author: JUSTICE COCCIA

text:
    RUFUS FOREMAN, JR., a Minor, by his Guardian and Next Friend, Charlesia Heard, et al., Plaintiffs-Appellants, v. CONSOLIDATED RAIL CORPORATION et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—89—1222
    Opinion filed May 28, 1991.

      Levy, Leopold & Associates, P.C., of Chicago (David A. Novoselsky and Tammy A. Koester, of counsel), for appellants.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Michelle A. Hutchinson, Assistant Corporation Counsel, of counsel), for appellee City of Chicago.
   JUSTICE COCCIA

delivered the opinion of the court:

Plaintiff Rufus Foreman, Jr., a minor, by his guardian Charlesia Heard, and plaintiff Charlesia Heard appeal from a trial court order dismissing two counts of their complaint directed at defendant City of Chicago, pursuant to section 2— 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—619). The court entered a finding making this a final order under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). On appeal, plaintiffs contend that the complaint states a valid cause of action for negligence based on the city’s failure to fence its property which was adjacent to a railroad track, where the minor plaintiff was injured when he tried to board a moving freight train. Counts directed against defendant Consolidated Rail Corporation remain pending in the trial court.

The complaint alleges that on July 13, 1985, the minor plaintiff, then 11 years old, crossed property owned by the City of Chicago, and entered the railroad property where he tried to climb onto a moving freight train. He fell and was injured, requiring the amputation of his left foot and three toes of his right foot.

Count III of the complaint alleges that the city owned property adjacent to the railroad tracks and that it should have known that children crossed the property to get to the tracks as evidenced by well-worn bicycle and/or foot paths across the city’s property leading to the railroad tracks. The complaint alleged that the city had a duty to exercise due care to prevent children from crossing its property; that the city was negligent for failing to keep children from crossing its property; and that the city was negligent for failing to fence its property.

Count VIII of the complaint alleges that plaintiff Heard, the minor’s sister, has incurred expenses as a result of the minor’s injuries.

The city filed a section 2—619 motion to dismiss (Ill. Rev. Stat. 1989, ch. 110, par. 2—619) counts III and VIII, raising as affirmative matter statutory immunities. (Ill. Rev. Stat. 1989, ch. 85, par. 1—101 et seq.) The city argued that under both the Tort Immunity Act and common law it had no duty to erect public improvements such as fences.

On April 6, 1989, the trial court granted the city’s motion to dismiss after finding that no duty existed to affirmatively put up a fence rather than to maintain it. The court stated that questions “of duty are not always a matter of foreseeability. *** [V]ery often and possibly most often it’s [a] question!] of public policy.” The court found a heavy burden would be imposed on municipalities if required to put up fences where their properties bordered a railroad “even in the event that they knew or should have known about children going up upon property that leads onto railroad tracks.”

Under section 2—619 of the Code of Civil Procedure, the court may dismiss an action for failure to state a cause of action and the movant may raise affirmative matter which would avoid the legal effect of or defeat the claim. (Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a)(9).) For purposes of a section 2—619 motion, all well-pleaded facts and reasonable inferences therefrom are taken as true. (Kirby v. Jarrett (1989), 190 Ill. App. 3d 8, 545 N.E.2d 965.) Conclusions of law or fact unsupported by allegations of specific facts upon which such conclusions rest may not be admitted. (Meyer v. Murray (1979), 70 Ill. App. 3d 106, 387 N.E.2d 878.) Here, the parties did not submit affidavits or other evidence and the case was decided on the pleadings.

Common law negligence consists of a duty owed by defendant to plaintiff, a breach of that duty, and an injury proximately caused by the breach. (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 456 N.E.2d 116.) Plaintiff’s complaint must allege facts from which the law will raise a duty, and whether a legal duty exists is first a question of law to be determined by the court. (Widlowski v. Durkee Foods (1990), 138 Ill. 2d 369, 562 N.E.2d 967.) Whether a duty exists involves a consideration of foreseeability of possible harm; legal and social policies; the magnitude of the burden of guarding against the injury; and the consequence of placing the burden on defendant. (Widlowski v. Durkee Foods, 138 Ill. 2d 369, 562 N.E.2d 967.) The weight accorded each factor depends upon the circumstances of each case. Widlowski v. Durkee Foods, 138 Ill. 2d 369, 562 N.E.2d 967.

Before a duty will be imposed on a party who owns or possesses certain land, it must be shown that the party knows or should know that children frequent the premises and that the cause of the child’s injury was a dangerous condition on the premises. (Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 564 N.E.2d 778; Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177; Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023; Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836; see also Restatement (Second) of Torts, §339 (1965).) Absent these two requirements, the harm to the child will not be deemed sufficiently foreseeable such that the law will find a duty to remedy the unsafe condition. Logan v. Old Enterprise Farms, Ltd., 139 Ill. 2d 229, 564 N.E.2d 778.

Under Hlinois law, municipalities have always had a duty to exercise ordinary care to maintain their property in a reasonably safe condition. Curtis v. County of Cook, 98 Ill. 2d 158, 456 N.E.2d 116; Chicago v. O'Brennan (1872), 65 Ill. 160.

The complaint here alleges that at the time of the accident:

“[The City’s property] was located is [sic] approximately 225 [sic] South of the South edge of 94th Street, 279 feet East of the East curb of South Woodlawn and 13 feet West of the West curb of South Avalon, and now [sic] a small hill.
[M]inors crossed Defendant’s property and played upon the moving trains and railroad tracks located adjacent to Defendant’s property near the intersection of 94th and Avalon in Chicago, Illinois.
* * *
That on July 13, 1985, and for a long time prior thereto there existed well worn bicycle and/or foot paths across their property leading upon the railroad tracks and the Defendant, by its agents and employees, knew or reasonably should have known that minors crossed its property to play upon the moving trains and railroad tracks located adjacent to Defendant’s property near the intersection of 94th and Avalon in Chicago, Illinois and that said minors did not appreciate the inherently dangerous condition created by the moving trains.
That on July 13, 1985, the plaintiff, Rufus Foreman, Jr., crossed Defendant’s property at the top of the above-mentioned small hill in the area approximately in direct line with the West sidewalk of South Avalon in Chicago, Illinois.”

There is only the barest of allegations that the city knew, or should have known, of a condition on its land which was dangerous to minors. The single mention of a path, however, is insufficient for us to find a duty.

Plaintiff relies heavily on La Salle National Bank v. City of Chicago (1985), 132 Ill. App. 3d 607, 478 N.E.2d 417, where a nine-year-old boy climbed through a hole in a fence constructed and maintained by the city, and entered the adjacent property owned by the railroad, where he tried to board a moving freight train and was injured, requiring the amputation of one leg and the other foot. The court affirmed a jury verdict for plaintiff and found the city had a duty to repair the hole in the fence, which it had agreed to maintain. That case differs significantly from the present case. In La Salle, we specifically noted we were relying on the city’s contractual duty to erect and maintain the fence. In addition, it was significant that a fence already existed, that the city had been told several times it was in need of repair, and that the land consisted of a playground.

The court in La Salle National Bank relied upon Leone v. City of Utica (1979), 414 N.Y.S.2d 412, 66 A.D.2d 463, aff’d (1980), 426 N.Y.S.2d 980, 49 N.Y.2d 811, 403 N.E.2d 964, where an eight-year-old was injured while trying to board a moving freight train. The court in Leone affirmed a judgment for plaintiff against the city for failure to erect a fence between its property and the railroad. In contrast to the present case, however, the city property in Leone consisted of a playground and park located adjacent to the railroad property. Here, there is no such allegation.

Plaintiff also points to Pellegrini v. Chicago, Rock Island & Pacific R.R. Co. (1980), 91 Ill. App. 3d 1091, 415 N.E.2d 615, where the court reversed summary judgment entered against the defendant railroad and in favor of the 13-year-old plaintiff injured while trying to board a moving train, where the railroad had failed to erect a fence. That case, however, did not involve a public entity or an adjacent landowner. Moreover, the danger was on defendant’s property, not on adjacent property.

Plaintiff also relies on Maskaliunas v. Chicago & Western Indiana R.R. Co. (1925), 318 Ill. 142, 149 N.E. 23, where the court affirmed judgment for plaintiff against the defendant railroad for injuries sustained by an eight-year-old who was trying to board a moving train. The court held that the question of whether the failure to fence the property was a proximate cause of plaintiff’s injury was an issue for the jury. In Maskaliunas, however, an ordinance required the city to fence the property adjacent to the railroad. Moreover, in that case the unfenced property belonging to defendant consisted of a public playground.

A reading of cases similar to the present case indicates the relevant factors to be considered in determining whether a duty exists on behalf of the adjacent landowner to protect minors from a danger on the adjoining land. For example, the court might look at physical layout and intended use of the public property; any existing physical structures on the public property, such as lighting, abandoned cars, boarded-up buildings or other artificial conditions; the absence of a fence; the existence of a fence in a state of great disrepair; the location of the property in proximity to the railroad tracks and in relation to populated areas, particularly areas which children are known to frequent; the accessibility of the public property itself, and the accessibility of the railroad grounds from the public property; the existence of a worn path between the public property and the railroad property, and any danger upon that path, such as a steep or slippery incline; prior incidents of trespassing in the area where the injury occurred; prior accidents which might give notice of the dangerous condition; warning signs posted on the public land; the age of the child, in view of the commonly known tendency of children to play near railroad tracks, and his prior experience with railroads; and other factors which tend to establish any of the elements of duty discussed above. See generally Annot., Duty of Landowner to Erect Fence or Other Device to Deter Trespassing Children from Entering Third Person’s Property on which Dangerous Condition Exists, 39 A.L.R.2d 1452 (1955 & Supp. 1990).

