author: JUSTICE GOLDENHERSH

text:
    PIELET BROTHERS’ TRADING, INC., Petitioner-Appellant, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees.
    Fifth District
    No. 5 — 89—0546
    Opinion filed June 26, 1991.

      Jerold S. Solovy, Glenn K. Seidenfeld, Laura A. Raster, Raymond T. Reott, and Rebecca L. Raftery, all of Jenner & Block, of Chicago, for petitioner.
    Neil E Hartigan, Attorney General, of Springfield (Christine Zeman, Assistant Attorney General, of counsel), for respondent.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Pursuant to Supreme Court Rule 335 (134 Ill. 2d R. 335), petitioner, Pielet Brothers’ Trading, Inc., appeals from an order of the Illinois Pollution Control Board (the Board) finding that petitioner’s subsidiary, St. Louis Auto Shredding (SLAS), was operating without a permit, that the SLAS site was not subject to the permit exemption allowed for waste or refuse generated by an operator’s own activities, and that petitioner was in violation of seven sections of the Environmental Protection Act (the Act) (Ill. Rev. Stat. 1987, ch. HV-lz, par. 1021 et seq.). In this appeal, petitioner does not contest the propriety of the Board’s findings regarding all the violations. Instead, petitioner raises the following issues: (1) whether a permit issued by operation of law for the SLAS site, and (2) whether the Board erred in finding that petitioner had violated the prohibition against open burning. We reverse in part and affirm in part.

Petitioner is in the business of shredding scrap automobiles and appliances through its subsidiary, SLAS, which operates in National City. After shredding, approximately 80% of the material can be recovered and sold to steel mills and foundries as scrap metal. The remaining 20% is referred to as “shredder residue” or, more commonly, “fluff.” Fluff consists of dirt, stone, glass, plastic, and rubber. Petitioner discards its fluff on its own premises, and it is the discarded fluff that is the source of controversy.

Petitioner received its first development permit for its waste disposal at the SLAS site from the Illinois Environmental Protection Agency (the Agency), another respondent herein, in 1976, and its first operating permit in 1979. The 1979 permit was for a trench method of disposal covering trench number 3. According to Douglas Andrews, consulting engineer for petitioner, petitioner filed another application for development of an additional trench in January 1982. This application was withdrawn in June or July of 1982, after representatives of petitioner met with the Agency and the Agency recommended changing the waste disposal system at the SLAS site from a trench method to an area fill method. Andrews’ engineering firm investigated the subsoil conditions at the SLAS site to determine suitability for an area fill. Andrews submitted the results of this investigation to the Agency in January 1983. Andrews concluded that an area fill operation was suitable for the SLAS site. In March 1983, another meeting was held concerning waste disposal at the SLAS site. Dr. Lincoln Hawkins, a researcher in the field of plastics recovery, was in attendance. According to Andrews, the concept of 30-day cover as opposed to daily cover of the refuse was discussed. It was Hawkins’ opinion that daily cover would result in too much earth material being mixed with plastic material and would make the recovery of plastic impractical.

On April 13, 1983, petitioner submitted an application for both a developmental and an operational permit which contained provisions for both an area fill and for 30-day cover. On July 7, 1983, Andrews wrote a letter to Lawrence Eastep, manager of the Agency’s permit section, waiving the 90-day limit for review of the application so that petitioner could submit more information regarding the installation and testing of groundwater monitoring wells. Andrews estimated in the letter that it would be 45 days until the monitoring wells could be installed, tested, and reported. On August 17, 1983, Andrews sent another letter to Eastep in which he submitted additional information to the Agency. After listing the additional information, Andrews stated that he believed the Agency had all the information it now needed in order to issue petitioner a supplemental permit. He asked Eastep to contact him if the Agency needed further information or to set up an additional meeting if Eastep believed that that would be necessary. According to Andrews, he never heard from the Agency again regarding the status of the permit. At some point, someone at the Agency told Andrews that the application had been lost. Andrews was told that the person who had signed the application had left the Agency’s employ and that the application had been overlooked. Andrews could not remember the name of the person who gave him that information.

On April 12, 1988, Randy Ballard, an employee of the Agency, inspected the SLAS site. On the basis of Ballard’s inspection, the Agency determined that petitioner had operated the site in violation of nine provisions of the Act, including accepting waste without necessary permits in 'violation of section 21(p)(7) of the Act (Ill. Rev. Stat., 1986 Supp., ch. 111½, par. 1021(p)(7)). The Board then reviewed the Agency’s finding and issued an order. It is from this order that petitioner appeals.

The first issue we are asked to consider is whether a permit issued for the SLAS site by operation of law. Petitioner argues that the facts presented show that a permit issued by default pursuant to section 807.205(g) of the Illinois Administrative Code (35 Ill. Adm. Code §807.205(g) (1985)). According to petitioner, the regulatory language of section 807.205(g) clearly states that if the Agency is tardy or delays its decision for more than 90 days, the permit is granted. Petitioner contends that since the Agency took no action on petitioner’s application for over five years, until Randy Ballard inspected the SLAS site on April 12, 1988, a permit issued by operation of law. The Board and the Agency respond that petitioner waived the time limits imposed upon the Agency for permit review, and because of petitioner’s continuing treatment of the application as pending, no permit issued by operation of law.

Section 807.205(g) provides that if the Agency fails to take final action on an application for a development permit within 90 days from the time it is filed or within 45 days from the filing of an operating permit, “the applicant may deem the permit granted on the 91st day or the 46th day after the application was filed.” (35 Ill. Adm. Code §807.205(g) (1985).) The language of the regulation is clear: if the Agency delays its decision on an application for more than the specified period, the permit issues by operation of law. From our review of the facts it is also clear that the Agency took no action whatsoever until it inspected the SLAS site in April 1988, approximately five years after petitioner filed its application. While we agree with the Board and the Agency that petitioner did waive the deadline for Agency final action by Andrews’ letter of July 7, 1983, we cannot agree that this letter exculpates the Agency from its failure to act on petitioner’s application. As indicated below, Andrews’ letter of July 7, 1983, specifically states that petitioner is waiving the 90-day limit for review, but it also states that petitioner fully intends to supply further information to the Agency so that the review can be completed:

“Therefore, on behalf of St. Louis Auto Shredding, Inc., we hereby waive the 90-day limit for review of the application and request that you delay final action until the monitoring wells are installed, tested and reported to the Agency. We estimate that this can be accomplished within 45 days.”

As promised, petitioner sent the additional information to the Agency within 45 days, as reflected by Andrews’ letter of August 17, 1983, which was accompanied by the reports. The letter states:

“We trust this additional data provides the Agency with a sufficient basis for issuance of the Supplemental Permit. However, I recall that the Agency has mentioned the possibility of other assurances. I would like to suggest another meeting with you, and the Division of Land Pollution Control staff, Mr. Haschemeyer, Mr. Pielet, Mr. Valukas and myself. After review of this submittal, if you feel such a meeting could be productive, please advise us.”

From this letter, it is apparent that petitioner has effectively withdrawn its waiver. The Agency’s failure to request additional information or to set up a meeting as the above letter suggests would seemingly indicate that the Agency was satisfied with the application and would rule on it accordingly. Under these circumstances, the most appropriate action would have been for the Agency to review the application and to approve or deny a permit within the following 90 days. Failure to approve or deny this application for five years is without a doubt unreasonable, and we find the permit issued by operation of law.

Respondents also argue that because petitioner treated the application as pending, no permit issued by operation of law. It is clear from a review of the Board’s order that the Board did interpret section 807.205(g) to require that petitioner prove its subjective intent to “deem the permit granted” in order to establish that the permit issued by operation of law. While substantial weight should be given to the Agency’s construction and application of its own rules, courts can refuse the Agency’s interpretation if it is clearly erroneous or inconsistent with settled rules of construction. (Olin Corp. v. Pollution Control Board (1977), 54 Ill. App. 3d 480, 483, 370 N.E.2d 3, 5-6.) In Environmental Protection Agency v. Pollution Control Board (1976), 37 Ill. App. 3d 519, 346 N.E.2d 427, this court succinctly stated:

“A development permit is deemed granted only if the Agency fails to act upon an application for such a permit within 90 days of its submission to the Agency, while an operating permit is deemed granted if the application is not acted upon within 45 days.” (37 Ill. App. 3d at 521, 346 N.E.2d at 428.)

We did not require the applicant’s subjective intent. In fact, we can find no previous interpretation of section 807.205(g) which requires the applicant to subjectively regard the permit as granted in order for a permit to issue by operation of law. Therefore, we interpret section 807.205(g) not to require the applicant to subjectively believe that a permit has been issued. Instead, we interpret this section to mean that if the Agency is tardy or delays its decision beyond the time specified, the permit may issue by operation of law. This decision, that petitioner’s permit issued by operation of law under the circumstances of this case, affects only the charge of operating in an unpermitted portion of a landfill in violation of sections 21(p) and (n) of the Act (Ill. Rev. Stat. 1987, ch. 111½, pars. 1021(p), (n)). The other charges against petitioner and the Board’s rulings thereon stand.

The final issue we are asked to address is whether the Board erred in finding that respondent had violated the prohibition against open burning found in section 21(p)(4) of the Act (Ill. Rev. Stat. 1987, ch. 111½, par. 1021(p)(4)). Petitioner contends that the evidence showed that the open burning was performed by trespassers who entered the SLAS site illegally. Citing Wasteland, Inc. v. Pollution Control Board (1983), 118 Ill. App. 3d 1041, 456 N.E.2d 964, and People v. Joliet Ry. Equipment Co. (1982), 108 Ill. App. 3d 197, 438 N.E.2d 1205, petitioner argues that if open burning is not being done intentionally for purposes of waste disposal, no violation of the Act occurs. However, we find that petitioner is responsible for the open burning that occurred on the SLAS site.

