author: JUSTICE GOLDENHERSH

text:
    STANLEY CAMERON et al., Plaintiffs-Appellants, v. RICHARD HUGHES et al., Defendants-Appellees.
    Fifth District
    No. 5—87—0417
    Opinion filed September 8, 1989.
    Rehearing denied December 21, 1989.

      Joseph T. Kelleher, Jr., of Edwardsville, for appellants.
    John L. McMullin and T. Michael Ward, both of Brown, James & Babbitt, EC., of Belleville, for appellees.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiffs Stanley Cameron, Donna J. Cameron, Charles W. Johnson, Mary M. Johnson, Kenneth E. Cook, and Kay E Cook appeal from an order of the circuit court of Madison County dismissing count VI of their amended complaint because the complaint failed to state a duty owed by defendant City of Troy to plaintiffs. The crux of plaintiffs’ appeal is whether the trial court erred when it dismissed count VI of plaintiffs’ amended complaint. Only defendant City of Troy is involved in this appeal. The original property owners, the developers and builders are not parties to this appeal. We affirm.

The record reveals the following facts. Each of the plaintiffs purchased lots in the Summertree First Addition in the City of Troy. Prior to the execution of each contract, the original owners of the property allegedly submitted a preliminary plat and final plat of the Summertree First Addition to be reviewed and approved by defendant. The original property owners then subdivided and sold the property to various developers and builders who eventually sold their lots to plaintiffs. Neither the original owners nor the developers or builders furnished copies of the studies and plats of the proposed subdivision to the Soil and Water Conservation District. Defendant approved the plat without such reports.

Plaintiffs alleged that “had a report and opinion been obtained from the District, and the unstable condition of the soil and ground water ascertained, the plat approval process would either have been altered to impose reasonable construction requirements on the owner and developer to compensate for the water and soil problem or the proceedings terminated.” Plaintiffs specifically alleged that the property was unsuitable for construction and development of residential buildup because the water table was near the surface of the land, making the land incapable of support footings, foundations and concrete flatwork. Eventually, water seeped into plaintiffs’ basements and the lower level of the houses cracked and settled. The flat concrete floors, driveways and porches cracked and crumbled. Plaintiffs also alleged that defendant had a duty to regulate the planning design and feasibility of subdivisions as well as the contents of preliminary and final plats. (Ill. Rev. Stat. 1985, ch. 5, par. 127.2a; Ill. Rev. Stat. 1985, ch. 109, pars. 2, 3; Comprehensive Plan Ordinance, Zoning Ordinance & Building Code of the City of Troy.) Plaintiffs further alleged that the city had a duty to consider reports of the Soil and Water Conservation District concerning the submission of the preliminary and final plats of their subdivision.

Defendant filed a motion to dismiss. On May 6, 1987, the circuit court entered its order granting defendant’s motion to dismiss count VI because “no facts are alleged that would give rise to any duty on the part of the defendant toward the plaintiffs.”

The only issue before this court is whether the trial court erred when it dismissed count VI of plaintiffs’ amended complaint. Resolution of this issue depends upon the interpretation and interrelationship of section 22.02a of the Soil and Water Conservation Districts Act (Ill. Rev. Stat. 1985, ch. 5, par. 127.2a) and sections 1 and 2 of “An Act to revise the law in relation to plats” (the Plat Act) (Ill. Rev. Stat. 1985, ch. 109, pars. 1, 2).

Plaintiff argues the public policy of the State and the duty of each person is to provide and maintain a healthful environment. (Ill. Const. 1970, art. XI, §1.) Plaintiff points out that the General Assembly has emphasized the economic and environmental advantages from subdivision control and all incidental standards for approval of a proposed subdivision plat, and as such, the statutes in question establish standards which impose responsibility on the regulatory authorities charged with approval of plats. Thus, the statutes in question specifically establish a duty upon defendant to submit the proposed plat to the Soil and Water Conservation District prior to approval.

Defendant argues that this court must accept as true all well-pleaded facts and reasonably drawn inferences. (Bond v. Dunmire (1984), 129 Ill. App. 3d 796, 804, 473 N.E.2d 78, 84.) Although plaintiffs must allege facts which would demonstrate a duty on the part of defendant to protect plaintiffs, liability only arises when a municipality owes a special duty to a particular plaintiff different from the duty owed the public at large. (Swaw v. Ortell (1984), 137 Ill. App. 3d 60, 67, 484 N.E.2d 780, 785.) In this case, defendant argues, the Plat Act does not confer a special duty in favor of plaintiffs but rather the duty expressed in the Act is public in nature.

Whether a duty is owed to plaintiffs from defendant is a matter of statutory interpretation. Plaintiffs argue that defendant had a duty to seek and use a report from the Soil and Water Conservation District because defendant has a duty to protect the general health and safety of the public. However, this court finds that after reading the various relevant statutes, the city does not have a duty to seek such a report.

The policy of the Soil and Water Conservation Districts Act (Conservation Act) is

“to provide (a) for the conservation of the soil, soil resources, water and water resources of this State, (b) for the control and prevention of soil erosion, *** and (d) for the prevention of erosion, floodwater and sediment damages, and thereby to conserve natural resources, control floods, prevent impairment of dams and reservoirs, assist in maintaining the navigability of rivers and harbors, conserve wild life and forests, protect the tax base, protect public lands, and protect and promote the health, safety and general welfare of the people of this State. (Ill. Rev. Stat. 1985, ch. 5, par. 107.)

In furthering the policy of the Conservation Act, the Conservation District “shall make all natural resource information available to the appropriate county agency or municipality in the promulgation of zoning ordinances or variances.” (Ill. Rev. Stat. 1985, ch. 5, par. 127.2a.) However, the District’s duty to submit such a report lies with any person “who proposes to subdivide vacant or agricultural lands.” (Ill. Rev. Stat. 1985, ch. 5, par. 127.2a.) That person must furnish a copy of such petition or proposal to the District. (Ill. Rev. Stat. 1985, ch. 5, par. 127.2a.) After the person has submitted the proposal, the District has 30 days to issue its written opinion and submit that opinion to the appropriate county agency or municipality. Ill. Rev. Stat. 1985, ch. 5, par. 127.2a.

Pursuant to the Plat Act (Ill. Rev. Stat. 1985, ch. 109, par. 1 et seq.), whenever a person proposes to subdivide his property into two or more parts, any of which is less than five acres:

“[H]e must have it surveyed and a subdivision plat thereof made by an Illinois Registered Land Surveyor, which plat must particularly describe and set forth all public streets, alleys, ways for public service facilities, ways for utility services and community antenna television systems, parks, playgrounds, school grounds or other public grounds, and all the tracts, parcels, lots or blocks, and numbering all such lots, blocks or parcels by progressive numbers, giving their precise dimensions. There shall be submitted simultaneously with the subdivision plat, a study or studies which shall show topographically and by profile the elevation of the land prior to the commencement of any change in elevations as a part of any phase of subdividing, and additionally, if it is contemplated that such elevations, or the flow of surface water from such land, will be changed as a result of any portion of such subdivision development, then such study or studies shall also show such proposed changes in the elevations and the flow of surface water from such land.” (Ill. Rev. Stat. 1985, ch. 109, par. 1.)

Once the plat is completed, the person must submit the plat to the city council for their approval. (Ill. Rev. Stat. 1985, ch. 109, par. 2.) The city council cannot approve a plat

“unless, in addition to any other requirements of such council, board of trustees or county board or the officer or officers designated by them, the topographical and profile studies to be submitted with the subdivision plat have on their face the signed statement of a Registered Professional Engineer, and the owner of the land or his duly authorized attorney, to the effect that to the best of their knowledge and belief the drainage of surface waters will not be changed by the construction of such subdivision or any part thereof, or, that if such surface water drainage will be changed, reasonable provision has been made for collection and diversion of such surface waters into public areas, or drains which the subdivider has a right to use, and that such surface waters will be planned for in accordance with generally accepted engineering practices so as to reduce the likelihood of damage to the adjoining property because of the construction of the subdivision. The topographical and profile studies required herein shall not be recorded, but shall be retained and filed by city, village or county to which submitted for approval of the subdivision plat, as permanent public documents.” Ill. Rev. Stat. 1985, ch. 109, par. 2.

In reading the statutes together, this court finds that the only duty defendant has is to approve a plat which has a signed statement from a registered professional engineer and the property owner’s attorney regarding the drainage of the surface waters. Plaintiffs do not allege any such duty or breach of such duty. Rather, in count I, paragraph 8, which was included in count VI, they allege that the original owners of the property and “their agents and employees, licensed surveyor, caused [the] preliminary plat of the subdivision and final plat of Summertree First Addition, to be reviewed by and approved by the regulatory authority, defendant City of Troy, a municipal corporation.” Accordingly, the original owners did submit the proper documents to the city, and plaintiffs do not allege that the city approved the plat without the appropriate documents. Since the city was under no duty to seek information on the water table of the plat, plaintiffs’ construction, of the relevant statutes is without support. Accordingly, this court finds that the trial court did not err when it dismissed count VI of plaintiffs’ amended, complaint.

For the foregoing reasons, the order of the circuit court of Madison County is affirmed.

Affirmed.

