text:
    JOSEPH AHERN, Plaintiff-Appellee, v. JAMES M. KNECHT, Defendant-Appellant.
    Second District
    No. 2—89—1168
    Opinion filed September 7, 1990.
    Rehearing denied October 24, 1990.

      Richard K. Wray and Robin R. LaFollette, both of Nathanson & Wray, and Keck, Mahin & Cate, both of Chicago, for appellant.
    Joseph Ahern, of Hinsdale, appellee pro se.

    Neil F. Hartigan, Attorney General, of Springfield (Gregory Condon, Assistant Attorney General, of Chicago, and Colleen McLaughlin, Assistant State’s Attorney, of Wheaton, of counsel), amicus curiae.

   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Joseph Ahern, brought a small claims action to recover monies paid to defendant, James M. Knecht, for the repair of plaintiff’s central air-conditioning unit. Plaintiff had paid $762 to defendant and complained that the unit was not repaired as requested, that defendant’s charges were outrageously exorbitant, and that some services were neither requested nor necessary where another company had thoroughly serviced the unit the month before and another company was able to repair it for $72 the day after defendant had worked on the unit. Following a bench trial in which the parties appeared pro se, the trial court found that defendant should have charged $150 for his work, and after the court deducted $72, the amount paid to the subsequent repairman, defendant was allowed a total of $78 for his work. The trial court then entered judgment for plaintiff in the amount of $684.

Defendant appeals, contending that the trial court had no basis to rescind or set aside the terms of the contract, whether on the basis of common-law or statutory fraud, unconscionability, or duress. The Attorney General has been permitted to file a brief amicus curiae supporting the position of plaintiff, who has filed his brief pro se. We believe that the record supports the judgment of the circuit court, and we, therefore, affirm.

The facts of this case have been gleaned from the limited stipulated statement of facts of the trial proceeding. At trial, plaintiff, Joseph Ahern, testified in his own behalf. Plaintiff began by describing another pending case in the chancery division of the trial court. He stated that defendant, James Knecht, was being sued by the Attorney General of the State of Illinois on behalf of about 100 people for violating the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1987, ch. 121½, par. 261 et seq.).

Plaintiff testified that Air Tite Temperature Engineering had performed service on the central air-conditioning unit on April 19, 1989. This included a new blower assembly and motor. Air Tite Engineering also performed service on the outside condensing unit on May 30, 1989. The service included washing out the condensing coils and level-ling the unit.

Plaintiff testified that, on June 23, 1989, he was not home; the unit was running but not cooling properly. Mrs. Ahern called defendant, James Knecht, for service. Plaintiff complained that defendant and his helper evidently spent hours repeating the same work that was performed by Air Tite on April 19 and May 30, but failed to repair the cooling problem for which his services had been requested. Worse yet, the unit was not running at all when defendant left, and for his services he charged $762, a sum which plaintiff considered outrageously exorbitant. The next day, on June 24, Energy Exchange repaired the unit for $72, and it has functioned well since.

The trial court asked Celeste Ahern to recount the events of June 23 and 24. Mrs. Ahern testified that there was a heat wave on June 23. She awoke in the morning to find the house temperature quite warm even though the air-conditioning unit had been running all night. Her husband was not home, and she did not know what company he normally used to service the unit. So she consulted the “Yellow Pages” and picked defendant because his advertisement stressed “honesty.”

Mrs. Ahern said that defendant arrived about 8:30 a.m. with a helper. They went to the basement and spent approximately 30 minutes down there. At 9 a.m., Mrs. Ahern went outside to find out when the unit would be repaired, since she had to leave for a doctor’s appointment at 10:30 a.m. Defendant gave Mrs. Ahern a price of $643 to repair the unit. Mrs. Ahern testified that she was unfamiliar with these mechanical procedures, but expressed shock at the price, particularly the $210 charge for levelling the unit. She presumed this was to have included a new concrete pad. She asked defendant to bill her, but he refused to do so and demanded to be paid before she left, despite the fact that the unit had still not been repaired. She testified that she felt intimidated and agreed to pay.

Mrs. Ahern testified that she returned with her checkbook 20 minutes later to discover that the slab had been levelled by shovelling some gravel from her patio under it. She expressed amazement to defendant that the $210 job had been performed so quickly. She testified that defendant then announced that he had forgotten to add $119 to his estimate to provide freon. She gave him a check for $762.

Mrs. Ahern testified that when she returned at 1 p.m., the unit was not running. Defendant left a note on his invoice which stated, “Weak compressor overload showed up.” Mrs. Ahern immediately called the bank to stop payment on the check, but discovered that defendant had cashed it at 12:15 p.m. After repeated calls to defendant, he returned the call at 9 a.m. the next day. He explained that the compressor “died,” and he would not replace it or refund the charges; he finally hung up on her.

Mrs. Ahern testified that the same day, June 24, Energy Exchange, Inc., serviced the unit and repaired it. Its invoice indicated that the run and start wires had been switched at the compressor. Freon was also added. Energy Exchange’s total charge was $72, and the unit has cooled properly ever since.

Defendant, James Knecht, testified that, on June 23, 1989, he responded to a call from Mrs. Ahern. Defendant and his helper, Dale Jaffke, arrived at the Ahern home at 8:36 a.m.

Defendant testified that he followed a standard procedure in diagnosing and repairing central air-conditioning units. That procedure begins with an audit of the cooling system, including such items as the blower, which is generally located on the furnace, the thermostat, the air filters, the condensate drain, the electrical connections, and the coolant system.

As reflected on his invoice, defendant checked and oiled the furnace blower. He checked the air cleaner; he cleared out the condensate drain line; and he applied a coupler to that drain line for use in future service. He checked the outside unit, which was found to be working mechanically, but not cooling. In checking the outside unit, defendant observed that the slab on which the condenser unit was sitting was not level and had apparently settled to the point that the unit was suspended from the freon or coolant line. The result was that the freon line had developed a leak.

At that point, as reflected in the invoice, defendant told Mrs. Ahern of his findings and gave her a quotation for the work which he felt was necessary to be done. As he told Mrs. Ahern, and as reflected on the invoice, the service call or travel charge of $69 combined with the $85 charge for diagnosing problems in the system totalled $154. Mrs. Ahern was told that Knecht Service would raise and level the condenser and slab for $210, that it would wet wash the condenser and coils for $138, check, clean, and tighten all electrical connections for $69, leak check eight service connections with a leak detection instrument, and stop the obvious leak at the condenser with a suction nut and seal cap for $72. Knecht Service would also install its instruments for monitoring coolant and add all required freon to bring the unit back up to service for $119. The total amount quoted to Mrs. Ahern was $762.

Mrs. Ahern told defendant that she needed to leave the house to attend to other business. Defendant told her that payment was required at the time the work was done. Mrs. Ahern agreed to prepare a check in the amount of $762, which she left with defendant.

Defendant and Jaffke proceeded to raise and level the concrete slab and condenser by adding several inches of landscaping gravel under the slab, sufficient to raise it so that pressure was relieved from the coolant line. Jaffke carried the gravel while defendant raised the slab and spread the gravel. Defendant and Jaffke disassembled the condenser and coils and proceeded to wet wash them using equipment from their service truck. All of the outdoor electrical connections were cleaned, tightened, and checked for continuity. The leak check of all service connections was accomplished using the leak detection equipment from the service truck.

Defendant and Jaffke then installed the instruments used in adding freon to the system and began adding freon. While the freon was being added, the compressor cut out and stopped working. According to defendant, it was not possible to complete the addition of freon once the compressor had stopped. Defendant attempted to determine the source of the failure, but he was unsuccessful in doing so. He left the invoice for Mrs. Ahern with the notation that an apparent compressor overload had occurred and that the compressor should be checked to see if it was under warranty.

Defendant subsequently learned from plaintiff that the problem with the compressor was that the “run” and “start” wires were attached to each other’s terminals at the compressor. Defendant testified that those wires could have been improperly attached when he arrived so that he did not notice them, or they may have been attached in error when he completed the checking, cleaning, and tightening of all of the electrical connections.

Defendant also testified that he had previously offered to return $72 to the Aherns which represented their cost of having another service man return to switch the two wires.

The trial court stated that the defendant should have charged $150 for the work that was done. The trial court stated that it would subtract the $72 paid to the subsequent repairman from the $150, with the result that defendant would be allowed a total of $78 for his work. Since Mrs. Ahern had paid $762, the trial court entered judgment in favor of plaintiff in the amount of $684 plus costs.

Before addressing the merits of defendant’s appellate contentions, we observe that the proceeding below was a small claims action, the rules governing such actions were designed to provide an expeditious, inexpensive and simplified procedure for handling such claims (Ryan v. Bening (1978), 66 Ill. App. 3d 127, 130.), and the trial court had jurisdiction to grant whatever remedy was appropriate under the circumstances of the case before it (Van Walsen v. Blumenstock (1978), 66 Ill. App. 3d 245, 250). The evidentiary record before us consists primarily of a brief summary of the testimony presented to the trial court rather than a verbatim record of that testimony. The defendant, as appellant, has the burden of presenting a sufficiently complete record of the proceedings of the trial court to support his claim of error, and any doubt arising as a result of the incompleteness of the record will be resolved against the appellant. Capsonic Group v. Swick (1989), 181 Ill. App. 3d 988, 992.

We also observe that the weight to be given to testimony in a trial without a jury is a matter for the trial court, and its findings will not be disturbed on review unless they are palpably contrary to the manifest weight of the evidence. (Wroclawski v. Waszczyk (1976), 35 Ill. App. 3d 408, 412.) For a judgment to be against the manifest weight of the evidence, the appellant must present evidence so strong and convincing that it completely overcomes the evidence and presumptions, if any, existing in the appellee’s favor. (Wroclawski, 35 Ill. App. 3d at 412.) We review defendant’s claim of error keeping these principles in mind.

