author: JUSTICE SCARIANO JUSTICE DiVITO, PRESIDING JUSTICE BILANDIC,

text:
    DANIEL J. MORRISON, a Minor, by Barbara B. Morrison, his Mother and Best Friend, Plaintiff-Appellee and Cross-Appellant, v. CHICAGO BOARD OF EDUCATION, Defendant-Appellant and Cross-Appellee.
    First District (2nd Division)
    No. 1 — 88—2450
    Opinion filed September 12, 1989.

      DiVITO, J., specially concurring.
    BILANDIC, P.J., dissenting in part.

      Patricia J. Whitten, of Board of Education, of Chicago (Karen Gatsis Anderson and Edward J. Santiago, of counsel), for appellant.
    John J. Morrison, of Chicago, for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant appeals from an order of the circuit court granting in part plaintiffs motion for a preliminary injunction and ordering the Chicago Board of Education to assess the readiness of plaintiff to attend kindergarten pursuant to the provisions of the Illinois School Code (Ill. Rev. Stat. 1985, ch. 122, par. 1 — 1 et seq.). Plaintiff cross-appeals from the denial of his requests for preliminary and permanent injunctions seeking to compel defendant to enroll him, based on various asserted grounds.

Defendant raises the following issue on appeal: whether the trial court erred in ordering it to assess the readiness of the plaintiff to attend school in light of the fact that the language of the statute relating to assessments was clearly permissive. Plaintiff raises the following issues on cross-appeal: whether the trial court erred in denying his motion for preliminary and permanent injunctive relief because (a) defendant operates on a full year school basis and he was five years of age on September 4, 1988; (b) his statutory right to an equal education entitles him to enrollment; or (c) reading the statute and rules literally, his birth date actually qualified him for enrollment; and whether defendant violated his civil rights when it initially refused to enroll him, or alternatively, to assess his readiness to attend school.

Plaintiff, Daniel Morrison, is a minor child who attained the age of five on September 4, 1988, and who sought admission into the kindergarten program at Edgebrook School, operated by defendant, the Board of Education of the City of Chicago (the Board). At all times relevant to this cause, defendant’s actions were governed by the Illinois School Code (Ill. Rev. Stat. 1985, ch. 122, par. 10 — 20.12), and certain rules adopted by the Board pursuant thereto which establish the school year and school age. Section 10 — 20.12 (Ill. Rev. Stat. 1985, ch. 122, par. 10 — 20.12) provides as follows:

“School year — School age. To establish and keep in operation in each year during a school term of at least the minimum length required by Section 10 — 19, a sufficient number of free schools for the accommodation of all persons in the district over the age of 5 and under 21 years, and to secure for all such persons the right and opportunity to an equal education in such schools; provided that children who will attain the age of 5 years by November 1 after the first day of the 1986-1987 school term, October 1 after the first day of the 1987-1988 school term, and September 1 of the year of the 1988-1989 school term and each school term thereafter may attend school upon the commencement of such term. Based upon an assessment of a child’s readiness to attend school, a school district may permit a child to attend school prior to the dates contained in this Section. In any school district operating on a full year school basis children who will attain the age of 5 within 30 days after the commencement of a term may attend school upon the commencement of such term. The school district may, by resolution of its board, allow for a full year school plan.”

Section 6 — 2 of the Board Rules provides as follows:

“Admission to Elementary School. All children residing within the limits of the city who are not otherwise disqualified shall be entitled at the beginning of the school year to enter kindergarten or first grade if they will have reached the age of five or six years, respectively, by October 1 of the 1987-88 school year and by September 1 of the 1988-89 school year and each year thereafter. Based upon an assessment of a child’s readiness to attend school, a child may be permitted to attend school prior to the dates contained in this Rule. The principal of the elementary school in the sub-district in which they reside shall require the parent to present birth certificate, baptismal record, or other satisfactory evidence of the date and place of birth.”

Because plaintiff would not have attained the age of five by the statutorily mandated September 1 cutoff date, defendant refused to enroll him or to assess his readiness to attend school; and although defendant conducted readiness assessments for children who were going to be five years of age by November 1 of the 1986-87 school year and for children who were going to be five years of age by October 1 of the 1987-88 school year, it determined that it would not be doing so for the 1988-89 school year but would instead strictly adhere to the September 1 cutoff date.

Plaintiff subsequently filed a complaint for injunctive and other relief and a motion for a preliminary injunction requesting, inter alia, that the court order defendant to assess the readiness of plaintiff to attend school pursuant to section 10 — 20.12 (Ill. Rev. Stat. 1985, ch. 122, par. 10 — 20.12), and on August 10, 1988, the court granted plaintiff’s motion and ordered defendant to assess the readiness of plaintiff to attend school prior to the date prescribed by the School Code. On August 22, 1988, the court held a further hearing on the remaining counts of plaintiff’s complaint and denied plaintiff’s motion for injunctive relief as to those counts.

Defendant’s appeal and plaintiff’s cross-appeal followed. Defendant did in fact assess the readiness of plaintiff and enrolled him in kindergarten after the filing of this appeal.

I

Plaintiff first argues that this appeal is moot inasmuch as the Board voluntarily conceded plaintiff’s asserted right when it enrolled him in school after it had assessed his readiness, citing Panduit Corp. v. All States Plastic Manufacturing Co. (1980), 84 Ill. App. 3d 1144, 405 N.E.2d 1316:

“A case becomes moot when, pending the decision on appeal, events occur which render it impossible for the reviewing court to grant effectual relief to any party involved in the suit.” Panduit, 84 Ill. App. 3d at 1148.

We do not deem the case sub judice to be moot since Illinois recognizes a public interest exception to the mootness argument raised by defendant. Under this doctrine, a case may be decided on appeal despite its mootness if the issues raised are of substantial public interest. (Iowa-Illinois Gas & Electric Co. v. Illinois Commerce Comm’n (1980), 91 Ill. App. 3d 96, 414 N.E.2d 287.) The test for determining whether a sufficient degree of public interest exists requires that three elements be considered: (1) the public nature of the question presented; (2) the need for an authoritative determination for the future guidance of public officials; and (3) the likelihood of recurrence of the question. (City of Chicago v. Leviton (1985), 137 Ill. App. 3d 126, 129, 484 N.E.2d 438, citing People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 104 N.E.2d 769, cert. denied (1952), 344 U.S. 824, 97 L. Ed. 642, 73 S. Ct. 24.) Each criterion must be met to avoid dismissal of moot questions on appeal. City of Chicago v. Leviton, 137 Ill. App. 3d at 129.

The facts presented in this case easily come under the public interest exception: first, the issue raised is of a public nature in that it affects the rights of a large number of children to a clear, early and effective determination of their entitlement to enroll in our public schools; second, there is a desire and a need for guidance and clarification respecting the law regarding readiness assessments among lilinois public school districts; and third, there is more than a great likelihood that the issue will recur.

II

Defendant contends that the circuit court erred in ordering it to assess the readiness of plaintiff to attend school because the language of the statute relating to assessments is clearly permissive. It argues that it is well established that where the legislature has empowered a school board to perform certain functions, the courts will not interfere with the exercise of such powers nor substitute their discretion for that of the school board unless the board’s action is palpably arbitrary, unreasonable, or capricious. (Braught v. Board of Education (1985), 136 Ill. App. 3d 486, 483 N.E.2d 623; Tyska v. Board of Education (1983), 117 Ill. App. 3d 917, 453 N.E.2d 1344.) Defendant further maintains that there was nothing arbitrary, unreasonable or capricious about its decision to adhere strictly to the school age cutoff date imposed by the Illinois School Code and not to conduct readiness assessments, and it urges that since the court improperly substituted its judgment for that of defendant in ordering it to assess plaintiff’s readiness to attend school, the court’s order should be reversed.

