author: PRESIDING JUSTICE INGLIS

text:
    SALVATORE SAIEVA, Plaintiff-Appellant, v. BUDGET RENT-A-CAR OF ROCKFORD, d/b/a Budget Rent-A-Car, et al., Defendants-Appellees.
    Second District
    No. 2—91—0600
    Opinion filed April 23, 1992.

      Norman R. Wheeler, of Vella, Sparkman & Altamore, P.G., of Rockford (James Sparkman, of counsel), for appellant.

      Williams & McCarthy, P.C., of Rockford (James P. Devine and Gary L. Hayden, of counsel), for appellee Budget Rent-A-Car of Rockford.
    Daniel P. Hogan, of Ross & Hardies, of Chicago, for appellee Ford Motor Company.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Salvatore Saieva, brought this action to recover damages resulting from a one-vehicle accident that he experienced while driving a rental van on November 28, 1987. Plaintiff alleged that the accident was caused either by the negligence of defendant Budget Rent-A-Car (Budget) or by a product defect in the van that existed at the time of the van’s manufacture by defendant Ford Motor Company (Ford). The circuit court of Winnebago County granted summary judgment to both defendants, and plaintiff made a timely appeal. We affirm.

THE ACCIDENT

According to plaintiff’s deposition testimony, he rented a 1987 Ford Econoline 250 cargo van from Budget on November 28, 1987, to move some personal belongings from his home to his parents’ home. By late evening, he had driven three round trips in the van, each round trip being approximately six miles. The rental van had been in service for over a year and had logged over 22,000 miles. At approximately 9:15 p.m., plaintiff was driving the van south on Montague Road, a rural two-lane highway which was described as bumpy, wet, and slick, at between 55 and 65 miles per hour. It was either raining or the rain had just stopped. Just before the accident occurred, plaintiff had braked suddenly to avoid a deer in the road. About a half mile farther down the road on a straight section, the rear end of the van began fishtailing. The van began to spin, eventually leaving the road and striking a fence in the ditch, injuring plaintiff and damaging the right rear portion of the van.

The accident was observed by John Glasgow, plaintiff’s brother-in-law, who was following plaintiff in another vehicle. According to Glasgow’s deposition testimony, plaintiff was driving at speeds of up to 65 miles per hour. Glasgow further stated that the brake lights were not illuminated when the van started to skid, although the brake lights had been working prior to the accident. Robert Wickwire, plaintiff’s father-in-law, arrived at the scene immediately following the accident. Both Glasgow and Wickwire stated in their depositions that when the wrecker towed the van from the ditch, the right rear wheel was skidding and appeared to be locked up. Illinois State Trooper Leland Files stated in his deposition that he issued a citation for defective brakes based on his interview with plaintiff and the fact that the right rear wheel of the van was locked.

Sandra Johnson, manager of the local Budget agency where plaintiff rented the van, submitted a sworn affidavit with the following information. Budget brought the van to Rock River Ford, a Ford dealership in Rockford, on the Monday following the accident. A repair ticket dated November 30, 1987, two days after the accident (No. 60198, van mileage 22,954), indicates that acting upon Budget’s concern about a possible lockup problem with the rear brakes, the rear brakes were cleaned, lubed and adjusted, and that the van was road tested. Budget was charged $18 for that repair. Another repair ticket dated December 11, 1987, 13 days after the accident (No. 60325, van mileage 22,965), indicates that again acting upon Budget’s concern over the rear brakes possibly locking up, the rear brake shoes were replaced and the emergency brake cable control was repaired. The following was written at the bottom of the repair ticket: “Professional Opinion[:] Vehicle has been driven with Emerg. Brake On[,] per Don Lucas.” The record is unclear as to who Don Lucas is. Budget was charged $111.30 for that repair. Johnson also stated in her affidavit that “[a]t no time prior to the accident was there any evidence of any defect or problem with the [van’s] braking system.” Budget put the van back in rental service, eventually selling the van on March 5, 1988.

An affidavit from Roland L. Ruhl, a mechanical engineer and plaintiff’s expert, was submitted to the trial court in support of plaintiff’s motion to deny defendants’ motions for summary judgment. Ford correctly notes in its brief that Ruhl never actually examined the van. Ruhl made several conclusions concerning the van and the accident, the first of which was that leaving the emergency brake on could not have caused this accident. Ruhl reasoned that the design of the emergency brake cable is such as to provide equal cable tension to each shoe set and that, absent defective shoe adjustment or the presence of a foreign matter, no preference should exist for just one shoe set to lock against its drum. He also reasoned that if the emergency brake was on, seizure of both rear shoes should occur initially, not later after they heat up and become less effective. Ruhl opined that seizure of the right rear shoe will cause the vehicle to pull to the right and that any left steer by the driver to correct for the pull will set up sufficient conditions for a counterclockwise spin on wet pavement. Ruhl stated that a properly adjusted and set emergency brake should prevent the vehicle from moving to start with or make it virtually impossible to drive the vehicle normally. Ruhl opined that the “[mjajor likely causes of brake seizure include improperly adjusted brake shoes, and foreign matter on the shoe drum interface[; a] leaking rear axle seal is a likely candidate.”

PROCEDURAL HISTORY

Plaintiff filed his first complaint on December 29, 1988, against Budget. Count I of that complaint was a negligence claim while count II was a strict liability claim. The trial court granted Budget’s motion to dismiss count I, apparently because the trial court agreed with Budget that the allegations in count I were conclusory. The trial court continued Budget’s motion to dismiss count II, which invoked the protection of the “seller’s exception” provided by section 2 — 621 of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 621) (allowing for dismissal of a strict liability product claim against a nonmanufacturer upon its certifying the identity of product manufacturer), until such time as Ford “shall have answered or been required to answer” the complaint.

Plaintiff filed an amended complaint on February 6, 1989, which consisted of three counts: count I was a negligence claim against Budget, count II was a strict liability claim against Budget, and count III was a strict liability claim against Ford. On June 1, 1990, the trial court granted Budget’s motion to dismiss count II of the amended complaint, apparently based on Budget’s prior section 2 — 621 motion. By that date, Budget had certified that Ford manufactured the van, Ford had made an appearance and Ford had admitted that it manufactured the van. On July 6, 1990, the trial court denied plaintiff’s motion to reconsider its dismissal of count II.

During February and March 1990, Budget and Ford filed motions for summary judgment concerning counts I and III, respectively. The trial court granted both motions on September 24, 1990. On May 6, 1991, the trial court denied plaintiff’s motion to reconsider. On May 7, 1991, the trial court denied plaintiff’s motion to vacate the order granting summary judgment in favor of Budget and denied plaintiff’s motion to file a second amended complaint against Budget.

Plaintiff made this timely appeal. Plaintiff argues that the trial court erred (1) in its dismissal of plaintiff’s strict liability claim against Budget; (2) in its grant of summary judgment to Budget on plaintiff’s negligence claim; and (3) in its grant of summary judgment to Ford on plaintiff’s strict liability claim. We will address each issue separately.

PLAINTIFF’S STRICT LIABILITY CLAIM AGAINST BUDGET

At issue is whether the trial court erred in its dismissal, pursuant to section 2 — 621 of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 621), of plaintiff’s strict liability claim against Budget. Plaintiff argues that strict liability claims have long been recognized as applying to car rental agencies, citing Galluccio v. Hertz Corp. (1971), 1 Ill. App. 3d 272. Plaintiff further argues that the trial court here employed an overly broad application of section 2 — 621, citing Bastian v. Wausau Homes, Inc. (N.D. Ill. 1986), 638 F. Supp. 1325. Budget argues that the trial court properly applied section 2 — 621, since Ford, the manufacturer of the van, had at that point become a party to the suit.

We first examine section 2 — 621 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 621). This court has stated that section 2 — 621, known as the “seller’s exception,” allows for the dismissal of a nonmanufacturer defendant from a strict liability product claim upon its certifying the correct identity of the manufacturer of the allegedly defective product. (Logan v. West Coast Cycle Supply Co. (1990), 197 Ill. App. 3d 185, 190; see Cherry v. Siemans Medical Systems, Inc. (1990), 206 Ill. App. 3d 1055, 1060-61.) The Illinois Supreme Court summarized section 2 — 621 as follows:

“Section 2 — 621 provides a method by which a nonmanufacturer may be dismissed from a product liability action at an early stage in the proceedings and therefore avoid incurring the costs that arise from defending such actions. The statute provides that a nonmanufacturer ‘shall upon answering or otherwise pleading file an affidavit certifying the correct identity of the manufacturer of the product allegedly causing injury, death or damage.’ (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 621(a).) Once the product manufacturer has been sued and has answered or otherwise pleaded, the trial court is to dismiss the certifying defendants. (Ill. Rev. Stat. 1985, ch. 110, par. 2— 621(b).) A defendant is not to be dismissed from the action, however, if it shares some responsibility for the creation of the defect in the product or had actual knowledge of its existence. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 621(c).) Moreover, when an action against the product manufacturer would be impossible or unavailing, the plaintiff may at any time move for reinstatement of a previously dismissed defendant.” Kellerman v. Crowe (1987), 119 Ill. 2d 111, 113-14.

