author: PRESIDING JUSTICE INGLIS

text:
    PAUL D. SWANSON, Plaintiff-Appellant and Cross-Appellee, v. THE VILLAGE OF LAKE IN THE HILLS, Defendant-Appellee and Cross-Appellant.
    Second District
    No. 2—91—1260
    Opinion filed August 14, 1992.

      Michael K. Havrilesko, of Havrilesko & Associates, of Rockford, for appellant.
    Dolores A. Duffy, of Zukowski, Rogers, Flood & McArdle, of Crystal Lake, for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Paul D. Swanson, brought an action in November 1987 against his employer, Village of Lake in the Hills (defendant), for accrued vacation pay pursuant to the Wage Payment and Collection Act (Ill. Rev. Stat. 1987, ch. 48, par. 39m—5), disability pay pursuant to the Public Employee Disability Act (Ill. Rev. Stat. 1987, ch. 70, par. 91) and attorney fees pursuant to the Attorneys Fees in Wage Actions Act (Ill. Rev. Stat. 1987, ch. 13, par. 13). The trial court held that defendant owed plaintiff $1,806.25 in accrued vacation pay and $3,103.02 in disability pay, but denied plaintiff’s request for attorney fees.

Plaintiff appealed the trial court’s denial of attorney fees, and defendant cross-appealed the trial court’s award of vacation and disability pay. Three issues are therefore raised: (1) whether the trial court erred in awarding plaintiff $1,806.25 in accrued vacation pay; (2) whether the trial court erred in awarding plaintiff $3,103.02 in disability pay; and (3) whether the trial court erred in denying plaintiff’s request for statutory attorney fees. We affirm.

A one-day bench trial took place on January 14, 1991, during which five witnesses testified. The following is a summary of the evidence and testimony. Plaintiff was employed by defendant as a police officer from December 1978 until January 31, 1987, when he was terminated. On August 24, 1986, plaintiff was treated at the Good Shepherd Hospital emergency room in Barrington for a severe headache, associated with nausea, vomiting and passing out. Dr. Zbigniew Lorenc treated and interviewed plaintiff. Plaintiff told Dr. Lorenc that for several months he had had substantial difficulties with his immediate supervisor at work and that he was experiencing severe stress and headaches as a result of his work. Dr. Lorenc diagnosed plaintiff as suffering from severe muscle contraction headaches. Various tests ordered by Lorenc, such as blood tests, a CAT scan of the brain, and X rays of the neck, sinuses and facial bone, revealed no other probable causes for the headaches. Plaintiff was also treated by Dr. Greek, a neurologist, who ordered a cerebral angiogram to rule out aneurysms as a cause. Dr. Lorenc prescribed an analgesic medication and physical therapy during plaintiff’s four-day hospitalization and for several weeks thereafter.

Dr. Lorenc testified that when plaintiff was hospitalized, he was clearly disabled. Lorenc ordered plaintiff to refrain from work until December 2, 1986. During the time that plaintiff was off work, Lorenc stated that plaintiff’s headaches diminished and became more tolerable. On October 2, 1986, Lorenc authored a letter advising that plaintiff could return to work on either December 1, 1986, or January 1,1987.

According to Dr. Lorenc, muscle contraction headaches are usually supported with physical findings. Lorenc also stated that the more intense the headache, the more physical findings are present. Lorenc stated that he made physical findings as to plaintiff which are typical of severe headaches, including tight tender muscles in the back of the neck, back of the head and along the temples, and great deprivation of sleep.

Plaintiff attempted to return to his work as a police officer on December 2, 1986. Dr. Lorenc testified that upon returning to his work plaintiff’s headaches recurred and became “very intense.” According to Lorenc, plaintiff suffered recurrence of “significant spasm in his muscles in the back of his head [and] neck.”

Dr. Lorenc concluded that plaintiff had fairly tried to return to work, but that his returning to the work environment exacerbated plaintiff’s headaches such that “he could not perform his police duties.” Lorenc opined that plaintiff’s return to work “brought [his headaches] almost to the same level as they were prior to his hospitalization in August.” Lorenc further opined that returning plaintiff to the work place under the circumstances would be detrimental to plaintiff’s health.

Dr. Lorenc testified that, in his medical opinion, he “felt very strongly” that plaintiff’s headaches were causally related to his employment: that the headaches were intense; that when he was ordered off work, his headaches gradually subsided over time; that when he returned to work, his headaches markedly increased; and when he was off police work the second time, and worked as a carpenter, his headaches again subsided. Lorenc testified that an injury does not necessarily result from physical trauma, but may result from other causes such as mental abuse. He opined that plaintiff’s headaches resulted from mental abuse at work.

Dr. Lorenc opined that, to a reasonable degree of medical certainty, the following circumstances surrounding plaintiff’s employment as a police officer were causally related to plaintiff’s headaches: his suspension from employment based on the death of a prisoner; thereafter receiving punitive or demeaning duties and frequent criticism from his superior, the chief of police; his experiencing headaches when confronted by his superior in the work place; an internal investigation of his culpability in the prisoner’s death; involvement in a dangerous crossfire situation; experiencing headaches during the cross-fire situation and thereafter being hospitalized with headaches.

Plaintiff’s testimony paralleled that of Dr. Lorenc. Plaintiff was earning $495 per week as a Village police officer at the time in question. Plaintiff testified that, at some point after he was terminated in January 1987, he made a request in writing to defendant for payment of his accrued vacation pay. Plaintiff did not introduce a copy of this alleged letter into evidence. In a written response dated March 3, 1987, defendant agreed that plaintiff had accrued 18 vacation days at the time of his termination in January 1987. However, defendant stated that plaintiff’s vacation pay was offset by 18 days of administrative leave he received from December 2 through December 20, 1986. Defendant’s letter concluded that “it would appear that you neither owe the Village nor the Village owes you any money.”

A copy of defendant’s personnel rules was introduced into evidence. A section on termination reads, in pertinent part: “Upon termination of employment, the employee shall be paid for any unused vacation time.”

Plaintiff testified that in March 1987 he wrote a letter to the Department of Labor (Department) requesting payment of his accrued vacation pay and $900 in disability compensation from defendant. However, plaintiff did not introduce a copy of this letter into evidence. The Department of Labor sent plaintiff a letter dated March 26, 1987, stating that the Department had received plaintiff’s letter and forwarded the claim to defendant for a response. On May 11, 1987, the Department sent plaintiff another letter and a copy of defendant’s response to plaintiff’s claims. Defendant’s response acknowledged receipt of plaintiff’s claim. However, defendant claimed that plaintiff’s 18 days of accrued vacation time was credited against an overpayment of 18 days. The response generally denied defendant’s claims. Plaintiff stated that he filed a reply to defendant’s response, asking the Department to “take steps within your means to see that the Village of Lake in the Hills pays me the salary that they agreed to pay me, and *** vacation benefits.” A copy of this undated letter was introduced into evidence.

