text:
    KATHLEEN CIOLINO, Adm’x of the Estate of Beatrice Lynch, Deceased, Plaintiff-Appellant, v. MORRIS BERNSTEIN et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—90—3471
    Opinion filed June 17, 1992.

      Terrence E. Leonard, of Chicago, for appellant.
    Timothy A. Weaver, of Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Robert J. Franco, of counsel), for appellee Thomas L. Marvelli.
    Wildman, Harrold, Allen & Dixon, of Chicago (Leonard S. Kurfirst and Mary Elisabeth Ruether, of counsel), for appellee Morris Bernstein.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

In this medical malpractice action, plaintiff Kathleen Ciolino, administratrix of the estate of Beatrice Lynch, deceased, appeals from a judgment entered in favor of defendants, Drs. Morris Bernstein and Thomas Marvelli, after a favorable jury verdict.

Plaintiff asserts two issues regarding Dr. Bernstein: (1) whether the trial court abused its discretion in excluding evidence showing that Dr. Bernstein could have found an intensive care unit (ICU) bed for decedent by moving another patient then in the ICU, and (2) whether the trial judge improperly coerced the verdict by directing the jury to continue deliberations after the jury indicated on four occasions that it was deadlocked as to Dr. Bernstein. As to both Drs. Bernstein and Marvelli, plaintiff submits that the jury verdict was against the manifest weight of the evidence.

For the reasons which follow, we affirm.

At 4:05 a.m. on Sunday May 3, 1981, plaintiff’s decedent, 49-year-old Beatrice Lynch, arrived at the emergency room of Northwest Hospital (now known as Our Lady of the Resurrection Medical Center) complaining of pain in her chest and left arm. Dr. Marvelli was in charge of the emergency room and attended to decedent. He took a history, performed some tests including an electrocardiogram (EKG), ordered other tests, and put decedent on an electric monitor. Dr. Marvelli also ordered nitroglycerine for decedent’s chest pain and Valium for her anxiety.

At 5:05 a.m. Dr. Marvelli called Dr. Bernstein, who had treated decedent in the past but had not seen her in four years. Both doctors agreed that decedent should be sent to the ICU. However, during this telephone conversation, a nurse informed Dr. Marvelli that no ICU bed was available, all such beds being then occupied. Dr. Bernstein then issued an order to have decedent admitted to a monitored bed.

At 5:30 a.m. a nurse notified Dr. Bernstein that no monitored beds were available. Dr. Bernstein then ordered that portable cardiac rhythm strips be taken every four hours, decedent be put in a bed next to the nurses’ station equipped with a “crash cart” including certain necessary equipment, and that decedent be checked frequently.

At 5:50 a.m., while on his way to the hospital, Dr. Bernstein called and spoke with the fourth-floor nurse who advised him that decedent was now in room 410, which is located next to the nurses’ station, and that decedent was having chest pain, but no shortness of breath. Dr. Bernstein ordered the nurse to give decedent Demerol, renewed his order for a monitored bed, and told the nurse to be sure to do the rhythm strips. At 5:55 a.m. decedent was given Demerol.

At 6 a.m. decedent became cyanotic. At 6:02 a.m. a nurse called the code 99 emergency team, who defibrillated decedent at 6:05 a.m. Decedent went into a coma about 6:20 a.m., having sustained severe and irreversible brain damage.

At 6:55 a.m. decedent was transferred to the ICU, where she remained in a coma until she died on October 22, 1982, approximately V-lz years later.

Thereafter, plaintiff filed this medical malpractice action against the two doctors (Bernstein and Marvelli) and the hospital. Before trial, the hospital and plaintiff reached a settlement.

At trial, two experts appeared on behalf of plaintiff, Drs. Peter Rosen and Gerald Gordon. According to Dr. Rosen, the orders given to admit decedent to an ICU or, alternatively, a monitored bed conformed with the standard of care, but the admission of decedent to an unmonitored bed was a deviation from the standard of care. Dr. Rosen acknowledged that Drs. Bernstein and Marvelli could not do anything to prevent the occurrence of decedent’s myocardial infarction.

Dr. Gordon stated that Dr. Marvelli deviated from the standard of care by failing to give decedent oxygen and sufficient pain medication, and by incorrectly interpreting and relaying clinical data to Dr. Bernstein. He testified that Dr. Marvelli had an obligation to know where his patient was going after leaving the emergency room, but that Dr. Bernstein as the attending physician was “the ultimate decider of where the patient goes.”

Dr. Gordon also testified that Dr. Bernstein deviated from the standard of care by ordering rhythm strips every four hours in the absence of a cardiac monitor. However, he conceded that a monitor alone would not have prevented decedent’s cardiac arrest and that even where a monitor is used, its purpose in discovering a pre-arrest situation is often not achieved because the monitor readings are either missed or misread.

Plaintiff sought to introduce evidence concerning Sue Garber, who was Dr. Bernstein’s patient and who occupied a bed in the ICU at the time decedent was being treated in the early morning hours on May 3, 1981. Plaintiff offered Garber’s medical records to show that Garber was Dr. Bernstein’s patient, that Dr. Bernstein had the option of moving Ms. Garber out of the ICU to make room for decedent, and that Ms. Garber was actually transferred out of the ICU shortly after decedent went into a coma.

Defendant objected and moved in limine to exclude evidence relating to the care of Sue Garber. The trial court sustained the objection and allowed defendant’s motion on the basis that plaintiff acknowledged she had not laid a foundation for such evidence with her expert and did not intend to provide expert testimony that the failure to move Ms. Garber to provide an ICU bed for decedent violated the standard of care.

Subsequently, Dr. Gerald Menaker, an expert on behalf of Dr. Bernstein, testified that the standard of care did not mandate that decedent be admitted to the ICU or be kept in the emergency room. Dr. Menaker opined that in light of the information Dr. Bernstein had at 5:30 a.m. regarding the unavailability of a monitored or ICU bed and the condition of decedent, which was then noted as stable, Dr. Bernstein acted within the standard of care by ordering that decedent be transferred to a room adjacent to a nursing station where a nurse and a crash cart would be immediately available. He observed that the orders given by Dr. Bernstein at 5:30 a.m. complied with the standard of care “[bjecause in effect the patient was monitored probably as well as she could have been monitored under the other circumstances. Maybe even better, because the nurse was right there and all the equipment was right there.” Dr. Menaker also testified that decedent’s myocardial infarction was neither preventable nor predictable.

Dr. Terrence Carden gave expert testimony on behalf of Dr. Marvelli. Dr. Carden testified that Dr. Marvelli’s management of decedent “conformed with the standard of care in every way” and was certainly reasonable. He noted that Dr. Marvelli did not have admitting privileges at Northwest Hospital and did not have authority to transfer a patient from the emergency room to a floor in the hospital. Dr. Carden further testified that, even though no ICU bed was available, decedent should not have been kept in the emergency room unless “there was a designated observation area which there wasn’t.” Also, Dr. Carden testified that the myocardial infarction suffered by decedent was not preventable.

Both Drs. Bernstein and Marvelli testified to the sequence of events as outlined above and that their respective treatment of decedent did not violate the standard of care.

The jury began its deliberations on Friday afternoon, June 1, 1990, and reached its verdict on the following Tuesday morning. During its deliberations, the jury sent four notes to the trial judge indicating its inability to agree on a decision for Dr. Bernstein. The trial judge responded to the jury’s notes by requesting that it continue deliberations on the evidence and instructions presented. The jury then entered not guilty verdicts for both Drs. Bernstein and Marvelli.

Plaintiff first asserts that the trial court abused its discretion in granting Dr. Bernstein’s motion in limine to exclude evidence concerning Sue Garber. Plaintiff argues that the proffered evidence on Sue Garber and her condition was relevant to the issue of whether or not Dr. Bernstein breached the standard of care by failing to admit decedent to the ICU because Dr. Bernstein could have moved Sue Garber out of the ICU to accommodate decedent.

Dr. Bernstein responds that the evidence regarding Sue Garber was properly excluded because: (1) the evidence was irrelevant, and (2) plaintiff failed to lay the foundation necessary to allow the admission of the material relating to Ms. Garber.

The grant or denial of a motion in limine is a matter within the trial court’s discretion. (Moore v. Bellamy (1989), 183 Ill. App. 3d 110, 115, 538 N.E.2d 1214.) The threshold question in ruling on a motion in limine is whether the rules of evidence require exclusion of the subject matter of the motion. Moore, 183 Ill. App. 3d at 116.

The plaintiff in a medical malpractice action must establish through expert testimony the standard of care by which the defendant’s conduct is to be measured, that the defendant deviated from this standard of care, and that defendant’s conduct caused injury to the plaintiff. (Mazzone v. Holmes (1990), 197 Ill. App. 3d 886, 899, 557 N.E.2d 186.) The only exception to this rule is known as the “common knowledge” exception, which applies where “ ‘the physician’s negligence is so grossly apparent or the treatment so common as to be within the everyday knowledge of a lay person.’ ” Mazzone, 197 Ill. App. 3d at 899, quoting Purtill v. Hess (1986), 111 Ill. 2d 229, 242, 489 N.E.2d 867.

In the present case plaintiff clearly had the opportunity through the testimony of her experts, i.e., Drs. Rosen and Gordon, to lay a foundation for the admission of evidence concerning Sue Garber and her connection to the standard of care by which Dr. Bernstein’s conduct would be measured. Plaintiff conceded the lack of a proper foundation and the total absence of any expert testimony that the standard of care was breached by not transferring Sue Garber out of ICU.

When plaintiff’s counsel attempted to have Sue Garber’s medical records admitted, he acknowledged that he had no evidence that Dr. Bernstein breached the standard of care by not moving Sue Garber, that he would attempt to explore this issue “through Dr. Bernstein,” although “Dr. Bernstein would not have testified to that.”