In Logan, this court held that “[o]n its face, section 2 — 621 does not require anything more than certification of the correct identity of the [product] manufacturer.” (Logan, 197 Ill. App. 3d at 191.) We then held that to overcome a section 2 — 621 motion, the plaintiff must show that the “certifying defendant exercised some significant control over the design or manufacture of the product, or had actual knowledge of, or created, the defect.” Logan, 197 Ill. App. 3d at 191, citing Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 621(c)(1) through (c)(3).

Plaintiffs argument that he should be able to maintain a strict liability product action against a downstream seller, Budget, who has properly certified the identity of the product manufacturer who is now a party to the suit (Ford) is simply contrary to the language of section 2 — 621 and cases which have interpreted it. While it is true that all entities in the distributive stream of an allegedly defective product may be subject to strict liability in tort (Kellerman, 119 Ill. 2d at 116; Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 617), the purpose of section 2 — 621 is to allow a nonmanufacturing defendant, who has not been shown to have created or contributed to the alleged defect, to defer liability upstream to the ultimate wrongdoer, the manufacturer. (Cherry, 206 Ill. App. 3d at 1061; Logan, 197 Ill. App. 3d at 190.) We believe that the trial court properly dismissed plaintiff’s strict liability claim against Budget pursuant to section 2— 621.

Plaintiff asserts that Budget “had control over the automobile” and thus should not be able to be dismissed from the strict liability claim under section 2 — 621, citing Bastian v. Wausau Homes, Inc. (N.D. Ill. 1986), 638 F. Supp. 1325. Plaintiff’s argument misconstrues both section 2 — 621 and the holding in Bastían. Section 2 — 621(c) defines those situations when a nonmanufacturer defendant, who has otherwise complied with the statute, will not be dismissed. We find that none of the situations outlined in section 2 — 621(c) apply here. Count II of plaintiffs amended complaint does allege that Budget had exclusive control or possession of the van prior to and after plaintiff’s rental period. However, plaintiff does not allege in that count that Budget exercised significant control over the design or manufacture of the van, provided any instructions or warnings to the manufacturer (Ford), or had actual knowledge of, or created, the defect. See Filippini v. Ford Motor Co. (N.D. Ill. 1986), 110 F.R.D. 131, 134-35 (Federal court applied Illinois law, finding that car dealer was not an indispensable party to the product liability suit, in large part because the dealer could have easily invoked section 2 — 621 and been dismissed from the suit).

Plaintiff’s reliance on Bastían is misplaced. In Bastían, plaintiff’s prefabricated home was destroyed by fire. The home was heated by electrical baseboard heaters which plaintiff’s expert testified is where the fire began. Contrary to the situation here, the nonmanufacturer defendant in Bastian, the home builder (Wausau Homes), failed to comply with the section 2 — 621 requirement of an affidavit certifying the identity of the baseboard heater manufacturer. Instead, the home builder supplied a mere deposition extract. Furthermore, the court in Bastían noted that to dismiss the nonmanufacturer defendant would in essence “ignore the difficult factual questions of causation *** and decide now that the true defective product was the heater.” (Bastian, 638 F. Supp. at 1327.) There is no dispute here that the allegedly defective product is the Ford van. We therefore agree with Budget that Bastían is not controlling here.

Plaintiff’s reliance on Galluccio v. Hertz Corp. (1971), 1 Ill. App. 3d 272, is also misplaced. The court there extended strict product liability to lessors of vehicles, based on the earlier Suvada (32 Ill. 2d 612) decision rationale of protecting the injured party rather than the downstream seller who reaped the profit and created the risk. (Galluccio, 1 Ill. App. 3d at 278-79.) However, Galluccio did not address the application of section 2 — 621, which was enacted in 1979, eight years after the decision. Having previously found no error in the trial court’s dismissal of plaintiff’s strict liability claim against Budget pursuant to the requirements of section 2 — 621, we conclude that Galluccio is not dispositive here.

PLAINTIFF’S NEGLIGENCE CLAIM AGAINST BUDGET

At issue is whether the trial court erred by granting summary judgment to Budget on plaintiff’s negligence claim against Budget.

“While use of the summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit [citation], it is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt.” (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) Summary judgment is proper only when the pleadings, depositions, and affidavits show that no genuine issue of material fact exists and the moving party is entitled to summary judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Hagy v. McHenry County Conservation District (1989), 190 Ill. App. 3d 833, 842.) The evidence in the record must be construed strongly against the movant and liberally in favor of the opponent. (Tersavich v. First National Bank & Trust (1991), 143 Ill. 2d 74, 80-81.) To prevent the entry of summary judgment, an opponent need not prove his case at this preliminary stage, but must present facts sufficient to support the elements of his claim. (Kempes v. Dunlop Tire & Rubber Corp. (1989), 192 Ill. App. 3d 209, 214.) These elements may be proved inferentially, by either direct or circumstantial evidence. (Consolino v. Thompson (1984), 127 Ill. App. 3d 31, 33.) However, “a product liability action cannot be decided on mere speculation, guess or conjecture];] *** the circumstances shown must justify an inference of probability as distinguished from mere possibility.” Consolino, 127 Ill. App. 3d at 33; see Varady v. Guardian Co. (1987), 153 Ill. App. 3d 1062,1067.

Plaintiff makes two arguments: (1) a genuine issue of material fact existed as to whether Budget was negligent under a res ipsa loquitur theory, which plaintiff claims he adequately set forth in his complaint, thus preventing the entry of summary judgment in Budget’s favor; and (2) the trial court erred by denying plaintiff’s motion to amend his pleadings after the court granted summary judgment to Budget, citing section 2 — 1005(g) of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(g)). Budget responds that the summary judgment order in its favor should be affirmed because plaintiff failed to prove a specific defect, citing Strotman v. K.C. Summers Buick, Inc. (1986), 141 Ill. App. 3d 8, and because the record does not support the application of the doctrine of res ipsa loquitur.

We initially note our agreement with Budget’s argument that plaintiff has failed to prove a specific defect attributable to Budget, or a defect which proper inspection or warning by Budget would have alleviated. (See Strotman v. K.C. Summers Buick, Inc. (1986), 141 Ill. App. 3d 8, 10.) We do not believe that plaintiff has established an adequate inference of negligence on Budget’s part to overcome Budget’s motion for summary judgment.

Next, we consider plaintiff’s argument that his complaint adequately stated a cause of action in negligence against Budget based on a res ipsa loquitur theory such that summary judgment for Budget was improper. We note for clarification that plaintiff’s amended complaint does not mention the theory. Plaintiff first invoked the theory when he asked the trial court to reconsider its grant of summary judgment to Budget. The purpose of the res ipsa loquitur doctrine is to allow proof of negligence by circumstantial evidence when the direct evidence concerning the cause of the injury is primarily within the knowledge and control of defendant. (Rinck v. Palos Hills Consolidated High School District No. 230 (1979), 82 Ill. App. 3d 856, 862; see Dyback v. Weber (1986), 114 Ill. 2d 232, 238.) To prevail under a res ipsa loquitur theory, plaintiff must establish: “(1) that the occurrence is one that ordinarily does not occur in the absence of negligence and (2) that the defendant had exclusive control of the instrumentality that caused the injury.” (Dyback, 114 Ill. 2d at 242.) Budget argues that the record fails to establish the existence of either element. We agree.

We find no evidence in the record to support plaintiff’s proposition that the accident could not have occurred absent negligence on the part of Budget. We find Rinck v. Palos Hills Consolidated High School District No. 230 (1979), 82 Ill. App. 3d 856, cited by Budget, instructive in this regard. In that case, a high school student was injured while using an allegedly defective electric frying pan. The court concluded, in part:

“[T]he [res ipsa loquitur] doctrine is inapplicable because the facts as alleged do not necessarily infer [sic] negligence on the part of defendants. There are several possible causes for the accident apart from any negligence by defendants; for example, the student using the frying pan could have been negligent, or the frying pan may have had an inherent defect for which the manufacturer would potentially be liable, or there may have been a defect in the electrical system for which the power company, not the school, would potentially be liable.” (Rinck, 82 Ill. App. 3d at 862.)

Likewise, in this case, there is simply no evidence which would indicate that the alleged defect was negligently caused by Budget or that Budget negligently failed to discover the alleged defect. Furthermore, there are several possible causes for the accident apart from any negligence by Budget; for example, plaintiff could have inadvertently caused the van to spin off the rain-slicked road and into the ditch, and the right rear wheel could have been damaged in the process of the accident.

Furthermore, we do not believe that it can be said that Budget had “exclusive control of the instrumentality that caused the injury.” Budget rented the van to plaintiff, and when plaintiff drove the van out of Budget’s parking lot, Budget lost control of the van.