In People v. Joliet Ry. Equipment Co., the defendant was in the business of salvaging railroad cars. During dismantling operations, the defendant cut sections of the tank, box, and flat cars while wood was part of the car. When the cutting torch was used on the metal, the wood located near the metal would occasionally smolder. If the torch was applied directly to the wood, burning would result. As a result, the Attorney General, on behalf of the State, sought injunctive relief and civil penalties for violation of the open burning law. The court in Joliet Ry. Equipment Co. held that the accidental or incidental burning of a railroad car under these circumstances would not constitute open burning, unless it could be proven that the car was deliberately set on fire to burn up all the wood before the steel was cut up during salvage operations. (108 Ill. App. 3d at 204, 438 N.E.2d at 1210.) In Wasteland, Inc. v. Pollution Control Board, large amounts of paper and cardboard were spread over a large area. Apparently, this waste caught on fire and the Board found this to be in violation of the open burning law. Citing People v. Joliet Ry. Equipment Co., the court in Wasteland, Inc. found that the Board erred in concluding that the defendant had violated the open burning prohibition because there was no evidence that the fires had been intentionally set for the purpose of disposing of refuse. Wasteland, 118 Ill. App. 3d at 1052, 456 N.E.2d at 974.

In the instant case, the fires had been intentionally set for the purpose of disposing of refuse. Agency inspector Randy Ballard observed the burning of the rubber insulated wire by trespassers. The SLAS site manager, Mr. Karkut, confirmed Ballard’s suspicions that the scavengers were burning off rubber insulation on the wire in order to take the underlying wire. Petitioner was aware of the burning, as evidenced by Karkut’s statements to Ballard, but took no action to stop the burning. While petitioner did not itself burn the rubber in order to dispose of it, it allowed such operations to occur on its premises. Therefore, we find that the Board did not err in finding that petitioner violated the prohibition against open burning. 111. Rev. Stat. 1987, ch. IIIV2, par. 1021(p)(4).

For the foregoing reasons, the order of the Pollution Control Board is affirmed in part and reversed in part.

Affirmed in part, reversed in part.

RARICK, P.J., and CHAPMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE HOWERTON

license: Public Domain

text:
    UNION BANK OF EAST ST. LOUIS, Plaintiff, v. THOMAS E. MATTINGLY et al., Defendants (Alfred Bononi et al., Third-Party Plaintiffs-Appellants; Glen Lewis et al., Indiv. and as the General Partners of Hospital Equipment Partnership No. 1, et al., Third-Party Defendants; Fidelity and Deposit Company of Maryland, Third-Party Defendant-Appellee).
    Fifth District
    No. 5 — 89—0768
    Opinion filed June 26, 1991.

      David Michael Harris and Gayle G. Stratmann, both of Greensfelder, Hemker & Gale, P.C., of St. Louis, Missouri, for appellant M-D Leasing Company.
    Donald G. Musick, of Mt. Vernon, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

This is a suit on a forthcoming bond in a replevin case. Replevin is not a standard on the usual bill of fare of appellate work, and therefore, some legal background is provided before this case is discussed.

Replevin is commenced by filing a verified complaint that alleges that property is detained wrongfully by defendant and plaintiff either is the owner of the property or lawfully is entitled to possession. Ill. Rev. Stat. 1989, ch. 110, par. 19 — 104.

A replevin order commands the sheriff to take the property from defendant’s possession and deliver it to plaintiff. (111. Rev. Stat. 1989, ch. 110, par. 19 — 109.) However, the sheriff is not to serve the replevin order until plaintiff gives the sheriff a replevin bond, with security, in the amount of twice the value of the property, the purpose of the bond being not only to indemnify the sheriff, but to prevent him or her from being a mere trespasser upon seizure of the property. Ill. Rev. Stat. 1989, ch. 110, par. 19 — 112; see also H. Wells, Treatise on the Law of Replevin §386 (1880).

Defendant can prevent seizure by executing a bond in the sum of twice the value of the property, with security approved by the sheriff, and this bond must be executed before the property actually is delivered to plaintiff. (Ill. Rev. Stat. 1989, ch. 110, par. 19 — 116.) This bond executed by defendant is known as a forthcoming bond. United States Fidelity & Guaranty Co. v. Sabath (1936), 286 Ill. App. 320, 330, 3 N.E.2d 330, 335 (wherein it was said, “A forthcoming bond is conditioned upon the forthcoming of the property to answer such judgment as may be entered, and if the property be forthcoming no liability ensues”).

In the case at bar, appellant borrowed money from Union Bank of East St. Louis to buy hospital equipment, bought the equipment, and leased it to Mt. Vernon Hospital, Inc., which in turn made all lease payments directly to Union Bank.

When the hospital defaulted, the bank brought replevin against the hospital, other defendants not part of this appeal, and appellant.

The hospital posted a forthcoming bond, with appellee as surety, the bond providing:

“We, the hospital and Fidelity[,] jointly and severally bind ourselves to the sheriff of Jefferson County, Illinois; that defendant, Mt. Vernon Hospital, Inc., will appear in and defend said action and will deliver such property in accordance with the order of the court *** and said defendant will pay those costs and damages that may be incurred during the time the property is out of the possession of the officer and in its possession and as shall be adjudged against the said defendant in such action.”

The circuit court, on a pleading technicality, struck the bank’s complaint and granted 28 days within which to amend. On o. about that same day, lawyers for the bank and the hospital agreed that the forthcoming bond that had been filed would stand and be effective to prevent replevy when the bank filed its amended complaint.

The bank filed its amended complaint, and a new order of replevin was issued, but the bank made no attempt at replevy, relying on its agreement and the previously filed forthcoming bond, while the hospital continued to pay appellee for issuing the forthcoming bond.

Appellant and the hospital, with the court’s permission, which recognized the existence of the forthcoming bond, sold the equipment.

Appellant and the bank settled, under the terms of which the bank assigned all its interest in the replevin bond to appellant, and the court substituted appellant on all the bank’s causes herein pursuant to section 2 — 1008 of the Illinois Code of Civil Procedure. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1008.

Appellant then filed, with leave of court, as third-party plaintiff, this replevin suit against third-party defendant, the appellee, seeking to recover on the forthcoming bond which had been issued by appellee as security in the hospital’s behalf. This third-party complaint sought to recover on the forthcoming bond and alleged that the equipment had depreciated by $140,000 and that no rent had been paid while the equipment was allowed to be held by the hospital by the forthcoming bond.

Appellee moved to dismiss, claiming that the bank had not filed a replevin bond when it started this case, and that since the replevin bond is a necessary prerequisite to replevin, it likewise is a necessary prerequisite to liability on the forthcoming bond. Ill. Rev. Stat. 1989, ch. 110, par. 19 — 101 et seq.

The circuit court dismissed, finding that: (1) posting a replevin bond is a necessary prerequisite to liability on the forthcoming bond; (2) the sale of the equipment released appellee from liability on the forthcoming bond; and (3) the dismissal of the bank’s first complaint in replevin released appellee from liability on the forthcoming bond.

Appellant makes two arguments in this court: (1) a replevin bond is not a prerequisite to liability on a forthcoming bond; and (2) in the alternative, if a replevin bond were a prerequisite, appellee, as surety, should be estopped from denying the validity of its forthcoming bond. We address only the second argument, because we find estoppel, and reverse and remand.

Estoppel is based on the principle that one cannot act in a particular manner and then assume a position inconsistent to the prejudice of another who has relied upon that act. Empire Fire & Marine Insurance Co. v. Faith Truck Lines, Inc. (1988), 178 Ill. App. 3d 356, 533 N.E.2d 441.

Appellee waived strict compliance with the replevin statute when it filed the forthcoming bond. By posting the forthcoming bond, the hospital was allowed to retain possession of the equipment. Furthermore, the parties filed representations with the court that the bond existed, and all parties acted in reliance upon this assumption. For example, the bank did not call up its replevin case for hearing in reliance on the validity of the forthcoming bond; nor did the bank, as awkward as it would have been, contest the validity of the forthcoming bond. Both the hospital and the circuit court recognized the forthcoming bond in various pleadings and orders of the court. The hospital’s motion to dismiss Union Bank’s second amended complaint was supported by a memorandum that said, “On April 11, 1984, an order in replevin was issued, but because Mt. Vernon Hospital posted a bond in the amount of twice the value of the equipment, the equipment has remained with Mt. Vernon Hospital.” In its motion for summary judgment, the hospital realleged and referred to the bond. And most importantly, the hospital continued to pay premiums on the bond and appellee accepted those premiums as though the bond was in force.

The rule that estops the principal who obtains the benefits of a bond from denying its obligation estops also the surety. People ex rel. Empress Farms, Inc. v. United States Trotting Association (1973), 13 Ill. App. 3d 327, 300 N.E.2d 18.

Appellee knew that plaintiff had posted no replevin bond, yet accepted the hospital’s premiums, leading all parties to believe the bond was valid. Such a situation is analogous to an insurer remaining silent and accepting premiums even though it knows the contract has been breached, a circumstance under which the insurer is estopped. (See Garcy Corp. v. Home Insurance Co. (7th Cir. 1974), 496 F.2d 479, cert, denied (1974), 419 U.S. 843, 42 L. Ed. 2d 71, 95 S. Ct. 75 (applying Illinois law).) Under these analogous circumstances, Fidelity is estopped from denying the validity of the forthcoming bond, and the circuit court erred in dismissing appellant’s third-party complaint.

We express no opinion herein as to whether the depreciation and loss of rent claimed by appellant as damages are covered by the express language of the forthcoming bond.

The circuit court is reversed, and the cause is remanded.

Reversed and remanded.

HARRISON and CHAPMAN, JJ., concur.


author: JUSTICE HARRISON JUSTICE HOWERTON, JUSTICE CHAPMAN,

text:
    NORMAN MEYERS, Plaintiff-Appellant and Cross-Appellee, v. GEORGE KISSNER et al., d/b/a Kissner and Weaver Farm Implement Company, et al., Defendants-Appellees and Cross-Appellants.
    Fifth District
    No. 5 — 89—0567
    Opinion filed June 28, 1991.

