source: Caselaw Access Project

author: PRESIDING JUSTICE LaPORTA

license: Public Domain

text:
    ALEX M. TOPP et al., Plaintiffs-Appellants, v. PATRICK LOGAN, Defendant-Appellee.
    First District (6th Division)
    No. 1—88—3060
    Opinion filed March 30, 1990.

      Barry D. Goldberg and Barth H. Goldberg, both of Goldberg & Goldberg, of Chicago (David A. Novoselsky and Linda A. Bryceland, of counsel), for appellants.
    Wildman, Harrold, Allen & Dixon, of Chicago (Lawrence Helms and M. Jayne Rizzo, of counsel), for appellee.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiffs brought an action against defendant, Patrick W. Logan, M.D., seeking damages for personal injuries allegedly sustained as a result of negligent medical treatment. After a jury trial, a verdict was returned in favor of defendant, and the trial court entered judgment on the verdict. Plaintiffs have appealed the judgment in favor of defendant, alleging that they were deprived of the right to a fair trial and that the verdict was against the manifest weight of the evidence.

Plaintiffs claimed that defendant failed to take proper and adequate steps to diagnose and treat the ulcer disease of Alex M. Topp (Topp). Topp sought compensation for permanent injuries allegedly suffered as a consequence of defendant’s negligent conduct, and his wife sought recovery for loss of consortium.

The trial on this cause commenced on August 29, 1988. During voir dire of the first panel of the venire, plaintiffs’ counsel indicated that he was looking for jurors who could be fair and impartial, and he inquired whether the members of the panel had any question about their ability to be fair. All of the members of the first panel answered in the negative.

Following plaintiffs’ voir dire and tender to defense counsel of the first panel of the venire, plaintiffs’ counsel noticed that defendant’s pregnant wife was seated in a chair behind defendant, who was sitting at counsel table. During a break in the proceedings and outside the presence of the venire, plaintiffs’ counsel moved for a mistrial. He argued that the seating location of defendant’s pregnant wife would lead the prospective jurors to connect her with defendant and would arouse sympathy on defendant’s behalf, thereby prejudicing plaintiffs and depriving them of a fair trial.

Defense counsel opposed the motion for a mistrial, claiming that defendant’s wife sat behind her husband at counsel table because there were no vacant seats in the gallery when the proceedings began. The trial court denied plaintiffs’ motion for a mistrial, but ordered that defendant’s wife be placed back in the gallery and that she have no contact with defendant in the presence of the prospective jurors. The court subsequently instructed defense counsel to direct defendant’s wife to a bench seat in the gallery.

When the proceedings resumed, defense counsel gestured for defendant’s wife to take a seat in the gallery. During a side bar outside the presence of the venire, plaintiffs’ attorney subsequently renewed his motion for a mistrial, arguing that defense counsel’s gesture directing defendant’s wife to a gallery seat had violated the court’s prior order prohibiting contact with defendant in the presence of the venire. Plaintiffs’ attorney asserted that the attention of the venire members in the jury box had been drawn to defense counsel as she directed defendant’s wife to a gallery seat. The trial court again denied plaintiffs’ motion for a mistrial.

The voir dire then progressed without incident. The venire was questioned by the trial judge and by plaintiffs’ and defendant’s counsel. The prospective jurors indicated that they did not have any feelings one way or another which would affect their judgment about the lawsuit. All of the members of the venire ultimately chosen to serve on the jury stated that they could be fair and keep open minds until they went into the jury room to deliberate. The potential jurors were repeatedly reminded through questioning that any verdict rendered must depend on the evidence that would be introduced at trial and not on outside factors, including sympathy or prejudice. Defendant’s wife was present in the gallery throughout the entire trial.

The evidence adduced at trial revealed that Topp first saw defendant on November 6, 1980, for a routine checkup and continued seeing him once or twice a year for physical examinations through August 1982. During his first visit to defendant’s office, Topp completed a medical history form in which he reported a family history of peptic ulcer disease, that aspirin caused him gastrointestinal upset and that he had an ulcer in 1966. These facts were also included in the medical history taken by a nurse practitioner in defendant’s office in 1980. The nurse practitioner conducted a physical examination and prepared a five-page report which did not reflect that Topp had any complaints of a stomach problem or the presence of a duodenal ulcer.

Due to his illness, Topp was unavailable to testify at trial, and his evidence deposition was admitted. Topp testified that all of his brothers and sisters had suffered from ulcers, that four of his siblings had had surgery for an ulcer condition, but only two of the four had survived the surgery. Topp testified that during the three-year period over which he saw defendant, he had continuing problems with back pain of which he advised defendant. Topp described the back pain as “a little burning” above his waist which affected his ability to sleep. He stated that he usually felt the pain at night and that it went away if he drank milk. Topp indicated that he had never felt any pain in the front part of the abdomen until the day before he was admitted to the hospital in October 1982. He informed defendant that he swam approximately one-half mile six days each week. Topp also stated that defendant did not discuss any diagnosis of his condition prior to his hospitalization in 1982.

Topp testified that defendant initially advised him to take aspirin for his back pain. Because Topp experienced heartburn from aspirin, defendant instructed him to take Ecotrin. From 1980 through 1982, defendant performed blood tests, X rays, and urine tests. Topp also indicated that on almost every visit, defendant performed stool tests, and blood was never noted in his stool.

Topp testified that he saw defendant approximately one week before his ulcer surgery in October 1982. At that time, he told defendant that he could not sleep at night, had a fever, and had pain in his back. Defendant told Topp that he might have a cold and did not prescribe any medication.

Topp’s wife testified at trial that her husband experienced pain down his back and across his shoulders in June 1982. He was awakened from sleep by the pain and had heartburn or a burning pain after meals. After seeing defendant for a regular checkup in July 1982, Topp began taking Ascriptin, a combination of aspirin and antacid. Topp returned to defendant on August 20, 1982, because his pain had become more severe. Specifically, he was experiencing heartburn, increased pain in his shoulder, and was awakened from sleep by the pain.

Mrs. Topp testified that from August 20, 1982, to October 14, 1982, although he had stopped taking Ascriptin, her husband had some nausea and vomiting, extreme pain down his back and right side, stomach pains, and a temperature of 100 degrees. When Topp saw defendant again on October 18, 1982, she reminded him to tell defendant that the pain was similar to that he had experienced when he suffered from his previous ulcer. Mrs. Topp acknowledged that her husband did not complain of stomach or ulcer pains from 1980 to July 1982.

Dr. Robert Magrisso; Topp’s treating physician, testified that Topp was admitted to the hospital on October 19, 1982, and was discharged on November 20, 1982. Pursuant to Magrisso’s order, an upper-GI test was performed shortly after Topp was admitted to the hospital. The results of that test revealed that Topp had a perforated ulcer. Magrisso stated that the signs and symptoms of a duodenal ulcer or peptic ulcer include mid-abdominal pain that is relieved with food ingestion; vomiting; black stools; nausea; and pain that is relieved by antacids. Vague abdominal and back pain may also be signs of an ulcer. Magrisso indicated that a patient may be awakened from sleep by the pain from a duodenal ulcer, and taking aspirin can make an ulcer worse. He stated further that it is not uncommon for a person who has a duodenal ulcer to have a recurrence of that condition.

According to Magrisso, if the pain experienced by Topp was the same as that he experienced 20 years ago with his prior ulcer, that would be a significant factor in reaching a diagnosis. If Topp experienced pain for two months, that would also be significant in diagnosing his condition. Magrisso stated that if he was told these things, he would have put them in the patient’s chart.

Magrisso also testified that Topp’s clinical picture was consistent with several different disorders and that a diagnosis could not have been made during Topp’s initial two days in the hospital. He stated further that it would not have been appropriate to initiate therapy for peptic ulcer disease or to order that an upper-GI or an endoscopy be done immediately. Magrisso, the hospital intern, and the resident each took independent histories from Topp and conducted physical examinations which led them to consider many possible diagnoses, including gallbladder, liver, and pancreas problems; lumbo-sacral spine disorders; brain disorders, cancer of the stomach; a heart valve infection; and peptic ulcer disease.

Dr. Caprini, another of Topp’s treating physicians, was called in as a surgical consultant during Topp’s hospitalization. After reviewing the hospital chart, defendant’s office records, and his own record, he stated that Topp’s condition was confusing. Upon review of the upper-GI series performed on Topp on October 21, 1982, Caprini determined that Topp was not in acute distress, but diagnosed him as having a perforated duodenal ulcer. He indicated that a perforation was an uncommon complication of peptic ulcer disease, and stated that he was surprised at how well Topp had looked when compared to his X ray. Caprini took a medical history from Topp which reflected that Topp had a prior history of ulcer disease and had been sick some time before being hospitalized. Topp was admitted to the hospital because his blood electrolytes were abnormal. He was weak, fatigued, nauseous, had a temperature of 100 degrees, and had back pain as well as intermittent abdominal pains. Topp did not have severe abdominal tenderness or peritonitis, both of which are typical in cases of perforated ulcer.

Caprini testified that the symptoms of ulcer disease include pain after meals which is relieved by antacids; an acid taste in the mouth; nausea or vomiting; and pain in the chest, back and other spots in the upper abdomen. He also noted that a previous history of peptic ulcer disease increases the risk of a recurrence. If Caprini suspected that a patient suffered from an ulcer, he would order an upper-GI examination, endoscopy, and gastroscopy.

Caprini performed surgery on Topp and found a perforated duodenal ulcer with severe acute inflammation and an early abscess formation which extended into the gallbladder. The ulcer had perforated anteriorly through the wall of the duodenum and onto the gallbladder. Caprini removed Topp’s gallbladder and the lower half of his stomach, resected the stomach, bypassed the duodenum, and over-sewed the duodenum.

Caprini concluded that Topp had two ongoing processes: the ulcer disease and the gallbladder disease. Some of his symptoms were indicative of the ulcer disease, and others were consistent with the gallbladder disease. Caprini could not determine how long the ulcer condition had existed, but believed that the gallbladder problem had existed for a long period of time. He testified, however, that back pain in the upper back is indicative of gallbladder disease, whereas back pain in the lower back is indicative of peptic ulcer disease. In his opinion, the symptoms experienced by Topp prior to his hospital admission were more compatible with gallbladder disease than with peptic ulcer disease.