We find that plaintiff failed to satisfy the Mazzone standard because she offered no expert testimony to support the theory that the standard of care required Dr. Bernstein to consider the condition of other patients he was attending to determine if such ICU patient should be transferred to make space available for decedent. Absent a proper foundation for the admission of evidence relating to Sue Garber as to the standard of care, the trial court did not abuse its discretion in excluding this evidence.

Next, plaintiff asserts that the trial judge refused to accept the jury’s statements of deadlock and thus improperly coerced a verdict.

On Friday afternoon, June 1, 1990, the jury began its deliberations and failed to reach a decision. Accordingly, the jury was sent home about 4:30 p.m. with instructions to return on Monday, June 4.

On Monday, June 4, about 11:52 a.m., the trial judge received the following note from the jury:

“Your Honor, we the jury feel that Dr. Marvelli is not guilty of these charges. On Dr. Bernstein, we cannot come to an agreement, and at this point we feel we are hung jury. Please advise.”

After consulting with the attorneys, the trial judge spoke to the jurors in open court. The foreperson acknowledged that the jurors were still speaking to one another but indicated that in his opinion they were deadlocked. The trial judge then gave a cautionary instruction for a deadlocked jury (Illinois Pattern Jury Instructions, Civil, No. 1.05 (2d ed. 1981)), reasoning that the testimony taken in this case took six to seven days and the jury had deliberated about seven hours. The trial judge then instructed the jurors to have lunch and not to deliberate further until they completed lunch. Plaintiff, on appeal, does not contend that this instruction was coercive.

At 2:15 p.m. on that same Monday, the trial judge received a second note from the jury stating: “We cannot come to a unanimous decision regarding this case. Please advise.” The trial judge, with the attorneys present, again spoke to the jurors in open court and requested that they continue deliberations.

At 3:05 p.m. the trial judge received a third note stating: “Deliberations on this jury have concluded.” In response, the trial judge sent a note to the jury stating: “Please continue to deliberate on the evidence and the instructions you received in an effort to arrive at a unanimous verdict.”

At 4:50 p.m. the trial judge received a fourth note stating: “Your Honor, we are deadlocked at eight to three in our voting.” At 5:30 p.m., following discussion with counsel, the trial judge addressed the jurors and stated: “Given the trial time that we’ve had in this case, I’d like you to get a good night sleep, come back tomorrow at 9:30.”

The next day, shortly before 11 a.m., the jury reached its verdict. The jurors were polled and the verdict was unanimous.

The decision as to the length of time a jury will be kept in deliberation rests within the sound discretion of the trial judge. (Jarmon v. Jinks (1987), 165 Ill. App. 3d 855, 866, 520 N.E.2d 783; Fontanne v. Federal Paper Board Co. (1982), 105 Ill. App. 3d 306, 317, 434 N.E.2d 331.) Absent an abuse of discretion, this court will not reverse. Jarmon, 165 Ill. App. 3d at 866.

The mere fact that the jurors declare their inability to agree does not satisfy the test as to when they may be discharged. (Huwe v. Commonwealth Edison Co. (1975), 29 Ill. App. 3d 1085, 1087, 332 N.E.2d 60.) To warrant a discharge, it must appear, considering the length of time the jurors have been deliberating and their inability to agree, that they will never agree. (Huwe, 29 Ill. App. 3d at 1087.)' Even after a jury has indicated that it is hopelessly deadlocked, the trial judge still has discretion to allow further deliberation and to determine the reasonableness of such deliberation. Jarmon, 165 Ill. App. 3d at 866.

Sending a jury back for further deliberation does not ordinarily amount to coercion of the verdict. (Huwe, 29 Ill. App. 3d at 1087.) The reasonableness of the deliberation period depends on factors such as the length of the trial, the nature or complexity of the case, the volume and nature of the evidence, and- the presence of multiple counts or multiple defendants. Huwe, 29 Ill. App. 3d at 1087.

We find that the trial judge did not improperly coerce a verdict by instructing the jury to continue its deliberations. The jury was presented with two defendants, a seven-day trial, and the testimony of 19 witnesses, including 4 experts. The trial judge received all four notes from the jury in less than a five-hour period of time on the same day, Monday. Given the complexity of the issues raised, the nature of a medical malpractice action, the length of the trial, the volumes of testimony, the presence of two defendants, the experience of the trial judge, the wide latitude afforded a trial judge in determining whether to continue or end the jury’s deliberations, and the short time span in which the jury presented its notes, we find no abuse of discretion in the trial court’s actions.

Finally, plaintiff asserts that the verdict is arbitrary and unsupported by the evidence because neither Dr. Bernstein nor Dr. Marvelli performed within the appropriate standard of care.

As to Dr. Bernstein, plaintiff contends that he breached the standard because he knowingly sent decedent to an unmonitored bed when he could have left her in the emergency room on a monitor and in the care of the emergency room doctor, who could observe her, read the monitor, and react to emergency situations.

As to Dr. Marvelli, plaintiff contends that he failed to communicate accurate information to Dr. Bernstein and failed to be informed as to where decedent was going upon leaving the emergency room. Plaintiff argues that Dr. Marvelli should have kept decedent in the emergency room until Dr. Bernstein arrived.

In reviewing a jury verdict on appeal, the inquiry is whether the result reached by the jury was one which is reasonable on the facts in evidence, not whether other conclusions might also have been reached. (Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 423, 412 N.E.2d 447.) Accordingly, a jury verdict -will not be set aside merely because the jury could have drawn different inferences and conclusions. Coldwell Banker Residential Real Estate Services of Illinois, Inc. v. Jepsen (1988), 172 Ill. App. 3d 662, 527 N.E.2d 79 (the court declined to disturb the jury verdict because it was supported by reasonable inferences and conclusions drawn from the evidence).

To prevail in a medical malpractice action, the plaintiff must prove the proper standard of care against which the defendant physician’s conduct is measured, that the defendant failed to comply with the applicable standard, and that the defendant’s lack of skill or care proximately caused the resulting injury. Addison v. Whittenberg (1988), 124 Ill. 2d 287, 297, 529 N.E.2d 552, quoting Purtill v. Hess (1986), 111 Ill. 2d 229, 241-42, 489 N.E.2d 867.

When considering the evidence in the light most favorable to the appellees and applying the requisite deferential standard of review, we cannot say that the jury’s result is unreasonable on the facts in evidence. Accordingly, we find that the jury verdict is not against the manifest weight of the eviden'ce.

Judgment affirmed.

RIZZI and CERDA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CERDA

license: Public Domain

text:
    THE CITY OF CHICAGO, Plaintiff-Appellee, v. ASPHALT RECOVERY SYSTEMS, INC., et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1—91—2434
    Opinion filed June 17, 1992.
    Michael Null, of Chicago, for appellants.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, Kathleen Hennessey, William Chamberlain, and Jean Dobrer, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE CERDA

delivered the opinion of the court:

Defendants, Asphalt Recovery Systems, Inc., an Illinois corporation (ARS), and Michael M. Gaudio, appeal from the entry of a preliminary injunction against them in favor of plaintiff, the City of Chicago. Defendants argue that the trial court erred in enjoining them from continuing to accept used asphalt roofing and related material for recycling into cold patch and other products. Defendants argue that they were not operating a waste dump because none of the material present on their property constituted “waste” within the meaning of the applicable environmental ordinance. We affirm.

The Chicago Zoning Ordinance, which is title 17 of the Chicago Municipal Code (the Code), provides for “planned developments,” the stated purpose of which is to create districts for specialized purposes. (Chicago Zoning Ordinance §11.11 (1992).) The City Council of Chicago amended Map No. 12 — G of the Chicago Zoning Ordinance (Chicago Zoning Ordinance, Map 12 — G (1992)) to change the zoning of defendants’ property to a “Manufacturing Planned Development” (MPD). (Chicago City Council Journal, December 6, 1987, at 7554-57.) According to this MPD ordinance:

“3. All applicable official reviews, approvals and permits required shall be obtained by the Applicant.
5. The uses of the area delineated as Manufacturing Planned Development will consist of structures, facilities and equipment for the recycling of asphalt materials, paperboard materials, and other recyclable materials, including outdoor storage of such materials, and the cleaning, bundling, compacting, packing and other processing of such materials for use as a new material in a manufacturing process or reuse as consumer products. The structures, facilities and equipment will be devoted to the storage and recycling of materials containing asphalt and other recyclable materials and the activities related to the operation of a Class II Recycling Facility, in compliance with all applicable performance standards for an M2 — 2 General Manufacturing District.” Chicago City Council Journal, December 6, 1987, at 7555.

Plaintiff’s complaint for injunctive and other relief alleged the following. ARS leased the property at 4835 S. Morgan Street with the stated intention of carrying on a business of recycling used asphalt shingles. Since about 1986, defendants used the property as a dump site for used asphalt shingles, construction debris, tires, and other waste material. Defendants permitted private waste haulers to dump material on the property after the payment of a fee based on the number of cubic yards of waste material. The dumped waste material covered an area of about seven acres in area and 20 feet in height. Defendants had been attempting to create a mechanical process for recycling the shingles by grinding them up into reusable asphalt, but the efforts at perfecting a recycling method had not been successful. Defendants had not sold recycled asphalt, and their income was almost exclusively made from the dumping fees paid by private waste haulers.

Plaintiff further alleged in count I that defendants’ creation of a dump violated section 17 — 6.2 (now section 11 — 4—1500) of the Chicago Municipal Code (the Code):

“No solid or liquid waste shall be treated or disposed of within the city of Chicago except in accordance with this chapter. ***
No persons shall (1) cause or allow the open dumping of any waste, (2) abandon or dispose of any waste upon public property, except in a sanitary landfill approved by the Illinois Environmental Protection Agency and the Commissioner, (3) dispose, treat, abandon or transport any waste, except at a site or facility which meets the requirements of the Illinois Environmental Protection Act and which is permitted pursuant to this chapter.
Disposal or treatment of any waste without a permit is hereby declared to be a nuisance.” (Chicago Municipal Code §11-4-1500 (1990).)