      HOWERTON, J., specially concurring.
    CHAPMAN, J., dissenting.
    Tracy W. Resch, of Parker, Siemer, Austin, Resch & Resch, of Effing-ham, for appellant.
    G.W. Howard III, of Howard & Howard, of Mt. Vernon, for appellees George Kissner and Glen Weaver.
    Edward Benecki, of Gosnell, Benecki, Borden & Enloe, Ltd., of Lawrenceville, for appellee Owen Rainwater.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendants, George Kissner and Glen Weaver, d/b/a Kissner & Weaver Farm Implement Company, and Owen Rainwater, constructed earthen levees on their property which obstructed the natural flow of water and thereby caused injury to adjacent farmland owned by plaintiff, Norman Meyers. More than five years after the levees were constructed, plaintiff commenced this action against defendants in the circuit court of Wayne County to obtain both injunctive relief and damages. After finding that plaintiff’s damage claim was time barred under section 13 — 205 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 205), the circuit court issued an injunction requiring that a portion of the levees be modified. Plaintiff now appeals. Defendants have all cross-appealed. For the reasons which follow, we reverse and remand with directions to enter judgment in favor of defendants.

The record before us shows that plaintiff and defendants own adjacent parcels of farmland along the Skillet Fork River in Orel Township, Wayne County. The river meanders wildly through the area, making it difficult for us to present a concise description of the relationship between the various tracts of land involved. For the purpose of this discussion, however, we think it sufficient to say that, generally speaking, plaintiff’s land lies downstream from the parcels owned by defendants. On the other hand, most of defendants’ property lies south of the river’s bank, while most of the land owned by plaintiff lies to the north. Although the question was disputed, evidence was presented which indicated that the topography is such that water falling upon the area would, if unobstructed, drain naturally in a southerly or southeasterly direction.

In 1977, defendants Kissner and Weaver erected a large earthen levee on their property. The levee began near the middle of their land next to a small body of water known as Horse Creek, extended to an area just short of the confluence of Horse Creek and the Skillet Fork River, then continued along the southern bank of the Skillet Fork River until it reached the eastern boundary of their property. Prior to this time, the Skillet Fork River was in the process of cutting a new channel in a southerly or southeasterly direction. There is no dispute that the purpose of the levee was to contain the water and to prevent the river from flooding across their ground.

The year after Kissner and Weaver finished their levee, defendant Rainwater began construction to extend the levee along that portion of the southern bank of the river which ran through his property. Construction of the Rainwater section was completed in the middle of 1979. Although the Illinois Department of Transportation, Division of Waterways, did not issue permits for the construction of any part of defendants’ levees, the evidence showed that the levees were not subject to the State’s permit requirements.

As they were intended to do, the levees obstructed the natural drainage pattern. This, in turn, caused injury to plaintiff’s property, which became noticeable almost immediately. Testimony established that after the levees were completed, the river channel became deeper and wider, and the water current became stronger. Increased erosion, washing and scouring of plaintiff’s land took place and, as a result, the quality of plaintiff’s soil deteriorated and the market value of his property declined. In 1986, plaintiff ultimately decided to bring legal action against defendants to obtain redress for these injuries. Plaintiff’s complaint, as amended, was in two counts. Both counts were based on the same factual allegations. They differed only in the type of relief requested. Count I sought a mandatory injunction to require defendants to remove the levee, while count II prayed for money damages.

In their answers to plaintiff’s complaint, defendants raised as an affirmative defense that plaintiff’s cause of action was untimely under the applicable statute of limitations. They subsequently amended their answers to raise as an additional affirmative defense that count I of plaintiff’s complaint, which sought injunctive relief, was also barred by the doctrine of laches. In addition, defendant Rainwater filed a counterclaim for contribution against defendants Kissner and Weaver pursuant to the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1985, ch. 70, pars. 301 through 305).

Defendants each moved for summary judgment as to count II of plaintiff’s complaint, which sought money damages. The sole basis for defendants’ motions was that plaintiff had not filed suit until more than five years after the earthen levees had been constructed and that the suit was therefore barred by section 13 — 205 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 205), the statute of limitations applicable to actions to recover damages for injury to real property. Defendants’ motions were granted, and judgment was entered by the court in favor of defendants and against plaintiff on count II. On a motion by Kissner and Weaver, the court also dismissed Rainwater’s counterclaim for contribution.

After Kissner, Weaver, and Rainwater unsuccessfully attempted to obtain summary judgment in their favor on count I of plaintiff’s complaint, the cause proceeded to trial before the court, sitting without a jury, solely on the question of whether plaintiff was entitled to the injunctive relief he had requested. Following the trial, at which extensive testimony was adduced, the court found that plaintiff had proved the allegations of count I and that defendants’ levees, as constructed, improperly obstructed the natural water flow and caused injury to plaintiff’s land. The court further found that defendants had failed to establish that plaintiff was guilty of laches in asserting his claim. The court determined, however, that additional evidence was necessary in order to assess the extent of injunctive relief which should be granted. A subsequent hearing was therefore held on this question. Based on the evidence presented at the hearing, the circuit court determined that complete removal of the levees was not required. Instead, it simply ordered certain modifications to that portion of the levee located on Owen Rainwater’s property. From this judgment, plaintiff appeals and defendants cross-appeal.

On this appeal, plaintiff contends that the circuit court committed reversible error when it reopened the case sua sponte to take additional evidence on possible alternative remedies. Plaintiff further contends that the circuit court’s judgment is infirm insofar as it granted plaintiff less than the full injunctive relief he requested. On his cross-appeal, defendant Rainwater asserts that the circuit court’s judgment was contrary to the manifest weight of the evidence and that even the limited injunctive relief granted should be set aside. Defendants Kissner and Weaver make no similar claim. To the contrary, they argue that, if the merits of the case are reached, the circuit court’s judgment should be sustained as it is. All defendants, however, assert that the circuit court should have granted judgment in their favor on the grounds that count I was time barred under either the statute of limitations or the doctrine of laches. Defendant Rainwater also argues, in the alternative, that the circuit court erred in dismissing his contribution counterclaim against Kissner and Weaver.

Of these various issues, the only one which requires discussion is defendants’ claim that count I was untimely, for we believe that it is dispositive of this appeal. As a preliminary matter, we note that there is no dispute that count II of plaintiff’s complaint, which sought money damages, was subject to the five-year limitations period provided in section 13 — 205 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 205). (Firestone v. Fritz (1983), 119 Ill. App. 3d 685, 687, 456 N.E.2d 904, 906-07.) That statute expressly •provides that a plaintiff must bring a cause of action to recover damages for an injury done to real property within five years “after the cause of action accrued.” Ill. Rev. Stat. 1985, ch. 110, par. 13 — 205.

Where, as here, the injury complained of consists of the unnatural overflow of water over the plaintiff’s property, the question of when a cause of action for that injury accrues depends on the cause of the overflow. When a structure is placed on dominant land which unreasonably increases the flow of water onto the servient land and the structure is not necessarily injurious, but may be used in a way which may or may not result in injury, the cause of action does not accrue until the use of the structure causes injury. (Gass v. Metro-East Sanitary District (1989), 186 Ill. App. 3d 1077, 1084, 542 N.E.2d 1229, 1234.) On the other hand, where the injury occurs as a result of the construction or the proper operation of a structure which is permanent and which is necessarily injurious by reason of its construction, then the injury itself is considered permanent, and the limitations period runs from the date that the construction was completed, or from the time when the plaintiff knew or should have known of his injury and its cause. (186 Ill. App. 3d at 1084-85, 542 N.E.2d at 1234-35.) It has been held, moreover, that the fact that flooding may be uncertain in time, duration, and extent does not prevent an improvement, which displays obvious potential to cause an unnatural overflow upon completion, from constituting an immediate, permanent injury. Firestone v. Fritz, 119 Ill. App. 3d at 688, 456 N.E.2d at 907.

In this case, evidence was presented which would support a finding that the offending levees were permanent and that they were “necessarily injurious by reason of [their] construction.” According to the evidence, there was no possibility that the levees could have been used in a way that was not injurious to plaintiffs farmland. Their very reason for existence was to block the Skillet Fork River as it was beginning to shift its channel southward across defendants’ property, to contain the water running through the river, and to prevent the river from flooding their property. Once the natural drainage pattern was obstructed in this way, the water flow had to go somewhere else, and that was upon plaintiff’s property. According to the record, the levees caused the velocity of the river to increase and the channel of the river to grow deeper and wider, resulting in increased erosion, washing, and scouring of plaintiff’s soil.

Under the principles cited above, the limitations period therefore ran from the time of completion of construction of the levees or, at most, from the time when plaintiff knew or should have known of his injury and its cause. There is no dispute that the section of the levee constructed by Kissner and Weaver was completed in 1977 and that the construction of the portion of the levee belonging to Rainwater concluded in 1979. There is also no question that plaintiff realized that these levees were causing injury to his property shortly after they were completed and that this discovery was made more than five years prior to the time when plaintiff finally decided to file suit in 1986. The circuit court therefore concluded that plaintiff’s claim for money damages was time barred under section 13 — 205 (111. Rev. Stat. 1987, ch. 110, par. 13 — 205), thus entitling defendants to summary judgment on count II of his complaint.

Plaintiff has not appealed the circuit court’s entry of summary judgment against him on count II and does not now attempt to dispute that his damage claim was untimely. Plaintiff contends, however, that his claim for injunctive relief is not subject to the same five-year limitations period, but is limited instead only by the period necessary for a servient landowner to establish a prescriptive right to obstruct the natural drainage flow and thereby cause water to overflow upon the property of a dominant owner. According to plaintiff, that period is 20 years. Plaintiff asserts that because the 20-year period had not yet run here, he was entitled to bring suit to enjoin the obstruction at any time. Although there is some force to this argument, we do not believe that it can withstand careful scrutiny.

