author: JUSTICE COCCIA PRESIDING JUSTICE COCCIA

text:
    COUNTY OF COOK, Cermak Health Services, Petitioner, v. ILLINOIS LOCAL LABOR RELATIONS BOARD et al., Respondents.
    First District (5th Division)
    No. 1—87—3254
    Opinion filed June 30, 1989.
    Rehearing denied November 13, 1989.— Supplemental opinion filed February 16, 1990.

      Cecil A. Partee, State’s Attorney, of Chicago (Iris E. Sholder and Harold E. McKee III, Assistant State’s Attorneys, of counsel), for petitioner.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William D. Frazier, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois State Local Labor Relations Board.
    Ann C. Hodges, of Katz, Friedman, Schur & Eagle, of Chicago, for respondent General Service Employees Union.
   JUSTICE COCCIA

delivered the opinion of the court:

Petitioner County of Cook, Cermak Health Services, takes this direct appeal from a Local Labor Relations Board order entered in favor of respondent General Service Employees Union, Local 73, SEIU, AFL-CIO. The board directed petitioner to cease and desist from imposing new employment qualifications upon incumbent employees, unless it first offered to bargain with respondent over those qualifications. We have concluded, however, that Illinois Supreme Court Rule 303(a) (107 Ill. 2d R. 303(a)) governs direct review of board orders; therefore, since petitioner did not commence its appeal within 30 days as required by Rule 303(a), it must be dismissed for lack of jurisdiction.

Petitioner provides health care services to persons incarcerated at the Cook County Department of Corrections. In February 1987, petitioner’s director posted a notice, announcing that if certain classes of emergency medical technicians wished to retain their jobs, they would be required to obtain paramedic licenses from the State of Illinois. Such licensing had not been required previously. Respondent, which represents employees affected by the new requirements, filed a grievance with the board on February 13, 1987. Respondent accused petitioner of committing an unfair labor practice, by not bargaining over the imposition of the new job prerequisites prior to adopting them.

Based upon this charge, the board issued a complaint on February 26, 1987. On July 2, 1987, a hearing officer concluded that petitioner, by failing to bargain with respondent, violated the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1601 et seq.): The hearing officer recommended that petitioner be ordered to cease and desist from imposing changes in the employment conditions of the incumbent employees, unless it first bargained in good faith with respondent regarding those changes.

Petitioner and respondent thereafter filed exceptions with the board to the hearing .officer’s recommended decision. On September 21, 1987, the board issued a cease and desist order. The board further directed petitioner to rescind the new employment qualifications as to the incumbent employees, and to reinstate, with back pay, incumbent employees displaced as a result of the new job prerequisites.

Petitioner filed its petition for review with the clerk of this court on October 23, 1987, 32 days after the board’s order was entered. A petition for review is, in essence, a notice of appeal. (See 107 Ill. 2d R. 335, Committee Comments, at 444.) Supreme Court Rule 303(a) provides:

“[T]he notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from ***.” (107 Ill. 2d R. 303 (a)(1).)

If an appeal is not commenced within 30 days after the entry of the order appealed from, the appellate court lacks jurisdiction. (See Bolin v. Sosamon (1989), 181 Ill. App. 3d 442, 445, 537 N.E.2d 11, 12.) Accordingly, we raised the issue of timeliness sua sponte at oral argument. See In re Marriage of Lawrence (1986), 146 Ill. App. 3d 307, 309, 496 N.E.2d 538, 540.

I

The procedure for obtaining review of Local Labor Relations Board orders is described in section 11(e) of the Illinois Public Labor Relations Act:

“A charging party or any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may apply for and obtain judicial review of an order of the Board entered under this Act, in accordance with the provisions of the Administrative Review Law, as now or hereafter amended, except that such judicial review shall be afforded directly in the appellate court ***.” (Ill. Rev. Stat. 1987, ch. 48, par. 1611(e).)

Turning to section 3 — 103 of the Administrative Review Law, we find:

“Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.” Ill. Rev. Stat. 1987, ch. 110, par. 3-103.

As a matter of common sense, however, section 3 — 103 does not apply to direct review of administrative decisions in the appellate court, for it requires “the filing of a complaint and the issuance of summons” in order to commence review. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 103.) This is the language of circuit court practice, not appellate court practice. Undoubtedly, the legislature’s use of such terms can be traced to the fact that the Administrative Review Law contemplates review by the circuit, and not the appellate, court.

Thus, the supreme court was moved to promulgate Supreme Court Rule 335 (107 Ill. 2d R. 335), in order to clarify which sections of the Administrative Review Law are appropriate for direct review by the appellate court, rather than the circuit court. Indeed, the committee comments to Rule 335 state:

“A number of Administrative Review Act requirements are not suitable for the direct review of administrative orders by the Appellate Court.” 107 Ill. 2d R. 335, Committee Comments, at 443.

The comments continue:

“[T]he petition for review serves the function of the notice of appeal, and nothing else *** .” (107 Ill. 2d R. 335, Committee Comments, at 444.)

The similarity between the petition for review and the notice of appeal is confirmed by the text of Rule 335(b), wherein the supreme court ordains that Rule 303(d), which governs service of the notice of appeal, shall govern service of the petition for review. 107 Ill. 2d R. 335(b).

Ultimately, it is the plain language of Supreme Court Rule 335(h) which establishes that Rule 303(a) is suitable for direct review of Local Labor Relations Board orders, and that section 3— 103 of the Administrative Review Law is unsuitable for such review. Rule 335(h) provides:

“(1) Insofar as appropriate, the provisions of Rules 301 through 373 (except for Rules 321 through 326) are applicable to proceedings under this rule. ***
(2) Sections 3-101, 3 — 108(c), 3-109, 3-110, and 3-111 of the Code of Civil Procedure [the Administrative Review Law] are applicable to proceedings to review orders of the agency.” (107 Ill. 2d R. 335(h).)

Because Rule 303(a) is within the rules listed as appropriate in sub-paragraph (1) of Rule 335(h), it is suitable for direct review of board orders. Additionally, the committee comments quoted above confirm that a petition for review is a notice of appeal in everything but name, so the rule governing the timeliness of such notices — Rule 303(a) — should govern the timeliness of petitions for review.

Moreover, since the supreme court omitted section 3 — 103 from the Administrative Review Law sections listed in subparagraph (2) of Rule 335(h), that section is not suitable for direct review of board orders. Expressio unius est exclusio alterius. (See 2A N. Singer, Sutherland Statutory Construction §47.23 (4th ed. 1984).) In other words, when the supreme court enumerated specific sections of the Administrative Review Law in subparagraph (2) of Rule 335(h), that enumeration implied the exclusion of other Administrative Review Law sections not enumerated — including section 3-103. (See In re Sneed (1977), 48 Ill. App. 3d 364, 368, 363 N.E.2d 37, 40, aff’d (1978), 72 Ill. 2d 326, 381 N.E.2d 272; see also Rubens v. Hill (1905), 213 Ill. 523, 539, 72 N.E. 1127, 1131-32.) By implication, then, section 3 — 103 of the Administrative Review Law does not govern direct review of board orders.

We think our holding is also required by respect for the constitutionally enshrined principle of separation of powers. The importance of that principle in this State is illustrated by the fact that the Illinois Constitution, unlike its Federal counterpart, explicitly recognizes it:

“The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.” (Ill. Const. 1970, art. II, §1.)

And article VI, section 1, provides:

“The judicial power is vested in a Supreme Court, an Appellate Court and Circuit Courts.” Ill. Const. 1970, art. VI, §1.

The Illinois Constitution clearly empowers the supreme court to promulgate procedural rules to facilitate the judiciary’s discharge of its constitutional duties. In certain circumstances, however, the authority to promulgate procedural rules can be concurrent between the supreme court and the General Assembly. (See O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 281, 492 N.E.2d 1322, 1326.) In section 11(e) of the Illinois Public Labor Relations Act, the legislature did not expressly preempt Supreme Court Rule 303(a); that is, section 11(e) says nothing about the time within which direct review must be commenced. The General Assembly, however, has expressly preempted Rule 303(a) in other administrative statutes, by providing different times within which direct review must be initiated. (See, e.g., Peoples Gas, Light & Coke Co. v. Illinois Commerce Comm’n (1988), 175 Ill. App. 3d 39, 529 N.E.2d 671; Getty Synthetic Fuels, Inc. v. Pollution Control Board (1982), 104 Ill. App. 3d 285, 432 N.E.2d 942.) Were we to hold that the Administrative Review Law’s section 3 — 103 governs here, we would in effect be holding that the legislature may impliedly pre,empt the supreme court’s rules. The proposition that the General Assembly may impliedly preempt such rules ultimately rests upon the assumption that the Illinois courts are nothing more than the judicial arm of the legislature. Our supreme court has rejected that assumption. (See People v. Walker (1988), 119 Ill. 2d 465, 475, 519 N.E.2d 890, 893.) In fact, to recognize that the General Assembly may exercise its concurrent power by implication could provide precedent for future inroads upon the separation of powers doctrine, which preserves the delicate constitutional balance of power. Consequently, we decline to hold that the legislature has impliedly preempted Supreme Court Rule 303(a) in section 11(e) of the Illinois Public Labor Relations Act.