HOWERTON and RARICK, JJ, concur.


source: Caselaw Access Project

author: JUSTICE HOWERTON

license: Public Domain

text:
    CHARLES W. HARRISON, Plaintiff-Appellant, v. LELAND FULKERSON, Defendant-Appellee.
    Fifth District
    No. 5—87—0614
    Opinion filed November 16, 1989.

      Brent D. Holmes, of Harlan Heller, Ltd., of Mattoon, for appellant.
    Patrick M. Burke, of Brazitis, Burke & Tomlin, of Olney, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

The circuit court of Richland County found plaintiff, a physician, to be a trader, buying and selling oil leases in frequent operations to such an extent that he could be said to be engaged in the buying and selling of oil leases as a trade or business.

We reverse, because the finding is against the manifest weight of the evidence. We believe that imprecise language in this field has led the circuit court to misconstrue the operation of the Illinois Securities Law of 1953 (the Act) (Ill. Rev. Stat. 1981, ch. 121½, par. 137.1 et seq.).

The Act is designed to protect the investing public from dubious, “fly-by-night” investment schemes. See Ill. Ann. Stat. ch. 121½, par. 137.1 et seq., Appendix by Samuel H. Young (Smith-Hurd (I960)); see also Stein v. Twilight Motel, Inc. (1961), 29 Ill. App. 2d 131, 172 N.E.2d 642; Martin v. Orvis Brothers & Co. (1974), 25 Ill. App. 3d 238, 323 N.E.2d 73.

The Act is paternalistic and is to be liberally construed to allow accomplishment of its purpose. Meihsner v. Runyon (1960), 23 Ill. App. 2d 446, 163 N.E.2d 236.

The Act allows a buyer to rescind a purchase if the sale violates the Act. (Ill. Rev. Stat. 1981, ch. 121½, par. 137.13.) In this case, plaintiff bought an interest in oil leases. Oil leases are covered by the Act. Ill. Rev. Stat. 1981, ch. 121½, par. 137.2—1.

The Act, however, exempts a sale of an interest in an oil lease where the sale is to a trader buying or selling interests in oil leases “in frequent operations,” for “his own account,” and “to such extent that *** he may be said to be engaged in such activities as a trade or business.” Ill. Rev. Stat. 1981, ch. 121½, par. 137.4(D).

The oil leases in this case never were registered with the Secretary of the State of Illinois, Securities Division, as required by the Act. Ill. Rev. Stat. 1981, ch. 121½, par. 137.5.

If this sale is exempt from the Act, plaintiff cannot rescind. On the other hand, if this sale is not exempt from the Act, plaintiff is afforded the Act’s protection and, therefore, can rescind.

The pivotal issue, therefore, is whether the evidence showed plaintiff to be a trader in oil leases in frequent operations for his own account to such an extent that he may be said to be engaged in trading in oil leases as a trade or business, because if plaintiff is such a trader, this sale is exempt from the protections afforded by the Act.

We must note that decisions of Illinois courts that have interpreted the Act and its exemptions have spoken of “sophisticated investor” exemptions. (McConnell v. Surak (7th Cir. 1985), 774 F.2d 746; Stein v. Twilight Motel, Inc. (1961), 29 Ill. App. 2d 131, 172 N.E.2d 642.) Indeed, the circuit court said, “[T]his is not *** one who perceived himself as an unsophisticated investor. *** It is not a requirement that the plaintiff be engaged in oil production as his only business. It is only a requirement that he be in the business to such an extent that he is a sophisticated investor.” Use of the word “sophisticated” is a paraphrase of the statute; a paraphrase can lead to the wrong result. The test is not “sophistication”; rather, the test is the express language contained in the exemption. Investors are not deprived the protection of the Act merely because they are “sophisticated.” (Martin v. Orvis Brothers & Co. (1974), 25 Ill. App. 3d 238, 323 N.E.2d 73.) Investors fall outside the protection of the Act only if the Act specifically excludes them. (Martin v. Orvis Brothers & Co. (1974), 25 Ill. App. 3d 238, 323 N.E.2d 73.) The Act calls us to assess whether the evidence proved plaintiff to be a trader, buying and selling, in frequent operations, interests in oil leases for his own account to such an extent that he may be said to be engaged in the buying and selling interests in oil leases as a trade or business. The Act does not call us to assess whether plaintiff was “sophisticated.”

We have found no Illinois case directly on point. The facts of this case are most like those in Martin v. Orvis Brothers & Co., but Martin dealt with whether plaintiff was a “dealer” under section 4(C) of the Act; whereas, here the issue is whether plaintiff is a “trader” under section 4(D). (Ill. Rev. Stat. 1981, ch. 121½, pars. 137.4(C), (D).) Martin, therefore, does not control this case but is analogous. A comparison of facts follows.

In Martin, the plaintiff also was a physician specializing in internal medicine; he made early investments in oil and real estate, but had divested his real estate holdings; he then began to invest in the stock market and dealt with 17 different brokerage houses; he bought stock over a four-year period costing $6,979,899.96 and sold stock for at least $5,607,526.72; he borrowed money from various banks to finance his stock dealings; his loans from seven banks total-led at least $2,386,800; and the greater portion of his time was devoted to his stock market activity; during 1968 until April 1969, Dr. Martin bought stock in a company whose stock was not registered with the Secretary of the State of Illinois as required by the Act; he bought 25,190 shares of that stock; when Dr. Martin sued to rescind his purchase of the stock, defendant claimed that the sales were exempt from the Act, because Dr. Martin was a “dealer.” The court held that Dr. Martin was not a “dealer” as a matter of law.

In our case, plaintiff is a physician, specializing in internal medicine; he has had patients who were involved in the oil business; he is familiar with some of the technology and processes involved in the extraction and production of oil; he has had no formal training in geology or drilling; in the 1950s, he bought a one-thirty-second interest in two or three wells in Jasper County; he bought similar interests in two more wells in the late 1950s or the early 1960s; in 1973, he bought into another lease; one other was bought later, this time a seven-sixteenths working interest; he incorporated as “Harrison Oil Corporation” at the insistence of his accountant; he transferred some of his individual mineral rights to the corporation of which he and his wife were sole shareholders; in 1981, he bought a one-sixth undivided working interest in the lease out of which this case arises; he bought into another lease afterwards; plaintiff earned from his oil investments a total of $166,487.45 for the years 1981, 1982, and 1983; in summary, he had 9 or 10 significant interests in oil leases over a span of 30 years.

Martin’s primary basis was that Dr. Martin dealt only for his own account, not for others, and therefore, did not have characteristics normally attributable to a dealer.

In our case, plaintiff likewise dealt only for his own account, but the primary basis for our decision is our belief that 9 or 10 transactions this size over 30 years is insufficient to find that plaintiff was engaged in buying and selling interests in oil leases as a trade or business. See McConnell v. Surak (1985), 774 F. 2d 746, 751 (wherein dicta indicated that five transactions in one year would be insufficient to put buyers outside the protection of the Act).

Whether one may be said to be engaged in trading oil leases as a business or a trade is not susceptible to a “bright line” rule. Resolution of this question necessarily always is ad hoc. Martin v. Orvis Brothers & Co. (1974), 25 Ill. App. 3d 238, 323 N.E.2d 73.

On these facts, however, we hold that the finding of the circuit court of Richland County that plaintiff was so engaged is against the manifest weight of the evidence. The circuit court is reversed and the case remanded for entry of judgment for plaintiff allowing him to rescind and for such other proceedings as are consistent with this opinion.

Reversed and remanded.

GOLDENHERSH and CHAPMAN, JJ, concur.


text:
    JERRY DAIBER et al., Plaintiffs-Appellees, v. MONTGOMERY COUNTY MUTUAL FIRE INSURANCE COMPANY et al., Defendants (Terry Duncan, Defendant-Appellant).
    Fifth District
    No. 5—87—0805
    Opinion filed November 17, 1989.

      William J. Knapp, of Burroughs, Simpson, Hepler & Broom, of Edwardsville, for appellant.
    Charles R. Douglas, of Granite City, for appellees.
   JUSTICE HOWERTON

delivered the opinion of the court:

Lawyers claim that the venue act is dead, killed by forum non conveniens.

We do not believe it.

No matter how limply venue may languish on the cross of forum non conveniens, it lives still. At least we think so and we believe that rumors amongst lawyers of its death have been greatly exaggerated. See Ill. Rev. Stat. 1987, ch. 110, par. 2—101 et seq.

Plaintiffs live in Bond County. They bought insurance from defendants. It covered their house. The insurance was bought in Madison County. Defendants’ principal place of business is in Montgomery County. Plaintiffs’ house burned. The insurance company refused to pay, because they claimed the fire was suspicious. Plaintiffs filed suit in Madison County.

Defendants moved to transfer venue to either Bond or Montgomery County.

Madison, Bond and Montgomery Counties adjoin one another.

Edwardsville is the county seat of Madison, Greenville the county seat of Bond, and Hillsboro the county seat of Montgomery.

It is 28 miles from Edwardsville to Greenville.

It is 38 miles from Edwardsville to Hillsboro.

This means it is very nearly 28 minutes from Edwardsville to Greenville, and 38 minutes from Edwardsville to Hillsboro.

Defendants say it is more convenient to try the case in Green-ville or Hillsboro.

Illinois judicially created forum non conveniens.

There are two types of forum non conveniens: (1) interstate; and (2) intrastate. Peterson v. Monsanto Co. (1989), 181 Ill. App. 3d 677, 678, 537 N.E.2d 1030, 1031.

