author: PRESIDING JUSTICE McCUSKEY

text:
    BARBARA ROBERSON, Plaintiff-Appellant, v. J.C. PENNEY COMPANY, Defendant-Appellee.
    Third District
    No. 3—93—0007
    Opinion filed October 28, 1993.

      Nile J. Williamson, of Peoria, for appellant.
    Rex K. Lindner and Bradley S. McMillan, both of Heyl, Royster, Voelker & Allen, of Peoria (Karen L. Kendall, of counsel), for appellee.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The plaintiff, Barbara J. Roberson (Roberson), appeals from an order of summary judgment dismissing her complaint against the defendant, J.C. Penney Co., Inc. (J.C. Penney). The complaint arose from injuries Roberson received when she slipped and fell inside a store owned by J.C. Penney. The trial court found (1) there were no material facts in dispute; (2) J.C. Penney owed Roberson no duty of care under Illinois law; and (3) summary judgment was proper as a matter of law. We agree with the trial court’s analysis and affirm the order of summary judgment.

Roberson entered the J.C. Penney store in Northwoods Mall in Peoria, Illinois, at about 12:45 p.m. on December 30, 1990. Water had been tracked into the store from outside J.C. Penney’s lower level entrance, where snow and water had accumulated. To enter the store, Roberson walked through a set of exterior doors, a set of interior doors, and into the store. Near the interior doors inside the store, J.C. Penney had placed two four-foot by eight-foot non-skid mats on the floor. When Roberson entered the store, she walked upon these mats. As she stepped off the mats and onto the floor, Roberson slipped and fell, causing injuries. She did not notice whether the mats were saturated with water. However, she did notice water around the interior entrance on the floor away from the mats. Roberson believed this water had been tracked into the store by other persons entering from outside. Three days later, when Roberson again went to the store, she noticed that J.C. Penney had placed a third mat in the vicinity of the other two mats.

On June 19, 1991, Roberson filed a complaint in the circuit court of Peoria County, alleging that by placing the mats near its entrance, J.C. Penney had voluntarily assumed a duty to remove the accumulated moisture that patrons tracked into the store. In its answer, J.C. Penney denied that it had any duty to remove the water tracked into the store or to take any precautions regarding the water accumulation.

In her discovery deposition, Roberson stated that she did not see any rips or tears in the mats. However, she could not remember whether the mats were saturated with water. On August 3, 1992, J.C. Penney filed a motion for summary judgment. On October 6, 1992, the court granted J.C. Penney’s motion. On October 27, 1992, Roberson filed a motion asking the court to reconsider its October 6 order. The court denied her motion on December 22, 1992. Roberson filed a timely notice of appeal on December 31,1992.

On appeal, Roberson contends that summary judgment should not have been granted. She argues that, based on the record, J.C. Penney voluntarily assumed a duty. Specifically, Roberson asserts that J.C. Penney undertook to remove the water accumulation in the store by placing the two non-skid mats in the interior of its store near the entrance. She further argues that J.C. Penney breached this duty by failing to install an adequate number of mats to remove the water hazard on the floor. J.C. Penney argues that it owed no duty to remove moisture tracked into the store from outside by virtue of the natural accumulation rule. J.C. Penney contends that summary judgment was properly granted.

Whether or not a duty of care exists is a question of law to be determined by the court. (Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 421, 592 N.E.2d 1098, 1100.) Where the record presents only a question of law, a trial court may properly grant summary judgment. (Marshall v. City of Centralia (1991), 143 Ill. 2d 1, 6, 570 N.E.2d 315, 317.) On appeal, whether a duty of care exists is subject to de novo review. (Wolowinski v. City of Chicago (1992), 238 Ill. App. 3d 639, 641, 606 N.E.2d 273, 274.) Thus, we must determine whether J.C. Penney assumed a duty of care.

Roberson principally relies on the Restatement (Second) of Torts, section 324A, which provides in pertinent part:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
* * *
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” (Restatement (Second) of Torts §324A(a), (c) (1965).)

Our supreme court has implicitly adopted section 324A. (Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 415-16, 583 N.E.2d 538, 543, citing Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 210-11, 399 N.E.2d 596, 600.) However, the duty of care to be imposed on the defendant is limited to the extent of its undertaking. Frye v. Medicare-Glaser Corp. (1992), 153 Ill. 2d 26, 32, 605 N.E.2d 557, 560.

Based on our review of the record, we conclude that J.C. Penney’s duty extended only to maintaining with reasonable care the mats it installed. J.C. Penney had no duty to install as many mats as necessary to absorb tracked-in water. There is no evidence in the record indicating that J.C. Penney placed the mats near its entrance for this purpose. Only two mats were in use at the time of Roberson’s accident. These mats covered only a small part of the floor. Moreover, we note the absence of any evidence that J.C. Penney failed to maintain the mats with reasonable care. In her deposition, Roberson said she did not notice any rips or tears in the mats. She does not allege that the mats were defective in any way.

For these reasons, we conclude that J.C. Penney did not assume a duty to remove all tracked-in water from its store by placing two mats near its outside entrance. The duty that Roberson alleges is beyond the scope of J.C. Penney’s actual undertaking. Applicable case law supports our decision. In Wilson v. Gorski’s Food Fair (1990), 196 Ill. App. 3d 612, 617, 554 N.E.2d 412, 416, the defendant store-owner did not mop the floor on a rainy day but instead only placed a floor mat which became saturated near the entrance. The court held that the evidence was insufficient to impose a duty upon the defendant to continuously remove the water which accumulated in and near the mat.

Finally, Roberson argues that customers relied on the mats to provide safety and thus had an expectation that the mats would prevent falls. (Restatement (Second) of Torts §324A(c) (1965).) Reliance requires the plaintiff to “forgo other remedies or precautions against such a risk.” (Restatement (Second) of Torts §324A, Comment e, at 144 (1965).) Reliance is reasonable where (1) there is a deceptive appearance that the expected performance has been rendered, or (2) the defendant represents to the plaintiff that performance has been made, or (3) the plaintiff is prevented from obtaining knowledge or substituting performance. However, to justify reliance, the plaintiff must be unaware of the actual circumstances and not equally capable of determining such facts. Chisolm v. Stephens (1977), 47 Ill. App. 3d 999, 1007, 365 N.E.2d 80, 86.

Here, we find none of the elements indicated above which would have justified Roberson’s reliance on J.C. Penney’s performance. The record contains no evidence J.C. Penney attempted to conceal a dangerous condition from customers, or that J.C. Penney made representations about the condition of its interior floor. Finally, the record reveals nothing indicating that Roberson was not equally capable of determining the condition of the floor upon entering the store. In her deposition, Roberson noted the adequacy of the lighting inside the store. She also stated that it had been raining or snowing on the day of the accident. The facts show that Roberson was aware of the actual circumstances and could have determined the facts surrounding her fall. As a result, we conclude that Roberson was not justified in relying on J.C. Penney’s performance.

Finally, we find the “natural accumulation rule” exonerates J.C. Penney from any duty to remove the water from its entrance, notwithstanding the presence of the mats. Generally, a landowner is not liable for injuries resulting from natural accumulations of ice, snow or water. (Handy v. Sears, Roebuck & Co. (1989), 182 Ill. App. 3d 969, 971, 538 N.E.2d 846, 848.) A landowner also has no duty to remove water that patrons track into its building by walking through natural accumulations outside the building. (Lohan v. Walgreens Co. (1986), 140 Ill. App. 3d 171, 173-74, 488 N.E.2d 679, 681.) However, a landowner may be liable for injuries caused by an unnatural accumulation of ice, snow or water, or for a condition that aggravates a natural accumulation. (Bernard v. Sears, Roebuck & Co. (1988), 166 Ill. App. 3d 533, 535, 519 N.E.2d 1160, 1161-62.) A mat which becomes saturated in a store’s entryway due to tracked-in water does not transform the water into an unnatural accumulation, nor does it aggravate the water’s natural accumulation. Wilson v. Gorski’s Food Fair (1990), 196 Ill. App. 3d 612, 615, 554 N.E.2d 412, 415.

Here, Roberson stated in her deposition that the water located in J.C. Penney’s store on the day of her fall appeared to have been tracked in by other patrons. However, there was no evidence to show that the mats located near the J.C. Penney entrance were saturated. Though evidence existed that snow and water accumulated outside, nothing showed that the moisture originated from an unnatural accumulation. Therefore, we find that the natural accumulation rule applies here. Consequently, J.C. Penney was under no duty to remove the water from its interior floor near the mats.

Accordingly, for the reasons indicated, we hold that J.C. Penney assumed no voluntary duty to remove any water from its store’s entrance. Additionally, we find that the natural accumulation rule bars any common law duty asserted against J.C. Penney to remove the moisture. As a result, the trial court’s entry of summary judgment in J.C. Penney’s favor was proper.

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

Affirmed.

STOUDER and SLATER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    JOHN JACOB, Plaintiff-Appellant, v. ERVIN GREVE et al., Defendants (Mayflower Tours, Inc., Defendant-Appellee).
    Second District
    No. 2—92—0845
    Opinion filed October 13, 1993.
    William R. Ketcham and Daniel E. Compton, both of Brittain & Ketcham, P.C., of Elgin, for appellant.
    James T. Ferrini, Susan Condon, and Thomas H. Ryerson, all of Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago, and James P. Marsh, of Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Wheaton, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, John Jacob, appeals the order of the circuit court granting summary judgment in favor of defendant, Mayflower Tours, Inc. (Mayflower). Plaintiff raises two issues on appeal: whether the trial court erred in finding that Mayflower owed no duty to plaintiff, and whether there were questions of material fact regarding the proximate cause of plaintiff’s injury. We will summarize only those facts relevant to Mayflower’s motion for summary judgment.

