author: JUSTICE CAMPBELL PRESIDING JUSTICE BUCKLEY,

text:
    JAMES KUTZLER, Plaintiff-Appellant, v. AMF HARLEY-DAVIDSON, Defendant-Appellee.
    First District (1st Division)
    No. 1—88—0489
    Opinion filed February 5, 1990.

      Philip F. Maher & Associates, of Chicago (Philip F. Maher, Stephen E. McLean, and Michael W. Rathsack, of counsel), for appellant.
    Phelan, Pope & John, Ltd., of Chicago (Roseann Oliver, Jeffrey M. Rubin, and Edward D. Rickert, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, James Kutzler, appeals from the dismissal of his first amended complaint pursuant to the section 2 — 615 motion (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615) filed by defendant, AMF Harley-Davidson, a motorcycle manufacturer. Plaintiff sought damages for injuries sustained when an automobile sideswiped him while he was riding his motorcycle. Count I of plaintiffs complaint alleged that the motorcycle was unreasonably dangerous because: (1) it had not been designed, manufactured, assembled, sold or distributed with “crash bars, leg protection structures or other devices which would afford protection to the legs of the operator of said motorcycle”; and (2) it was designed, manufactured, assembled, sold and distributed “with ‘Fat Bob’ gas tanks which forced the legs of the operator into a position of exposure” to accidents. Count II alleged defendant’s negligence predicated on the same acts set forth in count I. In reliance on Miller v. Dvornik (1986), 149 Ill. App. 3d 883, 501 N.E.2d 160, the trial court held that motorcycles designed with extra-wide gas tanks and not equipped with crash bars were not unreasonably dangerous as a matter of law and dismissed the cause of action. On appeal, plaintiff contends that: (1) the trial court erred in dismissing his complaint because the absence of crash bars created an unreasonably defective and dangerous condition for which the defendant might be found liable by a jury; and (2) the extra-wide design of the gas tank caused plaintiff’s legs to protrude out from the motorcycle to an unusual extent and, thus, substantially increased the risk of injury and constituted an unreasonably dangerous and defective condition. For the following reasons, we affirm the judgment of the trial court.

The record indicates that prior to July 23, 1981, plaintiff purchased a secondhand 1979 Harley Davidson Sportster Fat Bob motorcycle from a private individual in “as is” condition. On July 23, 1981, while plaintiff was traveling in a northerly direction on Route 131 in Lake County, Illinois, an unidentified automobile, traveling in a southerly direction, crossed the center line of Route 131 and sideswiped plaintiff’s left leg. Immediately following the incident, plaintiff maintained his motorcycle in an upright position and steered it off the roadway and onto the right-hand shoulder. As a result of the incident, plaintiff suffered multiple fractures and severe injuries to his left leg.

On May 13, 1983, plaintiff filed a two-count complaint against defendant, alleging that the motorcycle was unreasonably dangerous because it lacked crash bars and that defendant had been negligent in designing, manufacturing, assembling and selling the motorcycle without crash bars. In reliance on Miller v. Dvornik (1986), 149 Ill. App. 3d 883, 501 N.E.2d 160, defendant moved for judgment on the pleadings. Miller held that motorcycles without crash bars were not unreasonably dangerous as a matter of law. The trial court granted plaintiff leave to file a first amended complaint, and, on May 13, 1987, plaintiff filed his first amended complaint, adding allegations that the “Fat Bob” gas tank rendered the motorcycle unreasonably dangerous and that defendant was negligent in manufacturing, assembling, selling and distributing the motorcycle with a “Fat Bob” gas tank.

In response, pursuant to section 2 — 615, defendant moved to dismiss and, in the alternative, for judgment on the pleadings. The trial court granted defendant’s motion, but allowed plaintiff 30 days to file a motion to reconsider. Plaintiffs motion to reconsider was denied and this timely appeal followed.

Preliminarily, this court is cognizant of the legal principles that because plaintiff’s appeal is from an order dismissing his complaint, all well-pleaded facts are taken as true and must be interpreted in the light most favorable to plaintiff to determine if they are sufficient to set forth a cause of action upon which relief may be granted. J.J. Harrington & Co. v. Timmerman (1977), 50 Ill. App. 3d 404, 365 N.E.2d 721.

As previously stated, the trial court in the present case relied solely on Miller v. Dvornik (1986), 149 Ill. App. 3d 883, 501 N.E.2d 160, in reaching its decision and held that a motorcycle designed with an extra-wide gas tank and not equipped with crash bars was not unreasonably dangerous as a matter of law. In doing so, the trial court extended the Miller court’s holding to include the extra-wide gas tank design by analogy. In Miller, plaintiff, age 19, sued a motorcycle dealer, manufacturer and driver of an automobile for damages for injuries sustained when an automobile struck his motorcycle, which was not equipped with crash bars, causing him to be thrown from the cycle. The counts against the dealer, alleging strict liability in tort and negligence, were dismissed and plaintiff appealed. The counts against the manufacturer and driver remained pending below.

In affirming the trial court’s determination that motorcycles without crash bars were not unreasonably dangerous as a matter of law, the Miller court relied on the well-established common law definition that an unreasonably dangerous product was one which was “dangerous to an extent beyond that which would be contemplated by the ordinary person with ordinary knowledge common to the community.” (149 Ill. App. 3d at 888.) The court further noted that there was “nothing circumspect about a motorcycle rider’s vulnerability to injury in the event of a collision” (149 Ill. App. 3d at 888), and that injuries which are caused by obvious propensities in a product are not compensable. In reaching its decision, the Miller court focused on the product itself, not available safety devices, and stated that the pivotal question is whether the product itself fails to perform as reasonably expected in light of its nature and intended function. 149 Ill. App. 3d at 888.

In attempting to distinguish Miller from the case at bar, plaintiff argues that: (1) Miller dealt only with a dealer’s duty, not a manufacturer’s duty; (2) Miller is narrowly confined to its facts, where plaintiff had been thrown from the cycle and crash bars would not have made any difference with respect to his injuries; (3) unlike in the present case, Miller had failed to allege that the crash bars would have prevented his injury, rendering the complaint substantially insufficient as a matter of law; and (4) unlike the absence of crash bars, the extra-wide gas tank was a latent defect. In our view, none of these distinctions renders Miller noncontrolling of the issues at bar.

First, the fact that Miller addressed a complaint against a dealer and the present case is directed toward a manufacturer does not alter the applicable principles of law as to what renders a product unreasonably dangerous. Second, the Miller court did not confine its holding to its fact situation. The recent case, Bossert v. Tate (1989), 183 Ill. App. 3d 868, 539 N.E.2d 729, exemplifies the scope of the Miller holding. In Bossert, plaintiff was struck in the left side by an automobile and incurred injuries to his lower left leg. There was no indication in Bossert that plaintiff had been thrown off his bike as the plaintiff in Miller had been. The Bossert court found Miller dispositive of the identical crash bar issue against a manufacturer, predicated on a fact situation very similar to the one at bar. Third, regarding allegations in the complaint, although the Miller 'court noted that plaintiff’s failure to allege that crash bars would have prevented his injury rendered the complaint insufficient, that fact was not dispositive of the issue. Therefore, it does not constitute a legally significant fact for purposes of analogy to the present case. We further note that, in his reply brief, plaintiff extolls the safety functions of crash guards. While this discussion is informative, it is not legally persuasive because it incorrectly places the emphasis on safety devices rather than on the product itself. Fuller v. Fend-All Co. (1979), 70 Ill. App. 3d 634, 388 N.E.2d 964.

With respect to the extra-wide gas tank, plaintiff contends that Miller is inapplicable because the gas tank design defect is latent rather than open and obvious. This argument has no basis in fact. A defect is latent when it constitutes a hidden danger such as the misplacement of a vehicle’s fuel containment system (Ryan v. Blakey (1979), 71 Ill. App. 3d 339, 389 N.E.2d 604) or an improperly mounted gasoline tank in an automobile (Buehler v. Whalen (1977), 70 Ill. 2d 51, 374 N.E.2d 460), both of which cause an automobile to burst into flame upon Impact with another vehicle. In both Ryan and Buehler, the danger from the design defect was clearly beyond that which would be contemplated by the ordinary person with ordinary knowledge common to the community. See Miller v. Dvornik (1986), 149 Ill. App. 3d 883, 501 N.E.2d 160.

By contrast, the width of the gas tank in the present case was readily apparent, and the fact that a motorcycle rider’s legs, when positioned over the tank, would protrude outward would be equally apparent as soon as the rider sat down on the cycle. Plaintiff apparently wants this court to believe that but for the alleged extra width of the gas tank, the automobile would not have sideswiped his leg. We find this argument unpersuasive. First, based on the facts in the pleadings, this is mere speculation. Second, the risk of being sideswiped is open and obvious to any motorcycle rider, regardless of the width of the gas tank. Third, products liability does not make the manufacturer an insurer of all foreseeable accidents which involve its product. In this regard, a manufacturer is not under a duty in strict liability to design a product which is totally incapable of injuring those who might foreseeably use the product. Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368.

In addition to Miller v. Dvornik, we find that Fuller v. Fend-All Co. (1979), 70 Ill. App. 3d 634, 388 N.E.2d 964, also supports defendant’s position. In Fuller, plaintiff, a machinist, was wearing safety glasses manufactured by defendant when a piece of metal flew into his right eye and caused blindness. Plaintiff claimed that the glasses were unreasonably dangerous because they lacked safety shields. The trial court entered summary judgment in favor of defendant. On appeal, the Fuller court applied the consumer expectation test and concluded that because glasses without side shields cannot reasonably be expected to protect against particle side entry, they have not failed to perform in a manner reasonably to be expected in light of their nature and function. Thus, the absence of side shields cannot be considered an unreasonably dangerous condition. (70 Ill. App. 3d at 638.) Similarly, because a motorcycle with an extra-wide gas tank and not equipped with crash bars cannot reasonably be expected to offer protection to the rider from sideswipes, the motorcycle has not failed to perform in the manner reasonably to be expected in light of its nature and function. Therefore, we find that a motorcycle with an extra-wide gas tank and without crash bars cannot be considered unreasonably dangerous.

