text:
    RAOUL ARMOND, Plaintiff-Appellant, v. EUGENE SAWYER, Mayor of the City of Chicago, et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—88—3734
    Opinion filed October 29, 1990.

      David A. Culpepper, of Chicago, for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and L. Anita Richardson, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Raoul Armond, appeals from an order of the circuit court of Cook County revoking his license to sell liquor for consumption on the premises of his business. On appeal, plaintiff contends that: (1) the revocation was based on a void referendum option (hereinafter referendum); (2) defendants city and local liquor commission (Liquor Commission) were estopped from revoking his license after renewing it for 12 years after the referendum; and (3) the referendum, if valid, was repealed by implication. For the following reasons, we affirm.

The facts giving rise to this appeal are as follows. Plaintiff sells liquor for on-premises consumption at his tavern, the Caribbean Village, located at 1706 East 75th Street in Chicago. Plaintiff’s tavern has been in operation since November 1965. As of the November 25, 1972, general election, the tavern was located within precinct 3, ward 8, of the city. The precinct was redistricted in 1973 to locate the tavern within precinct 3, ward 7, effective as of the November 5, 1974, general election.

On November 5, 1974, the eligible voters of precinct 3, ward 7, were presented with the following “Official Alcoholic Liquor Proposition Ballot”:

“ ‘Shall the Sale at Retail of Alcoholic Liquor containing more than 4% of Alcohol by weight except in the original package and not for consumption on the premises be prohibited in this Third Precinct of the Eighth Ward of the City of Chicago?’ (As the said Precinct existed as of the last General Election)”

The proposition was approved by a vote of 135 to 28. Plaintiff nevertheless continued to sell liquor for on-premises consumption at the Caribbean Village. Plaintiff’s license was renewed every six months.

Defendant local liquor commission (Liquor Commission) moved to revoke plaintiff’s liquor license for violating the referendum on Jam uary 28, 1987. A hearing, on the matter was held in April 1987. At this hearing, plaintiff testified that he was aware that his tavern was located in a package-only district. The Liquor Commission found plaintiff in violation of the referendum and revoked his license in May 1987.

Plaintiff appealed to the license appeals commission (Appeals Commission), and a hearing was held in October 1987. Plaintiff argued that defendants were estopped from revoking his license because he had relied on the continuous semiannual renewal of the license between 1974 and 1986. The Appeals Commission' affirmed the revocation of the license and later denied plaintiff’s petition for rehearing.

Plaintiff then appealed to the circuit court of Cook County, pursuant to section 7 — 10 of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1987, ch. 43, par. 154). At this hearing, plaintiff argued not only estoppel, but also argued that the referendum applied to precinct 3, ward 8, not precinct 3, ward 7. The trial court affirmed the revocation, finding that the determination of whether the referendum applied to the Caribbean Village was a question of fact supported by the record. The trial court also rejected the estoppel argument, ruling that: (1) any licenses issued to plaintiff following the 1974 election were void under the terms of the referendum; (2) plaintiff accepted the licenses knowing that they were in violation of the law, thus negating good-faith reliance; and (3) plaintiff had not substantially changed his position in reliance on the renewals. Plaintiff now appeals to this court.

The standard of review for an administrative decision is whether that decision is contrary to the manifest weight of the evidence. E.g., Commonwealth Edison Co. v. Property Tax Appeal Board (1984), 102 Ill. 2d 443, 463, 468 N.E.2d 948, 956; Easter Enterprises, Inc. v. Illinois Liquor Control Comm’n (1983), 114 Ill. App. 3d 855, 857, 449 N.E.2d 1013, 1015-16.

Plaintiff’s first argument on appeal is that the revocation of his license is void because the referendum upon which it was based is void. Plaintiff contends that his tavern was located in precinct 3, ward 7, when precinct 3, ward 8, was voted dry. Plaintiff concludes that not only was his tavern not in the ward which was voted dry, but also that the referendum was void because voters from precinct 3, ward 7, imposed their choice on the people in precinct 3, ward 8. In support of this argument plaintiff cites cases holding that a voter casting votes in the wrong ward cannot be counted. E.g., Boland v. City of La Salle (1938), 370 Ill. 387, 19 N.E.2d 177.

The argument is unpersuasive. The instant case does not involve voters in one ward voting in another. The referendum ballot at issue refers to precinct 3, ward 8, because the Liquor Control Act defines precincts by reference to the “last general election.” (Ill. Rev. Stat. 1987, ch. 43, par. 166; see Cooper v. Marcin (1976), 44 Ill. App. 3d 918, 921, 358 N.E.2d 1218, 1220.) Therefore, a referendum affecting precinct 3, ward 7, must refer to affecting precinct 3, ward 8, because precinct 3, ward 7, was designated as precinct 3, ward 8, as of the 1972 general election.

Moreover, the Liquor Control Act mandates that notice of the area to be affected by a referendum be given to voters either on the ballot or in polling areas. (Ill. Rev. Stat. 1987, ch. 43, par. 171.) The record reflects that the required notice was placed on the official ballot. The record further discloses plaintiff’s own admission that he knew in 1974 that the referendum applied to his tavern. Based on the record, the trial court was correct in affirming the revocation of plaintiff’s license as not contrary to the manifest weight of the evidence.

Plaintiff next argues that defendants were estopped from revoking his license after defendants had renewed his license semiannually from 1974 through 1986. To estop defendant city, plaintiff must demonstrate an affirmative act by the city which induced substantial, justifiable reliance by plaintiff. See, e.g., Bank of Pawnee v. Joslin (1988), 166 Ill. App. 3d 927, 933, 521 N.E.2d 1177, appeal denied (1988), 122 Ill. 2d 569, 530 N.E.2d 238.

Plaintiff asserts that the grant of a liquor license must be considered an affirmative act by defendants. (But see Joslin, 166 Ill. App. 3d at 939, 521 N.E.2d at 1185 (estoppel of city requires an affirmative act such as legislation, not the unauthorized act of an officer).) However, plaintiff cites no legal authority and does not refer to the record in support of his assertion. See, e.g., People v. Hoffmann (1986), 140 Ill. App. 3d 1056, 489 N.E.2d 460.

In any event, plaintiff has not persuaded this court that defendants were estopped from revoking the license under the facts of this case. The doctrine of estoppel does not apply to the unauthorized renewal of plaintiff’s liquor license. (See Joslin, 166 Ill. App. 3d at 939, 521 N.E.2d at 1185.) Moreover, plaintiff's admission that he knew the referendum applied to his tavern in 1974 provided the agency and the trial court with a factual basis for declining to find justifiable reliance on the semiannual license renewals.

Finally, plaintiff contends that the license renewals amount to a repeal by implication of the referendum. Revocation by implication is disfavored. (E.g., Dugan v. Berning (1957), 11 Ill. 2d 353, 358, 143 N.E.2d 547, 550; Fields v. Lueders (1916), 274 Ill. 562, 566, 113 N.E. 916, 917.) It is a rule of statutory interpretation which applies where two statutes would otherwise be impossible to reconcile. Spaulding School District No. 58 v. Waukegan City School District (1960), 18 Ill. 2d 351, 356-57, 164 N.E.2d 63, 66-67.

The present case does not involve two conflicting statutes; rather, it involves license renewals which are allegedly in conflict with the Liquor Control Act. License renewals in dry precincts or other political subdivisions are void under the express language of the Liquor Control Act. (Ill. Rev. Stat. 1987, ch. 43, par. 176.) Consequently, there is no irreconcilable conflict here; the text of the statute contemplates that license renewals might be mistakenly approved. The trial court, therefore, did not err in declining to find a revocation of the referendum by implication.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    IQBAL AKHTER et al., Plaintiffs-Appellants, v. SIRISH SHAH, Defendant-Appellee.
    First District (1st Division)
    No. 1—89—0333
    Opinion filed October 29, 1990.

      Wildman, Harrold, Allen & Dixon, of Chicago (Douglas R. Carlson, of counsel), for appellants.
    Regas, Frezados & Harp, of Chicago (Peter G. Frezados, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

In this appeal, plaintiffs Iqbal Akhter, M.D., and I. Akhter, M.D., S.C., claim the trial court erred in dismissing two counts of a complaint which sought damages for the alleged violation of a noncom-petition covenant in defendant Sirish Shah’s employment contract. For the reasons that follow, we affirm.

The instant appeal is related to this court’s prior decision in Akhter v. Shah (1983), 119 Ill. App. 3d 131, 456 N.E.2d 232 (Akhter I), and the background of the case is discussed in detail therein. The court in Akhter I affirmed the denial of a preliminary injunction based on the noncompetition covenant at issue here, holding the covenant unenforceable because it neither clearly identified the hospitals to which it applied nor limited its duration.

On remand, plaintiffs filed a second amended complaint, which was later withdrawn so that a third amended complaint could be substituted. All three counts of the third amended complaint limit their request for relief to damages. The first two counts are based upon the alleged breach of the covenant not to compete.