Plaintiff’s primary authority for his proposition that Budget had the requisite control of the van to support a res ipsa loquitur theory, McGuckin v. Chicago Union Station (1989), 191 Ill. App. 3d 982, is distinguishable. In that case, the executor of the estate of a person killed in a fire at the railroad station brought suit. Union Station appealed the trial court’s denial of its motion for a directed verdict on a res ipsa loquitur count. The appellate court affirmed, finding that the plaintiff had adequately established the two requisite elements for a res ipsa loquitur theory. (McGuckin, 191 Ill. App. 3d at 997-1000.) In particular, the court held that “physical control” is not necessary if the “instrumentality *** is one which it is defendant’s responsibility to maintain at all times.” (Emphasis added.) (McGuckin, 191 Ill. App. 3d at 999.) Contrary to that case, where Union Station was responsible for maintaining the premises at all times, Budget lost exclusive control of the van as soon as plaintiff drove it out of its parking lot.

Plaintiff also argues in his reply brief that the control element of the res ipsa loquitur doctrine is satisfied even if this court determines that Budget did not have exclusive control of the van, citing the Restatement (Second) of Torts §328D, Comment g, at 161 (1965). We agree with plaintiff that the basic import of Comment g is that the control element can be established if the probable cause of the accident is one which the defendant was under a duty to the plaintiff to anticipate or guard against. However, we fail to see how Comment g applies to the facts of this case since plaintiff has not adequately established a probable cause for the accident; he has not pled and proved a causative defect in the van of which Budget knew or should have known. In other cases which have applied Comment g, there has been an established probable cause of the accident or injury. See, e.g., Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266; McGuckin, 191 Ill. App. 3d 982.

We therefore conclude that the trial court did not err in granting summary judgment to Budget on plaintiff’s negligence claim.

We next consider plaintiff’s argument that the trial court erred by not allowing him to file a third amended complaint against Budget for negligence. Plaintiff’s proposed amendment was apparently based on a res ipsa loquitur theory. Section 2 — 1005(g) of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(g)) provides: “Before or after the entry of a summary judgment, the court shall permit pleadings to be amended upon just and reasonable terms.” A court of review will not reverse the denial of a motion to amend absent a manifest abuse of discretion. (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 273-74.) In order to determine whether the trial court has abused its discretion, we must examine the following four factors: “(1) whether the proposed amendment would cure the defective pleading; (2) whether other parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment is timely; and (4) whether previous opportunities to amend the pleadings could be identified.” Loyola Academy, 146 Ill. 2d at 273; see In re Estate of Hopkins (1991), 214 Ill. App. 3d 427, 439.

Having previously concluded that the doctrine of res ipsa loquitur does not apply to the facts of the case, we believe that the proposed amendment would not cure the defective pleading. (Compare Siebert v. Continental Oil Co. (1987), 161 Ill. App. 3d 891, 895-96 (amended complaint would have rectified defect of previous complaint).) While we do not believe that either Budget or Ford would be prejudiced or surprised by the proposed amendment, we are troubled by the fact that plaintiff waited over 29 months before attempting to amend his complaint against Budget to include a res ipsa loquitur theory of negligence. We do not believe his motion to amend was timely. Finally, we note that plaintiff could have included the proposed amendment when he filed his first amended complaint, over a year earlier, on February 6, 1989. We conclude that the trial court did not abuse its discretion in denying plaintiff’s motion to file a second amended complaint.

PLAINTIFF'S STRICT LIABILITY CLAIM AGAINST FORD

At issue is whether the trial court erred by granting summary judgment to Ford on plaintiff’s strict liability claim against Ford. Plaintiff first argues that he established a prima facie case of strict liability against Ford and that the trial court therefore erred by granting summary judgment to Ford. Alternatively, plaintiff argues that he need not establish a prima facie case at the pretrial stage, citing Bennett v. Raag (1982), 103 Ill. App. 3d 321. Ford counters that the trial court properly granted summary judgment in its favor because plaintiff failed to produce any evidence of a defect attributable to Ford.

While we agree with plaintiff that he need not prove his prima facie case at this pretrial stage (Bennett v. Raag (1982), 103 Ill. App. 3d 321, 325), a recitation of the requisite elements provides a framework for our discussion. To establish a prima facie case in strict liability, a plaintiff must plead and prove three elements: (1) that an injury resulted from a condition in the product; (2) the condition of the product was unreasonably dangerous; and (3) the condition existed at the time the product left the manufacturer’s control. Norman v. Ford Motor Co. (1987), 160 Ill. App. 3d 1037, 1041; D’Olier v. General Motors Corp. (1986), 145 Ill. App. 3d 543, 547.

Plaintiff argues that this case is similar to Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, where the plaintiff alleged that the brake system on a Ford vehicle had failed, causing an accident. In that case, the plaintiff and his daughter testified as to the brakes malfunctioning before the accident. Experts from both parties examined the vehicle’s brake system following the accident and were unable to find any defect which would cause a malfunction. After a jury verdict for the plaintiff, the defendants appealed. The Illinois Supreme Court affirmed, stating:

“A prima facie case that a product was defective and that the defect existed when it left the manufacturer’s control is made by proof that in the absence of abnormal use or reasonable secondary causes the product failed ‘to perform in the manner reasonably to be expected in light of [it’s] nature and intended function.’ ” Tweedy, 64 Ill. 2d at 574.

We do not agree that this case is similar to Tweedy, or the other product liability cases cited by plaintiff. Our review of the record indicates that plaintiff offered no evidence to establish that a defect existed in the van when it left the control of Ford. The evidence presented by plaintiff only raised possibilities for the cause of the accident, not a probability. (See D’Olier, 145 Ill. App. 3d at 547.) Whereas in Tweedy the court noted that the plaintiff was driving at a reasonable rate of speed on dry and familiar roads, all of which tended to negate driver error as a reasonable secondary cause, driver error remains a possible secondary cause in this case. The locked right rear wheel after the accident could have very well been a product of the accident. We do not place great weight on the State trooper’s citation for defective brakes, since he based the issuance of the citation on an interview with plaintiff and the existence of the locked wheel, facts that we have available as well. Furthermore, Mr. Ruhl’s report is based on speculation since he never examined the van. The record supports the reasonable inference that the plaintiff simply lost control of the van because he was driving at an excessive speed on a dark, wet and bumpy rural highway.

We find Norman v. Ford Motor Co. (1987), 160 Ill. App. 3d 1037, to be analogous to the instant case. In Norman, the backseat of plaintiffs’ car began to smolder while they were driving. They brought a strict liability action against Ford, alleging that the exhaust system, catalytic converter and/or safety devices in the car were defective. The car was over a year old and had been driven approximately 18,000 miles. The plaintiffs had no direct evidence of a defect in the car, which was later sold at an auction, and did not present any evidence that the allegedly defective parts of the vehicle had been examined. The trial court granted Ford’s motion for summary judgment. The appellate court affirmed, holding that plaintiffs had failed to produce sufficient evidence of the existence of a defect attributable to Ford when the vehicle left the control of Ford. (Norman, 160 Ill. App. 3d at 1042-43.) We make the same holding here. We find no error in the trial court’s order granting summary judgment to Ford on plaintiff’s strict liability claim.

The judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

UNVERZAGT and GEIGER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    INDUSTRIAL FUELS AND RESOURCES/ILLINOIS, INC., Petitioner-Appellant, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees.
    First District (4th Division)
    No. 1—91—0144
    Opinion filed March 19, 1992.

      W. Robert Blair, of Chicago, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, of Chicago, of counsel), for respondent Pollution Control Board.
    James D. Montgomery & Associates, of Chicago (James D. Montgomery, of counsel), for respondent City Council of City of Harvey.
   JUSTICE LINN

delivered the opinion of the court:

Industrial Fuels & Resources/Illinois, Inc. (Industrial), sought local siting approval from the City of Harvey for a new regional pollution control facility to be located within Harvey’s municipal boundaries. Harvey denied approval based on its belief that Industrial had failed to satisfy certain statutory criteria under section 39.2 of the Illinois Environmental Protection Act (Act) (Ill. Rev. Stat. 1989, ch. IllV2, par. 1039.2). Industrial appealed the decision to the Illinois Pollution Control Board (Board). The Board affirmed Harvey’s denial with respect to four of the disputed criteria and reversed with respect to one. Industrial unsuccessfully moved the Board to reconsider its decision and then filed its petition to this court, pursuant to section 41 of the Act (Ill. Rev. Stat. 1989, ch. llTVa, par. 1041) and Supreme Court Rule 335 (134 Ill. 2d R. 335).

We reverse.

Background

In August 1989 Industrial submitted its request to Harvey for local siting approval of a new regional pollution control facility to be located in a vacant parcel in an area that is zoned for light manufacturing. Industrial was required under the Act to obtain siting approval before the Illinois Environmental Protection Agency issued any permits. Ill. Rev. Stat. 1989, ch. IllV2, pars. 1039.2,1039(c).

The proposed facility would be constructed and operated on approximately 13V2 fenced acres, with four structures totalling 65,000 square feet, plus liquid storage tanks. The life of the facility would be at least 30 years.

The facility would blend solid and liquid organic wastes as well as solvents, which would be extracted from contaminated soils, all for off-site secondary fuel uses. The facility would also incinerate medical wastes and dispose of the residue off-site. The intended service area of the facility includes Illinois, Indiana, Wisconsin, Michigan, Minnesota, and Ohio.

Public hearings were held in accordance with the Act and evidence was taken. In addition, several members of the public commented upon or questioned Industrial and Harvey about the proposal.