Furthermore, we find plaintiff’s reliance on Camacho v. Honda Motor Co. (Colo. 1987), 741 P.2d 1240, misplaced. Plaintiff discusses Camacho and compares Miller to Camacho as if Camacho were controlling precedent in Illinois. Not only is it not controlling precedent, it is not even persuasive precedent. Colorado adheres to the crashworthy doctrine while Illinois follows the consumer expectation test, which is predicated on the common law definition of “unreasonably dangerous” previously discussed, i.e., a product which is dangerous to an extent beyond that which would be contemplated by the ordinary person with ordinary knowledge common to the community. (Fuller v. Fend-All Co. (1979), 70 Ill. App. 3d 634, 388 N.E.2d 964.) The Camacho dissent expressly recognizes this distinction. Camacho, 741 P.2d at 1250 (Vollack, J., dissenting).

In light of the extensive body of Illinois law which addresses the issues at bar, we find it unnecessary to address those cases outside our jurisdiction relied upon by plaintiff. We further note that plaintiffs contention that the buyer’s knowledge is not at issue in the pleading stage is not supported by Illinois law, which follows the consumer expectation test, of which the consumer’s knowledge is an essential element. Finally, with respect to plaintiff’s contention that defendant had a duty to inform plaintiff of the availability of crash guards, we find that the fact that plaintiff purchased the cycle secondhand without defendant’s knowledge renders this contention groundless.

For the aforementioned reasons, we affirm the judgment of the trial court.

Affirmed.

MANNING, J., concurs.

PRESIDING JUSTICE BUCKLEY,

dissenting:

I dissent because I believe the majority has misstated Illinois products liability law applicable to design defect cases and has confused the concept of crashworthiness with the consumer contemplation test.

The majority incorrectly states that an “extensive” body of Illinois law addresses the issues in the case at bar and requires a finding that the challenged design defects here are not unreasonably dangerous as a matter of law. The majority fails to recognize that the crucial issues presented by this appeal are (1) whether Illinois has adopted the consumer contemplation test as the exclusive test in design defect cases to preclude a plaintiff’s recovery for personal injury resulting from any obvious design defect and (2) whether the adoption of the crashworthy doctrine by the Illinois Supreme Court in automobile collision cases extends to motorcycle collision cases. As demonstrated below, Illinois case law is anything but “established” as to the permissible proof to show an unreasonably dangerous product in design defect cases and Illinois courts have not addressed the applicability of the crashworthy doctrine to motorcycle collision cases.

The “consumer contemplation test” has been subject to wide criticism by courts and commentators for its inadequacy as a test for evaluating whether a product is defective in design defect cases. One shortcoming of the test is that a victim could never recover for harm suffered as a result of a design hazard that was open or obvious, resulting in products not being found defective where they could easily have been designed safer without great expense or effect on the benefits or functions to be served by the product. (See W. Keeton, Prosser & Keeton on Torts, §99 (5th ed. 1984).) This, as well as other deficiencies, prompted many jurisdictions to adopt in design defect cases an alternative approach to determining whether a product is unreasonably dangerous which allows a product to be found defective where the benefits of the challenged design do not outweigh the risk of danger inherent in the design. (See Barker v. Lull Engineering Co. (1978), 20 Cal. 3d 413, 573 P.2d 443, 143 Cal. Rptr. 225; Caterpillar Tractor Co. v. Beck (Alaska 1979), 593 P.2d 871; Chown v. USM Corp. (Iowa 1980), 297 N.W.2d 218; Knitz v. Minster Machine Co. (1982), 69 Ohio St. 2d 460, 432 N.E.2d 814; Brady v. Melody Homes Manufacturer (Ariz. App. 1979), 121 Ariz. 253, 589 P.2d 896; Turner v. General Motors Corp. (Tex. 1979), 584 S.W.2d 844; Suter v. San Angelo Foundry & Machine Co. (1979), 81 N.J. 150, 406 A.2d 140; Wilson v. Piper Aircraft Corp. (1978), 282 Or. 61, 577 P.2d 1322.) Under the various forms of balancing tests adopted by these jurisdictions, numerous factors are considered in determining whether a design renders the product unreasonably dangerous, such as the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from the alternative design. See Barker, 20 Cal. 3d at 431, 573 P.2d at 455.

The Illinois Supreme Court first applied the consumer contemplation test to determine if a product contained an actionable defect in Hunt v. Blasius (1978), 74 Ill. 2d 203, 211-12, 384 N.E.2d 368, 372, where the court found that an exit sign post without a “break-away” design was not defective, as there were no allegations that the post subjected motorists to any unexpected risks. The supreme court, however, has not limited the method of proof to show an unreasonably dangerous product to the consumer contemplation test set forth in section 402A of the Restatement (Second) of Torts (Restatement (Second) of Torts §402A, comment i (1965)), but has recognized evidence of feasible alternative design, not in the context of consumer expectations, but as a separate method of showing the unreasonably dangerous nature of a design.

In Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 216, 412 N.E.2d 959, 962, the supreme court did not limit the method of proof to consumers’ expectations when it found that the second way the unreasonable danger was proven was by “introducing evidence that the [product] could have been designed to prevent a foreseeable harm without hindering its function or increasing its price.” (Palmer, 82 Ill. 2d at 219-20, 412 N.E.2d at 963-64.) Similarly, other supreme court cases have permitted proof not relevant to consumers’ expectations to prove an unreasonably dangerous design, suggesting the adoption of an alternative method of proof. In Kerns v. Engelke (1979), 76 Ill. 2d 154, 164, 390 N.E.2d 859, 864, where plaintiff alleged a forage blower was unreasonably dangerous because it lacked a device to secure a power takeoff assembly, the supreme court found plaintiff could prove the unreasonably dangerous nature of a defect in the design by introducing evidence of feasible alternative design. In Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 437-38, 396 N.E.2d 534, 536-37, where the plaintiff argued that a manufacturer’s compliance with Federal standards should be admissible as evidence under a risk-benefit balancing test in the determination of whether the absence of a protective shield device rendered a railroad tank car unreasonably dangerous, the court, without discussing the ordinary consumer’s expectations, found such evidence to be admissible as relevant to the issue of whether a product’s design is unreasonably dangerous. See also Anderson v. Hyster Co. (1979), 74 Ill. 2d 364, 385 N.E.2d 690; Moehle v. Chrysler Motors Corp. (1982), 93 Ill. 2d 299, 443 N.E.2d 575.

Courts and commentators have interpreted this supreme court case law as implicitly adopting an alternative test to the consumer contemplation test which is similar to the “risk-benefit” test or as expressly pretermitting the issue of feasible alternative design in design defect cases. See Seward v. Griffin (1983), 116 Ill. App. 3d 749, 766, 452 N.E.2d 558, 571 (“Clearly, evidence of alternative design feasibility is relevant to the issue [of the unreasonably dangerous nature of the defect in design.] In light of the Kerns decision, and until the Illinois Supreme Court determines otherwise, we believe the rule of law in Illinois is that evidence of alternative design feasibility is relevant and admissible in a design defect case ***.’’); J- Mirza, Illinois Personal Injury §700:56 — 57 (1989); Huntley, The Concept of Defect in Illinois Products Liability Litigation, 71 Ill. B.J. 22, 28-34 (1982).

The above supreme court case law illustrates that, in reaching its conclusion that plaintiff may not recover as a matter of law here, the majority has relied on two incorrect principles as “established” Illinois law in design defect cases: first, that injuries are not compensa-ble if they are caused by obvious propensities in a product and, second, that available safety devices are irrelevant to the “unreasonably dangerous” determination. Not only is this “established” law contrary to the above-cited supreme court case law, the supreme court cases cited in the case relied upon by the majority, Miller v. Dvornik (1986), 149 III. App. 3d 883, 501 N.E.2d 160, do not lend support for the majority’s conclusion. Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368, and Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401, cited in Miller, predate the court’s recognition of the alternative method of proving a defective product in design defect cases through feasible alternative design proof. Moreover, outside their application of the consumer contemplation test, these cases did not establish any general products liability principles relating to obvious dangers or alternative design proof.

Recognizing that Illinois permits an alternative method of proving an “unreasonably dangerous” design and that the open and obvious nature of a design does not preclude recovery in a design defect case, it is evident that the majority has relied on a faulty basis for finding the challenged designs not to be unreasonably dangerous as a matter of law. The question of whether the challenged designs of the motorcycle were unreasonably dangerous through consideration of feasible alternative design was a question properly to be decided by the trier of fact.

Nonetheless, apart from the question of whether the product was unreasonably dangerous — which involves the breach of duty element in product liability actions (Phillips v. United States Waco Corp. (1987), 163 Ill. App. 3d 410, 417, 516 N.E.2d 670)-plaintiff’s complaint raises an issue of first impression for Illinois involving a motorcycle manufacturer’s legal duty in products liability law. Because the gravamen of plaintiff’s action is that defects in the design of the motorcycle, though not the cause of the accident, caused or enhanced his injuries, a question of law is raised as to whether Illinois will extend a manufacturer’s duty to produce reasonably safe products to situations where the product did not cause the accident, but enhanced the injuries after a collision. This inquiry involves the concept of “crashworthiness.” The majority, in stating that Illinois does not adhere to the crashworthy doctrine but instead follows the consumer contemplation test, fails to recognize that (1) the crashworthy doctrine involves the legal duty element in strict liability actions, whereas the consumer contemplation test relates to the breach of duty element through the evaluation of a product’s defectiveness, and (2) Illinois has not rejected the crashworthy doctrine.