We agree. Accordingly, we reverse the trial court’s granting of a preliminary injunction which ordered defendant to assess the readiness of plaintiff. Inasmuch as the facts are undisputed, we need be concerned only with the trial court’s application of the law to those facts, and issues of law are determined on appeal independently of the trial court’s judgment. Crum v. Gulf Oil Corp. (1979), 70 Ill. App. 3d 897, 388 N.E.2d 1008.

Plaintiff argues that defendant was required to make the readiness assessment, which would serve as the basis of its enrollment decision, pointing to the following provision of section 10 — 20.12 (Ill. Rev. Stat. 1985, ch. 122, par. 10 — 20.12):

“Based upon an assessment of a child’s readiness to attend school, a school district may permit a child to attend school prior to the dates contained in this Section.”

Plaintiff notes that defendant relies entirely upon the use of the word “may” in the above-quoted sentence, and claims that this reliance is misplaced. Plaintiff argues that the word “may” does not give defendant discretion in making readiness assessments; rather, plaintiff contends, it gives defendant discretion in deciding whether or not to enroll a child on the basis of the assessment. Plaintiff contends that it follows logically that defendant is obligated to make an assessment of the child upon the request of the parents, and that once the assessment has been made, defendant then has the discretion, based upon the assessment, to make its enrollment decision. Plaintiff further argues that defendant’s duty to assess is entirely consistent with the statutory scheme of section 10 — 20.12 and with defendant’s own understanding of the scheme as expressed in its published, written policies.

Prior to its amendment by Public Act 84 — 126, effective August 1, 1985, section 10 — 20.12 provided for a December 1 cutoff and did not contain the provision here at issue regarding readiness assessments. As noted above, the amendment gradually rolled back the cutoff date to November 1 for the 1986-87 school year, to October 1 for the 1987-88 school year, and September 1 for the 1988-89 school year, while providing for readiness assessments for children born after the cutoff dates. Accordingly, plaintiff maintains, the requirement of readiness assessments goes hand in hand with the rollback of cutoff dates; having inserted the new cutoff dates, the legislature also provided a way to keep the school doors open to younger children, like plaintiff, who were ready for school.

We hold the trial court’s order to be contrary to the legislative intent of the General Assembly as expressed in the clear language of the statute. Statutes must be construed so as to ascertain and give effect to the intention of the legislature as expressed in the statute, and absent some clear legislative intent to the contrary, terms are to be given their ordinary and commonly understood meaning. The language used in a statute is the primary source for determining legislative intent, and where that language is certain and unambiguous, the proper function of the courts is to enforce the statute as enacted. (General Motors Corp., Fisher Body Division v. Industrial Comm’n (1975), 62 Ill. 2d 106, 338 N.E.2d 561.) The statute as a whole must be evaluated with each provision being construed in light of the statute’s general purpose (I.F. v. Department of Children & Family Services (1986), 146 Ill. App. 3d 68, 496 N.E.2d 1162), and the court must choose a construction which gives the statute a clear, logical meaning, rather than a meaning that renders the statute illogical, useless or unreasonable. City of Rolling Meadows v. Kyle (1986), 145 Ill. App. 3d 168, 494 N.E.2d 766.

In the case at bar, section 10 — 20.12 of the School Code is clear and unambiguous. It provides the Board with discretion to permit a child to attend school prior to the cutoff date subject only to the condition that it do so based on a child’s assessed readiness to attend. It is to be noted that the legislature did not provide that school districts “shall” or “must” conduct readiness assessments, in which case conducting assessments would be an obligation. (People v. Emrich (1986), 113 Ill. 2d 343, 498 N.E.2d 1140.) And we note that nowhere does the statute require action on the part of the Board upon anyone’s request.

The general purpose of the statute is to impose an age limit on students eligible to attend public schools. The legislature, in the debates involving this provision, stated that the imposition of an earlier cutoff date was due to studies that have shown that the older a child is upon entering kindergarten the more successful the schooling experience. 84th Ill. Gen. Assem., Senate Proceedings, July 2, 1985, at 98.

In evaluating the statute in light of its general purpose, it is clear that the legislature intended to impose a strict age limitation on students eligible for kindergarten or first grade. Having imposed the September 1 cutoff, the legislature expressly granted school districts the discretion to permit children to attend prior to this date based on a structured assessment of their readiness to attend. This grant in no way mandated such testing.

The dissent in this case agrees “with the majority that the power to assess the readiness of a child to attend school if the child has not reached the age of five by September 1 is discretionary under the statute,” but it reasons, “[b]y the adoption of Rule 6 — 2, the board assumed the duty to assess a child’s readiness so that the child may be permitted to attend school prior to the dates contained in the rule.” (Emphasis added.) (188 Ill. App. 3d at 600-01.) However, the dissent neglects to explain the process by which a law it readily acknowledges to be permissive when enacted by the legislature becomes metamorphosed into a duty when it is redundantly adopted by a local board of education. Even plaintiff recognizes no such transformation, for, as noted above, his argument throughout this entire proceeding has been that “the Board is obligated to make an assessment of the child upon request of the parents,” and that “the use of the word ‘may’ does not give the Board discretion in making readiness assessments,” whether under the statute or the rule. “Rather,” he concludes, “it gives the Board discretion in deciding whether or not to enroll a child on the basis of the assessment.” (Emphasis added.) More important, nowhere does plaintiff make the argument that the mere adoption of a rule or policy in the precise words of a statute, whether the language of that law be discretionary or mandatory, charges the rule or policy by which the statute is adopted with a completely opposite effect. Nor does Tyska, the case cited in the dissent, come anywhere near the neighborhood of authority for the proposition advanced by the dissent.

Defendant’s decision was not arbitrary, unreasonable or capricious, but in harmony with the language and purpose of the School Code. The court’s order requiring it to assess the readiness of the plaintiff to attend school is contrary to law, and consequently reversed.

Ill

Plaintiff cross-appeals, asserting that the circuit court erred in denying plaintiff’s motion for preliminary and permanent injunctive relief because: (1) defendant operates on a full year school basis and the plaintiff was five years of age on September 4, 1988; (2) the plaintiff’s statutory right to an equal education entitles him to enrollment; or (3) reading the statute and rules literally, the plaintiff’s birth date actually qualified him for enrollment.

Plaintiff’s initial argument is that defendant operates some of its schools on a full year school basis; consequently, he was entitled to enrollment in kindergarten. Plaintiff cites section 10 — 19.1 (Ill. Rev. Stat. 1985, ch. 122, par. 10 — 19.1), which states:

“Full year school plan. Any school district may, by resolution of its board, operate one or more schools within the district on a full year school plan approved by the State Board of Education. Any board which operates under this Section shall devise a plan so that a student’s required attendance in school shall be for a minimum term of 180 days of actual attendance, including not more than 4 institute days, during a 12 month period, but shall not exceed 185 days. Under such plan, no teacher shall be required to teach more than 185 days. A calendar of 180 days may be established with the approval of the State Board of Education.” (Ill. Rev. Stat. 1985, ch. 122, par. 10 — 19.1.)

Plaintiff also notes the following portion of section 10 — 20.12 (Ill. Rev. Stat. 1985, ch. 122, par. 10 — 20.12):

“In any school district operating on a full year school basis children who will attain age 5 within 30 days after the commencement of a term may attend school upon the commencement of such term.” Ill. Rev. Stat. 1985, ch. 122, par. 10 — 20.12.