Defendants had not obtained any annual permits for the dumping of waste on their property. Nor had defendants obtained a permit from the Illinois Environmental Protection Agency to operate a waste disposal facility. In count II, plaintiff alleged that the business’ continued operation was a public nuisance.

Plaintiff requested the following relief: (1) preliminary and permanent injunctions enjoining defendants from dumping any further waste material on their property; (2) preliminary and permanent injunctions requiring defendants to remove all the waste material dumped on the property; and (3) a $500 fine for each day that waste material was deposited and allowed to remain on the property without a permit.

Plaintiff next filed a motion for a temporary restraining order and/or a preliminary injunction enjoining defendants from dumping any further waste material on the property. Plaintiff argued that the dump site was operated in violation of section 11 — 4—1500 and was a public nuisance.

Defendants admitted in response to a request to admit that as of June 1,1991, they received fees known as “tipping fees.”

David Inman, the deputy commissioner of plaintiff’s Environment Protection Division of the Department of Consumer Services, testified to the following at the hearing. He visited defendants’ property and observed a large amount of roofing material with other materials mixed in, including plastic, wood, and nails. On a second visit, he observed a larger quantity of material on the site. The entire property was about seven acres, and the material on the site covered about four to five acres. The height of the material was about 25 or 30 feet. From April 1987 through June 1991, close to 251,000 cubic yards of the material was collected. The material on the site belonged to defendants, and he had no reason to believe that the material was abandoned.

Inman further testified that there was a building and machinery on defendants’ property that was intended for the crushing, shredding, and separating of the material in order to make a ground asphalt type of material, which could be used as raw product in the production of the final product of cold patch. Cold patch was material used to patch potholes and to “cut sleeves” in alleys and streets. From August 1990 through June 1991, defendants produced 6,541 tons of cold patch. ARS did not have a recycling license.

Jeffery A. Ferg, an environmental engineer for plaintiff, testified to the following. On a recent visit to the site, he observed stockpiled roofing debris containing asphalted shingles, asphalted tar, different compounds used in roofing work, metallic sheeting, metal shards, tin, plastic, wood, brick, concrete, and foam insulation. The material was in a continuous pile so that there was no access to it, and there were no fire lanes. If there were a fire, it would create a significant hazard to anyone living downwind of the site, and the material would generate a significant amount of air pollution. There was a risk of the asphalt material leaching into the soil or the groundwater. Soil from the site was analyzed, and the results found significant levels of arsenic, selenium, lead, other heavy metals, and polynuclear aromatics. At a rate of 200 tons a day and a 40-hour work week for 50 weeks in a year, it would take 10 years to process the 255,000 tons of the material present on the site.

Defendant Michael M. Gaudio, ARS’ president, testified to the following. Defendants started producing cold patch in August 1990. Defendants also produced ground roofing, and 15,000 tons of ground roofing had been ground at the site.

Phillip B. Shepard testified to the following. His past employment involved research concerning asphalt recycling. Defendants had a viable manufacturing operation, and the site was not a hazard.

After the hearing, the trial court preliminarily enjoined defendants from receiving any used asphalt shingles, roofing waste, construction debris, or any other waste for disposal, storage, or recycling. Defendants appeal from that ruling.

Defendants argue that the trial court erred in entering the preliminary injunction because none of the material at the site was waste and because ARS was not operating a waste dump. Specifically, defendants argue that: (1) ARS was storing raw material for its pro-. cess, which it was authorized to do by the MPD; (2) the stored material was recyclable material, according to the MPD; (3) plaintiff’s own deputy commissioner testified that the material belonged to defendants, so that the abandonment element of the definition of waste was not satisfied; (4) the specific MPD ordinance controlled over the more general provisions of the environmental control ordinance, which did not include asphalt within its definition of recyclable materials; and (5) the MPD ordinance should be construed together with the environmental control ordinance, under the in pari materia doctrine, because they related to a common subject.

Plaintiff argues that the asphalt and other debris at the site constituted waste and that defendants were operating a waste dump because: (1) the material was abandoned or discarded; (2) asphalt roofing debris was not listed as a recyclable material in the Code; (3) common sense required the conclusion that 255,000 tons of any material that had been dumped over five years on an open lot and that would take 10 years to process constituted waste; (4) the Code limited to 60 days the length of time that recyclable material may be stored; (5) the material was waste “under any definition” because of its volume and the long time it had been accumulating; (6) material that was discarded by haulers before being recycled could not be treated like material that was recycled as part of an ongoing manufacturing process; (7) the MPD could not amend the Code to include the asphalt material in the definition of recyclable material because the MPD only stated that it was an amendment to the zoning ordinance; (8) the environmental control ordinance unambiguously excluded asphalt material from the definition of recyclable material and therefore the material on the site constituted waste and the zoning ordinance and the environmental control ordinance could not be read in pari materia; and (9) the MPD ordinance provided that any required permits had to be obtained, and therefore the MPD could not be deemed to have waived or altered the requirements of the environmental control ordinance.

Plaintiff also argues that the injunction was appropriate for reasons other than the alleged violation of the ordinance prohibiting the dumping of waste: (1) defendants did not obtain a recycling license; (2) in violation of the MPD, the waste covered more than 50% of the site; (3) defendants stored some material for more than 60 days; and (4) defendants unlawfully stored the asphalt roofing on the ground instead of in receptacles. But these arguments were not raised below and therefore were waived. (Harbor Insurance Co. v. Arthur Andersen Co. (1986), 149 Ill. App. 3d 235, 240, 500 N.E.2d 787.) The motion for an injunction alleged only the violation of the ordinance prohibiting the dumping of waste.

Section 11 — 4—120 of the Environmental Protection and Control chapter of the Code defines recyclable material to mean:

“any aluminum or nonferrous scrap, bimetal or tin cans, glass and paper products, rubber, textiles, wood, landscape waste or plastic products such as polyethylene terphlate, high-density polyethylene, low-density polyethylene, polystryrene or polypropylene.” (Chicago Municipal Code §11 — 4—120 (1990).)

The section also defines waste:

“any discarded or abandoned material in solid, semisolid, liquid or contained gaseous form, including but not limited to, industrial process waste, hazardous waste, municipal waste, special waste, garbage, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility.” (Chicago Municipal Code §11 — 4—120 (1990).)

“Municipal Waste” is in turn defined as:

“garbage, general household and commercial waste, landscape waste and construction or demolition debris.” (Chicago Municipal Code §11 — 4—120 (1990).)

But waste excludes:

“(1) Sewage collected and treated in a municipal or regional sewage system; or
(2) Recyclable materials ***.” (Chicago Municipal Code §11-4-120 (1990).)

The chapter provides for a permit for the operation of a sanitary landfill. Chicago Municipal Code §11 — 4—120 (1990).

Chapter 4 — 248 of the Code, which regulates recycling facilities, provides that no person shall engage in the business of recycling or shall operate a recycling facility without a license. (Chicago Municipal Code §4 — 248—020 (1990).) The chapter’s definition of recyclable material is virtually identical to the one quoted above. The chapter prohibits the storage of recyclable materials at any recycling facility for longer than 60 days. (Chicago Municipal Code §4 — 248—120 (1990).) There is a provision that states that nothing contained in the chapter applied to the recycling or recovery of waste materials by a manufacturer for reuse in a manufacturing process. Chicago Municipal Code §4-248-150 (1990).

We hold that the materials stored at the ARS site fall under the definition of waste given in the environmental control ordinance. The material was of the type covered by the definition of waste and not of the type covered by the definition of recyclable material. The material was discarded by the waste haulers, and therefore the fact that the waste now belonged to defendants did not convert the material from waste to nonwaste. Although the MPD specifically stated that asphalt material was considered recyclable, the MPD did not amend the environmental control ordinance, which is a separate ordinance with its own definitions. The MPD ordinance changed the zoning of the property to permit as a use of the property the operation of an asphalt recycling facility, but applicable licenses still had to be obtained in order to actually operate the facility. We do not determine which type of license defendants required, but, without a permit either to dispose of waste or to recycle, it appears defendants were operating an illegal waste dump. Defendants allowed the open dumping of waste and, on that basis, the preliminary injunction was properly issued.

The judgment of the trial court is affirmed, and the cause is remanded.

Affirmed and remanded.

GREIMAN, P.J., and RIZZI, J., concur.

      The only difference is that the definition includes nonferrous scrap metal and polyethylene terephtate (instead of terphlate).


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BONNOLYN DURDEN, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—1782
    Opinion filed June 18, 1992.
    Rehearing denied July 1, 1992.
    Rita A. Fry, Public Defender, of Chicago (Evelyn G. Baniewicz, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Frank Cece, Jr., Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a bench trial, defendant Bonnolyn Durden was found guilty of aggravated battery and armed violence and sentenced to six years in prison. On appeal, she contends that the State’s evidence was insufficient to prove that she was unjustified in her use of force. She also maintains that the trial court improperly found her guilty of armed violence.

Background

This case involves a shooting which took place during the evening of January 1, 1988, in defendant’s apartment at 301 West Marquette in Chicago. Two persons were injured: Sonseray Weddington was shot in the back and her 18-month-old son was shot in the arm.

When Weddington arrived at defendant’s apartment to pick up her son, defendant was sleeping in the bedroom with her grandchild. Defendant, who had consumed a considerable amount of alcohol and tranquilizers, was awakened when her roommate Vanessa Kelly came in screaming because her arm had been cut in a fight in the other room.

According to the victim, defendant ran from the bedroom yelling “who cut my baby?” referring to Kelly, then she returned to her bedroom to retrieve a semi-automatic pistol and an ammunition clip. Defendant appeared angry and accusatory and pointed the gun at several different persons before threatening the victim with death. She then fired a shot into the victim’s back as the victim fled into the bedroom. The victim heard another round fired before she grabbed her son and lay on top of him to protect him. Defendant then grabbed the telephone cord from the wall and threatened the victim if she told anyone.