“Crashworthiness” has been defined as the “protection that a passenger motor vehicle offers its passengers against personal injury or death as a result of a motor vehicle accident.” (Jackson v. Volkswagen of America (E.D.N.C. June 4, 1986), No. 84—857—Civ—5 (unpublished memorandum opinion and order).) Under the “crashworthy doctrine,” which has been adopted in various contexts by most jurisdictions, the manufacturer’s products liability may extend in motor vehicle cases to situations in which the defect did not cause the accident or initial impact, but rather increased the severity of the injury over that which would have occurred absent the defective design. (E.g., Tafoya v. Sears Roebuck & Co. (10th Cir. 1989), 884 F.2d 1330; Jackson, No. 84 —857—Civ—5; Robbins v. Yamaha Motor Corp. (1983), 98 F.R.D. 36; Buehler v. Whalen (1977), 70 Ill. 2d 51, 374 N.E.2d 460; Larsen v. General Motors Corp. (8th Cir.1968), 391 F.2d 495.) The doctrine recognizes that the foreseeable and intended use of a motor vehicle encompasses the inevitability of collisions and requires the manufacturer to design a vehicle reasonably safe for those foreseeable risks. (Miller v. Todd (Ind. 1988), 518 N.E.2d 1124.) It does not, however, place the manufacturer in the position of insurer, but merely extends a manufacturer’s duties while invoking the same requirements of liability as in other products liability actions. (See Miller, 518 N.E.2d at 1125-26; Jackson, No. 84—857—CIV—5; Larsen, 391 F.2d 495.) Thus, application of the doctrine in Illinois would still require plaintiff to prove that his injury resulted from a condition of the product, that the condition was an unreasonably dangerous one, and that the condition existed at the time the product left the defendant’s control. See Surada v. White Motor Co. (1965), 32 Ill. 2d 612, 623, 210 N.E.2d 182, 188.

The Illinois Supreme Court adopted the crashworthy doctrine in Buehler v. Whalen (1977), 70 Ill. 2d 51, 61-62, 374 N.E.2d 460, 464-65, when it defined a manufacturer’s duty in automobile cases “to use reasonable care in the design and manufacture of its product, bearing in mind that the intended and actual use of automobiles results in collisions.” (See also Seward v. Griffin (1983), 116 Ill. App. 3d 749, 766, 452 N.E.2d 558, 568.) While the doctrine was originally applied to an automobile collision case (Larsen, 391 F.2d 495), many jurisdictions have extended its application to other motor vehicles, including motorcycles. (Jackson, No. 84—857—CIV—5; Tafoya, 884 F.2d 1330; Camacho v. Honda Motor Co. (Colo. 1987), 741 P.2d 1240, 1243; Frazier v. Harley Davidson Motor Co. (W.D. Pa. 1985), 109 F.R.D. 293; McInnis v. A.M.F., Inc. (1st Cir. 1985), 765 F.2d 240; O’Donnell v. City of Casper (Wyo. 1985), 696 P.2d 1278; Robbins v. Yamaha Motor Corp. (M.D. Pa. 1983), 98 F.R.D. 36; Stueve v. American Honda Mo tors Co. (D. Kan. 1978), 457 F. Supp. 740; Nicolodi v. Harley-Davidson Motor Co. (Fla. App. 1979), 370 So. 2d 68.) Illinois has not had occasion to address whether the doctrine extends to motorcycle collision cases.

As the resolution of this first-impression question is necessary to the determination of whether plaintiff has stated a cause of action here, I would hold that the crashworthy doctrine adopted in Illinois to automobile collision cases extends to motorcycle collision cases. After reviewing cases from other jurisdictions which have addressed the issue, I find persuasive the reasoning articulated by the Colorado Supreme Court in Camacho v. Honda Motor Co. (Colo. 1987), 741 P.2d 1240:

“Honda argues *** that motorcycles are inherently dangerous motor vehicles that cannot be made perfectly crashworthy and, therefore, that motorcycle manufacturers should be free of liability for injuries not actually caused by a defect in the design or manufacture of the motorcycle. We find no principled basis to conclude that liability for failure to provide reasonable, cost-acceptable safety features to reduce the severity of injuries suffered in inevitable accidents should be imposed upon automobile manufacturers but not upon motorcycle manufacturers. The use of motorcycles for transportation over roadways is just as foreseeable as the use of automobiles for such purpose. The crashworthiness doctrine does not require a manufacturer to provide absolute safety, but merely to provide some measure of reasonable, cost-effective safety in the foreseeable use of the product. *** In view of the important goal of encouraging maximum development of reasonable, cost-efficient safety features in the manufacture of all products, the argument that motorcycle manufacturers should be exempt from liability under the crashworthiness doctrine because serious injury to users of that product is foreseeable must be rejected.” Camacho, 741 P.2d at 1243-44.

To summarize, I would reverse the circuit court’s dismissal of plaintiff’s action because the question of whether the challenged designs rendered the product unreasonably dangerous, in light of a motorcycle manufacturer’s duty to design a motorcycle free from unreasonable risks of enhanced injuries in the event of collisions, should have been a question for the trier of fact here. Consistent with Illinois case law, plaintiff should have been given the opportunity to prove that the product was unreasonably dangerous through evidence of the availability of a feasible alternative design which would not hinder the motorcycle’s function or utility. In making the “unreasonably dangerous” determination, the trier of fact should have been permitted to consider such factors as the gravity of the danger posed by the challenged design, the mechanical and economical feasibility of a safer alternative design, and the adverse consequences of the alternative design to the motorcycle’s inherent and open nature.

      The trial court also granted defendant's motion to strike portions of plaintiff’s response and supplemental response to defendant’s motion for judgment on the pleadings on the grounds that plaintiff attempted to put matters before the court which were de hors the pleadings. Plaintiff has abandoned this issue on appeal by failing to address it in his briefs. See McCottrell v. Benson (1961), 32 Ill. App. 2d 367, 178 N.E.2d 144.

      The consumer contemplation test, with its origins in warranty law, is rooted in contract law, which explains its emphasis on consumers’ expectations. See W. Keeton, Prosser & Keeton on Torts, §99 (5th ed. 1984).

        Hunt’s discussion as to product liability principles regarding the obvious inherent properties of a product refers to the principle in duty to warn cases that a manufacturer does not have a duty to warn of obvious dangers of nondefective products. (Hunt, 74 Ill. 2d at 211, 384 N.E.2d at 372 citing Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 467, 343 N.E.2d 465, 471 (duty to warn is not required where the product is not defectively designed and where the possibility of injury results from a common propensity of the product which is open and obvious); see also Martin v. Harrington & Richardson, Inc. (1984), 743 F.2d 1200 (applying Illinois law); Huff v. Elmhurst-Chicago Stone Co. (1981), 94 Ill. App. 3d 1091, 419 N.E.2d 561.) The reasoning of the general rule regarding the obviousness of the risk in duty to warn cases is that the purpose of warning is to apprise persons of a danger of which he has no knowledge so that he may take protective measures.

      The majority cites Miller, which in turn cites Hunt and Dunham as establishing that the focus in the unreasonably dangerous determination “is on the product itself,
        not on available safety devices.” Hunt and Dunham, however, do not establish any general product liability principle excluding consideration of available safety devices. Hunt merely stated that the availability of an alternative design alone does not translate into a legally cognizable defect. While it is true that the focus in strict products liability law is on the product, consideration of available safety devices does not deviate from that focus. Where alternative feasible design is in issue, the question is whether the absence of safety devices makes the product unreasonably dangerous. See J. Mirza, Illinois Personal Injury §700:56 — 57 (1989).

      As noted in Jackson v. Volkswagen of America (E.D.N.C. June 4, 1986), No. SI-SÓ? — CIV—5 (unpublished memorandum opinion and order), as of 1986, 38 of the 39 jurisdictions that have considered the question have adopted the doctrine of crashworthiness.

      It should be noted that although the majority mentions the crashworthy doctrine, the majority’s finding that the motorcycle was not unreasonably dangerous as a matter of law because of the open and obvious nature of the challenged designs rendered it unnecessary to address the crashworthy issue.


source: Caselaw Access Project

author: JUSTICE SCARIANO

license: Public Domain

text:
    Robert H. Aronson, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Gael O’Brien, and Patrick J. Finley, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court;

Following a bench trial before Judge James M. Schreier on August 25, 1988, the circuit court found defendant guilty of one count of possession with intent to deliver between 10 and 15 grams of a substance containing heroin in violation of section 401(b) of the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1985, ch. 56%, par. 1401(b)) and of one count of possession with intent to deliver less than 10 grams of a substance containing cocaine in violation of section 401(c) of the Act (Ill. Rev. Stat. 1985, ch. 56%, par. 1401(c)). Defendant’s convictions resulted in concurrent sentences of 8% years’ imprisonment on count I and seven years’ imprisonment on count II.

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DERRICK GRIFFIN, Defendant-Appellant.

First District (2nd Division)

No. 1—88—2836

Opinion filed February 6, 1990.

Defendant had been previously tried without a jury on November 5-6, 1987, before Judge Ralph Reyna, who found defendant guilty of the two offenses described above. After defendant’s first trial, his attorney withdrew from the case and was replaced by defendant’s present counsel, who filed a motion for a new trial. Among other charges, the motion alleged that defendant had been denied effective assistance of counsel, because his former attorney “did not communicate [with defendant] or in any way prepare for trial.” Judge Reyna granted the motion on January 29, 1988, and the matter was subsequently reassigned by the presiding judge to Judge Schreier.

Defendant presents two issues for our review: first, whether the evidence was sufficient to convict, and second, whether the trial judge deprived him of a fair trial by reprimanding defense counsel and asking defendant questions tending to negate his credibility. We affirm.

At the second trial, the State presented the testimony of Chicago police department officer Joseph Cannon; defendant and his mother testified for the defense. The parties stipulated that the recovered contraband tested positive for 3.36 grams of cocaine and for 14.61 grams of heroin. The court also received into evidence a certified copy of defendant’s conviction for attempted murder and armed robbery.

Cannon testified that on January 15, 1987, he proceeded with a group of other officers to 204 North Central Avenue, Chicago, Illinois, to execute a warrant authorizing the search of the third-floor east apartment for cocaine and drug paraphernalia and a black male, 26 to 30 years old, 5 feet 8 inches tall, of medium complexion. After knocking at the back door of the apartment and announcing himself as a police officer, Cannon heard running footsteps inside. He then opened the door with a sledgehammer and, finding himself in the kitchen, saw defendant fleeing through the living room. According to Cannon, defendant jumped from the front balcony onto the roof over the building entrance, leaped down onto a lower balcony and ran into the first-floor apartment. At this point, Cannon ran down the back staircase and, having apprehended defendant outside the rear of the building, took him back to the third-floor apartment.

