text:
    THE COUNTY OF WILL ex rel. EDWARD F. MASTERS, State’s Attorney of Will County, et al., Plaintiffs-Appellants, v. WASTE MANAGEMENT OF ILLINOIS, INC., et al., Defendants-Appellees.
    Third District
    Nos. 3—88—0119, 3—88—0257, 3—88—0258 cons.
    Opinion filed May 2, 1989.

      Neil F. Hartigan, Attorney General, of Springfield, and Michael J. Martin, of Dunn, Leinenweber & Dunn, Ltd., of Joliet (Robert J. Ruiz, Solicitor General, and Matthew J. Dunn and Michelle D. Jordan, Assistant Attorneys General, of Chicago), for the People.
    Edward F. Masters, State’s Attorney, of Joliet (John X. Breslin and Terry Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant County of Will.
    Louis R. Bertani, of Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet, and Pedersen & Houpt, of Chicago (Michael J. Martin and Donald J. Moran, of counsel), for appellee Waste Management of Illinois, Inc.
    Paul Jagiello, of Maywood, for appellee Illinois Environmental Protection Agency.
   JUSTICE BARRY

delivered the opinion of the court:

On September 24, 1987, the County of Will filed a four-count complaint for injunctive relief against defendants Waste Management of Illinois, Inc. (Waste Management), and the Illinois Environmental Protection Agency (the Agency) seeking to restrain Waste Management from operating a solid waste disposal site upon property located at 111th Street in Wheatland Township, Will County, Illinois. The complaint was subsequently amended to include only three counts, and the People of the State of Illinois, through the Illinois Attorney General, were granted leave to intervene and adopt the county’s pleadings. The circuit court of Will County ultimately dismissed a second amended complaint with prejudice on January 20, 1988. Post-trial motions filed by the State for reconsideration, modification and leave to file a third amended complaint were denied on February 26 and March 14, 1988, and plaintiffs filed their notices of appeal on April 12, 1988.

The issues presented for our consideration are: (1) whether the complaint was improperly dismissed for failure to allege specific facts constituting a substantial and imminent danger to the environment; (2) whether plaintiffs were required to exhaust administrative remedies pursuant to section 31(b) of the Environmental Protection Act (Ill. Rev. Stat. 1987, ch. 111½, par. 1031(b)) (the Act); (3) whether the circuit court’s finding that the disposal site is not a “new regional pollution control facility” as defined in section 3.32 of the Act (Ill. Rev. Stat. 1987, ch. HV-k, par. 1003.32) was in error; and (4) whether the circuit court abused its discretion in denying the State leave to file its proposed third amended complaint.

Before addressing the issues, we must dispose of defendants’ motions to dismiss the appeal, which were taken with the case. Defendants contend that the circuit court’s February 26, 1988, order finally disposed of the only proper post-trial motion filed in this case — that is, the State’s “Motion to Reconsider and Modify th[e] Court’s January 20, 1988 Order.” This motion was filed on February 18, 1988, contemporaneously with the State’s “Motion to Modify th[e] Court’s January 20, 1988 Order to Allow the People to File Their Third Amended Complaint.”

Defendants correctly point out that the State’s latter motion is not among those post-judgment motions listed in section 2 — 1203(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1203(a)) and cannot be granted after a judgment of dismissal without vacating or setting aside the underlying judgment. (Pickle v. Curns (1982), 106 Ill. App. 3d 734, 435 N.E.2d 877; Fultz v. Haugan (1971), 49 Ill. 2d 131, 273 N.E.2d 403.) Certainly where successive post-judgment motions are filed, precedent dictates that the losing party cannot hope to delay the time for appeal with a motion for leave to file an amended complaint. This was the situation in Fultz, and the policy for this rule was explained by our supreme court in Sears v. Sears (1981), 85 Ill. 2d 253, 422 N.E.2d 610. In Sears, the court held that “successive post-judgment motions are impermissible when the second motion is filed more than 30 days after the judgment or any extension of time allowed for the filing of the post-judgment motion.” 85 Ill. 2d at 259, 422 N.E.2d at 613 (reaffirming the rule of Deckard v. Joiner (1970), 44 Ill. 2d 412, 255 N.E.2d 900).

The facts before us, however,- are somewhat unique in that the State’s motion for leave to amend was filed within the 30-day period allowed for post-judgment motions and well before the court ruled on any post-judgment motion. The record discloses that at the hearing on the State’s motions on February 26, the court announced that the State’s motion to modify and for leave to file a third amended complaint would be taken under advisement. In a docket entry of March 1, the court ruled against the State and charged Waste Management with presenting a written order. The order was signed, as aforesaid, on March 14,1988.

It is thus apparent that the delay in disposing of all post-judgment matters was not occasioned in this case by the losing party, but by the court and the party charged with preparing a written order. Under the circumstances, the policy considerations cited by the Sears court— e.g., avoidance of “judge shopping,” harassment and inefficient court administration — would not dictate that plaintiffs’ appeals here be dismissed as untimely.

We note, moreover, that the State’s motion to modify and for leave to file a third amended complaint is substantially the same as a “motion to set aside [an order of] dismissal on the ground that the defect in the complaint could be easily cured by amendment.” This, according to the Sears court, was the nature of the first of two successive post-judgment motions filed by the plaintiff in Drafz v. Parke Davis Co. (cause No. 53186), consolidated for appeal with Sears. (Sears, 85 Ill. 2d at 257, 422 N.E.2d at 611.) The court’s discussion indicates that the time for appeal in Drafz ran from the date of the circuit court’s denial of the motion to set aside. If, as defendants contend here, the State’s hybrid “motion to modify and for leave to file a third amended complaint” is neither a permissible post-judgment motion under section 2 — 1203(a) of the Code of Civil Procedure, nor operative to stay enforcement of the underlying judgment, then it would seem that plaintiff’s notice of appeal in Drafz should have been filed within 30 days of the order dismissing the complaint, instead of within 30 days of the order denying the first post-judgment motion. We hold, therefore, that inasmuch as the State’s motion to modify and for leave to file a third amended complaint in this case was filed within the 30-day period allowed for post-judgment motions, plaintiffs’ notices of appeal, filed within 30 days of the denial of said motion, were timely and sufficient to confer appellate jurisdiction pursuant to Supreme Court Rule 303 (107 Ill. 2d R. 303).

On the merits, we find that plaintiffs’ complaint should not have been dismissed. The waste disposal site here at issue was the subject of this court’s attention in a prior suit involving defendant Waste Management’s predecessors in interest, Donald and Carol Hamman. (Mathers v. Pollution Control Board (1982), 107 Ill. App. 3d 729, 438 N.E.2d 213.) We there considered whether adequate notice of the initial public hearing before the Illinois Pollution Control Board was given pursuant to section 40 of the Act (Ill. Rev. Stat. 1987, ch. 111½, par. 1040) and whether the Board’s decision ordering the Agency to grant the developmental permit was contrary to the manifest weight of the evidence. We found the notice statutorily and constitutionally adequate, and we held that the Board’s decision was erroneous with respect to the upgrading of the access road. We remanded the cause “with directions *** to issue a developmental permit ‘containing a condition that 111th Street be improved.’ ” 107 Ill. App. 3d at 741, 438 N.E.2d at 222, quoting Hamman v. Illinois Environmental Protection Agency, No. PCB 80 — 153, slip op. at 11 (P.C.B. Nov. 19, 1981).

According to the complaint filed by plaintiffs in this case, the Hammans subsequently obtained a developmental permit, and, in 1983, they applied to the Agency for a “supplemental permit to modify the developmental and operational plan,” proposing, inter alia, to increase the landfill height. The supplemental permit was granted by the Agency on March 25, 1983. In 1985, an operational permit was issued, and the property and developmental and operational permits were transferred to defendant Waste Management. This suit, as aforesaid, was instituted on September 24, 1987, a week before Waste Management proposed to begin its operations at the site. At the present time and pursuant to an order of the circuit court, the site is now in operation.

The complaint further alleges that sections 39(c) and (i) of the Act (Ill. Rev. Stat. 1987, ch. 111½, pars. 1039(c), (i)) were violated by the Agency’s issuance of permits in 1985 without approval by the Will County Board and without adequate financial assurances that the closure and post-closure plans would be implemented. The complaint alleges, inter alia, that Wolf Creek, a tributary of the Du Page River, flows through the site, serves more than 640 acres, and its course has been altered by Waste Management; that the area of the landfill site is in a flood plain; that a high water table and a shallow aquifer exist in the area; that within a mile of the site there are at least three subdivisions with at least 350 private wells sharing the aquifer; that the site as it originally existed contained soils too permeable to prevent the migration of environmentally harmful leachate; and that Waste Management’s closure and post-closure plans are inadequate because, given the site location, active dewatering of the trenches will be necessary for an indefinite period of time. Count I prays for an injunction restraining Waste Management from operating the waste disposal site until an adequate closure and post-closure plan and adequate financial assurances are furnished. Count II prays for a permanent injunction restraining Waste Management from operating the site on the ground that it poses a substantial danger to the safety of the environment and the public health of the citizens of Will County. Count III prays for a preliminary injunction pending the outcome of this suit, declarations that permits issued by the Agency for the development and operation of the site are void, and for a permanent injunction restraining Waste Management from operating the site until valid permits are obtained.

The trial court dismissed counts I and II on the ground that plaintiffs had failed to allege specific facts constituting a substantial and imminent danger to the environment. Count III was dismissed because the trial court found that the site was not a “new” regional pollution control facility as defined by section 3.32 (formerly, section 3x) of the Act (Ill. Rev. Stat. 1987, ch. 111½, par. 1003.32). The court further found that plaintiffs had failed to exhaust their administrative remedies under section 31(b) of the Act (Ill. Rev. Stat. 1987, ch. 111½, par. 1031(b)).

In support of their position that they are not relegated to the administrative remedy of section 31(b) of the Act, plaintiffs vigorously contend that section 43 (Ill. Rev. Stat. 1987, ch. 111½, par. 1043) applies. This section allows the State’s Attorney or Attorney General to bypass filing a complaint with the Illinois Pollution Control Board for statutory violations “[i]n circumstances of substantial danger to the environment or to the public health of persons.” (Ill. Rev. Stat. 1987, ch. 111½, par. 1043. See People ex rel. Scott v. Janson (1974), 57 Ill. 2d 451, 312 N.E.2d 620 (the availability of an administrative remedy does not prevent Attorney General from bringing civil action to enjoin public nuisances).) It follows, therefore, that if plaintiffs’ complaint alleges facts sufficient to demonstrate a substantial danger to the environment, then plaintiffs are statutorily entitled to proceed in the circuit court without prior resort to the Pollution Control Board.

