author: JUSTICE JOHNSON

text:
    SARAH JANE McGUCKIN, Indiv. and as Ex’r of the Estate of William J. McGuckin, Deceased, Plaintiff-Appellee, v. CHICAGO UNION STATION, et al., Defendants-Appellants (Consolidated Rail Corporation, Defendant-Appellee).
    First District (4th Division)
    Nos. 1—87—1238, 1—87—1292 cons.
    Opinion filed November 30, 1989.

      Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Joanne Simboli Hodge, Assistant Corporation Counsel, of counsel), for appellant City of Chicago.
    Romanyak & Miller, of Chicago (James A. Romanyak, Lawrence T. Miller, and Gregory A. Stayart, of counsel), for appellant Chicago Union Station.
    Leo M. Tarpey, Jr., and Catherine Coyne Reiter, both of Pretzel & Stouffer, of Chicago (Robert Marc Chemers and Perry W. Hoag, of counsel), for appellee Sarah Jane McGuckin.

      Baker & McKenzie, of Chicago (Francis D. Morrissey, John W. Dondanville, and William M. Sneed, of counsel), for appellee Consolidated Rail Corporation.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial, defendants, City of Chicago (hereinafter the City) and Chicago Union Station (hereinafter Union Station), were found liable for the death of William J. McGuekin. Defendants appeal from the judgment of the circuit court of Cook County that apportioned liability at 60% against the City and 40% against Union Station. The major issue raised on review by the City is whether the trial court erred in finding that the City owed a duty to decedent. The other issue raised by the City is whether the trial court erred by allowing the jury to determine if a “special duty” existed without instructing the jury as to the necessary elements of that duty. On appeal, Union Station questions whether (1) the jury verdicts in favor of Consolidated Rail Corporation and against it are inconsistent; (2) the verdict against it (Union Station) was against the manifest weight of the evidence; (3) the trial court erred by imposing the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 5—101 et seq.) as a bar to its third-party complaint for contribution from the City; (4) there was sufficient evidence based upon a theory of res ipsa loquitur to support a denial of its motion for a directed verdict; and (5) the trial court abused its discretion by allowing plaintiff’s expert witnesses to testify.

We affirm in part and reverse in part.

Plaintiff’s decedent, William J. McGuekin, was an employee of Consolidated Rail Corporation (hereinafter Conrail). Union Station leased space in its building to Conrail. On July 26, 1980, a fire occurred at Union Station and McGuekin died from smoke inhalation. On July 27, 1981, plaintiff filed a five-count complaint seeking $1,500,000 on behalf of herself individually and as executor of McGuckin’s estate. Count IV alleged that the City engaged in 10 negligent acts or omissions. On October 16, 1981, the City filed a motion to strike and dismiss count IV based on the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 5—101 et seq.) (hereinafter the Tort Immunity Act or Act). After a hearing on the City’s motion to dismiss, the court found that the law would not impose liability against the City for failure to sufficiently inspect or extinguish the fire. However, the court did not strike subparagraph 22(e) of count IV, which alleged that the City negligently instructed the occupants to remain in the building.

On August 11, 1982, the trial court granted plaintiff leave to amend count IV of her complaint. The amendment alleged that the City owed decedent a “special duty.” The City filed a motion to dismiss the amendment on August 22, 1985. The court granted the motion with respect to all of the allegations except those contained in paragraphs 22(a) and 22(b), which alleged that the City instructed or advised the occupants to remain in the building. The City filed a petition for reconsideration of its motion to dismiss, a motion to vacate the order entered on June 17, 1982, and another motion to dismiss. After a hearing on June 6, 1986, the court denied the City’s petition for reconsideration.

On September 9, 1986, the City filed a motion for summary judgment. Prior to a decision on the motion, plaintiff moved to file, instanter, an amended complaint and her motion was granted. Before trial began, Union Station filed a motion to strike and dismiss count I of plaintiff’s amended complaint that added the claim of res ipsa loquitur, which was denied. The trial court also dismissed two of the parties, and the case proceeded to trial against defendants herein. The facts are taken from the trial testimony.

Jordan Riehecky, a janitor at Union Station at the time of the fire, testified that usually when he arrived at work, around 6 a.m., he found trash carts near the loading dock. It was his responsibility to take the carts to a trash compactor. On the day of the fire, he also noticed new bags of sawdust stacked against a wall in the loading dock area. He removed all but one or two of the trash carts from the loading dock by 7 a.m. He stated that he was unable to remove all of the carts because of the amount of trash on the floor. He did not smell any smoke during this time. He did hear a popping sound which alerted him to the possibility of a fire. He pulled the fire alarm and ran upstairs. Riehecky testified that he had never received any training concerning procedure in case of a fire.

At approximately 10:40 a.m. on July 26, 1980, Carl Thomas, a security officer at Union Station, was advised by a janitor that the basement smelled of smoke. Robert Krabec, the acting supervisor of the security officers, directed Thomas and Coleman Smith, also a security officer, to go down to the basement and investigate the matter. As Thomas approached the loading dock area, he saw smoke near the ceiling and felt the heat. When Thomas looked through the doors into the loading dock, he saw flames. Krabec ordered Thomas and Smith to contact the fire department. The fire department arrived in approximately 20 minutes. The fire was brought under control within 10 minutes. Thereafter, the fire fighters proceeded to check for any extension of the fire.

James Higgins, the chief of Battalion 2 and ranking officer of the fire department, ordered the fire fighters to check the ceiling around an electrical chase (a boxed area contained inside a large structure and through which various pipes run), whose shaft led to the upper floors. Next, Higgins obtained a ladder which enabled him to look up the chase for evidence of smoke or a red glow. Captain O’Hara, in charge of Engine Company 1, climbed the ladder with a flashlight. He shut the flashlight off to see if any sparks were falling. He told Higgins that the area was clear. Higgins then ordered the fire fighters to climb the ladder with a hose and wash down the chase. Fire fighters were also sent to the roof to check for any extension of the fire.

Higgins was notified by radio that there was a person on the seventh floor who might be in jeopardy. He ordered Thomas Loughney, a lieutenant with the fire department, to investigate the matter. Loughney was accompanied by a Union Station security guard. The two men left the loading dock and went upstairs to the main lobby, where they stopped at the Golden Lion Restaurant. The doors were locked. The guard informed Loughney that he did not have the keys, but that he could obtain them. Loughney made no request for the keys; instead, he looked into the restaurant through the glass doors, seeing at a distance of 20 to 25 feet with the use of his flashlight. He did not see smoke or fire or feel heat up against the doors. The guard did not inform Loughney that the restaurant was above the area of the basement where the fire had just occurred. Thereafter, Loughney and the guard went to the seventh floor.

On the seventh floor, light smoke was visible and the area was ventilated. The guard departed, and Loughney proceeded to the lower floors, opening hallway and stairwell doors for further ventilation. Lieutenant Loughney did not converse with any of the occupants. When he returned to the first floor, he reported to Higgins that upon his visual inspection of the restaurant, through its locked doors, he saw no evidence of a fire. Higgins testified that neither he nor any of the fire fighters informed the tenants that it would not be necessary to evacuate the building. He further testified that he did not remember a conversation with Krabec concerning the people on the upper floors complaining of smoke. However, Thomas testified that he heard Krabec and Higgins arguing about the people on the upper floors who complained of smoke. Thomas alleged that he heard them advise the people not to worry because the fire was only in the basement.