Plaintiff also testified that in January 1987 his attorney at the time sent defendant a written demand for vacation and disability pay. Plaintiff did not introduce a copy of this alleged letter into evidence. Defendant responded to plaintiff’s claim for disability pay in a letter dated February 6, 1987, and to plaintiff’s claim for vacation pay in a letter dated February 19, 1987. Both letters denied plaintiff’s claims.

By written stipulation of the parties, plaintiff began working as a carpenter for Welcome Home Corporation on or about December 8, 1986.

The three remaining witnesses testified as follows. Deborah Tipps, a supervisor at Aetna Insurance, testified that plaintiff was on 60% disability pay from August 31, 1986, through February 23, 1987. Wendy Cichowski, defendant’s treasurer, identified copies of payroll checks made out to plaintiff for October and December 1986.

James A. Wales, defendant’s chief of police, testified that he ordered plaintiff to undergo a psychological evaluation on December 2, 1986, to determine his fitness for duty. Wales based this order on a statement plaintiff made at an administrative hearing conducted by Wales in August 1986, the topic of which was plaintiff’s conduct during a police response to a shooting incident. Plaintiff had stated there that during the incident he was unsure how he might react and believed that “he was walking on eggshells.” Pending receipt of the psychological evaluation, Wales placed plaintiff on administrative leave. Wales received the evaluation on December 20, at which time he filed termination charges with the police commission. As a result and on that same day, the commission suspended plaintiff without pay for 30 days pending a hearing on the matter. One month later, the commission suspended plaintiff for another 30 days, but with pay, pending completion of the hearing. On January 31, 1987, the police commission terminated plaintiff’s employment as a police officer. On cross-examination, Wales conceded that neither the 18-day administrative leave period between December 2 and 20, 1986, nor the period between January 20 and January 31, 1987, was a vacation period for plaintiff.

In a five-page memorandum opinion dated April 19, 1991, the trial court determined that plaintiff was entitled to be paid for I8V4 days’ accrued vacation in the amount of $1,806.25 and $3,226.14 in back salary. The latter amount was corrected in a later order to read $3,103.02. The court reviewed the relevant statutes and case law and determined that plaintiff’s headaches were injuries during the line of duty and during the course of employment. The court calculated plaintiff’s wages for the 14-week-and-one-day period (from August 24, 1986, to December 2, 1986) and then credited the disability payments he had been receiving. The trial court rejected plaintiff’s request for attorney fees, stating “the Court agrees with [defendant] that [plaintiff] has not complied with the statute[ ] in every particularity and therefore has not established that he is entitled to recover attorneys fees. [Citing Caruso v. Board of Trustees of the Public School Teachers’ Pension & Retirement Fund (1984), 129 Ill. App. 3d 1083, 1087.]”

VACATION PAY

At issue is whether the trial court erred in awarding $1,806.25 for I8V4 days of accrued vacation pay to plaintiff. Plaintiff argues that the trial court’s decision is supported by the evidence. Defendant argues that plaintiff’s 18 days of administrative leave pay between December 2 and December 20 should be credited against plaintiff’s accrued vacation time.

We initially note that both parties limited their argument to arguments of fact based on the evidence. We are therefore bound to grant deference to the trial judge’s decision, as he was the trier of fact. (Kalata v. Anheuser-Busch Cos. (1991), 144 Ill. 2d 425, 433-34.) A court of review will defer to the trial court’s factual findings unless they are against the manifest weight of the evidence. (Kalata, 144 Ill. 2d at 433.) The reviewing court must not substitute its judgment for that of the trier of fact. Kalata, 144 Ill. 2d at 434.

We find that evidence in the record supports the trial court’s award. There is no dispute that plaintiff accrued I8V4 days of vacation. Based on a weekly salary of $495, that translates to a figure of $1,806.75 in accrued vacation pay. The trial judge arrived at the same amount on page one of his April 19, 1991, memorandum opinion. We note that on page five of the memorandum, the amount was apparently mistakenly typed as $1,806.25 rather than $1,806.75. We choose to disregard this minor discrepancy.

We are not persuaded by defendant’s argument that plaintiff’s administrative leave pay should be credited against his vacation pay. Plaintiff earned IS1/* days of vacation, and defendant therefore owed plaintiff 18x/4 days in pay when it terminated him. (See Ill. Rev. Stat. 1987, ch. 48, par. 39m—5 (final compensation for terminated employee shall include accrued vacation pay).) The fact that defendant chose to place plaintiff on administrative leave from December 2 through December 20 is not a proper consideration in that regard. We find no error by the trial court regarding its award of $1,806.25 in accrued vacation pay to plaintiff.

DISABILITY PAY

At issue is whether the trial court erred in awarding $3,103.02 in disability pay to plaintiff. Plaintiff argues that the trial court’s decision should be affirmed since it is not against the manifest weight of the evidence. Defendant argues that plaintiff’s stress headaches should not be compensable injuries in the line of duty under Illinois law.

A reviewing court will not reverse a ruling following a bench trial unless the judgment is against the manifest weight of the evidence. (Bruss v. Klein (1991), 210 Ill. App. 3d 72, 78.) “The trial judge, as the trier of fact, is in a position superior to a court of review to observe the demeanor of witnesses while testifying, to judge their credibility and to determine the weight their testimony should receive.” (In re Application of the County Treasurer (1989), 131 Ill. 2d 541, 549.) An opposite conclusion must be clearly evident for a finding or judgment to be against the manifest weight of the evidence. Bruss, 210 Ill. App. 3d at 78.

As a first step, we review the trial court’s decision on this issue. In the April 19, 1991, opinion memorandum, the trial judge summarized Dr. Lorenc’s unrebutted testimony and concluded:

“Based upon the record before it, the Court finds that [plaintiff] suffered from a non-traumatic injury arising out of and in the course of his employment as a police officer for the Village of Lake in the Hills by reason of the severe muscle contraction headaches which were caused primarily by the stress from the interpersonal relationship between [plaintiff] and his superior[,] Chief of Police Wales.”

The trial court then considered whether the above finding qualified plaintiff to receive compensation benefits under the Public Employee Disability Act (Ill. Rev. Stat. 1987, ch. 70, par. 91), which states in pertinent part:

“Whenever any law enforcement officer *** suffers any injury in the line of duty which causes him, to be unable to perform his duties, he shall continue to be paid by the employing public entity on the same basis as he was paid before the injury, with no deduction from his sick leave credits, compensatory time for overtime accumulations or vacation ***.
***
During this period of disability, the injured person shall not be employed in any other manner, with or without monetary compensation. Any person who is employed in violation of this paragraph forfeits the continuing compensation provided by this Act from the time such employment begins. Any salary compensation due the injured person from workers’ compensation or any salary due him from any type of insurance which may be carried by the employing public entity shall revert to that entity during the time for which continuing compensation is paid to him under this Act.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 70, par. 91.