Defendant raises three arguments in support of his contention that there is no basis to support the judgment of the trial court: (1) there was no basis to rescind an express contract either on the basis of common-law or statutory (consumer) fraud; (2) plaintiff could not set aside the contract as unconscionable or as violative of the Consumer Fraud Act on the ground that the price was too high; and (3) there was no basis to rescind the contract on the ground of duress. As defendant failed to raise specifically any of these issues in the trial court, they are arguably waived on appeal. (Randle v. Hinckley Parachute Center, Inc. (1986), 141 Ill. App. 3d 660, 663.) The material attached to defendant’s brief regarding a collateral proceeding involving defendant’s violation of the Consumer Fraud Act is not properly before this court and will not be considered. (See Kazubowski v. Kazubowski (1970), 45 Ill. 2d 405, 415.) Inasmuch as defendant claims that there is no evidentiary basis in the record to sustain the judgment of the trial court, we will review his contention on that basis in view of the informality of the proceedings below. (See Gulf, Mobile & Ohio R.R. Co. v. Edwards (1969), 108 Ill. App. 2d 295, 298.) As a reviewing court, we can sustain the decision of the trial court on any grounds which are called for by the record regardless of whether the circuit court’s reasoning was correct. Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, 148.

Because plaintiff complained that defendant’s prices were outrageously exorbitant in relation to the value of the services received, our examination of the evidence focuses first on the adequacy of consideration to support the contract. Consideration is any act or promise which is of benefit to one party or disadvantageous to the other. (O’Neill v. De Laney (1980), 92 Ill. App. 3d 292, 297.) Generally, courts will not inquire into the sufficiency of the consideration to support a contract. (Sta-Ru Corp. v. Mahin (1976), 64 Ill. 2d 330, 338.) However, where the amount of consideration is so grossly inadequate as to shock the conscience of the court, the contract will fail. O’Neill, 92 Ill. App. 3d at 297.

Evidence of gross inadequacy of consideration has been considered by some Illinois courts as tantamount to fraud, whether actual or constructive. (See, e.g., Smith v. Smith (1930), 340 Ill. 34, 40; In re Estate of Neprozatis (1978), 62 Ill. App. 3d 563, 568-69.) Thus, where there is a substantial failure of consideration for a contract, particularly where the inadequacy is accompanied by other inequitable or unconscionable features, a court of equity may rescind or cancel the contract. (17 Am. Jur. 2d Contracts §502 at 978-79 (1964).) Alternatively, substantial nonperformance or breach of contract warrants rescission where the matter, in respect to which the failure of performance occurs, is of such a nature and of such importance that the contract would not have been made without it. (Trapkus v. Edstrom’s, Inc. (1986), 140 Ill. App. 3d 720, 725.) A plaintiff desiring to rescind a contract must merely show the nonperformance or the inability to perform by defendant (In re Estate of Morgan (1981), 100 Ill. App. 3d 589, 592) and offer to return the value of the consideration received or otherwise return the other party to the status quo ante (Hakala v. Illinois Dodge City Corp. (1978), 64 Ill. App. 3d 114,120).

A contract may be treated as unconscionable when it is improvident, oppressive, or totally one-sided. (Streams Sports Club, Ltd. v. Richmond (1983), 99 Ill. 2d 182, 191.) Even where there is no actual fraud, courts of equity will relieve against hard and unconscionable contracts which have been procured by taking advantage of the condition, circumstances or necessity of the other parties. (Swiney v. Womack (1931), 343 Ill. 278, 288.) Factors relevant to finding a contract unconscionable include gross disparity in the values exchanged or gross inequality in the bargaining positions of the parties together with terms unreasonably favorable to the stronger party. (See Restatement (Second) of Contracts §208, comments c, d, at 108-09 (1981); see also American Buyers Club of Mt. Vernon, Inc. v. Grayling (1977), 53 Ill. App. 3d 611, 616-17; Annot., 18 A.L.R.3d 1305, 1313-16 (1968); see generally J. Fort, Understanding Unconscionability: Defining the Principle, 9 Loy. U. Chi. L.J. 765 (1978).) Courts will also look to such factors as the age and education of the contracting parties, their commercial experience (Neal v. Lacob (1975), 31 Ill. App. 3d 137, 142), and whether the aggrieved party had a meaningful choice when faced with unreasonably unfavorable terms (Ebersole v. Ebersole (1988), 171 Ill. App. 3d 632, 635; Frank’s Maintenance & Engineering, Inc. v. C.A. Roberts Co. (1980), 86 Ill. App. 3d 980, 989-90).

The circumstances existing when the contract was entered into in this case were such that the terms of the contract should be set aside as unconscionable. It is clear that the services rendered were of little or no value in contrast to the price paid to defendant. Gross excessiveness of price alone can make an agreement unconscionable. (J. Calamari & J. Perillo, Contracts §9 — 40, at 325 (2d ed. 1977).) Defendant performed services that had been performed a few weeks prior to June 23, including raising and levelling the condenser slab in less than 20 minutes with plaintiffs patio gravel for $210 and wet washing the condenser and coils for $138. Furthermore, he was to check, clean, and tighten the electrical connections for $69, fix the leak for $72, and add freon for another $119. In these last three tasks, defendant not only failed to perform substantially, but the unit was further disabled during defendant’s service call whereas it had been mechanically operating prior to defendant’s work on it. It is quite evident that the crux of the problem was a freon leak which was easily corrected by yet another service company for only $72. In addition, defendant required the payment of $154 just to answer the service call and “diagnose” or, more properly, misdiagnose, the problem. We have no difficulty in concluding that there was a grossly disparate exchange of values here which may be due to defendant’s incompetence or his sharp business practices.

The bargaining power of the parties was similarly disproportionate. Mrs. Ahern professed her ignorance of procedures for repairing an air conditioner, and she was obviously relying on defendant’s purported expertise. The cooling failure occurred during a heat wave, and she was already liable for the $154 service call even before agreeing to the remaining repair charges. Mrs. Ahern testified that she felt intimidated by defendant. It is clear that defendant was in a superior bargaining position. Freedom to contract is enhanced by a requirement that both parties be aware of the burdens they are assuming; however, the notion of free will has little meaning as applied to one who is ignorant of the consequences of her acts. (Frank’s Maintenance & Engineering, Inc., 86 Ill. App. 3d at 990.) Courts must be realistic in examining the true nature of a consumer transaction such as this one where the complexity of the technology involved is such that it would be unconscionable to expect the ordinary consumer to have skill equal to that of the expert in dealing at arm’s length. (See Sutter v. St. Clair Motors, Inc. (1963), 44 Ill. App. 2d 318, 323-24.) In view of the consumer’s lack of experience in this type of transaction, the defendant’s substantial charge for travel and diagnosis, his representations that the services were all necessary, and his insistence on immediate payment suggesting urgency, we conclude that this consumer had no meaningful choice and the agreement was not voluntarily and under standingly entered into.

Our review of the record persuades us that there was more than sufficient evidence for the trial court to set aside the unconscionable terms of the agreement and to allow defendant what it determined to be the actual value of his services. Any doubts have been resolved against appellant. The judgment of the trial court is not against the manifest weight of the evidence and will therefore be affirmed. Since there is a valid ground to affirm the trial court’s decision, we need not further address defendant’s arguments.

The judgment of the circuit court is affirmed.

Affirmed.

GEIGER and McLAREN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    AMY H. HIRST et al., Plaintiffs, v. HARRY L. STACKOWSKI, JR., et al., Defendants (Pilar Brooks et al., Minors, by Diana Brooks, their Mother and Next Friend, et al., Plaintiffs; Harry L. Stackowski, Jr., Defendant and Counterplaintiff-Appellant; Judy Woolcott, Plaintiff and Counterdefendant-Appellee).
    Second District
    No. 2—89—1262
    Opinion filed September 7, 1990.

      Daniel E. O’Brien, of McKenna, Storer, Rowe, White & Farrug, of Wheaton (H. Evan Williams IV, of counsel), for appellant.
    Richard J. Larson and Bernard K. Weiler, both of Larson, Mickey & Weiler, P.C., of Aurora, Joseph B. Condon, of Condon & Zopp, of Crystal Lake, Donald R. Brewer, of Dundee, and George W. Brannen, of Casey & Brannen, of St. Charles (Constance Burnett Renzi, of counsel), for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant and counterplaintiff, Harry L. Stackowski (Stackowski), appeals from the judgment of the circuit court of Kane County which granted the motion for summary judgment made by Judy Woolcott (Woolcott), a plaintiff and counterdefendant.

Stackowski was, on March 3, 1985, the operator of an automobile which collided with a vehicle driven by defendant, Phillip C. Brooks (Brooks), on Randall Road in McHenry County, Illinois. As a result of that accident, Stackowski was made a defendant in a lawsuit brought by the passengers of both vehicles.

Stackowski brought his counterclaim for contribution, alleging that if he were liable to these passengers, he was entitled to contribution from Brooks on the basis of his status as a joint tort-feasor and that he would, likewise, be entitled to contribution from Woolcott because Brooks was acting as her agent at the time of the accident. The complaint’s only references to this alleged principal-agent relationship in count I were as follows:

“10. At the aforesaid occurrence, PHILLIP C. BROOKS was driving CHRISTOPHER LEWIS at the request of JUDY WOOLCOTT for her purpose.
* * *
13. As PHILLIP C. BROOKS was acting as the agent of JUDY WOOLCOTT, HARRY STACKOWSKI is further entitled to contribution from JUDY WOOLCOTT.”

On March 3, 1985, Brooks invited Christopher Lewis (Christopher), the son of Woolcott by a previous marriage, to spend the day with his children. On the same day, with Woolcott’s permission, he drove Christopher to the home of mutual friends, Frank and Michael Casillas. The Woolcotts intended to pick up Christopher at the day’s end. However, their car was inoperable. Woolcott called the Casillas house and spoke to Brooks, who said that he would bring Christopher home. It was not Woolcott’s understanding that Brooks would first drop off his children at his ex-wife’s Algonquin residence, before bringing Christopher home. Woolcott did not agree to pay any costs that Brooks incurred while bringing Christopher home.