Despite plaintiff’s filing of an original and five amended complaints, he has failed to make even the barest factual allegations regarding these relevant factors. The burden rests with plaintiffs to allege sufficient facts to describe a dangerous condition on defendant’s land. (See Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 383 N.E.2d 177.) There is not enough in the complaint here for the court to conclude the condition of defendant’s property exposed children to risks greater than those confronted in their daily lives. (See Corcoran, 73 Ill. 2d 316, 383 N.E.2d 177.) In regard to the city’s land, the pleadings here allege nothing more than the existence of a path. Alone, the path and the absence of a fence do not create a danger to children.

We also note our supreme court’s recent opinion in Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 566 N.E.2d 1365, finding the trial court properly dismissed plaintiff’s complaint pursuant to a section 2—615 motion, because there is no duty on a landowner to maintain his property in such a manner that his driveway is visible to travelers on an adjacent roadway. In that case, a bicyclist was injured when struck by a truck exiting defendant’s driveway. Plaintiff alleged the foliage on defendant’s property protected him from seeing the truck. The court stated:

“In this case, plaintiff is seeking to impose a duty on defendant to maintain his property so as to guard against an injury occurring off defendant’s land. Yet, the condition on defendant’s land posed no danger to plaintiff, absent the driver’s violating his own standard of care. Thus imposition of a duty here would require defendant to ‘guard against the negligence of others.’ This is a considerably higher burden than guarding against dangers created solely by conditions on his land. Therefore, we find defendant did not have a duty to maintain his property in such a way that plaintiff could see his driveway [from the adjacent roadway].” (Ziemba, 142 Ill. 2d at 52-53.)

Similarly, in the present case the dangerous condition existed, and the injury occurred, off of the city’s property. The condition of the city’s land posed no danger to plaintiff, absent the railroad tracks on the adjacent land. The railroad, if anyone, was in the best position to prevent the injury. See Ziemba, 142 Ill. 2d at 53.

We agree with the city’s reasoning that “there was no defective structure or dangerous agency on the City’s property nor did the City create one on the railroad’s property.” The fact that the actual injury occurred on property adjacent to defendant’s land does not automatically bar recovery. (See La Salle National Bank, 132 Ill. App. 3d 607, 478 N.E.2d 417.) If a public entity fails to properly maintain its own property so as to prevent access by children to the adjacent property, it can be liable for having created a hazardous condition on the adjacent property. (Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 383 N.E.2d 177; La Salle National Bank v. City of Chicago, 132 Ill. App. 3d 607, 478 N.E.2d 417; Predny v. Village of Park Forest (1988), 164 Ill. App. 3d 688, 518 N.E.2d 1243, citing Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 404 N.E.2d 213.) Here, however, there is no allegation of the city’s having created a hazardous condition on the railroad’s property. See La Salle National Bank v. City of Chicago, 132 Ill. App. 3d at 612-13, citing Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 383 N.E.2d 177, and Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 622-23, 126 N.E.2d 836.

Furthermore, we agree with the trial court that to impose a duty on a municipality to erect fences on all land adjacent to railroad property would be intolerable under the facts which plaintiff has placed before us here. See Ellison v. Commonwealth Edison Co. (1953), 351 Ill. App. 58, 113 N.E.2d 471 (court finds it would be an intolerable burden on owners of land adjacent to water to build walls capable of keeping children away from water, noting that proximate cause of injury was water, not the dilapidated wall next to the water on the abutting landowner’s property).

We conclude that plaintiff’s injuries here were not objectively foreseeable. The complaint alleges insufficient facts to establish a legal duty. Thus, the court properly dismissed the two counts against the city.

Our holding is consistent with section 3—102(a) of the Tort Immunity Act, providing that a public entity has a duty to exercise ordinary care to maintain its property in a reasonably safe condition in certain circumstances. The public entity has

“the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom [it] intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proved that it [had] actual or constructive notice of the existence of such a condition ***.” (Ill. Rev. Stat. 1987, ch. 85, par. 3-102(a).)

(See also Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 523 N.E.2d 594; Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 435, 495 N.E.2d 1259 (common law duty of public entity is only to maintain its property in a safe condition).) A municipality is not liable for failing to initially undertake an improvement to a public way in order to prevent injury to travelers. (See, e.g., Ross v. Chicago (1988), 168 Ill. App. 3d 83, 522 N.E.2d 215; Charpentier v. City of Chicago (1986), 150 Ill. App. 3d 988, 502 N.E.2d 385.) Here, there are no allegations of an existing public improvement which the city was required to maintain. Moreover, there are no allegations indicating plaintiff was an “intended and permitted” user of the property.

Our holding is also consistent with the large majority of cases from other jurisdictions which hold that the adjacent landowners have no duty to fence the property located next to a railroad. See, e.g., Jones v. United States (4th Cir. 1957), 241 F.2d 26 (Maryland law) (judgment for defendant government housing project affirmed where two-year-old wanders onto adjacent railroad property; landlord has no duty to guard against dangerous conditions on adjoining property); Cousins v. Yaeger (E.D. Pa. 1975), 394 F. Supp. 595 (Pennsylvania law) (summary judgment for defendant adjacent landowner where no evidence shows eight-year-old plaintiff ever crossed defendant’s land to get to railroad tracks; but even if he did cross defendant’s land, there is no duty to erect a fence around land next to a railroad because danger is on adjacent land); Gardner v. Consolidated Rail Corp. (1990), 524 Pa. 445, 573 A.2d 1016 (no common law duty to either erect or repair fence adjacent to railroad property where 11-year-old and 7-year-old were injured; dangerous condition is on third party’s land and is not the city’s responsibility); McKinney v. Hartz & Restle Realtors Inc. (1987), 31 Ohio St. 3d 244, 510 N.E.2d 386 (no duty for adjacent landowner to fence property just because it is next to a railroad; court will not extend duty beyond territorial limits of defendant’s property; and moving train is obvious danger to four-year-old plaintiff); Dugan v. Pennsylvania R.R. Co. (1956), 387 Pa. 25, 127 A.2d 343, (jury verdict for 11-year-old plaintiff reversed; no duty to fence because danger obvious, and inordinate burden on railroad to use scores of employees to patrol or fence miles of track); Scarborough v. Lewis (1986), 359 Pa. Super. 57, 518 A.2d 563 (city has no duty to erect fence, and not liable for danger on adjacent railroad property; however, city liable for failure to maintain fence because it undertook duty when it erected fence); see also Corcoran v. City of San Mateo (1953), 122 Cal. App. 2d 355, 265 P.2d 102 (no duty to erect fence where dangerous condition, a ditch, is on abutting property).

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

Judgment affirmed.

HARTMAN and DiVITO, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERBERT LAWSON, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—2241
    Opinion filed May 30, 1991.
    Randolph N. Stone, Public Defender, of Chicago (Elyse Krug Miller, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Janet C. Mahoney, Special Assistant State’s Attorney, and Renee Goldfarb and Theodore Burtzos, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

In 1979, defendant Herbert Lawson was found guilty of murder and sentenced to 20 years’ imprisonment. On direct appeal, this court in an unpublished order rejected defendant’s claim that he should have been found guilty of involuntary manslaughter. Defendant then filed two petitions for post-conviction relief, the most recent of which is the subject of this appeal. The issue on appeal is whether the trial court erred in dismissing defendant’s most recent petition without conducting an evidentiary hearing.

A recitation of the procedural history of this case is necessary to an understanding and resolution of the issue. Following defendant’s unsuccessful direct appeal (see People v. Lawson (1980), 90 Ill. App. 3d 1199), he filed a post-conviction petition alleging ineffective assistance of counsel. Prior to a ruling on the petition, defendant filed a motion for substitution of judges. The trial court denied the motion and dismissed the petition without an evidentiary hearing. On appeal, this court, in an unpublished order, reversed that portion of the trial court’s order denying a substitution of judges and remanded the matter for further proceedings without addressing the merits of defendant’s petition. On remand, the cause was transferred to a judge other than the one who had presided at defendant’s trial, and appointed counsel filed an amended post-conviction petition alleging that defendant had been denied his right to effective assistance of counsel at his sentencing hearing. This allegation was based on trial counsel’s alleged misapprehension of the better sentencing option available to defendant which resulted from the trial court’s erroneous explanation of the sentencing options, which follows:

“He has a right to be sentenced under the old code or under the new code. Just so he realizes that. Basically, the difference between them is, I could sentence you to 14 years under the old code, but as I read the act, after July 1, 1977 you’d have to do ten, six. [Ujnder the new code it would be 20 years, in which he would do 10, and the main difference is the period of parole. Under the old code he’d have to do five years, under the new he’d only have to do three. We have discussed whether or not he will be sentenced under the old code or the new code, and as I stated before, under the new code I would give him 20 years flat, which means he’d serve one half of that time, unless you lose something because of your behavior. Under the old code I’d sentence him to 14, and as I read the act, [ajfter July 1, 1977, he’d have to do ten, six, a five-year period of parole. Under the new code it would only be three.
MR. ADA [defense counsel]: He will be sentenced under the new code, your Honor.”

The State filed a motion to dismiss this amended petition alleging that defendant failed to raise a constitutional question within the purview of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1983, ch. 38, par. 122—1 et seq.), and that the doctrines of res judicata and waiver were applicable given the affirmance on direct appeal. The trial court granted the State’s motion after determining that defendant had not set forth any basis for constitutional relief in his petition and that his allegation of incompetent trial counsel was unfounded.

