author: JUSTICE WELCH JUSTICE GOLDENHERSH,

text:
    TALBERT AND MALLON, P.C., Plaintiff-Appellee, v. STOKES TOWING COMPANY, INC., Defendant-Appellant.
    Fifth District
    No. 5—90—0187
    Opinion filed May 21, 1991.

      GOLDENHERSH, J., dissenting.
    John S. Sandberg and Stephen M. Strum, both of Sandberg, Phoenix & von Gontard, P.C., of St. Louis, Missouri, for appellant.

      Roy C. Dripps, of Talbert & Mallon, RC., of Alton, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, Stokes Towing Company, Inc., appeals from an order of the circuit court of Madison County, entered March 9, 1990, overruling defendant’s objection to the court’s jurisdiction over the person of the defendant under Illinois’ long-arm statute. (Ill. Rev. Stat. 1989, ch. 110, par. 2—209.) We reverse because we find, on the record before us, that plaintiff has failed to establish that defendant has sufficient contacts with the State of Illinois to establish personal jurisdiction over defendant under the long-arm statute.

On December 21, 1989, plaintiff, Talbert & Mallon, RC., filed a complaint against defendant which alleges substantially as follows:

(1) that plaintiff is a professional law corporation doing business in the State of Illinois;
(2) that plaintiff and Cecil W. Stevens were parties to a valid contract for the performance of legal services concerning an injury Stevens had received and for which defendant was allegedly liable;
(3) that said contract for legal services was entered into between plaintiff and Stevens in Alton, Illinois;
(4) that defendant knowingly and intentionally interfered with said contract by inducing Stevens to settle his claim against defendant, thereby breaching said contract; and
(5) that as a direct and proximate result, plaintiff suffered damages in the form of loss of its attorney fees and expenses.

On February 1, 1990, defendant filed a special and limited appearance objecting to the jurisdiction of Illinois courts over the person of defendant. The appearance alleges that the settlement of Stevens’ claim against defendant occurred in Mississippi, that defendant is incorporated in Mississippi and has its principal place of business in Mississippi, that defendant is not licensed to do business in Illinois and does not have any offices or agents in Illinois for the transaction of its usual and customary business, that plaintiff’s cause of action does not arise from defendant’s transaction of business in Illinois, and that the allegedly tortious act upon which plaintiff attempts to assert jurisdiction would have been committed in Mississippi, where the settlement negotiations and settlement took place. Therefore, defendant alleges, Illinois courts have no personal jurisdiction over defendant under the Illinois long-arm statute. Defendant’s special appearance is supported by a memorandum of law and affidavit of David Stokes, president of defendant corporation.

The Illinois long-arm statute provides the only basis upon which to obtain personal jurisdiction over a corporation, such as defendant, which is neither incorporated nor licensed to transact business in Illinois (Capital Associates Development Corp. v. James E. Roberts-Ohbayashi Corp. (1985), 138 Ill. App. 3d 1031, 1036, 487 N.E.2d 7, 11), and which does not transact business in Illinois on a continuous and substantial basis. (Huffman v. Inland, Oil & Transport Co. (1981), 98 Ill. App. 3d 1010, 1016, 424 N.E.2d 1209, 1214.) That statute provides that a nonresident corporation submits to the jurisdiction of Illinois courts as to any cause of action arising from, inter alia: (1) the transaction of any business within the State; or (2) the commission of a tortious act within the State. Ill. Rev. Stat. 1989, ch. 110, pars. 2—209(a)(1),(a)(2).

The order of the trial court does not state on which basis it finds that Illinois courts have jurisdiction over the person of defendant. However, we think it is clear that plaintiff’s cause of action did not arise out of defendant’s transaction of any business in Illinois. Furthermore, plaintiff’s complaint neither alleges nor reflects that defendant does transact any business in the State of Illinois, and certainly not on a continuous and substantial basis. Finally, on appeal, plaintiff does not argue defendant’s transaction of business in Illinois as a basis for establishing jurisdiction over defendant under the long-arm statute. Instead, plaintiff argues on appeal that jurisdiction is established over defendant by its commission of a tortious act within the State of Illinois.

We note initially that plaintiff bears the burden of proof in establishing jurisdiction over defendant. (Bobka v. Cook County Hospital (1983), 117 Ill. App. 3d 359, 360, 453 N.E.2d 828, 829.) Plaintiff’s complaint does not allege the commission of any act by defendant within the State of Illinois. Indeed, the record reflects that any acts defendant committed were committed entirely within the State of Mississippi. The complaint merely alleges that plaintiff suffered economic loss in Illinois. However, an economic loss which is felt in Illinois is not sufficient to confer jurisdiction in Illinois courts when the allegedly tortious act occurred outside of Illinois. (R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 312, 489 N.E.2d 1360, 1364.) Thus, we do not think jurisdiction over defendant can be premised on defendant’s commission of a tortious act within the State of Illinois. Consequently, we find that the trial court erred in finding that it had jurisdiction over the person of defendant and in overruling defendant’s special and limited appearance objecting to jurisdiction.

There is an additional point which we must address. In its brief, plaintiff raises two issues which are not supported by the record. Plaintiff argues that defendant has waived its objection to jurisdiction by the filing of a motion to stay further proceedings in the trial court subsequent to the trial court's ruling on its special appearance and pending appeal. Plaintiff argues that the filing of the motion to stay constitutes a general appearance which waives defendant’s objection to jurisdiction and submits defendant to the jurisdiction of the Illinois court. While we are not persuaded by plaintiff’s argument, we find in any event that we are unable to address or decide it as the record on appeal does not include the motion to stay or any other proceedings subsequent to the order overruling defendant’s special appearance. This court will not consider facts which are not in the record, and, while an appellee may defend a judgment on review on any ground appearing of record, the necessary factual basis for the determination of such a point must be contained in the record on appeal. (Sanni, Inc. v. Fiocchi (1982), 111 Ill. App. 3d 234, 237, 443 N.E.2d 1108, 1111.) This same rule applies to plaintiff’s argument that it has established jurisdiction based on allegations of an amended complaint which was also filed subsequent to the order appealed from. The amended complaint is not included in the record on appeal and therefore cannot be considered by us in deciding this appeal.

Plaintiff also argues that this court lacks jurisdiction over this appeal because defendant failed to file a notice of appeal in the trial court. Plaintiff argues that, pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301), the filing of a notice of appeal is the only jurisdictional step in the appellate process, and that this requirement is applicable to all appeals, including permissive interlocutory appeals. We disagree. Supreme Court Rule 301 applies to final judgments of the circuit courts and not orders of an interlocutory nature, like the order in the instant case. (Greco v. Coleman (1984), 127 Ill. App. 3d 806, 808, 469 N.E.2d 631, 632.) The instant appeal is taken under Supreme Court Rule 306, which does not require the filing of a notice of appeal. In the case of a permissive interlocutory appeal, the appeal is initiated by the filing of a petition for leave to appeal and the filing of a notice of appeal is unnecessary. (134 Ill. 2d R. 306.) This court is not deprived of jurisdiction over this appeal by defendant’s failure to file a notice of appeal in the trial court.

Plaintiff has failed to establish that defendant has sufficient contacts with the State of Illinois to allow Illinois courts to exercise jurisdiction over defendant. We therefore reverse the order of the trial court finding that it had jurisdiction over the person of defendant.

For the foregoing reasons the order of the circuit court of Madison County is reversed.

Reversed.

LEWIS, J., concurs.

JUSTICE GOLDENHERSH,

dissenting:

I respectfully dissent. While there is no basic dispute as to the facts alleged in the pleadings in this cause, the source of my dissent is the misapprehension by the majority of the nature of plaintiff’s complaint. The majority characterizes the damages allegation as “[t]he complaint merely alleges that plaintiff suffered economic loss in Illinois” and proceeds on the basis of R.W. Sawant & Co. v. Allied, Programs Corp. (1986), 111 Ill. 2d 304, 489 N.E.2d 1360, to conclude that this mere economic loss is not sufficient to confer jurisdiction on our courts when the alleged tortious acts occurred outside the State. (See 213 Ill. App. 3d at 995.) Plaintiff’s complaint, however, states a cause of action in tortious interference with a contractual relationship as opposed to a breach of contract and alleges damages as a direct and proximate result of the tortious actions that occurred outside the State of Illinois. R.W. Sawant did not involve a tortious interference with a contractual relationship cause of action and is therefore distinguishable. Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 427 N.E.2d 1203, cited in R.W. Sawant, is also distinguishable from the present case as it too was not a tortious interference case. In Green, the plaintiff argued that Illinois could assert long-arm jurisdiction since the economic consequences of the conduct which took place outside of Illinois were felt in Illinois; the Texas operations which incurred the economic loss were funded from assets in Illinois. Our supreme court, however, considered this consequence of the out-of-State activities too remote to support the contention that tortious acts complained of were committed in Illinois, noting:

“But the consequences upon which defendants rely are too remote from the misconduct of Green, Sr. [counterdefendant], to support the conclusion that the tortious acts complained of were committed in Illinois. The situs of the last event whose happening was necessary to hold Green, Sr., liable was in Texas. It was there that the alleged improper severance payment was made and the misappropriation and conversion of the labor of corporate employees and use of corporate premises occurred. It was also the place where the alleged improper expenses were charged and the legal retainer agreement entered into. The tortious acts, if any, and the losses or injury were complete when they occurred in Texas. That, therefore, was the place of the wrongs; their commission cannot reasonably or justifiably be transferred to Illinois by the rationale that their consequence reduced the amount of corporate assets in this State.” 86 Ill. 2d at 438, 427 N.E.2d at 1207.