Harvey commissioned its own review of the siting proposal and requested an environmental impact statement from a consulting engineering firm, STV/Seelye Stevenson Value & Knecht (STV). STV recommended that Harvey consider approving the siting with certain conditions.

Section 39.2(a) of the Act sets out criteria for siting approval:

“[1] the facility is necessary to accommodate the waste needs of the area it is intended to serve;
[2] the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;
[3] the facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property;
[4] the facility is located outside the boundary of the 100 year flood plain or the site is flood-proofed;
[5] the plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents;
[6] the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows;
[7] if the facility will be treating, storing or disposing of hazardous waste, an emergency response plan exists for the facility which includes notification, containment and evacuation procedures to be used in case of an accidental release;
[8] if the facility is to be located in a county where the county board has adopted a solid waste management plan, the facility is consistent with that plan; and
[9] if the facility will be located within a regulated recharge area, any applicable requirements specified by the Board for such areas have been met.” Ill. Rev. Stat. 1989, ch. llV-lz, par. 1039.2(a).

Harvey took the position that Industrial had failed to meet its burden of proof as to criteria 1, 2, 5, 6, and 7. The Board upheld the decision as to all but criterion 6.

THE EVIDENTIARY HEARING ON SITING APPROVAL

CRITERION 1-NECESSITY

Edward H. Prium, the president of Industrial, testified as to his experience with similar facilities owned by Industrial in Indiana and Missouri. Industrial retained Andrews Environmental Engineering, Inc., to prepare the siting request application and Prium reviewed it. He was familiar with the various State and Federal laws and regulations governing processing and disposal of wastes. In his business judgment, the facility is necessary. He stated that the cost would be $15 million and that 100 to 125 jobs would be created.

J. Douglas Andrews, who prepared the request for site approval, specializes in environmental engineering. He was formerly a division manager for the Illinois Environmental Protection Agency, responsible for statewide control of waste management sites under the Act. He testified that his company, Andrews Environmental Engineering, Inc., has designed more than 50 sanitary landfills, 10 transfer stations, recycling operations, waste site remediation, and other waste management facilities.

Andrews described the general operations and capabilities of the proposed facility. He testified that the waste streams to be served were organic wastes for fuel blending, contaminated soils, and medical wastes. On the basis of the data obtained from regulatory agencies and industry associations, Andrews believed that even after the proposed Harvey site would be in operation the waste needs of the area would not be fully met. He also found, based on recently adopted and effective laws and regulations regarding waste processing and disposal, that the need for the services provided by the proposed facility is substantial and growing.

Andrews concluded that in light of all the data he reviewed, as well as his education, professional training, and experience, the proposed facility is necessary to serve the waste needs of the area.

CRITERION 2-PROTECTION OF PUBLIC HEALTH, SAFETY AND WELFARE

J. Douglas Andrews testified that the facility is designed in accordance with all governmental requirements. To ensure even greater safety, the facility also incorporates the recommendations of a fire safety design and review plan prepared by safety consulting engineer C. James Dahn.

Andrews testified regarding the procedures and features that would contain or prevent fires. The fire suppression system would be matched to the type of fire that might occur and the specific location of such a fire. There would be an alarm and sprinkler system, and the employees of the facility would be given safety training and tested for proficiency in the use of safety equipment and emergency procedures. Fire hydrants are adjacent to the site, which is located close to fire, medical, and police services, and all necessary utilities are available, including water, sanitary sewer, storm sewers, natural gas, and electricity. Andrews also testified that the plan of operations for the facility is based on those in use at Industrial’s fuel-blending plants in South Bend, Indiana, and Scott, Missouri.

Before the facility is permitted to begin operations, it must be demonstrated to all controlling regulatory agencies that the facility is in compliance with all pertinent laws and that no violations of ordinances, regulations, or other legislation will occur as a result of operations. The plan also provides for the closure of the facility at the end of its useful life and for clean-up operations upon closure.

Andrews also testified regarding the medical waste incineration procedures and safety precautions, which include an automatic shutdown capability if operating conditions vary from normal. No radioactive wastes or highly toxic materials will be accepted at the facility. All drivers of delivery vehicles will receive instruction regarding applicable safety procedures. On the basis of his background and experience, and the facts set forth in the request for site approval, Andrews testified that in his opinion, the facility is so designed, located, and proposed to be operated that the public health, safety, and welfare will be protected.

C. James Dahn, the safety consulting engineer, testified that his business is to conduct safety analyses and testing of new processes and chemical processing plants for both private industry and the Federal government. A registered professional engineer certified in chemical engineering, Dahn is employed by Safety Consulting Engineering, Inc. He belongs to several professional societies or associations, including the National Fire Protection Association. At the request of Andrews Environmental Engineering, Safety Consulting performed a fire safety design and review of Industrial’s proposed facility in Harvey. Dahn reviewed the layout of the facility and its plan of operations, along with his analysis of fire safety criteria, and all relevant data in the request for site approval. He concluded that the facility is designed, located, and proposed to be operated in such a way as to protect the public health, safety, and welfare.

John Basic, a registered professional engineer, testified that he is the founder and president of Basic Environmental engineering, which designs and builds incinerator systems for institutional, municipal, industrial, and commercial uses. His company has received several awards for its efforts to advance state-of-the-art technology in pollution control.

Basic testified that Industrial engaged his company to design and construct the medical waste incinerator at the facility. The design, drawings, and patents for the system to be installed are found in a 202-page exhibit. The medical waste incineration system his company has designed differs from others in use currently because it incorporates multistage, state-of-the-art technology that allows incineration to take place in a controlled manner. The resulting residue is a fine powder which is not released into the surrounding area but instead is captured by a fabric filter that can prevent the escape of particles as small as three tenths of a micron. The system protects the environment and solves the problem of converting waste to energy through the use of a new waste destruction technology coupled with efficient energy recovery.

Basic further testified that his company has constructed similar incinerator systems for operation at Mercy Hospital in Chicago and Erlanger Medical Center in Chattanooga, Tennessee, both of which have been operating since 1982. His company has also constructed and placed systems in hospitals in Florida, Evanston, and Taiwan. In addition, his company has completed a large commercial unit for Midway Environmental Management in Stroud, Oklahoma. Federal and State regulatory agencies in Oklahoma have verified through testing that the Basic system installed there not only meets their requirements but exceeds them substantially. For example, the required removal of particulate matter in Oklahoma is 70%, and the Basic system removes 98%. The Basic system averages not more than two parts carbon monoxide per million, while the required level is not more than 50 parts per million.

Basic testified that the same system levels as are in operation in Oklahoma will be met by the incinerator proposed for the Harvey site. In his opinion, the facility will be built in a manner that protects the public health, safety, and welfare.

David Jordan, operations manager for Industrial at the Missouri site, testified that he is familiar with all of Industrial’s operations and that the proposed site in Harvey would be substantially similar to Industrial’s other sites and will protect the public health, safety, and welfare.

James Kuipers, president of Industrial in Indiana, testified regarding the process of contaminated soil remediation. Contaminated soils will be processed through a safe, microwave technology that takes place in a stainless steel microwave oven that is completely enclosed and releases nothing to the environment.

Additional evidence on criterion 2 was taken from the STY engineering report that was prepared at Harvey’s request. Although the report states that the nearest occupied dwellings are only 700 feet away and that a significant number of residents live within one mile of the proposed facility, it also acknowledges that the facility will have a positive socio-economic impact. Jobs will be created and the local tax base expanded. The STY report indicates that accelerated storm water runoff and erosion is not expected to be a problem, nor is localized flooding expected to occur.

The STV report concludes that site preparation and construction activities and operations are not expected to dislocate wildlife species or increase silt and sediment loads in river tributaries. Solid waste will be processed and disposed of in an environmentally sound manner.

The STV report notes that although the facility will generate steady and intermittent noise, the impact of the noise is not considered significant considering the location and the fact that most noises will be inside buildings. Overall, the site is aesthetically unremarkable and the development is consistent with the nature of the surrounding area. In its current state, the vacant site is of little value to the community.

One concern of the STV report is the effect of the facility’s operations upon groundwater, especially if an accidental spill onto area soils occurred. Groundwater is expected at depths of less than 20 feet and there are a number of industrial users of groundwater in the area. Provided that proper environmental safeguards are included in the design of the facilities, however, the impact on area surface waters would be minimal. There are several sources of air emission nearby the site and the area falls short of the national ambient air quality standards for ozone and particulates, although it meets the standards for nitrogen oxides, sulfur dioxide, and carbon monoxide.

CRITERION 5-MINIMIZATION OF DANGER FROM FIRE, SPILLS, OR OTHER OPERATIONAL ACCIDENTS

Andrews testified that the facility will be operated in strict compliance with all State, Federal, and local requirements, including fire codes and regulations, and that such safeguards exist to protect both the workers at the facility and the surrounding area. Industrial designed the facility to exceed the minimum requirements of governmental agencies. Areas where spills may occur have built-in containments. All vehicle operators will be trained in spill control and their vehicles will be outfitted with special equipment for controlling spills. The plan of operations for the facility provides for regular inspections of containers used in transport and the emergency transfer of the contents of such containers to a containment area should stress to a container result in leakage or spills. The plan incorporates several other safety features, such as a secondary containment system, continuous inspecting and testing of containers and tanks, and 24-hour surveillance of the facility by security guards who will be trained in emergency response procedures. The facility will be surrounded on all sides with a six-foot-high fence and warning signs will be prominently posted. Access to the active portion of the facility will be restricted. Andrews also testified regarding safety procedures for removing decontaminated soils and other residuals to approved sanitary landfills or recycling centers. In his expert opinion, the plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents.