The Chicago police detective who interviewed defendant testified that defendant told him that the pistol discharged after she placed the ammunition clip in the gun and cocked it.

Three women testified on defendant’s behalf. Latasha Hodges testified that Kelly was cut by a six-inch razor wielded by the victim during a fight with the victim’s sister. On cross-examination Hodges testified that defendant loaded the clip into her gun and shot the victim in the back after failing to learn who cut Kelly.

Kelly testified that the victim cut her arm with a “box cutter” when she tried to stop a fight between the victim and the victim’s sister. She then began yelling. Her cut required 33 stitches.

Yvonne Bonner confirmed Kelly’s version of the cut on her arm and testified that defendant was drunk when she came out of the bedroom with a gun and told the others that no one could leave until she learned who injured Kelly. After Bonner fled she heard a shot. According to Bonner defendant called police.

Defendant testified that she was awakened by Kelly’s screaming and frightened by her injury. She then tried to find out what happened. When no one could tell her, she found her gun and an ammunition clip. She put the clip in the gun but someone told her not to use it. As she unloaded the clip, the gun fired. She then went to check on the victim and called police. Defendant denied pointing the gun at anyone, denied ever firing it previously and stated that she kept the gun for protection.

Opinion

Defendant first contends that the trial court erred in finding her guilty beyond a reasonable doubt of aggravated battery and armed violence based on aggravated battery because the evidence supports self-defense, the defense of others and accident. We disagree for the following reasons. When defendant introduces sufficient evidence of an affirmative defense, the prosecution has the burden of disproving the affirmative defense beyond a reasonable doubt as well as proving all the other elements of the crime. (People v. Scott (1989), 180 Ill. App. 3d 418, 535 N.E.2d 1113, appeal denied (1989), 126 Ill. 2d 565, 541 N.E.2d 1113.) For aggravated battery the prosecution is obligated to prove beyond a reasonable doubt that defendant in committing the battery intentionally or knowingly caused great bodily harm. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(a).) For armed violence the prosecution must prove that defendant committed aggravated battery while armed with a dangerous weapon. (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2.) In finding defendant guilty of both crimes, the trial court did not comment on the sufficiency of defendant’s affirmative defenses. In our view, however, there is little evidence to support any of the proposed defenses. Self-defense is not available here because defendant was not in danger, no force had been threatened against her nor was force necessary to avert harm. (People v. Ellis (1989), 187 Ill. App. 3d 295, 543 N.E.2d 196, appeal denied (1990), 131 Ill. 2d 562, 553 N.E.2d 398.) After defendant awoke and left the bedroom to find out why Kelly had been cut, she returned to her bedroom to get her gun. She had not been threatened and was not pursued, yet she placed the clip in her gun. It is irrelevant whether she pointed it toward the victim or whether she threatened the victim because none of the factors justifying self-defense were present. Neither shooting in retaliation nor revenge is permitted as self-defense. People v. Tirrell (1980), 87 Ill. App. 3d 511, 408 N.E.2d 1202.

The defense of others fails for similar reasons. Although Kelly was injured, she was not in any further danger. After her arm was cut, she ran into the bedroom. The victim, whom two witnesses identified as holding a sharp weapon during a fight, did not pursue her. Thus defendant’s defense of others is baseless.

Finally, the trial court rejected defendant’s claim of accidental firing. None of her witnesses gave this version, and it is clear that defendant retrieved her gun when the fight was over and actually placed the clip in the gun. According to the victim, defendant appeared angry and threatening and pointed the gun at several persons.

When a challenge is made to the sufficiency of evidence, the relevant inquiry is whether, after viewing the evidence in light most favorable to the prosecution, a rational trier of fact could have found all the elements beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461.) A criminal conviction will not be set aside unless the evidence is so improbable and unsatisfactory that it creates a reasonable doubt of defendant’s guilt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.

Defendant next asserts that she was not properly convicted of armed violence, a Class X offense which carries a minimum six-year sentence, because attempted second degree murder was the proper charge. Defendant points to the trial court’s comments on sentencing where the court commented that if it were not required by the Class X statute to impose a minimum sentence, a less stringent sentence would be more appropriate. Defendant also reargues the facts which support her conviction for aggravated battery. However, defendant argued on her motion for acquittal at the close of the State’s case that she could not be found guilty of attempted first degree murder because she did not have specific intent to kill the victim. The trial court agreed and entered a judgment of acquittal on that count. Since attempted second degree murder also requires a finding of specific intent (People v. Moore (1990), 204 Ill. App. 3d 694, 698, 562 N.E .2d 215, appeal denied (1991), 136 Ill. 2d 550, 567 N.E.2d 338), defendant is precluded from relying on this argument as a reason to reduce her sentence. Because of this determination, we do not reach the issue of whether the crime of attempted second degree murder exists in Illinois. (See People v. Reagan (1983), 99 Ill. 2d 238, 240-41, 457 N.E.2d 1260; People v. Williams (1991), 220 Ill. App. 3d 460, 464-65, 581 N.E .2d 113.) Defendant was sentenced to the minimum under the armed violence statute, and we have not been asked to review the sentencing discretion of the trial court. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

Accordingly, the judgment of the circuit court is affirmed.

Judgment affirmed.

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


author: JUSTICE McNAMARA

text:
    MARIANNE THOMPSON, Mother and Next Friend of James Thompson, a Minor, Plaintiff-Appellee, v. COOK COUNTY FOREST PRESERVE DISTRICT, Defendant-Appellant and Separate Appellee (Marianne Thompson, Indiv., Plaintiff and Separate Appellant; Thomas Allie, Defendant).
    First District (6th Division)
    Nos. 1—91—0251, 1—91—0320 cons.
    Opinion filed June 19, 1992.

      Robert P. Sheridan, of Chicago, for Cook County Forest Preserve District.
    Michael J. McArdle, Chartered, of Chicago, for Marianne Thompson.
   JUSTICE McNAMARA

delivered the opinion of the court:

These consolidated appeals arise from a negligence action filed in the circuit court of Cook County by plaintiff, Marianne Thompson, in her capacity as mother and next friend of her minor son James. Seven-year-old James was injured when struck by a car on June 12, 1983, at a forest preserve owned by defendant, the Cook County Forest Preserve District (the Forest Preserve). Defendant Thomas Allie, the driver of the automobile, is not involved in this appeal.

Count I of plaintiff’s third amended complaint against the Forest Preserve alleged negligent failure to design the facility and to give adequate warnings; count II against the Forest Preserve made the same essential allegations characterizing it as willfully and wantonly negligent; count III against Allie alleged the negligent operation of his vehicle. The trial court denied the Forest Preserve’s motion to dismiss plaintiff’s third amended complaint. In July 1990, at the start of trial, the trial judge granted plaintiff’s motion to file an additional count on her own behalf seeking damages for medical expenses under the expenses of family statute. (Ill. Rev. Stat. 1983, ch. 40, par. 1015.) After a trial, the jury returned a verdict against both defendants for $960,000 reduced by 25% for contributory negligence, bringing the final amount to $675,000 for James and $45,000 to plaintiff individually under the family expense statute. The trial court subsequently granted the Forest Preserve’s motion for judgment notwithstanding the verdict on the family expense count, but denied all other relief requested by the Forest Preserve, and entered judgment for plaintiff in the amount of $675,000.

On appeal, the Forest Preserve argues that it owed plaintiff no duty under these facts, nor was any failure on its part shown to be a probable cause of James’ injury. Plaintiff’s appeal challenges the trial court’s order granting judgment notwithstanding the verdict to the Forest Preserve on the family expense statute.

The pertinent evidence adduced at trial is summarized below. The recreational area where the accident occurred served as a parking area and a roadway with two-way traffic; the rest rooms and the water pump were located on opposite sides of the parking area and roadway, but were not adjacent to one another; picnic tables were spread throughout the area. The accident occurred about five feet from the pump. At the time of the accident, there were no painted stripes indicating parking spaces. A 15-mile-per-hour speed limit sign was posted. The parties dispute whether the facility was a roadway or a parking lot.

James Thompson testified that he went to the forest preserve on the day of the accident with his friend, Brett Huntington, and Brett’s father. He did not recall the accident itself, but remembered only being rushed to the hospital.

Nick Huntington testified for plaintiff that he took James, with his mother’s permission, to the forest preserve with his seven-year-old son, Brett, and his three-year-old daughter, Jaime. He parked in the vicinity of a water pump and brought sandwiches to the adjacent picnic area. The rest rooms were across the roadway. He told the children to hold hands when they went to the rest room, and he watched them cross as he stood several feet from the curb where he played horseshoes. He saw the children return from the bathroom and approach the roadway. He heard an engine revving, and although the other children paused, James crossed the street. Huntington testified that he believed James “thought he could beat the truck.”

Allie testified as an adverse witness that at about 5:45 p.m. on the day of the incident, he drove his “Toyota 4x4 truck” at 17 miles per hour through the parking area looking for someone that he knew. He saw the sign, which indicated a 15-mile-per-hour limit. He knew that there were toilet facilities, but did not see anyone crossing in front of him. Allie did not see James before he struck him; he saw the left side of James’ face strike the right front fender of his truck above the wheel wall.

Plaintiff presented the expert testimony of Ronald Ruhl, a consulting engineer and professor of engineering at the University of Illinois. He reviewed documents regarding the accident and the facility’s design, and visited the facility. He described the facility as a parking lot and roadway, and stated that the design presented hazards to pedestrians and vehicles. He testified that the facility needed a six-foot-wide pedestrian crossing, and pedestrian crossing signs. He stated that the recreation area failed to demarcate a safe area to cross and that patrons crossed anywhere.

