bargaining. We affirm in part and reverse in part.

In December 1979, the Illinois General Assembly abolished the Health and Hospitals Governing Commission, and Cook County Hospital was placed directly under the County Board’s jurisdiction. (Ill. Rev. Stat. 1981, ch. 34, par. 5020.) As a result, most positions at the hospital were to be filled pursuant to the civil service provisions of “An Act to revise the law in relation to the election of county commissioners in Cook County and to fix their term of office” (Ill. Rev. Stat. 1981, ch. 34, par. 1105 et seq., now recodified at Ill. Rev. Stat. 1989, ch. 34, par. 3 — 14011 et seq.) (Counties Code), and the rules of the Cook County Civil Service Commission (Commission) promulgated thereunder (Ill. Rev. Stat. 1981, ch. 34, par. 1108, now recodified at Ill. Rev. Stat. 1989, ch. 34, par. 3-14014).

The County and the union entered into a collective bargaining agreement effective December 1, 1984, which covered, among others, the newly created position of computer operator I at Cook County Hospital. Three individuals subsequently received temporary appointments to this position during 1986 and 1987, all of whom successfully completed the probationary period provided for in the labor agreement and became members of the bargaining unit.

Typically, in order to obtain a classified civil service position, a candidate is required to pass a qualifying examination and rank sufficiently high on a register prepared by the Commission, thus entitling her to certification to the hiring authority; scoring adjustments are made for prior experience gained within the system. (Ill. Rev. Stat. 1989, ch. 34, pars. 3 — 14018, 4 — 14019, 4 — 14020; Civil Service Commission Rule VIII.) Where an examination and register have not been prepared, the Commission may authorize temporary appointments if a bona fide emergency requiring immediate appointment exists. (Civil Service Commission Rule VI, §2.) The Commission rules define temporary appointment as “[t]he employment of a person in a position from day to day when an appointment by certification or reinstatement cannot be made and which shall be terminated when an eligible can be certified or reinstated to the position.” Civil Service Commission Rule I,§1.

On January 22, 1988, the Civil Service Commission, through the County’s department of personnel, posted notice that a civil service examination would be given for the position of computer operator I at Cook County Hospital. A union negotiator raised the issue of testing the incumbent operators at a meeting held on January 26, 1988, arguing that the incumbents should be “grandfathered” into the positions they were currently filling. The County’s representative stated that it did not have the authority to bargain over the matter and that it was required by statute to fill the positions through the normal civil service testing and certification process.

Based on the County’s refusal to bargain over the matter, the union filed an unfair labor practice charge with the Illinois Local Labor Relations Board (Board) on January 27, 1988, and the Board filed a complaint against the County on March 8, 1988. On March 12, 1988, during the pendency of the administrative proceeding, the three incumbents took the civil service examination. Testimony offered at the hearing indicated that if the incumbents were not among the first five names on the list of eligibles, the County intended either to dismiss or demote them. The record does not disclose the results of the examination.

On July 22, 1988, the hearing officer issued his decision holding that the union’s proposal was a mandatory subject of bargaining within the meaning of section 7 of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1607), and ordered the County not to take any action to displace the incumbents until it had first engaged in good-faith bargaining over the dispute. The decision of the hearing officer was affirmed by the Board in an opinion issued September 28,1988, and this appeal followed.

I

The County first contends that the Civil Service Commission is a separate entity from the County, which was the only party named in the administrative complaint, and that the adverse agency ruling is a nullity because the Commission should have been joined as a necessary and indispensible party to this action. (Lakeview Trust & Savings Bank v. Estrada (1985), 134 Ill. App. 3d 792, 480 N.E.2d 1312; Burt v. Board of Education of Coal City Community Unit School District No. 1 (1985), 132 Ill. App. 3d 393, 477 N.E.2d 247.) We agree with the Board’s conclusion that this argument is without merit.

The Board’s decision, it is asserted, is inconsistent with prior supreme court precedent and is therefore erroneous. (See Springfield-Sangamon County Regional Plan Comm’n v. Fair Employment Practices Comm’n (1978), 71 Ill. 2d 61, 373 N.E.2d 1307.) In Springfield-Sangamon, the county passed a resolution creating the Sangamon County Plan Commission, and the city passed an ordinance creating the Springfield Plan Commission; the two commissions met jointly in carrying out their respective mandates under the designation Springfield-Sangamon County Regional Plan Commission (Joint Commission). A charge of unfair employment practices was filed with the Fair Employment Practices Commission (FEPC), in which it was alleged that the Joint Commission had failed to hire the complainant due to racial bias. Although the FEPC is statutorily prohibited from filing an administrative complaint more than 180 days after a charge is filed, the FEPC and the Joint Commission stipulated to an extension of time to file. It later became clear that the FEPC had no jurisdiction over the Joint Commission and so it amended its complaint to add Springfield and Sangamon County as defendants. After the FEPC found for the complainant, the city and the county sought judicial review, raising a statute of limitations argument. The appellate court affirmed, holding that the Joint Commission was not an autonomous legal entity, and that the stipulated extension of time was therefore binding on Springfield and the county.