II

At oral argument we learned that the issue of whether direct review of Local Labor Relations Board orders must be commenced within 30 or 35 days is apparently a topic of debate among members of the bar. Subsequently, on March 16, 1989, we allowed petitioner to file a supplemental response concerning the jurisdictional issue. First, petitioner argues that the clerk of this court accepted its petition for review without objection, thereby confirming that the 35-day deadline of the Administrative Review Law’s section 3— 103 applies, rather than the 30-day deadline of Supreme Court Rule 303(a). Second, petitioner argues that the 35-day deadline governs, upon the authority of the first district, fourth division’s decision in Peoples Gas.

Petitioner does not deny that its petition for review was filed more than 30 days after the entry of the board’s order. Nevertheless, petitioner contends that because the clerk of this court accepted its petition without objection, and within 35 days after entry of the board’s order, its construction of the governing deadline has been confirmed. The conclusion that a petition is timely filed, thereby vesting the reviewing court with jurisdiction, does not follow from the premise that it has been accepted without objection by the clerk. The short answer to petitioner’s contention is that the clerk has no authority to bind this court regarding jurisdictional issues, and that such authority cannot be presumed from the clerk’s mere acceptance of a petition without objection. We would never hold that a notice of appeal was timely filed solely because the clerk accepted it without objection. As stated previously, a petition for review is virtually identical to a notice of appeal. Thus, we cannot hold that the clerk’s mere acceptance of petitioner’s petition'for review without objection more than 30 days, but less than 35 days, after entry of the board’s order disposes of the jurisdictional issue before us.

In addition, Peoples Gas is inapposite. In that case, a gas company sought direct appellate administrative review of an Illinois Commerce Commission order. The gas consumer argued that the appellate court lacked subject matter jurisdiction, since the gas company filed its petition for review within 30 days after service of the commission’s order denying rehearing, rather than within 30 days after entry of the order. The court rejected this argument, refusing to hold that Rule 303(a) preempted section 10 — 201(a) of the Public Utilities Act (Ill. Rev. Stat. 1985, ch. 1112/s, par. 10— 201(a)). Section 10 — 201(a) enacted:

“Within 30 days after the service of any order *** of the Commission refusing an application for a rehearing *** any person or corporation affected by such *** order *** may appeal to the appellate court *** for the purpose of having the reasonableness or lawfulness of the *** order *** inquired into and determined.” (Ill. Rev. Stat. 1985, ch. 1112/s, par. 10 — 201(a).)

Therefore, the court was faced with a conflict between Rule 303(a), which required commencement of the appeal within 30 days after the order’s entry, and section 10 — 201(a), which required commencement within 30 days after the order’s service.

We are faced with no such conflict here. Unlike section 10— 201(a) of the Public Utilities Act, section 11(e) of the Illinois Public Labor Relations Act does not expressly preempt Rule 303(a), for it says nothing about the time within which direct administrative review must be commenced. Accordingly, Peoples Gas is not precedent for petitioner’s claim that the 35-day deadline of the Administrative Review Law’s section 3 — 103 governs in our case.

City of Benton Poliee Department v. Human Rights Comm’n (1986), 147 Ill. App. 3d 7, 497 N.E.2d 876, cited in Peoples Gas, more closely resembles this case. In City of Benton, the Human Rights Commission moved to dismiss petitions for review on the grounds that they violated the 30-day appeal period of Supreme Court Rule 303(a). Like section 11(e) of the Illinois Public Labor Relations Act, section 8 — 111(A) of the Illinois Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, par. 8 — 111(A)) referred to the Administrative Review Law in general terms, but did not expressly preempt Rule 303(a), because the latter section did not provide a specific time within which direct review had to be commenced. (Section 8 — 111(A) has since been amended — by Public Act 85 — 676, effective Jan. 1, 1988 — to provide specifically that direct review must be initiated within 35 days.) The Commission contended that Rule 303(a) applied, by virtue of Rule 335(h)(1). In particular, argued the Commission, Rule 335(h)(1) expressed the supreme court’s intent to apply Rule 303(a)’s 30-day appeal period to cases of direct review of final agency decisions.

While the fifth district conceded that the Commission’s claims were logical, it refused to dismiss the case. (City of Benton, 147 Ill. App. 3d at 11, 497 N.E.2d at 879.) In the course of its analysis, the court did not consider the fact that the legislature failed to expressly preempt Rule 303(a) in section 8 — 111(A) of the Illinois Human Rights Act, by not mandating a particular time within which direct review had to be taken. Yet the fifth district invoked this court’s decision in Getty Synthetic Fuels, asserting that we therein acknowledged the General Assembly’s authority to determine the period within which a petition for review must be filed. City of Benton, 147 Ill. App. 3d at 13, 497 N.E.2d at 881.

The fifth district’s opinion is not binding upon us (see Corbett v. Devon Bank (1973), 12 Ill. App. 3d 559, 567, 299 N.E.2d 521, 525), and we regretfully disagree with its reasoning. We believe our decision in Getty Synthetic Fuels does not support City of Benton’s rationale. In the former case, section 41 of the Environmental Protection Act expressly preempted Supreme Court Rule 303(a), in that it provided a specific time within which direct review had to be initiated. (Ill. Rev. Stat. 1979, ch. 1111/2, par. 1041.) In contrast, the administrative statute at issue in City of Benton, like the administrative statute at issue here, did not expressly preempt Rule 303(a), as it failed to specify a particular time within which direct review had to be commenced. Thus, the fifth district’s reliance on Getty Synthetic Fuels was misplaced.

A closer reading of Getty Synthetic Fuels actually supports the result we reach today, since it is precedent for the application of Supreme Court Rule 303 via Rule 335(h)(1). In Getty Synthetic Fuels, we held that Supreme Court Rule 303(e) applied, by virtue of Rule 335(h)(1), to extend the time within which direct review must be initiated. (Getty Synthetic Fuels, 104 Ill. App. 3d at 288-89, 432 N.E.2d at 945.) In order to hold that the Administrative Review Law’s section 3 — 103 applies here, we would be required to hold that Rule 303(a) is inapplicable, thereby abandoning the reasoning of our prior decision. It would be inconsistent to hold now that paragraph (a) of Rule 303 does not apply through Rule 335(h)(1), given our holding in Getty Synthetic Fuels that paragraph (e) of Rule 303 applies through Rule 335(h)(1). Furthermore, we perceive no principled basis for such a decision.

In conclusion, we do not wish to be understood as holding that section 11(e) of the Illinois Public Labor Relations Act and Supreme Court Rule 303(a) are in conflict. On the contrary section 11(e), unlike other administrative laws, does not expressly preempt Rule 303(a). The Administrative Review Law’s section 3 — 103 contemplates review by the circuit court, not the appellate court. Supreme Court Rule 335(h), however, simultaneously includes Rule 303(a), while it excludes section 3 — 103. Rule 303(a) clearly governs appellate practice.

Since we have concluded that Supreme Court Rule 303(a)’s 30-day deadline applies in our case, and since petitioner did not commence its appeal within 30 days, this appeal must be dismissed for want of jurisdiction.

Appeal dismissed.

MURRAY, P.J., and PINCHAM, J., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

PRESIDING JUSTICE COCCIA

delivered the opinion of the court:

On July 20, 1989, County of Cook, Cermak Health Services (Cook County), filed a petition for rehearing. We subsequently ordered briefing. General Service Employees Union, Local 73, SEIU, AFL-CIO, filed its answer in opposition to the petition on August 18, 1989; on August 21, 1989, the Local Labor Relations Board (board) filed its answer. Cook County’s reply to the answers was filed on September 1,1989.

In the petition for rehearing, Cook County reargues points raised in its supplemental response. As noted in our opinion of June 30, 1989, we granted Cook County leave to file the supplemental response after oral argument, when we raised sua sponte the issue of whether its appeal had been taken in a timely fashion. We addressed the points Cook County now reargues in that opinion and see no reason to revisit them here. Indeed, Hlinois Supreme Court Rule 367(b) forbids reargument in petitions for rehearing. See 113 Ill. 2d R. 367(b).

In addition, however, Cook County argues a new point in its petition for rehearing. Cook County now urges that its petition for review was timely filed when measured by the board’s own rules. Supreme Court Rule 367(b) likewise provides for rehearing on only those “points claimed to have been overlooked or misapprehended by the court” in its original opinion. (See 113 Ill. 2d R. 367(b); see also People v. Mallett (1970), 45 Ill. 2d 388, 397-98, 259 N.E.2d 241, 246.) Cook County failed to advance this contention in its supplemental response, although it had the opportunity to argue whatever points it wished regarding the jurisdictional question we raised. As Supreme Court Rule 367(b) does not permit either the argument of new points on rehearing, or reargument, Cook County’s petition for rehearing must be denied.

Petition denied.

MURRAY and PINCHAM, JJ., concur.

       Justice R. Eugene Pincham participated in this case prior to his resignation, which participation included concurrence in the majority opinion filed on June 30, 1989, and the order denying the petition for rehearing filed on November 13, 1989, and approval of the supplemental opinion filed herein.


source: Caselaw Access Project

author: PRESIDING JUSTICE BARRY

license: Public Domain

text:
    AUTO-TROL TECHNOLOGY CORPORATION v. THE INDUSTRIAL COMMISSION et al. (Robert Gasparich, Appellee).
    First District (Industrial Commission Division)
    Nos. 1—87—3767WC, 1—88—3741WC cons.
    Opinion filed August 25, 1989.