Cannon handed the search warrant to defendant, who read it and said he understood its contents. During the search of the kitchen, the officer found, on top of the refrigerator, 37 tinfoil packets filled with brown powder and 14 white paper packets filled with white powder. He then placed defendant under arrest. After being advised of his Miranda rights, defendant told Cannon that he had been living in the apartment for about one week. In a search of defendant’s person, Cannon’s partner found no narcotics, but recovered a key which, according to Cannon’s testimony, fit the front door of the apartment.

Cannon did not find a lease in the apartment or any gas or other utility bills in defendant’s i.ame. Prior to the search, however, the gas company had informed him that the gas had been shut off. While searching the living room, Cannon noticed two operating appliances: a kerosene space heater and an electric television set.

Defendant’s mother, Willie Mae Williams, testified that at the time of defendant’s arrest she lived about two blocks from the 204 North Central Avenue address and that after defendant’s release from prison in January 1987, she made arrangements for him to live upstairs from her living quarters in return for paying the utility bills and having them put in his name. When on cross-examination Williams was shown gas and electric bills for the upstairs apartment covering various dates from January 7 to October 30, 1987, she admitted that the bills did not reflect when they were put in defendant’s name and acknowledged that the electricity bill for the months of January to April 1987 was for only $58, of which $33 represented a customer service charge. Williams also testified that she worked in a factory five and sometimes six days a week and that her living quarters did not have a staircase leading to the upstairs area where defendant lived.

Defendant testified that until January 9, 1987, he had been incarcerated in a Federal correctional facility in Oxford, Wisconsin, and that between that date and the date of his arrest on January 15, 1987, he lived in the second-floor apartment above his mother’s. According to defendant, he never told the police he had been living for one week in the apartment on North Central Avenue, which, he testified, in fact belonged to his friend James Boyd, whom he had known for about 12 years at the time of trial. He denied having a key to this apartment and said the front door did not have a lock.

While defendant was visiting Boyd on January 15, defendant’s testimony continued, after someone outside had sounded a car horn, Boyd left the apartment, and defendant remained inside to watch a movie on Boyd’s television set. During the movie, he heard a lot of noises at the back door, looked out the window and saw a uniformed police officer, leaving the apartment through the front door. Defendant entered the adjacent apartment, went downstairs and out the back door of the building, where he became engaged in a conversation with a uniformed police officer. At this point, several plainclothes officers jumped on defendant and arrested him, took him back to Boyd’s apartment, put him in a closet and questioned him. He denied leaving the apartment in the manner described by Officer Cannon.

Defendant admitted lying under oath at his first trial. He said that previously he had testified that he did jump off the third-floor balcony onto the entrance roof and then onto the balcony on the first floor. He also admitted testifying that he kept four jogging suits in the apartment. According to defendant, his former lawyer instructed him to so testify in order not to contradict the police. Defendant claimed he fled the apartment when he saw the police because he “panicked,” but denied doing anything wrong or knowing that drugs were present in the apartment.

Defendant begins by contending that the State failed to prove him guilty of the two narcotics offenses beyond a reasonable doubt because it failed to show that he had any knowledge, either actual or constructive, of the presence of contraband in the apartment. Defendant relies on a number of Illinois Supreme Court decisions which hold that where the evidence pointing to the guilt of an accused is purely circumstantial, it must be strong enough to exclude every reasonable hypothesis of innocence before the trier of fact may convict. (People v. Garrett (1975), 62 Ill. 2d 151, 163, 339 N.E.2d 753, 759; People v. Lewellen (1969), 43 Ill. 2d 74, 78, 250 N.E.2d 651, 654; People v. Ahrling (1917), 279 Ill. 70, 80, 115 N.E. 764, 767.) It is defendant’s contention that the judge was bound to acquit, because, based on the evidence, he could have found that defendant was indeed only an innocent and unsuspecting visitor at the apartment.

In People v. Eyler (1989), 133 Ill. 2d 173, 549 N.E.2d 268, however, the supreme court has recently clarified the standard of proof in criminal cases by removing any obligation to exclude all reasonable hypotheses of innocence. The court explained in Eyler that language once used in pattern jury instructions purporting to create any such obligation merely served to obscure the firmly entrenched standard of “proof beyond a reasonable doubt.” (133 Ill. 2d at 191, 549 N.E.2d at 276; see also People v. Pintos (1989), 133 Ill. 2d 286, 291 (“reasonable doubt test *** should be applied in reviewing the sufficiency of evidence in all criminal cases, whether the evidence is direct or circumstantial”).) Therefore, the proper standard for this court to apply in order to evaluate the sufficiency of the proof on appeal is whether the evidence, when viewed in the light most favorable to the prosecution, permits a rational trier of fact to find the elements of the crime beyond a reasonable doubt. People v. Young (1989), 128 Ill. 2d 1, 48-49, 538 N.E.2d 461, 472-73, citing Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.

To prove possession of a controlled substance, the State must show that defendant knew of its presence and that the substance was in defendant’s immediate and exclusive control. (People v. Valentin (1985), 135 Ill. App. 3d 22, 480 N.E.2d 1351.) Knowledge may be proved by evidence of defendant’s acts, declarations or conduct which fairly imply that he knew of the existence of the controlled substance at the place it was found. (People v. David (1986), 141 Ill. App. 3d 243, 489 N.E.2d 1124.) Absent circumstances creating a reasonable doubt, the fact that drugs are found on premises under defendant’s control alone will support a conviction for possession. (People v. Cruz (1984), 129 Ill. App. 3d 278, 472 N.E.2d 175.) Exclusive possession may be established even though possession is joint or other persons have access to the premises. (People v. Gant (1986), 150 Ill. App. 3d 180, 501 N.E.2d 355, appeal denied (1987), 114 Ill. 2d 549, 508 N.E.2d 731, cert. denied (1987), 484 U.S. 843, 98 L. Ed. 2d 91, 108 S. Ct. 134.) Because knowledge and possession are questions of fact, a reviewing court will not disturb the trier’s findings on those issues unless the evidence is so unbelievable, improbable or palpably contrary to the verdict that it creates a reasonable doubt as to defendant’s guilt. (People v. Valentin, 135 Ill. App. 3d 22, 480 N.E.2d 1351.) Finally, a reviewing court will not disturb the fact finder’s resolution of conflicting evidence unless it is clearly erroneous. People v. DeMorrow (1974), 59 Ill. 2d 352, 320 N.E.2d 1.

A number of facts in the present case permit the inference that the North Central Avenue apartment was in defendant’s control: According to Officer Cannon, defendant, after being advised of his Miranda rights, told him that he had been living in the apartment for one week; Cannon also testified that his partner found a key on defendant’s person that fit the lock on the front door; during cross-examination, defendant admitted testifying in his first trial that he kept four running suits in the apartment; and finally, defendant does not contest that he was the only person in the apartment at the time of the raid. Although defendant testified at the second trial that the actual tenant of the apartment was his longtime friend James Boyd, the defense did not produce anyone named Boyd as a witness or furnish any other information about him. In considering Boyd’s absence, we draw attention to People v. Adams (1985), 109 Ill. 2d 102, 120-21, 485 N.E.2d 339, 345, cert. denied (1986), 475 U.S. 1088, 89 L. Ed. 2d 730, 106 S. Ct. 1476, in which the supreme court permitted a negative inference from the accused’s failure to call a nonalibi witness who could shed light on a material issue and who was presumably within the accused’s control.

Together with all other evidence tending to prove defendant’s guilt, the trier of fact may also consider evidence of defendant’s flight from police. (People v. Rossini (1962), 25 Ill. 2d 617, 185 N.E.2d 831.) In the present case, defendant does not rebut the State’s testimony that he fled the apartment when he saw the police; he merely denies having left in the spectacular manner described by Officer Cannon. Furthermore, it was the judge’s prerogative as a fact finder to disbelieve defendant’s proffered explanation that he panicked and fled at the sight of law enforcement officers because he had recently come home from prison.

In fact, defendant’s credibility suffered several other critical blows at trial. First, the State introduced into evidence a certified copy of defendant’s conviction for attempted murder and armed robbery. Second, the State confronted defendant with prior inconsistent statements he had made at his first trial; defendant admitted that, contrary to his latest testimony, he had previously testified that he kept four jogging suits in the apartment and that he fled the apartment by leaping off the balcony. Finally, defendant admitted lying at the first trial despite knowing that he was under oath to tell the truth. Defendant tried to explain that he lied because his former attorney instructed him not to contradict the police; however, this explanation dealt a final blow to defendant’s veracity, for in his motion for a new trial after his first case he alleged that his former attorney never communicated -with him in preparation for the first trial. This massive evidence of mendacity persuades us that the circuit court acted reasonably in choosing to believe Officer Cannon’s version of the facts instead of defendant’s. Accordingly, with reference to the element of knowledge, we find that the prosecution amply met its burden of proof beyond a reasonable doubt.

Defendant next contends that the behavior of the circuit judge at trial deprived him of a fair proceeding. First, defendant maintains in his brief that the circuit judge “stood up and screamed at defense counsel as counsel tried to make an objection.” The following colloquy during trial between Judge Schreier and defense counsel forms the basis of defendant’s contention:

“Q. [Assistant State’s Attorney]: When you got back up to the apartment, your testimony is that they put you in the closet?
A. [Defendant]: First they put me — we was in the dining room and they had me up against the wall, you know. They searched me, you know, they asked me — they got to ask me where some narcotics was at. I told them I don’t know nothing about narcotics.
Q. Sir, please answer my question.
MR. ARONSON [Defense attorney]: He is. Object, your Honor.
THE COURT: Keep your voice down. Sit down.
MR. ARONSON: I-.
THE COURT: Sit down.
Q. [Assistant State’s Attorney]: Please, sir — .
THE COURT: Who do you think you are? Sit down.
MR. ARONSON: I would like to make an objection, Judge.
THE COURT: Overruled.”

As the State points out, the record does not support defendant’s allegation that the judge “stood up and screamed.” The foregoing exchange with the court appears to be but a continuation of a similar exchange initiated by defense counsel which occurred earlier, at the very beginning of the State’s cross-examination of defendant.