Plaintiff sued Mayflower and Ervin Greve, Valley Bank & Trust Company (Valley Bank), and Royal American Charter Lines, Inc. (Royal American), for injuries he sustained when Greve hit plaintiff in the head with a carry-on bag on a tour bus owned by Royal American and chartered by Mayflower for a tour of Door County, Wisconsin. Valley Bank organized the tour for members of its Crown club, customers of Valley Bank who were at least 50 years old. Both plaintiff and Greve were members of the Crown club. Plaintiff alleged that Mayflower was a common carrier and owed a high degree of care to plaintiff. Plaintiff also alleged that Mayflower, through its agents Donald Herrick, the tour director, and Robert Hoeksema, the bus driver, was negligent in: failing to seek or provide assistance to senior passengers in unloading luggage; failing to evacuate seats over which luggage was being unloaded; failing to control or regulate the removal of carry-on baggage; failing to assist or control Greve in removing his baggage from an overhead compartment; failing to rotate all passengers to their original seats before removing baggage from the overhead compartments; instituting a system of passenger seat rotation which separated passengers from their overhead luggage; and failing to organize a safe and orderly method for passengers to depart the bus.

Plaintiff settled with Royal American, and the court granted summary judgment in favor of Valley Bank. Royal American and Valley Bank were no longer parties to this action when Mayflower moved for summary judgment.

Mayflower’s motion for summary judgment first argued that Mayflower was not a common carrier. Mayflower asserted that Royal American was the carrier, and Royal American was a private, rather than a common, carrier. Mayflower next argued that Robert Hoeksema, the bus driver, was the agent of Royal American and was not an agent or employee of Mayflower. Mayflower also asserted that an exculpatory provision in its brochure relieved it of liability for plaintiff’s injuries. Finally, Mayflower argued that it had no duty to protect plaintiff from the type of injury he suffered and, even if there was a duty, the breach of that duty was not the proximate cause of plaintiff’s injury.

The depositions of the bus driver, the tour director, Valley Bank’s liaison, Greve, and plaintiff and his wife establish the following undisputed facts. Valley Bank decided to organize a tour of Door County, Wisconsin. It contacted Mayflower to handle the tour. Mayflower arranged for a bus and procured the hotel accommodations. Mayflower also provided a tour director as a guide on the trip. Valley Bank had a meeting with a representative from Mayflower for the members of the Crown club who were interested in going on the Door County trip. Plaintiff’s wife attended the meeting, as did Greve, but plaintiff did not.

The tour director was in charge of the trip, and, if any of the passengers had any problems, they were to consult the tour director. The passengers were allowed one piece of luggage and a carry-on bag. The luggage was loaded underneath the bus and was handled by the bus driver and the tour director.

The tour director’s main responsibilities were checking into and out of the hotels, ensuring that the luggage stored underneath the bus was delivered to each person’s room and picked up at the room, and arranging for places to eat. On the bus, the tour director provided entertainment and general information about the tour, was available to answer questions, determined if any of the passengers had special needs and worked with the bus driver to expedite the trip. Generally, when passengers disembarked from the bus, the tour director was not on the bus. Instead he would be in the hotel checking on the rooms and getting the keys. The tour director had the duty to determine which luggage was stored under the bus and what would be carried on. There was no weight or size limitation on the carry-on bags.

Mayflower had a policy of seat rotations whereby, after each stop, the passengers were moved to a different seat to allow everyone the opportunity of having a good view out the window. The passengers were instructed not to move their carry-on luggage when they changed seats.

On the first day of the trip, the passengers changed seats three times. After the last change, plaintiff and his wife ended up in their original seats. When the bus reached the hotel, the tour director instructed the passengers on the right side of the bus to disembark first, row by row from the front. The tour director left the bus, and the passengers on the right side of the bus disembarked. Nearly all the people on the right side of the bus had left, and the few people in the back on the right side told Greve and his wife to go ahead of them. Greve and his wife then went to get their carry-on bag. Greve’s wife held the retaining wire up while Greve retrieved the bag from the overhead compartment. Greve had trouble getting the bag out, and he hit plaintiff in the head with the bag.

In his deposition, plaintiff stated that he noticed Greve was having trouble putting his carry-on bag in the overhead compartment when they boarded the bus. Plaintiff described the bag as a “Samsonite cosmetic bag.” Plaintiff also stated that the disembarking from the bus at the hotel was “very orderly.” No one offered assistance with the carry-on bags.

Donald Herrick, the tour director, stated in his deposition that he was not responsible for assisting the passengers with carry-on luggage. Any assistance he provided was on a “voluntary basis” when he saw someone who was short having trouble getting the bag up or if the rack was crowded. However, Herrick usually was not on the bus when passengers were loading or unloading the carry-on bags.

The bus driver, Robert Hoeksema, testified in his deposition that his employer, Royal American, instructed him to be available to assist passengers with carry-on bags when the Mayflower tour director requested that he do so. On the Door County trip, Herrick did not request Hoeksema to assist any of the passengers with the carry-on bags. During the deposition, Hoeksema was asked if he ever had “an experience in *** driving on these tours with an elderly passenger having a problem putting anything in or taking anything out” of the overhead compartments. Hoeksema answered that he had, but he could not recall when. He stated:

“[W]hen you put something in [the compartment], it kind of goes down. So sometimes if the person is short, they [sic] can’t see. So then I would go over there and look, because I’m taller, I can look over the top of it.
If you’re a short person or if they’re [sic] an older person, yeah, I would — just to help them [sic], to be helpful.”

Hoeksema also stated that the majority of people who go on tours are senior citizens and most of Mayflower’s trips were senior citizen trips.

Mayflower’s president submitted an affidavit in which he averred that, in the 13 years that Mayflower operated tours, there was never an incident in which a passenger removed a piece of luggage from an overhead rack in such a way as to strike another passenger with it. Mayflower’s president also stated that Mayflower did not employ Hoeksema and it did not direct the bus driver in any of his duties.

Ervin Greve stated in his deposition that, before the trip, the Mayflower representative advised the prospective passengers that they could bring a “small” carry-on bag in addition to the large luggage. The Mayflower representative also instructed the group that if they had any problems with either the large luggage or the carry-on bags, they should tell the tour director. In addition, when Greve was boarding the bus, Herrick advised him to inform Herrick if Greve had any problems.

Mayflower attached to its motion a copy of its general brochure which it distributed to the Crown club members before the trip. The brochure stated:

“In addition to the small carry-on piece just mentioned, each Tour Member may bring one large piece of luggage, for which the tugging, lugging — why do you think they call it lug-gage?— and carrying will be our responsibility. Simply attach the included Mayflower Tours luggage tag to the large piece before leaving home and we will see to it that your baggage arrives where and when you do.”

The brochure also represented that the tour director would “supervise the handling of luggage.” The brochure further stated that Mayflower was “not able to accept responsibility for any losses or damages to personal property or for injuries, expenses or damages incurred by any Tour Member.” A specific flier for the Door County trip provided, under “Luggage Suggestions,” that “One large piece of luggage per person is permitted. In addition, you are allowed one carry-on bag aboard the motorcoach.”

The trial court determined that Mayflower was not entitled to summary judgment on the basis of the exculpatory clause because there were genuine issues of material fact about whether the exculpatory clause was part of the agreement between plaintiff and Mayflower. However, the court found that the facts did not support plaintiff’s claim that Mayflower was a common carrier. Even assuming that plaintiff alleged that Mayflower had a duty of ordinary care, the court concluded Mayflower was entitled to judgment as a matter of law because Mayflower had no duty to protect plaintiff from the occurrence alleged. The court found that there were no evidentiary facts which showed that plaintiff relied on Mayflower to protect him, nor were there any facts to support plaintiff’s claim that the driver of the bus was Mayflower’s agent.

Plaintiff moved to reconsider the order of summary judgment, and he requested leave to amend the complaint to allege that Mayflower had a duty of ordinary care. The court allowed the motion to amend the complaint because the reasons for the entry of summary judgment assumed that Mayflower had a duty of ordinary care. The court denied the motion to reconsider and clarified its previous order as follows:

“[T]here are no evidentiary facts presented indicating that Defendant Mayflower Tours, Inc. voluntarily undertook a duty to assist or supervise passengers in connection with placement and/or removal of carry-on luggage and then failed to exercise due care in that undertaking. Nor are there evidentiary facts indicating that Mayflower undertook performance in that regard gratuitously and in such manner that passengers, including Plaintiff, reasonably relied on Mayflower to protect them from harm under these circumstances.”

Plaintiff timely appealed.

We review the entry of summary judgment de novo. (Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill. 2d 90, 102.) Summary judgment is proper if the pleadings, depositions, or other documents on file show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (735 ILCS 5/2 — 1005(c) (West 1992); Outboard Marine, 154 Ill. 2d at 131.) The trial court must construe all these documents strictly against the movant and liberally in favor of the opponent of the motion. (In re Estate of Hoover (1993), 155 Ill. 2d 402, 410-11.) The court must deny the motion for summary judgment if there is a dispute as to material facts or if reasonable persons could draw different inferences from the undisputed facts. (Hoover, 155 Ill. 2d at 411.) A plaintiff resisting summary judgment need not prove his case at this stage, but he must present some factual basis that would arguably entitle him to judgment. Knief v. Sotos (1989), 181 Ill. App. 3d 959, 963.