Defendant moved to strike and dismiss these two counts, arguing that the covenant had already been held unenforceable. In response, plaintiffs filed an affidavit stating that the covenant was understood by the parties at the time of signing as barring defendant from practicing at Northwest Hospital upon leaving the corporation. The trial court granted the motion to dismiss on January 5, 1989.

On appeal, plaintiffs contend that the trial court erred in dismissing counts I and II of their third amended complaint, denying them due process of law. Plaintiffs argue that the affidavit submitted to the trial court in response to the motion to dismiss demonstrates that the ambiguity in the geographic scope of the covenant not to compete can be cured through the introduction of parol evidence at trial. Therefore, plaintiffs conclude, even if the covenant is unenforceable for the purpose of obtaining a preliminary injunction, it could be enforced for monetary relief after a trial on the merits.

This court may affirm the trial court’s dismissal of counts I and II “if it is justified in the law for any reason appearing in the record.” Natural Gas Pipeline Co. of America v. Phillips Petroleum Co. (1987), 163 Ill. App. 3d 136, 142, 516 N.E.2d 527, 531.

Plaintiffs argue that the trial court erred in dismissing counts I and II because it relied solely on the record before this court in Akhter I, citing Cummings-Landau Laundry Machinery Co. v. Koplin (1944), 386 Ill. 368, 373-78, 54 N.E.2d 462, 465-66. In that case, our supreme court stated:

“The decision of the issues by the Appellate Court, on the record before it, will not preclude the trial court from deciding the same issues on the record made in the hearing on the merits, no matter how they may have been decided by the Appellate Court on the record before it. The fears of plaintiff in error *** are not necessarily well founded. Of course, if the question of the validity of the contract should be presented *** solely upon the record which was before the Appellate Court, it will be its duty to follow the decision of that court.” Cummings-Landau Laundry Machinery Co., 386 Ill. at 377, 54 N.E.2d at 466.

Here, plaintiffs submitted an affidavit asserting the intent of the parties at the time they signed the document to limit the scope of the agreement to Northwest Hospital. Yet plaintiffs testified to the same effect at the hearing on the preliminary injunction. Plaintiffs then explicitly raised the argument in their motion to reconsider. Indeed, plaintiffs have previously urged the very same point before this court. Akhter, 119 Ill. App. 3d at 134, 456 N.E.2d at 235 (“In any event, plaintiff now argues he is only seeking an injunction to prevent defendant from practicing at one hospital — Northwest”).

In short, the affidavit, assuming it was admissible, added nothing to the record. Therefore, the trial court in no way denied plaintiffs their day in court or due process of law.

To the contrary, the trial court was bound to follow the appellate decision, as is this court, under the law of the case doctrine. (E.g., Lubbers v. Norfolk & Western Ry. Co. (1986), 147 Ill. App. 3d 501, 498 N.E.2d 357, appeal denied (1987), 113 Ill. 2d 576, 505 N.E.2d 354.) In this case, the noncompetition covenant has been held by this court to be unenforceable as a matter of law. Because the affidavit did not substantially affect the record or the law of the case, Akhter I remains binding on this court.

Consequently, based on the record presented, the trial court did not err in dismissing counts I and II of plaintiffs’ complaint.

We also note that count III remains pending in the trial court and is in no way involved in this appeal.

For the aforementioned reasons, the decision of the trial court is affirmed and the case is remanded for further proceedings on count III of the third amended complaint.

Judgment affirmed and remanded.

O’CONNOR and MANNING, JJ, concur.


author: JUSTICE WHITE JUSTICE FREEMAN,

text:
    ROGER S. BRITTON et al., Plaintiffs-Appellants, v. F. SOLTES, Defendant-Appellee.
    First District (3rd Division)
    No. 1—89—0733
    Opinion filed October 31, 1990.

      FREEMAN, J., dissenting.
    Daniel J. Rice, of Forest Park, for appellants.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Peter J. Mone, Mark L. Karasi, and Christopher T. Hurley, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Appellants Wilma Britton, Roger David Britton, Michael S. Brit-ton, and Daniel Lee Britton appeal from an order of the trial court granting summary judgment for appellee Dr. Francis Soltes. Appellants argue that the trial court erred in finding that they could not maintain an action against Soltes.

In August 1985, Roger S. Britton and appellants, Britton’s ex-wife, Wilma, and his children Roger David, Michael S., and Daniel Lee, filed suit against Soltes alleging that during 1983 and 1984 Brit-ton was under the care of Soltes and that Soltes failed to discover that Britton was suffering from tuberculosis. It was further alleged that during that period, Britton resided next door to appellants, that Britton visited appellants on a frequent basis, and that because of Soltes’ failure to diagnose Britton’s condition appellants also contracted tuberculosis.

Soltes filed a motion for a partial summary judgment against appellants. In his motion, Soltes pointed out that Roger S. and Wilma Britton both stated in their depositions that Soltes had never treated Wilma or the children. Soltes noted that under the supreme court’s decisions in Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387, and Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250, a medical malpractice action could not be maintained absent a direct physician-patient relationship or a special relationship between the patient and the plaintiff. Soltes argued that because there was no physician-patient relationship between himself and appellants and because the relationship between Britton and appellants was not special within the meaning of Renslow, he was entitled to summary judgment as a matter of law.

The trial court granted Soltes’ motion for a partial summary judgment. The court refused to find that Soltes’ duty extended to appellants, stating that appellants’ exposure was fortuitous and not the result of a special relationship. This appeal followed.

Prior to 1977, Illinois courts did not recognize any duty on the part of hospitals or doctors to nonpatient third parties injured as a result of a negligent act performed against a patient. In 1977, for the first time, a nonpatient third party was allowed to maintain an action against a hospital and doctor. (Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250.) In Renslow, the supreme court held that a child could maintain an action against a hospital for negligence committed against her mother 8V2 years before the child’s birth.

When the mother of the plaintiff in Renslow was 13 years old, defendants negligently transfused her Rh-negative blood with Rh-positive blood. The transfusion with the incompatible blood caused the mother’s blood to become sensitized. Defendants did not inform the mother that she had been transfused with incompatible blood, and she first learned that her blood had been sensitized eight years later, when she was pregnant with plaintiff. Because of the earlier sensitization of her mother’s blood, plaintiff suffered permanent damage to her brain, various internal organs, and her nervous system.

In holding that plaintiff could maintain an action against defendants, the court noted that the risk of injury to an Rh-positive fetus of an Rh-negative woman who had been previously sensitized was long known and that, therefore, the risk of harm to the plaintiff was reasonably foreseeable. (67 Ill. 2d at 353-54.) On the issue of duty, the court noted that, historically, negligence could not be founded upon the breach of a duty owed to some person other than the plaintiff. However, the court also noted that the law allowed recovery in the case of injuries to unborn infants in a previable state whose existence was not apparent at the time of the negligent act. The court stated that it would be illogical to bar relief for an act done prior to conception where the defendant would be liable for the same act if unbeknownst to him a child had been conceived prior to his act. Stating that it believed that there was a right to be born free from prenatal injuries foreseeably caused by a breach of duty to one’s mother, the court concluded that logic and sound policy required the extension of legal duty. 67 111. 2d at 357-58.

In the 13 years since Renslow, there has been no other case in which the supreme court has found a duty to nonpatient third parties. In Kirk v. Michael Reese Hospital & Medical Center, the court refused to extend its holding in Renslow.

In Kirk, the plaintiff was injured while a passenger in a car driven by a former psychiatric patient at the defendant hospital. The plaintiff sued the hospital and two of its doctors alleging that they negligently failed to warn their patient that prescribed drugs would diminish his physical and mental abilities.

The court reiterated its holding in Renslow, stating:

“A wrong against one person may invade the protected rights of one who has a special relationship with the first party, as the law recognizes a limited area of transferred negligence. (Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 357; see also Hofmann v. Blackmon (Fla. App. 1970), 241 So. 2d 752.) The transfer of duty is limited by a court’s policy decision that the duty to act with reasonable care should be transferred to the third-party plaintiff. This duty, however, arises from a special relationship between either the defendant and the other party or the third-party plaintiff and the other party. The duty in Renslow was based primarily on the injury’s being a direct result of alleged negligence to the infant’s mother, which was found to have invaded the protected rights of the child, who was intimately related to the mother.” Kirk, 117 Ill. 2d at 528.

In Kirk, the court found that defendants owed no duty to plaintiff. The court stated that because there was no patient-doctor relationship between defendants and plaintiff, or a special relationship as in Renslow between the patient and plaintiff, plaintiff’s action against defendants was properly dismissed. 117 Ill. 2d at 532.

Appellants’ brief does not address the relationship between Wilma Britton and Roger S. Britton. However, Roger David, Michael S. and Daniel Lee Britton argue that as the children of Roger S. Britton, their relationship to him is “special” within the meaning of Renslow and Kirk. We disagree.

Our reading of the Renslow and Kirk cases does not lead us to conclude that the supreme court intended to extend duty in all cases involving familial or parent-child relationships. We read Renslow and Kirk as providing that a duty will be extended only where the relationship between the patient and the third party is such that negligence to the patient necessarily results in injury to the third party.