Defendants argue that the allegations in plaintiffs’ complaint portend possible future malfunctions and calamities, but are unsupported by any specific medical or chemical facts. In Parsons v. Walker (1975), 28 Ill. App. 3d 517, 521, 328 N.E.2d 920, 924, the court set forth the general requirements for a valid complaint for injunctive relief:

“[T]he complaint [must] state essential facts showing the plaintiff’s cause of action [citation], and the facts alleged must establish that if the acts of the defendant are not enjoined, substantial injury will result to the plaintiff. [Citation.] It is not sufficient to allege injury or a mere apprehension or fear of injury, but rather the complaint must show that defendant has actually done or threatened to do the act sought to be enjoined and that [it] is wrongful or unauthorized if by a public official.”

We have reviewed Parsons and find that the allegations of environmental danger there are of a much more speculative nature than those in the case before us. In Parsons, plaintiffs alleged that the construction of a certain reservoir as part of a Federal flood control project would result in the flooding and destruction of a public park held in trust by the University of Illinois. In all other respects, the complaint, it would appear, contained conclusionary allegations of statutory, constitutional and public trust violations. Under the circumstances, the court ruled that plaintiffs’ complaint insofar as it sought to enjoin defendants’ cooperation with the project on environmental grounds was clearly premature. The count complaining of an alienation of the trust by the University Board of Trustees and seeking to enjoin their cooperation with the project was sustained.

Our reading of Parsons does not support defendants’ contention here that plaintiffs’ complaint must be dismissed for failure to allege the specific chemistry of the pollutants in the leachate produced by the waste disposal facility or the specific medical consequences of human, animal or vegetable ingestion of leachate migrating off the site. It is enough, we believe, to have alleged specific facts giving rise to a reasonable inference that if the operation is not restrained leachate will migrate off the site and pollute the water that feeds several hundred private wells in the area served by the same aquifer that surrounds the site. We do not construe the expression “substantial danger to the environment” to mean only proven damage in the area affected. The term “danger” imports a threatened “risk” or “exposure” to harm — necessarily an anticipated, rather than present, injury. Plaintiffs here have alleged specific facts about the location of the site, its relation to water resources serving hundreds of nearby residents, and the inadequacy of Waste Management’s proposals for preventing leachate migration or harmful pollution to the environment. Whether leachate will reach other properties and will be environmentally harmful is a matter about which experts may debate at trial. We are not prepared to hold that plaintiffs’ failure to specify in greater detail the chemical and medical consequences of leachate migration renders their complaint too speculative or a premature pursuit of the extraordinary relief of injunction.

With respect to defendant Agency, we acknowledge that the decision in M.I.G. Investments, Inc. v. EPA (1988), 122 Ill. 2d 392, 523 N.E.2d 1, was released after the circuit court entered its order of dismissal in this case. In M.I.G. our supreme court determined that a vertical expansion of an existing pollution control facility expands its boundaries so as to constitute a “new” regional pollution control facility under section 3.32 (formerly 3x(2)) of the Act (Ill. Rev. Stat. 1987, ch. 111½, par. 1003.32). As a consequence, local governmental approval pursuant to sections 39(c) and 39.2 (Ill. Rev. Stat. 1987, ch. 111½, pars. 1039(c), 1039.2) is required before a supplemental permit to increase the vertical boundaries may be issued by the Agency. Because the decision concerns procedural, rather than substantive rights, the court’s holding applies in this case even though the permit here at issue was granted by the Agency in 1985.

Finally, we have reviewed the State’s arguments in support of its motion for leave to file a third amended complaint. The proposed amended complaint advances several alternative theories for relief, all of which will be resolved upon reinstatement of plaintiffs’ second amended complaint. We find that the trial court did not abuse its discretion in denying the State’s post-judgment motion insofar as it sought leave to amend.

In sum, we hold that plaintiffs’ second amended complaint was improperly dismissed and that plaintiffs properly brought their complaint under section 43 and were not required to pursue their administrative remedy pursuant to section 31(b) of the Act. Plaintiffs’ second amended complaint is hereby reinstated. We affirm the circuit court’s denial of the State’s motion for leave to file a third amended complaint.

Affirmed in part; reversed in part and remanded.

HEIPLE and STOUDER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLARENCE DACE, Defendant-Appellant.
    Third District
    No. 3—88—0439
    Opinion filed May 2, 1989.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.
    Edward F. Masters, State’s Attorney, of Joliet (Walter P. Hehner, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant Clarence Dace appeals his conviction for criminal sexual assault. The defendant, who represented himself at trial, was convicted by a jury in May 1988. At the sentencing hearing the defendant, who was then represented by appointed counsel, was sentenced to a term of 15 years’ imprisonment.

On appeal the defendant contends: (1) his right to confrontation was violated where he was precluded from questioning inmate witnesses about the charges they faced; (2) he was denied a fair trial because two uniformed guards were in the courtroom during his trial; (3) the trial court erred in admitting third-party testimony of prior hearsay statements made by the complainant; and (4) he was denied a fair trial due to prosecutorial misconduct during closing arguments.

The record reveals that the victim, Allan Schwartz, was in custody in the Will County jail during the early morning hours of January 27, 1988. At approximately 1 a.m., Schwartz was accused of cheating at cards and beaten by two other inmates. According to Schwartz, he was forced to submit to anal intercourse with the defendant and another inmate.

The prosecution’s case included the testimony of two Will County inmates and Will County guard Michael Robinson. In support of his defense, the defendant presented the testimony of three Will County inmates and treating physician Dr. Joseph Stewart.

The jury found the defendant guilty of criminal sexual assault, and at the defendant’s request, the public defender was appointed to handle post-trial motion and sentencing. The defendant was subsequently sentenced to 15 years’ imprisonment.

The defendant first argues his right to confrontation was violated when he was precluded from questioning inmate witnesses about the charges they faced.

Before the jury was selected, the State filed a motion in limine seeking to bar the defendant from asking the inmate witnesses why they were in the Will County jail. The trial court granted the State’s motion, saying:

“I think he can inquire as to whether or not any offers were made to them, to procure their testifying in this case to show the witness bias or prejudice. That can be done Mr. Dace, without going into reasons why the [witnesses] are downstairs in the county Jail.
I don’t want to get involved in the history of why those people are down there.”

The State’s first response to the defendant’s contention is that the issue was waived because the defendant failed to include an objection in his post-trial motion. The record reveals the defendant did object to the trial court’s ruling during the motion in limine hearing. While the issue was not raised in a post-trial motion, we consider the issue under the plain error doctrine (107 Ill. 2d R. 615(a)) because it appears that the failure to allow cross-examination on this matter prejudiced the defendant. People v. Paisley (1986), 149 Ill. App. 3d 556, 500 N.E.2d 96.

In People v. Triplett, the court held that the defendant was denied his right to confront witness against him when the circuit court precluded cross-examination of the State’s juvenile occurrence witness to show that the witness was in custody at the time he was testifying against the defendant. (People v. Triplett (1985), 108 Ill. 2d 463, 485 N.E.2d 9.) The Triplett court felt a pending charge against a witness may indicate that the witness’ testimony is influenced by interest, bias or a motive to falsify.

In the present case the trial court allowed the defendant to ask the inmate witnesses whether they had been granted or promised leniency on their pending charge. However, the defendant was not permitted to cross-examine the witnesses as to the reasons why the witnesses were incarcerated.

The State argues that because the defendant was allowed to cross-examine the witnesses about any promise of leniency, defendant could have established the existence of a pending charge.. Contrary to the view of the State, bias impeachment cannot be confined to formal offers of leniency from the prosecution. The United States Supreme Court has held that revealing a witness’ possible biases, prejudices or ulterior motives was “ a proper and important function of the constitutionally protected right of cross-examination.” (Davis v. Alaska (1974), 415 U.S. 308, 316, 39 L. Ed. 2d 347, 354, 94 S. Ct. 1105, 1110.) Consequently, we hold that the trial court’s order in limine improperly restricted the defendant’s cross-examination of important witnesses against him, resulting in prejudice of sufficient magnitude to require the defendant be granted a new trial.

Having already found that the defendant is entitled to a new trial, this court will, in the interest of judicial economy, address the remaining issue which is likely to arise on retrial.

The issue to be addressed is whether the defendant was prejudiced by the admission of statements made by the complainant to Will County deputy Michael Robinson.

At trial Officer Robinson testified that on January 27, 1988, Allan Schwartz came to him and told him he wanted to be moved to another housing unit. Robinson stated that Schwartz told him a couple of guys tried to molest him.

Robinson then removed Schwartz from his cell and brought him to an interview room. Schwartz then related to Robinson the details of what had happened to him. According to Robinson, Schwartz could not name the inmates who assaulted him, so Robinson took him to a board containing pictures of all the inmates. Schwartz pointed to the three men he claims assaulted him, one of them being Clarence Dace. Robinson was then asked if the person whom Schwartz identified was present in the courtroom. Robinson stated that he was and proceeded to point to the defendant.

The Illinois Supreme Court has sanctioned the admission of identification testimony, relying upon the availability of the declarant for cross-examination. (People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223.) In Rogers, the court held that testimony of a third person to an out-of-court identification by another witness is admissible if the witness also testifies and is subject to cross-examination.

Robinson’s testimony in the instant case was received by the court after the identifying witness, Schwartz, had testified and was subject to cross-examination. The effect of Robinson’s testimony was to corroborate Schwartz’ identification of the defendant. Consequently, this testimony was properly received under the principles set forth in Rogers.

Finally, it is necessary for this court to acknowledge the defendant’s filing of a pro se supplemental brief. The defendant argues his conviction should be reversed because of the failure of the jury to have any black members on it. In the view we have taken of this case, it is unnecessary to consider or resolve any issue regarding the makeup of the jury.

For the foregoing reasons, the judgment of the circuit court of Will County is reversed and remanded for a new trial with directions to proceed in accordance with the views expressed herein.

Reversed and remanded.

