text:
    MICHAEL J. MILLER, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant-Appellant.
    Fourth District
    No. 4—90—0127
    Opinion filed December 6, 1990.
    — Rehearing denied February 6, 1991.

      John E. Muench and James C. Schroeder, both of Mayer, Brown & Platt, of Chicago, Everett L„ Laury, of Hutton, Laury, Hesser, Lietz & Wilcox, of Danville, and Charles E. Fairfax' III, of General Motors Corporation, of Detroit, for appellant.
    Edward J. Kionka, of Carbondale, and Warren E. White, of Danville, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiff, Michael J. Miller, filed a two-count complaint against defendant, General Motors, alleging both negligence (count I) and wilful and wanton misconduct (count II) based upon injuries plaintiff suffered to his right hand. These injuries occurred when plaintiff touched a live wire approximately 13 feet off the ground while trespassing on defendant’s property. The jury returned a verdict for plaintiff on both counts, awarding him $2 million in compensatory damages and $1.5 million in punitive damages. However, the jury also found plaintiff to be 25% contributorily negligent. Accordingly, compensatory damages were then reduced to $1.5 million.

On appeal, defendant argues that the judgment entered against it on both counts I and II should be reversed because (1) based on the limited duty defendant owed plaintiff (a) count I should have never been submitted to the jury, and (b) the trial court should have granted its motion for judgment n.o.v. because plaintiff did not sustain his burden of proving wilful and wanton misconduct by defendant; (2) the trial court erred because no aggravating factors were shown that could justify an award of punitive damages; (3) in the alternative, the $1.5 million award of punitive damages should be reduced because it is totally disproportionate to defendant’s culpability; (4) the punitive damages award violated due process because the jury was given no standard with which to calculate the award; and (5) the trial court erred in excluding evidence of plaintiff’s drinking and in admitting evidence of defendant’s wealth.

We reverse.

I. Facts

A. The Pumphouse

Defendant operates a foundry on land it owns near the Vermilion River, southwest of Danville, Illinois. Along the river is a massive pumphouse, built in the 1950’s, that defendant uses to extract large amounts of water from the river for use in its foundry, located approximately one-half mile south of the river. To operate the pumps, overhead electrical lines enter the pumphouse from the south and connect to several electrical transformers located in an enclosed, elevated balcony. The pumps do not run constantly, but only when the water level of the reservoir drops to a certain point.

The balcony area, located on the south side of the pumphouse, is almost 10 feet off the ground and is surrounded by a steel shroud. This second-story balcony contains three electrical transformers which sit on an elevated platform approximately three feet above the balcony floor, which is constructed of wooden slats with gaps between them. These transformers, and several bare wires that feed into them, carry approximately 4,160 volts of electricity. The balcony, which extends out from the pumphouse, is enclosed by four walls, but only has a partial roof. Directly beneath the balcony is a locked door, leading to a room in the pumphouse, in which a ladder is kept. On occasion, defendant's employees use this ladder to gain access to the balcony by way of an overhead gap, 12 by 20 inches wide, located in the floor of the balcony.

In the 35 years since the pumphouse was built, no electrical contact accidents have occurred except for the incident in the present case. Evidence presented at trial showed that people occasionally trespassed in the general vicinity of the pumphouse, but no evidence showed that defendant had knowledge of any previous attempts by a trespasser to scale the pumphouse’s wall and crawl through the gap in the floor of the balcony. Several of defendant’s security officers testified at trial that whenever they discovered a trespasser on any portion of defendant’s property, they promptly told the individual to leave the premises.

At the time of plaintiff’s accident, the pumphouse did not have any warning signs, the paint on the pumphouse was peeling, and the fences surrounding the pumphouse on the river side had fallen into disrepair. In earlier years, warning signs had been posted on the fence gate, the pumphouse, and near the river’s edge. At trial, plaintiff made much of the issue that the condition of the pumphouse and its surrounding area violated the National Electric Code and the National Electrical Safety Code.

B. The Accident

On June 13, 1984, plaintiff (then 20 years old) and Charles Boswell (then 19 years old) began a canoe trip down the Vermilion River. They canoed the river until nightfall, when they stopped to camp under a railroad trestle that crossed the river.

The next morning, plaintiff and Boswell decided to explore some of the river they had passed the night before. The day was sunny. Their first stop was the pumphouse.