The supreme court reversed on the ground that the stipulation was unfair to the county and the city, and that the FEPC had caused unreasonable delays in resolving the dispute by its own actions. The court further observed that this conclusion was not altered by “[t]he technical legal affiliation between the regional plan commission and the city and county, or the fact that the city and county had notice of a charge under the Act without becoming parties thereto.” 71 Ill. 2d at 70-71, 373 N.E.2d at 1311.

The above-quoted language can hardly be read, as the County would have it, as establishing that the Civil Service Commission and the County have a mere “technical legal affiliation” and are completely distinct legal entities. The supreme court’s reversal resulted from its disapproval of the excessive delays by the FEPC in acting on the complainant’s allegations, in violation of the statutory limitations period, and on concepts of fairness. It cannot support the general proposition urged by the County here.

The County also argues that the Board improperly analogized this case to a number of decisions holding that municipal commissions are not separate legal entities from the municipality which created them. (See, e.g., Troutman v. Keys (1987), 156 Ill. App. 3d 247, 509 N.E.2d 453 (Chicago board of police); People ex rel. Hurley v. Graber (1950), 405 Ill. 331, 90 N.E.2d 763 (Chicago Civil Service Commission).) The fact that these entities are created pursuant to a grant of discretionary authority under the Municipal Code is claimed to be a critical distinction from this case, which involves a civil service commission created by positive statutory mandate. Ill. Rev. Stat. 1989, ch. 34, par. 3-14011.

We reject this contention, as the statute contains sufficient indicia of control over the Commission by the County Board to obviate a finding that they are separate legal entities. The Cook County Board has the power to appoint civil service commissioners (Ill. Rev. Stat. 1989, ch. 34, pars. 3 — 14011, 3 — 14012), to fix the salaries of the commissioners (Ill. Rev. Stat. 1989, ch. 34, par. 3 — 14030), and to appropriate funds for the Commission’s operations (Ill. Rev. Stat. 1987, ch. 34, par. 3 — 14031). The fact that the County is not involved in the day-to-day operations of the Commission is irrelevant; indeed, the functioning of the Commission would be less efficient if the case were otherwise.

The County has failed to cite any decision supporting a contrary analysis. Its reliance on Howard v. County of Cook (1986), 145 Ill. App. 3d 538, 495 N.E.2d 1166, is unwarranted. Howard involved the Position Classification Agency, which is statutorily empowered to establish salaries, job titles, and codes used for all county jobs. (Ill. Rev. Stat. 1989, ch. 34, par. 3 — 14002.) Since these fiscal duties are not related to the statutory authority of the Civil Service Commission, the court concluded that “classification” of a position by the agency for budgetary purposes does not mean that the position is governed by the civil service system. (Howard, 145 Ill. App. 3d at 541-42, 495 N.E.2d at 1169.) This holding in no way addresses the issue of whether the Civil Service Commission or the Position Classification Agency is a separate and distinct legal entity from the County. Thus, Howard is inapposite to the case at bar.

We therefore affirm the Board’s holding that the Civil Service Commission is not a separate legal entity. Given this conclusion, the County’s argument that failure to join the Commission was a sufficiently serious dereliction to constitute a violation of the County’s due process rights necessarily fails as well.

II

We next consider whether the Board erred in holding that the status of the three computer operators based on their scores on the civil service examination was a mandatory subject of bargaining pursuant to section 7 of the Illinois Public Labor Relations Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 1607). Appellees argue that the Board’s interpretation of the Act is generally entitled to deference since the Board is the agency charged with its administration. (Airey v. Department of Revenue (1987), 116 Ill. 2d 528, 536, 508 N.E.2d 1058, 1062; Ill. Rev. Stat. 1989, ch. 48, par. 1605.) However, the deference normally accorded such interpretations does not permit a reviewing court to allow an erroneous conclusion of law to stand. (City of Decatur v. American Federation of State, County, & Municipal Employees (1988), 122 Ill. 2d 353, 522 N.E.2d 1219.) We hold that the Board’s interpretation of section 7 in this case is incorrect, and we reverse.

Section 7 provides that a public employer must bargain over “any matter with respect to wages, hours and other conditions of employment, not specifically provided for in any other law or not specifically in violation of the provisions of any law.” (Ill. Rev. Stat. 1989, ch. 48, par. 1607.) The County asserts that the testing requirements contained in the civil service provisions of the Counties Code are conflicting laws of sufficient authority to override the section 7 duty to bargain. This argument was rejected by the Board primarily in reliance on our supreme court’s decision in City of Decatur v. American Federation of State, County, & Municipal Employees (1988), 122 Ill. 2d 353, 522 N.E.2d 1219. In that case, the union claimed that its proposal requiring arbitration of grievances arising from disciplinary suspensions was a mandatory subject of bargaining. The City countered that the proposal would supplant the Municipal Code civil service provisions adopted by the City, which stated that nothing in the Municipal Code limited a municipality’s power to suspend without a hearing in certain specified cases (Ill. Rev. Stat. 1985, ch. 24, par. 10 — 1—18), and would therefore constitute a matter that was “specifically provided for” in another law within the meaning of section 7.