Brooks, upon leaving the Casillas house, drove towards Algonquin to drop off his children at his ex-wife’s residence. After driving approximately one mile, Brooks’ automobile was involved in the aforementioned collision with a vehicle driven by Stackowski.

Woolcott filed a motion for summary judgment on count I of Stackowski’s counterclaim alleging, inter alia, that she was neither the owner nor the passenger in the vehicle owned and operated by Brooks and that there was no agency or joint-venture relationship between Brooks and her at the time of the accident. The court below found that there was no principal-agent relationship between Woolcott and Brooks; that Brooks’ act of driving Christopher home was social and gratuitous; and that there was no issue of material fact as to Woolcott. Accordingly, the trial court granted Woolcott’s motion for summary judgment as to count I of Stackowski’s counterclaim.

Eventually all other issues were either settled or dismissed by stipulation of the parties. Only the trial court’s granting of Woolcott’s motion for summary judgment regarding count I of the counterclaim remained in dispute.

Summary judgment is a drastic and extraordinary remedy, and it must be granted only when the movant’s right to judgment as a matter of law is absolutely clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229.) Summary judgment should be granted by the trial court only when it is satisfied that the pleadings, affidavits, and other evidence present no genuine issue of material fact. (Knief v. Sotos (1989), 181 Ill. App. 3d 959.) A trial court must construe the record before it most strictly against the movant; conversely, the court must view the record in a light most favorable to the non-moving party. (Knief, 181 Ill. App. 3d at 963.) A reviewing court’s task is to determine whether the trial court correctly concluded that there were no genuine issues of material fact, and, if so, whether judgment for the moving party was correct as a matter of law. International Amphitheatre Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555.

Essentially, Stackowski argues that there was sufficient privity in the relationship of Brooks and Woolcott to impute his negligence to her. (See, e.g., Palmer v. Miller (1942), 380 Ill. 256.) Agency is a consensual fiduciary relationship whereby the principal has the right to control the conduct of the agent, and the agent has the power to effect legal relations of the principal. (Milwaukee Mutual Insurance Co. v. Wessels (1983), 114 Ill. App. 3d 746.) The test of agency is the existence of the principal’s right to control the method or manner of accomplishing a task by the alleged agent, as well as the agent’s ability to subject the principal to liability. (Wargel v. First National Bank (1984), 121 Ill. App. 3d 730, 736.) The nature and extent of agency are facts to be proved, and these questions become ones of law where the evidence is not disputed. (Wargel, 121 Ill. App. 3d at 736.) Moreover, the apparent authority of an agent must be based on words and acts of the principal and not on anything the agent himself has said or done. 121 Ill. App. 3d 730.

We reject Stackowski’s argument that there was evidence of a principal-agent relationship between Woolcott and Brooks, whose deposition testimony provides no support for this assertion. Woolcott’s relevant testimony is as follows:

“Q. What time was Chris to be returned?
A. There was really no set time.
Q. Was it your understanding though that Phil [Brooks] would bring Chris back to your house as opposed to your going to pick him up?
A. Originally we were supposed to pick him up, but we had trouble with our car, and I contacted Michael [Casillas], and Phil called back later saying that he would bring him home for me.
Q. Was Phil going to make any stops at all between Frank’s house and your house while bringing Chris home?
A. No, he was not.
Q. Was it your understanding that when he was taking Chris home that he would first stop to drop off his children?
A. No, it was not.
Q. Did you agree to pay Frank — excuse me — to pay Phil any of the costs he incurred in driving Chris from Frank’s house back to your house?
A. No, I did not.
Q. Was Phil going to stop and do any shopping for you, anything like that, before he returned Chris?
A. No, he was not.
Q. Did you talk to Phil directly when making the arrangements for him to bring Chris home?
A. Yes, I did.
Q. Was that by telephone?
A. Yes, it was.
Q. Was there anybody else on the line, just the two of you?
A. Just the two of us.
Q. Nobody was on another extension?
A. No.
Q. What did you say to him, and what did he say to you?
A. I don’t remember verbatim, but other than he was running a little late from picking them up because of the weather, he would be coming home. I told him to be careful. He said fine.
Q. Your conversation with Phil was after you talked to Michael about the car trouble?
A. Yes, it was. No, at that point when she put Phil on the phone, and I asked him to bring Chris home.
A. That’s when he said he would be running late because of the weather?
A. Right. I told him to please be careful.
Q. That was the extent of your conversation?
A. That was the extent of the conversation.
Q. Did you talk to Phil again on any occasion before the accident?
A. No, I did not.”

Brooks testified that he was the owner of the vehicle involved in the accident with Stackowski’s automobile and that no one else had an ownership interest in said vehicle. The purpose of the trip which involved the accident was “strictly social.” The record shed no more light on the nature of Brooks’ endeavor in transporting Christopher.

Several Illinois cases are similar to the one at bar. In Osborne v. City of Harvey (1973), 16 Ill. App. 3d 740, defendant alleged that the negligence of the driver was imputable to the driver’s passengers and that, therefore, the passengers were contributorily negligent. The driver of the car had been asked by his sister to drive her two daughters and herself to a wedding reception. The driver received directions to the reception from his sister’s husband but used an alternate highway, upon which his vehicle plunged into a ditch. The trial court determined that the driver’s negligence was not imputable to the passengers, even though they had asked the driver to transport them solely for their own purpose and benefit. In affirming the trial court’s decision, the Osborne court stated:

“The essential test for an agency relationship is the right to control. [Citation.] Plaintiff did not control the operation of the automobile, nor was it shown that the plaintiff had the right to control its operation. Mannella owned the car and it was he who disregarded the suggested route and turned onto Page Avenue. The purpose of the trip was purely social, had no business incidents and in substance amounted to a gratuitous act on the part of Mannella. There is no evidence of agency, and the court was correct in denying defendant’s motions.” Osborne, 16 Ill. App. 3d at 743.

Further, Fugate v. Galvin (1980), 84 Ill. App. 3d 573, though not specifically dealing with allegations of principal-agent relationship, nevertheless is illuminating. In Fugate, Harry Nosal asked defendant, Brian Galvin, to drive him to and from the home of a mutual friend. Galvin drove Nosal to the friend’s without incident, but on the way back to Nosal’s home, Galvin’s auto struck a pedestrian. Plaintiff’s complaint, which named Nosal a defendant, characterized Galvin as an independent contractor who was not being paid. The Fugate court found the Illinois case well settled, namely, the liability for the damage caused by the negligent act of a driver does not attach against a person other than the driver, unless said person is either the subject vehicle’s owner or has the right to control the car. (Fugate, 84 Ill. App. 3d at 575.) After finding that liability could not attach to Nosal, the Fugate court stated:

“As our ideas of personal relationships change, our notions of legal duties may change as well. [Citation.] Courts which recognize new duties do so after considering factors such as the relative ease in preventing the injury, the convenience of administration, the capacities to bear loss and the moral blame attached to the misconduct. [Citation.] As noted above, where the passenger neither owns the car nor hires the driver, the driver has the last word and is the only one who could prevent the injury by his decision whether to drive. There would be no administrative advantage in extending liability to a passenger for an injury suffered under these circumstances. The action would involve proving the same elements as a suit against the driver for negligence because of intoxication, plus the additional elements of the passenger’s relationship to the driver and his knowledge of the driver’s propensity to intoxication. While creating a new duty would assist injured plaintiffs by spreading the loss among a new class of defendants, up to now society has been satisfied to rely upon the liability of the driver alone to adequately compensate injured plaintiffs. The fortuitous circumstance of one driver’s inability to pay for damages he has caused should not be a reason to open new arenas of liability in search of perfect compensation schemes. Finally, as discussed above, the driver in this case bore final responsibility for the consequences of his decision. The policy of requiring individuals to take responsibility for their own acts militates aqainst the creation of a new duty.” (Emphasis added.) Fuqate, 84 Ill. App. 3d at 577.

Based on the record before us, we find that Woolcott did not control the operation of the subject automobile; there was no evidence that she had the right to control the vehicle. Further, the purpose of the trip was strictly social, and Brooks’ transportation of Christopher was a gratuitous act, without any business aspects. There was no principal-agent relationship between Woolcott and Brooks. Moreover, as in Fugate, to create a new duty, as plaintiff requests, would be squarely against the public policy of this State. Accordingly, the trial court correctly granted Woolcott’s motion for summary judgment on count I of Stackowski’s counterclaim.

The judgment of the circuit court is affirmed.

Affirmed.

INGLIS and GEIGER, JJ., concur.


author: JUSTICE McLAREN INGLIS, J., JUSTICE REINHARD,

text:
      In re JOHN LAMB, Asserted to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. John Lamb, Respondent-Appellant).
    Second District
    No. 2—89—1153
    Opinion filed September 7, 1990.

      INGLIS, J., specially concurring.
    REINHARD, J., dissenting.
    William E. Coffin, of Guardianship & Advocacy Commission, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Respondent John Lamb appeals from an order of the circuit court finding him to be a person subject to involuntary admission. Respondent raises two issues on appeal: (1) whether the trial court’s order must be reversed because the State failed to follow provisions of the Mental Health and Developmental Disabilities Code (Mental Health Code) (Ill. Rev. Stat. 1987, ch. 91½, par. 1—100 et seq.); and (2) whether the State failed to prove by clear and convincing evidence that respondent was reasonably expected to inflict injury either on himself or on another. Because the State did not comply with statutory procedural requirements, we reverse the judgment of the circuit court.

On August 17, 1988, respondent, a 42-year-old male, was transferred from the Du Page County jail to the Elgin Mental Health Center (EMHC) because he was adjudicated unfit to stand trial. Respondent was arrested for violating an order of protection which prohibited him from having contact with his parents. Respondent had a history of threatening to kill his parents and burn down their house.