Plaintiff is correct that a servient landowner who erects a levee or other barrier which obstructs the natural drainage of surface waters and causes those waters to back up upon the property of a dominant landowner may acquire a right to continue the obstruction if certain conditions are met. This right, when it exists, is in the nature of a prescriptive easement. (Montgomery v. Downey (1959), 17 Ill. 2d 451, 458, 162 N.E.2d 6, 10-11.) To establish such a right, the servient owner must show that the invasion caused by the obstruction, i.e., the overflow or flooding, took place with the knowledge and acquiescence of the dominant landowner; that it was both adverse and uninterrupted; and that it occurred for the full prescriptive period, which has historically been set at 20 years. (Nelson v. Gundlock (1983), 120 Ill. App. 3d 117, 119, 457 N.E .2d 1052, 1053; Wills v. Babb (1906), 222 Ill. 95, 106, 78 N.E. 42, 44.) This traditional 20-year prescriptive period is a product of the common law (see Chicago & Northwestern Ry. Co. v. Hoag (1878), 90 Ill. 339, 348-49), and appears to have been adopted, by analogy, from the statutory limitations period applicable to the acquisition of title to land by adverse possession (see Roller v. Logan Landfill, Inc. (1974), 16 Ill. App. 3d 1046, 1052, 307 N.E.2d 424, 429; 28 C.J.S. Easements §16, at 659 (1941)).

Plaintiff reasons that because the 20-year period governs the creation of a prescriptive right to obstruct the natural flow of surface water, it must also serve as the governing period of limitation for actions by a dominant landowner against servient owners to challenge such obstructions. We disagree. A threshold problem with such a rule is that if it applies to an action by a dominant landowner for equitable relief, there is no reason it should not also apply to an action by a dominant landowner for damages. The defense of easement by prescription has, after all, been equally available in actions at law for damages as in suits in equity.

The historic availability of the defense in damage actions is well illustrated by Chicago & Northwestern Ry. Co. v. Hoag (1878), 90 Ill. 339, 348-49, one of the earliest decisions by our supreme court to discuss the right of a landowner to obtain a prescriptive easement to cast water upon an adjoining owner’s property. There, the landowner suffering the overflow of water sought money damages only. No injunction or other equitable relief was requested. Yet, the court’s disposition leaves no doubt that had a prescriptive easement been established, the plaintiff landowner’s action would have been barred.

The reason this creates a problem is that the legislature has determined, through enactment of section 13 — 205 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 205) and its predecessor provisions, that actions for damages resulting from injury to real property must now be brought within five years of when the cause of action accrues. If plaintiff’s theory were correct, this five-year limitations period would therefore be reduced to a nullity.

To avoid this problem, plaintiff would evidently have us treat such damage actions as a limited exception to the 20-year common law rule. As support for this theory, plaintiff relies on the fact that, in the context of actions for injury to real property, the language of section 13 — 205 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 205) specifically refers only to recovery of damages. Claims for equitable relief are not mentioned. This omission, however, does not have the significance plaintiff would suggest.

As a general rule, suits in equity are not subject to statutory limitations periods. Technically, they are governed instead by laches. (Trustees of Schools v. American Surety Co. (1940), 307 Ill. App. 398, 406, 30 N.E.2d 513, 517.) Hence, one would not normally expect them to be expressly included in the statute setting the limitations period. This does not mean, however, that same period set forth in the statute does not apply with equal force to corresponding suits in equity. To the contrary, the law is well established that “in fixing the period in which equitable rights and claims will be barred by laches, equity follows the law, and generally courts of equity will adopt the statute of limitations period.” (Brown v. Goodman (1986), 147 Ill. App. 3d 935, 941, 498 N.E.2d 854, 858.) Accordingly, where a claim for equitable relief is not brought until after the limitations period for the corresponding legal action has expired, it too will be time barred, even if the delay in filing suit has caused no prejudice to the defendant. 147 Ill. App. 3d at 941, 498 N.E.2d at 858; Schlossberg v. Corrington (1980), 80 Ill. App. 3d 860, 864-65, 400 N.E.2d 73, 76.

We fail to see how any other rule could be justified where, as here, the legal and equitable claims are based on the same basic set of facts, charge the same wrongful conduct, and involve the same permanent injury. If separate limitations periods were available, as plaintiff urges, a litigant whose damage action had been dismissed for failure to comply with the requisite five-year limitations period could simply modify his pleadings to include a prayer for injunctive relief, delete his request for money damages, and bring an entirely new action anytime he wanted up to expiration of the 20-year period. This, however, could raise serious res judicata problems.

Under the doctrine of res judicata, a final judgment on the merits by a court of competent jurisdiction constitutes an absolute bar to any subsequent action involving the same claim, demand, or cause of action. (Page v. Illinois Central Gulf R.R. (1987), 162 Ill. App. 3d 744, 746, 516 N.E.2d 431, 432-33.) For purposes of the doctrine, the dismissal of a claim on statute of limitations grounds constitutes such a final judgment on the merits. (Sankey Brothers, Inc. v. Guilliams (1987), 152 Ill. App. 3d 393, 398, 504 N.E.2d 534, 538.) That equitable relief was not sought in the original action will not prevent the doctrine from operating, for res judicata extends not only to all matters which were actually decided, but also to all matters which could have been raised or determined. Moreover, even though a single group of operative facts may give rise to the assertion of different types of relief, or different theories of relief, it is still a single cause of action that exists. (Page v. Illinois Gulf Central R.R., 162 Ill. App. 3d at 746, 516 N.E.2d at 433.) Accordingly, it has been recognized that, under the doctrine, an action in law can bar a subsequent suit in equity, or vice versa. (Hagee v. City of Evanston (7th Cir. 1984), 729 F.2d 510, 515 n.10 (applying Illinois law).) The theory advanced by plaintiff fails to account for these principles.

We recognize that the courts of Illinois have not spoken with a single voice on when res judicata comes into play (see Best Coin-Op, Inc. v. Paul F. Ilg Supply Co. (1989), 189 Ill. App. 3d 638, 652, 545 N.E.2d 481, 490), and the doctrine is easier to state than to apply. Even if the doctrine were inapplicable, however, plaintiff’s argument for separate limitations periods would nevertheless offend the public policy against the splitting of claims or causes of action.

The rule against claim splitting, which is closely related to the doctrine of res judicata, has developed in order to ensure that litigation will come to an end and that no person will be unnecessarily harassed with a multiplicity of lawsuits. That rule provides that where a demand or right of action is in its nature entire and indivisible, it cannot be split up into several causes of action and be made the basis of many separate suits. Rather, the law requires that both in law and in equity a plaintiff must present all grounds of recovery he may have. (Best Coin-Op, Inc. v. Paul F. Ilg Supply Co., 189 Ill. App. 3d at 657, 545 N.E.2d at 493.) As the example given above illustrates, however, plaintiff’s theory would effectively jettison this requirement where, as here, a single, permanent injury has been sustained.

Given these problems, we must conclude that in cases such as this, equity must indeed follow the law. Accordingly, where, as here, an obstruction to the natural flow of water is permanent in nature, all actions to obtain redress for permanent injury to real property caused by such obstructions must be commenced within the five-year period specified by section 13 — 205 (Ill. Rev. Stat. 1985, ch. 110, par. 13— 205), whether the relief sought consists of money damages or a mandatory injunction to require that the obstruction be removed.

This holding is in no way inconsistent with the 20-year period recognized at common law for the establishment of a prescriptive easement. That period remains. Until the requisite 20 years have elapsed, a servient landowner’s obstruction of the natural water flow will still not ripen into a prescriptive easement. Correspondingly, the dominant landowner will retain his right to have the natural water flow kept free from obstruction. If the obstruction and attendant injury are permanent in nature, however, the dominant landowner will simply be barred from seeking legal or equitable relief for injury to his property caused by the obstruction once more than five years have elapsed since the cause of action accrued.

For a landowner to thus be left with a right which can no longer be enforced is not as anomalous as it may seem. Under the law of Illinois, statutes of limitation simply limit the time within which an action must be brought or remedies must be enforced. (La Pine Scientific Co. v. Lenchos (1981), 95 Ill. App. 3d 955, 958, 420 N.E.2d 655, 658.) They are therefore generally considered to affect only a party’s remedy and do not alter substantive rights. (Lambert v. Village of Summit (1982), 104 Ill. App. 3d 1034, 1040, 433 N.E.2d 1016, 1021.) As a result, being left with an unenforceable right is inherent whenever a limitations period operates to bar a claim. (See, e.g., Fleming v. Yeazel (1942), 379 Ill. 343, 345-46, 40 N.E.2d 507, 508 (limitations statute does not extinguish debt, but merely eliminates remedy for its enforcement).) The situation here is no different.

We note, moreover, that where an offending obstruction is not necessarily injurious and the injury alleged is not permanent, the continued viability of the 20-year prescriptive period may have much more tangible consequences. As we have already explained, the cause of action will accrue and the limitations period will begin to run in such a case from the date of the last overflow. By the time the last overflow occurs, however, the flooding of the dominant owner’s property may have been going on for 20 years. Thus, even if the dominant landowner brings suit within five years of the latest overflow, and his remedies for that injury are not barred by the limitations period, his claim may still be defeated if, by the time suit is brought, the 20-year prescriptive period has elapsed and all the other elements necessary to establish a prescriptive easement have been established.

In any case, because the injury here was permanent and because plaintiff’s claim for injunctive relief in count I was not brought until more than five years after that claim accrued, the claim is untimely and should have been dismissed. Accordingly, the judgment of the circuit court of Wayne County is reversed, and the cause is remanded with directions to enter judgment in favor of defendants and against plaintiff on count I of plaintiff’s complaint. In view of this disposition, we need not reach defendant Rainwater’s alternative argument that the circuit court erred in dismissing his counterclaim for contribution.