The supreme court held that the City had a duty to bargain, stating, “[i]n these circumstances, we construe the union’s proposal as pertaining to a matter not specifically provided for or in violation of another law, and as supplementing, implementing, or relating to the provisions of the civil service scheme adopted by the city.” (City of Decatur, 122 Ill. 2d at 366-67, 522 N.E.2d at 1225.) However, the court anchored its holding that the Act should control in strictly public policy considerations: the broad scope of the Act; the optional nature of the civil service system at issue, with the concomitant danger that municipalities could freely amend or eliminate the civil service code to circumvent the Act’s requirements; and the legislature’s express preference for arbitration as a means of resolving labor disputes. 122 Ill. 2d at 366-67, 522 N.E.2d at 1225.

We cannot agree that Decatur requires bargaining in this case, for we conceive of no way to interpret the bargaining proposal of the union here as merely “supplementing, implementing, or relating to” another statute. A direct conflict exists with a matter specifically provided for in another law. With several enumerated exceptions not relevant to this case, section 3 — 14013 of the Counties Code requires that the Commission “classify all the offices and places of employment in said county with reference to the examination hereinafter provided for.” (Ill. Rev. Stat. 1989, ch. 34, par. 3 — 14013.) Section 3— 14016 further states that “[a]ll applicants for offices or places in said classified service *** shall be subjected to examination.” (Ill. Rev. Stat. 1989, ch. 34, par. 3 — 14016.) These provisions must be given their plain meaning. (Maloney v. Bower (1986), 113 Ill. 2d 473, 498 N.E.2d 1102.) Appellees neglect to take into consideration this established rule of statutory construction in arguing that bargaining over the possible exemption of temporary appointees and other incumbents from the examination requirement would not violate another law within the meaning of section 7.

We also find that the policy justifications underpinning the Decatur decision are not present here. The Cook County civil service system is not part of an optional scheme; the Civil Service Commission and the examination requirement are both mandated by statute. (Ill. Rev. Stat. 1989, ch. 34, pars. 3 — 14011, 3 — 14016.) Then, too, appellees cannot rely on the policy supporting arbitration of grievance disputes as a basis for requiring bargaining under section 7, in contrast to Decatur.

To meet these objections, appellees respond that as a home rule unit, the County can institute its own civil service system, thus supplanting the statute. (Ill. Const. 1970, art. VII, §6; Stryker v. Village of Oak Park (1976), 62 Ill. 2d 523, 343 N.E.2d 919, cert. denied (1976), 429 U.S. 832, 50 L. Ed. 2d 97, 97 S. Ct. 95; People ex rel. Hanrahan v. Beck (1973), 54 Ill. 2d 561, 301 N.E.2d 281.) They conclude that the mandatory nature of the Cook County civil service system is thus illusory. Although we note that neither Stryker nor Beck is of any import here, we need not reach the merits of this issue since the argument is made for the first time in this court, without having been asserted in the administrative proceeding. American Federation of State, County & Municipal Employees v. Illinois State Labor Rela tions Board (1990), 196 Ill. App. 3d 238, 553 N.E.2d 415; Faculty Association of District 205 v. Illinois Educational Labor Relations Board (1988), 175 Ill. App. 3d 880, 530 N.E.2d 548, appeal denied (1989), 124 Ill. 2d 554, 535 N.E.2d 913.

For the foregoing reasons, we are not persuaded by two earlier decisions of the Board holding that a governmental employer is required to bargain over the administration of a civil service examination to temporary appointees. (See Fraternal Order of Police, 4 Pub. Employee Rep. (Ill.) par. 3012, No. L—CA—87—187 (ILLRB, May 18, 1988); General Service Employees Union, Local 73, 3 Pub. Employee Rep. (Ill.) par. 3030, Nos. L-CA-87-200, L-CA-87-205 (ILLRB, Sept. 21, 1987).) Our conclusion is not affected by the fact that Fraternal Order of Police was recently affirmed by another division of this court (Forest Preserve District v. Illinois Local Labor Relations Board (1989), 190 Ill. App. 3d 283, 546 N.E.2d 675, appeal denied (1990), 129 Ill. 2d 563, 550 N.E.2d 556). We respectfully disagree with and are not bound by that decision. The court in Forest Preserve District was heavily influenced by “the policy favoring public employee bargaining laws over civil service rules.” (190 Ill. App. 3d at 291, 546 N.E.2d at 680.) This analysis overlooks the fact that the Cook County civil service system as a whole and the examination requirement in particular are mandated by statute, and comes much too close to the Board’s position rejected by the supreme court in Decatur, that is, the Board’s conclusion in the administrative proceeding that the duty to bargain set out in section 7 invariably overrides any contrary statutory command (Decatur, 122 Ill. 2d at 361, 522 N.E.2d at 1222). Moreover, Forest Preserve District ignores completely the significant distinction in Decatur to which we have made reference earlier in this opinion, namely, the legislature’s express preference for arbitration as a method of resolving labor disputes.