BARRY and HEIPLE, JJ., concur.


author: JUSTICE LORENZ JUSTICE PINCHAM,

text:
    EDWIN TURNER, Plaintiff-Appellant, v. RUSH MEDICAL COLLEGE et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—87—2319
    Opinion filed March 31, 1989.

      PINCHAM, J., dissenting.
    Doyle & Ryan, Ltd., of Chicago (James M. Harman, of counsel), for appellant.
    George F. Galland, Jr., of Davis, Barnhill & Galland, of Chicago, for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff appealed from the dismissal of his cause of action under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615) for failure to state a cause of action. We address the issue of whether the allegations of plaintiff’s amended complaint are legally sufficient to establish that defendants owed plaintiff a duty of care. For the following reasons, we affirm.

Plaintiff’s amended complaint for negligence against defendants alleged the following facts. Plaintiff, a 23-year-old second-year medical student at Rush Medical College (Rush), was enrolled in a clinical pathology class taught by Meryl H. Haber. Haber was a medical doctor employed as a professor by Rush, a certified medical school. On May 2, 1985, Haber “directed” plaintiff to run one mile within eight minutes as a “laboratory experiment” for the class. Prior to and after the run, plaintiff was to take a urine sample and then record any changes in the electrolyte levels of the samples. The experiment was not a formal requirement to obtain a medical degree. Prior to the experiment, plaintiff had not been involved in regular physical exercise since he was in high school, had never run a timed-mile run; and was not in physical condition to participate in a timed-mile run.

Plaintiff alleged defendants had a duty to exercise reasonable care for his safety which was breached when defendants required him to run the mile but did not learn what forms of physical exercise he was involved in, did not learn whether he ever participated in a timed-mile run, did not conduct a physical examination of him to check respiration and blood pressure, did not have medical personnel present during and after the run, did not have oxygen and water available during and after the run, and did not properly supervise him during the run.

Plaintiff alleged as a direct and proximate result of defendants’ breach of duty he suffered a “total collapse in his body mechanisms” which involved numerous medical problems, including “extreme exertional rhabdomyolysis,” requiring hospitalization for 21k months at a cost of over $250,000.

Defendants moved to dismiss the amended complaint pursuant to section 2 — 615 and argued, among other issues, that plaintiff did not plead sufficient facts to establish defendants owed a legal duty to take the precautions plaintiff alleged were required.

The trial court dismissed plaintiff’s cause of action with prejudice finding that the allegations did not give rise to a duty on defendants’ part. Plaintiff filed a timely notice of appeal.

Opinion

In reviewing the dismissal of an action under section 2— 615, the court must interpret the allegations of the complaint in a light most favorable to the plaintiff, and if it appears that no set of facts from the pleadings could be proven which would entitle plaintiff to relief, the dismissal must be affirmed. (Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, 522 N.E.2d 215.) A legally sufficient complaint for negligence must plead facts that establish the existence of a duty owed by defendant to plaintiff, breach of the duty, and an injury proximately caused by the breach. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387.) Whether defendant and plaintiff stood in such a relationship to one another that the law imposed a duty of reasonable conduct on defendant toward plaintiff is a question of law for the court to determine. Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 520 N.E.2d 37.

In analyzing whether defendants owed plaintiff a duty in this case, we are guided by the following pronouncement by the Illinois Supreme Court:

“[I]n determining whether there was a legal duty, the occurrence involved must not have been simply foreseeable, *** it must have been reasonably foreseeable. The creation of a legal duty requires more than a mere possibility of occurrence. *** ‘No man can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.’ ” (Cunis v. Brennan (1974), 56 Ill. 2d 372, 375-76, 308 N.E.2d 617, 619, quoting W. Prosser, Torts §31, at 146 (4th ed. 1971).)

Additionally, reasonable foreseeability must be judged as what the reasonably prudent person would have foreseen as likely to happen at the time of defendants’ conduct, not what may appear with hindsight. Cunis, 56 Ill. 2d at 376, 308 N.E.2d at 619.

In the present case, we must consider what would have been apparent to a reasonably prudent person at the time defendants required plaintiff to run a mile. In his complaint, plaintiff did not allege that defendants knew or should have known he was not in physical condition to run, he was not involved in regular physical exercise, or he would suffer an injury. Also, plaintiff did not allege that defendants knew or should have known of a medical condition which would make him more likely to suffer an injury from physical exertion. From the allegations of plaintiff’s complaint, there is nothing to indicate that defendants saw plaintiff as anything other than a healthy 23-year-old man. Additionally, there are no allegations that the surrounding conditions, such as heat or humidity of the day, would suggest a need for caution. We believe that at the time of defendants’ conduct, a reasonably prudent person would not have foreseen plaintiff’s injury.

Although reasonable foreseeability of harm is the primary concern in determining whether a duty exists, the court must also consider the likelihood of injury, the magnitude of the burden to guard against the injury, and the consequence of placing the burden on defendant. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387.) The determination of whether a duty exists reflects public policy and social requirements. Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 462 N.E.2d 502.

The trial court relied, in part, on public policy considerations when it determined that the allegations of plaintiff’s complaint did not give rise to a duty on defendants’ part. Plaintiff urges that this court find the existence of a duty and not be concerned with the application of this case to future cases. Plaintiff ignores that the determination of whether a legal duty exists is dependent, in part, on public policy, and we are unable to confine our analysis in the manner plaintiff suggests. If we were to hold that a duty exists under the facts alleged in plaintiff’s complaint, we can foresee countless situations where our holding could potentially be applicable. Almost any physical activity that a school or teacher required could trigger a duty to provide medical precautions. The imposition of a duty in such cases would impose an expensive financial burden on schools which we believe would violate public policy.

For the foregoing reasons, the judgment of the trial court in dismissing plaintiff’s cause of action for negligence is affirmed.

Judgment affirmed.

MURRAY, P.J., concurs.

JUSTICE PINCHAM,

dissenting:

I dissent. Unlike the majority, I do not “believe that at the time of defendants’ conduct, a reasonably prudent person would not have foreseen plaintiff’s injury.” (182 Ill. App. 3d at 451-52.) Nor do I agree with the majority’s affirmance of the trial court’s dismissal of plaintiff’s complaint on the majority’s stated public policy ground. I am of the opinion that plaintiff’s first amended complaint alleged a cause of action against defendants and that the trial court erred in dismissing it. Reversal is therefore required.

The allegations of the plaintiff’s first amended complaint, the complaint, present facts on which reasonable men might differ on whether defendants owed plaintiff a duty. The trial court therefore erred in granting the defendants’ motion to dismiss plaintiff’s complaint.

Plaintiff’s complaint alleged as follows:

“1. On May 2, 1985, the defendant, RUSH MEDICAL COLLEGE, was a certified medical school providing a curriculum in medicine and as such, had in its employ various individuals who would teach medical students the required course of curriculum leading to a medical degree.
2. On May 2, 1985, the defendant, MERYL H. HABER, was a medical doctor employed by the defendant, RUSH MEDICAL COLLEGE, as a professor of clinical pathology who taught medical students said course at the RUSH MEDICAL COLLEGE.
3. At all times mentioned here, the defendant, MERYL H. HABER, was acting as the agent, servant or employee of the defendant, RUSH MEDICAL COLLEGE.
4. On May 2, 1985, the plaintiff, EDWIN TURNER, was twenty-three years of age and was a second year medical student at RUSH MEDICAL COLLEGE and at said time was a student in the course of clinical pathology and had as his teacher, the defendant, MERYL H. HABER.
5. On May 2, 1985, the plaintiff, EDWIN TURNER, was directed by the defendant, MERYL H. HABER, to participate in a timed mile run within eight minutes as a laboratory experiment in the course in clinical pathology in that the defendant, MERYL H. HABER, was going to have the plaintiff take a urine sample after the timed mile run in order to record the changes in various electrolyte levels in the urine.
6. That at no time prior to the timed mile run did the defendants inquire as to the physical condition of the plaintiff or inquire into what forms of exercise he practiced or conduct any physical examination of the plaintiff.
7. That the plaintiff, EDWIN TURNER, as a twenty-three year old, second year medical student, was not involved in any regular physical exercise and had not performed any exercises since being a high school student and furthermore, had never participated in a mile run, and as such, was not in any physical condition to participate in a timed mile run.
8. That the timed mile run required by DR. MERYL H. HABER was not part of any State of Illinois requirement for the degree of medical doctor nor was it a formal requirement of the RUSH MEDICAL COLLEGE course of curriculum leading to a medical degree.
9. That the defendants, RUSH MEDICAL COLLEGE and MERYL H. HABER, while having the plaintiff under their supervision and control and while directing him to participate in a timed mile run as part of a laboratory experiment had a duty to exercise reasonable care for the safety of the plaintiff.
10. That notwithstanding said duty the defendants, RUSH MEDICAL COLLEGE and MERYL H. HABER, were then and there guilty of one or more of the following negligent acts or omissions:
a) Required the plaintiff to participate in an experiment by virtue of running in a timed mile run without learning what forms of physical exercise the plaintiff did and specifically, whether the plaintiff had ever run in a timed mile run;
b) Required the plaintiff to participate in an experiment by virtue of running a timed mile run without conducting a physical examination of the plaintiff to check on his respiration and blood pressure;
c) Required the plaintiff to participate in an experiment by running in a timed mile run without having medical personnel present to assist the plaintiff during and after the timed mile run;
d) Required the plaintiff to participate in an experiment by virtue of running in a timed mile without providing for oxygen being available to the plaintiff if he needed the same during and after the timed mile run;
e) Required the plaintiff to participate in an experiment by running in a timed mile run without providing for water to be available to the plaintiff if needed during and after the timed mile run;
f) Required the plaintiff to participate in an experiment by running in a timed mile run without properly supervising the plaintiff by failing to provide the foregoing;
11. That as a direct and proximate result of the defendants, directing the plaintiff to participate in an experiment by running in a timed mile run without doing the foregoing the plaintiff did become dehydrated and due to the lack of oxygen go into respiratory distress and due to delay in medical treatment did suffer a total collapse in his body mechanisms resulting in serious and permanent injuries including extreme exertional rhabdomyolysis, profound lactic acidosis, disseminated intravascular coagulation, acute tubular necrosis requiring dialysis, enterobacter peritonitis, right partial cerebral hemorrhage, diffuse gastrointestinal hemorrhage, adult respiratory distress syndrome with intubation, ventricular tachycardia with prolonged sinus tachycardia, prolonged sinus pause requiring pacemaker, profound hypocalcemia with mild rebound hypercalcemia and bilateral calf compartment syndrome with residual nerve palsy resulting in hospitalization from May 2, 1985 through July 21, 1985 and incurring medical bills in excess of Two Hundred and Fifty Thousand ($250,000.00) Dollars and he was thereby injured internally, externally and Otherwise, both temporarily and permanently ***.”