Defendant appealed this order, claiming that the trial court erroneously dismissed his petition because it did state a constitutional claim of ineffective assistance of counsel. He based this claim on trial counsel’s alleged misapprehension of the sentencing laws in effect at the time of his conviction, particularly the manner in which compensatory and good-time credits would affect his ultimate release date. Defendant reasoned that as a result of trial counsel’s incompetence in this matter, he was severely prejudiced because he would be incarcerated for a longer period of time.

Before addressing the merits of defendant’s petition, in an unpublished order, we rejected the State’s waiver argument, finding that a strict application of the waiver rule would be inappropriate. (People v. Lawson (1988), 174 Ill. App. 3d 1155.) We affirmed the trial court’s dismissal of defendant’s petition without an evidentiary hearing, explaining that the trial court did not erroneously outline the potential periods of imprisonment, and defense counsel’s suggestion to elect the determinate sentencing scheme as opposed to the indeterminate scheme was not unreasonable or sufficient to support a claim of ineffective assistance of counsel. We added that defendant failed to show that his attorney’s representation fell below an objective standard of reasonableness where his claim was based on conjecture and hindsight.

Subsequently, defendant filed a second post-conviction petition for relief with an attached affidavit by his trial counsel. Defendant alleged that fundamental fairness required the trial court to relax the waiver rule because his first petition was defective where it was not accompanied by an affidavit. Defendant reiterated his prior allegations that he was denied effective assistance of counsel when his trial counsel advised him to elect a determinate rather than an indeterminate scheme. The trial court dismissed the petition, and defendant appeals.

Defendant argues that the trial court erred in refusing to relax the waiver rule under the doctrine of fundamental fairness. He reasons that the absence of his trial counsel’s affidavit with the first post-conviction petition denied him one complete opportunity to adequately present his claim, and rendered that petition fundamentally deficient. We disagree and adopt the State’s position that any further consideration of the issue of ineffective assistance of trial counsel during the sentencing hearing is barred by the doctrine of res judicata. A ruling on a post-conviction petition has res judicata effect with respect to all claims that were raised or could have been raised in the initial petition. (People v. Free (1988), 122 Ill. 2d 367, 376, 522 N.E.2d 1184; see Ill. Rev. Stat. 1987, ch. 38, par. 122—3.) Although this rule is not “an ironclad bar on multiple post-conviction petitions, *** in those cases in which the court has allowed the filing of successive post-conviction petitions, the proceedings on the original petitions were deficient in some fundamental way.” (People v. Free, 122 Ill. 2d at 376, 522 N.E.2d at 1188.) In the instant case, defendant suggests that his first post-conviction petition, which was a pro se petition, and the amended petition, which was prepared by appointed counsel, were fundamentally deficient because neither petition included an affidavit by his trial counsel.

We are not persuaded by this argument. In taking this position, we find guidance in the ruling that the mere fact that a post-conviction petition is pro se does not result in a denial of a defendant’s rights to have one complete opportunity to show a substantial denial of his constitutional rights so long as the defendant’s allegations are clearly communicated to the court. (People v. Foster (1989), 178 Ill. App. 3d 1009, 534 N.E.2d 160.) In the instant case, it is clear from the record that defendant’s first post-conviction petition, which was pro se, and his amended post-conviction petition prepared by counsel clearly communicated defendant’s claim of ineffective assistance. Defendant has had several opportunities to present his claim of ineffective assistance based on trial counsel’s alleged misunderstanding of sentencing laws in effect at the sentencing hearing. The issue raised was presented to the trial court, which dismissed defendant’s first post-conviction petition. This decision was appealed and the cause remanded on other grounds, after which appointed counsel prepared an amendment to the first petition, again presenting the same issue raised in defendant’s pro se petition. The petition was dismissed. The matter was further considered by this court on appeal, and the trial court’s decision to dismiss the amended petition affirmed. The issue was presented yet a third time in defendant’s second post-conviction petition, to which was attached the affidavit of defendant’s trial counsel. It is noteworthy that it is not apparent from the record that the statements set out in the affidavit are substantially or meaningfully different from the allegation presented in defendant’s prior petitions. The trial court again dismissed the petition. Given the record of this case, it is clear that, cumulatively, defendant has had one complete opportunity to show a substantial denial of his constitutional right to effective assistance of counsel. Accordingly, we conclude that further consideration of this issue is barred by the doctrine of res judicata.

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

Judgment affirmed.

JOHNSON and McMORROW, JJ., concur.


author: JUSTICE McNAMARA

text:
    CAROLYN STYPINSKI, Plaintiff-Appellant, v. FIRST CHICAGO BUILDING CORPORATION, Defendant-Appellee.
    First District (6th Division)
    Nos. 1—90—2111, 1—90—2343 cons.
    Opinion filed May 31, 1991.

      Driscoll & Driscoll, of Schaumburg (John M. Driscoll, of counsel), for appellant.
    French, Kezelis & Kominiarek, P.C., of Chicago (Michael C. Kominiarek and Russell R Veldenz, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Carolyn Stypinski, brought this personal injury action to recover damages as a result of a fall on the premises of defendant, First Chicago Building Corporation. Relying on plaintiff’s deposition, defendant filed a motion for summary judgment. Plaintiff filed a response, and after hearing argument, the trial court granted defendant’s motion for summary judgment. Plaintiff appeals.

The allegations in plaintiff’s complaint as to breach of duty were that defendant:

“(a) Carelessly and negligently failed to maintain the floor of the premises so as to avoid injury to the plaintiff on said premises.
(b) Carelessly and negligently maintained said premises so as to allow the floor to remain in an unsafe condition so as to endanger the well-being of plaintiff.
(c) Carelessly and negligently failed to warn the plaintiff and other members of the public of the hazardous condition of the premises.
(d) Carelessly and negligently failed to take precautions to make access over the floor safe for plaintiff and other members of the public.
(e) Carelessly and negligently allowed slush to remain on the floor.
(f) Carelessly and negligently otherwise failed to properly maintain the premises.”

The pertinent facts as garnered at the discovery deposition of plaintiff, the only witness to the fall, are as follows. On February 16, 1988, at approximately 5 p.m., plaintiff left work at 11 South La Salle Street to take a subway train home. The day was cold and snowy, and approximately two to three inches of snow had fallen. Plaintiff walked east on Monroe Street and took a short cut through defendant’s premises. Everyone was walking in her direction as she walked through the two sets of automatic doors into the plaza. Immediately after walking through the second door, she stepped on slush and snow. Her right foot went out from under her and she landed on her buttocks. It was the slush and snow tracked from the outside which caused her to fall. There was no ice, and the condition was slushy, not solid. The floor of defendant’s premises consisted of marble blocks. Defendant had carpeting on its premises, but there was no carpeting at the place of plaintiff’s fall; however, the absence of carpeting had nothing to do with her fall. As a result of the fall, plaintiff sustained a compound fracture of her right ankle and a crushing of bones in the ankle.

The sole issue on appeal is the propriety of summary judgment entered in favor of defendant.

In Illinois, in order to recover as a consequence of a fall on ice, snow or water, a plaintiff must establish that the accumulation was unnatural in origin and was created directly or indirectly by the landowner. (Bernard v. Sears, Roebuck & Co. (1988), 166 Ill. App. 3d 533, 519 N.E.2d 1160; Gilberg v. Toys "R" Us, Inc. (1984), 126 Ill. App. 3d 554, 467 N.E.2d 947.) In order to withstand a motion for summary judgment, a plaintiff must allege sufficient facts to permit a trier of fact to find that the defendant was responsible for an unnatural accumulation of water, ice or snow which caused the plaintiff’s injuries. (Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 407 N.E.2d 1031.) A landowner does not have a duty to remove the tracks left by customers who have walked through natural accumulations of snow, slush and water. (Bernard v. Sears, Roebuck & Co. (1988), 166 Ill. App. 3d 533, 519 N.E.2d 1160.) However, a landowner does have a duty and therefore may be liable when injuries occur as a result of an unnatural or artificial accumulation of snow and ice or a natural condition aggravated by the owner. Williams v. Alfred Koplin & Co. (1983), 114 Ill. App. 3d 482, 448 N.E.2d 1042.

In the present case, plaintiff repeatedly stated at her deposition that her fall resulted from stepping on slush. She also asserted that the slush and snow were tracked in from the outside, and that nothing other than the snow and slush caused her to fall. There are no facts alleged or demonstrated that would allow a trier of fact to find that the slush was anything but a natural accumulation. Thus defendant owed no duty to plaintiff to remove the slush or warn her of its presence. Defendant is not liable for plaintiff’s injuries.

Plaintiff concedes that normally there is no duty imposed on a landowner for natural accumulations of snow or slush. Instead, relying on Fanning v. Lemay (1966), 78 Ill. App. 2d 166, 222 N.E.2d 815, rev’d on other grounds (1967), 38 Ill. 2d 209, 230 N.E.2d 182, she argues that the floor surface was defective or was particularly slippery and dangerous when wet. In Fanning, plaintiff alleged and presented specific evidence that the materials used in the floor became especially slippery when wet. Plaintiff here stated that defendant’s floor consisted of marble blocks, but made no specific allegations nor presented any facts that the floor or any materials used in the floor were particularly slippery and dangerous when wet. Indeed plaintiff insisted that nothing other than the snow or slush caused her to fall. There was no genuine issue of material fact, and the trial court properly entered summary judgment in favor of defendant.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

EGAN and LaPORTA, JJ., concur.


author: JUSTICE O’CONNOR

text:
    MOBIL OIL CORPORATION, Plaintiff-Appellee, v. THE CITY OF ROLLING MEADOWS, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—3532
    Opinion filed May 13, 1991.