In the present case, however, plaintiffs allege a contractual relationship entered into in Illinois with the last act necessary to complete a cause of action, the injury, occurring in Illinois. Under those circumstances, this is not a mere economic loss case, but rather, a tort action, the last act of which occurred in Illinois, and properly subject to our long-arm statute. See Gray v. American Radiator & Standard Sanitary Cory. (1961), 22 Ill. 2d 432,176 N.E.2d 761.

Accordingly, I would affirm the order of the circuit court of Madison County and remand this cause for further proceedings.


source: Caselaw Access Project

author: PRESIDING JUSTICE RARICK

license: Public Domain

text:
    THOMAS B. TOD JACOBS, Indiv. and as Special Adm’r of the Estate of Andrew Jacobs, Deceased, Plaintiff-Appellant, v. ABBOTT LABORATORIES et al., Respondents in Discovery-Appellees.
    Fifth District
    No. 5—90—0408
    Opinion filed May 23, 1991.

      Jay M. Watts, of Decatur, for appellant.
    Richard F. Record, Jr., of Cráig & Craig, of Mattoon, for appellee H.L. Chen.
    Daniel P. Wurl, of Webber & Thies, P.C., of Urbana, for appellee Abbott Laboratories.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Thomas B. Tod Jacobs, and his former wife were the parents of Andrew Jacobs, who was born on January 5, 1987, with severe birth defects. Dr. H.L. Chen was the mother’s gynecologist. Mr. and Mrs. Jacobs were divorced on August 28, 1987. Andrew died on February 27, 1988. Plaintiff was subsequently appointed administrator of his deceased son’s estate and thereafter filed the present action pursuant to section 2 — 402 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 402), naming Dr. Chen and Abbott Labs as respondents in discovery, but naming no party defendants. Both filed motions to dismiss, which the court granted after a hearing. The court agreed with respondents’ arguments that the complaint as drafted was not authorized by law as it charged respondents with negligence and sought monetary damages but named no defendants. The court also found that the complaint was fatally defective because there were no actual defendants named and that while not specifically raised in the motion to dismiss, this argument was a logical extension of the arguments respondents set forth.

On appeal, plaintiff first argues that the trial court erred in ruling that because his pleading named no defendant it was fatally defective and could not be cured. Plaintiff maintains that this argument was not advanced by either defendant in their motions to dismiss, although it was argued during the hearing on the motions. The trial court reasoned that while such an argument was not specifically-stated in the motions to dismiss, it was a logical extension of the arguments contained therein and was in fact argued by the parties. We agree. In his motion to dismiss, Dr. Chen alleges that he is not named as a defendant in plaintiff's complaint, only as a respondent in discovery, and that allegations of negligence and prayers for monetary damages cannot be directed against a respondent in discovery. At the hearing on the motion, he argued that section 2 — 402 operates only where there is a named defendant, that because he is not named as a defendant the statute does not authorize a recovery against him, and that it should be dismissed because it names no defendant. Further, not only did plaintiff fail to object to this argument at the hearing on the motions to dismiss, he responded to the argument at length, thereby waiving this argument for purposes of appeal. See Hargrove v. Gerill Corp. (1984), 124 Ill. App. 3d 924, 929-30, 464 N.E.2d 1226, 1229-30.

Plaintiff next argues that section 2 — 402 does not mandate the naming of a party defendant and that had the legislature intended to require the naming of a defendant to proceed under section. 2 — 402, it would have done so in clear and explicit terms. In support of his position, plaintiff cites Whitley v. Lutheran Hospital (1979), 73 Ill. App. 3d 763, 392 N.E.2d 729. In Whitley, the court did not specifically address the issue of whether section 2 — 402 requires the naming of at least one defendant, but the court mentioned in a footnote that the legislative history of section 2 — 402 indicated that no named defendant would be required. (73 Ill. App. 3d at 765 n.1, 392 N.E.2d at 732 n.1.) Plaintiff indicated in oral argument that, although he had initially intended to name Abbott Labs as a defendant, it was upon this dicta that he subsequently decided to name no defendants. This issue was addressed in the recent case of Guertin v. Guertin (1990), 204 Ill. App. 3d 527, 561 N.E.2d 1339. In Guertin, the court stated that “[b]y the very clear language of section 2 — 402 *** it is contemplated that a complaint has been filed with at least one named defendant before a párty may employ section 2 — 402.” (Guertin, 204 Ill. App. 3d at 531, 561 N.E.2d at 1392.) Section 2—402 provides in pertinent part as follows:

“The plaintiff in any civil action may designate as respondents in discovery in his or her pleading those individuals or other entities, other than the named defendants, believed by the plaintiff to have information essential to the determination of who should properly be named as additional defendants in the action.
Persons or entities so named as respondents in discovery shall be required to respond to discovery by the plaintiff in the same manner as are defendants and may, on motion of the plaintiff, be added as defendants if the evidence discloses the existence of probable cause of such action.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 2—402.)

We find the Guertin court’s interpretation of section 2 — 402 in this regard to be persuasive. The language of section 2 — 402 clearly contemplates the existence of a named defendant. Further, it is inappropriate to go beyond this language and examine the legislative history in an attempt to determine legislative intent because the language of a statute is clear and unambiguous. (In re Marriage of Mostow (1981), 95 Ill. App. 3d 915, 917-18, 420 N.E.2d 731, 733; Rushton v. O'Malley (1980), 89 Ill. App. 3d 103, 105, 411 N.E.2d 528, 529-30.) We also note that Guertin and Whitley were both decided by the third district.

For the foregoing reasons, the judgment of the circuit court of Christian County is affirmed.

Affirmed.

LEWIS and CHAPMAN, JJ., concur.


author: JUSTICE HOWERTON

text:
    EDWARD M. FOSTER, Plaintiff-Appellant, v. ANITHALEE ALEX, JR., Defendant-Appellee.
    Fifth District
    No. 5—89—0529
    Opinion filed May 28, 1991.

      Edward M. Foster, of Richton Park, appellant pro se.

    Anithalee Alex, Jr., of Teutopolis, appellee pro se.

   JUSTICE HOWERTON

delivered the opinion of the court:

Plaintiff bought oil leases from defendant and sued to rescind the sale, arguing that defendant had misrepresented facts about the oil wells and thus had violated section 12(G) of the Illinois Securities Act (Ill. Rev. Stat. 1985, ch. 12½, par. 137.12(G)), which makes the obtaining of money or property by means of any untrue statement of a material fact or any omission of a material fact unlawful. An Effing-ham County jury found for defendant. Plaintiff appealed.

Plaintiff claims that the circuit court erred in: (1) instructing the jury that plaintiff had the burden to prove that defendant acted knowingly; (2) instructing the jury that plaintiff had the burden to prove that he reasonably relied on defendant’s misrepresentation; and (3) striking portions of his complaint dealing with Securities Department Rule 280 (14 Ill. Adm. Code §130.280 (1985)). We affirm the circuit court on issues (2) and (3), but reverse and remand for a new trial on issue (1).

I. JURY INSTRUCTIONS

Plaintiff claims that a jury instruction placed a higher burden of proof on him than is required by the Illinois Securities Act in that it required proof of scienter, i.e., that defendant acted knowingly. That instruction read:

“As to Counts I, II, III and IV, Plaintiff has the burden of proving each of the following propositions:
First, that the Defendant made an untrue statement of a material fact or an omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading;
Second, that the Defendant acted knowingly;
Third, that the Plaintiff justifiably relied upon the Defendant’s conduct.”

Plaintiff relies on People v. Whitlow (1982), 89 Ill. 2d 322, 433 N.E.2d 629, for the proposition that he need not prove scienter. Although we agree with plaintiff’s ultimate proposition, we feel his reliance on Whitlow is misplaced, as it is distinguishable from the case at bar.

In Whitlow, defendants were charged with and convicted of criminal violations of sections 12(F), 12(G) and 12(1) of the Illinois Securities Act. (Ill. Rev. Stat. 1973, ch. 121½, pars. 137.12(F), (G), (I).) The indictment alleged that they “knowingly and deliberately” did the acts constituting the offenses. They claimed in their appeal that the indictment was defective because it failed to allege that they “intended” to do the acts constituting the offenses. The supreme court .upheld the indictments, reasoning: (a) the Securities Act neither prescribes a mental state nor imposes absolute criminal liability; (b) since absolute liability is not imposed by the Securities Act, “any mental state defined in sections 4 — 4, 4 — 5, or 4 — 6” of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, pars. 4 — 4, 4 — 5, 4 — 6) is applicable; (c) sections 4 — 4, 4 — 5, and 4 — 6 refer to “intent,” “knowledge,” and “recklessness”; therefore, since the indictment alleged that defendants acted “knowingly and deliberately/’ the necessary allegation of scienter was present; (d) an allegation of scienter is not necessary to plead a civil case that claims a violation of sections 12(F) and 12(G) of the Securities Act; and (e) since the indictment in Whitlow alleged scienter, i.e., that defendants acted “knowingly and deliberately,” it satisfied the prohibition of the Criminal Code against absolute criminal liability and satisfied as well the provision of the Criminal Code that where a statute does not prescribe a mental state, then any mental state defined in sections 4 — 4, 4 — 5, or 4 — 6 is applicable. Ill. Rev. Stat. 1973, ch. 38, par. 4 — 3(b).

