author: PRESIDING JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUIS CORA, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—1864
    Opinion filed November 13, 1992.

      George P. Lynch, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Stabrawa, and Michael J. Monaco, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

After a bench trial, the defendant, Luis Cora, a school teacher, was convicted of aggravated criminal sexual abuse of one of his students and official misconduct. He was sentenced to 30 months’ probation with the first 60 days to be served in the county jail. He contends that he was not proved guilty beyond a reasonable doubt, that his confession should have been suppressed and that the indictment should have been dismissed.

K.P. was a 15-year-old freshman at Lakeview High School in September 1986 through December 1986. The defendant was her biology teacher. She had a class with the defendant five days a week and was his aide during her study periods three days a week. She testified that the defendant had her start sitting on his lap at his desk in October of 1986. He began kissing her in the second week of October; this continued regularly until December 1986.

Their relationship became more serious in December 1986 in the vault, or storage room, adjacent to the defendant’s classroom. At this time, the defendant unbuttoned K.P.’s blouse and pulled down her pants and kissed her bellybutton and buttocks. The defendant pulled his zipper down, pulled out his penis and embraced her; his penis eventually touched her vagina. Throughout the incident she was telling the defendant to please stop. She did not have any contact with the defendant outside of class after this incident.

At the end of the 1986 school year, K.P.’s parents moved away and she transferred to Roosevelt High School. She returned to Lakeview in September 1988, her junior year, after she ran away from home and moved in with her grandmother, who resided in the Lakeview High School district. She saw the defendant her first day back in school and had a brief conversation with him. Her next contact with him was one month later when she attempted to deliver a message to him after class. The defendant was in the vault, and he called out for her. He answered the message and then attempted to coax her over to him; he tried to hug her. After the third contact with the defendant, K.P. went to see her gym teacher, Geraldine Upshaw, for whom she acted as a teacher’s aide. At the time of trial, she was about the same height and was about five pounds lighter than she was in 1986. Her hair was a lighter shade of blond in 1986, but she had the same general appearance.

She did not tell her homeroom teacher, the police officer at the school, her friends or her mother about the incidents with the defendant. She did tell another Lakeview teacher in October 1986 that the defendant was making her sit on his lap. At the time of trial she was still in high school and was living with her fiance.

Geraldine Upshaw was a physical education teacher at Lakeview in January of 1989. She testified that K.P. became her teacher’s aide and talked to her as a friend. After talking with K.P. on January 17, 1989, she went to the principal and then to the school’s social worker.

Youth Officer Donald Muscolino testified that at 8:30 a.m. on January 19, 1989, he telephoned the defendant at Lakeview High School and asked the defendant to come down to the station. The defendant responded that he would “gladly” come down. The defendant arrived at the station at about 10:30 a.m.

Muscolino and his partner, Officer DeBartolo, brought the defendant to their office. Muscolino advised the defendant of his Miranda rights, and the defendant said he understood. The defendant did not ask for an attorney and agreed to answer questions at this time.

Muscolino told the defendant that a former student of his alleged that the defendant had taken certain liberties with her. The defendant discussed these allegations with the officers and then gave an oral statement. Muscolino again advised the defendant of his rights. After he finished talking to the defendant between 11 and 11:15 a.m., he called Assistant State’s Attorney Anne Kent, who arrived at the station at about 11:30 a.m. Muscolino told her of the allegations of K.P. and the defendant’s statement. Kent interviewed K.P. and then the defendant. Kent advised the defendant of his rights. The defendant repeated the statement he had given the police officers. Kent wrote out the defendant’s statement and gave it to the defendant to read. The defendant made a couple of changes to the statement and then signed it.

In his statement the defendant said that K.P. was his teacher’s aide in October 1986. She was experiencing family problems and would come to the defendant to talk during or after class. He would kiss her, and she would kiss him on the lips and cheek. He kissed her on the belly button, breasts and on her buttocks. She came to him about three times a week between October 1986 and January 1987. Sometime in December 1986, the defendant undressed K.P. with her help and embraced her in the vault adjacent to her classroom while his penis was out of his pants. K.P. left Lakeview for a year, and after she returned nothing happened.

Because resolution of the issue of the sufficiency of evidence re- > quires consideration of the defendant’s confession, we will first address his claim that the confession should have been suppressed.

The defendant testified at the suppression hearing that he had been employed as a biology teacher by the Chicago Board of Education for 13 years. On the morning of January 19, 1989, he received a phone call from Officer Muscolino. Muscolino told him that there was a problem involving a Lakeview High School student, but he refused to tell the defendant the name of the student. Muscolino told the defendant to come down to the station for questioning. The defendant said that he would be through with classes at 3:30 p.m. Muscolino told him that he would have to come down right away or the police would come and get him. After speaking with his principal, the defendant drove to the station, arriving at approximately 10:30 a.m.

The defendant waited for about 45 minutes before Muscolino came and took him to his office. Muscolino asked him if he knew K.P., and the defendant said that he knew her. Muscolino told him that K.P. had stated that the defendant had kissed her, fondled her and placed his penis on her vagina. When the defendant denied these allegations, Muscolino told him that he should cooperate with the police because the whole process would be much easier if the defendant would accept these facts and give a written statement; Muscolino promised to tell the judge that the defendant had cooperated and, considering the defendant’s lack of a criminal record, the judge would go easy on him, setting a bond for only $100. After this bond was posted, the defendant would be free to go on with his life and job.

Muscolino then told him that if he did not cooperate, the judge would probably set a very high bond considering the seriousness of the case. The defendant continued to deny the allegations for about an hour during which the officers kept repeating what Muscolino had said earlier. The officers told the defendant that they were his friends.

The defendant eventually admitted the allegations, stating that he did so because the truth was not getting him anywhere and he thought that admitting these facts would be the only way of getting out of the station and back to his classroom.

The defendant testified that he first saw Anne Kent at about 2:30 p.m. Kent greeted him “very charmingly, very nicely, very warmly.” She asked the defendant how he was and he responded that he was nervous. She responded by grabbing each of his wrists and telling him not to worry because everything was going to be fine. The defendant subsequently signed the written statement that was prepared by Kent.

The defendant admitted that he was advised of his rights. The defendant understood the rights, but did not pay much attention to them. The officers did not physically harm him in any way, but the defendant was “mentally scared.” He was “scared” because the officers told him that he would get three years of imprisonment. He did not tell Kent about the officers’ threats and promises because she did not give him the chance.

The officers and Kent contradicted the defendant. Muscolino and DeBartolo testified that no threats or promises were made to the defendant. Muscolino said that the defendant never denied committing any of the alleged acts.

Kent testified that she wrote out the defendant’s statement based on the information the defendant supplied and asked him to clarify or explain certain things as she went along. The defendant signed each page of the statement. He said that there were some errors present; Kent corrected the statement and the defendant initialed the corrections. Kent also said that no promises or threats were made to the defendant. She denied touching the defendant’s wrists and telling him “nothing is going to happen to you.”

No purpose would be served by an analysis of the evidence. Suffice it to say that this case presented a question of fact which was resolved against the defendant. That resolution by the trial judge was not against the manifest weight of the evidence. (See People v. Poole (1991), 222 Ill. App. 3d 689, 584 N.E.2d 368.) The principal case relied upon by the defendant, People v. Ruegger (1975), 32 Ill. App. 3d 765, 336 N.E.2d 50, was an affirmance of the trial judge’s ruling suppressing a confession. Like the court in Ruegger, we hold that we must defer to the trial judge’s determination of credibility and the weight of the evidence. See also People v. Perez (1992), 225 Ill. App. 3d 54, 587 N.E.2d 501.

The defendant also maintains that his statement should be suppressed because it was a product of his illegal seizure. He does not state when he was seized, only that such seizure was done without probable cause. We judge that the fact finder could have concluded that the defendant was arrested after he admitted the allegations that had been made against him by K.P. By this observation, we do not mean to suggest that the police did not have grounds to arrest the defendant on the basis of the allegations made by K.P. We conclude that the trial judge did not err in denying the defendant’s motion to suppress his confession.

Our conclusion that the confession was properly admitted leads to the further conclusion that the testimony provided proof beyond a reasonable doubt that the defendant committed aggravated criminal sexual abuse. The cases cited by the defendant, People v. Rodriquez (1978), 58 Ill. App. 3d 775, 374 N.E.2d 1062, and People v. Mixter (1972), 8 Ill. App. 3d 531, 290 N.E.2d 705, are in-apposite. The defendants in those cases did not confess.