McGuckin shared a fifth-floor office suite with Mary Banhart and Arthur Bridenstine. Between 9 and 10 a.m., employees on the fifth floor saw smoke in the corridors. Charlotte Bader, an employee who worked in Conrail’s dispatch office, went to the suite and informed McGuckin and the others that there was a fire downstairs. Allan Cravens, another Conrail employee, testified that he spoke with Joe Schulberger, Conrail’s assistant superintendent of operations, who informed him that he had spoken with Union Station personnel and was assured that the small fire was under control. As McGuckin and Bridenstine left the suite to get a report on the fire, they met a group of Conrail employees exiting an elevator and were told that there had been a fire downstairs but the fire department had extinguished it.

Banhart further testified that around noontime she went to the ladies room, where she found the window open and the smell of smoke prevalent. She went to McGuckin’s office and pointed to the smoke outside. She suggested that they leave. According to Banhart, McGuckin had difficulty getting to the main office due to the thick smoke in the corridor. She eventually reached out into the hallway and brought him into the main office. McGuckin contacted Cravens and told him they were trapped. All except McGuckin went out onto the office window ledge. Banhart tried, but failed, to get McGuckin onto the ledge. He subsequently collapsed.

At approximately 11:37 a.m., the fire fighters left Union Station. About 20 minutes later, Thomas went to the main waiting room of Union Station, where he learned from a Faber’s Restaurant employee that the smell of smoke was strong in the nearby Falcon Lounge. Thomas went to the Falcon Lounge and saw the smoke. He attempted to enter the Golden Lion Restaurant next door, but the doors were locked. However, he could see smoke through the glass doors. Krabec sent Thomas to obtain the keys. Both men entered the restaurant. Thomas saw a blaze of fire and shouted out to Krabec to get the fire department back. Thomas immediately began to evacuate the, main waiting room. Thomas testified that he was aware of only one system of notifying tenants in case of an emergency, and that system was out of order on the day of the fire.

When the fire fighters arrived again, Higgins ordered an evacuation of the building. The thick smoke prevented Thomas from going upstairs to warn the tenants on the upper floors. Once outside the building, Thomas informed a fire fighter that there might be some people upstairs. A fire fighter rescued the Conrail employees from the window ledge.

Dr. Yuksie Konakci, a medical examiner with the Cook County medical examiners office, testified that McGuckin died from smoke inhalation.

The cause of the fire was in dispute at trial. James Ryan, who was employed by the Chicago fire department as an assistant commissioner and director of inspectional services at the time of the fire, testified that the basement fire was caused by an electrical malfunction. He stated that the fire in the restaurant originated in the area of the electrical chase. He further concluded that placing sawdust and full trash carts near the electrical closet created a fire hazard. Ryan stated that a fire doubles itself in volume approximately every three minutes. According to the witness, the failure of the fire fighters to detect the fire between 11 and 11:30 a.m. increased the danger of death from smoke inhalation on the fifth floor. If the fire had been discovered around 11:10 a.m., Ryan stated that it would have taken the fire fighters only 10 to 15 minutes to bring it under control.

Henry Morton, a registered professional engineer, was retained by the General Adjustment Bureau of Chicago, Union Station’s insurance carrier, to inspect and investigate the fire. Morton found two probable causes of the fire: (1) spontaneous ignition and (2) human activity, i.e., someone dropping smoking materials into the trash, in the area of the basement fire. He ruled out electrical malfunction as the cause of the fire. Even if there were a malfunction, he found no fuel in the chase at that time to start an ignition reaction. Morton believed that the fire originated in the sawdust or in the dumpster outside the electrical panel in the basement. He stated that leaving carts filled with trash in an enclosed area near the electrical chase was a fire hazard.

Boyd A. Hartley, a protection and safety engineer, testified as an expert witness. He was asked to review the documents and reports of Morton and Ryan and to render an opinion concerning the fire at Union Station. Similar to the opinions stated by Morton and Ryan, Hartley believed that the origin of the fire was the trash carts located near the electrical chase in the basement.

John Kennedy, a fire and explosion investigator, also testified as an expert witness. He conducted an investigation at the scene of the fire, reviewed materials in possession of the bomb and arson squad, conducted interviews, and analyzed reports prepared by other fire investigators. Kennedy testified that the fire originated in the trash carts in front of the electrical chase in the basement. He did not find that the fire was caused by an electrical malfunction. However, he stated that placing open trash carts in the area of the loading dock was not a fire hazard because it was not proximate to any source of ignition.

All of the experts agreed that the overhaul conducted by the fire fighters was improper. A proper overhaul would have prevented the fire from spreading.

The City contends, on appeal, that the trial court erred in finding that it owed a duty to decedent. It argues that, pursuant to the Tort Immunity Act, fire fighters are immune from liability for the “failure to establish a fire department or *** provide fire protection service.” (Ill. Rev. Stat. 1985, ch. 85, par. 5—101.) The Act further provides that fire fighters are not liable “for an injury resulting from the failure to suppress or contain a fire or from the failure to provide or maintain sufficient personnel, equipment or *** facilities” (Ill. Rev. Stat. 1985, ch. 85, par. 5—102), nor “for an injury caused by an act or omission of a public employee while engaged in fighting a fire” (Ill. Rev. Stat. 1985, ch. 85, par. 5—103).

Plaintiff concedes that the above sections of the Act provide a blanket grant of immunity to local governments from liability for injuries arising from the ordinary negligence of fire fighters. (Jackson v. Chicago Firefighters Union (1987), 160 Ill. App. 3d 975, 980; Adams v. Brooks (1984), 123 Ill. App. 3d 840, 844.) Nevertheless, plaintiff claims that the facts of this case fall within the “special duty” exception to the statutory immunity for fire fighters.

The sound public policy behind the immunity statute has been reiterated in various cases in Illinois. In Martin v. Lion Uniform Co. (1989), 180 Ill. App. 3d 955, 959, quoting Roumbos v. City of Chicago (1928), 332 Ill. 70, 81, quoting Wilcox v. City of Chicago (1883), 107 Ill. 334, 339, the court stated:

“ ‘If liable for neglect in this case the city must be held liable for every neglect of that [fire] department, and every employee connected with it when acting within the line of duty. It would subject the city to the opinions of witnesses and jurors whether sufficient dispatch was used in reaching the fire after the alarm was given; whether the employees had used the requisite skill for its extinguishment; whether a sufficient force had been provided to secure safety; whether the city had provided proper engines and other appliances to answer the demands of the hazards of fire in the city; and many other things might be named that would form the subject of legal controversy. To permit recoveries to be had for all such and other acts would virtually render the city an insurer of every person’s property within the limits of its jurisdiction. It would assuredly become too burthensome to be borne by the people of any large, city, where loss by fire is annually counted by the hundreds of thousands, if not by the millions. *** To allow recoveries for the negligence of the fire department would almost certainly subject property holders to as great, if not greater, burthens than are suffered from the damages from fire. Sound public policy would forbid it, if it was not prohibited by authority.’ ”

Contrary to the City’s argument, the special duty exception is applicable to fire fighters. (Huey v. Town of Cicero (1969), 41 Ill. 2d 361; Jackson v. Chicago Firefighters Union (1987), 160 Ill. App. 3d 975.) However, the issue before us is whether the special duty exception is applicable to the case at bar. The following four-prong test must be satisfied before imposition of the special duty exception: (1) the municipality must be uniquely aware of the particular danger or risk to which the decedent was exposed: (2) there must be allegations of specific acts or omissions on the part of the municipality; (3) the specific acts or omissions must be either affirmative or willful in nature; and (4) the injury must occur while the plaintiff’s decedent was under the direct and immediate control of employees or agents of the municipality. Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172, 176; Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967, 970.