The trial court granted the defendants’ motion to dismiss plaintiff’s complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615) and dismissed plaintiff’s complaint on the ground that the complaint did not allege facts which established that the defendants owed plaintiff a duty. The trial court ruled that a lack of foreseeability of harm and policy considerations required dismissal of plaintiff’s complaint as a matter of law. Plaintiff urges on this appeal that his complaint adequately alleged that defendants owed him a duty, that the complaint stated a cause of action against defendants, and that the trial court therefore erred in dismissing his complaint.

In ruling on defendants’ motion to dismiss plaintiff’s complaint for failure to state a cause of action and in reviewing the trial court’s dismissal order on that ground, all reasonable inferences from the pleadings must be drawn in plaintiff’s favor. (Cook v. Askew (1975), 34 Ill. App. 3d 1055, 341 N.E.2d 13.) Moreover, on a motion to dismiss a complaint on insufficiency grounds, all facts properly pleaded must be taken as true. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179.) Negligence, due care and proximate cause are generally issues of fact for the jury’s determination. (Thomas v. Northington (1985), 134 Ill. App. 3d 141, 479 N.E.2d 988; Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74.) Negligence, due care and proximate cause become questions of law only when “there can be no difference in the judgment of reasonable men as to the inferences to be drawn from them.” (Thomas v. Northington (1985), 134 Ill. App. 3d 141, 146-47.) Questions on which reasonable men may arrive at different results should not be determined as a matter of law, but, rather, should remain within the jury’s province for determination. Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74.

The myriad of cases which decide whether a defendant owed plaintiff a duty agree that a determination of the existence of such a duty must be made on a case-by-case basis. Johnson v. Village of Libertyville (1986), 146 Ill. App. 3d 834; Dunkin v. Rzonca (1985), 133 Ill. App. 3d 184, 478 N.E.2d 603; Pelham v. Griesheimer (1982), 92 Ill. 2d 13; Nelson v. Commonwealth Edison Co. (1984), 124 Ill. App. 3d 655, 465 N.E.2d 513; Davis v. Weiskoph (1982), 108 Ill. App. 3d 505, 439 N.E.2d 60; Curtis v. County of Cook (1983), 98 Ill. 2d 158.

In the instant complaint plaintiff alleged that the defendants owed a duty to plaintiff to exercise reasonable care for plaintiff’s safety while plaintiff was under the defendants’ supervision and control. The complaint alleged that plaintiff was a second-year medical student at the defendant medical school and that as such, defendants required plaintiff to run an eight-minute mile laboratory experiment for defendants’ clinical pathology course. Plaintiff alleged that defendants sought and obtained no information regarding plaintiff’s physical ability to run an eight-minute mile or the detrimental physical impact running an eight-minute mile would have on plaintiff. Plaintiff asserted that had defendants properly sought and obtained such information of plaintiff’s physical condition, defendants would have learned that plaintiff was not in the physical condition to participate in an eight-minute mile run and that to require plaintiff to do so would have serious detrimental physical repercussions on plaintiff and that in fact it did have such effects. Nevertheless, plaintiff contended, the defendants required plaintiff to participate in the eight-minute mile run laboratory experiment without providing medical personnel to assist plaintiff or to render medical aid to plaintiff should the need therefor occur during or after the run, and without providing oxygen or water to plaintiff during and after the run, which caused plaintiff to become dehydrated and relapse into respiratory distress, resulting in plaintiff’s hospitalization for over 2V2 months, at a cost aggregating over a quarter of a million dollars. Plaintiff contended that these foregoing factual allegations showed that defendants owed plaintiff a duty to exercise reasonable care for plaintiff’s safety and that defendants violated said duty.

Cunis v. Brennan (1974), 56 Ill. 2d 372, 375-76, sets forth the criteria for a judicial determination of the existence of a duty, as follows:

“[I]n determining whether there was a legal duty, the occurrence involved must not have been simply foreseeable *** it must have been reasonably foreseeable. The creation of a legal duty requires more than a mere possibility of occurrence. *** ‘No man can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.’ ” (Emphasis added.)

Regarding the “reasonably foreseeable” criteria, it is practically a matter of common knowledge that running an eight-minute mile may cause injury, particularly under hot and humid weather conditions, over an unfavorable terrain and when the runner is not in good physical condition. An injury from such an undertaking is certainly “reasonably foreseeable.” At the very least, it is clear from the facts alleged by plaintiff that reasonable men may differ on whether a student’s running an eight-minute mile could or might be injurious to the student was reasonably foreseeable. A court cannot unequivocally and validly conclude, as a matter of law, as does the majority, “that at the time of defendants’ conduct [requiring plaintiff to run a eight-minute mile], a reasonably prudent person would not have foreseen plaintiff’s injury.” (182 Ill. App. 3d at 451-52.) Quite the contrary! But again, at the very least, reasonable men may differ on whether “a reasonably prudent person would not have foreseen plaintiff’s injury.” Although reasonable men may or may not differ on a reasonably prudent person’s foreseeability of the extent or the degree of the injury, reasonable men certainly may differ on whether any injury was foreseeable. The allegations of plaintiff’s complaint, when viewed favorably to the plaintiff and with all reasonable inferences which necessarily follow therefrom, present facts on which reasonable men might differ, and by reason thereof, the duty issue in the case was properly within the fact-finding function of the jury. (Thomas v. Northington (1985), 134 Ill. App. 3d 141, 479 N.E.2d 988; Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74.) The majority’s conclusion, that there could be no difference in the judgment of reasonable men on the facts alleged in plaintiff’s complaint that the injury was not reasonably foreseeable, is clearly an erroneous conclusion.

The majority admits that the allegations of plaintiff’s complaint must be interpreted in a light most favorable to the plaintiff. The majority additionally admits that only “if it appears that no set of facts from the pleadings could be proven which would entitle plaintiff to relief, the dismissal must be affirmed.” (182 Ill. App. 3d at 450-51.) Yet, the majority thereafter strongly suggests that there were facts, which if alleged, and could have been alleged, would have entitled plaintiff to relief, when the majority states that plaintiff’s complaint did not allege that (1) “defendants knew or should have known plaintiff was not in physical condition to run”; (2) plaintiff “was involved in regular physical exercise”; (3) plaintiff “would suffer an injury”; (4) “of a medical condition which would make him more likely to suffer an injury from physical exertion”; and (5) “the surrounding conditions, such as heat or humidity of the day, would suggest a need for caution.” (182 Ill. App. 3d at 451.) A reading of the allegations of plaintiff’s complaint, in a light most favorable to plaintiff, with all the reasonable inferences to be drawn therefrom, establishes that plaintiff’s complaint adequately alleged and/or reasonably inferred the foregoing purported deficiencies on which the majority relies. If it did not, plaintiff should have been given further opportunity to have so alleged. It certainly does not appear from plaintiff’s complaint that no facts could be alleged or proven which would entitle plaintiff to relief. The trial court therefore erred in dismissing plaintiff’s complaint.

The trial court in dismissing plaintiff’s complaint, and the majority in affirming the trial court’s dismissal, have imposed their own judgment when reasonable minds may well differ on plaintiff's pleaded facts. This unwarranted judicial usurpation was adversely commented upon in Morrison v. Forest Preserve District (1987), 155 Ill. App. 3d 687, 690, 508 N.E.2d 312, 314, as follows:

“Once again, the majority has usurped the fact-finding function normally left to the jury and has instead determined that this is the proper instance in which to ‘toughen the public’s psyche.’ ”

It is logically unimaginable that where a 23-year-old medical student is required by his medical school professors to run an eight-minute mile as a part of a class experiment in clinical pathology, that reasonable minds could not differ on whether an injury from such a run could be reasonably foreseen, thus requiring a duty by the professors to exercise reasonable care for the safety of the student in running the eight-minute mile. The trial court erred in dismissing plaintiff’s complaint on the ground that it did not allege a duty owed plaintiff by defendants.

The trial court granted defendants’ motion to dismiss not only on the erroneous ground that plaintiff’s injuries were not reasonably foreseeable, but also on the likewise erroneous ground that public policy considerations required dismissal of plaintiff’s complaint. The majority mistakenly affirms on this ground as well.

The court discussed the policy basis of a duty in Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1047, 462 N.E.2d 502, in which plaintiff was injured when a car backed out of defendant’s tavern parking lot onto the highway and struck the automobile in which plaintiff was a passenger. The court stated that “duty in a negligence case is a matter of policy as well as foreseeability of harm so that in many cases the determination of duty is refined to: The existence of a legal duty is not dependent on the factor of foreseeability alone, but includes consideration of public policy and social requirements.” (122 Ill. App. 3d at 1047, 462 N.E.2d at 502.) The Zimmermann court stated that the policy basis of duty is “necessarily a nebulous and ill-defined area of the law. It is a reflection of the needs, the wishes and the tolerance of society as determined by the court as it faces the duty issue,” and:

“Professor Leon Green in The Duty Problem in Negligence Cases, 28 Colum. L. Rev. 1014, 1034-35 (1928), suggests the following as the factors that underlie the policy determinants of duty:
‘The following are believed to be the factors of most significance in influencing the determination of duties and through them the limits of the protection afforded by law. There are doubtless others:
1. The administrative factor.
2. The ethical or moral factor.
3. The economic factor.
4. The prophylactic factor.
5. The justice factor.
Each of these must be satisfied somewhat in every acceptable decision. No judgment can long prove acceptable which develops very great pressure at any one of these points. No one can be overstressed, though now one and then the other will seem to be dominant.’ ” Zimmermann, 122 Ill. App. 3d at 1052.

The majority in the case at bar concludes, which I do not agree are or should be controlling, that “If we were to hold that a duty exists under the facts alleged in plaintiff’s complaint, we can foresee countless situations where our holding could potentially be applicable. Almost any physical activity that a school or teacher required could trigger a duty to provide medical precautions. The imposition of a duty in such cases would impose an expensive financial burden on schools which we believe would violate public policy.” 182 Ill. App. 3d at 452.

