author: PRESIDING JUSTICE INGLIS

text:
    DIANE WELTON JENSEN, Plaintiff-Appellant, v. U S A A PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant-Appellee.
    Second District
    No. 2 — 92—0773
    Opinion filed June 11, 1993.

      Robert J. Hauser, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellant.
    Esther Joy Schwartz, of Stellato & Schwartz, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Diane Welton Jensen, appeals the order granting summary judgment for defendant, USAA Property and Casualty Insurance Company (USAA). Jensen argues on appeal that USAA’s offer of underinsured motorist coverage pursuant to section 143a — 2 of the Illinois Insurance Code (the Code) (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2 (now codified, as amended, at 215 ILCS 5/143a — 2 (West 1992))) was inadequate because the offer was both unintelligible and ambiguous.

Jensen was injured in an automobile accident on January 16, 1988. The other driver, whose vehicle struck Jensen’s vehicle, was insured with American Family Insurance with bodily injury liability limits of $25,000 per person. Jensen and American Family settled her claim against the other driver for the policy limits of $25,000.

Jensen then sought additional coverage under her own automobile insurance policy with USAA. The policy, effective from December 1, 1987, to July 1, 1988, provided bodily injury liability coverage of $300,000 per person and $500,000 per occurrence and uninsured motorist coverage of $15,000 per person and $30,000 per occurrence. Because uninsured motorist coverage was provided at the same limits as the minimum liability coverage required for an automobile insurance policy in the State of Illinois at the time that the policy was issued (see Ill. Rev. Stat. 1985, ch. 951/2, par. 7 — 203 (now codified, as amended, at 625 ILCS 5/7 — 203 (West 1992))), no underinsured motorist coverage was provided in Jensen’s policy.

USAA alleges, and Jensen seems to agree, that USAA mailed Form 999IL CIC (the form) to Jensen, along with her automobile insurance policy. There was some question at the - trial level whether Jensen received the mailing, but that contention has been abandoned by Jensen on appeal. The form provided, in pertinent part:

“ILLINOIS AUTO INSURANCE
We are pleased to serve your auto insurance needs, and we want to make sure you are getting the coverage you need. In the explanation below, Extended Benefits, Uninsured Motorists and Underinsured Motorists are discussed. See order form on back.
A REMINDER!
The information in this form is a brief, general discussion. Coverages are subject to all the provisions and exclusions contained in your insurance policy. PLEASE READ YOUR POLICY FOR DETAILS OF COVERAGES.
* * *
UNINSURED/UNDERINSURED MOTORISTS COVERAGES Uninsured Motorists Coverage (UM)
- is mandatory in limits of at least $15,000/$30,000
- protects if you are injured by an uninsured motorist who is at fault
- protects against injury caused by a hit-and-run driver
- provides an OPTIONAL coverage, if you do not have Collision coverage, to protect against damage, up to $10,000, to your insured vehicle caused by an uninsured driver you can identify (subject to a $250 deductible that you pay).
- once reduced, future renewals will remain the same. Underinsured Motorists Coverage (UIM)
- must be selected in same limit as UM, whenever UM limits exceed the minimum required ($15,000/$30,000).
- pays for injury caused by a motorist with liability limits less than your UIM limits and less than the amount of damages you are entitled to recover. His policy pays its limits first, then
yours pays the lesser of (1) any remaining loss, or (2) the difference between his liability limits and your UIM limits. In any event, the combined payments cannot exceed your UIM limits.
DETERMINING THE UM/UIM LIMITS YOU NEED
Consider sources of protection you already have. UM/UIM applies to auto accidents and should be looked upon as supplemental protection to a full-range income protection and medical expense program. Consider,
- income source. An active duty officer will not need as much protection as a self-employed person.
- the portion of income derived from investments, pensions, and annuities. These will continue.
- medical care coverage from employment sources.”

The second page of the form indicated the coverage options for uninsured and underinsured motorist insurance and the cost for the coverage options. The insured was to sign and return the form after either choosing different uninsured/underinsured motorist coverage or rejecting the additional coverage. Jensen did not return this form to USAA.

Subsequently, USAA denied Jensen’s claim for underinsured motorist coverage because her policy provided no such coverage. Thereafter, Jensen filed a complaint for declaratory judgment, asking the court to reform her automobile insurance policy to provide underinsured motorist coverage equal to her bodily injury liability limits of $300,000 per person. Jensen claimed that reformation was required because USAA failed to adequately offer her underinsured motorist coverage in accordance with section 143a — 2 of the Code (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2 (now codified, as amended, at 215 ILCS 5/143a — 2 (West 1992))).

USAA filed a motion for summary judgment, and Jensen filed a cross-motion for summary judgment. On June 23, 1992, the trial court denied Jensen’s cross-motion for summary judgment and granted USAA’s motion for summary judgment, concluding that USAA’s offer of underinsured motorist coverage was adequate as a matter of law. Jensen then filed a timely appeal.

Jensen contends that USAA’s offer of underinsured motorist coverage failed to meet the four-part test in Cloninger v. National General Insurance Co. (1985), 109 Ill. 2d 419, specifically, the requirement that the insured must be “intelligibly advised” of the nature of under-insured motorist coverage. She claims that the offer was ambiguous because it referred to her insurance policy for more information on underinsured motorist coverage when the policy contained no additional explanation of that coverage. She posits that USAA acknowledged that its policy was inadequate when it subsequently amended the policy to include information about underinsured motorist coverage. She further argues that any ambiguity in the policy, and implicitly the offer of additional insurance, should be construed in favor of providing coverage for the insured.

USAA contends that its offer of underinsured motorist coverage was adequate as a matter of law. USAA claims that the form contained the essential elements required in the Cloninger case: an explanation of underinsured motorist coverage, the coverage options available, and the cost of the different coverage options. USAA further claims that the form’s reference to the policy was in relation to other coverage explained in the form, including extended benefits coverage, replacement and medical expense coverage, and extra coverage for seat-belt use. Finally, USAA claims that its post-accident amendment to the policy to include information about underinsured motorist coverage is irrelevant in deciding whether its offer of coverage was adequate.

Section 143a — 2(1), as written at the time of the accident, provided that no automobile insurance policy shall be issued or renewed unless uninsured motorist coverage was “offered in an amount up to the. insured’s bodily injury liability limits.” (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(1) (now codified, as amended, at 215 ILCS 5/143a— 2(1) (West 1992)).) The insured has a right to elect or reject the additional coverage. (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(2) (now codified, as amended, at 215 ILCS 5/143a — 2(2) (West 1992)).) Section 143a — 2(5) provided that after July 1, 1983, no policy shall be issued or renewed unless underinsured motorist coverage is included in an amount at least equal to uninsured motorist coverage if uninsured motorist coverage exceeded the statutory minimum limits. (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(5) (now codified, as amended, at 215 ILCS 5/143a — 2(5) (West 1992)).) Effective January 1, 1988, the statutory minimum limits of liability were, and continue to be, $20,000 per person and $40,000 per occurrence. (Ill. Rev. Stat. 1987, ch. 951/2, par. 7 — 203 (now 625 ILCS 5/7 — 203 (West 1992)).) Viewing these sections together, the insurer was required to offer underinsured motorist coverage equal to the insured’s bodily injury liability limits. Orr v. Illinois Farmers Insurance Co. (1991), 210 Ill. App. 3d 1015, 1024.

In Cloninger (109 Ill. 2d 419), our supreme court, relying on Tucker v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 329, and Hastings v. United Pacific Insurance Co. (Minn. 1982), 318

N.W.2d 849, adopted the following four-part test to determine if the offer of underinsured motorist coverage was adequate:

“(1) notification must be commercially reasonable if the offer is made in other than face-to-face negotiations; (2) the limits of the optional coverage must be specified and not set forth in general terms; (3) the insured must be intelligibly advised by the insurer of the nature of the option; and (4) the insurer must advise the insured that the optional coverage is available for relatively modest premium increases.” (Cloninger, 109 Ill. 2d at 425-26.)

An offer must satisfy all four requirements to be adequate under the Code. (Orr, 210 Ill. App. 3d at 1025.) However, the “meaningful offer test” is no longer applicable to policies renewed or issued after January 1, 1990. Section 143a — 2(1) was amended to require insurance companies to provide uninsured motorist coverage equal to bodily injury liability limits unless “specifically rejected” by the insured. Ill. Rev. Stat. 1991, ch. 73, par. 755a — 2(1) (now 215 ILCS 5/143a — 2(1) (West 1992)); DeGrand v. Motors Insurance Corp. (1992), 146 Ill. 2d 521, 533.