We do not agree with the defendant’s argument that K.P.’s failure to make an immediate complaint requires a rejection of her testimony. Rodriquez and Mixter are again not in point. Both cases involved allegations of forcible rape where lack of consent was an issue. Lack of consent is not an issue in this case. Moreover, neither case said that the absence of an immediate complaint rendered the testimony of the prosecuting witness insufficient as a matter of law. In People v. Moffat (1990), 202 Ill. App. 3d 43, 560 N.E.2d 352, the principal of a high school was charged with official misconduct and taking indecent liberties with a child after five students had alleged that he committed sexual acts with them. In affirming the defendant’s conviction, the court rejected the defendant’s argument that the evidence against him was implausible because there was no immediate complaint even though the defendant’s sexual conduct with certain students occurred over the span of two to three years. The court stated that in cases like the one before it, “the lack of an outcry or a late complaint may be attributed to fear or embarrassment.” Moffat, 202 Ill. App. 3d at 54.

The defendant also argues that he reasonably believed that the victim was at least 17 years of age. Under section 12—17(b) of the Criminal Code, “[i]t shall be a defense under *** subsection (d) of Section 12—16 of this Code that the accused reasonably believed the person to be 17 years of age or over.” (Ill. Rev. Stat. 1989, ch. 38, par. 12—17(b).) The two courts which have considered this section of the statute have determined that subsection (b) operates as an affirmative defense. (People v. Lemons (1992), 229 Ill. App. 3d 645, 593 N.E.2d 1040; People v. Brown (1988), 171 Ill. App. 3d 391, 525 N.E.2d 576.) The defendant is required to produce some evidence at trial to demonstrate the existence of a reasonable belief that the victim was seventeen years old. (Brown, 171 Ill. App. 3d at 397-98.) The defendant will be excused from presenting evidence where the evidence presented by the State raises the issue of the affirmative defense. Brown, 171 Ill. App. 3d at 397-98.

Here, the defendant presented no evidence that he had a reasonable belief that the victim was not 17 years old. Testimony in the State’s case clearly established that the victim was 15 years old at the time of the incident; no evidence presented in the State’s case suggests that the defendant had a reasonable belief that the victim was 17 years old. The defendant was a high school teacher with 14 years of experience in the Chicago public schools. The victim was a student in his freshman biology class. As the State points out, virtually all students begin their freshman year in high school at age 14 or 15. K.R testified that she looked substantially the same at the time of trial and at the time of the incident. The trial judge was able to observe the appearance and demeanor of K.P. Despite the defense attorney’s statement that the victim looked like she was 35 or in her late 20’s, the trial judge concluded that K.P. looked “awfully young” to him. We judge that the defendant failed to establish that he reasonably believed K.P. was 17 years of age or older at the time of the incidents.

The defendant also maintains that he was not proved guilty beyond a reasonable doubt of official misconduct under section 33—3(b) of the Criminal Code. (Ill. Rev. Stat. 1989, ch. 38, par. 33—3(b).) We agree with the State that the commission of aggravated criminal sexual abuse of a school teacher committed against one of his students during the course of his employment supports a conviction of official misconduct.

In his reply brief, the defendant alleges that the indictment was not properly pleaded. That the defendant raises this issue for the first time in his reply brief does not bar consideration of this issue because “the requirement that an information or indictment charge a crime is jurisdictional.” (People v. Adams (1978), 64 Ill. App. 3d 547, 548, 381 N.E.2d 738.) If we determine that the indictment is defective, the judgment must be reversed.

In People v. Samel (1983), 115 Ill. App. 3d 905, 451 N.E.2d 892, the court stated that the general provisions of the official misconduct statute required that the defendant be a public employee acting in his official capacity. The court stated that subparagraph (b) of the statute contains two additional elements which must be pleaded and proved by the State. “First, the State must allege that defendant knowingly performed an act which he knew he was forbidden by law to perform. *** Second, the indictment must specify the precise ‘law’ which the defendant is alleged to have violated in cases of questionable criminal conduct ***.” Samel, 115 Ill. App. 3d at 909.

The indictment charging the defendant states that the defendant:

“committed the offense of official misconduct in that he, while employed as a Chicago Public High School Teacher knowingly performed an act which he knew was forbidden to perform [sic]; to wit: aggravated criminal sexual abuse, in violation of Chapter 38, section 33—3 of the Illinois Revised Statutes 1985 as amended.”

The defendant contends that the indictment fails because it lacks any specific statements as to what particular conduct makes up the predicate offense of aggravated criminal sexual abuse.

We judge that this indictment satisfies the Samel standard. The defendant relies on People v. Adams (1978), 64 Ill. App. 3d 547, 381 N.E.2d 738, and People v. Campbell (1972), 3 Ill. App. 3d 984, 279 N.E.2d 123. Neither of those cases supports the defendant’s position. In those cases, the appellate court reversed the defendant’s conviction because the indictments failed to allege that the defendants knew they were violating the law when they committed the acts in question. In the case before us the indictment clearly states that the defendant knew that he was performing acts which were forbidden by law. Therefore, the indictment was properly pleaded.

The defendant contends that the State failed to prove beyond a reasonable doubt that he knew that he was violating a law when he committed aggravated criminal sexual abuse. We reject this argument out of hand without any further discussion.

The defendant’s last argument is that the indictment should have been dismissed. First, he claims that no proper foundation was laid for the testimony of Muscolino, who was the only witness before the grand jury. Muscolino testified as follows:

“Q. Did your investigation show that Luis Cora was a teacher at Lakeview High School and age 40 at the time that this was committed?
A. That’s correct.
Q. Did your investigation also show that [K.P.] was a student of his, and she was age 15 at the time this offense was committed?
A. That’s correct.
Q. Did your investigation also show that Luis Cora, while employed as a school teacher for the Chicago Board of Education fondled and licked the breasts of [K.P.], and he also placed his penis on the vagina of [K.P.]?
A. That’s correct.
Q. Did all this occur in the County of Cook, State of Illinois.
A. Yes.”

There is no denying that the State made a bare-bones presentation before the grand jury. But the sole question is whether the State presented any competent evidence to support the charge. The cases cited by the defendant, People v. Rodgers (1982), 92 Ill. 2d 283, 442 N.E.2d 240, and People v. Linzy (1979), 78 Ill. 2d 106, 398 N.E.2d 1, simply stand for the proposition that a court has inherent power to review the proceedings of a grand jury. But its review is limited to determining whether there was any competent evidence presented and whether the indictment was the result of prosecutorial misconduct. The defendant’s argument is that no proper foundation was laid for the testimony of Muscolino! In other words, the defendant maintains that Muscolino should have testified to the confession that the defendant made to him rather than saying that his investigation disclosed certain facts. In People v. Creque (1978), 72 Ill. 2d 515, 382 N.E.2d 793, the supreme court held that an indictment may be based solely on the hearsay testimony of an investigating officer summarizing the events. Moreover, there is no burden on the State to present all available evidence to the grand jury. (People v. Consago (1988), 170 Ill. App. 3d 982, 524 N.E.2d 989.) In People v. Jones (1960), 19 Ill. 2d 37, 106 N.E.2d 1, the supreme court said that if a witness before a grand jury is competent, his testimony is competent, regardless of whether his testimony is hearsay. Muscolino was a competent witness. We find that sufficient competent evidence was presented to the grand jury to support the indictment.

After Muscolino testified before the grand jury, the foreman asked questions about the charge of official misconduct. The following occurred:

“FOREMAN: Well, his conduct as a teacher prior to this incident doesn’t—
[STATE’S ATTORNEY]: O.K.
FOREMAN: (continuing) — Is something that will probably come up in the trial, should you get an indictment, but I was wondering if that’s something we might explore here. Is he a bad teacher?
[STATE’S ATTORNEY]: I truthfully don’t know that. But to me he has violated the greatest trust you could have in a profession. You know, you send your child to a school and the one person that you are supposed to trust violates her. I think that’s what we are looking at. Whenever you see me come in, we deal in a unit that strictly deals with children that are being molested. A Child Sexual Exploitation Unit of the State’s Attorneys’ Office. And when you have teachers or nuns, priests, day care centers, we have a special unit that only goes out and talks to these kids and talks to the offenders. So I will be a red flag and you will know that it’s a school teacher or someone in the public trust.”

The grand jurors then retired to deliberate and returned a true bill.

The defendant contends that the remarks of the assistant State’s Attorney constituted prosecutorial misconduct and require dismissal of the indictment.