Plaintiff asserts that a full school year basis means nothing more than a plan whereby a student’s attendance in school is for a minimum of 180 days of actual attendance, not including four institute days, during a 12-month period, which does not exceed 185 days. Plaintiff argues that he is entitled to enrollment under sections 10— 19.1 and 10 — 20.12, as defendant operates under a 180- to 185-day per school year basis and meets the statutory definition of a full year school plan.

We disagree. While section 10 — 19.1 permits any school district to operate one or more schools on a full year school basis, there is nothing in the statute that supports plaintiff’s interpretation of what constitutes a full year school plan. All Illinois school districts, including the defendant district, operate on a school calendar term basis (as opposed to a calendar year basis) pursuant to section 10 — 19, which establishes the length of the school term for all school districts. This section provides in relevant part:

“Each school board shall annually prepare a calendar for the school term, specifying the opening and closing dates and providing a minimum term of at least 185 days to insure 176 days of actual pupil attendance *** Except as provided in Section 10 — 19.1, the board may not extend the school term beyond such closing date unless that extension of term is necessary to provide the minimum number of computable days.” Ill. Rev. Stat. 1985, ch. 122, par. 10-19.

It is clear from a reading of the foregoing section that a full year school basis is the exception to the general requirement that school districts prepare a specific calendar under which they will operate. Schools operating on a full year school basis differ significantly from those schools operating under section 10 — 19. Schools operating on a full year school basis operate four consecutive 45-day terms in order to insure 180 days of actual attendance. These terms are separated by 15-day recess periods. Defendant’s calendar identifies only the Cook County Juvenile Temporary Detention Center and its branches and the Cook County jail as schools which operate throughout the calendar year. But for these two exceptions, operated in cooperation with corrections authorities, neither of which exceptions is relevant to this case, it is clear that defendant does not operate on a full year school basis. Consequently, we affirm the lower court as to this issue.

Second, plaintiff argues that section 10 — 20.12 (Ill. Rev. Stat. 1985, ch. 122, par. 10 — 20.12) grants “the right and opportunity to an equal education” to all children “over the age of 5.” Plaintiff argues that defendant’s policy denies him any education at all until he is six years of age, and even then only to provide him with a part-time kindergarten education until he is seven years of age. Plaintiff argues that this result is particularly egregious in view of the fact that he was five years of age at the commencement of the 1988-89 school term.

Plaintiff cites Morgan v. Board of Education (1974), 22 Ill. App. 3d 241, 317 N.E.2d 393, as controlling. In Morgan, he asserts, the appellate court upheld a mandatory injunction ordering the school district to enroll plaintiff in first grade, holding that the school district’s refusal to so enroll her denied plaintiff her statutory right to an equal education and her right to equal protection under the laws. Plaintiff argues that the Illinois legislature has now expanded the right of equal education to five-year-olds, and that a straightforward application of Morgan to the case at bar dictates that his right to an equal education entitles him to enrollment.

Defendant has not violated plaintiff’s right to an equal education. Board Rule 6 — 2 provides for the equal education of children who will have attained the age of five and six, as the case may be, by the legislatively mandated September 1 cutoff date; nothing can change the fact that plaintiff could not be five by September 1 of the 1988-89 school year, nor would he be six by September 1 of the 1989-90 school year.

Plaintiff’s reliance on Morgan is unwarranted. Unlike the instant case, the plaintiff in Morgan was six years old and had already attended kindergarten. The issue in that case was whether the school district’s requirement that she pass a readiness assessment before going on to the first grade denied her an equal education in light of the fact that seven-year-olds who moved into the school district were automatically registered in the first grade without taking such an examination. The plaintiff in Morgan was being forced to repeat part-time kindergarten when other children in her category were being admitted as full-time first graders without an assessment. The issue in the case at bar is not whether part-time kindergarten is equal to full-time first grade, but rather whether plaintiff fit within the age classification articulated by the School Code. Plaintiff was not entitled to enroll in kindergarten.

Third, plaintiff argues that his birth date entitles him to enrollment under a literal reading of the statute and defendant’s rules. Plaintiff contends that a literal application of section 10 — 20.12 (Ill. Rev. Stat. 1985, ch. 122, par. 10 — 20.12) shows that “September 1” as used in the statute means September 1, 1989, not 1988. Plaintiff reaches this conclusion by noting that the Board’s school year did not begin until September 5, 1988. Since September 1, 1988, was prior to the start of the school term, September 1, 1988, was not “of the year of the 1988-1989 school term,” as it precedes the school term. Therefore, plaintiff argues, “September 1 of the year of the 1988-1989 school term” must mean September 1, 1989, and since he is now and was five years of age on September 1, 1989, plaintiff asserts that he was entitled to enrollment.

Plaintiff’s legal reasoning is pinched. Section 10 — 20.12 clearly states that “children who will attain the age of 5 years by *** September 1 of the year of the 1988-1989 school term *** may attend school upon the commencement of such term.” (Ill. Rev. Stat. 1985, ch. 122, par. 10 — 20.12.) Contrary to plaintiff’s contention, Board Rule 6 — 10 merely established the date for the commencement of classes for the 1988-89 school term. The 1988-89 school term extends from September 1988 through June 1989. September 1989 commences the 1989-90 school term. The legislature clearly granted defendant discretion in deciding when to commence classes, and the fact that defendant elected to begin the term after September 1 does not in any way affect the age limitation that the legislature clearly and unambiguously enacted.

Plaintiff’s final argument is that defendant violated the minor plaintiff’s civil rights when it initially refused to enroll him, or alternatively, to assess his readiness to attend school. Plaintiff avers that he has an absolute statutory right to enrollment for the 1988-89 school term. Alternatively, he argues that he had a statutory right to have defendant assess his readiness to attend school and to have it decide whether or not to enroll him “based upon” said assessment. Plaintiff asserts that there is no question but that defendant is a public governmental body, and there is no question but that the Board acted under color of law in denying him enrollment and refusing to make an assessment of his readiness to attend school. As a result of the Board’s actions, plaintiff claims that he had to file suit to protect his claimed statutory civil rights.

Plaintiff adds that if his theories have any validity, it necessarily follows that the Board, under color of law, deprived him of his statutory civil rights and is liable to him under 42 U.S.C. section 1983 (1982), and the trial court should have so found. Plaintiff fails to inform us as to where he finds this gloss. At any rate, since plaintiff recognizes that his section 1983 action lacks viability if the other theories he advances in this cause have no validity, and since it is quite evident that we have in fact held such theories to be without foundation, it follows that his purported civil rights action is equally infirm, thus foreclosing any further discussion of this last claim.

Reversed in part; affirmed in part.

JUSTICE DiVITO,

specially concurring:

I write in special concurrence to make the following points:

(1) Insofar as Daniel J. Morrison is concerned, the issues on this appeal are, as he contends, moot: he has been assessed for early readiness and has already been enrolled as a student.

(2) The issues raised here, however, are of substantial public interest and should be addressed. We have been informed, for example, through an appropriate motion filed in this case, of a lawsuit which has been filed in the circuit court of Cook County which raises issues similar to those in this case.