In a negligence action, the plaintiff must set out sufficient facts to show the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury which was proximately caused by the breach. (Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 411.) The court here ruled that Mayflower was entitled to judgment as a matter of law because it did not have a duty to prevent plaintiff’s injury. The existence of a duty on a defendant is a question of law which may be determined on a motion for summary judgment. Curatola v. Village of Niles (1993), 154 Ill. 2d 201, 207.

Mayflower asserts that the alleged negligence here was nonfeasance, as opposed to misfeasance. “Liability arises from misfeasance [citation], but not from nonfeasance [citation].” (Lewis v. Razz-berries, Inc. (1991), 222 Ill. App. 3d 843, 851.) If a person is under no duty to act, the failure to do so may be negligent conduct, but will not subject that person to liability because of the absence of a duty. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 556.) To impose a duty, there must be a relationship between the plaintiff and the defendant such as to give rise to a duty to protect the plaintiff from an unreasonable risk. (Fancil, 60 Ill. 2d at 555-56.) According to plaintiff, he was a business invitee of Mayflower, and, therefore, Mayflower owed him a duty of reasonable care. However, plaintiff fails to specify the parameters of this duty, although at one point in his brief he asserts that Mayflower had an “obligation to supervise luggage.” The other possible aspect of this duty of reasonable care, as alleged by plaintiff, is a duty to assist passengers with the carry-on luggage. We will assume that these are the duties plaintiff seeks to impose on Mayflower.

Plaintiff appears to base these duties on the contract between himself and Mayflower, as embodied in the brochure and the representations of Mayflower’s employees. Mayflower agreed to provide transportation, arrange for meals, provide entertainment on the bus, and make sure that the group checked into and out of the hotel efficiently. Plaintiff failed to present evidence that Mayflower agreed to assist with the carry-on bags or to supervise the loading and unloading of the carry-ons. Nothing in Mayflower’s promotional material suggests that it would assist with carry-ons. As shown by the brochure, Mayflower voluntarily assumed a duty to handle only the large luggage which was stored under the bus. Mayflower permitted the members of the group to bring a carry-on if they wished. Mayflower made no representations about the carry-ons. We conclude that plaintiff failed to present any facts to show that Mayflower had a duty, pursuant to the contract, to assist with or supervise the loading and unloading of the carry-on luggage.

Even though Mayflower did not have a contractual duty to act, if it voluntarily assumed the duty, its nonfeasance may give rise to liability if plaintiff relied on Mayflower to act. (Mattice v. Goodman (1988), 173 Ill. App. 3d 236, 240.) The trial court determined that plaintiff failed to present evidentiary facts which would establish that plaintiff relied on Mayflower to assist with or supervise the handling of carry-on luggage. According to plaintiff’s deposition, he saw that Greve had difficulty putting the carry-on bag in the overhead compartment. Plaintiff did not ask the tour director to offer assistance to Greve before Greve unloaded the bag. The tour director, Herrick, stated in his deposition that, if he helped someone with a carry-on, it was done voluntarily, but usually he was not on the bus when the passengers disembarked. The bus driver stated that he was not asked by Herrick to assist anyone with the bags on the Door County trip. As plaintiff stated in his deposition, no one offered to help with the carry-ons. In addition, there was no evidence that Greve requested any assistance with his carry-on bag. We conclude that plaintiff failed to present any facts to show that Mayflower voluntarily undertook a duty to assist with or supervise the placing or removing of the carry-on baggage.

Finally, we determine that plaintiff failed to show that a duty should be imposed on Mayflower as a matter of public policy. Plaintiff argues that it was foreseeable that a passenger would have difficulty getting a carry-on down from the overhead compartment and might hit another passenger with it. While we agree with plaintiff that such a scenario was foreseeable, foreseeability is not the only consideration when determining whether to impose a duty. (DiBenedetto v. Flora Township (1992), 153 Ill. 2d 66, 72.) The other relevant factors for imposing a duty are the likelihood of injury, the magnitude of guarding against the injury, and the consequences of placing that burden on the defendant. Curatola, 154 Ill. 2d at 214.

Even if it was foreseeable that one passenger might hit another in the head with a small carry-on bag, plaintiff failed to present any evidence that it is likely that the person hit would be injured. Mayflower’s president’s affidavit showed that the likelihood of injury is small, as the company had received no reports of such injuries in 13 years. Assuming arguendo that the bus driver’s knowledge is imputable to Mayflower, his deposition testimony also failed to establish the likelihood of injury. Hoeksema merely stated that he had seen people having trouble with the overhead compartments, but he did not indicate that anyone had ever been injured. Thus, plaintiff failed to establish this second factor.

Moreover, it would be unduly onerous to require Mayflower to supervise and assist all “elderly” travelers with carry-on bags. Mayflower would be required to determine how old is “elderly,” without regard to the physical capabilities of the individual. Boarding and disembarking would become a lengthy process, as everyone would have to go on the bus, one at a time, to store or retrieve a bag, or they would have to wait while the tour director or the bus driver loaded and unloaded the luggage under the bus and then the carry-ons on the bus.

Plaintiff failed to show that Mayflower’s failure to supervise or assist with carry-on luggage was unreasonable. Plaintiff does not argue that a tour company has a duty to assist every passenger with carry-on baggage. There was no evidence that Greve was physically disabled or infirm, or even that he was “short.” We decline plaintiff’s invitation to impose a duty to prevent people from handling their own luggage merely because they happen to have reached a certain age. Plaintiff assumes that all persons over 50 are incapable of safely handling carry-on bags and pose an unreasonable risk of harm to themselves or others. We reject this assumption. As the trial court found, it was not unreasonable for Mayflower not to help everyone with the carry-ons. Thus, plaintiff failed to present facts to establish that Mayflower had a duty to supervise or assist with the removal of carry-on baggage.

Plaintiff next contends that a genuine issue of material fact exists regarding the issue of proximate cause. The trial court did not rule on this issue. Therefore, we decline to address plaintiff’s second contention. We conclude that the trial court did not err in entering summary judgment for defendant.

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

Affirmed.

WOODWARD and BOWMAN, JJ., concur.


author: JUSTICE BUCKLEY

text:
    SCOTT NIZIOLEK, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—91—2368
    Opinion filed April 12, 1993.

      Thomas C. Sprague, of LaGrange, for appellant.

      William Farley, of Chicago Transit Authority, and P. Scott Neville, Jr., both of Chicago, for appellees.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Scott Niziolek (plaintiff) brought a personal injury action against the Chicago Transit Authority (CTA) and Leroy Carter (Carter) to recover damages for injuries he allegedly sustained when his automobile was struck from behind by a CTA bus driven by Carter. The trial court granted the CTA’s motion to dismiss (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619 (now 735 ILCS 5/2 — 619 (West 1992))) on the ground that plaintiff’s claim was barred because he failed to give proper written notice to the secretary of the board and to the CTA’s general counsel within six months of the accident as required by section 41 of the Metropolitan Transit Authority Act (the Transit Act) (Ill. Rev. Stat. 1991, ch. 111%, par. 341 (now 70 ILCS 3605/41 (West 1992))). On appeal, plaintiff contends: (1) that he “substantially complied” with the notice requirement through his communications and correspondence with a CTA claims representative and, therefore, satisfied section 41; (2) that the claims representative’s conduct served as a waiver of section 41 and estopped the CTA from asserting plaintiff’s noncompliance with the notice provision as a bar to his claim; and (3) that the legislative scheme requiring a plaintiff to give notice under section 41 of the Transit Act, but not requiring such notice under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (See Pub. Act 84 — 1431, eff. November 25, 1986 (repealing Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102)) is unconstitutional and denies plaintiff the equal protection of the law. Finally, plaintiff asserts that, even if the case against the CTA is dismissed, the case against its employee, Carter, should not be dismissed. We affirm.

On December 28, 1990, plaintiff filed a one-count complaint against the CTA and its employee, Carter, to recover damages for his injuries. Plaintiff alleged that on April 12, 1990, at or near the intersection of 79th and Tripp, he was driving his car when a CTA bus driven by Carter struck the rear end of his automobile causing him to sustain permanent injuries. In lieu of answering plaintiff’s complaint, the CTA filed a motion to dismiss (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619 (now 735 ILCS 5/2 — 619 (West 1992))) on the ground that plaintiff neglected to file the statutorily required notice of his intent to sue with the secretary of the board and the CTA’s general counsel within six months of the incident. Ill. Rev. Stat. 1991, ch. 111%, par. 341 (now 70 ILCS 3605/41 (West 1992)).

In plaintiff’s response to defendant’s motion to dismiss, plaintiff conceded that he did not give written notice of his claim within six months of the incident to both the secretary of the board and the CTA’s general counsel as required by section 41. (Ill. Rev. Stat. 1991, ch. 111%, par. 341 (now 70 ILCS 3605/41 (West 1992)).) In his response, plaintiff insisted that “substantial compliance” with section 41 was sufficient to satisfy the notice requirement and, as evidence of his substantial compliance, he itemized the extensive correspondence between his attorney and the CTA claims representative. He also argued that the CTA was estopped from asserting plaintiff’s failure to give the statutorily required notice to bar his claim and that the CTA waived the requirements of section 41 by “participat[ing] in discovery in this cause and discusspng] settlement.” Plaintiff attached the affidavit of his former attorney (affiant) to his response in order to show the conduct of the claims representative which plaintiff argues establishes waiver and estoppel.