In Renslow the court pointed out that a duty was found to exist in Kirk because the negligent acts invaded the protected rights of the child. The court found that this type of relationship did not exist between the patient and a passenger in his car. 117 Ill. 2d at 528.

We do not believe that the court’s decision would have been different if the passenger in Kirk had been related to the patient. In that situation, it could not be argued that the injury to the passenger was the result of a special relationship with the plaintiff; nor could it be said that the passenger’s protected rights were invaded by the action of the defendants toward their patient.

Similarly, in the present case, it cannot be said that Soltes’ action toward Roger S. Britton invaded any of appellants’ protected rights or that the relationship between Britton and appellants was such that Soltes’ failure to diagnose Britton necessarily resulted in injury to appellants. This is especially true in light of evidence in the record that at the time Roger S. Britton fell ill he was divorced and living apart from his family. Under these circumstances, we believe that the trial court correctly found that the appellants’ injury was caused by chance and not by any special relationship.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

CERDA, P.J., concurs.

JUSTICE FREEMAN,

dissenting:

To the extent that it denies the plaintiff children in this case an opportunity to seek recovery against defendant, I respectfully dissent from the majority’s judgment. I agree with the majority that, as the issue presented in this case is one of first impression in Illinois, its determination turns on the interpretation of the two cases closest to it, Renslow and Kirk. However, simply put, I do not read those cases as narrowly as the majority.

In failing to find a duty in this case, I believe the majority focuses too narrowly upon the precise holding of Renslow and the reasoning of the court therein specifically addressed to that holding. In so doing, the majority ignores the language of Renslow concerning the broader philosophical underpinnings of the court’s decision:

“We reaffirm the utility of the concept of duty as a means by which to direct and control the course of the common law. But examples of changing notions of legal duty in the area of products liability, as well as the progressive expansion of duty in prenatal cases ***, demonstrate that duty is not a static concept.
This court has long recognized that a duty may exist to one foreseeably harmed though he be unknown and remote in time and place. [Citations.] Also, derivative actions, such as those of a husband or parent for the loss of the wife’s or child’s services, demonstrate that the law has long recognized that a wrong done to one person may invade the protected rights of one who is intimately related to the first. [Citation.] In these cases, because of the nature of the relationship between the parties harmed, the law recognizes a limited area of transferred negligence.” Renslow, 67 Ill. 2d at 357.

The foregoing passage from Renslow reveals that it was, at bottom, the concept of transferred negligence which the Renslow court applied in finding a duty to the unborn child in that case. Thus, I believe that the issue in this case is not so much whether the precise holding in Renslow supports the assertion of a duty in defendant to the plaintiffs in this case but, rather, whether the concept of transferred negligence applied in Renslow supports that assertion. Unlike the majority, I would answer that query in the affirmative.

I further believe, unlike the majority, that Kirk also supports recognition of the duty asserted in this case. As it does with Renslow, the majority focuses too narrowly upon the precise holding in Kirk and extrapolates its own narrow holding in this case therefrom. Initially, I must take issue with the majority’s attempt to distinguish Hofmann v. Blackmon from this case. As the majority notes, Hofmann, which involved a physician’s duty to warn the minor child of his patient of the latter’s affliction with a contagious disease, was cited by the Kirk court in reiterating the Renslow court’s recognition of the concept of transferred negligence.

Notwithstanding that fact, the majority distinguishes Hofmann on the grounds that, under Florida law, physicians have a duty to warn family members of a patient suffering a contagious disease and that no such duty to warn exists in Illinois. In so distinguishing Hofmann, the majority simply begs the question presented here. We are called upon in this case to decide whether the duty recognized in Florida exists in this State. To simply say that the duty does not exist in this State is pointless. Moreover, contrary to the majority’s implication, it does not appear from the opinion in Hofmann that the duty to warn of contagious disease was recognized in Florida prior thereto or that it existed as a matter of Florida statutory law. Contrary to the majority’s implication, Hofmann was the first Florida case recognizing the duty to warn of a contagious disease.

Finally, I cannot agree with the majority’s interpretation of the Kirk court’s citation to Hofmann. The Kirk court cited Hofmann as additional support for the principle that a wrong against one person may invade the protected rights of one who has a special relationship with the first party, as the law recognizes a limited area of transferred negligence. Contrary to the reasonable interpretation of the supreme court’s citation to Hofmann, the majority reasons that it does not indicate an intent to adopt as broad a concept of duty as recognized under Florida law. To so hold, I believe, is to ignore the obvious.

I simply cannot subscribe to the majority’s implication that the supreme court does not mean what it says. I believe that, by citing Hofmann as supporting the principle of transferred negligence applied in Renslow, the supreme court clearly, albeit tacitly, recognized that Hofmann involved a special relationship, upon which the theory of transferred negligence rests, as much as Renslow involved such a relationship.

Were the majority to acknowledge, rather than ignore, the Kirk court’s recognition in Hofmann of the same type of special relationship as involved in Renslow, albeit not exactly the same relationship involved therein, I do not believe it could logically find that the relationship of the children to the father in this case is not “ ‘special’ within the meaning of Renslow and Kirk.” 205 Ill. App. 3d at 946.

The majority concludes that Renslow and Kirk provide that a duty will be extended only where the relationship between the patient and third party is such that negligence to the patient necessarily results in injury to the patient. To buttress this conclusion, the majority reasons that the result in Kirk would not have been different had the plaintiff passenger therein been related to the patient driver because the injury to the former would not have resulted from that relationship, nor could it be said that the passenger’s protected rights were invaded by the action of the Kirk defendants toward their patient. I agree with this reasoning. However, the fact that the Kirk plaintiff would not have been entitled to hold the defendants therein liable even if he had been related to their patient is irrelevant to this case.

In the majority’s hypothetical situation in Kirk, the plaintiff’s injuries would be a function not of his special relationship with the defendants’ patient, but simply of his status as a passenger in a vehicle driven by the patient. In contrast, the injuries to the plaintiff children in this case were a function of nothing more than their special relationship to their father and the intimate relations inherent in that relationship, which were manifested by the close and frequent contacts between the father and children which are evident in the record before us. At bottom, I believe that the intimate relationship between the father and .children in this case is deserving of as much protection as the intimate relationship recognized in Renslow. Contrary to the majority, I do not find the fact that the father in this case did not live with his children at the time he fell ill sufficient, whether alone or in combination with other factors, to conclude that the children’s rights arising from the relationship with their father are not deserving of protection. Cf. Hofmann v. Blackmon (Fla.. App. 1970), 241 So. 2d 752 (physician owes duty to minor child who is a member of the immediate family of and living with a patient suffering from a contagious disease to inform those charged with the minor's well being of the nature of the contagious disease and the precautionary steps to be taken to prevent the child from contracting such disease).

In addition to my disagreement with the majority’s reasoning, I find the fact, ignored by the majority, that upholding a cause of action in the minor children, if not the ex-wife, in this case would align Illinois with most of the States that have considered the same or a similar issue as presented here worthy of consideration by this court. See Hedlund v. Superior Court of Orange County (1983), 34 Cal. 3d 695, 194 Cal. Rprtr. 805, 669 R2d 41 (breach of physician’s duty to warn or protect others from the danger posed by patient suffering from a communicable disease may result in liability to close family members and others who the physician knows or should anticipate will be in ■close proximity to the patient); McIntosh v. Milano (1979), 168 N.J. Super. 466, 484, 403 A.2d 500, 509 (physician has a duty to warn third persons against possible exposure to contagious or infectious diseases where he should have known thereof); Wojcik v. Aluminum Co. of North America (1959), 183 N.Y.S.2d 351 (wife had a cause of action against defendant employer for negligent failure to inform husband that physical examination conducted by physician working for employer disclosed that husband had or was developing tuberculosis); Shepard v. Redford Community Hospital (1986), 151 Mich. App. 242, 390 N.W.2d 239 (hospital had a physician-patient and thus special relationship with its patient and thus owed a duty of reasonable care to her minor son who, as also a member of her household, was a foreseeable potential victim of negligent failure to diagnose spinal meningitis in the patient which was communicated to her son).

Moreover, the same or a similar right to seek recovery against a physician as asserted here is generally recognized in tort law:

“One who by reason of his professional relations is placed in a position where it becomes his duty to exercise ordinary care to protect others from injury or danger is liable in damages to those injured by reason of his failure to do so.
And it is the general rule that a physician is liable for his negligence in permitting persons to be exposed to infectious or communicable diseases to the injury of the persons so exposed.” 61 Am. Jur. 2d Physicians & Surgeons §245, at 377 (1981).

See also 70 C.J.S. Physicians & Surgeons §88, at 496 (1987).

Finally, I feel compelled to respond to defendant’s argument that allowing the ex-wife and children in this case to sue him would require allowing nonfamily members with close relationships to the father such as roommates, workmates and other health care providers such as his dentist to do so. Defendant warns that taking the duty asserted by plaintiffs to its logical conclusion would expose him and all physicians to endless litigation stemming from one alleged instance of malpractice.