Summary judgment should be granted only when the pleadings, depositions, admissions and affidavits show that there is no genuine issue of material fact and the moving party, as a matter of law, is entitled to judgment. (Fuoss v. Auto Owners (Mutual) Insurance Co. (1987), 118 Ill. 2d 430, 433.) The facts in the pleadings and affidavits are to be liberally construed in favor of the nonmoving party. Richter v. Burton Investment Properties, Inc. (1993), 240 Ill. App. 3d 998, 1001.

Moreover, the interpretation of insurance policies is governed by general contract law. (Gonzalez v. State Farm Mutual Automobile Insurance Co. (1993), 242 Ill. App. 3d 758, 762.) The court’s determination of whether a contract is ambiguous is a question of law. (Allstate Insurance Co. v. Boston Whaler, Inc. (1987), 157 Ill. App. 3d 785, 789.) The interpretation and construction of an unambiguous contract is decided by the court as a matter of law. (Farm Credit Bank v. Whitlock (1991), 144 Ill. 2d 440, 447.) If the court determines that the contract is ambiguous, then its construction is a question of fact to be determined by the fact finder. (Whitlock, 144 Ill. 2d at 447.) However, all doubts and ambiguities should be construed in favor of the insured. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1991), 144 Ill. 2d 64, 74.

Although the form was not technically a part of the policy, we believe that it is incorporated into the insurance policy and is subject to the principles of construction discussed above. Illinois courts have held that descriptive brochures and booklets may be treated as part of the insurance policy. (Dobosz v. State Farm Fire & Casualty Co. (1983), 120 Ill. App. 3d 674, 678-79.) So, also, we believe a form sent with the insurance policy is incorporated into the policy. See St. Paul Insurance Co. v. Armas (1988), 173 Ill. App. 3d 669, 674 (where insurance contract consists of policy and other accompanying documents executed as part of one transaction, they are construed together to determine the meaning of the insurance contract).

With the above principles in mind, we hold that summary judgment for USAA was improper because the form sent by USAA discussing uninsured/underinsured motorist coverage was ambiguous. Specifically, it is unclear whether the form would be construed by a reasonable insured as an offer of uninsured/underinsured motorist coverage in an amount equal to her bodily injury liability limits.

The cases cited by USAA holding that the offers of either uninsured or underinsured motorist coverage were adequate as a matter of law all involved correspondence containing language that makes it reasonably clear that uninsured/underinsured motorist coverage is being offered. Overholt v. McDaniel (D.D.C. 1991), 765 F. Supp. 20, 22-23 (opportunity to purchase additional uninsured motorist coverage was a “Special Offer” in accordance with Maryland law); Orolin v. Hartford Accident & Indemnity Co. (N.D. Ill. 1984), 585 F. Supp. 97, 101 (informed insureds of opportunity to purchase uninsured motorist coverage equal to their bodily injury liability limits and opportunity to purchase underinsured motorist coverage equal to uninsured motorist limits); Orr, 210 Ill. App. 3d at 1020-23 (agent sent four letters to insureds recommending that uninsured motorist coverage be increased); Krska v. Allstate Insurance Co. (1987), 162 Ill. App. 3d 549, 554 (bold letters informing insured that coverage offer was being made and also informing insured that State law required that the offer be made).

Here, the form sent by USAA defines underinsured motorist coverage and lists the coverage options and cost for each option. However, the form does not clearly notify the insured that an offer of uninsured/underinsured motorist coverage in an amount equal to his or her bodily injury liability limits is being made. (Ill. Rev. Stat. 1987, ch. 73, pars. 755a — 2(1), (5) (now codified, as amended, at 215 ILCS 5/ 143a — 2(1), (5) (West 1992)).) The initial paragraph informs the insured that uninsured and underinsured motorist coverage is “discussed.” Then the form defines uninsured and underinsured motorist coverage and explains that uninsured motorist coverage is mandatory in limits of a least $15,000/$30,000 and that underinsured motorist coverage must be selected at limits equal to uninsured motorist limits if uninsured motorist coverage exceeds $15,000/$30,000. The back of the form then supplies a list of coverage options to choose from. Viewing the form as a whole, we believe it is unclear whether reasonable insureds would know that uninsured/underinsured motorist coverage equal to their bodily injury liability limits was being offered.

Further, the reference .to the policy contained in the offer creates additional confusion. The form reminds the insured to read the policy for details of coverages, a caveat which a reasonable person could interpret to mean that any coverages thereafter mentioned in the form would be included in the policy. However, the policy in force at that time contained no information about underinsured motorist coverage. We agree with USAA that the fact that it subsequently issued a revised policy to insureds including information about underinsured motorist coverage is not proof that the previous policy was insufficient. (Cf. Hunter v. Chicago & North Western Transportation Co. (1990), 200 Ill. App. 3d 458, 471 (post-occurrence changes are not admissible as proof of negligence).) Nevertheless, the form’s reference to the policy creates ambiguity such that it cannot be said that, as a matter of law, the form satisfied the requirements of section 143a — 2 of the Code.

There is no question that the form defined underinsured motorist coverage and listed the coverage options and the cost of those options, all requirements under Cloninger and its progeny. However, the form is ambiguous because it does not explicitly state that uninsured/ underinsured motorist coverage in an amount equal to Jensen’s bodily injury liability limits is being offered. While that specific phrase is not required, the insured should be alerted that the correspondence is meant as an offer. We believe this decision further promotes the legislative intent behind section 143a — 2, to assist in providing adequate compensation to the injured insurance consumer. Cloninger, 109 Ill. 2d at 424.

Because the nature of the form is ambiguous, we are required to construe it against the insurer and in favor of the insured. (Gonzalez, 242 Ill. App. 3d at 764.) The remedy for an inadequate offer of under-insured motorist coverage is to reform the policy to provide underinsured motorist coverage equal to the insured’s bodily injury liability limits if, also, no proper offer of uninsured motorist coverage was made. (Rutter v. Horace Mann Insurance Co. (1989), 190 Ill. App. 3d 467, 478.) Jensen’s policy provided bodily injury liability limits of $300,000 per person. Thus, the trial court should have granted Jensen’s motion for summary judgment and reformed the policy to pro-

vide underinsured motorist coverage at $300,000 per person. See Watson v. Hartford Casualty Insurance Co. (1990), 205 Ill. App. 3d 88, 95.

For the foregoing reasons, the order of the circuit court of Lake County is reversed, and the cause is remanded for entry of judgment consistent with this opinion.

Reversed and remanded.

DOYLE and COLWELL, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BERNARD J. CONDON, Defendant-Appellee.
    Second District
    No. 2 — 90—0942
    Opinion filed June 16, 1993.
    Rehearing denied July 20, 1993.

      James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller, Barbara R. Paschen, and Paul Alexander Rogers, all of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court;

In 1987, a grand jury indicted defendant, Bernard J. Condon, and Timothy Condon, his brother, for armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2 (now 720 ILCS 5/33A — 2 (West 1992))), the unlawful delivery of a controlled substance, the possession with intent to deliver a controlled substance, the possession with intent to deliver cannabis, and a calculated criminal drug conspiracy (Ill. Rev. Stat. 1987, ch. 5672, pars. 1401(a)(2), 705(d), 1405(a) (now codified, as amended, at 720 ILCS 570/401, 550/5(d), 570/405(a) (West 1992))). Defendant fled the jurisdiction. Timothy Condon brought a motion to quash his arrest. The trial court denied the motion, but this court reversed. (People v. (Timothy) Condon (1990), 195 Ill. App. 3d 815.) After defendant was apprehended, he filed an identical motion to quash his arrest and argued that the State was collaterally estopped from opposing the motion. The trial court granted defendant’s motion, and the State appeals. The issue on appeal is whether the trial court properly granted the motion on the basis of stare decisis.

During the 1987 arrest, the State executed a search warrant for a house owned by defendant. Timothy Condon, his brother, also lived in the house. The Du Page Metropolitan Enforcement Group agents found the evidence to support the indictments. The evidence and search warrants were the same in both causes. Defendant’s motion to quash his arrest was identical to Timothy’s. The State’s disclosure of evidence to defendant incorporated the disclosure to Timothy.

At the hearing on defendant’s motion to quash the arrest, the prosecutor stipulated that the transcript of the Timothy Condon hearing should be part of the record and that it would be the evidence together with the search warrants. The prosecutor agreed that under the doctrine of stare decisis the ruling would be the same as that of Timothy’s cause, which this court affirmed on appeal. The prosecutor offered no additional evidence. The prosecutor argued that this court had wrongly decided the issue and ignored relevant evidence. The prosecutor argued the opinion would likely be reversed by the supreme court. The trial court granted the defendant’s motion to quash the search warrants.