Assuming, arguendo, that plaintiff could satisfy the second and third elements of the above test, she has failed to produce sufficient evidence to meet the remaining two elements. In order to find “unique awareness,” the municipality must be on notice “that a preventable danger threatens a particular individual of whom they are aware.” Fryman v. JMK/Skewer, Inc. (1985), 137 Ill. App. 3d 611, 617; see also Huey, 41 Ill. 2d at 364.

In Huey, the plaintiff alleged that the City had a duty to warn the decedent, a black person, of the dangers of being in the town of Cicero. The court held that the plaintiff failed to show that defendants knew of the presence of decedent in Cicero, or that the decedent had requested protection, or that the decedent would encounter any particular danger. (Huey, 41 Ill. 2d at 364.) Furthermore, in Fryman, the county health department learned that a restaurant was serving contaminated food; however, it did not close the restaurant or warn the patrons of possible food poisoning. The court found that the county was not uniquely aware of the danger to any specific individuals. Fryman, 137 Ill. App. 3d at 617.

Here, plaintiff claims that when Higgins was informed by Union Station’s security officer that some people saw smoke in the building, he was uniquely aware that particular individuals were exposed to danger. This evidence is insufficient to meet the unique awareness requirement. It is very likely that Higgins believed that the smoke was a result of the fire in the basement. We find that the fire fighters were not uniquely aware of any specific danger to the decedent; the record does not disclose that they knew of his existence on the premises nor did they receive from him a request for protection.

We also conclude that the evidence fails to support a finding that the decedent was under the direct and immediate control of the fire department. In determining the control prong of the special duty exception, the issue is whether the municipality “was responsible for the occurrence which gave rise to the need for protection.” (Jackson v. Chicago Firefighters Union (1987), 160 Ill. App. 3d 975, 982; see Cincinnati Insurance Co. v. City of Taylorville (7th Cir. 1987), 818 F.2d 1345, 1352.) The mere fact that the municipality is aware of another’s need for protection is not a conclusive finding of direct and immediate control. Jackson, 160 Ill. App. 3d at 982.

In Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, the plaintiff was asked by police officers to accompany them to a specific location to identify persons who had assaulted him. The plaintiff was attacked again by his assailants in the presence of the police officers. On appeal, this court reversed the dismissal of the complaint on the basis that plaintiff had been “called into a position of peril by the police.” Gardner, 71 Ill. App. 2d at 380.

On the other hand, in Marvin v. Chicago Transit Authority (1983) , 113 Ill. App. 3d 172, the plaintiff was being attacked near the cashier’s window in a subway station. A Chicago police officer chased the youths away, but refused plaintiff’s request to accompany him down to the platform. The officer stated that the youths were going in a different direction. However, when plaintiff reached the platform, the youths were waiting and he was severely beaten. The appellate court affirmed the dismissal of the plaintiff’s complaint, holding that “[t]he mere disjunctive allegation that the police officer ‘directed, permitted or caused’ plaintiff to descend to the platform *** does not meet this *** requirement.” (Marvin, 113 Ill. App. 3d at 177.) The case law indicates that in order for the court to find that the decedent was under the “direct and immediate control of employees *** of the municipality,” plaintiff has to show that an employee or agent of the municipality took an affirmative action which called the injured party into a position of peril. Marvin, 113 Ill. App. 3d at 176.

Here, plaintiff urges that evidence of the fire department’s immediate control can be found in sections 12—37 and 12—38 of the Municipal Code of Chicago (Chicago Municipal Code §§12—37, 12—38 (1984) ). In essence, these sections provide that all persons in the area of a fire are subject to the orders of the chief fire marshal and that the chief has the power to prescribe and maintain the limits in the area in which no person may enter without his permission. Plaintiff alleges that the City was negligent in instructing or advising the occupants that the building was safe, when in fact it was not. Plaintiff’s support of this allegation is based on the testimony of Union Station’s security guard, Carl Thomas. According to Thomas, two Conrail employees overheard a conversation wherein Higgins allegedly stated that the fire was out and there was no need for evacuation. The facts suggest that possibly these Conrail employees may have been the same Conrail employees who told McGuckin and his co-workers that the fire was out and that it was safe to remain in the building. Yet, there is no testimony in the record from a Conrail employee stating that he or she overheard such a conversation.

The facts fail to reveal any situation where the fire fighters acted affirmatively to call McGuckin into a position of peril by ordering, instructing, or advising tenants to remain in the building. Moreover, an overheard conversation by a third party related to another party is far removed from constituting direct and immediate control. Clearly, the decedent was not under the direct and immediate control of the fire department. For these reasons, plaintiff has failed to meet the requirements necessary for the imposition of a special duty. Based on this finding, there is no need to reach the other contentions raised by the City.

Initially we will address Union Station’s claim against Conrail. As a part of its appeal from the judgment in favor of plaintiff and against it, Union Station contends that the verdicts in favor of Conrail and against it are inconsistent. Under Illinois law a defendant has no standing to appeal a verdict in favor of a codefendant. (Landers v. Ghosh (1986), 143 Ill. App. 3d 94, 99; Pell v. Victor J. Andrew High School (1984), 123 Ill. App. 3d 423, 435.) Where a defendant asserts a cross-claim for contribution against a codefendant, the defendant may have standing to appeal dismissal of joint tortfeasors in the underlying action at the trial level. Pell, 123 Ill. App. 3d at 435.

In the present case, Union Station and Conrail held in abeyance their contribution claims against each other. The jury rendered a verdict only on plaintiff’s claims against the three defendants. The rule of law in Illinois states that the same jury hearing a single set of facts and circumstances cannot reach two distinct conclusions of fact as set forth in their verdicts, unless those inconsistent conclusions are reconcilable under an applicable rule of law. Boasiako v. Checker Taxi Co. (1986), 140 Ill. App. 3d 210, 213.

We find that the verdicts in the instant case are reconcilable. Plaintiff here asserted a negligence claim under the theory of res ipsa loquitur against Union Station, but not against Conrail. As the owner of the building, Union Station was subject to a claim that the premises were under its control, an essential element of res ipsa loquitur.

In Drewick v. Interstate Terminals, Inc. (1969), 42 Ill. 2d 345, the court reached the same conclusion. The plaintiff in Drewick filed a suit against a window manufacturer and a window installer for negligence. The plaintiff also sued the owner of the building where the window was installed, under the theory of res ipsa loquitur. The jury returned verdicts in favor of the window manufacturer and window installer and against the owner of the building. The owner contended that the verdicts were inconsistent. The court held that “the apparent inconsistency of the verdicts in question is resolved since no attempt was made to apply the doctrine of res ipsa loquitur to the other party-defendants.” (Drewick, 42 Ill. 2d at 348.) The merits of the theory of res ipsa loquitur will be discussed later in this opinion.

Union Station contends that it is entitled to contribution from the City, pursuant to section 2(a) of the Contribution Among Joint Tortfeasors Act (hereinafter the Contribution Act) (Ill. Rev. Stat. 1985, ch. 70, par. 302(a)). It argues that even assuming that the Tort Immunity Act is applicable, it is not a bar to claims for contributions:

By the express terms of the Contribution Act, we disagree with Union Station. Section 2(a) of the statute provides that, “Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property *** there is a right of contribution among them ***.” (Ill. Rev. Stat. 1985, ch. 70, par. 302(a).) The above provision expressly provides that there is no right of contribution against a party who is not “subject to liability in tort.” “The contribution defendant must be a tortfeasor, and originally liable to the plaintiff. If there was never any such liability, as where the contribution defendant has the defense of family immunity, assumption of risk, *** then there is no liability ***.” (W. Prosser & W. Keeton, Torts §50, at 339-40 (5th ed. 1984).) It is well settled in Illinois “that a municipality owes no duty for negligence in connection with the governmental function of providing fire protection service. [Citation.] That rule of nonliability *** was bom of sound public policy and was designed as a bar to all liability, where sought through a direct action or a third party contribution action.” McShane v. Chicago Investment Corp. (1989), 190 Ill. App. 3d 357, 359.