The two paddled their canoe to the river bank and docked alongside a platform at the base of the pumphouse. Plaintiff and Boswell admitted at trial that they were trespassers and did not have defendant’s permission to enter the property. Neither had seen the pump-house before and did not know what it was. They thought it was an old abandoned structure. As soon as they docked, plaintiff got out of the canoe and quickly ran up some stairs located along the east side of the pumphouse. When Boswell reached the top of the stairs, plaintiff was already on the roof of the pumphouse. After jumping off the roof, plaintiff saw the lock on the pumphouse door and a fence with a closed and locked double gate, topped with barbed wire, in front of the pumphouse. A dirt road led southward from the gate. Neither plaintiff nor Boswell tried to open the gate or cross the fence. Plaintiff testified at trial that they thought they were on the outside looking in. Plaintiff then looked up through the gap in the balcony floor. He testified that, from below, the balcony was dark except for rays of light that came in through the partial roof. Plaintiff testified that he climbed up into the balcony to see what was there because he was curious.

Plaintiff gained access to the balcony by scaling a nine-foot wall with the aid of a pipe and some eyebolts sticking out of the wall. He then crawled through the 12- by 20-inch gap in the floor of the balcony and circumvented a ledge sticking out 8 to 10 inches from the top of the wall. After climbing into the balcony, plaintiff grabbed a live electrical wire in order to pull himself up. The wire on which plaintiff severely injured his hand was approximately 13 feet off the ground.

Plaintiff testified that before the accident he saw barrels and cables in the balcony, although his visibility was poor. Plaintiff admitted that he had previously seen transformers on utility poles, but he had never heard of them referred to as transformers. Plaintiff and Boswell testified that they did not see the three overhead transmission lines coming from the hill to the south, nor did they hear any noises coming from the balcony area.

After the accident, Boswell helped plaintiff climb down from the balcony. The two walked down the stairs to the canoe, paddled the river a short distance, and obtained a ride to the hospital. Plaintiff spent several painful weeks in the hospital and had a series of operations on his hand. As a result of the accident, plaintiff’s hand is disfigured. He lost the little finger of his right hand and some dexterity in his other fingers. Also, his hand is not as strong as it was before the accident.

II. Analysis

Before this court can address the primary issue defendant raises on appeal — whether the circuit court erred by denying defendant’s post-trial motion for judgment n.o.v. —we must first determine what duty was owed by defendant to plaintiff on the facts of this case. Whether a duty exists in the first instance is a question of law. Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226.

A. General Principles of Duty Owed to a Trespasser

It is well settled that the liability of an owner or occupier of land (landowner) has been set in terms of duty. Those who enter upon land are generally divided into three fixed categories — trespassers, licensees, and invitees — and the landowner has specific duties regarding persons within each category. These three categories constitute a sliding scale, and, as the legal status of the “visitor” improves from trespasser to licensee to invitee, the landowner owes that “visitor” more protection. See W. Keeton, Prosser & Keeton on Torts §58, at 393 (5th ed. 1984).

The lowest point on the “legal-duty-owed” scale is the trespasser, defined as a person who enters or remains upon land in the possession of another without a privilege to do so. (Restatement (Second) of Torts §329 (1965); Wymer v. Holmes (1987), 429 Mich. 66, 412 N.W.2d 213; Mendoza v. City of Corpus Christi (Tex. Ct. App.. 1985), 700 S.W.2d 652.) Because the landowner has a legally protected interest in the exclusiveness of his possession, no one has any general right to enter that land without his consent. (Restatement (Second) of Torts §329 (1965).) Additionally, because a landowner is free to fix his own terms for consent, an “intruder” who comes on the possessor’s land without his permission has no right to demand that the possessor provide him with a safe place to trespass, or that the possessor protect him in his wrongful use of the possessor’s property. (Restatement (Second) of Torts §329 (1965).) When the “intruder” enters where he has no right or privilege to go, he assumes both the responsibility for his own safety and the risk of what he may encounter. (Sheehan v. St. Paul & D. Ry. Co. (7th Cir. 1896), 76 F. 201.) Accordingly, the general rule, subject to several qualifications, is that a landowner is not liable for injury to a trespasser caused by the landowner’s failure to exercise reasonable care to put his land in a safe condition for the trespasser, or to carry on his activities in a manner which does not endan- • ger the trespasser. Restatement (Second) of Torts §333 (1965); Savinsky v. Bromley Group, Ltd. (N.M. Ct. App. 1987), 106 N.M. 175, 740 R2d 1159; see also W. Keeton, Prosser & Keeton on Torts §58, at 393 (5th ed. 1984).

The reasons for this landowner immunity are varied. Some courts reason that the presence of a trespasser is not to be anticipated, and hence a reasonable person does not need to take steps to protect that trespasser. (Hume v. Hart (1952), 109 Cal. App. 2d 614, 241 P.2d 25.) In many cases, this is no doubt true; however, while it is common knowledge that people do trespass upon the land of others, in most jurisdictions, the foreseeability of such general trespassing is said to impose no obligation. (Restatement (Second) of Torts §333 (1965); Rowland v. Byrd (1938), 57 Ga. App. 390, 195 S.E. 458.) Some courts reason that the landowner owes no duty to a trespasser because a trespasser is a wrongdoer and may not recover for the consequences of his own wrong. (Denton v. L.W. Vail Co. (1975), 23 Or. App. 28, 541 P.2d 511.) Other courts have suggested that it is a socially desirable policy to allow a person to use his own land in his own way without the burden of watching or protecting those who come onto that land without permission or right. McPheters v. Loomis (1939), 125 Conn. 526, 7 A.2d 437; see also W. Keeton, Prosser & Keeton on Torts §58, at 395 (5th ed. 1984).