On appeal, the State argues that the trial court erred in applying collateral estoppel in the absence of a final judgment. Collateral estoppel arises when a party or someone in privity thereto participates in two separate and consecutive cases arising in different causes of action and some controlling fact or question material to the determination of both causes has been adjudicated against that party in the former suit by a court of competent jurisdiction. (People v. Moore (1990), 138 Ill. 2d 162, 166.) The party asserting collateral estoppel must demonstrate (1) the present issue is identical to the question previously adjudicated; (2) the existence of a final judgment on the merits in the prior case; and (3) the party against whom estoppel is asserted was a party or in privity with the party to the prior litigation. (People v. Zegiel (1989), 179 Ill. App. 3d 649, 651; see People v. Buonavolanto (1992), 238 Ill. App. 3d 665, 670.) A judgment is not final until the potential for appellate review has been exhausted. (Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 113; see also Shaw v. Citizens State Bank (1989), 185 Ill. App. 3d 79, 82-83 (trial court may enter a stay pending the appeal in the other cause).) The State contends that the trial court erred in relying upon this court’s opinion regarding Timothy Condon because that cause was still in the appellate process.

Before the State filed its brief in this appellate proceeding concerning defendant, the supreme court affirmed this court’s previous appellate opinion (People v. (Timothy) Condon (1992), 148 Ill. 2d 96). After the State filed its brief, the United States Supreme Court denied a writ of certiorari (Illinois v. (Timothy) Condon (1993), _ U.S._, 122 L. Ed. 2d 738, 113 S. Ct. 1359). Thus, the resolution of the issue in the cause of Timothy Condon is now final.

The argument of the State is moot. Assuming arguendo the trial court erred in granting defendant’s motion prematurely, before his brother’s cause was final, we can grant no effective relief to the State because the trial court would be obliged to grant the motion after remand. A court of review will not consider issues where they are not essential to the disposition of the cause or where the result will not be affected regardless of how the issues are decided. (Barth v. Reagan (1990), 139 Ill. 2d 399, 419.) Thus, we will not consider the State’s argument.

For the above reasons, the appeal of the order of the circuit court of Du Page County is dismissed.

Appeal dismissed.

GEIGER and QUETSCH, JJ., concur.


author: JUSTICE DOYLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD J. KAMINSKI, Defendant-Appellant.
    Second District
    No. 2 — 91—0952
    Opinion filed June 16, 1993.

      G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, Mary Beth Burns, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Defendant, Edward J. Kaminski, was convicted in a bench trial in the circuit court of Du Page County of the criminal sexual assault of a 17-year-old minor, while he held a position of supervision in relation to her (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(4)), and sentenced to five years’ imprisonment. Defendant filed a timely appeal of his conviction and sentence, raising the following issues: (1) whether the trial court erred in finding that defendant held a position of supervision in relation to the victim; and (2) whether the trial court abused its discretion in imposing a sentence of five years’ imprisonment.

On October 18, 1990, the 17-year-old victim was living with her parents. Defendant was married to the victim’s sister, Roberta, and had known the victim for just over a year. On the evening of October 18, 1990, the victim; her parents; her half-brother, Ashley; Ashley’s wife, Alison; Roberta and defendant were gathered at the victim’s parents’ residence. With her parents’ and Roberta’s permission, the victim went to spend the night at the apartment of Roberta and defendant. The victim drove herself to the apartment, arriving at about 1:30 a.m. on the morning of October 19, 1990. Ashley and Alison were also spending the night there. Both couples and the victim socialized for a short time and then retired. Roberta and defendant slept in one bedroom, Ashley and Alison in the guest room, while the victim slept on a sofa-bed in the living room.

The victim testified at trial that when she fell asleep the others were still up talking. She was awakened by defendant shaking her arm. Defendant then placed his hand under her blanket and began rubbing her thigh. The victim stated that defendant pulled down her shorts and panties and inserted his fingers in her vagina. During this time she was very scared and shocked, and she stiffened up. Defendant also placed his penis inside her vagina. When he was finished she felt a warm liquid on her thigh and buttocks, which she wiped off on the blanket. The victim testified that defendant returned to his room, and she eventually cried herself to sleep. Evidence was also presented that defendant told police that he had gotten up from bed that night, heard the victim coughing, placed a blanket on her and turned up the heat.

The trial court found the victim’s testimony to be credible and corroborated by the scientific evidence presented at trial. In finding that the defendant held a position of supervision with respect to the victim, the court stated:

“[Tjhere was proper permission for [the victim] to spend the night along with her half brother and sister-in-law at the apartment of [defendant] and [Roberta]. It was their apartment.
The court finds that, permission having been granted, there was supervision under the circumstances, as required, by [defendant] and also by [Roberta].”

At the sentencing hearing, the court heard a victim impact statement read by the victim, which described the emotional impact of this crime. Specifically, she noted how she had considered defendant to be a trusted friend and like a brother, that she hated him for destroying this trust as well as her sister’s happiness, and that this incident had caused her family “pain and hurt.” The court also heard testimony from defendant’s grandparents about his upbringing and how they planned to support defendant upon his release from the penitentiary.

The court noted that defendant had been convicted of a nonprobationable Class 1 offense. In mitigation the court noted defendant’s age, his lack of prior juvenile or criminal record, a supportive family and educational background, and that counseling had been initiated. In aggravation, the court noted that this crime caused serious harm to the victim and that there was a need to deter others from committing the same type of offense. Considering these factors, the trial court sentenced defendant to five years’ imprisonment.

On appeal, defendant argues that he was not proved guilty beyond a reasonable doubt because the only evidence showing he held a position of supervision in relation to the victim was that he was a “onetime over-night host.” The State responds that defendant was in a position of supervision, being a “temporary caretaker” when he assaulted the victim.

Under section 12 — 13(a)(4) of the Criminal Code of 1961, the State is required to prove that a defendant “held a position of trust, authority or supervision in relation to the victim” when committing an act of sexual penetration. (Ill. Rev. Stat. 1989, ch. 38, par. 12— 13(a)(4).) The indictment in the present case charged that defendant held “a position of supervision in relation to [the victim].” As the parties have noted, the term “super-vision” is not defined by the statute. Accordingly, we must ascertain and give effect to the intent and meaning of the legislature. (See People v. Frieberg (1992), 147 Ill. 2d 326, 345.) In making this determination, we may properly consider not only the language of the statute, but also the reason and necessity for the law, the evils sought to be remedied and the purpose to be achieved. Frieberg, 147 Ill. 2d at 345.

As noted by defendant, section 5 — 5—3.2(a)(13) of the Unified Code of Corrections contains an analogous use of the phrase “position of supervision:”

“(a) The following factors shall be accorded weight in favor of imposing a term of imprisonment or may be considered by the court as reasons to impose a more severe sentence under Section 5 — 8—1:
* * *
(13) the defendant held a position of trust or supervision such as, but not limited to, teacher, scout leader, baby sitter [sic], or day care [sic] worker, in relation to a victim under 18 years of age ***.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5— 3.2(a)(13).

The nonexhaustive list of examples provided under this statute is particularly significant because, like section 12 — 13(a)(4), this statute is designed to address the special concerns which arise in cases involving child victims. “[Supervise” has been generally defined to mean “superintend, oversee” (Webster’s Ninth New Collegiate Dictionary 1185 (1985)). With respect to the phrase’s specific use in section 12 — 13(a)(4), we find noteworthy the legislature’s choice of the words “trust, authority, or supervision.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(4).) In common parlance, “supervision” can occur without authority or even trust, and the legislature’s choice of language appears to contemplate application beyond those cases in which the accused adult had authority over the child victim or stood in loco parentis. To limit the meaning of the phrase “position of supervision” strictly to cases in which the accused has authority over the minor victim would render the term surplusage, in contradiction to one of the basic tenets of statutory construction. (See Harris Bank v. Village of Mettawa (1993), 243 Ill. App. 3d 103, 115.) Although a “position of supervision,” considered in the context of its relation to children, may contemporaneously encompass aspects of “trust” and “authority,” we also believe that the common meaning of the phrase applies in those situations in which an individual is an overseer, caretaker or chaperon of the child. The listed examples provided under section 5 — 5—3.2(a)(13) support this conclusion.