Defendant’s argument against the extension of the special relationship exception to the requirement of a physician-patient relationship to sue for medical malpractice merits consideration. Unfortunately for defendant, however, the supreme court has already rejected virtually the same argument. The Renslow court wrote:

“The defendants assert that the need for an end to responsibility, short of perpetual liability for a single wrongful act, dictates that a duty for preconception torts not be imposed. They raise the specter of successive generations of plaintiffs complaining against a single defendant for harm caused by genetic damage done an ancestor in a nuclear accident. While we are aware that there may be similar potential for perpetual claims arising from chemical accident or long-term radiation exposure [citation], the case at bar is clearly distinguishable. The damage alleged is not, by its nature, self-perpetuating, nor is the plaintiff a remote descendant. We feel confident that when such a case is presented, the judiciary will effectively exercise its traditional role of drawing rational distinctions, consonant with current perceptions of justice, between harms which are compensable and those which are not.” Renslow, 67 Ill. 2d at 358.

In this case, defendant raises the specter of a potentially unlimited liability to all those infected by his patient as well as all those whom they infect. The possibility of such liability on the part of health care providers does give me pause. However, keeping in mind that the plaintiffs in this case are the children and the ex-wife of defendant’s patient, to whom he lived in close proximity and whom he visited on a continuous basis, I, like the Renslow court, believe that trial courts can and will draw "rational distinctions, consonant with current perceptions of justice, between harms which are compensable and those which are not.” 67 Ill. 2d at 358.

In this regard, defendant also asserts that limiting his duty and the right to sue to his patient’s immediate family would constitute an artificial distinction between such plaintiffs and all others whom his patient or they might infect. I cannot agree that limiting the right to sue recognized in this case to a patient’s immediate family members, i.e., to those with whom he has special relationships, is an artificial and arbitrary distinction. However, even if it were, I remind defendant of what the Renslow court said in deciding that duty, rather than causation, should be the test of liability in preconception tort cases: “[Pjoliey lines, to some extent arbitrary, must be drawn to narrow an area of actionable causation.” (Renslow, 67 Ill. 2d at 356.) Unlike the majority, I would draw those policy lines, “defined traditionally as ‘duty’ ” (Renslow, 67 Ill. 2d at 356), to include the plaintiff children in this case.

      We are aware that the Hofmann case involves a fact situation somewhat similar to that in the present case. However, under Florida law, physicians have a duty to warn family members of a patient suffering from a contagious disease. Thus, the issue in Hofmann was whether the duty arose when the physician negligently failed to diagnose the contagious disease. No such duty to warn exists in Illinois, and we do not believe that the supreme court’s citation to Hofmann indicates an intent to adopt a concept of duty as broad as that present under Florida law.

        Hofmann was also construed as involving a special relationship between the patient and the minor child plaintiff in McDowell v. County of Alameda (1979), 88 Cal. App. 3d 321,151 Cal. Rptr. 779.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY GENTILE, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—2009
    Opinion filed November 1, 1990.
    Rehearing denied December 19, 1990.

      Michael J. Pelletier and Anna Ahronheim, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and Paul Gliatta, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a bench trial, defendant, Anthony Gentile, was found guilty of possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(a)(2)). He was sentenced to six years in the Illinois Department of Corrections and fined $4,000. Defendant appeals, seeking reversal of his conviction and remand of the cause for a new trial, or reduction of his conviction from possession with intent to deliver to possession, or vacation of the $4,000 fine.

On appeal, defendant raises the following issues: (1) whether the trial court erred in denying his motion to quash arrest and suppress certain inculpatory evidence seized following his arrest; (2) whether his notebook was properly seized; and (3) whether the trial court erred in imposing a $4,000 fine.

We affirm.

At the hearing on defendant’s motion to quash arrest and suppress evidence, defendant testified that on April 23, 1981, at approximately 5:20 p.m., he arrived at Chicago’s O’Hare Airport on a commercial flight from Miami, Florida. Defendant was en route to Madison, Wisconsin, but had to change planes in Chicago. By profession, defendant testified that he is in the furniture and home remodeling business. At the time of the hearing, he was living in Madison with his fiancee.

After deplaning, he proceeded to the ticket counter to get information on his connecting flight. He then walked to a water fountain that was attached to a wall in the terminal. At that time, he was approached by two plainclothes police officers. One officer, Kenneth Labik, a drug enforcement agent, showed defendant his identification. Agent Labik stood at arm’s distance from defendant. The other officer, Rosemary Burzinski, a Chicago police officer, stood behind defendant on the other side of the water fountain.

The officers then asked defendant whether they could talk with him. Defendant was also asked to produce his airline ticket and some form of identification. Defendant’s baggage claim check was attached to his ticket. Defendant showed the officers his Pennsylvania driver’s license. At that time, he also had a California address.

At one point, the conversation between defendant and the officers became “somewhat heated.” Defendant refused to allow the officers to search his luggage without a warrant. According to defendant, Officer Labik repeatedly asked defendant if they could search his person. Defendant also refused these requests. Defendant testified that although he noticed that Agent Labik carried a revolver, Labik never pulled out the weapon.

Defendant testified that Officer Burzinski then motioned to Agent Labik to open defendant’s jacket. Defendant was later handcuffed and placed under arrest for disturbing the peace. After his arrest, defendant was taken to an office where the officers conducted a strip search. Defendant stated that cocaine amounting to approximately 170 grams was found in his jacket pocket. Subsequently, a warrant was obtained to search defendant’s luggage.

Officer Burzinski was called upon to testify at the suppression hearing. Her version of the events differed from defendant’s testimony. We also note that, at trial, defendant testified that he was “high” from the cocaine he was carrying at the time of this encounter.

Officer Burzinski is a 13-year veteran with the Chicago police force. On April 23, 1981, she and Agent Labik were assigned to the Drug Enforcement Administration (hereinafter DEA) task force at O’Hare Airport. She stated that the flights from Miami were being monitored, as Miami is considered a drug “source” city. According to Officer Burzinski, Agent Labik was not carrying a weapon. However, at trial Agent Labik testified that he was carrying a gun under his jacket but there is no evidence that he displayed the gun, or intentionally revealed it to defendant, or threatened defendant with it at any time.

At approximately 5:10 p.m., Officer Burzinski observed defendant disembark from a United Airlines flight arriving from Miami. She noticed that defendant looked at all of the people in the vicinity of his arrival gate. He made eye contact with her and Agent Labik. Defendant then proceeded to the airline ticket counter. He looked over his shoulder in the officers’ direction several times as he walked. Before reaching the ticket counter, he stopped and looked around the area again. Defendant did not stand in line with the rest of the passengers at the ticket counter.

After standing in the area of the ticket counter for several minutes, defendant began to walk back in the direction of the area from which he had recently deplaned. The officers were also standing in that direction. The officers then approached defendant, showed him their identification and asked him whether they could question him. Defendant then asked if he was under arrest. Agent Labik informed him that he was not under arrest.

Defendant produced his Pennsylvania driver’s license and his airline ticket. Defendant again asked whether he was under arrest. Agent Labik told him that he was not under arrest but that he was suspected of carrying narcotics. Defendant then became “very belligerent” over this accusation and pushed Agent Labik in the chest with his finger. Officer Burzinski intervened and told defendant not to touch Agent Labik. Defendant then moved toward Officer Burzinski with his hands up. Agent Labik told defendant to “control” himself. Defendant then pushed Agent Labik again in the chest with both hands. At that point, defendant was placed under arrest and searched in the DEA office at the airport. A substantial amount of cocaine was found in a plastic bag in defendant’s jacket pocket.

Subsequently, Officer Burzinski retrieved defendant’s luggage. A trained dog detected the presence of narcotics in defendant’s suitcase. After a warrant had been obtained, the suitcase was searched at a Chicago police station. A notebook and drug paraphernalia were seized from the suitcase and inventoried.

After hearing testimony from defendant and Officer Burzinski, defendant’s motion to suppress was denied. This motion was again raised at trial and denied.

At trial, the State’s evidence consisted of testimony from Officers Labik and Burzinski. A DEA forensic chemist also testified. The defense presented testimony from a drug rehabilitation expert and several character witnesses, including defendant’s fiancee.

It was revealed at trial that prior to 1980 defendant lived in Pennsylvania. He owned a general contracting business while living there. Marijuana was the only drug he used prior to 1980. In 1980, defendant moved to California and began to use cocaine. He lived with some friends in California including a drug dealer. The people with whom he lived were part of the Hare Krishna religious sect. In exchange for rent and cocaine, defendant sold drugs for the group. The notebook found in defendant’s suitcase had been used to record drug-related transactions. There were, however, no transactions recorded between August 1980 and April 1981 because, according to defendant, he was only selling small amounts of drugs during that period. He explained that he was trying to get out of the drug business.

One page of the notebook contained the notation, “April 23 run.” Defendant explained that “run” meant binge and that his fiancee’s birthday was on April 23. Defendant also left California on April 23 to go to Wisconsin via Miami. According to defendant, it was his intention to have one last cocaine binge before he attempted to break his habit. Defendant obtained the cocaine from a drug dealer in Miami. Defendant admitted to being in possession of the cocaine but denied any intent to deliver or distribute the contraband.