Plaintiff’s complaint alleged a specific set of facts which cannot be construed into something they are not. Plaintiff’s theory and cause of action are confined to the facts plaintiff alleged. What the trial court and the majority ignore is that the defendants used plaintiff in the eight-minute mile run as an experiment in a clinical pathology class. Plaintiff’s complaint does not involve a student engaged in an exercise program, physical education class, or intramural or interscholastic athletics events. Instead, plaintiff’s complaint is confined to plaintiff being used in a medical school class experiment at the direction of the defendant, plaintiff’s teacher. Under these facts defendants should have a duty to bear the cost of taking the necessary precautions to prevent plaintiff’s injury and to properly suffer the consequences for failure to have done so. A duty of reasonable care under the specific facts pleaded in plaintiff’s complaint imposes no undesired or undue social administrative, ethical, moral or economic factor or burden on defendants or on society.

There is nothing unique, new or unusual in the requirement that teachers, schools, and school personnel exercise reasonable care to students under their control and direction. Particularly, schools and faculties have a duty to exercise reasonable care in supervising track and field events (Marques v. Riverside Military Academy (1952), 87 Ga. 370, 73 S.E.2d 574), and a duty to provide medical care when needed (Howe v. Board of Education (1971), 312 N.Y.S.2d 508; Mogabgab v. Orleans Parish School Board (La. App. 1970), 239 So. 456). Schools have a duty to furnish proper equipment to prevent student injuries. Lynch v. Board of Education (1980), 82 Ill. 2d 415; Gerrity v. Beatty (1978), 71 Ill. 2d 47.

In Lynch, following Gerrity, the supreme court concluded that ordinary negligence was the criterion in determining that the school district was negligent in failing to provide proper football gear, a helmet, to the injured student. In rejecting the school district’s claim of non-liability, the court held:

“[T]he inquiry need only be whether the jury was justified in finding the defendant school district negligent in failing to provide effective equipment to the student. The defendant argues that it cannot be liable, because the game was not authorized, and because it did not furnish any equipment, so it could not have furnished defective equipment. We have previously decided that the teachers were acting with apparent authority; thus, whether the game was authorized is not material. We also do not think that, because the defendant did not furnish any equipment to the students, it is absolved from liability for failing to provide effective equipment. Instead, we think a school district has an affirmative duty, where students are engaging in school activities, where they are extracurricular, or formally authorized as part of the school program, to furnish equipment to prevent serious injuries. At the least, a school district should furnish helmets and face guards for a game such as football, where head injuries are common and severe. Accordingly, we think the instant school district was negligent for failing to provide, at the least, helmets and face guards to the students. It is reasonably clear that the manifest weight of the evidence established negligence on the part of the defendant because it did not furnish any protective head gear or face gear to the students although it knew or should have known through its agents that an injury was foreseeable. Moreover, the failure to provide such equipment was a proximate cause of the plaintiff’s injury.” (Emphasis added.) 82 Ill. 2d at 434-35.

In the case at bar, plaintiff’s complaint alleged that the defendants negligently failed to properly provide plaintiff oxygen, water and medical assistance, all of which were required under Lynch.

For the foregoing reasons, it is my opinion that the trial court erred in dismissing plaintiff’s complaint on the ground that it failed to allege facts which imposed a duty on defendants and because of public policy. The trial court’s dismissal order should be reversed. Accordingly, I dissent.


author: JUSTICE LUND

text:
    FERNE KILPATRICK et al., Plaintiffs-Appellants, v. FIRST CHURCH OF THE NAZARENE, Defendant-Appellee (James Walker, Appellant).
    Fourth District
    No. 4—88—0072
    Opinion filed March 23, 1989.
    Modified on denial of rehearing June 2, 1989.

      James Walker, Ltd., of Bloomington, for appellants.
    Heyl, Royster, Voelker & Allen, of Peoria (Robert V. Dewey and Karen L. Kendall, of counsel), for appellee.
   JUSTICE LUND

delivered the opinion of the court:

On January 11, 1985, in the circuit court of Woodford County, plaintiffs Feme and Raymond Kilpatrick filed a personal injury complaint against defendant First Church of the Nazarene. On February 24, 1987, after six days of trial and upon completion of the evidentiary phase of the proceeding, the court granted defendant’s motion for a mistrial based on the conduct of plaintiffs’ counsel, James Walker. On December 16, 1987, the court entered judgment for defendant and against plaintiffs in the amount of $228 for costs incurred with the deposition and trial testimony of defense counsel: $76 for deposing defendant’s counsel and $152 relating to the offer of proof. Judgment was also entered against Walker and for defendant in the amount of $7,120.90 for attorney fees and costs incurred in the mistrial. Plaintiffs and Walker appeal the imposition of the judgments.

We first address the propriety of entering judgment against attorney Walker for defendant’s fees and costs. This award was based upon the trial court’s finding that Walker presented “improper and/or prejudicial information to the jury and otherwise into the record.” As a result of Walker’s conduct, the trial court granted a mistrial.

Plaintiffs’ counsel is not fresh into the trenches of the practice of law and has, on several occasions, proved his considerable ability before this court. Nevertheless, in the instant case, Walker’s conduct indicated a conscious attempt to damage the trial proceedings. His conduct in the jury trial of referring to repairs made after the accident was a violation of court order. He made these comments prior to defense counsel’s remarks concerning repairs and, thus, it was not defense counsel who initially “opened the door” to post-accident repairs. Even after the trial court subsequently barred further reference to repairs, Walker continued to make blatant references to the repairs. In addition, Walker called as a witness an adjustor for defendant’s insurer and, despite the trial court’s admonitions, asked questions and received answers which would lead an average juror to believe the witness was representing an insurance company. Additionally, contemptuous conduct toward the trial judge occurred partially in front of the jury and was further justification for a mistrial.

At the close of all the evidence, defendant moved for a mistrial, alleging Walker’s repeated intentional violations of the court orders irreparably prejudiced defendant in the eyes of the jury. Plaintiffs also moved for a mistrial on other grounds. The court granted defendant’s motion. The trial court did not make a finding that Walker intentionally caused the mistrial.

It is clear that in the absence of statutory authority, or an agreement between the parties, a successful party to a lawsuit is not entitled to attorney fees or costs of litigation. (Ritter v. Ritter (1943), 381 Ill. 549, 553, 46 N.E.2d 41, 43; see also Meyer v. Marshall (1976), 62 Ill. 2d 435, 442, 343 N.E.2d 479, 483.) Walker refers us to In re Marriage of Spizzo (1988), 168 Ill. App. 3d 487, 492, 522 N.E.2d 808, 811, which states:

“It has also been held that causing a mistrial does not give rise to liability for attorney fees, absent an agreement between the parties or statutory authority.”

Two cases are cited as support. (Central Illinois Public Service Co. v. Westervelt (1976), 35 Ill. App. 3d 777, 782, 342 N.E.2d 463, 468, aff’d (1977), 67 Ill. 2d 207, 367 N.E.2d 661, cert. denied (1978), 434 U.S. 1070, 55 L. Ed. 2d 772, 98 S. Ct. 1252; Kerns v. Engelke (1979), 76 Ill. 2d 154, 166-67, 390 N.E.2d 859, 865.) However, the facts in those cases do not include findings of intentionally causing a mistrial. Westervelt involved a mistrial, but there was no indication of deliberate impropriety on the part of the attorneys involved. Kerns involved an award of attorney fees for an indemnity counterclaim. The award was struck down by the supreme court.

Harvey v. Carponelli (1983), 117 Ill. App. 3d 448, 453 N.E.2d 820, appeal denied (1983), 96 Ill. 2d 560, cert. denied (1984), 466 U.S. 951, 80 L. Ed. 2d 539, 104 S. Ct. 2153, is contrary to most opinions and involved a legal malpractice case. In Harvey, the court held deliberate and premeditated conduct resulting in a mistrial was sufficient justification for an award of attorney fees. In so holding, the court stated:

“[W]hen one’s wrongful conduct forces another into litigation with third parties, he is liable for all of the costs of that litigation including attorney fees. [Citation.]
*** We find that the award of attorney fees and costs merely compensated defendants for ordinary losses resulting from plaintiff’s conduct. (Sorenson [v. Fio Rito (1980), 90 Ill. App. 3d 368, 413 N.E.2d 47].)” (Harvey, 117 Ill. App. 3d at 454, 453 N.E.2d at 825.)

It should be noted the attorney fees awarded in Sorenson were to compensate for additional fees incurred as a result of the delinquent attorney’s failure to timely file certain estate matters. They did not relate to the attorney fees incurred in the malpractice proceedings.

Attorney Walker’s conduct cries out for a just response. However, before sustaining the trial court’s award of $7,120.90, a careful weighing of policy is involved. Courts should not constrain trial tactics with the fear that a mistake or vigorous advocacy, which results in a mistrial, could result in severe financial penalty. Conceivably, there are cases where it would be difficult to judge between mistaken tactics and deliberate and premeditated conduct. It, thus, can be argued that courts should never allow sanctions assessing attorney fees and trial costs when a mistrial takes place.

On the other hand, the trial courts must have power to control trial proceedings. We note the $7,120.90 award and the award in Harvey were not made under the contempt powers of the trial court. No argument has been made that Walker could not have been punished by fine or jail under the contempt powers. In fact, Walker was held in contempt because of one incident during the trial and was fined $450. It can be argued that these contempt powers are not sufficient to protect the judicial process, and should not be the exclusive remedy for attorney misconduct.

The reasons for refusing to award attorney fees to successful litigants are set forth in Ritter. In relevant part, the court in Ritter stated:

“The policy of the rule is obvious. If the wrongful conduct of a defendant causing the plaintiff to sue him would give rise to an independent tort and a separate cause of action, there would be no end to the litigation, for immediately upon the entry of judgment the plaintiff would start another action against the defendant for his attorney fees and expenses incurred in obtaining the preceding judgment. *** Under our jurisprudence the defendant may present any defense to such an action that he may have or that he may deem expedient, and in so doing he will not be subjecting himself to a second suit by the plaintiff based on the wrongful conduct of the defendant in causing the plaintiff to sue him or in defending the action. The rule is the same even though the wrongful conduct of the defendant is willful, intentional, malicious or fraudulent.” (Ritter, 381 Ill. at 555, 46 N.E.2d at 44.)