(3) Considering the substantial public interest in the issue of readiness testing for those children who have not attained the age of five years by September 1, the following points should be made succinctly. Both of my colleagues agree that the language of the enabling legislation confers a discretionary power upon school districts to test children for early readiness. They disagree as to the effect of the Chicago Board of Education’s adoption of Rule 6 — 2, which contains substantially the same language as the statute. It seems to me that the resolution of their disagreement is wholly dependent upon the Board’s implementation of its adopted rule. If the Board denies readiness assessments to all children, such denial, it seems to me, represents a proper exercise of its discretionary ability under both the statute and the rule. If, however, the Board makes readiness assessments available to some children but not to all, a denial would represent an abuse of its discretionary ability.

(4) As the dissent notes, the mere amendment of Rule 6 — 2 by the Board, by not addressing the issue of early readiness assessments or by specifically discontinuing them, would put these “issues of substantial public interest” to rest.

PRESIDING JUSTICE BILANDIC,

dissenting in part:

The fixing of a school age is a quasi-legislative function delegated to the Board of Education by the legislature. The Illinois School Code requires a school board to operate schools for all persons in the district over the age of five and under the age of 21, “to secure for all such persons the right and opportunity to an equal education in such schools; provided that children who will attain the age of 5 years by *** September 1 of the year 1988-1989 school term and each school term thereafter may attend school upon the commencement of such term. Based upon an assessment of a child’s readiness to attend school, a school district may permit a child to attend school prior to the dates contained in this Section.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 122, par. 10-20.12.

I agree with the majority that the power to assess the readiness of a child to attend school if the child has not reached the age of five by September 1 is discretionary under the statute. “The legislature has placed the administration of schools within the domain of the school board and courts will not interfere with the exercise of the board’s powers unless such exercise is shown to be arbitrary or capricious. [Citations.] Where the legislature has empowered a school board to perform certain functions, the courts will not interfere with the exercise of such powers or substitute their discretion for that of the school board unless the board’s action is palpably arbitrary, unreasonable or capricious. [Citations.]” Tyska v. Board of Education of Township High School, District 214 (1983), 117 Ill. App. 3d 917, 922, 453 N.E.2d 1344.

In the exercise of power granted to it by the legislature, the Board adopted Rule 6 — 2, which provides in pertinent part:

“All children residing within the limits of the city who are not otherwise disqualified shall be entitled at the beginning of the school year to enter kindergarten *** if they will have reached the age of five *** years *** by September 1 of the 1988-89 school year and each year thereafter. Based upon an assessment of a child’s readiness to attend school, a child may be permitted to attend school prior to the dates contained in this Rule.”

The enabling legislation did not require the Board to assess readiness. “Rules adopted by the school board are to be filed for public inspection in the administrative office of the district. (Ill. Rev. Stat. 1981, ch. 122, par. 10 — 20.5.) A school board is bound to act in accordance with the rules and regulations it has made pursuant to statutory authority.” Tyska, 117 Ill. App. 3d at 923.

By the adoption of Rule 6 — 2, the Board assumed the duty to assess a child’s readiness so that the child may be permitted to attend school prior to the dates contained in the rule. If the Board decides that the policy is no longer viable, it is free to amend its rule and discontinue assessments of early readiness.

In my opinion, the majority went awry when it correctly interpreted the enabling legislation as granting discretionary power to the Board, and then ignored the rule by which the Board exercised its discretion.

I, therefore, respectfully dissent to that portion of the majority opinion.


source: Caselaw Access Project

author: PRESIDING JUSTICE FREEMAN

license: Public Domain

text:
    CHAMPA SOUMPHOLPHAKDY et al., Plaintiffs-Appellants, v. PRUDENTIAL PROPERTY & CASUALTY INSURANCE, Defendant-Appellee (State Farm Mutual Automobile Insurance Company et al., Defendants).
    First District (3rd Division)
    No. 1 — 89—0009
    Opinion filed September 13, 1989.
    Nagle & Gallagher, of Chicago (James P. Gallagher and James P. Nagle, of counsel), for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith and Carol Proctor, of counsel), for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiffs, Champa Soumpholphakdy, Kesone Soumpholphakdy, and Khaikeo Soumpholphakdy, appeal from an order of the trial court which granted a motion for summary judgment in favor of defendant, Prudential Property and Casualty Insurance (Prudential), and denied plaintiffs’ cross-motion for summary judgment in a declaratory judgment action regarding an automobile liability insurance policy. For the reasons stated below, we affirm the judgment of the Circuit Court.

Plaintiffs’ complaint for declaratory judgment sought a determination of the rights and liabilities of the parties under a policy issued by Prudential to codefendant Bennie Marsala (Marsala). Specifically, plaintiffs sought a declaration that Prudential is obligated to provide coverage for or otherwise indemnify Marsala for any judgments entered against him in an underlying personal injury suit. Plaintiffs allege in the underlying action that they were injured when riding as passengers in an automobile which collided with a truck being operated by Marsala. The truck was owned by Marsala’s employer, defendant Donald Christensen, d/b/a Donald Christensen & Associates (Christensen).

Prudential filed a counterclaim for declaratory judgment, citing exclusionary language in the policy, that there is no coverage for non-owned cars regularly used by the insured. Prudential alleges that Marsala was operating a nonowned vehicle which he regularly used and therefore the exclusion applied. Subsequently, Prudential filed a motion for summary judgment, attaching the depositions of Marsala and Christensen. Plaintiffs filed a cross-motion for summary judgment. After a hearing on the cross-motions, the trial court found that the truck was regularly used by Marsala and therefore its use was excluded from coverage under the Prudential policy. The trial court accordingly granted defendant Prudential’s motion for summary judgment and denied plaintiffs’ motion for summary judgment.

On appeal plaintiffs contend that the trial court improperly failed to apply the distinction between business and personal use of vehicles, as set forth in Illinois case law and mandated by public policy. Defendant Prudential responds that the courts properly look to the frequency of the prior use of the nonowned vehicle in determining whether a “regular use” provision excludes coverage.

The parties cite a number of Illinois cases, in addition to several cases from foreign jurisdictions, which involve a “regular use” provision in an automobile liability policy. We will review the Illinois case law briefly. We decline to follow the case law from foreign jurisdictions, since it does not have binding authority on this court. In Schoenknecht v. Prairie State Farmers Insurance Association (1960), 27 Ill. App. 2d 83, 169 N.E.2d 148, the plaintiff was involved in an accident while operating an automobile provided to him by his employer for use during working hours of 8 a.m. to 4:30 p.m. The plaintiff was directed to return the car to the shop of his employer at the close of the work day. On the date of the accident, at the close of the work day, instead of returning the car to the shop, the plaintiff went to visit friends and was involved in the accident at 11 p.m. The appellate court affirmed the trial court’s grant of summary judgment in favor of the plaintiff. (Schoenknecht, 27 Ill. App. 2d at 98.) The court stated that the car was furnished to the plaintiff solely during working hours and upon the business of his employer. (Schoenknecht, 27 Ill. App. 2d at 97.) The court noted that the only times the plaintiff had used the car previously was during working hours and to further the business of his employer. The plaintiff never had used the car to go anywhere else. (Schoenknecht, 27 Ill. App. 2d at 97.) Accordingly, the court concluded that the trial court properly found that the “regular use” exclusion did not apply to deny coverage. Schoenknecht, 27 Ill. App. 2d at 98.