One of the inherent powers of the trial court is to preserve its own dignity by ensuring that the proceedings before it progress in a dignified and orderly fashion. (People v. Halprin (1983), 119 Ill. App. 3d 922, 457 N.E.2d 1010 (inherent power to initiate contempt proceedings).) In the present case, the circuit judge appears to have invoked this power to ensure the orderly cross-examination of defendant without defense counsel’s unnecessary interference. The record does not indicate that he thereby exceeded traditional bounds of courtroom decorum, especially here, where the absence of a jury minimized the danger of any unfair prejudice.

Second, defendant charges that the circuit judge improperly interrupted defendant’s redirect examination by asking him questions seeking to discredit the veracity of certain statements in his motion for a new trial at the end of his first case. Defendant alleges that with these inquiries the judge flew into a “rage” intending to “besmirch the character and reputation of [defendant’s] present counsel,” and therefore deprived defendant of a fair trial before an impartial tribunal. Defendant’s objection rests on the following portion of his redirect examination:

“Q. [Defense attorney]: And your former lawyer, how long did he meet with you to prepare for the case?
MR. CUOMO [Assistant State’s Attorney]: Objection, Judge.
THE COURT: Overruled.
A. The same day of the trial.
Q. And he defended you, didn’t he?
A. Yes.
Q. And after he told you what to say, you were convicted, weren’t you?
MR. CUOMO: I’m going to object to this, Judge.
THE COURT: Overruled.
A. Yes.
Q. And then you got another lawyer, didn’t you?
MR. CUOMO: Objection, Judge.
THE COURT: Sustained at this point, although I want to ask a question myself.
With your new lawyer, did you file a motion for a new trial saying that your previous lawyer and you did not communicate or in any way, in any way prepare for trial? Did you and your new lawyer file that motion for new trial?
A. Yes, we filed a motion.
Q. And when you said that in any way your old lawyer did not prepare for trial — .
THE COURT: Or communicate.
Q. —or communicate with you, tell Judge Schreier what you meant by that.
A. Each time I called him, you know, he would tell me, you know, to call him back, you know, and when I called him back he wasn’t there.
THE COURT: What do you call, sir, your conversing with your old lawyer and going over what you should say at trial. What did you call that?
A. That was before the trial. That was a couple of minutes before we had come in here.
THE COURT: You call that communicating? Do you? Do you call that communicating?
A. That’s communicating.
THE COURT: Do you call it preparing for trial albeit perju-riously preparing for trial, preparing what you’re going to say.
Do you call it that?
A. (Inaudible.)”

A trial court is free to examine witnesses in its discretion, provided it does not become an advocate, abandoning its function as an impartial tribunal. (People v. Trefonas (1956), 9 Ill. 2d 92, 100, 136 N.E.2d 817, 821.) Trefonas concerned a bench trial in which the judge extensively questioned two codefendants regarding conflicts between their signed statements and their testimony at trial. The supreme court held that, as a seeker of truth, the trial court was justified in making such inquiries. (9 Ill. 2d at 100, 136 N.E.2d at 821.) Similarly, in People v. Sudzus (1984), 121 Ill. App. 3d 387, 390, 459 N.E.2d 1099, 1101-02, this court found no prejudice to defendant in a bench trial where the trial judge asked him whether he had kept a record of sale for his automobile, a question relevant to the veracity of defendant’s previous testimony.

We note particularly that the danger of prejudice due to judicial questioning decreases sharply in cases tried without a jury. (United States v. Kidding (7th Cir. 1977), 560 F.2d 1303, 1314, cert. denied sub nom. Brown v. United States (1977), 434 U.S. 872, 54 L. Ed. 2d 151, 98 S. Ct. 217.) The relevant inquiry in a non-jury trial is whether the tenor of the court’s questioning indicates that the court has prejudged the verdict before hearing all of the evidence. (560 F.2d at 1314.) In Kidding, the court found that in the absence of any evidence of prejudgment by the trial court, the fact that the judge asked two defendants a total of 56 questions spanning 12 pages of transcript did not mandate reversal. 560 F.2d at 1314.

In the present case, the judge noticed a conflict between defendant’s testimony on redirect examination that his former attorney told him to lie and defendant’s allegation in his first motion for a new trial that the former attorney failed to communicate with him before trial. The judge then sought to elicit from defendant whether indeed there was such a conflict. Although ultimately this inquiry resulted in further impeachment, defendant’s credibility had already been so seriously damaged during cross-examination that it would be unrealistic to impute prejudice to the court.

We find that the State more than adequately met its burden of proof in this case and that any alleged improprieties of the trial judge were harmless beyond a reasonable doubt. Accordingly, we affirm.

Affirmed.

HARTMAN and BILANDIC, JJ., concur.

      Despite defendant’s efforts both in this court and the trial court to argue that the State should have entered the key into evidence, defendant has provided no cases mandating such production. In fact, the law clearly holds that absent proof of intentional destruction, the existence of a tangible object may be proved even by circumstantial evidence. (People v. Lopez (1982), 107 Ill. App. 3d 792, 796, 438 N.E.2d 604, 507 (proof of illegal substance in narcotics prosecution).) Here, we have not only the benefit of Officer Cannon’s direct testimony about the key, but it is also notable that defendant failed to object to it at trial.


author: JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN BUTLER, JR., Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—1724
    Opinion filed February 7, 1990.
    Randolph N. Stone, Public Defender, of Chicago (Michael Halloran, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Adrienne K. Lund, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

Defendant, John Butler, Jr., was charged with aggravated battery. The trial court entered a finding of not guilty by reason of insanity. Defendant was subsequently placed in the custody of the Illinois Department of Mental Health (Department) on an in-patient basis. Eventually, defendant was conditionally released from the custody of the Department. Defendant appeals from an order of the court extending the period of his conditional release. Defendant raises two issues on appeal: (1) whether the State’s petition to extend the period of conditional release was void because it failed to comply with the statutory requirements; and (2) whether the hearing to extend conditional release failed to satisfy due process requirements.

In November 1980, the trial court found defendant not guilty by reason of insanity. In February of the following year it entered an order finding defendant to be in need of psychiatric hospital treatment and subject to involuntary admission and placing defendant in the Department’s custody on an in-patient basis. The Department was ordered to provide psychiatric treatment for defendant and to report defendant’s condition to the court every 30 days. The order specified that defendant’s treatment was to be “structured with a view towards eventual out-patient treatment at the Isaac Ray Center or other appropriate facility within the shortest possible period considering the defendant’s condition and progress as an in-patient.” Six months later the court ordered an examination of defendant to determine his need for mental health services. Pursuant to that order, Dr. Gilbert Bogen of the Psychiatric Institute sent a letter to the trial court dated August 13, 1981, reporting the results of an examination of defendant and concluding that defendant’s mental illness was in a state of remission. The doctor recommended that defendant be allowed home visits and that, if those visits were successful, defendant be discharged from the hospital and treated at the Isaac Ray Center (Center) on an out-patient basis. On that same date, the State petitioned the court to have defendant examined to determine his need for mental health services and to set a date for a hearing regarding his conditional release. The court entered an order directing the Department to allow defendant home visits at its discretion, and ordering defendant to return to court September 24 for a hearing regarding conditional release. On October 22, the court entered an order releasing defendant from the Department’s custody, directing him to participate in an out-patient program administered by the Center, and directing the staff at the Center to report on defendant’s progress every 90 days. Although the record does not indicate the circumstances leading to defendant’s subsequent admission to the Elgin Mental Health Center, it does contain five letters to the court from the superintendent of that facility sent over a period of several months beginning in April 1984 and ending the following November. The letters reviewed defendant’s progress and treatment plan.

On May 20, 1987, the trial court held a hearing to determine whether defendant’s period of conditional release should be extended. At that hearing the State requested that defendant’s period of conditional release be extended for another three years. Defense counsel stated that she was making a special appearance to contest the court’s jurisdiction over the proceedings. The State replied that although defendant’s period of conditional release had technically expired in October 1986, Barbara Wines of the Center sent a letter to the court dated September 10, 1986, asking the court to extend the period, but the record does not include a copy of this letter. A representative from the Center then addressed the court, commenting that defendant’s treatment therapist was on vacation. The representative told the court that defendant had admitted stealing from his parents and abusing drugs. Further, the court was informed that defendant’s living situation was tenuous in that he had been evicted from a halfway house and the Center did not know where he was living. The representative commented that defendant denied having any problems and that his drug abuse did not pose a problem even though he was employed as a school bus driver. When the representative stated that defendant “was driving a school bus and using cocaine,” defendant immediately replied, “I’m not on cocaine.” When defense counsel then asked to be heard, the trial court responded as follows:

“I will hear you, but I’m going to do something about it, Miss Horn [assistant public defender], he’s got children’s lives in his hands, let him kill himself if he wants- to, but he’s not going to kill any kids because he’s a dopey.”

The following exchange then occurred between defense counsel and the court:

“MS. HORN: First, judge, to date, number one, his conditional discharge did expire in October of 1986. To this very day I have not received a petition for extension of the time, a written petition for extension of time.
THE COURT: Give her a petition.
MS. HORN: That is required from Section 1005 — 2—4—A—1 today.
Secondly, Judge, it is my contention that that petition and the hearing on that petition must be completed before the expiration of Mr. Butler’s conditional discharge.
THE COURT: Too bad.
MS. HORN: Lastly, Judge, until I get a written petition I will be unable to prepare any defense that Mr. Butler may have.
THE COURT: He doesn’t have no defense if he’s on dope and running a bus.
MS. HORN: Until today I did not know what the allegations were.
THE COURT: Now you know.
MS. HORN: I want them in writing.
THE COURT: You’ll get them.”

The court then addressed defendant as follows:

“THE COURT: All right, you’ve got no choice, what you want to say, you’re not on dope?
THE DEFENDANT: Well, they suspect it, you know, and I drive a school bus.
THE COURT: She [Isaac Ray Center Representative] says you admitted it.
THE DEFENDANT: No, I did not admit it.”

The court then ordered that defendant’s period of treatment be extended and that defendant report to the Center twice a week to be tested for the presence of narcotics in his system. The court informed defendant that if he was found to be taking narcotics, the court would have him discharged from his job and either readmitted to the hospital or jailed. The court then ordered the State to prepare a draft order and to give defense counsel a copy of the petition. The State responded that it would file the petition that very day.