We note these policies do not apply equally to wrongful actions which are deliberate and premeditated, intended to cause a mistrial, and which disrupt the judicial process to the point where the trial court must declare a mistrial.

Considering the various factors involved, including the fact of ever-increasing litigation costs, the rule expressed in Harvey arguably has merit. However, the Ritter opinion clearly states awards of attorney fees and costs must rely upon statutory provisions. (See Daily v. Leigh (1954), 2 Ill. 2d 499, 502, 119 N.E.2d 204, 206.) The power to prescribe rules governing attorney conduct and to discipline attorneys for violating those rules rests solely with the Illinois Supreme Court. (People ex rel. Brazen v. Finley (1988), 119 Ill. 2d 485, 494, 519 N.E.2d 898, 902.) We conclude that Harvey should not be followed by this court, and the judgment for $7,120.90 against Walker must be vacated.

Plaintiffs next contest the imposition of the sanction for $76 for deposing defendant’s counsel, Kendall. They believe it is improper because the taking of the deposition was proper.

Defendant originally received an order pursuant to Supreme Court Rule 215 (107 Ill. 2d R. 215) to have the victim examined by a physician. This examination was set up on two separate days. After the first day, defendant notified plaintiffs that the other examination was cancelled. This apparently piqued the curiosity of plaintiffs’ counsel, who deposed the physician to ascertain the reasons for the cancellation. When he could give no reason, the deposition of counsel Kendall was demanded.

Defendant filed a motion to quash the deposition subpoena and a motion for sanctions, upon which the court reserved ruling. The deposition took place on October 16, with Kendall being represented by counsel. The sole purpose of the deposition was to determine the reason for the cancellation. Kendall explained that at the time the order for an examination was entered, she was unaware that the doctor selected for the examination was in partnership with the doctor who had previously seen the victim. When this was discovered, the second visit was cancelled. The court determined that the discovery sought in the deposition was not proper because it did not involve “matter relevant to the subject matter involved in the pending action,” and imposed the sanction.

Discovery is controlled by Rule 201, which states:

“[A] party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action ***.” (107 Ill. 2d R. 201(b)(1).)

This full disclosure is limited by section (b)(2) of Rule 201, which provides in part:

“Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney.” (107 Ill. 2d R. 201(b)(2).)

This is the work product exemption to discovery. The purpose of this exemption is to prevent complete invasion of files of counsel, and it is clear it would protect notes and memoranda actually prepared by counsel for use in trial. (Stimpert v. Abdnour (1962), 24 Ill. 2d 26, 31, 179 N.E.2d 602, 605.) However, as properly understood, this exemption does not protect material and relevant evidentiary facts from the process of discovery. Stimpert, 24 Ill. 2d at 31, 179 N.E.2d at 605.

In explaining the range and application of the exemption, our supreme court stated:

“In determining the scope of the exemption contemplated by this clause of the rule, attention must be focused upon the words ‘made in preparation for trial’. Although it may feasibly be said that all memoranda, reports or documents made by or for a party prior to the actual trial are ‘made in preparation for trial’, present-day concepts of discovery as envisaged by Stimpert, Krupp, and kindred cases, looking to the ultimate ascertainment of the truth and in many instances the realization of just settlements without the necessity of protracted litigation cannot countenance such a broad interpretation of Rule 19— 5(1). [Citation.] We believe that only those memoranda, reports or documents which reflect the employment of the attorney’s legal expertise, those ‘which reveal the shaping process by which the attorney has arranged the available evidence for use in trial as dictated by his training and experience,’ [citation] may properly be said to be ‘made in preparation for trial’ as contemplated by that language employed in Rule 19 — 5(1). Thus, memoranda made by counsel of his impression of a prospective witness, as distinguished from verbatim statements of such witness, trial briefs, documents revealing a particular marshalling of the evidentiary facts for presentment at the trial, and similar documents which reveal the attorney’s ‘mental processes’ in shaping his theory of his client’s cause, are documents ‘made in preparation for trial’ and exempt from discovery under Rule 19 — 5(1). Other material, not disclosing such conceptual data but containing relevant and material evidentiary details must, under our discovery rules, remain subject to the truth-seeking processes thereof.” Monier v. Chamberlain (1966), 35 Ill. 2d 351, 359-60, 221 N.E.2d 410, 416.

While the present case deals with a deposition rather than the discovery of documents, it is clear, since this exemption applies equally to depositions (107 Ill. 2d R. 206(c)(1)), that this analysis is applicable. It is also obvious that the reasons why defendant cancelled the doctor’s appointment are protected by this exemption. The decision to have an examination ordered is a decision made in preparation of trial by counsel based on his expertise and evaluation of the case. It is clear any reports from the examination would be discoverable, but that counsel could not be deposed concerning his reasons for asking for the examination. Similarly, counsel’s reasons for cancelling an examination are based on his expertise, and requiring counsel to disclose his reasons would reveal his mental processes which shape his conduct of the case. The reason for cancellation may be that counsel has discovered a weakness in the opponent’s case that makes the examination unnecessary; it may be that counsel has discovered he can successfully impeach his opponent’s medical testimony; or it may be that counsel has decided not to contest the injuries but rather focus on the alleged cause. In any case, the revelation of this would unfairly tip counsel’s hand and allow his opponent to take steps to combat his proposed trial strategy. In the present case, it turns out the reason for the cancellation is more mundane. However, that makes it no less protected work product and no less exempt from discovery.

Having determined the impropriety of the taking of the deposition, we need to address the imposition of the sanction. Rule 219 provides that if a party wilfully obtains or attempts to obtain information to which he is not entitled, or otherwise abuses the discovery process, the court may impose sanctions. (107 Ill. 2d R. 219(d).) These sanctions may include an order that the offending party or his counsel pay the other party’s attorney fees. (107 Ill. 2d R. 219(c).) Discovery is not a tactical game. (Williams v. A.E. Staley Manufacturing Co. (1981), 83 Ill. 2d 559, 566, 416 N.E.2d 252, 256.) It will not be effective unless trial courts unhesitatingly impose appropriate sanctions on those who use the process to impede or harass its opponents. (Williams, 83 Ill. 2d at 566, 416 N.E.2d at 256.) In the present case, the exemption from discovery of the sought after information is so readily apparent that we are led to the inescapable conclusion that plaintiffs wilfully chose to search out information to which they knew they were not entitled. The result was to harass their opponent and cause their opponent to incur increased expenses. The imposition of these increased attorney fees as a sanction is appropriate.

Plaintiffs attempt to characterize the case as involving the propriety of defendant's failure to fully comply with the Rule 215 order it received. However, this is not the question with which we are faced. The question we answer is whether the reasons for defense counsel’s not proceeding with the examination she requested are properly discoverable by deposition. As discussed above, they are not.

Plaintiffs next assert the imposition of the sanction for $152 relating to an offer of proof was incorrect. At the close of plaintiffs’ evidence, Walker indicated a desire to make an offer of proof which was allowed at the close of all the evidence. This offer of proof involved the testimony of counsel Kendall. She filed a motion in opposition to this request and volunteered to stipulate to submission of her deposition. Plaintiffs’ counsel told the court he had in mind the offer of proof he wished made, and it was not contained in the deposition. The court allowed the offer of proof to proceed but restricted it to areas not covered in the deposition. The offer took place and covered only those items contained in the deposition. Most questions were successfully objected to for that reason. It was during this time Walker was appropriately found in direct contempt.

Subsequently, defendant filed a motion for sanctions requesting plaintiffs be ordered to pay defendant’s increased attorney fees for the costs of having counsel present when Kendall testified. In granting the request, the court’s order provided:

“I have reviewed the trial transcript and in particular that portion of the transcript relating to the plaintiffs’ offer of proof by examination of opposing trial counsel ***. I am convinced that these efforts did not, and were unlikely to elicit any new facts relevant for admission into evidence in the cause. The same efforts were unlikely to preserve any legitimate Appellate review issue. It now seems clear that this was simply a tactic to exert pressure upon opposing trial counsel during the trial and therefore constitutes unjustified harassment even if the typical emotional heat of trial is considered.”

Plaintiffs maintain this sanction is improper since it was imposed solely because they exercised their right to an offer of proof. They rely on the general rule that a party has a right to make an offer of proof. (Fidelity & Casualty Co. v. Weise (1898), 80 Ill. App. 499, 513.) However, as the above language indicates, the sanctions were not imposed for making an offer of proof. Rather, the sanctions were imposed for using the offer of proof to unjustly harass opposing counsel.

In Harvey, discussed earlier in this opinion, the court declared that a counsel, whose wilful conduct serves no purpose in the truth-finding process and causes the other party to experience increased costs, could be held responsible for those costs, including attorney fees, as a sanction. Our present case is just such a situation. There was no purpose for Kendall to testify other than as the trial court indicated. The topic had already been covered in the deposition, which the trial court had already ruled covered material not relevant to this proceeding. Defendant offered to stipulate to entry of this deposition in place of the testimony. Plaintiffs refused the offer and suggested other ground would be covered. The offer then covered the same ground.

In Shelton v. American Motors Corp. (8th Cir. 1986), 805 F.2d 1323, the court addressed the difficulties of having counsel testify. While that case involved a deposition, it is illustrative of the general problem:

“The practice of forcing trial counsel to testify as a witness, however, has long been discouraged, see Hickman v. Taylor, 329 U.S. 495, 513, 67 S. Ct. 385, 394, 91 L. Ed. 451 (1947) *** and recognized as disrupting the adversarial nature of our judicial system [citation]. Taking the deposition of opposing counsel not only disrupts the adversarial system and lowers the standards of the profession, but it also adds to the already burdensome time and costs of litigation. *** Finally, the practice of deposing opposing counsel detracts from the quality of client representation. Counsel should be free to devote his or her time and efforts to preparing the client’s case without fear of being interrogated by his or her opponent. Moreover, the ‘chilling effect’ that such practice will have on the truthful communications from the client to the attorney is obvious.
* * *
*** The harassing practice of deposing opposing counsel (unless that counsel’s testimony is crucial and unique) appears to be an adversary trial tactic that does nothing for the administration of justice but rather prolongs and increases the cost of litigation, demeans the profession, and constitutes an abuse of the discovery process.” (Shelton, 805 F.2d at 1327-30.)