Prium identified the licensed special waste hauler that would be used. This waste hauler, which has an excellent safety record, would be used to transport 90% of the waste materials to and from the facility.

Dahn testified that in his opinion, based on a review of the siting request in light of criterion 5, the plan of operations was designed to minimize operational hazards.

CRITERION 7-EMERGENCY RESPONSE PLAN IN THE EVENT OF ACCIDENTAL RELEASE OF HAZARDOUS MATERIAL

Andrews testified that the facility would be receiving, storing, and treating wastes that are ignitable and therefore classified as hazardous. He testified regarding the emergency plan that Industrial developed, including notification, containment, and evacuation procedures. According to him, the likelihood of an accidental release is remote because of the prevention measures that will be in effect, along with the site’s location in an industrial rather than residential area.

The emergency response plan is similar to those in effect in Industrial’s Indiana and Missouri plants. It calls for the plant manager as emergency coordinator or the assistant plant manager as assistant coordinator to implement the emergency procedures in the event of a fire, explosion, or release of hazardous waste that could threaten human health or the environment. The plan provides for immediate notification of a crisis through two primary modes — a two-way voice communication system which links the office with all areas where wastes are stored, processed, or hauled, and a secondary system, in the event of a power outage, which uses a timed sound blast to denote instruction to evacuate the premises and a double-timed blast to denote need for assistance. The plan also designates various safety features, such as a ventilation system; pressure release panels in containers; a water curtain to prevent spread of fire; a sprinkler system as well as fire extinguishers; training of personnel; and maintenance of emergency equipment.

The emergency response plan further provides that the facility will enter into “coordination agreements” with local fire and police departments for maximum effectiveness in the event of accidents. Area hospitals and emergency response teams will be familiarized with the facility and given on-site visits.

The STV report prepared for Harvey, however, stated that STV was unable to recommend an unconditional siting approval because it did not have enough information on certain aspects of the project, such as the specifics for notification, containment, and evacuation procedures in the event of an emergency. The chief criticism of the STV report appears to be that the documents presented were “conceptual” in nature, with insufficiently detailed designs. Industrial provided additional material, which was admitted into evidence without objection or challenge. STV ultimately recommended site approval with the caveat that Harvey may wish to consider certain conditions related to the further development of final standard operating procedures, emergency response, closure plans, and spill preventions countermeasures.

Following the expiration of the thirty-day period of post-hearing comment, the Harvey Zoning Board of Appeals issued its recommendation to deny local siting approval. Harvey adopted an ordinance rejecting Industrial’s application. Industrial then filed with the Pollution Control Board (Board) its siting appeal pursuant to Illinois statute. Its appeal was based on the argument that Harvey’s denial of its application was against the manifest weight of the evidence.

On June 12, 1990, the Board held a hearing on the appeal and on September 27, 1990, the Board issued its opinion and order, with two members dissenting. The Board affirmed Harvey’s decision as to the first, second, fifth, and seventh criteria, but reversed as to the sixth.

Opinion

Industrial was required to sustain its burden of establishing all nine criteria set out in section 39.2(a) of the Act before local siting approval could be granted. (See Waste Management of Illinois, Inc. v. Pollution Control Board (1988), 175 Ill. App. 3d 1023, 1030, 530 N.E.2d 682, appeal denied (1989), 125 Ill. 2d 575, 537 N.E.2d 819.) Industrial contends that it presented a prima facie case on each of the disputed elements and that Harvey failed to rebut the evidence or impeach it to any material degree; therefore, the decision of the Board is against the manifest weight of the evidence. See Fairview Area Citizens Taskforce v. Pollution Control Board (1990), 198 Ill. App. 3d 541, 554, 555 N.E.2d 1178, appeal denied (1990), 133 Ill. 2d 554, 561 N.E.2d 689 (Opponents of siting approval failed to establish how the siting application was inadequate; their challenge that the siting request lacked sufficient detail could not prevail where they failed to submit evidence in support of their contention).

In general, the Board asserts that Industrial’s showing was flawed by “assumption, guesses, and conjecture.” In support, the Board quotes excerpts from Industrial’s request for site location approval. The excerpts refer to estimates, beliefs, and assumptions, which, according to the Board, are unsupported by facts.

CRITERION 1 — PROPOSED FACILITY IS NECESSARY FOR INTENDED SERVICE AREA

Harvey’s engineering consultant, STV, concluded in its review of Industrial’s proposal, “There is little doubt of the need for environmentally sound facilities such as that proposed by [Industrial] on a local and regional basis.” (Emphasis added.) The Board, in its opinion, specifically found that the evidence relating to the fuel-blending wastes satisfied the need criterion. The Board also noted that Harvey did not challenge the need for the soil remediation operations. Accordingly, the Board’s affirmance of Harvey’s decision that criterion 1 was not satisfied relates only to the processing of medical wastes.

Industrial contends that the Board’s position on this criterion is “demonstrably incorrect,” citing some of the data upon which the expert witnesses relied in rendering an opinion on the need for the facility. For example, a source reference entitled Hospital Statistics (American Medical Society 1988) listed the number of hospitals in Illinois (250) and the number located in the Chicago area (80). According to Industrial’s evidence, these hospitals generate approximately 50,000 tons of waste per year, which must be rendered innocuous by incineration or autoclaving (steam sterilization) before being disposed of in a landfill. Also, there are other medical facilities, clinics, dental offices, and medical research laboratories that produce an amount of medical waste at least equal to that of the hospitals. Although some hospitals’ waste incinerators may be upgraded or replaced to meet applicable environmental requirements for air emissions, Industrial maintains that many hospitals will likely switch to off-site facilities, such as the proposed Harvey plant, for management of their medical wastes. Of the estimated 50,000 tons of medical wastes generated in Illinois alone, only 4,250 tons can currently be processed in the one off-site medical waste incinerator operating in Illinois.

Andrews further testified that the demand for medical waste processing facilities is growing as a result of the Federal demonstration program for the tracking of medical waste (See 42 U.S.C.A. §§6992 through 6992K (West Supp. 1991)) and Illinois legislative efforts to control management of medical wastes. See Pub. Act 87 — 752, §56 et seq., eff. Jan. 1, 1992 (amending Environmental Protection Act by adding new provisions regarding potentially infectious medical waste) (to be codified in Ill. Rev. Stat. 1991, ch. HV-k, par. 1056 et seq.).

Apparently, the Board determined that Industrial’s anticipation of the region’s future need for medical waste processing is conjectural and thus may be disregarded. In support of its position, the Board cites Tate v. Pollution Control Board (1989), 188 Ill. App. 3d 994, 544 N.E.2d 1176, appeal denied (1990), 129 Ill. 2d 572, 550 N.E.2d 565, for the proposition that matters of “expectancy” rather than “fact” need not be considered by the Board. The Tate court’s comments regarding expectancies and facts took place in an altogether different context from that which exists in the pending case, however.

In Tate, the petitioners, area residents, were opposed to the expansion of a landfill in Macon County. The county board and the Illinois Pollution Control Board had approved the expansion of the landfill without considering the petitioners’ evidence that there was another landfill, in Clinton, located within 15 miles. The Clinton landfill had just received local siting approval and the petitioners offered that information as being probative on the criterion of need for the Macon County landfill expansion. The issue was whether the Board’s refusal to consider this offer of proof rendered the hearing before the Board fundamentally unfair.

The appellate court in Tate held that the citizens appearing before the Macon County board to be heard on the landfill expansion application could insist that the procedures comported with standards of fundamental fairness, but that they were not entitled to the constitutional due process elements of a fair trial. (Tate, 188 Ill. App. 3d at 1019, 544 N.E.2d at 1193.) The court went on to find that the petitioners presented no evidence as to how much waste, if any, that the Clinton landfill would have accepted from Macon County. Further, the court said, since the Illinois Environmental Protection Agency had not yet approved the Clinton landfill site, the 50-year capacity of the Clinton site was “not a fact, but merely an expectancy”; therefore, it was not essential that the Board consider the Clinton facility in deciding whether the expansion of the Macon County landfill was necessary to serve the needs of the intended area. There was no evidence that Clinton was providing services to Macon County or would be able to do so. Consequently, “the [Pollution Control Board’s] refusal of the offer of proof was not a denial of fundamental fairness to the petitioners.” Tate, 188 Ill. App. 3d at 1020, 544 N.E.2d at 1193.