Defendant argues that the “trust, authority or supervision” provisions in section 12 — 13(a)(4) are designed primarily to prevent individuals from exerting undue influence over the child and are thus inapplicable in cases involving “one-night social hosts.” The ability of individuals who hold positions of supervision to exert undue influence over a child is certainly a relevant factor. While we agree that this is one purpose served by the statute, we also recognize that it is the position of “trust, authority or supervision” which often provides a heightened opportunity for the sexual assault to occur. For example, a baby-sitter or camp counselor might be able to assault sexually a child under his or her supervision primarily because of the opportunity that position provides rather than because of any “undue influence” which is exerted over the child. The vulnerability of a child in such circumstances is a separate factor which justifies the stronger penalty provided under section 12 — 13(a)(4). Moreover, it is not unreasonable to consider the possibility that, in certain instances, increased emotional trauma may result from an assault perpetrated by one who has been entrusted to occupy a position of supervision over a child. We decline to adopt the restricted meaning of “supervision” proposed by defendant.

The next question is whether there was sufficient evidence introduced at trial to demonstrate that defendant held a position of supervision in relation to the victim. The standard for reviewing the sufficiency of evidence supporting a criminal conviction is whether, after considering all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. (People v. Wittenmyer (1992), 151 Ill. 2d 175, 190; People v. Campbell (1992), 146 Ill. 2d 363, 374.) This standard is applicable in criminal cases regardless of whether the evidence is direct or circumstantial. (Campbell, 146 Ill. 2d at 374.) A reviewing court will not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of witnesses and will not reverse a criminal conviction unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. Campbell, 146 Ill. 2d at 375.

The undisputed testimony demonstrated that the victim was a minor who resided with and was cared for by her parents. No evidence was presented to show she had ever been emancipated. Defendant was the victim’s brother-in-law. She obtained permission from her parents and Roberta to spend the night at Roberta and defendant’s apartment. The victim’s father testified that Roberta and defendant were going to be responsible for her that night.. Defendant’s argument that the expectations of the victim, Roberta and their parents are insufficient evidence to establish that he occupied a position of supervision ignores the additional evidence pertaining to the circumstances of the victim’s spending the night in defendant’s home. Defendant was among the group meeting at the parents’ home. They left together and travelled to the apartment, albeit in separate vehicles. They all socialized at the apartment, and the victim went to sleep on the sofa-bed while defendant and the others were still up talking.

When all the facts and circumstances are viewed in the light most favorable to the prosecution, an inference arises, considering particularly the familial relationship of all the parties involved, that both defendant and Roberta were responsible for looking after the welfare of the victim on the night in question. Defendant’s actions, evidenced in his statement to police about having placed a blanket over the victim and turning up the heat when he heard her coughing that night, provide further support for the trial court’s finding. We find defendant’s assertion that he merely acquiesced to an overnight stay and did not hold a position of supervision over the victim to be an improbable characterization of the undisputed evidence. Although the victim’s age might have minimized the degree of “authority” defendant and Roberta could have exercised over her, it did not preclude their overseeing her overnight stay with the responsibility of notifying her parents if something went wrong and making certain that her needs were attended to, including providing a safe place for her to spend the night. We further note that defendant would not have had the opportunity to assault the victim sexually had her parents not entrusted her care to defendant and Roberta for the night.

Defendant has also argued that the trial court abused its discretion in imposing a five-year term of imprisonment. The determination of a sentence is a matter of judicial discretion, and the standard of review is whether the trial court abused its discretion in imposing the sentence. (People v. Younger (1986), 112 Ill. 2d 422, 427; People v. Kerwin (1993), 241 Ill App. 3d 632, 636.) A violation of section 12— 13(a)(4) is a nonprobationable Class 1 felony punishable by a term of not less than 4 nor more than 15 years’ imprisonment. (Ill. Rev. Stat. 1989, ch. 38, pars. 12-13(b), 1005-5-3(c)(2)(H), 1005-8-1(a)(4).) The sentence imposed, as well as the comments of the court, indicate that a variety of aggravating and mitigating factors were considered by the court in reaching a sentencing decision. Given the victim’s statement of the serious harm this assault caused to her and her family, we conclude that the trial court did not abuse its discretion in imposing a sentence slightly greater than the minimum mandatory sentence provided by law. See Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3.2; People v. Ulmer (1987), 158 Ill. App. 3d 148, 151.

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

Affirmed.

GEIGER and QUETSCH, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. REX ALLEN BETTS, Defendant-Appellee.
    Fourth District
    No. 4 — 92—1030
    Opinion filed June 30, 1993.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE LUND

delivered the opinion of the court:

In September 1988, defendant Rex Allen Betts was sentenced in absentia in the circuit court of Macon County to concurrent terms of 18 months’ imprisonment for the offense of driving while license revoked (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 303(a)) and 364 days in jail for the offense of driving while under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501(a)(1)). He began serving his felony sentence in the Department of Corrections (DOC) on June 14, 1992. Defendant was discharged from DOC on October 2, 1992, and was remanded to the custody of the Macon County sheriff to serve the remainder of his misdemeanor sentence. On October 20, 1992, defendant filed a petition for an emergency writ of habeas corpus, claiming that under the provisions of section 5 — 8—4(d) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8— 4(d)), his misdemeanor sentence was merged in the felony sentence, thus entitling him to release from jail. Following a hearing on the petition, the trial court agreed and ordered defendant released. The State now appeals.

We note that initially defendant, as appellee, has not filed a brief on appeal. Ordinarily where the appellee files no brief, the record is simple, and the claimed error can be decided without such assistance, we may decide the appeal despite having received only the appellant’s brief. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.) Under this standard, we conclude that we are able to decide this case even though the appellee has not filed a brief.

Section 5 — 8—4(d) of the Code provides as follows:

“An offender serving a sentence for a misdemeanor who is convicted of a felony and sentenced to imprisonment shall be transferred to the Department of Corrections, and the misdemeanor sentence shall be merged in and run concurrently with the felony sentence.” Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8— 4(d).

Section 3 — 6—3 of the Code governs credits that may be applied against a felony sentence. (Ill. Rev. Stat. 1991, ch. 38, par. 1003 — 6— 3.) Credits for persons serving misdemeanor sentences are governed by section 3 of the County Jail Good Behavior Allowance Act (Ill. Rev. Stat. 1991, ch. 75, par. 32). The State maintains these provisions are independent of each other, i.e., satisfaction of a felony sentence by virtue of credits granted under section 3 — 6—3 of the Code cannot satisfy a misdemeanor sentence to which those credits do not apply.

The central question in this appeal, however, is not the application of credits to defendant’s felony and misdemeanor sentences. Rather, we must decide whether defendant’s misdemeanor sentence merged into his felony sentence under section 5 — 8—4(d) of the Code. We conclude that it did not.

In the trial court, defendant relied on People v. Singleton (1984), 103 Ill. 2d 339, 469 N.E.2d 200, to support his claim of merger. In Singleton, defendant was convicted of the felony of aggravated battery. He was sentenced to a prison term of three years, to be served consecutively to a 10-month sentence which he was already serving for a prior, unrelated misdemeanor offense. Defendant argued on appeal in the appellate court that the trial court was prohibited by section 5 — 8—4(d) of the Code from imposing a felony sentence consecutive to an existing misdemeanor sentence. He maintained this section caused the misdemeanor sentence to merge into the felony sentence, thereby allowing him to serve the sentences concurrently. The appellate court rejected this argument and affirmed defendant’s sentence. On further appeal, the supreme court reversed the appellate court, finding merger of the two sentences under the clear wording of the statute. Singleton, 103 Ill. 2d at 341, 469 N.E.2d at 201.

Defendant’s reliance on Singleton in the trial court was misplaced, since in that case defendant was already serving a misdemeanor sentence when he was sentenced on the felony conviction. In the instant case, defendant’s felony and misdemeanor sentences were imposed simultaneously and, under the clear wording of the statute, there was no merger. See People v. Porzelius (1981), 97 Ill. App. 3d 865, 423 N.E.2d 985.

For the above-stated reasons, the order of the trial court finding merger and releasing defendant is reversed.

Reversed.

McCULLOUGH and KNECHT, JJ., concur.


author: JUSTICE GOLDENHERSH JUSTICE WELCH,

text:
    KRISTIE FEARHEILEY, a Minor, by Tom Fearheiley, her Father and Next Friend, et al., Plaintiff-Appellant, v. WILLIAM SUMMERS et al., Defendants-Appellees.
    Fifth District
    No. 5 — 91—0333
    Opinion filed June 16, 1993.

      WELCH, J., dissenting.
    Appeal from the Circuit Court of Saline County; the Hon. Arlie O. Boswell, Judge, presiding.
    Gordon Lambert, of Harris & Lambert, of Marion, for appellant.
    Charles E. Schmidt, of Brandon & Schmidt, of Carbondale, for appellees.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Kristie Fearheiley, a minor, by Tom Fearheiley and Belinda Fearheiley, her parents and next friends, filed a negligence action in the circuit court of Saline County against defendants, William Summers and Connie Summers, for personal injuries plaintiff sustained as a social guest in defendants’ home. The trial court granted defendants’ motion for summary judgment, finding defendants owed no legal duty to plaintiff.