Dr. Schwartz, plaintiffs’ expert, testified that the most common symptom of peptic ulcer disease is pain or discomfort which tends to be located in the middle of the abdomen, but in about 20% of the cases, it is located in the back. The pain generally comes on some time after eating and tends to be relieved by ingestion of food or antacids. The pain will tend to recur at the same time of the day and often wakes the patient from sleep.

Schwartz testified further that in 1982, the methods of diagnosing peptic ulcer disease included a careful and extensive medical history and physical examination, a stomach X ray, and an endoscopy or gastroscopy. Schwartz emphasized the importance of taking down the patient’s history in the chart and indicated that aspirin can cause or aggravate peptic ulcer disease. He also indicated that once a patient has had peptic ulcer disease, the chance of that patient getting it again are high. If that patient experiences certain symptoms, the doctor must be very attuned to peptic ulcer disease. Schwartz also stated that a doctor should know that 20% of the people who have peptic ulcer disease experience back pain.

Schwartz indicated that a family history of peptic ulcer disease signals a person’s chances of getting a peptic ulcer. He also stated that the pain of peptic ulcer tends to be the same in the same person. Normally, when a patient states that an ulcer has returned, the doctor should initiate treatment as a precaution by prescribing medication to stop the production of acid in the stomach. If the symptoms have not been resolved at the end of a two-week period, Schwartz indicated that an upper-GI examination and, in certain cases, an endoscopic examination should be performed. According to Schwartz, adherence to the medical standard of care in 1982 would have required defendant to presume that Topp suffered from recurrent peptic ulcer disease.

Schwartz indicated that pain in the back with an ulcer strongly suggests that the ulcer is penetrating the wall of the duodenum. He also stated, however, that back pain may indicate a host of other problems, including gallbladder disease or a pancreatic disorder. Schwartz also conceded that aspirin could have irritated Topp’s stomach, and musculoskeletal pain could have been caused by increased exercise. Schwartz acknowledged that defendant would have deviated from the applicable standard of care if he had not considered possible diagnoses other than peptic ulcer disease on August 20, 1982. Schwartz stated that defendant did not deviate from the applicable standard of care by not ordering an upper-GI series or by not instituting ulcer medication on August 20, 1982.

Schwartz also acknowledged that loss of appetite, nausea, and burning in the midriff may be symptoms of diseases other than a peptic ulcer. He conceded further that on October 14, 1982, Topp had symptoms consistent with a virus and with gastritis or gastric inflammation possibly caused by ingestion of aspirin.

Schwartz concluded, however, that in his opinion, defendant did not act as a reasonably qualified, well-trained physician and did not meet the standard of care for Cook County in his treatment of this patient. Schwartz listed several criticisms of defendant’s conduct on August 20, 1982, and on October 14, 1982, including disregard of the symptoms described by the patient; disregard of the patient’s belief that his prior ulcer was recurring; disregard of a history of duodenal ulcer in this patient; disregard of a strong family history of peptic ulcer; failure to follow up on the patient’s complaint of pain; failure to investigate the probability of peptic or duodenal ulcer; failure to treat the symptoms of peptic ulcer with medication; and instructing the patient to take Ascriptin, which should not be used by patients with peptic ulcer disease.

According to Schwartz, Topp exhibited classic symptoms of an ulcer which defendant ignored. Schwartz testified that in his opinion, defendant’s deviations from the standard of care were directly responsible for the perforation of the ulcer and the operation performed on Topp, including the loss of the gallbaldder and a portion of the stomach. Schwartz did not criticize defendant’s treatment of Topp on October 18,1982, or thereafter.

Defendant, a board-certified specialist in internal medicine, testified that he was expert in caring for patients with peptic and duodenal ulcer disease. He stated further that on each visit with Topp, his care and treatment of this patient complied with the applicable standard of care.

When he first examined Topp on November 6, 1980, Topp reported no complaints. Defendant received no information indicating that Topp had felt any recurrence of his ulcer between 1966 and 1980. From November 1980 to July 1982, Topp consulted defendant on several occasions but did not complain of any symptoms which could be related to an ulcer, and during the July 15, 1982, examination, Topp reported no complaints whatsoever.

The next contact defendant had with Topp was on August 19, 1982, when he called defendant’s office and reported that he had been experiencing pain across his back at the level of his shoulder blades for six days. Topp indicated that Ascriptin was somewhat effective in relieving the pain and the pain subsided following food ingestion. Topp also stated that he had increased his exercise every morning.

Defendant examined Topp on August 20, 1982, and found that Topp had vague paravertebral discomfort in the chest area, similar to the pain he had experienced in the past when he had developed a duodenal ulcer. Defendant also discovered that Topp had been taking Ascriptin, which had never been prescribed by defendant. His physical examination revealed that Topp’s abdomen was not tender and that there was no blood in his stool. Defendant considered a recurrent duodenal ulcer in his differential diagnosis, but based upon the patient’s previous intolerance of aspirin, defendant believed that his discomfort could have been caused by the aspirin. Defendant advised Topp to discontinue the aspirin and to observe the response. Defendant considered that the back pain, an uncommon symptom of duodenal ulcer, could have been musculoskeletal pain resulting from Topp’s increased exercise. Defendant instructed Topp to contact him again if the symptoms continued. Defendant’s advice was predicated upon information indicating that Topp had not had any problem with peptic ulcer disease since 1966 and had been taking aspirin which can cause gastritis, as well as the results of the physical examination which did not suggest the presence of ulcer disease.

Although Topp had never demonstrated a reluctance to contact defendant before, he did not call defendant’s office from August 20, 1982, to October 14, 1982. When he did call on October 14, 1982, Topp complained of general aches; fever to 100 degrees; decreased appetite; mild nausea; burning around the midriff; and aches in the chest area. When he conducted his physical examination, defendant noted that Topp’s temperature was 99 degrees; the whites of his eyes were red; his throat was inflamed; his neck was supple; his blood pressure was 130/70; his chest was clear; he had a systolic heart murmur; his abdomen was soft; he had no skin rash; and there was no blood in his stool.

Defendant testified further that he learned that Topp was still taking aspirin on October 14, 1982. Defendant believed that Topp’s complaints were most consistent with a viral illness and that the burning around the midriff was related to a drastic irritation from the aspirin. In light of these symptoms, defendant testified that peptic ulcer would have been far down a list of differential diagnoses. Defendant advised Topp to take acetaminophen for fever, rest, take fluids, and to call if his condition did not improve. Mrs. Topp called defendant’s office on October 16, 1982, and reported that in addition to the same symptoms of viral syndrome he was experiencing two days earlier, her husband had hiccoughs. Because he did not feel that Topp’s condition had changed significantly defendant again advised Topp to stop taking aspirin, continue resting, and to call if the symptoms persisted.

Two days later, Topp again saw defendant and indicated that since August 1982, he had been experiencing upper-back pain which improved with aspirin. Topp also reported that he had been experiencing generalized malaise, nausea, hiccoughs, fever.of 100 degrees, and one episode of vomiting during the previous four days. Topp denied that he had any abdominal pain. Defendant conducted a complete physical examination and performed an abdominal X ray, a complete blood count, and a urinalysis. Defendant assessed that Topp may have had a viral syndrome or an intra-abdominal problem, but concluded that his medical history had changed over the previous four days. Although defendant planned to review the blood tests the following morning, he ordered an upper-GI test and an ultrasound to determine whether Topp had a peptic ulcer or problems with his gallbladder, pancreas, or liver.

When he received the results of Topp’s blood tests, defendant noted a significant abnormality in the levels of serum sodium and serum chloride. Defendant telephoned Mrs. Topp and told her that her husband needed immediate hospitalization to correct and determine the cause of the imbalance in the serum sodium. Defendant arranged to have Topp cared for by Dr. Magrisso at Glenbrook Hospital. When Topp was admitted to the hospital, defendant discussed his condition with Dr. Magrisso and with Dr. Stephen Knight, the admitting intern. He related the possibility that Topp was suffering from an intra-abdominal problem, including peptic ulcer disease. Defendant also discussed ordering an upper-GI examination, an ultrasound and an oral cholecystogram with the other two doctors. Defendant rendered no further medical care to Topp after his admission to the hospital on October 19,1982.

Defendant’s expert witness, Dr. Edwin J. Zarling, a board-certified gastroenterologist, testified that defendant had complied with the applicable standard of care in his treatment of Topp. Zarling stated that the information about Topp available to defendant on August 20, 1982, represented very vague and nonspecific pain. He confirmed that the most common symptom of duodenal ulcer is abdominal pain below the ribs and above the navel, but Topp did not report such pain on August 20, 1982. Nonetheless, defendant considered the patient’s previous history of duodenal ulcer and his claim that he had back pain similar to that he had experienced with his prior ulcer. Zarling indicated that these facts were not of great significance as of August 20, 1982, because Topp’s 1966 ulcer had been healed, because patients may have difficulty remembering pain over a 16-year period, and because pain between the shoulder blades is a very unusual location if it is caused by duodenal ulcer. He stated further that ulcer pain can be experienced in the back on rare occasions. When this is so, however, the pain is usually located in the lower part of the ribs or the lower thoracic region, and not in the upper part of the ribs near the shoulder blades. Zarling also indicated that increased exercise could have accounted for arthritic or musculoskeletal pain near the shoulder blades. Because Topp’s pain apparently subsided with food ingestion, he had a history of intolerance to aspirin, and he reported that he had recently begun to take aspirin, defendant properly ordered the discontinuance of aspirin to see what the response would be.

Zarling agreed that a patient has a greater chance of developing an ulcer if he has a family member who has had a duodenal ulcer or if he has had an ulcer in the previous 12 months. He testified, however, that if such an individual lives for many years without a recurrence, his risk of having a recurrence is diminished greatly. Zarling stated that given the information available to defendant on August 20, 1982, a reasonably well-qualified physician would consider such possible diagnoses as musculoskeletal strain, arthritis, and gallbladder problems or that aspirin could have been causing the pain. Although peptic ulcer disease might cross the doctor’s mind, the clinical picture did not suggest that diagnostic tests or ulcer medication were warranted. Zarling concluded that defendant’s treatment of Topp on August 20, 1982, was appropriate and within the applicable standard of care.