The defendant has cited several cases which stand for general propositions of law governing the relationship between the court and the grand jury. (People v. Linzy (1979), 78 Ill. 2d 106, 398 N.E.2d 1 (trial court has inherent power to examine transcripts of grand jury proceedings to determine if prosecutorial misconduct has occurred); People v. Rodgers (1982), 92 Ill. 2d 283, 442 N.E.2d 240 (trial court has inherent authority to determine whether indictment is based on competent evidence); People v. Sears (1971), 49 Ill. 2d 14, 273 N.E.2d 380 (trial court has general supervisory authority over grand jury, subject to some limitations).) The defendant, however, has not cited any case which factually supports his claim here. In People v. Barton (1989), 190 Ill. App. 3d 701, 546 N.E.2d 1091, cited by the defendant, the appellate court affirmed the trial judge’s dismissal of the indictment based on prosecutorial misconduct. But that case is factually wide of the mark. In that case the prosecutor was guilty of unethical acts and had deliberately misled the grand jury. It is significant that the appellate court noted that the dismissal was justified only because the special prosecutor had misled the grand jury. It would not have affirmed the dismissal if the motion had been made based on the misconduct and unethical acts of the prosecutor. (190 Ill. App. 3d at 708.) In the case before us, the remarks of the assistant State’s Attorney were not unethical or misleading. The worst that we can say about her remarks is that they might have been better left unsaid. They surely would not be grounds for dismissal of the indictment.

We turn now to the defendant’s claim that the judge held that he lacked discretion in dismissing an indictment based on what happened before the grand jury. The judge said this:

“When a grand jury returns an indictment, the only thing you can show is, if there was one witness only, that that witness was incompetent to testify. You couldn’t question the fact that as far as you and I are concerned it didn’t add up to a crime at all but the grand jury thought it was.
* * *
Red flag. I kind of feel for your [sic], George [defense attorney], really, but it just — let me put it this way: the Appellate Court is going to have to do it in this particular case because I have always gone on the theory you can’t question what they do before the grand jury. If there is one competent witness there, one guy who is mentally — guy or girl — who is mentally sound and she testifies, she may have been led all across the board by the State’s Attorney and the State’s Attorney, should be perhaps more feeling and understanding that this is a one-sided proceeding and not let all their emotions fly out, but I don’t see it, frankly I will tell you. So — .”

We cannot say that the judge held that he lacked any power to review what transpired before the grand jury to determine whether an indictment should be dismissed. His remarks focus on the question of competency, and they reflect a proper general statement of the law.

The defendant is correct that the trial judge had the authority to review proceedings before a grand jury (People v. Rodgers (1982), 92 Ill. 2d 283, 442 N.E.2d 240), but the defendant is not correct that a judge has discretion to dismiss an indictment. Reviewing courts will not examine a ruling on a motion to dismiss an indictment under an abuse of discretion standard. The proper standard on review is whether the judge was correct as a matter of law. We conclude that the judge was correct as a matter of law when he denied the motion to dismiss the indictment.

For these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA and RAKOWSKI, JJ., concur.

       Justice Rosemary LaPorta participated in oral argument before her death. Justice Daniel J. McNamara was substituted on the panel. He has listened to the oral argument tape and has read the briefs.


source: Caselaw Access Project

license: Public Domain

text:
    CHARLES PHILLIPS, Plaintiff-Appellant, v. COMMUNITY CENTER FOUNDATION AND THE CHILDREN’S FARM, Defendant-Appellee.
    First District (6th Division)
    No. 1—91—0871
    Opinion filed November 13, 1992.
    Rehearing denied December 17,1992.

      Rick A. Gleason, of Gleason & Fritzshall, of Chicago, for appellant.
    Robert A. Roth, of Keck, Mahin & Cate, of Chicago, for appellee.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

This is an appeal by the plaintiff, Charles Phillips, from an order granting summary judgment to the defendant, Community Center Foundation (the Center); the Children’s Farm is part of the Center. The plaintiff had filed a personal injury action to recover damages for injuries he suffered when he fell from a horse owned by the Center which he was riding on the Center’s property.

The Center is an organization whose mission is “to enable people to develop a well-balanced quality of life and a feeling of wholeness.” Reverend Frank Sanders is the executive director of the Center. The Center sponsors various religious, educational and social service programs designed to accomplish its mission, including religious retreats, an environmental education program, three summer camps, a school camp, a folk school program, a social service program dealing with alcoholism, and an educational farm called the Children’s Farm. The Children’s Farm is located on the east side of the Center’s property, across the road from the main community center building.

Samuel Smith was an employee of the Center from March through November of 1986. Smith had completed the Center’s “Pathway to Sobriety” program for alcoholic rehabilitation and was then hired by the Center and placed in charge of maintenance. Smith lived in a house on the western portion of the Center’s property, across the highway from the Children’s Farm. At his evidence deposition, Smith testified that he worked in a supervisory capacity at the Center, overseeing the physical maintenance of the buildings, vehicles and animals. He said that he supervised five to nine other people; he maintained the equipment for the horses, including saddles, and performed maintenance duties inside the barn. (Smith had earlier testified at his discovery deposition that he was not responsible for checking the condition of the horses’ equipment.) Smith would sometimes ride the horses himself, and he would allow his son, his wife and his brother to ride the horses.

The plaintiff testified at his discovery deposition that Smith had often stated that he was in charge of everything at the Center, including maintenance and caring for the horses and equipment, and that he was “in charge of the whole place.”

Sanders testified at his discovery deposition that Smith was in charge of maintenance of the premises, but had nothing to do with caring for the horses or the saddles and other equipment associated with the horses. He added that Smith’s maintenance responsibilities generally would not require him to go into the barn area. The Center’s horses were used mainly for the summer camp program; the general public was not allowed to ride the horses. There was a sign on the gate at the entrance to the Children’s Farm that said “Open By Reservation Only.” Sanders said that neither Smith nor any other employee was allowed to ride or saddle the horses unless Sanders was present.

Contrary to Sander’s testimony, Smith testified that he had authority to use or ride the horses himself and that everyone rode the horses on a daily basis. Smith understood that Sanders had given him authority to ride the horses himself and to allow the plaintiff to ride the horses on the date of the accident. He said that Sanders had been present on past occasions when Smith, other employees, and nonemployees had ridden the horses, and Sanders had not told Smith that allowing nonemployees to ride the horses was improper.

The plaintiff’s complaint alleged that Smith had invited him to a birthday party for Richard Phillips, the plaintiff’s brother, on Sunday, August 10, 1986. The party was held at Smith’s residence on the Center’s property. During the party, Smith invited the plaintiff, his brother, and several children to ride the horses; they rode the horses for short jaunts through the fields for a period of approximately one hour. Dave Schroeder, another employee of the defendant, was participating in the Pathway to Sobriety Program and was working at the Center that day; he saddled the horse that the plaintiff rode. A cinch strap broke, and the plaintiff was injured when he was thrown from the horse.

Smith testified that the broken cinch strap was worn, dry and old and that he had complained to Sanders about the condition of the equipment on several occasions before the plaintiff’s accident. Employees did not regularly inspect the saddles and cinches.

Sanders testified he knew all about cinches and saddles, that he knew that a worn-out cinch strap represented a danger to the rider of the horse and that a cinch strap may have broken before the date of the accident. He knew that the camp was using horses on Sunday.

The Center filed a motion for summary judgment, maintaining that it could not be held vicariously liable for the plaintiff’s injuries because Smith was not acting within the course and scope of his employment when he invited the plaintiff to ride the horse. The Center’s motion stated that Smith was not acting as its agent when the incident occurred, because Smith’s acts were motivated by an intention to serve the personal enjoyment of his family and himself, and not the interests of the Center. Contrary to the plaintiff’s contention in this court, the Center did argue that it could not be held directly liable for the plaintiff’s injuries under a negligence theory because the plaintiff allegedly was a trespasser. Last, the Center maintained that it was shielded from liability by the Recreational Use of Land and Water Areas Act (or Recreational Use Act) (Ill. Rev. Stat. 1985, ch. 70, par. 31 et seq.).

The trial judge entered summary judgment in favor of the Center stating, “The court has adopted the argument, reasoning and law referred to in defendants’ motion for summary judgment, memorandum in support of defendants’ motion for summary judgment, and in defendants’ reply in support of its motion for summary judgment as the basis for its ruling.”

Summary judgment is generally inappropriate when scope of employment is at issue. Only if no reasonable person could conclude from the evidence that an employee was acting within the course of employment should a court hold as a matter of law that the employee was not so acting. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 543 N.E.2d 1304.) We judge that the evidence in this case does not satisfy the requirements of Pyne v. Witmer and that summary judgment was improperly granted.

We will first address the issue of whether the defendant has established as a matter of law that Smith was not acting as the defendant’s agent when he invited the plaintiff to ride the defendant’s horse. The defendant relies principally on sections 228 and 242 of the Restatement of Agency (Restatement (Second) of Agency §§228, 242 (1958)), Pyne v. Witmer (1989), 129 Ill. 2d 351, 543 N.E.2d 1304, and Wilson v. Clark Oil & Refining Corp. (1985), 134 Ill. App. 3d 1084, 481 N.E.2d 840.