We hold that the Board erred in ordering the County to bargain over the replacement or demotion of the three computer operators.

Ill

We believe it to be appropriate to make clear that our holding is not intended to preclude all bargaining relating to the future status of the computer operators involved in this proceeding. Even though the County cannot be required to bargain over their actual dismissal or demotion, this is not to say that the County is not required to bargain over the impact of such action.

At a bargaining session held January 26, 1988, the County indicated it was open to bargaining over reassigning or transferring prospectively displaced incumbents to another position. However, the unfair labor practice charge filed one day later included a request for an order requiring the County “to bargain with AFSCME regarding the impact of [the examination] on bargaining unit employees.” It is not clear from the record or the briefs filed in this case whether the County still holds to its earlier position stated at that bargaining meeting. Moreover, the Board’s decision does not address the duty to bargain over impact. Consequently, we specifically note that our holding here does not limit in any way the duty to bargain over impact.

For the foregoing reasons, the decision of the Board is reversed in part and affirmed in part.

Reversed in part, affirmed in part.

DiVITO, P.J., and HARTMAN, J., concur.

      We note in passing that we are similarly denied the opportunity to consider the impact of the Act’s preemption clause (Ill. Rev. Stat. 1989, ch. 48, par. 1615) on this case, as appellees have failed to raise the issue in the administrative proceeding or in the briefs filed in this appeal.


author: JUSTICE FREEMAN

text:
      In re ESTATE OF FRANK MASLOWSKI, a Disabled Person/Deceased (Dennis Rosa, Successor Guardian, Petitioner-Appellee, v. Jannina Jiminez, Respondent-Appellant).
    First District (3rd Division)
    No. 1 — 89—2657
    Opinion filed September 26, 1990.

      Ralph M. Bernstein & Associates, of Chicago (Sheryl E. Fuhr and Ralph M. Bernstein, of counsel), for appellant.
    Linda S. Kagan, of Chicago, for appellee.
   JUSTICE FREEMAN

delivered the opinion of the court:

In this cause, Dennis Rosa, as successor guardian of the estate of Frank Maslowski (decedent), sought to recover proceeds from a life insurance policy on decedent.

In February 1981, decedent was adjudicated a disabled person. His sister, Sophie Rosa, was appointed plenary guardian. In April 1981, as guardian, and on behalf of his estate, she filed a petition for a citation to discover assets. (Ill. Rev. Stat. 1987, ch. llO1^, par. 16 — 1.) Jannina Jiminez was named as respondent.

In May 1981, pursuant to the citation petition, respondent appeared for a discovery deposition. Attorney Raymond Rysztogi represented respondent and was present at the deposition. At the deposition it was revealed that respondent was the owner of a life insurance policy on which decedent was insured. No further action was taken in the citation proceeding.

In July 1982, decedent died and the proceeds from the life insurance policy were paid to respondent. On February 5, 1987, Sophie Rosa filed a new citation proceeding to discover and recover the insurance policy proceeds. (Ill. Rev. Stat. 1987, ch. llQIk, par. 16 — 1.) Sophie Rosa died in 1988. Her son, Dennis Rosa, was subsequently appointed successor guardian of the estate.

The record reveals that in April 1982, Rysztogi sent two letters to James O’Connell, the attorney for decedent’s estate. The letters are purported to be the memorialization of an agreement between respondent and Sophie Rosa whereby Sophie would pay the 1982 premium amount in exchange for the decedent’s estate being named as the beneficiary of the insurance proceeds. There is no indication, on either letter, that a carbon copy was sent to respondent.

The first letter, dated April 2, 1982, informed O’Connell that he (Rysztogi) was sending him decedent’s Northern National Life Insurance Policy, advised him of the annual premium amount, and the date the premium was to be paid. Further, the letter stated that respondent had been paying the policy since 1978 and that “she fe[lt] that the sister should now assume some of her obligations which were heaped upon her. Kindly have the beneficiary changed, my client is ready and willing to cooperate at any time to affect [sic] the change.”

The second letter, dated April 16, 1982, stated that the “PREMIUM DUE NOTICE” from Manhattan National Life Insurance Company was attached and reminded O’Connell that the grace period would run out on April 28, 1982.

Respondent testified that she lived with decedent for about three or four years until his death. In 1978 decedent took out a life insurance policy on his life and designated respondent as the beneficiary.. In May 1980, decedent changed the ownership of the insurance policy from himself to respondent. According to her, in 1978 and 1979, when decedent was short of money, she helped him with the payments of the life insurance premium. She paid the premiums in 1980 and in 1981.