Zarling also testified that Topp’s condition on October 14, 1982, supported defendant’s diagnosis of viral syndrome. He concurred with defendant’s assessment that the burning in the midriff on that date may have been associated with the patient’s ingestion of aspirin, and he disagreed with Dr. Schwartz’ opinion that a presumptive diagnosis of peptic ulcer disease should have been made. Zarling indicated further that defendant acted appropriately and within the applicable standard of care in his treatment of Topp after October 14, 1982.

The jury returned a verdict in favor of defendant, and plaintiffs have appealed.

Plaintiffs first contend that they were denied a fair trial because defendant’s pregnant wife sat directly behind him during the voir dire of the first panel of the venire and later was directed to a seat in the gallery by defense counsel. Plaintiffs argue that the court erred in refusing to declare a mistrial and order a new trial. This argument is without merit.

The decision to declare a mistrial rests within the sound discretion of the trial court based on the particular circumstances of the ease, and the court’s ruling will not be disturbed on review absent a clear abuse of discretion. (Tuttle v. Fruehauf Division of Fruehauf Corp. (1984), 122 Ill. App. 3d 835, 844, 462 N.E.2d 645, 653; Benuska v. Dahl (1980), 87 Ill. App. 3d 911, 913, 410 N.E.2d 249, 251.) A mistrial should be granted only when there is an occurrence of such character and magnitude as to deprive a party of a fair trial and the moving party demonstrates actual prejudice as a result. (Tuttle, 122 Ill. App. 3d at 844, 462 N.E.2d at 653; Benuska, 87 Ill. App. 3d at 913, 410 N.E.2d at 251.) Upon careful review of the entire record, it does not appear that plaintiffs were actually prejudiced by the presence of defendant’s wife or that the trial court abused its discretion in refusing to declare a mistrial and order a new trial of the cause.

The record reflects that defendant’s wife was seated behind her husband during the voir dire of the first panel of the venire. When this fact was brought to the attention of the trial judge, he ordered that defendant’s wife be seated in the gallery and instructed defense counsel to direct her to a vacant bench seat. After a recess in the proceedings, defense counsel gestured for defendant’s wife to take a seat in the gallery. There is no indication that defendant’s wife disrupted the proceedings or engaged in any conversation with defendant or his counsel in the presence of the jury. Illinois courts have held that it is not reversible error to permit members of a party’s family to remain in the courtroom. (See Kerns v. Engelke (1977), 54 Ill. App. 3d 323, 336, 369 N.E .2d 1284, 1294, aff’d in part & rev’d in part on other grounds (1979), 76 Ill. 2d 154, 390 N.E.2d 859; Cunningham v. Central & Southern Truck Lines, Inc. (1968), 104 Ill. App. 2d 247, 265, 244 N.E.2d 412, 421-22.) Only one Illinois case has held it to be reversible error to permit members of a party’s family to remain in the courtroom, and the basis of that decision was that it would have been error to admit evidence that the party had a wife and children. (Barnett v. Noble (1910), 155 Ill. App. 129, 131.) That case is factually distinguishable from the present case. Here, the plaintiffs did not move to exclude defendant’s wife from the courtroom and did not argue that evidence of defendant’s marital status would have been inadmissible. Consequently, the trial court acted in accordance with the prevailing Illinois law by ordering that defendant’s wife be allowed to remain in the courtroom as long as she was seated in the gallery.

Moreover, it does not appear that plaintiffs were prejudiced in any way by the fact that defendant’s wife sat behind him during a portion of the voir dire of the first panel of the venire. There was no indication that she disrupted the proceedings or engaged in any conversation with her husband or his counsel in the presence of the jury. As soon as the court ordered that defendant’s wife be seated in the gallery, defense counsel obeyed the court’s instruction and directed her to a vacant bench seat. As defendant points out, his wife was present in the courtroom throughout the duration of the trial. Consequently, the jury was bound to infer that she was married, or in some way related, to defendant. In light of this fact and the plaintiffs’ failure to move to exclude defendant’s wife from the courtroom altogether, it does not appear that her seating behind defendant for a small portion of the voir dire resulted in any actual prejudice to plaintiffs or deprived them of a fair trial.

Contrary to plaintiffs’ claim, this case cannot be compared to those in which a participant has given vent to hysterical exclamations (Bauer v. Timucci (1975), 33 Ill. App. 3d 1051, 339 N.E.2d 434; Halpin v. Pekin Thrifty Drug Co. (1967), 79 Ill. App. 2d 153, 223 N.E.2d 708; Chicago & Erie R.R. Co. v. Meech (1896), 163 Ill. 305, 45 N.E. 290), nor is it similar to cases in which improper conduct by counsel deprived a party of a fair trial (Palmer v. Emery Transportation Co. (1970), 130 Ill. App. 2d 125, 268 N.E.2d 238; Jacobson v. National Dairy Products Corp. (1961), 32 Ill. App. 2d 37, 176 N.E.2d 551).

In addition, plaintiffs’ assertion that defense counsel violated the trial court’s order by gesturing toward a gallery seat is unpersuasive. The court did not order that defendant’s wife could not be seen with counsel. Rather, the court merely held that she was not to have any contact with defendant in the presence of the prospective jurors. The trial judge clearly did not believe the order had been violated when he denied the plaintiffs’ second motion for a mistrial, and upon review it does not appear that defense counsel’s action warranted a new trial.

Counsel for plaintiffs had the opportunity to question all of the venire members ultimately chosen to serve on the jury and did not reject any of them based upon a showing that the prospective jurors were prejudiced in favor of defendant because his pregnant wife was present in the courtroom. Counsel was apparently satisfied when the jury had been compiled that they could be fair and impartial and render a verdict based upon the evidence. Plaintiffs have not shown that they were actually prejudiced by the presence or seating location of defendant’s wife, and the trial judge did not abuse his discretion in refusing to declare a mistrial and order a new trial.

We next address plaintiffs’ claim that the jury’s verdict in favor of defendant was against the manifest weight of the evidence.

A jury verdict should be set aside and a new trial ordered only where the plaintiff has established that the verdict was against the manifest weight of the evidence. (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310, 356 N.E.2d 32, 36; Monier v. Winkler (1987), 158 Ill. App. 3d 724, 729, 511 N.E.2d 246, 250.) A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary and not based upon the evidence. Monier, 158 Ill. App. 3d at 729, 511 N.E.2d at 250; Anderson v. Beers (1979), 74 Ill. App. 3d 619, 623, 393 N.E.2d 552, 555.

In order to prove negligent treatment by a medical professional, the plaintiff must establish the proper standard of care, a negligent failure to comply with the standard, and that the injury for which the suit was brought was proximately caused by the negligent conduct of the professional. (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 256, 381 N.E.2d 279, 282; Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423-24, 328 N.E.2d 301, 305; Pumala v. Sipos (1987), 163 Ill. App. 3d 1093, 1098, 517 N.E.2d 295, 298.) The weight to be given to the expert testimony in such cases is for the trier of fact to determine. (Walski, 72 Ill. 2d at 260, 381 N.E.2d at 284; Borowski, 60 Ill. 2d at 424, 328 N.E.2d at 305.) Where the evidence is conflicting, it is within the province of the jury to resolve the conflict, and a jury’s verdict based upon conflicting evidence should not be set aside unless the opposite conclusion was clearly evident. St. Gemme v. Tomlin (1983), 118 Ill. App. 3d 766, 768, 455 N.E.2d 294, 296; Monier, 158 Ill. App. 3d at 729-30, 511 N.E.2d at 250.

In the instant case, the evidence presented by plaintiffs clearly conflicted with that presented by defendant. Plaintiffs introduced evidence indicating that Topp repeatedly advised defendant about his back pain and that he described the pain as resembling that experienced when his prior ulcer was active. In addition, plaintiffs introduced expert testimony indicating that defendant had violated the applicable standard of care and that defendant’s violation of that standard in the care and treatment of Topp proximately caused his injuries. Plaintiffs’ expert also acknowledged, however, that Topp’s symptoms were indicative of several different diagnoses and that defendant would have deviated from the standard of care if he had not considered possible diagnoses other than peptic ulcer disease.

Defendant introduced evidence indicating that during most of his visits with Topp, he did not report any problems or pain. Defendant testified that he did consider the complaints of back pain by Topp in August 1982 and the fact that Topp had previously had an ulcer in 1966. Defendant explained, however, that Topp’s symptoms were not indicative of ulcer disease and that the results of his physical examinations did not suggest a recurrence of the prior ulcer. Defendant believed that Topp’s discomfort could have been caused by ingestion of aspirin or by increased exercise. When Topp’s condition changed for the worse on October 18, 1982, defendant hospitalized him and ordered an upper-GI series and an ultrasound to determine whether Topp had a peptic ulcer or problems with his gallbladder, pancreas, or liver. Defendant also presented expert testimony indicating that he had acted appropriately in the care and treatment of Topp where the observable symptoms supported defendant’s diagnosis of viral syndrome and were consistent with many diagnoses other than peptic ulcer disease.

The jury heard and considered all of the evidence presented and resolved the conflict in favor of defendant. Upon review of the record, it does not appear that the opposite conclusion was clearly evident. Consequently, the trial court did not err in refusing to set aside the jury’s verdict.

Moreover, plaintiffs failed to establish that defendant’s conduct was the proximate cause of the injuries suffered by Topp. To establish proximate cause in a case alleging negligent delay in diagnosis or treatment, the plaintiff must present evidence which shows with a reasonable degree of medical certainty that the delay in diagnosis or treatment lessened the effectiveness of treatment. (Pumala, 163 Ill. App. 3d at 1098, 517 N.E.2d at 298.) In the case at bar, the evidence did not indicate that Topp’s injuries were the result of defendant’s failure to order an upper-GI or an endoscopy prior to October 18, 1982, or that surgery could have been avoided if defendant had ordered these tests earlier. Thus, the jury’s verdict was supported by the evidence in the record, and the court properly denied plaintiffs’ request for a new trial.