      Garofalo, Hanson, Schreiber & Vandlik, Chartered, of Chicago (Joseph A. Garofalo and Gregory P. Sujack, of counsel), for appellant.
    Wiedner & McAuliffe, Ltd., of Chicago (Russell P. Standlee, of counsel), for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The petitioner, Robert Gasparich, filed an application for adjustment of claim under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) for injuries he received in an accident on August 22, 1982. Following a hearing, the arbitrator found that the petitioner had sustained permanent, totally disabling injuries arising out of and in the course of his employment with the respondent, Auto-Trol Technology Corporation. The arbitrator further found that the petitioner was entitled to receive from the respondent, inter alia, payment for all necessary medical, surgical, and hospital services and the sum of $227.89 per week for life, pursuant to sections 8(a) and 8(f) of the Act (Ill. Rev. Stat. 1987, ch. 48, pars. 138.8(a), 138.8(f)). The Industrial Commission (Commission) affirmed the arbitrator’s decision, and the circuit court of Cook County confirmed the Commission’s decision. The respondent appeals.

The record shows that the petitioner was employed by the respondent as a field engineer. The respondent was in the business of selling, installing, and maintaining computer systems utilized in designing and producing manufacturing equipment. Alex Strazzanti, the regional manager in charge of sales, was responsible for supervising the sales personnel. John Krakar, the regional manager in charge of installation and maintenance, supervised the field engineers. Krakar and Strazzanti would meet to discuss problems concerning the working relationship between the sales personnel and the field engineers. Krakar testified that in an attempt to strengthen that relationship, the field engineers tried to get together with their sales counterparts every summer.

In August of 1982, Krakar and Strazzanti met to discuss problems which had developed between their respective divisions. It was decided that the two groups of employees needed to get together in a setting away from the office and attempt to work out their difficulties. They were unable to secure a pavilion in a local forest preserve for the event, so Strazzanti offered the use of his home. Krakar and Strazzanti planned and organized the event. They scheduled the picnic for Sunday, August 22, 1982, and posted an announcement in the office. The parties stipulated that this announcement was drafted by a secretary and not by Krakar. Spouses were invited, but the announcement requested that children not attend.

Krakar testified concerning a conversation he had with the petitioner on the Friday afternoon before the picnic. The petitioner asked Krakar if it was mandatory that he attend the function. Krakar told him “that it would serve his career very well if he attended [the] function.” Krakar further testified that a couple of weeks earlier he had emphasized the importance of working with the sales staff. According to Krakar, the petitioner was present when he made that point. The petitioner testified that he was unable to recall the picnic or anything which had taken place in the days before the accident.

Ronald Zivic, a field engineer working out of the Milwaukee office, testified that Krakar had told him he had to come to the picnic and spend time with his counterparts. Zivic told Krakar he had other plans and Krakar said, “[N]o, you will be there.” Zivic changed his plans and attended the picnic. The record shows that only two field engineers did not attend the function. One engineer’s wife was expecting a baby and the other was in a family wedding.

At the picnic, food and beverages were served and those attending played touch football and bocci ball. Krakar and Strazzanti organized teams for the games so that engineers and sales people would be mixed together on each team. Krakar instructed the engineers to spend time with their respective counterparts in sales at the picnic. Zivic testified that “a lot” of business was discussed.

Zivic and his brother Ken, who was also a field engineer, discovered a motorcycle in Strazzanti’s garage. Strazzanti commented that the motorcycle had not run for a year. Eventually, the Zivics were able to get the motorcycle in running order. Both Zivics took the motorcycle for a brief ride. Strazzanti voiced concern about the safety of the motorcycle, but said it was okay after riding it himself. The petitioner was the fourth person to ride the motorcycle. After riding around the block, he turned into Strazzanti’s driveway. As he did so, the motorcycle suddenly accelerated, cut across two lawns, and hit a neighboring house. The petitioner was found unconscious under the motorcycle.

The record shows that the petitioner sustained extensive head injuries and was in a coma for a number of weeks. It also shows that in the opinion of Dr. Mary Keen, his treating physician, the petitioner was totally disabled.

At the arbitration hearing, a copy of a letter addressed to the Industrial Commission from James E. Wilkes, the respondent’s director of human resources, was admitted into evidence. In the letter, Wilkes stated: “As the employer, we feel that the occurrence should be covered under Workman’s Compensation, in that it occurred during a formal Company Picnic.”

The arbitrator found that the petitioner had attended the company picnic “at the direction of and implied order” of Krakar and that Strazzanti by words and actions had made the motorcycle available at the picnic for the employees’ amusement. She further found that there was no indication that the petitioner was capable of developing skills for which there would be a market.

On review by the Commission, the majority found that the petitioner’s attendance at the company picnic had been mandatory and that Strazzanti’s actions had ratified the use of the motorcycle by the petitioner. It therefore affirmed the arbitrator’s decision. Commissioner Holland dissented, concluding that based on the evidence the petitioner had not been ordered to attend, nor had the accident resulted from the respondent’s providing an amusement device. The circuit court confirmed the majority’s decision, and the respondent appeals.

The following issues are raised on appeal: (1) whether the circuit court had jurisdiction over the original appeal filed in the instant cause; (2) whether as a matter of law, the petitioner was ordered or assigned to participate in the picnic, and in the alternative, whether the Commission’s finding that he was so ordered was against the manifest weight of the evidence; and (3) whether the Commission erred in finding that the petitioner’s injuries arose out of his employment.

Initially, we note that at oral arguments jurisdiction was conceded. We therefore need not address this issue. The circuit court’s ruling on the jurisdictional question is affirmed.

The respondent next contends that the Commission erred as a matter of law in finding that the petitioner was ordered or assigned to attend the picnic within the meaning of section 11 of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.11). It argues that the facts were not in dispute and that the Commission could make only one reasonable inference from those facts: the petitioner was not ordered to attend.

Only when the undisputed facts are susceptible to but a single inference does the issue become one of law. (Fischer v. Industrial Comm’n (1986), 142 Ill. App. 3d 298, 491 N.E.2d 1333.) If undisputed facts upon any issue permit more than one reasonable inference to be drawn therefrom, the determination of such issue presents a question of fact, and the conclusion of the Industrial Commission will not be disturbed on review unless it is against the manifest weight of the evidence. Orsini v. Industrial Comm’n (1987), 117 Ill. 2d 38, 509 N.E.2d 1005.

We agree that in the instant case the facts were not in dispute, but we do not agree, as the respondent contends, that the Commission could only draw one reasonable inference from those facts. Since the facts were susceptible to more than one inference, the issue entails a finding of fact. Our review therefore is limited to determining whether the Commission’s finding that the circumstances served to make the petitioner’s attendance at the picnic mandatory was against the manifest weight of the evidence.

Section 11 of the Act states in pertinent part: ’’Accidental injuries incurred while participating in voluntary recreational programs including but not limited to athletic events, parties and picnics do not arise out of and in the course of the employment even though the employer pays some or all of the cost thereof. This exclusion shall not apply in the event that the injured employee was ordered or assigned by his employer to participate in the program.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 48, par. 138.11.

The record shows that the picnic was held to allow the field engineers and the sales staff to meet in an informal setting to discuss work-related problems. It was held annually according to Krakar and was organized in this case after Krakar and Strazzanti determined that it was necessary for their respective staffs to meet and iron out problems which had recently developed. Krakar and Strazzanti, the respondent’s regional managers, planned and organized the entire event. Ronald Zivic testified that a great deal of business was discussed. Krakar testified that he instructed his staff to spend time with their sales counterparts at the picnic. Spouses were invited, but it was requested that children not attend. In addition, the letter from Wilkes indicates that the respondent considered the activity a formal company gathering. The record is sufficient to allow the Commission to find that attendance at the picnic was mandatory, despite the fact that Krakar did not give a definitive yes or no answer to the petitioner’s inquiry. Zivic testified that he was told he had to attend the picnic. The only field engineers not attending had overriding family commitments. Given the clear business emphasis, the Commission’s finding on this issue was not against the manifest weight of evidence.

The respondent also contends that the Commission erred in finding that the injury arose out of the petitioner’s employment. It argues that the injury arose out of a purely personal risk and that it did not arise out of a risk inherent in or incidental to the petitioner’s employment.

An injury “arising out of” one’s employment may be defined as one which has its origin in some risk so connected with, or incidental to, the employment as to create a causal connection between the employment and the injury. (Orsini v. Industrial Comm’n (1987), 117 Ill. 2d 38, 509 N.E.2d 1005.) The injury can be said to have occurred within the course of employment when the employer acquiesces and participates in the activity. See Eagle Discount Supermarket v. Industrial Comm’n (1980), 82 Ill. 2d 331, 412 N.E.2d 492.

The record is sufficient to support the Commission’s finding. Strazzanti made the motorcycle available along with the other recreational equipment. He allowed the petitioner to use the motorcycle after he himself used it and declared it okay to ride. As with the playing of football and bocci ball, the motorcycle riding was part of the activities at the picnic. Compensable injuries could also have arisen had the petitioner been injured on a broken swing provided for the employees’ use, or during the football game. In the instant case, the respondent has not provided sufficient reasons to distinguish the riding of the motorcycle from the other activities provided at the picnic. The Commission’s finding on this issue therefore was not against the manifest weight of evidence.

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

Affirmed.