On December 1, 1988, the State filed the first petition for involuntary admission. The petition asserted that respondent was psychotic, delusional and grandiose. In addition, respondent was uncooperative with treatment and refused to take medication. His doctors described respondent as paranoid and having no insight into his condition. On December 9, 1988, the trial court ordered that respondent was subject to involuntary admission.

In the second petition, dated February 8, 1989, the State asserted that respondent had a history of failing to follow through with outpatient treatment and had refused to be interviewed. This was his seventh involuntary admission since 1983. On February 2, 1989, respondent had become combative and had to be restrained. Respondent was diagnosed as a paranoid schizophrenic. In addition to the certificates of two health professionals from EMHC, the State also filed a treatment plan dated February 3, 1989. On February 14, 1989, respondent was again found to be a person subject to involuntary admission.

The State filed a third petition for involuntary admission on April 10, 1989. In addition to the petition, the State filed the two EMHC certificates and a treatment plan. The court, on April 28, 1989, found that respondent was subject to involuntary admission.

The next set of documents in the record is the subject of this appeal. On October 25, 1989, the State again filed the two EMHC certificates and a petition for involuntary admission. In addition, a notice to respondent of the hearing was also filed. The State did not file a treatment plan.

On October 27, 1989, the court held a hearing on the petition. Dr. Arturo Fogata, respondent’s psychiatrist, testified that he evaluated respondent. According to Dr. Fogata, respondent had delusions of persecution and continually talked about being brought to the mental health center without a court order or witnesses. Respondent was argumentative and had a history of aggression. He was also found hoarding large straightened paper clips, a four-inch screw, a door stopper with a sharp edge, and a flat stone with a sharpened edge.

Dr. Fogata further testified that respondent did not follow aftercare treatment plans and did not take his medication. Respondent’s last act of physical aggression was in April 1989, when respondent hit a staff member. Respondent had been forced to take medication and, since July 1989, had been voluntarily taking his medication and participating in the EMHC programs. Dr. Fogata was of the opinion that, if respondent was released, he would go into a cycle characterized by the failure to take medication and by aggression. Dr. Fogata based his opinion on respondent’s pattern of noncompliance with outpatient treatment in conjunction with the onset of delusions after failure to take medication. Dr. Fogata believed that respondent could not provide for his basic needs and that he would again harass his parents if he were released. According to Dr. Fogata, the mental health center was the least restrictive environment for respondent.

Dr. Fogata also explained the treatment plan for respondent. Under the treatment plan, the mental health center would find respondent a place to stay so his outpatient treatment could be monitored. Dr. Fogata hoped that respondent would be placed in a community service program within four to six months.

The trial court found that respondent suffered from a mental illness and, as a result of that illness, could reasonably be expected to inflict serious physical harm on himself or another. Respondent was therefore subject to involuntary admission, and EMHC was determined to be the least restrictive environment. Respondent timely filed his appeal.

Respondent first contends the order for involuntary admission must be reversed because it is apparent on the face of the record that certain provisions of the Mental Health Code were not followed. In support of this contention, respondent first argues that the State failed to follow the Code provisions when it served the notice of hearing on him. Section 3 — 706 of the Mental Health Code provides that the circuit court shall set a hearing date within five days after receipt of the second certificate and “[t]he court shall direct that notice of the time and place of hearing be served upon the respondent.” (Ill. Rev. Stat. 1989, ch. 91½, par. 3 —706.) Here, the State filed the notice of hearing at the same time as the certificates and the petition for involuntary admission. Thus, the State made two errors: first, the State, instead of the court, set the hearing date; and second, the State served the notice on respondent without the court’s direction.

Respondent cites two cases for the proposition that where notice has been issued and served before the petition is filed and the hearing is set by the trial court, the order of involuntary admission must be reversed even though the respondent never objected to the improper service. (In re Price (1987), 152 Ill. App. 3d 960, 961-62; In re King (1986), 148 Ill. App. 3d 741, 746.) This court, following Price and King, reiterated the rule that “any noncompliance with statutory involuntary admission procedures renders an involuntary admission judgment erroneous and ineffective.” In re Splett (1990), 194 Ill. App. 3d 391, 393.

The State argues, however, that we should reconsider our reliance on Price and King because those opinions are “ill-reasoned.” According to the State, the lack of formal notice is “an empty formality.” The State urges us to apply the rationale of In re J. W. (1981), 87 Ill. 2d 56, 62 (in a juvenile proceeding, formal notice may be considered waived where the interested parties have actual notice and participate in the proceedings) to involuntary commitment proceedings.

We disagree with the State’s characterization that formal notice of the hearing is an empty formality. As we explained in Splett, the mandatory notice requirements of the statute are meaningful in protecting against the last-minute, oral notification of a possibly sedated, involuntarily committed respondent. Splett, 194 Ill. App. 3d at 393.

We also disagree with the State’s assertion that the involuntary commitment procedure can be equated with a juvenile hearing. In a juvenile case, the court must hold a hearing within 120 days of a written demand for a hearing. (Ill. Rev. Stat. 1989, ch. 37, par. 805— 14.) In addition, if the minor is adjudicated delinquent, the court may release the minor to the custody of his parents. (Ill. Rev. Stat. 1989, ch. 37, par. 805—23(1)(a)(1).) By contrast, in an involuntary admission proceeding, the hearing must be held within five days of the filing of the second certificate. (Ill. Rev. Stat. 1989, ch. 91½, par. 3—706.) If the court finds the respondent to be subject to involuntary admission and the least restrictive alternative for treatment is the mental health center, the court must order that the respondent remain hospitalized. (Ill. Rev. Stat. 1989, ch. 91½, par. 3—811.) In an involuntary admission proceeding, the time to prepare for the hearing is significantly shorter, and the liberty interest at stake is much more compelling than in a juvenile proceeding. Therefore, strict adherence to the statutory requirements of the Mental Health Code is necessary.

Respondent further argues that the judgment must be reversed because the State failed to file a treatment plan as required by section 3 — 813 (Ill. Rev. Stat. 1989, ch. 91½, par. 3—813). The State responds that the failure to file a treatment plan was not reversible error because a treatment plan was in effect for respondent.

A treatment plan formulated in April 1989 does not qualify as a “current” treatment plan for a hearing held in October 1989. The statute requires that “the facility director shall file with the court a current treatment plan which includes an evaluation of the patient’s progress and the extent to which he is benefiting from treatment.” (Ill. Rev. Stat. 1989, ch. 91½, par. 3—813.) The testimony at the hearing showed that respondent’s condition had improved since the April hearing. Thus, the April treatment plan was not sufficient.

The State further asserts that the failure to file a current treatment plan is excused because Dr. Fogata testified about the treatment plan and the discharge plan. We recently held, in the context of section 3 — 810, that such cursory testimony is not a substitute for a treatment plan incorporated in a formal report. (In re Blume (1990), 197 Ill. App. 3d 552, 559 (“[T]he statute does not suggest that substantial compliance would be sufficient, and we cannot condone the failure to prepare and present a formal report which was intended to assist the trial court in making a disposition”).) The failure of the State to file a formal report which was prepared by the facility director or by a person directed to do so by the court results in an error which is neither harmless nor waived. Blume, 197 Ill. App. 3d at 558-59.

We conclude that the failure (1) to strictly follow the requirements for notification of the hearing and (2) to file a current treatment plan requires this court to reverse the judgment of the circuit court. In view of our disposition of these issues and the passage of time, we need not consider respondent’s other appellate contention.

In conclusion, we are deeply disturbed with the recent trend of cases concerning involuntary admission at the Elgin Mental Health Center (EMHC). See In re Hatala (1990), 200 Ill. App. 3d 163; In re Walker (1990), 200 Ill. App. 3d 159; In re Blume (1990), 197 Ill. App. 3d 552; In re Splett (1990), 194 Ill. App. 3d 391.

The common link between each of these cases is that the State, for unknown reasons, has not followed the relatively simple procedures outlined in our Mental Health Code to keep potentially dangerous, mentally unstable persons in a facility where they can receive appropriate treatment without jeopardizing the public’s safety. The Mental Health Code has sections dealing with notice of court proceedings to the patient (Ill. Rev. Stat. 1989, ch. 91½, par. 3—706), duration of the initial admission period and when a petition for an additional period of treatment must be filed (Ill. Rev. Stat. 1989, ch. 91, par. 3—813), along with the need to include a current treatment plan with the petition (Ill. Rev. Stat. 1989, ch. 91½, par. 3—813(a)). These provisions are all very detailed given that liberty interests are involved in these cases. (See In re Price (1987), 152 Ill. App. 3d 960, 961.) The State must be willing to follow the statutory mandates in order to eliminate the possibility that dangerous persons will be released from the EMHC without first receiving the necessary treatment. The State may wish to implement a procedure whereby it files a petition to continue an involuntary admission well in advance of the expiration of the previous period, thus eliminating some of these “last-minute” problems.

The judgment of the circuit court of Kane County is reversed.

Reversed.

INGLIS, J.,

specially concurring:

I concur with the holding of the opinion filed in this case. I am also very disturbed with the recent trend of cases concerning involuntary admission at the Elgin Mental Health Center. I agree with Justice McLaren that something must be done to protect the public from the release of potentially dangerous persons, without first receiving the necessary treatment, due to the State’s failure to comply with statutory requirements.

I also note that I agree with Justice Reinhard’s dissent in In re Splett (1990), 194 Ill. App. 3d 391, 394 (Reinhard, J., dissenting), appeal allowed (1990), 132 Ill. 2d 553. Although I agree with the dissent, I will follow the majority opinion in Splett pursuant to stare decisis et non quieta movere, at least until the supreme court decides the case. I do so in order to avoid further confusion in this difficult area.

JUSTICE REINHARD,

dissenting:

For the reasons which I stated in In re Splett (1990), 194 Ill. App. 3d 391 (Reinhard, J., dissenting), appeal allowed (1990), 132 Ill. 2d 553, I continue to dissent from the holding that the failure of the record to show that notice of the time and place of the involuntary admission hearing was served on respondent and his attorney requires reversal of the commitment even where respondent and his attorney appeared at the scheduled hearing and did not raise any issue of the lack of proper notice.