Section 228 of the Restatement, cited in Pyne and Wilson, sets forth the criteria to be used in determining whether the conduct of a servant is within the scope of employment. We point out that the comment to section 228 provides that “a master may be liable if a servant speaks or acts, purporting to do so on behalf of his principal, and there is reliance upon his apparent authority or he is aided in accomplishing the tort by the existence of the agency relation.” (Emphasis added.) Restatement (Second) of Agency §228, Comment a (1958).

Section 242 provides:

“A master is not subject to liability for the conduct of a servant towards a person harmed as the result of accepting or soliciting from the servant an invitation, not binding upon the master, to enter or remain upon the master’s premises or vehicle, although the conduct which immediately causes the harm is within the scope of the servant’s employment.” (Restatement (Second) of Agency §242 (1958).)

Again, we point out that the comment to section 242 provides that “[t]he rule stated in this Section is applied most frequently when a servant entrusted with a custody of a vehicle, without authority or apparent authority to do so, permits or invites persons to ride on it. The rule applies also, however, to persons entering land with the permission of an employee.” (Emphasis added.) Restatement (Second) of Agency §242, Comment a (1958).

The issue in this case, therefore, is whether the record establishes as a matter of law that Smith did not have at least apparent authority to permit the plaintiff to ride the Center’s horse.

Apparent authority is that authority which a reasonably prudent person, in view of the principal’s conduct, would naturally suppose the agent to possess. Acquiescence by the principal in the conduct of the putative agent is sufficient to establish apparent authority. State Security Insurance Co. v. Burgos (1991), 145 Ill. 2d 423, 583 N.E.2d 547.

The defendant relies heavily on the testimony of Sanders and substantially disregards the testimony of Smith. Smith testified that he worked in a supervisory capacity which included his overseeing animals; he maintained the equipment for the horses; and he maintained the saddles used on the horses. He understood that he had the authority to use or ride the horses himself, that this authority had been given to him by Sanders and that he had the authority to allow the plaintiff to ride the horse on the date of the accident. He had saddled the horses on other occasions for other individuals; he would allow other individuals to ride the horses; other employees of the defendant allowed nonemployees to ride the horses on a daily basis in the summer at times; and Smith had seen other employees’ friends and relatives riding horses at the Center and other individuals would use the horses several times a week.

Smith testified, without objection, that Sanders had to know that everyone rode the horses on a daily basis; Sanders was present when Smith rode the horses; Sanders did not say anything regarding the riding of the horses at those times and Sanders was present when Smith would allow other individuals to ride the horses and when other employees of the defendant allowed others to ride the horses. It is our judgment that a reasonable person could conclude that Sanders had acquiesced in Smith’s practice of permitting others to ride the horses and that Smith had apparent authority to do so. For that reason, we conclude that the grant of summary judgment on the ground that the plaintiff had failed to establish apparent authority on the part of Smith as a matter of law was improper.

We turn now to the defendant’s claim that the evidence establishes as a matter of law that the plaintiff was a trespasser and that, therefore, the plaintiff could recover only if he pleaded and established willful and wanton conduct on the part of the Center. (The plaintiff has not pleaded willful and wanton conduct.) We have concluded that whether Smith had apparent authority to permit the plaintiff to ride the horse presented a question of fact. That conclusion necessarily leads to our further conclusion that a fact question also exists over the status of the plaintiff. If a fact finder found that Smith did have such apparent authority, it would necessarily follow that the plaintiff was not a trespasser. For that reason, summary judgment based on the Center’s claim that the record established that the plaintiff was a trespasser as a matter of law was also improper.

The defendant’s last argument is that the Recreational Use of Land and Water Areas Act (the Act) (Ill. Rev. Stat. 1985, ch. 70, pars. 31 through 37) shielded it from liability for the plaintiff’s injuries. The purpose of the Act, which was first passed in 1961, is to encourage land owners to permit persons to enter their land for recreational purposes without fear of incurring liability for injuries to those persons who did use the land for recreational purposes. (Ill. Rev. Stat. 1985, ch. 70, par. 31.) Section 3 provides that, subject to two exceptions, “an owner of land owes no duty of care to keep the premises safe for entry or use by any person for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.” Ill. Rev. Stat. 1985, ch. 70, par. 33.

The exceptions to section 3 are contained in section 6 of the Act (Ill. Rev. Stat. 1985, ch. 70, par. 36):

“Nothing in this Act limits in any way any liability which otherwise exists:
(a) For willful and wanton failure to guard or warn against a dangerous condition, use, structure, or activity.
(b) For injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that in the case of land leased to the State or a subdivision thereof, any consideration received by the owner for such lease is not a charge within the meaning of this section.”

The Act has been interpreted by State and Federal courts but with a lack of unanimity of opinion. The first case to construe the Act was Miller v. United States (N.D. Ill. 1976), 442 F. Supp. 555, aff’d (7th Cir. 1979), 597 F.2d 614. In Miller, the plaintiff was injured when he dove into shallow water in a lake owned by the United States. The government pleaded the Act as an affirmative defense. After a trial, the district judge concluded that the evidence failed to establish the affirmative defense. In doing so, the court referred to the Recreational Area Licensing Act (Licensing Act). (Ill. Rev. Stat. 1971, ch. 111½, pars. 761 through 785.) The district judge said the following:

“The entire legislative scheme should be read in pari materia. When it is, it becomes clear that the Recreational Use of Land and Water Areas Act is intended for those who permit open lands to be used recreationally on a casual basis. But those who hold their property out to the public for recreational purposes, and maintain their property for recreational use by the number of persons that are prerequisite to the application of the Recreational Area Licensing Act, they are subject to the provisions of the latter and not entitled to asserted protection of the former.” (Miller, 442 F. Supp at 561.)

The Court of Appeals agreed with the district judge. Miller, 597 F.2d at 616.

It is appropriate at this point to discuss the Licensing Act, which was first passed 10 years after the Recreational Use of Land and Water Areas Act and provided that all recreational areas be licensed. A “recreational area” was defined as follows:

“(a) ‘Recreational Area’ is any area of land where 1 or more tents, cabins, recreational vehicles or other permanent or non-permanent type shelters are erected and maintained for 10 or more persons for 7 or more consecutive days or 10 or more days during a calendar year for recreational activities, or camping; or where space for 10 or more persons for 7 or more consecutive days or 10 or more days during a calendar year for recreational activities, camping or temporary parking of recreational vehicles is furnished either free of charge or for revenue purposes, for the placing of such tents, cabins, recreational vehicles or other permanent or non-permanent type shelters; or where space for recreational activities or camping is permitted for 10 or more persons for 7 or more consecutive days or 10 or more days during a calendar year either free of charge or for revenue purposes without shelters of any kind, and it shall include any structure, tent, vehicle, enclosures, recreational vehicle facility or equipment related or used or intended for use as a part of such recreational area.” Ill. Rev. Stat. 1971, ch. 111½, par. 762(a).

The Licensing Act was amended in 1985. At the time of this occurrence, the Licensing Act, then and now called the Campground Licensing and Recreational Area Act, provided for the licensing only of a “campground” but provided that all “recreational areas” must comply with the rules of the Department of Public Health. (Ill. Rev. Stat. 1985, ch. 111½, par. 764.) Section 2 of the 1985 Act contained the following definitions:

“(a) ‘Recreational Area’ is any area of land which is designed, constructed, operated or maintained either free of charge or for revenue purposes for recreational activities.
(b) ‘Recreational Activities’ include, but are not limited to hunting, fishing, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, festivals, public gatherings and visiting historical, archeological, scenic or scientific sites, or for any purpose, including but not limited to educational, vocational and religious activities and assemblies.” Ill. Rev. Stat. 1985, ch. 111½, par. 762.

The first Illinois State court to consider the Recreational Use Act was Johnson v. Stryker Corp. (1979), 70 Ill. App. 3d 717, 388 N.E.2d 932, in which the plaintiff sued a landowner for the death of her child, who was injured when diving into a pond owned by the defendant. The defendant pleaded the Recreational Use Act as an affirmative defense, which was stricken by the trial judge. The basis of the judge’s ruling was that the property was not open to the public. Testimony showed that some school children could and did use the pond, after being given permission by the property owner. Signs were posted, one reading, “Swim at Your Own Risk — We Are Not Responsible” and another reading, “Private Property — No Swimming on Holidays — Do Not Litter — Pick Up Your Own Trash.”

The First District Appellate Court agreed with Miller v. United States that the Recreational Use Act is applicable to those who permit their lands to be used recreationally on a casual basis but did not agree with Miller that the Act did not apply unless the property owner made his land available to the general public for recreational purposes. 70 Ill. App. 3d at 721.

In Davis v. United States (7th Cir. 1983), 716 F.2d 418, the Court of Appeals interpreted Stryker to be an obiter dictum, holding that a landowner subject to the Licensing Act might still be entitled to the immunity of the Recreational Use Act. The Davis court disagreed with Stryker and adhered to Miller.