The two distinctions between Whitlow and the case at bar are obvious. First, Whitlow is a criminal case; this is a civil case. Although both criminal and civil cases share the goal of deterrence, they differ in their general objectives: criminal law punishes; civil law adjusts disputes and inequities. There may be compelling reasons to require scienter in a criminal case, but impose strict liability in a civil case. In other words, when a statute has both criminal and civil application, the fact that scienter may be required for a criminal prosecution does not control whether it will be required in a civil case.

Secondly, Whitlow did not address a contention that no mental state need be alleged; the indictment, in fact, alleged a mental state, namely that defendants had acted “knowingly” and “deliberately.” The issue in Whitlow was whether the mental state “intentional” was required.

The scope of a holding is necessarily limited by the specific facts presented. (See Board of Education, South Stickney School District III v. Johnson (1974), 21 Ill. App. 3d 482, 315 N.E.2d 634.) Thus, the Illinois Supreme Court’s holding in Whitlow was limited; Whitlow held that an allegation of “intent” was not required to state a criminal offense for violation of sections 12(F) and 12(G) and that an allegation that defendants acted “knowingly and deliberately” alleged a mental state sufficient to state a criminal violation of sections 12(F) and 12(G). Whitlow, therefore, does not control this case for reasons stated above.

Despite these distinctions, however, Whitlow is significant because the Illinois Supreme Court, in interpreting the Illinois Securities Act, looked to Federal ease law that interpreted provisions of the Federal Securities Act that correspond to like provisions of the Illinois Securities Act. Following Whitlow’s lead, we look to Federal case law to interpret section 12(G) of the Illinois Securities Act. A comparison of the Illinois and Federal statutes is useful in this regard.

The provisions of section 12(G) of the Illinois Securities Act were patterned after section 17 of the Federal Securities Act of 1933 (15 U.S.C §77q (1988)). Anvil Investment Limited Partnership v. Thornhill Condominiums, Ltd. (1980), 85 Ill. App. 3d 1108, 407 N.E.2d 645, citing Norville v. Alton Bigtop Restaurant, Inc. (1974), 22 Ill. App. 3d 273, 317 N.E.2d 384.

Sections 12(F) and 12(G) of the Illinois Securities Act provide:
“It shall be a violation *** for any person:
* * *
F. To engage in any transaction, practice or course of business in connection with the sale or purchase of securities which works or tends to work a fraud or deceit upon the purchaser or seller thereof; ■
G. To obtain money or property through the sale of securities by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstance under which they were made, not misleading.” Ill. Rev. Stat. 1989, ch. 121½, pars. 137.12 (F), (G).

Sections 17(a)(2) and (a)(3) of the Federal Securities Act of 1933 applies to sellers only, and states:

“(a) ***
It shall be unlawful for any person ***
***
(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.” 15 U.S.C. §77q(a)(2), (a)(3) (1988).

Sections 12(F) and 12(G) of the Illinois Act correspond to sections 17(a)(2) and (a)(3) of the Federal Securities Act (15 U.S.C. §77q(a)(2), (a)(3) (1988)). Scienter is not required in a civil case brought under these provisions of the Federal Securities Act. (Aaron v. Securities & Exchange Comm’n (1980), 446 U.S. 680, 697, 64 L. Ed. 2d 611, 626, 100 S. Ct. 1945, 1956.) Accordingly, we follow the Aaron court’s interpretation of Federal law and hold that scienter need not be pled nor proved in a civil case brought under sections 12(F) and 12(G) of the Illinois Securities Act.

Plaintiff went to trial alleging only section 12(G) violations. The jury instruction in this case required plaintiff to prove that defendant acted knowingly. Since we hold that plaintiff is not required to prove scienter under section 12(G), we find that the instruction erroneously stated plaintiff’s burden of proof, an instruction that only can be assumed to have prejudiced plaintiff in view of the verdict for defendant, and therefore, we reverse and remand for a new trial.

II. JUSTIFIABLE RELIANCE

Next, plaintiff claims that it was error to instruct the jury that plaintiff must prove he justifiably relied on defendant’s representations. Plaintiff based his case for rescission on defendant’s misrepresentations: (1) that for every dollar the plaintiff was investing, Paramount Oil & Gas Corporation was investing four or more dollars; (2) that injection systems would be installed; and (3) that two of the oil wells would produce a minimum of 15 barrels of oil per day.

Section 12(G) of the Illinois Securities Act provides a cause of-action similar to negligent misrepresentation. In Illinois, a cause of action for negligent misrepresentation arises from “a breach of the duty to use due care in obtaining and communicating information upon which others may reasonably be expected to rely upon in the conduct of their economic affairs.” (Emphasis added.) (Lehmann v. Arnold (1985), 137 Ill. App. 3d 412, 420, 484 N.E.2d 473, citing United States v. Neustadt (1961), 366 U.S. 696, 6 L. Ed. 2d 614, 81 S. Ct. 1294.) Reliance is clearly required in a claim of negligent misrepresentation. On that point, we affirm the circuit court. However, we find it necessary to comment on the use of the qualifying term “justifiable.”

The qualifying terms “justifiable” and “reasonable” have been used interchangeably by Illinois courts in discussing reliance in negligent misrepresentation cases. (Compare Citizens Savings & Loan Association v. Fischer (1966), 67 Ill. App. 2d 315, 325, 214 N.E.2d 612, 617, with Lehmann v. Arnold (1985), 137 Ill. App. 3d 412, 484 N.E.2d 473.) Technically, “justifiable” calls for a higher standard of proof than “reasonable.” But, in the context of this case, “justifiable” merely calls for the plaintiff to establish that which he is already required to establish in order to, bring his claim — that defendant is a person who is in the business of supplying information of the type plaintiff relied upon. (Lehmann v. Arnold (1985), 137 Ill. App. 3d 412, 484 N.E.2d 473.) Although we find the circuit court’s use of the term “justifiable” harmless in this case, the mixing of the two terms may-lead to confusion. Therefore, in a reliance instruction on negligent misrepresentation, the term “reasonable” should be used.

III. RULE 280

Lastly, plaintiff argues that the circuit court erred in striking portions of his complaint dealing with Securities Department Rule 280. 14 Ill. Adm. Code §130.280 (1985).

Rule 280 defines “fraudulent” and “work or tend to work a fraud or deceit” to include failure to disclose to the offeree, prior to the payment of any completion costs, all relevant geological and other information regarding an oil lease. Plaintiff wanted to allege these definitions in his complaint so he could obtain a-jury instruction that defined to the jury the terms “fraud” or “tends to work a fraud,” and in this way incorporate these definitions into the body of his closing argument. For example, in this way plaintiff could argue to the jury, “you may be wondering what constitutes ‘fraud,’ or what ‘tends to work a fraud.’ The judge will tell you in the instructions that ‘fraud’ is the failure to disclose geological material.”

The circuit court struck this portion of the complaint, effectively preventing the instruction and the type of argument outlined above being given, and in so doing made predicate findings of fact. The circuit court ruled that Rule 280 became effective after the sale of the securities at issue and the payment of completion costs. The record establishes the correctness of that ruling. According to plaintiff’s complaint, the oil leases were sold in 1984 on. June 27, August 22, September 25, November 19, and November 28. The record shows the effective date of Rule 280 to be June 3, 1986. There is no additional information in the record to determine when completion costs were made.

We agree with the circuit court. Fraud should not be defined as failure to give geological information when that definition was not yet in effect when these oil leases were sold. The circuit court, therefore, did not err in striking those portions of plaintiff’s complaint.

The circuit court is affirmed in part and reversed in part, and this cause shall be remanded for a new trial consistent with this opinion.

Affirmed in part; reversed in part and remanded.

RARICK, P.J., and HARRISON, J., concur.


author: JUSTICE COCCIA

text:
    SEAN WARD, Plaintiff-Appellant, v. COMMUNITY UNIT SCHOOL DISTRICT NO. 220 et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—89—1501
    Opinion filed April 23, 1991.
    Rehearing denied May 30, 1991.

      Michael W. Rathsack, of Chicago, for appellant.
    Michael L. Handley, of Aries & Hoyt, of Chicago, for appellees.
   JUSTICE COCCIA

delivered the opinion of the court:

I

Plaintiff-appellant Sean Ward appeals the dismissal of his two-count complaint against defendants-appellees Community Unit School District No. 220 (school district), Arnett C. Lines School (Lines School), Barrington Middle School (Barrington School), and Board of Education of Community Unit School District No. 220 (board of education). In September 1977, the school district and the board of education operated the two schools, which were located next to each other in Barrington. Behind the schools was a large playing-field area on which were marked in a permanent substance smaller game areas or fields. These fields were used for physical education classes, student intramural games, and student athletic events for students enrolled in either of the two schools. Two of these fields were used for football, soccer, and similar sports; they were situated in an end-to-end fashion.