Lloyd Sonenthal, a consulting engineer, testified for the Forest Preserve and characterized the area as an “off-street parking facility.” In his opinion, crosswalks were unnecessary because pedestrians came from nonspecific points. He stated that crosswalks are intended to funnel large groups of pedestrians from one clearly defined point to another. He believed that the signage was adequate, and that crosswalks would not have prevented the accident. He agreed that if the roadway was a street, a pedestrian crosswalk should have been provided.

The Forest Preserve contends that it owed no duty to plaintiff under these facts. To properly state a negligence cause of action, plaintiff must establish that defendant owed a duty of care, a breach of that duty, and an injury proximately caused by the breach. (Marshall v. City of Centralia (1991), 143 Ill. 2d 1, 570 N.E.2d 315.) Whether defendant owed plaintiff a duty of care is a question of law to be determined by the court. (McLane v. Russell (1989), 131 Ill. 2d 509, 546 N.E.2d 499.) Whether a legal duty exists requires consideration of foreseeability of possibility of harm, the burden of guarding against the injury and the consequence of placing that burden on the defendant. (Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 566 N.E.2d 1365.) Absent a legal duty, plaintiff cannot recover in negligence as a matter of law. Beal v. Kuptchian (1987), 164 Ill. App. 3d 191, 517 N.E.2d 712.

In plaintiff’s third amended complaint and before this court, plaintiff claims that the Forest Preserve owed plaintiff a duty under section 3 — 104(b) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (Ill. Rev. Stat. 1983, ch. 85, par. 3 — 104(b)). Count I of plaintiff’s third amended complaint alleged that defendant breached this duty by:

“(a) Designing] a roadway without markings for traffic flow, where such markings were necessary to warn of this condition which endangered the safe movement of traffic, and which was not resonably [sic] apparent to a person in exercise of due care;
(b) Designing] and operating] a parking area through which a roadway was maintained without pedestrian crosswalks ***;
(c) Operating] a public roadway without speed limit designation ***;
(d) Failing] to provide pedestrian crosswalks in the area of its toilet facilities when it knew, or should have known, that members of the general public would cross the roadway to use such toilet facilities ***;
(e) Failpng] to install a warning sign of a dangerous condition which would warn operators of motor vehicles, *** of the likelihood of pedestrians crossing the roadway at or near its toilet facilities ***;
(f) Failpng] to design, install or operate a device warning of a dangerous condition such as ripple strips or speed bumps, which would warn and remind motor vehicle operators of the presence of pedestrians ***;
(g) Failpng] to consult with experts in the field of parking lot and roadway design when it knew, or should have known, expert assistance was necessary in the design, construction and maintenance of public roadways and parking areas.”

Plaintiff alleged that James was injured as a proximate result of one or more of the above breaches by defendant. For the herein stated reasons, we reject plaintiff’s reliance on section 3 — 104(b) and conclude that defendant owed plaintiff no duty to provide crosswalks or warnings under the Act or the common law.

The purpose of the Tort Immunity Act is to “protect local entities and public employees from liability arising from the operation of government.” (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 101.1(a).) The Act adds no new duties to those which existed prior to its codification (Charpentier v. Chicago (1986), 150 Ill. App. 3d 988, 502 N.E.2d 385), but rather continues common law duties respecting the liability of a municipality in the maintenance of its public ways. (Warchol v. Chicago (1979), 75 Ill. App. 3d 289, 393 N.E.2d 725.) Section 3-102(a) “articulates the common law duty to which the subsequently delineated immunities apply.” (Horrell v. Chicago (1986), 145 Ill. App. 3d 428, 435, 495 N.E.2d 1259, 1264.) Section 3 — 102(a) provides as follows:

“(a) Except as otherwise provided in this Article, a local 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 the entity 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 proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in sufficient time prior to an injury to have taken measures to remedy or protect against such condition.” Ill. Rev. Stat. 1983, ch. 85, par. 3 — 102(a).

The applicable version of section 3 — 104(b) provides as follows:

“(b) Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to provide traffic warning signals, signs, markings or other devices unless such a signal, sign, marking or device was necessary to warn of a condition which endangered the safe movement of traffic, and which would not be reasonably apparent to or anticipated by a person in the exercise of due care.” (Ill. Rev. Stat. 1983, ch. 85, par. 3-104(b).)

We note parenthetically that subsection (b) has since been deleted by a 1986 amendment, and that the current statute immunizes municipalities from liability for failing to post any traffic warnings at all. Ill. Rev. Stat. 1987, ch. 85, par. 3 — 104; Newsome v. Thompson (1990), 202 Ill. App. 3d 1074, 560 N.E.2d 974.

The “duties” referred to in section 3 — 104(b) and the other exceptions to the immunities provisions (Ill. Rev. Stat. 1983, ch. 85, pars. 3 — 103 to 3 — 108) all derive from the basic common law duty articulated in section 3 — 102. Our courts have repeatedly held that where defendant owes no duty under section 3 — 102 of the Act, no duty exists under the subsequent immunity sections either. (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 456 N.E.2d 116; Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 523 N.E.2d 594; Horrell v. Chicago, 145 Ill. App. 3d 428, 495 N.E.2d 1259.) In Curtis, our supreme court wrote:

“[T]he duty of care described in section 3 — 103 derives from the more basic delineation of governmental duty found in section 3 — 102. In light of the absence of any duty owing to [plaintiff under the latter section, no duty existed under the former.” (Curtis, 98 Ill. 2d at 165, 456 N.E.2d at 120.)

In Swett, this court initially determined that no duty existed under section 3 — 102. This conclusion disposed of plaintiff’s claims under sections 3 — 103 and 3 — 104 because if defendant owed no duty under 3 — 102 of the Act, “[it] could owe no duty to plaintiffs under the exceptions to immunity in sections 3 — 103 and 3 — 104, either.” (Swett, 169 Ill. App. 3d at 95-96, 523 N.E.2d at 606.) This court reached a similar conclusion in Horrell v. Chicago, concluding that defendant could owe no duty to plaintiff under section 3 — 103 because defendant owed no duty to plaintiff under the common law. Horrell, 145 Ill. App. 3d at 435, 495 N.E.2d at 1264.

Under the holdings of Curtis, Swett, and Horrell, we reject plaintiff’s claim that section 3 — 104(b) established defendant’s duty to plaintiff. This authority instructs us that the threshold question for our inquiry is whether the Forest Preserve owed plaintiff a common law duty, as codified in section 3 — 102, to provide a crosswalk, or a warning sign, device or marking to warn that pedestrians would be crossing the roadway. We conclude that no duty existed under these facts.

Under common law, local governments have a duty to maintain public property in a reasonably safe condition. (Ill. Rev. Stat. 1983, ch. 85, par. 3 — 102; Curtis v. Cook, 98 Ill. 2d 158, 456 N.E.2d 116.) It is well settled that a municipality is responsible for the negligent construction of public works and for the failure to maintain them, but has no duty for its negligence or refusal to undertake such improvements generally. (West v. Kirkham (1992), 147 Ill. 2d 1, 588 N.E.2d 1104; Havens v. Harris Township (1988), 175 Ill. App. 3d 768, 530 N.E.2d 284; Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, 522 N.E.2d 215; Charpentier v. Chicago, 150 Ill. App. 3d 988, 502 N.E.2d 385; Harding v. Chicago Park District (1975), 34 Ill. App. 3d 425, 339 N.E.2d 779.) A duty only arises when a public improvement is actually undertaken. (Bowen v. City of Harvey (1987), 164 Ill. App. 3d 637, 518 N.E.2d 203.) The law is also clear that if no duty to undertake the improvement exists in the first instance, then there is no corresponding need to warn of any alleged dangerous condition that results from the absence of the public improvement. Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 502 N.E.2d 357.

We find Horrell dispositive on defendant’s duty to provide a crosswalk. In Horrell, this court determined that defendant owed plaintiff no statutory or common law duty to construct a crosswalk for a bus stop at a busy intersection. The court reasoned that the “traditional common law duty of local governments concerning public property is a duty to maintain that property in a reasonably safe condition,” but does not require the creation of public improvements, such as crosswalks. (Horrell, 145 Ill. App. 3d at 432, 495 N.E.2d at 1262.) This court also rejected plaintiff’s claim that a duty existed under section 3 — 103(a) of the Act regarding the execution of a plan, writing:

“The Act creates no new duties, but simply articulates the common law duty to which the subsequently delineated duties apply. [Citation.] The exceptions to immunity do not form the basis for creating a new duty upon which a plaintiff can rely because the Act simply provides an affirmative defense for a defendant municipality. Thus, the ‘duties’ described in the exceptions to immunity found in the immunity provisions, and, specifically those that are found in section 3 — 103(a) regarding the execution of a plan, are derived from the basic common law duty articulated in section 3 — 102. *** Therefore, because [defendant] owes no common law duty to [plaintiff] under the facts presented here, there can be no duty owing to [plaintiff] under section 3 — 103(a) of the Act either.” (Horrell, 145 Ill. App. 3d at 435, 495 N.E.2d at 1264.)

(See also Storen v. Chicago (1940), 373 Ill. 530, 27 N.E.2d 53 (no duty to put in curbs); Havens v. Harris Township, 175 Ill. App. 3d 768, 530 N.E.2d 284 (no duty to widen roads, smooth gravel, erect signs or mow weeds); Charpentier v. City of Chicago, 150 Ill. App. 3d 988, 502 N.E.2d 385 (no duty to provide median barriers).) We also find instructive the line of cases which have held that a municipality has no duty to construct a sidewalk. (Frakes v. Martin (1987), 151 Ill. App. 3d 676, 503 N.E.2d 556; Eddings v. Dundee Township Highway Commissioner (1985), 135 Ill. App. 3d 190, 478 N.E.2d 888; Harding v. Chicago Park District, 34 Ill. App. 3d 425, 339 N.E.2d 779.) These and other cases have held that despite a municipality’s duty to maintain its streets and sidewalks in a reasonably safe condition, a municipality has no duty to provide a safe place for pedestrians to walk along a street where no sidewalk exists, and no duty to safeguard pedestrians when they are walking on public streets. See also Best v. Richert (1979), 72 Ill. App. 3d 371, 389 N.E.2d 894; American State Bank v. Cude (1975), 30 Ill. App. 3d 206, 331 N.E.2d 825 (city owed no duty to pedestrian where city neither attempted, nor intended, to establish a pedestrian walkway across a highway); Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 300 N.E.2d 590 (complaint based upon city’s failure to provide a separate pedestrian walkway properly dismissed).