McNAMARA, WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER PIETRUSZYNSKI, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—2005
    Opinion filed September 5, 1989.
    Rehearing denied November 6, 1989.

      Michael J. Pelletier and Thomas Long, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, LaCoulton Walls, and Brian Grossman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a bench trial, defendant, Walter Pietruszynski, was convicted of burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1) and sentenced to eight years’ imprisonment. On appeal, defendant contends that: (1) the State failed to prove him guilty of burglary beyond a reasonable doubt; (2) the State failed to prove that defendant was statutorily eligible to be sentenced as a Class X offender; and (3) the trial court erred in failing to advise defendant of the possibility of probation if he elects to submit to treatment pursuant to Alcoholism and Substance Abuse Act (Ill. Rev. Stat. 1987, ch. 11IV2, par. 6301 et seq.). For the following reasons, we affirm that part of the trial court’s order that found defendant guilty of burglary; reverse that part of the order which sentenced defendant as a Class X offender; and remand the cause for appropriate Class 2 sentencing.

The record sets forth the following facts relevant to this appeal. On January 12, 1986, approximately 3 a.m., Alfred Klingsheim, service investigator for Wells Fargo Alarm Systems, received an alarm from Mrs. Grass, Inc., a manufacturing plant located at 725 S. 25th Avenue in Bellwood. When Klingsheim arrived at the plant, he turned off the alarm, which was coming from the north wall of the plant, and then drove around the plant to see if any doors were open or windows broken. Because there were no visible signs of entry, Klingsheim thought the alarm system had malfunctioned. Klingsheim then entered the building and proceeded to check the various internal doors which were also hooked into the alarm system. He noticed one door had been left unbolted and then heard a noise in the cafeteria that sounded like “steel hitting the cement.” When Klingsheim realized there was someone in the cafeteria, he called the police for back up and waited behind a file cabinet, in the cafeteria. When the intruder came out, Klingsheim told him to stay where he was. However, the intruder just glanced over his shoulder and ran into the factory area of the plant. Klingsheim described the intruder as a young, white male with black hair, wearing a yellow, waist-length coat, blue trousers and boot-type shoes.

When the intruder ran into the factory area, Klingsheim started to follow him, but stopped because the factory was dark and he did not know his way around there. He noted, however, that the intruder appeared to know his way around the factory. Klingsheim then went toward the front office area, thinking the intruder may have gone that way. At that point, he noticed that the police had arrived. Some of the officers positioned themselves at various places outside the building while two of them accompanied Klingsheim back into the building. Inside, Klingsheim spotted a “piece of metal from the roof inventory” in the manufacturing area and saw a hole in the roof. He also noticed some quarters and a heavy chisel on the floor.

Officer Frank DeGuiseppe of the Bellwood police department testified that approximately 3:30 a.m. on January 12, 1986, he responded to an alarm call at the Mrs. Grass plant. When he arrived at the plant, he exited his car and was standing on the north side of the building when he noticed someone on top of the plant’s roof. That person then jumped onto a nearby telephone pole and slid to the ground, landing on his feet approximately five feet from where De-Guiseppe was standing. The person landed with his back toward De-Guiseppe, then turned around and faced him. DeGuiseppe stated that the area was well lit and that he immediately recognized defendant, whom he had known for over 18 years, and yelled, “Wally *** police!”

Defendant then ran north to his house, located approximately 200 feet away. DeGuiseppe described defendant as wearing a “green type Army jacket,” blue jeans and heavy work shoes. DeGuiseppe called for assistance, and when other officers arrived, he stationed himself in front of defendant’s three-flat building while other officers went to the back of the building. On cross-examination, DeGuiseppe admitted that he had not mentioned the telephone pole to the grand jury or in his police report.

Officer John Pikrone of the Bellwood police department testified that on January 12, 1986, he was dispatched to Mrs. Grass, Inc., in response to a Wells Fargo guard’s request for assistance. When he arrived at the plant, Klingsheim met him and told him that someone was in the building. Pikrone and his partner proceeded to search inside. In the cafeteria, they noticed that several vending machines had been broken and that a trail of change on the floor led into the manufacturing area. In addition, because the floor had some type of flour residue on it, Pikrone observed hiking boot footprints leading into the manufacturing area and ending at a large hopper-type machine which extended to the ceiling. He also observed that the roof vent at the top of the machine was missing.

Pikrone climbed up the machine and outside to the roof. At roof level, he noticed hiking boot footprints in the snow leading from the roof vent to the north side of the building. At that point, Pikrone heard over the police radio that defendant had jumped off the roof. Back on the ground, Pikrone observed hiking boot footprints in the snow leading from the telephone pole to the rear of defendant’s three-flat. At the three-flat, Pikrone noticed that the rear entry door to the basement apartment was ajar and there was a light on inside. He then identified himself and pushed open the door. Defendant, wearing a sweater, blue jeans and hiking boots, was standing inside.

Defendant’s mother, Antoinette Pietruszynski, testified that on January 12, 1986, approximately 3:30 a.m., she was putting food away in the first-floor apartment after a family get-together in the basement apartment when she heard a dog barking. She called to defendant, who was in the basement apartment, and asked him to bring the dog inside. Shortly after the defendant went outside to get the dog, Antoinette heard some commotion in the basement. When she went out to the back porch, she saw some police officers taking defendant out of the basement apartment and into a squad car. Defendant was wearing blue jeans, a “dago-t” and loafers. Antoinette further stated that there were no outside lights at the Mrs. Grass plant and no streetlights on that side of the street. On redirect, Antoinette stated that when the police took defendant away, he was in his stocking feet and had no shoes.

Defendant testified that on January 12, 1986, approximately 3:30 a.m., he heard his mother’s dog barking and went outside to check out the situation. He then noticed a Bellwood police car pulling up behind his three-flat. An officer got out and was walking toward defendant. At that point, defendant noticed that another squad car had pulled up in front of his building and an officer was walking down the gangway toward him. Defendant kept asking the officers what was going on, but neither one would say anything. Suddenly, one of the officers swerved defendant around, kicked him in the back and hit him with a gun in the back of the head. They then handcuffed him and took him to the squad car in front of the house. Defendant stated that he was wearing blue jeans, a “white athletic shirt, and house slippers,” and that he had worked at the Mrs. Grass plant for a few months in 1978. On cross-examination, defendant admitted that he knew Officer DeGuiseppe, but denied seeing him on the night of the occurrence.

Thereafter, the trial court found defendant guilty of burglary. At the sentencing hearing, the State argued that defendant’s two prior Class 2 convictions made him eligible for sentencing as a Class X offender. The trial court agreed and sentenced defendant to eight years in prison. Defendant’s timely appeal followed.

Initially, defendant contends that the State failed to prove him guilty of burglary beyond a reasonable doubt because the State’s case was based solely on the doubtful identification and questionable testimony of Officer DeGuiseppe. In response, the State argues that it had presented overwhelming evidence of defendant’s guilt.

When the identification of an accused is at issue, the testimony of one witness is sufficient to convict even though that testimony is contradicted by the accused, provided that the witness is credible and that he viewed the accused under circumstances that would permit a positive identification to be made. (People v. Ash (1984), 102 Ill. 2d 485, 468 N.E.2d 1153; People v. Robinson (1987), 153 Ill. App. 3d 272, 505 N.E.2d 1144.) The credibility and certainty of a witness’ identification are enhanced when the witness testifies that he had known the defendant prior to the occurrence. (People v. Robinson (1987), 153 Ill. App. 3d 272, 505 N.E.2d 1144.) A reviewing court will not substitute its judgment for that of the trier of fact on questions involving either the weight of the evidence or the credibility of the witnesses (People v. Dunklin (1982), 104 Ill. App. 3d 685, 432 N.E.2d 1323), and will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt as to defendant’s guilt. People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.

In the present case, Officer DeGuiseppe testified that on January 12, 1986, approximately 3:30 a.m., he responded to an alarm call at the Mrs. Grass plant. When he arrived at the building, which was approximately two blocks long and IV2 stories high, he exited his squad car and stood on the north side of the building. After approximately five minutes, DeGuiseppe saw a man jump from the top of the building’s roof onto a telephone pole and slide down the pole, using the little steps for his hands. The man landed on his feet with his back toward DeGuiseppe, who was standing approximately five feet away. When the man turned around, DeGuiseppe recognized him immediately as defendant and called out defendant’s first name and identified himself as the police. Defendant then ran toward his house, located a couple hundred feet away. At the time, defendant was wearing a “green-type Army jacket,” blue jeans and heavy work shoes. DeGuiseppe called for assistance and then remained in front of defendant’s building. The other officers went to the back.

On cross-examination, Officer DeGuiseppe admitted that he had not mentioned in his police report or at the grand jury hearing that defendant had used a telephone pole to get from the factory roof to the ground. On redirect, Officer DeGuiseppe stated that he had known defendant for approximately 18 years and had seen him numerous times.

Defendant attempts to undermine Officer DeGuiseppe’s testimony by stating that because he landed with his back toward De-Guiseppe, then turned around, looked at DeGuiseppe, who was only five feet away, and then fled, there was very little time for De-Guiseppe to have viewed him. In light of the fact that DeGuiseppe has known defendant for over 18 years and recognized him immediately, this argument is unpersuasive. In addition, defendant claims that the discrepancy between DeGuiseppe’s testimony and defendant’s mother’s testimony as to how well lit the area was renders DeGuiseppe’s identification unreliable. As stated, credibility of the witnesses is a decision for the trier of fact. (People v. Ash (1984), 102 Ill. 2d 485, 468 N.E.2d 1153.) In our view, the fact that DeGuiseppe could not state exactly how far away the streetlights were does not undermine the fact that the area was lit well enough for him to immediately recognize defendant.