Since no reviewing court had interpreted the phrase “injury in the line of duty” in the context of the Public Employee Disability Act, the trial judge reviewed interpretations of similarly worded statutes such as the police pension funds statute, which includes a lengthy definition of the phrase “act of duty.” (Ill. Rev. Stat. 1987, ch. 108½, par. 5—113.) The court noted that several courts of review concluded that headaches and stress type conditions involving police officers do not qualify a police officer for a line-of-duty pension under the police pension funds statute, citing Batka v. Board of Trustees of the Village of Orland Park Police Pension Fund (1st Dist. 1989), 186 Ill. App. 3d 715, Wall v. Police Pension Board of the Village of Schaumburg (1st Dist. 1988), 178 Ill. App. 3d 438, and Olson v. City of Wheaton Police Pension Board (2d Dist. 1987), 153 Ill. App. 3d 595. However, the trial court found this line of cases to be of little value since the Public Employee Disability Act “contains no definition of terms and certainly no restrictive definition such as [section 5—113].” The court also noted that in Olson and Batka the police officers were awarded “not on duty” pension rights and that in Wall, the police officer was denied any pension, in part, because none of the police officer’s doctors would even speculate whether the officer’s stress was job related. The trial court then concluded that plaintiff had in this case established that he is entitled to benefits under the Public Employee Disability Act.

Finally, the trial court determined the amount and duration of the benefits. The court determined that plaintiff was eligible for disability pay from August 24 through December 2, when plaintiff was placed on administrative leave. This 14-week-and-one-day period was then multiplied by plaintiff’s $495 weekly salary, to arrive at a figure of $7,029. The court then credited the amount plaintiff had received under defendant’s disability insurance policy, which the court found to be $3,925.98, resulting in a final amount due of $3,103.02. While this court is uncertain how the trial court arrived at the precise figure that plaintiff had received under the disability insurance policy during the 14-week-and-one-day period, our review of the insurance policy disbursement data suggests that the $3,925.98 figure is correct.

We believe that the trial court properly applied the Public Employee Disability Act to the facts of this case. Plaintiff’s testimony and the unrebutted testimony of Dr. Lorenc provides evidence that plaintiff suffered an injury in the line of duty which caused him to be unable to perform his duties. The trial court properly calculated the amount of the disability compensation as being up until December 2, 1986, the point defendant began receiving full salary while on administrative leave. The trial court also properly credited the amount of disability insurance payments that plaintiff had received.

Defendant’s arguments to the contrary are unpersuasive. Defendant urges this court to find that plaintiff’s “complaints are no more than the everyday pressures of life.” Defendant posits that plaintiff’s line of duty as a police officer is to protect and serve the public, citing Johnson v. Retirement Board of the Policemen’s Annuity & Benefit Fund (1986), 114 Ill. 2d 518, and that his “personal relationship with his superior has nothing to do with his duty to protect and serve.” Defendant asks this court to analyze this case under police pension case law such as Johnson (114 Ill. 2d 518), Batka (186 Ill. App. 3d 715), Wall (178 Ill. App. 3d 438), and Olson (153 Ill. App. 3d 595). However, we agree with the trial court that those cases are of little value since they are based on the more restrictive pension law. We find no error by the trial court regarding its award of $3,103.02 in disability pay to plaintiff.

ATTORNEY FEES

At issue is whether the trial court erred in denying plaintiff’s request for attorney fees pursuant to the Attorneys Fees in Wage Actions Act (Ill. Rev. Stat. 1987, ch. 13, par. 13). Section 1 of that act states:

“Whenever a mechanic, artisan, miner, laborer, servant or employee brings an action for wages earned and due and owing according to the terms of the employment, and establishes by the decision of the court or jury that the amount for which he or she has brought the action is justly due and owing, and that a demand was made in writing at least 3 days before the action was brought, for a sum not exceeding the amount so found due and owing, then the court shall allow to the plaintiff a reasonable attorney fee of not less than $10, in addition to the amount found due and owing for wages, to be taxed as costs of the action.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 13, par. 13.

In essence plaintiff argues that even though he did not produce a copy of the letter he allegedly sent defendant claiming back wages and vacation pay, “the preponderance of the evidence established that [he] complied with the notice requirement” of the above Act. In particular, plaintiff directs this court to his allegations, supported by subsequent letters in evidence, that he sent claim letters to both defendant and to the Department of Labor. Defendant responds that plaintiff never introduced into evidence a copy of any letter that he sent to the Village which included a demand specifying an amount due.

Our analysis is governed by the well-accepted rule that the attorney fees act at issue must be considered in derogation of the common law and is therefore to be strictly construed. (Caruso, 129 Ill. App. 3d at 1087; Howard A. Koop & Associates v. K P K Corp. (1983), 119 Ill. App. 3d 391, 404-06.) The “statute must be complied with in every particular to entitle the plaintiff to recover attorney fees.” Caruso, 129 Ill. App. 3d at 1087.

After reviewing the record before us and the attorney fees act, we believe the trial judge properly denied plaintiff’s request for attorney fees. The cardinal rule of statutory construction is to determine and give effect to the legislature’s intent. (Sulser v. Country Mutual Insurance Co. (1992), 147 Ill. 2d 548, 555.) Inherent in the Act’s requirement that the employee make a written demand for a sum is that the demand be made directly to the employer and for a certain sum not exceeding the amount found due and owing. Surely the legislature intended this Act to give recourse to the employee who filed a written demand for a certain wage sum directly with his employer but to no avail, and then had to seek an alternative remedy in the courts.

We do not believe that plaintiff met his burden of presenting evidence that he sent such a written demand to defendant at least three days prior to suit. We have carefully reviewed the testimony and evidence, including copies of letters from defendant’s attorneys to plaintiff regarding vacation pay, letters from the Department of Labor to plaintiff regarding his claim, a letter from defendant to the Department regarding plaintiff’s claim, and an undated letter from plaintiff to the Department allegedly sent in reply to defendant’s response to plaintiff’s claim. We do not place great weight on any of the correspondence regarding plaintiff’s claim with the Department because none are evidence of written claim made by plaintiff directly to his employer. We place no weight on the two letters from plaintiff’s attorney to defendant’s attorney in February and May 1988 since both were sent after the lawsuit was filed. We conclude that plaintiff failed to supply adequate evidence of a written demand to defendant which specified an amount of wages that he claimed was due and owing, which was sent at least three days prior to filing suit. We therefore agree with the trial court’s denial of plaintiff’s request for statutory attorney fees.

In so holding, we choose not to follow Schackleton v. Federal Signal Corp. (1989), 196 Ill. App. 3d 437, where the Appellate Court, First District, held that an employee’s filing of a claim with the Illinois Department of Labor at least three days prior to filing suit sufficiently complied with the notice requirement of the Attorneys Fees in Wage Actions Act (Ill. Rev. Stat. 1987, ch. 13, par. 13). (Schackleton, 196 Ill. App. 3d at 447.) The Schackleton court reasoned that since the employer subsequently received notice from the Department, “[plaintiff’s compliance with the statutory procedures for collection of wages, in effect, gave notice and demand of the wages due him.” (Schackleton, 196 Ill. App. 3d at 447.) We believe a better interpretation of the Attorneys Fees in Wage Actions Act is that it requires the employee to make a written demand directly to the employer at least three days prior to filing suit for a sum not exceeding the amount found due and owing. We find no error in the trial court’s denial of plaintiff’s request for statutory attorney fees.