In the affidavit, affiant stated that, when he first contacted the CTA claims representative on April 17, 1990, he was told “to address all correspondence for the CTA concerning this claim to him.” Affiant asserts that on that same day, April 17, 1990, he promptly sent the claims representative the plaintiff’s name and address, the date and location of the accident, and a description of the general nature and extent of plaintiff’s injuries and property damage. On April 25, 1990, the claims representative sent a letter to affiant indicating that the file was “incomplete” in that it needed “[a] statement, medicals, [and] bills.” This letter also advised affiant to forward “[a]ll bills, reports, and estimates *** to the attention of the undersigned.” According to affiant, he responded by forwarding to the claims representative a “statement” by plaintiff setting forth his version of “the facts and circumstances of the accident as well as a description of his personal injuries and property damage.” Additionally, affiant stated that, in response to a subsequent letter requesting that plaintiff complete wage and medical authorization forms, he sent the completed forms to the claims representative on August 3, 1990. Affiant asserts that between April 17, 1990, and November 19, 1990, he forwarded to the claims representative “all available information and documentation concerning [plaintiff’s] claim.”

Affiant contends that he “was led to believe that the CTA and Mr. Uhl [the claims representative] were actively investigating, receiving, and evaluating [plaintiff’s] claim in a fair and equitable manner.” He maintains that the claims representative never advised him that he needed to send a formal notice of claim in addition to all the documerits and information he had already sent. He further stated that the CTA claims representative advised him during the week of August 27, 1990, that the only remaining item that he and the CTA needed in order to discuss settlement was a doctor’s report. Affiant contends in his affidavit that the claims representative’s actions indicated that the CTA did not doubt its liability, but that it recognized that the only question was the extent of plaintiff’s damages. He argues that he was purposely misled into believing that “any formalities, beyond what had been done, had been complied with or were not being required or had been waived.” The CTA did not file any counteraffidavits. On June 19, 1991, the trial court heard oral arguments on the motion and dismissed plaintiff’s complaint with prejudice. Plaintiff appeals.

Plaintiff’s first contention on appeal is that “substantial compliance” with section 41 of the Transit Act is sufficient to satisfy the notice requirement. Plaintiff points out that section 41 of the Transit Act is very similar to section 8 — 101 through section 8 — 103 of the Tort Immunity Act (Ill. Rev. Stat. 1991, ch. 85, pars. 8 — 101 through 8 — 103 (now 745 ILCS 10/8 — 101 through 8 — 103 (West 1992))) and asserts that both Acts should be construed in the same manner. He argues that the Illinois courts have found substantial compliance with the Tort Immunity Act sufficient to satisfy its requirements and contends that this court should find substantial compliance with section 41 sufficient to satisfy the Transit Act’s requirements. He maintains that he substantially complied with the section’s requirements because he sent the CTA all the statutorily required information and the CTA was not harmed or prejudiced by the fact that the information was sent to the claims representative instead of to the secretary of the board and the CTA’s general counsel as the provision requires. He argues that a strict interpretation of section 41 would result in absurd and unjust consequences and would allow the CTA to avoid liability for its conduct simply because plaintiff failed to comply with a technical requirement. The CTA, on the other hand, asserts that Illinois case law requires that plaintiff strictly comply with the requirements of section 41. The CTA maintains that plaintiff’s cause of action was properly dismissed because he did not give the statutorily required notice within six months of the accident.

Section 41 of the Transit Act requires that a plaintiff file notice within six months of an accident “in the office of the secretary of the Board and also in the office of the General Counsel for the Authority.” (Ill. Rev. Stat. 1991, ch. Ul2h, par. 341 (now 70 ILCS 3605/ 41 (West 1992)).) If notice is not filed as required, section 41 provides that “any such civil action commenced against the Authority shall be dismissed.” (Ill. Rev. Stat. 1991, ch. 1112/3, par. 341 (now 70 ILCS 3605/41 (West 1992)).) When the word “shall” is included in a legislative provision, Illinois courts generally have held that the requirement is mandatory. (People v. Williams (1991), 143 Ill. 2d 477, 484, 577 N.E.2d 762, 765; Fumarolo v. Chicago Board of Education (1990), 142 Ill. 2d 54, 96, 566 N.E.2d 1283, 1301; Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 499, 524 N.E.2d 561, 578; Di Falco v. Board of Trustees (1988), 122 Ill. 2d 22, 28, 521 N.E.2d 923, 926.) This court has held, therefore, that the plaintiff has the burden of strictly complying with the requirements of section 41. Sanders v. Chicago Transit Authority (1991), 220 Ill. App. 3d 505, 507, 581 N.E.2d 211, 213.

In Sanders (220 Ill. App. 3d at 507, 581 N.E.2d at 213), plaintiff gave notice to the CTA’s general counsel, but not to the secretary of the board. We concluded that this notice was not in strict compliance with section 41 and affirmed the dismissal of plaintiff’s complaint. (Sanders, 220 Ill. App. 3d at 508-09, 581 N.E.2d at 214.) In Murphy v. Chicago Transit Authority (1989), 191 Ill. App. 3d 918, 921, 548 N.E.2d 403, 405, the court found that the notice requirement was not satisfied by sending a letter to a CTA claims manager rather than to the persons required by statute. Consequently, under the facts of this case, we find that plaintiff did not satisfactorily comply with the notice requirement by sending notice to a claims representative and not to both the secretary of the board and the CTA’s general counsel.

Even assuming we found plaintiff’s analogy to the Tort Immunity Act to be persuasive, plaintiff would not prevail. In Bickel v. Chicago (1975), 25 Ill. App. 3d 684, 323 N.E.2d 832, the standard for determining substantial compliance with the notice requirement of section 8 — 102 of the Tort Immunity Act was set forth. The Bickel court stated:

“The statute is strictly construed to require that the written notice must contain each of the essential elements therein set forth. A notice which completely omits one or more of the essential elements is insufficient. On the other hand, the statute is to be liberally construed with respect to the sufficiency of the elements as set forth in the written notice. Where the particular element as set forth is reasonably sufficient to fulfill the requirements of the statute and where the public entity has not been misled or prejudiced thereby, the notice itself is sufficient.” (Emphasis added.) (Bickel, 25 Ill. App. 3d at 692, 323 N.E.2d at 837-38.)

In Repaskey v. Chicago Transit Authority (1975), 60 Ill. 2d 185, 188, 326 N.E.2d 771, 773, the Illinois Supreme Court reiterated the established proposition that actual notice to the city is insufficient to satisfy the statutory notice requirements. (See Housewright v. LaHarpe (1972), 51 Ill. 2d 357, 361, 282 N.E.2d 437, 440; Shortt v. City of Chicago (1987), 160 Ill. App. 3d 933, 935, 514 N.E.2d 3, 4.) In view of Bickel and Repaskey, the court in Shortt concluded that notice sent to the corporation counsel’s office instead of to the city clerk as required by the Tort Immunity Act was fatal to plaintiff’s claim. (Shortt, 160 Ill. App. 3d at 935, 514 N.E.2d at 4-5.) The Shortt court determined that such notice was not substantial compliance, but, in fact, a complete omission of one of the statute’s essential elements. Shortt, 160 Ill. App. 3d at 935, 514 N.E.2d at 4-5.

Several cases which we are aware of have held substantial compliance with the section’s “informational” requirements sufficient as long as the public entity was not prejudiced or misled. (Rio v. Edward Hospital (1984), 104 Ill. 2d 354, 366-67, 472 N.E.2d 421, 426 (absence of address in notice not fatal to plaintiff’s case where defendant was aware of the name and address of plaintiff’s attorney and not prejudiced or misled); Reese v. Village of Arlington Heights (1990), 204 Ill. App. 3d 129, 134, 561 N.E.2d 1156, 1160 (incorrect date in notice not fatal); Stewart v. County of Cook (1989), 192 Ill. App. 3d 848, 854-55, 549 N.E.2d 674, 678 (incorrect date in notice not fatal).) In Thomas v. Davenport (1990), 196 Ill. App. 3d 1042, 1045, 554 N.E.2d 604, 606, the court interpreted the six-month notice provision as requiring notice within six months of discovery of an injury. Several courts have held that failure to file notice within six months is excused if the complaint is filed within the six-month period. (Dunbar v. Reiser (1976), 64 Ill. 2d 230, 237, 356 N.E.2d 89, 92; Saragusa v. City of Chicago (1976), 63 Ill. 2d 288, 292-93, 348 N.E.2d 176, 180.) In Reynolds v. City of Tuscola (1971), 48 Ill. 2d 339, 343, 270 N.E.2d 415, 417, the court held that a provision requiring that written notice be personally served in the office of the secretary or the clerk was satisfied where notice was sent to a proper party by registered mail return receipt requested. Finally, in Lyons v. Chicago Transit Authority (1953), 349 Ill. App. 437, 443, 111 N.E.2d 177, 179, the court held that properly filed notice under section 41 which contained the incorrect address of plaintiff’s doctor was not fatal since defendant was not prejudiced. We are aware of no cases, however, which have held that substantial compliance, or even total compliance, with either the Tort Immunity Act or the Transit Act’s informational requirements can be sufficient to excuse a complete failure to give notice to the proper parties and within the required time period.

Plaintiff’s second contention is that his uncontradicted affidavit establishes a material question of fact as to whether the CTA is estopped from moving to bar his claim on the ground that he failed to comply with the notice requirement of section 41 of the Transit Act. Plaintiff argues that the CTA waived section 41 by “participating] in discovery in this cause and discussing] settlement” and that the claims representative’s conduct estopped the CTA from asserting plaintiff’s failure to file the statutorily required notice as a bar to his claim. He contends that the claims representative’s request that certain documents be sent to him should act as a waiver by the CTA of the requirement that notice be sent to the secretary of the board and to the CTA’s general counsel. He maintains that the claims representative’s conduct and statements were intended to lull him into a false sense of security and to cause him to rely upon the representations of the claims representative that formal notice was not required in this case.