After both sides completed their arguments, defendant was found guilty of possession with intent to deliver cocaine. On June 10, 1987, defendant was sentenced to a six-year minimum term. A fine of $4,000 was also imposed.

Defendant first argues that the trial court erred in denying his motion to quash arrest and suppress certain inculpatory evidence. Defendant reasons that his initial detention in the airport was not supported by reasonable suspicion, and the arrest which led to the seizure of the cocaine was deliberately provoked by the police officers.

The State maintains that the encounter between defendant and the police officers was a consensual inquiry and not a seizure; defendant was seized only after he struck Agent Labik. We agree.

A trial court’s findings on a motion to suppress will not be disturbed unless manifestly erroneous. (People v. Long (1983), 99 Ill. 2d 219, 231.) Although defendant’s testimony differed in some respects from the testimony given by the officers, the trial court resolved the discrepancies in favor of the officers. Determinations as to the weight and credibility given to a witness in a nonjury trial are an exclusive function of the trial court. (People v. Reynolds (1983), 94 Ill. 2d 160, 165.) A court of review will not disturb these determinations unless manifestly erroneous. (People v. Ware (1988), 180 Ill. App. 3d 921, 929.) We, therefore, defer to the trial court’s decision with respect to witness credibility.

The fourth amendment to the U.S. Constitution, as applied to the States through the fourteenth amendment, provides, in pertinent part, that “[t]he right of the people to be secure in their persons *** against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” (U.S. Const., amend. IV.) A person is seized in the constitutional sense when an officer restrains the individual’s freedom to leave the officer’s presence. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) However, when an individual is objectively free to leave the officer’s presence during questioning in a public place, a seizure has not occurred. (Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319.) “[L]aw enforcement authorities may legitimately approach a deboarding airline passenger and ask him questions provided the passenger’s freedom is not restrained.” People v. Brett (1984), 122 Ill. App. 3d 191, 195.

Defendant contends that he was seized, within the meaning of the fourth amendment, at two points. The first seizure occurred, defendant argues, when the officers asked him for identification and his airline ticket. The second seizure occurred when the officers informed him that he was suspected of carrying narcotics. We, however, do not find a seizure taking place at these junctures as defendant was also told twice that he was not under arrest. It was not until he pushed Agent Labik that defendant was placed under arrest.

We find, therefore, that under the circumstances of this case defendant was objectively free to leave the officers’ presence until such time as he was actually placed under arrest. We do not find that the officers attempted to prevent his departure through threats or a show of authority prior to the time defendant was arrested. Defendant was objectively free to leave the officers’ presence. (See People v. Price (1990), 195 Ill. App. 3d 701.) If defendant believed that he was not free to leave, then his belief was unreasonable. (People v. Brett (1984), 122 Ill. App. 3d 191.) As previously noted, defendant admitted that he was “high” at the time of the encounter. Defendant also testified that cocaine put him in a “euphoric state” that gave him a “false view” of himself. Conceivably, the cocaine may have affected his perception of the events that transpired with the officers. We find his initial encounter to be consensual which later became a seizure after defendant was placed under arrest for pushing Agent Labik. See United States v. Mendenhall (1990), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870; People v. Price (1990), 195 Ill. App. 3d 701; People v. Jones (1989), 190 Ill. App. 3d 416; People v. Forrest (1988), 172 Ill. App. 3d 385.

The next issue defendant raises is whether his notebook and the contents therein were properly admitted into evidence. Defendant contends that although the officers had obtained a warrant which authorized them to search defendant’s suitcase for narcotics and narcotics-related paraphernalia, the officers exceeded the scope of their warrant when they seized the notebook found in defendant’s suitcase.

Defendant had recorded all of his drug-related transactions up until August 1980 in the notebook. The notation “April 23 run” was also contained in the notebook. Defendant argues that the erroneous admission of the notebook requires reversal of this case since, he believes, the trial court considered the notebook to be critical evidence as to the element of intent to deliver.

The trial court admitted the notebook, finding that it could properly be characterized as drug paraphernalia pursuant to the Drug Paraphernalia Control Act (Ill. Rev. Stat. 1985, ch. 56½, par. 2101 et seq.) (hereinafter the Act). The Act states:

“ ‘Drug paraphernalia’ means all equipment, products and materials of any kind which are peculiar to and marketed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body cannabis or a controlled substance in violation of the ‘Cannabis Control Act’ or the ‘Illinois Controlled Substances Act.’ ” Ill. Rev. Stat. 1985, ch. 56½, par. 2102(d).

The section also lists various kits, devices, equipment, diluents and adulterants, or objects that are peculiar to and marketed for use in illegal drug distribution. We, however, do not find that defendant’s notebook comes within the Act’s definition of drug paraphernalia. The notebook is not marketed for or particularly peculiar to the illegal distribution of drugs. We find that since the notebook was not described in the warrant, the officer exceeded the scope of the warrant. People v. Fragoso (1979), 68 Ill. App. 3d 428, 436.

The trial court, however, stated that it was not limited by the definition as provided in the Act in admitting the notebook. The trial court also held that the notebook may be admissible under the “plain view” doctrine or the “good faith” exception to the exclusionary rule. This rule prohibits the warrantless seizure of incriminating evidence.

A violation of the fourth amendment may not be found by the warrantless seizure of incriminating evidence if the item seized was in plain view in a place where the police officers had a right to be; its incriminating character is immediately apparent; and there is probable cause to believe that the item is connected to the crime charged. (Coolidge v. New Hampshire (1971), 403 U.S. 443, 465-66, 29 L. Ed. 2d 564, 582-83, 91 S. Ct. 2022, 2037-38.) The evidence, however, need not be “inadvertently” discovered. Horton v. California (1990), 496 U.S. 128,110 L. Ed. 2d 112,110 S. Ct. 2301.

In the instant case, the officers had a valid warrant to search the suitcase; the notebook was in plain view in the suitcase; the incriminating character was immediately apparent as it was in the same suitcase and in proximity to the seized drug paraphernalia which was also in the suitcase; and there was probable cause to believe that the notebook was connected to the crime charged, i.e., possession with intent to deliver. If, as defendant claims, the cocaine was for his own personal use, defendant has provided no rational reason as to why he would carry a drug ledger notebook.

Defendant, on the other hand, contends since the notebook was not lying in an open position when it was discovered, the contents of the notebook were not in plain view. In People v. Loggins (1985), 134 Ill. App. 3d 684, this court was presented with an analogous situation. Police officers in Loggins entered the defendant’s apartment pursuant to an arrest warrant. The defendant, in that case, was an armed robbery suspect.

Upon entering defendant’s apartment, one of the officers saw a purse on defendant’s bedroom dresser. The purse matched the description of the purse stolen from the complainant. The officer then proceeded to open the purse and examine the contents to determine whether it belonged to complainant. After examining the contents of the purse, it was determined that the purse did in fact belong to the complainant. We found that the purse was properly admitted under the “plain view” doctrine notwithstanding the fact that the purse was in a closed position when it was found. Loggins, 134 Ill. App. 3d at 688.

Similarly, in the instant case, although the notebook was not open when the officers discovered it in “plain view” in defendant’s suitcase, we find that the notebook and the contents therein may be properly admitted under the “plain view” doctrine.

Even assuming, arguendo, that the notebook was not properly admissible under this doctrine, we find that because of the overwhelming evidence of defendant’s guilt the error, if any, in admitting the notebook and the contents therein was harmless. Defendant was carrying approximately 138 grams of cocaine in his jacket pocket at the time of his arrest. According to defendant the cocaine was worth approximately $12,000. The State established the street value of the cocaine to be between $75,000 and $95,000. The purity level of the cocaine was 83%. This is considered to be a high level of purity for purposes of blending it with another substance to further expand the amount of cocaine. Moreover, defendant carried the blending agent with him in the suitcase that was seized.

We also note that defendant carried a great deal of drug paraphernalia in his suitcase, including a grinder (to make the cocaine as fine as possible), a strainer, a lighter, a pipe or “snorting tube,” several small spoons, wrapping paper used to smoke marijuana, several bottles filled with the cocaine cutting agent, and a multicolored package containing numerous zip-lock bags which could conceivably be used for the distribution of cocaine. Further, defendant testified that he had previously sold drugs and that he went to Miami to meet a drug dealer for whom he was to sell cocaine. Under the circumstances of this case, we do not find that the trial court erred in finding defendant guilty of possession with intent to deliver cocaine.

In light of this holding, we need not address the admissibility of the notebook under the good-faith exception to the exclusionary rule.

Finally, defendant argues that the $4,000 fine must be vacated due to his indigence. Defendant contends that the trial court failed to consider his ability to pay. Moreover, defendant argues that if a mandatory fine was imposed pursuant to section 5 — 9—1.1 of the Unified Code of Corrections (111. Rev. Stat. 1985, ch. 38, par. 1005 — 9—1.1), it must be vacated, as the offense was committed on April 23, 1981, and section 5 — 9—1.1 did not become effective until January 1, 1982. We agree that a mandatory fine may not be imposed in this case.