We find Best v. Richert analogous to this case. In Best, plaintiff sued the village to recover for the death of her two sons. The boys walked along a sidewalk until it ended, then were forced into the street when overgrown trees blocked further progress. The boys were struck by an automobile, and subsequently died from the injuries. As in this case, plaintiff there argued that the village was negligent under section 3 — 104(b) for failing to install crosswalks, warning devices, signs, markings or lights to warn that pedestrians would cross to get to the sidewalk. This court held that defendant had no duty to create a footpath where there was no sidewalk, and no duty to continue an existing sidewalk to the end of the block, writing as follows:

“Given that the collision occurred in a residential area, it would be reasonable to expect that pedestrians would be crossing the street at various locations and to expect motorists to anticipate this and drive accordingly. Therefore the Village, as a matter of law, could not be negligent for failing to warn of such an obvious fact.” (Best, 72 Ill. App. 3d at 375, 389 N.E.2d at 897.)

Nor is this a case where defendant failed to maintain a crosswalk or sidewalk that it had constructed, as in Thorsen v. City of Chicago (1979), 74 Ill. App. 3d 98, 392 N.E.2d 716. In Thorsen, this court held that the city owed a duty to maintain a sidewalk or otherwise provide a safe place to walk where the city initially provided a sidewalk but removed it in order to install a new water main. See also Gleason v. City of Chicago (1989), 190 Ill. App. 3d 1068, 547 N.E.2d 518; West v. City of Hoopeston (1986), 146 Ill. App. 3d 538, 497 N.E.2d 170.

Based upon the foregoing authority, we conclude that defendant owed no duty to plaintiff to construct a crosswalk. As in Horrell, the Forest Preserve chose not to provide a crosswalk even though it either knew or reasonably should have known that pedestrians would cross at the point where James was struck by the car. Because the common law duty to maintain property in a reasonably safe condition does not require the creation of public improvements such as crosswalks and sidewalks, we find that the Forest Preserve owed no duty to construct a sidewalk. Moreover, based upon the foregoing authority, we do not believe that the characterization of the facility as a parking lot or a roadway alters this result.

Plaintiff also alleges that defendant owed plaintiff a duty under section 3 — 104(b) to provide warning devices, signs, or markings to warn motorists of crossing pedestrians. Plaintiff characterizes this as a “dangerous condition” which invokes a duty under section 3— 104(b). Because we concluded above that defendant had no duty to plaintiff to provide a safe place to cross, it follows that no duty existed under section 3 — 103 or 3 — 104 for failing to warn of this allegedly unreasonably dangerous condition. See Curtis v. Cook, 98 Ill. 2d 158, 456 N.E.2d 116; Risner v. Chicago, 150 Ill. App. 3d 827, 502 N.E.2d 357.

A municipality’s general duty to maintain its property in a reasonably safe condition (Ill. Rev. Stat. 1983, ch. 85, par. 3 — 102), and its duty to maintain public improvements, once undertaken, in a reasonably safe manner, is of no avail to plaintiff. Notwithstanding these duties, section 3 — 104(a) of the Act explicitly absolves municipalities of liability for the specific acts of negligence alleged in plaintiff’s third amended complaint. Section 3 — 104(a) of the Act provides as follows:

“(a) Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to initially provide regulatory traffic control devices, stop signs, yield right-of-way signs, speed restriction signs, distinctive roadway markings or any other traffic regulating signs.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 85, par. 3 — 104(a).)

Under this section, the Forest Preserve is immunized for failing to initially provide warning signs of any kind, including the various types alleged in plaintiff’s complaint. Notably, plaintiff here does not allege that the Forest Preserve negligently maintained its posted signs or negligently placed signs. Cf. Castorena v. Browning-Ferris Industries (1991), 217 Ill. App. 3d 328, 577 N.E.2d 185, appeal denied with order (1992), 144 Ill. 2d 631, 588 N.E.2d 1192; Parsons v. Carbondale Township (1991), 217 Ill. App. 3d 637, 577 N.E.2d 779; Smith v. White (1989), 191 Ill. App. 3d 569, 548 N.E.2d 19.

Neither Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 404 N.E.2d 213, nor DiOrio v. City of Chicago (1981), 99 Ill. App. 3d 1047, 425 N.E.2d 1223, cited by plaintiff, requires a different result. In Janssen, our supreme court determined that the municipality owed a duty to warn motorists of a hazard caused by a projecting portion of a traffic island. The municipality argued that it had no duty under section 3 — 104(a) to post a warning sign. According to the Janssen court, however, the duty arose from the long-standing government obligation to maintain public highways in a safe condition. The court noted that this duty had been “codified” in section 3 — 104(b) to warn motorists of dangerous conditions. (Janssen, 79 Ill. 2d at 450, 404 N.E.2d at 220.) DiOrio similarly held that a municipality had a duty to warn motorists of a low clearance at a railroad overpass even though the hazard was not within the municipality’s control. This court found that Rule 606 of the Illinois Commerce Commission General Order No. 138 (ICC General Order No. 138, Rule 606 (rev. 1973) obligated the city to maintain a clearance sign. The court rejected defendant’s claim that section 3 — 104(a) immunized it from liability.

Initially, we note that neither the Janssen nor DiOrio court determined that the Act established a duty to warn. The DiOrio court relied upon a rule of the Illinois Commerce Commission which established a duty to warn of the low clearance. Although the Janssen court found that a duty to warn had been codified under section 3— 104(b), it did not find that such duty arose under the Tort Immunity Act. (Dinges v. Gabardi (1990), 202 Ill. App. 3d 732, 560 N.E.2d 21.) In any event, this case is factually distinguishable. In Janssen and DiOrio, liability to warn was based upon physical obstructions which created hazardous conditions to the roadway itself, thereby endangering normal travel. In each case, the defendant acted to create the condition. Here, by contrast, no permanent physical obstruction or other condition of the road was unreasonably dangerous. The simultaneous presence of pedestrians and cars at the Forest Preserve’s facility in itself was not unreasonably dangerous. The Forest Preserve could reasonably expect drivers to watch for crossing pedestrians, and pedestrians to check before entering. Moreover, unlike Janssen and DiOrio, plaintiff charges the Forest Preserve with the failure to act. In our view, the concealed hazard of a low overpass or a S^-foot concrete island which protrudes into the roadway is not analogous to the hazard of crossing pedestrians, which is “reasonably apparent” to motorists in the exercise of due care. (Ill. Rev. Stat. 1983, ch. 85, par. 3 — 104(b); see Best v. Richert, 72 Ill. App. 3d 371, 389 N.E.2d 894.) Since no condition on the Forest Preserve’s land posed a danger absent the negligent act of either plaintiff or the motorist, we find Janssen and DiOrio inapposite. To apply their holdings here would result in an unwarranted and expansive interpretation of the Tort Immunity Act.

Based upon the foregoing, we conclude that the Forest Preserve owed plaintiff no duty as a matter of law, and neither count I nor count II, which allege ordinary negligence and wilful and wanton misconduct, respectively, properly state a cause of action. Because we so conclude, we need not consider the Forest Preserve’s claims that sections 3 — 106 and 3 — 107 immunized it from liability. We accordingly reverse the judgment against the Forest Preserve.

The sole issue raised by plaintiff’s appeal is whether the trial court properly granted the Forest Preserve’s motion for judgment notwithstanding the verdict on the family expense count. In granting this motion, the trial court determined that, based upon Swider v. Holy Cross Hospital (1986), 146 Ill. App. 3d 740, 497 N.E.2d 474, plaintiff’s cause of action for medical expenses was barred by the statute of limitations. In light of our determination that the Forest Preserve owed no duty to plaintiff under these facts, it follows that plaintiff’s cause of action against it under the family expense statute must also fail. Although we need not address the merits of the parties’ arguments, we note our agreement with the trial court that Swider controls under these facts. The Swider court held that under the applicable statutes, the tolling provision which applied to a minor’s cause of action (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 211) did not apply to a derivative claim for a cause of action which accrued in 1983. Moreover, the 1986 amendment, which applies the tolling provision to a derivative action, was not effective until November 1987, well after this cause of action accrued. (Ill. Rev. Stat. 1987, ch. 110, par. 13— 203.) This court’s recent decision in Evangelou v. Children’s Memorial Hospital (1992), 227 Ill. App. 3d 909, also supports this conclusion. We believe, therefore, that the trial court properly relied upon Swider and refused to apply the tolling provision in this case. We accordingly affirm the order of the circuit court of Cook County granting the Forest Preserve judgment notwithstanding the verdict on plaintiff’s claim under the family expense statute.

Judgment in No. 1 — 91—0251 reversed; judgment in No. 1 — 91— 0320 affirmed.

EGAN, P.J., and RAKOWSKI, J., concur.


author: JUSTICE GORDON

text:
    JAMES A. ZIEMBA et al., Plaintiffs-Appellants, v. ANTHONY ANANIA et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—90—1650
    Opinion filed June 26, 1992.