Defendant argues that the trial court’s order must be vacated because the State’s petition was void in that it: (1) was filed after the expiration of his period of conditional release; (2) failed to comply with the requirements of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1987, ch. 91V2, par. 1 — 100 et seq.); and (3) failed to satisfy due process notice requirements.

We first consider whether the order extending defendant’s conditional release was invalid because the State filed its petition after the expiration of defendant’s period of conditional release. Guided by the supreme court’s holding in People v. Cooper (1989), 132 Ill. 2d 347, we find that the late filing of the State’s petition did not render the trial court’s order invalid. In Cooper, defendant was found to be a sexually dangerous person and was granted a conditional release pursuant to the Sexually Dangerous Persons Act (Act) (Ill. Rev. Stat. 1979, ch. 38, par. 105 — 1.01 et seq.). Defendant argued that the trial court lacked jurisdiction to revoke his conditional release because the court entered its order after the period of his conditional release had expired. The supreme court rejected that argument, holding that defendant remained subject to the jurisdiction of the trial court after the expiration of the order of conditional release because the order did not provide for a discharge, and that a sexually dangerous person who has been conditionally released retains that status until the trial court grants a petition for a discharge. In so holding the court reasoned that the legislative purpose of the Act was to treat those persons found to be sexually dangerous and to protect the public, and that those purposes would not be served if the court was allowed to prognosticate that a person will no longer be sexually dangerous if he completes a term of conditional release. (People v. Cooper, 132 Ill. 2d at 355.) Rather, the court must make a current finding that he is not sexually dangerous. (People v. Cooper, 132 Ill. 2d at 356.) In Cooper, the defendant analogized conditional releases to terms of probation which automatically terminate unless the State acts to toll them. The court rejected this analogy, finding a fundamental difference between probation and conditional release, which difference bars any application of probation’s automatic discharge rule to conditional releases. (People v. Cooper, 132 Ill. 2d at 356-57.) The court explained that whereas probation is a sentence imposed for criminal convictions, conditional release is one aspect of treatment of sexually dangerous persons who are committed to the Department of Corrections instead of being prosecuted for a criminal offense. (People v. Cooper, 132 Ill. 2d at 357.) We find that the situation of a defendant who is found not guilty by reason of insánity and who is granted a conditional release is sufficiently similar to a defendant who is determined to be a sexually dangerous person. Like a sexually dangerous person who is committed to the Department of Corrections for treatment instead of being prosecuted, a defendant who is found not guilty by reason of insanity is also not prosecuted for the offense, but is committed to the custody of the Department of Mental Health to receive treatment for his mental illness. Just as a court cannot be allowed to prognosticate that a person will no longer be sexually dangerous if he completes a term of conditional release, a court cannot prognosticate that a person will no longer be mentally ill after completing a term of conditional release. Consequently, the trial court retained jurisdiction over defendant after the expiration of the order of conditional release, even though the State did not file its petition to extend the term of defendant’s conditional release until the term had expired. Consequently, the order extending the conditional release was not invalid on this ground.

Defendant also argues that the order extending the period of conditional release was invalid because the manner in which the hearing was conducted failed to satisfy due process requirements. Our review of the circumstances surrounding the extension of defendant’s conditional release causes us to conclude that defendant’s due process rights were violated. The procedural aspects of due process and equal protection of the laws require that a person be given notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the case. (Nye v. Parkway Bank & Trust Co. (1983), 114 Ill. App. 3d 272, 274, 448 N.E.2d 918.) First, there is no evidence in the record that defendant or his attorney received adequate notice of the hearing. The State argues that a letter written to the court by staff personnel at the Center and dated September 10, 1986, put defendant on notice that the Center was requesting an extension of his period of conditional release. The only evidence of such a letter was the State’s reference to it at the hearing. There is no other evidence as to the content of the letter or to whom it was sent. Consequently, it is impossible to determine from the record whether the letter referred to by the State constituted sufficient notice. The State further argues that even if the letter was not sufficient notice, the petition filed by the State constituted ample notice. We disagree. The record indicates that the petition was written and filed after the hearing was conducted and after the trial court extended defendant’s period of conditional release. Whether or not the actual contents of the petition were sufficient to duly notify defendant is irrelevant in this case in view of the fact that the petition was not filed until after the hearing.

We further find that even if defendant had been given adequate notice of the hearing, our review of the transcript of the proceedings causes us to conclude that he was not provided a sufficient opportunity to be heard. We first note that there was no sworn testimony. The person who wrote the letter referred to by the State addressed the court but she was never sworn. She stated that defendant was stealing drugs, that his living situation was tenuous and that defendant admitted using cocaine. Defendant replied that he never made such an admission and that he was not using cocaine. When defendant’s attorney told the court that she had not received a copy of the petition, the court directed the State to “give her a petition.” When she stated that the petition and the hearing thereon had to' be conducted prior to the expiration of defendant’s period of conditional release the court replied, “[t]oo bad.” When she stated that she would be unable to prepare a defense until she had a copy of the petition, the court responded, “[h]e doesn’t have no defense if he’s on dope and running a bus.” When defendant’s attorney replied that she did not know what the allegations were until the time of the hearing the court responded, “[n]ow you know.” After reviewing this record, we can only conclude that defendant’s right to due process was violated in that he was not provided with adequate notice or with an opportunity to be heard and to defend in an orderly proceeding.

For the aforementioned reasons, we reverse the circuit court’s order extending defendant’s period of conditional release, and we remand the cause with directions that a new hearing on the matter be conducted.

Reversed and remanded.

CERDA, P.J., and FREEMAN, J., concur.


author: JUSTICE JOHNSON

text:
    UNIVERSAL OUTDOOR, INC., Plaintiff-Appellant, v. THE VILLAGE OF ELK GROVE, Defendant-Appellee.
    First District (4th Division)
    No. 1—88—2271
    Opinion filed February 8, 1990.

      Schain, Firsel & Burney, of Chicago, for appellant.
    George B. Knickerbocker, of Samelson, Knickerbocker & Payne, of Des Plaines, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

This is an appeal from the circuit court of Cook County granting a motion filed by defendant, the Village of Elk Grove, to strike and dismiss, pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), an amended complaint filed by plaintiff, Universal Outdoor, Inc. The following issues are presented for review: (1) whether the Illinois Highway Advertising Control Act of 1971 (Ill. Rev. Stat. 1987, ch. 121, par. 501 et seq.) preempts defendant’s more restrictive sign ordinance, and (2) whether plaintiff’s amended complaint states a cause of action.

We affirm.

Plaintiff is engaged in the business of outdoor advertising. Allegedly, plaintiff entered into several lease agreements to construct outdoor advertising structures on seven sites located within defendant's corporate limits. The lease agreements, which were conditioned upon plaintiff obtaining State and local permits, allowed for the construetion of double-faced billboards, 672 square feet per face and would range from 30 to 60 feet in height. Defendant denied the permits because of various ordinance violations.

Plaintiff filed a complaint seeking injunctive and other relief due to defendant’s denial of the requested permits. This complaint was stricken because it combined various causes of action in separate counts in violation of section 2 — 603(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 603(b)). Plaintiff then filed an amended complaint. Defendant moved to dismiss the amended complaint as substantially insufficient at law pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). The trial court granted defendant’s motion and dismissed plaintiff’s amended complaint with prejudice. This appeal followed.

Dismissal is proper where plaintiff makes conclusory allegations without factual basis; specific facts must be pleaded upon which such conclusions rest. (Tru-Link Fence v. Reuben H. Donnelley Corp. (1982), 104 Ill. App. 3d 745, 752.) Well-pleaded facts must be taken as true but conclusions need not be accepted. Chicago Teachers Union v. Board of Education (1973), 14 Ill. App. 3d 154, 156.

In determining the propriety of dismissal of an action, the appellate court is only concerned with questions of law presented by the pleadings. The sufficiency of the. complaint is determined by whether the essential elements of a cause of action are alleged.(Beese v. National Bank (1980), 82 Ill. App. 3d 932, 933.) We find that the trial court properly dismissed plaintiff’s complaint for failure to state a cause of action.

Plaintiff first contends that defendant’s local regulation of signs is preempted by the Highway Advertising Control Act of 1971 (Ill. Rev. Stat. 1987, ch. 121, par. 501 et seq.) (hereinafter Act). Plaintiff argues that under the terms of the Act, State legislation has preempted local municipalities from regulating the location or size of outdoor advertising signs which are located within 660 feet of the right-of-way of interstate and Federal-aid primary highways when the sign faces are visible therefrom. Section 1 of the Act provides:

“The General Assembly finds and declares that the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to Interstate highways *** should be regulated in order to protect the public investment in such highways, to promote the recreational value of public travel, to preserve natural beauty and to promote the reasonable, orderly and effective display of such signs, displays and devices.
The General Assembly further finds and declares that outdoor advertising is a legitimate, commercial use of private property adjacent to roads and highways; that outdoor advertising is an integral part of the business and marketing function, and an established segment of the national economy which serves to promote and protect private investments in commerce and industry and should be allowed to operate in business areas; and that the regulatory standards set forth in Section 6 of this Act are consistent with customary use in this State and will properly and adequately carry out each and all of the purposes of this Act, more severe restrictions being inconsistent with customary use and ineffective to accomplish the purposes of this Act.” Ill. Rev. Stat. 1987, ch. 121, par. 501.

Section 6.01 of the Act sets forth maximum size, lighting and spacing limitations consistent with the Federal requirements of the Highway Beautification Act of 1965 (23 U.S.C. §131 (1988)). With respect to size, the section provides:

“No sign may be erected which exceeds 1,200 square feet in area, 30 feet in height and 60 feet in length, including border and trim ***. The maximum size limitation shall apply to each side of a sign or sign structure. A maximum of 2 signs may be erected in a facing, in which event the facing shall be deemed to be one sign, the size of which may not exceed the dimensions listed in this Section.” (Ill. Rev. Stat. 1987, ch. 121, par. 506.01.)