Union Station relies on language indicating that the intent of the Contribution Act is “to reach anyone who is culpable regardless of whether they have been immunized from a direct tort action by some special defense or privilege.” (Doyle v. Rhodes (1984), 101 Ill. 2d 1, 9.) This court has on prior occasions explained, in distinguishing cases relying on this broad statement, that where contribution is sought from the State, different considerations came into play. See Stephens v. Cozadd (1987), 159 Ill. App. 3d 452; Welch v. Stocks (1987), 152 Ill. App. 3d 1.

We have already established above that the fire department did not owe a statutory duty or common law duty to the decedent. Absent the presence of one of the duties, the City and its fire department cannot be “liable in tort” under the Contribution Act.

Union Station next contends that the jury verdict against it was against the manifest weight of the evidence. It argues that the fire department’s negligence in representing that the fire was extinguished and that it was safe to remain in the building constituted a superseding cause of McGuckin’s death.

The rules applicable here regarding proximate cause were set forth in Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 381, as follows:

“The rule that the causal connection between a person’s negligence and an injury is broken by the intervention of a new, independent, efficient and intervening cause so that the negligence is not actionable is subject to the qualification that if the intervening cause was foreseen or reasonably might have been foreseen by the wrongdoer, his negligence may be considered the proximate cause of the injury and he may be held liable notwithstanding the intervening cause.”

(See also Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 15.) Each case must rely on its own facts and surrounding circumstances. (Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 395.) Additionally, proximate cause of an injury is generally a question of fact to be determined by a jury. (Neering, 383 Ill. at 381.) In order for Union Station to escape liability, it must establish as a matter of law that the intervening occurrence was unforeseeable. Davis, 64 Ill. 2d at 395.

In our judgment, there was an unbroken causal connection between Union Station’s negligence and McGuckin’s death. The facts reveal that the fire was ignited by trash stored in proximity to the electrical chase in the basement of Union Station. Furthermore, there was ample testimony at trial that Union Station had only one alarm system for notifying occupants of an emergency and that system was out of order on the day of the fire. Clearly the fire department’s overhaul of the fire is not a new or independent intervening cause to break the causal connection between Union Station’s negligence and McGuckin’s death so as to relieve it from liability. In some instances there may be more than one proximate cause of an injury, and this may well be such a case. (Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 17.) However, we cannot say that the fire department’s action was the sole proximate cause of McGuckin’s death. Thus, the verdict was not against the manifest weight of the evidence.

Next, we address Union Station’s contention that the trial court erred in denying its motion for a directed verdict on the res ipsa loquitur count of plaintiff’s amended complaint. Union Station urges that when all the evidence is considered it cannot be inferred that McGuckin died as a result of the first fire. It urges that negligence is inferable from the acts of the fire department in failing to extinguish the second fire and informing the occupants that the fire was out.

A trial judge may grant a directed verdict “only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) A directed verdict is proper only where no substantial factual disputes exist. Pedrick, 37 Ill. 2d at 504.

Res ipsa loquitur creates a permissible inference of negligence from otherwise inexplicable facts and circumstances by permitting proof of negligence by way of circumstantial evidence. (Imig v. Beck (1986), 115 Ill. 2d 18, 30.) In order to invoke the doctrine of res ipsa loquitur, plaintiff must prove (1) that the occurrence is one that ordinarily would not occur in the absence of negligence and (2) that the defendant had exclusive control of the instrumentality that caused the injury. (Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 448-49; Imig, 115 Ill. 2d at 26.) “A plaintiff need not conclusively prove all the elements of res ipsa loquitur in order to invoke the doctrine. He need only present evidence reasonably showing that elements exist that allow an inference that the occurrence is one that ordinarily does not occur without negligence. [Citation.]” (Dyback v. Weber (1986), 114 Ill. 2d 232, 242.) The application of the doctrine is a question of law to be determined by the trial judge. (Metz, 32 Ill. 2d at 449-50.) Upon that decision, it is the function of the trier of fact to weigh the strength of the inference of negligence. (Imig, 115 Ill. 2d at 27; Drewick v. Interstate Terminals, Inc. (1969), 42 Ill. 2d 345, 349.) The inference of negligence is not alleviated if defendant produces evidence to the contrary, but the evidence he presents will be considered with all the other evidence in the case. Dyback, 114 Ill. 2d at 242.

Initially we note that the mere occurrence of a fire is generally insufficient to invoke the doctrine; however, a fire in conjunction with certain surrounding circumstances may give rise to an inference of negligence. (Hahn v. Eastern Illinois Office Equipment Co. (1976), 42 Ill. App. 3d 29, 31.) Union Station argues that the facts of the case should be characterized as having two occurrences—the basement fire and the restaurant fire. Union Station argues that based on the facts of this case, it is only the second fire which does not ordinarily occur in the absence of negligence. Such negligence, it argues, is inferable from the acts of the fire department.

We disagree with Union Station’s insistence that the fires are two separate and distinct occurrences. Simply because the restaurant fire was not discovered in the process of overhauling the fire in the basement does not make them distinct occurrences. We choose to view the circumstances as one fire in two different locations. All of the experts, including Union Station’s expert, testified that the restaurant fire was a continuation of the fire in the basement.

We find sufficient evidence in the record to support an inference of negligence on behalf of Union Station. Each expert testified that the fire originated in the trash carts or the bags of sawdust which were located near an electrical chase in the basement. Essentially, all of the experts stated that this created a fire hazard. The fire thereafter was drawn vertically through the pipe chase to the above floors.

The only evidence presented by Union Station to refute the above inference of negligence was the expert testimony of John Kennedy, a fire investigator. He agreed that the origin of the fire was in the trash carts near the electrical chase. Thus, we find sufficient evidence in the record to support the inference that the occurrence under the facts of this case is one that ordinarily does not take place in the absence of negligence.

Union Station further contends that there was insufficient evidence that it had exclusive control of the instrumentality which caused McGuckin’s death. It argues that the instrumentality is not the place of the fire, but the cause of the fire. As noted above, Union Station claims that McGuckin’s death was not caused by the basement fire, but by the fire in the restaurant, which was under the control of the fire department.

“The reason for the exclusive control requirement is that it must appear that the negligence of which the doctrine warrants an inference is probably that of defendant and not of another. [Citation.]” (Loizzo v. St. Francis Hospital (1984), 121 Ill. App. 3d 172, 176; see also Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 274.) The degree of control necessary to satisfy the doctrine of res ipsa loquitur is stated by Prosser and Keeton: “ ‘Control,’ if it is not to be pernicious and misleading, must be a very flexible term. It may be enough that the defendant has the right or power of control, and the opportunity to exercise it ***. It is enough that the defendant is under a duty which he cannot delegate to another ***.” W. Prosser & W. Keeton, Torts §39, at 250 (5th ed. 1984).

The Illinois courts have adopted the flexible standard of control. (Lynch, 93 Ill. 2d at 274.) Accordingly, the key question is whether the probable cause for the injury is of the kind which defendant was under a duty to the plaintiff’s decedent to anticipate or guard against. Lynch, 93 Ill. 2d at 274; Loizzo, 121 Ill. App. 3d at 177; see Restatement (Second) of Torts §328D, comment g, at 161 (1965).