According to respondent, when she received notice of the 1981 citation proceeding, she hired attorney Rysztogi to represent her. She met with him only three times, once before the deposition, once at the deposition, and a third time, maybe two weeks after the deposition. Respondent denied that she had had any further contact with Rysztogi. She stated that she did not pay Rysztogi for his services because he lost her documents.

Respondent also testified that she did not receive a premium notice for 1982. She stated that she did not pay the 1982 premium because the decedent had told her that she would only have to pay the premium for two years and, thereafter, the policy would have a cash value sufficient enough to pay for the next two years. On cross-examination, when questioned about who paid the 1982 premium, respondent responded, “[p]robably nobody else. I not know anything. I want to see document who pay.” In her answer to the citation petition, respondent admitted that Sophie Rosa had paid the 1982 premium.

Respondent further testified that, prior to the time that her current attorney showed her the letters written by Rysztogi to O’Connell, she had not seen them. According to her, she never gave Rysztogi authority to send the letters. She claimed that she never spoke with him concerning the 1982 premium.

Rysztogi was subpoenaed by petitioner to appear at the citation proceeding. According to the attorney for the estate, the subpoena was returned unserved. Rysztogi did not appear at the proceeding.

O’Connell testified on behalf of the estate. He stated that in April 1982, 11 months after respondent gave her deposition, he received two letters from Rysztogi. The April 2 letter contained the decedent’s life insurance policy. The April 16 letter contained the premium due notice and stated that the premium had to be paid by April 28. In accordance with the terms stated in the letter, Sophie Rosa paid the premium and O’Connell began to take the necessary steps to effect a change of beneficiaries. In the interim, decedent died. O’Connell was unable to complete the change of beneficiaries because his client, Sophie Rosa, had no legal connection with the life insurance policy and the company would not send him the necessary forms. After three or four months of unsuccessful attempts to effect a change of beneficiaries, O’Connell contacted Rysztogi concerning the same.

After hearing the testimony, reviewing the evidence and hearing argument of counsel the trial court entered a judgment in favor of the estate. The court expressly stated that it found respondent’s testimony was not totally truthful and that Rysztogi, by sending the letters to O’Connell, had acted upon respondent’s authority. The court held that the equitable ownership of the life insurance policy and the right to the proceeds therefrom were transferred to decedent’s estate by delivery of the policy and premium notice to the attorney for the estate on the condition that the premium would be paid. Respondent appeals, contending that (1) the trial court erred in finding that respondent’s attorney had authority to enter into an agreement with the estate; (2) there was no consideration for the assignment of the insurance policy; and, (3) the citation action was not statutorily permissible. We affirm.

Respondent first contends that the trial court erred in finding that Rysztogi had authority to enter into the agreement to change beneficiaries on the insurance policy. She posits two arguments in support thereof. She first argues that the estate failed to meet its burden to prove that Rysztogi had authority to enter into an agreement.

The law of principal and agent is generally applicable to the relation of attorney and client. (Feiertag v. Reichmann (1959), 21 Ill. App. 2d 215, 220, 157 N.E.2d 818.) Consequently, the client is bound, according to the ordinary rules of agency, by acts of his attorney within the scope of the attorney’s authority. (Doyle v. Shlensky (1983), 120 Ill. App. 3d 807, 820, 458 N.E.2d 1120; Bond v. Duntley Manufacturing Co. (1915), 195 Ill. App. 576 (abstract of opinion).) Respondent correctly argues that the burden to prove agency and the scope of authority is on the person seeking to charge the alleged principal. (Palos Bank & Trust Co. v. Kardaras (1982), 104 Ill. App. 3d 505, 511, 432 N.E.2d 1123.) We note that the applicable standard of proof of an agency relationship is by a preponderance of the evidence. Mitchell Buick & Oldsmobile Sales, Inc. v. National Dealer Services, Inc. (1985), 138 Ill. App. 3d 574, 582, 485 N.E.2d 1281; Swartzberg v. Dresner (1982), 107 Ill. App. 3d 318, 437 N.E.2d 860.

There is a presumption, in law, that an attorney, as an officer of the court, has the authority to act for a client whom he professes to represent. (In re Estate of Richmond (1953), 1 Ill. App. 2d 310, 317, 117 N.E.2d 583; 7A C.J.S. Attorney & Client §171 (1980).) The presumption in favor of the authority of the attorney is not conclusive, however, and may be rebutted. (7A C.J.S. Attorney & Client §171 (1980).) Further the scope of an attorney’s authority, as agent, may be shown by circumstances as well as by proof of express authority. Mulhern v. Public Auto Parks, Inc. (1938), 296 Ill. App. 238, 243, 16 N.E.2d 157.

Respondent maintains that the only evidence in this case concerning Rysztogi’s authority was her uncontradicted testimony that she never authorized him to enter into the agreement. We disagree. Respondent seems to totally discount as evidence the two letters from Rysztogi to O’Connell, as well as the testimony of O’Connell. Both letters were properly admitted into evidence, without objection. Further, O’Connell unequivocally testified concerning his receipt and the content of the letters, and that Sophie paid the premium.