For the above reasons, the judgment of the circuit court of McHenry County is affirmed.

Affirmed.

McLAREN and DUNN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DOYLE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MANUEL RIVERA, Defendant-Appellant.
    Second District
    No. 2—91—0627
    Opinion filed August 14, 1992.

      Stephen C. Wilson, of Wilson, Camic & Colton, Ltd., of Aurora, for appellant.

      Gary V. Johnson, State’s Attorney, of Geneva, and Basil G. Greanias, of Decatur (William L. Browers and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Following a stipulated bench trial, defendant, Manuel Rivera, was convicted of the offense of the unlawful possession of 2.2 grams of a substance containing cocaine (Ill. Rev. Stat. 1989, ch. 56½, par. 1402(b)). The trial court sentenced defendant to a two-year term of probation and a $200 fine. Defendant appeals the trial court’s denial of his motion to quash his arrest and suppress the evidence, and he raises the following issues: (1) whether the entry of the police officers into the basement of defendant’s business was illegal; (2) whether defendant was arrested illegally when he was detained by the police; (3) whether defendant’s consent to the search of his person was involuntary; and (4) whether defendant was denied a fair hearing when the trial court considered matters outside the record in assessing the credibility of one of the testifying police officers.

Officer Renaud testified at the hearing on defendant’s motion to suppress evidence that on the evening of February 20, 1990, he and Detective Reichardt of the Aurora police department were conducting “routine tavern checks.” They were in plain clothes when they entered defendant’s bar, La Tropicana. The officers had information developed by the police that cocaine was stored in the basement of La Tropicana and that defendant was involved in the sale and distribution of cocaine. The officers did not have a warrant to search the premises or to arrest anyone there. La Tropicana was open, and there were a number of patrons at the bar.

Defendant testified through an interpreter. According to defendant’s version of the events of February 20, 1990, he was in the basement of the bar when the police arrived. The officers identified themselves as police officers and told defendant to put his hands up. Defendant denied that he gave the officers permission to search his person. Defendant testified that the basement was a private area and there was a sign on the premises indicating that the basement was private. The band was warming up in the basement prior to its performance, and Tom Wilkinson was also in the basement when the police arrived.

In contrast, Officer Renaud testified that defendant was standing at the end of the bar when the officers entered. According to Renaud, defendant looked at him when Renaud was five or six feet from him, ran four or five feet to the basement door, opened it and ran down the stairs. Renaud did not recall seeing a “private” sign next to the basement door. He had not had any prior encounters with defendant, and only knew what defendant looked like because he had seen a photograph of defendant.

The officers pursued defendant through the open door and down the stairs. Defendant ran to an office in the basement, pushed the door open, and yelled “police.” Renaud rushed into the office, and Wilkinson was leaning over a card table in the office. When Wilkinson saw the officers, he stuffed a “big bag” into his mouth. Wilkinson would not spit out the bag and denied that he swallowed anything. After two uniformed back-up officers arrived, Renaud twice asked defendant if the officers could search him. According to Re-naud and Officer Strom, defendant twice agreed. Renaud spoke to defendant in English, and defendant answered in English. The officers found a small packet of cocaine in defendant’s pocket.

Renaud testified that his reason for following defendant downstairs was not a fear for his own safety. Renaud “was startled when [defendant] turned suddenly and ran. [Renaud] thought something was up.” During questioning by the court, Renaud explained that defendant’s personality changed when he looked at Renaud and that he appeared frightened because Renaud was in the bar. Re-naud believed defendant ran because he was violating a narcotic law by being in possession of a drug. Renaud, who had been a police officer for 18 years, testified that he believed the defendant “was frightened because I was there, and to me, what I represented in that tavern, from going in there so many times, was a narcotics officer, not a patron, I wasn’t there to buy a drink.”

Following arguments by counsel, the court explained its reasoning. The court stated in relevant part:

“I don’t see that the officer had a real basis to follow [defendant] down the stairs, but the door being opened, he has no problem, he can follow him down the stairs.
When he gets down to the bottom of the stairs, then it becomes an issue of what he can do once he gets down there, because right now we don’t know [defendants doing anything wrong. It’s strictly speculation, guess, and conjecture.
He can be running down to tell the guys [‘]cut out a card game.[’] *** [W]e don’t know why he’s running.
*** At this point I don’t think there’s a basis to search the defendant.
However, at this point Officer Renaud, that [sic] I’ve seen testify many, many, many times in this court, testifies under oath that he asked [defendant] not once, but twice, can I search you.
Sounds strange to me some defendant would say okay when he has some stuff on him. But Officer Renaud said yes, he not only did it once, but he drew the attention of the other officers to what was going to be said, and he asked [defendant] a second time, and [defendant] said yes.”

The court concluded that defendant consented voluntarily to the search of his person. Defendant raised the suppression issues in a motion for a new trial, which the court denied.

The defendant bears the burden of proof on a motion to suppress evidence. (Ill. Rev. Stat. 1989, ch. 38, par. 114—12; People v. Janis (1990), 139 Ill. 2d 300, 308.) A trial court’s denial of a motion to suppress evidence should not be disturbed unless it is contrary to the manifest weight of the evidence. Janis, 139 Ill. 2d at 308.

Both the Federal Constitution and our State Constitution prohibit unreasonable searches and seizures. (U.S. Const., amend. IV; Ill. Const. 1970, art. I, §6.) This protection applies to commercial premises as well as private homes. (New York v. Burger (1987), 482 U.S. 691, 699, 96 L. Ed. 2d 601, 612, 107 S. Ct. 2636, 2642; Janis, 139 Ill. 2d at 309.) Although commercial premises do not enjoy the same degree of privacy as a residence (Burger, 482 U.S. at 700, 96 L. Ed. 2d at 612, 107 S. Ct. at 2642), the determination of whether commercial premises, or some part thereof, are entitled to protection depends on the owner or occupier’s subjective expectation of privacy in the premises (Janis, 139 Ill. 2d at 313-14). The analysis turns upon whether the area entered by the police is open to the public, since “[a] warrant is necessary only to search those areas of commercial premises from which the public has been excluded.” (139 Ill. 2d at 317.) The entry into a private area is considered a “search.” 139 Ill. 2d at 313.

Notwithstanding the warrant requirement enunciated in Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, the Supreme Court has held that a suspect may not defeat an arrest which was set in motion in a public place by escaping to a private place. (United States v. Santana (1976), 427 U.S. 38, 43, 49 L. Ed. 2d 300, 306, 96 S. Ct. 2406, 2410.) In Santana, the police had probable cause to arrest an individual and drove to her house to do so. Upon arriving there, the police observed the person standing directly in the doorway of the house. (Santana, 427 U.S. at 40 n.l, 49 L. Ed. 2d at 304 n.l, 96 S. Ct. at 2408 n.l.) The police identified themselves, and as they approached, Santana retreated into her house. The officers followed her in, catching her in the vestibule. Santana, 427 U.S. at 40, 49 L. Ed. 2d at 304, 96 S. Ct. at 2408.