As mentioned previously, we view the circumstances of this case as involving one fire occurring in two different locations. The record shows that the exact cause of the fire is disputed; however, we do know where the fire originated. The record also reveals that Union Station’s location of trash carts and sawdust near the electrical chase created a hazardous condition. Exclusive control does not mean physical control “if the instrumentality or dangerous agency is one which it is defendant’s responsibility to maintain at all times and which responsibility cannot be delegated by consent, agreement or usage.” Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 450.

Here, Union Station was responsible for the maintenance of its property. To this extent, it had a duty to use due care to guard against hazardous conditions. The fire department had no responsibility with regard to the trash carts or bags of sawdust, or the electrical chase located within Union Station. Neither could the fire department accept responsibility for these items and their location. Under these circumstances Union Station must be held to have had control over the instrumentality which caused McGuckin’s death.

In conclusion, we are mindful that the doctrine of res ipsa loquitur only gives rise to a permissive inference of negligence. For this reason, in most cases a directed verdict will not be appropriate because it must be left to the trier of fact whether to draw the inference from the circumstances surrounding the occurrence. (Imig v. Beck (1986), 115 Ill. 2d 18, 29.) As noted by Prosser and Keeton:

“[Tjhere may be occasional cases, such as those of the human toe in the plug of chewing tobacco, the collision of railway trains trying to run on the same track, and perhaps a rear end collision with a stationary vehicle, where the inference of negligence is so clear that no reasonable man could fail to accept it; and in such cases, if the defendant offers no explanation, a verdiet should be directed ***.” (W. Prosser & W. Keeton, Torts §40, at 258 (5th ed. 1984).)

When viewing the evidence most favorably to plaintiff, the evidence fails to overwhelmingly favor Union Station. Thus, the trial court properly denied Union Station’s motion for a directed verdict.

Union Station’s final contention is that the trial court erred and abused its discretion, pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220), in failing to exclude the expert testimony of plaintiff’s witnesses. According to Union Station, Ryan and Morton should have been excluded as expert witnesses because they were not properly disclosed. Additionally, Union Station argues that Hartley’s expert testimony should have been barred since it was allegedly different from his deposition testimony.

Supreme Court Rule 220 governs the disclosure of expert witnesses. An expert witness “is a person who, because of education, training or experience, possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation and who may be expected to render an opinion within his expertise at trial. *** [T]he identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party ***.” (107 Ill. 2d R. 220.) The rule applies only to those experts who are “retained to render an opinion at trial.” (Diminskis v. Chicago Transit Authority (1987), 155 Ill. App. 3d 585, 590-91.) Moreover, the trial court is afforded great latitude in allowing expert testimony which would enable the triers of fact to better understand the issues. Gordon v. Chicago Transit Authority (1984), 128 Ill. App. 3d 493, 503-04.

The facts indicate that at the time of the fire Ryan was employed by the Chicago fire department as an assistant commissioner. In that capacity, one of his responsibilities was to investigate the fire and prepare a report stating whether or not proper procedures were followed in handling the fire. Henry Morton, a registered professional engineer and an expert in fires, was retained by Union Station’s insurance carrier to investigate the fire. Thus, according to the record, Ryan and Morton were not “retained to render an opinion at trial.” For this reason, the City was not required to disclose them pursuant to Supreme Court Rule 220. 107 Ill. 2d R. 220.

Boyd Hartley was disclosed as a Rule 220 expert. However, Union Station contends that his trial testimony substantially differed on a material issue from his deposition testimony. During Hartley’s deposition, he was asked his opinion as to the cause of the fire. He responded that he could not render an opinion with any degree of certainty. He stated that there were a number of possibilities with varying degrees of probability. At trial, Hartley was asked the same question and he responded affirmatively. He opined that it was a high probability that the fire started as a result of a cigarette or hot ashes in the trash carts.

We do not find the above testimonies inconsistent. The trial testimony of Hartley is a further elaboration on his deposition testimony. The same trial testimony could have been elicited at the deposition if the attorney had asked Hartley to be more specific or to list the various possibilities and their corresponding probabilities. Even assuming that the testimonies differed, we are not persuaded that Union Station was prejudiced. Accordingly, the trial court did not abuse its discretion in admitting the testimony of expert witnesses Ryan, Morton, and Hartley.

For the foregoing reasons, the order of the circuit court of Cook County is affirmed as to the imposition of liability against Union Station and reversed as to the imposition of liability against the City.

Affirmed in part; reversed in part.'

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


source: Caselaw Access Project

author: JUSTICE McMORROW

license: Public Domain

text:
    JEFFREY ANDERSON, SR., Conservator of the Estate of Earnest Earl Anderson, an Incompetent, Plaintiff-Appellant, v. HAMILCARS INTENGAN, Defendant-Appellee (St. Bernard Hospital et al., Defendants).
    First District (4th Division)
    No. 1—88—1723
    Opinion filed November 30, 1989.

      Stephen I. Lane, of Lane & Munday, of Chicago, for appellant.
    Pamela L. Gellen and Susan Marzec Hannigan, both of Johnson, Cusack & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

The conservator of the estate of Earnest Earl Anderson (Anderson) appeals from the trial court’s dismissal of his medical malpractice claim against Hamilcars Intengan, M.D. (Intengan), on the ground that Anderson failed to exercise reasonable diligence in serving Intengan with summons pursuant to Illinois Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)). Upon review, we conclude that Anderson’s lack of diligence in serving Intengan in an earlier suit filed by Anderson in which Intengan was named as a respondent in discovery, and Anderson’s subsequent voluntary dismissal of this suit against Intengan, is to be considered on the issue of whether Anderson exercised due diligence in serving Intengan with summons in a subsequently filed medical malpractice claim against Intengan. We further determine that the instant record does not contain sufficient facts to establish whether Anderson’s suit was properly dismissed under Rule 103(b). As a result, we reverse and remand for further proceedings.

Anderson filed a medical malpractice suit against Intengan and others on August 18, 1987, and Intengan was served with summons with respect thereto on October 12, 1987. Intengan filed an appearance and a motion to dismiss Anderson’s claim against him, based on Illinois Supreme Court Rule 103(b). In this motion to dismiss, Intengan represented that on June 28, 1978, Anderson had filed an action in discovery naming St. Bernard Hospital as defendant and naming Intengan as respondent in discovery. This action in discovery pertained to injuries sustained by Anderson in 1976. According to Intengan’s motion to dismiss, Anderson took a voluntary nonsuit of the action in discovery on September 22, 1986. In the subsequent medical malpractice suit filed in 1987, Anderson sought recovery from Intengan for the same 1976 injuries which were the basis of his 1978 action in which Intengan was named, not as a defendant, but as a respondent in discovery. Intengan also represented that he had never been served with summons or a copy of Anderson’s discovery pleading in the 1978 suit. On the basis of these facts, Intengan argued that Anderson’s 1987 malpractice suit against him should be dismissed for failure to exercise reasonable diligence in the service of summons pursuant to Illinois Supreme Court Rule 103(b).

Anderson’s response to Intengan’s motion to dismiss did not contest that he had earlier filed an action in discovery naming Intengan solely as a respondent in discovery, nor did Anderson contradict that the discovery suit had been voluntarily dismissed approximately eight years after it was filed. Anderson also did not dispute Intengan’s assertion that he had never been served with summons in the discovery suit. Instead, Anderson asserted that Rule 103(b) does not apply to discovery suits, and that even if it does, dismissal with prejudice of Anderson’s medical malpractice suit was improper because the statute of limitations had not expired on the malpractice claim. Based upon the pleadings and arguments of the parties, the trial court dismissed Anderson’s claim against Intengan with prejudice, and Anderson appeals.