Under interstate forum non conveniens, Illinois courts may decline jurisdiction if it is more convenient to try the case in another State.

Under intrastate forum non conveniens, one court in Illinois may transfer a case to another Illinois court, if it is more convenient to try the case in the other Illinois court.

This is an intrastate forum non conveniens case.

Intrastate forum non conveniens presupposes that Illinois has jurisdiction, and presupposes that venue may be properly laid in more than one county. Weiser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 456 N.E.2d 98.

Application for forum non conveniens is appropriate when it is more convenient to try the case in a county other than the one in which it was initially filed.

The movant must make some showing, therefore, that another forum is more convenient. Baker v. Burlington Northern R.R. Co. (1986), 149 Ill. App. 3d 674, 682, 500 N.E.2d 1113, 1119-20.

We cannot see how such a showing can be made in these circumstances.

A grant or denial of a forum non conveniens motion is reviewed by an abuse of discretion standard. Darnell v. Ralph Korte Equipment Co. (1986), 144 Ill. App. 3d 564, 566, 494 N.E.2d 1206, 1207.

Abuse of discretion means clearly against logic. (Black’s Law Dictionary 25 (4th ed. 1957).) This court, therefore, is asked to decide whether the circuit court acted illogically in refusing to transfer the case from Madison to either Bond or Montgomery County.

The initial focus of forum non conveniens is inconvenience. We believe that it is most difficult to demonstrate inconvenience when the alternative forum adjoins the county in which venue otherwise properly was laid. We hold that defendants did not show that Madison County was inconvenient.

The circuit court did not abuse its discretion when it refused to move this trial to an adjoining county.

The circuit court is affirmed.

Affirmed.

GOLDENHERSH, and CHAPMAN, JJ., concur.


author: JUSTICE CHAPMAN

text:
    PENNY L. SMITH, Plaintiff-Appellant, v. THE COUNTY OF WHITE, Defendant-Appellee.
    Fifth District
    No. 5—87—0713
    Opinion filed November 20, 1989.
    Rehearing denied December 21, 1989.

      Theodore Van Winkle and James L. Van Winkle, both of Van Winkle & Van Winkle, of McLeansboro, for appellant.
    Paul R. Lynch and Melissa S. Ellison, both of Craig & Craig, of Mt. Vernon, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

This negligence action arose out of an automobile accident which occurred on November 24, 1984, in White County, Illinois. The plaintiff, Penny L. Smith, filed a four-count complaint against defendants Roberta L. Goddard, Brenda K. Fisher, and White County. After dismissing the initial complaint and granting the plaintiff leave to amend, the trial court granted defendant White County’s motion to dismiss the amended complaint with prejudice. The other two defendants are not involved in this appeal.

The facts, as alleged in the plaintiff’s amended complaint, are that the plaintiff was a passenger in a car driven by Fisher which collided with a car driven by Goddard. Fisher was driving south on County Highway 7, and Goddard was proceeding west on County Highway 2. The intersection of Highway 2 and Highway 7 is a sharp curve which connects the two roads. Stop signs were in place to control traffic approaching Highway 2 from the west and Highway 7 from the south. On Highway 7 approximately 500 feet north of the intersection of Highways 2 and 7 was a traffic control sign warning of the curve ahead and posting a reduced speed limit of 10 miles per hour. No signs were placed along Highway 2 warning of the curve. (The following rough diagram was furnished during oral argument.)

As the Goddard vehicle approached the intersection, it failed to negotiate the curve and struck the Fisher vehicle, injuring the plaintiff. Count III of plaintiff’s amended complaint, directed against White County, alleged:

“10. That at the aforesaid time, the defendant, by virtue of Ill. Rev. Stat., ch. 121, section 5—101.10, and ch. 85, section 3—102 and section 3—104(b), was under a duty to exercise ordinary care in regard to posting and maintaining traffic warning signs in the vicinity of said curve and in that regard the defendant, pursuant to Ill. Rev. Stat., ch. 121, section 5—205.2, through the county superintendent of highways, should have undertaken the following acts or knew of the following things or a combination thereof:
A. Traffic warning signs were necessary to warn of the sharp condition of said curve which endangered the safe movement of traffic, and said condition was not otherwise reasonably apparent to or anticipated by a person in the exercise of due care.
B. Post certain warning signs regarding the curve and thereby assumed the duty to exercise reasonable care to place and maintain proper signs regarding the curve.
11. That the aforesaid occurrence was a direct and proximate result of one or more of the following negligent acts or omissions on the part of the defendant or a combination thereof after the defendant for a substantial period of time had actual knowledge of the sharpness of the curve and no signage at the curve on Highway Number 2:
A. Posted a sign showing the direction of the curve and to post speed plates or other signs advising motorists to reduce speed thus leading motorists to believe the curve could be negotiated at the road speed limit of 10 miles per hour notwithstanding the fact that the defendant knew or should have known that the curve was so sharp that a motorist could not reasonably be expected to negotiate the curve at a speed in excess of approximately 10 miles per hour.
B. Failed to post chevron signs and delineating the curve.
C. Failed to post speed plates and chevrons and failed to maintain the arrow sign, which signs, markings or devices were necessary to warn of the sharp condition of the curve, and which condition endangered the safe movement of traffic and would not be either reasonably apparent to or anticipated by a person in the exercise of due care, all in violation of Ill. Rev. Stat., ch. 85, section 3—104(b).”

While the defendant’s motion to dismiss consists of 11 paragraphs and alleges nine separate grounds for dismissal, it essentially attacks the plaintiff’s complaint on three grounds: (1) failure to allege compliance with the notice provision of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 8—102 (repealed by Pub. Act 84—1431, art. I, §3, eff. Nov. 25, 1986)); (2) failure to state a cause of action because the defendant owed no duty to the plaintiff to provide warning signs; and (3) statutory immunity under section 3—104(a) of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 3—104(a)). The trial court granted the defendant’s motion on all three grounds.

We first address the issue of whether the plaintiff’s complaint was subject to dismissal for failure to allege compliance with the notice provision of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 8—102). Prior to its repeal, that section required that a plaintiff must give notice of her intention to sue a local public entity within one year from the date that the cause of action accrued. Failure to do so resulted in dismissal and “forever barred” further suit. Ill. Rev. Stat. 1985, ch. 85, par. 8—103.

While the plaintiff advances several arguments in support of her position, we need not look beyond the language of the defendant’s motion to resolve this issue. Paragraph 11 of defendant’s motion to dismiss charges that plaintiff’s complaint “fails to allege compliance by the Plaintiff with the provision of Section 8—102 of Chapter 85 of the Illinois Revised Statutes.” In Erford v. City of Peoria (1907), 229 Ill. 546, 553, 82 N.E. 374, 376, the supreme court considered the notice requirement of the predecessor of the Tort Immunity Act and stated: “Statutes of this character are mandatory and the giving of notice is a condition precedent to the right to bring such suit, and the giving of the notice must be averred and proved by the plaintiff to avoid a dismissal of his suit.” Erford, however, has since been repudiated by our supreme court, which has held that the notice provision of section 8—102 is not a condition precedent to the right to bring suit, but is rather a limitation provision which can be waived by the local public entity. (Helle v. Brush (1973), 53 Ill. 2d 405, 410, 292 N.E.2d 372, 375; see also Saragusa v. City of Chicago (1976), 63 Ill. 2d 288, 295-96, 348 N.E.2d 176, 180-81.) Since it is not a condition precedent and since it is subject to waiver, it would appear that section 8—102 is in the nature of an affirmative defense which the defendant must raise to defeat the plaintiff’s claim. The defendant’s motion to dismiss, however, does not state that plaintiff failed to comply with section 8—102, but merely that she did not allege compliance. Since section 8—102 is not a condition precedent to plaintiff’s right to bring suit, however, she is not required to allege compliance in her complaint. Therefore, dismissal of plaintiff’s complaint on this ground was erroneous.

We next address the issue of whether the trial court erred in dismissing plaintiff’s complaint on the grounds that the county owed no duty to the plaintiff to provide a warning sign along Highway 2. The portion of defendant’s motion to dismiss that is pertinent to this issue states:

“3. That the provisions of Section 5—101.10 of Chapter 121 of the Illinois Revised Statutes do not create any cause of action that may be the subject of a civil suit for damages by the Plaintiff against this Defendant, and said statutory provision creates no duty by the Defendant to Plaintiff on an individual basis.
4. That Count III fails to allege facts sufficient to state a cause of action against this Defendant under Section 3—102 of Chapter 85 of the Illinois Revised Statutes.
5. That Section 3—102 of Chapter 85 of the Illinois Revised Statutes provides for no such duty as alleged in numbered paragraphs 1 and 10 of Count III of Plaintiff’s Amended Complaint.
6. That Count III fails to allege facts sufficient to state a cause of action against Defendant under Section 3—104(b) of Chapter 85 of the Illinois Revised Statutes.
7. That the allegations in numbered paragraphs 10(a) and 11(c) that the dangerous condition of the curve was such that it would not be either ‘reasonably apparent to or anticipated by a person in the exercise of due care’ is a legal conclusion unsupported by a specific allegation of fact, and Plaintiff has failed to plead specific facts that would demonstrate that a traffic regulatory device was necessary to warn of said alleged dangerous condition.”