However, while the court does not state which section it relies upon, a fine may properly be imposed pursuant to section 5 — 9—1(d). (111. Rev. Stat. 1985, ch. 38, par. 1005 — 9—1(d).) This section gives the trial court the authority to impose a fine after considering “the financial resources and future ability of the offender to pay the fine.” (111. Rev. Stat. 1985, ch. 38, par. 1005 — 9—1(d)(1).) The section, in effect, authorizes the discretionary imposition of a fine.

Prior to imposing the sentence and fine, the trial court heard arguments in mitigation and aggravation including an argument by defense counsel that defendant had gone from “working diligently for a construction company to starting his own business *** [and] he has completed several projects for many people in the community.” During trial, the court heard testimony from several of defendant’s witnesses who had, in fact, been clients through his company, Exquisite Interiors. The trial court also heard testimony that defendant had previously had a habit that could result in his using in excess of $10,000 worth of cocaine in a matter of days. In light of the evidence presented, we do not find that the trial court abused its discretion in imposing the fine. Further, we find that the trial court properly deducted the fine from defendant’s $10,000 bond. See People v. Foreman (1987), 153 Ill. App. 3d 346.

Accordingly, the decision of the trial court is affirmed. As part of our judgment, we grant the State’s request that defendant be assessed $75 as costs and fees for this appeal pursuant to People v. Agnew (1985), 105 Ill. 2d 275, and People v. Nicholls (1978), 71 Ill. 2d 166.

Affirmed.

LINN and JIGANTI, JJ., concur.


author: JUSTICE LINN

text:
    DOROTHY VESEY, Indiv. and as Next Friend of Lonzo Vesey, Plaintiff-Appellant, v. CHICAGO HOUSING AUTHORITY, Defendant-Appellee.
    First District (4th Division)
    No. 1—89—1503
    Opinion filed November 1, 1990.

      Karlin & Fleisher and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky and Tammy A. Koester, of counsel), for appellant.
    Moore & Maisel, of Chicago (Gary K. Moore and Thomas J. Branit, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Dorothy Vesey, individually and on behalf of her infant, Lonzo Vesey, brought this action against the Chicago Housing Authority (CHA) to recover damages for Lonzo’s severe injuries that resulted from his contact with exposed radiator pipes.

The CHA moved for summary judgment on the ground that, as a landlord, it owed no duty to insulate or cover exposed steam pipes in the tenant’s premises and that the evidence was insufficient to establish that it was on notice of any allegedly defective condition.

The trial court initially denied the parties’ cross-motions for summary judgment, but after a second hearing on the issues, granted the CHA’s motion for summary judgment. The court held that there was insufficient evidence to sustain plaintiff’s burden of showing that the CHA had performed a voluntary act in a negligent manner, or that the CHA was on notice of the allegedly defective condition.

On appeal, plaintiff contends that the trial court’s judgment should be reversed and remanded for trial on the issues of whether the CHA negligently undertook to guard the radiator and whether it was on notice of the allegedly defective condition of the radiator pipes.

We reverse and remand.

Background

On March 25, 1984, six-month-old Lonzo Vesey was severely burned when he came into contact with an exposed pipe or heating coil from a radiator in the apartment of his baby-sitter. The pipes and radiator formed part of a steam heating system in the Henry Horner Homes public housing project owned by the CHA. At the time, the infant was in the care of Lola McClinton who, along with her sister, Josephine McClennon, lived in apartment 1403. According to Lola, Lonzo had been attracted to the clicking noises the radiator made as the steam moved up through it. On the night of the incident, Josephine had put the baby to bed between 10:30 and 11 p.m., placing him on the bed on his stomach with a pillow propped on either side of him. She testified in her deposition that she went to sleep next to him at 12:30 p.m. and woke up when she heard him screaming. His hand was still stuck to the pipe when she picked him up. She also saw that his thigh was severely burned. Lonzo was taken to the hospital, where his finger was amputated because of his serious burns.

Plaintiff’s second amended complaint alleged that the CHA had negligently maintained apartment 1403 in that it had allowed a dangerous condition to remain on the premises after notice of the defect. This defect consisted of an uncovered pipe in conjunction with the clicking noise that attracted Lonzo, causing the infant’s injuries. The complaint alleged that the CHA was negligent for failing to provide a cover or guard; failing to repair the exposed heating coil; failing to warn of the condition; and for failing to set up and operate an inspection program to discover hazardous conditions.

The CHA filed several motions directed at the second amended complaint, including motions to strike and dismiss pursuant to section 2 — 615 of the Code of Civil Procedure and a motion to dismiss pursuant to section 2 — 619. (111. Rev. Stat. 1989, ch. 110, pars. 2 — 615, 2— 619.) Those motions were denied, and the CHA filed two answers to the second amended complaint (the second one apparently without leave of court). In its answers, the CHA denied the allegations and pleaded certain affirmative defenses, which are not directly in issue since the pending summary judgment order was based on plaintiff’s failure to state sufficient facts on all elements of negligence to withstand the entry of summary judgment.

In November 1986, the trial court first considered the issues raised on summary judgment. By that time, the parties had taken discovery and the court had before it the affidavits of Lola McClinton and Josephine McClennon; their depositions; and the deposition of CHA engineer Myles Duran. The essence of the CHA’s position was that, under Illinois law, the CHA had no duty to provide radiator guards under the decision of Hubbard v. Chicago Housing Authority (1985), 138 Ill. App. 3d 1013, 487 N.E.2d 20, appeal denied (1986), 111 Ill. 2d 581. According to the CHA, Hubbard holds that no cause of action can be premised on a landlord’s failure to provide radiator guards to prevent contact with exposed heating pipes that are not otherwise alleged to be defective. The trial court nevertheless denied summary judgment, ruling that the evidence in support of summary judgment must be “clear beyond a doubt” and that several questions remained that were appropriate for consideration by the finder of fact. The court concluded that there were “too many open questions. And due to that kind of speculation, [the court] must deny the motion.”

In May 1989, on the eve of trial, the CHA brought another motion for summary judgment, before the same judge. It appears that, with the exception of the deposition of plaintiff’s expert witness, no further depositions had been taken and the facts adduced of record had not changed since the 1986 summary judgment hearing. The CHA relied primarily on its previous contentions, along with the additional case of Trotter v. Chicago Housing Authority (1987), 163 Ill. App. 3d 398, 516 N.E.2d 684, appeal denied (1988), 119. Ill. 2d 576, 522 N.E.2d 1258. Trotter is an opinion from the same division of the appellate court that decided Hubbard. The trial judge stated that he viewed the matter differently from the way he had the first time and granted the CHA’s motion for summary judgment. The judge stated that he was bound to follow the majority opinion in Trotter. The judge stated that there was insufficient evidence of a negligent undertaking and further concluded that the record lacked competent evidence of notice to the CHA, acknowledging that the result would be different “if there was any kind of evidence at all of some kind of notice to the CHA to repair this.”

Opinion

The general principles governing summary judgment are simply stated and need not be recited at length. If the material facts are undisputed and the sole question presented is the application of law to those facts, summary judgment is the proper way to dispose of a case, if reasonable minds could not draw contrary inferences. (See Amalgamated Trust & Savings Bank v. Silha (1984), 121 Ill. App. 3d 1033, 460 N.E.2d 372.) Similarly, if controlling law establishes that the complaint fails to state a cause of action under Illinois law, summary judgment likewise would be proper. (Dodd v. Cavett Rexall Drugs, Inc. (1988), 178 Ill. App. 3d 424, 533 N.E.2d 486 (trial court will grant summary judgment in negligence action if under pleadings, depositions, affidavits, and admissions it appears that the defendant owned no duty to the plaintiff).) We are not persuaded, however, that the evidentiary record in this case or the pertinent law supports the entry of summary judgment in favor of the CHA.

THE QUESTION OF DUTY

The CHA contends that it cannot be held liable to the minor plaintiff as a matter of law because (1) it had no duty to protect him from contact with exposed steam pipes, under principles of landlord/tenant law, and (2) it cannot be held liable for failure to repair a condition of which it had no notice. In contrast, plaintiff focuses on the theory that the CHA negligently performed the voluntary undertaking of properly guarding the exposed steam pipes. Plaintiff also contends that the CHA had notice of the allegedly unsafe condition. The CHA does concede that liability may be imposed under the negligent undertaking theory, but maintains that the record is devoid of facts to support such theory.

As the parties’ respective positions indicate, the issue of duty in the pending case has two parts: (1) does the law as applied to these facts support the imposition of any duty to repair or maintain, based on land owner or landlord/tenant principles, and (2) even assuming the CHA had no general duty to safeguard the steam pipes in the apartment, do the facts support the theory that the CHA negligently performed a voluntarily assumed duty to safeguard the pipes?