Anderson argues that the trial court’s dismissal of his medical malpractice claim against Intengan was improper because Illinois Supreme Court Rule 103(b) does not apply where the person named as defendant in a refiled action was only named a respondent in discovery in the plaintiff’s original suit. We disagree.

Illinois Supreme Court Rule 103(b) states in pertinent part:
“If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice.” 107 Ill. 2d R. 103(b).

The Illinois Supreme Court has held that a' “ruling on Rule 103(b) dismissal motion, made following service of process of a refiled action, *** requires an examination of the plaintiff’s diligence in the original action as well as in the refiled action even if service was never effected in the original action.” (Martinez v. Erickson (1989), 127 Ill. 2d 112, 119, 535 N.E.2d 853; see also Muskat v. Sternberg (1988), 122 Ill. 2d 41, 521 N.E.2d 932; Catlett v. Novak (1987), 116 Ill. 2d 63, 506 N.E.2d 586.) This rule was adopted in order to further the following purposes of Rule 103(b):

“Nothing is more critical to the judicial function than the administration of justice without delay. [Citations.] Central to discharging this function, the judiciary must be unimpeded in considering and rendering judgments on matters before it. [Citations.] Rule 103(b) was adopted by this court to effectuate its historical and constitutional mandate to render justices fairly and promptly.
Due diligence in serving process is essential to this purpose, for it is the sole legally sufficient means of alerting defendants to the pendency of a civil suit. In addition, service with due diligence, by promptly placing defendant on notice of a pending action, shortens the time needed to investigate, prepare and litigate the issues raised, thereby allowing the court to proceed expeditiously to a just resolution of the matter before it.” O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 282, 492 N.E.2d 1322.

See also Catlett v. Novak (1987), 116 Ill. 2d 63, 69-71, 506 N.E.2d 586.

We hold that a ruling on a Rule 103(b) dismissal motion, made following service of process in a refiled medical malpractice action naming a party as a defendant rather than a respondent in discovery, requires an examination of the plaintiff’s diligence in the original action (naming the party as a respondent in discovery) as well as in the refiled action (naming the party as a defendant), even if service was never effected in the original action. In our view, this ruling promotes the purpose of Rule 103(b) to promptly apprise individuals named in litigation so that they may either adequately defend their interests or assist in bringing the matter to a fair conclusion.

Anderson argues that his failure to exercise due diligence in serving summons upon Intengan, when Intengan was named as a respondent in discovery, should not be considered in a Rule 103(b) motion because a “respondent in discovery” is not a “defendant.” However, the statutory enactment which creates the right to name a party a respondent in discovery in a medical malpractice suit explicitly provides that a respondent in discovery “shall be required to respond to discovery by the plaintiff in the same manner as are defendants” and that a “copy of the complaint shall be served on each person named as a respondent in discovery.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—402.) The Committee Comments with respect to the statute creating the right to name a party as a respondent in discovery also note, “Service of the complaint on a respondent in discovery should be made in the same manner as personal service would be made on the respondent were he a party defendant at the outset.” (Ill. Ann. Stat., ch. 110, par. 2—402, Committee Comments, at 342 (Smith-Hurd 1983).) Once a party has been named a respondent in discovery and service of summons has been properly executed upon him, the court acquires in personam jurisdiction over that party for all purposes, and no further summons is required if the respondent in discovery is later made a defendant in the suit. (Whitley v. Lutheran Hospital (1979), 73 Ill. App. 3d 763, 392 N.E.2d 729.) This precedent establishes that, once a party has been named a respondent in discovery, the party is entitled to the protections attendant to service of summons that would apply if the party had been named a defendant in the suit. Consequently, a failure to exercise reasonable diligence in effecting service upon a respondent in discovery is one of several relevant circumstances which should be considered (see, e.g., Paglis v. Black (1989), 178 Ill. App. 3d 1062, 534 N.E.2d 206) in a trial court’s ruling upon a Rule 103(b) motion made by a party who was originally named a respondent in discovery and is subsequently renamed as a defendant in a refiled action.

The decision of Hugley v. Alcaraz (1986), 144 Ill. App. 3d 726, 494 N.E.2d 706, does not conflict with our holding in this cause. In Hugley, the plaintiff filed a medical negligence suit naming certain physicians as respondents in discovery. No service of summons was ever effected with respect to one of the respondent-physicians. The remaining respondent-physicians were properly served with summons and, upon their motion, were dismissed from the suit for the plaintiff’s failure to name them as defendants within six months after instituting the action in discovery. Approximately two years later, plaintiff voluntarily dismissed her action. She refiled the suit approximately two months thereafter, naming as defendant the physician whom she had previously designated as respondent in discovery and who had not been served "with summons in, nor dismissed from, her first lawsuit. The defendant physician filed a motion to dismiss, arguing that plaintiff’s suit was barred by the applicable two-year statute of limitations. The trial court denied the motion to dismiss, and review was allowed by the appellate court by permissive interlocutory appeal (107 Ill. 2d R. 308).

Upon review, the appellate court reasoned that a respondent in discovery is not a “defendant” for purposes of those sections of the Code pertaining to the tolling of a statute of limitations upon voluntary dismissal of a complaint, and its refiling within one year thereafter (Ill. Rev. Stat. 1987, ch. 110, pars. 2—1009, 13—217), where the plaintiff failed to name the respondent in discovery as a defendant within six months of the initial filing of the complaint. The appellate court reasoned that this result was appropriate because an action naming a person as respondent in discovery “creates a procedural right *** [and] opens the door to a substantive right of broad discovery unknown to the common law by which time is made an inherent element of [that] right.” (Hugley, 144 Ill. App. 3d at 734.) The court observed that “to permit plaintiff to toll the statute of limitations *** and extend the period up to six months by naming [the physician] as a respondent in discovery ***, and to allow plaintiff the right to dismiss her original action *** and refile the case *** would do violence to the concept of statute of limitations and the special remedy statute [of naming a party respondent in discovery.]” (144 Ill. App. 3d at 734.) Consequently, the court held that “the absolute right to refile an action within one year *** following a voluntary dismissal *** is barred where a plaintiff fails to successfully name a respondent in discovery as a defendant *** and where the statute of limitations *** has run.” 144 Ill. App. 3d at 735.

In our view, the court’s reasoning in Hugley supports the conclusion that the trial court’s disposition of a Rule 103(b) motion by a party named a defendant, with respect to an action refiled within one year following voluntary dismissal, should take into consideration the plaintiff’s diligence in serving summons upon that party in the plaintiff’s original suit naming the party as a respondent in discovery. As in Hugley, to hold otherwise would be contrary to the purpose of Rule 103(b) and the statute creating the right to name a party as a respondent in discovery. If Rule 103(b) were inapplicable to the case at bar, a plaintiff could, by the expedient of taking a voluntary dismissal of the action in discovery and refiling the suit within a year naming the respondent in discovery as a defendant, exercise no diligence in serving summons upon the respondent in discovery and circumvent the statutory requirement that the respondent in discovery be named as defendant within the applicable statute of limitations. (See, e.g., Browning v. Jackson Park Hospital (1987), 163 Ill. App. 3d 543, 516 N.E.2d 797; Arndt v. Resurrection Hospital (1987), 163 Ill. App. 3d 209, 516 N.E.2d 1; Flores v. St. Mary of Nazareth Hospital (1986), 149 Ill. App. 3d 371, 502 N.E.2d 1.) We decline to adopt a position that would lead to such a result.

Having concluded that the trial court properly considered, in the context of Intengan’s motion to dismiss Anderson’s second suit naming Intengan as a defendant, whether Anderson exercised due diligence in serving summons upon Intengan in Anderson’s first suit naming Intengan a respondent in discovery, we turn to the question of whether Anderson’s second suit was properly dismissed with prejudice for failure to exercise due diligence under Rule 103(b).