I also dissent from the balance of the opinion which holds that the judgment must be reversed because the State failed to file a current treatment plan as required by section 3—813 of the Mental Health Code (Code) (Ill. Rev. Stat. 1989, ch. 91½, par. 3—813). Although the record does not show that a current treatment plan was formally filed in strict compliance with section 3 — 813 of the Code, the point was not raised below, and the transcript of Dr. Fogata’s testimony at the commitment hearing indicates that a current treatment plan exists on which he was questioned by the assistant State’s Attorney and defendant’s counsel. While I do not approve of the failure to file formally the treatment plan, I would find there has been substantial compliance with the statute, and respondent has not suggested how he was prejudiced in these circumstances. Cf. In re Smoots (1989), 189 Ill. App. 3d 289, 292.

Finally, although not reached in the majority opinion, the respondent contends that the trial court’s order for involuntary admission was not supported by clear and convincing evidence. On this record, I disagree and would affirm the order of commitment.


author: JUSTICE INGLIS JUSTICE GEIGER,

text:
    TAKAKO DINGES, Plaintiff-Appellant, v. MYONG GABARDI et al., Defendants (The County of Kane et al., Defendants-Appellees).
    Second District
    Nos. 2—89—1160, 2—89—1258 cons.
    Opinion filed August 31, 1990.

      GEIGER, J., dissenting.
    John W. Fisk, of Kenneth C. Chessick, M.D., S.C., of Schaumburg, for appellant.
    David G. Mountcastle, of Mountcastle & DaRosa, of Wheaton, for appellee John C. Hutsler, Jr.
    Rita Farrell and Edgar K. Collison, both of Early, Collison, Tousey, Regan & Farrell, of Elgin, for appellees County of Kane and Nabi R. Fakroddin.
    Richard J. Larson, of Larson, Mickey, Weiler, P.C., of Aurora, for appellee Myong Gabardi.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Takako Dinges, appeals from two orders of the circuit court of Kane County, each of which dismissed one count of her complaint. The order at issue in appeal No. 2—89—1160 dismissed count III of the complaint against defendant Kane County (County). The order involved in appeal No. 2—89—1258 dismissed count V, which was against defendant Nabi Fakroddin. Plaintiff raises two issues on appeal: whether the County had a duty to warn of a downed stop sign; and whether Fakroddin, as an agent of the County, had a duty to warn of a downed stop sign.

On December 6, 1988, plaintiff filed a five-count complaint in the circuit court of Kane County. The complaint alleged that on April 26, 1987, Myong Gabardi was driving a car, in which plaintiff was a passenger, on Big Timber Road in Kane County. The Gabardi vehicle entered the intersection at Route 47, and it was struck by a truck driven by defendant John Hutsler, Jr. Count I alleged that Gabardi was negligent, and count II alleged that Hutsler was negligent. Neither party is involved in this appeal.

In count III, plaintiff alleged that the County maintained a stop sign at the intersection of Big Timber Road and Route 47 and that the stop sign “had been knocked down for some time prior to” the accident in which plaintiff was injured. The downed stop sign was not visible to Gabardi as her vehicle approached the intersection with Route 47. Plaintiff further alleged that the County had notice of the hazardous condition caused by the downed stop sign and that the County failed to inspect the stop sign, to repair the stop sign, and to warn motorists approaching the intersection of the dangerous condition. In addition, the County advised plaintiff that it did not maintain the stop sign. Subsequently, plaintiff informed the Department of Transportation of her claim. The Department of Transportation denied plaintiffs claim based on lack of notice. According to plaintiff, the Department of Transportation later denied responsibility for the maintenance of the stop sign.

Count IV of the complaint alleged that the Kane County Highway Department (Highway Department) was negligent based on the negligence of its principal, the County. The trial court subsequently granted plaintiff’s motion to voluntarily dismiss without prejudice the Highway Department as a defendant. Count V alleged that defendant Fakroddin, the superintendent of highways for the County, was negligent under the same theories as those alleged against the County.

Plaintiff attached to the complaint the affidavit of Joseph Kostur, the safety and claims manager for District One of the Department of Transportation. In the affidavit, Kostur stated that Route 47 was under the jurisdiction of the Department of Transportation, but that Big Timber Road was not a part of the State highway system. Kostur averred that the Department of Transportation did not have a duty to warn, regulate or control motorists traveling on Big Timber Road and that the County was responsible for Big Timber Road.

On August 18, 1989, the County filed a motion to dismiss count III of the complaint pursuant to section 2—619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—619), asserting the affirmative defense that the stop sign was on the Department of Transportation’s right-of-way, that the County did not own or maintain the stop sign, and that the County was immune from liability pursuant to sections 3—102, 3— 104, and 3—108(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, pars. 3—102, 3— 104, 3—108(a)).

The County attached the affidavit of Thomas Holderby, the assistant superintendent of the Highway Department, to its motion to dismiss. Holderby stated that the Highway Department did not erect, maintain, repair, or replace the stop sign on Big Timber Road at Route 47 and that the stop sign had always been maintained, repaired and replaced by the Department of Transportation. Holderby further stated that the stop sign is located on a right-of-way purchased by the Department of Transportation. The court found that section 2—105 of the Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 2—105) applied because the stop sign was not on the County’s property, and it never erected or maintained the stop sign. Consequently, the court dismissed count III of the complaint with prejudice. Plaintiff timely filed an appeal of the order.

Fakroddin subsequently filed a motion to dismiss on the basis that, since the County was not liable for plaintiff’s injuries, Fakroddin, as agent for the County, was also not liable to plaintiff. The court dismissed count V with prejudice, and plaintiff timely appealed that order. We granted plaintiff’s motion to consolidate the appeals.

Plaintiff first contends that the County had a duty to warn of the downed stop sign because it regulated the flow of traffic on a road under the County’s jurisdiction. Plaintiff correctly asserts that since this is an appeal of an order dismissing a complaint, all well-pleaded facts are taken as true. (See Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 514, cert, denied (1988), 485 U.S. 905, 99 L. Ed. 2d 236, 108 S. Ct. 1077.) Even if the complaint states a cause of action on its face, where an affirmative defense negates the cause of action, the dismissal is proper. Land v. Auler (1989), 186 Ill. App. 3d 382, 384-85.

To properly plead a cause of action in negligence, a plaintiff must allege the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140.) Plaintiff here focuses on the question of whether the County had a duty to warn of a downed stop sign which the County was not responsible for maintaining. Duty is a legal question to be decided by the court. Kirk, 117 Ill. 2d at 525.

The trial court found that the County was not liable because the stop sign was the State’s property and, under section 2 — 105 of the Tort Immunity Act, the County “is not liable for injury caused by its failure to make an inspection *** of any property, other than its own” (Ill. Rev. Stat. 1987, ch. 85, par. 2—105). Plaintiff argues that even if the County is immune from liability for failing to inspect or repair the sign, the County had a duty to warn of the dangerous condition.

In support thereof, plaintiff cites Janssen v. City of Springfield (1980), 79 Ill. 2d 435. In Janssen, our supreme court determined that a governmental unit which controls a roadway has a duty to warn motorists of hazards adjacent to the roadway even if the hazard itself is not within the control of the governmental unit. Janssen, 79 Ill. 2d at 444-45.

Defendants contend that Janssen is no longer controlling because the decision relied upon section 3 —104(b) of the Tort Immunity Act (Ill. Rev. Stat. 1973, ch. 85, par. 3—104(b)). Defendants correctly point out that this section was deleted by an amendment in 1986 and is no longer in effect. However, we disagree with defendants’ claim that this deletion somehow affects the viability of Janssen. The Janssen decision noted that the duty to warn had been codified in section 3 — 104(b) (Janssen, 79 Ill. 2d at 450) but did not find that the duty arose from the Tort Immunity Act. Instead, the court determined that the duty arose from the long-recognized obligation of governmental units to maintain public highways within its boundaries in a safe condition. 79 Ill. 2d at 450.

We recognized this distinction in our recent decision in Battisfore v. Moraites (1989), 186 Ill. App. 3d 180. In Battisfore, we pointed out that Janssen “adopted the principle that a municipal unit which controls a roadway has a duty to warn motorists of hazards adjacent to the roadway even if the hazard itself is not within the control of the governmental unit.” (Battisfore, 186 Ill. App. 3d at 186.) We pointed out that Janssen “further found that a municipality’s duty to warn motorists of dangerous conditions is codified in section 3—104(b) of the Tort Immunity Act.” (Emphasis added.) 186 Ill. App. 3d at 186-87.

Plaintiff correctly points out that the Tort Immunity Act does not impose duties but instead confers immunities. (Havens v. Harris Township (1988), 175 Ill. App. 3d 768, 770.) According to plaintiff, since the deletion of the former section 3—104(b) did not impose a new duty on local governmental entities, its deletion could not relieve a local government of a duty which preexisted the statute.

We agree with plaintiff that the duty to warn stems from the duty to maintain the public roadways in a reasonably safe condition, and does not arise from section 3—104 of the Tort Immunity Act. Furthermore, courts have determined that the immunity available under section 3—104(a) of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 3—104(a)) does not apply where a particular sign is necessary to warn of a condition which endangers the safe movement of traffic. (See Smith v. County of White (1989), 191 Ill. App. 3d 569, 577; DiOrio v. City of Chicago (1981), 99 Ill. App. 3d 1047, 1051-52.) Prior to amendment, section 3— 104(a) provided:

“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).)

Section 3 — 104 now states:

“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 or warning sign, device or marking, signs, overhead lights, traffic separating or restraining devices or barriers.” (Ill. Rev. Stat. 1987, ch. 85, par. 3-104.)

Given that these two sections are virtually identical, we also take the position that immunity is not available to a governmental entity for the failure to warn of a condition which endangers the safe movement of traffic.