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

Judgment affirmed.

EGAN and RAKOWSKI, JJ., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. JOSEPH G. KRZYSTOFCZYK, Defendant-Appellee (Jim Edgar, Secretary of State, Appellant).
    Fourth District
    No. 4—89—0646
    Opinion filed April 24, 1990.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

The Secretary of State (Secretary) appeals a circuit court order directing the Secretary to issue a judicial driving permit (JDP) to defendant, Joseph G. Krzystofczyk. Specifically, the Secretary claims that the circuit court exceeded statutory limitations when it directed the Secretary to issue a JDP to the defendant because he was not a first offender as defined by the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95V2, par. 1 — 100 et seq.), i.e., he had an implied-consent suspension after January 1,1982.

We agree and reverse.

On April 1, 1989, defendant was arrested for driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 95^2, par. 11— 501(a)(2)). On testing, he had a blood-alcohol level of 0.19.

On April 25, 1989, defendant pleaded guilty and was placed on supervision for one year. Further, the trial court determined that defendant was a “first offender” and ordered the Secretary to issue a JDP effective from May 17, 1989, to May 17, 1990. According to the State’s brief on appeal, the Secretary returned the circuit court’s order on May 5, 1989, requesting the court to reassess the issuance of the JDP in light of defendant’s driving record. Defendant’s driving abstract shows he had an implied-consent suspension from July 23, 1983, to January 23, 1984. The court considered the Secretary’s request but, on July 13, 1989, directed the Secretary to issue the JDP as previously ordered.

At the outset, we note that defendant, as appellee, has not filed a brief in this court. However, pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493, we will address the merits of the appeal because the record is simple and the issues are clear. People v. Meece (1987), 162 Ill. App. 3d 658, 660, 515 N.E.2d 1321, 1322.

As this court stated in People v. Kerr (1990), 196 Ill. App. 3d 207, 209, the issuance of a JDP is governed by section 6 — 206.1 of the Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 6 — 206.1), as amended effective September 21, 1989, by Public Act 86 — 929 (1989 Ill. Legis. Serv. 4854, 4860-64, 4868 (West)). That section declares the policy of this State of removing impaired drivers from the roads, but recognizes certain limited circumstances in which the granting of a JDP may be appropriate “to relieve undue hardship.” (Ill. Rev. Stat. 1987, ch. 95^2, par. 6 — 206.1(B)(a).) The legislature balanced these concerns by strictly limiting the issuance of JDPs to “first offenders” (Ill. Rev. Stat. 1987, ch. 95V2, par. 6 — 206.1(B)(a)), as defined in section 11 — 500 of the Code (Ill. Rev. Stat. 1987, ch. 95^2, par. 11— 500).

The legislative scheme for issuance of JDPs vests the circuit courts with authority to grant relief to first offenders from a statutory summary suspension. (See Ill. Rev. Stat. 1985, ch. 95V2, par. 6— 206.1.) However, with regard to non-first-time DUI offenders, the Secretary of State retains the authority to hold hearings and grant hardship relief or reinstatement, when appropriate, after a suspension or a revocation has been imposed. (Ill. Rev. Stat. 1985, ch. 95V2, pars. 6 — 205, 6 — 208; see People v. Pine (1989), 129 Ill. 2d 88, 97, 542 N.E.2d 711, 713.) At issue in this case is whether the defendant is a “first offender” given his prior implied-consent suspension.

In considering section 11 — 500 in Kerr, this court stated:

“Upon review of section 11 — 500 and the appeals it has generated, we conclude that the legislature intended to delineate several categories of persons disqualified from first-offender status. To assist our analysis, we have inserted brackets in the following quote from section 11 — 500 of the Code, as originally enacted:
‘For the purposes of interpreting Sections 6 — 206.1 and 6 — 208.1 of this Code, “first offender” shall mean any person who [1] has not had a previous conviction or [2] court assigned supervision for violating Section 11 — 501, or a similar provision of a local ordinance, or [3] a conviction in any other state for a violation of driving while under the influence or a similar offense where the cause of action is the same or substantially similar to this Code within the last 5 years; or any person who [4] has not had a driver’s license suspension for Section 11 — 501.1 after January 1, 1982, or [5] a previous statutory summary suspension as provided in this Code, except in cases where [a] the driver submitted to chemical testing resulting in an alcohol concentration of 0.10 or more and [b] was subsequently found not guilty of violating Section 11 — 501, or a similar provision of a local ordinance. (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 95V2, par. 11-500.)’
Under this version of section 11 — 500, the ‘within the last five years’ clause applies to each of the first three categories.” (Kerr (1990), 196 Ill. App. 3d at 210.)

Here, the defendant, with an implied-consent suspension from July 1983 through January 1984, falls within the fourth category of persons — as to which the “within the last five years” clause does not apply. This was clearly a suspension “after January 1, 1982,” and the defendant is statutorily disqualified from “first offender” status.

Two of the other appellate districts have had occasion to consider the issuance of JDPs to persons who had a driver’s license suspension after January 1, 1982, pursuant to section 11 — 501.1 of the Code, or a previous statutory summary suspension under the Code. The First District Appellate Court considered this issue in People v. Moffat (1989), 192 Ill. App. 3d 326, 548 N.E.2d 757. There, the defendant was arrested for DUI on December 20, 1982, and refused to take a breathalyzer test, thereby resulting in a six-month statutory suspension under section 11 — 501.1 of the Code. On April 20, 1988, Moffat was again arrested for DUI, a breathalyzer test showed a blood-alcohol level of 0.19, and she was served with notice of summary suspension of driving privileges. However, she was thereafter the recipient of a JDP under section 6 — 206.1 of the Code, which the first district reversed.

To the same effect is the decision of the Second District Appellate Court in People v. Kazik (1989), 189 Ill. App. 3d 930, 545 N.E.2d 1040, wherein the defendant was arrested for DUI on March 27, 1983, and refused to submit to a chemical test as required by section 11 — 501.1 of the Code, the implied-consent provision. As a result, her driving privileges were suspended from August 17, 1983, through February 17, 1984. Kazik was again arrested for DUI on October 29, 1988, and was thereafter notified of a 12-month statutory summary suspension of driving privileges. She then received a JDP, but the second district reversed.

We conclude that the circuit court was without authority to order issuance of a JDP to defendant. In thus holding, we recognize that the legislature amended section 11 — 500 in Public Act 86 — 929, effective September 21, 1989. (1989 Ill. Legis. Serv. 4854, 4865 (West).) As amended, section 11 — 500 states:

“For the purposes of interpreting Sections 6 — 206.1 and 6— 208.1 of this Code, ‘first offender’ shall mean any person who has not had a previous conviction or court assigned supervision for violating Section 11 — 501, or a similar provision of a local ordinance, or a conviction in any other state for a violation of driving while under the influence or a similar offense where the cause of action is the same or substantially similar to this Coder within the last 5 years, or any person who has not had a driver’s license suspension for Section 11 — 501.1 within 5 years prior to the date of the current offense, after January 4r 1982, or a previous statutory summary suspension as provideé in this Code, except in cases where the driver submitted to chemical testing resulting in an alcohol concentration of 0.10 or more and was subsequently found not guilty of violating Section 11 — 501, or a similar provision of a local ordinance.” (Additions in text are indicated by underline; deletions by strikeouts.) (Pub. Act 86 — 929, eff. Sept. 21, 1989 (1989 Ill. Legis. Serv. 4865 (West)).)

We make no comment upon this provision except to state that since it was not yet effective on the dates of the orders appealed, it cannot be considered as affording the circuit court authority to order issuance of a JDP to defendant.

We incorporate by reference this court’s discussion in Kerr of the problems with procedures for determining first-offender status on petitions for issuance of JDPs. Kerr (1990), 196 Ill. App. 3d at 211-14.

Reversed.

KNECHT, P.J., and LUND, J., concur.


author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDALL L. PAGEL, Defendant-Appellant.
    Fourth District
    No. 4—89—0339
    Opinion filed April 19, 1990.
    Daniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Roger Simpson, State’s Attorney, of Monticello (Leonard R. Rumery, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Defendant appeals the dismissal of his post-trial motion to withdraw his guilty plea and vacate sentence. We reverse.

On January 17, 1989, defendant pleaded guilty to two counts of aggravated battery and one count each of unlawful restraint and intimidation. The trial court sentenced defendant to five years’ imprisonment on each of the two counts of aggravated battery and three years’ imprisonment for unlawful restraint, to be served concurrently. The trial court also sentenced defendant to three years’ imprisonment for intimidation, to be served consecutively to the other sentences.

On February 7, 1989, defendant wrote a letter to his public defender requesting to withdraw his guilty plea. The public defender received this letter on February 14, 1989, and sent the letter to the court with a cover letter seeking the court’s advice. On February 15, 1989, defendant wrote a letter to the trial court asking to have his guilty plea withdrawn. The court received defendant’s letter on February 21, 1989. The envelope in which defendant’s letter to the trial court was sent was not postmarked.

On February 16, 1989, defendant prepared and signed a motion to withdraw his guilty plea and vacate his sentence, a motion for preparation of the common law record and record of proceedings, a motion for appointment of counsel, an affidavit in forma pauperis, and a verification and proof of service signed under oath. The notarizations on the verification and proof of service indicate that defendant deposited a copy of his motion into the United States mail, addressed to the circuit clerk of Piatt County, on February 16, 1989, the 30th day after sentencing. The envelope containing the motion, however, is postmarked February 17, 1989, the 31st day after sentencing. Defendant’s motion to withdraw his guilty plea was file stamped by the circuit clerk on February 21, 1989.

The circuit court appointed counsel for defendant on March 2, 1989. On March 27, 1989, the State filed a motion to dismiss, alleging that defendant’s motion to withdraw his guilty plea and vacate his sentence was not timely filed. On April 6, 1989, the trial court granted the State’s motion to dismiss, and defendant appeals that dismissal.