Reversed and remanded with directions.

JUSTICE HOWERTON,

specially concurring:

I concur in the result. However, I cannot join the majority opinion insofar as it either says or implies that if the statute of limitations has expired, laches automatically applies.

JUSTICE CHAPMAN,

dissenting:

“For He cometh to judge the earth: with righteousness shall he judge the world, and the people with equity.” Psalms 98: 9, King James version.

Beginning this dissent with a quote from Psalms is not meant to suggest that any member of this court possesses either omniscience or any other quality associated with the Deity. The quote was chosen because it is an ancient recognition of the difference between law and equity. That difference, at least with regard to permanent obstructions to the natural flow of water, has been completely destroyed by the majority’s opinion in this case.

Justice Harrison’s disposition concludes that the 20-year period necessary to establish an easement by prescription is not applicable to an action by a dominant landowner against servient owners to challenge obstructions to the natural flow of surface water. The opinion of this court has in fact created a right of prescriptive easement that is established five years from the beginning of the prescriptive use, and it has done this while refusing to acknowledge the consequences of its action.

Further, by its expression of concern about potential res judicata difficulties, the majority both creates a nonexistent problem and overlooks factual scenarios which are more likely to arise in the future. Neither a res judicata nor a claim-splitting problem is presented in this case; the plaintiff sought both money damages and equitable relief. If problems do arise in future cases because of claim splitting, those problems can be dealt with in those cases.

While the majority may be justifiably concerned in raising the potential problem of claim splitting, it also appears to have outlined the solution to that problem by recognizing that “res judicata extends not only to all matters which were actually decided, but also to all matters which could have been raised or determined.” 217 Ill. App. 3d at 145.

I am concerned that the majority, by some process of intellectual insemination, has brought forth a new rule of law establishing a five-year period of prescriptive easements, while refusing to either acknowledge paternity or to concern itself with the parenting problems that its new child will present. The majority states, “This holding is in no way inconsistent with the 20-year period recognized at common law for the establishment of a prescriptive easement. That period remains. Until the requisite 20 years have elapsed, a servient landowner’s obstruction of the natural water flow will still not ripen into a prescriptive easement. Correspondingly, the dominant landowner will retain his right to have the natural water flow kept free from obstruction. If the obstruction and attendant injury are permanent in nature, however, the dominant landowner will simply be barred from seeking legal or equitable relief for injury to his property caused by the obstruction once more than five years have elapsed since the cause of action accrued.” 217 Ill. App. 3d at 145-46.

Before today’s opinion, the law regarding time limitations on prescriptive easements in Illinois could be summarized as follows:

(1) After five years, suits for money damages were barred by the statute of limitations. Ill. Rev. Stat. 1989, ch. 110, par. 13 — 205.

(2) Between 5 and 20 years, the doctrine of laches applied to suits seeking equitable relief. Under the doctrine, equity would generally follow the law, i.e., the five-year statute of limitations applicable to suits for money damages would apply unless the plaintiff pled and proved extenuating circumstances to relieve himself from the applicability of the five-year statute. Schlossberg v. Corrington (1980), 80 Ill. App. 3d 860, 400 N.E.2d 73.

(3) After 20 years, the dominant owner’s rights were extinguished and the servient owner had a prescriptive easement. Poulos v. F.H. Hill Co. (1948), 401 Ill. 204, 214, 81 N.E.2d 854, 859.

Justice Harrison’s opinion eliminates category two from Illinois law while explicitly denying that it does so: “This holding is in no way inconsistent with the 20-year period recognized at common law for the establishment of a prescriptive easement.” (217 Ill. App. 3d at 145-46.) To say in one sentence that the 20-year period remains and that the dominant landowner will retain the right to have the natural flow free from obstruction, and in the next sentence that the dominant landowner’s rights are barred after five years, is to engage in the use of the English language worthy of Lewis Carroll at his best.

The majority mentions that “[f]or a landowner to thus be left with a right which can no longer be enforced is not as anomalous as it may seem.” (217 Ill. App. 3d at 146.) I would reply that I am sure it seems quite anomalous to the plaintiff in this case, and the court should also be concerned about other cases which may present some of the parenting problems which I referred to earlier.

Consider the following scenario: Jones, owner of Blackacre, causes an unnatural flow of water upon Whiteacre, which is owned by Smith. This unnatural flow of water continues for four years 364 days, when Whiteacre is sold to the Widow Allen. Under the law as prescribed in this court’s opinion, Widow Allen has one day to file her claim contesting Jones’ prescriptive use of her property, or otherwise be barred from remedy. Should Widow Allen fail to file her claim within one day, equity will not come to her rescue. She is not • entitled to either monetary or injunctive relief.

Consider also the scenario where Whiteacre, owned by Widow Alzheimer, is plagued for five years by the unnatural flow of surface water from Blackacre. Widow Alzheimer dies and Whiteacre is transferred to Smith. Smith’s remedies against Jones are forever barred.

The fact that the same results would occur after 20 years does not answer my objection to the majority’s disposition, which is that it is making a significant change in the law while refusing to acknowledge the effect of its action.

Equity follows the law. However, contrary to Justice Harrison’s disposition, the statute of limitations does not strictly apply to equity cases. (Trustees of Schools v. American Surety Co. (1940), 307 Ill. App. 398, 406, 30 N.E.2d 513, 517.) Where a party seeking relief after the statutory period has elapsed affirmatively pleads and proves a reasonable basis for the delay, he may avoid application of the statute of limitations to his cause of action. (Schlossherg v. Corrington (1980), 80 Ill. App. 3d 860, 865, 400 N.E.2d 73, 76, citing Nelson v. Wilson (1928), 331 Ill. 11, 162 N.E. 144.) Our supreme court has stated:

“[L]aches is not simply a matter of time; rather, it is a principle of ‘inequity founded upon some change in the condition or relation of the property and the parties’ [citation]. That is, it must appear that a plaintiff’s unreasonable delay in asserting his rights has prejudiced and misled the defendant, or caused him to pursue a course different from what he would have otherwise taken. [Citations.] If the defendant is not injured by the delay, then plaintiff is not guilty of laches.” People ex rel. Casey v. Health & Hospitals Governing Comm’n (1977), 69 Ill. 2d 108, 115, 370 N.E.2d 499, 502.

In the instant case, Meyers’ reason for not filing a cause of action until nearly seven years after construction of the levee was completed was that Meyers attempted to have the levee removed through the Illinois Department of Transportation, and when that failed, he sought judicial relief. Defendants maintained that if Meyers were permitted to proceed, they would be prejudiced by the delay in Meyers’ commencing his action. Defendants argued that they expended funds in constructing the levee in question and in subsequently repairing and maintaining the same, and were deprived of the opportunity to gather evidence to refute the claims alleged by plaintiffs. The trial court found that the defendants failed to prove laches by a preponderance of the evidence in that they failed to prove that they were injured by any delay by the plaintiff in filing suit. This finding should not be disturbed unless the trial court abused its discretion in making it. (Finley v. Finley (1980), 81 Ill. 2d 317, 330, 410 N.E.2d 12, 18.) The majority does not even acknowledge the fact that the trial court made this specific finding, let alone make any attempt to establish that its finding was against the manifest weight of the evidence. Instead, the majority creates the new rule discussed earlier.

After reviewing the record, I conclude that the trial court’s finding on laches is not against the manifest weight of the evidence. There is no need to extend this dissent further by discussion of all of the points raised by the parties in their respective briefs. I would affirm the trial court:

“ ‘[E]quity is not so weak of arm or lame of foot.’ From its earliest origins equity was designed to avoid the rigidity of common-law writs and procedure and to adjust itself to the requirements of justice.” Strom v. Strom (1957), 13 Ill. App. 2d 354, 367, 142 N.E.2d 172, 179.


author: JUSTICE CHAPMAN

text:
    BRIAN T. HANKE, Plaintiff-Appellant, v. ORVILLE WACKER, d/b/a Wacker’s Hog and Grain, Defendant-Appellee.
    Fifth District
    No. 5 — 88—0799
    Opinion filed July 2, 1991.

      Edward J. Kionka, of Carbondale, for appellant.
    Stephen C. Buser, of Freeark, Harvey, Mendillo, Dennis & Wuller, P.C., of Belleville, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiff-appellant Brian Hanke brought this action against his employer, Orville Wacker, d/b/a Wacker’s Hog and Grain (defendant), to recover for injuries sustained when he was attacked by a boar. The jury returned a verdict in favor of the defendant from which plaintiff appeals.

Plaintiff began working on defendant’s farm in 1979 as a hired hand, and shortly thereafter defendant began raising hogs. Defendant utilized several buildings in the hog operation, and one of these buildings was a sow house which contains several hog pens. The pens were built by defendant in 1980, and the ones relevant to this appeal were lined up side by side in the sow house. They were constructed of wood and fencing, and each pen contained a gate which opened up into a three- to four-foot-wide walkway. Each gate was secured by a “hook” and “chain.”

From 1980 to 1982 defendant purchased 220- to 240-pound boars which were kept for approximately one year before being sold. Boars kept for that period weighed approximately 350 pounds. In 1983 defendant made the decision to keep the boars for two to three years, at which time they weighed from 450 to 750 pounds when sold. The pens constructed by the defendant in 1980 were designed to contain the smaller boars. Defendant did not upgrade construction of the pens when he began keeping the boars longer, even though several individuals informed him of the need to do so. When the pens were damaged, they were not repaired with new material.

One of the plaintiff’s duties on the farm was to move the boars from one pen to another. Plaintiff would accomplish this task by using a “push board.” A push board is a piece of plywood two feet by three feet with handles on each end. The push board is placed in the hog’s path when it is necessary to make the hog change directions.