In determining the propriety of an order granting a defendant’s motion to dismiss a complaint, the standard of review is whether the allegations of the complaint, when viewed in the light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted. (Brooks v. Village of Wilmette (1979), 72 Ill. App. 3d 753, 756, 391 N.E.2d 133, 136.) All properly pleaded facts must be taken as true, and a cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will allow plaintiff to recover. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187, 380 N.E.2d 790, 794.) Whether the defendant owed a duty to the plaintiff is a question of law to be determined by the court. Long v. Friesland (1988), 178 Ill. App. 3d 42, 51, 532 N.E.2d 914, 920.

In the instant case we find that the trial court erred in dismissing the plaintiff’s complaint on the basis of paragraphs 3 through 7 of defendant’s motion. Section 5—101 of the Illinois Highway Code (Ill. Rev. Stat. 1985, ch. 121, par. 5—101) gives the county board of each county “the powers and duties stated in Sections 5—101.1 to 5—101.11, inclusive.” (Emphasis added.) Section 5—101.10 empowers the board “[t]o place, erect and maintain on county highways all traffic control devices and signs authorized by this Code or by ‘The Illinois Vehicle Code’ [Ill. Rev. Stat. 1985, ch. 95½, par. 1—100 et seq.]." (Ill. Rev. Stat. 1985, ch. 121, par. 5—101.10.) Section 11—304 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95½, par. 11—304), in turn, “requires local authorities to post signs to regulate, warn and guide traffic on highways under their maintenance jurisdiction. The statute thus imposes an obligation on local authorities to warn motorists of those hazards which are incident to that portion of a highway *** under local maintenance jurisdiction.” (Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 448, 404 N.E.2d 213, 219.) The plaintiff alleged that defendant breached this duty by failing to warn motorists of a hazardous curve in the road. Once a duty has been established, the question of whether the defendant breached that duty is one for the trier of fact. (Long, 178 Ill. App. 3d at 51, 532 N.E.2d at 919.) Therefore the trial court erred in dismissing plaintiff’s complaint on the basis of paragraph 3 of defendant’s motion.

The trial court also erred in dismissing the complaint for failure to state a cause of action under sections 3—102 and 3—104(b) of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, pars. 3—102, 3—104(b) (amended by Pub. Act 84—1431, art. 1, §2, eff. Nov. 25, 1986)). It is well established that a local government has a duty to maintain public highways within its boundaries in a reasonably safe condition. (Janssen, 79 Ill. 2d at 450, 404 N.E.2d at 220; Long, 178 Ill. App. 3d at 51, 532 N.E.2d at 920.) Section 3—102 of the Tort Immunity Act codifies that obligation. (Janssen, 79 Ill. 2d at 450, 404 N.E.2d at 220.) This includes the duty to warn motorists of conditions “which endangerQ 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. 1985, ch. 85, par. 3—104(b); Janssen, 79 Ill. 2d at 450, 404 N.E.2d at 220.) The plaintiff alleged in her complaint that the county breached the duty imposed by these sections when it failed to post signs on Highway 2 warning of the dangerous curve ahead. The complaint further alleged that the county had knowledge of the dangerous condition of the curve, as demonstrated by the placement of warning signs along Highway 7, and that the defendant knew or should have known that a motorist could not negotiate the curve at a speed in excess of 10 miles per hour. Taking these facts as true (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187, 390 N.E.2d 790, 794), we find that they are sufficient to state a cause of action under sections 3—102 and 3—104(b), and the trial court therefore erred in dismissing the complaint based on paragraphs 4, 5, 6, and 7 of defendant’s motion.

The final ground on which the trial court granted defendant’s motion to dismiss was that the traffic sign which plaintiffs contended should have been installed on Highway 2 is a “regulatory traffic control device” as defined under section 3—104(a) of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 3—104(a) (amended by Pub. Act 84—1431, art. 1, §2, eff. Nov. 25, 1986)) and that the defendant is therefore immune from suit for failure to initially provide such a sign. Prior to amendment, section 3—104(a) stated:

“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.” Ill. Rev. Stat. 1985, ch. 85, par. 3-104(a).

In Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 404 N.E.2d 213, the plaintiff was injured when his motorcycle collided with a traffic island which extended SVa feet into the roadway. The supreme court, after finding that the city had a duty to erect signs warning of the hazard, addressed the defendant’s contention that the trial court erred in refusing to instruct the jury with regard to immunity under section 3—104(a).

“Several of the signs that witnesses suggested the city post to warn motorists of the dangerous intersection are classified as regulatory signs in the State’s ‘Manual of Uniform Traffic Control Devices for Streets and Highways.’ The city argues that it was entitled to an instruction on section 3—104(a) because the jury could have found that the proposed measures to limit the dangers of the intersection were regulatory signs and that the city was therefore immune. We do not believe, however, that the denomination of a sign as a regulatory or warning sign in the State manual determines whether a particular sign is ‘necessary to warn of a condition which endangered the safe movement of traffic,’ the standard which governs immunity under section 3—104(b) of the Local Governmental and Governmental Employees Tort Immunity Act [citation]. [Citation.] The jury was adequately instructed concerning that standard, and we do not believe that additional instructions concerning section 3—104(a) were necessary.” Janssen, 79 Ill. 2d at 453, 404 N.E.2d at 222.

According to Janssen then, the immunity available under section 3—104(a) does not apply where a particular sign is necessary to warn of a condition which endangers the safe movement of traffic. As Janssen indicates, this is a question to be resolved by the trier of fact. (See DiOrio v. City of Chicago (1981), 99 Ill. App. 3d 1047, 1051-52, 425 N.E.2d 1223, 1227-28.) Moreover, there is an additional reason why dismissal of the plaintiff’s complaint on this ground was improper.

Section 3—104(a) provides immunity to a defendant who initially fails to provide traffic regulating signs. The roadway involved contains the same curve and intersection whether one approaches it on Highway 7, on Highway 2, or on either of the subordinate roads. Stop signs were placed at the two subordinate roads at the point of the curve. The defendant installed a warning sign for those approaching the curve on Highway 7. The confluence of the roads must be treated as one entity. For these reasons, the trial court’s dismissal of the complaint based on paragraphs 8 and 9 of defendant’s motion was also erroneous.

For the above stated reasons, we reverse the order of the circuit court dismissing plaintiff’s complaint against the County of White and remand for further proceedings.

Reversed and remanded.

GOLDENHERSH and RARICK, JJ., concur.


author: JUSTICE LEWIS

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. LLOYD SCHOENHEIT TRUCK & TRACTOR SERVICE, INC., et al., Defendants-Appellees.
    Fifth District
    No. 5—88—0382
    Opinion filed November 20, 1989.

      Rhonda J. Kattelman, and Cornelius T. Ducey, both of Ducey, Feder & Ducey, Ltd., of Belleville, for appellant.
    John L. McMullin and T. Michael Ward, both of Brown, James & Babbitt, RC., of Belleville, for appellees.
   JUSTICE LEWIS

delivered the opinion of the court:

The plaintiff, Liberty Mutual Insurance Company (Liberty Mutual), appeals from an order granting a motion for judgment on the pleadings in favor of the defendant Hartford Insurance Company (Hartford). Liberty Mutual had brought a suit for declaratory judgment which was dismissed with prejudice by virtue of the trial court’s granting Hartford’s motion.

The underlying cause of action which gave rise to Liberty Mutual’s complaint was a civil action brought in the circuit court of St. Clair County entitled “Faye Meserole as special administrator of the estate of David Meserole, deceased, plaintiff v. Lloyd Schoenheit Truck and Tractor Service et al., defendant” (Meserole). After a fourth amended complaint was filed, the Meserole case was settled and Hartford made payments to Faye Meserole on behalf of Schoenheit, its insured. Liberty Mutual, at the time of the settlement, held a workers’ compensation lien in the amount of $61,598.94 for monies paid to Faye Meserole on behalf of Southern Triangle Oil Company, David Meserole’s employer. Hartford was notified by letter of Liberty Mutual’s lien claim. Prior to the settlement of the Meserole case, Hartford acknowledged the claim but refused to make payment on the lien and only made payment to the special administrator. Subsequently, Liberty Mutual filed its complaint seeking a declaratory judgment regarding its rights as lienholder, which as we noted previously, was dismissed with prejudice and is the subject of this appeal.

On appeal, Liberty Mutual contends that because Meserole’s complaint alleged a claim under the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, par. 1 et seq.), pursuant to section 5(b) of the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(b)), Southern Triangle Oil Company, decedent’s employer, was entitled to reimbursement for the outstanding workers’ compensation lien from the settlement of Meserole’s claim with Schoenheit. The basis of Liberty Mutual’s contention that its lien is reimbursable is that workers’ compensation liens can attach to the settlement proceeds from a wrongful death action. (Esin v. Liberty Mutual Insurance Co. (1981), 99 Ill. App. 3d 75, 424 N.E.2d 1307.) However, Hartford maintains that the settlement was based upon an action under the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, par. 69) and, therefore, the lien does not attach.