From the general rule of nonliability of a landowner to a trespasser, the rest of the law regarding trespassers is a list of exceptions. These exceptions have developed because of the concern that human safety ought to be more important than the landowner’s interest in unrestricted freedom to use his own land as he sees fit. This view is especially prevalent in cases in which the burden on the landowner and the expense in taking precautions to prevent harm are not great. (See Ward, 136 Ill. 2d at 142-43, 554 N.E.2d at 226-27.) If that burden is very slight, and if the risk of harm to the trespasser is correspondingly very great, some commentators have found good reason to hold the landowner liable for injuries sustained on his land by the trespasser. This rule applies mostly in the case of frequent trespass upon a limited area. See W. Keeton, Prosser & Keeton on Torts §58, at 395-96 (5th ed. 1984).

1. Frequent Trespassers on a Limited Area

When a landowner knows, or should know from facts within his knowledge, that trespassers are in the habit of entering his land at a particular point or of traversing an area of small size, many courts hold that there is a duty of reasonable care to discover and protect trespassers in the course of the landowner’s activities. (Restatement (Second) of Torts §334 (1965).) This duty is imposed because the burden of looking out for trespassers is not great. A typical case is the frequent use of a “beaten path” that crosses a railroad track, which is held to impose a duty of reasonable care as to the operation of trains. (Southern Ry. Co. v. Campbell (5th Cir. 1962), 309 F.2d 569.) In only a few cases have courts imposed a similar duty as to dangerous, passive conditions known to landowners, such as concealed high-tension wires. (Restatement (Second) of Torts §335 (1965); Franc v. Pennsylvania R.R. Co. (1967), 424 Pa. 99, 225 A.2d 528.) Liability has been extended in such cases because the landowner’s continued toleration of the trespass amounts to permission to make use of the land, so that the plaintiff is not a trespasser but a licensee. (Mentesana v. LaFranco (1979), 73 Ill. App. 3d 204, 391 N.E.2d 416.) While it is true that a failure to object may amount to tacit permission, the mere fact the landowner does not take burdensome and expensive precautions to keep trespassers out, which may well be futile, should not in itself indicate that he is willing to have them enter. (Mentesana, 73 Ill. App. 3d at 208, 391 N.E.2d at 419.) The real basis of liability to such “tolerated intruders” would seem to be only the ordinary duty to protect another, where the harm to be anticipated from a risk for which the defendant is responsible outweighs the inconvenience of guarding against it. See W. Keeton, Prosser & Keeton on Torts §58, at 396 (5th ed. 1984).

2. Discovered Trespassers

Another important exception to the trespasser rule is the requirement that the landowner exercise reasonable care for a trespasser’s safety once his presence is known. This rule evolved from the older rule that a possessor of land was not free to inflict unreasonable intentional injury upon his unwelcome visitor. A trespasser, while he may be a wrongdoer, is not an outlaw, and an intentional, unprivileged battery upon him is not tolerated. (Schofield v. Merrill (1982), 386 Mass. 244, 435 N.E.2d 339.) A landowner is not permitted to set traps for the trespasser or to use unreasonable force to expel him from the premises. (Bennett v. Public Service Co. (1st Cir. 1976), 542 E2d 92; Katko v. Briney (Iowa 1971), 183 N.W.2d 657.) Nor is he allowed to injure the trespasser negligently by an act specifically directed toward him, or recklessly by conduct in conscious disregard of his peril. (Bremer v. Lake Erie & Western R.R. Co. (1925), 318 Ill. 11, 148 N.E. 862.) Thus, the rule which has evolved, whether the trespasser has been discovered or not, is that the landowner owes no duty to a trespasser except to refrain from injuring him by wilful or wanton conduct. Votava v. Material Service Corp. (1979), 74 Ill. App. 3d 208, 392 N.E.2d 768; see also W. Keeton, Prosser & Keeton on Torts §58, at 397 (5th ed. 1984).