In Logan v. Old Enterprise Farms, Ltd. (1989), 188 Ill. App. 3d 920, 544 N.E.2d 988, the plaintiff sued a church and the owner of land when the plaintiff was injured at a church picnic. The trial judge granted summary judgment to the owner of land and denied summary judgment to the church. The judge held that the landowner was protected by the Recreational Use Act but that the church was not. The Fourth District Appellate Court held that both should be protected or neither should be protected. It held further that the record established that neither should be protected. 188 Ill. App. 3d at 931.

The court discussed Miller and Stryker and declined to follow Stryker:

“Defendants argue that in Johnson v. Stryker Corp. [citation], the appellate court refused to follow the restrictive holding of Miller v. United States [citation], and instead held that defendants would be allowed the protection of the Act even if the land was used primarily for recreational purposes. While we decline to follow the first district’s ruling in Stryker, we believe that [the church] has misinterpreted the Stryker decision. We find Stryker to mean that the Act will only be applicable to a landowner who permits his land to be used recreationally on a casual basis, but will allow a landowner protection even though he did not open up his lands to all members of the public.” (Emphasis in original.) 188 Ill. App. 3d at 934.

In holding that, as a matter of law, neither defendant was entitled to the protection of the Recreational Use Act, the court relied on the testimony that the school house lot was “used primarily, if not exclusively, for recreational activities.” (188 Ill. App. 3d at 933.) The court remanded the case for a hearing to determine whether the Licensing Act was applicable.

The supreme court reversed the appellate court on the ground that the plaintiff failed to establish a breach of duty by the defendants. (Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 564 N.E.2d 778.) Because of its reversal on that ground, the supreme court held that the applicability of the Recreational Use Act was moot. 139 Ill. 2d at 241.

We do not accept the interpretation of Stryker made by the Seventh Circuit Court of Appeals or by the Fourth District Appellate Court. We do not read Stryker to mean, as apparently the Court of Appeals did in Davis, that a property owner subject to the Licensing Act may also be entitled to the protection of the Recreational Use Act. In Stryker the property owner admittedly was not subject to the Licensing Act. Nor do we agree with the Logan court’s observation that Stryker held that the defendant would be allowed the protection of the Recreational Use Act even if the land was used primarily for recreational purposes. (188 Ill. App. 3d at 934.) The Stryker court had before it a certified question: May a landlord who does not make his land available to the general public for recreational purposes be protected by the Recreational Use Act? The Stryker court simply held that a property owner’s restriction of his property to less than the general public does not ipso facto remove his property from the protection of the Recreational Use Act. We agree with the holding of Stryker.

There are other factual situations similar to that in Stryker which illustrate the wisdom of its holding. In addition to farmlands open to hunters for specific periods, as mentioned in Stryker, we can think of property owners who permit cross-country skiing or snowmobiling or hiking or sledding. Surely the law would not remove the immunity of the Recreational Use Act simply because the owner of the property sought to restrict the number of people who could use his land for those purposes. Generosity should not be penalized because some might conclude that the property owner was not generous enough.

We do not understand the fourth district’s action in Logan in which it held that the property was not subject to the protection of the Recreational Use Act, but, nonetheless, remanded the cause for a hearing to determine whether the Licensing Act was applicable. The Licensing Act does not create a cause of action; the Licensing Act may be pertinent only in determining whether or not the Recreational Use Act immunity is available. Because the Fourth District Appellate Court ruled that the evidence established, as a matter of law, that the Recreational Use Act was not applicable, in our judgment, the applicability of the Licensing Act was moot.

We point out that the accidents involved in Miller, Stryker, Davis and Logan all occurred before the Licensing Act was amended in 1985. Of particular significance is the change in the definition of “Recreational Area.” We make this observation because of the defendant’s argument that it does not meet the definition of “Recreation Area.” It does not meet the definition of “Recreation Area” under the 1971 Act, which the defendant cites to us, but it does meet the definition of “Recreation Area” under the 1985 Act, which was in effect at the time of this occurrence. And the activities of the defendant also meet the definition of “Recreational Activities” under the 1985 Act.

The defendant also argues that the Center did not use the property “exclusively for recreational purposes.” We know of no case that has required exclusive recreational use before a property owner may be barred from the immunity of the Recreational Use Act.

It is appropriate to identify the issue as it has been presented to us. This case was decided on summary judgment. We have not been asked to determine, and we do not determine, whether the immunity available under the Recreational Use Act presents a question of law or fact. And if it presents a question of fact, we make no attempt to set forth the appropriate standard or jury instruction. We point out that the district court in Miller made a factual determination and in doing so said that the Recreational Use Act was not “intended for those who permit open lands to be used recreationally on a casual basis.” (Miller, 442 F. Supp. at 561.) The plaintiff contends that the evidence established that the recreational use of the land was more than “casual”; the defendant maintains that it was not. For the purposes of this opinion, therefore, we will accept the issue as it has been couched by the parties: whether the Center has established, as a matter of law, that its use of the land for recreational purposes was only “casual.” We conclude that the defendant has not established such a use. Indeed, we judge that the evidence establishes the opposite conclusion: As a matter of law the defendant’s use for recreational purposes was more than “casual.” Seventy-five percent of the defendant’s income was earned. There were approximately 20 permanent structures in use on the premises; approximately 12 horses were kept for use for summer camps on the premises; in the summer of 1986, there was a preenrollment charge made for individuals participating in the summer camps during which the horses were used; there was a gate which closed the premises off from the general public; there was a sign on the premises indicating that it was open by reservation only; and the summer camps would operate on Sundays. These facts establish a more than “casual” recreational use of the property. For that reason we hold that the defendant may not invoke the immunity of the Recreational Use Act.

The plaintiff also argues that the Recreational Use Act is not applicable here for the additional reason that the Center charged a fee to its users. As noted, section 6(b) of the Act provides that the Act does not apply “[f]or injury suffered in any case where the owner of land charges the person or persons who go on the land for the recreational use thereof.” (Ill. Rev. Stat. 1985, ch. 70, par. 36(b).) The defendant maintains that the exception is not applicable because the plaintiff himself was not charged a fee. There is precedent for the defendant’s position. In Garfield v. United States (W.D. Wis. 1969), 297 F. Supp. 891, two husbands and their wives entered a military reservation; the husbands paid 50 cents each for a small game hunting permit. Their wives paid no fee. The district court held that the husbands, who had paid a fee, were covered by the Wisconsin statute similar to the Illinois Recreational Use Act but that their wives, who had not paid a fee, were not. Garfield was followed in Stephens v. United States (C.D. Ill. 1979), 472 F. Supp. 998.

We do not agree with the holdings of Garfield or Stephens. To illustrate, those operating a recreational area, who charge a general admittance fee, could grant free admission to senior citizens or small children. Under Garfield and Stephens a property owner would not be immune from claims for general negligence brought by anyone who paid a fee, but would be immune for claims brought by injured senior citizens or injured children who did not pay a fee. Although the Stephens court followed Garfield it did make this observation:

“There does not appear to be any specific legislative purpose or public policy in distinguishing between paying and non-paying recreational users of a single land or water area. There does appear to be a clear purpose to distinguish between land and water areas which ‘charge’ and those which do not.” (Stephens, 472 F. Supp. at 1011.)

We do not believe there is any legislative purpose or public policy to be served by making a distinction between paying and nonpaying users of the defendant’s property. For this additional reason, we judge that the defendant may not invoke the protection of the Recreational Use Act.

Although the plaintiff has not specifically argued that the Recreational Use Act is not applicable to the facts of this case, we wish to express our own reservations of the Act’s applicability here. The allegations of duty, breach and proximate cause all concern a defective “cinch strap.” The statute, on the other hand, deals with premises liability. The statute provides:

“[A]n owner of land owes no duty of care to keep the premises safe for entry or use by any person for recreational purposes, or give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.” (Ill. Rev. Stat. 1985, ch. 70, par. 33.)

While horseback riding is an activity, the defendant’s negligence is based upon its failure, after notice, to replace or repair the defective “cinch strap.”

For all these reasons, the judgment of the circuit court is reversed and the cause remanded for further proceedings consistent with this opinion.

Judgment reversed and remanded.

McNAMARA and RAKOWSKI, JJ., concur.


author: PRESIDING JUSTICE McNULTY

text:
    JOYCE GAVIN, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (5th Division)
    No. 1—91—2606
    Opinion filed November 20, 1992.
    Modified on denial of rehearing December 31,1992.

      Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Frederick S. Rhine, Assistant Corporation Counsel, of counsel), for appellant.
    Hoey & Farina, of Chicago (James L. Farina, of counsel), for appellee.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Plaintiff Joyce Gavin brought suit against the City of Chicago (the City) for personal injuries she sustained when a car in which she was a passenger collided with a traffic light fixture. The City sought summary judgment, asserting that it had constructed the fixture almost 24 years before plaintiff brought suit and that the statute of repose for cases alleging design defects (Ill. Rev. Stat. 1987, ch. 110, par. 13—214), which provides a maximum period of 14 years after construction of an improvement within which to bring suit, barred plaintiff’s case. The circuit court denied the City’s motion, finding that the two-year statute of limitations contained in the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1983, ch. 85, par. 8—101), not section 13—214, controlled.

The circuit court certified for interlocutory review the following three questions concerning the relationship between the statute of repose for design defects and the statute of limitations found in the Tort Immunity Act:

“Is the required discovery period in the statute of repose section 13 — 214(b) inextricably related to the period of repose provided for in this section? If it is, is the discovery period provided for in [section] 13—214(b) in conflict with the limitation period provided for in the Tort Immunity Act section 8—101[?] If it is, does [section] 8—101 where a defendant is a municipality subject to coverage of Chpt. 85, take precedence?”

We are unable to answer the first question certified for review, due to the difficulty in ascertaining the meaning of the question as framed by the circuit court. As to the second question, we find no conflict between section 13—214(b) and section 8—101 and therefore need not answer the third question, concerning whether section 8—101 takes precedence over section 13—214. Accordingly, based on the following analysis, we reverse the trial court’s decision and hold that plaintiff’s action is barred by the statute of repose, section 13-214.

This interlocutory appeal concerns the relationship between the construction and design statute of repose section 13—214 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13—214) and section 8—101 of the Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 8—101). Section 8—101 of the Tort Immunity Act, which indisputably is applicable to cases against the City, provides that “[n]o civil action may be commenced *** against a local [public] entity *** unless it is commenced within 2 years.” We begin our analysis by determining whether section 13—214 of the design and construction statute of repose is also applicable to suits brought against the City.

The statute of repose provides that actions based upon tort for an act or omission in the design, planning, supervision, observation, management, or construction of an improvement to real property shall be commenced within 10 years from the time of such act or omission and four years from the time the plaintiff knew or should have known of the act giving rise to the action. (Ill. Rev. Stat. 1987, ch. 110, par. 13—214(a).) If plaintiff discovers the act or omission giving rise to liability within 10 years, she is provided a further 4 years to bring the action. (Ill. Rev. Stat. 1987, ch. 110, par. 13—214(b).) It is plaintiff’s contention that the City cannot rely on section 13—214 as a defense since the section is inapplicable to either municipalities or landowners. Plaintiff’s assertion that section 13—214 does not apply to municipalities is simply incorrect in light of the recent decision in The Lombard Co. v. Chicago Housing Authority (1991), 221 Ill. App. 3d 730, 587 N.E.2d 485, holding that section 13—214 can be asserted as a defense by a municipal defendant, when that municipality has been involved in the design or management of a construction project. Plaintiff correctly points out that section 13—214 does not protect landowners unless that landowner engaged in the activities enumerated in section 13—214, such as the design, planning, supervision or management of a construction project. (Lombard, 221 Ill. App. 3d 730, 587 N.E.2d 485.) The statute does, however, protect anyone who engages in the enumerated activities regardless of whether or not that person is also a landowner. (People ex rel. Skinner v. Hellmuth, Obata & Kassabaum, Inc. (1986), 114 Ill. 2d 252, 500 N.E.2d 34.) It is undisputed in the instant case that the City was not simply a landowner, but also designed and constructed the traffic light signal at issue here.

In plaintiff’s complaint, she alleged that the City committed one or more of the following acts or omissions:

“(a) Erected and maintained the traffic light pole in the middle of 31st Street such that it was an obstruction to traffic and created an unreasonable risk of harm to persons traveling on 31st [Sjtreet;
(b) Failed to illuminate the traffic light pole and pedestal sufficiently to enable persons traveling on 31st [Sjtreet to see it;
(c) Installed light near the traffic light fixture which obscured the pole and pedestal and created an additional hazard;
(d) Failed to place any barriers or warnings around or near the traffic light fixture to warn motorists on 31st [Sjtreet of the hazard in the roadway;
(e) Was otherwise careless and neglectful of its duties.”

Plaintiff’s allegations concern only the City’s improper design of the traffic light fixture, not its failure to properly maintain the fixture. Section 13—214 is thus applicable to the particular facts as pleaded here.

This case therefore turns on whether we interpret the Tort Immunity Act to deprive the City of its defense under section 13—214. The circuit court found section 13—214 and section 8—101 to be inconsistent, and that section 13—214 was overridden by section 8—101. At first glance, the two-year statute of limitations provided in section 8—101 of the Tort Immunity Act would appear to be in conflict with the design statute of repose, section 13—214, which provides that the cause of action must be brought within 10 years of construction or design and four years after discovery. However, we note the basic principle of statutory construction that “[wjhen two legislative schemes do not seem completely compatible, they should be interpreted so that meaning and effect is given to each statute.” (Stephens v. Cozadd (1987), 159 Ill. App. 3d 452, 456, 512 N.E.2d 812; Harvel v. City of Johnston City (1992), 146 Ill. 2d 277, 284, 586 N.E.2d 1217 (“If the language of a statute is susceptible to two constructions, one of which will carry out its purpose and another which will defeat it, the statute will receive the former construction”).) The following discussion construes the statutes in a manner giving effect to each and leads us to the conclusion that the City may assert the defenses provided in both the Tort Immunity Act and the design statute of repose.

It is evident from a review of the Tort Immunity Act that the Act is intended to confer immunities and defenses upon municipalities, not to strip them of immunities and defenses available to other defendants. Section 2—111 of the Tort Immunity Act provides: “Nothing contained herein shall operate to deprive any public entity of any defense heretofore existing and not described herein.” (Ill. Rev. Stat. 1989, ch. 85, par. 2—111.) Section 1—101.1 provides:

“(a) The purpose of this Act is to protect local public entities and public employees from liability arising from the operation of government. It grants only immunities and defenses.
(b) Any defense or immunity, common law or statutory, available to any private person shall likewise be available to local public entities and public employees.” (Ill. Rev. Stat. 1989, ch. 85, par. 1—101.1.)

The Tort Immunity Act does not create any new liabilities which did not previously exist. (Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 412, 583 N.E.2d 538.) The Act merely creates one more condition precedent to the bringing of a lawsuit while explicitly preserving whatever defenses are available to private litigants. Accordingly, section 8—101 does not allow a plaintiff to maintain an action where the suit has already been time-barred by section 13—214. To hold otherwise would defeat the purpose of the Tort Immunity Act (which is to protect municipalities from liability), would be contrary to the express language of sections 2—111 and 1—101.1, and would place a municipality in a worse position than a private litigant.

Accordingly, the particular pleadings in this case, alleging only that the City improperly designed the traffic light at issue here, and not that the City improperly maintained the light fixture, bring this case within the purview of section 13—214. Therefore, it is our opinion that plaintiff’s suit is barred by section 13—214 since it was filed 24 years after the traffic signal was installed and the traffic lanes were designed. This time period is well beyond the maximum period for bringing suit provided by section 13—214.

For the reasons set forth above, we reverse the judgment of the circuit court, hold that plaintiff’s defective design claim is barred by section 13 — 214, and remand for further proceedings consistent with this opinion.

Reversed and remanded.

MURRAY and GORDON, JJ., concur.


author: JUSTICE O’CONNOR

text:
    TED MONIUSZKO, Plaintiff-Appellee, v. HELEN MONIUSZKO, Defendant-Appellant.
    First District (1st Division)
    Nos. 1—91—0379, 1—91—0383 cons.
    Opinion filed November 16, 1992.

      Peraica & Della Rose, P.C., of Chicago (Anthony J. Peraica, of counsel), for appellant.
    Baker & Martier, of Chicago (Ruth V. Enright and Robert S. Baker, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant, Helen Moniuszko, appeals from an order of the circuit court which found that certain property was held by Helen and plaintiff, Ted Moniuszko, in joint tenancy.

We affirm.

The centerpiece of this appeal concerns the ownership of the property, a six-flat apartment building (six flat), located at 3616 West 55th Street in Chicago. The Moniuszkos used one of the building’s apartments as a residence, and the remaining apartments, were rented to tenants.

On June 1, 1985, Ted filed a complaint for dissolution and accounting, in which he alleged that he and Helen entered into an oral partnership agreement for the purchase of the six flat. Ted charged that Helen had him forcibly evicted from the premises on September 14, 1982, and that since that date, Helen received all the income from the six flat and refused to pay him his just share of the six flat’s income and profits. Ted sought an adjudication that the partnership existed, the dissolution of the partnership, an accounting of all dealings regarding the partnership, the sale of the property and a division of the proceeds, in addition to the costs of the litigation.