The first count of the complaint asserted negligence in the design of the two end-to-end football fields, which were described as being “almost immediately adjacent” to each other. On September 26, 1977, a regular school day, the two fields were being used simultaneously for a boys’ physical education class football game (by the Barrington School) and an intramural flag football game (by the Lines School). This construction design allegedly led to the occurrence here: a collision between an older, Barrington School student and plaintiff, who at the time was a nine-year-old Lines elementary school student. The Barrington student was allegedly catching a football; he ran through the end zone of his playing field and into the adjacent field. Plaintiff was seated in the end zone of the adjacent, second, field observing the intramural flag football game being played on that field. As the two boys collided, the older student kicked plaintiff in the head, causing serious and permanent injury. Plaintiff incurred a depressed fracture of the left parieto-occipital area of the skull and developed permanent seizures and epilepsy, from which he continues to suffer.

Plaintiff’s second count asserted wilful and wanton misconduct by defendants, based on the same facts as alleged in the first count plus allegations of the requisite knowledge by defendants of the design, condition, and use of the fields. The trial court, ruling that there was no duty of care owed to plaintiff by defendants, dismissed both counts of the complaint under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615). For the reasons stated hereinafter, we affirm the dismissal of both counts of the complaint.

II

In reviewing the dismissal of a complaint for failure to state a cause of action, we are guided by well-settled standards. In Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 565 N.E.2d 654, the supreme court, affirming the dismissal of a complaint alleging negligence for failure to state a cause of action, stated:

“A trial court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to recover. [Citations.] When the legal sufficiency of all or part of a complaint is challenged by a section 2 — 615 motion to strike or dismiss, all well-pleaded facts in the attacked portions of the complaint are to be taken as true [citation] and a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. A motion to strike a portion of a complaint does not admit conclusions of law or fact unsupported by the specific factual allegations upon which such conclusions rest. [Citation.] Therefore, we will consider only the facts of this case as plaintiff presented them in his complaint.” Burdinie v. Village of Glendale Heights, 139 Ill. 2d at 504-05, 565 N.E.2d at 657.

To properly plead a cause of action in negligence, a plaintiff must allege the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach. (Widlowski v. Durkee Foods (1990), 138 Ill. 2d 369, 373, 562 N.E.2d 967, 968; Dinges v. Gabardi (1990), 202 Ill. App. 3d 732, 735, 560 N.E.2d 21, 23; Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226.) The existence of a duty in a particular case is a question of law. Ward v. K mart Corp., 136 Ill. 2d at 140, 554 N.E.2d at 226; Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387.

The concept of duty in negligence cases has been characterized by our supreme court as being “very involved, complex and indeed nebulous.” (Mieher v. Brown (1973), 54 Ill. 2d 539, 545, 301 N.E.2d 307, 310; Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226.) A duty requires a person to conform to a certain standard of conduct for the protection of another against an unreasonable risk of harm. In order for there to be a duty, the occurrence must have been foreseeable but more than mere possibility is required and foreseeability alone will not create a legal duty. (Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, 233.) Among the factors a court must consider in determining whether a duty exists are: the relationship between defendant and plaintiff, the likelihood of the injury, the magnitude of the burden of guarding against the injuries and the consequences of placing that burden on the defendant. (Ward v. K mart Corp., 136 Ill. 2d at 140-41, 554 N.E.2d at 232.) The court must determine the question of duty from the facts and circumstances as set forth in the complaint. Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504, 565 N.E.2d 654, 657.

In the instant cáse, even if we were to assume that a duty existed, plaintiff admits, as he must, that the school activities in question were supervised by teachers. Therefore, we need not address the question of duty in order to resolve the negligence count. Instead, we reach the same result as the trial judge by application of the immunity provision of the Illinois School Code (Ill. Rev. Stat. 1989, ch. 122, pars. 24—24, 34— 84a).

The School Code provides teachers and certified educational employees with immunity for liability arising from their negligent conduct. The immunity available to schools, school districts, and boards of education is vicarious, as the School Code does not grant immunity directly to such defendants, but specifies “teachers and other certified educational employees” are immune. Thus, if the cause of action is predicated on the negligence of an employee who has statutory immunity, the school, school district, and board of education are also immune. Gara v. Lomonaco (1990), 199 Ill. App. 3d 633, 641, 557 N.E.2d 483, 487; Jastram v. Lake Villa School District 41 (1989), 192 Ill. App. 3d 599, 603, 549 N.E.2d 9, 13.

Section 34 — 84a of the School Code, which is applicable to cities with a population greater than 500,000, and section 24 — 24 of the Code, which is applicable to cities with a population of less than 500,000, are identical. The two sections provide:

“Teachers and other certified educational employees shall maintain discipline in the schools ***. In all matters relating to the discipline in and conduct of the schools and the school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program *** and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 122, pars. 24—24, 34—84a.)

The foregoing statutes confer immunity from liability for negligence arising out of “matters relating to the discipline in and conduct of the schools and school children.” A plaintiff must plead wilful and wanton misconduct, not negligence, to maintain an action against a school or its teachers. (See Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705 (School Code immunity applied to bar liability for negligence for injury in physical education class; student injured in fall while performing supervised exercise on steel rings); see also O'Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 415 N.E.2d 1015.) An exception has been recognized for the separate function of furnishing personal property such as football helmets and athletic equipment. Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323 (school’s separate function of providing equipment requires exercise of ordinary care; no immunity for providing defective football helmet); see also Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 434, 412 N.E.2d 447, 459 (school district has affirmative duty of care to provide adequate equipment).

In this case plaintiff seeks to avoid the immunity provided by the School Code by asserting a claim of negligence through a theory of premises liability. We think the so-called premises liability exception to school immunity is a legal fiction and we decline to recognize it. The premises liability theory is an unwarranted extension of the legitimate exception to School Code immunity for defective equipment. Such a new exception has not been advanced by our supreme court, and we will not carve out such a new exception to school immunity as an exercise in judicial legislation. Nor has the General Assembly seen fit to amend the School Code immunity provision despite its application to bar similar claims. Until such time as our supreme court adopts the premises liability exception, we think it is not the policy of the State of Illinois. While we acknowledge that the premises liability theory has been adopted by the Second, Fourth and Fifth Districts of the Appellate Court, we disagree with those opinions and cannot embrace them. (See Sidwell v. Griggsville Community School District 4 (4th Dist. 1991), 208 Ill. App. 3d 296) (rut in playground); Jastram v. Lake Villa School District 41 (2d Dist. 1989), 192 Ill. App. 3d 599, 602, 549 N.E.2d 9, 12 (monkey bars); Ramos v. Waukegan Community Unit School District No. 60 (2d Dist. 1989), 188 Ill. App. 3d 1031, 544 N.E.2d 1302 (cracked sidewalk); Bowers v. Du Page County Regional Board of School Trustees District No. 4 (2d Dist. 1989), 183 Ill. App. 3d 367, 376, 539 N.E.2d 246 (gym mats under rope ladder); Prest v. Sparta Community Unit School District No. 140 (5th Dist. 1987), 157 Ill. App. 3d 569, 510 N.E.2d 595 (concrete riser).) We have been unable to locate a first district opinion addressing this split of authority. But see Washington v. Chicago Board of Education (1st Dist. 1990), 204 Ill. App. 3d 1091, 1093, 562 N.E.2d 541 (student slip and fall on school stairs due to ice; school districts may be held liable for injuries to students only if the school district was guilty of wilful and wanton misconduct; Gerrity exception not discussed).

We find the Third District Appellate Court opinion in Brock v. Rockridge Community Unit District No. 300 (1989), 183 Ill. App. 3d 447, 539 N.E.2d 445, applying immunity in a similar situation, to be on point and persuasive. In Brock, plaintiff was injured by a fellow student while playing touch football during a physical education class. The other student stepped into an uneven portion of the school playing field, lost his balance, and fell into the plaintiff. There, as in the case at bar, the plaintiff alleged that the field was not reasonably safe, analogizing a claim of negligence based on premises liability to the defective equipment exception to the immunity provided by the School Code.

The majority in Brock v. Rockridge Community Unit District No. 300 observed that the touch football game was indistinguishable from the physical education class in Kobylanski because “both activities were being supervised by teachers and both activities were being performed on school premises.” (183 Ill. App. 3d at 450, 539 N.E.2d at 448. ) We agree with the majority in Brock v. Rockridge Community Unit District that injuries occurring in supervised physical education classes fall “under the purview of the immunity granted” by the School Code. (183 Ill. App. 3d at 450, 539 N.E.2d at 448.) In short, we are of the opinion that if there was negligence at all in the case at bar it was negligent supervision, for which defendants are immune under Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705.