Respondent failed to explain the circumstances by which, 11 months after the claimed termination of the attorney-client relationship, Rysztogi had in his possession the policy and the 1982 premium notice. It seems incredible to this court that after terminating the relationship, Rysztogi would have these documents, particularly the premium notice, in his possession and would seek, of his own volition and without any apparent benefit to him, to effect a change of beneficiaries. Respondent’s only evidence to rebut the presumption of his authority was her testimony, which the trial court found to be less than truthful.

Based on the evidence presented, the court found that Rysztogi had authority to -write the letters. We repeat the established rule that the trial court was in the best position to assess the credibility of the witnesses and to weigh the evidence. (Tomaso v. Plum Grove Bank (1985), 130 Ill. App. 3d 18, 23, 473 N.E.2d 588.) Here the trial court disbelieved respondent. We have no basis upon which to disturb its findings, and we therefore conclude that petitioner met its burden of proof.

Respondent next argues, relying on Knisley v. City of Jacksonville (1986), 147 Ill. App. 3d 116, 497 N.E.2d 883, and similar cases, that in order for an attorney to conclude a settlement or to compromise a claim, he must receive express consent or authorization from the principal. We take no issue with this well-established rule. However, the rule has no application in this case. At the time of this transaction neither a settlement nor the compromise of a claim was involved. Rather, it appears, based on the record, that this was simply a case where respondent chose to be relieved of the continuing obligation to pay the insurance premium and engaged the services of Rysztogi to achieve that end.

Respondent’s second contention is that there was no consideration for the assignment of the insurance proceeds. The estate responds that there was sufficient consideration, viz., respondent was relieved of the burden to pay the premium. Respondent counters that under the terms of the policy she was under no obligation to pay the premium; the policy would have remained in full force and effect through an automatic loan against the cash value for an additional two years before lapsing. Therefore, she argues, there would have been no reason for her to make the assignment.

A clause in the insurance policy concerning loans for premium payments provides in pertinent part:

“Automatic Premium Loans. Upon written request the Company will automatically pay and charge as a loan against this policy any premium not paid within the grace period unless the resulting indebtedness would exceed the loan value.”

A copy of the application for insurance, completed by the decedent, indicates that the automatic premium loan option was elected.

Assignment of an insurance policy must be supported by sufficient consideration. (22 Ill. L. & Prac. Insurance §222 (1956); see also Equitable Insurance Co. v. Cooper (1871), 60 Ill. 509, 511; Dr. Charles W. Smith III, Ltd. v. Connecticut General Life Insurance Co. (1984), 122 Ill. App. 3d 725, 462 N.E.2d 604.) Here, even though decedent elected the automatic premium loan provision, it is clear from the provision, as recited above, that such payments were not self-initiating. Respondent was required under the policy to actually request the loan before the payment would be paid. She presented no evidence to show that she had invoked this provision. The mere fact that respondent could have availed herself of the automatic payment provision does not necessarily lead to the conclusion that she did not assign the proceeds of the policy. We hold that the release of respondent from any obligation to pay the premium was a sufficient consideration to support the assignment of the insurance to the estate.

Before leaving this issue we address one additional point raised by petitioner in its brief. Petitioner stated that it objected to the admission of respondent’s testimony concerning her conversations with decedent. Petitioner maintains that the admission of this testimony was error because it violated the Dead Man’s Act (Ill. Rev. Stat. 1987, ch. 110, par. 8-201).

The object of a citation proceeding is to provide an expeditious process for the discovery of estate assets. (In re Estate of Shanahan v. Bowen (1978), 59 Ill. App. 3d 269, 273, 375 N.E.2d 508; In re Estate of Vercillo (1960), 27 Ill. App. 2d 151, 169 N.E.2d 364.) In such proceedings, all witnesses are witnesses of the court, and many rules of evidence are to be liberally applied. (In re Estate of Shanahan, 59 Ill. App. 3d at 273; In re Estate of McVicker (1963), 39 Ill. App. 2d 389, 188 N.E.2d 731.) Obviously, respondent here had an interest in the proceeding, and her testimony regarding the conversations she had with decedent was supportive of her position. Nevertheless, given the nature of the proceedings and the liberal application of restrictive evidentiary rules, we do not believe that the court abused its discretion in allowing respondent to testify to the conversations.

Respondent’s third and final contention is that the citation proceeding on behalf of Sophie Rosa, instead of on behalf of the estate, was statutorily impermissible. She argues that if the letter agreement is enforced the guardian, and not the estate, would wrongfully benefit.

Respondent’s argument is without merit. The petition for citation and discovery was filed on behalf of the estate, and the prayer for relief was that an order be entered ordering respondent to deliver to the estate the proceeds of the life insurance. Moreover, the trial court expressly stated that “the equitable ownership of the policy and the right to receive the proceeds of the life insurance, as beneficiary of the policy, was transferred to the estate of Frank Maslowski.” Accordingly, the court imposed a constructive trust on the life insurance proceeds and entered judgment for the estate.