Defendant further argues that beyond DeGuiseppe’s identification of defendant, the State presented no evidence that implicated defendant. As previously stated, DeGuiseppe’s unequivocal identification of defendant is sufficient to convict defendant. (People v. Ash (1984), 102 Ill. 2d 485, 468 N.E.2d 1153.) However, even if it were not, the State presented ample evidence to bolster DeGuiseppe’s testimony. Officer John Pikrone testified that when he and his partner responded to the Wells Fargo guard’s request for assistance, they entered the building and, while in the cafeteria, noticed that several vending machines had been tampered with and there were coins on the floor leading into the factory area. In addition, the floor had a flour-type residue on it, which showed footprints leading into the factory area. The footprints ended at a large hopper-type machine which extended to the ceiling. The roof vent over the machine was missing. Pikrone then climbed up the machine and out onto the roof, where he saw the same footprints in the snow leading from the vent to the north side of the building. At that point, he heard DeGuiseppe say over the police radio that defendant had jumped off the roof. Pikrone climbed back down the machine and went outside, where he saw the same footprints leading from the telephone pole on the north side of the building to the rear door of defendant’s three-flat building, approximately 200 feet away. At defendant’s building, the basement door was slightly ajar and there was a light on inside. Pikrone identified himself and pushed open the door. Defendant was standing inside.

In addition, Alfred Klingsheim, service man/investigator for Wells Fargo, testified that when he arrived at the Mrs. Grass plant approximately 3 a.m. on January 12, 1986, he heard noise in the cafeteria that sounded like steel hitting cement and saw a young, white male with black hair, wearing a yellow, waist-length jacket, blue trousers and hiking boots, run from the cafeteria into the factory area. Klingsheim did not follow him because he was not familiar with the inside of the factory.

Aside from the discrepancy as to what defendant was wearing, we find that the testimony of Klingsheim, Pikrone and DeGuiseppe clearly implicates defendant in the burglary at the Mrs. Grass plant. Defendant virtually left a trail of coins and footprints which led from the cafeteria, through his escape route out of the factory, directly to the door of his basement apartment. Any discrepancy as to clothing is left to the trier of fact to assess. People v. Ash (1984), 102 Ill. 2d 485, 468 N.E.2d 1153.

Defendant also attempts to instill reasonable doubt by arguing that despite ample opportunity, the State failed to present any physical evidence corroborating DeGuiseppe’s testimony. Specifically, defendant refers to his jacket, boots, any coins allegedly taken from the vending machines, or any fingerprints on the vending machines. We find this argument unpersuasive. Proof that specifically identifiable property was taken from the burglarized premises is not an essential element of burglary and is unnecessary to support a conviction (People v. Panus (1979), 76 Ill. 2d 263, 391 N.E.2d 376), especially when defendant has been positively identified. (People v. Ash (1984), 102 Ill. 2d 485, 468 N.E.2d 1153.) Accordingly, we conclude that defendant was convicted of burglary beyond a reasonable doubt.

Next, defendant contends that the State failed to prove beyond a reasonable doubt that he had committed and had been convicted of two Class 1 or Class 2 felonies since February 1, 1978, thereby making him eligible for sentencing as a Class X offender pursuant to section 5 — 5— 3(c)(8) of the Unified Code of Corrections (Class X sentencing provision) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3(c)(8)), which provides:

“(8) When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977 [February 1, 1978]; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second.”

Defendant contends that the State failed to prove beyond a reasonable doubt that he had been convicted of two prior Class 1 or Class 2 felonies that had been committed after February 1, 1978. In response, the State argues that defendant has waived this issue for review as a result of his failure to object to imposition of the Class X sentencing provision at the sentencing hearing and as a result of defense counsel’s admission at that time that the Class X sentencing provision was applicable.

Where a statute provides for imposition of an enhanced sentence upon proof of a prior conviction, the burden is on the State to prove the prior conviction beyond a reasonable doubt. (People v. Langdon (1979), 73 Ill. App. 3d 881, 392 N.E.2d 142.) Proof of such prior convictions is generally provided by introduction of certified copies of the convictions and identification of defendant as the one convicted. (People v. Harris (1987), 157 Ill. App. 3d 70, 510 N.E.2d 107.) However, with respect to the Class X sentencing provision, even where the State has introduced certified copies indicating the dates of defendant’s prior arrests and convictions and defense counsel has stipulated to that evidence, if the State fails to present evidence as to when the offenses were committed, sentencing as a Class X offender is improper. (People v. Parks (1988), 168 Ill. App. 3d 978, 523 N.E.2d 130.) The date that the offenses were committed, not just the fact that the offenses were committed, is a prerequisite to the Class X sentencing provision. Therefore, the State’s burden of proof includes proof beyond a reasonable doubt of the date the offense was committed.

In the present case, the only evidence introduced to the trial court regarding defendant’s prior convictions was a presentence report which contained no evidence of the dates on which prior offenses had been committed. At the sentencing hearing, the following dialogue took place regarding evidence of the prior offenses:

“[STATE]: Judge, we do have a copy of the Presentence Report, and the defendant was convicted of forgery [Class 3 offense] in 1985 and given three years in the penitentiary. From my State sheet, Judge, I am ready [sic] from a State sheet.
THE COURT: He was given what?
[STATE]: Two years in the penitentiary. That was a May-wood case, so it is on the State sheet.
Then in 1982 he had two misdemeanor shoplifting convictions. In 1983 he was convicted of attempt burglary. It reads burglary on my State sheet. It would have to have been attempt burglary because he received thirty months sentence, and that would not be a minimum sentence on the burglary.
So that would be attempt burglary [Class 3 offense].
In 1980 he was given three years in the penitentiary on attempt burglary.
Then in 1982 he was given three years on attempt burglary [Class 3 offense].
In 1980 he was given three years on a burglary [Class 2 offense] sentence.
In fact, there were two burglaries, two burglary sentences, two different cases, so he had convictions for two burglaries in 1980. He was sentenced at the same time, June 13th, 1980.
At one time I was under the impression, well, I would have to check the Statute because he has a second burglary conviction, if he has been convicted of burglary twice after the Statute then this would be a Class X, Judge. I will have to check to see if the ’78 conviction for burglary, where he was given four years probation does put him into that category.
I was under the impression that the attempt burglary, which was listed as burglary, would have put him into that category.
First felony has to be committed after the effective date of the Act, ’77.
Judge, he would qualify. This would make this case a Class X felony that he, therefore, could be sentenced from six to thirty years under this case.
The State would be recommending substantial penitentiary sentences based on the background, your Honor.
[DEFENSE]: Judge, my only point with respect to the Class X sentencing, I note from the Presentence Report, as well as the State report that there is a date of February of ’78. I am not sure if that is the arrest date or conviction date, and if that is the conviction date then it is quite possible that burglary conviction would have arose in ’77, which would then take it out of subparagraph One that Counsel is referring to.
[STATE]: The arrest in that case was February 19th, 1978.
[DEFENSE]: Okay.
THE COURT: He is a Class X offender.
[STATE]: Right.
That would make him, Judge, the arrest was after, it was in 1978, so that would make it a Class X reading from the Illinois sheet.
THE COURT: Anything further, [Defense]?
[DEFENSE]: Judge, I would just point out, although it does appear that that case was a ’78 arrest, I would point out that is a few months past the effective date of the Act of 1977. So it puts it into the Class X Provision.”

As the preceding indicates, there was no evidence introduced as to when the 1978 burglary had been committed. The fact that defendant had been arrested on February 19, 1978, for the burglary is not proof that the burglary had been committed after February 1, 1978, which is a prerequisite to the application of the Class X sentencing provision. Evidence as to when the offense was committed is necessary even if defense counsel has stipulated to the arrests and convictions. (People v. Parks (1988), 168 Ill. App. 3d 978, 523 N.E.2d 130.) Consequently, we conclude that the State failed to meet its burden of proof and that the trial court erred in sentencing defendant as a Class X offender.

In reaching this conclusion, we find the State’s argument that defendant has waived this issue for review by never objecting to the State’s lack of evidence unpersuasive. The State cannot circumvent its burden of proof as set forth in the statutory requirements of the Class X sentencing provision by claiming waiver. Moreover, even if waiver were an appropriate argument in this case, this court would elect to address the issue under the plain error doctrine (People v. Smith (1985), 106 Ill. 2d 327, 478 N.E.2d 357) and would reach the same conclusion.

Furthermore, we find the State’s reliance on People v. Rice (1985), 137 Ill. App. 3d 285, 484 N.E.2d 514, misplaced. In Rice, defendant was found guilty of misdemeanor retail theft. Following a sentencing hearing at which the State proved that defendant had been previously convicted of retail theft, the court convicted defendant of felony retail theft and sentenced him accordingly. On appeal, defendant argued that the State’s failure to prove his previous conviction prior to the trial court’s finding of guilt precluded enhancement of misdemeanor retail theft to felony retail theft. The appellate court indicated that although it was inclined to agree with defendant’s position, it decided to affirm the trial court’s judgment on the ground that defendant had failed to properly preserve the issue for review.