The sole issue presented on appeal is whether defendant timely filed his post-trial motion to withdraw his guilty plea and vacate his sentence. Supreme Court Rule 604(d) provides that a defendant has 30 days in which to file a post-trial motion to withdraw his guilty plea. (107 Ill. 2d R. 604(d).) We initially note that the Illinois Supreme Court has held that notices of appeal mailed within the 30-day period prescribed by Supreme Court Rule 303(a) and received thereafter are timely filed. (Harrisburg-Raleigh Airport Authority v. Department of Revenue (1989), 126 Ill. 2d 326, 533 N.E.2d 1072; 107 Ill. 2d R. 303(a).) Thus, a notice of appeal placed in the mail on the 30th day of the 30-day period is timely filed. In its opinion, however, the court specifically stated that it expressed no opinion as to whether the same policy would apply to other papers filed in the circuit court such as post-trial motions. (Harrisburg-Raleigh, 126 Ill. 2d at 342, 533 N.E.2d at 1078.) While the supreme court has declined to express an opinion on the issue, appellate courts have applied the “pro-mailing” policy of Harrisburg-Raleigh to post-trial motions. People v. Simmons (1987), 164 Ill. App. 3d 205, 517 N.E.2d 1106 (post-trial motion pursuant to Rule 604(d) to withdraw guilty plea); In re Marriage of Morse (1986), 143 Ill. App. 3d 849, 493 N.E.2d 1088 (post-trial motion made pursuant to section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1203)); A.S. Schulman Electric Co. v. Village of Fox Lake (1983), 115 Ill. App. 3d 746, 450 N.E.2d 1356 (post-trial motion made pursuant to section 2— 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1203)).

The fact that the “pro-mailing” policy has been applied to post-trial motions does not resolve the issue at hand. Defendant’s motion to withdraw his guilty plea and vacate his sentence was postmarked February 17, 1989, the 31st day after sentencing. However, defendant argues, and the notorizations on the verification and proof of service indicate, that defendant placed the motions in the mail on February 16, 1989, the 30th day after sentencing. Thus, if the postmark date is taken as the date of mailing, defendant’s motion was not timely filed. However, if the date on the proof of service is taken as the date of mailing, defendant’s motion was timely filed. We conclude that the proof of service date should control and find defendant’s motion to have been timely filed.

In Harrisburg-Raleigh, the supreme court concluded only that when an appeal is mailed on the 30th day, it has been timely filed. The court made no decision as to what constitutes the mailing date. The State urges us to rely on the postmark date as the mailing date and cites Simmons for the proposition that a court will rely on the mail-stamp date, which the State argues is analogous to a postmark, of a letter — rather than the proof-of-service date — as the mailing date. Simmons did not deal directly with the issue at hand as both the proof-of-service date and the mail-stamp date were within the 30-day requirement of Rule 604(d), and the court gave no reason for choosing the mail-stamp date as the mailing date. The court did, however, refer to Morse as authority for its decision. The issue in Morse is identical to that of the instant case: whether the postmark date, which exceeded the 30-day period for filing by one day, or the proof-of-service date, which was within the statutory 30-day period, constituted the mailing date. The Morse court concluded that the proof-of-service date controlled. There was no reason to believe that the attorney who signed and notorized the proof of service would postdate the document, and the proof-of-service date was sufficiently analogous to an affidavit attesting to the mailing date. Morse, 143 Ill. App. 3d at 852, 493 N.E.2d at 1090 (relying on Schulman, affidavit by attorney that he mailed post-trial motion within the 30-day period was sufficient to establish mailing date).

We find the Morse and Schulman decisions persuasive. Although the two cases dealt with post-trial motions in civil cases, there is no reason the rule expressed in Morse and Schulman should not be applied to criminal decisions, as evidenced by the fact that the Simmons court endorsed the approach. As the record in the instant case reveals, defendant mailed his motion to withdraw his guilty plea and vacate judgment on February 16, 1989, the 30th day of the 30-day period provided for in Rule 604(d). While the State argues that a postmark is less subject to falsification than a notorized proof of service, the State does not contest the fact that defendant mailed the letter on February 16, 1989. Accordingly, defendant has timely filed his post-trial motion.

Reversed and remanded.

KNECHT, P.J., and GREEN, J., concur.


author: JUSTICE LEWIS

text:
    LARRY E. EARLEY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Crown Transport, Inc., Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—89—0414WC
    Opinion filed April 19, 1990.

      Matthew W. Kelly, of Coppinger, Carter, Schrempf & Blaine, Ltd., of Alton, for appellant.
    Rammelkamp, Bradney, Dahman, Kuster, Keaton & Fritsche, P.C., of Jacksonville (Forrest G. Keaton, of counsel), for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The claimant, Larry E. Earley, filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.) for a back injury he alleged arose out of and in the course of his employment with the respondent, Crown Transport, Inc. The respondent disputed that there was an employer-employee relationship between the respondent and the claimant. After a hearing on the claimant’s application, the arbitrator determined that there was not an employer-employee relationship between the claimant and the respondent at the time of the claimant’s accident, and she denied the claimant benefits. The Industrial Commission, without considering further evidence, affirmed the arbitrator’s decision. The circuit court confirmed the Industrial Commission’s decision, and the claimant appeals. The sole issue presented for review is whether the Industrial Commission’s determination that there was not an employer-employee relationship between the claimant and the respondent was erroneous either as a matter of law or because it was against the manifest weight of the evidence.

At the hearing before the arbitrator, the evidence presented consisted of the claimant’s testimony; the evidence deposition of Dr. Walter Wheelhouse, the claimant’s treating physician; and various documents. Because of the nature of the issue involved, i.e., the employer-employee relationship, the doctor’s testimony and the medical records introduced need not be discussed as this evidence is irrelevant to this issue.

The claimant testified that on December 31, 1982, he signed a one-year equipment lease agreement with the respondent which became effective on January 4, 1983. Under the lease agreement, the claimant provided the tractor and trailer truck; performed all the maintenance and repair of the equipment; provided fuel and lubricants; and provided a driver to haul shipments for the respondent. The claimant paid for the truck’s licenses; however, the licenses were in both his and the respondent’s names, and upon termination of the lease agreement, the claimant returned the license plates to the respondent. The claimant was responsible for paying all of the taxes on the truck and for paying the necessary road tolls. Upon delivering the respondent’s shipment to its destination, if help was needed to unload the trailer, it was the claimant’s responsibility to hire and to pay someone for this purpose. The claimant could hire other drivers to drive his truck, but these drivers had to be approved by the respondent before driving any of the respondent’s shipments. Although the respondent told the claimant the date and time for picking up a load and for unloading the shipment, it was the claimant who chose the route to and from his destination. When the claimant was to perform a job for the respondent, either Clayton Erixson would call the claimant or the claimant would call Erixson or the respondent's dispatcher, Perry Franks, in Memphis, Tennessee.

The claimant testified that under the lease agreement, the respondent was responsible for the liability insurance for damage resulting from the operation of the claimant’s truck, but the respondent was not liable for damage to the claimant’s truck. The claimant had no health insurance, but he did pay for workers’ compensation insurance for himself and his drivers. The claimant’s workers’ compensation insurance was purchased by the claimant through the respondent by deducting the premiums from the payments made to the claimant from the respondent.

In addition to the lease agreement, the claimant had completed an employment application for his work with the respondent. Likewise, any drivers hired by the claimant had to fill out a similar employment application for the respondent.

The respondent required the claimant to have a physical examination and to show evidence of certification as a truck driver. The claimant explained that he had the requisite certifications from the United States Department of Transportation (DOT), from the Interstate Commerce Commission (ICC), and from different States. The certifications which' the respondent required were a medical certification, which indicated that the claimant was physically fit to drive a truck; a road test certification, which indicated that the claimant had taken and passed a driving test; and a “certificate of qualifications,” which indicated that the claimant had passed the 100-question DOT test. On cross-examination, the claimant admitted that the certifications required by the respondent were the same certifications that a truck driver was required by the ICC or DOT to have, whether the driver worked for a company or was self-employed.

According to the claimant, the ICC required that the decal number of the carrier’s ICC permit be displayed on a truck, and it was the respondent’s ICC decal number which was displayed on the claimant’s truck, as were the respondent’s State stickers. The State stickers indicated to a police officer or other authority that the liability insurance required and the fuel taxes required had been purchased or paid for by the carrier.

According to the claimant, his payment for his services for the respondent was a percentage of the gross revenue of the shipment he delivered for the respondent. From these payments, the respondent deducted the claimant’s workers’ compensation insurance premiums and any cash advances paid to the claimant, but the respondent did not deduct for the claimant’s income taxes or social security. The claimant received the same percentage payment from the respondent whether the claimant drove or another driver drove the claimant’s truck. While the lease was in force, the claimant primarily drove for the respondent, but he was permitted to do “trip leases,” i.e., haul other shipments for other carriers. If the claimant picked up a trip lease, it was arranged through the respondent, and the payment for the trip lease was paid to the respondent, who then paid the claimant the same percentage payment as if the claimant was hauling for the respondent.

The claimant had been given oral instructions by Harry Stokes, the vice-president or president of respondent, with regard to what was to be done if the claimant had an accident while on the road, either going to or coming from a destination. In that event, the claimant was to call the respondent’s personnel immediately, and the respondent would take care of the insurance and other pertinent matters. The claimant had also received these same instructions on a printed form in his employment application packet. The claimant testified that he was required to call the respondent when he had an accident in order to enable the respondent to tell a customer where a shipment was if a customer called and inquired about his order.

On April 5, 1983, the claimant picked up a shipment for the respondent. Before leaving for his destination with the shipment, the claimant had pulled into Interstate Garage to have the fuel injectors on his truck changed. Erixson was aware that the claimant had taken the truck to the garage. Once inside the garage, Henry Carl, who was not identified in the record, but who was apparently the mechanic working on the claimant’s truck, removed the air cleaner from the claimant’s truck. Carl, who was on top of the truck, gave the air cleaner to the claimant and asked him to place the air cleaner on the floor by the wall. The air cleaner was described by the claimant as being 6 inches high, 28 inches wide, 34 inches long and weighing almost 70 pounds. The claimant took the air cleaner as requested, and as he turned to set it by the wall, the claimant’s back “popped.”