      Rose & Ross, Ltd., of Rolling Meadows (Donald M. Rose and Kathleen Ross, of counsel), for appellant.
    Sachnoff & Weaver, Ltd., of Chicago (Steven H. Cohen, Carole C. Cooke, and Joel M. Neuman, of counsel, for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Mobil Oil Corporation (Mobil) brought a declaratory judgment and injunction action against the City of Rolling Meadows (the City) because the City denied Mobil’s “special use” application which would have allowed Mobil to add 152 feet to Mobil’s snack shop (mini-mart), and to build and operate a car wash. Following a bench trial, the trial court declared the City’s ordinance void as it pertained to Mobil and ordered the City to issue a permit for Mobil’s special uses.

In 1986, Mobil purchased a parcel of property (the subject property) that was approximately 26,000 square feet at the southwest corner of Hicks Road and Euclid Avenue in the City. On the subject property, there was an existing service station that had one building containing two service bays, a snack shop and two gasoline pumping islands.

After purchasing the subject property, Mobil wanted to demolish the existing gas station and build a new self-serve gas station, a 552-square-foot mini-mart and a car wash. However, the subject property’s zoning ordinance considered gas stations a “special use.” Consequently, Mobil applied for a special use permit and requested the City to grant (i) a 12-foot rear yard, (ii) a side yard deviation from 15 feet to 3 feet to permit the car wash, (iii) a 15-foot front yard deviation, and (iv) a trash storage enclosure.

The City granted in part and denied in part Mobil’s special use application. The City granted a special use for the gas station, granted Mobil the right to construct a 400-square-foot mini-mart which was a 100-square-foot deviation from the 300 square feet allowed by zoning ordinance, deviations from the side and rear yard requirements, a deviation from the prohibition against front yard parking and permission for an enclosed storage area. The City, however, denied Mobil’s request for an additional 152 square feet for its mini-mart and denied the car wash.

Thereafter, Mobil filed a declaratory judgment and injunction action against the City, contending (1) that the City’s denial of an additional 125-square-foot deviation for its construction of mini-mart and (2) that the City’s denial of the permission for car wash was arbitrary and unreasonable. On October 19, 1989, the parties participated in a hearing with respect to Mobil’s action.

At the hearing, Dennis Huffaker, a Mobil field engineer, was called to testify on behalf of Mobil with respect to the mini-mart and the car wash. The City, however, objected, contending that it would be unfair for Huffaker to testify because Mobil only disclosed its intention to call Huffaker on October 11, 1989. In response, Mobil argued that it did not disclose Huffaker earlier because Huffaker was never going to testify, asserting that another witness was going to be called but that the intended witness could not be located. The intended witness was not a Mobil employee and was not deposed. Consequently, Mobil argued that Huffaker would testify instead of its intended witness. After determining that Huffaker would not be testifying as an expert, the trial court allowed him to testify.

Huffaker testified to the following: He is employed by Mobil as a field engineer. He is responsible for supervising the drawings and specifications for Mobil facilities in the Chicago area. Mobil’s standard mini-mart is 24 feet wide, 38 feet long and the “transaction area” is 552 square feet. The transaction area is comprised of the cashier who collects money for the sale of gasoline and snack items, the shelving for snack items, a freezer, a Coke machine, two rest rooms and a storage room. He constructed the Mobil facility at the subject property. On the subject property, a standard mini-mart building was erected, which was 24 feet wide and 38 feet long. However, the transactional area or sales area was constructed with temporary walls, which reduced the 552 square feet to 400 square feet in order to comply with the City’s restrictions. If Mobil succeeded in this litigation, Mobil would expand the sales floor but the amount of changes would be minimal since there would not be any plumbing, electrical or structural changes. The car wash entrance would be about 160 feet long, 18 feet wide and 12 feet 1 inch high.

Then, Vitas Maciukevicius testified as an expert in traffic studies. He stated the following: He is a transportation planning consultant employed by Metro Transportation Group. He performs and oversees impact studies. He supervised a traffic study for the subject property. He was of the opinion that the development of the gas, mini-mart and the car washing facility would not have any adverse impact to Euclid Avenue or the intersection of Euclid Avenue and Hicks Road. His opinion was based upon a review of traffic impacts such as through traffic flow, access to the site, and on-site circulation parking. The gas station relies on through traffic activity and would not generate more traffic. Any additional traffic created by the gas station, snack or car wash facility would be negligible. If Mobil added a car wash to the facility, the effect on through traffic would not change because the mini-mart building and the car wash are really accessory uses to the main function of the facility, which is refueling vehicles. As an accessory use, it does not add traffic to the flow. He estimated that approximately 50 to 70 vehicles would enter and exit the site during a peak hour and that 10% of those patrons would enter the site to just use the car wash.

Roy Krueger also testified as an expert for Mobil. He testified to the following: He is a real estate appraiser. A veterinarian clinic and a dog training center are located immediately contiguous to the south of the subject property. A one-story commercial office building is immediately to the west of the subject property. A three-bay Standard Oil station with one bay converted into a car wash is on the northwest comer of the Euclid Avenue and Hicks Road intersection. A two-story office building adjoins the Standard Oil station. Additionally, another office complex is to the north of the Standard Oil station. Krueger was of the opinion that the addition of a single car wash and the expansion of the mini-mart by 152 square feet would not affect the surrounding property values because the Euclid and Hicks intersection is a totally commercial intersection and it has been a commercial intersection for 25 years or longer. There is a high traffic count on both Euclid Avenue and Hicks Road. The surrounding homeowners would not be adversely affected because of the commercial nature of the area, which has existed for the past 15 or 20 years, and because there are two fences surrounding Mobil and the homes. He was of the opinion that the highest and best use of the subject property, i.e., what was most profitable to Mobil, includes the proposed car wash and expanded mini-mart. He was also of the opinion that an oil company is competitively disadvantaged if its service station does not have a car wash because many of the major oil companies have car washes.

Additionally, Marvin Salzenstein testified to the following: He is employed by Polytechnic Incorporated. He is a consulting engineer and measures noise. He was retained by Mobil to conduct a noise study to evaluate the noise potential of a car wash if it were located on the subject property. He was of the opinion that the proposed car wash would meet the City’s noise code, that the car wash would meet the State of Illinois’ requirements with respect to noise and that the residential areas’ background noise would be above the predicted noise levels from the car wash.

Yvonne Erickson also testified. She testified to the following: She is an area sales manager for Mobil in the resale marketing division. As area sales manager, she is responsible for designing a gasoline sales plan for each gas station and she is also responsible for preparing a net profit plan for the stations in her designated area. During her direct examination by Mobil’s attorney, the following colloquy occurred:

“Q. Based on your personal observation and experience, can you tell us, if you know, what you would have expected from this station had it had a car wash? ***
[THE CITY’S ATTORNEY]: Objection. Speculation. ***
[THE COURT]: I’ll overrule it. She may answer.
A. I would have expected at least a 20 percent increase at this location.
Q. Why is that?
[THE CITY’S ATTORNEY]: Same objection, your Honor. There’s no foundation. This witness is now testifying as an expert rendering an opinion.
[THE COURT]: I think that if, in fact, she had stated that all other stations that have car washes increase gas volume somewhere around 20 percent, that *** meaning Mobil, that doesn’t require her testimony to come under Rule 220. If she’s expressing her opinion that based on other factors that are not the business experience of Mobil, that gas stations increase volume by 20 percent when they put in car washes, I think that is a 220 expert. *** She may answer.”

Further, Joseph Abel, a city and regional planner, testified as an expert on behalf of Mobil. He stated the following: He reviewed Mobil’s plans for the subject property. He examined the City’s zoning ordinance and the City’s zoning map. He went through all of the minutes of the various hearings held by the planning commission and the city council. He read all of the literature from Mobil and the material from the car wash manufacturer. He concluded that the car wash was definitely an accessory use based on the City’s zoning ordinance definition of accessory use. He also concluded that the highest and best use of the subject property was for the existing use and the proposed addition of a car wash and the expanded mini-mart. He defined “highest and best use” as a use which utilizes the property and takes into consideration the size, shape and topography in terms of how it blends into the surrounding street system.

After Mobil rested, the City called Rolf C. Campbell as an expert in land planning and zoning. He testified to the following: He is a city planning and zoning consultant. He examined the subject property, the plans that were submitted to the City and the City’s records. It was his opinion that the City acted reasonably when it did not grant the 552 square feet for the mini-mart because that size would dominate the use. The actual square footage of that structure becomes greater than the principal use, which is the service station. It is an approximately 900-square-foot building of which 552 square feet would be occupied by the mini-mart. He was also of the opinion that the City acted reasonably when it did not grant the special use permit for the car wash because the ordinance requires that there be only one principal use and one principal building on a lot. The car wash would be a totally separate facility on some 650 square feet, and in his opinion, is not accessory to the principal use. In his judgment, the City zoning ordinance does not allow two principal uses on the same lot. He thought that the car wash would adversely impact the residential area because the site’s “intensity” would increase greatly.