Section 41 requires that any person who is about to bring a lawsuit against the CTA to recover for personal injuries must file written notice “[w]ithin six (6) months from the dale that such an injury was received or such cause of action accrued *** in the office of the secretary of the Board and also in the office of the General Attorney for the Authority.” (Ill. Rev. Stat. 1991, ch. 1112/3, par. 341 (now 70 ILCS 3605/41 (West 1992)).) The section further provides that failure to file the statutorily required notice will result in the dismissal of plaintiff’s action. (Ill. Rev. Stat. 1991, ch. 1112/3, par. 341 (now 70 ILCS 3605/41 (West 1992)).) Illinois courts have recognized, however, that a CTA claims representative’s prelitigation conduct can estop the CTA from asserting its rights under section 41. Pothier v. Chicago Transit Authority (1992), 238 Ill. App. 3d 702, 705, 606 N.E.2d 531, 533; Searcy v. Chicago Transit Authority (1986), 146 Ill. App. 3d 779, 784, 497 N.E.2d 410, 413.

The doctrine of equitable estoppel has been held to preclude the CTA from asserting plaintiff’s noncompliance with section 41 as a bar to his personal injury claim if plaintiff “was led to detrimentally rely upon the conduct or statements of the [claims representative] and *** such reliance was in good faith.” (Pothier, 238 Ill. App. 3d at 705, 606 N.E.2d at 533.) Whether the defense of estoppel is available to the plaintiff is a question of fact for the jury if there is evidence in the record of conduct or statements by the claims representative which may have led plaintiff to reasonably beHeve his claim would be settled without suit (D’Urso v. Wildheim (1976), 37 Ill. App. 3d 835, 838, 347 N.E.2d 463, 465, citing Kinsey v. Thompson (1963), 44 Ill. App. 2d 304, 307, 194 N.E.2d 565, 567) or “lullfed] plaintiff into a false sense of security which caus[ed] him to delay the assertion of his rights” (Myers v. Centralia Cartage Co. (1981), 94 Ill. App. 3d 1139, 1143, 419 N.E.2d 465, 468) or was intended to prevent plaintiff “from ascertaining [his] legal rights and obligations” (Murphy, 191 Ill. App. 3d at 923, 548 N.E.2d at 406).

If there is no evidence in the record of conduct which rises to this level, then there is no factual question for the jury and it is proper for the court to dismiss plaintiff’s complaint as a matter of law. (Pothier, 238 Ill. App. 3d at 705, 606 N.E.2d at 533; Udstuen v. Patterson (1990), 198 Ill. App. 3d 67, 69, 555 N.E.2d 750, 751; Myers, 94 Ill. App. 3d at 1143, 419 N.E.2d at 468; D’Urso, 37 Ill. App. 3d at 839, 347 N.E.2d at 466.) Additionally, “[t]he mere pendency of negotiations conducted in good faith *** is not sufficient to show a waiver of the statute and does not estop the defendant from asserting the defense.” (Myers, 94 Ill. App. 3d at 1142-43, 419 N.E.2d at 468.) Accepting all the facts in the affidavit offered by plaintiff as true, we do not believe that plaintiff has raised a material question of fact on the issue of estoppel and, therefore, conclude that the trial judge was correct in disposing of plaintiff’s complaint as a matter of law.

We believe that the facts of this case are analogous to the appellate court’s recent decisions in Sanders v. Chicago Transit Authority (1991), 220 Ill. App. 3d 505, 581 N.E.2d 211, and Murphy v. Chicago Transit Authority (1989), 191 Ill. App. 3d 918, 548 N.E.2d 403. In Sanders, plaintiff’s attorney sent notice of intent to sue to the CTA’s general counsel, but not to the secretary of the board as required by section 41. He also forwarded plaintiff’s medical records and bills to the CTA’s claims department and was assured by a claims representative that “settlement was proceeding.” (Sanders, 220 Ill. App. 3d at 506, 581 N.E.2d at 212.) Plaintiff subsequently filed suit and the trial court dismissed her complaint because she neglected to send notice to the secretary of the board. (Sanders, 220 Ill. App. 3d at 507, 581 N.E.2d at 212.) Plaintiff’s counsel argued that the CTA should be estopped from asserting plaintiff’s failure to give proper notice because he reasonably relied to his detriment upon certain representations made by the claims representative. (Sanders, 220 Ill. App. 3d at 508, 581 N.E.2d at 213.) This court concluded that the defense of estoppel was not available to the plaintiff because she was represented by an attorney and it was not alleged that the claims representative told her attorney not to comply with the requirements of section 41. Sanders, 220 Ill. App. 3d at 508, 581 N.E.2d at 214.

In Murphy, plaintiff’s attorney addressed his notice of claim to “Claims Manager” at the Merchandise Mart and did not file any notice with the secretary of the board and the CTA’s general counsel. Subsequently, his complaint was dismissed for failure to give proper notice. In an affidavit, plaintiff’s attorney averred that he had several conversations with the claims manager and sent him documents and records. He asserted that he sent the notice to the claims manager because those were “the instructions he was given by the CTA claims manager over the telephone.” (Murphy, 191 Ill. App. 3d at 922, 548 N.E.2d at 405.) Plaintiff’s attorney argued on appeal that he was misled and lulled “into a false sense that the claim had been accepted and would be settled.” Murphy, 191 Ill. App. 3d at 922, 548 N.E.2d at 406.

The Murphy court stated that “the CTA’s mere receipt and acknowledgement of information or documents pertaining to a claim when the statutory notice is defective and the lawsuit has not been filed within six months” is insufficient to raise a question of fact on the defense of estoppel. (Murphy, 191 Ill. App. 3d at 922, 548 N.E.2d at 405.) The court reasoned that section 41 places a burden of strict compliance with its provisions on the plaintiff and, although it may seem “harsh,” a person, especially plaintiff’s attorney, “cannot rely on an agent of the CTA to give accurate information on processing a claim.” Murphy, 191 Ill. App. 3d at 922, 548 N.E.2d at 405.

In the instant case, as in Murphy, there are no averments in affiant’s affidavit which “amount to admissions of liability or attempts to prevent [plaintiff] from ascertaining legal rights and obligations.” (Murphy, 191 Ill. App. 3d at 923, 548 N.E.2d at 406.) Additionally, it is not alleged that affiant was ever told to ignore section 41 or not to take all steps necessary to protect his client’s interests. (See Murphy, 191 Ill. App. 3d at 922-23, 548 N.E.2d at 406.) In the words of the Murphy court,

“[h]ad [plaintiff’s] attorney checked the applicable statute he would have known of the preconditions for maintaining an action against the CTA. He would not have settled for vague assurances that everything was fine but would have taken steps to ensure that his client’s interests were safeguarded.” (Murphy, 191 Ill. App. 3d at 923, 548 N.E.2d at 406.)

An attorney has a duty to research the law and protect his client’s interests, and representations which a court may find reasonable for a layman to rely upon will not necessarily be considered reasonable for an attorney to rely upon. (Pothier, 238 Ill. App. 3d at 710, 606 N.E.2d at 536.) We find such to be the case under these facts. Consequently, we hold that plaintiff failed to raise a question of fact on whether the CTA was estopped from asserting his failure to give proper written notice as a bar to his claim. Therefore, we conclude that the trial judge properly dismissed his suit as a matter of law.

Plaintiff’s third contention is that the legislative scheme requiring a plaintiff to give notice under section 41 of the Transit Act, but not requiring such notice under the Tort Immunity Act, is unconstitutional and denies plaintiff the equal protection of the law. Plaintiff argues that there exists no reasonable basis for the requirement that a plaintiff give notice under the Transit Act, while not requiring the same under the Tort Immunity Act. He asserts that this statutory scheme violates equal protection because it is “arbitrary, capricious and unreasonable.” He contends that to attempt to distinguish the CTA from other governmental agencies is to make a distinction without a difference. The CTA, on the other hand, maintains that Illinois case law supports the constitutionality of the difference between the Transit Act and the Tort Immunity Act and brings our attention to the Illinois Supreme Court case of Fujimura v. Chicago Transit Authority (1977), 67 Ill. 2d 506, 368 N.E.2d 105.

The Tort Immunity Act presently requires that any personal injury action against a local entity or any of its employees must be brought “within one year from the date that the injury was received or the cause of action accrued.” (Ill. Rev. Stat. 1991, ch. 85, par. 8 — 101 (now 745 ILCS 10/8 — 101 (West 1992)).) If the action is not commenced within one year, plaintiff loses his right to sue. (Ill. Rev. Stat. 1991, ch. 85, par. 8 — 101 (now 745 ILCS 10/8 — 101 (West 1992)).) Unlike the Transit Act,, however, the Tort Immunity Act does not require the plaintiff to file any notice of his intent to bring suit.

Prior to its repeal in 1986, however, section 8 — 102 required a person about to bring suit against a local entity to give notice “[wjithin 1 year from the date that the injury or cause of action *** was received or accrued.” (Ill. Rev. Stat. 1985, ch. 85, par. 8— 102.) Additionally, section 8 — 101 provided for a two-year statute of limitations. (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 101.) In Fujimura, the plaintiffs failed to comply with either the six-month notice requirement or the one-year statute of limitations contained in section 41 of the Transit Act. The trial court declared that section 41 of the Transit Act violated equal protection and was unconstitutional on the grounds that there existed “no rational basis for, and no legitimate State interest justifying, the discriminatory effect of the six-month-notice and one-year-filing requirements contained in section 41.” (Fujimura, 67 Ill. 2d at 509, 368 N.E.2d at 106.) The case was appealed directly to the Illinois Supreme Court.