In State Farm Mutual Automobile Insurance Co. v. Differding (1977), 69 Ill. 2d 103, 370 N.E.2d 543, the defendant was a student at Northern Illinois University whose permanent residence was with her parents in Park Forest. During the summer she sublet an apartment from a professor, who asked her to maintain his automobile for the summer and limited her use of the automobile to the DeKalb area. The defendant was involved in an accident while driving the car to her home in Park Forest. The supreme court stated that whether the automobile was “furnished or available *** for [the] frequent or regular use” of the defendant under the policy was a question of fact. (Differding, 69 Ill. 2d at 107.) The court held that the trial court’s finding of noncoverage was supported by the evidence. (Differding, 69 Ill. 2d at 107.) The supreme court noted the trial court’s findings that the date of the accident was the fourth time the defendant had driven the car to Park Forest. (Differding, 69 Ill. 2d at 106.) Further, the supreme court agreed with the trial court that the automobile was furnished or available for the defendant’s regular use, and in fact was used regularly and frequently by the defendant. Differding, 69 Ill. 2d at 106.

In Economy Fire & Casualty Co. v. Gorman (1980), 84 Ill. App. 3d 1127, 406 N.E.2d 169, the defendant was involved in a collision while operating an automobile owned by his employer and furnished to him for making deliveries. The defendant was instructed to return the car to the store when finished making deliveries, and if no one was at the store, to put the keys in the ashtray and lock the car. The car never was given to him for his personal use and he never was given personal permission to drive the car after working hours, 5 to 8 p.m. The defendant stated, however, that many times he left at 8 p.m. to make deliveries and did not return until 8:30 or 8:45 p.m. On the date of the accident, the defendant left the store at 8:30 p.m. with seven or eight deliveries to make. He was uncertain of the location of the street for his last delivery, so he stopped at a friend’s house, at 9 to 9:30 p.m. One friend rode with him in the car to show him where the street was. They returned to the home and remained with some other people until around 10:45 p.m. The defendant drove one person home and had another friend in the car when the accident occurred around 11 p.m.

In determining whether the car was furnished for the defendant’s “regular use,” the court looked to prior case law. The court concluded that State Farm Mutual Automobile Insurance Co. v. Differding (1977), 69 Ill. 2d 103, 370 N.E.2d 543, effectively overruled the earlier case of Schoenknecht v. Prairie State Farmers Insurance Association (1960), 27 Ill. App. 2d 83, 169 N.E.2d 148. The court stated that Differding, unlike Schoenknecht, determined whether a vehicle is furnished for regular use irrespective of whether it is actually being used at the time of an accident in a way for which it was not provided. Based on the analysis in Differding, the court found in the case before it that the defendant’s use of the automobile was “regular” as a matter of law. Gorman, 84 Ill. App. 3d at 1131.

In State Farm Mutual Automobile Insurance Co. v. Bundy (1988), 165 Ill. App. 3d 260, 519 N.E.2d 109, the court affirmed the trial court’s granting of a motion for summary judgment in favor of the plaintiff insurer, on the basis that a pickup truck owned by a codefendant company and driven by the defendant Bundy was excluded from coverage since it was provided for Bundy’s regular or frequent use. Bundy had obtained the truck from the residence of a co-worker in order to transport something for one of his family members. Prior to the accident he had used the truck daily during the course of his employment. In addition, he had used the truck for personal reasons up to two or three times a month. He always had asked for the requisite permission for personal use. On the day of the accident, he was unable to reach a supervisor to request permission for personal use. The appellate court found, as a matter of law, that the car was “furnished or available for the regular or frequent use of” Bundy. Bundy, 165 Ill. App. 3d at 265-66.

Finally, in Auto-Owners Insurance Co. v. Gray (1989), 180 Ill. App. 3d 761, 536 N.E.2d 444, the defendant was involved in an accident while operating a pickup truck owned by his employer. The accident occurred in the evening while the defendant was returning from a golf outing. The truck had been in the defendant’s exclusive possession for over two years prior to the accident. The defendant kept the truck at his residence 24 hours a day, year-round. The only two sets of keys to the truck were in the employer’s office and in the defendant’s possession. The defendant had used the truck on prior occasions for personal matters without being reprimanded. His employer, however, had an unwritten rule that company trucks were to be used for company business only. The appellate court held that the facts of record indicated that the vehicle was furnished for the defendant’s regular use and therefore coverage was excluded. Gray, 180 Ill. App. 3d at 765.

Notably, the court in Gray looked to Schoenknecht, Differding, Gorman, and Bundy and found the analysis and results to be consistent with one another. The court therefore disagreed with the prior statement by the court in Gorman that Differding had implicitly overruled Schoenknecht. The court in Gray stated that in each of the four cited cases, the court looked to the circumstances surrounding the employee’s use of the company vehicle. (Gray, 180 Ill. App. 3d at 765.) The court stated that the result of each case depends upon the particular facts presented. Gray, 180 Ill. App. 3d at 763.

In the instant case, Marsala’s employer, Donald Christensen, testified in his deposition that his company did general contracting work in building restoration. The company owned at least four to six vehicles at the time of Marsala’s accident. The trucks were used to deliver material. Christensen estimated that Marsala kept a company truck at his home overnight 50% of the time he used the vehicle. Christensen had a set of keys to the truck and often kept charge of them. Christensen and Marsala occasionally would get an emergency service call at 1 or 2 a.m., and whichever of the two of them received the call would go to the jobsite to service the problem. Christensen did not favor employees using company vehicles for personal matters, but granted permission for personal use depending on the employee and the circumstances. Christensen did not know that Marsala had wanted to use the truck for or at a party.

Marsala testified in his deposition that he was employed as a superintendent by Christensen. Marsala used the company vehicle about 75% of the time he went to jobsites. He used his own vehicle the rest of the time. His job required him to assign the company’s several trucks to employees who needed to go to jobsites on a given day. The keys were kept in the secretary’s desk in the office, and Marsala, the other superintendent, and the secretary had access to them. On some evenings after work, Marsala would take home the truck and park it in front of his home overnight. If the job the next day required a larger truck, Marsala would take his own truck on the job, return home, and then drive the company truck back to the office. Marsala would inform Christensen if he was going to keep a truck overnight.

Marsala stated he “very seldom” used the truck for personal use, and that during the six months prior to the accident, he had not used it for personal matters. Each time he used it for personal matters, he would obtain Christensen’s permission. On the day before the accident, a Saturday, Marsala took the truck home so that he could transport tables and chairs for a neighbor who was hosting a party on Sunday. Marsala obtained Christensen’s permission to use the truck for personal matters, but did not specify to Christensen how he would use the truck. Marsala moved the furniture on Sunday morning. The accident occurred late Sunday night or early Monday morning when Marsala was driving a guest home from the party.

Summary judgment is proper where “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); Berry v. Gibson (1986), 141 Ill. App. 3d 876, 491 N.E.2d 33.) Summary judgment may be appropriate under certain circumstances, but it must be granted with caution so that no party’s right to trial is infringed where there are conflicting facts and inferences or when reasonable persons might reach different results. (Kramer v. Weedhopper of Utah, Inc. (1986), 141 Ill. App. 3d 217, 220, 490 N.E.2d 104.) The respondent need not prove his case at the summary judgment stage, but he may be required to present some evidence to show the existence of a triable and genuine issue of fact. (Kramer, 141 Ill. App. 3d at 221.) Where the evidence raises no issue of material fact, summary judgment is properly granted. Berry, 141 Ill. App. 3d at 879.

In the instant case, plaintiffs do not raise any issues of material fact. Rather, they assert that the evidence of record shows, as a matter of law, that Marsala did not use the company truck regularly for personal matters and, therefore, the policy extends coverage and plaintiffs were entitled to summary judgment in their favor. We disagree.