The Court determined that Santana was in a public place as she stood in the doorway and was subject to a warrantless arrest at that point. More importantly, the Court concluded that the police were not required to refrain from entering the home and arresting her without a warrant. The Court pointed out that “hot pursuit,” which justified the warrantless entry in that case, meant “some sort of a chase” but did not require an extended pursuit through the public streets. Santana, 427 U.S. at 43, 49 L. Ed. 2d at 305, 96 S. Ct. at 2410.

We recognize that Santana addresses the question of whether a suspect may thwart police efforts in effectuating a warrantless arrest in a public place by hastening to a private place which would otherwise be protected against a search without a warrant. Thus, Santana does not directly resolve the precise issue in this case, and we find no Illinois case which directly addresses the question of whether a suspect may, by entering a private location, prevent the police from conducting a Terry stop. We find guidance, however, in decisions from other jurisdictions that have addressed this question.

In Edwards v. United States (D.C. App. 1976), 364 A.2d 1209, the police had reasonable suspicion to stop two suspects on a public street. When an officer rolled down his window and advised the suspects of his police status and that he wanted to talk to them, they “took off running.” (Edwards, 364 A.2d at 1211.) The suspects ran up a flight of stairs and entered an apartment. The officer, who was directly behind them, followed the suspects in, seized certain property they were carrying and transported them to the station. They were later released without being arrested. Edwards, 364 A.2d at 1212.

Relying on Santana, the Edwards court concluded that it was reasonable for the police to have pursued the suspects into the apartment to effectuate the intended Terry stop that the officers originally initiated on the street. (Edwards, 364 A.2d at 1214.) In so holding, the court interpreted the essence of Santana to be that, when a suspect is in a public place and valid police action is commenced therein, the suspect cannot thwart that police action by fleeing into a private place. (Edwards, 364 A.2d at 1214.) While we recognize that upon an en banc rehearing the police conduct in Edwards was upheld on the ground that the police had probable cause to arrest (see Edwards v. United States (D.C. App. 1977), 379 A.2d 976), we are persuaded by the analysis in the original opinion which does not appear to have been expressly repudiated on rehearing. See 3 W. LaFave, Search & Seizure §9.2(d), at 369 (1987) (commenting upon the logic of the original Edwards opinion).

In United States v. Pace (7th Cir. 1990), 898 F.2d 1218, the police had reasonable suspicion that defendant was involved in an effort to assassinate a reputed mob figure. The police were trailing defendant while he drove the mobster’s car. As he drove into a condominium complex, the defendant apparently spotted the officers, sped up and made several turns. (Pace, 898 F.2d at 1224.) The officers considered the defendant’s driving maneuvers to be an attempt to elude them. The defendant opened an electronic garage door and entered the garage. One of the officers followed in his car and stopped the defendant.

Assuming that the garage was part of the curtilage of the condominium, the court concluded that the police did not violate the fourth amendment by entering the garage to detain the defendant. (Pace, 898 F.2d at 1228-29.) Noting that the touchstone of a Terry stop is the general reasonableness requirement of the fourth amendment, the court concluded that the entry into the garage, under the circumstances, was reasonable. In so holding, the court balanced the need of the police to investigate a threat to the mobster’s life against the brief detention of the defendant to allay the police suspicions. Pace, 898 F.2d at 1229.

Within the context of a civil rights action filed by a Terry stop detainee, a United States District Court has ruled upon the issue of officers effecting a detention after the detainee had entered his home. In Harbin v. City of Alexandria (E.D. Va. 1989), 712 F. Supp. 67, officers were following a pedestrian suspected of carrying a firearm. When the suspect stepped onto the front porch of his home the officers were 20 to 40 feet behind him. As the suspect crossed his threshold and entered his living room, one of the officers called through the open front door and ordered him to stop. The suspect turned around and put his hands in the air and then returned to the porch, where he was frisked. Citing Santana and the original Edwards opinion, the district court held that the stop occurred when the officer called out to the suspect through the open door and the suspect turned around. (Harbin, 712 F. Supp. at 71-72.) The court concluded that the fourth amendment does not require that officers cease efforts to effect an otherwise valid Terry stop merely because a suspect attempts to thwart their efforts by running into his dwelling. Harbin, 712 F. Supp. at 72.

Our review of the foregoing authorities leads us to conclude that the police, in certain limited circumstances, may be authorized to make a warrantless entry into a private premises for the purpose of effectuating a Terry stop provided the police have a lawful basis to stop a suspect in a public place and the suspect reacts by suddenly fleeing to a private sanctuary, thereby thwarting any opportunity to conduct the detention at a public location.

Such a warrantless entry must be premised, of course, upon a reasonable suspicion to stop the defendant. In Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, the Supreme Court recognized a limited exception to the probable cause requirement which allows a police officer under appropriate circumstances, and in an appropriate manner, to effect a brief detention of a person for investigation purposes, and, if necessary for safety, to conduct a limited protective search of that person for concealed weapons. Specific and articulable facts, and not a mere hunch, must exist to justify a Terry stop and frisk for a weapon. (Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883.) These principles have been codified in our Code of Criminal Procedure of 1963. (See Ill. Rev. Stat. 1989, ch. 38, par. 107—14; People v. Long (1983), 99 Ill. 2d 219, 228.) Section 107—14 provides that a peace officer “may stop any person in a public place *** when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense.” (Ill. Rev. Stat. 1989, ch. 38, par. 107—14.) Thus, under the circumstances of the present case, we must determine whether the police officers had developed reasonable suspicion to stop defendant while he was in a public place.

As a threshold matter, it is noted that the police officers were in a tavern apparently open to the public. Officer Renaud testified that the tavern was open and there were a number of patrons at the bar. Defendant does not suggest otherwise, and we necessarily conclude that the tavern was a public place.

Officer Renaud testified that he and Detective Reichardt were in plain clothes when they entered defendant’s tavern. Although Renaud had not previously seen defendant, he had gone into defendant’s tavern many times in the capacity of a narcotics officer. The officers had information developed by the police that cocaine was stored in the basement and that defendant was involved in cocaine trafficking. According to Renaud, defendant was standing at the bar when they entered. When Renaud was five or six feet from defendant, defendant looked at him, ran four or five feet to the basement door, opened it and ran down the stairs. According to Renaud, defendant’s personality changed upon his looking at Renaud, and defendant appeared frightened because of Renaud’s presence. When defendant reached the basement office area he yelled “police.” Although defendant testified to a different version, it is apparent from the trial court’s ruling that it accepted Renaud’s description of the events. There appears to be no basis to reject Renaud’s testimony as clearly unreasonable, and, therefore, we need only determine whether, as a matter of law, his testimony satisfies the requirements for a valid Terry stop. See People v. Clark (1982), 92 Ill. 2d 96, 99.