In addition, this court is of the opinion that Brock correctly rejected the Gerrity exception to school immunity as being inapplicable to a supervised touch football game. (Brock, 183 Ill. App. 3d at 449-50, 539 N.E.2d at 447.) This court cannot equate petitioner’s premises liability theory for so-called defective design of football fields with the defective equipment exception under Gerrity v. Beatty. We agree with Justice Karns that to adopt such a new exception would destroy the general rule of immunity. (See Prest v. Sparta Community Unit School District No. 140, 157 Ill. App. 3d at 572, 510 N.E.2d at 597 (Karns, P.J., dissenting, arguing that expansion of Gerrity to premises liability claims would mean exception would destroy the general rule of immunity).) Indeed, it may well be that the end-to-end design of these fields was intended to reduce the number of injuries that might otherwise result were the fields to be placed in parallel fashion. If true, these fields were not designed negligently — just the opposite.

A reviewing court may affirm a dismissal of a complaint on any grounds which are supported by the record, regardless of whether the trial court relied on those grounds, or whether the trial court’s reasoning was correct. (Washington v. Chicago Board of Education (1990), 204 Ill. App. 3d 1091, 1097, 562 N.E.2d 541, 545.) Therefore, we hold that the trial court’s dismissal of count I of the complaint was appropriate and is affirmed where the plaintiff’s injuries were sustained during a supervised athletic activity conducted as part of the school program. We further hold that under these circumstances, the defendants have vicarious immunity under the School Code for such injuries, absent wilful and wanton misconduct.

Ill

We now turn our attention to count II, which alleged wilful and wanton misconduct by defendants in knowingly utilizing the two football fields. In O’Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 469, 415 N.E.2d 1015, our supreme court stated the standard for determining whether conduct is wilful and wanton as follows:

“A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness, or carelessness when it could have been discovered by ordinary care.”

The court further observed that whether there has been wilful or wanton misconduct is a matter of degree and a “hard and thin line definition should not be attempted.” (83 Ill. 2d at 469, 415 N.E.2d at 1018.) Rather, what is required in any given case is a “close scrutiny of the facts.” The court went on to state that while the complaint in O’Brien did not expressly allege an intent to injure, the combination of allegations was sufficient to establish a reckless disregard for the safety of the student. 83 Ill. 2d at 469, 415 N.E.2d 1018.

In O’Brien, a student trainer administered first aid to a student football player for a previously existing, nonfootball injury, and continued treatment from time to time, including opening the wound and cleaning it. As a result the student developed complications and suffered severe and permanent injury. On these facts, the supreme court concluded that: “Because of the necessity to closely scrutinize the facts of each case, plaintiff should be allowed to present evidence in support of his allegations of wilful and wanton misconduct.” (83 Ill. 2d at 469, 415 N.E.2d at 1018.) The dismissal of the wilful and wanton count for failure to state a cause of action was reversed while the dismissal of the negligence count was affirmed. 83 Ill. 2d at 470, 415 N.E.2d at 1019.

We are sensitive to the need to closely scrutinize the facts as alleged in the complaint and to the guidance our supreme court has provided in cautioning against “a hard and thin line definition.” Nevertheless, we are confident that, in applying the wilful and wanton standard to the present complaint, plaintiff has failed to show sufficiently that he has a valid cause of action for wilful and wanton misconduct. Therefore, we affirm the dismissal of count II because we believe that count fails to state a cause of action. (Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 338 N.E.2d 177; Gara v. Lomonaco (1990), 199 Ill. App. 3d 633, 557 N.E.2d 483.) We also view count II as being eonclusory. Washington v. Chicago Board of Education (1990), 204 Ill. App. 3d 1091, 562 N.E.2d 541.

In Tijerina v. Evans (1986), 150 Ill. App. 3d 288, 291, 501 N.E.2d 995, we stated the requirements for pleading wilful and wanton misconduct as follows:

“To sufficiently plead wilful and wanton misconduct, a plaintiff must allege facts demonstrating the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach. [Citation.] Fact pleading, as opposed to notice pleading, is required in Illinois; accordingly, a plaintiff must allege facts that are sufficient to bring his claim within the scope of the legally recognized cause of action. [Citation.] Only well-pleaded facts are admitted by a motion to dismiss, and the requirement that a complaint set forth facts necessary for recovery under the theory asserted is not satisfied, in the absence of the necessary allegations, by the general policy favoring the liberal construction of pleadings.”

See Bowers v. Du Page County Regional Board of School Trustees District No. 4 (1989), 183 Ill. App. 3d 367, 379-80, 539 N.E.2d 246, 254-55.

It is now familiar law that “the same actions may be done negligently or with wilful and wanton disregard,” and that “allegations for wilful and wanton misconduct will not fail simply because they mirror allegations for negligence and merely change the state of mind.” Bowers v. Du Page County Regional Board of School Trustees District No. 4 (1989), 183 Ill. App. 3d 367, 380, 539 N.E.2d 246, 255; O’Brien v. Township High School District 214, 83 Ill. 2d at 468-69, 415 N.E.2d at 1018.

In the case at bar the trial court ruled that defendants owed no duty to plaintiff because the condition of the land was not dangerous and was otherwise open and obvious. It is well-established that a landowner is not liable to uninvited visitors for injuries resulting from open and obvious dangers on the premises. Even where children are involved, a landowner or occupier is not required to remedy conditions “the obvious risks of which children generally would be expected to appreciate and avoid. (Emphasis added.)” (Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 235, 564 N.E.2d 778, 781; Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 326, 383 N.E.2d 177, 180; Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836.) Before a duty will be imposed on an owner or party in possession, it must be shown that he or she

“knows or should know that children frequent the premises and *** [that] the cause of the child’s injury was a dangerous condition on the premises. (Emphasis in original.) [Citation.] Unless these two prerequisites are met, the harm to the child will not be deemed sufficiently foreseeable such that the law will impel the owner or party in possession to remedy the condition.” Logan v. Old Enterprise Farms, Ltd., 139 Ill. 2d at 236, 564 N.E.2d at 781-82.

See also Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023; Kirby v. Macon Public School District No. 5 (1988), 169 Ill. App. 3d 416, 523 N.E.2d 643.

Even if the condition of the land is obvious to the invitee, the possessor may be liable if the possessor should have anticipated the harm; anticipation of harm may be required where the possessor has reason to expect that the invitee’s attention may be distracted so that the invitee would not discover the danger despite its obviousness. These considerations also must be taken into account when deciding whether an injury was reasonably foreseeable. Deibert v. Bauer Brothers Construction Co. (1990), 141 Ill. 2d 430, 437, 566 N.E.2d 239.

In Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 326, 383 N.E.2d 177, 180-81, our supreme court discussed the principles governing the liability of owners or occupiers of land regarding children. The court stated that while, on the one hand, there is a duty placed on owners or occupiers of land to remedy dangerous conditions where the person knows or should know that children frequent the premises, on the other hand there is no duty on owners or occupiers to remedy conditions the obvious risks of which children generally would be expected to appreciate and avoid. “Even if an owner or occupier knows that children frequent his premises, he is not required to protect against the ever-present possibility that children will injure themselves on obvious or common conditions.” 73 Ill. 2d at 326, 383 N.E.2d at 180.

In Corcoran the court assumed that a two-year-old child, who was injured when he fell into a ditch on the land of the village and county, was a business invitee to whom the defendants owed the duty to maintain the premises in a reasonably safe condition and to warn of all dangerous, nonobvious conditions. The court held that the complaint failed to state a cause of action in negligence, under a business invitee analysis or under the Kahn doctrine. (73 Ill. 2d at 329, 383 N.E.2d at 181.) In essence, the court held that “the burden rests with the plaintiffs to allege sufficient relevant facts to describe the condition in order for the trial court to conclude that the condition exposes children to risks greater than those which normally attend their daily lives. This plaintiffs have failed to do.” 73 Ill. 2d at 328, 383 N.E.2d at 181.

The court also held that the complaint failed to state a cause of action for wilful and wanton conduct. The court concluded that where plaintiffs’ own complaint alleged that the ditch in question had been repaired in 1971, and further alleged that the work done on the ditch created the allegedly hazardous condition, the lack of any allegations of drownings or injuries related to children falling into the ditch was fatal to the wilful and wanton count. Without such allegations, the wilful and wanton misconduct count “merely realleges a cause of action in ordinary negligence, which, as we have discussed, cannot be sustained.” 73 Ill. 2d at 330, 383 N.E.2d at 182.

We deem that the complaint in the case at bar suffers the same defect as that in Corcoran v. Village of Libertyville. The complaint failed to state a dangerous condition which prompted any anticipation of an unreasonable risk of harm to children and failed to allege knowledge of incidents of such harm to raise a claim of mere negligence to the level of wilful and wanton misconduct.

In Washington v. Chicago Board of Education (1990), 204 Ill. App. 3d 1091, 562 N.E.2d 541, we affirmed the dismissal of a complaint for failure to state a cause of action for wilful and wanton misconduct. There we held the following allegations to be conclusory: (a) that certain acts were done wilfully and wantonly; (b) allegations that the condition at issue was unreasonably dangerous; and (c) allegations that the board of education “knew or should have known” of the dangerous condition. 204 Ill. App. 3d at 1094-95, 562 N.E.2d at 543-44.

The present complaint alleges that the defendants knew the athletic fields were “almost immediately adjacent” to each other and that students used them simultaneously and that some simultaneous use would involve older students on one field and younger students on another. The complaint then alleges that defendants knew or should have known that “students participating in games on one of said fields would be likely to run onto and near the adjacent field without being able to stop or avoid those persons because said students would be concentrating their attention on the sport being played.”