These similar difficulties occur with the trial testimony of counsel. It is for these reasons the courts have recognized that the trial courts may refuse to allow counsel be called as a witness. People v. Gendron (1968), 41 Ill. 2d 351, 358, 243 N.E.2d 208, 213, cert. denied (1969), 396 U.S. 889, 24 L. Ed. 2d 164, 90 S. Ct. 179.

It is apparent this offer of proof was not used in good faith, but rather as a weapon. The court imposed the sanction of the cost of having counsel appear and represent Kendall during her testimony against plaintiffs. If this sanction could be imposed, it should have been against Walker. However, for the reasons we vacated the $7,120.90 judgment (see Ritter, 381 Ill. 549, 46 N.E.2d 41; Meyer, 62 Ill. 2d 435, 343 N.E.2d 479; Daily, 2 Ill. 2d 499, 119 N.E.2d 204; Brazen, 119 Ill. 2d 485, 519 N.E.2d 898), we now vacate the $152 judgment.

This opinion does not condone Walker’s trial tactics. While the existing statutes and supreme court rules do not allow assessment of attorney expenses, the contempt powers of the trial court should be used to prevent conduct of the type evidenced in this cause.

We affirm the judgment against plaintiffs for $76, reverse and vacate the judgment against Walker for $7,120.90, and reverse and vacate the judgment against plaintiffs for $152.

Affirmed in part; reversed in part and vacated.

KNECHT and GREEN, JJ., concur.


author: JUSTICE KNECHT JUSTICE GREEN,

text:
    GEORGE JOSEPH DROBNEY, Adm’r of the Estate of Bridget Margaret Drobney, Deceased, Plaintiff-Appellant, v. FEDERAL SIGN AND SIGNAL CORPORATION, Defendant-Appellee.
    Fourth District
    No. 4—88—0687
    Opinion filed March 9, 1989.
    Modified on denial of rehearing June 6, 1989.

      GREEN, J., specially concurring.
    Rick Verticchio and Thomas J. Verticchio, both of Verticchio & Verticchio, of Gillespie, for appellant.
    Edward Szewczyk, of Donovan, Rose, Nester & Szewczyk, P.C., of Belleville, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

On July 13, 1985, three men in rural Macoupin County activated a red “police light” on their car, causing 16-year-old Bridget Drobney to stop. The men “arrested” Bridget and drove her to a nearby cornfield where they raped and killed her. (See People v. Hines (1988), 165 Ill. App. 3d 289, 518 N.E.2d 1362, appeal denied (1988), 121 Ill. 2d 577, 526 N.E.2d 835.) The light used by the men to stop Bridget was allegedly manufactured and distributed by defendant Federal Sign and Signal Corporation.

On June 22, 1988, plaintiff George Joseph Drobney, administrator of the estate of Bridget Drobney, filed a six-count second-amended complaint predicated on the theories of negligence, strict liability, and wilful and wanton misconduct. Plaintiff appeals from the order by the circuit court of Macoupin County granting defendant’s motion to dismiss the complaint. The propriety of that order is the only question for review.

The complaint as amended alleged the defendant corporation designs, manufactures and distributes a signal light known as the “fireball red light,” which is a 12-volt, red, oscillating and rotating light. On July 13, 1985, Daniel Hines, Robert Turner, and Michael Turner allegedly used defendant’s “fireball red light” to impersonate police officers and to stop, rape, and murder Bridget Drobney in rural Macoupin County.

Amended count I alleged negligent distribution of the “fireball red light” by defendant in an unlimited and unrestricted manner was the proximate cause of Bridget’s death. It alleged, in addition to the facts already set forth, defendant had a duty to sell, design, manufacture, and distribute the “fireball red light” to persons or firms that would use the light for legal purposes. Count I admitted lack of knowledge and an inability to determine how Hines and the Turners purchased or came into possession of the “fireball red light.” Count I further alleged defendant knew or should have known its red oscillating light could be used to facilitate criminal acts of rape and murder. Plaintiff alleged such lights have been used in Macoupin County and in other jurisdictions by individuals who, while impersonating police officers, committed rape and murder. Count I charged the foreseeability defendant’s product could be used illegally was evidenced by the alleged statement by an agent of defendant that he “hoped it was not *** [defendant’s] light” which was used as an instrument in the rape and murder of Bridget. Finally, count I alleged the failure by defendant to limit its sales to the general public enabled Hines and the Turners to come into possession of a “fireball red light.” As a direct and proximate result of such negligent sale and distribution, plaintiff alleged defendant caused the death of Bridget Drobney.

Count II was premised upon strict liability and alleged the fireball red light manufactured by defendant was unreasonably dangerous and defective in design. The light’s defective condition was alleged as its “red oscillating nature and ability to be used for the illegal purpose of impersonating police officers.” Count II further alleged the benefits of the “fireball red light” as designed are outweighed by the risk of danger inherent in that design. In addition, plaintiff alleged a safer alternate design could, for minimal consequence and cost to defendant, produce a product that does not oscillate and is not red in color. Finally, count II charged the sale of the defectively designed light by defendant was the proximate cause of Bridget’s death.

Counts III and IV reiterated the charges contained in counts I and II respectively and requested compensatory damages for medical and funeral expenses incurred by plaintiff as a result of Bridget’s death. Counts V and VI alleged wilful and wanton misconduct on the part of defendant; count V for defendant’s negligent distribution, and count VI for its defective design of the “fireball red light.”

On August 31, 1988, the trial court, having already dismissed two similar complaints filed by plaintiff in this case, granted defendant’s motion to dismiss the second-amended complaint for failure to state a cause of action. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615.

The test for the sufficiency of a complaint is whether it sets forth a valid claim as its avenue for recovery and whether it pleads facts sufficient to bring the claim within the legally recognized cause of action alleged. (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 430 N.E.2d 1005; Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 603(c), 2 — 612(b).) All well-pleaded facts must be taken as true, as well as all reasonable inferences which may be drawn therefrom. Morrow v. L.A. Goldschmidt Associates, Inc. (1984), 126 Ill. App. 3d 1089, 468 N.E.2d 414.

The elements of a simple common law negligence action are: “the existence of a duty on the part of the person charged to protect the complaining party from injury, a failure to perform or breach of that duty, and a consequent injury so connected with the failure to perform that such failure is the proximate cause of the injury.” (Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity (1987), 155 Ill. App. 3d 231, 234, 507 N.E.2d 1193, 1196.) The existence of a duty is a question of law to be decided by the court, while the factual question of proximate cause is largely one for the trier of fact. (Felty v. New Berlin Transit, Inc. (1978), 71 Ill. 2d 126, 374 N.E.2d 203; Powell v. Star Fireworks Manufacturing Co. (1987), 162 Ill. App. 3d 647, 515 N.E.2d 1280.) Foreseeability is a consideration under either analysis. Plaintiff argues defendant should have foreseen the negligent sale of its product could conceivably cause a criminal act to occur. To support this allegation, plaintiff cites prior cases where a “police light” was used to facilitate the crimes of rape and murder. See People v. Price (1968), 96 Ill. App. 2d 86, 238 N.E.2d 881; State v. Henry (La. 1983), 436 So. 2d 510.

Foreseeability of harm resulting from the negligence is the most significant element of proximate cause (Felty, 71 Ill. 2d 126, 374 N.E.2d 203), while foreseeability as it relates to duty “is a determinative consideration only where a particular occurrence is so extreme that, as a policy decision, it would be unwise to require defendant to guard against it.” (Nelson v. Commonwealth Edison Co. (1984), 124 Ill. App. 3d 655, 663, 465 N.E.2d 513, 519; cf. Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, 233; Powell, 162 Ill. App. 3d 647, 515 N.E.2d 1280.) In the cases where the facts invite varying inferences, the court should permit the jury to be the sole determiner of the foreseeability issue “including the foreseeability of the particular cause and effect of plaintiff’s injury, as a factual matter in its proximate cause determination.” (Nelson, 124 Ill. App. 3d at 663, 465 N.E.2d at 519.) Accordingly, we will not intrude on the province of the jury unless “the facts alleged in a complaint on their face demonstrate that the plaintiff would never be entitled to recover.” (Winnett v. Winnett (1974), 57 Ill. 2d 7, 13, 310 N.E.2d 1, 5.) On such facts, the complaint is properly dismissed as insufficient. See People ex rel. Fahner, 88 Ill. 2d at 308, 430 N.E.2d at 1009; Miller v. DeWitt (1967), 37 Ill. 2d 273, 226 N.E.2d 630; Louis v. Barenfanger (1966), 81 Ill. App. 2d 104, 226 N.E.2d 85, affd (1968), 39 Ill. 2d 445, 236 N.E.2d 724.

Here, plaintiff has failed to sufficiently allege in his complaint the negligent sale of the “fireball red light” caused the unfortunate act to occur. While we recognize plaintiff did not need to set forth evidence which may well have been derived from discovery subsequent to the filing of the complaint (Wait v. First Midwest Bank/Danville (1986), 142 Ill. App. 3d 703, 491 N.E.2d 795), it is critical plaintiff’s complaint admits a fact essential to his case cannot be discovered. Specifically, plaintiff “does not know and is unable to determine where Daniel Hines and/or Robert Turner and Michael Turner purchased or came into possession of the fireball red light.” Counts I and II charge defendant with negligent distribution of its product, yet plaintiff is unable to allege facts which would enable him to recover. It is possible the light was distributed in this instance to an individual who had the statutory right to possess such a light (see Ill. Rev. Stat. 1987, ch. 95½, par. 12 — 215), but somehow fell into the hands of criminals, either by theft or by happenstance.

Plaintiff’s counts I and II sounding in negligence simply cannot stand when plaintiff cannot, even after discovery, prove the negligent distribution of the light was the proximate cause of Bridget’s death and plaintiff’s resultant damages. Since the foregoing analysis supports the trial court’s dismissal of the complaint as to the cause of action in negligence, we need not determine whether defendant had a duty to sell only to lawful users of its product.