We conclude under the circumstances Renaud had a reasonable basis to stop defendant for investigatory purposes. Sudden flight from the police may, under the appropriate circumstances, provide reasonable suspicion to stop the fleeing individual pursuant to Terry. (See People v. Holdman (1978), 73 Ill. 2d 213, 221; Village of Gurnee v. Gross (1988), 174 Ill. App. 3d 66, 70-71; People v. Tribett (1981), 98 Ill. App. 3d 663, 672; People v. Montgomery (1977), 53 Ill. App. 3d 298, 302.) Moreover, the Supreme Court has stated that “deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea.” (Sibron v. New York (1968), 392 U.S. 40, 66, 20 L. Ed. 2d 917, 937, 88 S. Ct. 1889, 1904.) Here, defendant looked at Renaud and ran four or five feet to a basement door. This, combined with the information known to the officers before entering the tavern, provided Renaud the reasonable suspicion necessary to stop defendant to investigate his conduct in running to the door at the approach of the officers.

In reaching this conclusion we have focused only upon those facts apparent to Renaud prior to defendant entering the stairs leading to the basement. It is unnecessary to reach the issue of whether defendant’s conduct in entering the basement stairs or his actions after entering could reasonably be relied upon by Renaud as a basis for stopping defendant.

The next question is whether it was reasonable, in light of the principle discussed earlier, for Renaud to follow defendant into the basement area to effectuate the stop. As discussed, Renaud had the requisite reasonable suspicion to stop defendant as he ran to the basement door. Such a stop was rendered virtually impossible, however, because defendant was only four or five feet from the door and Renaud was five or six feet from defendant. Defendant’s apparent flight threatened to defeat any effort by Renaud to stop him for investigatory purposes.

Furthermore, defendant was suspected of dealing cocaine, was present in a place where cocaine was believed to be located, and was running to a doorway as a police officer approached. These peculiar circumstances are compelling reasons tending to justify immediate pursuit by the police. Law enforcement officers face a potentially dangerous and volatile situation when they confront suspected drug traffickers. (Cf. People v. Condon (1990), 195 Ill. App. 3d 815, 823-24, aff’d (1992), 148 Ill. 2d 96 (officers who execute warrants on suspected drug dealers face potentially dangerous and volatile situations).) Such a situation as that present in this case called for immediate action by Renaud to ascertain the intent and purpose of defendant in running to a door upon the approach of the police.

Additionally, it is significant to note the relative continuity of defendant’s response to the police presence and the corresponding reaction of Renaud to defendant’s flight. Renaud’s entry into the stairwell and basement was an integral part of a course of action initiated by Renaud’s approaching defendant, continued by defendant’s flight and Renaud’s chase, and ended with the detention of defendant in the basement office. The entire course of Renaud’s actions, including his immediate pursuit of defendant into the basement area, was a reasonable response to the rapidly unfolding situation.

Viewing in their totality the unique circumstances of this case, we conclude that Officer Renaud’s actions in pursuing defendant into the stairwell and basement and detaining him in the office for investigatory purposes was a reasonable intrusion which did not offend the fourth amendment. In our view, Terry must be read as giving a police officer not only the right to stop a suspect under carefully defined circumstances but also the power reasonably necessary to implement that right.

Defendant’s next contention is that his consent to search was not voluntary because it was the product of the unlawful entry into the basement and seizure of his person. Defendant’s initial argument on this point must be rejected in view of our determination that he was not unlawfully detained in the basement office. Furthermore, while defendant suggests, without citation of authority, that a “seizure tantamount to an arrest occurred,” he has offered no argument as to why Renaud’s actions in seizing him in the basement rose to the level of an arrest. Points not argued and supported by citation of authority are waived. 134 Ill. 2d R. 341(e)(7).

Defendant makes the further argument, however, that his consent was involuntary notwithstanding the legality of the police conduct in entering the basement and seizing him because they pursued him into the basement and compelled him to raise his hands and because he spoke broken English. A trial court’s determination of the voluntariness of a consent will not be disturbed on review unless it is clearly unreasonable. (People v. Casazza (1991), 144 Ill. 2d 414, 417-18.) Whether a consent is voluntary depends on the totality of the circumstances. (Casazza, 144 Ill. 2d at 417.) Consent is given voluntarily when it is not the product of implied or actual coercion or duress, it is specific and unequivocal and it is given freely and intelligently. People v. Purchase (1991), 214 Ill. App. 3d 152, 155.

Here, defendant asserts that his consent was the product of duress. He does not urge any other basis for his claim that his consent was involuntary. The fact that the police chased defendant and compelled him to raise his hands is insufficient to demonstrate that the trial court reached a clearly unreasonable conclusion that the consent was voluntary and not the product of duress. The additional fact that defendant spoke broken English, a fact more relevant to the question of whether the consent was knowing, does not compel a different conclusion.

Defendant’s final contention is that he was denied a fair hearing because the trial judge considered matters outside the record in assessing the arresting officer’s credibility. Specifically, defendant argues that the trial judge’s comment that he had seen Officer Re-naud “testify many, many, many times in this court” demonstrates his improper consideration of information outside the record on the issue of Renaud’s credibility in this case.

In a bench trial it is presumed that the judge has considered only competent evidence, and such presumption may only be rebutted where the record affirmatively demonstrates the contrary. (People v. Gilbert (1977), 68 Ill. 2d 252, 258-59; see People v. Buchanan (1991), 211 Ill. App. 3d 305, 322.) Here, the record does not affirmatively demonstrate that the trial court considered a matter outside the record as bearing on Renaud’s credibility. The record merely indicates that the trial judge commented that he had seen Officer Renaud testify in the past. The record is silent as to what significance, if any, the court gave to Renaud’s past testimony or whether the trial court even considered it in assessing credibility. Implicit in defendant's argument is the suggestion that the court considered Renaud to be credible in this case based on his prior testimony. Considering the ambiguity of the trial court’s comment, it is also possible that it considered Renaud to have been less credible in this case based upon a dubious record of past performance as a witness. The record fails to demonstrate the court’s consideration of matters outside the record which would be sufficient to rebut the presumption of judicial propriety.

For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.

Affirmed.

INGLIS, P.J., and DUNN, J., concur.


author: JUSTICE BOWMAN

text:
    IVAN H. TEPPER, Plaintiff-Appellant, v. THE COUNTY OF LAKE et al., Defendants-Appellees.
    Second District
    No. 2—91—0968
    Opinion filed August 13, 1992.

      Ivan H. Tepper, of Waukegan, appellant pro se.