The claimant left the garage, went to Erixson’s office and told Erixson what had happened, and then called his wife to come and take him home. The claimant was in pain, but he did not seek immediate treatment for his back. Instead, he went home and made arrangements to have the shipment on his truck taken to Alabama. To do this, he hired Ed Shoptaw to drive his truck. After Shoptaw was cleared by the respondent, Shoptaw continued with the delivery of the load, and during the time the claimant was unable to work because of his back, Shoptaw drove the claimant’s truck to deliver subsequent shipments for the respondent. The claimant returned to work on May 13, 1983. On June 15, 1983, the respondent and the claimant terminated their lease agreement by mutual consent.

The claimant introduced into evidence the bills of lading or delivery receipts of the jobs the claimant had performed for the respondent under the lease agreement. These documents showed that the claimant had delivered goods for the respondent on January 21, 1983; January 26, 1983; January 28, 1983; February 1, 1983; February 8, 1983; February 15, 1983; February 17, 1983; February 21, 1983; February 23, 1983; March 1, 1983; March 15, 1983; March 26, 1983; March 30, 1983; April 5, 1983; April 11, 1983; April 20, 1983; April 26, 1983; April 29, 1983; May 6, 1983; May 13, 1983; and June 1, 1983. The bills of lading from April 5, 1983, through May 13, 1983, indicated that Ed Shoptaw drove the claimant’s truck on those dates. Lastly, the lease agreement between the respondent and the claimant was admitted into evidence. The pertinent provisions of the lease agreement will be discussed later in this opinion.

On appeal, the claimant contends that the Industrial Commission’s determination that the claimant was an independent contractor was either erroneous as a matter of law or was against the manifest weight of the evidence. The claimant supports his argument that the Industrial Commission’s determination was erroneous as a matter of law by citing to the rules and regulations of the ICC. The ICG’s rules, to which the claimant refers, require a lease agreement, such as the one here, to include a provision that the authorized carrier has exclusive possession, control, and use of the leased equipment for the duration of the lease. Therefore, because Federal law requires the respondent to have the exclusive possession and control provisions in the lease, the claimant argues that this confers upon the respondent the right to control the work of the claimant, thereby creating an employee status for the claimant as a matter of law. While the ICC rules and regulations are a factor to consider in determining a claimant’s employment status, these rules are not conclusive as a matter of law as the claimant contends. Area Transportation Co. v. Industrial Comm’n (1984), 123 Ill. App. 3d 1096, 465 N.E.2d 533.

The difficulty in determining a claimant’s employment status was succinctly stated by the supreme court as follows:

“Determining whether one is an independent contractor or an employee is often a vexing problem. [Citation.] Since many jobs contain elements of each, there is no clear line of demarcation between the status of employee and independent contractor. [Citations.] For this reason, when the facts of a particular case are susceptible to either interpretation, it is within the Industrial Commission’s province to draw inferences and evaluate the credibility of the witnesses in arriving at a decision. [Citations.] On review, that decision will only be reversed if it is against the manifest weight of the evidence.” (Kirkwood v. Industrial Comm’n (1981), 84 Ill. 2d 14, 20, 416 N.E.2d 1078,1080.)

Thus, whether a claimant is determined to be an independent contractor or an employee is crucial, for it is the initial decision of the employment status of a claimant which determines whether he is entitled to compensation benefits. See Alexander v. Industrial Comm’n (1978), 72 Ill. 2d 444, 381 N.E.2d 669.

In determining whether an individual is an independent contractor or an employee, no one factor is determinative, but several factors must be considered. Those factors include the right to control the manner in which the work is done, the method of payment, the right to discharge, the skill required in the work to be done, and who provides tools, materials, or equipment. (Wenholdt v. Industrial Comm’n (1983), 95 Ill. 2d 76, 447 N.E.2d 404.) Another factor to be considered is the nature of the worker’s work as it relates to the employer’s business. Wenholdt, 95 Ill. 2d 76, 447 N.E.2d 404.

Determining the claimant’s employment status in this case is not an easy task as there are factors present indicating both an independent-contractor and an employee status. The evidence revealed that the respondent directed the claimant where and when to pick up and deliver the shipment to be hauled for the respondent. During the term of the lease agreement, the claimant appeared to work solely for the respondent. Even the trip leases the claimant performed were apparently arranged by the respondent. This would imply that the claimant was an employee of the respondent. However, the claimant was paid for the trip leases in the same manner as for the shipments he made for the respondent, in that the respondent billed the other motor carrier for the hauling, and then, in turn, paid the claimant a percentage of the gross revenue of the job performed, which implied an independent-contractor status.

In the lease agreement itself, there was a provision that the respondent would pay the claimant a percentage of the gross revenue upon receipt of the required documents, in consideration for the “exclusive use and control of said' equipment and the furnishing of a qualified driver while utilized by the Carrier [respondent] in line haul service from Shipper to Consignee.” This language, required by the ICC, suggested that the respondent had a limited but exclusive right to control the claimant’s equipment. As we noted earlier, the rules and regulations of the ICC are a factor to be considered as indicating that the respondent had the right to control the claimant’s work, and is indicative of an employee status between the claimant and the respondent.

In contrast, while the respondent could direct the claimant on where and when a shipment was to be picked up and delivered, it was the claimant who chose the route he was to follow in delivering the shipments. Additionally, if the claimant needed help in unloading a shipment, the claimant was responsible for hiring the help he required and for paying whomever he hired. These factors indicated an independent-contractor status.

The method of payment for the work done and the furnishing of the equipment used in performing the work both indicated that the claimant was an independent contractor. As we noted previously, the claimant was paid a percentage of the gross revenue of each shipment hauled, and from this payment, the claimant paid his own income taxes and social security. With regard to the furnishing of equipment, the evidence disclosed that the claimant owned the tractor and trailer leased by the respondent, and he also paid for the truck’s maintenance and repair. We also note that any drivers hired by the claimant, subject to the respondent’s approval, were paid by the claimant.

Another factor to consider in determining the claimant’s employment status was whether the respondent had a right to discharge the claimant for any reason at any time. Three clauses of the lease agreement must be considered in determining this factor. Clause 16 of the lease agreement provided that the lease agreement could be terminated by either party for any reason, upon the giving of 30 days’ notice. Professor Larson had considered such language when he stated:

“[T]he unqualified right to fire must be distinguished from the right to terminate the contract of an independent contractor for bona fide reasons of dissatisfaction, particularly when the right of termination for dissatisfaction is expressly reserved.” (1C A. Larson, Workmen’s Compensation §44.35(g), at 8 — 172 (1986).)

Clause 16 does not appear to give the respondent an absolute right to discharge, but seems to be a mutual provision which either party to the agreement could invoke if dissatisfied.

Similarly, clause 17 of the lease agreement stated that the lease could be terminated immediately by either party if there is a substantial breach of the lease agreement. Again, this does not appear to be an absolute right to discharge as it is a mutual provision and would require the showing of a substantial breach of the agreement. Lastly, clause 18 provided that the respondent could immediately terminate the lease agreement in the event the claimant “substantially or repeatedly” violated the safety rules or regulations of any Federal, State or provincial government. From this clause it could be inferred that the respondent could discharge the claimant at any time, thereby implying an employee status. However, it is interesting to note that clause 18 did not include termination for the violation of the respondent’s policies and procedures, which language would have created a stronger inference that the claimant was an employee.

We next consider the nature of the claimant’s work relative to the respondent’s business. In trucking cases such as this, this is a close consideration. By inference, we conclude that the respondent was in the business of transporting shipments for profit. This was the same business in which the claimant was employed, and the claimant could operate his business as an independent contractor, which he did after the termination of the lease agreement between him and the respondent. The record reveals that in August 1983, two months after the termination of the lease agreement, the claimant became self-employed and operated under the name of Earley Transportation. Further, since the respondent, during the term of the lease agreement, only told the claimant when and where to pick up and deliver shipments, it could be said that the respondent was only interested in the end result, i.e., that the shipments be transported within a given time to a customer, and that the details of how this was. accomplished were left to the claimant, thereby implying that the claimant had an independent contractor status.

Two remaining factors in the consideration of the claimant’s employment status need to be addressed. These factors, although minor, nevertheless enter into our consideration. The first of these is the la-belling of the claimant’s employment status given by the parties in their lease agreement. In clause 14 and clause 21 of the lease agreement, it was stated that the claimant was to be considered an independent contractor. Whether this factor should be considered dispositive of the claimant’s employment status is controversial, as can be determined from the following passage from Professor Larson’s treatise on workers’ compensation law:

“The two indisputable principles [regarding the label given by the parties to a person’s employment status] between which the area of controversy lies are these: first, under a system of free enterprise and free contract, workers and employers must be allowed to make any arrangement they choose, and, if a worker prefers to be an entrepreneur without compensation protection rather than an employee with compensation protection, that is his privilege; and second, it will not do to have the purposes of compensation legislation thwarted by the device of classifying workers as partners or contractors when in substance they are employees.” (1C A. Larson, Workmen’s Compensation §46.10, at 8-244 (1986).)

The case law reflects the difficulty raised by Professor Larson. It has been held that the label given by the parties in a written agreement will not be dispositive of the employment status, but that the facts of the case must be considered to determine what the individual’s employment status is. Yellow Cab Co. v. Industrial Comm’n (1984), 124 Ill. App. 3d 644, 464 N.E.2d 1079.

Further, although a contractual agreement is a factor to consider, it does not, as a matter of law, determine an individual’s employment status. (Wenholdt, 95 Ill. 2d 76, 447 N.E.2d 404.) Again, however, we quote Professor Larson:

“In a close case, it [the employment status designated in a contract] may swing the balance by aiding in establishing the true intent of the parties — and, after all, that intent is entitled to considerable respect if it can be accurately ascertained.” (1C A. Larson’s Workmen’s Compensation, §46.30, at 8-263-64 (1986).)

Thus, we are confronted here with whether the classification of independent contractor by the parties was merely a sham label or whether it was the intent of the parties that the claimant be considered an independent contractor. It does not appear that the status of independent contractor given to the claimant in the lease agreement was a sham label, and the claimant did not testify that he did not understand this language of the contract; therefore, we will consider the employment status given to the claimant in the lease as indicative of the intent of the parties, and we will give consideration to this factor.