Plaintiff appeals the order of summary judgment, contending defendants did owe her a legal duty to exercise reasonable care for her safety under the facts of this case. We reverse and remand.

On October 16, 1989, plaintiff went to defendants’ residence to visit defendants’ son, Billy Summers. Plaintiff entered the house through the back door, as she had done every day for the 10 months she and Billy had been dating. As plaintiff left defendants’ home that day, she tripped on a throw rug lying on the back porch between the kitchen door and a glass storm door. Plaintiff tried to catch herself by grabbing the storm door, but the glass broke, cutting her hand and wrist. Plaintiff filed suit, claiming defendants were negligent in maintaining the rug and the storm door. In her deposition, plaintiff stated that the rug was “wadded up a little” at one end, causing her to catch her toe and lose her balance. Plaintiff further testified that the wood floor under the rug was “kind of slicky” and the rug “would sometimes slip around.” Discovery also showed that the woven rug was not secured in any way to the floor beneath it. Defendant William Summers testified in his deposition that the porch area where the rug was situated sloped toward the glass storm door and the door itself had no handle or knob which plaintiff might have grasped to steady herself.

Summary judgment will be granted only if the pleadings, depositions, and admissions on file show there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 564 N.E.2d 778.) To succeed on a claim of negligence, a plaintiff must prove the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from that breach. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617.) Whether a defendant owes a plaintiff a duty of care is a question of law for determination by the court. Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307.

Defendants contend they had no duty to plaintiff under the circumstances and assert summary judgment was proper. The sole issue before us is whether defendants and plaintiff stood in such a relationship to one another that the law imposed upon defendants an obligation of reasonable conduct for the benefit of plaintiff. (See Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223.) Our supreme court has identified factors relevant to the existence of a legal duty. Such factors include the reasonable foreseeability of injury, the likelihood of injury, the magnitude of guarding against it, and the consequences of placing the burden upon the defendant. (Ward, 136 Ill. 2d at 140-41, 554 N.E.2d at 227.) Prior to 1984, common law dictated that the scope of the landowners’ or occupiers’ duty varied with the status of the entrant. At common law, there were three classes of entrants: invitees, licensees, and trespassers. An invitee is defined as a person who enters the premises pursuant to an express or implied invitation to transact business in which he and the owner have a mutual interest or to promote some real or fancied material, financial, or economic interest of the owners. (O’Brien v. Rogers (1990), 198 Ill. App. 3d 341, 351, 555 N.E.2d 1005, 1011.) Licensees enter the premises of another by express or implied permission and remain only by virtue of the possessor’s consent. (Rosett v. Schatzman (1987), 157 Ill. App. 3d 939, 942, 510 N.E.2d 968, 970.) A social guest is a licensee. (Kapka v. Urbaszewski (1964), 47 Ill. App. 2d 321, 326, 198 N.E.2d 569, 572.) Trespassers are those who enter the premises of another without invitation or permission. Grimwood v. Tabor Grain Co. (1985), 130 Ill. App. 3d 708, 710-11, 474 N.E.2d 920, 922.

At common law, licensees and trespassers were owed substantially narrower duties by occupiers than were invitees. (Pashinian v. Haritonoff (1980), 81 Ill. 2d 377, 410 N.E.2d 21.) In 1984, the General Assembly enacted the Premises Liability Act (the Act) (Ill. Rev. Stat. 1987, ch. 80, par. 301 et seq.), which provides, in pertinent part:

“§2. The distinction under the common law between invitees and licensees as to the duty owed by an owner or occupier of any premises to such entrants is abolished.
The duty owed to such entrants is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them.” (Ill. Rev. Stat. 1987, ch. 80, par. 302.)

The Act retracted the limited immunity from tort liability enjoyed by owners and occupiers of land with respect to licensees but did not significantly alter the common law duty owed to invitees. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 142, 554 N.E.2d 223, 227.) The standard of care formerly afforded solely to invitees is now afforded to licensees as well. Since the Act provides that a landowner’s or occupier’s duty toward both his invitees and licensees is that of reasonable care under the circumstances, and the Act did not significant!y alter the common law duty owed to invitees, we find cases addressing the duty owed to invitees instructive on the issue before us.

Our supreme court adopted the rule set forth in sections 343 and 343A of the Restatement (Second) of Torts regarding the duty of possessors of land to their invitees. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223; Deibert v. Bauer Brothers Construction Co. (1990), 141 Ill. 2d 430, 566 N.E.2d 239; Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465.) Section 343 provides:

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.” Restatement (Second) of Torts §343, at 215-16 (1965).

Deibert, 141 Ill. 2d at 434-35, 566 N.E.2d at 241; Ward, 136 Ill. 2d at 145-46, 554 N.E.2d at 229; Genaust, 62 Ill. 2d at 468, 343 N.E.2d at 472.

Defendants argue that because plaintiff was aware of the rug’s presence, defendants are not liable for plaintiff’s injuries. This argument leads us to section 343A(1) of the Restatement (Second) of Torts, which serves as an exception to section 343:

“(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” (Restatement (Second) of Torts §343A(1), at 218 (1965).)

(Deibert, 141 Ill. 2d at 435-36, 566 N.E.2d at 241-42; Ward, 136 Ill. 2d at 149-51, 554 N.E.2d at 231-32; Genaust, 62 Ill. 2d at 468, 343 N.E.2d at 472.) According to the Restatement, “known” means “not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves.” (Restatement (Second) of Torts §343A, Comment b, at 219 (1965); Deibert, 141 Ill. 2d at 435, 566 N.E.2d at 241.) “Obvious” denotes that “both the condition and the risk are apparent to and would be recognized by a reasonable [person], in the position of the visitor, exercising ordinary perception, intelligence, and judgment.” Restatement (Second) of Torts §343A, Comment b, at 219 (1965); Deibert, 141 Ill. 2d at 435, 566 N.E.2d at 241.

In adopting section 343A as law, our supreme court held:

“A rule more consistent with an owner’s or occupier’s general duty of reasonable care, however, recognizes that the ‘obviousness’ of a condition or the fact that the injured party may have been in some sense ‘aware’ of it may not always serve as adequate warning of the condition and of the consequences of encountering it.” (Ward, 136 Ill. 2d at 148-49, 554 N.E.2d at 230.)

The Ward court also found comment/to section 343A significant:

“Comment f*** explains that reason to expect harm to visitors from known or obvious dangers may arise ‘where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. *** In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.’ Restatement (Second) of Torts §343A, comment f, at 220 (1965).” Ward, 136 Ill. 2d at 149-50, 554 N.E.2d at 231.

Although the court recognized that the Restatement speaks to the more general question of liability, and not specifically to the existence of a duty, it found the principles expressed in sections 343 and 343A to be “consistent with the general duty of reasonable care owed to invitees and licensees.” (Ward, 136 Ill. 2d at 151, 554 N.E.2d at 232.) From this conclusion, the court held that the principles of sections 343 and 343A are relevant to the resolution of whether an injury was reasonably foreseeable. (Ward, 136 Ill. 2d at 151, 554 N.E.2d at 232.) The court emphasized, however, the magnitude of guarding against the injury, the consequences of placing that burden upon the defendant, the likelihood of injury, and the possible seriousness of such an injury must also be considered. Ward, 136 Ill. 2d at 151, 554 N.E.2d at 232.

Applying these principles to the facts of the present case, we agree with plaintiff that defendants failed to meet the criteria for summary judgment. We first consider the public-policy factors used to determine the existence of a legal duty. As stated above, one relevant factor is the magnitude of the burden on defendants of guarding against the injury. In the case at bar, defendants’ burden was slight. Defendants could have taken one of several minor precautions which might have prevented plaintiff’s injury, such as repairing the storm-door handle, installing plexiglass in the storm door, using a different floor covering, or simply removing the throw rug from the wood surface. Furthermore, the consequences of placing such a burden on defendants are not great. Such precautions do not require great expenditures or unreasonable efforts by defendants. Additionally, the likelihood of a potentially serious injury was strong. There was some indication that defendant Connie Summers knew of others slipping on the same rug prior to plaintiff’s fall, defendant William Summers was aware that the floor sloped toward the storm door, and both defendants knew the glass door was breakable because they previously replaced the door’s lower section of glass with plexiglass.