As the supreme court stated in State Farm Mutual Automobile Insurance Co. v. Differding (1977), 69 Ill. 2d 103, 370 N.E.2d 543, the phrase “regularly or frequently used” does not have an absolute definition and each case turns upon its own facts and circumstances. (Dif ferding, 69 Ill. 2d at 107.) The record in the instant case indicates that Marsala regularly used the company truck. Marsala often kept the truck overnight at his home. Further, he had used the truck, although infrequently, for personal matters. We find that the record supports the trial court’s conclusion that the truck was regularly used by Marsala. We believe that this result is consistent with the case law cited. Accordingly, the policy exclusion, with regard to nonowned vehicles, that “there is no coverage for cars regularly used by” the insured, applied to exclude the truck used by Marsala. Under the facts of this case, the trial court properly granted summary judgment in favor of Prudential and against plaintiffs.

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

Judgment affirmed.

WHITE and CERDA, JJ., concur.


author: JUSTICE McMORROW

text:
    SAFEWAY INSURANCE COMPANY, Plaintiff-Appellant, v. ERRETT O. GRAHAM, Defendant-Appellee (Robert Parrillo et al., Respondents-Appellants).
    First District (4th Division)
    No. 1 — 87—2806
    Opinion filed September 14, 1989.

      Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Alvin Becker and Howard London, of counsel), for appellants.
    No brief filed for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff, Safeway Insurance Company (Safeway), and its counsel, Robert Parrillo and the law firm of Parrillo, Weiss & Moss (Parrillo), appeal from the order of the trial court requiring each of them to pay one-half of a $2,000 fine imposed by the trial court as a sanction under section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611).

We limit our recitation of the facts to those necessary for an understanding of the issue presented. In November 1981, Errett O. Graham (Graham) was appointed by the circuit court to act as arbitrator in an action against Safeway. The matter was settled without arbitration in February 1982 and formally dismissed by agreement of the parties on December 8, 1982. In May 1982, the' trial court granted Graham leave to file a petition for fees for services he performed in preparation for the arbitration. Safeway objected to Graham’s motion, asserting that since Graham was neither a party to nor an attorney in the suit against Safeway, he lacked standing to bring and the court lacked jurisdiction to entertain his motion for arbitrator’s fees. The matter was continued to December 7, 1982, on which date Safeway renewed its objections on the grounds of standing and jurisdiction and further stated that Graham had failed to serve the petition for fees in accordance with the rules relative to service of process. Following a hearing, the court ordered Safeway to pay Graham a fee of $450 and granted Graham leave to file an application for additional fees to be paid by Safeway for “dilatory and obstructionist tactics making it necessary for the petition for fees to be filed by the Arbitrator.”

On May 11, 1983, the trial court entered a rule to show cause why William Parrillo, the president of Safeway and one of the partners of the law firm, should not be held in contempt for failing to pay Graham’s fees as ordered. The trial court continued the hearing on the rule to show cause but allowed Graham leave to file a petition for additional fees in connection with the enforcement proceedings. Prior to the next designated court date, Safeway paid Graham the sum of $487, and on November 10, 1983, the matter was dismissed. Safeway thereafter filed a notice of appeal but did not pursue its prosecution of that appeal. On July 6, 1984, however, Safeway filed a complaint against Graham alleging abuse of process. The trial court granted Graham’s motions to dismiss the original complaint as well as Safeway’s first and second amended complaints. Safeway’s third-amended complaint was filed on April 22, 1986, and Graham’s motion to strike and dismiss it was denied by Judge McCormick on May 21, 1986. On June 27, 1986, Graham filed a motion for summary judgment, and on October 8, 1986, Safeway filed its response thereto. On April 6, 1987, the parties appeared before Judge Burr for a hearing on the motion for summary judgment.

At that hearing, the trial judge stated that Safeway’s complaint was frivolous in that it wholly failed to state a cause of action and indicated an absolute and total lack of investigation of the facts and law prior to institution of the suit, and that Safeway’s conduct in filing the action was “reprehensible” and “vindictive” and constituted “extortion and blackmail.” Stating that section 2 — 611 mandates sanctions for court filings made without a reasonable inquiry as to the facts and law, the trial court announced its intention to grant Graham’s motion for summary judgment and to also impose a sanction against Safeway under section 2 — 611 unless Safeway produced authority to support the propriety of its filing of the cause of action within 28 days. The court also directed Graham to prepare a petition for attorney fees and costs and Safeway to file a response thereto.

On May 5, 1987, Safeway filed a memorandum in opposition to the granting of summary judgment in Graham’s favor, arguing, inter alia, that the trial court’s “finding *** that the lawsuit does not state a cause of action is directly contrary to Judge McCormick’s ruling of May 21, 1986,” denying Graham’s motion to strike and dismiss. Shortly thereafter, Safeway also filed a petition that Judge Burr recuse himself from the matter on the ground that his prejudice against Safeway was evidenced by his comments at the hearing of April 6, 1987. The recusal motion was denied by Judge Burr on May 14,1987.

On August 10, 1987, Judge Burr entered a “Memorandum Decision and Opinion” (1) granting Graham’s motion for summary judgment; (2) ordering Safeway to pay Graham’s costs and reasonable attorney fees; and (3) imposing a $2,000 fine to be paid to the circuit court by Safeway and Barrillo equally. On August 21, Safeway filed a motion to dismiss the action on the basis of a stipulation that all matters in the controversy had been compromised and settled. On August 26, Judge Lichtenstein entered an order granting Safeway’s motion and dismissing the action by agreement of the parties. Later that day, however, Judge Lichtenstein sua sponte vacated that order and transferred the motion to Judge Burr.

On August 27, Safeway presented its second petition for the recusal of Judge Burr, alleging as additional grounds that ex parte communications had occurred between the judge and Graham’s counsel. Following a hearing, the trial court denied the recusal petition; denied Safeway’s motion for leave to file a special and limited appearance; approved the agreement of the parties for the payment by Safeway to Graham of $2,000 for costs and fees; upheld its order imposing the fine of $2,000 against Safeway and Barrillo; and required proof of payment of one-half of that fine by Safeway and Barrillo, respectively, on or before September 10, 1987. This appeal followed.

Opinion

Initially, we note that the notice of appeal filed on September 8, 1987, states that Safeway and Barrillo appeal from the May 14, 1987, order denying Safeway’s petition that Judge Burr recuse himself; the memorandum order and decision of August 10, 1987; the order of August 12, 1987, granting defendant’s motion for summary judgment and assessing the $2,000 fine; the order of August 26, 1987, vacating the earlier order of that same date dismissing the action by agreement of the parties; and the order of August 27, 1987, in its entirety. In their appellate brief, however, the only issue presented for our review is the propriety of the imposition of the civil fine against them.

Brior to its recent amendment, effective November 25, 1986, section 2 — 611 provided:

“Untrue Statement. Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee ***.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611.)

Section 2 — 611 as amended now provides, in relevant part:

“Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name ***. *** The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. *** If a pleading, motion, or other paper is signed in violation of this Section, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party *** the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.

Safeway and Parrillo contend that the trial court erred in applying section 2 — 611 retroactively. They argue that this action is governed by the preamended version of section 2 — 611, which did not authorize either (1) the imposition of any sanction against a party’s attorney or (2) the imposition of a fine against a party.

In its memorandum decision and opinion, the trial court determined that the amended version of section 2 — 611 “mandates sanctions for frivolous court filings such as in the present case.” The trial court noted that the purpose of section 2 — 611 was to discourage and prevent harassment by the bringing of vexatious actions based upon false statements or without any legal foundation by penalizing those who act unreasonably in making allegations later shown to be untrue. The court stated that “[although the pleadings in the instant action were filed before adoption of the new section 2 — 611, the newly-amended section is held herewith to be applicable to the instant cause.”