In addition, we disagree with defendants’ contentions that sections 2—105, 3—102, and 3—108(a) of the Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, pars. 2—105, 3—102, 3—108(a)) provide additional affirmative defenses. Sections 2—105 and 3—102 are both inapplicable because we are concerned with the duty to warn in this case, and not the duty to inspect or maintain property in a safe condition. Section 3 — 108(a) is also inapplicable in our duty-to-warn analysis because this section concerns a public entity’s failure to supervise an activity on public property. Given that defendants’ affirmative defenses do not bar plaintiff’s complaint on a duty-to-warn theory, we believe that the trial court erred in dismissing count III of plaintiff’s complaint against the County.

We next consider defendant Fakroddin’s additional affirmative defenses in support of his position that the trial court properly dismissed count V of plaintiff’s complaint. Fakroddin first contends that section 2—201 of the Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 2—201) is applicable to his case. Section 2—201 provides, in pertinent part:

“[A] public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.” Ill. Rev. Stat. 1987, ch. 85, par. 2 — 201.

Fakroddin relies upon Mora v. State (1977), 68 Ill. 2d 223, to support his position. In Mora, the plaintiff alleged that the defendant, an employee of the State Department of Transportation, should have established a no-passing zone on the highway near the point of the collision at issue. The supreme court found the defendant immune from liability, noting that the defendant, a public officer, was exercising his official discretion and was not performing a ministerial task. Mora, 68 Ill. 2d at 233-34.

We agree with defendant Fakroddin that Mora supports his position that he was immune from liability in this case. The task of determining whether to erect a warning sign required the exercise of judgment and discretion in this case, and thus the decision not to erect the sign, even though possibly an abuse of discretion, does not result in liability to Fakroddin. (See Mora, 68 Ill. 2d at 233-34; Havens, 175 Ill. App. 3d at 771; Ill. Rev. Stat. 1987, ch. 85, par. 2 — 201.) Thus, the trial court properly dismissed count Y of plaintiffs complaint against defendant Fakroddin.

For the above-stated reasons, the decision of the circuit court of Kane County dismissing count V of plaintiff’s complaint is affirmed. The decision dismissing count III of the complaint is reversed, and the cause is remanded for proceedings consistent with this opinion.

Affirmed in part; reversed in part.

WOODWARD, J., concurs.

JUSTICE GEIGER,

dissenting:

I must respectfully disagree with my learned colleagues that count III withstands dismissal upon the plaintiff’s duty-to-warn theory.

In the Tort Immunity Act (the Act), the legislature has concretely formulated the local government duty upon which the majority relies — the duty to maintain roadways in a safe condition. (Janssen v. City of Springfield, (1980), 79 Ill. 2d 435; Ill. Rev. Stat. 1989, ch. 85 par. 3—102.) It has also, however, created local governments’ immunities from liability. I do not agree with the majority’s reasoning that section 3 — 104 of the Tort Immunity Act, which creates an immunity for the government’s failure to initially provide warning signals and signs, does not control this case.

Unlike the majority, I would not rely upon Janssen or cases based partly thereon. (Battisfore v. Moraites (1989), 186 Ill. App. 3d 180; Smith v. County of White (1989), 191 Ill. App. 3d 569, 577; DiOrio v. City of Chicago (1981), 99 Ill. App. 3d 1047, 1051-52.) Those cases suggest a limitation on section 3—104 immunity when a signal or sign was necessary to warn of danger to safe traffic movement. However, I question whether those cases are viable under the facts of this case since the amendment of section 3—104.

In 1986, shortly before this accident, but after the accidents in the above-cited cases, the legislature modified and merged prior subsections 3—104(a) and 3—104(b) of the Act to create the current section 3—104. The new section 3—104 includes the same basic governmental immunity for failure to provide signals and signs. However, the amendment eliminated former subsection 3—104(b)’s provision that immunity was available “unless such a signal, sign, marking or device was necessary to warn of a condition which endangered the safe movement of traffic.” Ill. Rev. Stat. 1985, ch. 85, par. 3—104(b).

The deletion of the cited portion of former subsection 3—104(b) was the most significant aspect of the 1986 amendment. Thus, it is immaterial, as the majority nonetheless accurately observes, that the prior subsection 3—104(a) is virtually identical to the amended section 3—104. Because the Janssen court’s reasoning relied at least in part upon the now deleted exception of section 3—104(b) (Janssen, 79 Ill. 2d at 450-51, 453), its precedential value is, in my opinion, limited following the 1986 amendment. Even assuming that Janssen was not affected by the 1986 amendment of section 3—104, I would find no duty for the County.

As this court has noted, the Act creates no new duties; it simply articulates the common law duty to which the subsequently delineated immunities apply. (Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 95.) I would not find that the common-law duty to maintain a roadway in a safe condition includes the duty effectively established by the majority, that a local government must warn of a disabled State warning marker that it did not erect, maintain, or own, and that was not located on its property. Such a duty could lead to senseless consequences, such as the one in this case where a County might be obligated to seek State permission to use a State right-of-way to place some warning notice that a State-initiated and controlled stop sign was disabled.

Under the Act, the County may determine not to erect a traffic control device. The State could not by its neglect give rise to some otherwise nonexistent County duty to maintain, inspect, or repair a State-controlled sign. (See Ill. Rev. Stat. 1989, ch. 85, pars. 2—105, 3 —102(a); Thorsen v. City of Chicago (1979), 74 Ill. App. 3d 98, 107.) Likewise, the State could not by its neglect give rise to a County duty to warn of a failure to maintain, inspect, or repair. See Charpentier v. City of Chicago (1986), 150 Ill. App. 3d 988, 996.

I would affirm the court’s dismissal of count III of the complaint. Consequently, I respectfully dissent from the contrary portion of the majority decision.


author: JUSTICE GORMAN

text:
      In re MARRIAGE OF CHRISTIAN R. TAYLOR, n/k/a Christian R. Vaughn, Petitioner-Appellant, and DAVID G. TAYLOR, Respondent-Appellee.
    Third District
    No. 3—90—0124
    Opinion filed August 30, 1990.

      McLaughlin, Hattery, Simpson & Sullivan, of Galesburg (S. David Simpson, of counsel), for appellant.

      Barash, Stoerzbach & Henson, of Galesburg (Daniel B. Stoerzbach, of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

Christian R. Vaughn (Mother) brought an action seeking leave to remove her minor child (Douglas) from the State of Illinois. David G. Taylor (Father) filed for modification of the judgment of dissolution, seeking a change in custody from Mother to himself. The two petitions were tried together. The court denied the Mother’s petition and granted the Father’s petition. After the proofs were closed, Mother filed a motion to supplement the record. This was denied as was Mother’s subsequent motion for reconsideration. Mother appeals. We reverse the trial court, grant Mother’s petition and remand to the trial court for consideration of visitation and transportation arrangements between the parties.

Mother and Father were married on August 14, 1982. Their marriage was dissolved on June 19, 1985. In the judgment, the parties agreed and the court found both parents to be fit and proper persons to have custody of their then 18-month-old child, Douglas. Mother was awarded physical custody, subject to Father’s visitation rights, which included alternate weekends, some holidays and two weeks in the summer. The judgment also provided neither parent, without first obtaining a court order or the written consent of the other parent, could permanently remove Douglas from the State of Illinois.

Mother subsequently married her second husband, Rick Martin, on January 18, 1986. That marriage was dissolved on December 31, 1986, while Mother was pregnant with their child. Mother gave birth to a son, Nicholas Martin, on April 23, 1987. She was awarded custody of Nicholas.

Mother married Forrest Vaughn on April 15, 1989. Vaughn was employed in his family’s print shop business in Monmouth, Illinois. Shortly after their marriage, Vaughn quit his job and entered the United States Navy. He was subsequently assigned to the U.S.S. Yellowstone and is scheduled to begin an extended tour on the ship in August 1990. The U.S.S. Yellowstone is based in Norfolk, Virginia. Mother secured permission to remove Nicholas from the State of Illinois and subsequently Mother petitioned the court to allow her to remove Douglas to Norfolk so that she, Nicholas and Douglas could live closer to Forrest.

Father filed for modification of the judgment of dissolution, seeking change of custody from Mother to himself. This petition was predicated upon Mother’s impending move from Illinois to Norfolk. The two petitions were tried together and, after a contested hearing, the trial court denied Mother’s petition and allowed Father’s petition. After the proofs were closed, Mother filed a motion to supplement the record. This motion, as well as a subsequent motion for reconsideration, was denied. Mother appeals.

Mother raises several issues for our consideration. Initially, Mother contends that the trial court improperly addressed the two petitions. We agree.

Mother sought permission to move Douglas from Illinois to Virginia. A petition to remove is governed by section 609 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 609). Under section 609, the burden is on the petitioner to show that removal of the child from Illinois is in the child’s best interests. The factors used to determine the best interests of the child were set forth in In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041. In Eckert our supreme court stated:

“There are *** several factors which may aid a trial court in determining the best interests of the child. The court should consider the proposed move in terms of likelihood for enhancing the general quality of life for both the custodial parent and the children. [Citations.] The court should also consider the motives of the custodial parent in seeking the move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation. [Citations.] Similarly, the court should consider the motives of the noncustodial parent in resisting the removal. [Citation.] It is also in the best interests of a child to have a healthy and close relationship with both parents, as well as other family members. Therefore, the visitation rights of the noncustodial parent should be carefully considered. [Citations.] Another factor is whether, in a given case, a realistic and reasonable visitation schedule can be reached if the move is allowed. [Citation.]” 119 Ill. 2d at 326-27.

The response of Father was to file a petition for change of custody. A petition for change of custody is governed by section 610(b) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 610(b)). It provides:

“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, 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 or termination of joint custody if either parent opposes the modification or termination.”

Father’s petition was predicated upon Mother’s anticipated move to Virginia.