The Fujimura court reversed, holding that a rational basis existed for distinguishing the CTA from other public entities in light of the CTA’s unique function and activities. (Fujimura, 67 Ill. 2d at 516, 368 N.E.2d at 109.) In coming to its conclusion that the differing notice and limitations periods in the Acts bore “a rational relationship to a legitimate State purpose,” the Fujimura court reasoned:

“Classification of governmental entities based upon their functions and activities is clearly proper. The CTA was established to operate and maintain a mass transportation system in the Chicago metropolitan area. That is its sole function. *** [T]he magnitude of the defendant’s operations, the extent of its personal injury litigation, the problem of blind cases, and the substantial burden of investigating completely even apparently minor accidents are still pertinent. In our judgment, a public entity having as its only purpose the operation of one of the largest mass transit systems in the United States performs a unique governmental function with its own peculiar problems having no parallel in the usual functions of other local governmental entities. There is an additional and substantial distinction in the differing standards by which the liability of the CTA and other public entities is to be measured. The CTA as a public carrier owes those whom it serves the highest degree of care [citation], in contrast to the varying, but consistently lower, standards applicable to other public entities.” (Fujimura, 67 Ill. 2d at 513, 368 N.E.2d at 108.)

We believe that the Fujimura rationale is as applicable to the present legislative scheme as it was to the differences between the Transit Act and the Tort Immunity Act in 1977. The plaintiff responds, however, that the reasoning of the Fujimura court “is not sound” and, consequently, we should not follow its reasoning.

We are mindful of the last time an appellate court attempted to reverse an Illinois Supreme Court decision in a case involving the CTA. (See Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 457 N.E.2d 1.) To say the least, the supreme court did not react kindly and we do not desire to tempt fate twice. It is fundamental that the appellate court does not have the authority to abandon supreme court precedent. (Rickey, 98 Ill. 2d at 551, 457 N.E.2d at 3.) If precedent is not followed, “the uniformity and stability of decision, which is essential to the proper administration of justice, will be destroyed.” (Rickey, 98 Ill. 2d at 551, 457 N.E.2d at 3.) We need not discuss at length the importance of the doctrine of stare decisis. (Rickey, 98 Ill. 2d at 552, 457 N.E.2d at 3.) Therefore, we reaffirm our support of the Fujimura decision. (See Medina v. Taylor (1989), 185 Ill. App. 3d 808, 813, 542 N.E.2d 33, 36 (the limitation provisions in the Transit Act have a legitimate State purpose and are not unconstitutional).) Consequently, we hold that the legislative scheme requiring a plaintiff to give notice under section 41 of the Transit Act, but not requiring such notice under the Tort Immunity Act, does not deny plaintiff equal protection of the laws.

Finally, plaintiff contends that the limitations provisions in the Transit Act are applicable only to the CTA and not to the CTA’s employee. Therefore, plaintiff asserts that even if we affirm the dismissal of the action against the CTA, we should reinstate the action against the CTA’s employee, Carter. When the issue has arisen, this court has held that the limitation provisions in the Transit Act “ ‘apply to actions brought against CTA employees as well as the CTA.’ ” (Sanders, 220 Ill. App. 3d at 507, 581 N.E.2d at 213, quoting Medina, 185 Ill. App. 3d at 812, 542 N.E.2d at 35.) Consequently, because we affirm the dismissal of plaintiff's claim against the CTA, we must also affirm the dismissal against its employee, Carter.

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

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


author: JUSTICE McCULLOUGH PRESIDING JUSTICE STEIGMANN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CONRAIL CORPORATION, Defendant (OCON, Defendant-Appellant).
    Fourth District
    No. 4—92—1015
    Argued June 17, 1993. —
    Opinion filed September 16, 1993.—
    Rehearing denied November 15, 1993.

      STEIGMANN, P.J., specially concurring.
    Barbara K. Parker and Joel A. Poole, both of Polsinelli, White, Vardeman & Shalton, of St. Louis, Missouri, and James C. Bowers, Jr. (argued), and Dennis J. Dobbels, both of Polsinelli, White, Vardeman & Shalton, of Kansas City, Missouri, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Susan Frederick Rhodes, Assistant Attorney General (argued), of Chicago, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant OCON, an Oklahoma joint venture engaged in the business of transporting nonhazardous municipal solid waste (MSW), brings this interlocutory appeal pursuant to Supreme Court Rules 307(a)(1) and 307(b) (134 Ill. 2d Rules 307(a)(1), (b)). OCON appeals the denial of its motions to dissolve and to vacate the ex parte temporary restraining order (TRO) issued on July 15, 1992. Section 43(a) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1991, ch. 11 DA, par. 1043(a)) provides for entry of an ex parte order. Such an order is not a temporary restraining order as used in the traditional sense and the trial court’s designation as such was technically incorrect. Because the parties use this term, it will be used in this opinion. OCON has raised questions regarding the interpretation of certain sections of the Act (Ill. Rev. Stat. 1991, ch. 11DA, par. 1001 et seq.) and the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 1 — 101 et seq.). We affirm.

On July 15, 1992, the State filed a complaint for injunctive and other relief against Consolidated Rail Corporation (Conrail) (which has not participated in this appeal) and OCON. The complaint was brought on the joint motion of the Attorney General and State’s Attorney at the request of the Illinois Environmental Protection Agency (IEPA) and pursuant to section 43(a) of the Act, which states:

“In circumstances of substantial danger to the environment or to the public health of persons or to the welfare of persons where such danger is to the livelihood of such persons, the State’s Attorney or Attorney General, upon request of the Agency or on his motion, may institute a civil action for an immediate injunction to halt any discharge or other activity causing or contributing to the danger or to require such other action as may be necessary. The court may issue an ex parte order and shall schedule a hearing on the matter not later than 3 working days from the date of injunction.” (Ill. Rev. Stat. 1991, ch. HV-k, par. 1043(a).)

The complaint alleged that at least since July 13, 1992, there were approximately 41 railcars containing MSW, owned by OCON, located at a railway spur in Livingston County (the site) which was owned by Conrail. The complaint further alleged that on July 14, 1992, a representative of the IEPA inspected the railcars and found a large population of flies and other vectors around the railcars, a discernible odor emanating from the railcars and at least 20 cars leaking or dripping leachate. It was alleged neither OCON nor Conrail had applied for nor been issued any permits from the IEPA for the storage of the MSW at the site.

The complaint next alleged that by causing or allowing the storage of the railcars at the site, the presence of the vectors and the presence of the leachate, OCON and Conrail had created a substantial danger to the environment and to the public health and welfare of persons living and working near the site. The State asked the court to issue an ex parte immediate injunction order directing OCON and Conrail to:

“(1) Immediately begin to remove any and all railcars containing MSW at the site and transport said railcars to a properly permitted disposal or transfer site;
(2) Take steps necessary to immediately and properly dispose of the MSW and leachate that have been deposited upon the ground;
(3) Provide the Illinois Environmental Protection Agency with written notice of removal and disposal activities described above, including the ultimate destination of the railcars; and
(4) Refrain from transporting to the unpermitted site in Livingston County any additional railcars containing MSW.”

The State also asked for a hearing on the matter within three working days of the issuance of the ex parte TRO and after that hearing, for the court to issue a preliminary injunction directing OCON and Conrail to:

“(1) Take all steps necessary such that no railcars containing MSW are stored at this or any other site in the State of Illinois without proper permits issued by the Illinois Environmental Protection Agency; and
(2) Take all steps necessary such that no MSW is transferred from railcars to over-the-road carriers at the site without proper permits issued by the Illinois Environmental Protection Agency.”

The complaint was signed by the Attorney General, the State’s Attorney for Livingston County and an assistant Attorney General from the Environmental Control Division. The complaint was dated July 12, 1992.

On July 15, 1992, the circuit court issued an “ex parte temporary restraining order,” after hearing arguments from the State and finding that the complaint and memorandum demonstrated the existence of a substantial danger to the environment and the public health and welfare. The court ordered OCON and Conrail to perform the four things listed in the complaint. A hearing “on the matter” was scheduled for July 17, 1992. The order was signed, dated, and the time of 11:08 a.m. was noted. Although the State knew the identity of counsel for OCON and Conrail, as they had been in court the previous day in St. Clair County on a similar matter, neither OCON nor Conrail was present at this hearing. No record of this hearing was made.

A hearing was held on July 17, 1992, and counsel for the State and OCON were present. The parties indicated to the court that Conrail had agreed to keep the TRO in effect against it pending further negotiations between it and the State. On this date, OCON filed an answer and a motion to dissolve the TRO. The motion to dissolve alleged the TRO was invalid because (1) the State’s complaint did not comply with section 11 — 101 of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 11 — 101), (2) the TRO did not comply with the requirements of section 11 — 101 of the Code, and (3) the mandatory nature of the TRO denied OCON due process. Included in OCON’s answer was a request for damages for the wrongful issuance of the TRO.

Initially, the court attempted to determine the purpose of the hearing. The State explained to the court that there were essentially two matters pending before it that could result in the same decision. First, there was a hearing “on the matter” pursuant to section 43(a) of the Act, and second, there was a hearing in regard to OCON’s motion to dissolve which implicated section 11 — 101 of the Code. The State suggested the court first have the hearing pursuant to section 43(a) of the Act and then proceed with OCON’s motion to dissolve. OCON took great exception to that suggestion and argued that the purpose of the hearing was to determine whether the TRO had been properly issued.

The court stated it believed the hearing before it was pursuant to section 43(a) of the Act. The court then struck paragraph one of the TRO, finding it had become moot since the railcars had been moved. The court further indicated it would hear evidence as to whether it would be appropriate to continue paragraph 2 of the TRO as to the steps necessary to properly dispose of the MSW and leachate that had been deposited on the ground.