Some courts have stopped at this point, and have refused to find that the landowner owes any duty to the trespasser, even after his presence is known, unless wilful or wanton conduct is found. (Earnest v. Regent Pool, Inc. (1972), 288 Ala. 63, 257 So. 2d 313; Hughes v. Star Homes, Inc. (Miss. 1980), 379 So. 2d 301.) Other courts have retreated from this position by the expedient of defining wilful or wanton to include any failure to use ordinary care after the trespasser is discovered. (Frederick v. Philadelphia Rapid Transit Co. (1940), 337 Pa. 136, 10 A.2d 576.) A few courts have discarded wilful or wanton entirely as a limitation, and have said outright that once the presence of the trespasser is discovered, there is a duty to use ordinary care to avoid injuring him. The landowner is thereupon required to govern his active conduct, such as running a train (Denver & Rio Grande Western R.R. Co. v. Clint (10th Cir. 1956), 235 F.2d 445), conducting a circus (Herrick v. Wixorn (1899), 121 Mich. 384, 81 N.W. 333), or operating an elevator (Pridgen v. Boston Housing Authority (1974), 364 Mass. 696, 308 N.E.2d 467), with the caution of a reasonable person for the trespasser’s safety. See W. Keeton, Prosser & Keeton on Torts §58, at 397 (5th ed. 1984).

Usually, the discovered trespasser is owed the higher duty when he" is perceived to be in a situation of peril or possible danger, even if the landowner is aware that he is a trespasser. (See Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 236.) However, it is not essential that his presence actually be perceived by the landowner. It is enough that the landowner has received information which would lead a reasonable person to conclude that a trespasser is present. Frederick, 337 Pa. 136, 10 A.2d 576; Lavallee v. Pratt (1960), 122 Vt. 90, 166 A.2d 195; see also W. Keeton, Prosser & Keeton on Torts §58, at 398 (5th ed. 1984).

For a long time it was uncertain whether the duty owed to the discovered trespasser extends to warning or otherwise protecting him against a purely passive condition of the premises. Courts have held that there was no more of an obligation to rescue the trespasser from personal injury than to rescue any other stranger. (Buch v. Amory Manufacturing Co. (1898), 69 N.H. 257, 44 A. 809; Carroll v. Spencer (1954), 204 Md. 387, 104 A.2d 628.) However, the Restatement (Second) of Torts and some courts have disagreed, holding that possession of the land carries with it the duty to see that artificial and dangerous conditions do not become instruments of harm to others, and holding further that the discovery of the danger makes reasonable the requirement of a warning. (Restatement (Second) of Torts §337 (1965); Appling v. Stuck (Iowa 1969), 164 N.W.2d 810; Nolan v. Roberts (Fla. Dist. Ct. App. 1980), 383 So. 2d 945; Gaylord Container Corp. v. Miley (5th Cir. 1956), 230 F.2d 177.) Many courts now hold that the landowner has a duty of care to the discovered trespasser at least in his active conduct, including the operation of his machinery, and it is now frequently stated as a general principle that the landowner has a duty to warn of hidden dangers known to the landowner but not to the trespasser. Bovino v. Metropolitan Dade County (Fla. Dist. Ct. App. 1979), 378 So. 2d 50; Nolan, 383 So. 2d 945; Joyce v. Nash (Mo. Ct. App. 1982), 630 S.W.2d 219; see also W. Keeton, Prosser & Keeton on Torts §58, at 398-99 (5th ed. 1984).

This duty is, of course, only to exercise reasonable care under the circumstances. Thus, the engineer of a train who discovers a trespasser ahead on the track may ordinarily assume that he is in possession of his faculties and that after proper warning he will remove himself to safety. (Lawrence v. Bamberger R.R. Co. (1955), 3 Utah 2d 247, 282 P.2d 335.) It is only when it becomes apparent that he is insensible or helpless, or that the warning has not been heard, that something more than a whistle is required. Chicago Terminal Transfer R.R. Co. v. Kotoski (1902), 199 Ill. 383, 65 N.E. 350; see also W. Keeton, Prosser & Keeton on Torts §58, at 399 (5th ed. 1984).

B. Illinois Common Law Duty to Trespasser

The limited duty owed by a landowner to a trespasser is well established in Illinois. The law does not require a landowner to assume that a trespasser will expose himself to injury - on the landowner’s property. (Merlo v. Public Service Co. (1942), 381 Ill. 300, 314, 45 N.E.2d 665, 674.) Nor is a landowner required to keep his land in any particular state or condition to promote the safety of trespassers. (Hessler v. Cole (1972), 7 Ill. App. 3d 902, 905, 289 N.E.2d 204, 206.) A landowner owes only the duty not to wilfully and wantonly injure the trespasser. (Sumner v. Hebenstreit (1988), 167 Ill. App. 3d 881, 885, 522 N.E.2d 343, 345.) This common law duty of a landowner to a trespasser is expressly preserved in section 3 of the Premises Liability Act (Ill. Rev. Stat. 1987, ch. 80, par. 303). A landowner’s duty is modified, however, when a trespasser is reasonably anticipated or discovered in a place of danger. In that situation, the • landowner owes the discovered trespasser a duty of ordinary care. Eaton v. Baltimore & Ohio R.R. Co. (1990), 198 Ill. App. 3d 137, 140, 555 N.E.2d 790, 791; Sumner, 167 Ill. App. 3d at.885, 522 N.E.2d at 345.