In response, Helen denied all the material allegations of the complaint and, in a counterclaim, alleged that she and Ted were divorced on May 23, 1974, pursuant to a judgment of the circuit court of Cook County. She further alleged that on May 1, 1978, Ted told her that he wanted to remarry her and proposed that they buy the six flat together to reside in with their children. According to the counterclaim, each party was to pay 10% of the down payment; however, Helen alleged that she provided the entire down payment. Helen further claimed that she and Ted lived together out of wedlock, but in the spring of 1982, Ted began to abuse her physically. Ted vacated the premises following the entry of an order of protection by the circuit court. Helen further alleged that in October 1983, Ted fraudulently defrauded her of her interest in the property by forging her signature on a deed.

On August 8, 1989, the circuit court ordered that the six flat be sold and that the proceeds be placed in an escrow account subject to further court order. During the ensuing months following the entry of that order, Ted filed numerous petitions for rules to show cause due to Helen’s failure to cooperate with the realtors who were attempting to place the property on the market. The circuit court ultimately held Helen in contempt for her failure to comply with its order.

The cause apparently proceeded to trial on March 6, 1990. Helen testified that she and Ted were married in April 1967 and were divorced in June 1974. After the divorce, she never lived with Ted. According to Helen, Ted had raped her, but she did not sign any papers charging Ted with rape. As a result of the rape, the couple’s fourth child was bom in 1976. Helen paid all the expenses incurred at the six flat. Although the building’s utilities were kept in Ted’s name, Helen stated that she paid all of the bills.

According to Helen, the 1974 judgment of dissolution awarded her the couple’s marital home, which had been held in joint tenancy. This home, a bungalow, was located at 3841 West 55th Place in Chicago. Helen admitted that she never enforced the dissolution provision and that Ted never signed over to her his interest in the bungalow. However, it was Helen’s testimony that Ted sold the bungalow without her knowledge and that she never signed any documents transferring her interest in the property to the purchasers. The Standard Federal Savings and Loan Bank (Standard Federal) “took” the proceeds from the sale and deposited them into a joint account in the couple’s name. At that time, Helen did not question the method by which the bungalow was sold because she thought that Standard Federal was selling it and that the proceeds from the sale were to be transferred to the six flat. Helen believed that Standard Federal merely switched the title of the bungalow for the title of the six flat. She insisted that the bank unilaterally deposited the proceeds from the sale of the bungalow into the joint account, but that she did not want the proceeds to be treated in that manner. However, Helen also testified that the parties maintained the joint account “only then when we were buying the building.”

On November 11, 1977, Ted told Helen he wished to remarry her and that was “why [they] got the contract on the new house as husband and wife.” Helen recalled signing the contract on August 8, 1977, but claimed that the copy of the contract, introduced into evidence, contained a forgery of her signature.

Helen stated that she did not sign a deed in trust which put the six flat into a land trust at the Marquette National Bank. According to Helen, Ted’s girlfriend, Gayle Pucher, forged Helen’s signature on the document so that Ted could obtain capital for a business venture.

Dorothy Myczek, a “loan closer” for Standard Federal, handled the mortgage transaction for the parties with regard to the six flat on August 29, 1977. At the time of the closing, it was the bank’s policy that all borrowers were required to be present. The mortgage note was signed by both Helen and Ted in accordance with this policy. The couple’s loan application indicated that they had been married for 10 years, and the document was signed by Helen. Moreover, during the transaction, Helen never disclosed the existence of the 1974 divorce decree. The bank considered the couple to be husband and wife. According to the bank records, Helen signed the withdrawal slip which indicated that funds from the couple’s joint account were used for the mortgage down payment. Myczek also identified a passbook for the joint savings account which was in both Ted’s and Helen’s names, and she contradicted Helen’s assertion that Standard Federal required Helen to maintain a joint account at the institution to facilitate the mortgage transaction. Moreover, Helen never made any complaints to the bank regarding forgery or fraud.

Ted testified that he married Helen in 1967. For the next 10 years, the couple owned the bungalow jointly. In early 1977, they sold the bungalow to friends of Helen. The sale resulted in proceeds of over $38,000, which were deposited into a joint account at Standard Federal. Ultimately, the couple used that money to buy the six flat, which had a purchase price of $142,000. The parties applied as a married couple for the mortgage at Standard Federal. Ted recalled that Helen was present at the closing along with their attorney. In the spring of 1978, the couple moved into the six flat, where Ted lived until 1982.

In 1982, Helen informed Ted, during a dispute, that they were divorced. Ted maintained that he was never served with any divorce papers and only learned about the entry of the judgment diming a court appearance in 1982. During that court appearance, the circuit judge advised him that it would “be better to move out.” Ted denied that he had raped Helen. Since 1982, Ted has not received any of the rents collected from the other tenants at the six flat, and he has not claimed any tax deductions from the building. Ted averred that he had made monetary contributions to the six flat, but had not received any reimbursement from Helen. The utilities were in his name and were paid by him.

Ted admitted that he had stopped filing joint Federal tax returns in 1977. From 1974 through 1976, Ted used his parents’ address for his income tax return. In 1974, he filed his return as a single person because Helen had told him that she intended to file a single return. Ted’s 1979, 1980, and 1981 income tax returns listed the six flat as his address. Ted stopped claiming deductions for the six flat in 1982.

In early 1980, Ted founded his own business, the T.M. Tool and Die Company. In order to secure capital to start the company, Ted obtained financing from the Marquette National Bank. To that end, the six flat was put into a land trust at Marquette National. Ted testified that both he and Helen, together, executed the deed in trust which conveyed the six flat into the land trust.

Two of the couple’s children, Alice Moniuszko and Christina Spiewak, testified that Ted never lived with them at the six flat during the time in question. Christina maintained that all the utilities were kept in her mother’s name; however, during cross-examination, she identified a utility bill for the six flat which was in Ted’s name.

Greg Rademacher, a document examiner for the Chicago police department, testified on Helen’s behalf. He examined Helen’s signature on the Marquette National Bank land trust and compared it with several known samples of Helen’s signature. Based on his examination, he believed that the signature on the bank document was a forgery. Rademacher admitted, however, that Helen did not provide him with the number of samples he usually required for handwriting comparisons.

Following closing arguments, the court ruled that it was

“convinced that a gift was certainly made or if not, there is some reasonable grounds for suspicion that Mr. Moniuszko did not even know that he was, in fact, divorced and that a joint tenancy was intended and carried out at the time of the purchase of this building. However this Court also finds that Mrs. Moniuszko albeit maintained this building for a great deal of the time of its occupancy, did management work apparently and so forth.”

The court further found that, the “gross nest egg” from the sale of the six flat was $165,000 plus the interest earned to date. Of that sum, Ted was awarded $73,700 and Helen was awarded $86,750.

Helen contends that the circuit court’s determination that a gift was made by Helen to Ted of “joint and several interest in the proceeds from the sale of the Bungalow, when said sale proceeds were deposited into the joint savings account at Standard Federal is not supported by the evidence.” However, we disagree with Helen’s characterization of what the circuit court found to be a “gift.” We do not believe the court was referring to the joint account itself, but rather, was referring to the money Helen took from the joint account and used for the- down payment at the time of the purchase of the six flat.

Helen’s testimony, although often confusing, contradictory, and contentious, nevertheless revealed that she wished to purchase the six flat with Ted and that the couple, using funds from the joint account which by virture of the 1974 divorce decree belonged solely to Helen, obtained a contract for the six flat as husband and wife. Helen admitted that she signed such a contract on August 8, 1977, although at trial, she contended that the copy of the document was a forgery.

A “gift” is a voluntary, gratuitous transfer of property by one person to another where the donor manifests an intent to make such a gift and absolutely and irrevocably delivers the property to the donee. (In re Marriage of Cook (1983), 117 Ill. App. 3d 844, 453 N.E.2d 1357.) The elements of a valid gift are donative intent, the donor’s parting with the exclusive dominion and control over the subject of the gift, and delivery to the donee. (Pocius v. Fleck (1958), 13 Ill. 2d 420, 150 N.E.2d 106; Wencordic Enterprises, Inc. v. Berenson (1987), 158 Ill. App. 3d 913, 511 N.E.2d 907.) Intent and delivery are separate elements of proof and the fact that delivery of the alleged gift has occurred is not conclusive as to whether a gift has been made. (In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 409 N.E.2d 321.) Donative intent is the intention on the part of the donor that there be a present and irrevocable transfer of title to the subject matter of the gift. Delivery of the subject matter of the gift is the means by which the donor’s intent is given effect. (Gordon v. Gordon (1969), 113 Ill. App. 2d 191, 252 N.E.2d 17.) In order to create a gift, there must be some communication, oral or written, of donative intent between donor and donee. (In re Estate of Miller (1973), 11 Ill. App. 3d 867, 297 N.E.2d 12.) A gift to donee is not shown unless the donor has relinquished all present and future dominion and power over the subject matter of the gift. In re Marriage of Cook, 117 Ill. App. 3d at 849.