In a similar vein, the complaint alleges that defendants knew or should have known that players run out of bounds and that sideline observers would not be able to see or be aware of the activities of those participating on the adjacent field. The complaint then repeats the six allegations of negligence from Count I, prefaced by the general assertion that defendants “were wilful and wanton in one or more of the following respects.”

The assertion that the fields were “almost immediately adjacent” is conclusory. By comparison, the complaint in Bowers v. Du Page County Regional Board of School Trustees District No. 4, alleged that the rope ladder used there was 25 feet high. (183 Ill. App. 3d at 380, 539 N.E.2d at 255.) Plaintiff in the case at bar relies upon Bowers as an example of a sufficiently pled complaint and argues that his complaint is similarly sufficient. We disagree.

Plaintiff’s complaint basically relates the fact that older and younger students simultaneously used two athletic fields which were “almost immediately adjacent” to each other and that an injury occurred when an older student ran out of bounds from one field onto another, injuring plaintiff, who was seated in the adjacent field, nearby. Most of the remainder of the complaint, in count II, relies on the conclusory “known or should have known” language, without specifying distances or dimensions. We are not told, for example, exactly where the plaintiff was sitting or where the participants on the two fields were playing in relation to plaintiff’s position. The six allegations in count II also contain the conclusory statement that “there was insufficient room” between the fields, and that the fields were otherwise not properly designed and maintained. The six allegations of wilful and wanton misconduct conclude by stating that the fields were designed so that students would be allowed or caused to run into the area of the adjacent field.

Where facts are alleged in the six allegations of wilful and wanton misconduct, they are simply insufficient to state a reckless disregard for the safety of others, let alone intentional misconduct. For example, one allegation states that there were no warning markings that students would run onto a field from an adjacent field; another allegation states that the fields were not separated or the students protected from collision; and a third allegation states that the defendants caused or allowed the older students to participate in sports near the younger students.

Even taking these factual allegations in a light most favorable to plaintiff, there is no basis for concluding that defendants knew of prior injury-producing collisions between students on the adjacent fields, or had had prior complaints of even minor collisions. There is no basis for concluding that the distance between the fields was a matter of yards, feet, or inches. There is nothing alleged that would support even an inference that there was anything about the proximity of the fields that would result in injury under normal class activities properly supervised. Indeed, the inference most readily drawn is that given proper supervision, there is nothing about the layout and design of the fields themselves that would contribute to collisions between students. These claims allege only negligence, at best. Therefore, the complaint fails to state a cause of action for wilful and wanton misconduct. See Gara v. Lomonaco (1990), 199 Ill. App. 3d 633, 638, 557 N.E.2d 483, 487 (affirming dismissal of a complaint for failure to state a cause of action against teachers at plaintiff’s school where complaint failed to allege facts which rose to the level of wilful and wanton misconduct).

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

Judgment affirmed.

HARTMAN and DiVITO, JJ., concur.


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID ROBINSON, a/k/a David Gates, Defendant-Appellant.
    Fifth District
    No. 5—89—0855
    Opinion filed May 29, 1991.

      Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Kathleen Ailing, State’s Attorney, of Mt. Vernon (Kenneth R. Boyle, Stephen E. Norris, and Diane L. Campbell, all of State’s Attorney’s Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

David Robinson was charged with residential burglary on September 18, 1989, for knowingly and without authority entering the home of Kay Burroughs with the intent to commit aggravated criminal sexual abuse upon a 15-year-old girl (JK). A petition to revoke Robinson’s probation on an earlier drug possession charge was also filed.

On October 27, 1989, a bench trial was conducted on both the residential burglary charge and the petition to revoke probation. The court found David Robinson guilty of residential burglary and revoked his probation. Robinson was sentenced to six years’ imprisonment. Two issues are raised by the defendant on appeal: (1) whether JK’s identification of Robinson is sufficiently trustworthy to sustain the verdicts; and (2) whether Robinson was denied effective assistance of counsel. We affirm.

Testimony at trial revealed that on September 15, 1989, Kay Burroughs left JK at her home to babysit Burroughs’ daughter. Shortly after 5:30 p.m. JK and Burroughs’ daughter went outside to the front yard and talked with the neighbors. JK testified that while talking with the neighbors she noticed a black man wearing a black coat with a white shirt and black pants walk along the other side of the street. She had never seen the man before, and her attention was focused on the man for “not more than a minute or so.” The girls returned to the house to watch television at approximately 6 p.m. Burroughs’ daughter went to bed at approximately 8:30 p.m. JK then opened the front door, which was located in the living room, and continued to watch television on the couch until she fell asleep.

JK was awakened by someone who came in the front door. She saw the person quietly shut the door and turn off the television, which left the only light in the room that which came from an outside streetlamp. She testified that the light from the streetlamp shined through the window located next to the front door, which is approximately 5 to 10 feet from the couch where she was lying. JK recalls that the person tugged at her blanket. She pushed the person away and asked, “[W]ho is it? Is it you Robert?” The intruder answered, “Yeah. Yeah, it’s me, Robert.”

JK explained that Robert is Kay Burroughs’ boyfriend. She testified that once the intruder spoke to her she knew he was not Robert because she had met Robert once or twice before and would have recognized his voice. JK described Robert as a white skinny male with brown hair. She described the person in the living room as a black male of medium build, who had stringy hair. JK testified that on the night of the incident, the intruder had on strong cologne and was wearing black pants, a black jacket, and a white shirt.

JK testified that she asked the intruder what time it was and was told it was 11 p.m. The intruder then asked, “What time does she get home?” JK responded, “She works at Good Sam. She gets home at 11:00.” By this time JK was sitting on the couch and the intruder was standing at the edge of the couch, approximately one or two feet away. He told her, “pull down your pants. I want to show you something.” JK edged away from him and saw the light from a passing car through the living room window. She said, “Oh, God, she’s home.” The intruder headed quickly for another room in the house when JK ran out the front door. She ran next door and told the Richardsons what had happened. The police were called, and within a few hours JK was taken to the police station, where she identified the defendant as the intruder in a display of photographs.

Tommy Melton testified on behalf of the State. On the night of the incident he was at the Richardson house, located next door to the Burroughs residence. At around 10:30 p.m. he and the Richardson children and Mrs. Richardson were talking when they heard JK knocking on the front door. One of the Richardson children went to the back door and told JK to come to the back door. JK ran into the house and told them that a black man had tried to rape her. Melton testified that earlier that evening he had spoken with David Robinson at Robinson’s parents’ home, which is located diagonally across the street from the Richardson house. At that time Robinson had on black dress pants, a dark jacket, a white shirt, and smelled of strong cologne.

David Robinson testified on his own behalf. He lives with his mother and stepfather approximately four houses down the street from the Burroughs residence. According to Robinson, on the evening of the incident he finished mowing his lawn at around 4:30 p.m., took a shower, and got dressed. He put on black pants, a black and blue shirt, and a black jacket, and at around 5:30 p.m. he walked down the street to a friend’s house. Later that evening Robinson and his sister went to a disco and returned home at approximately 10:30 or 10:40 p.m. Both Augusta Gates and Murphy Peterson, defendant’s mother and stepfather, were asleep when Robinson arrived home. Robinson testified that 15 or 20 minutes after he arrived home, his dog and other dogs in the neighborhood started barking. He got up to investigate, and about 10 or 15 minutes later his parents awoke. Robinson stated that it was past 11:30 p.m. when he went to bed.

Defendant’s mother, Augusta Gates, testified that on the night of the incident she awoke at approximately 10:55 p.m. with a stomach ache. When she awoke she saw her son, the defendant, standing with the light on and the front door open. She asked him what was going on and he told her that he was trying to see why the dogs were barking.

Robinson claims that his conviction and probation revocation must be reversed because JK’s identification was not sufficiently trustworthy to sustain the verdicts. He argues that the lighting conditions in the Burroughs living room the night of the incident were so poor that the victim mistakenly identified the defendant as the intruder since she had seen the defendant earlier that evening. Although different burdens of proof were necessary to sustain the conviction and the probation revocation, the State maintains that the evidence presented not only proved the defendant guilty by the preponderance necessary for the probation revocation (Ill. Rev. Stat. 1989, ch. 38, par. 1005—6—4(c)), but also was sufficient to prove the defendant guilty beyond a reasonable doubt (In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068). We agree.

A single witness’ identification is sufficient to convict if the witness is credible and she had the opportunity to view the accused under such circumstances as would permit a positive identification to be made. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, 1320.) JK positively identified the defendant both from a photographic display and in court. JK testified that, although the living room was not directly lighted, light was provided via a streetlamp which shined through the living room window. Although she testified that for a portion of the time the defendant’s features were “shadowed” because of the lighting conditions, at one point the intruder was standing directly in front of JK not more than one or two feet away. When asked on direct examination at what point she was positive that the man she had seen earlier that day and the intruder were the same person, JK testified, “When I — just when I saw him. I just — it registered right then that it was the same man. He was wearing the same outfit I saw earlier. His hair was the same, and his — he was built the same that I saw earlier, and it was just him.” JK’s description of the defendant’s appearance, clothing, and the strong cologne defendant wore was corroborated by State’s witness Melton.