Plaintiff urges this court to disregard this limited common law duty and adopt a more stringent approach to the circumstances of this case because of the danger associated with the use and transmit.tal of electricity. However, we decline plaintiff’s invitation to do so, as other courts have declined similar invitations. (Merritt v. Bethlehem Steel Corp. (7th Cir. 1989), 875 F.2d 603; Ryckeley v. Georgia Power Co. (1970), 122 Ga. App. 107, 176 S.E.2d 493.) Even though the use and transmittal of electricity is dangerous, it is a passive condition on the land, and the courts of this State have consistently found that a landowner owes only a duty to refrain from wilful and wanton misconduct in these circumstances. Lee v. Chicago Transit Authority (1990), 205 Ill. App. 3d 163, 169.

Recently, in Lee, the First District Appellate Court found that a defendant landowner did not engage in the affirmative activity of distributing electricity despite the fact that it owned and operated transformers. (Lee, 205 Ill. App. 3d at 173.) The court then stated that a landowner does not become a utility simply because it uses or redistributes electricity. (Lee, 205 Ill. App. 3d at 173.) Even a utility has a duty of ordinary care to insulate its power lines only to the extent that those lines are in a place where a person has a right to be. (Lee, 205 Ill. App. 3d at 173.) Therefore, a utility, like any other landowner, has a duty of ordinary care when engaged in an affirmative activity and when it knows or should have known of the presence of the trespasser. (Lee, 205 Ill. App. 3d at 173-74.) Thus, in determining the duty defendant owed plaintiff in the present case, our analysis remains centered on whether defendant should have reasonably anticipated or discovered plaintiff in a place of danger.

C. Whether Defendant Should Have Reasonably Anticipated or Discovered Plaintiff In a Place of Danger

On the subject of trespassers, the record contains the following testimony:

“Q. [Plaintiff’s attorney:] General Motors, prior to June 14, 1984, knew that trespassers frequented the pumphouse. Is that correct?

A. [Ms. Foster:] We knew that people sort of liked hanging around the Arches, going down the river.

Q. And they would come up here, and they would mess around, screw around. Possibly that’s how the fence got in the condition that it was?

A. I don’t know.

Q. But you did have problems with trespassers down there. Is that correct?

A. I haven’t had problems with trespassers. I heard of them having problems.

Q. And this was prior to June 14, 1984?

A. Yes.

Q. Do you know of any special precautions that General Motors took to prevent entry by trespassers there at the pump-house?

A. All I could think was the gate being locked, and then a door inside there being locked, that was taking extra precaution. And then, the added fence being there.

Q. [Defendant’s attorney:] Have you, yourself, from 1984 or ’78, I believe you said, to 19 say '84, have you inspected the pumphouse area how many times?

A. [Ms. Foster:] Maybe once a month.

Q. Did you ever see trespassers in or about the pumphouse area?

A. No.

Q. Have you ever known any trespassers to go up into the balcony area?

A. I have never known it.

* * *

Q. [Defendant’s attorney:] Did you ever see any trespassers down there?

A. [Ms. Foster:] No.

Q. In all the time you went down there?

A. (Witness nodding negatively).”

Boswell, plaintiff’s companion on the day in question, testified as follows:

“Q. [Defendant’s attorney:] I assume you had never been in the area of the pumphouse before?

A. [Mr. Boswell:] No.

Q. Never canoed down that particular part of the river before?

A. No.”

Other evidence presented on this subject included two area residents who testified that they had canoed the river a number of times. One resident stated that he had stopped and explored the pumphouse grounds, but did not state whether he had actually explored the pumphouse itself. The other resident never explored the structure. No evidence was presented that defendant knew of these two trespassers.

Plaintiff’s assertion that defendant knew that trespassers would likely scale the nine-foot wall and climb into the second-story balcony rests on the propositions that the pumphouse was an open invitation to adventurers and that curiosity would induce the adventuresome to explore it. From the evidence that showed occasional trespassers in the general vicinity of the pumphouse, plaintiff jumps to the conclusion that defendant should have reasonably anticipated that someone would actually scale a nine-foot wall using eyebolts, crawl through a small opening in the ceiling, and explore an elevated, enclosed balcony. We disagree.