On cross-examination, Campbell was unresponsively answering questions when the trial court stated, “I want you to direct your answers clearly to the questions asked. If your attorney wants to examine you on redirect, he will. I don’t think I have to tell Mr. Campbell this. He probably has more experience in the courtroom than I.” Campbell admitted that his opinion, that the proposed uses were “too intense” for the size of the site, was formed in June 1989 when he incorrectly calculated the lot’s square footage. He had estimated that the lot was 22,000 square feet rather 26,000 square feet. He also stated that the principal use of the Standard Oil station across the street from the subject property is the pumping of gas, that the Standard Oil station has a car wash and it is an accessory use, that the Standard Oil station repairs cars and that the Standard Oil property is used for lots of different purposes. Campbell stated that the Mobil car wash would not be an accessory use because half of the cars coming onto the lot would be for the car wash. However, he conceded that the City does not require that an accessory use be in the same structure as the principal use.

Then, Joseph E. Zgonina testified as an expert on behalf of the City. He testified to the following: He practices in civil and traffic engineering. He reviewed the Metra Transportation Group traffic appraisal report, the site plan, the existing traffic volumes and traffic flow maps. He made various site inspections. He was of the opinion that the subject property could not operate efficiently and conveniently with a car wash and a 552-square-foot mini-mart.

On December 1, 1989, the court issued a lengthy and thoughtful opinion and entered judgment thereon. Initially, the trial court stated its standard of review:

“Zoning ordinances enjoy a presumption of validity and the burden of proof is upon Plaintiff to overcome such presumption by clear and convincing evidence. La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46.
The review of a denial of a special use permit is tested by whether the denial bears a real and substantial relation to the public health, safety, morals or general welfare. Reedy v. City of Wheaton (1981), 102 Ill. App. 3d 1082, 1086.
[T]he standard of review *** is the same in the case where a plaintiff challenges the denial of a special use permit or where the plaintiff challenges the underlying zoning. (La Salle National Bank v. County of Lake (1975), 27 Ill. App. 3d 10, 15.) ‘If a court determines that the denial of a special use permit, including the conditions and restrictions suggested by the zoning procedures and record as a part of such permit, does not bear a real or substantial relation to the public health, safety, morals or general welfare, judicial relief must be granted.’ Id. quoting Duggan v. County of Cook (1975), 60 Ill. 2d 107, 116.
The factors to be considered in determining the validity of a zoning ordinance are: (1) the existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of property values of Plaintiff promote the health, safety, morals or general welfare of the public; (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner; (5) the suitability of the subject property for the zoned purposes; (6) the length of time the property is vacant as zoned, considered in the context of land development in the area in the vicinity of the subject property. No one factor is controlling, (emphasis in the original) La Salle National Bank, 12 Ill. 2d at 47. Sinclair Pipe Line Company v. Village of Richton Park (1960), 19 Ill. 2d 370.”

Then, the trial court determined that Mobil’s proposed uses were “reasonable” and determined that the car wash was an accessory use because:

“[i]t is subordinate to and serves the service station; it is subordinate in area (648 square feet versus 912 square feet); it is subordinate in extent and purpose (less people will get cars washed than buy gas); it contributes to the necessity of the principal use; it is located on the same lot and occupies less than five (5) per cent of the lot on which the main building is situated and otherwise complies with size requirements.”

Finally, the trial court declared that the City’s ordinance granting in part and denying in part Mobil’s requested special use was “null and void” to the extent it prevented Mobil from building a mini-mart with 552 square feet of floor area and a separate building for a car wash. Additionally, the court ordered the City to grant Mobil a special use permit for its proposed uses. The City appeals.

The City argues that the trial court’s determination that the City’s ordinance was void is against the manifest weight of the evidence because the trial court did not weigh the ordinance’s impact on Mobil against the benefit to the public. We disagree. The trial court correctly stated that Mobil had the burden of proving by clear and convincing evidence that the zoning ordinance, as applied to its property, is arbitrary and unreasonable, and without substantial relation to the public health, safety, comfort, morals or general welfare. (Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 53, 426 N.E.2d 1276.) Mobil had to prove “that the zoning ordinance is unreasonable insofar as it excludes” its specific special use. (Emphasis in original.) (100 Ill. App. 3d at 53, 426 N.E.2d 1276.) In other words, Mobil had to prove by clear and convincing evidence that the use proposed was reasonable. (100 Ill. App. 3d at 53, 426 N.E.2d 1276.) In determining whether Mobil’s proposed use was reasonable, the trial court correctly enumerated and applied the La Salle factors, noting that no one factor is controlling. (See La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47, 145 N.E.2d 65; Norwood Builders v. City of Des Plaines (1984), 128 Ill. App. 3d 908, 917-18, 471 N.E.2d 634.) This court adopts the applicable law as stated above by the trial court.

Additionally, the City argues that the trial court’s determination that Mobil’s proposed uses were reasonable is against the manifest weight of the evidence. We disagree. A decision is against the manifest weight of the evidence only if an opposite conclusion is clearly apparent. (Parkway Bank & Trust Co. v. City of Chicago (1982), 107 Ill. App. 3d 252, 437 N.E.2d 753.) In the case at bar, an opposite conclusion is not clearly apparent.

While the City’s experts’ opinions differed in some respects from Mobil’s experts’ opinions, the trial court, acting as the trier of fact, was allowed to accept one expert’s opinion over another or reject all expert testimony. This court will not second-guess the trial court because it was in a superior position to evaluate the witnesses’ credibility and determine the weight of their testimony. (Norwood Builders, 128 Ill. App. 3d at 918.) We find that the trial court’s determination is amply supported by the record in its entirety. It is uncontested that the subject property is presently zoned Ml (manufacturing), which allows, among other uses: animal hospitals, automobile painting, bottling plants, parking garages, manufacturing from paper, propane gas storage, motor vehicle repair and automobile laundry (car wash). Additionally, it is not contested that an animal hospital, an office building and a Standard Oil station with a car wash are in close proximity to the subject property.

Further, the following evidence supports the trial court’s determination: Huffaker’s testimony that only the square footage of the mini-mart sales area would be increased, not the dimensions of the mini-mart building; Maciukevicius’ opinion that the development of the gas, snack and car wash facility would not have any adverse impact on Euclid Avenue or on the intersection of Euclid Avenue and Hicks Road; Krueger’s opinion that the surrounding homes’ values would not be affected by Mobil’s proposed uses because the area has been commercially used for the past 15 or 20 years and that the highest and best use of the subject property included the proposed car wash and the expanded mini-mart; and Salzenstein’s opinion that the proposed car wash would meet the City’s noise code, that the car wash would meet the State of Illinois’ requirements with respect to noise and that the background noise that exists in the residential areas would be above the noise levels that would be predicted to come from the car wash.

Based upon the foregoing, the trial court’s determination that the public welfare does not require either the restriction or the resulting loss to Mobil is not against the manifest weight of the evidence.

The City also argues that the trial court erred in allowing Huffaker to testify, contending that he was an expert and that his name was not disclosed as required by Rule 220 of the supreme court rules (134 Ill. 2d R. 220(b)). We disagree. Huffaker was not testifying as an expert. An expert is defined as “a person who, because of education, training or experience possesses knowledge of a specialized nature beyond that of the average person on a factual matter ***. He may be an employee of a party, a party, or an independent contractor.” (134 Ill. 2d R. 220(a)(1).) The trial court properly determined that Huffaker would not be testifying as an expert because his testimony related to knowledge he personally learned as a consequence of supervising the mini-mart construction. Personal knowledge with respect to a matter is not sufficient to render an individual an “expert.” Therefore, Mobil did not have to comply with Rule 220 of the supreme court rules.

Alternatively, the City argues that the trial court abused its discretion by allowing Huffaker to testify, contending that Mobil did not comply with Rule 219 of the supreme court rules. (134 Ill. 2d R. 219.) We disagree. Rule 219(c)(iv) permits the exclusion of a witness for unreasonable failure to comply with discovery requests. (134 Ill. 2d R. 219(c)(iv).) The factors to be considered in determining whether exclusion is proper are: “the surprise to the adverse party, the prejudicial effect of the testimony, the timely objection to the testimony and the good faith of the party calling the witness.” (Kirkwood v. Checker Taxi Co. (1973), 12 Ill. App. 3d 129, 132, 298 N.E.2d 233.) The trial court acted within the scope of its discretion when it allowed Huffaker to testify. Mobil informed the City of its intention to call Huffaker as soon as it recognized that it needed his testimony. Further, the record does not reflect any attempts by the City to continue the trial so that it could conduct “sufficient” discovery.

Finally, the City argues without merit that the trial court erroneously allowed Erickson to testify, contending that she qualified as an expert and Mobil did not comply with Rule 220 of the supreme court rules (134 Ill. 2d R. 220). As authority for its argument, the City cites Oakleaf v. Oakleaf & Associates, Inc. (1988), 173 Ill. App. 3d 637, 527 N.E.2d 926, appeal dismissed (1988), 123 Ill. 2d 560, 535 N.E.2d 403. However, the Oakleaf court did not decide the merits of a Rule 220 argument because the issue was not preserved for review. (Oakleaf, 173 Ill. App. 3d at 651.) Additionally, as authority for its argument, the City cites Singh v. Air Illinois, Inc. (1988), 165 Ill. App. 3d 923, 520 N.E.2d 852. In Singh, however, the parties were not disputing whether a witness was an “expert”; rather, the appellant contended that the appellee violated Rule 220 because the witness was not disclosed within the 60-day requirement. Singh, 165 Ill. App. 3d at 929.

We find that the trial court properly determined that Erickson was not an expert and that, therefore, Mobil did not have to comply with disclosure under Rule 220. She merely testified to matters she personally knew as a consequence of her employment with Mobil.