Testimony was presented to the court. Connie Keelin, the administrator of the Livingston County Health Department, inspected the site on July 14, 1992, at 6:30 p.m. She indicated the train was approximately one mile in length and she counted well over 20 railcars containing dumpsters full of garbage. She stated it was sprinkling at that time and all the cars she saw had a colored, slightly odorous liquid dropping from them. She found the dumpsters had office and household waste, including office paper and food substances. She saw flies around the railcars but detected no odor from the MSW itself. Keelin did not take any samples of the leachate and she estimated it was dropping out at a rate of one-half cup per hour. She characterized the leachate as smelling like old household garbage. It was her opinion that the leachate could be a public health hazard if it was left to continue.

On cross-examination, Keelin testified she did not believe the odor constituted a substantial danger to the public health or welfare. She could not tell whether the leachate constituted a substantial danger to the environment or public health because it was not tested. She could not quantify how many flies she observed at the site. She admitted the only house in the area of the site was at least 1,200 feet away and she did not believe the flies were a substantial danger to the people living in that house. She also admitted there were no drinking water streams near the site. On redirect examination, she explained that flies carry disease and have a range that would exceed 1,200 feet.

Richard A. Gerard, of the IEPA, inspected the site both while the train was there and after it had been removed. He testified there were a total of 49 railcars, 41 of which had containers of MSW. There were 114 such containers, 29 of which were leaking into the rock road bed of the railroad track. He admitted he did not test the leachate to determine its contents.

He inspected the site on July 16, 1992, after the train had left. The only residue MSW was one eight-ounce milk carton that appeared to have mold growing on it. He did observe other waste materials not attributable to the train. Gerard did not see any residue from the leachate that had dripped from the train. He saw no need for any cleanup or remedial activity at the site and felt there was no imminent threat to any landowners from the brief presence of the train.

At this point, OCON attempted to begin its cross-examination of Gerard when the court interrupted and inquired as to whether the State had any further witnesses. The State indicated it did not and did not wish to have paragraph two of the TRO continued. The court agreed, finding there was no basis to continue paragraph two of the TRO and dissolved that paragraph. The court also struck the remaining paragraphs three and four of the order. OCON asked the court to find there was no basis for the allegations in the complaint. The court refused to make such a finding and based its ruling on the fact that there was no longer a need to continue the TRO. OCON asked to question the witnesses but the court refused as there would be no point to the questioning since the State wanted the TRO dissolved. The court ordered the TRO dissolved and found no further activity was contemplated but did rule on OCON’s motion to dissolve the order.

On August 3, 1992, OCON filed a “motion to vacate the ex parte temporary restraining order entered pursuant to section 1043(a) [sic].” It alleged the court failed to comply with section 43(a) of the Act by not having a hearing within three days on the issue of whether the TRO had been properly issued. OCON also raised a due process argument and alleged the TRO was overly broad. It asked the court to enter an order dissolving and/or vacating the TRO and to set a hearing for damages sustained by improvidently granting the TRO. No action was taken on this motion within seven days whereupon, on August 10, 1992, OCON filed a notice of interlocutory appeal pursuant to Supreme Court Rule 307(b) (134 Ill. 2d R. 307(b)) from the circuit court’s “failure and refusal to dissolve and/or to vacate the ex parte Temporary Restraining Order entered on July 15,1992.”

The State filed a motion to dismiss the interlocutory appeal.

This court granted the State’s motion and dismissed OCON’s interlocutory appeal on September 1, 1992. (People v. Conrail Corp. (4th Dist. 1992), No. 4 — 92—0668 (order of dismissal).) On October 13, 1992, OCON mailed to all parties a notice of hearing on its motion to vacate, scheduled for November 9,1992.

At the hearing on that date, the court first noted to OCON that the TRO had been dissolved on July 17, 1992, and inquired as to what else it desired in its motion to vacate. OCON recited the procedural history of the case and then explained it sought a ruling that the TRO was wrongfully issued on July 15, 1992. The State’s position was that the matter was moot because the TRO had been complied with, the necessity for continuing the TRO was not present, and section 43(a) of the Act had been complied with.

OCON then voiced its objection to the State’s contention that the matter was moot. OCON noted section 11 — 110 of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 11 — 110), which provides that after a TRO or preliminary injunction has been dissolved, the enjoined party can seek damages for the wrongfully issued TRO or preliminary injunction. OCON asserted this involved a two-step procedure wherein the court first determines whether the TRO or preliminary injunction was wrongfully issued, and if so, then holds a hearing on damages. The court noted that section 11 — 110 of the Code calls for a petition to be filed setting forth the nature and amount of damages claimed. The court noted there was no such petition on file. OCON insisted it was entitled to a hearing on whether the TRO entered on July 15 was properly issued before it had to file a petition regarding the amount of damages sought. The State indicated it would waive the requirement of filing the petition and allow the court to make a ruling on whether the TRO was properly issued.

The court first ruled that section 11 — 101 of the Code did not apply to the proceedings on July 15, 1992, because of the specialized nature of section 43(a) of the Act.

On November 18, 1992, the written order on OCON’s August 3, 1992, motion to vacate and its July 17, 1992, motion to dissolve was entered. The court made the following findings:

“1. For the purposes of the Court ruling upon the above-referenced motions, the plaintiff has waived any necessity of a petition filed pursuant to paragraph 11 — 110 of the Code of Civil Procedure.
2. That the provisions of Section 11 — 101 of the Code of Civil Procedure do not apply to an ex parte temporary restraining order issued pursuant to 1043(a) of Chapter llltfe.
3. That the Court’s hearing of July 17, 1992, complied with the requirements of 1043(a) of Chapter lll1^ that the court hold a hearing within three days of the issuance of an ex parte restraining order issued pursuant to that section.
4. That a finding that circumstances of ‘substantial danger’ exist as required by 1043(a) of Chapter HV-k may be made upon the unverified representations of a State’s Attorney or Attorney General.
5. That the court’s procedure in issuing the ex parte order of July 15, 1992, did not violate the Fifth or Fourteenth Amendments of the United States Constitution or Article I, Section 2 of the Illinois Constitution.
6. That the court’s order of July 15, 1992, was not overly broad and did not go beyond the authority of this court to issue an ex parte restraining order pursuant to Chapter HV-lz, 1043(a).”

The trial court’s order denied the motion to dissolve the TRO and the motion to vacate the TRO.

The State first contends the issues raised in this appeal are moot. Generally, the State argues that OCON wants the TRO issued on July 15, 1992, dissolved but since the trial court already dissolved the TRO on July 17, the issues presented here are moot. The State suggests that reversal of the November 18, 1992, order would have no result because the TRO was dissolved on July 17, 1992, thereby rendering OCON’s claims moot as of that date.

OCON responds that the issues presented by this appeal are not moot. First, OCON alleges it preserved the issues by filing its motion to dissolve on July 17, and attempting to have a hearing that day on that motion. OCON further contends there remains an actual controversy between the parties as to whether it is entitled to damages as a result of the improperly granted TRO, assuming that the TRO was in fact improperly granted.

A case becomes moot when, pending the decision on appeal, events occur which render it impossible for the reviewing court to grant effectual relief to any of the parties. (Bluthardt v. Breslin (1979), 74 Ill. 2d 246, 250, 384 N.E.2d 1309, 1311.) An injunction that has expired can no longer be dissolved because the court cannot dissolve that which no longer exists. (Emerson Electric Co. v. Sherman (1986), 150 Ill. App. 3d 832, 836, 502 N.E.2d 414, 417.) This conclusion, however, does not mean that damages under section 11 — 110 of the Code are never available in those cases where the preliminary injunction expires by its own terms before a reviewing court can consider whether it was improperly issued.

In Bettendorf-Stanford Bakery Equipment Co. v. U A W Local Union No. 1906 (1977), 49 Ill. App. 3d 20, 363 N.E.2d 867, in rejecting the plaintiff’s argument that the appeal dealt with a moot question because the restraining order had expired and no effectual relief could be granted, the court stated:

“By timely moving to vacate the TRO and then perfecting their appeal, defendants preserved for review the question whether or not the TRO was wrongfully issued. The question of damages, if any, does not come into issue until and unless an adjudication is made that the issuance was wrongful.” Bettendorf-Stanford, 49 Ill. App. 3d at 22, 363 N.E.2d at 869.

In this case, OCON had filed a motion to dissolve the TRO. The trial court’s docket order of July 17, 1992, does not make any ruling upon OCON’s motion. OCON then filed a motion to vacate and appealed the July 17, 1992, order, which was dismissed by this court on September 1,1992.

The issues presented by this appeal are not moot.

As to the merits of this appeal, OCON first alleges the trial court erred in concluding that the provisions of section 11 — 101 of the Code did not apply to a TRO issued pursuant to section 43(a) of the Act. OCON contends that since section 43(a) merely provides that the State can seek an “immediate injunction” but fails to explain the specific procedures for obtaining such relief, the procedures of section 11 — 101 of the Code must apply.

Section 11 — 101 of the Code states in pertinent part:

“No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon. Every temporary restraining order granted without notice shall be indorsed with the date and hour of signing; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after the signing of the order, not to exceed 10 days ***.” Ill. Rev. Stat. 1991, ch. 110, par. 11-101.

In this case, the TRO was issued after an ex parte hearing and was based on the representations of the State. No transcript of this proceeding was made. The complaint seeking the TRO did not comply with section 11 — 101 of the Code because it was neither verified nor supported by affidavit. OCON notes that the TRO did not comply with section 11 — 101 of the Code because it did not (1) define the injury, (2) state why the injury was irreparable or substantial, (3) state why it was granted without notice, or (4) contain a self-executing expiration date.