On May 15, 1985, plaintiff was in the process of moving a boar. He let the boar out of its pen and into the walkway. While plaintiff was closing the gate, the boar moved down the walkway a short distance. When plaintiff looked up, he saw this boar and a second boar which was still in its pen “going at it like cats and dogs.” Before plaintiff could get down to them, the second boar broke out of its pen and began fighting with the boar in the walkway. Apparently the commotion stirred up other boars which also broke out of ■their pens, although only two of the boars were actually involved in the fight. Plaintiff attempted to separate the boars by using the push board, but the boars knocked him down, apparently injuring his right knee.

After the incident, plaintiff and defendant discovered that the boar had broken some of the boards used to construct the pen and had also broken the chain on the gate. Evidence was also presented which indicated that plaintiff had been injured by hogs on prior occasions.

Defendant argued at trial that plaintiff assumed the risk of being injured by the hogs and was, therefore, barred from recovery. Over plaintiff’s objection, the trial court submitted instruction No. 13.02 (Illinois Pattern Jury Instructions, Civil, No. 13.02 (2d ed. 1971)) to the jury. The instruction provides as follows:

“The defendant has raised the affirmative defense that the plaintiff assumed the risks of injury from the dangers which the plaintiff contends caused his injury. To prove that defense the defendant has the burden of proving each of the following propositions:
First, that the plaintiff was the employee of the defendant.
Second, that doing work of this kind would ordinarily involve certain dangers.
Third, that the plaintiff knew these dangers existed and realized the possibility of injury from them, or in the exercise of ordinary care would have known the dangers existed and realized the possibility of injury from them, and entered into the employment voluntarily.
Fourth, that one or more of these dangers were the cause of the plaintiff’s alleged injuries.
If you decide that each of these propositions has been proved, then your verdict should be for the defendant. If, on the other hand, you decide that any of these propositions has not been proved, then the defendant has not proved the affirmative defense of assumption of the risk.”

As noted above, the jury found in favor of the defendant.

The sole issue raised by plaintiff on appeal is whether or not the submission of the instruction set forth above was proper. Plaintiff contends that the instruction was improper because the risk of injury in this case was created by the defendant’s negligence. Plaintiff asserts that under these circumstances, the defense of assumption of the risk is a damage-reducing factor only and should not be a complete bar to recovery. Defendant asserts that the instruction was proper, and he also contends that we need not address this issue because plaintiff failed to preserve it for appeal. Defendant asserts waiver because plaintiff failed to tender an alternative instruction at the instruction conference and failed to insure that his objection was contained in the report of proceedings of the instruction conference and because plaintiff’s post-trial motion did not comply with Supreme Court Rule 366(b)(2)(iii) (134 Ill. 2d R. 366(b)(2)(iii)) and section 2 — 1202(b) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1202(b)). We shall address the waiver issue first.

Defendant cites Supreme Court Rule 239(b) (134 Ill. 2d R. 239(b)) in support of his contention that plaintiff has waived the issue on appeal by failing to tender an alternative instruction at the instruction conference. Rule 239(b) provides as follows:

“(b) Court’s instructions. At any time before or during the trial, the court may direct counsel to prepare designated instructions. Counsel shall comply with the direction, and copies of instructions so prepared shall be marked ‘Court’s Instruction.’ Counsel may object at the conference on instructions to any instruction prepared at the court’s direction, regardless of who prepared it, and the court shall rule on these objections as well as objections to other instructions. The grounds of the objections shall be particularly specified.” 134 Ill. 2d R. 239(b).

It is undisputed that plaintiffs alternative instruction was filed two days after the trial had ended. However, the record reveals that plaintiff was expressly given leave of court to file his alternative instruction after trial. Therefore, we conclude that plaintiff did not waive the instruction issue by failing to tender the alternate instruction at the instruction conference.

Defendant next contends that plaintiff waived the instruction issue by failing to comply with Supreme Court Rule 239(c) (134 Ill. 2d R. 239(c)). Rule 239(c) provides in part:

“All objections made at the conference and the rulings thereon shall be shown in the report of proceedings.” (134 Ill. 2d R. 239(c).)

At the instruction conference, plaintiff failed to make his objection, on the record, that assumption of risk was only a damage-reducing factor. A literal reading of Rule 239(c) would require that the judgment be affirmed since plaintiff’s sole issue on appeal is whether • the instruction was proper.

In Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 415 N.E.2d 337, the court held:

“To raise an issue on appeal concerning the giving of or the failure to give an instruction, the appellant must provide the reviewing court with the content of the instruction conference establishing that the appellant there raised the argument that he advances on appeal or else he is barred from raising it in the reviewing court. [Citations.] This rule does prevent a litigant from raising issues on appeal which he did not present to the trial court. It does not, however, afford the trial court an opportunity to subsequently reevaluate the merits of its earlier rulings on instructions.” (Emphasis added.) (Brown, 83 Ill. 2d at 350, 415 N.E.2d at 339-40.)

The court reasoned that the record of the instruction conference will generally not have been transcribed when the trial judge rules on the post-trial motion. (Brown, 83 Ill. 2d at 350-51, 415 N.E.2d at 340.) Brown clearly indicates that the purpose of Rule 239(c) is to allow the reviewing court to determine if the argument presented to it on appeal was first presented in the trial court.

In this case, plaintiff’s contention that assumption of risk is only a damage-reducing factor is not contained in the report of proceedings of the instruction conference. Thus, plaintiff has violated Rule 239(c). However, the trial judge’s comments during the post-trial motion hearing clearly reveal that a specific objection was made by plaintiff during the instruction conference:

“THE COURT: I think the greatest thrust or the greatest concern the Court has has to do with the instruction concerning the assumption of risk which was argued at length by you on Tuesday night, I think, before we came back here on Wednesday to have the closing arguments.
I believe that the question of the assumption of risk was properly a question for the jury to consider, and my greatest concern when we were going through the instructions and at the time the instructions were given and even at this point in time was whether in this case, if the Duffy case is correct, with all of the fine lines between the primary and secondary implied assumption, if that’s correct, whether we had a case of primary assumption of risk or primary implied assumption of risk.
I ultimately indicated on Tuesday night in the conference over in Belleville that I believe that the proper instruction would be that the assumption of risk was a bar based on the belief that Brian had the opportunity once the sows or the hogs broke out of the pen to back away, which he indicated that he had backed up, looked at, and decided that he could use the push board to get out.
When we came back on Monday morning — or Wednesday morning rather and I commented on this in passing because I did indicate to you, Mr. Uhler, that I would give you the opportunity even at a later date to submit an instruction, but I did not have before me two forms of instructions. I had indicated that I felt that the instruction the Court would give would be that the assumption of risk was a bar in this case which ultimately was done.
In view of the great amount of time and effort we spent on that question and the Court’s feeling at that time that the ruling was proper, I am going to stay with that ruling and I am going to deny your post-trial motion, Mr. Uhler.” (Emphasis added.)

We note that the initial instruction conference was held on Tuesday, November 1, 1988, from 4 to 8 p.m. and that the court reporter was excused by the trial court before it heard arguments on the assumption-of-risk instruction. Under the circumstances of this case, we conclude that a finding of waiver would not serve the purposes of Rule 239. The trial judge’s comments clearly reveal that a specific objection was presented to the trial court during the instruction conference and that plaintiff is not raising this issue for the first time on appeal. We are not holding that Rule 239(c) should not generally be complied with, but in view of the trial court’s unmistakably clear comments during the post-trial motion hearing, we conclude that the purpose of Rule 239(c) was fulfilled in this case.

Defendant also argues that plaintiff waived the instruction issue by failing to file an adequate post-trial motion. Defendant asserts that plaintiff was required to set forth the objected-to instruction and the alternative instruction verbatim in the post-trial motion. Plaintiff’s post-trial motion provides in pertinent part:

“19. The court erred in giving the following defendant instruction: *** 5 *** concerning the defenses of assumption of risk and contributory negligence when the evidence did not support same.
20. The court erred in denying the following plaintiff’s instructions *** 16 *** offered only pursuant to the court’s rulings on the affirmative defenses and without waiving objections thereto, Fox v. Beal, 314 Ill. App. 144, Duffy v. Midlothian Country Club, 481 N.E.2d 1037.”

Section 2 — 1202(b) of the Illinois Code of Civil Procedure provides in part:

“The post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof, and must state the relief desired, as for example, the entry of a judgment, the granting of a new trial or other appropriate relief.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1202(b).)

Supreme Court Rule 366(b)(2)(iii) provides:

“A party may not urge as error on review of the ruling on his post-trial motion any point, ground, or relief not specified in the motion.” (134 Ill. 2d 366(b)(2)(iii).)

In Brown, the supreme court concluded that the post-trial motion had three purposes:

“First, it allows the decision maker who is most familiar with the events of the trial, the trial judge, to review his decisions without the pressure of an ongoing trial and to grant a new trial if, on reconsideration, he concludes that his earlier decision was incorrect. [Citations.] Second, by requiring the statement of the specific grounds urged as support for the claim of error, the rule allows a reviewing court to ascertain from the record whether the trial court has been afforded an adequate opportunity to reassess the allegedly erroneous rulings. Third, by requiring the litigants to state the specific grounds in support of their contentions, it prevents them from stating mere general objections and subsequently raising on appeal arguments which the trial judge was never given an opportunity to consider. [Citations.] The rule, which is not limited to questions concerning jury instructions, has the salutary effect of promoting both the accuracy of decision making and the elimination of unnecessary appeals.” Brown, 83 Ill. 2d at 349-50, 415 N.E.2d at 339.

In Brown, the plaintiffs post-trial motion provided: “The court refused to give plaintiffs tendered instructions 9, 11 and 16” and “the court gave over objection of the plaintiff, defendant’s tendered instructions 2, 3 and 4.” The Brown court held that such a post-trial motion was insufficient. Unlike the case before us, the post-trial motion in Brown gave no hint of the contents of the instructions or the objections the plaintiff was making.