For the foregoing reasons, we affirm the judgment of the circuit court.

Judgment affirmed.

CERDA, P.J., and WHITE, J., concur.

      Connell testified that Northern National Life Insurance Company and Manhattan National Life Insurance Company were actually one and the same company.


author: JUSTICE JIGANTI

text:
    FEDERAL KEMPER LIFE ASSURANCE COMPANY, Plaintiff-Appellant, v. OLD REPUBLIC SURETY COMPANY, Defendant-Appellee (Paul Eichwedel, Defendant).
    First District (4th Division)
    No. 1 — 89—2272
    Opinion filed September 27, 1990.

      Baker & McKenzie, of Chicago (Francis D. Morrissey, William Lynch Schaller, and L. Michael Tarpey, of counsel), for appellant.
    Richard S. Wisner, Scott O. Reed, and Patrick G. Donnelly, all of Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers, of counsel), for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Federal Kemper Life Assurance Company (Kemper), appeals from an order of the circuit court dismissing its complaint against the defendant, Old Republic Surety Company (Surety), for failure to state a cause of action. Essentially, Kemper alleged that it was defrauded by defendant Paul Eichwedel while Eichwedel was acting in his capacity as administrator of the estate of David Schultz. Kemper sought to recover from Surety on Eichwedel’s administrator’s bond pursuant to section 12 — 15 of the Probate Code (Code), which provides that “[sjuit on a bond executed under this Act may be prosecuted *** for the use of any person who may have been injured by reason of the neglect or improper conduct of the principal on the bond.” (Ill. Rev. Stat. 1989, ch. HOVz, par. 12 — 15.) On appeal, Kemper contends that it is encompassed within the term “any person” and that its complaint should therefore not have been dismissed.

Count V of Kemper’s amended complaint alleged that Kemper issued a $250,000 life insurance policy to Paul Eichwedel, insuring the life of Eichwedel’s brother-in-law David Schultz. The application for the policy listed the beneficiary as Paul Eichwedel and stated the relationship to the proposed insured as that of “brother-in-law as executor.” Schultz was subsequently murdered, and Eichwedel was appointed administrator of the estate. An investigation into the murder initially revealed that Eichwedel was not involved, and Kemper paid the insurance proceeds to Eichwedel in his capacity as administrator of Schultz’s estate. As administrator, Eichwedel had posted a surety bond in the amount of $375,000, issued by the defendant Surety. Eichwedel endorsed the Kemper checks and deposited the proceeds. The record is unclear as to whether or not the proceeds were taken into the estate.

Further investigation into Schultz’s murder led to Eichwedel’s arrest. Eichwedel eventually confessed to soliciting Schultz’s murder. Kemper alleged on information and belief that Eichwedel converted to his own use all of the insurance proceeds he received as administrator of the estate of David Schultz. Kemper further alleged that the life insurance policy, having been procured by fraud, was null and void from its inception and that Kemper was entitled to restitution of the proceeds. Finally, Kemper alleged that Eichwedel’s use of his office as administrator was central to the murder-for-insurance scheme and therefore implicated Surety’s bond.

The trial court granted Surety’s motion to dismiss count V of the amended complaint for failure to state a cause of action. Surety contended in its motion, and argues on appeal, that the administrator’s bond affords protection only to the creditors, heirs, and legatees of the estate and covers only assets which properly belong to the estate. Kemper argues that it is encompassed within the term “any person” who may file suit on the bond and that the bond covers all assets received by the administrator under color of his office.

With respect to Kemper’s first argument, the extent of a surety’s liability on an administrator’s bond in this State is controlled by statute. Section 12 — 15 of the Probate Code provides:

“Suit on a bond executed under this Act may be prosecuted against one or more of the obligors named in the bond in the name of the people of the State of Illinois for the use of any person who may have been injured by reason of the neglect or improper conduct of the principal on the bond.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. IIOV2, par. 12 — 15.)

Where the express language of a statute is clear and unambiguous, the terms are to be given their ordinary and popularly understood meaning. (1People v. Brown (1982), 92 Ill. 2d 248, 256, 442 N.E.2d 136.) Courts will not read into a statute exceptions, limitations and conditions not stated therein. People v. Goins (1988), 119 Ill. 2d 259, 265, 518 N.E.2d 1014.

Kemper’s complaint alleges that Eichwedel used his office as administrator of the estate of David Schultz to defraud Kemper of $250,000 in life insurance proceeds, which he then converted to his own use. Applying the clear and unambiguous language of section 12 — 15, we conclude that Kemper is encompassed within the term “any person” injured by reason of the improper conduct of the principal on the bond and may acco dingly prosecute a suit on the bond.