Section 7 provides:

“In zoned commercial and industrial areas, whenever a State, county or municipal zoning authority has adopted laws or ordinances, which include regulations with respect to the size, lighting and spacing of signs, which regulations are consistent with the intent of this Act and with customary use, then from and after the effective date of such regulations, and so long as they shall continue in effect, the provisions of Section 6 shall not apply to the erection of signs in such areas.” Ill. Rev. Stat. 1987, ch. 121, par. 507.

Defendant’s ordinance, which is more restrictive than the Act, limits the size of the billboards to 25 feet in length and height and 300 square feet in surface area. Billboards are permitted on unimproved lots in its industrial zoned areas but are not permitted to be within 50 feet of an adjoining residential use district if the billboard is designed to face into and be visible from such district.

Section 7 and section 1 of the Act are incongruous due to the conflicting interests of the advertising sign industry and various municipalities. “The main purpose of the Act was to obtain Federal funds and that entailed maximum limitation on advertising signs. The protection for the advertising industry indicated by section 1 was an offshoot of the legislation. Section 7 was a protection for municipalities desiring additional limitations.” Dingeman Advertising, Inc. v. Village of Mt. Zion (1987), 157 Ill. App. 3d 461, 464.

Although there is nothing in the Act that would indicate which section is to prevail, we agree with the court’s reasoning in Dingeman Advertising, Inc. v. Village of Mt. Zion (1987), 157 Ill. App. 3d 461, 465, that to prevent various home rule municipalities from enacting more restrictive regulations would be absurd and contrary to the purpose of the Act, which is “to preserve natural beauty and to promote the reasonable, orderly and effective display of such signs, displays and devices.” Ill. Rev. Stat. 1987, ch. 121, par. 501.

In construing the conflicting sections, the court in Dingeman found that statutes should not be construed as containing superfluous provisions and that insofar as section 7 and section 1 conflict, section 7 controls. Dingeman, 157 Ill. App. 3d at 464-65; see also, National Advertising Co. v. Village of Downers Grove (1988), 166 Ill. App. 3d 58, 62 (holding that “section 7 should control, in the absence of any legislative determination of which conflicting interest should prevail”).

Plaintiff relies primarily upon National Advertising Co. v. City of Rolling Meadows (7th Cir. 1986), 789 F.2d 571, and Dolson Outdoor Advertising Co. v. City of Macomb (1977), 46 Ill. App. 3d 116, for the proposition that the Act preempts local municipalities from enacting more severe sign regulations than contained in the Act. We are not persuaded by the reasoning in these cases, which were decided prior to Dingeman and Downers Grove.

In Dolson, the court held that a non-home-rule municipality may not prohibit off-premise advertising and struck the municipality’s more restrictive regulatory scheme. We find this case distinguishable in that the court was concerned with non-home-rule municipalities. Defendant is a home rule municipality.

In National Advertising Co. v. City of Rolling Meadows (7th Cir.1986), 789 F.2d 571, the court held that the Dolson rule also applied to home rule municipalities. We, however, agree with the trial court in the instant case in holding that neither the State Act nor the Federal Act prohibits home rule municipalities from enacting more stringent regulations than contained in either act.

The trial court in the instant case correctly noted there must be more than mere implication in a statute to find that home rule units may not enact more restrictive sign regulations. This is contrary to the court’s suggestion in City of Rolling Meadows that “[t]he 1971 Act calls for uniformity on the subjects mentioned in §6, which implies that home-rule jurisdictions have no powers *** to regulate signs.” Rolling Meadows, 789 F.2d at 576.

The 1970 Constitution of the State of Illinois provides, with respect to home rule municipalities, as follows:

“[A] home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt.” Ill. Const. 1970, art. VII, §6(a).

“A statute intended to limit or deny home rule powers must contain an express statement to that effect.” (Stryker v. Village of Oak Park (1976), 62 Ill. 2d 523, 528.) We find no express statement contained within the Act that home rule municipalities may not enact more restrictive regulations pertaining to advertising signs. Rather, we agree with the trial court in finding that section 1 of the Act (Ill. Rev. Stat. 1987, ch. 121, par. 501), which contains the limiting language upon which plaintiff relies, is more, in effect, a preamble to the extent it conflicts with section 7 of the Act (Ill. Rev. Stat. 1987, ch. 121, par. 507). We, therefore, find that the trial court did not err in finding that the Act did not preempt defendant’s more restrictive sign regulatory ordinance.

Plaintiff next contends that defendant’s ordinance is facially invalid and that the distinction made in defendant’s regulatory treatment of improved and unimproved lots is arbitrary, capricious, confiscatory and serves no valid constitutional interests. We, however, find no factual support for these allegations. Dismissal is proper where plaintiff makes conclusory allegations without factual basis. Tru-Link Fence v. Rueben H. Donnelley Corp. (1982), 104 Ill. App. 3d 745, 752.

Plaintiff does not give a factual basis as to how the ordinance unreasonably denies plaintiff the use of the leased properties; why the ordinance is a wrongful restriction on commercial speech and expression; why the ordinance is tantamount to a wrongful taking; why the different regulatory treatment of improved and unimproved lots is arbitrary and capricious; or how due process was wrongfully denied.

We also find merit in defendant’s argument that plaintiff failed to exhaust its administrative remedies prior to the commencement of this litigation. Defendant correctly cites to Northwestern University v. City of Evanston (1978), 74 Ill. 2d 80, for the proposition that a property owner who complains that a local ordinance is arbitrary and capricious must first exhaust his administrative remedies before seeking judicial relief. In the instant case, plaintiff, instead of seeking variations or an amendment to the ordinance, commenced litigation. The exhaustion requirement is not met by merely alleging that an ordinance is unconstitutional on its face. Northwestern University, 74 Ill. 2d at 87.

For the foregoing reasons, we find that plaintiff’s amended complaint was properly dismissed for failure to state a cause of action.

Affirmed.

McMORROW, P.J., and LINN, J., concur.


author: JUSTICE McNAMARA

text:
    MARY C. LIDECKER et al., Plaintiffs-Appellants, v. KENDALL COLLEGE et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—88—3630
    Opinion filed January 19, 1990.
    Rehearing denied February 20, 1990.

      Henry Thrush Synek, of Chicago, for appellants.
    James S. Whitehead and Jean F. Holloway, both of Sidley & Austin, of Chicago, for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court;

Plaintiffs Mary C. Lidecker, Antoinette Maglione, Maureen Baldridge and Mary Barrett were nursing students at defendant Kendall College in Evanston, Illinois, where defendant Dr. Andrew Cothran was president and defendant Albert L; Furbay was vice-president for academic affairs. Plaintiffs sued defendants after discovering that the school was not accredited. In a trial without a jury, the trial court granted defendants’ motion for judgment at the close of plaintiffs’ case in chief. Plaintiffs appeal, contending that the trial court’s decision is against the manifest weight of the evidence because plaintiffs established their claims of common law and statutory fraud, and their claim for breach of contract.

The extensive transcript of proceedings has been thoroughly reviewed. The evidence is summarized here.

On December 12, 1985, plaintiffs filed a 105-page complaint alleging common law fraud, violations of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121V2, par. 262 et seq.), violations of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1985, ch. 121V2, par. 312 et seq.), and breach of contract. Plaintiffs focused the theories on defendants’ failure to affirmatively inform plaintiffs prior to their enrollment that the nursing program was not yet eligible to receive accreditation by the National League for Nursing, Inc. (NLN), a private organization which accredits nursing education programs, and defendants’ failure to communicate the significance of the lack of accreditation.

At the February 1988 trial, plaintiffs presented 11 witnesses, including defendants Cothran and Furbay, and Alma Labunski, the former director of Kendall’s nursing program. Plaintiffs also introduced 70 exhibits into evidence.

Cothran testified that he had been Kendall’s president since 1972. Furbay testified that he became Kendall’s vice-president for academic affairs and dean of the college on October 1, 1983. Thus, he had no responsibility for preparation of the 1981-83 Kendall catalogue or other descriptive information distributed to plaintiffs. (Plaintiffs do not contest that fact, but still seek to impose liability upon Furbay). Labunski became director of the nursing program in March 1982. La-bunski worked closely with most aspects of the college’s request for NLN accreditation.

In 1976, Kendall began offering a four-year nursing program with a bachelor’s degree. In November 1978, Kendall was given permission to initiate the nursing program by the Committee of Nurse Examiners of the Illinois State Department of Registration and Education. Its first class began in the 1979-80 academic year. Plaintiffs Lidecker and Maglione transferred to Kendall in fall 1982 as sophomores from Oakton Community College. Plaintiff Baldridge also entered the nursing program as a sophomore in fall 1982. Plaintiff Barrett reenrolled as a sophomore in fall 1982.

The catalogue described a program which would prepare students for “entry-level positions” in nursing; prepare students “for licensure as Registered Nurses”; “prepare students for the practice of professional nursing” and the delivery of health care. The catalogue stated that Kendall was empowered by relevant agencies to offer the nursing program. There was no reference to accreditation by any professional group. In fact, NLN accreditation could not be received until the program graduated its first class of students in June 1983.

Plaintiffs testified that they made little or no effort to obtain information about the nursing program or accreditation prior to enrolling. Baldridge never read the college catalogue. Barrett obtained no written material about the program. Lidecker and Maglione looked through the catalogue.

In fall 1982, plaintiffs were enrolled in Nursing 211. Labunski attended several class sessions. She informed the class that NLN was a voluntary, independent accrediting body that would evaluate the nursing program after the first class graduated in 1983. She explained the accreditation process. She also answered questions regarding accreditation and explained that accreditation was not necessary for the li-censure examination or for obtaining employment. Lidecker and Mag-lione denied that Labunski ever discussed the significance of accreditation. Baldridge testified to the contrary. Plaintiffs sought no further information, but continued as students, although they could have transferred to another program at the end of their sophomore year without having to repeat any course work. They would then have received their B.S.N. degree in June 1985, as planned.

In February 1984, the NLN site-visitation team began its accreditation process. They met -with nursing students to get their views of the school. On April 4, 1984, NLN voted to deny initial accreditation. Labunski then met with the students to inform them that the application had been denied and that Kendall would appeal the decision. In June 1984, the appeal was denied.