After reviewing the evidence presented at trial on this issue, we find that defendant had no reason to anticipate that a trespasser would do what the plaintiff has done. Courts in this State and other jurisdictions have routinely held that landowners need not anticipate that an isolated trespasser will climb into an area of electrical danger. (See Celner v. Central Illinois Electric & Gas Co. (1951), 343 Ill. App. 310, 99 N.E.2d 214; Austin v. Public Service Co. (1921), 299 Ill. 112, 132 N.E. 458; Gherra v. Central Illinois Public Service Co. (1918), 212 Ill. App. 48; Rodriguez v. Schlittenhart (Ariz. Ct. App. 1989), 161 Ariz. 609, 780 P.2d 442; Foster v. Alabama Power Co. (Ala. 1981), 395 So. 2d 27; Bennett, 542 E2d 92; Glastris v. Union Electric Co. (Mo. Ct. App. 1976), 542 S.W.2d 65; Ryckeley, 122 Ga. App. 107, 176 S.E.2d 493; Ross v. Sequatchie Valley Electric Cooperative (1955), 198 Tenn. 638, 281 S.W.2d 646; Caraglio v. Frontier Power Co. (10th Cir. 1951), 192 F.2d 175; Gouger v. Tennessee Valley Authority (1949), 188 Tenn. 96, 216 S.W.2d 739.) While one can argue that everything is foreseeable, we hold as a matter of law that plaintiff’s presence within the pumphouse balcony was not foreseeable in this case. Thus, the only duty that defendant owed plaintiff under the facts of this case was the duty to refrain from wilful and wanton misconduct.

D. Wilful and Wanton Misconduct

In Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 583, 69 N.E.2d 293, 300, the Illinois Supreme Court defined wilful and wanton misconduct as a reckless disregard for the safety of others after knowledge of impending danger:

“A wilful or wanton injury must have been *** committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.”

The court reaffirmed this rule in Hering v. Hilton (1958), 12 Ill. 2d 559, 564, 147 N.E.2d 311, 315: “[I]t is sufficient if [the defendant] had notice which would alert a reasonable man that substantial danger was involved, and that [the defendant] failed to take reasonable precautions under the circumstances.” See also Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 412 N.E.2d 447; O’Brien v. Township High School District 21b (1980), 83 Ill. 2d 462, 415 N.E.2d 1015; Klatt v. Commonwealth Edison Co. (1965), 33 Ill. 2d 481, 211 N.E.2d 720; Templar v. Decatur Public School District No. 61 (1989), 182 Ill. App. 3d 507, 538 N.E.2d 195; Hadley v. Witt Unit School District 66 (1984), 123 Ill. App. 3d 19, 462 N.E.2d 877; Skinner v. Mahomet Seymour School District No. 3 (1980), 90 Ill. App. 3d 655, 413 N.E.2d 507.

In applying this definition of wilful and wanton misconduct to the facts of this case, we find that there is simply no support for plaintiff’s contention that defendant acted wilfully or wantonly to injure trespassers to its pumphouse balcony. Several witnesses testified that the pumphouse was very safe because the elevated wires in the enclosed balcony had been made inaccessible to all but authorized personnel — the front door of the pumphouse was locked, the transformers were enclosed in a steel shroud 13 feet above the ground, the only entrance to the balcony was through a 12- by 20-inch gap in its floor, and the ladder used to reach this entrance was kept behind a locked door. That no warning signs were posted or fences maintained is of little consequence because defendant was unaware the pumphouse balcony posed a risk under these circumstances. Accordingly, we find that the evidence presented at trial does not support a verdict that the defendant, or its agents, acted wilfully or wantonly.

Because a party is entitled to a judgment n.o.v. when the evidence, viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14), we reverse the trial court’s denial of defendant’s motion for a judgment n.o.v.

Because we find that defendant did not breach its duty to plaintiff, we need not address the other issues defendant has raised on appeal, namely, the issues pertaining to the award of punitive damages or the admission or exclusion of certain evidence.

Reversed.

GREEN and KNECHT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE FREEMAN JUSTICE FREEMAN

license: Public Domain

text:
    AD-EX, INC., Plaintiff-Appellee and Cross-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellant and Cross-Appellee.
    First District (3rd Division)
    Nos. 1—89—1657, 1—89—2737, 1—89—3036, 1-89-3290, 1-90-0348 cons.
    Opinion filed September 19, 1990.
    — Supplemental opinion filed on denial of rehearing January 9, 1991.

      Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Jean Dobrer, Assistant Corporation Counsel, of counsel), for appellant.
    Robert W. Fioretti, of Fioretti & Des Jardins, Ltd., Paul G. Simon, and Jenner & Block, all of Chicago (Thomas P. Sullivan and William A. Von Hoene, Jr., of counsel), for appellee.
   JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, City of Chicago (City), brought this action to reverse certain orders of the circuit court and to declare a settlement agreement void and unenforceable.