In the pending case, Industrial has presented facts and expert opinion to support its showing that the Harvey facility is necessary to serve the waste needs of the area. No contrary evidence was admitted or even offered at the hearing. In fact, the Board’s opinion summarized Industrial’s evidence without explaining in what respects it was inaccurate or incomplete. Instead, the Board found that Industrial’s assumptions regarding the need for medical waste treatment were “in the nature of conjecture based on the limited data available.” Despite its recognition that “the proposed [medical waste] incinerator is indeed impressive and the superior quality of the incinerator might attract large numbers of generators” and that “Industrial’s business judgment may well prove to be correct,” the Board found that Industrial had not sufficiently shown that the proposed facility is “necessary.” By its conclusion the Board disregarded STV’s unequivocal statement that there was “no doubt” about the need for such a facility as proposed by Industrial.

In its appellate brief the Board maintains its position that Industrial’s showing of need was inadequate. It argues that Industrial failed to explore alternative methods of treating medical waste and failed to substantiate its estimation of what percentage of medical wastes will actually require off-site treatment. We reject the Board’s contention. It is difficult to understand what more Industrial should have done, since there will always be some element of projection or estimation when anticipating the growing waste needs of an area. Moreover, since the Board agrees that the proposed facility is necessary for the management of two other waste streams, soil remediation and fuel blending, we are not persuaded that the challenge to the showing on the need for medical waste management is well-taken.

Finally, while the parties have suggested that the term “necessary” may connote different things to different courts, we decline to enter what appears to be a semantic battle. That different courts may use different phraseology does not, in our view, mean that the various districts of the appellate court apply substantively different definitions. See, e.g., Clutts v. Beasley (5th Dist. 1989), 185 Ill. App. 3d 543, 546, 541 N.E.2d 844 (A proposed facility is “necessary” if it is “expedient” or “reasonably convenient”); E & E Hauling, Inc. v. Pollution Control Board (2d Dist. 1983), 116 Ill. App. 3d 586, 451 N.E.2d 555), affd on other grounds (1985), 107 Ill. 2d 33, 481 N.E.2d 664; but cf. Waste Management of Illinois, Inc. v. Illinois Pollution Control Board (2d Dist. 1984), 123 Ill. App. 3d 1075, 1084, 463 N.E.2d 969 (“expedience” connotes an element of urgency in the definition of need). See generally Waste Management of Illinois, Inc. v. Pollution Control Board (3d Dist. 1984), 122 Ill. App. 3d 639, 645, 461 N.E.2d 542, 546 (To satisfy the “necessary” element, which connotes a degree of “requirement” or “essentiality,” the proposed facility must be “reasonably required by the waste needs of the area intended to be served, taking into consideration the waste production of the area and the waste disposal capabilities, along with any other relevant factors”).

In our opinion, Industrial has amply established the need for the proposed facility and the Board has failed to explain why a finding to the contrary is not against the manifest weight of the evidence. Therefore, we reverse the Board’s ruling as to Criterion 1.

CRITERION 2-FACILITY MUST BE DESIGNED AND OPERATED TO PROTECT THE PUBLIC HEALTH, SAFETY, AND WELFARE

The Board’s ruling that Industrial failed to satisfy the public safety criterion is based, again, on what it terms incomplete data or a lack of specificity on the part of Industrial. Significantly, there is no evidence of record to demonstrate that the design of the facility is flawed from a public safety standpoint or that its proposed operations present an unacceptable risk to the public health, safety, and welfare. No one testified, for example, how particular design features or operating procedures might increase the risk of harm to the residents. No expert witness testified that the design and proposed operation of the facility were flawed or that Industrial’s application ignored or violated any of the applicable governmental regulations. Nonetheless, the Board concluded that Harvey’s adverse finding as to criterion 2 was not against the manifest weight of the evidence.

Industrial offered the testimony of three expert witnesses who testified without contradiction that the proposed facility is designed in accordance with all applicable government requirements, that the design incorporates the recommendations and requirements of a fire safety design and review plan, and that the safety features of the plan exceed the minimum requirements of all governmental agencies. The site is close to fire and police services and emergency medical services, as well.

The Board maintains, however, that Harvey was well within its authority to reject the proposal based on Harvey’s determination that Industrial’s offering fell short of establishing that the public health and safety would be protected. In support, the Board quotes from the final report of STY, Harvey’s consultant, that STY was unable to recommend unconditional siting approval in light of the “current level of project information,” which did not include “actual detailed design” accompanied by “the proposed environmental controls.”

In response to the STY report, Industrial presented to Harvey and the Board supplemental material, including an exhibit containing 202 pages of details. This exhibit incorporated drawings and design information and patents. The Board concedes on appeal that the additional information indicates how the medical waste incinerator would be built but argues that it “tells little about how the public health, safety, and welfare will be protected.” The Board also notes that residents live as close as 700 feet to the site and schools are within six blocks. The land between the site and the nearest resident is vacant and undeveloped, however, which presumably would retard the spread of fire.

While we do not wish to denigrate legitimate safety concerns of Harvey and its residents, we find virtually nothing in the record to substantiate the fear of significant risk to the populace. On the contrary, the undisputed fact is that all governmental minimum standards have been met and exceeded and that the facility will employ state-of-the art technology to ensure safe levels of emissions in the ordinary operation of the plant. Nothing indicates that Industrial’s controls and procedures, safety features, training of personnel, or security systems are substandard or create a significant safety hazard.

We conclude that Harvey failed to rebut or contradict Industrial’s showing that the facility was designed in light of the public health, safety, and welfare. Therefore, the Board’s affirmance of Harvey’s finding on that criterion is against the manifest weight of the evidence.

CRITERION 5 — MINIMIZE THE DANGER TO THE SURROUNDING AREA FROM FIRE, SPILLS, AND OTHER OPERATIONAL ACCIDENTS

The issue here, as in the second criterion, is one of safety, with the emphasis on planning to avoid or minimize the danger from catastrophic accidents. As in any industrial setting, there is a potential for harm, both to the environment and to the residents of the area. We doubt that the legislative intent behind criterion 5 was to hold applicants to so high a standard as to guarantee an accident-proof facility, however. See Wabash & Lawrence Counties Taxpayers & Water Drinkers Association v. Pollution Control Board (1990), 198 Ill. App. 3d 388, 394, 555 N.E.2d 1081, 1086 (“The key, here, however is minimize. There is no requirement that the applicant guarantee no accidents will occur, for it is virtually impossible to eliminate all problems.” (Emphasis in original)).

In addition to expert testimony, Industrial offered information regarding the disposal of residues; the system for suppressing and containing fires; training of personnel; spill prevention control and countermeasures; closure and post-closure requirements; storm water management; and other information contained in Industrial’s exhibits 13 and 15. STV had submitted its report without the benefit of the material in these exhibits, which were subsequently admitted into evidence without rebuttal or impeachment.

The STV report did note that groundwater at the site was “expected” at depths of less than 20 feet and that the “greatest potential impact on groundwater resources from the proposed facility would be from an unexpected release of industrial wastes into soil areas.” The STV did not recommend denial of siting approval based on the possibility of such a happening, however. Indeed, the STV favored conditional approval, contingent on the receipt of more complete information on criteria 2, 5, and 7. In fact, the STV’s project manager confirmed at the hearing of January 29, 1990, that “the facility could be constructed at the site and operated in an environmentally sound and safe manner, provided that state-of-the-art control technologies were implemented.” The STV formally recommended approval, with the qualification that Harvey may wish to impose certain conditions.

From the record it appears that Industrial attempted to answer all stated concerns about incomplete information, particularly those expressed in the STV report. Industrial submitted exhibit 14 on the design of the medical incinerator and its environmentally sound features. Exhibits 13 and 15 supplied additional information regarding standard and emergency safety measures. In our view, Industrial met its burden of establishing that it had minimized the danger of operational accidents. Without something in the way of contradicting or impeaching evidence, Industrial’s detailed showing stands unrebutted. Consequently, we find that the decisions of Harvey and the Board with respect to criterion 5 are against the manifest weight of the evidence.

CRITERION 7-EMERGENCY RESPONSE PLAN FOR ACCIDENTS, INCLUDING NOTIFICATION, CONTAINMENT, AND EVACUATION PROCEDURES

Once again, the dispute over this criterion relates to the completeness of the submitted materials. We have already discussed the existence of Industrial’s emergency response plan, which includes the fire suppression system, the sealing of secondary containment areas, spill prevention control and countermeasures, and the training of employees. The plan includes notification to the employees, plant evacuation, and coordination with the police, fire department, and emergency medical facilities. The Board challenges the plan, however, as being vague in its design and practical implementation.

The statute does not set out standards for the emergency response plan. Undoubtedly, the requirement for such a plan is to enhance the safety of the people in and around the facility and to focus the applicant’s attention on how to most effectively handle emergency situations. While the sufficiency of any emergency response plan may be open to discussion, the Board’s criticism of Industrial’s plan as merely conceptual seems unfounded. Industrial’s plan is a reasonable blueprint or overview of the procedures to be instituted in the case of an emergency at the facility. During the siting request proceedings it may be unrealistic to expect an applicant to secure all details that would be included in coordination agreements with the police, fire department, and disaster relief agencies. An emergency response plan necessarily requires cooperation among the agencies responsible for providing fire protection and other safety services. To that extent, the on-site emergency response plan is only part of the total picture, and the only part that is within Industrial’s control. Moreover, Industrial contends that the details of interagency coordination and cooperation agreements can be worked out following siting approval and before the Illinois Environmental Protection Agency issues a development permit.