    Michael J. Waller, State’s Attorney, of Waukegan (Greg Jackson, Assistant State’s Attorney, of counsel), for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Ivan Tepper, appeals the judgment of the circuit court granted in favor of the defendants, the County of Lake, the Public Service Committee of the County of Lake, and the Lake County Public Works Department (hereinafter collectively referred to as the Waterworks). Plaintiff contends the trial court erred in granting a directed finding in plaintiff’s declaratory judgment action. Plaintiff contends that he presented a prima facie case that the Waterworks sent him a bill for water service based on an inaccurate water meter. At the heart of this cause is whether plaintiff proved he did not use 126,200 gallons of water which was registered on the meter.

Plaintiff and his wife, Wendy, were nine-year residents of Grays-lake in Lake County. They received a bill for 126,200 gallons of water for the period between June 13, 1989, through September 17, 1989, for which they were charged $365.98. Plaintiff attempted to resolve the dispute with the Waterworks, but when he did not pay, the Waterworks threatened to impose a lien upon the property. Plaintiff filed an action in the circuit court in which he sought a variety of relief, including an injunction, a declaratory judgment and administrative review, for which he named the individual members of the board as defendants.

At this point, we note that municipally owned utilities are expressly excluded from the Public Utilities Act (Act) (Ill. Rev. Stat. 1991, ch. 1112/3, par. 3—105(1)). Thus, the provisions of that Act and the regulations of the Illinois Commerce Commission (see, e.g., 83 Ill. Adm. Code §600.310 (1991) (standards of accuracy)) are of limited value in analyzing the principles involving the provision of utility service. (See Village of Niles v. City of Chicago (1990), 201 Ill. App. 3d 651, 663-64.) At most, the statutes evidence a legitimate public concern for the accuracy of all meters. (See Ill. Rev. Stat. 1991, ch. 1112/3, par. 8—301; Peoples Gas, Light & Coke Co. v. Illinois Commerce Comm’n (1988), 175 Ill. App. 3d 39, 49.) The Waterworks alleged that its actions were not subject to administrative review. The only cause of action litigated before the trial court involved the declaratory judgment action.

That this cause was litigated as a declaratory judgment is significant because plaintiff carried the burden of proof. Stripped of the details in procedure, this action involves a contract to supply water. (See Rosborough v. City of Moline (1961), 30 Ill. App. 2d 167, 179.) The consumer has a contractual obligation to pay for water provided by the municipality. (Brooks v. Village of Wilmette (1979), 72 Ill. App. 3d 753, 756.) The Waterworks alleges that it delivered goods, namely, 126,200 gallons of water, and wants its bill paid. Ordinarily, a seller of goods would commence a suit to collect an action for the price. The Waterworks, however, had the power to place a lien on the property and shut off the connection, and it declined to initiate the suit. It thus shifted the onus to plaintiff to file suit to resolve the lien. The plaintiff in a declaratory judgment action has the burden of proof. (Board of Trade v. Dow Jones & Co. (1982), 108 Ill. App. 3d 681, 686-88, aff'd (1983), 98 Ill. 2d 109, 116.) Similarly, if plaintiff had paid the bill under protest with a reservation of his rights (see Ill. Rev. Stat. 1989, ch. 26, par. 1—207 (Uniform Commercial Code provides for performance of contract under reservation of rights); see also Community Convalescent Center of Naperville, Inc. v. First Interstate Mortgage Co. (1989), 181 Ill. App. 3d 996, 999 (suit to recover payment made under protest)), plaintiff would still have to initiate suit to recover his overpayment.

In a contract action, the Waterworks would have to prove that it delivered 126,200 gallons of water. The Waterworks cannot produce any direct testimony of a witness with personal knowledge of the delivery of the water. Instead, it would produce the readings of the meter as evidence of the usage and a witness to vouch for the reliability of the meter pursuant to the scientific evidence or business records tests. (See 2 J. Wigmore, Evidence §§665, 665a (Chadbourn rev. ed. 1979); cf. People v. Orth (1988), 124 Ill. 2d 326, 340 (State must lay foundation for breath-alcohol meter).) In the declaratory judgment action, the consumer has the burden of presenting some evidence that the reading of the meter or the meter itself was not reliable.

Pursuant to the Waterworks’ motion, the trial court entered judgment in favor of defendants at the conclusion of plaintiff’s case. The trial court found that plaintiff failed his burden of proof and that the loss of water could have been explained by a stuck toilet over a three-week vacation or some other explanation.

Plaintiff contends that the trial court improperly granted defendants’ motion at this point of the trial. When considering such a motion in nonjury causes, the trial court must first consider whether a plaintiff has made a prima facie case by presenting some evidence concerning each element of the cause of action. If he has, the trial court then must consider all of the evidence, including any in favor of the defendant, determine the credibility of the witnesses, draw reasonable inferences from the testimony and weigh the evidence. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154-55.) This weighing process may result in the negation of some of the evidence necessary to prove the plaintiff’s prima facie case, in which event the trial court must enter judgment in the defendant’s favor. (81 Ill. 2d at 155.) A reviewing court will not reverse the decision of the trial court to grant a directed finding unless it is against the manifest weight of the evidence. Dyduch v. Crystal Green Corp. (1991), 221 Ill. App. 3d 474, 477.

Before we analyze the evidence presented in plaintiff’s cause, we find it helpful to view the bare numbers in perspective, which neither party attempts to do. Plaintiff contends that he was billed for 60,000 gallons more than his normal use. Over a 20-day period, such as when plaintiff was on vacation, this usage is equivalent to 3,000 gallons per day. This usage is approximately 120 gallons per hour for 24 hours, or a rate of 2 gallons per minute. Because toilets are common household utilities, a fact finder would be able to utilize his common sense and experience in the affairs of life to determine whether a flow rate of two gallons per minute would be reasonable when viewed in light of all of the other evidence presented.

Plaintiff attempted to prove his case by offering his and his wife’s testimony that they did not accept the water and did not use the water. While they could not testify to the amount of water they did use, they testified that they used less water than they normally did in a three-month summer. They supplied the facts which supported their opinion, including their personal recollections that they did not use the water. They offered the water bills for other quarters, which they summarized as follows:

“Old New
Dates Reading Reading Used Bill
[gallons] [$]
12/19/88-03/20/89 161,700 177,700 16,000 46.60
03/20/89-06/13/89 177,000 231,500 53,800 160.66
06/13/89-09/14/89 231,500 357,700 126,200 365.98
09/14/89-12/18/89 357,700 10,200 16,320 47.33
12/18/89-03/16/90 10,200 26,600 16,400 47.56
03/16/90-06/13/90 26,600 46,300 19,700 57.13
06/13/90-09/18/90 46,300 118,100 71,800 208.22
09/18/90-12/17/90 118,100 140,500 22,400 64.96
12/17/90-03/13/91 140,500 161,900 21,400 62.06”

They testified that their water usage was less than that of previous years because only in that year did they depart on a three-week vacation, during which they used no water. They also had personal knowledge that the weather was rainy in the summer of 1989; thus, they did not irrigate the garden or add water to the swimming pool. They supported their allegations with a certified copy of the daily precipitation records of the National Climatic Data Center for the months of June, July, August and September 1989. Plaintiff testified that he drained the pool in May, prior to the billing period, and found no leaks from his inspection done by noting the algae line and by looking for hydrostatic pressure. They testified plaintiff filled the pool in May. No one was present or had access to the house during the vacation. The house had two outdoor spigots which were not locked. They did not own a humidifier, water softener, icemaker or any other device which used water automatically. They observed or noticed no leaks or thefts of water. Wendy Tepper’s daughter, Morgan, also lived at the house, but she did not testify.