In ruling that amended section 2 — 611 may be retroactively applied, the trial court relied upon People v. Frieder (1980), 90 Ill. App. 3d 116, 413 N.E.2d 432. In Frieder, the appellate court held that the 1976 amendment to the predecessor statute of section 2 — 611 (Ill. Rev. Stat. 1975, ch. 110, par. 41), which eliminated the “bad faith” element from the petitioner’s burden of proof, was procedural only and that the amended section was therefore applicable to motions for sanctions filed after its effective date notwithstanding that the pleadings at issue were filed prior to the amendment.

Subsequent to the trial court’s order imposing sanctions in the case at bar, appellate courts have had the opportunity to review cases involving the revised version of section 2 — 611. (See, e.g., Ignarski v. Heublein (1988), 171 Ill. App. 3d 830, 525 N.E.2d 995; Mucklow v. John Marshall Law School (1988), 176 Ill. App. 3d 886, 531 N.E.2d 941; Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 532 N.E.2d 595.) These decisions have recognized that amended section 2 — 611 is much more extensive in scope than the prior version in that it now extends to every paper filed by a party, is applicable to attorneys as well as litigants, and does not expressly limit “appropriate sanctions” to “reasonable expenses actually incurred by the other party” and attorney fees as did its predecessor. Following a comprehensive comparative review of the former and current versions of section 2 — 611, the court in Ignarski held that, in contrast to the 1976 amendment considered in Frieder, the 1986 amendment of section 2 — 611 is not merely a change in existing procedures but, rather, creates obligations and liabilities which heretofore did not exist. The Ignarski court therefore held that section 2 — 611 may not be applied retroactively. See also Mucklow v. John Marshall Law School (1988), 176 Ill. App. 3d 886.

As the trial court acknowledged in the case before us, all of the pleadings, motions and papers, except those which the court directed Safeway and Parrillo to file relative to the court’s decision to impose sanctions, were filed prior to the effective date of amended section 2 — 611. Thus, the court’s retroactive application of amended section 2 — 611 in its imposition of a sanction against Safeway’s counsel, Parrillo, was error.

We also believe that the trial court lacked authority to impose a fine against Safeway as a sanction in addition to the assessment of Graham’s costs and fees. Although we have found no Illinois case which addresses the question, Federal authority interpreting Rule 11 of the Federal Rules of Civil Procedure, which is virtually identical to amended section 2 — 611, indicates that a fine might, in certain circumstances, be an “appropriate sanction” under the amended version of section 2 — 611. (See Donaldson v. Clark (11th Cir. 1987), 819 F.2d 1551.) However, because all the pleadings in this case were filed prior to the amendment of section 2 — 611, and since former section 2 — 611 made no provision for the imposition of a fine, but subjected a litigant to only the “payment of reasonable expenses, actually incurred by the other party *** together with a reasonable attorney’s fee,” we believe that the invocation of amended section 2 — 611 to impose an additional penalty which was not previously authorized, i.e., a fine, constituted improper retroactive application of the statute.

For the reasons stated, that portion of the trial court’s order imposing a monetary fine against Safeway and Barrillo as a sanction under section 2 — 611 is reversed.

Reversed.

JIGANTI, B.J., and JOHNSON, J., concur.

       Graham has not filed a brief in this appeal. However, where, as here, the record is simple and the issue is such that it can be decided without the aid of an appellee’s brief, the reviewing court should decide the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.


author: JUSTICE JOHNSON

text:
    EDWARD GOEBIG, SR., et al., as Special Adm’rs of the Estate of Edward Goebig, Jr., Deceased, and Indiv., Plaintiffs-Appellants, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (4th Division)
    No. 1 — 87—3125
    Opinion filed September 14, 1989.

      James P. Leahy, of Chicago, for appellants.
    Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Jeffrey P. Smith, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiffs, Edward Goebig, Sr., and Sharon Goebig, special administrators of the estate of Edward Goebig, Jr., appeal from the judgment and order of the circuit court of Cook County that granted the motion to dismiss of defendant, the City of Chicago, pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (hereinafter the Act) (Ill. Rev. Stat. 1985, ch. 85, par. 1 — 101 et seq.). The sole issue for our review is whether the City owed a duty to plaintiffs’ decedent.

We affirm.

The City provided school crossing guard service at 67th Street and Kenneth Avenue. The decedent, a minor, normally crossed at this intersection on his way to school. However, on February 28, 1985, there was no crossing guard at the location; therefore, he crossed at 67th and Keeler, where a traffic light was situated. While crossing the street he was fatally struck by a vehicle.

Plaintiffs filed a personal injury action against the driver of the vehicle, the Catholic Bishop of Chicago, and the City. The actions against the former two were voluntarily dismissed by plaintiffs. The City moved to dismiss the complaint under section 2 — 619 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619.) Based on the Act, the court granted the motion to dismiss. This appeal followed.

Plaintiffs’ sole contention is that the City owed a duty to the decedent. Plaintiffs argue that the City voluntarily provided crossing guard service and in undertaking this duty it must perform it in a reasonably safe manner. In this instance, plaintiffs claim the City is liable because it failed to provide crossing guard service in a reasonably safe manner. Plaintiffs further argue that section 4 — 102 of the Act (Ill. Rev. Stat. 1985, ch. 85, par. 4 — 102) only applies to the police department and crossing guards are not a part of the police department.

Initially we note that we concur with the trial court’s finding . that the crossing guard service is a part of police service; therefore, section 4 — 102 is applicable.

“A municipality is not an insurer of the safety of pedestrians against all accidents occurring on its property [citation] ***.” (Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 830.) The liability of a municipality is governed by the Act. Specifically, a municipality is not liable for failing to provide police protection. (Barth v. Chicago Board of Education (1986), 141 Ill. App. 3d 266, 277.) With reference to police protection, the Act provides: The duty of the police is to protect the community at large and not the specific individual. (Barth, 141 Ill. App. 3d at 277.) The public policy considerations embodied in this rule “reflecto the judgment that to hold otherwise would impose an impossible burden on law enforcement agencies and officers, requiring them to carry out a myriad of difficult and frequently conflicting duties in guaranteeing the safety of every individual citizen.” Santy v. Bresee (1984), 129 Ill. App. 3d 658, 662.

“Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes and failure to apprehend criminals.” (Ill. Rev. Stat. 1985, ch. 85, par. 4 — 102.)

However, there is a “special duty” exception to the general rule. In order for a municipality to owe a special duty to an individual, the following requirements must be satisfied: “(1) the municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there must be allegations of specific acts or omissions on the part of the municipality; (3) the specific acts or omissions must be either affirmative or willful in nature; and (4) the injury must occur while the plaintiff is under the direct and immediate control of employees or agents of the municipality. [Citations.]” Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172, 176.

There is some evidence that plaintiffs met the second requirement of the “special duty” exception. However, the other three requirements were not satisfied. As to the City’s awareness of the risk or danger at 67th Street and Kenneth, plaintiffs provide no evidence that the City was uniquely aware of any danger to the decedent in particular, as distinguished from the community at large. Furthermore, the record does not provide any evidence to support plaintiffs’ allegation that the City’s action was willful or affirmative in nature. The mere fact that a crossing guard was not consistently at the location in question is not indicative of willful or affirmative action.

Finally, the allegations made by plaintiffs, as well as the evidence ■ adduced at trial, fail to establish that the decedent was under the direct and immediate control of the City or any of its employees at the time the injury occurred. Thus, outside of alleging that the City failed to provide crossing guard service, plaintiffs have failed to meet the requirements of the special duty exception.