THE DUTY TO REPAIR AND MAINTAIN PREMISES IN A SAFE CONDITION

The CHA primarily relies on the holdings of Hubbard v. Chicago Housing Authority (1985), 138 Ill. App. 3d 1013, 487 N.E.2d 20, and Trotter v. Chicago Housing Authority (1987), 163 Ill. App. 3d 398, 516 N.E.2d 684. The Hubbard case did not involve a negligent undertaking theory, but rather held that in the absence of a defect in the heating system installed in a public housing complex, the mere fact that a steam pipe was hot and exposed would not give rise to liability for a tenant’s injuries from the uninsulated steam heating pipe. Hubbard accordingly affirmed the trial court’s dismissal of the adult tenant’s lawsuit in that case, finding that the complaint failed to state a cause of action.

In so holding, Hubbard cited “well-settled” law that “a landlord is not liable for injuries sustained by a tenant on premises leased to the tenant. *** ‘In multiple-unit dwellings, a landlord owes his tenants a duty of reasonable care in the management and maintenance of areas open for use by all tenants, and not part of the premises occupied by one tenant.’ ” Hubbard, 138 Ill. App. 3d at 1015, 487 N.E.2d at 22, quoting Webster v. Heim (1980), 80 Ill. App. 3d 315, 316, 399 N.E.2d 690, 691.

The same panel of the same division of the court that decided Hubbard had occasion to further analyze its decision in Trotter v. Chicago Housing Authority (1987), 163 Ill. App. 3d 398, 516 N.E.2d 624. Trotter also involved an unguarded steam pipe injury, and the majority opinion held that summary judgment was properly entered in favor of the CHA. The plaintiff in Trotter was 11 months old, and he was burned when he fell from a bed onto exposed steam pipes in a Henry Horner apartment unit. The trial court granted summary judgment, relying on Hubbard. On appeal, the Trotter majority again cited the general, common law principle that a landlord has no duty — to his tenant — to maintain and repair the leased premises. The court rejected the plaintiff’s position that the feudal concepts of landlord and tenant should be modified in conformance with modern realities and changing case law. In addition, the court rejected plaintiff’s position that the CHA as a landowner owed a duty to prevent foreseeable injuries to children when such injuries result from a dangerous condition on the premises. Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836 (substituting in place of the “attractive nuisance” doctrine the general rules of negligence, including the foreseeability of danger to children and a determination of whether the expense or inconvenience of remedying the condition is slight compared with the risk of harm).

The dissenting opinion in Trotter set out additional facts, including evidence that the CHA maintenance office had made repairs in the apartment on other occasions and that after the incident, the CHA apparently covered the bare pipes with insulating material. “Apparently, other children had been burned on hot steam pipes in the CHA project.” 163 Ill. App. 3d at 404, 516 N.E.2d at 688 (Buckley, J., dissenting).

Justice Buckley analyzed decisions of the Illinois Supreme Court and courts of other jurisdictions, some of which have imposed on landlords a general duty of due care to provide safe conditions in demised premises without regard to possession or control. See, e.g., Sargent v. Ross (1973), 113 N.H. 388, 396-97, 308 A.2d 528, 533 (rationale based on implied warranty of habitability contained in leases); see also Javins v. First National Realty Corp. (D.C. Cir. 1970), 428 F.2d 1071, 1074, cert. denied in First National Realty Corp. v. Javins (1970), 400 U.S. 925, 27 L. Ed. 2d 185, 91 S. Ct. 186 (while feudal assumptions regarding transfers of interest in land may remain reasonable in considering leases of farming or commercial land, today’s apartment dweller seeks a package of goods and services including heat, light, ventilation, proper sanitation and maintenance).

A portion of the dissenting opinion in Trotter that we find particularly persuasive, for purposes of the instant appeal, is that which deals with the liability of a land owner who leases property with actual or constructive notice of a defective condition which remains uncorrected. (Trotter, 163 Ill. App. 3d at 408, 516 N.E.2d at 690, citing Wagner v. Kepler (1951), 411 Ill. 368, 371-72, 104 N.E.2d 231, 233.) As in the pending case, the plaintiff in Wagner was the child of a tenant of another apartment in the premises. The supreme court held that the owner of property is liable for those defects of which he has actual or constructive notice at the time the premises were leased, to the same extent as if he were in actual possession of the property.

The record in the pending case indicates that the uninsulated condition of the pipes, as well as the apparently misplaced radiator guard, existed at the time that Lola McClinton rented the apartment.

In addition to or in modification of traditional concepts of common law negligence, the legislature has enacted a statutory duty that applies to public entities such as the CHA: section 3 — 102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (111. Rev. Stat. 1985, ch. 85, par. 1 — 101 et seq.). Section 3 — 102 imposes a duty on public entities who own or lease property, to maintain such property in a reasonably safe condition for intended or permitted users of the property. This section provides in part:

“(a) Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in sufficient time prior to an injury to have taken measures to remedy or protect against such condition.” (Emphasis added.) 111. Rev. Stat. 1985, ch. 85, par. 3 — 102(a).

This general statement of duty is subject to the notice requirement, which is defined in subsections 3 — 102 (b)(1) and (b)(2):

“(b) A public entity does not have constructive notice of a condition of its property that is not reasonably safe within the meaning of Section 3 — 102(a) if it establishes either:
(1) The existence of the condition and its character of not being reasonably safe would not have been discovered by an inspection system that was reasonably adequate considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property; or
(2) The public entity maintained and operated such an inspection system with due care and did not discover the condition.” (Emphasis added.) 111. Rev. Stat. 1985, ch. 85, pars. 3— 102(b)(1), (b)(2).

The immunity that section 3 — 102 bestows on a public entity is therefore limited to those “unsafe conditions” on its premises of which the entity cannot be said to be aware, or for injuries which may be found “unforeseeable.” Sections 3 — 102(b)(1) and (b)(2), by their terms, place the burden of proof on the public entity to establish either that a “reasonably adequate” inspection system would not have discovered such unsafe condition, or, that the public entity had such an inspection system but still did not discover the condition, despite the use of due care. While the initial burden of demonstrating notice is on the party charging it (Buford v. Chicago Housing Authority (1985), 131 Ill. App. 3d 235, 246, 476 N.E.2d 427, 435), if the public entity bases its immunity on the grounds set out in section 3 — 102(b), it has the burden of satisfying the statutory standard therein set out. Buford, 131 Ill. App. 3d at 248, 476 N.E.2d at 437.

In Buford, a child was injured in an elevator accident and the jury determined that the CHA was on notice of the defective condition of the elevator. The trial court granted judgment n.o.v. on the constructive notice issue. The appellate court reversed, however, citing evidence from which the inference could be made that the CHA knew or should have known of the unsafe condition of the elevator and rejecting the CHA’s argument under section 3 — 102(b) that it had maintained a “reasonably adequate” inspection system. The court held that, under “the balancing test posited in section 3 — 102(b)(1),” the CHA failed to establish either that its own “inspection” program, or the program conducted by the elevator maintenance service, “was adequate to discover the defect. * * * While plaintiff did not show the expense entailed [in using a force gauge that may have discovered the defect], the burden of establishing the reasonableness of an inspection system under section 3 — 102(b) rests with the public entity.” 131 Ill. App. 3d at 248, 476 N.E.2d at 437.

We conclude that the legislature, in enacting section 3 — 102, intended that a public entity would be held to the duty of ordinary care in maintaining all of its property in a reasonably safe condition, subject to the qualifications of that duty as set out in that section. To the extent this legislative expression of duty in the public housing context conflicts with other, general principles of landlord/tenant relationships, the statute controls. Of course, the statutory and common law duty analysis may be the same in certain contexts, and we do not suggest that traditional tort principles have been displaced by the statute. (See, e.g., Lance v. Senior (1967), 36 Ill. 2d 516, 518 (consideration of whether duty should be imposed depends on the “likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant”); Bonamie v. Welsh (1981), 95 Ill. App. 3d 349, 420 N.E.2d 243) (landowner is not an absolute insurer and “plain ordinary” conditions that are not alleged to be defective or inherently dangerous do not form the basis for liability).

Section 3 — 102 does not condition the public entity’s liability on its exclusive control over or possession of the premises in question, however. This may be viewed as a departure from the general principle that a landlord is not liable to the tenant for maintenance and repair because the leasehold contemplates that the tenant bears this responsibility. Moreover, the constructive notice requirement of the statute reflects a balancing of concerns, as Buford noted. Consonant with the common law, section 3 — 102 provides that the landowner cannot be held liable for unsafe conditions of which it lacks “notice.” In modification of the common law, however, section 3 — 102(b) specifically defines constructive notice in terms of a reasonable inspection program designed to prevent unsafe conditions.

The record before us contains enough evidence that the CHA knew or should have known of the condition of the steam pipes and guard to let the case proceed to trial. The deposition of the CHA’s engineer admits that the CHA provided maintenance services including some type of adjustment or check of the radiators in each apartment. The engineer acknowledged that, from photographs he was shown, the device installed to guard the pipes in issue was tipped out of position. The CHA maintains and operates the steam heating system. We conclude that reasonable minds could infer that the CHA’s staff was able to view the allegedly unsafe condition during whatever routine checks were made. Accordingly, we find that plaintiff’s preliminary showing on the notice issue is adequate to withstand summary judgment.