Another factor to be considered is that the claimant provided workers’ compensation insurance for himself and for his drivers, which implied an independent-contractor status. However, because the claimant testified that it was only at the respondent’s insistence that he paid for this insurance, this factor was, at best, a weak indication that the claimant was an independent contractor. Again, this factor is not conclusive, but it is another factor to be weighed.

From the foregoing analysis, it is clear that this case is a close one, and that given the evidence, the inference of the claimant’s employment status could have been as easily determined to be an employee as an independent contractor. Because the facts of this case were susceptible to either interpretation, it was the Industrial Commission’s province to determine the claimant’s employment status, and if the determination of the Industrial Commission was not against the manifest weight of the evidence, it should not be overturned. (Kirkwood, 84 Ill. 2d 14, 416 N.E.2d 1078.) We do not find that the Commission’s decision was against the manifest weight of the evidence.

For the foregoing reasons, the judgment of the circuit court of Morgan County confirming the Industrial Commission’s decision is affirmed.

Affirmed.

BARRY, P.J., and McNAMARA, WOODWARD, and McCullough, jj., concur.


author: PRESIDING JUSTICE KNECHT

text:
    TERRI L. GOODKNIGHT, Plaintiff-Appellant, v. EDWIN PIRAINO, Indiv. and d/b/a Arrow Ambulance Service, et al., Defendants (The Village of Royal et al., Defendants-Appellees).
    Fourth District
    No. 4—89—0412
    Opinion filed April 19, 1990.

      John K. Hughes and Steven Robert Verr, both of Gessler, Flynn, Fleischmann, Hughes & Socol, Ltd., of Chicago, and Thomas W. Fulton, of Urbana, for appellant.
    Robert P. Moore and David R. Moore, both of Law Offices of Robert P. Moore, P.C., of Champaign, and Heyl, Royster, Voelker & Allen, of Peoria (Karen L. Kendall, James C. Kearns, and John D. Flodstrom, of counsel), for appellee Village of Royal.
    Anne C. Burr and Howard W. Small, both of Thomas, Mamer & Haughey, and Robert P. Moore and David R. Moore, both of Law Offices of Robert P. Moore, PC., both of Champaign, for appellee Royal Centennial, Inc.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

The plaintiff, Terri Goodknight, filed a second-amended complaint, counts V through XI alleging common law negligence, wilful and wanton misconduct, and a violation of the Dramshop Act (Act) (Ill. Rev. Stat. 1987, ch. 43, par. 135) against the defendants, Village of Royal, and Royal Centennial, Inc., a nonprofit corporation, and special governmental negligence against the Village of Royal. Counts I through IV involved other defendants not party to this appeal. The trial court granted the defendants’ motion to dismiss counts V through XI of plaintiff’s second-amended complaint with prejudice and entered a Rule 304(a) finding (107 Ill. 2d R. 304(a)). Plaintiff appeals, and we affirm.

The complaint alleged on the night of February 14, 1987, the plaintiff, 18 years of age, attended a Valentine’s Day party promoted by the Village of Royal (Royal), and held in the Royal community building. At this party, liquor was sold. The complaint alleges the plaintiff was “coerced” into drinking alcohol by her male companion, Brent Hockett, and others who attended this party. The complaint further alleges, due to lack of supervision by Royal, the plaintiff became intoxicated, was taken to Hockett’s home in her car by Hockett, left Hockett’s home, and began to drive to her home in her own car. During this trip, plaintiff crashed her car, sustaining multiple injuries, including an injury to her spine which rendered her disabled.

The issues on appeal involve whether a cause of action exists against the defendants for common law negligence, special governmental negligence, or in dramshop, so as to survive a motion to dismiss under section 2 — 615 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). “Motions to dismiss under section 2 — 615 of the [Code] *** admit all well-pleaded facts and attack only the legal sufficiency of a complaint. *** ‘[N]o cause of action should be dismissed on the pleadings unless it clearly appears that no set of facts can be proved to sustain it.’ ” First National Bank v. Brumleve & Dabbs (1989), 183 Ill. App. 3d 987, 992, 539 N.E.2d 877, 880, quoting Golden Rule Life Insurance Co. v. Mathias (1980), 86 Ill. App. 3d 323, 332, 408 N.E.2d 310, 317.

The Illinois Supreme Court has determined the Act provides the exclusive remedy against tavern operators and owners for injuries to the person, property, or means of support by an intoxicated person, or the consequences of the intoxication. Cunningham v. Brown (1961), 22 Ill. 2d 23, 30-31, 174 N.E.2d 153, 157; Hopkins v. Powers (1986), 113 Ill. 2d 206, 497 N.E.2d 757.

Despite the holding of Cunningham, there exists a common law negligence cause of action against tavern owners beyond the Act. Plaintiff relies principally on three cases, Lessner v. Hurtt (1977), 55 Ill. App. 3d 195, 371 N.E.2d 125, Hayes v. O’Donnell (1979), 76 Ill. App. 3d 695, 395 N.E.2d 184, and Harris v. Gower, Inc. (1987), 153 Ill. App. 3d 1035, 506 N.E.2d 624. In Lessner, while acknowledging the holding in Cunningham, the court held regardless of whether a person purchases or consumes liquor in a dramshop, the owner or operator of the dramshop may be negligent and consequently held liable for failure to protect its patrons from physical harm by persons on the premises. (Lessner, 55 Ill. App. 3d at 197, 371 N.E.2d at 126.) Therefore, if an owner knows a person is becoming abusive and is likely to attack someone, Lessner recognized a duty to take steps to remove the problem, to “act as a reasonable man in avoiding harm to invitees from negligence or even intentional attacks of third persons.” (Lessner, 55 Ill. App. 3d at 197, 371 N.E.2d at 126.) This result conforms to general principles of duty on the part of a possessor of land who holds it open to the public. Hayes, 76 Ill. App. 3d at 697, 395 N.E.2d at 185.

Contrary to plaintiffs argument, Lessner does not change the rule of Cunningham, but distinguishes between the injuries resulting from a negligent sale or supplying of liquor and those resulting from the failure of a general duty to keep business premises safe. In Lessner, as in Hayes, the plaintiff was injured as a result of an attack on a patron on the premises by an intoxicated person. (Lessner, 55 Ill. App. 3d at 197, 371 N.E.2d at 126; Hayes, 76 Ill. App. 3d at 696, 395 N.E.2d at 185.) In Harris, the plaintiff passed out at the bar, and was injured after the defendant owners carried him out of the tavern and put him in the car where he froze to death. Harris, 153 Ill. App. 3d at 1036-37, 506 N.E.2d at 625.

The Hayes court held, since the customers were “boisterous and dangerous,” the owner of the establishment should have been placed on notice of the possible attack on the plaintiff and, therefore, should have done something to prevent this attack. (Hayes, 76 Ill. App. 3d at 697, 395 N.E.2d at 185.) This plaintiff alleges the crowd at the dance was an “unruly throng,” and argues, as in Hayes, this should have put the defendants on notice plaintiff was going to be intimidated into a state of intoxication, and later, as a result of this intoxication, become involved in an automobile accident. This takes the Hayes and Lessner analysis too far. Plaintiff was injured as a result of a sale of liquor leading to intoxication, not as a result of a violation of a common law duty to maintain a safe premises. Since plaintiff argues the negligent sale of liquor made the premises unsafe, she is essentially arguing the Act should be changed, a matter within the province of the legislature or, by its interpretation of the Act, the supreme court.

In Harris, the same analysis applies since, although the injury took place off the premises, it was the actual tavern owners who took the patron out of the building and placed him in his freezing car. No case law applies Lessner to a fact pattern in which a patron leaves a dramshop on his own and is injured off the premises, or by an intoxicated person off the premises. Rather, in a case where a person left a tavern on his own and later suffered injuries after becoming unconscious in a bank of snow, the court held the tavern owner was not negligent under the duty imposed under common law for such establishments. (Gora v. 7-11 Food Stores (1982), 109 Ill. App. 3d 109, 111-12, 440 N.E.2d 279, 281-82.) In view of the crucial distinction made by the Lessner court, we find plaintiff’s argument for the applicability of common law negligence cause of action unpersuasive.

The plaintiff argues an exception to the Act should be carved out to allow a common law negligence action when alcohol is sold to a minor. In Puckett v. Mr. Lucky’s Ltd. (1988), 175 Ill. App. 3d 355, 529 N.E.2d 1169, the dissent argued forcefully for “a limited exception to the common law rule of nonliability of dramshops when alcohol is sold to a minor who consequently causes injury to a third person.” (Puckett, 175 Ill. App. 3d at 365, 529 N.E.2d at 1175 (Knecht, J., dissenting).) Here, however, the minor plaintiff was intoxicated and caused injury to herself, not to a third person, as a result of this intoxication.

Further, in Puckett, it was the plaintiff’s father, employed by the defendant dramshop, who sold the liquor to the plaintiff minor and his two friends. The plaintiff’s mother and guardian brought suit after one of the friends, while driving, was involved in an accident, injuring the plaintiff passenger. (Puckett, 175 Ill. App. 3d at 356, 529 N.E.2d at 1169.) In Puckett, it was alleged plaintiff’s father had been convicted several times of selling liquor to minors prior to being hired by the defendant, which should have put the defendant on notice he might do so again if hired, thereby creating a possible allegation of negligent hiring. (Puckett, 175 Ill. App. 3d at 365-66, 529 N.E.2d at 1175-76 (Knecht, J., dissenting).) Thus, Puckett is distinguishable and the dissent’s argument is inapplicable.