Alternatively, the City argues that the trial court erred in allowing Erickson to testify, contending that Mobil did not comply with Rule 219 of the supreme court rules. (134 Ill. 2d R. 219.) The trial court acted within the scope of its discretion when it allowed Erickson to testify. It is clear that the City had notice of Mobil’s intention to call Erickson at a pretrial conference. Moreover, there is no evidence of the City’s attempt to depose Erickson or to delay the trial to conduct “sufficient” discovery.

For the reasons set forth above, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE WHITE

text:
    FANNIE ALLEN, as Adm'r of the Estate of James Allen, Deceased, Plaintiff-Appellant and Cross-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Counterplaintiff and Counterdefendant-Appellee and Cross-Appellant (James Lee Allen, Defendant and Counterdefendant and Counterplaintiff).
    First District (3rd Division)
    No. 1—89—3087
    Opinion filed May 15, 1991.

      Topper & Weiss, Ltd., of Chicago (Barry Weiss, of counsel), for appellant.
    Taylor, Miller, Sprowl, Hoffnagle & Merletti, of Chicago (Frank C. Stevens and James J. Hoffnagle, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

This appeal is from declaratory judgment for defendant State Farm Mutual Automobile Insurance Company (State Farm) in an action on a policy. The underlying dispute concerns an Arkansas collision, in which an insured Indiana passenger is alleged to have been fatally injured in his own car while his adult Illinois son was driving. We affirm.

I. FACTS

On April 18, 1987, James Allen (the father) resided in Gary, Indiana, and James Lee Allen (the son) resided in Chicago. On that date, the father drove in his own car to the son’s home in order to pick up the son for an intended trip to Mississippi.

The son took the wheel, and later on that same date the car collided with another vehicle in Arkansas while the son was driving in an allegedly negligent manner. The collision injured the father, who is alleged to have died as a result in a Tennessee hospital on May 16, 1987. The son still resides in Elinois.

At the time of the accident, the father owned a vehicle insurance policy (the policy) insuring the car involved and providing liability and uninsured motor vehicle coverage. The son did not own a motor vehicle and was not covered under any other vehicle insurance policy.

II. PROCEDURAL HISTORY

The father’s widow, ‘Fannie Allen (plaintiff), was named administrator of his estate by an Indiana court. Plaintiff as administrator then filed suit against the son in the circuit court of Cook County. That suit is not directly part of this appeal.

On June 10, 1988, plaintiff as administratrix filed suit for declaratory judgment against defendant State Farm in the circuit court of Cook County. That suit is the subject of this appeal. It was based in relevant part on the policy.

The complaint alleged that the policy excluded liability coverage for bodily injury to an insured and that the father’s medical expenses amounted to more than $82,000. The complaint sought a declaration that, by reason of the liability exclusion and the father’s injuries and death, State Farm owed plaintiff the $50,000 limit of uninsured motor vehicle coverage that the policy provided. (State Farm had paid plaintiff the $25,000 limit of medical-payments coverage under the policy.)

On August 11, 1988, the circuit court granted plaintiff leave to amend her complaint by naming the son as an additional defendant. The son is not a party to this appeal.

By leave of court, State Farm filed a counterclaim against the son on March 29, 1989, seeking a declaration that under the policy the son had no liability coverage for the father’s injuries and that State Farm had no duty to defend or indemnify the son on account of the accident.

On August 18, 1989, State Farm filed a motion for summary judgment in its favor on the counterclaim and the amended complaint. Also on that date, by leave of court, plaintiff filed her second amended complaint, adding a claim that, because of an Arkansas compulsory-insurance statute, State Farm owed liability coverage as a result of out-of-State coverage provisions in the policy. Later, plaintiff filed her cross-motion for summary judgment on her out-of-State coverage claim.

Eventually, after answering State Farm’s counterclaim, the son filed his own counterclaim against State Farm, seeking a declaration that State Farm owed him liability coverage and a defense, was guilty of an improper claims practice, and owed him attorney fees and costs. Later, by leave of court, State Farm answered the son’s counterclaim and amended its summary judgment motion to stand also as a motion for summary judgment on that counterclaim.

Relying on Indiana law, the circuit court granted State Farm’s summary judgment motion and denied plaintiff’s cross-motion. The judgment declared that the policy provided no liability or uninsured-motorist coverage for any injuries or death sustained by the father as a result of the collision.

Plaintiff now appeals from entry of summary judgment for State Farm and denial of summary judgment for her.

III. POLICY PROVISIONS

The policy effectively defined both the father and the son as “insured,” and it defined “bodily injury” to include death.

Section I of the policy, pertaining to liability coverage (Coverage A), obliged State Farm to pay “damages which an insured becomes legally liable to pay because of *** bodily injury to others.” (Emphasis omitted.) However, in subparagraph 2(c) under the heading “When Coverage A Does Not Apply,” section I also stated that there was no liability coverage for bodily injury to “ANY INSURED OR ANY MEMBER OF AN INSURED’S FAMILY RESIDING IN THE INSURED’S HOUSEHOLD.” (Italics and boldface omitted.)

Regarding out-of-State coverage, section I also stated that, if an insured under the liability coverage were in another State and, as a nonresident, became subject to that State’s motor vehicle compulsory insurance law, the policy would be interpreted to give the coverage required by the law, and “the coverage so given replaces any coverage in this policy to the extent required by the law for the insured’s operation, maintenance or use of a car insured under this policy.” (Emphasis omitted.)

The policy’s endorsement 6851LL, pertaining to uninsured motor vehicle coverage (Coverage Ul), obliged State Farm to pay “damages for bodily injury and property damage an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle” (italics and boldface omitted) when the injury or damage was caused by accident arising out of such a vehicle’s operation.

In pertinent part, the endorsement defined “uninsured motor vehicle” as a vehicle, “the ownership, maintenance or use of which” either was “not insured or bonded for bodily injury liability and property damage liability at the time of the accident” or was so insured or bonded but either “the insuring company denies coverage or is or becomes insolvent” or the liability limits are less than required by the Indiana financial responsibility act. “Uninsured motor vehicle” was also defined as excluding a vehicle that was “insured under the liability coverage of the policy.”

IV. STATUTORY PROVISIONS

Statutes of three States are cited by plaintiff as bearing on this cause.

The first statutory provision is section 143.01(b) of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 755.01(b)), which reads:

“(b) A provision in a policy of vehicle insurance excluding coverage for bodily injury to members of the family of the insured shall not be applicable when any person not in the household of the insured was driving the vehicle of the insured involved in the accident which is the subject of the claim or lawsuit.”

The second statutory provision is section 9—3—3—1(b) of the Indiana Code (Ind. Code Ann. §9—3—3—1(b) (Burns 1987)), which is a “guest statute” and reads in pertinent part:

“(b) The owner, operator, or person responsible for the operation of a motor vehicle is not liable for loss or damage arising from injuries to or the death of:
(1) His parent; [or]
* * *
(3) His child ***;
* * *
resulting from the operation of the motor vehicle while the parent *** [or] child *** was being transported without payment therefor in or upon the motor vehicle, unless the injuries or death are caused by the wanton or willful misconduct of the operator, owner, or person responsible for the operation of the motor vehicle.”

The third statutory provision is section 27—22—104(a) of the Arkansas Code of 1987 Annotated (Ark. Code Ann. §27—22-104(a) (Supp. 1989)), which reads:

“(a) It shall be unlawful for any person to operate a motor vehicle within this state unless the person is covered by *** an insurance policy issued by an insurance company or surety company authorized to do business in this state.”

V. ANALYSIS

Plaintiff seeks to recover under the policy’s liability coverage or, failing that, under the policy’s uninsured motor vehicle coverage. The parties disagree regarding what State’s law applies to construction of the policy provisions. In our view, a choice of law is immaterial to the question of liability coverage, even though crucial to the question of uninsured motor vehicle coverage.

A. LIABILITY COVERAGE

Subparagraph 2(c) under the heading “When Coverage A Does Not Apply,” in section I of the policy, clearly provided that liability coverage was excluded for bodily injury to any insured. The father was an insured. Therefore, by its very terms, the policy denied liability coverage for injury to the father, no matter whether any such liability existed, or under what State’s law, or on whose part.

Neither party has suggested how this exclusion of liability coverage for injuries to the father would be construed differently under the law of one State or another. The pertinent policy language has the same clear meaning in any State and simply afforded no liability coverage for injury to the father. In fact, plaintiff agrees that the exclusion operates to her disadvantage unless it is invalidated by applicable State law.

Not only is the liability exclusion’s meaning clear, but so is its validity under the law of any State arguably connected with this cause.

As plaintiff concedes, the exclusion was valid under Indiana law. See Transamerica Insurance Co. v. Henry (Ind. 1990), 563 N.E.2d 1265, 1268-69; United Farm Bureau Mutual Insurance Co. v. Hanley (1977), 172 Ind. App. 329, 360 N.E.2d 247.

No Illinois law invalidates it; the Illinois statute that plaintiff cites (Ill. Rev. Stat. 1985, ch. 73, par. 755.01(b)) invalidates an exclusion for liability to an insured’s family members in some circumstances, but not an exclusion for liability to an insured.