Anderson asserts that a Rule 103(b) dismissal can only occur with prejudice to a plaintiff’s right to refile where the statute of limitations has expired during the pendency of the suit, and cites in support of this argument the Committee Comments to Rule 103(b), the Historical and Practice Notes to Rule 103(b) (see Ill. Ann. Stat., ch. 110A, par. 103(b), at 122 (Smith-Hurd 1985)), and the case of People ex rel. Powell v. Luttrell (1970), 130 Ill. App. 2d 241, 264 N.E. 2d 737 (Rule 103(b) inapplicable to action by State to recover certain overdue taxes, since no statute of limitations governs such suits). Anderson maintains that the limitations period has not yet expired in this case, because he has been legally incompetent from the date of the occurrence giving rise to his cause of action against Intengan.

Intengan does not respond directly to Anderson’s legal argument that dismissal with prejudice based upon Rule 103(b) is proper only where the statute of limitations has expired. Instead of disputing Anderson’s legal argument, Intengan raises a factual assertion questioning whether Anderson was incompetent from the day of the occurrence giving rise to his claim against Intengan. However, Intengan’s argument regarding Anderson’s competency depends upon a factual determination which the present record is inadequate to resolve. We also note that Intengan did not file a motion to dismiss on the ground that the statute of limitations had expired, and that as a result, any disposition of this question on appeal would be premature. Consequently, Intengan’s arguments upon review provide insufficient basis to affirm the trial court’s ruling.

Intengan also contends that because a conservator was appointed to represent Anderson, and because that conservator has “demonstrate[d] an ability to bring a cause of action on [Anderson’s] behalf and [has] demonstrate^] an ability to prosecute that cause for nine years, it is unjust to allow a defendant to be belatedly added to the action.” Intengan argues that he was never served with summons in the original 1978 suit naming him as a respondent in discovery. Thus, service of summons on him as a defendant in 1987 in the subsequently filed malpractice action was his first formal entrance into a lawsuit based upon injuries which occurred approximately 11 years earlier, in 1976. Intengan cites to no precedent to support this laches argument, however, and the issue is therefore waived upon review. 107 Ill. 2d R. 341(e)(7); Vole, Inc. v. Georgacopoulos (1989), 181 Ill. App. 3d 1012, 538 N.E.2d 205.

In light of these circumstances, the record and the parties’ arguments on appeal do not provide adequate ground to affirm the trial court’s ruling. Accordingly we reverse the dismissal with prejudice of Anderson’s claim against Intengan and remand the matter for further proceedings consistent herewith.

Reversed and remanded.

JIGANTI, P.J., and JOHNSON, J., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    KATHLEEN RUDIS, Plaintiff-Appellant, v. NATIONAL COLLEGE OF EDUCATION et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—88—3562
    Opinion filed November 30, 1989.

      Erwin Grombacher, of Chicago for appellant.
    Robert E. Arroyo and John A. Klages, both of Keck, Mahin & Cate, of Chicago, for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Kathleen Rudis, filed a two-count amended complaint against the defendants, National College of Education and three members of the school’s administration, alleging in count II that the defendants were liable to her for the intentional infliction of emotional distress. The defendants, pursuant to section 2—615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—615), moved to dismiss count II of the plaintiff’s complaint for failure to state a cause of action. The trial court granted the defendant’s motion, and the plaintiff appeals.

To support her assertion that the defendants are liable for intentional infliction of emotional distress, the plaintiff has set forth the following allegations of fact. In March of 1985, the plaintiff, Kathleen Rudis, was an accredited schoolteacher employed in that capacity by the State of Illinois. At that time, the defendant, National College of Education, invited Rudis to apply as a student to its computer studies program. Rudis enrolled in the program, and after she had completed 12 hours of course work, National College invited her to apply to its master’s in computer education program. In September of 1985, as requested by the National College, Rudis submitted an application, three letters of recommendation, and the results of a Miller Analogy-Test. When National College responded to Rudis by postcard in January 1986, it informed her that the school had not received any letters of recommendation or the results of the Miller Analogy Test. Ru-dis informed the school that the documents had been provided at the time she submitted her application.

On March 7, 1986, defendant Margaret McClory phoned Rudis at the school where she worked, but in accordance with school district policy, McClory was not allowed to speak with Rudis. When Rudis returned McClory’s phone call, McClory expressed extreme displeasure with the school district’s telephone policy and demanded that Rudis immediately forward the one remaining letter of recommendation and the results of the Miller test needed to complete Rudis’ application to National College. Rudis informed McClory that a copy of the Miller test could be obtained from St. Joseph’s College, and assured McClory that Rudis would take care of the third letter of recommendation as soon as she returned from a trip to the Mayo Clinic, where her husband was to be treated for acoustic neuroma. McClory stressed the importance of the documents and told Rudis “she had better get them done or else.” When Rudis returned from the Mayo Clinic, she provided National College with the necessary letter of recommendation. The letter’s author makes note in the letter that this was the second time he had forwarded a letter on behalf of Rudis to National College. On April 18, 1986, McClory informed Rudis that National College had received a copy of the Miller test and although the results were not forwarded as was usual on a 3 x 5 card, National College was accepting the results, and consequently, Rudis’ application to the master’s program.

On August 7, 1986, after Rudis had completed six quarters of study at the school, with a grade average of 3.84, McClory informed Rudis that she was being dropped from the program for reasons to be discussed at a conference scheduled for August 21, 1986. Attending the conference were defendants Margaret McClory, Sandra Turner, and Darrell Bloom, and plaintiff Kathleen Rudis. At the conference, the defendants informed Rudis that she was being dropped from the program for the following reasons: Rudis was smart; no one had ever achieved such high scores on the Miller Analogy Test; Rudis was responsible for a lot of “hanky panky,” including grade fixing and computer hacking; Rudis had illegally obtained stationery from National College of Education, Psychological Corporation, and St. Joseph’s College, and used the stationery for illegal purposes involving the mail, thereby committing a Federal crime. At the conference, Rudis was denied the opportunity to review her personal file.

Following her dismissal from the National College of Education, Rudis sought legal assistance and achieved reinstatement to the college. She completed the required course work and received a degree of master of education in June of 1987. During the time Rudis was completing her course work, three named members of the faculty called her a cheat and a computer hacker and accused her of “not getting what she deserved.” Also during this time, and up until the time she filed her amended complaint, Rudis was subject to recurring rumors at her place of employment. She attributes these rumors, that she cheated and did other wrongful acts in obtaining her degree, to the defendants. As a result of these rumors, Rudis has been denied expected promotions and advancements from her employer, Worth School District No. 127.

Rudis maintains that the defendants knew that the course of conduct outlined above would cause her severe emotional distress, and that their conduct did in fact cause her mental trauma and strain, nightmares, public indignities, nervous disorders and mental anguish. The trial court, based on the defendants’ section 2 — 615 motion to dismiss for failure to state a cause of action for intentional infliction of emotional distress, dismissed count II of Rudis’ complaint. Rudis appeals from the order of dismissal.

To sufficiently plead a cause of action for intentional infliction of emotional distress, the plaintiff must allege facts which establish that the conduct of the defendant was extreme and outrageous. (Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 360 N.E.2d 765.) The court may find that the conduct is extreme and outrageous because (1) the character of the conduct itself is extreme and outrageous, (2) the conduct arises out of an abuse of a position or relationship in which the defendant has authority over the plaintiff, or (3) the defendant knew of some peculiar susceptibility of the plaintiff’s to emotional distress. (See Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 89-90, 360 N.E.2d 765, 767; Restatement (Second) of Torts §46 (1965).) In the present case, Rudis has alleged that the defendants’ conduct was extreme and outrageous for all three reasons. Accepting all of Rudis’ well-pleaded allegations as true, we do not believe that Rudis has successfully stated a cause of action for intentional infliction of emotional distress.