The pivotal distinction between Rice and the present case is that in Rice, the State had met its statutory burden of proof for enhancement of the misdemeanor retail theft conviction by proving that defendant had previously been convicted of retail theft. By contrast, in the present case, the State failed to meet its statutory burden of proving the prerequisites of the Class X sentencing provision.

With respect to the State’s alternative argument that defendant’s prior convictions make him eligible for an extended term sentence, the State’s failure to argue this statutory ground for sentencing before the trial court waives this issue on appeal. People v. O’Neal (1984), 104 Ill. 2d 399, 472 N.E.2d 441.

Finally, defendant contends that the trial court erred in failing to advise him of the possibility of probation if he elects to submit to treatment pursuant to the Alcoholism and Substance Abuse Act (the Act) (Ill. Rev. Stat. 1987, ch. lllVa, par. 6301 et seq.). Specifically, defendant claims that the trial court had sufficient information to determine that he was a “drug abuser,” and, thus, pursuant to section 22 of the Act, the trial court was required to advise defendant that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by a licensed program. Section 22 states, in pertinent part:

“If a court has reason to believe that an individual convicted of a crime is an addict and the court finds that he is eligible to make the election provided for under Section 21, the court shall advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by a licensed program designated by the Department.” (Ill. Rev. Stat. 1987, ch. IIIV2, par. 6322.)

Section 4.1 of the Act describes an “addict” as follows:

“ ‘Addict’ means any person who habitually uses any drug, chemical, substance or dangerous drug other than alcohol so as to endanger the public morals, health, safety or welfare or who is so far addicted to the use of a dangerous drug or controlled substance other than alcohol as to have lost the power of self control with reference to his addiction.” Ill. Rev. Stat. 1987, ch. IIIV2, par. 6304.1.

It is well recognized that when the information conveyed to the trial court regarding defendant’s drug problems is sufficient to give the court reason to believe that the defendant is an addict, the trial court is required to inform the defendant of the possible application of the Act. (People v. Chaput (1981), 100 Ill. App. 3d 982, 427 N.E.2d 595; People v. Davis (1981), 95 Ill. App. 3d 1097, 420 N.E.2d 1035.) “Reason to believe” has been held to be the semantic equivalent of probable cause. (People v. Futia (1983), 116 Ill. App. 3d 68, 452 N.E.2d 109.) However, a defendant’s mere use of controlled substances does not make him an addict, and a court is not required to inform the defendant of the possible application of the Act every time a defendant claims to have a drug problem. People v. Barry (1987), 152 Ill. App. 3d 915, 504 N.E.2d 1381.

In response to defendant’s argument, the State contends that the trial court had no reason to believe that defendant was an addict. We agree. The only references at trial to defendant’s drug use were a statement by defendant at the sentencing hearing that he had been in an outpatient drug rehabilitation program at an earlier date and a statement in the presentence report indicating that defendant had used marijuana, cocaine, heroin and amphetamines at one time, and that he had been at the Gateway Rehabilitation Center from 1984 to 1985. In our view, this information supports a conclusion that defendant has been rehabilitated with respect to his drug habit rather than a conclusion that he is currently an addict.

Further, we find that People v. Barry (1987), 152 Ill. App. 3d 915, 504 N.E.2d 1381, and People v. Futia (1983), 116 Ill. App. 3d 68, 452 N.E.2d 109, support the trial court’s decision. In Barry, defendant told both his probation officer and the trial court that he regularly used marijuana, amphetamines, barbiturates and LSD. The trial court failed to advise defendant about the Act. In affirming the trial court’s judgment, the Barry court noted that defendant’s statements were uncorroborated and stated, “Neither the court nor the probation officer was obliged to believe the defendant’s statements. They may have been true. They may have been made up out of thin air.” (Barry, 152 Ill. App. 3d at 918.) Similarly, in People v. Futia (1983), 116 Ill. App. 3d 68, 452 N.E.2d 109, the presentence report indicated that defendant was a current alcohol and drug abuser, specifically heroin, and that he had participated in two drug rehabilitation programs. The trial court failed to advise defendant about the Act. In affirming the trial court’s judgment, the Futia court noted that defendant had never stated that he was an addict and an “abuser” is not synonymous with “addict.” In the present case, there is even less evidence that defendant is addicted to drugs or alcohol than there was in either Barry or Futia.

In addition, we find those cases relied upon by defendant to be factually inapposite and unpersuasive. In each of those cases, there was extensive evidence of each defendant’s drug addiction presented to the respective trial courts: People v. Davis (1981), 95 Ill. App. 3d 1097, 420 N.E.2d 1035 (defendant had voluntarily enrolled in a drug rehabilitation program; told probation officer he had been a heavy drug user for approximately 10 years and was under drug influence at the time he committed the offense; at the sentencing hearing, told the court he had committed crimes to use drugs); People v. Chaput (1981), 100 Ill. App. 3d 982, 427 N.E.2d 595 (at the sentencing hearing, defendant testified that at the time he had committed the offense, he had been under the influence of drugs and alcohol; defendant considered himself to have a drug problem; corroborative letter from defendant’s rehabilitation counselor); People v. Strange (1984), 125 Ill. App. 3d 43, 465 N.E.2d 616 (the presentence report indicated that defendant had been using heroin and “Ts and blues” for the past 20 years; report recommended treatment in a drug abuse program; at sentencing hearing, defendant asked to be paroled to a rehabilitation program); People v. Beasley (1982), 109 Ill. App. 3d 446, 440 N.E.2d 961 (defendant, age 23, stated that he had been using marijuana since high school and had used heroin, cocaine and “tees and blues” regularly during incarceration); People v. Melson (1976), 36 Ill. App. 3d 71, 343 N.E.2d 258 (defendant broke into a drug store in order to steal drugs; the presentence report indicated that he had a serious dependence on drugs; letters from defendant’s mother and his probation officer stated that defendant had told them he could not control his use of drugs; probation officer recommended drug rehabilitation treatment). Accordingly, we conclude that the trial court did not err in failing to advise defendant of the possibility of treatment under the Act.

For the aforementioned reasons, we affirm that part of the trial court’s order that found defendant guilty of burglary; reverse that part of the order which sentenced defendant as a Class X offender; and remand the cause for appropriate Class 2 sentencing.

Affirmed in part; reversed in part and remanded with instructions.

MANNING, P.J., and O’CONNOR, J., concur.

      Effective July 1, 1988, the Alcoholism and Substance Abuse Act was repealed and replaced by the Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1987, ch. IIIV2, par. 6351 — 1 et seq.). However, because the effective date of the new Act is subsequent to the date of sentencing in the present case, it is not applicable to this appeal. People v. Teschner (1980), 81 Ill. 2d 187, 407 N.E.2d 49.


author: JUSTICE BUCKLEY

text:
    KENNETH A. MEERBREY, Plaintiff-Appellant, v. MARSHALL FIELD & COMPANY et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—88—1150
    Opinion filed September 18, 1989.
    Rehearing denied November 17, 1989.

      Thomas P. Cernek and Mark H. Barinholtz, both of Chicago, for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Douglas L. Prochnow and Mark P. Miller, of counsel), for appellees.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Kenneth A. Meerbrey (plaintiff) brought suit against defendants Marshall Field & Company (Marshall Field) and its agent, Tim Marcolini (Marcolini), for injunctive relief and damages for false imprisonment, false arrest, and malicious prosecution. The circuit court granted defendants’ motion to dismiss Marshall Field from counts II through V of plaintiff’s second-amended complaint pursuant to section 2 — 619 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). The court also struck Marcolini’s name from counts III through V pursuant to section 2 — 615 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615) for failure to allege sufficient factual allegations against him. It is from these rulings that plaintiff appeals. We affirm in part and reverse in part.

Marshall Field employed plaintiff as a cashier and Marcolini as a security guard. On January 19, 1985, Marcolini interviewed plaintiff at work regarding the theft of approximately $600 from Marshall Field. During this interview, plaintiff signed a restitution form and promissory note acknowledging his theft and, under the terms of the restitution form, thereafter reimbursed Marshall Field $500.

On February 12, 1985, plaintiff returned to Marshall Field’s premises and demanded his payroll check for past earnings. Rochella Davis, an agent of Marshall Field, informed plaintiff that he was forbidden to enter the premises and twice requested him to leave. After plaintiff failed to vacate the premises, he was arrested by the Chicago police department pursuant to Davis’ sworn complaint.

Subsequently, plaintiff filed suit against Marshall Field and Marcolini alleging various causes of action. Count II of plaintiff’s complaint alleges that Marshall Field and Marcolini falsely imprisoned plaintiff on January 19, 1985, while counts III through V assert claims against Marshall Field and Marcolini alleging false imprisonment, false arrest, and malicious prosecution stemming from the February 12, 1985, events.

Addressing first the circuit court’s dismissal of Marshall Field from counts II through V of plaintiff’s complaint, the court found that the exclusivity provisions of the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(a)) barred plaintiff’s common law cause of action. The exclusive remedy provided for in section 5(a) of the Act reads in pertinent part, as follows:

“No common law or statutory right to recover damages from the employer *** or the agents or employees of *** [the employer] for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act ***.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(a).)