Before addressing Liberty Mutual’s argument, we set forth the statutes herein involved. The pertinent portion of section 5(b) of the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(b)) upon which Liberty Mutual relies, states as follows:

“Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and *** settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative including amounts paid or to be paid pursuant to paragraph (a) of Section 8 of this Act.
* * *
*** No release or settlement of claim for damages by reason of such injury or death, and no satisfaction of judgment in such proceedings shall be valid without the written consent of both employer and employee or his personal representative, except in the case of the employers, such consent is not required where the employer has been fully indemnified or protected by court order.” Ill. Rev. Stat. 1981, ch. 48, par. 138.5(b).

The first paragraph of section 2 of the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, par. 2) states as follows:

“Every such action shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the surviving spouse and next of kin of such deceased person.”

Section 69 of the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, par. 69) provides in pertinent part as follows:

“For any injury to person or property, occasioned by any wilful violations of this Act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby; and in case of loss of life by reason of such wilful violation or wilful failure as aforesaid, a right of action shall accrue to the surviving spouse of the person so killed, the lineal heirs or adopted children of such person, or to any other person or persons who were, before such loss of life, dependent for support on the person or persons so killed, for a like recovery of damages for the injuries sustained by reason of such loss of life or lives.”

An analysis of the foregoing provisions reveals that reimbursement for workers’ compensation liens is limited to third-party actions in which the employee or his personal representative is the plaintiff. In a wrongful death action, the statute requires that the claim be brought by the personal representative of the decedent. In contrast, a structural work action is to be brought in the surviving spouse’s or the decedent’s heir’s name and creates a distinct cause of action for the dependents of the deceased.

In dismissing Liberty Mutual’s complaint, the trial court determined that the case of Gramse v. Royal Crest Enterprises, Inc. (1981), 100 Ill. App. 3d 100, 426 N.E.2d 614, was controlling. In Gramse, prior to trial, the plaintiff’s claims under the Structural-Work Act and the survival provisions of the Probate Act were settled, and thereafter, the insurance company, who was the workers’ compensation carrier for the employer of the plaintiff’s decedent, sought to enforce its workers’ compensation lien. The Gramse court held, on appeal, that a workers’ compensation lien cannot attach to the proceeds paid in settlement of a death claim brought pursuant to the Structural Work Act. The Gramse court reasoned that different injuries and theories were involved in a Structural Work action when it stated:

“The Workmen’s Compensation Act, and the monies paid under that statute by the employer’s insurance carrier, were intended to compensate the decedent himself for his lost wages and medical bills. The Structural Work Act claims, by contrast, were brought by the widow in her own right (not as representative of the decedent) and for the benefit of the children, and asserted their right to be compensated for the loss of their source of support.
*** [T]he workmen’s compensation settlement compensated the decedent for his injuries; the Structural Work Act claim compensated the decedent’s dependents for their injuries.” (Emphasis in original.) (Gramse v. Royal Crest Enterprises, Inc. (1981), 100 Ill. App. 3d 100, 104, 426 N.E.2d 614, 617.)

Thus, if this case is a Structural Work Act case as the trial court below so held, then Gramse controls.

It appears from its brief that Liberty Mutual argues that this is not a Structural Work Act case, but one based upon wrongful death. Liberty Mutual claims this is so because this cause was brought by the decedent’s legal representative and not by the widow individually and as next friend of the three minor children, as Liberty Mutual claims was required under the Structural Work Act. In the Meserole complaint, count I, the only count against Schoenheit, was brought by the personal representative as administrator of the decedent’s estate pursuant to the Wrongful Death Act; however, our review of the complaint revealed that this count substantively set forth as its sole theory of recovery a death claim based upon the Structural Work Act. Liberty Mutual did not deny this in its brief and agreed with this interpretation at oral argument. Liberty Mutual merely tries to assert the form of the complaint over the substance. We find that the substance of the Meserole complaint and the prayer of relief clearly set out that count I was a Structural Work Act claim, and the erroneous designation of the plaintiff in the Meserole complaint did not negate the theoiy of recovery.

The language of section 69 of the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, par. 69) tells us that a cause of action brought thereunder accrues to the benefit of the widow and the next of kin and not to the decedent for his injuries or death. Therefore, because this was not a wrongful death action, no workers’ compensation lien attached in the case sub judice because the Meserole Structural Work Act claim was not a claim for the decedent but was a different cause of action, under a different theory, for different people.

The holding of a recent supreme court case, Page v. Hibbard (1987), 119 Ill. 2d 41, 518 N.E.2d 69, although not a Structural Work Act case, bolsters the concept that a Structural Work Act claim is a different cause of action from a wrongful death action, the position which we have espoused here. The supreme court in Page stated:

“The statute grants the employer a right of reimbursement out of ‘the amount received by such employee’ in an action ‘brought by the injured employee or his personal representative’ in the amount of workers’ compensation benefits paid to the employee or his personal representative. The Department paid no compensation to Mrs. Page for loss of consortium and was not required to under the Act. Too, an action for loss of consortium is not a derivative claim brought by the spouse as the personal representative of the employee, but is an independent action to recover for injuries the spouse has suffered, such as loss of support and loss of society. (See Brown v. Metzger (1984), 104 Ill. 2d 30, 38; Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 208-09.) The Department’s lien under section 5(b) of the Workers’ Compensation Act did not attach to that portion of the settlement proceeds designated as a settlement of Mrs. Page’s claim for loss of consortium.” Page v. Hibbard (1987), 119 Ill. 2d 41, 47-48, 518 N.E.2d 69, 72.

A similar result to our holding in the instant case was obtained in the dramshop case of Dillon v. Nathan (1956), 10 Ill. App. 2d 289, 135 N.E.2d 136. In Dillon, the decedent’s widow received workers’ compensation death benefits from her deceased husband’s employer. Subsequently, the widow and the decedent’s daughter, in their individual capacities, filed a claim under the Dramshop Act for the same incident for which the widow received the workers’ compensation benefits. The decedent’s employer sought leave to intervene in the dramshop action so that it could impress a lien for the workers’ compensation payment upon any judgment entered in the dramshop suit. Subsequently, a judgment was obtained in the dramshop action; however, the court denied the decedent’s employer’s motion to intervene. The employer appealed the court’s denial of its motion. The appellate court in Dillon held that because the dramshop claim was brought by the decedent’s widow and his daughter in their own right and not as the “personal representative” of the decedent, the trial court properly denied the employer’s motion as the employer was not entitled to intervene under section 5(b) of the Workers’ Compensation Act (Ill. Rev. Stat. 1953, ch. 48, par. 138.5(b)). Likewise, in McDaniel v. Hoge (1983), 120 Ill. App. 3d 913, 458 N.E.2d 1063, the court held that a workers’ compensation claim would not attach to the proceeds of a settlement of a Public Utilities Act claim. That court held that a workers’ compensation lien attached only where the proceeds of a settlement were compensation for the same injuries for which the workers’ compensation payments were previously made. McDaniel v. Hoge, 120 Ill. App. 3d 913, 458 N.E.2d 1063.

Liberty Mutual raises two other arguments. Liberty Mutual claims that the trial court never entered an express finding that the settlement proceeds were paid under the Structural Work Act. An express finding was unnecessary as the settlement payment was made on behalf of Schoenheit and Schoenheit was sued under the Structural Work Act. In addition, the trial court inferentially decided it was a Structural Work Act case when the court specifically decided the motion on the basis of Gramse.

Liberty lastly contends that, despite the mandate of section 5(b) of the Workers’ Compensation Act, no written consent or authorization to the settlement was given by Liberty Mutual. Suffice it to say that, since we have determined that the settlement was for a Structural Work Act claim and that no lien attached pursuant to section 5(b) of the Workers’ Compensation Act, there was no need for Liberty Mutual’s consent or authorization.

For the foregoing reasons, the order of the circuit court of St. Clair County dismissing Liberty Mutual’s complaint for declaratory judgment is affirmed.

Affirmed.

HARRISON and CHAPMAN, JJ., concur.


text:
      In re MARRIAGE OF KATHLEEN ANN VALTER, f/k/a Kathleen Ann Leroux, Petitioner-Appellee, and RAYMOND J. LEROUX, Respondent-Appellant.
    Fifth District
    No. 5—89—0275
    Opinion filed November 21, 1989.

      Endicott & Finch, of Carmi, for appellant.
    James L. Van Winkle, of Van Winkle & Van Winkle, of McLeansboro, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Respondent, Raymond J. Leroux, appeals the decision of the circuit court of White County granting petitioner, Kathleen Ann Valter, formerly Kathleen Ann Leroux, custody of their son, Scott Leroux. This court affirms.

Petitioner and respondént were married on May 20, 1971. Their only child, Scott, was born on September 2, 1975. On January 8, 1979, the Superior Court of California entered a judgment of dissolution of their marriage. The court-approved marriage settlement awarded petitioner custody of Scott. Four months later, the parties agreed to change custody from petitioner to respondent and entered the appropriate order of modification. At that time, petitioner had moved to Carmi, Illinois.

In August 1985, petitioner filed a petition seeking custody of Scott. Judge Henry Lewis held a hearing on December 19, 1985. At that time, respondent was stationed on the island of Crete with the United States Air Force. Respondent worked eight hours per day, for a total of 40 hours per week. Judge Lewis heard testimony that respondent did not work at night or on weekends and spent that time with his new wife, their two children, and Scott. At the hearing, respondent testified that he almost never arrived home later than 7 p.m. In addition, he testified that while he had a few drinks when bowling, he was legally intoxicated “not very often.” As a result of the 1985 hearing, Judge Lewis entered an order outlining the parties’ stipulated agreement giving respondent custody of Scott and petitioner summer visitation rights.