In 1986, plaintiff, Ad-Ex, Inc., filed 34 lawsuits, one for each of its proposed advertising signs, against the City. The lawsuits challenged the constitutionality of the City’s sign ordinance. The ordinance requires a 500-foot setback from expressways. (Chicago Municipal Code ch. 194A, §8.9(5) (1988).) In February 1989 the City and Ad-Ex entered into a settlement agreement which purported to vary the setback requirement. The variance was agreed upon without first giving notice and holding a public hearing as is required by ordinance. (Chicago Municipal Code ch. 194A, §11.7 — 2 (1988).) The circuit court entered an agreed order dismissing the lawsuits, with prejudice. The settlement agreement was incorporated in the order.

Essentially, the settlement agreement provided that the City would vary the setback requirement and issue sign permits for the erection of 21 signs, as they had been defined in the lawsuits, and for seven additional signs, for which the parties had negotiated. Pursuant to the agreement, permits would be issued for the erection of the signs provided that “the issuance of such permits [would] comply with all applicable laws of the City of Chicago *** and all Federal and State laws.” Additionally, Ad-Ex was prohibited from erecting any other signs which would not be in compliance with the City’s sign ordinance.

In March and April 1989, Ad-Ex applied for permits for 16 of the 28 sign locations. In May, the applications were rejected for failure to comply with the 500-foot setback requirement. Subsequently, Ad-Ex filed a motion to compel issuance of the permits. The City opposed the motion on the grounds that Ad-Ex had not complied with all applicable laws, viz., obtaining prior approval from the city council.

According to the City, Ad-Ex had submitted city council orders from 1987 with its permit applications. The sign heights listed in the council orders were inconsistent with the sign heights listed in the permit application. The council orders which Ad-Ex submitted also required compliance with all provisions of the zoning ordinance, including those which the settlement agreement waived.

On June 14, in response to Ad-Ex’s motion, the court ordered the City to issue permits on 16 pending applications by June 23, 1989. On June 23, the City filed an emergency motion to stay the court’s June 14 order. The motion was denied. The City then filed, in this court, an emergency notice of appeal and an emergency motion for a stay pending appeal. The motion was denied. The City issued no permits.

On July 11, 1989, the City learned that Ad-Ex had constructed a sign at 5000 W. Flournoy. The sign’s face area exceeded 2,400 square feet, and there had been no permit issued for its construction. The City then commenced administrative proceedings (F-5 proceedings) against Ad-Ex to compel its compliance with the City’s sign ordinance regarding permits (Chicago Municipal Code §14 — 40—090 (1990)), and its conformance with the settlement agreement. Ad-Ex did not appear for the July 26 administrative hearing, despite the fact that it had been given notice. Counsel for the City wrote to counsel for Ad-Ex, advising that Ad-Ex would have to remove the sign or modify it to reduce the sign face area to 1,200 square feet, in compliance with the terms of the settlement agreement. Counsel for Ad-Ex responded that the sign was in conformance with the agreement. The City suspended Ad-Ex’s permit privileges and declined to issue any permits.

Ad-Ex filed an emergency petition on July 13, 1989, for rule to show cause. At the July 31 hearing on the petition, the City agreed to continue processing the other permit applications while prosecuting the Flournoy violation.

On August 17, 1989, Ad-Ex filed an emergency motion to stay the administrative proceedings and permit the processing of permits. The trial court denied the motion to stay the proceedings but ordered the City to process Ad-Ex’s permit applications independently of the issues involved in the administrative proceedings on the Flournoy sign. No permits were issued.

On September 25, 1989, Ad-Ex filed a second motion to stay administrative proceedings, and compel the processing and issuing of approved permits. On September 27, in response to the motion, the City argued that the August court order provided that the City would continue to process the permit applications during the pendency of the F-5, not that it would issue any permits. The City argued that to issue permits while there was an existing violation would effectively waive the City’s penalty provisions.

On October 4, 1989, an evidentiary hearing on the September motion was held. Timothy Cullerton, chief electrical inspector for the department of inspectional services, testified that a City ordinance mandates the suspension of a contractor’s sign permit privileges if the contractor erects a sign without a permit. According to Cullerton, the usual practice during an F-5 is to return pending permit applications without reviewing them until the F-5 is resolved. However, in compliance with the court’s prior orders, the City did not return any of Ad-Ex’s pending applications, but rather, continued to review them.

Chester Figlerlowicz, an electrical inspector for the City, testified that the Flournoy sign was double-faced and flag mounted. According to the City, although Ad-Ex submitted several applications for a sign at Flournoy, none of them were consistent with the 2,400-square-foot, double-faced, flag-mounted sign that Ad-Ex actually erected there. The court directed the City to issue, unimpeded by the F-5 proceeding, any pending permits approved for other sign locations.

Also at the October hearing, the City filed a motion to set aside the settlement agreement, claiming that Ad-Ex had materially breached it and that it was void as against public policy.