The requisite elements of a complaint alleging strict liability are: (1) a defective product was placed in the stream of commerce; (2) the condition of the product rendered it unreasonably dangerous; (3) this condition existed when the product left the control of defendant; and (4) the condition was a proximate cause of injury. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182; Restatement (Second) of Torts §402A (1965).) Plaintiff’s complaint in counts II and IV alleged the “fireball red light” manufactured by defendant is defective in design because it is red in color, oscillates, and is capable of being used to impersonate police officers. Plaintiff charged these alleged defects could easily be cured by their elimination. Counts II and IV further alleged the benefits of the light as designed are outweighed by the risk of danger inherent in that design. The latter theory is known as the risk-utility or danger-utility test. The risk-utility test and what is known as the consumer-user test, are two approaches available to determine whether an unreasonably dangerous design defect exists. W. Keeton, Prosser & Keeton on Torts §99(3), at 698 (5th ed. 1984).

This court recently analyzed in depth the consumer-user and risk-utility tests in Lease v. International Harvester Co. (1988), 174 Ill. App. 3d 897, 529 N.E.2d 57. As we stated in Lease, the consumer-user test has been adopted by section 402A of the Restatement of Torts. (Restatement (Second) of Torts §402A (1965).) “Under the consumer-user contemplation test, the question of whether the product is unreasonably dangerous is based upon whether the danger in the product is greater than would be contemplated by the ordinary consumer or user.” Lease, 174 Ill. App. 3d at 901, 529 N.E.2d at 60.

Plaintiff relies on Lease to support his contention the risk-utility test is in operation in Illinois law. In Lease we quoted the description of the risk-utility test as contained in the Prosser and Keeton text. Again, we find it useful to refer to that highly respected source:

“Under this approach, a product is defective as designed if, but only if, the magnitude of the danger outweighs the utility of the product. *** Under this test, a product can be said to be defective in the kind of way that makes it ‘unreasonably dangerous’ if a reasonable person would conclude that the danger-in-fact, whether foreseeable or not, outweighs the utility of the product. There are three primary reasons for so concluding: (1) the harmful consequences in fact from intended and reasonably foreseeable uses resulting from the way the product was designed and marketed up to the time of plaintiff’s injury outweighed the benefits in terms of wants, desires, and human needs served by the product; (2) although the harmful consequences in fact did not exceed the benefits, alternative products were available to serve the same needs or desires with less risk of harm; (3) although the harmful consequences did not outweigh the benefits, there was a feasible way to design the product with less harmful consequences. Most of the products liability litigation related to design hazards has been concerned with the feasibility of a safer alternative design.” W. Keeton, Prosser & Keeton on Torts §99(3), at 699-700 (5th ed. 1984).

Our opinion in Lease concluded the supreme court has used some aspects of the risk-utility test in its analysis of strict liability cases and determined that in those cases, the unreasonable nature of a dangerously defective product may be proved by showing “ ‘the availability and feasibility of alternate designs at the time of its manufacture.’ ” (Emphasis in original.) (Lease, 174 Ill. App. 3d at 904, 529 N.E.2d at 62, quoting Anderson v. Hyster Co. (1979), 74 Ill. 2d 364, 368, 385 N.E.2d 690, 692.) In addition, these alternate designs must be “economical, practical and effective.” (Kerns v. Engelke (1979), 76 Ill. 2d 154, 163, 390 N.E.2d 859, 863.) Plaintiff argues his complaint sufficiently pleads the following facts necessary under the risk-utility test: (1) the likelihood of danger posed by the light as designed is great because it is capable of falling into possession of persons who would use it for illegal purposes; (2) a safer alternate design is feasible by simply manufacturing a product that is not red and does not oscillate; (3) the financial cost of an alternate design would be minimal; and (4) an alternate design would not have adverse effects on the manufacturer or public because, even though it would not look like a police officer’s light, it could still be used as a hazard light. We disagree.

In a strict liability action, the questions of proximate cause, foreseeability, and whether a product is defective or unreasonably dangerous are ordinarily for a jury to resolve. (Renfro v. Allied Industrial Equipment Corp. (1987), 155 Ill. App. 3d 140, 507 N.E.2d 1213, appeal denied (1987), 116 Ill. 2d 575, 515 N.E.2d 125.) However, as we have already discussed, when it appears no set of facts can be proved from the complaint which will entitle the plaintiff to recover, the cause of action should be dismissed on the pleadings. (Winnett, 57 Ill. 2d 7, 310 N.E.2d 1.) Such is the case with plaintiff’s strict liability allegations. Under either the analysis of the consumer-user test as adopted by the Restatement or the risk-utility test suggested by the supreme court in Anderson and Kerns, we cannot agree the light as it is currently manufactured is defective to the extent it is unreasonably dangerous in design.

Initially, we note that under ordinary circumstances, a manufacturer may reasonably assume no one will violate the criminal law. (Restatement (Second) of Torts §302B, comment d, at 89 (1965).) The Illinois Vehicle Code provides that any person using a red oscillating light to stop or detain another person without lawful authority shall be guilty of a Class 4 felony. (Ill. Rev. Stat. 1987, ch. 95V2, par. 12— 215(f).) Therefore, it is not reasonable to expect defendant to have foreseen Bridget’s murder would result from the unlawful use of its product that otherwise performs “ ‘in the manner reasonably to be expected in light of [its] nature and intended function.’ ” Hunt v. Blasius (1978), 74 Ill. 2d 203, 211, 384 N.E.2d 368, 372, quoting Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 342-43, 247 N.E.2d 401, 403 (applying the Restatement’s consumer-user contemplation test).

Next, we are unable to discern from the record whether defendant manufactures and distributes its product only as a hazard light, or whether its consumers also include lawful users of its red oscillating light, e.g., law enforcement authorities, fire departments, ambulance rescue teams or designated county authorities, such as county coroners. (Ill. Rev. Stat. 1987, ch. 95½, par. 12 — 215(a).) The Illinois Vehicle Code prohibits “[t]he use of red or white oscillating, rotating or flashing lights, whether lighted or unlighted,” by any vehicle that is not operated by State, Federal, or local law enforcement authorities, or other designated vehicles. (Ill. Rev. Stat. 1987, ch. 95½, par. 12— 215(a)(1).) Law enforcement vehicles are also authorized to use amber or blue oscillating, rotating, or flashing lights if they are used in combination with red lights of the same type. Ill. Rev. Stat. 1987, ch. 95½, pars. 12 — 215(b), (c).

Plaintiff does not suggest in his complaint an alternate design which would alleviate the alleged problems associated with the present design, he merely submits that a nonred, nonoscillating light would be sufficient. However, if defendant’s customers include lawful users, such as the ones listed above, an alternate design that is not red in color and does not oscillate would not be available or feasible (Anderson, 74 Ill. 2d at 368, 385 N.E.2d at 692), economical, or practical (Kerns, 76 Ill. 2d at 163, 390 N.E.2d at 863) for defendant to manufacture. Even assuming all lawful users purchase their lights from manufacturers other than defendant, we question, given the variety of colors of lights available to law enforcement vehicles, whether it would be effective (Kerns, 76 Ill. 2d at 163, 390 N.E.2d at 863) for defendant to change the design of its light at all. The variety of colors of lights available to law officers suggests a light of any color might enable the impersonation of a police officer.

Finally, plaintiff's complaint alleged a light of alternate design should be nonoscillating. However, police officers are authorized to use rotating or flashing lights on their vehicles, in addition to oscillating lights. We find it difficult to envision a fact scenario wherein a reasonable motorist, especially at night, would not suspect that any colored light attached to a vehicle, regardless of whether it oscillates, flashes or rotates, is one that is indigenous to an unmarked police car. For these reasons, we conclude plaintiff failed to allege in counts II and IV sufficient facts pointing to a design defect that would entitle him to recover under the theory of strict liability.

We affirm the judgment of the circuit court of Macoupin County dismissing plaintiff’s complaint for failure to state a cause of action in either negligence or strict liability.

Affirmed.

LUND, J., concurs.

JUSTICE GREEN,

specially concurring upon denial of petition of

rehearing:

I concur with the decision of the majority to affirm the dismissal of the complaint and with the reasons stated for dismissal of counts II and IV, which are based upon strict liability. I cannot agree that counts i I, III, and V charging negligent or wilful and wanton distribution of the red light are defective because the plaintiff admitted in the pleading he was then unable to determine how the alleged murderers ob- | tained possession of the light.

The complaint was dismissed pursuant to a defense motion under I section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), which merely tests the sufficiency of the complaint I to state a cause of action. The counts allege the defendant manufactured the light and distributed it without restriction. The counts also allege defendant knew or should have known the light was likely to be used to impersonate police officers in the facilitation of the commission of a crime if no restrictions were placed on distribution. They further allege the unrestricted distribution was a proximate cause of the murderers obtaining the light and their use of the light was a proximate cause of the rape and murder. I do not deem allegation of how the light came into the possession of the murderers to be a necessary element of the statement of a cause of action. Plaintiff did not have to make allegation negating the possibility that the murderers obtained possession of the light by virtue of an intervening factor which would destroy the proximate aspect of the causal relationship between the distribution of the light and its possession by the murderers.

I deem the method by which the murderers obtained the possession of the light to be an evidentiary detail not needed to be alleged and therefore neither the failure to allege it nor the lack of present ability to then prove it was fatal to the statement of a cause of action. Moreover, the element of how possession was obtained would seem to be an example of the type of evidence that might later be obtained with discovery. Wait v. First Midwest Bank (1986), 142 Ill. App. 3d 703, 491 N.E.2d 795.

I concur in the dismissal of counts I, III, and V because the ultimate facts set forth do not constitute the breach of a common law duty. The parties correctly point out that the question of whether a duty exists under given circumstances is a question of law for the court (Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 493 N.E.2d 1022) and that the existence of duty depends upon “[t]he likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant.” (Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, 233.) No case has been called to our attention which has placed a common law burden upon the manufacturers and original distributor of products which might be used to imitate law enforcement officers to restrict the distribution so that the items do not come in to the possession of others. While such produces might be held to anticipate that these items will be used to facilitate a serious crime, the difficulties in guarding against it would be most difficult, as the majority opinion indicates. As pointed out by defendant, even in regard to items as dangerous as firearms, producers have been held to have no common law duty to place restriction on their distribution to prevent the firearms from getting in the possession of persons likely to use them to harm others. Riordan v. International Armament Corp. (1985), 132 Ill. App. 3d 642, 477 N.E.2d 1293; Linton v. Smith & Wesson (1984), 127 Ill. App. 3d 676, 469 N.E.2d 339.