In September 1986, respondent was reassigned by the Air Force to Aurora, Colorado. For approximately two months, during the move, Scott lived with respondent’s parents in New York. Thereafter, Scott joined his father in Colorado. In April 1987, respondent was divorced from his third wife. He was awarded custody of his two children of that marriage. From April 1987, through June 1988, respondent employed a number of different baby-sitters and housekeepers.

In June 1988, Scott went to Carmi to visit petitioner, which he did each summer, as per the custody agreement. During Scott’s visit, respondent met his fourth wife. Ten days after they met, she and her four children, ages 13, 10, 7 and 4, moved into respondent’s home. On December 30, 1988, respondent married his fourth wife. Scott found out about the change when he telephoned home and was surprised that a strange person answered.

In July 1988, petitioner instituted this action. Judge Keenan held a hearing on the petition on March 14, 1989. Respondent testified that he now works approximately 60 hours per week. He testified that in addition to his work with the Air Force, he works for the Coca-Cola Company on weekends and an occasional evening. In addition to his jobs, respondent is active in church and charity work. Respondent testified that he does not have much time for his family or sleep.

Since the 1985 hearing, respondent has joined Alcoholics Anonymous and regularly attends their meetings. He currently counsels other military personnel who have alcohol problems.

Since moving from Crete, Scott’s school work has slipped. Previously, his work was consistently near “A” level. In Colorado, however, he is performing at “C” level. A school guidance counselor has attributed Scott’s academic slide to parental feuding.

Scott testified that he wishes to live with petitioner. He is afraid of respondent, indicating that respondent “takes his violence out on us kids.”

Friends of Scott and friends of petitioner testified that Scott was quite happy during his summers in Carmi. As the end of each summer approached, however, Scott became physically ill, refused to eat, and began to cry. At one point, he suggested that he may run away.

The circuit court granted petitioner’s request for a change in custody. The court found that a substantial change had occurred in the circumstances of respondent since the last hearing. As a result of those changes, Scott’s circumstances have changed as well. The court believed that the child’s interests would best be served by a change.

The circuit court cited several factors which, taken together, constitute a substantial change. The court listed (1) the move from Crete, (2) respondent’s acknowledged alcohol dependency, and (3) the additional work and great demands on respondent’s time. The factor which the court characterized as “the most significant change of all,” however, was respondent’s divorce from his third wife and remarriage in December 1988. This introduced a new stepmother and four additional children into Scott’s household. In addition, the court noted the social and financial consequences of the additional family members as well as the substantial additional demands on respondent’s time.

Section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (the Act) provides, in pertinent part:

“(b) The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, *** and that the modification is necessary to serve the best interest of the child. *** The court shall state in its decision specific findings of fact in support of its modification *** if either parent opposes the modification or termination.” Ill. Rev. Stat. 1987, ch. 40, par. 610(b).

Custody determinations rest within the sound discretion of the circuit court. There is a legislative presumption in favor of the present custodian and a policy favoring the finality of child custody judgments. “Once the court concludes that a change in custody is necessary, great deference must be accorded that decision, since the trial court is in the best position to judge the credibility of the witnesses and determine the needs of the child.” (In re Custody of Sussenbach (1985), 108 Ill. 2d 489, 498-99, 485 N.E.2d 367, 370-71, citing In re Marriage of Wechselberger (1983), 115 Ill. App. 3d 779, 786, 450 N.E.2d 1385, 1389-90; In re Marriage of Richmond (1988), 171 Ill. App. 3d 506, 507, 525 N.E.2d 1226, 1226-27.) This court must determine whether the trial court’s decision is contrary to the manifest weight of the evidence. We will not review this case de novo, but will only inquire as to whether the trial court abused its discretion. Sussenbach, 108 Ill. 2d 489, 485 N.E.2d 367; Richmond, 171 Ill. App. 3d 506, 525 N.E.2d 1226.

Respondent contends that the circuit court based its decision on “pure speculation and assumptions.” The circuit court, however, met its statutory obligation of detailing specific findings of fact which support its decision. Because one parent opposes the modification, the court outlined very specific factual details which it believed establish clearly and convincingly that a change has occurred. The supreme court in Sussenbach held the circuit court’s factual statement adequate even though it did not assess the intricate implications of each change. (Sussenbach, 108 Ill. 2d at 497-98, 485 N.E.2d at 370.) The factual statement in the instant case is much more explicit than the statement in Sussenbach. Neither case law nor the statute requires the circuit court to explain in exceptional detail the implications of each change on the child. Section 610(b) of the Act merely requires the court to state in its decision specific findings of fact which have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, demonstrating that a change has occurred in the circumstances of the child or his custodian. In addition, the court must find that the modification is necessary to serve the best interest of the child. Ill. Rev. Stat. 1987, ch. 40, par. 610(b); Sussenbach, 108 Ill. 2d 489, 485 N.E.2d 367; see also In re Marriage of Oliver (1987), 155 Ill. App. 3d 181, 507 N.E.2d 1298; Vollmer v. Mattox (1985), 137 Ill. App. 3d 1, 484 N.E.2d 311.

The move from Crete back to the United States is obviously a major change in the surroundings if not circumstances of the boy. There is no need to further explain the implications of that move.

Respondent’s acknowledged alcohol dependency either arose subsequent to the 1985 hearing or was hidden from that court. In 1989, however, the dependency was proved by clear and convincing evidence. The circuit court could reasonably find that respondent’s alcohol dependency and later counseling of alcoholics are a change in circumstances.

The additional work and great demands on respondent’s time are substantial changes in Scott’s surroundings as well.- In 1985, respondent testified to working 40 hours per week and spending the vast remainder of his time with his family. Before the circuit court in 1989, however, respondent testified that he did not have much time for his family or sleep. In addition, there are four new children, each demanding attention from respondent. The circuit court could reasonably determine that this was a substantial change in Scott’s surroundings and circumstances.

The circuit court was justified in its determination that Scott’s home-life circumstances had substantially changed since 1985. In 1985, respondent testified that he had an “excellent” relationship with his third wife. Nevertheless, within a year, he was divorced. Following this divorce, respondent hired a series of baby-sitters and housekeepers to watch over Scott and his two half-brothers. Then, in June 1988, while Scott was in Carmi with petitioner, respondent met his fourth wife and moved her and her children into his home. Scott returned home to a greatly expanded immediate family. There was testimony that less than a familial relationship exists between Scott and his new stepmother and stepsisters. In addition, there was testimony of respondent’s fourth wife making disparaging remarks about petitioner to Scott.

The loss of one stepmother, substitution of baby-sitters, and final introduction of a new stepmother and stepsisters can be a substantial change in the circumstances and surroundings of a child. The circuit court was justified in finding this as the most significant change of all. There was no abuse of discretion.

There is a legislative presumption in favor of the present custodian and a policy favoring the finality of the child custody judgments. (In re Marriage of Wechselberger (1983), 115 Ill. App. 3d 779, 786, 450 N.E.2d 1385.) The purpose of this presumption is to promote stability and continuity of the child’s custodial environmental relationships. As in Shoff v. Shoff (1989), 179 Ill. App. 3d 178, 186, 534 N.E.2d 462, 467, citing Wechselberger, that goal may best be served by modification of custody.

Respondent makes much of the fact that petitioner was seeing a married man. He also points out that petitioner works as a .nurse and is “on twenty-four-hour call” on occasion. Although both are factors for the circuit court to consider, as stated above, this court will not conduct a de novo review. Once the court determined there was a change in Scott’s surrounding circumstances, the trial court was in the best position to weigh all of the evidence and make a determination whether a modification was in Scott’s best interests. We cannot say there has been an abuse of discretion.

Respondent also asserts that the trial court erred when it considered Scott’s wishes to live with his mother. Respondent argues that the trial court should not have given any weight to Scott’s preference. Illinois cases are clear in holding that a mature child’s preference should receive considerable weight when based on sound reasoning. (Shoff v. Shoff (1989), 179 Ill. App. 3d 178, 185, 534 N.E.2d 462, 466.) If, however, there is no substantial change in the child’s surroundings, the circuit court may disregard those wishes. (Garner v. Garner (1977), 46 Ill. App. 3d 56, 60, 360 N.E.2d 373, 377.) The court, of course, should disregard those wishes if the child’s choice is not in his best interest. Shoff, 179 Ill. App. 3d 178, 534 N.E.2d 462.

The circuit court did not err or abuse its discretion when it heard Scott’s testimony and assigned some weight to his wishes. The court noted that it was influenced by Scott’s wishes, but only to a small degree as it noted substantial change in Scott’s surroundings. At the time of the hearing, Scott was just shy of 14 years old. He articulated very specific reasons for his desire to live with petitioner. Among those reasons were the change in his surroundings with the substantial additions to his immediate family and his feeling of being “closed in”; his disagreements with his new stepmother regarding his mother and his desire to live with her; and his fear of respondent due to respondent’s alcohol dependency and volatile nature. Scott’s desire is certainly based on sound reasoning. The instant case is clearly distinguishable from Shoff v. Shoff wherein an eight-year-old child could not express a reason behind her desire for change.