When presented with a challenge to the sufficiency of the evidence, it is not the function of the appellate court to retry the defendant. The question is whether the evidence, viewed in the light most favorable to the prosecution, could lead any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276.) We may not substitute our judgment for the trial court in weighing the testimony or determining which witnesses were more credible. People v. Hoffstetter (1984), 128 Ill. App. 3d 401, 407, 470 N.E.2d 1247, 1251.

The trial court found JK’s testimony credible. We find nothing in the record to suggest otherwise. Her description of the defendant was corroborated by Tommy Melton. In addition, we find that under the facts presented JK did have the opportunity to make a positive identification of the defendant. In light of our findings, we hold that the identification of Robinson as the intruder is sufficient to sustain the guilty verdict and the probation revocation.

Robinson also argues on appeal that he was provided ineffective assistance of counsel at trial because counsel failed to use a prior inconsistent statement made by JK for impeachment purposes or to admit it substantively under the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115—10.1). JK testified at trial that the man she saw in the house was wearing a black jacket, a white shirt, and black pants. Defendant contends that this testimony is inconsistent with a statement given by JK to the police the night of the incident wherein she stated, “I could tell he was wearing a casual jacket with dress pants but I could not tell the color.” Robinson contends that this inconsistency is especially important because JK’s identification of Robinson was the key element of the case. He argues that counsel’s use of the statement to impeach the witness or as substantive evidence would have created doubt in the fact finder’s mind as to the defendant’s identification.

In order to establish that defendant was denied effective assistance of counsel, defendant must show that his counsel’s performance was deficient, that is, counsel made errors so serious he was no longer functioning as the “counsel” guaranteed by the sixth amendment, and that the deficient performance prejudiced his defense, that is, counsel’s errors were so serious as to deprive defendant of a fair trial. (People v. Albanese (1984), 104 Ill. 2d 504, 525-26, 473 N.E.2d 1246, 1255, cert. denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Counsel’s performance is considered deficient if it falls below an objective standard of reasonableness. (Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) To establish actual prejudice, defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) With these principles in mind, we now turn to defendant’s contention.

Defense counsel attempted to provide an alibi defense, and also advanced the theory that JK misidentified Robinson because she had seen him earlier that evening. The State argues that it may have been to defendant’s advantage to emphasize the consistencies between Robinson’s appearance earlier that evening and JK’s description. Based on the record we find that this theory is entirely plausible. Robinson admitted at trial that JK could have seen him walking down the street at approximately 5:30 p.m. Because evidence was presented that JK’s description of the man in the house matched the description she gave of the man she had seen walking down the street, defense counsel’s strategy could very well have been to emphasize that JK merely thought the two men were the same person because of their clothing. Were defense counsel to use JK’s statement to the police that she did not know what color clothing the intruder was wearing, defendant’s explanation of the allegedly mistaken identification would have been weakened.

The courts should not attempt to second-guess a defense counsel’s trial strategy, and the courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. (People v. Hattery (1985), 109 Ill. 2d 449, 461, 488 N.E.2d 513, 517.) In view of the foregoing, we do not find that counsel’s conduct fell below the objective standard of reasonableness.

The judgments of the circuit court of Jefferson County are therefore affirmed.

Affirmed.

RARICK, P.J., and WELCH, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL L. THOMPSON, Defendant-Appellee.
    Fifth District
    No. 5—89—0764
    Opinion filed May 31, 1991.
    Charles Garnati, State’s Attorney, of Marion (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      Daniel M. Kirwan and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Defendant Michael L. Thompson was charged by information on August 14, 1989, with the offense of attempted burglary. On November 9, 1989, a pretrial hearing was held on the State’s motion to allow defendant’s juvenile records into evidence. The State contended that the juvenile records were admissible to impeach defendant in the event he chose to testify and to establish modus operandi. The trial court concluded that section 1—10 of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1989, ch. 37, par. 801—10) prevented the admission of the records into evidence under either theory.

The State appeals pursuant to Supreme Court Rule 604(a)(1) (134 Ill. 2d R. 604(a)(1)). Defendant contends that we lack jurisdiction under Supreme Court Rule 604(a)(1) to review the trial court’s decision. He asserts that the trial court’s order preventing the use of the juvenile records for impeachment purposes in no way impairs the State’s ability to prosecute the case. Defendant also asserts that the trial court’s exclusion of the juvenile records for modus operandi purposes is not a proper subject for appeal under Rule 604(a)(1) because the trial court’s order was based on “the relevance of the evidence excluded.” Defendant also argues that the trial court’s ruling was proper. We shall address defendant’s jurisdictional arguments first.

Supreme Court Rule 604(a)(1) provides:

“Rule 604. Appeals from Certain Judgments and Orders
(a) Appeals by the State.
(1) When State May Appeal. In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence.” 134 Ill. 2d R. 604(a)(1).

Our supreme court has interpreted this provision to allow the State to appeal from a pretrial suppression order

“whenever the prosecutor certifies to the trial court that the suppression substantially impairs the State’s ability to prosecute the case.” People v. Young (1980), 82 Ill. 2d 234, 247, 412 N.E.2d 501, 512.

Defendant’s first contention is that the use of defendant’s juvenile records at trial would be contingent upon defendant testifying and, therefore, the suppression of the records for impeachment purposes cannot affect the State’s ability to prosecute its case. We agree and therefore conclude that we do not have jurisdiction to consider the trial court’s order excluding the juvenile records for impeachment purposes.

We are mindful that our supreme court in Young stated that courts should “rely solely upon the good-faith evaluation by the prosecutor of the impact of the suppression order on his case.” (Young, 82 Ill. 2d at 247, 412 N.E.2d at 512.) However, we do not feel that we are bound to exercise jurisdiction over a cause when, as in this case, it is obvious that the trial court’s order has no impact on the State’s ability to prosecute the case.

We note that the prosecutor's certificate of impairment did not specifically say that the exclusion of the evidence substantially impaired his ability to prosecute the case, and we can appreciate the lack of such an inclusion on the impeachment issue. However, a more substantial statement by the State’s Attorney would have been appropriate on the modus operandi issue, at least for purposes of establishing the State’s ability to prosecute this appeal. We do not decline jurisdiction of the modus operandi issue on the basis of any failure in the State’s certificate. We merely point this out for purposes of future appeals.

Defendant next contends that we lack jurisdiction to consider the propriety of the trial court’s order preventing the State from introducing his juvenile records into evidence to establish modus operandi because it relates to the relevance of the evidence excluded. We disagree.

When considering the propriety of an appeal brought under Rule 604(a)(1), the focus is on the effect of the suppression order and not on the nature of the evidence involved. (People v. Carlton (1983), 98 Ill. 2d 187, 193, 455 N.E.2d 1385, 1388.) In People v. Hatfield (1987), 161 Ill. App. 3d 401, 514 N.E.2d 572, the court denied defendant’s motion to dismiss the State’s interlocutory appeal of the trial court’s order granting defendant’s motion in limine to suppress or exclude from evidence certain statements of witnesses:

“We deny defendant’s motion to dismiss this interlocutory appeal under Supreme Court Rule 604(aXl) [citation]. The pretrial suppression order need not be premised on evidence illegally obtained; rather, it may concern evidentiary rulings regarding hearsay and relevancy where the prosecutor certifies to the trial court, as was done here, that the suppression substantially impairs the prosecution.” (Hatfield, 161 Ill. App. 3d at 404-05 514 N.E.2d at 574.)

We conclude that we have jurisdiction to consider the trial court’s decision to prevent the State from admitting into evidence defendant’s juvenile records to establish modus operandi.

The trial court’s decision to exclude defendant’s juvenile records was based on section 1 — 10 of the Juvenile Court Act of 1987. (Ill. Rev. Stat. 1989, ch. 37, par. 801—10). Section 1—10 provides in pertinent part:

“Admissibility of evidence and adjudications in other proceedings. (1) Evidence and adjudications in proceedings under this Act shall be admissible:
* * *
(b) in criminal proceedings when the court is to determine the amount of bail, fitness of the defendant or in sentencing under the Unified Code of Corrections; or
(c) in proceedings under this Act or in. criminal proceedings in which anyone who has been adjudicated delinquent under Section 5 — 3 is to be a witness, and then only for purposes of impeachment and pursuant to the rules of evidence for criminal trials.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 37, pars. 801 — 10(l)(b), (l)(c).

The plain language of sections 1 — 10(l)(b) and (l)(c) clearly prevents the State from admitting into evidence defendant’s juvenile records to establish modus operandi. Therefore, the trial court’s decision must be affirmed.

For the foregoing reasons, the State’s appeal from the circuit court’s ruling excluding the juvenile records for impeachment purposes is dismissed. The court’s ruling excluding the records for modus operandi purposes is affirmed. .

Affirmed.

RARICK, P.J., and GOLDENHERSH, J., concur.


author: JUSTICE HARRISON

text:
    THE CITY OF EAST ST. LOUIS, Petitioner and Cross-Respondent, v. THE ILLINOIS STATE LABOR RELATIONS BOARD et al., Respondents (The People ex rel. The Illinois State Labor Relations Board, Cross-Petitioner).
    Fifth District
    No. 5—89—0677
    Opinion filed May 30, 1991.