Through this provision, the Act establishes a system of liability without fault. It abolishes traditional common law defenses available to the employer in exchange for the prohibition against common law suits by employees. (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1958), 13 Ill. 2d 460, 150 N.E.2d 141; Jablonski v. Multack (1978), 63 Ill. App. 3d 908, 380 N.E.2d 924.) The exclusive remedy provision “is part of the quid pro quo in which the sacrifices and gains of employees and employers are to some extent put in balance, for, while, the employer assumes a new liability without fault, he is relieved of the prospect of large damage verdicts.” 2A A. Larson, The Law of Workmen’s Compensation §65.11 (1988).

Plaintiff contends that the above exclusivity provisions do not apply to the case at bar. Specifically, as to Marshall Field, plaintiff argues that he is not barred by the exclusivity provisions contained in the Act because Marcolini’s acts were intentional. Plaintiff’s contention is without merit.

Courts have held under the Act that to escape the bar of exclusivity provisions and to recover against persons covered under the Act, plaintiff is required “to prove either that the injury (1) was not accidental (2) did not arise from his or her employment, (3) was not received during the course of employment or (4) was noncompensable under the Act.” (Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 237, 408 N.E.2d 198, 202.) In issue here is whether plaintiff’s injury was “accidental” within the meaning of the Act to bar the common law action against Marshall Field. Collier and Jablonski hold that although the injuries inflicted by a fellow employee may be intentional from the wrongdoer’s standpoint, they are compensable under the Act because the injury is “accidental” from the employee’s/injured party’s point of view — that is, despite the obvious fact that the injury was intentionally inflicted, an employee’s injuries will not be held to be noncompensable under the Act due to the intentions of the co-employee. (Collier, 81 Ill. 2d at 238, 408 N.E.2d at 202; Jablonski, 63 Ill. App. 3d at 910-11, 380 N.E.2d at 925-26.) Common law causes of action, however, will be sustained against an employer for the intentional tort of his employee against a fellow employee where the employer has committed, commanded or expressly authorized the intentional act. (Collier, 81 Ill. 2d at 238-39, 408 N.E.2d at 202; Jablonski, 63 Ill. App. 3d at 912, 380 N.E.2d at 926-27.) A plaintiff under these circumstances apparently is required to allege that the employee was the alter ego of the employer in order to state a common law cause of action. See Collier, 81 Ill. 2d at 239, 408 N.E.2d at 202; Jablonski, 63 Ill. App. 3d at 912, 380 N.E.2d at 927-28.

Plaintiff’s complaint here does not allege that Marcolini was the alter ego of Marshall Field or that Marshall Field committed, commanded or expressly authorized Marcolini’s acts, even after plaintiff was afforded the opportunity to amend his complaint to this effect. Plaintiff merely alleged that Marcolini was an agent of Marshall Field. Therefore, since no allegations exist that Marshall Field committed, commanded or expressly authorized the intentional conduct of its employee, the injury here is “accidental” within the meaning of the Act and plaintiff’s common law cause of action against Marshall Field is barred.

We now shift our focus to whether section 5(a) of the Act also bars plaintiff’s action against Marcolini. Although courts have concluded that intentional torts are considered “accidental” in the above context, Jablonski has found that the co-employee responsible for the intentional act should not be shielded from liability, and, thus, a common law cause of action may be brought against him. (Jablonski, 63 Ill. App. 3d at 914-15, 380 N.E.2d at 928; see also Collier, 81 Ill. 2d 229, 408 N.E.2d 198; Handley v. Unarco Industries, Inc. (1984), 124 Ill. App. 3d 56, 463 N.E.2d 1011; Mier v. Staley (1975), 28 Ill. App. 3d 373, 329 N.E.2d 1.) The socially beneficial purpose of the Act was not intended to permit a person who commits an intentional tort to use the compensation law as a shield against liability. (Jablonski, 63 Ill. App. 3d at 915, 380 N.E.2d at 928.) Here the exclusivity provisions of the Act do not bar plaintiff’s action against Marcolini because the complaint alleges intentional torts.

We note, however, that Marcolini was dismissed from plaintiff’s complaint based upon the insufficiency of factual allegations contained in plaintiff’s complaint pursuant to section 2 — 615(a) of the Code. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615(a).) On a section 2— 615 motion to dismiss, the court must consider all well-pleaded facts as true, and any reasonable inferences drawn from the allegations must necessarily be construed liberally in favor of the complainant, as the motion merely tests the legal sufficiency of the complaint and does not go to the merits of the claim. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615(a); see also Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1986), 114 Ill. 2d 278, 286, 499 N.E.2d 1319, 1322; Farmers State Bank & Trust Co. v. Lahey’s Lounge, Inc. (1988), 165 Ill. App. 3d 473, 479, 519 N.E.2d 121, 125.) This motion is inherently different from the section 2 — 619 motion to dismiss, which is based upon some type of “affirmative matter” that will necessarily bar the action. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619.

Plaintiff contends that Marcolini should not have been dismissed from counts III through V of his complaint. We agree with plaintiff except as to count V.

Because a section 2 — 615 motion is strictly limited to the four corners of the complaint, and the sufficiency of the allegations therein, we analyze plaintiff’s complaint to determine if the circuit court was justified in dismissing Marcolini from this litigation.

Count V seeks to state a cause of action for malicious prosecution against Marcolini. In order to prevail on a claim of malicious prosecution, plaintiff must allege and prove five elements: the commencement or continuation of criminal or civil proceedings by the defendant; the termination of the proceedings in favor of plaintiff; the absence of probable cause for such proceedings; the presence of malice; and damages resulting to plaintiff. (Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 411 N.E.2d 229.) We focus on the element requiring plaintiff to show that defendant initiated the proceedings against plaintiff. That is not the case here. In fact, count V admits that Davis, an agent of Marshall Field not named as a party-defendant in the instant litigation, filed the sworn criminal complaint against plaintiff. Moreover, no allegations exist that Marcolini initiated the criminal proceedings. Consequently, plaintiff has failed to state a malicious prosecution cause of action against Marcolini.

As to counts III and IV, we find that sufficient factual allegations exist to set forth a false imprisonment and false arrest cause of action. False imprisonment is an unreasonable restraint of plaintiff’s liberty against his will caused or procured by the defendant (Hajawii v. Venture Stores, Inc. (1984), 125 Ill. App. 3d 22, 465 N.E.2d 573; Marcus v. Liebman (1978), 59 Ill. App. 3d 337, 375 N.E.2d 486; Karow v. Student Inns, Inc. (1976), 43 Ill. App. 3d 878, 357 N.E.2d 682; Shelton v. Barry (1946), 328 Ill. App. 497, 66 N.E.2d 697), and false arrest is the unlawful restraint of an individual’s personal liberty (Bentley v. City of Chicago (1979), 79 Ill. App. 3d 1028, 398 N.E.2d 912; Johnson v. Jackson (1963), 43 Ill. App. 2d 251, 193 N.E.2d 485). Plaintiff alleged that “he was falsely and unlawfully arrested and forcibly taken to security offices by defendant Marcolini.” He further alleged that his arrest was “wholly without probable cause, and in causing such arrest *** MarcoliniQ acted maliciously and with intent to injure plaintiff.” At the hearing on the motion to dismiss counts III through V of plaintiff’s second-amended complaint, counsel for Marcolini represented to the circuit court that “Mr. Marcolini is in no way implicated in Counts III through V other than the fact that his name is inadvertently in the prayer for relief,” which is obviously inaccurate at best. The court, thus misled, dismissed out Marcolini.

Accordingly, the order of the circuit court of Cook County dismissing Marshall Field from counts II through V and Marcolini from count V of plaintiff’s second-amended complaint is affirmed. We reverse and remand as to Marcolini’s dismissal from counts III and IV of plaintiff’s second-amended complaint.

Affirmed in part; reversed and remanded in part.

CAMPBELL and O’CONNOR, JJ., concur.

      All references to the complaint are to plaintiff’s second-amended complaint.

      Count I of plaintiff’s original complaint, which sought to enjoin Marshall Field and Marcolini from ejecting plaintiff from Marshall Field’s store, was dismissed by the circuit court and later affirmed on appeal by this court in Meerbrey v. Marshall Field & Co. (1988), 169 Ill. App. 3d 1014, 524 N.E.2d 228.


author: JUSTICE LORENZ

text:
    BEVERLY CRUTCHFIELD, Indiv. and as Special Adm’r of the Estate of Crystal B. Crutchfield, Deceased, Plaintiff, v. YELLOW CAB COMPANY et al., Defendants (Yellow Cab Company, Third-Party Plaintiff-Appellant; Chicago Transit Authority, Third-Party Defendant; The City of Chicago, Third-Party Defendant-Appellee).
    First District (5th Division)
    Nos. 1—88—0667, 1—88—2041, 1—88—2042 cons.
    Opinion filed September 29, 1989.
    Rehearing denied November 15, 1989.

      Michael W. Rathsack, of Chicago (Paul I. Nemoy, of counsel), for appellant Beverly Crutchfield.