Plaintiff also offered the testimony of Michael Faircloth, who was the meter division supervisor of the Waterworks. After plaintiff complained about his bill, Faircloth went to plaintiff’s house on October 17, 1989. Faircloth inspected all of plaintiff’s fixtures and found no fixture to be leaking. He attached a flow finder to the meter and turned off each fixture in the house. The flow finder registered that no water was moving through the pipes; thus, there were no leaks in plaintiff’s house’s plumbing. Faircloth repeated these tests on October 24 and found no leaks. Faircloth removed the meter and replaced it with a new one. He took the old meter to the Waterworks office for testing.

While the trial court did not admit any evidence during plaintiff’s case to demonstrate that the meter was accurate, plaintiff introduced evidence which may have impeached the validity of the Waterworks’ accuracy tests, the results of which were not yet before the court. Faircloth testified that the Waterworks tested a water meter by attaching it to a bench testing device. The examiner turns a valve, runs water through the meter at three different rates, and calculates the accuracy of the meter at each rate. When Faircloth performed his test, he failed to record the volume running through the meter at each rate and recorded only his accuracy calculation. He did not compare the meter reading to the output in a volume container. He had no knowledge of whether the valve measuring the water flowing into the meter had itself been tested for accuracy. Plaintiff offered the testimony of Martin Galantha, who was the superintendent of the Waterworks. He testified that a valid test could not be performed on a meter without the use of a volume container. Galantha was not aware of whether the test valve had ever been tested for accuracy.

These facts do not attack the reliability of the meter, but merely impeach prospectively the results of the Waterworks’ accuracy tests. The results of the accuracy tests had not been admitted in plaintiff’s case. The readings of the meter were admitted into evidence, and the parties do not dispute that the meter registered 126,200 gallons for the period. The only dispute was whether the meter was registering accurately.

Plaintiff offered scant evidence to prove the meter was inaccurate other than the circumstantial evidence that he and his wife did not remember using the water. When Faircloth removed the meter from plaintiff’s house, he tagged it and gave it to William Bartlett at the Waterworks. Before he died, Bartlett performed a test on the meter and put it on a shelf. Faircloth’s accuracy test results differed slightly from Bartlett’s. The parties stipulated that Bartlett recorded the meter reading at the conclusion of his test on October 24, 1989, as 0363950, and that when Faircloth performed his test on June 3, 1991, the starting reading was 0364160. The meter thus showed a 210-gallon difference between the two tests. Faircloth testified that he had no knowledge of anyone using the meter in the year that the meter was in his office.

Faircloth also made statements concerning the accuracy of the class of meters generally. He stated that the meters do not overre-gister but sometimes underregister the amount of water. If the internal gears get out of line, they cease to record rather than over-record. However, Wendy Tepper testified that Faircloth told her that unexplained losses of water occurred all over Lake County. Faircloth admitted at trial that within Lake County the Waterworks experienced an average of six occurrences per year of unexplained water losses. Galantha testified that the Waterworks experienced three to five occurrences per year of disputed readings. The Waterworks maintained 15,000 accounts for water service.

Since the trial court directed a judgment in favor of the Waterworks, we must determine if plaintiff established a prima facie case or if some of the elements necessary to the prima facie case were negated by the weighing of the evidence. (Dyduch, 221 Ill. App. 3d at 477.) The standard for granting the motion is not, as the trial judge suggested, one of the preponderance of the evidence. At this stage in the proceedings there is no contrary evidence against which to weigh the plaintiff’s evidence. The plaintiff’s evidence is uncontradicted and must be accepted if credible. The function of the trial court at this stage is to determine whether the elements of the prima facie case were negated. See Kokinis, 81 Ill. 2d at 155.

To obtain guidance, we refer to a similar action where the evidentiary battle is between man and machine. (People v. Orth (1988), 124 Ill. 2d 326, 340-41.) In Orth, our supreme court determined that the defendant in a driving-under-the-influence-of-alcohol proceeding has the burden of proof in a civil proceeding to rescind the summary suspension of his driver’s license. The driver is the party seeking judicial relief. (124 Ill. 2d at 337.) The driver must present a prima facie case that the result of the breath-alcohol meter did not accurately register his alcohol concentration. (124 Ill. 2d at 340.) Once the motorist presents this evidence, the burden shifts to the State to move to admit the results of the meter into evidence and to lay the necessary foundation. (124 Ill. 2d at 340.) The supreme court left the trial court to determine whether the prima facie case was established. (124 Ill. 2d at 341.) Where the motorist argues that the meter results were unreliable, his evidence may consist of any circumstance which tends to cast doubt on the meter’s accuracy and may include credible testimony by the motorist that he was not in fact under the influence of alcohol. Only if the trial court finds such testimony credible will the burden shift to the State to lay a proper foundation for the admission of the test results. 124 Ill. 2d at 341.

Orth is analogous because the human party bears the burden of proof by a preponderance of evidence in a civil proceeding, has to prove a negative, and must disprove the reliability of a machine not yet in evidence. While a water meter is not as prone to inaccurate calculations as a breath-alcohol meter (see Orth, 124 Ill. 2d at 336), the foundational requirements of introducing a water meter will not be as stringent as those of the breath-alcohol meter (see Orth, 124 Ill. 2d at 340).

In the cause before the court, plaintiff had to prove a negative. He had to prove that he did not take the water. He has presented some circumstantial evidence to establish a prima facie case. Under Orth, an informal opinion, if credible, showing a contrary result of the meter reading is enough to cast the meter reading into doubt. He testified that he did not use an unusual amount of water. The meter reading was not merely 10% or 20% in excess of his normal bill, but 200% or 300% above any amount he had ever taken. He presented some evidence that he had eliminated other possible explanations. His testimony that he did not use the water for the garden or the pool was supported by objective records. The trial court specifically stated that plaintiff’s and his wife’s testimony was credible. Thus, there was some credible evidence which passed the evidentiary threshold and which cast the accuracy of the meter into doubt. The burden thus shifted to the Waterworks to lay the foundation and to introduce its evidence of the accuracy of the meter. Thus, the trial court erred by entering judgment in favor of the defendants at the conclusion of plaintiff’s case.

Pursuant to Supreme Court Rule 366(b)(3)(iii) (134 Ill. 2d R. 366(b)(3)(iii)), the cause must be remanded to proceed as though the motion had been denied by the trial court or waived.

For the above reasons, the order of the circuit court of Lake County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

WOODWARD and DOYLE, JJ., concur.