We agree with Industrial. Its emergency response plan designates the persons responsible for implementing the emergency procedures and sets out two primary notification systems on site. Evacuation procedures are described, and, in the event that outside services are needed, the emergency coordinator at the plant is to summon the appropriate agency or agencies. Personnel at the facility will be instructed in the proper response to emergency conditions. In our opinion, Industrial’s showing on criterion 7 was not rebutted or shown to be materially flawed. Consequently, we find that the decisions of Harvey and the Board were against the manifest weight of the evidence.

We conclude that the Board’s affirmance of Harvey’s denial of siting approval must be reversed. This is not a case in which there is a conflict in the evidence on any material issue of fact. Nor is it a situation in which the materials submitted are no more than bare sketches or skimpy outlines. On the contrary, the record substantiates Industrial’s position that it made a prima facie showing as to each criterion and that Harvey did not offer contradicting or impeaching evidence to rebut the showing. The experts who testified on behalf of Industrial carried impressive credentials including extensive experience with similar facilities. Their opinions were based on facts and reasonable assumptions. Industrial operates other, similar facilities in different locations and therefore has a track record. The technology and design of the facility was represented to be state-of-the-art (meaning, in this case, providing for a much higher degree of environmental protection than required under existing standards and laws), and nothing in the record contradicts that assertion. Harvey’s own consultant, STV, concluded that the facility could be run in an environmentally sound manner and that there were no serious flaws in Industrial’s proposal. Harvey did not come up with any reasonable ground for denying the application and the Board’s attempt to justify the denial must be rejected.

In light of our decision we decline to comment on Industrial’s contention that it was denied due process because of the Board chairman’s comment regarding an alleged State “policy of rarely interfering with a community’s authority to decide on whether landfills, incinerators, or waste transfer stations [are] to be located within its borders.” We recognize the normal deference to be given a community’s decision, as long as it is not against the manifest weight of the evidence. Such facilities should not be forced upon unwilling host communities. Nevertheless, when an applicant provides the requisite information and evidence on all of the statutory criteria (which appear to be fairly rigorous), the Board should not abdicate its statutory role in the siting approval process.

The duty of this court is to determine whether the decision below was against the manifest weight of the evidence, not to speculate on the political or social or economic consequences of approving Harvey as the location of a regional pollution control facility. Accordingly, we reverse the decision of the Illinois Pollution Control Board. We hold that the site location in Harvey, Illinois, shall be considered approved as required under section 39(c) of the Act (Ill. Rev. Stat. 1989, ch. IllLk, par. 1039(c)) and remand for whatever proceedings are necessary to complete the application process.

Reversed and remanded.

McMORROW and JOHNSON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRELL CANNON, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—1685
    Opinion filed March 19, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Bruce Landrum, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Kathleen F. Howlett, Special Assistant State’s Attorney, and Renee Goldfarb and Lisa Goldsand, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

On remand, the circuit court of Cook County held a Batson hearing subsequent to the jury trial of defendant, Darrell Cannon. The trial court ruled that the State did not use its peremptory challenges during voir dire to exclude black venirepersons from the jury. Defendant appeals, claiming that the trial court’s ruling was against the manifest weight of the evidence.

We reverse and remand for a new trial.

Background

Following a jury trial, defendant was convicted of murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1(a)(1), (a)(2)), based on accountability. The trial judge sentenced defendant to the penitentiary for a term of natural life.

On appeal, this court affirmed defendant’s conviction and sentence. However, we remanded the cause to the trial court for a Batson hearing. People v. Cannon (1986), 150 Ill. App. 3d 1009, 502 N.E.2d 345.

Our first Cannon opinion was filed on December 11, 1986. Both defendant and the State petitioned the Illinois Supreme Court for leave to appeal. On May 1, 1987, our supreme court retained jurisdiction over the cause and directed the trial court, as we did, to conduct a Batson hearing. 115 Ill. 2d 544.

The supplemented record contains the following facts. During the voir dire in defendant’s trial, a total of 67 venirepersons were questioned. The trial judge excused 16 venirepersons for cause. Of the remaining 51 venirepersons, 17, or 33%, were African-American.

The prosecutor exercised 17 peremptory challenges to exclude venirepersons from the jury. Of that number, 14 were African-American. The record further identifies three African-Americans whom the State accepted as jurors, constituting 25% of the jury. The trial judge found that defendant established a Batson prima facie case. The trial judge based its finding solely on the fact that 14 of the 17 venirepersons excluded by the State were African-American.

The State proffered race-neutral reasons for its exercise of peremptory challenges. In an order dated July 30, 1987, the trial judge accepted the State’s explanation. The court ruled that defendant failed to establish that the State engaged in purposeful discrimination during voir dire.

On April 5, 1989, the Illinois Supreme Court denied defendant’s and the State’s petitions for leave to appeal. (125 Ill. 2d 568.) Our supreme court also ordered that our 1986 Cannon decision be effectuated. On June 27, 1989, the trial court adopted, nunc pro tunc, its July 30, 1987, order. It is from that order that defendant now appeals.

Opinion

The ramifications of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, continue to be realized. (See, e.g., Hernandez v. New York (1991), 500 U.S. 352, 114 L. Ed. 2d 395, 111 S. Ct. 1859; Powers v. Ohio (1991), 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364.) However, this court has thoroughly discussed Batson’s general framework in several recent cases. (E.g., People v. Lovelady (1991), 221 Ill. App. 3d 829, 582 N.E.2d 1217; People v. Johnson (1991), 218 Ill. App. 3d 967, 578 N.E.2d 1274.) We need not repeat those discussions here.

I

The State initially argues that defendant failed to establish a Batson prima facie case. (See Lovelady, 221 Ill. App. 3d at 837, 582 N.E.2d at 1224.) The State refers to the trial court’s order, in which the court found that defendant established a Batson prima facie case based solely on the fact that 14 of the 17 venirepersons whom the prosecutor excluded were African-American.

It is true “that a Batson prima facie case cannot be established merely by the numbers of black venirepersons stricken by the prosecution.” (Lovelady, 221 Ill. App. 3d at 837, 582 N.E.2d at 1224-25.) However, “[sjince the prosecutor in the case at bar submitted an explanation for his exercise of peremptory challenges, the question of whether defendant established a Batson prima facie case is moot. Consequently, we turn to the question of whether the prosecutor’s explanation was race-neutral.” Lovelady, 221 Ill. App. 3d at 838, 582 N.E.2d at 1225.

II

Defendant claims that the prosecutor who represented the State at the Batson hearing on remand proffered an explanation that was pretextual or contrived. (See Lovelady, 221 Ill. App. 3d at 839, 582 N.E.2d at 1226.) Viewed from either of two independent and equally fatal aspects, we agree with defendant and conclude that the State’s explanation was not “clear, legitimate, trial-specific, and race-neutral” as required by Batson. See Lovelady, 221 Ill. App. 3d at 838, 582 N.E.2d at 1225, citing Batson, 476 U.S. at 97-98, 90 L. Ed. 2d at 88-89,106 S. Ct. at 1723-24.

A

Defendant offers rebuttal to the prosecutor’s explanation for each of the 14 black venirepersons excluded. However, the exclusion of even one venireperson on the basis of race is unconstitutional and requires reversal of the conviction. (People v. McDonald (1988), 125 Ill. 2d 182, 200, 530 N.E.2d 1351, 1359.) After carefully reviewing the record, we conclude that the State’s explanation for the exclusion of at least two venirepersons was pretextual.

The third black venireperson for whom the State proffered an explanation was Marie Mitchell. The trial judge’s questioning and Mitchell’s jury card adduced the following facts. At the time of the voir dire, Mitchell was 71 years old and a retired maintenance worker. Her late husband had worked for 31 years in the Gary, Indiana, steel mills. She had three daughters: the eldest was a “white collar” employee at a publishing company; the next oldest was a postal worker; and the youngest was unemployed. Approximately 10 years prior to voir dire, Mitchell had been the victim of a purse-snatching; she was not injured and there was no arrest. She had no prior jury service and she did not know anyone who worked in the criminal justice system. The prosecutor at voir dire excused Mitchell without asking her any questions.

At the Batson hearing, the State gave three reasons for excluding Mitchell from the jury. These reasons were inadequate. The first reason was simply that Mitchell was 71 years old. However, the State accepted five white venirepersons of retirement age. “A prosecutor’s use of [a race-neutral explanation] to exclude black venirepersons is not race-neutral if the State retains white venirepersons having that same trait and there is nothing else that distinguishes the retained white venirepersons from the excluded black venirepersons.” Lovelady, 221 Ill. App. 3d at 839, 582 N.E.2d at 1226; see McDonald, 125 Ill. 2d at 199-200, 530 N.E.2d at 1358-59.