Whether a gift has been made is question of law, and on the facts in the particular case, it involves a mixed question of law and fact. (38 Am. Jur. 2d Gifts §108 (1968).) The alleged donee carries the burden of proving the existence of donative intent in the donor, and proof must be clear and convincing in order to establish the gift. Schramm v. Schramm (1958), 13 Ill. 2d 281, 148 N.E.2d 799.

Based on the testimony adduced at trial, we are of the opinion that the elements required for a finding that a gift was made were established. Helen herself admitted that the couple bought the six flat together as husband and wife, and her signature appears on the mortgage. We also note, in particular, the testimony of Myczek, the loan officer who conducted the mortgage transaction and who was a disinterested witness. Myczek’s testimony not only contradicted Helen’s testimony almost entirely, but supported Ted’s version of the events at that time. Myczek further stated that Helen herself withdrew the money from the joint account and presented it as the down payment for the six flat. During her testimony, Myczek identified a receipt that was signed by Helen at the time of the closing. The receipt indicated that the funds for the down payment were taken from the joint account. Moreover, Helen’s signature appears on the mortgage for the six flat. Helen’s behavior at the time of the closing suggests that she voluntarily used the money from the account to purchase the six flat jointly with Ted.

In order to reverse a finding of a circuit court, that finding must be against the manifest weight of the evidence. For a finding to be against the manifest weight of the evidence, it must appear that the conclusions opposite to those reached by the trier of fact are clearly evident. (Gary-Wheaton Bank v. Meyer (1985), 130 Ill. App. 3d 87, 473 N.E.2d 548; J.R. Sinnott Carpentry, Inc. v. Phillips (1982), 110 Ill. App. 3d 632, 443 N.E.2d 597.) Much of Helen’s testimony was contradicted or was unbelievable, such as her assertion that she did not attend the closing when documents executed at that time contain her signature. Moreover, Helen testified that she never lived with Ted following the entry of the 1974 divorce decree; however, in her counterclaim, Helen stated that the couple lived together out of wedlock until 1982. Helen was also impeached by a prior statement made under oath in the 1982 court proceeding in which she told Judge Karnezis that she and Ted were living together. Witness credibility and the resolution of conflicts in evidence are matters within the discretion of the trial judge and should not be disturbed upon review. (Silas v. Robinson (1985), 131 Ill. App. 3d 1058, 477 N.E.2d 4.) Here, the trial judge resolved such conflicts against Helen. We find nothing in the record which would warrant reversal of these determinations. Accordingly, the court’s findings are not against the manifest weight of the evidence.

Helen also challenges the circuit court’s determination that a joint tenancy was intended and carried out at the time of the purchase of the six flat. In her brief, Helen refers to an instrument known as the “Trust Deed from the Ford City Bank and Trust Co., as Trustee under Trust Number 1574 as seller of the Six Flat to Ted Moniuszko and Helen Moniuszko, his wife, as joint tenants.” This document, however, does not appear in the record on appeal. Since Helen admits its existence, we will assume the document was presented to the circuit court.

Our supreme court has held that an instrument creating a joint tenancy presumably speaks the truth. (Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 591, 202 N.E.2d 470.) The party disputing the instrument bears the burden of proof, which must rise to the level of clear and convincing evidence. Murgic v. Granite City Trust & Savings Bank, 31 Ill. 2d at 591.

The evidence adduced at trial clearly supports the circuit court’s determination regarding the creation of the joint tenancy. As we have noted previously, Helen’s recollection of many of the events differed greatly from those of Ted and Myczek. Apparently, the trial judge resolved these conflicts in Ted’s favor. Determinations regarding credibility and weight of testimony should be given deference upon review because it is the trial judge who enjoys the best position from which to observe the demeanor of witnesses. (Silas v. Robinson (1985), 131 Ill. App. 3d 1058, 477 N.E.2d 4.) Based on the foregoing, the determination is not manifestly erroneous.

Helen next contends that the amount of money she received from the proceeds of the sale of the six flat was manifestly erroneous. In her brief, Helen states that she received $73,700. This is not true. The record clearly indicates that the circuit court awarded Helen a sum of $91,200, which was reduced by $4,450 to cover the legal expenses incurred by the new owners of the six flat. Therefore, the net amount awarded to Helen was $86,750.

The determination of damages by a circuit court sitting without a jury will not be set aside unless it is manifestly erroneous. (Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill. 2d 143, 281 N.E.2d 323; In re Estate of Chaitlen (1989), 179 Ill. App. 3d 287, 534 N.E.2d 482.) The law only requires there be an adequate basis in the record for the court’s determination, and absolute certainty is unnecessary. Schatz, 51 Ill. 2d at 147; Chaitlen, 179 Ill. App. 3d at 292.

Although Helen correctly notes that joint tenants are equally liable for the cost of necessary repairs as well as payment of the mortgage and real estate taxes (Titsworth v. Stout (1868), 49 Ill. 78; Gilmore v. Gilmore (1975), 28 Ill. App. 3d 36, 328 N.E.2d 562), a review of the record reveals that the trial judge properly considered and evaluated the evidence relating to the components of the contributions allegedly made by each party. We will not set aside that determination, particularly when a complete record of the proceedings is unavailable.

Helen also maintains that her trial attorney failed to provide her with competent representation and that, as a result, she did not receive a fair trial.

In Illinois, the actions of an attorney in the conduct and management of a case are binding on the client. (Ruggio v. Ditkowsky (1986), 147 Ill. App. 3d 638, 498 N.E.2d 747, appeal denied (1987), 113 Ill. 2d 584, 505 N.E.2d 361; Laff v. John O. Butler Co. (1978), 64 Ill. App. 3d 603, 381 N.E.2d 423, cert. denied (1979), 444 U.S. 844, 62 L. Ed. 2d 57, 100 S. Ct. 88.) At no time during the trial did Helen indicate to the trial judge that she believed trial counsel was inadequate in presenting her case. Accordingly, her argument is unpersuasive.

As to Helen’s assertions that the trial judge was prejudiced and hostile to her, the record indicates that Helen’s behavior at trial was contemptuous and disrespectful. In one such instance, Helen refused to comply with the court’s order for the sale of the six flat:

“THE COURT: *** Mrs. Moniuszko, I hereby order you to sign these documents, turn over the keys, and further comply with the prior orders of this Court. She is to do that forthwith.
MRS. MONIUSZKO: I will not sign.
* * *
THE COURT: As you know I have given you [Helen’s counsel] almost a half hour to discuss with your client this Court’s order that she comply with this Court’s prior order where this Court directly ordered her to sign the documents to perfect the closing of the sale of the premises which were worded as a preliminary matter as you well know to the disposition of this case.
This Court I hope has never indicated how the proceeds are to be divided, if at all. The amount of money that is used to perfect the closing was and is to be held in escrow, all the net proceeds pending the final disposition and judgment of this Court.
This Court is straining, as you all know, to give your client an opportunity to fairly present her and your theory of the case. The case that has been pending on this case has been attempting to try [sic], and your client must understand that this Court has a very primary duty. That is this Court must enforce its orders.
*** Are you willing to sign these papers as this Court has ordered?
MRS. MONIUSZKO: No. No. I am not going to sign.”

The court then found Helen in contempt and ordered her to be taken into the custody of the Cook County sheriff. The following then occurred:

• “[THE COURT:] Let the record show that for the record that Mrs. Moniuszko was just threatening me that she is going to go to Congressman Lapinski and Christianiac and some alderman apparently to attempt to intimidate this Court.”

The record contains other instances of Helen speaking out of turn, and many of. the judge’s remarks referred to by Helen in her brief were precipitated by her own conduct. In view of the court’s distribution of the proceeds from the six flat, of which Helen received the larger share, it is difficult to give credence to her contentions that the trial judge was prejudiced against her.

The judgment of the circuit court is affirmed.

Affirmed.

BUCKLEY, P.J., and MANNING, J., concur.

       Ted contends that Helen has failed to provide this court with a complete transcript of the proceedings which occurred in the circuit court. The record of proceedings is not in chronological order and, when read in its entirety, indicates that transcripts from several sessions are missing. More importantly, none of the numerous exhibits introduced into evidence by both parties are included in the record on appeal. An appellant has the burden to present a sufficiently complete record of the proceedings at trial in order to support an appellate claim of error, and any doubts which may arise from the incompleteness of the record will be resolved against the appellant. Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.