      Jesmer & Harris, of Chicago (Lawrence P. Seiwert, of counsel), for appellant Yellow Cab Company.
    Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch and L. Anita Richardson, Assistant Corporation Counsel, of counsel), for appellee City of Chicago.
    Kevin W. Horan, of Rock, Fusco & Reynolds, of Chicago, for appellees Chicago Transit Authority and Olivia Hewitt.
   JUSTICE LORENZ

delivered the opinion of the court:

We consider here consolidated appeals by plaintiff, Beverly Crutchfield, individually and as special administrator of the estate of Crystal Crutchfield, her daughter, and third-party plaintiff, Yellow Cab Company (Yellow Cab). The appeals arise from entry of summary judgments in favor of defendant Chicago Transit Authority (CTA) and its employee, Olivia Hewitt, and the City of Chicago (City) in an action for negligence.

The relevant facts underlying the appeals are undisputed. On the evening of February 11, 1983, Crystal Crutchfield rode a northbound CTA bus driven by Hewitt to attend a dance at Kenwood Academy, where Crystal was a student. Kenwood Academy is located between 49th Street and Hyde Park Boulevard, 51st Street, on the west side of Lake Park Avenue directly across from a designated bus stop on the east curb of Lake Park Avenue at 5000 south. Hewitt stopped the bus at that designated bus stop to discharge passengers, including Crystal. Crystal stepped off the bus, intending to cross directly west over Lake Park Avenue to Kenwood Academy. As she walked around the left front of the standing bus, she was struck by a northbound Yellow Cab taxi driven by Anthony McKee and, subsequently, a second unidentified vehicle. Crystal died the next day.

At the location of the accident, Lake Park Avenue has two lanes each for northbound and southbound traffic. A grass median divides the northbound and southbound lanes. The east side of Lake Park Avenue in the vicinity of the bus stop is vacant and unimproved except for streetlights, fencing, and a service building for the Illinois Central Gulf Railroad tracks which run parallel to Lake Park Avenue. There is no intersecting street at the bus stop, nor is there a pedestrian crosswalk or traffic signal.

Following her daughter’s death, plaintiff filed complaints against defendants Yellow Cab, McKee, the CTA, Hewitt, and the City alleging negligence with respect to placement of the bus stop. Specifically, plaintiff alleged the following acts and omissions: placement of the bus stop at the east side of Lake Park Avenue where there was no safe means for bus passengers to get to or move from the bus stop; failure to provide warnings notifying approaching traffic that bus passengers would be crossing Lake Park Avenue to get to or from the bus stop; failure to maintain adequate lighting; failure to provide a crosswalk running east to west across Lake Park Avenue to and from the bus stop; and failure to provide a sidewalk for pedestrians to get to and from the bus stop.

Yellow Cab filed a third-party contribution action against the CTA and the City. The allegations of the third-party complaint mirrored those above. The City answered both complaints denying the material allegations of each.

On May 14, 1987, the City moved for summary judgment against plaintiff and against Yellow Cab. That motion was granted. Yellow Cab appealed from that order in case No. 1 — 88—0667. Subsequently, the CTA and Hewitt also successfully moved for summary judgment against plaintiff and Yellow Cab. Plaintiff and Yellow Cab appealed separately from that order in case Nos. 1 — 88—2041 and 1 — 88—2042, which were consolidated for oral argument. The cases were subsequently consolidated for disposition.

Opinion

The question before us is what duty, if any, is owed by the City and CTA to provide safety to passengers disembarking from CTA busses at designated bus stops. The question of the existence of a duty is one of law, which must be decided by the court. (Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 495 N.E.2d 1295.) If, based upon the pleadings and accompanying affidavits, it appears no duty is owed plaintiff, granting of summary judgment is proper. (Alop v. Edgewood Valley Community Association (1987), 154 Ill. App. 3d 482, 507 N.E.2d 19.) We address, first, the issue of duty with respect to the CTA.

The CTA does not dispute that, as a common carrier, it owes its passengers the highest degree of care while they are leaving a bus (Katamay v. Chicago Transit Authority (1972), 53 Ill. 2d 27, 289 N.E.2d 623), and that the duty continues until passengers have a reasonable opportunity to reach a place of safety (Pharr v. Chicago Transit Authority (1984), 123 Ill. App. 3d 205, 462 N.E.2d 753). Once that has occurred, the carrier then has only a duty of ordinary care. Sims v. Chicago Transit Authority (1954), 4 Ill. 2d 60, 122 N.E.2d 221.

Plaintiff and Yellow Cab focus their arguments on the “place of safety” factor, stating the CTA chose an unsafe location to designate as a bus stop.

Responsibility for designating bus stops, however, rests with the City. Section 27 — 412 of the Chicago Municipal Code provides:

“The Commissioner of Public Works, subject to the concurrence of the Chicago street traffic commission and to the approval of the city council, is hereby authorized and required to establish bus stops *** as he shall determine to be of the greatest benefit and convenience to the public ***.” (Chicago Municipal Code §27-412 (1983).)

Thus, under section 27 — 412, the CTA has no legal authority to establish bus stops.

We cannot accept the argument of plaintiff and Yellow Cab that the CTA is, nevertheless, responsible for the placement of bus stops because the CTA recommends bus stop locations to the City. That argument is supported with citation to Garrett v. Grant School District No. 124 (1985), 139 Ill. App. 3d 569, 487 N.E.2d 699. Garrett, however, is inapposite because, there, the choice of the location for discharging students was completely within the control of the school district. Garrett, 139 Ill. App. 3d at 577, 487 N.E.2d at 704.

There is no dispute in the instant case that Crystal safely disembarked from the bus at a location designated as a stop by the City. She was not injured until after she left that spot by stepping into the street in front of the bus in an effort to cross Lake Park Avenue. Once Crystal safely disembarked, the CTA’s duty to exercise a high standard of care terminated.

Further, we must reject any contention that the CTA breached its duty of ordinary care, assuming Crystal had safely disembarked, because the standing bus blocked a view of vehicular traffic on Lake Park Avenue. We know of no duty imposed upon a common carrier to move away immediately after discharging passengers so as to permit a clear view of the roadway. In fact, the contrary is true: the CTA has no duty to protect its passengers from obvious street dangers. See Kiesel v. Chicago Transit Authority (1955), 6 Ill. App. 2d 13, 126 N.E.2d 170.

Because the CTA’s duty to Crystal was fully performed when she stepped off of the bus and arrived safely at the bus stop designated by the City, we conclude that the trial court properly granted summary judgment in favor of the CTA and against plaintiff and Yellow Cab.

We next consider the scope of the City’s duty with respect to the bus stop.

In Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, 87, 522 N.E.2d 215, 218, we noted the City’s duty to provide public improvements for the safety of its citizens on a public way is a limited one:

“[I]t is well settled that a municipality is responsible for the negligent construction of public works and for the failure to maintain them, but has no duty, and therefore, is not liable for its negligence or refusal to undertake such improvement initially. [Citation.] Generally, until the City acts, it cannot be held liable. [Citation.] However, even where it undertakes to act in some fashion, a municipality is not considered to be an insurer against all accidents occurring on the public way; rather, a municipality is required to maintain its streets in a reasonably safe condition for the amount and kind of travel which may fairly be expected on them. [Citation.] Liability arises only when the undertaken improvement, itself, creates an unreasonably dangerous condition. [Citation.]”

Plaintiff concedes, in view of the above principles, no action for negligence can be stated against the City for failure to provide warnings, lighting, crosswalks, or sidewalks, where none previously existed, for the safety of passengers concerning the bus stop in issue. What we must determine is whether location of the bus stop, itself, on the east side of Lake Park Avenue, constituted negligence.

Yellow Cab argues the City had a duty to refrain from placing the bus stop at 5000 south on Lake Park Avenue because it was foreseeable that passengers disembarking from CTA busses there would cross the street directly from the bus stop to Kenwood Academy and that the location provided no safe means to do so.

Foreseeability, however, in determining the reasonable care to be exercised by a municipality pertains to the use of the property of the municipality by intended users. (Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 502 N.E.2d 357.) In Risner, plaintiff was hit by a bus operating in a “reverse-flow” lane when he stepped off a curb in the middle of a city block to cross the street. We reasoned there that because the street was intended to be used for vehicular traffic, and because pedestrians crossing in the middle of the block did not come within the scope of that intended or permitted use, no duty existed under applicable provisions of the Local Governmental and Governmental Employees Tort Immunity Act. Risner, 150 Ill. App. 3d at 831-32, 502 N.E.2d at 360.

We are similarly persuaded that no duty can arise under the facts of the instant case. Plaintiff’s decedent crossed Lake Park Avenue at a point at which the street was intended to be used by vehicular, not pedestrian, traffic. The foreseeability that bus passengers might cross the street to reach Kenwood Academy directly from the location of the bus stop cannot support a theory of negligence in the placement of the bus stop because plaintiffs decedent was at all times outside of the scope of any duty owed by the City. For that reason, we cannot agree with Yellow Cab that either Baran, v. City of Chicago Heights (1969), 43 Ill. 2d 177, 251 N.E.2d 227, or Greene v. City of Chicago (1978), 73 Ill. 2d 100, 382 N.E.2d 1205, controls here as, in both cases, plaintiffs were intended users of the public way when injured by existing dangerous conditions. Finally, passengers disembarking from CTA busses at the location of the stop at 5000 south Lake Park Avenue had unhindered access to walk south from the stop to the intersection at Hyde Park Boulevard, 51st Street, and there use pedestrian crosswalks to cross safely over Lake Park Avenue.

For the above reasons, the judgments of the circuit court are affirmed.

Affirmed.

MURRAY, P.J., and PINCHAM, J., concur.