Plaintiffs’ final argument is that the Act is not applicable here because the City “voluntarily assumed” a duty to protect the intersection in question. Plaintiffs insist that once the City undertook to protect the particular intersection it owed the decedent a duty to use reasonable care in providing for his safety.

Plaintiffs initially rely on Camastro v. Village of Rosemont (1984), 122 Ill. App. 3d 405, where a patron of a rock concert was criminally attacked outside of the public arena. Unlike the City in the instant case, in Comastro, the Village of Rosemont’s assumption of duty arose from the village’s relationship with the patron as a business inviter and invitee; therefore, the court found the “special duty” exception inapplicable. (Comastro, 122 Ill. App. 3d at 410.) Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, is also cited by plaintiffs for the proposition that once a municipality voluntarily assumes a duty it cannot hide behind the Act. Pippin concerned the duties of the Chicago Housing Authority (CHA) as a landlord to an invitee upon its premises. The court stated that CHA had no independent duty to protect against injuries caused by third parties. The court concluded that CHA cannot be held liable for the injuries to plaintiff therein because CHA itself had not undertaken to provide guard services. The only possible liability that could be imposed on CHA would be for its negligent hiring of a guard service. Pippin, 78 Ill. 2d at 209-10.

Liability can arise from the negligent performance of a voluntary undertaking; however, the scope of any duty is limited by the extent of the undertaking. (McColgan v. United Mine Workers (1984), 124 Ill. App. 3d 825, 827.) The thrust of the City’s undertaking was to provide crossing guard service. Nevertheless, to hold it liable every time a person is injured at an intersection or to hold it liable when a crime occurs at a location routinely patrolled by police would be contrary to the principles and public policy considerations underlying the Act. As mentioned above, the general rule “rests upon public policy considerations that a police department’s negligence, oversights, blunders or omissions are not the proximate or legal cause of harms committed by others.” Schaffrath v. Village of Buffalo Grove (1987), 160 Ill. App. 3d 999, 1003.

We find that the undertaking alleged cannot reasonably be construed to have imposed a duty upon the City to protect plaintiff’s decedent. Finally we note, as did the trial court, that the proximate cause issue is questionable. The crossing guards were located at 67th Street and Kenneth Avenue, and the accident occurred at 67th Street and Keeler, where traffic lights were present.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL NELSON, Defendant-Appellee.
    First District (4th Division)
    No. 1 — 87—3437
    Opinion filed September 14, 1989.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and David L. Studenroth, Assistant State’s Attorneys, of counsel), for the People.
    Tuite, Mejia & Giacchetti, of Chicago (Patrick A. Tuite and Cynthia Giacchetti, of counsel), for appellee. ,
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The defendant, Michael Nelson, was charged with possession of a controlled substance with intent to deliver. The trial court granted the defendant’s motion to suppress evidence seized from his luggage after exposure to a narcotics detector dog, and the State has appealed. The sole issue on appeal is whether the police had a reasonable, articulable suspicion that the luggage contained contraband.

The facts are undisputed. The defendant was traveling on Amtrak from Delray Beach, Florida, to Portland, Oregon. He was required to change trains in Washington, D.C., and again in Chicago. At the hearing on the motion to suppress, the defendant presented the testimony of Chicago police officer Robert Glynn. Glynn stated that at 9:20 a.m. on February 24, 1987, he and his partner Christine Kolman observed the defendant exit an Amtrak train at Union Station. Glynn had been informed by Amtrak security that the defendant had paid cash for a one-way ticket from Delray Beach, Florida, that he occupied a roomette on the train, and that he had cancelled his reservations on “a couple of occasions.” Glynn stated that the defendant was looking around as though “scanning the crowd for surveillance” and appeared to be leaving the station without putting his bags in storage. He further testified that Florida is a “source state” for drugs.

At that time, Glynn and Kolman approached the defendant, identified themselves and asked for identification and the defendant’s train ticket. The defendant produced his Oregon driver’s license and the train ticket, which was purchased in his own name. Glynn informed the defendant that he was not under arrest and asked if he would answer some questions. The defendant indicated that he would. When asked where he boarded the train, the defendant answered Washington, D.C. Glynn then asked why the train ticket indicated that he had boarded the train in Delray Beach, Florida. The defendant became nervous, began stuttering and changed his weight from one foot to the other. In response to further questions, the defendant stated that he was once arrested for possession of marijuana and that he was not carrying illegal narcotics. He refused to give the officers permission to search his luggage, and Glynn decided to detain the bags for exposure to a narcotics detector dog. Glynn told the defendant that he was free to leave and gave him a receipt and a phone number he could call for the return of his luggage.

The defendant left and the bags were inspected by a narcotics detector dog immediately outside of Union Station. The dog indicated the presence of narcotics in one of the bags. A search warrant was prepared and the bag was found to contain two kilos of cocaine.

The State presented the testimony of Dennis Kroll, an Amtrak security officer who reviews passenger reservations by computer. Kroll stated that the defendant paid $585 in cash for a one-way ticket originating in Delray Beach, Florida. He ordered a sleeping compartment called a roomette, changed his reservation five or six times and did not leave a call-back number. Kroll relayed this information to an agent of the Drug Enforcement Administration. Officer Christine Kolman also testified, essentially corroborating the testimony of Officer Glynn.

The trial court granted the defendant’s motion to suppress based on its finding that the officers lacked articulable facts to justify the inspection of the defendant’s luggage by a narcotics detector dog.

In United States v. Place (1983), 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637, the Court stated that the detention of luggage for purposes of investigation must be justified by a reasonable suspicion based on specific, articulable facts that the luggage contains narcotics. The facts used to support an investigatory detention are insufficient when they describe “a very large category of presumably innocent travelers, who would be subject to virtually random seizures.” (Reid v. Georgia (1980), 448 U.S. 438, 441, 65 L. Ed. 2d 890, 894, 100 S. Ct. 2752, 2754.) In determining whether a reasonable, articulable suspicion exists, the court must consider the totality of the circumstances. (United States v. Sokolow (1989), 490 U.S. _, 104 L. Ed. 2d 1, 109 S. Ct. 1581.) A trial court’s ruling on a motion to suppress evidence will not be reversed unless manifestly erroneous. People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.

In the case at bar, the State contends that the following factors established a reasonable, articulable suspicion that the defendant’s luggage contained narcotics. The defendant purchased a one-way cash ticket from Florida, a “source state”; he occupied a roomette; he changed his reservations several times and did not leave a call-back number; he “scanned” the area when he exited the train and appeared nervous when questioned by the police; and he was not truthful when he said that he boarded the train in Washington, D.C.

After a consideration of these factors, we cannot conclude that the trial court’s order granting the motion to suppress was manifestly erroneous. Although the ticket was purchased with cash, which presumably would be done to ensure anonymity, the defendant purchased the ticket in his own name. The officers were aware of this when the defendant produced an Oregon driver’s license bearing his name and photograph. The trial court specifically found that the defendant answered truthfully when he said he boarded the train in Washington, D.C., based on the fact that he changed trains there. Given the fact that the defendant was not from Chicago and had to change trains in Union Station, no significance can be imparted to the fact that he “looked around” after exiting the train. The witnesses did not explain the significance of the reservation changes or the fact that the defendant occupied a sleeping compartment during his journey from Florida to Oregon. In our view these factors, even when considered together are insufficient to establish a reasonable, articulable suspicion that the defendant’s luggage contained narcotics.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.