Arkansas law (Ark. Code Ann. §27—22—104 (Supp. 1989)) requires a driver to be covered by a liability insurance policy, but that provision did not become law until 1987 (see Act of March 27, 1987, No. 442, 1987 Ark. Acts 901; Act of March 31, 1987, No. 474, 1987 Ark. Acts 1032). Because nonemergency Arkansas statutes do not take effect until at least 90 days after final adjournment of the legislative session at which enacted, the law was not yet effective on the accident date. See Ark. Const. amend. 7; Fulkerson v. Refunding Board (1941), 201 Ark. 957, 962, 147 S.W.2d 980, 983; Henderson, The Creation of the Arkansas Code of 1987 Annotated, 11 U. Ark. Little Rock L.J. 21, 26 & n.23 (1988-89).

Besides, the Arkansas compulsory-insurance statute “is not intended in any way to alter or affect the validity of any policy provisions, exclusions, exceptions, or limitations.” (Ark. Code Ann. §27—22—101(a) (Supp. 1989).) In addition, the statute is “supplemental to and cumulative to” the Arkansas Motor Vehicle Safety Responsibility Act, which was in effect on the accident date. (Ark. Code Ann. §27—22—102 (Supp. 1989); Ark. Stat. Ann. §75—1401 et seq. (1979 & Supp. 1985) (now codified as Ark. Code Ann. §27—19—101 et seq. (1987 & Supp. 1989)).) Under the latter act’s regime, policy exclusions of liability for injury to an insured or to a member of an insured’s family or household have been enforced when passengers affected by the exclusions were injured. (See Cook v. Wausau Underwriters Insurance Co. (1989), 299 Ark. 520, 772 S.W.2d 614 (named insured driving; insured wife a passenger); State Farm Mutual Automobile Insurance Co. v. Cartmel (1971), 250 Ark. 77, 463 S.W.2d 648 (insured permittee driving; named insured a passenger).) The Cook case specifically considered the Arkansas compulsory-insurance law’s terms as well. Thus, the exclusion of coverage for any liability of the son to the father is of a type generally permissible under the established Arkansas law of financial responsibility and compulsory insurance.

Therefore, no matter what State’s law is considered to apply, the policy’s liability coverage affords plaintiff no relief on her claim as it is presented here.

A separate question, of course, is whether, because the son was uninsured for liability to the father, plaintiff might recover on her claim for benefits under the policy’s uninsured motor vehicle coverage. Illinois law would allow such recovery, but Indiana law does not. A choice of law thus becomes necessary.

B. CHOICE OF LAW

Plaintiff favors applying the law of Illinois; State Farm favors Indiana’s. Plaintiff contends that the son also would have Illinois law apply; the son took such a position in the circuit court but is not a party to this appeal.

To resolve the choice-of-law issue, State Farm cites Jadczak v. Modern Service Insurance Co. (1987), 151 Ill. App. 3d 589, 593, 503 N.E.2d 794, 797, and Criterion Insurance Co. v. Reed (1978), 66 Ill. App. 3d 925, 928, 383 N.E.2d 786, 787, for the rule that, among other factors, the court should look to the laws of the State in which the policy was issued or delivered. State Farm also cites Hofeld v. Na tionwide Life Insurance Co. (1975), 59 Ill. 2d 522, 528, 322 N.E.2d 454, 457-58, for the rule that other relevant choice-of-law factors include location of subject matter, place of contract delivery, domicile of insured or insurer, place of last act giving rise to a valid contract, place of performance, and any other place bearing a relationship to the general contract.

Here, the insured father was an Indiana resident. The automobile subject matter was a car licensed, registered, and garaged in Indiana. The contract of insurance embodied in the father’s policy was usually “performed” in Indiana. State Farm was authorized to do business in Indiana, its agent maintained his office there, and the agent had authority to bind State Farm there through the signatures of himself and the father on the application. The father’s application was processed by State Farm’s regional office in Indiana, and that office issued the policy’s declarations page. In what State Farm contends was the last act giving rise to a valid contract, the policy was signed by State Farm’s agent in Indiana before delivering it to the father there, even though the policy also bore printed signatures of State Farm’s secretary and president with the legend that they had been affixed at State Farm’s headquarters in Bloomington, Illinois.

In Jadczak, by a policy’s own terms, the last act to make it valid was the affixing of signatures by the company president and secretary in Minnesota — a fact on which the court based its conclusion that Minnesota law was generally applicable. (Jadczak, 151 Ill. App. 3d at 593, 503 N.E.2d at 797.) By contrast, the State Farm policy here contained no such terms as did the policy in Jadczak. Asserting that the last act to make the present policy valid was the agent’s personal countersignature in Indiana, State Farm contends that under Jadczak’s rationale the law of Indiana is applicable. State Farm denies that choice of law should be governed by the mere recital that printed signatures of the president and secretary had been affixed in Illinois, reasoning that otherwise every State Farm policy nationwide would absurdly be governed by Illinois law, since all policies contain the same recital.

For her part, plaintiff contends that the law of the State with the most significant relationship to the parties and the transaction should control and that it is necessary to identify the gist of the action to determine which contacts are relevant. Plaintiff also contends that the court should consider the relevant policies of other interested States and the relative interests of those States in determination of the choice-of-law issue here. (See Restatement (Second) of Conflict of Laws §6(2)(c) (1971) (listing such factors as one of seven general choice-of-law criteria).) From these principles, plaintiff argues that Illinois is the State of most significant contacts with all “parties”— counting the son. The son, however, though a party to the litigation, was not a party to the contract and thus is not a “party” in Second Restatement significant-contacts terms. See, e.g., Restatement (Second) of Conflict of Laws §6, Comments c, g; §187, Comment a; §188, Comment b (1971).

Plaintiff points out that the father drove his car into Illinois; that from Chicago to Arkansas the car was continuously driven by the son, an Illinois resident; and that the father and son were to return to Chicago from their trip. Plaintiff adds that State Farm is a mutual company whose home office and principal place of business are in Illinois and whose policyholders have voting rights at annual meetings held only in Illinois. Citing the policy’s statement that signatures of the president and secretary were affixed in Illinois, plaintiff also asserts that the policy was issued in Illinois.

Plaintiff argues that, even if Indiana’s and Illinois’ relative interests were similar, the public policy of Illinois as the forum State should be preferred if it conflicts with Indiana’s statute and case law. (Samack v. Travelers Insurance Co. (1982), 111 Ill. App. 3d 61, 63, 443 N.E.2d 765, 767.) An Indiana statute immunizes a driver from negligence liability for the death of the driver’s parent passenger. (Ind. Code Ann. §9—3—3—1(b) (Burns 1987).) As long as a driver is not a member of the insured’s household, an Illinois statute nullifies any exclusion of insurance coverage for any negligence liability to injured members of an insured’s family. (Ill. Rev. Stat. 1985, ch. 73, par. 755.01(b).) Plaintiff contends that these statutes signify a conflict in public policy between the two States. Plaintiff also points out that, under Indiana law, if a policy affords no liability coverage for injuries sustained in an occurrence, the same policy’s uninsured motor vehicle coverage cannot be invoked to cover the injuries, but under Illinois law such coverage can be invoked.

Arguing that the purpose of vehicle insurance laws is to protect the insured as well as any permissive driver and to compensate accident victims, plaintiff contends that it would be fundamentally unfair to “apply” Indiana’s “conflicting” statute so as to defeat the Illinois son’s expectations of liability coverage for the father’s injuries or death. Plaintiff also contends that State Farm’s risk would not be changed significantly by applying Illinois law, because, since the policy’s out-of-State coverage provisions themselves show that State Farm recognizes the probability of driving from State to State, State Farm should not be surprised if Illinois law afforded the son coverage.

However, Illinois courts do not apply the reasonable-expectations doctrine to insurance contracts. (American Country Insurance Co. v. Cash (1988), 171 Ill. App. 3d 9, 11, 524 N.E.2d 1016, 1018.) Moreover, even if the doctrine were applied, the son was not a party to the contract; thus, plaintiff would be hard pressed to show how “[the son’s] reasonable expectations were any part of it.” Insurance Co. of North America v. Adkisson (1984), 121 Ill. App. 3d 224, 229, 459 N.E.2d 310, 313.

In addition, there is no conflict between Indiana’s immunization of the son from liability to the father and Illinois’ requirement of coverage for injury to the father’s family. For that matter, neither is there any conflict between that Illinois requirement and the policy’s own exclusion of liability coverage for injury to the father.

Too, as already observed, the son’s lack of liability coverage for the father’s injuries does not arise from “applying” any “conflicting” Indiana law but from the explicit terms of the policy itself, which would be read the same in Illinois as in Indiana.

Plaintiff has not persuasively distinguished Hofeld, Jadczak, and Criterion with regard either to their choice-of-law rules or to a choice of Indiana law under those rules.

It is true that some doctrinal variation among Illinois contract choice-of-law cases has been perceived, including a trend in some cases toward a Restatement-linked most-significant-contacts rule. (See St. Paul Surplus Lines Insurance Co. v. Diversified Athletic Services (N.D. Ill. 1989), 707 F. Supp. 1506, 1512-13. But see Koclanakis v. Merrimack Mutual Fire Insurance Co. (7th Cir. 1990), 899 F.2d 673, 675 (deferring flatly to law of insured risk’s principal location in reliance on Jadczak, Criterion, and Second Restatement §193).) Still, unless some other State has a more significant relationship to the transaction and the contracting parties with respect to a particular issue, the Second Restatement envisions that an automobile liability policy will be governed by the law of the State where the car was intended to be principally located, even if the car is occasionally located elsewhere. “The location of the insured risk will be given greater weight than any other single contact in determining the state of the applicable law provided that the risk can be located, at least principally, in a single state.” (Restatement (Second) of Conflict of Laws §193, Comment b, at 611 (1971).) Here, the insured automobile was understood to be garaged and principally located in Indiana.