      Donald G. Weiland, of Chicago, for appellants.
    Francis A. Spina and Thomas R. Pender, both of Tressler, Soderstrom, Maloney & Priess, of Chicago, for appellees.
   JUSTICE GORDON

delivered the opinion of the court:

NATURE OF ACTION

This appeal is taken from the trial court’s order of May 11, 1990, granting the motion of defendant Belfast Auto Parts, Inc. (Belfast), for summary judgment against the plaintiffs predicated upon Belfast’s contention that the action was barred by res judicata. For the reasons stated below, we affirm the judgment of the trial court.

STATEMENT OF FACTS

The facts in this appeal are undisputed. In January 1985 plaintiffs filed a complaint against Anthony Anania and Belfast to recover for injuries sustained by James Ziemba and for loss of consortium sustained by Jaqueline Ziemba when Belfast’s truck came into contact with Ziemba while Ziemba was a pedestrian. The complaint alleged that defendant Anania was, at all times in question, operating a truck as an agent of Belfast and under Belfast’s supervision and control and at the time of the occurrence, he was acting within the scope of his employment. Paragraph number 11 of the complaint alleged independent negligence by Belfast in failing to adequately train and supervise its employees in the operation of its vehicles.

Belfast was served with a summons on March 11, 1985. Subsequently, in August 1985 Belfast appeared and filed an answer admitting that Anania was its agent subject to its supervision and control and that at the time of the occurrence he was acting within the scope of his employment. Although some effort was made to do so, no summons was ever served upon defendant Anania.

On March 31, 1989, Belfast filed a motion to dismiss the claim against Anania under Rule 103(b) (134 Ill. 2d R. 103(b)). Because the applicable statute of limitations had run, the action against Anania was dismissed with prejudice.

Belfast thereupon filed two successive motions for summary judgment. In September 1989 Belfast filed its first motion for summary judgment on the ground that the only direct negligence of Belfast was pleaded as provided in paragraph number 11, and proferred the affidavit of Anania to establish that Belfast was not negligent in its training and supervision of Anania. Plaintiff did not controvert Anania’s affidavit, but instead urged that the pleadings still stated a cause of action against Belfast on a theory of vicarious liability (respondeat superior). On November 9, 1989, the trial court entered an order pursuant to Belfast’s first motion for summary judgment striking paragraph number 11 of the complaint with prejudice but leaving the remainder of the complaint standing as an action against Belfast under the doctrine of respondeat superior.

In January 1990 Belfast filed its second motion for summary judgment alleging that it cannot be held to be vicariously liable for the negligence of Anania, once Anania was dismissed with prejudice pursuant to Rule 103(b). As part of their response, plaintiffs attached the affidavit of their counsel which asserted that at the time Belfast filed its motion to dismiss pursuant to Rule 103(b), its counsel represented to the affiant that the purpose of its motion was merely to “clear up the record and to put Anthony Anania’s mind at ease.” Plaintiffs also attached a letter from Belfast’s counsel sent to plaintiffs’ attorney in connection with Belfast’s first summary judgment motion, stating that the purpose of that motion was to eliminate allegations of independent acts of negligence by Belfast but, “In the event these allegations are dropped from the complaint and the complaint relates to respondeat superior liability only, then I think a proper cause of action is plead [sic].”

On May 11, 1990, the trial court granted Belfast’s second motion for summary judgment and it is from that order only that this appeal is taken.

Opinion

We agree with the trial court that the dismissal of the cause of action against the employee under Rule 103(b) (134 Ill. 2d R. 103(b)) must bar the action against the employer on the grounds of res judicata.

The rationale for this conclusion is predicated upon the well-established principle that the “liability of the master and servant for the acts of the servant is deemed that of one tortfeasor and is a consolidated or unified one.” (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 124, 382 N.E.2d 1217.) Consequently, a dismissal of the claim against either one on the merits bars the claim against the other under the principle of res judicata. See Towns, 73 Ill. 2d at 122 (where the court stated, “[T]hus the rule has evolved that a judgment for either the master or servant arising out of an action predicated upon the alleged negligence of the servant bars a subsequent suit against the other for the same claim of negligence where the agency relationship is not in question”).

Moreover, as in Towns, there is no question that the dismissal of the agent with prejudice under Rule 103(b) constitutes an adjudication on the merits pursuant to Rule 273 (134 Ill. 2d R. 273), which provides, “Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.” See Stroud v. News Group Chicago, Inc. (1991), 215 Ill. App. 3d 1006, 576 N.E.2d 152.

Plaintiffs contend that Towns applies only where the employer is the dismissed entity but not in the reverse, where, as in the instant case, the employee is dismissed. Plaintiffs contend that where the employee is dismissed, the decision of Hansel v. Chicago Transit Authority (1971), 132 Ill. App. 2d 402, 270 N.E.2d 553, must control. There the plaintiff brought an action for negligence against the Chicago Transit Authority (CTA) and its driver. Apparently the bus driver was never served and was ultimately dismissed with prejudice pursuant to a Rule 103(b) motion. The matter proceeded to trial against the CTA and a verdict was returned in favor of that defendant. An appeal was taken from the judgment entered on the verdict and error was found necessitating a new trial. Prior to remanding the matter, the appellate court reviewed the propriety of the trial court’s Rule 103(b) dismissal of the bus driver holding the dismissal to have been proper. The court then volunteered without elaboration that the dismissal of the bus driver “does not affect plaintiff’s right of action against the C.T.A.” (Hansel, 132 Ill. App. 2d at 409.) However, it should be noted that in Hansel, the impact of Rule 273 was neither involved nor considered.

Clearly this gratuitous comment by the court is in conflict with the reasoning of our supreme court in Towns. In Williams v. Bolsten (1989), 184 Ill. App. 3d 832, 540 N.E.2d 966, the plaintiff failed to effect service upon the employer, a trucker who obtained a dismissal with prejudice under Rule 103(b). The employee joined in the action thereupon moved for summary judgment on the grounds of res judicata. Plaintiff urged that under Hansel, a dismissal order under Rule 103(b) would not be a bar. In granting summary judgment for the employee, the court stated:

“In Hansel, the defendant-agent was dismissed with prejudice pursuant to Rule 103(b) for plaintiff’s failure to exercise reasonable diligence in obtaining service of process. In affirming the dismissal *** the appellate court noted, ‘Dismissal [of the agent] was for failure to comply with the rules of the court and does not affect plaintiff’s right of action against the [principal].’ (Hansel, 132 Ill. App. 2d at 409, 270 N.E.2d at 557.) Plaintiffs in the present case claim the quoted language from Hansel is authority for this court to find that a Rule 103(b) dismissal of a principal does not bar the same action against the agent. The court in Hansel, however, did not consider the application of Rule 273 to a Rule 103(b) dismissal with prejudice.
The quoted statement from Hansel appears inconsistent ■with the supreme court’s subsequent holding in Towns ***.” Williams, 184 Ill. App. 3d at 835-36.

To distinguish between the dismissal of the employer as in Towns and the dismissal of the employee as in Hansel is not analytically cogent since the decision in Towns is predicated upon the singleness of the action against the employer and employee. As explicitly stated in Towns, the dismissal of either will be res judicata as to the other. If there would be any validity to such a distinction, it should logically work in the reverse, since the employer’s liability under respondeat superior is wholly derivative of the employees. Thus, if anything, dismissal of the employer should have less impact upon the right of action against the employee whose liability is independent than would be the case where the employee is dismissed leaving only the derivative liability of the employer. But in any event, as articulated in Towns, the liability of both is unified and consequently each is equally impacted by the dismissal of the other.

The case of Stroud v. News Group Chicago, Inc. (1991), 215 Ill. App. 3d 1006, 576 N.E.2d 152, decided after the briefs of the parties were filed in this cause, is squarely in point. There as here the plaintiff sued to recover for injuries sustained when struck by defendant’s truck driver. He joined the truck driver and his employer under the doctrine of respondeat superior. The employee was dismissed with prejudice under Rule 103(b). The employer then moved for its dismissal under res judicata.

In reversing the trial court’s refusal to dismiss the employer, this court held (1) that the dismissal under Rule 103(b) was an adjudication on the merits to which Rule 273 applied, and (2) that the reasoning of our supreme court in Towns controlled in that “judgment for either the master or servant, arising out of an action predicated upon the alleged negligence of the servant, bars a subsequent suit against the other for the same claim of negligence where the agency relationship is not in question.” (Stroud, 215 Ill. App. 3d at 1011.) Our court therefore held in Stroud that the dismissal of the employee with prejudice under Rule 103(b) operated as an adjudication on the merits with respect to the claim of vicarious liability against his employer.

Thus, under Stroud, it is now explicit that contrary to the appellate contention in this cause, the dismissal on the merits of either the employer or the employee will bar any action from being maintained against the other, where, as in this case, the agency is admitted and the action against the employer is predicated upon the doctrine of respondeat superior.

The decisions in Stewart v. Village of Summit (1986), 114 Ill. 2d 23, 499 N.E.2d 450, and Tallios v. Tallios (1952), 345 Ill. App. 387, 103 N.E.2d 507, cited by the plaintiffs, are not in point. Neither of those cases involved a prior adjudication dismissing the action against the employee servant on the merits. Consequently the doctrine of res judicata could not be involved. In Stewart a covenant not to sue was entered into with the employee. There was no adjudication of dismissal. In Tallios, the employee was not even joined in the action, since he was plaintiff’s husband and protected by inter spousal immunity. The action was filed directly against plaintiff’s father-in-law, who was the employer. The court simply held that the policy which led to the promulgation of interspousal immunity was not intended to extend to the vicarious liability of the employer.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

McNULTY, P.J., and LORENZ, J., concur.


author: PRESIDING JUSTICE McNULTY

text:
    JENNIFER HARRIS, a Minor, by Lynn Harris, her Mother and Best Friend, Plaintiff, v. MERCY HOSPITAL et al., Defendants (Ann Herbert, Contemnor-Appellant).
    First District (5th Division)
    No. 1—90—1404
    Opinion filed June 26, 1992.
    David A. Novoselsky & Associates, of Chicago (David A. Novoselsky, of counsel), for appellant.
    Bollinger, Ruberry & Garvey, of Chicago (Stuart A. Ringel and Sheila M. Adan, of counsel), for defendant Ricardo V. Enriquez.
    Peterson & Ross, of Chicago (William K. McVisk and Jeannine M. Glavas, of counsel), for other defendants.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Plaintiff Jennifer Harris was ordered by the trial court to submit to a blood test pursuant to Illinois Supreme Court Rule 215. (87 Ill. 2d R. 215.) Plaintiffs counsel Ann Herbert refused to submit the plaintiff to the blood test and counsel was therefore held in contempt of court. It is from this contempt order that counsel appeals.