Looking to section 343 of the Restatement (Second) of Torts, which the trial court did not refer to in its order, we find plaintiff met the criteria for a court to find a duty was owed by defendants to plaintiff. Defendants knew of the condition of their back porch including the rug and the door. Defendants could expect that a teenager would not recognize the danger that an unattached rug thrown on a wood floor sloping toward a glass door could cause plaintiff to fall into the door, severely lacerating her hand. One could infer from the facts presented to the court that defendants failed to exercise reasonable care to protect plaintiff against the danger. Defendants argue that the rug was an ordinary household item used in an ordinary fashion, and since plaintiff was aware of the condition, no duty exists. Under section 343A of the Restatement, owners and occupiers of land are not liable for harm to entrants where the condition causing such harm is obvious, unless the possessor should anticipate the harm despite such knowledge or obviousness. (Restatement (Second) of Torts §343A(1), at 218 (1965).) Although we acknowledge the plaintiff was aware of the rug on defendants’ porch, defendants could have reasonably foreseen that someone could receive serious injuries by falling on a rumpled throw rug situated on a floor sloping toward a glass door. In Shaffer v. Mays (1986), 140 Ill. App. 3d 779, 489 N.E.2d 35, the court held the defendants owed the plaintiff a duty when the plaintiff fell into an open and obvious hole in the defendants’ house. (Shaffer, 140 Ill. App. 3d at 782-83, 489 N.E.2d at 38.) The court reached that conclusion even though the plaintiff knew of the existence of the hole, because the defendants had reason to expect the plaintiff might be distracted. Shaffer, 140 Ill. App. 3d at 782-83, 489 N.E.2d at 38.

In Ward v. Kmart Corp., the plaintiff was injured when he walked out of defendant’s store carrying a large mirror and collided with a concrete post just outside the exit. The court found that it was reasonably foreseeable that a customer would collide with the post while carrying merchandise which could obscure his vision. (Ward, 136 Ill. 2d at 153-54, 554 N.E.2d at 233.) The court reached this conclusion even though the plaintiff passed the post on the way into the store and was therefore aware of its presence. Just as defendants in this case argue, the defendant in Ward asserted there was nothing inherently dangerous about the post and that it was just an ordinary post. The court responded that the proper question is “not whether the post was inherently dangerous, but whether, under the facts of this case, it was unreasonably dangerous.” (Ward, 136 Ill. 2d at 151-52, 554 N.E.2d at 232.) The court further enunciated that “there may also be .conditions which, though seemingly innocuous enough in themselves, indeed present an unreasonable danger under certain circumstances.” Ward, 136 Ill. 2d at 152, 554 N.E.2d at 232.

Defendants argue that Lamkin v. Towner (1990), 138 Ill. 2d 510, 563 N.E.2d 449, Campbell v. Northern Signal Co. (1981), 103 Ill. App. 3d 154, 430 N.E.2d 670, and Bonamie v. Welsh (1981), 95 Ill. App. 3d 349, 420 N.E.2d 243, support their argument that they owed no duty to plaintiff. These cases are clearly distinguishable from the case at bar. In Lamkin, the plaintiff filed suit against her landlord for personal injuries suffered by her child when her child fell through a window screen in the apartment the plaintiff rented from the defendant. Holding there is no duty on the part of the landlord to maintain screens strong enough to support the weight of a child leaning against it, the court applied principles relating to the relationship between landlords and their tenants. (Lamkin, 138 Ill. 2d at 518-19, 563 N.E.2d at 452.) Those principles do not apply to the present case, and neither does Lamkin.

The first issue in Campbell was whether the defendants had sufficient control over the instrumentalities which caused the plaintiff’s injuries to infer negligence by the use of res ipsa loquitur. (Campbell, 103 Ill. App. 3d at 157, 430 N.E.2d at 673.) The second issue was whether one of the defendants was liable to the plaintiff for negligent supervision of his activities. (Campbell, 103 Ill. App. 3d at 157, 430 N.E.2d at 673.) Both issues are inapposite to the one presented in the case at bar.

In Bonamie, a five-year-old boy was injured when he fell through a glass door while playing at the defendants’ residence. The court held that since the plaintiff failed to allege the door was inherently dangerous or that the surrounding conditions were anything but ordinary, the plaintiff’s complaint failed to state a cause of action. (Bonamie, 95 Ill. App. 3d at 350, 420 N.E.2d at 244.) The court stated:

“An owner is not required to protect against the perpetual possibility that a person, whether or not a child, will hurt himself under plain ordinary conditions.” (Bonamie, 95 Ill. App. 3d at 350, 420 N.E.2d at 244.)

Plaintiff in the present case sufficiently alleged a dangerous condition at defendants’ residence. Our holding does not impose on defendants the impossible burden of rendering their premises injury-proof. We merely recognize that there are certain conditions which, although they might be known to entrants, may not in themselves satisfy defendants’ duty of reasonable care. As stated by the Ward court:

“Whether in fact the condition itself served as adequate notice of its presence or whether additional precautions were required to satisfy the defendant’s duty are questions properly left to the trier of fact.” (Ward, 136 Ill. 2d at 156, 554 N.E.2d at 234.)

Further, the trier of fact may also consider whether plaintiff was guilty of negligence contributing in whole or in part to her injury and adjust the verdict accordingly. 136 Ill. 2d at 156-57, 554 N.E.2d at 234.

Our review of this record leads us to conclude that plaintiff presented sufficient facts to show a duty owing by defendants to plaintiff and raise genuine issues of material fact concerning plaintiff’s allegation that defendants breached that duty. Accordingly, the trial court’s entry of summary judgment based on findings of no duty and no genuine issue of material fact was in error.

For the foregoing reasons, the order of summary judgment of the circuit court of Saline County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

CHAPMAN, P.J., concurs.

JUSTICE WELCH,

dissenting:

“A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” (Restatement (Second) of Torts §343A(1), at 218 (1965).)

(Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 149, 554 N.E.2d 223, 231.) There is no question in the case at bar that plaintiff knew of the presence of the throw rug in defendants’ home and appreciated that it sometimes became rolled or rumpled up and could cause one to trip. Plaintiff testified in her deposition that she visited defendants’ home every day for many months; that she always used the back-porch door; that the throw rug was always present on the floor of the back porch; and that she had stumbled over the rug on previous occasions.

A possessor of land should anticipate harm to an invitee despite the invitee’s knowledge, or the obviousness, of the condition on the land,

“where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.” (Restatement (Second) of Torts §343A, Comment/, at 220 (1965).)

(Ward, 136 Ill. 2d at 149-50, 554 N.E.2d at 231.) There is no evidence in the instant case that defendants had any reason to expect that an invitee’s attention might be distracted as he or she was exiting the house through the back porch such that he or she would not discover the throw rug on the floor, or would forget having earlier encountered the throw rug on the floor, or would fail to protect himself against the throw rug on the floor. This is not a situation where the invitee might be distracted and fail to discover, or forget, a condition because he or she is carrying bulky items or merchandise which obstructs his or her view (see Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223) or because he or she is performing a distracting task on the land (see Shaffer v. Mays (1986), 140 Ill. App. 3d 779, 489 N.E.2d 35) or because he or she is distracted by the possibility of some other danger on the land. See Deibert v. Bauer Brothers Construction Co. (1990), 141 Ill. 2d 430, 566 N.E.2d 239.

I conclude that defendants could not reasonably have been expected to foresee that plaintiff would become distracted and fail to discover, or remember, the throw rug on the floor of the porch, which she had previously encountered on numerous occasions. There was no reason to believe that plaintiff would be carrying bundles or packages which might obstruct her vision or distract her and make her forget the presence and danger of the rug on the floor, or that she would be engaged in some activity while using the porch to exit the house such as would distract her and make her forget the presence and danger of the throw rug or that she would be performing a distracting task which required her to turn her attention elsewhere.

A possessor of land cannot reasonably be expected to anticipate injuries which would ordinarily only result if the invitee were negligent. (Ward, 136 Ill. 2d at 152, 554 N.E.2d at 232.) A possessor of land need not anticipate injuries which result from an invitee’s mere inattentiveness to a known and obvious condition rather than a distraction of the invitee’s attention. There is nothing in the instant case to lead defendants to reasonably anticipate or foresee that an invitee’s attention might be distracted from the known and obvious throw mg on the floor. Defendants had no reason to anticipate that plaintiff would trip over the throw rag other than as a result of her own negligence.