In reviewing the evidence, we believe that based on facts which have arisen since the 1985 judgment or were unknown to the court at the time of entry of the 1985 judgment, a change in circumstances has occurred. As the circuit court was in the best position to determine the needs of the child, we will accord great deference to that decision that a modification of the custody order was necessary. We cannot find that the circuit court abused its discretion.

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

Affirmed.

HARRISON and HOWERTON, JJ., concur.


author: JUSTICE HOWERTON JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE LAYHEW, Defendant-Appellant.
    Fifth District
    No. 5—87—0534
    Opinion filed November 21, 1989.
    CHAPMAN, J., specially concurring.
    Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, and Lori Lanciani Mosby, of State Appellate Defender’s Office, of Springfield, for appellant.

      Frederick Turner, Jr., State’s Attorney, of Golconda (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

Defendant was tried by jury in Pope County and convicted of aggravated criminal sexual assault.

The jury was not instructed in writing, at the close of the case, that defendant was presumed innocent and that the State had the burden of proving his guilt beyond a reasonable doubt. Defendant neither requested nor tendered the instruction. However, during voir dire the prospective jurors were questioned on both concepts, and the jurors were reminded of both concepts in closing arguments; nevertheless, we reverse and remand.

The instruction reads:

“Defendant is presumed to be innocent of the charges against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict, and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty.
The State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence.” Illinois Pattern Jury Instructions, Criminal, No. 2.03 (2d ed. 1981).

Defendant argues the failure to instruct on presumption of innocence and burden of proof requires reversal of conviction.

The State replies that the jury was told throughout the proceedings that defendant was presumed innocent and the State had the burden of proving his guilt beyond a reasonable doubt; therefore, the jury was sufficiently informed of these legal principles and the need for a formal, written instruction averted.

In deciding between these arguments, we are not writing upon a clean slate. A like issue has been decided previously, but on constitutional grounds. People v. Cage (1986), 146 Ill. App. 3d 726, 497 N.E.2d 386, appeal denied (1986), 113 Ill. 2d 562; People v. Williams (1983), 120 Ill. App. 3d 900, 458 N.E.2d 1312; People v. Carpenter (1981), 101 Ill. App. 3d 792, 428 N.E.2d 983; People v. Donald (1974), 21 Ill. App. 3d 696, 315 N.E.2d 904; People v. French (1972), 5 Ill. App. 3d 908, 284 N.E.2d 481; People v. Ayala (1986), 142 Ill. App. 3d 93, 491 N.E.2d 154.

Each of these cases decided whether the failure to give the instruction deprived defendant of a fair trial guaranteed by the United States Constitution. Each decision necessarily involved an examination of the record and an evaluation of whether the failure to give the instruction in light of the totality of the circumstances had deprived defendant of a fair trial. This approach is permissible insofar as the United States Constitution is concerned, because the guarantees of the United States Constitution do not require giving the presumption of innocence instruction in every case. Rather, the totality of the circumstances is assessed on a case-by-case basis. Kentucky v. Whorton (1979), 441 U.S. 786, 60 L. Ed. 2d 640, 99 S. Ct. 2088.

We are struck, however, by what we feel is obvious. Under this approach, any decision by an appellate court not only will be fact specific, and therefore, of diminished precedential value, but will depend also on the value judgments of courts whose beliefs and composition may be subject to change.

Recitation of the facts of this case is illustrative.

In this case, before voir dire the circuit judge told the array of prospective jurors that defendant was presumed innocent, and that the State had the burden of proving him guilty beyond a reasonable doubt, but the circuit judge continued and said, “after all the evidence and the argument of counsel, the court will at that time instruct the jury in writing as to law applicable to the case.”

In voir dire, the court queried the prospective jurors if they had any prejudice against the defendant simply because he was charged with the crime. Each was urged to be fair and to apply the law without bias or prejudice. Each was questioned if he had “any quarrel with the concept that the defendant is innocent until proven guilty.” The 12 selected had satisfied the court and counsel by their answers.

In closing argument, the prosecution said, “As the defendant sits here right now, he is viewed as being not guilty. It is the State’s burden to prove him guilty.”

To complete the illustration, if we were to decide this case on United States constitutional grounds, we would say-that all the admonitions given in this case were negated when at the close of the case the court read to the jury Illinois Pattern Jury Instruction No. 1.01(2) which said, “[t]he law that applies to this case is stated in these instructions and it is your duty to follow all of them.” (Illinois Pattern Jury Instructions, Criminal, No. 1.01(2) (2d ed. 1981)). As the colloquialism “the little print takes away the big print” is sometimes true, likewise here the written instruction diminished the impact of the oral admonition. The scheme in which the pattern instructions are written, as well as our own experiences as trial lawyers, and trial judges, all would lead us to believe that most likely the written instruction would always work to take away the oral admonitions. We do not say all this, however, because we do not decide this case on United States constitutional grounds. But, we must say, in order to be candid, that we recognize that different courts might give different results in this case if they were to decide according to the method of analysis that proceeds under the United States Constitution, and cases growing out of Kentucky v. Whorton.

We need not, however, add to the hodge-podge of decisions. We can avoid adding to the number of cases reviewed; we can avoid further cluttering the reports of decisions; we can give clear directions to circuit courts, if we avoid constitutional-fact analysis and make a directive to the circuit courts of the fifth district. In so doing we are completing what we did not do in People v. French (1972), 5 Ill. App. 3d 908, 284 N.E.2d 481. Whereas, in that case we did not reach the question of whether it is reversible error to fail to give this instruction in any case, in this case we do reach that question.

We, therefore, make a directive for the circuit courts of the fifth district: The presumption of innocence and burden of proof instruction must be given in the fifth district, in all criminal cases, formally, in writing, and at the close of the case, whether tendered or requested.

To the close readers of opinions, we do not encourage hair-splitting by this decision. We stress that there is no distinction to be made. We do not imply that a different result could be expected in some future case if the written instructions were not to take away oral admonitions like these that had been given before voir dire, during voir dire, and in closing arguments here. Quite the contrary, we have made a directive that is to be followed in all circumstances.

The State has argued that defendant’s failure to request the instruction, failure to tender the instruction and the failure to object to the instructions given operate as a waiver. We hold that this error is grave, contrary to the State’s argument, and therefore, we are unable to find waiver in defendant’s failure to tender the instruction, or his failure to object to the instructions given, or from his failure to include the error in his post-trial motion. We base our findings of grave error on our own experiences. The error is fraught with danger. The danger is apparent. This is an experienced trial judge we reverse. We cannot know what was in his mind, but if he did not give the instruction, then what might a less experienced judge do? We can guarantee protection of defendants’ rights by this directive. Let this instruction be one of the rubrics in the liturgy of a criminal trial, and no one, defendant included, need evermore worry about a jury being ignorant of the presumption of innocence and burden of proof, or otherwise misunderstanding these concepts that are so cherished by Americans.

The high value we, as a people, place upon these concepts has caused the committee note to this instruction to say it must be given in all cases, because it embodies the “touchstone of American criminal jurisprudence.” (Illinois Pattern Jury Instructions, Criminal, No. 2.03 (2d ed. 1981).) Our holding in this case makes mandatory that which the committee has suggested.

Although we do not reverse because of it, nevertheless one more issue needs to be addressed: notetaking. Notetaking by the jury is an entitlement conferred on jurors by statute. “The members of the jury shall be entitled to take notes during the trial, and the sheriff *** shall provide them with writing materials ***.” Ill. Rev. Stat. 1987, ch. 38, par. 115— 4(n).

The circuit court, the State’s Attorney and the defense attorney in this case agreed that the jury would not take notes. Notes, of course, were not taken in consequence of that stipulation. Defendant has raised the failure to allow the jurors to take notes as an issue on appeal. The State has replied that because defendant agreed that jurors would not take notes, he cannot raise it on appeal. The State is wrong.

Defendant’s agreement was a nullity. The statute confers nothing on defendant. The jurors are the beneficiaries of the entitlement. Defendant had no standing to stipulate away that which was not his.

On consideration of the merits of the issue, we find that the statute uses the word “shall,” which ordinarily is mandatory. We find, therefore, that notetaking is a statutory entitlement of jurors; it cannot be denied by the trial judge or waived by counsel. (Cf. People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 416.) Furthermore, that entitlement will be always unfulfilled, unless courts ensure it is bestowed on each jury. That can only be done by physically ensuring that all jurors are provided note pad and pencil for their use, if they so desire.

This case is reversed and remanded.

Reversed and remanded.

RARICK, J., concurs.

JUSTICE CHAPMAN

specially concurring:

I concur in the result reached by the majority, but I am troubled by its careful avoidance of any discussion of the basis for its ruling; it cites not a single case and it refers to no statute. Most importantly, it repeatedly asserts that the holding is not based on any provision of the United States Constitution. To this last assertion I would reply that the repetition of a statement does not make it any more true, contrary to the cries of the butcher in The Hunting of the Snark:

“ ‘As the Bellman would tell you,’ he added with pride, T have uttered that sentiment once.’
‘Tis the note of the Jubjub! Keep count, I entreat, You will find I have told it you twice.
‘Tis the song of the Jubjub! The proof is complete, If only I’ve stated it thrice.’ ” L. Carroll, The Hunting of the Snark, in Logical Nonsense, The Complete Works of Lewis Carroll, at 279 (1942).