The court allowed both petitions to be consolidated into one hearing. Problems in consolidated section 609/section 610(b) hearings have arisen in the past. (See, e.g., In re Marriage ofGratz (1989), 193 Ill. App. 3d 142, 548 N.E.2d 1325.) A judge is required to hear two different types of evidence and must be careful not to allow evidence proper for one petition to impact upon the decision as to the other petition.

In the instant case the trial court issued one order discussing its findings of fact and its decision denying Mother’s petition to remove and allowing Father’s petition for change in physical custody. We believe that the trial court was in error. The trial court should have ruled on Mother’s petition first. Had the trial court denied Mother’s petition, the basis for Father’s petition would have been eliminated. Father then would have been required to prove, by clear and convincing evidence, that another change (other than the move to Virginia) had occurred such that Douglas should be removed from Mother’s physical custody.

Mother next contends that the trial court’s decision to deny her petition was against the manifest weight of the evidence. We agree.

The only findings in the order of January 16, 1990, pertaining to Mother’s petition are:

“1. Christian Vaughn, the mother of Douglas Taylor, is presently married to Forrest R. Vaughn, who is enlisted in the United States Navy and is assigned to duty to the U.S.S. Yellowstone in Norfolk, Virginia.
2. Christian Vaughn is seeking employment and residence in Norfolk.
3. The duties of Forrest R. Vaughn as a sailor will require him to spend a duty watch in excess of 24 continuous hours aboard his ship when in port and sea duties when the ship is no longer in port, all of which will remove him from the parental home for extended periods.
* * *
8. It is in the best interest of Douglas Taylor to remain in the State of Illinois, where he has already established roots in the community, has a supportive extended family, whereas to remove him from the State of Illinois would place him in a transitory unstable environment, which would not be permanent and to his best interests.”

There are no other factors set forth in the order which the court could properly have considered in denying the petition to remove. It is apparent that while the trial court made some findings of fact, it did not apply its findings to the factors outlined in Eckert. Accordingly, we have examined the record and now apply the facts of the case to the factors set forth in Eckert.

The first factor considers the likelihood that the proposed move will enhance the general quality of life for the child and the parent having physical custody. As far as Douglas is concerned, we cannot say that the general quality of his life will be directly enhanced by a move to Norfolk.

The move to Norfolk will significantly enhance the general quality of life for Mother, the custodial parent, and, therefore, indirectly beneficially affect Douglas’ quality of life. It would allow her to see more of her husband while his ship is in Norfolk. The family would not be saddled with the expense of maintaining two residences (one in Illinois and one in Virginia). Additionally, she would draw camaraderie support from the Navy community. This would help her deal with the absences of her husband. Additionally, as a resident of the Norfolk area, the Navy will be able to assist her in procuring a job, which could pay a higher rate than what she was making here in Illinois. There are advantages (PX, health/dental care, etc.) that are available in Norfolk. While it is true that some of these benefits would also be available in Illinois, she would have to travel to obtain them.

As to the second and third Eckert factors, there were no allegations that the motives of either Mother or Father in seeking or resisting removal were improper. Accordingly, these factors need not be addressed. In re Marriage of Zamarripa-Gesundheit (1988), 175 Ill. App. 3d 184, 529 N.E.2d 780.

The fourth factor examines the visitation rights of the parent lacking physical custody. The fifth factor requires inquiry into whether a realistic and reasonable visitation schedule can be reached if the move is allowed.

There have not been significant problems in the past regarding visitation. The trial court noted, and we agree, that Douglas has enjoyed a close and loving relationship with Father, Father’s wife and Father’s extended family. It is also apparent that Douglas has enjoyed a good relationship with Mother, his primary care-giver since birth, and his stepbrother, Nicholas.

Mother is willing to allow liberal visitation, including extended summer visitation of Douglas with Father. The court-appointed psychologist opined that Mother’s proposed visitation was reasonable and would not substantially interfere with Father’s relationship with Douglas. We are of the opinion that, as in In re Marriage of Gratz (1989), 193 Ill. App. 3d 142, 548 N.E.2d 1325, the type of visitation proposed, absent any significant problems in the past with visitation, militate in favor of removal.

Applying the facts of the instant case to the factors outlined in Eckert, it is apparent that the trial court’s decision denying Mother’s petition was against the manifest weight of the evidence. Accordingly, we reverse the trial court’s decision denying Mother’s petition to remove.

We also reverse the trial court’s decision allowing Father’s petition to change physical custody. Father was required to prove, by clear and convincing evidence, “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.” Ill. Rev. Stat. 1987, ch. 40, par. 610(b).

We also agree that the trial court erred in admitting testimony of Dr. Ronald Leonard. In denying Mother’s motion for ruling on evidentiary issues in evidence depositions, the court stated in its February 9, 1990, order that it would be presumed the court considered only competent evidence, and to the extent the evidence depositions contained inadmissible evidence, the court did not consider that evidence. However, in its order of January 16, 1990, the court made a finding which reads in pertinent part:

“Forrest R. Vaughn *** disciplined the minor child, Douglas Taylor, by locking him in a dark closet which subsequently caused the minor child to have nightmares.”

The only evidence in the record about this incident appears in the deposition testimony of Dr. Ronald Leonard. Since this is the only testimony the court could have relied on, the trial court obviously found it to be competent and considered it in making the specific finding mentioned above.

It is our opinion that the trial court’s reliance on the evidence was improper. The deposition reveals that Dr. Leonard testified that he had met with Douglas on October 27, 1987, and took notes of his conversation during that examination. Dr. Leonard had no independent recollection of this conversation. Dr. Leonard was asked by Father’s counsel to refer to his notes. A hearsay objection by Mother’s attorney was denied. During cross-examination, Dr. Leonard stated that Douglas has not been brought to him for treatment, that he had not treated him, that he was not asked to treat him and that he did not give any medical advice of any kind. He did not recommend medical treatment, nor refer Douglas to anyone else for medical treatment. Under examination by Father’s attorney, Dr. Leonard was asked what he was looking for in his examination. Dr. Leonard indicated that he was looking for signs of physical abuse, such as bruising and other evidence of abuse. He indicated that none was found. Dr. Leonard also testified that he did not make a determination whether Douglas was being truthful. Additionally, Dr. Leonard indicated that Father was present during the questioning and that it would be common for a three-year-old child to not want to say something that would displease his father.

The exception for hearsay in reporting to a doctor one’s complaints has to do with the fact that the person who is making the statements is otherwise reliable as a witness. The reason the doctor is allowed to relate what the person has told him is that he is being told the statement in order to secure treatment. What would otherwise be hearsay is given the indicia of reliability because it is in the interests of the person making the statement to be truthful with the doctor so that he can be treated successfully. Melecosky v. McCarthy Brothers Co. (1986), 141 Ill. App. 3d 84, 89, 489 N.E.2d 892.

In the instant case, we have a three-year-old boy whose competency to testify is clearly questionable. When the doctor was asked whether he had an opinion regarding the truthfulness of the child, he stated:

“All I did was write down what the young man told me. How do you tell if a three year old is telling you the truth[?]” Accordingly, we are of the opinion that the testimony constituted hearsay and was not within any exception to the hearsay rule. The trial court erred in relying upon it.

The matter is remanded to the trial court for consideration of visitation and transportation arrangements between Mother and Father.

Reversed and remanded.

HEIPLE, P.J., and STOUDER, J., concur.


author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SCOTT ENERSON, Defendant-Appellant.
    Third District
    No. 3—89—0708
    Opinion filed August 2, 1990.
    Kenneth D. Brown, of State Appellate Defender’s Office, of Ottawa, for appellant.
    William Poncin, State’s Attorney, of Macomb (Terry A. Mertel and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

Following a bench trial, the defendant, Scott Enerson, was convicted of aggravated assault (Ill. Rev. Stat. 1989, ch. 38, par. 12—2(a)(1)). The trial court sentenced him to serve one year of probation and 60 days in jail. The defendant appeals, contending that he was not proved guilty beyond a reasonable doubt.

The agreed statement of facts reveals that the defendant consumed 10 beers between 7 p.m. and 11 p.m. on August 26, 1989. Sometime after 11 p.m., the defendant left his apartment to go to a friend’s house. At that time, Stan Kondic, who lived in the same apartment building as the defendant, was having a party outside with Ulysses Banuelos and several other people.

The defendant testified at trial that about 15 minutes after leaving his apartment he returned and procured two steak knives. He then left his apartment again and engaged in a verbal altercation with some of the people at the party. As Banuelos started moving toward him, the defendant attempted to pull out one of the knives, but dropped it on the ground. According to the defendant, Banuelos continued moving toward him. The defendant then displayed the other knife and told Banuelos that he would defend himself if he had to. At that point, everyone, including Banuelos, moved away from him. The defendant then went back to his apartment.

Stan Kondic and Ulysses Banuelos each testified that the defendant, without being invited, sat down on a chair belonging to them. They repeatedly asked him to leave the area. The defendant ignored their requests and stated that he would sit where he wanted. Eventually, the defendant left and went back to his apartment. Sometime later, he came out again. He walked toward Kondic and Banuelos with his hand behind his back as though holding something. Banuelos asked the defendant what he was holding. The defendant pointed a knife at Banuelos and took a step toward him. The defendant then dropped the knife, but pulled out a second one and again pointed it at Banuelos. At that time, Kondic called the police. According to Kondic and Banuelos, the defendant was about IV2 to 3 feet from Banuelos while he held the knife.

The defendant argues on appeal that he was not proved guilty beyond a reasonable doubt, because his conduct did not place the victim in reasonable apprehension of receiving an immediate battery. In that regard, he specifically notes that the victim never yelled or screamed and did not testify at trial that he actually feared being injured.