Plaintiff argues she has alleged more than the mere sale of alcohol, i.e., the defendants were negligent in the sale of such liquor, thereby permitting a common law or wilful «and wanton negligence action. Yet, the case law does not limit the Act to cases involving a “mere sale of alcohol.” As has frequently been stated, “there is no common law liability for the negligent sale of liquor in Illinois.” (See Wimmer v. Koenigseder (1985), 108 Ill. 2d 435, 442, 484 N.E.2d 1088, 1092 (and cases cited therein).) The plaintiff has alleged defendant sold liquor in violation of several statutes, thus making this conduct negligent per se. The plaintiff further alleges the defendants were negligent in a wilful and wanton fashion, knowingly and intentionally contributing to her intoxication. It is also well settled “there is no common law cause of action based upon wilful and wanton misconduct by a tavern owner, however egregious the underlying facts of the cause of action are.” (Ruth v. Benvenutti (1983), 114 Ill. App. 3d 404, 406, 449 N.E.2d 209, 211.) Therefore, the negligent sale of liquor to plaintiff, or through others to her, does not give rise to a cause outside the dramshop law, no matter how many acts of negligent sale she alleges.

The plaintiff claims Cunningham, Ruth, and Gora do not apply, since intoxication in those cases was voluntary, while her intoxication was involuntary. She argues that since all well-pleaded facts in the complaint must be taken as true, for purposes of a motion to dismiss, the “fact” of her involuntary intoxication, as pleaded in the complaint, must also be taken as true, so as to overcome the motion to dismiss. In considering a motion to dismiss, the trial court must assume the truth of all facts properly pleaded, and all reasonable inferences which can be drawn from such facts; however, “mere conclusions of law, argumentative matter, or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest are irrelevant and must be disregarded by the trial court in ruling on a motion to dismiss.” Loftus v. Mingo (1987), 158 Ill. App. 3d 733, 738, 511 N.E.2d 203, 205.

Only well-pleaded facts must be taken as true. Plaintiff’s complaint alleges she was present at the dance sponsored by defendant. The crowd there was unruly and unrestrained. The plaintiff was underage and inexperienced at drinking. She did drink, and became intoxicated while at the party. She contends it can be inferred from such allegations her drinking and intoxication were involuntary. This is a conclusion of fact on the part of the plaintiff, and need not be taken as true.

The plaintiff relies on a recent fourth district decision, Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity (1987), 155 Ill. App. 3d 231, 507 N.E.2d 1193, in support of her argument that circumstances such as those here alleged created such coercive pressure to drink as to make her intoxication involuntary. Yet, in Justice Green’s special concurrence in Quinn, the Quinn plaintiff was still found to be voluntarily intoxicated. (Quinn, 155 Ill. App. 3d at 239, 507 N.E.2d at 1198 (Green, J., specially concurring).) “Although, as stated by the majority, great social pressure encourages those seeking initiation to perform required acts, the acts performed are, nonetheless, voluntary.” (Quinn, 155 Ill. App. 3d at 240, 507 N.E.2d at 1199 (Green, J., specially concurring).) We find plaintiff’s attempt to analogize to Quinn inappropriate.

The plaintiff argues the dictatorial and coercive behavior of Hockett and those who surrounded her, combined with defendants’ facilitating presence and promotion of the drinking, imposed a “requirement” she consume the liquor, just as the fraternity required the plaintiff in Quinn to drink. The plaintiff’s argument goes too far. In Quinn, the drinking was a requirement to get into a specific fraternity. Membership in a fraternity was viewed as a “ ‘much valued status’ ” and great pressure was assumed to be on the plaintiff to comply with the fraternity’s membership “ ‘qualifications.’ ” (Quinn, 155 Ill. App. 3d at 237, 507 N.E.2d at 1197.) Plaintiff would have us apply the same exception here, i.e., she, a totally innocent minor, was pressured and required to drink in order to join the “fraternity” of her peers at the dance. Quinn did not recognize an exception to the Act for every 18-year-old who “feels pressured” to drink, but a narrow one — a duty on the part of fraternities and sororities to refrain from requiring participation in such acts, holding the cause of action was based on two factors: (1) plaintiff was required to drink to intoxication; and (2) the legislature has enacted a statute against hazing. Quinn, 155 Ill. App. 3d at 237-38, 507 N.E.2d at 1198.

Arguing she falls within this exception, plaintiff draws a novel analogy to Illinois agency law, on a theory that defendants are the principals and Hockett and others the agents who required the plaintiff to drink. The agents allegedly committed the tort by negligently serving the plaintiff minor the alcohol, and the defendants, by refilling the pitcher, ratified this tort. Under this theory the negligent act on the part of defendants on the premises satisfied the common law negligence requirements of Loftus, and the exception to the Act carved out by Quinn. Plaintiff does not, however, provide any authority for this interpretation of Illinois agency law.

In Illinois cases dealing with agents of the owners of taverns, we are aware of no case holding a patron becomes an agent of a dramshop owner simply by bringing a pitcher of alcohol to a table and encouraging another to drink. Nor do Illinois cases hold a dramshop owner can ratify a tort by refilling a pitcher of beer. (Daley v. Resnick (1972), 5 Ill. App. 3d 683, 284 N.E.2d 39; Daley v. Ferguson (1974), 21 Ill. App. 3d 888, 315 N.E.2d 679.) There can be no apparent or even implied agency here, as there were no words or actions alleged by the plaintiff, including the filling of the pitchers, which would lead a reasonably prudent person, such as the plaintiff, to believe Hockett had the authority to require her to drink what was in the pitcher. (Bellflower Ag Service, Inc. v. First National Bank & Trust Co. (1985), 130 Ill. App. 3d 80, 85, 473 N.E.2d 998, 1001-02.) Quinn does not apply since, even if Hockett somehow required plaintiff to drink, defendants did not. Again, just because the plaintiff alleges an agency relationship does not mean it is a well-pleaded fact to be taken as true, since such relationship is not a fact but a legal conclusion.

Plaintiff seeks to show the defendant Royal, by virtue of status as a governmental entity, possessed a “special duty” above that of ordinary dramshop owners, which would remove the defendant from dramshop immunity. To support this position, the plaintiff cites Lakeside Condominium “C” Association v. Frediani Developers, Inc. (1985), 135 Ill. App. 3d 972, 482 N.E.2d 665. Lakeside, however, reiterated the principle such special duty applies to a situation where a city or municipality “steps out of its governmental function and acts in a private capacity or develops a ‘relationship’ to the plaintiff.” (Lakeside, 135 Ill. App. 3d at 973, 482 N.E.2d at 666.) The courts have found a special duty created as a result of ordinance violations where, for example, a city had actual knowledge of the dangerous condition of a building, had been requested to remedy the condition by plaintiff, and failed to do so (Marshall-Putnam Farm Bureau, Inc. v. Shaver (1973), 12 Ill. App. 3d 402, 299 N.E.2d 10); or a village failed to inspect and allowed a developer to connect an insufficient sewer system — the village’s duty disclosed by its adoption and control over the sewer system (Powell v. Village of Mt. Zion (1980), 88 Ill. App. 3d 406, 410 N.E.2d 525). These principles would be misapplied here. Sponsoring a dance does not render these defendants insurers for whatever may happen to those who attend once they leave the premises.

Further, while the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 102) provides liability for a public entity, and it may be arguable that the defendants are liable under the Tort Immunity Act, the Tort Immunity Act simply codifies the common law duty of a local public entity to maintain its property. (Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 92, 523 N.E.2d 594, 603.) There is no authority which holds a municipality is under a greater or special duty than the ordinary dramshop owner, simply by virtue of being a governmental entity. This aspect of the plaintiff’s argument has no merit.

The plaintiff argues she is a proper plaintiff for a dramshop action. The Illinois Supreme Court has held plaintiffs who cause injury or damages due to their own intoxication cannot bring an action under the Act, as such recovery is limited to innocent third parties or “innocent suitor[s]” injured as a result of sale or gift of intoxicating beverages. (Hopkins, 113 Ill. 2d at 212, 497 N.E.2d at 759.) Plaintiff contends she is an innocent suitor since she was involuntarily intoxicated. As discussed previously, this is not a well-pleaded fact, but a conclusion on her part and need not be taken as true for purposes of the motion to dismiss.

The plaintiff contends her injury was proximately caused by an intoxicated third person, Hockett, who allegedly drove her car to his home, and then negligently entrusted her with her own car, so she drove home intoxicated and thereby crashed her car. In King v. Petefish (1989), 185 Ill. App. 3d 630, 541 N.E.2d 847, this court extended the doctrine of negligent entrustment to apply to injured entrustees as well as third parties injured by such entrustees. However, the King court also held such a finding required the defendant to have “ ‘supplied the instrumentality, the use which combined with the negligent act of the driver caused the injury.’ ” (King, 185 Ill. App. 3d at 640, 541 N.E.2d at 853, quoting Bensman v. Reid (1939), 299 Ill. App. 531, 533, 20 N.E.2d 910, 911.) The King court did not extend this doctrine to an injured purported entrustee who supplied the instrumentality which ultimately caused her own injury. Since the plaintiff was driving her own car when injured, there was no duty on Hockett to stop her. Therefore, it cannot be said a negligent act of an intoxicated third person was the proximate cause of plaintiff’s injury, and as such, plaintiff does not fit the proper-plaintiff requirements of Hopkins.

Plaintiff also cites the Premises Liability Act, which imposes a statutory duty to take reasonable care regarding the state of the premises or acts done or omitted on them. (Ill. Rev. Stat. 1987, ch. 80, par. 302.) The only case plaintiff cites on application of this statute to a dramshop involved an elderly, vision-impaired person, and a negligent omission on the part of the defendant to make the premises physically safe for such a person. (Erne v. Peace (1987), 164 Ill. App. 3d 420, 517 N.E.2d 1203.) As stated previously, this case deals with an injury which was the result of a sale of intoxicating beverage, not an injury due to defendants’ negligence on the premises. Therefore, the Act is the exclusive remedy, and no such statutory cause for negligence supplies a basis for this complaint.

Finally, plaintiff cites as supplemental authority a recent fourth district case on the issue of complicity, Lewis v. Champaign County VFW Post No. 5520 (1989), 187 Ill. App. 3d 73, 543 N.E.2d 233. Complicity is an affirmative defense and was not raised by the defendants at any time. Complicity is therefore of no moment in this case, and we decline to address it.

For the foregoing reasons, we affirm the trial court’s dismissal of counts V through XI of the plaintiff’s second-amended complaint.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.