Lynn Harris as mother and next friend of the minor plaintiff, Jennifer Harris, brought this lawsuit alleging that Dr. Ricardo V. Enriquez, Mercy Hospital and other physicians were negligent in their care and treatment prior to and at the time of Jennifer’s birth on February 20, 1978. Plaintiff alleges that as a result of the defendants’ negligence, Jennifer suffers permanent brain damage.

As part of her medical care, Jennifer was examined by Dr. Celia Kaye, a specialist in the field of genetics. During a discovery deposition, Dr. Kaye testified that Jennifer may suffer from Angelman Syndrome, which is also known as the “Happy Puppet Syndrome.” Angelman Syndrome is thought to involve a specific chromosomal abnormality.

In an effort to establish that Jennifer’s condition is the result of a genetic disorder, rather than medical malpractice, counsel for Dr. Enriquez presented a motion to compel the plaintiff to submit to a chromosomal blood test. The trial court ordered the defendant to submit an affidavit establishing “good cause” under Supreme Court Rule 215 for the blood test. Defendant submitted a memorandum in support of his motion which included the affidavit of Dr. Jaime Frias. Dr. Frias, a board-certified pediatrician at the University of Nebraska Medical Center, opined that based on the materials he had reviewed, including photographs of the minor plaintiff, it was his opinion to a reasonable degree of certainty that Jennifer Harris suffered from Angelman Syndrome. Dr. Frias stated that a chromosomal and genetic analysis of a blood sample obtained from the plaintiff might confirm his diagnosis. Dr. Frias explained that technological advances might permit identification of genetic defects which had not been observable or detectable in 1981 when Jennifer’s genes were first analyzed. Finally, Dr. Frias opined that the suggested blood test posed only an “extremely remote risk of harm” to Jennifer.

Plaintiff objected to “any examination which involves the use of invasive techniques such as the drawing of blood.” Plaintiff pointed out that the request had failed to establish “good cause” for requiring the minor to submit to a blood test, and that submission to a blood test would subject the minor plaintiff to risk of physical injury, trauma, serious complications from contamination or infection, and risk of AIDS. Plaintiff also argued that there is no medical evidence that Jennifer’s mental and physical defects are attributable to a genetic defect and there was no blood test that would “either rule in or rule out” the presence of any genetic abnormality.

On February 7, 1990, the trial court ordered Jennifer to submit to a blood test, for the purpose of chromosomal testing, within 28 days at a time and place to be agreed upon by the parties. Plaintiff did not comply with this order. On April 11, 1990, counsel for Dr. Enriquez presented a motion for sanctions against plaintiff for failure to comply with the court’s February 7, 1990, order. At the hearing on the motion, counsel for plaintiff advised the court that she would not comply with the court’s February 7, 1990, order. Accordingly, the court entered an order holding plaintiff’s counsel, Ann Herbert, in civil contempt of court and imposed a $10 monetary fine.

On appeal, we address the issue of whether the trial court abused its discretion when it ordered that plaintiff be submitted for a blood test pursuant to Supreme Court Rule 215.

Illinois Supreme Court Rule 215 provides in pertinent part:

“In any action in which the physical or mental condition of a party *** is in controversy, the court, upon notice and for good cause shown on motion within a reasonable time before trial, may order the party to submit to a physical or mental examination by a physician suggested by the party requesting the examination ***.” (134 Ill. 2d R. 215(a).)

Pursuant to Rule 215, the court in which a personal injuries action is pending has the discretion to order the plaintiff to submit to a physical examination. (Sarka v. Rush-Presbyterian-St. Luke’s Medical Center (1990), 207 Ill. App. 3d 587, 566 N.E.2d 301.) The rationale behind this rule is that when one seeks to recover damages on the basis of his physical injuries he puts his physical condition at issue. (People ex rel. Noren v. Dempsey (1957), 10 Ill. 2d 288, 139 N.E.2d 780.) If the trial court orders an examination pursuant to Rule 215, its ruling will be reversed only upon a showing of abuse of discretion. In re Conservatorship of the Estate of Stevenson (1970), 44 Ill. 2d 525, 256 N.E.2d 766.

Recently, in Sarka (207 Ill. App. 3d 587, 566 N.E.2d 301), the court considered the issue of whether in a medical malpractice action, a court has discretion to order a physical examination which may injure the plaintiff. The plaintiff in Sarka opposed defendant’s request for a computed axial tomography (CT) scan under sedation, arguing that chloral hydrate, the agent used for sedation, posed a known risk of harm. Defendant’s expert testified that due to recent technological developments, if a CT scan with sedation were given, he could tell definitively whether or not plaintiff suffered from a genetic disorder. In addition, defendant’s expert testified that the risk of life-threatening complications from the chloral hydrate were negligible. While plaintiff’s expert explained the possible dangers associated with the use of chloral hydrate, he noted that it is impossible to determine in advance whether plaintiff would experience an adverse reaction to the sedative. The court affirmed the trial court’s order compelling plaintiff to submit to the CT can under sedation, and in reaching its decision, stated that when a plaintiff maintains that a Rule 215 examination presents the possibility of danger, he has the burden of showing that the proposed examination is prima facie dangerous. If plaintiff meets his burden, the burden then shifts to the defendant to show the safety of the proposed examination.

Even more recently, in Stasiak v. Illinois Valley Community Hospital (1992), 226 Ill. App. 3d 1075, 590 N.E.2d 974, the trial court ordered the plaintiff to submit to magnetic resonance imaging (MRI) under sedation. The appellate court reversed, explaining that when the plaintiff objects to a Rule 215 motion based on the health risks, he must support this objection with competent medical testimony or evidence. The burden then shifts to the defendant to establish by competent medical testimony or evidence that the requested examination has a clear probative value to the litigation’s ultimate issue and there is a minimal level of risk. The court noted that while in Sarka, the CT scan under sedation would definitively resolve the issue of whether the minor’s condition was due to a genetic disorder, here, there was no evidence that the MRI results would prove the cause of plaintiff’s condition. Accordingly, applying the balancing test, the probative value of the proposed examination was outweighed by the level of risk to the plaintiff.

The record in the instant case reveals that in 1981, plaintiff’s blood was tested in order to determine whether she had any chromosomal defect. That test, however, failed to provide any evidence of a genetic or chromosomal abnormality in plaintiff. Defendant’s expert testified that technological advances might now permit identification of genetic defects that were not detectable in 1981. Nonetheless, defendant’s expert concedes that even now, the blood test has only a 50% likelihood of indicating that Jennifer has the genetic defect in question.

Notwithstanding the fact that submitting Jennifer to the blood test may not conclusively determine whether she has a genetic disorder, we conclude that the trial court did not abuse its discretion in ordering Jennifer to submit to the blood test since the probative value of this evidence is outweighed by the potential risk to Jennifer. Blood tests are routine procedures in our everyday life. (Breithaupt v. Abram (1957), 352 U.S. 432, 1 L. Ed. 2d 448, 77 S. Ct. 408.) It is well established that the trial court has broad discretion under Supreme Court Rule 215 to order litigants in a paternity action to submit to blood tests. (People ex rel. Coleman v. Ely (1979), 71 Ill. App. 3d 701, 390 N.E.2d 140.) Furthermore, blood tests are routinely required when applying for marriage licenses, life insurance, entrance to college and to determine fitness for military service. The potential risk resulting from a blood test is certainly less than that of a CT scan or MRI performed under sedation, and plaintiff has presented no competent evidence that the drawing of blood presents an unreasonable risk to Jennifer. While defendant’s expert testified that any potential risk to plaintiff as a result of the blood test is minimal, plaintiff has provided nothing more than the unsupported, conclusory statements of plaintiff’s counsel regarding the potential dangers. We therefore conclude that since the litigant has placed her physical condition at issue, the trial court properly exercised its discretion when it ordered plaintiff to undergo a blood test that may determine the cause of her injuries.

We note, however, that the trial court’s order failed to specify the names of the persons performing the blood test and performing the genetic testing. Moreover, the order failed to specify the safety measures to be employed in taking the blood sample and, most significantly, the order entered by the trial court failed to limit the testing which is to be performed on Jennifer to simply testing for one specific defect, Angelman’s Syndrome. A proper order pursuant to Rule 215 requires such specificity (Sarka, 207 Ill. App. 3d at 599), and we therefore remand so that the trial court can make the order more specific.

Accordingly, based on the reasons set forth above, we find that the trial court did not abuse its discretion when it granted defendant’s motion to compel Jennifer to submit to a blood test. However, because the trial court’s order does not specifically state the names of the persons conducting the tests, the scope of the genetic testing and the safety precautions to be employed in taking the test, we remand this matter for further proceedings so that the order can be made more specific. Finally, we vacate the contempt order and the $10 fine assessed against plaintiff’s counsel. The trial court entered the contempt order at Herbert’s request, and it is well settled that a contempt order was the proper procedure to follow in order to test the validity of the trial court’s discovery order. (Dunkin v. Silver Cross Hospital (1991), 215 Ill. App. 3d 65, 573 N.E.2d 848.) Plaintiff acted in good faith and did not hold the court in disdain or subject it to scorn.

Affirmed in part; vacated in part and remanded.

LORENZ and MURRAY, JJ., concur.