On July 2, 1984, Kendall officials met with the students. Students, including plaintiffs, who had completed their junior year could remain at Kendall for their final year. They could also transfer to another nursing program. However, they might not be given senior status in another program due to a different sequencing of courses, and might have to repeat their junior year. Ten of the fifteen members of that class returned to Kendall for their senior year. After graduation, nine immediately passed the State licensure examination, and the tenth graduate passed shortly thereafter. They were all employed in staff nursing jobs equal to those occupied by graduates from accredited programs. One entered a graduate nursing program. The four plaintiffs chose to transfer to Rush University, where they repeated their junior years and graduated in 1986. At trial, Baldridge testified she worked at Children’s Memorial Hospital, where three Kendall nursing program graduates also worked. Lidecker worked at Glenbrook Hospital, where one Kendall graduate worked. Lidecker knew of five other Kendall graduates working as nurses in Chicago-area hospitals.

At the close of plaintiffs’ case in chief, defendant moved for judgment pursuant to section 2 — 1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1110) on the grounds that plaintiffs failed to present sufficient evidence to warrant further proceedings. The parties submitted briefs, and the court granted the motion. On June 9, 1988, the trial court entered a written decision. On November 14,1988, the court denied plaintiffs’ motion for reconsideration.

Plaintiffs first contend that the trial court’s findings as to the fraud counts were against the manifest weight of the evidence. Initially, we note that plaintiffs incorrectly assert that the trial court was obligated to view the evidence in a light most favorable to plaintiffs. Under section 2 — 1110 of the Code of Civil Procedure, in a case tried without a jury, defendant may move for a finding or judgment at the close of plaintiff’s case. “In ruling on the motion the court shall weigh the evidence, considering the credibility of the witnesses and the weight and quality of the evidence.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1110.) The motion is properly granted, therefore, where plaintiff has failed to establish a prima facie case on any claim. (Heller v. Jonathan Investments, Inc. (1986), 113 Ill. 2d 60, 495 N.E.2d 589.) In order to establish a prima facie case, plaintiff must produce at least some credible evidence supporting each of the elements of each cause of action. (Heller v. Jonathan Investments, Inc., 113 Ill. 2d 60, 495 N.E.2d 589.) If plaintiff produces some credible evidence, the court may still enter judgment for defendant if it determines plaintiff failed to present sufficient evidence to carry the burden of persuasion. (Heller v. Jonathan Investments, Inc., 113 Ill. 2d 60, 495 N.E.2d 589.) We will not disturb that judgment unless it is contrary to the manifest weight of the evidence. Greenwald v. Spring Hill Ford, Inc. (1988), 173 Ill. App. 3d 857, 527 N.E.2d 1095.

Counts I, IV, VII and X allege common law fraud. Counts III, VI, IX and XII allege statutory fraud. Plaintiffs are required to prove the fraud counts by clear and convincing evidence. (In re Application of Rosewell (1985), 106 Ill. 2d 311, 478 N.E.2d 343.) The elements of common law fraud include a false statement or omission of material fact, which is made by defendant with the intent to deceive and induce plaintiff to act, plus justifiable reliance by plaintiff on the false statement or omission, and an actual injury to plaintiff as a result of the misstatement or omission. (Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1986), 114 Ill. 2d 278, 499 N.E.2d 1319.) Plaintiff must also establish that defendant has a duty to inform plaintiff of any allegedly omitted material fact. Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 510 N.E.2d 409.

Similarly, the elements for a claim under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121V2, par. 262 et seq.) are concealment, suppression or omission of a material fact, with the intent that others rely upon the concealment, suppression or omission, plus justifiable reliance by plaintiff. General Motors Acceptance Corp. v. Grissom (1986), 150 Ill. App. 3d 62, 501 N.E.2d 764.

While defendants failed to inform plaintiffs prior to their enrollment that the nursing program was not yet eligible for accreditation by the NLN, the trial court correctly found that plaintiffs “failed to present any evidence to prove that by the omission defendants intended to deceive or induce plaintiffs to act, or intended the plaintiffs to rely on the omission.”

Plaintiffs argue that proof of intent to deceive is apparent from Kendall’s “desperate need” for students, and the individual defendants’ wish to enhance their reputations. The evidence does not support these assertions. On the contrary, the evidence shows that some nursing students would have entered, and many students remained at Kendall even after discovering the absence of accreditation. The entire 1985 nursing class, of which plaintiffs were members, chose to remain at Kendall after learning that it had not been accredited.

In regard to plaintiffs’ failure to prove fraud, the trial court also found that plaintiffs failed to prove the omission proximately caused plaintiffs’ alleged injury.

Plaintiffs maintain they were injured because they had to repeat their junior year course work after transferring from Kendall to another nursing program, and thus had to graduate one year later than planned. The evidence clearly shows, however, that plaintiffs were fully informed by Labunski during their sophomore year class in fall 1982. Baldridge testified that Labunski remained in the class for 30 minutes, answering all questions posed about accreditation, including questions as to whether accreditation was necessary to take the State licensure examination or for future employment. Although Barrett maintains she was not present in the class, she was responsible for the material covered in that class. Even in the face of this information, plaintiffs chose not to transfer. Instead, they remained through their junior year.

Plaintiffs argue, however, that defendants were required to go one step further and affirmatively spell out to plaintiffs that they would be adversely affected if accreditation were later denied. In view of the important information which had been given to plaintiffs in class, they were required to inquire further, and not sit idle, in regard to the precise significance of that information. (See Madison Associates v. Bass (1987), 158 Ill. App. 3d 526, 511 N.E.2d 690.) The mere hope that the accreditation would be successful does not excuse a duty to inquire further. Moreover, the evidence showed that future employment or graduate school opportunities were not necessarily adversely affected by graduation from a nonaccredited nursing program.

Plaintiffs also assert they were assured by Labunski and Cothran that the program would become accredited. Predictions about the future are opinions and not actionable under a theory of fraud, (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634.) Moreover, the trial court was entitled to give more weight to Labunski’s testimony than to that of plaintiffs. The court’s finding that plaintiffs failed to prove proximate cause is supported by the evidence.

In regard to plaintiffs’ failure to prove fraud, the trial court also found, alternatively, that plaintiffs failed to prove the omission was material. Materiality can only be defined in the context of the transaction between the parties. (Mack v. Plaza Dewitt Limited Partnership (1985), 137 Ill. App. 3d 343, 484 N.E.2d 900.) Plaintiffs failed to show that ineligibility to receive accreditation was relevant to the achievement of Kendall’s stated objectives. Kendall unambiguously publicized the program as a practitioner-oriented program which prepared students for licensure and entry-level employment. Plaintiffs failed to show that the absence of accreditation materially affected these stated purposes. Instead, Labunski and plaintiffs demonstrated that the opposite was true. For example, Garlisch testified for plaintiffs that Lutheran General Hospital hires graduates from unaccredited nursing programs. Labunski testified that lack of accreditation would be no bar to employment, and plaintiffs did not contradict this statement. Instead, the employment histories of nurses who graduated from Kendall revealed that employment was not a problem. Thus, while accreditation was desirable, it does not fulfill the materiality requirements in a fraud cause of action.

Plaintiffs argue the lack of accreditation was material based on Jane Loye’s testimony that accreditation affected admission to the University of Illinois’ master’s program. Kendall, however, never held itself out to be a stepping stone to future graduate-level education. Moreover, Loye also testified that Illinois accepts graduates from non-accredited programs. In addition, Labunski testified that she had been assured by the deans of all Chicago-area master’s programs that a Kendall degree would not bar an otherwise qualified applicant from admission.

Plaintiffs seek to rely on a “Thorpe survey” to establish materiality. The exhibit was prepared by Ms. Thorpe, a Kendall employee. Apparently it summarizes numerous out-of-court statements made to her by unidentified persons who were not employees or agents of Kendall. The conversations pertained to hiring practices of other hospitals. The court admitted the survey into evidence for the narrow purpose of identifying a document that was given to Lidecker in summer 1984. It was not admitted for the truth of the matters contained therein. Plaintiffs’ attorney expressly stated, in response to defendants’ hearsay objection, that he was not offering the document for the truth of the matter asserted in it. The hearsay document cannot be used now as evidence supporting plaintiffs’ charges.

In regard to the fraud claims, plaintiffs also complain that the court failed to make a finding as to the relationship between an applicant and the college, or between a student and the college. Plaintiffs maintain that there is a fiduciary relationship between plaintiffs and defendants because defendants were the “experts,” in a “superior” position, and had “scienter of all material matters.”

In order to prove fraud by the intentional concealment of a material fact, it is necessary to show the existence of a special or fiduciary relationship, which would raise a duty to speak. (Salisbury v. Chapman Realty (1984), 124 Ill. App. 3d 1057, 465 N.E.2d 127; Zimmerman v. Northfield Real Estate, Inc., 156 Ill. App. 3d 154, 510 N.E.2d 409.) In this case, however, it is not necessary to determine whether a fiduciary relationship exists because we have already held that the trial court’s findings as to intent and materiality are overwhelmingly supported by the evidence.

We hold that the trial court’s conclusion that plaintiffs failed to prove common law or statutory fraud by clear and convincing evidence was proper.

Next, plaintiffs contend the trial court erred in finding plaintiffs failed to prove breach of contract. Counts II, V, VIII and XI allege breach of contract. Plaintiffs must prove a breach of contract cause of action by a preponderance of the evidence. The trial court found that plaintiffs failed to show defendants made any promise that was not kept.

We agree with the trial court that the catalogue, plaintiffs’ only evidence on this point, demonstrates the promises made included giving a four-year bachelor of science degree to prepare graduates to take the examination for licensure and prepare students for nursing practice. Plaintiffs introduced no credible evidence to show these promises were not kept. Plaintiffs’ arguments that defendants offered an implied promise of a certain quality of education fail because there was no showing of such a promise, and even if there had been a promise, there was no breach of that promise. Most importantly, however, plaintiffs failed to prove defendants promised an accredited nursing program.

The court’s findings in regard to proof of promises made by defendants to plaintiffs are well supported by the evidence. Thus, we will not disturb the court’s conclusion that plaintiffs failed to prove breach of contract by a preponderance of the evidence.

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

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.