The conduct that Rudis attributes to the defendants was not in itself extreme and outrageous. The Illinois Supreme Court has determined that extreme and outrageous conduct is that which is so extreme in degree that it goes beyond all bounds of decency. (Public Finance, 66 Ill. 2d at 90, 360 N.E.2d at 767, citing Restatement (Second) of Torts §46, comment d, at 72-73 (1965).) In Public Finance, the plaintiff alleged, among other things, that a finance company’s employees called the plaintiff and visited her home several times weekly over a seven-month period, called the plaintiff at her daughter’s hospital bed despite the fact that they knew the daughter’s condition was severe and that the plaintiff herself was sick and nervous, induced the plaintiff to write a check, promising that it would not be processed, and then informed one of the plaintiff’s acquaintances that the plaintiff was writing bad checks. The supreme court, in reviewing these allegations, found that the plaintiff had failed to allege any abusive, threatening, or coercive conduct or language, and had therefore failed to state a cause of action for intentional infliction of emotional distress.

In contrast to Public Finance stands Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157, a supreme court case that was the first Illinois decision to recognize the tort of intentional infliction of emotional distress. (Farnor v. Irmco Corp. (1979), 73 Ill. App. 3d 851, 392 N.E.2d 591.) In Knierim, the court held that the defendant’s threat to murder the plaintiff’s husband, and the subsequent fulfillment of the threat, was conduct sufficiently extreme and outrageous to constitute a cause of action. In keeping with the Knierim decision, the Illinois courts have essentially restricted the tort of intentional infliction of emotional distress to those cases in which the defendant’s conduct is so abusive and atrocious that it would cause severe emotional distress to a person of ordinary sensibilities. See Witkowski v. St. Anne’s Hospital of Chicago, Inc. (1983), 113 Ill. App. 3d 745, 447 N.E.2d 1016; Farnor v. Irmco Corp. (1979), 73 Ill. App. 3d 851, 392 N.E.2d 521.

To buttress her argument that the defendants’ conduct was extreme and outrageous, Rudis quotes expansively from the case of Bureau of Credit Control v. Scott (1976), 36 Ill. App. 3d 1006, 345 N.E.2d 37, a decision in which the Illinois Appellate Court held that the plaintiff had sufficiently stated a cause of action for intentional infliction of emotional distress. In Bureau, the defendant, like the defendant in Public Finance, was a collection agency. The plaintiff in Bureau alleged that the defendant’s collection tactics included telephoning her at least 15 times, criticizing her moral character, shouting at her, calling her a deadbeat and threatening her with court action. The defendant also placed calls to the plaintiff’s place of employment and phoned each of the plaintiff’s parents about the debt.

We believe the intensity and duration of the Bureau defendant’s abuse distinguishes that case from both Public Finance and the case before us. Even if we were persuaded, however, that the Bureau plaintiff and Rudis are similarly situated, we agree with the defendant in this case that Rudis’ reliance on Bureau, a case decided prior to the supreme court’s ruling in Public Finance, is tenuous.

The bases of Rudis’ argument are the statements and conduct of the defendants at the August 21 meeting, the remarks defendant McClory made to Rudis when McClory phoned Rudis at Worth school, and the remarks National College personnel made to and about Rudis up until the time she filed this suit. Rudis has not alleged that the defendants used vituperative, profane, threatening, or coercive language or conduct. While the defendants’ remarks may have been insulting, or untrue, we do not believe that they rise to a level of intensity or duration that no reasonable man could be expected to endure. (See Public Finance, 66 Ill. 2d 85, 360 N.E.2d 765; Witkowski v. St. Anne’s Hospital of Chicago, Inc., 113 Ill. App. 3d 745, 447 N.E.2d 1016.) For these reasons, we do not believe that Rudis has successfully alleged that the defendants’ conduct was of itself extreme and outrageous.

Rudis’ further argument is that the extreme and outrageous character of the conduct arises from an abuse of the defendants’ position of actual or apparent authority over Rudis. In support of this argument, Rudis cites to the Illinois Supreme Court case of McGrath v. Fahey (1988), 126 Ill. 2d 78, 533 N.E.2d 806. In McGrath, however, as in the other cases in which the plaintiffs have successfully argued the abuse of position issue, the defendants threatened to exercise their power to coerce the plaintiffs into doing something they otherwise would not do. See also Milton v. Illinois Bell Telephone Co. (1981), 101 Ill. App. 3d 75, 427 N.E.2d 829.

In the present case, Rudis has not alleged that the defendants used their positions as school administrators to coerce her into doing something she would otherwise not do. Rudis’ dismissal from the National College program was a foregone conclusion at the time of the August 21 meeting. The defendants did not use expulsion as a threat against Rudis; rather, they explained to her, albeit perhaps in rude and insulting terms, the reasons for her dismissal. Even if we were to accept Rudis’ argument that the defendants wielded some position of authority over her, such authority does not transform conduct which otherwise amounts to no more than insults or indignities into extreme and outrageous conduct. See Farnor v. Irmco Corp. (1979), 73 Ill. App. 3d 851, 392 N.E.2d 591.

Further, we are not persuaded by Rudis’ argument that her situation is analogous to that of the young girl given as an example in the Restatement of Torts to illustrate the abuse of position issue. The young student in the Restatement example was called into the principal’s office, accused of amoral conduct with men, bullied for an hour, and threatened with prison and public disgrace for herself and her parents if she did not confess. (See Restatement (Second) of Torts §46, comment e, at 74 (1965).) Rudis is not a young school girl, but a mature career woman, and she was neither bullied nor threatened with prison or public disgrace. More than a student-teacher relationship is needed to square the Restatement example with the circumstances of the present case. For these reasons, we do not believe that Rudis has successfully alleged that the defendants wielded some position of actual or apparent authority over her through which there arose extreme and outrageous conduct.

Finally, Rudis argues that the defendants’ conduct should be deemed outrageous because they knew of her peculiar susceptibility to emotional distress. In Public Finance, the court acknowledged that a peculiar susceptibility to distress of which the defendant is aware is a significant factor in determining whether the defendant’s conduct was extreme and outrageous. The court in Public Finance, however, also stated that even under such circumstances, major outrage is still essential to the tort.

In the present case, it is not clear what it is that Rudis is alleging makes her peculiarly susceptible to distress. In arguing the issue of peculiar susceptibility, she variously refers to herself as a “gentle lady,” or “teacher of our children,” but offers no illumination as to why these classifications render her particularly sensitive to distress. Furthermore, Rudis did not claim either of these standings in the pleadings. Rudis does allege in the pleadings that she informed defendant McClory that Rudis was to accompany her husband to the Mayo Clinic, where he was to be treated for acoustic neuroma. Rudis does not allege, however, that her husband’s condition affected her in any way. Even if we accept that Rudis meant to allege that because of her husband’s condition she, herself, was ill, we do not believe that she has successfully stated a cause of action. As the court in Public Finance noted, peculiar susceptibility unaccompanied by major outrage cannot of itself raise the defendants’ conduct to the level of extreme and outrageous. Because Rudis has failed to successfully allege that the defendants’ conduct was extreme and outrageous, we uphold the finding of the trial court that Rudis failed to state a cause of action for intentional infliction of emotional distress.

The judgment of the trial court is affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.