A rag throw rag is a commonly used household item and defendants were using it in the customary and ordinary manner. A possessor of land is not required to protect against the perpetual possibility that an invitee will hurt himself or herself under plain, ordinary conditions. (Bonamie v. Welsh (1981), 95 Ill. App. 3d 349, 350, 420 N.E.2d 243, 244.) Under the facts of this case, the presence of the throw rug on the porch floor did not create an unreasonably dangerous condition, and defendants had no duty to protect plaintiff from the throw rag, the presence and danger of which she was well aware.

Accordingly, I conclude that defendants’ duty to exercise reasonable care toward plaintiff did not extend to the risk that plaintiff would trip over the known and obvious throw rag and fall into and through the glass-paneled storm door while exiting defendants’ residence. I would affirm the summary judgment entered in favor of defendants.


author: JUSTICE BOWMAN JUSTICE WOODWARD, JUSTICE UNVERZAGT,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES RAYMOND WIEST et al., Defendants-Appellees.
    Second District
    Nos. 2 — 91—0194, 2 — 91—0195 cons.
    Opinion filed June 22, 1993.
    Rehearing denied July 27, 1993.

      WOODWARD, J., specially concurring.
    UNVERZAGT, J., dissenting.
    Mary Jo Hunt, State’s Attorney, of Galena (William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller, of State Appellate Defender’s Office, and Anne S. Quincy, both of Elgin, and Philip E Jensen, of Hammer, Simon & Jensen, and David C. Rashid, both of Galena, for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

The State appeals pursuant to Supreme Court Rule 604(a)(1) from an order of the circuit court of Jo Daviess County granting the motion of defendants, James Raymond Wiest (Wiest) and Daniel Joseph Mausser (Mausser), to suppress certain evidence seized during a warrantless search of defendants’ car following their custodial arrests for a traffic offense. Proper certification was made as required by People v. Carlton (1983), 98 Ill. 2d 187.

Defendants were both charged by information with the offenses of unlawful possession with intent to deliver a controlled substance (count I) (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401(b)(2)), and unlawful possession of a controlled substance (count III) (Ill. Rev. Stat. 1989, ch. 561/2, par. 1402(b)). Wiest was also charged with unlawful possession of a controlled substance (count II) (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401(b)(2)). Mausser was also charged with unlawful possession of a controlled substance (count II) (Ill. Rev. Stat. 1989, ch. 561/2, par. 1402(b)). After a preliminary hearing, the trial court dismissed count III as to both defendants. The trial court also granted the defendants’ motions to suppress evidence. The State appeals from those rulings. We affirm.

The evidence offered at the preliminary hearing and at a hearing on the defendants’ motions to suppress evidence established the following. On August 11, 1990, Officers Evelyn Keleher and Kevin Green of the Galena police department were on routine patrol when, at approximately 9:45 p.m., they noticed a vehicle driving on U.S. Route 20, within the city limits, which had a burned-out license plate light. Neither officer noticed anything else unusual in the manner of the operation of the motor vehicle.

The police pulled that car over. It was stipulated that the sole reason for the traffic stop was the burned-out license plate light. Officer Green indicated that he would stop all vehicles for minor traffic violations. Both officers exited their squad car at the same time, with Officer Keleher approaching the driver’s side of the vehicle and Officer Green approaching the passenger’s side. They both arrived at the vehicle almost simultaneously.

There were streetlights in the area, and Officer Green did not recall whether he used his flashlight. Green saw defendant Wiest in the front passenger seat and saw the glove compartment door open. A third codefendant, Lyons, whose case was later dismissed, was in the backseat. Wiest was rummaging through the glove compartment before Keleher asked for the registration, and at that time Green saw a black and gray 35-mm film container in the glove compartment. Wiest never gave defendant Mausser (the driver) or Officer Green anything; he just fumbled in the glove compartment and then shut it.

Based on his prior experience in drug-related cases, Officer Green was suspicious that the film container contained illicit drugs. Officer Green also noted that the glove compartment was large enough to hold a can of beer.

Officer Green noticed open liquor in plain view on both the floor of the backseat and the floor on the driver’s side of the car. Officer Green pointed it out to Officer Keleher. At this point, since the driver of the vehicle was a minor in possession of alcohol, Officers Keleher and Green believed the driver of the car had committed an illegal act. All the occupants were ordered out of the car and eventually they were all arrested. Defendants were given no Miranda warnings and no statements were elicited. Officers Green and Keleher engaged in a search of the car for anything illegal, including but not limited to alcohol. The officers testified that, normally when open liquor was found, a search would be done for any items of an illegal nature. That search would include the glove compartment and the trunk. During the search, additional liquor was found in the car.

Officer Green opened the glove compartment and saw the film container. He opened the container and found pills inside which appeared to be an illegal substance. Later, those pills were found by laboratory analysis to contain no scheduled substance. After securing the film container and the pills, Officer Green proceeded to further investigate the glove compartment. After moving items around in the glove compartment, Officer Green found in the glove box a clear plastic baggie containing a white, powdery substance, which field-tested positive for cocaine. The baggie of cocaine was not in plain view when the glove compartment was open.

The defendants were taken to the police station. Officer Green obtained defendant Mausser’s permission to drive the car to the police station. After impounding the car, Officer Green did an additional search of the vehicle and found a clip-on visor mirror and a Blockbuster video card, both containing a white powdery substance, under the driver’s seat. Field tests on the powdery substance revealed it to be cocaine. Officer Green testified that, based on his experience, the mirror and card were used to ingest cocaine. He hypothesized that at the time of the traffic stop defendants had been “doing lines” of cocaine. Green had been on the Illinois State Police narcotics task force for two years and two months and had personally investigated 160 drug cases, mostly involving cocaine. He admitted that he had no idea that the defendants were drinking beer or that the officers would find drugs when they pulled the defendants over.

The foregoing was testified to by Officer Green at the preliminary hearing as well as by both officers during the evidentiary hearing on the defendants’ motions to suppress evidence. At the hearings, it was conceded by defendant Mausser’s counsel that defendants’ vehicle was properly stopped for an equipment violation. It was also conceded that, after discovering open alcohol in a vehicle that contained minors, it was permissible to search for more open alcohol containers. However, the defendants asserted that opening the film container was not warranted, and as this was an illegal act, the fruits of any search following that act should be suppressed. Thus, at issue in this appeal is the legality of opening the film container and the legality of discovery of the baggie of cocaine, the mirror, and the Blockbuster video card. The trial court ultimately granted defendants’ motions to suppress all evidence gathered after the film container was opened. The State filed timely notice of appeal and a certificate of impairment.

On appeal, the State contends that the search of the glove compartment and the film container therein was warranted by probable cause. The State argues that the officers had probable cause because Officer Green observed defendant Wiest rummaging through the glove compartment as if he was trying to hide something. Further, the State contends that Officer Green’s prior experience in drug cases allowed him justifiably to be suspicious of a 35-mm film container as it was a common container for illicit drugs. Thus, since Officer Green saw what he believed was a container holding contraband, the State asserts that he was justified in conducting a thorough search of the car. Defendants contend that while the search for open alcohol was justified, a search for other contraband not likely to be alcohol was not justified. Thus, they contend, the trial court was correct in suppressing fruits of the search obtained after opening of the film container.

The trial court relied on People v. Penny (1989), 188 Ill. App. 3d 499, in rendering its decision to grant defendants’ motions to suppress. In Penny, at issue was the warrantless search of a car after its driver had been stopped for a traffic violation. Defendant was pulled over by the police because of an expired license plate sticker. During the stop, defendant got out of the car and walked back to talk to the officers. One of the officérs walked up to the driver’s door, looked inside, and saw a package wrapped in brown plastic on the floor. The officer believed the package resembled a “kilo of cocaine” and poked a hole in the top of the package with a knife, revealing a white powder which later proved to be cocaine. The trial court granted defendant’s motion to suppress the evidence. The appellate court affirmed the trial court. (Penny, 188 Ill. App. 3d at 505.) The appellate court determined that the fact that the officer had substantial experience in narcotics investigation and was suspicious of the package and the fact that defendant was nervous when he handed over his driver’s license were not sufficient to give rise to probable cause to search the closed package in defendant’s car upon a traffic stop. (Penny, 188 Ill. App. 3d at 503.) The appellate court determined that there was nothing about the package itself or about the surrounding circumstances that suggested it contained contraband. (Penny, 188 Ill. App. 3d at 503.) Although it was not expressly stated in the trial court’s order, the trial court in the present case evidently found no probable cause to support the opening of the film container, analogous to the brown plastic package which was opened in Penny. We agree with the trial court’s analysis.