Meanwhile, most courts apply the traditional “place of contracting” rule; many others applying a modern significant-contacts rule still treat the place of contracting as the most significant contact; and we have found no choice-of-law cases involving an exclusion of liability to the named insured or a household member that apply the law of any State except the State of contracting or the State of accident. See Annot., 20 A.L.R.4th 738, 741, 746 (1983).

This action for declaratory judgment on a contract is not a tort case. For that reason, plaintiff’s citations to cases on choice of tort law are inapposite.

On considering the facts of this cause in light of the Hofeld-Jadczak-Criterion rules, or even on the basis of a Second Restatement most-significant-contacts analysis, Indiana law clearly governs.

C. UNINSURED MOTOR VEHICLE COVERAGE

If Illinois law governed construction of the policy’s uninsured motor vehicle provisions, plaintiff would benefit from that coverage (see Barnes v. Powell (1971), 49 Ill. 2d 449, 275 N.E.2d 377; Illinois Emasco Insurance Co. v. Doran (1987), 160 Ill. App. 3d 927, 932, 513 N.E.2d 970, 972), but under current Indiana law, as construed by the Indiana Court of Appeals, the policy’s uninsured motor vehicle provisions cannot benefit plaintiff.

The Indiana court has refused to apply a policy’s uninsured motor vehicle provisions so as to treat as uninsured a person whose liability, because of a clause in the same policy, is excluded from liability coverage. United Farm Bureau Mutual Insurance Co. v. Hanley (1977), 172 Ind. App. 329, 360 N.E.2d 247.

In Hanley, the excluded person was a son of the “named insured.” That son was the driver. The injured claimant was another son, who was a passenger. Each son was also included in the definition of “the insured.” The exclusionary clause applied to liability for bodily injury to “the insured or to any person related to the insured *** and *** resident of the same household.” (172 Ind. App. at 331 n.1, 333 n.2, 360 N.E.2d at 248 n.1, 249 n.2.) The insurance company sought a declaratory judgment (1) enforcing the exclusionary clause against the claimant and the named insured, and (2) denying that operation of the clause triggered the policy’s uninsured-motorist coverage. (172 Ind. App. at 332, 360 N.E.2d at 248-49.) The trial court construed the policy terms to require that, because the driver was excluded from the policy’s liability coverage, the claimant be given the benefit of the policy’s uninsured-motorist coverage. 172 Ind. App. at 332, 360 N.E.2d at 249.

On appeal, the Hanley court stated that the sole issue was whether the exclusionary clause violated the State uninsured-motorist statute. The court held that it did not. In addition, the court interpreted the uninsured-motorist clause as not being triggered by the exclusionary clause.

Nothing in Hanley indicates that the policy terms significantly differed from those now before us. (See 172 Ind. App. at 330-31 n.1, 332, 339 n.9, 360 N.E.2d at 248 n.1, 249, 252 n.9.) Thus, under Hanley, the son’s exclusion here from liability coverage could not make the policy’s uninsured motor vehicle coverage available to plaintiff. Besides, the policy’s provisions here go beyond those in Hanley and specifically define an uninsured vehicle to exclude a vehicle (such as the father’s car here) that is insured under the same policy’s liability coverage.

It is true as plaintiff says that, in addressing the effect of Florida uninsured-motorist law on an Illinois claim for a Florida accident, this court has emphasized that other States’ statutes will not be given effect in Illinois when at odds with Illinois statutes or settled public policy. (Samack v. Travelers Insurance Co. (1982), 111 Ill. App. 3d 61, 63, 443 N.E.2d 765, 767.) However, in that case, both parties were Illinoisans, the policy in question was issued in Illinois, and the policy was generally to be governed by Illinois law. (Samack, 111 Ill. App. 3d at 64, 443 N.E.2d at 768.) Here, one party is an Indianan, the policy was issued in Indiana, and Indiana law generally governs it.

It is also true that, under the Second Restatement, when the parties to a contract have not effectively chosen a governing law, a court may apply the local law of whatever State is most significantly related in regard to a particular issue. (Restatement (Second) of Conflict of Laws §188 (1971).) Still, we find that Indiana has the more significant contacts with both the policy in general and the father’s purchase of uninsured-motorist coverage in particular. When we couple this fact with established Illinois contract choice-of-law rules, we conclude that plaintiff cannot prevail.

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

Affirmed.

CERDA, P.J., and RIZZI, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. RONALD BROWN, Petitioner-Appellant.
    First District (4th Division)
    No. 1—88—0623
    Opinion filed May 16, 1991.

      Randolph N. Stone, Public Defender, of Chicago (James S. Jacobs, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth McCurry, and Judith Hannah, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Petitioner Ronald Brown appeals from an order of the circuit court of Cook County dismissing his amended petition for post-conviction relief. On appeal, petitioner contends that it was error to dismiss his amended petition without an evidentiary hearing when that petition set forth factual allegations establishing that he was denied the effective assistance of counsel at trial and on direct appeal.

In 1978 petitioner was convicted of the murder, armed robbery and aggravated kidnapping of Charles McGee. He received concurrent terms of 80 years, 30 years and 15 years for those respective crimes. At trial the State’s evidence established that Charles McGee was found shot to death in an alley on the southwest side of Chicago. Petitioner was seen driving the victim’s car the same day. The murder weapon, a .22 caliber revolver, was recovered from petitioner’s home along with three tires and a CB radio from the car. A watch belonging to the victim was recovered from the petitioner, and petitioner’s fingerprints were found on the victim’s car. In statements to the police and a prosecutor, petitioner admitted that he and Andre Walker had robbed the victim, who was then shot by Walker. Police questioned Walker but did not charge him. The sole issue raised in petitioner’s direct appeal concerned the propriety of his extended-term sentence. This court affirmed petitioner’s convictions in an unpublished order pursuant to Supreme Court Rule 23 (134 Ill. 2d R. 23). People v. Brown (1981), 101 Ill. App. 3d 1195, 432 N.E.2d 395.

Petitioner filed a pro se petition for post-conviction relief on March 23, 1987. Appointed counsel then filed an amended petition. In his amended petition, petitioner contended, inter alia, that his trial counsel should have moved to quash the search warrant which yielded the murder weapon and other incriminating evidence. Petitioner asserts that the warrant was based upon the bad-faith misrepresentation that a sawed-off shotgun located in defendant’s home was the murder weapon, when police knew that the victim was killed with a small-caliber weapon. But in the affidavit contained in the complaint for search warrant, Investigator McGuire stated that he had been informed by Eric Smith that tires removed from the victim’s car could be found in petitioner’s garage. McGuire also stated that Smith told him that petitioner had a “.410 sawed off shotgun” in his home. McGuire did not state that the shotgun had been used in the murder. However, in the body of the complaint the shotgun was included in a list of items to be seized “which have been used in the commission of, or which constitute evidence of the offense of murder.” This quoted language was preprinted on the form except for the type of offense, which was typed in. Identical preprinted language was used on the search warrant itself, again with the offense of murder typed in. Thus the search warrant also referred to the shotgun as having been used in the murder or constituting evidence of it. We are not persuaded that these apparent clerical errors could reasonably be construed as evidence of misrepresentation by Investigator McGuire where his affidavit did not claim that the shotgun related to the murder. Mere possession of a sawed-off shotgun is itself a crime. (Ill. Rev. Stat. 1989, ch. 38, par. 24—1.) Therefore, there was no need to establish that this weapon related to the murder. Accordingly, we find no merit to petitioner’s contention that his trial counsel was ineffective in failing to raise this issue prior to trial.

Petitioner also contends that because he was arrested in his home without an arrest warrant his trial counsel should have moved to quash that arrest and suppress the statements he subsequently made. Even assuming that petitioner’s arrest could have been quashed, his statements were made after he was taken from his home and, therefore, they were not subject to suppression on this ground. (New York v. Harris (1990), 495 U.S. 14, 109 L. Ed. 2d 13, 110 S. Ct. 1640; People v. Beasley (1990), 206 Ill. App. 3d 112, 563 N.E.2d 1113.) Accordingly, the trial court did not err in rejecting this contention in petitioner’s amended petition.

Petitioner also contends that his trial counsel was ineffective because he did not attempt to call Andre Walker as a witness at petitioner’s capital sentencing hearing. It was petitioner’s burden to support this allegation with affidavits setting out the potential testimony of this witness. (People v. Barr (1990), 200 Ill. App. 3d 1077, 558 N.E.2d 778.) Petitioner failed to do this. In his brief on appeal he contends only that Walker’s testimony “in some way” may have decreased petitioner’s culpability. In fact, the trial court declined to impose the death penalty on petitioner because of the possibility that Walker was the actual shooter, as petitioner had claimed in his statements. Had Walker testified and denied any involvement or named petitioner as the shooter, petitioner could have been sentenced to death. In any event, petitioner has presented no factual allegation supporting the conclusion that Walker’s testimony would have been helpful to him and, therefore, he was not entitled to an evidentiary hearing on this ground. People v. Smith (1985), 136 Ill. App. 3d 300, 483 N.E.2d 655.

Petitioner’s remaining contention concerning the ineffectiveness of his appellate counsel on direct appeal is based upon counsel’s failure to raise the contentions that we have already found to be "without merit. Accordingly, we find no abuse of discretion in the denial of an evidentiary hearing on petitioner’s amended post-conviction petition.

The order of the circuit court is affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.