Surety maintains, however, that four Hlinois Appellate Court cases have determined that the bond of an administrator is given to protect only the creditors and beneficiaries of the estate and that recovery on the bond is not available to other parties injured by wrongful acts of the administrator. (People ex rel. First National Bank v. Illinois National Insurance Co. (1976), 44 Ill. App. 3d 269, 358 N.E.2d 99; American Insurance Group v. Waclawski (1966), 66 Ill. App. 2d 397, 214 N.E.2d 535; People ex rel. Dyer v. Sanculius (1936), 284 Ill. App. 463, 2 N.E.2d 343; Young v. People (1890), 35 Ill. App. 363.) Surety relies primarily upon Waclawski, where the court determined that an insurer whose settlement payment was wrongfully withheld by an administrator had no standing to maintain an action against the administrator’s surety. Although the pertinent wording of the statute in effect at that time allowing suits on an administrator’s bond was identical to the language in section 12 — 15, Waclawski made no mention of the statute. (Ill. Rev. Stat. 1975, ch. 3, par. 162.) Instead, it cited Sanculius for the proposition that the bond of an administrator is “given to protect the creditors of the estate and the heirs of the decedent against loss and for no other purpose.” (Sanculius, 284 Ill. App. at 472, 2 N.E.2d 347.) Sanculius states this proposition without any citation of authority whatsoever. The only case cited by Surety which refers to the statute providing for suit on an administrator’s bond is the Illinois National Insurance case. The court in that case cited the statute then in effect which, like section 12— 15, allowed recovery by any person injured by the improper conduct of the administrator (Ill. Rev. Stat. 1973, ch. 3, par. 162), then simply dismissed the statute without discussion and relied on Waclawski as controlling precedent. Given the lack of consideration of the controlling statutory language, we are not persuaded that these cases provide authority for limiting recovery on an administrator’s bond to creditors and heirs of the estate. As stated earlier, where the language of a statute is clear and unambiguous, the court will not read into it exceptions, limitations and conditions that are not stated. (People v. Goins (1988), 119 Ill. 2d 259, 265, 518 N.E.2d 1014.) We do not consider it proper to read in an exception based on the case law cited by Surety.

The second argument advanced by Kemper is that the surety on an administrator’s bond is liable for an administrator’s wrongdoing with respect to all assets, whether or not they properly belong to the estate, which are received under color of his office. A review of case law from other jurisdictions reveals a split of authority on this question. Some courts take the position that the surety on an administrator’s bond is obligated for the proper administrator of only such funds as constitute assets of the estate. (Greenwich Savings Bank v. United States Fidelity & Guaranty Co. (1976), 38 N.Y.2d 561, 345 N.E.2d 290, 381 N.Y.S.2d 820; Greenwall v. Ligon (Tex. Comm. App. 1929), 14 S.W.2d 829; Stapley v. Stapley (1926), 29 Ariz. 487, 242 P. 1005; People ex rel. Brown v. Parker (1913), 54 Colo. 604, 132 P. 56; Annot., 104 A.L.R. 180, 181 (1936).) Other courts, as argued by Kemper, have treated an administrator’s bond as covering the proper administrator of all funds or property coming into the hands of the administrator under color of his office or authority. Parker v. Potter (1933), 204 N.C. 407, 168 S.E. 490; Elizalde v. Murphy (1909), 11 Cal. App. 32, 103 P. 904; Hill v. Escort (1905), 38 Tex. Civ. App. 487, 86 S.W. 367; Clark v. Pence (1903), 111 Tenn. 20, 76 S.W. 885; Annot., 82 A.L.R.3d 869 (1978); 31 Am. Jur. 2d Executors and Administrators §338, at 180-81 (1989).

Surety argues that, for policy reasons, it should be required to face liability for any and all fraudulent schemes of the administrator, no matter how extensive and regardless of whether such schemes are related to the assets of the estate. Although it cites no case law to support this argument, Surety maintains that section 12 — 5(a) of the Code (Ill. Rev. Stat. 1989, ch. llO1^, par. 12 — 5(a)), which requires that a corporate surety provide a bond in the amount of V-lz times the value of the estate, establishes that the sole purpose of an administrator’s bond is to protect the proper assets of the estate from dissipation by the administrator.

The answer to this argument is that the extent of liability faced by a surety on an administrator’s bond is clearly set forth in section 12 — 15 of the Code, which permits suit on the bond by “any person” injured by the wrongful conduct of the administrator. There are no words in the statute which would lead a surety to believe that its liability on the bond extended only to protect the proper assets of the estate. Instead, statutory language would apprise the surety of the broad indemnification risk for “improper or wrongful conduct” of the administrator that it was undertaking. Where, as alleged here, the administrator uses the authority of his office, backed by the administrator’s bond, to induce others to deal with him, we believe that public policy is served by allowing persons injured by his misconduct to rely upon the protection afforded by the bond.

For the foregoing reasons, we believe that the allegations set forth in count V of Kemper’s complaint are sufficient to state a cause of action against Surety on the administrator’s bond. Accordingly, the order of the trial court dismissing count V is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

JOHNSON and LINN, JJ., concur.