A reviewing court will not disturb a trial court’s decision on a motion to suppress unless it is found to be manifestly erroneous. (People v. Gacho (1988), 122 Ill. 2d 221, 237; Penny, 188 Ill. App. 3d at 502.) Prior to the search of a car, the police must obtain a search warrant, unless the circumstances fall within certain exceptions to the warrant requirement. (United States v. Ross (1982), 456 U.S. 798, 809, 72 L. Ed. 2d 572, 583-84, 102 S. Ct. 2157, 2164-65.) The exception to the warrant requirement posited by the State in this case is that the officers had probable cause to believe the car contained contraband. To establish probable cause for such a search, it must be shown that the totality of the facts and circumstances known to the officer at the time of the search would justify a reasonable person in believing that contraband was present in the vehicle. People v. Clark (1982), 92 Ill. 2d 96, 100.

The State contends that there were three reasons which supported the existence of probable cause for the police officers to open the film container and to search the car and glove box: (1) Officer Green saw defendant Wiest rummaging in the glove box as if trying to hide something, (2) Officer Green spotted open alcohol in plain view in the car, and (3) the film container in plain view led Officer Green to suspect the film container as a possible vessel for controlled substances on the basis of his prior experience in drug-related cases.

As regards the first of these reasons, we find the case cited by the State distinguishable. In People v. Jones (1990), 207 Ill. App. 3d 30, defendant, while driving, was stopped for an equipment violation. As the officer approached the vehicle, he noticed defendant making turning movements and placing a plastic bag underneath the armrest between the seats. The appellate court determined that the mere movement in the car did not give rise to probable cause. However, the act of placing the bag under the armrest did give rise to probable cause as it appeared that the defendant was hiding the bag. (Jones, 207 Ill. App. 3d at 32.) In the present case, Officer Green did not see defendant Wiest hide any object in the glove box; he merely saw Wiest rummaging through the glove box. Furthermore, the officer testified at the motion to suppress hearing that a majority of people keep their vehicle registrations in the glove box. Thus, we determine Wiest’s movements in the present case did not give rise to probable cause.

As regards the second of the reasons for probable cause put forth by the State, we determine that the police did have probable cause to search for more alcohol on the basis of the open alcohol containers in plain view in the car. The scope of a warrantless search of an automobile is defined by the object of the search and the places in which there is probable cause to believe that the object of the search may be found. (Clark, 92 Ill. 2d at 100, citing Ross, 456 U.S. at 824, 72 L. Ed. 2d at 593, 102 S. Ct. at 2172.) Thus, in the present case, since the defendants were minors, the police had probable cause to search for open or closed alcohol containers. However, the testimony at the hearing indicated that the police were operating under the rationale that, upon finding open alcohol in the car, they had probable cause to search for any type of contraband. The police were mistaken in this belief. (Clark, 92 Ill. 2d at 100.) They only had probable cause to look for alcohol containers.

As regards the third rationale used by the State to establish probable cause to justify opening the film container, we determine that the trial court’s analysis of this rationale in light of Penny is correct, as we have already stated above.

Although there were no factual determinations made in the trial court’s written ruling, we can presume that it credited only that testimony that supports its ruling. (People v. Kolody (1990), 200 Ill. App. 3d 130, 136.) In light of the fact that the trial court observed the witnesses, and upon reviewing the parties’ arguments and the record, we determine that the trial court’s decision is not against the manifest weight of the evidence.

With respect to our colleague’s dissent, we believe a responsive note is warranted. It appears that the police search of the glove compartment and seizure of the cocaine was legally permissible as a search incident to arrest. (See People v. Kalivas (1991), 207 Ill. App. 3d 415.) However, neither the State nor defendant raised the issue of search incident to arrest in either the trial or appellate court. In criminal cases, when the State fails to raise an issue in the trial court, such issue is waived for purposes of appeal. (People v. Valdez (1980), 81 Ill. App. 3d 25, 27-28.) There is no compelling reason to treat waiver by the State any differently from waiver by the defendant. People v. Sanders (1976), 44 Ill. App. 3d 510, 516.

We recognize that the waiver rule (failure to raise issues in trial or reviewing courts) has been ignored by reviewing courts in civil cases when necessary to obtain a just result and for maintenance of a sound and uniform body of precedent. See American Federation of State, County & Municipal Employees, Council 31 v. County of Cook (1991), 145 Ill. 2d 475, 480; Hux v. Raben (1967), 38 Ill. 2d 223, 224-25; Tyrrell v. Municipal Employees Annuity & Benefit Fund (1975), 32 Ill. App. 3d 91, 98.

Additionally, our attention has not been called to any case law precedent wherein a reviewing court has, in a criminal case, reversed the decision of a trial court by independently utilizing a legal theory not raised by either party in either the trial or appellate court. This is not to say that nowhere in the future lurks a fact pattern which would justify application of the Hux principles to a criminal case in this context.

The trial court’s rulings of the motions to suppress are affirmed.

Affirmed.

JUSTICE WOODWARD,

specially concurring:

I specifically concur with the result reached in Judge Bowman’s opinion. Neither the State nor the defendant raised the issue that this case involved a search incident to arrest. Since the State failed to explain and justify the search of the glove box as a search incident to arrest in the trial court, this theory has been waived for the purpose of this appeal.

I would agree with the dissent of Judge Unverzagt except that the waiver rule applies to these facts as pointed out by the last three paragraphs of Judge Bowman’s decision. There is no compelling reason not to apply this rule and, therefore, the decision of the trial court is affirmed.

JUSTICE UNVERZAGT,

dissenting:

I respectfully dissent from the opinion of the majority which affirms the trial court’s judgment suppressing evidence of cocaine found in the glove compartment of the vehicle in which defendants were driver and passenger.

The initial stop is not in dispute as defendant agreed it was as a result of the police officers’ observation of a burned-out license plate light. Upon their approach to the vehicle, the police officers observed open liquor in plain view on both the floor of the backseat and the floor on the driver’s side of the vehicle. The driver of the vehicle was then determined to be a minor in possession of alcohol. The occupants of the vehicle were ordered out and eventually they were arrested.

The majority determines that the police exceeded the scope of a permissible search and affirms the judgment below. The majority determines that since the defendants were minors, the police had probable cause to search for open or closed alcohol containers. The majority stated that the police were mistaken in their belief that once they found open liquor in the vehicle, the police had probable cause to search for any type of contraband.

The majority and the trial court are simply wrong in their opinions.

When Officer Green approached the vehicle he observed the glove compartment door open and therein he observed a 35-mm black and gray film container in the glove compartment, as well as “odds and ends, papers.” He also observed the open liquor in the front seat and backseat. Officer Green observed defendant Wiest was rummaging through the glove compartment. Officer Green’s perception of defendant Wiest’s activities was that Wiest was trying to conceal or hide items.

Based on his prior experience in drug-related cases, Officer Green was suspicious that the film container contained illicit drugs.

. The glove compartment had been closed by Wiest. Officer Green reopened the glove compartment and opened the suspicious film container, which did not contain film but rather some sort of pills. Officer Green found a clear plastic baggie containing cocaine in the glove compartment.

It seems to me the officer’s search of the glove compartment was proper in view of the discovery of open liquor and his suspicions with regard to the film case. The fact that pills were in the case, rather than film, would prompt them to observe further the items in the glove compartment. The officers exercised good common sense in the scope of the search and did not offend any of defendant’s rights.

People v. Penny (1989), 188 Ill. App. 3d 499, relied upon by the trial court and the majority, is distinguishable. The type of container there was a package wrapped in a brown opaque plastic material. Here, the clear plastic baggie containing a white powdery substance was found in the glove compartment. It field tested positive for cocaine. By its very appearance it was obvious to the police it contained an illegal substance. Thus the film container argument is nothing but a red herring. The clear plastic baggie was obvious to the officer and he had the right to seize it. It should not have been suppressed. The search here was incident to a lawful arrest of the defendants for the open liquor violation. A search incident to a lawful arrest is a traditional exception to the warrant requirement of the fourth amendment. (United States v. Robinson (1973), 414 U.S. 218, 224, 38 L. Ed. 2d 427, 434, 94 S. Ct. 467, 471.) Such searches are considered valid because of the need to remove weapons that the arrestee may attempt to use in order to resist arrest or effect an escape, as well as the need to prevent destruction of evidence at the scene of an arrest. (New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860.) When the police have made a lawful, custodial arrest of the occupant of an automobile, they may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. (People v. Kalivas (1991), 207 Ill. App. 3d 415, 417.) The supreme court in Belton expressly included a search of any closed or open glove compartments or other receptacles or containers found within the passenger compartment. People v. Loftus (1983), 111 Ill. App. 3d 978, 982.

In my view the search of the glove compartment was properly made incident to the arrest of defendants. The cocaine found therein should not be suppressed.

I therefore dissent.