In addition, the assumption-of-risk issue was a key issue in this case. Plaintiff repeatedly argued that it was not a complete bar to his recovery. He filed a motion in limine, a motion to strike defendant’s second affirmative defense, and a motion for a directed verdict. During each hearing he argued that the assumption-of-risk defense was not a complete bar to recovery. Plaintiff made the same argument during the instruction conference and again at the hearing on the post-trial motion. Based on these facts, we conclude that plaintiff’s post-trial motion sufficiently informed the trial court of his position, and, therefore, plaintiff has not waived the right to raise the instruction issue on appeal.

We now address the merits of plaintiff’s appeal.

There are basically two forms of assumption of the risk, express and implied (Kionka, Implied Assumption of the Risk: Does It Survive Comparative Faultl 1982 S. Ill. U. L.J. 371), with express assumption of the risk described as follows:

“Under express assumption of risk, plaintiff and defendant explicitly agree, in advance, that defendant owes no legal duty to plaintiff and therefore, that plaintiff cannot recover for injuries caused either by risks inherent in the situation or by dangers created by defendant’s negligence.” Duffy v. Midlothian Country Club (1985), 135 Ill. App. 3d 429, 433, 481 N.E.2d 1037, 1041.

Implied assumption of the risk has itself been subdivided into two forms: primary and secondary. (Kionka, Implied Assumption of the Risk: Does It Survive Comparative Fault? 1982 S. Ill. U. L.J. 371, 376; see also Illinois Pattern Jury Instructions, Civil, Nos. 13.00 through 13.02, Comments (3d ed. 1991).) Under implied primary assumption of the risk, the risk of harm plaintiff assumes is not created by defendant, but is inherent in the activity plaintiff has agreed to undertake. (Kionka, Implied, Assumption of the Risk: Does It Survive Comparative Fault? 1982 S. Ill. U. L.J. 371; see also Illinois Pattern Jury Instructions, Civil, Nos. 13.00 through 13.02, Comments (3d ed. 1991).) Primary implied assumption of the risk is not a true negligence defense since no cause of action for negligence is ever established. (Duffy, 135 Ill. App. 3d at 433, 481 N.E.2d at 1041.) Obviously, if the doctrine of implied primary assumption of the risk is applicable to the facts of the case, the plaintiff would not be entitled to recover. Clark v. Rogers (1985), 137 Ill. App. 3d 591, 595, 484 N.E.2d 867, 870.

In Clark, the plaintiff was injured when thrown by a stallion. The plaintiff alleged that one of the defendants was negligent for failing to warn her that he had used the stallion earlier in the day to tease mares. The plaintiff also claimed she could not have assumed the risk of injury because she was unaware of the defendant’s actions. The court rejected plaintiff’s argument and held that the defendant was not at fault, and consequently, the doctrine of primary implied assumption of the risk prevented her from recovering under her claim.

“At most, the plaintiff’s evidence demonstrates the stallion was exposed to mares earlier in the day and may have become excited. The plaintiff, however, could not have assumed the stallion would be insulated from mares when her own deposition indicates there were mares in the same barn with the stallion.” Clark, 137 Ill. App. 3d at 595, 484 N.E.2d at 870.

Under the doctrine of secondary implied assumption of the risk, the risk of harm assumed by the plaintiff is created by the defendant’s negligence. (Duffy, 135 Ill. App. 3d at 433-34, 481 N.E.2d at 1041.) Implied secondary assumption of the risk is a fault-based concept which is functionally equivalent to contributory negligence, and like contributory negligence, it should not operate as a complete bar in negligence cases. Wheeler v. Roselawn Memory Gardens (1989), 188 Ill. App. 3d 193, 202, 543 N.E.2d 1328, 1334; see also Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886.

When the plaintiff alleges that the defendant is negligent with respect to a risk created by the defendant’s negligence, the proper defense is contributory/comparative fault, and the instructions on implied primary assumption of the risk do not apply. (Illinois Pattern Jury Instructions, Civil, Nos. 13.00 through 13.02, Comments (3d ed. 1991).) In fact, in such a situation no separate instructions are necessary because the Illinois Pattern Jury Instructions on contributory negligence, issues, burden of proof, damages, and forms of verdict can be adapted. Illinois Pattern Jury Instructions, Civil, Nos. 13.00 through 13.02, Comments (3d ed. 1991).

Defendant argues that the doctrine of implied primary assumption of the risk applies to the facts of this case. He relies heavily on the fact that plaintiff was injured by a hog, an animal which defendant alleges has dangerous propensities, and on the fact that after the boars broke out of the pens, plaintiff could have waited for help before attempting to separate the boars. The trial court also relied heavily on these factors in determining that the jury instruction given to the jury was proper.

The fact that an animal is involved does not automatically require the trial court to apply the doctrine of implied primary assumption of the risk. Defendant cites Clark in support of his position. However, as noted above, Clark held that primary assumption of the risk was applicable not because an animal was involved in the case, but because plaintiff’s evidence did not indicate that the defendant was negligent. Clark, 137 Ill. App. 3d 591, 484 N.E.2d 867; see also Vanderlei v. Heideman (1980), 83 Ill. App. 3d 158, 403 N.E.2d 756.

With regard to defendant’s assertion that implied primary assumption of the risk is applicable because plaintiff could have waited for help, plaintiff responds that the risk of harm, being injured by the hogs, was created by the defendant’s negligence in constructing and maintaining the pens. Plaintiff argues that implied secondary assumption of the risk is applicable to these facts and therefore the fact that he did not wait for help before separating the pigs could serve only, at most, as a damage-reducing factor. Plaintiff cites Duffy and Wheeler in support of his position.

In Duffy, the plaintiff brought a negligence action to recover for injuries she sustained when she was hit in the eye by a golf ball. The defendant country club claimed that plaintiff was an experienced golfer and, therefore, had assumed the risk of being hit by a golf ball. Defendant argued that it created no additional risk beyond those risks inherent in the situation which plaintiff, as a spectator, had assumed, and that the doctrine of implied primary assumption of the risk was applicable to the case. The court rejected defendant’s argument and affirmed the trial court’s decision to instruct the jury consistent with the doctrine of implied secondary assumption of the risk.

“[Pjlaintiff’s implied assumption of defendant’s negligence will no longer operate as an absolute bar to recovery in negligence actions.” Duffy, 135 Ill. App. 3d at 435-36, 481 N.E.2d at 1043.

In Wheeler, the plaintiff brought a negligence action against his landlord. The plaintiff was walking up the steps to the house he had been renting from defendants for approximately 3V2 years. The plaintiff was aware that the handrails on the steps were loose and that his legs were very weak. The plaintiff was injured when he lost his balance and attempted to hold onto the handrail. The handrail rolled out beneath him, causing him to fall. The defendants argued that plaintiff assumed the risk caused by their negligence and was completely barred from recovery. In rejecting the defendant’s argument, we stated:

“Implied secondary assumption of risk is a form of fault resulting from unreasonable conduct by plaintiff. Fault resulting from unreasonable conduct looks and operates exactly like contributory negligence; it is its functional equivalent. Therefore, implied, secondary assumption of risk should operate as does contributory negligence, and probably should be so labelled. We hold, therefore, that secondary assumption of risk does not operate as a complete bar in negligence cases.” Wheeler, 188 Ill. App. 3d at 202, 543 N.E.2d at 1334.

In the case before us, plaintiff has alleged that defendant’s negligence created the risk of harm. Extensive evidence was presented at trial which tended to support plaintiff’s theory. Under the facts of this case, we feel that the trial court erred in submitting to the jury the instruction set forth above. The fact that the plaintiff may have had the opportunity to wait for help before attempting to separate the boars would serve only, at most, as a damage-reducing factor. Therefore, the judgment of the circuit court of Washington County is reversed and remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

WELCH and HARRISON, JJ., concur.


author: PRESIDING JUSTICE RARICK

text:
    ROCKING M. RANCH, INC., Plaintiff-Appellant, v. SAHARA COAL COMPANY, Defendant-Appellee.
    Fifth District
    No. 5-90-0105
    Opinion filed July 3, 1991.
    Donald W. Urban, of Sprague & Sprague, of Belleville, for appellant.
    Walden E. Morris, of Jelliffe, Ferrell & Morris, of Harrisburg, for appellee.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Rocking M. Ranch, Inc., brought this action in the circuit court of Saline County to recover damages to grazing and cropland which had subsided in the early 1980’s as a result of the defendant’s mining activities. Sahara Coal had purchased the mineral rights under the plaintiffs property in 1920 from one of the plaintiffs predecessors in title, and the deed contained a clause relieving the mineral estate owner of any duty to provide subjacent support or any liability for subsidence damage. The defendant filed a motion for summary judgment, arguing that based upon this waiver, it was not liable for any subsidence damage to the plaintiff’s property. The trial court agreed and granted summary judgment in the defendant’s favor.

Plaintiff’s first argument on appeal is that public policy no longer permits mining technologies which result in subsidence of the surface.

Plaintiff’s action was brought pursuant to the common law duty to provide subjacent support which is owed to the surface owner by the owner of the mineral estate. This right was first recognized by our supreme court in Wilms v. Jess (1880), 94 Ill. 464. The court in Wilms also noted that the surface owner could waive the right to subjacent support. Since that time, numerous legislative enactments have manifested a growing public concern with conservation and protection of the environment. This concern has culminated with Illinois’ entry, in 1975, into the Interstate Mining Compact (Ill. Rev. Stat. 1977, ch. 961/2, par. 4701 et seq.) and in 1979, with the enactment of the Surface Coal Mining Land Conservation and Reclamation Act (SCMLCRA) (Ill. Rev. Stat. 1981, ch. 96½, par. 7901 et seq.). Section 1.02(a) of the SCMLCRA states:

“It is declared to be the policy of this State to provide for conservation and reclamation of lands affected by surface and underground coal mining in order to restore them to optimum future productive use and to provide for their return to productive use including but not limited to: *** conservation, development, management, and appropriate use of all the natural resources of such areas for compatible multiple purposes *** and protecting the health, safety and general welfare of the people, the natural beauty and aesthetic values, and enhancement of the environment in the affected areas of the State; to prevent erosion, stream pollution, water, air and land pollution and other injurious effects to persons, property, wildlife and natural resources; to assure that the coal supply essential to the Nation’s and State’s energy requirements, and to their economic well-being is provided; to strike a balance between protection of the environment and agricultural productivity, and the Nation’s need for coal as a source of energy; and to assure that land conservation and reclamation plans for all mining operations ***.” (Ill. Rev. Stat. 1989, ch. 96V2, par. 7901.02(a).)