      Vickers, Moore & Wiest, of St. Louis, Missouri (Charles L. Wiest, Jr., of counsel), for petitioner City of East St. Louis.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois State Labor Relations Board.
    Jack Carey, of Belleville, for respondent Fraternal Order of Police Lodge No. 126.
   JUSTICE HARRISON

delivered the opinion of the court:

The City of East St. Louis (the City), a municipal corporation, petitions this court under section 11(e) of the Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1611(e)) and Supreme Court Rule 335 (134 Ill. 2d R. 335) for administrative review of a decision of the Illinois State Labor Relations Board (Board) which found that the City had committed an unfair labor practice in violation of section 10(a) of the Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1610(a)) when it refused to bargain with the Fraternal Order of Police (the Union) regarding the City’s decision to create and staff seven “inspector” positions on1 its police force. The Board, in the name of the People of the State of Illinois, cross-petitions under sections 11(f) and (g) of the Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, pars. 1611(f), (g)) for an order directing the City to comply with the Board’s decision. The City has moved that this cross-petition be dismissed, and its motion has been taken with the case. For the reasons which follow, we affirm the Board’s decision, deny the City’s motion to dismiss the Board’s cross-petition, and deny that cross-petition.

Section 11(e) of the Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1611(e)), which governs our review of Board decisions, incorporates the provisions of the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, pars. 3—101 et seq.). (County of Menard v. Illinois State Labor Relations Board (1988), 177 Ill. App. 3d 139, 142, 531 N.E.2d 1080, 1082.) Under section 3—110 of the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3—110), the findings and conclusions of an administrative agency on questions of fact are held to be prima facie true and correct. Accordingly, our supreme court has recently held that such findings and conclusions by the Board cannot be reversed unless they are against the manifest weight of the evidence and it is clearly evident that the Board should have reached the opposite conclusion. See City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499, 507, 554 N.E.2d 155, 159.

The facts of this case, as found by the Board hearing officer and adopted by the Board, showed that prior to June of 1988, the City’s police department included a chief of police and an assistant chief of police who were mayoral appointees. The department also included one captain, six lieutenants, 28 sergeants and 44 patrol officers. Unlike the chief and assistant chief, these personnel were subject to the jurisdiction of the City’s Board of Fire and Police Commissioners (the Commission). All of the sergeants and patrol officers were also members of a historical bargaining unit represented by the Union, and their employment was subject to a collective bargaining agreement with the City.

In June of 1988, the City enacted an ordinance which created seven permanent new positions on the police force called “inspectors,” who were placed above the rank of captain, but below the assistant chief and chief. Like the chief and assistant chief, the inspectors were not under the jurisdiction of the Commission. Instead, they were to be appointed by the mayor with the advice, consent, and approval of the City’s aldermanic council. The enactment of this ordinance followed events which had taken place the previous month, when three inspectors had been appointed on a temporary basis.

In the same ordinance creating the inspector positions, the City eliminated from its table of organization six sergeant positions and one patrol officer position, all of which had previously been in the collective bargaining unit. Thereafter, the mayor appointed the six sergeants and one patrol officer whose positions had been eliminated to fill the seven new inspector positions. His appointments were approved by the City’s aldermanic council in a resolution passed June 22,1988.

As a result of the City’s decision to create and staff the inspector positions, the Union filed a grievance. After the City denied the Union’s request for arbitration, the Union filed an unfair labor practice charge against the City. As it had in its grievance, the Union charged that the City had violated the collective bargaining agreement by creating and staffing the seven inspector positions. For its remedy, the Union asked that the City be directed to follow the provisions of the collective bargaining agreement and that it bargain with the Union “over the creation of the inspector position and appointment of officers thereto.”

Following an investigation, the Board issued a complaint against the City pursuant to section 11(a) of the Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1611(a)). A hearing on that complaint was held, after which the Board hearing officer issued a recommended decision. In that recommended decision, the hearing officer found that the City had committed an unfair labor practice in violation of section 10 of the Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1610(a)) when it refused to bargain collectively in good faith with the Union regarding the creation of the inspector positions and the procedure for filling them.

Exceptions to the hearing officer’s decision were then filed by the City, and the Board reviewed the matter further. In a written decision issued on September 15, 1989, the Board affirmed the hearing officer’s recommendation and ordered, inter alia, that the City “[rjescind the Inspector title and return the Inspectors to the rank they occupied immediately preceding their appointment,” and that it “[b]argain with the Union over the creation of the Inspector title and the process to fill it.” This petition for administrative review followed.

As grounds for its petition, the City argues that the decision of the Board should be reversed because the new inspectors constituted “supervisors” within the meaning of section 3(r) of the Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1603(r)), and public employers generally have no obligation to bargain over the creation of bona fide supervisory positions or the removal of supervisory duties from a bargaining unit. This argument cannot be sustained under the circumstances present here.

The creation of supervisory positions and the removal of supervisory duties from a bargaining unit do involve matters of managerial policy, and section 4 of the Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1604) expressly provides:

“Employers shall not be required to bargain over matters of inherent managerial policy, which shall include such areas of discretion or policy as the functions of the employer, standards of services, its overall budget, the organizational structure and selection of new employees, examination techniques and direction of employees.”

This statute further provides, however, that employers are required to bargain collectively even with regard to policy matters where those policy matters directly affect “wages, hours and terms and conditions of employment as well as the impact thereon” and a request to bargain has been made by employee representatives. Ill. Rev. Stat. 1987, ch. 48, par. 1604.

In the matter before us the record clearly established that when the City eliminated the positions of six sergeants and one patrol officer and appointed the individuals who had held those positions to the new positions of inspector, those individuals continued to perform all of the basic tasks for which they were previously responsible. The difference now was that they were no longer members of the bargaining unit. Thus, the effect of the City’s unilateral decision to create and staff the inspector positions as it did was to eliminate approximately one tenth of the preexisting bargaining unit, thereby causing that bargaining unit to lose a substantial amount of work.

Under analogous provisions of the National Labor Relations Act (29 U.S.C. §151 et seq. (1982)), the National Labor Relations Board and the Federal courts have held that such a loss of work constitutes a change in the “terms and conditions of employment” over which the employer is obligated to bargain with the union. (WXON-TV, Inc. (1988), 289 NLRB 80; Road Sprinkler Fitters Local Union No. 669 v. NLRB (D.C. Cir. 1982), 676 F.2d 826, 831-32.) This is so even where the employees who are removed from the bargaining unit are placed in positions which contain new or additional supervisory responsibilities. (WXON-TV, Inc. (1988), 289 NLRB 80.) We find this to be persuasive authority. (County of Menard v. Illinois State Labor Relations Board (1988), 177 Ill. App. 3d 139, 143, 531 N.E.2d 1080, 1083.) Accordingly, we agree with the Board that the City had a duty to bargain with the Union regarding the creation and staffing of the inspector positions.

The City argues, in the alternative, that it cannot be deemed to have committed an unfair labor practice because the Union failed to make a proper request to bargain. This argument was properly rejected by the Board. There is no dispute that before there can be a wrongful refusal to bargain, there must have been a request to bargain by the union. However, a request to bargain need not invoke “any special formula or form of words.” It is sufficient that the request to bargain be made by clear implication. (Joy Silk Mills, Inc. v. NLRB (D.C. Cir. 1950), 185 F.2d 732, 741, cert. denied (1951), 341 U.S. 914, 95 L. Ed. 1350, 71 S. Ct. 734.) That standard was satisfied here.

The City nevertheless contends that the Union’s request cannot be regarded as proper because that request concerned a matter over which the City had no duty to bargain. As we have just held, however, this argument is untenable. The City did have a duty to bargain over its decision to create and staff the inspector positions. Accordingly, we believe that the Union met its burden of establishing that the City committed an unfair labor practice. The decision of the Board must therefore be affirmed.

We turn then to the cross-petition filed by the Board in the name of the People of the State of Illinois seeking an order enforcing its decision. The City has moved to dismiss this cross-petition on the grounds that such enforcement petitions must be brought in the circuit court. The City’s motion is denied. Under section 11(g) of the Public Labor Relations Act (Ill. Rev. Stat. 1989, ch. 48, par. 1611(g)), enforcement petitions must now be commenced in the appellate court for the district where the unfair labor practice was committed. This statute went into effect in August of 1989, the month before the Board issued the decision now before us for review. It is therefore controlling here.

Although we have statutory authority to consider the Board’s petition, we cannot grant the relief it requests. Section 11(f) of the Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1611(f)) permits enforcement petitions to be brought “[w]henever it appears that any person has violated a final order of the Board.” In this case, however, the Board has not alleged that its order has been violated by the City, and no evidence has been presented that such a violation has taken place. The enforcement petition is therefore denied as premature.

For the foregoing reasons, the decision of the Board is affirmed. The City’s motion to dismiss the Board’s cross-petition for enforcement is denied, and the cross-petition for enforcement is also denied.

Decision affirmed; motion to dismiss cross-petition for enforcement denied; cross-petition for enforcement denied.

WELCH and HOWERTON, JJ., concur.