This exact issue was raised in the fifth district case of People v. Conrail Corp. (1993), 245 Ill. App. 3d 167, 613 N.E.2d 784, which involves the same parties and subject matter as the present case. In that case, a TRO was issued on July 8, 1992, ordering defendants to move the railcars that contained MSW and were leaking leachate. A hearing “on the matter” was held on July 14, 1992. On that date, the trial court heard evidence and then found that the State had presented a prima facie case for a preliminary injunction. The fifth district agreed with the trial court’s conclusion that the requirements of section 11 — 101 of the Code do not apply to injunctive actions under the Act. This is the same conclusion reached by the trial court in this matter.

As in that case, OCON has offered no reason or authority to support its position that the requirements of section 11 — 101 of the Code apply to injunctive actions under section 43(a) of the Act except for the fact that section 11 — 101 of the Code exists. The trial court adhered to the procedural legal standards of section 43(a) of the Act and was not required to comply with the requirements of section 11 — 101 of the Code.

Next, OCON argues the trial court failed to comply with the requirements of section 43(a) of the Act. OCON contends (1) the TRO cannot be based on unverified representations by the State; (2) the hearing on July 17, 1992, should have been on whether the TRO had wrongfully been issued; and (3) the TRO issued on July 15, 1992, was overly broad and beyond the scope of the court’s authority to issue such orders.

OCON’s first argument is basically a restatement of its previous contention that the requirements of section 11 — 101 of the Code, namely the requirement that a complaint for a TRO be verified or accompanied by an affidavit, apply to TROs issued under section 43(a) of the Act. As we have resolved that issue in the preceding paragraphs, we will not discuss it again here.

OCON contends its due process rights were violated because the TRO was issued without notice, thereby causing it to incur “hundreds of thousands of dollars damage” by moving the railcars.

Generally, notice and a hearing prior to any governmental action is a constitutional prerequisite. In extraordinary or emergency situations, however, due process will be satisfied by a post-deprivation hearing. The protection of the public health and safety is a paramount governmental interest which justifies summary administrative action. Where the public health is threatened, an administrative agency may act first and litigate later. (City of Quincy v. Carlson (1987), 163 Ill. App. 3d 1049, 1054, 517 N.E.2d 33, 36.) The potential release of hazardous waste into the environment is the very type of extraordinary or emergency situation which justifies a post-deprivation hearing. There is a strong public interest in protecting the public health and environment. Accordingly, statutes which were enacted for the protection and the preservation of public health are to be given extremely liberal construction for the accomplishment and maximization of their beneficial objectives. Consequently, the lack of a preenforcement hearing does not offend due process principles. City of Quincy, 163 Ill. App. 3d at 1054, 517 N.E.2d at 36.

Because of the involvement of these same parties in other similar actions, the trial court should have given serious consideration to requiring notice. However, the extraordinary and emergency situation presented here, due to the threat of the public health and safety and the safety of the environment, establishes that the initial ex parte hearing on the TRO did not violate any due process rights of OCON. It was necessary in this case to have an immediate hearing on the TRO because of the potential danger in the continuation of harm to the environment and public health and welfare. OCON was afforded a post-deprivation hearing pursuant to the statute within three days of the issuance of the TRO, which was sufficient to prevent any due process violations.

OCON next asserts the hearing on July 17 should have been to determine whether the TRO was wrongfully issued. Section 43(a) of the Act provides that the court “shall schedule a hearing on the matter not later than 3 working days from the date of injunction.” (Ill. Rev. Stat. 1991, ch. 1111/2, par. 1043(a).) What constitutes a hearing “on the matter” is not defined. The trial court believed the hearing was to determine whether the TRO should be continued. The State’s complaint sought the hearing to have the court issue a preliminary injunction against OCON.

The purpose of the hearing three days after the issuance of the TRO is to determine whether the TRO needs to be continued and whether the trial court should grant a preliminary injunction. The trial court held the hearing on this basis rather than determining whether the TRO was wrongfully issued. The trial court here never specifically found whether the TRO was wrongfully issued because it instead determined that the issues were moot since OCON had complied with the TRO. At the November 9, 1992, hearing, the trial court and counsel had extended dialogue as to the procedures to be followed when it is alleged an ex parte order is entered wrongfully. As we have stated heretofore, defendant asserted a two-step procedure, first to determine whether the TRO was wrongfully issued, and second, to determine damages. The trial court’s assessment of section 11 — 110 determined that both steps would be in a single petition and because the TRO had been dissolved, any petition alleging its wrongful issuance would present a moot question. We agree with the Boltz court, “We believe that the motion to dissolve the injunction should have been heard first ***.” Boltz v. Estate of Bryant (1988), 175 Ill. App. 3d 1056, 1063, 530 N.E.2d 985, 989.

We dismissed the first appeal of this cause by OCON because there was no final order on the motion to dissolve filed July 17, 1992, nor on the motion to vacate filed August 3, 1992. On November 9, 1992, the trial court heard these motions. At that hearing, the trial court specifically ruled on the defendant’s motion to dissolve and vacate the TRO. In the process, the trial court rejected all of the grounds alleged by OCON in its claim that the TRO was wrongfully issued. Thus, the trial court found that the TRO was not wrongfully issued. We agree with the trial court’s reasoning on each of those issues. Accordingly, we have no need to reach the question of damages.

In conclusion, we find (1) the issues presented by this appeal are not moot, (2) the provisions of section 11 — 101 of the Code do not apply to injunctive actions pursuant to section 43(a) of the Act, (3) no due process violations occurred, and (4) the ex parte order entered July 15,1993, was not wrongfully issued.

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

Affirmed.

GREEN, J., concurs.

PRESIDING JUSTICE STEIGMANN,

specially concurring:

Although I agree with the result reached in the majority opinion and with much of what is said therein, I do not agree that this court need say it. In my judgment, because OCON never filed a petition for damages under section 11 — 110 of the Code, the trial court did not (and did not have to) address OCON’s assertion that the July 15 TRO had been wrongfully issued; accordingly, this court has nothing to review.

As the majority opinion notes, OCON asserts that proceedings under section 11 — 110 first require a determination by the trial court whether the TRO was wrongfully issued, and then second, a hearing on damages. Consistent with this assertion, OCON insisted throughout this litigation that it was entitled to a hearing on whether the July 15 TRO was properly issued. The trial court informed OCON that the court did not agree with OCON’s two-stage analysis; instead, the court believed OCON needed to file a petition for damages under section 11 — 110 of the Code, and the court would then conduct a hearing to determine damages, assuming it found liability to exist. I think the trial court’s position on this point was correct. At the July 17, 1992, hearing, the trial court stated that the TRO had achieved its purpose (the court noted the train had been moved), and the court was not going to extend the TRO further because the matter had become moot. Thus, the trial court correctly determined there was no need to address OCON’s July 17, 1992, motion to dissolve the July 15 TRO.

None of the cases cited by the majority in support of its claim that OCON did not need to file a section 11 — 110 petition for damages addresses the precise situation presented here: the trial court’s determination that a TRO expired before the trial court entertains the defendant’s motion to dismiss. For example, in Emerson Electric Co. v. Sherman (1986), 150 Ill. App. 3d 832, 836, 502 N.E.2d 414, 417, the defendant never filed a motion to dissolve the preliminary injunction before it expired by its own terms, so the court’s discussion of what should have happened if the defendant had done so is only dicta. Furthermore, section 11 — 110 of the Code is a statutory remedy, and we ought not construe statutes as if the legislature intended to require courts to engage in nugatory acts, such as conducting a hearing on a TRO that has already expired. Instead, we should construe section 11 — 110 in such circumstances as simply requiring the filing of a petition for damages in order to trigger that section’s procedures.

Of more serious concern to me than the above discussion on section 11 — 110 is the outrageous conduct in this case of the Illinois Attorney General’s office, which represented the IEPA. On July 15, 1992, attorneys from that office presented the circuit court of Livingston County with a complaint for the TRO which the court ultimately issued. However, the Attorney General’s office never informed counsel for OCON that it was going to seek the Livingston County TRO even though an assistant Attorney General prepared the petition on July 12, 1992, and on July 14, 1992 (the day before appearing in Livingston County), the same parties and the same lawyers dealt with the same issues in the circuit court of St. Clair County. Indeed, the St. Clair County proceeding ultimately resulted in the Fifth District Appellate Court’s decision discussed at length in the majority opinion.

Under these facts, the failure of the Attorney General’s office to notify counsel for OCON is inexcusable and shocking. Apparently, someone at the Attorney General’s office thinks that this conduct amounts to good, lawyer-like “hardball tactics,” but I disagree. I deem their conduct sleazy and unprofessional. If the laws of this State and the rules of the Supreme Court of Illinois do not permit sanctions to be imposed for this conduct, then those laws or rules need to be changed.

Further, this case is a good example of why trial judges should always inquire of an attorney seeking a TRO what efforts he or she has made to inform the affected party that a TRO will be sought. When, as here, judicial inquiry would reveal not only a preexisting relationship (albeit adversarial), but also that no notice had been given despite the opportunity to do so, then the trial court should emphatically deny the petition and tell petitioner’s counsel bluntly and directly what the court thinks of such tactics. Trial judges should remember that no petitioner is entitled to the issuance of a TRO, even if the petition therefor might be sufficient. The question of whether to issue a TRO is still left to the sound discretion of the trial court.

For years courts throughout this nation have complained about the loss of civility in the practice of law and wondered what they can do to reverse this trend. This case provides a textbook example of the lack of civility we have complained about, and if we judges in Illinois tolerate conduct like this, then we have lost our moral authority to complain.