To prove the offense of aggravated assault, it must be shown that the defendant, using a deadly weapon, engaged in conduct which placed the victim in reasonable apprehension of receiving a battery. (Ill. Rev. Stat. 1989, ch. 38, pars. 12—2(a)(1), 12—1.) Whether the victim was in reasonable apprehension of a battery is a question of fact. (People v. Chrisopulos (1980), 82 Ill. App. 3d 581, 402 N.E.2d 912.) It is not necessary that the victim expressly testify that he was in apprehension of a battery to sustain a conviction; rather, it can be shown inferentially based on the conduct of the defendant and the victim. 9In re P.S.B. (1988), 174 Ill. App. 3d 114, 528 N.E.2d 769; In re C.L. (1989), 180 Ill. App. 3d 173, 534 N.E.2d 1330.) Once a defendant is convicted, the evidence is viewed by the appellate court in the light most favorable to the prosecution, and the relevant question is whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

Applying the above principles to the instant case, we find that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of aggravated assault. Evidence was presented which showed that the defendant took a step toward the victim while brandishing a knife. The defendant was only IV2 to 3 feet from the victim. Moreover, the defendant specifically testified that everyone, including the victim, moved away from him while he held the knife. From this evidence, the trier of fact could have reasonably found that the victim was placed in fear of being seriously injured. See People v. Hasty (1970), 127 Ill. App. 2d 330, 262 N.E.2d 292.

The judgment of the circuit court of McDonough County is affirmed.

Affirmed.

GORMAN and STOUDER, JJ., concur.


author: JUSTICE STOUDER

text:
    LOUISE R. WANLESS, Plaintiff-Appellee, v. ROBERT WRAIGHT et al., Defendants-Appellants.
    Third District
    No. 3—89—0712
    Opinion filed August 2, 1990.

      Elliff, Keyser, Oberle & Davies, of Morton (Thomas E. Davies, of counsel), for appellants.
    Frank M. Wanless and Annette L. Wanless, both of Morton, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendants, Robert C. Wraight and the Village of Morton, appeal from the entry of a decree granting the plaintiff, Louise R. Wan-less, a permanent injunction and quieting title in a disputed strip of real estate. We affirm.

This dispute concerns the location of the southern and eastern boundary between the plaintiff’s property and property acquired and used by the Village of Morton. Robert Wraight was joined as a defendant because he is the superintendent of public works for the village. The plaintiff owns three adjoining lots which are bordered on the north by Jefferson Street and on the west by Plum Street. From west to the east the lots are designated as 17, 16, and 15. Lot 14, which is owned by the village and used as a parking lot, lies to the east of plaintiff’s lot 15. Lots 9, 8, 7 and 6 border plaintiff’s property to the south and are also owned by the village for use as a parking lot.

The plaintiff acquired lot 15 in 1951 and lots 16 and 17 in the late 1950’s. The plaintiff’s home and her husband’s law office are located on lot 15. In 1954, the plaintiff’s home was remodeled. As part of the remodeling, an addition was added to the east side of the house. The east wall of this addition is located on the east plat line of lot 15. The eaves of the house extend over lot 14. In the early 1960’s, a decorative concrete block screen was placed near the southeast corner of the plaintiff’s addition. This structure sits almost totally on lot 14 and lies within the disputed area. The record also shows the existence of an old wire fence extending along the south half of lot 15’s east lot line. This fence sits for the most part almost directly on the plat line between lots 15 and 14, and runs parallel to a wooden fence installed by the village on lot 14.

On October 20, 1954, the village acquired lot 14. There was a single-family residence located on this property. In the late 1950’s or early 1960’s, the residence was removed from lot 14 and the property converted to a parking lot. The village placed railroad ties along the border between lots 14 and 15. The railroad ties were located approximately 2V2 feet east of the actual plat line between lots 14 and 15. In the early 1970’s the village installed a wooden fence along the south half of lot 14’s west border. The fence was placed along the same line north and south as the railroad ties and was thus also approximately 21/2 feet east of the actual lot line.

The southern border of plaintiff’s property is enclosed in part by a chain link fence which begins at the southeast corner of a garage located at the south end of lot 17. The south wall of the garage sits very close to the south plat line of lot 17. The fence jogs south from the corner of the garage approximately a foot and a half, then continues in an easterly direction parallel to the southern boundary of lots 16 and 15. This chain link fence replaces an old wire fence the village had removed early on in this dispute. The final section of the fence line is composed of a wooden fence which runs to the south end of the wooden fence the village placed on lots 14 and 6. These fences are located south of the south plat line of plaintiff’s property on lots 9, 8, 7 and 6. The village has apparently owned lots 9 and 6 for some time. Lot 9 lies directly south of plaintiff’s lot 17. In 1987, the village acquired lots 8 and 7, which are located south of plaintiff’s lots 16 and 15, respectively. The northwest corner of lot 6 touches the southeast corner of lot 15.

The dispute in the instant case arose when the village decided to convert lots 8 and 7 into a parking lot, and a survey revealed that plaintiff was encroaching on the northern portions of lots 9, 8, 7 and 6 and the west portion of lot 14. The village notified the plaintiff that the old wire fence and the wooden fence along her southern lot line were located on the village’s property and would have to be moved. During negotiations concerning the dispute, the village tore down the old wire fence along the plaintiff’s south boundary. The plaintiff then filed this action to enjoin the village from removing any more of her fencing and to quiet title in the strip of property along the southern and eastern borders of her property that she claimed by adverse possession. The village filed a counterclaim against the plaintiff alleging that the eaves of her house and the concrete block screen encroached on lot 14 and that the plaintiff’s fencing encroached on lots 6 through 9.

Following a series of hearings, the trial court found that the plaintiff had acquired the claimed property by adverse possession. The defendants appeal, claiming that the trial court’s decision was against the manifest weight of the evidence and that a claim of adverse possession cannot be asserted vis-a-vis lot 14 because it was municipal property used for a public purpose and the plaintiff did not prove adverse possession for the 20-year period previous to such use.

It is well settled that the adverse possession which is required to continue a bar to the assertion of a legal title by the owner must include these five elements: it must be (1) hostile or adverse, (2) actual, (3) visible, notorious and exclusive, (4) continuous, and (5) under claim of ownership. (Schwartz v. Piper (1954), 4 Ill. 2d 488, 122 N.E.2d 535.) Adverse possession cannot be made out by inference or implication, for the presumptions are all in favor of the true owner, and the proof to establish it must be strict, clear, positive and unequivocal. (Mercer v. Wayman (1956), 9 Ill. 2d 441, 137 N.E.2d 815.) The proof must be such as to establish with reasonable certainty the location of the boundaries of the tract to which the five elements of adverse possession are applied, and all of the elements must extend to the tract so claimed. Joiner v. Janssen (1981), 85 Ill. 2d 74, 421 N.E.2d 170.

Where the trial court has found that a plaintiff has established the necessary elements of adverse possession, the trial court’s finding will not be reversed unless the defendants are able to show that those findings are against the manifest weight of the evidence. Tapley v. Peterson (1986), 141 Ill. App. 3d 401, 489 N.E.2d 1170.

On review of the record, we find the defendants in this case have failed to show that the trial court’s findings are against the manifest weight of the evidence. The dispute over the southern boundary of plaintiff’s property centered on an old wire fence. The plaintiff testified that a portion of this fence was replaced by a wooden fence, which runs along the same line as the old wire fence did. The village itself took the position that the old wire fence and the wooden fence were on the village’s property. It requested the fences be moved and then proceeded to tear down the wire fence. The chain link fence which the plaintiff put up to replace the wire fence runs along the same line east and west as the wooden fence. The testimony presented by the plaintiff and the defendants shows that the wire fence was very old. Its extremely dilapidated condition supports the trial court’s finding that the plaintiff had acquired title by adverse possession to the claimed portions of lots 6 through 9.

Similarly, the evidence supports the plaintiff’s claim to title by adverse possession of the disputed portion of lot 14. The plaintiff placed a decorative concrete block screen on the claimed portion of lot 14 and maintained the area between the wire fence and the wooden fence installed by the village. Plaintiff has used and occupied this strip of lot 14 as her own in excess of 20 years. The defendants have not pointed to facts showing the trial court’s determination of this issue was against the manifest weight of the evidence.

The defendants argue that adverse possession will not lie against a municipality and that therefore plaintiff’s claim to the western strip of lot 14 must fail. The issue is whether the village is exempt from the statute of limitations for commencing an action for the recovery of lands (Ill. Rev. Stat. 1989, ch. 110, par. 13—101). In Brown v. Trustees of Schools (1906), 224 Ill. 184, 79 N.E. 579, the Illinois Supreme Court stated in pertinent part:

“The rule that statutes of limitation do not run against the State also extends to minor municipalities created by it as local governmental agencies, in respect to governmental affairs affecting the general public. The exemption extends to counties, cities, towns and minor municipalities in all matters respecting strictly public rights as distinguished from private and local rights, but as to matters involving private rights they are subject to statutes of limitation to the same extent as individuals. [Citations.]
*** [T]he public right and public use must be in the people of the State at large, and not in the inhabitants of a particular local district. *** [T]here is a well founded distinction between cases where the municipality is seeking to enforce a right in which the public in general have an interest in common with the people of such municipality, and cases where the public have no such interest; ***.
There are numerous cases where it has been held that municipalities or minor political subdivisions of the State are not subject to limitations laws in respect to streets and public highways ***, but streets and highways are not for the use of the inhabitants of any municipality or locality alone, but for the free and unobstructed use of all the people in the State. Such rights are clearly distinguishable from the rights or interests of the inhabitants of a locality in property acquired for a mere local use, such as city offices, a library site or the use of a fire department. Such property is held and used for strictly local purpose.” Brown v. Trustees of Schools (1906), 224 Ill. 184, 186-88, 79 N.E. 579, 580.

Thus, municipalities are not afforded a blanket exemption from statutes of limitation. In the instant case, we do not view the use of lot 14 as a parking lot to fall within the definition of public use. Under the circumstances, the village was not exempt from the statute of limitations and, therefore, the plaintiff could obtain title to the disputed strip of lot 14 by adverse possession.

In sum, we find the trial court’s determination was not against the manifest weight of the evidence. Therefore, the judgment of the circuit court of Tazewell County is affirmed.

Affirmed.

BARRY and SCOTT, JJ., concur.