The State’s second reason for excluding Mitchell was that, 11 years prior to voir dire, Mitchell had moved out of public housing, where she lived for an unspecified period of time. To the prosecutor at the Batson hearing, this fact indicated “that at least one point in time she was taking from the community rather than putting into the community.” The State fails to explain, and we doubt if the State could explain, how living in public housing, 11 years prior to voir dire, made Mitchell an unsuitable juror for that particular trial. The explanation was hardly clear, legitimate, and trial-specific as Batson requires. (See Lovelady, 221 Ill. App. 3d at 838, 582 N.E.2d at 1225.) Indeed, the remark is absurd at best and grossly stereotypical at worst. We condemn such a remark and disregard it without further discussion.

The State’s third reason for excluding Mitchell was that one of her three daughters was unemployed and approximately defendant’s age. The prosecutor at the Batson hearing explained that “[a]ny sympathy she may feel towards her unemployed thirty-six-year-old daughter she may express towards the defendant in this matter.” This reason fails because the State accepted other venirepersons who either were unemployed themselves or had offspring who were unemployed young adults. (See McDonald, 125 Ill. 2d at 199-200, 530 N.E.2d at 1358-59.) We conclude that the State’s explanation for Mitchell’s exclusion was pretextual.

The sixth black venireperson for whom the State offered an explanation was Stella Wilson. The trial judge’s questioning and Wilson’s jury card adduced the following facts. At the time of voir dire, Wilson was 69 years old and a retired hotel seamstress. Her late husband worked for Swift and Company. She had three adult children: two sons and one daughter. The eldest son was a postal worker; the next oldest son was a minister; and the daughter was a hospital statistician. Wilson had never been a victim of crime and she did not know anyone who worked in the criminal justice system. She had served on a jury in a murder trial 10 to 12 years prior to the voir dire. As with Mitchell, the prosecutor at voir dire excused Wilson without asking her any questions.

The State gave two inadequate reasons for excluding Wilson from the jury. The first reason was simply that Wilson was 69 years old. This reason is as pretextual for Wilson as it is for Mitchell. See McDonald, 125 Ill. 2d at 199-200, 530 N.E.2d at 1358-59.

The State’s second reason for excluding Wilson was that one of her children was a minister. The prosecutor at the Batson hearing noted that the State planned to seek the death penalty. Thus, the Bat-son hearing prosecutor explained that the voir dire prosecutor “did not feel it would be appropriate to keep a person on the jury who had a strong religious background as indicated by the fact that her son was a minister.”

This reason fails for not being trial-specific. (See Lovelady, 221 Ill. App. 3d at 838, 582 N.E.2d at 1225.) Indeed, this reason contains an obvious double assumption that is quite unrelated to this particular trial. It firstly assumes that Wilson herself had “a strong religious background.” However, the fact that one of her offspring is a minister indicates nothing. This reason secondly assumes that religious people would be less likely to impose capital punishment in this particular case. Neither assumption was explored by any questions from the prosecutor. Indeed, no venireperson was questioned on the existence or strength of any religious affiliation.

We additionally note that the subject of capital punishment in the context of this trial is particularly specious. The record shows that none of the venirepersons were told that the State would seek the death penalty. Further, the trial judge directed that the jury would be questioned on the death penalty (see Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770) after the trial, if it became necessary. Thus, at the time of voir dire, whether or not defendant’s trial was a capital case was quite irrelevant.

We conclude that the State gave inadequate reasons for the exclusion of both Mitchell and Wilson from the jury. We hold that the trial judge’s finding to the contrary was against the manifest weight of the evidence. This requires us to reverse defendant’s conviction and remand the cause for a new trial.

B

We see the inadequacy of the State’s explanation for its use of peremptory challenges from a second and equally fatal aspect. Prior to giving his explanation, the prosecutor at the Batson hearing related to the trial judge comments by the prosecutor at voir dire. The comments described an overall design or plan in conducting the voir dire. The Batson hearing prosecutor stated:

“[The prosecutor at voir dire] indicated to me that at the time of jury selection it was his belief that the defense theory would be one of accountability, that the defendant did not realize what was going to happen and he was just along.
[The prosecutor at voir dire] felt that based on that theory, he did not want any sympathy or he wanted responsible people sitting on the *** jury. People who had roots in the community. People who would be able to see through what the defense had to say at that point.
Your Honor, he wanted homeowners. He wanted people who were employed. He wanted people with roots in the community.”

The prosecutor at the Batson hearing used this rationale to explain the wholesale exclusion of various classes of venirepersons.

Illinois courts have reiterated Batson’s requirement that a prosecutor’s explanation for his use of peremptory challenges not only be race-neutral, but also clear, legitimate, and trial-specific. (See, e.g., Lovelady, 221 Ill. App. 3d at 838, 582 N.E.2d at 1225, citing Batson, 476 U.S. at 97-98, 90 L. Ed. 2d at 88-89, 106 S. Ct. at 1723-24.) The wholesale exclusion of venirepersons based on classifications, albeit race-neutral classifications, without trial-specific reasons, is forbidden.

The United States Supreme Court condemned this practice over 40 years ago. In Thiel v. Southern Pacific Co. (1946), 328 U.S. 217, 90 L. Ed. 1181, 66 S. Ct. 984, the Court was presented with the exclusion of all venirepersons who worked for a daily wage. However, the following words apply to all class-based exclusions of venirepersons:

“The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. [Citations.] This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.” (Emphasis added.) (328 U.S. at 220, 90 L. Ed. at 1184-85, 66 S. Ct. at 985-86.)

Indeed, even the dissent in Thiel agreed with the above principles. “The process of justice must of course not be tainted by property prejudice any more than by race or religious prejudice.” 328 U.S. at 226, 90 L. Ed. at 1188, 66 S. Ct. at 988 (Frankfurter, J., dissenting).

The record reveals the pernicious effect of the prosecutor’s class-based exercise of his peremptory challenges. For example, the fifth venireperson for whom the State offered an explanation was Claire Sexton. The trial judge’s questioning and Sexton’s jury card adduced the following facts. At the time of voir dire, Sexton was 65 years old. She was a renter at her current address for 21 years. She was employed as a housekeeper at a local university and had worked there for 15 years. Sexton was separated from her husband, who was a janitor. She did not have any children. Sexton had never been a victim of crime and she did not know anyone who worked in the criminal justice system. She had previously served on two juries, one civil and one criminal. As with Mitchell and Wilson, the prosecutor at voir dire excused Sexton without asking her any questions.

The State gave three inadequate reasons for excluding Sexton from the jury. One reason simply was that Sexton was 65 years old. This reason is as pretextual for Sexton as it is for Mitchell and Wilson. See McDonald, 125 Ill. 2d at 199-200, 530 N.E.2d at 1358-59.

A second reason proffered by the State for excluding Sexton was that she worked at a university. The prosecutor at the Batson hearing explained that “[ujniversity individuals tend to be more liberal in certain areas than other people.”

The State relies on People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357, where the prosecutor at the Batson hearing on remand explained that he excluded a venireperson because he was a teacher and, further, that he generally excused schoolteachers. The prosecutor stated that teachers tend to be sympathetic, to give individuals the benefit of the doubt, and to go beyond the law and other restrictions placed upon them when they serve as jurors. 129 Ill. 2d at 178-79, 544 N.E.2d at 381.

The Harris court, however, focused solely on the singular employment background of that particular juror. The court did not express a blanket, class-based opinion of all teachers. (129 Ill. 2d at 180, 544 N.E.2d at 382.) Further, in the case at bar, Sexton was not even a teacher; she was a housekeeper. Thus, this impermissible, class-based stereotype does not even apply to Sexton.

A third reason proffered by the State for excluding Sexton was that she was a renter. Apparently, the prosecutor at the Batson hearing did not consider Sexton to have, using his words, “roots in the community,” solely because she rented her residence of 21 years rather than owned it.

The State attempts to base its wholesale exclusion of renters on People v. Mack (1989), 128 Ill. 2d 231, 538 N.E.2d 1107. In Mack, the prosecutor at the Batson hearing on remand explained that the State excluded four venirepersons because they were both young and renters. Our supreme court considered that particular combination of traits to be an adequate explanation in that particular case. 128 Ill. 2d at 242-44, 538 N.E.2d at 1113.

However, the venirepersons in Mack were not excluded based solely on their status as renters. Further, Mack does not indicate that the State exercised its peremptory challenges in such a class-based, wholesale, and systematic manner as in the case at bar. We hold that the State’s exclusion of Sexton, based on these class-based and stereotypical perceptions, was impermissible. The trial judge’s finding that these explanations were adequate was against the manifest weight of the evidence.

A cursory review of the record shows that some of the reasons proffered by the Batson hearing prosecutor to explain the exclusion of several particular venirepersons were pretextual. Additionally, some of the reasons were based on impermissible class-based exclusions of venirepersons. Defendant’s conviction must be reversed and the cause remanded for a new trial.

We lastly note that we believe the evidence at trial was sufficient for the jury to conclude that defendant was guilty beyond a reasonable doubt. This is not a finding as to defendant’s guilt or innocence that would be binding on retrial. Rather, our consideration of the sufficiency of the evidence removes the risk of subjecting defendant to double jeopardy. People v. Taylor (1979), 76 Ill. 2d 289, 309-10, 391 N.E.2d 366, 375.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause remanded for a new trial.

Reversed and remanded.

JOHNSON and McMORROW, JJ., concur.