We further note that the CHA has pleaded an affirmative defense based on the immunity provision of section 3 — 102. The affirmative defense is not before us and we express no opinion on its merits, although the burden of proof would be on the CHA as to the adequacy of any inspection program for purposes of constructive notice.

FORESEEABILITY OF HARM

The question of duty includes a consideration of the CHA’s ability to foresee the danger of harm caused by the allegedly unsafe condition, and the attendant policy question of whether the expense of remedying the condition is slight compared with the risk of harm. On these matters, we depart from the reasoning in the Trotter majority's opinion. The court stated that “the CHA could not reasonably foresee that an 11-month-old infant, who was beginning to be active, would be left unattended on a bed without sides.” (Trotter, 163 Ill. App. 3d at 402, 516 N.E.2d at 687.) Even if we adopt the questionable assumption that people who live in public housing projects can easily afford to buy “beds with sides” for all of their infant children, we find it quite foreseeable that in a public housing tenement, many children of all ages may come in contact with exposed, hot steam pipes that run horizontally across walls in their apartments. A parent or caretaker’s duty to supervise and protect that child is a separate issue from the landowner’s ability to foresee the danger. Certainly, small children routinely escape their caretakers’ notice for brief periods, and such “unattended” children may foreseeably be harmed on unsafe conditions within their homes.

We do not imply that foreseeability alone is determinative of duty. Nor are we suggesting that the CHA or any landlord must assume the burden of “child-proofing” its premises. A landowner is not responsible to protect against open and obvious conditions that even young children are presumed to have enough knowledge of to avoid, such as the hazards of falling, being burned in fires, or risks of drowning. (See Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177.) Accordingly, we do not hold that radiators, or the pipes leading to them, are per se dangerous conditions that impose a duty to protect against, particularly when considering the experience and ability of an adult or older child to protect himself. Therefore, our reasoning is consistent with that of Hubbard, to the extent the adult plaintiff in that case sought to recover on a theory that his landlord owed him a duty to provide guards for the hot pipes of the radiator in his apartment.

With regard to the relative burden of safeguarding steam pipes and heating coils, we note that the CHA’s engineer, Doran, testified that his department did keep “spare” guards on hand. We are in no position to take judicial notice that the large number of units in the public housing system would make the cost of safeguarding heating coils and pipes prohibitive. (Cf. Trotter, 163 Ill. App. 3d at 403, 516 N.E.2d at 687 (taking judicial notice of the large number of public housing units).) In fact, section 3 — 201(b)(1) by its terms makes such considerations relevant to the balancing test that is applied thereunder to determine whether an inspection system could be feasibly designed to prevent the particular risk of harm.

We conclude that neither Hubbard nor Trotter should be used to obviate the general duty of care that the CHA owes, as a public entity, to foreseeable users of its property pursuant to section 3 — 102. See also Nelson v. Commonwealth Edison Co. (1984), 124 Ill. App. 3d 655, 465 N.E.2d 513, for incisive analysis of the role of “foreseeability” and the recognition that “the legal concept of ‘duty’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” 124 Ill. App. 3d at 662, 465 N.E.2d at 519.

DUTY TO PERFORM VOLUNTARY UNDERTAKING IN A NONNEGLIGENT MANNER

Finally, we address plaintiff’s “negligent undertaking” theory. For analytical clarity, we view this theory as an alternative way in which to impose a duty upon a landlord or landowner who otherwise would not owe any duty to the particular injured party. In essence, a person who is a volunteer, or who has no legal duty to another in the first instance, may be held liable if he or she undertakes to perform some act for a person and performs it in a negligent manner, causing injury. Hence, the Illinois Supreme Court has found actionable an insurance company’s negligent performance of a voluntarily undertaken duty to make safety inspections when injury resulted from the careless or negligent performance of such inspections. (Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769.) The supreme court rejected the defendant’s argument that since it had no duty to perform the inspections and since the plaintiff had not relied upon such inspections, no duty had come into existence and there was no causal connection between the inspection and the injury. The court distinguished the negligent performance of a voluntary undertaking from the mere failure to perform a voluntary duty, which is not actionable unless the plaintiff has relied on such performance. Nelson, 31 Ill. 2d at 85-86, 199 N.E.2d at 779 (“[Djefendant’s liability for the negligent performance of its undertaking, as distinguished from a failure to perform, is not limited to such persons as might have relied upon it to act but extends instead to such persons as defendant could reasonably have foreseen would be endangered as a result of negligent performance”). See also Phillips v. Chicago Housing Authority (1982), 89 Ill. 2d 122, 127-28, 431 N.E.2d 1038, 1041 (liability for neg ligent performance of voluntary undertaking is not limited to situations where the undertaking itself increases the risk of danger or creates a new risk of harm, but extends as well to the failure to complete or carry out an assumed duty).

Plaintiff contends that by providing the steam pipe guard in the first instance the CHA undertook to keep them in proper condition. The record indicates that the guard in issue was turned around so that it did not provide the intended protection. The record further contains the admissions of the CHA engineer that his staff routinely goes into each apartment to flood the radiators; that they keep spare guards for the radiators; that there is a procedure for handling tenants’ requests for repairs and maintenance; and that, in the opinion of plaintiff’s engineering expert, the exposed portions of the steam pipe, not covered by insulation, plus the inverted position of the metal guard constituted an unreasonably hazardous condition.

We agree with the CHA that the negligent undertaking theory does not create a new or expanded duty beyond the scope of the specific undertaking itself. Thus, in Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596, the court held that the CHA, by undertaking to hire a security service, had only undertaken to use reasonable care in engaging the particular company that was to provide guard services. It had no independent duty to protect the plaintiff from criminal assault, but instead could be held liable at most for the negligent hiring of the security service.

The CHA maintains that its mere provision of a guard in 1955 cannot be “stretched” beyond the scope of the initial undertaking or be interpreted as guaranteeing “that the guard would remain in its original condition over the span of nearly 30 years.”

Without deciding the issue, we do question the suitability of the negligent undertaking theory under the facts of this case. While it is clearly applicable to those situations in which the defendant provides a safety device that, due to his own negligence, fails to prevent the anticipated harm, increases the hazard or gives rise to third-party reliance (see Scott E. Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 493 N.E.2d 1022 (fire alarm system)), we find that the pending circumstances are more suitably considered as a breach of the duty to repair an unsafe condition of which the land owner has actual or constructive notice.

Accordingly, we hold that plaintiff has stated an actionable theory of recovery under Illinois law and that the record contains material issues of genuine fact that should not be disposed of summarily. We therefore reverse and remand for further proceedings.

Reversed and remanded.

JOHNSON and JIGANTI, JJ., concur.

      The Tort Immunity Act defines “property of a local public entity” as “real or personal property owned or leased by a local public entity.” 111. Rev. Stat. 1985, ch. 85, par. 3 — 101.

      We find little in the record to support actual notice to the CHA. The deposition testimony of Lola and Josephine on that issue contradicts statements in their affidavits. While their credibility ultimately will be judged by the fact finder, conflict in the testimony regarding actual notice is at best impeachment on a collateral issue. Lonzo’s right to recover does not depend on the competence of those statements. See Fuller v. Justice (1983), 117 Ill. App. 3d 933, 453 N.E.2d 1133 (facts unrelated to essential elements of plaintiff’s cause of action are immaterial and their presence in the record has no bearing on whether a party is entitled to judgment as a question of law).

      In a decision filed September 14, 1990, the fifth division of this court has followed Hubbard and the Trotter majority to conclude that the CHA has no duty in negligence to protect against exposed steam pipes. (Loving v. Chicago Housing Authority (1990), 203 Ill. App. 3d 205 (holding that seven-month-old who was severely burned on radiator pipes while in a babysitter’s apartment had no cause of action against the CHA).) None of these cases has construed the scope of the statutory duty of section 3 — 102, however.

      The case it cites for the proposition that a voluntary undertaking cannot “continue *** indefinitely” is Chisolm v. Stephens (1977), 47 Ill. App. 3d 999, 1006, 365 N.E.2d 80, 85. Chisolm in turn relies on Hubbard v. Aetna Insurance Co. (1976), 37 Ill. App. 3d 666, 347 N.E.2d 396, where the court was discussing the defendant’s gratuitous performance of safety inspections and held that it would not impose the further duty of overseeing the correction of any hazards found as a result of the inspections. (This notion of not expanding the limited nature of the initial undertaking is consistent with Pippin’s rationale.) The Hubbard court then stated, “A person who assumes to protect others against injury is under no obligation to continue that protection indefinitely.” (37 Ill. App. 3d at 671, 347 N.E.2d at 400, citing 57A Am. Jur. 2d Negligence §45 (1969).) Section 45 of American Jurisprudence, 2d Edition, does not state that proposition, however, and deals with the immunity of school officers, teachers, and other personnel in the scope of their employment.