The majority apparently finds itself in a quandary; if it states that its holding is based upon the due process clause of the United States Constitution, then it would not be able to reach its decision because Kentucky v. Whorton (1979), 441 U.S. 786, 60 L. Ed. 2d 640, 99 S. Ct. 2088, holds that failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution, but that such a failure must be evaluated in the light of the totality of the circumstances in the case.

It seems to me, however, that by going to the other extreme and deciding to make its decision a part of the court-made law of this district, the majority must suffer the criticism of Justice Black, dissenting in Linkletter v. Walker (1965), 381 U.S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731, when he stated: “The inference I gather from these repeated statements is that the rule is not a right or privilege accorded to defendants charged with crime but is a sort of punishment against officers in order to keep them from depriving people of their constitutional rights. In passing I would say that if that is the sole purpose, reason, object and effect of the rule, the Court’s action in adopting it sounds more like law-making than construing the Constitution.” (Emphasis added.) Linkletter, 381 U.S. at 649, 14 L. Ed. 2d at 620, 85 S. Ct. at 1748 (Black, J., dissenting).

Finally, I would refer the majority to its comment that the “ ‘little print takes away the big print.’ ” (191 Ill. App. 3d at 594.) I would then ask it to examine its big-printed holding that there is no constitutional basis for its decision with its small-print statement that “[w]e can guarantee protection of defendants’ rights by this directive.” (191 Ill. App. 3d at 595.) If there is truly no constitutional basis for its decision, then what is the basis of the defendants’ rights that the majority is so desirous of protecting?

The constitutional basis in any decision in this case cannot be denied. Both the United States Supreme Court and our own State supreme court have held that the reasonable doubt standard is of constitutional dimension. In In re Winship (1970), 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1073, the Supreme Court stated:

“Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”

In People v. Pembrock (1976), 62 Ill. 2d 317, 342 N.E.2d 28, our supreme court, in discussing the appropriate standard for commitment under the Sexually Dangerous Persons Act, stated that “[t]he requirements of due process, under both the United States and Illinois constitutions, mandate that the drastic impairment of the liberty and reputation of an individual which results from civil commitment under the Sexually Dangerous Persons Act be justified by proof beyond a reasonable doubt.” Pembrock, 62 Ill. 2d at 321, 342 N.E.2d at 29.

In my judgment there are other and more appropriate ways to reach the proper result which the majority has reached. First, with regard to this case, under the totality of circumstances approach set forth by the United States Supreme Court in Kentucky v. Whorton, when the jury is told in the written instructions that “the law applicable to this case is contained in these instructions,” and when those instructions do not inform the jury of the reasonable doubt standard and the presumption of innocence, I would hold that the defendant was deprived of due process under either the United States or the Illinois Constitution. Alternatively, and with regard to future cases, I would hold that the due process clause, article I, section 3, of the Illinois Constitution requires that the reasonable doubt-presumption of innocence instruction be given by the court in writing at the close of every criminal case.

If the due process clause mandates that no one is to be deprived of liberty unless the presumption of innocence is overcome by proof beyond a reasonable doubt then the jury must be properly advised of the standard under which it may convict. The failure to advise is reversible error in any case and I would so hold.

For the above reasons I concur in the result reached by the majority.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LORENZO FELTON, Defendant-Appellant.
    Fifth District
    No. 5—88—0125
    Opinion filed December 4, 1989.

      Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, and Lori J. Lanciani Mosby, of State Appellate Defender’s Office, of Springfield, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court;

Defendant pled guilty to aggravated criminal sexual assault and two counts of aggravated battery to a child. The victim, defendant’s five-month-old daughter, had numerous fractured ribs, two broken bones in her leg, an acute vaginal laceration, third-degree burns on her chest and chin, fresh bruises on her forehead and temple area, and had retinal hemorrhages consistent with Shaken Baby Syndrome. The circuit court of St. Clair County sentenced defendant to six years for aggravated sexual assault, three years for one count of aggravated battery, four years for the other count of aggravated battery and ordered that all sentences run consecutively.

Defendant’s motion to withdraw his guilty plea was denied and he appeals. We affirm.

Defendant first argues that trial counsel provided ineffective assistance because he advised defendant to plead guilty to criminal sexual assault without realizing that defendant’s act of sexual penetration was not criminal if it was conducted for a medical purpose. (Ill. Rev. Stat. 1987, ch. 38, par. 12—18(b).) Claiming that trial counsel was ineffective, defendant concludes that his guilty plea was involuntary and must be vacated. We do not agree.

When challenging the quality of representation following a guilty plea, a defendant must show that the level of representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would, instead, have insisted on proceeding to trial. (Hill v. Lockhart (1985), 474 U.S. 52, 88 L. Ed. 2d 203, 106 S. Ct. 366; People v. Robinson (1987), 157 Ill. App. 3d 622, 510 N.E.2d 1050.) If a reviewing court may dispose of the defendant’s claim of ineffective assistance on the ground that he failed to demonstrate sufficient prejudice, then it may do so without determining whether counsel’s performance was deficient. People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.

Here, the defendant has not shown sufficient prejudice. The factual basis for defendant’s guilty plea revealed that the victim had received an acute vaginal laceration. Doctors would have testified that the laceration could not have occurred accidentally. Defendant did not dispute the doctor’s claim. Defendant admitted inserting his finger approximately three-quarters of its length into the victim’s vagina, but claimed that he was merely cleaning her.

The severity of the victim’s injury along with the doctor’s conclusion that the laceration could not have happened accidentally leads us to find that defendant has failed to demonstrate prejudice. It may be true, as defendant claims, that his lawyer did not tell him that he might not be found guilty of aggravated sexual assault if the penetration in this case was for a medical purpose. (See Ill. Rev. Stat. 1987, ch. 38, par. 12—18(b).) But, even if he had so advised defendant, we find it difficult to see prejudice.

We are persuaded from the facts of this case that even if counsel had advised defendant of the medical purpose exception, nevertheless, counsel would have recommended a plea of guilty. Competent counsel would realize the futility of attempting to persuade 12 rational people selected at random from the community that defendant’s jamming his finger three-fourths of its length into his five-month-old daughter’s vagina, acutely tearing it, was for a medical purpose.

Furthermore, if counsel had pressed the point, or if defendant intrepidly, but foolishly, had chosen to order counsel to press the point, our own experience as trial judges and trial lawyers compels us to predict that beyond our own doubt a jury in whom is reposed accumulated wisdom, not to speak of plain, common sense, would have made short shrift of defendant’s claim. In short, we are convinced defendant came out better by accepting the plea than he would have by gambling on the trial he now so cavalierly says he wanted.

Because we find that defendant had no viable defense, he has failed to demonstrate that his attorney provided ineffective assistance by recommending that defendant plead guilty.

Defendant also argues that his guilty plea was involuntary because the circuit court failed to admonish him as to the maximum sentence he could receive if he was given the maximum sentences on each count and if the court ordered the sentences to be served consecutively.

Supreme Court Rule 402 requires only substantial, not literal, compliance with its provisions. 107 Ill. 2d R. 402; People v. Baker (1985), 133 Ill. App. 3d 620, 479 N.E.2d 372.

Prior to accepting the defendant’s guilty pleas, the circuit court told defendant that he could receive a sentence of 30 years’ imprisonment for the Class X offense of aggravated criminal sexual assault. The court also informed defendant that he was eligible for consecutive sentences. Because the defendant’s aggregate sentence was far less (13 years) than what he was told he could receive on the Class X offense alone, the failure of the circuit court to admonish the defendant as to the maximum sentence he could receive if all sentences were to be served consecutively did not prejudice defendant. See People v. Baker (1985), 133 Ill. App. 3d 620, 479 N.E.2d 372.

Defendant next argues that the circuit court erred in ordering that the two aggravated battery sentences run consecutively because there was an insufficient showing that they were not a part of the same course of conduct. We find, however, that the record establishes a sufficient basis for the circuit court’s conclusion that defendant’s acts occurred separately and were not part of a single course of conduct. (See People v. Perruquet (1983), 118 Ill. App. 3d 293, 454 N.E.2d 1055.) Therefore, the decision that the aggravated battery sentences should be served consecutively was proper.

Defendant also complains that because he had no prior felony convictions, the circuit court abused its discretion in ordering that defendant serve his sentences consecutively.

It is within the circuit court’s discretion whether multiple sentences are to be served concurrently or consecutively, and that court’s decision will not be disturbed on appeal absent an abuse of that discretion. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—4(a); People v. Berry (1986), 140 Ill. App. 3d 994, 489 N.E.2d 1107.) Here, the victim’s injuries were severe. The court considered it necessary to deter defendant and others from committing similar offenses. The defendant had three prior convictions. We find, therefore, that the circuit court did not abuse its discretion in sentencing defendant to consecutive terms of imprisonment.

Defendant next lodges a three-pronged attack on the constitutionality of the criminal sexual assault statute. Defendant’s arguments, however, have been fully discussed and rejected by the supreme court of Illinois. People v. Terrell (1989), 132 Ill. 2d 178.

Finally, defendant argues, and the State concedes, that defendant is entitled to 18 days’ credit against his sentence of imprisonment. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—7(b).) Therefore, we order defendant’s sentence to be credited for the 18 days he served prior to sentencing. The circuit court otherwise is affirmed.

Affirmed and remanded with directions.

WELCH, P.J., and HARRISON, J., concur.