Clearly, current public policy in Illinois recognizes a public interest in the protection and conservation of surface lands apart from the interest of the individual surface estate owner.

We must reject, however, plaintiff’s contention that public policy now prohibits any mining activities which result in the subsidence of the surface. Section 4.02 of the SCMLCRA provides:

“Each operator shall adopt measures consistent with known technology in order to prevent subsidence causing material damage to the extent technologically and economically feasible, maximize mine stability, and maintain the value and reasonably foreseeable use of surface lands, except in those instances where the mining technology used requires planned subsidence in a predictable and controlled manner. Nothing in this Section shall be construed to prohibit the standard method of room and pillar mining.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 961/2, par. 7904.2.

The statute clearly demonstrates that the SCMLCRA contemplates and accepts the occurrence of subsidence, both planned and unplanned, something this court implicitly recognized in Old Ben Coal Co. v. Illinois Department of Mines & Minerals (1990), 204 Ill. App. 3d 1062, 1071, 562 N.E.2d 1202.

We address next plaintiff’s argument that recognizing and upholding waivers of subjacent support by predecessors in title is contrary to public policy. In Boyer v. Old Ben Coal Corp. (1923), 229 Ill. App. 56, a clause giving Old Ben the right to remove coal “without liability for any damage to the surface” was found sufficient to waive the right to subjacent support. The clause in the present case waived “all surface damages of any sort arising *** from the removal of said coal[.]” Under Boyer and other similar cases, the language in the coal deed would have been sufficient to waive any right to damages arising from subsidence, but this issue was last addressed in Mason v. Peabody Coal Co. (1943), 320 Ill. App. 350, 51 N.E.2d 285, over 45 years ago. Plaintiff’s argument that such language should no longer be sufficient to waive subsidence damage is premised on the position that mining technologies resulting in subsidence are contrary to current public policy, a position which is not supported by the SCMLCRA. We conclude that waivers of the surface owner’s common law right to subjacent support are not per se contrary to public policy. We would note, however, that because the duties imposed upon coal operators by the SCMLCRA are owed to the general public and are therefore unaffected by any waiver of subjacent support given by the surface owners, in most cases the coal operator would have a duty to repair and restore surface lands and structures notwithstanding of any waiver by the surface owner.

In the present case, plaintiff’s complaint alleged only a violation of the common law duty to provide subjacent support. As noted above, language very similar to that employed in the deed in the present case has been held sufficient to waive the common law right to recover for subsidence damage. We find the waiver in this case to be clear and unequivocal, and that the trial court correctly granted summary judgment for the defendants.

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

Affirmed.

WELCH and GOLDENHERSH, JJ., concur.


author: JUSTICE LEWIS

text:
    CATHERINE L. PINORSKY, Plaintiff-Appellant, v. JAMES M. PINORSKY, Defendant-Appellee.
    Fifth District
    No. 5 — 90—0652
    Opinion filed July 5, 1991.
    Zimmerly, Gadau, Selin & Otto, of Champaign, for appellant.

      Janett S. Winter-Black, of Dilsaver, Nelson & Winter-Black, of Mattoon, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

On October 22, 1987, plaintiff, Catherine L. Pinorsky, was a passenger in an automobile driven by defendant, James M. Pinorsky, her husband. An accident occurred on Interstate Highway 70 in Effing-ham County, Illinois, and plaintiff was injured. Plaintiff sued her husband on the theory of negligence. A motion to dismiss was filed by the defendant and granted by the trial court. It is from this dismissal the plaintiff appeals.

The plaintiff and defendant were domiciled in the State of Florida. The defendant’s motion to dismiss the cause was based upon the theory that Florida law bars an action by one spouse against the other for a tort committed during coverture.

The plaintiff argues that the law in Illinois should apply, and that after its 1988 amendment, section 1 of “An Act to revise the law in relation to husband and wife” (Ill. Rev. Stat. 1987, ch. 40, par. 1001, as amended by Pub. Act 85 — 625, eff. Jan. 1, 1988), abolishing inter-spousal immunity in Illinois, applies retroactively to allow this action.

The first issue raised by plaintiff is whether the law of Illinois or the law of Florida applies in resolving the question of whether or not one spouse can maintain an action in tort against the other.

A reviewing court, on an appeal from a successful motion to dismiss, must take the facts alleged in the complaint as true. (Lakeview Medical Center v. Richardson (1979), 76 Ill. App. 3d 953, 395 N.E.2d 405.) In this case, the complaint alleges that the plaintiff was a passenger in a car driven by defendant in an accident that occurred on October 22, 1987, in Effingham County, Illinois. The complaint further alleges that the defendant negligently operated his vehicle and that as a direct and proximate result of that negligence, plaintiff was injured. For the purpose of the motion to dismiss, the following facts are accepted as true:

(1) The accident occurred in Effingham County, Illinois, on October 22,1987.

(2) That on the date of the accident, plaintiff and defendant were husband and wife.

(3) That on the date of the accident, the plaintiff and defendant were domiciled in the State of Florida, and that neither plaintiff nor defendant resided in nor claims domicile in the State of Illinois.

(4) That the plaintiff and defendant were married in 1940 in Champaign County, Illinois.

(5) That prior to and subsequent to the accident, the plaintiff and defendant owned real estate in Illinois.

(6) That the plaintiff and defendant spent approximately five months per year in the State of Wisconsin.

It was further stipulated that in the State of Florida, a claim is barred by virtue of the common law doctrine of interspousal tort immunity. The defendant claims that the State of Illinois by statute also bars the claim. The plaintiff takes issue with the barring of inter-spousal immunity in Illinois.

The supreme court of Illinois in Wartell v. Formusa (1966), 34 Ill. 2d 57, 59, 213 N.E.2d 544, 545, stated:

“In our opinion, the law of Illinois clearly applies in this case. We can think of no reason why Florida law should control the question whether a husband and wife domiciled in Illinois should be able to maintain an action against each other for a tort committed during coverture. The fact that the alleged tortious act took place in Florida is of no significance in determining which law should govern the determination of this issue. The law of the place of the wrong should of course determine whether or not a tort has in fact been committed, but the distinct question of whether one spouse can maintain an action in tort against the other spouse is clearly a matter which should be governed by the law of the domicile of the persons involved. Here the domicile is Illinois.”

In Wartell, the parties were domiciled in Illinois, plaintiff was injured in Florida, and suit was filed in Illinois. The trial court held that the law of Illinois, the State of domicile, prevailed and, as indicated above, the supreme court was unequivocal in its holding.

In 1988, the Illinois Supreme Court in Nelson v. Hix (1988), 122 Ill. 2d 343, 522 N.E.2d 1214, again discussed the spousal immunity doctrine.

In Nelson v. Hix, a tort action was brought by the wife against the husband in the Illinois courts. In Hix, the tort occurred in Illinois, but the parties were residents and domiciled in Ontario, Canada. The court held that the suit was not barred by the Illinois spousal immunity doctrine where both parties were residents of Ontario, Canada, which permits such suits. The court in Hix analyzed the Restatement (Second) of Conflict of Laws sections 169 and 145 (1971).

Section 169 states:

“(1) The law selected by application of the rule of §145 determines whether one member of a family is immune from tort liability to another member of the family.
(2) The applicable law will usually be the local law of the [S]tate of the parties’ domicile.” Restatement (Second) of Conflict of Laws §169, at 506 (1971).

Section 169 recognizes that the marital domicile retains a paramount interest in the incidents of the family relationship, and that the law of the domicile should govern whether interfamily tort immunity exists. It further states that the law “selected by application of the rule of §145 determines” the issue. Restatement (Second) of Conflict of Laws §169 (1971).

Section 145 states:

“(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the [S]tate which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in §6.
(2) Contacts to be taken into account in applying the principles of §6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.” (Restatement (Second) of Conflict of Laws §145, at 414 (1971).)

Applying the restatement, the court held:

“Because the question here is whether to apply a Canadian law that allows interspousal tort suits rather than the Illinois law that, at the time of the accident, prohibited such suits, the domicile of the parties and the place where their marital relationship was centered is, in our opinion, more important to a resolution of the issue than where the accident and injury occurred.” Nelson v. Hix (1988), 122 Ill. 2d 343, 350, 522 N.E.2d 1214, 1217.

The plaintiff argues, however, that there are additional factors in the instant case and that subsection (d), “the place where the relationship is centered,” applies. The additional two factors to which the plaintiff directs this court’s attention are: (1) the parties were married in Illinois in 1940, and (2) they presently own property in Illinois. We reject this argument. We believe that, even with the above factors considered, Illinois has little interest in regulating the right of married citizens of other States to maintain actions in tort against each other. The reasoning in Hix is the present state of the law.

“[W]e hold that the domicile of the parties involved in the present case controls the law that is to be applied in resolving the question of interspousal immunity.” (Nelson v. Hix (1988), 122 Ill. 2d 343, 353, 522 N.E.2d 1214, 1219.)

Therefore, the law of the State of Florida prevails.

Since the law of Illinois does not apply to the issue of interspousal immunity in this case, we decline to consider the issue of retroactivity of the Illinois statute.

For the reasons stated, we affirm the circuit court of Effingham County.

Affirmed.

WELCH and HARRISON, JJ., concur.