At a subsequent hearing on the motion, the City argued that the agreement was void because it purported to waive enforcement of a mandatory zoning ordinance, without notice or a public hearing. Regarding the alleged breach, the City presented testimony that the Flournoy sign was leaning and out of plumb. The City states in its brief that at an earlier hearing there was testimony that the sign was not in conformance with the terms of the agreement. Thomas Walsh, an executive with Ad-Ex’s parent company, Universal, testified that Ad-Ex had expended funds and made commitments to clients in reliance on the settlement agreement.

The court, in denying the City’s motion, stated that the City had acted repeatedly, since the February settlement, in a way which would indicate, both by its remarks and its conduct, that it was ratifying the actions of the corporation counsel in entering into the settlement. The court also noted that the city council had passed no resolution disavowing the settlement. The court stated that it was persuaded to deny the city’s motion to set aside the agreement because of the apparent reliance and expenditure incurred by Ad-Ex.

On November 2, 1989, the court again entered an order directing the City to issue the permits upon Ad-Ex’s compliance with all applicable laws. On November 15, 1989, the court held a hearing on Ad-Ex’s second petition for rule to show cause. The City argued that it had not issued the pending permits because Ad-Ex’s bond had been revoked and because the drawings submitted with its applications showed double-faced, rather than single-faced signs. The court held that the bond, based on Ad-Ex’s Flournoy sign, should not be used to block the issuance of permits at other sites. The court then ordered the City to issue three permits, on the condition that they were in compliance with the terms in the settlement agreement and all other applicable laws.

On November 28 Ad-Ex filed a motion to have permits issued for structures with two-sign capability. The court denied Ad-Ex’s motion to issue double-sign permits, finding that the settlement agreement contemplated one-sign structures only.

The City appeals from the court’s several orders, and these appeals have been consolidated. The City urges two contentions on appeal: (1) the settlement agreement cannot be enforced; and (2) the trial court erred by directing it not to enforce a mandatory penalty set by ordinance.

Ad-Ex cross-appeals contending that section 6.01 of the chapter on roads and bridges (Ill. Rev. Stat. 1987, ch. 121, par. 506.01) must have been contemplated by the parties in the settlement agreement and, therefore, the word definitions therein must be implied in its interpretation. Thus, it argues, based on the statute more than one sign face per location should be permitted and the trial court erred in finding otherwise.

Since we find the City’s first argument dispositive, we need not reach the other issues raised in this appeal.

The City first contends that the settlement agreement cannot be enforced. It argues that the agreement is void and unenforceable because it violates a duly enacted city ordinance. Since the agreement waives the required 500-foot setback for advertising signs (Chicago Municipal Code ch. 194A, §8.9(5) (1988)), absent proper notice and a public hearing on the waiver (Chicago Municipal Code ch. 194A, §11.7 — 2 (1988)), the agreement is void.

Municipalities are limited to only those powers which are given to them by constitution and statute, and a municipality cannot be bound by a contract that does not comply with the prescribed conditions for the exercise of its power. (Wacker-Wabash Corp. v. City of Chicago (1953), 350 Ill. App. 343, 354, 112 N.E.2d 903.) A municipality must follow its own valid ordinances. Further, “[a] person dealing with a municipal corporation is charged with the knowledge of the limitations of the power of the corporation for any contract attempted to be entered into by any of its officials.” (May v. City of Chicago (1906), 222 Ill. 595, 599-600, 78 N.E. 912.) Compliance with a charter or statutory requirements which are merely directory, or do not involve the right or power of the city to make the contract, or which relate merely to questions of procedure, is not essential to the validity of a municipal contract. 63 C.J.S. Municipal Corporations §979 (1950).

In our view, the requirements of prior notice and a public hearing in zoning cases, imposed upon the City by the Municipal Code, are not simply directory, but are instead mandatory prerequisites to the city’s power to vary its zoning ordinances. These requirements are, therefore, conditions precedent to the validity of the settlement agreement in issue here.

Ad-Ex argues that under Mahoney Grease Service, Inc. v. City of Joliet (1980), 85 Ill. App. 3d 578, 406 N.E.2d 911, and Chicago Title & Trust Co. v. Village of Mt. Prospect (1987), 160 Ill. App. 3d 851, 513 N.E.2d 915, the lack of notice and a hearing were merely irregular exercises of the City’s authority. Therefore, since the City was not absolutely without power to vary the setback requirement, the settlement agreement is merely voidable, not void, and should be enforced.

In Mahoney, the City of Joliet contended that a settlement agreement into which it had entered, providing for the rezoning of land, was void because the city failed to hold a hearing, as required by law, prior to enacting the zoning change. The court acknowledged that a municipal contract which is legally prohibited or beyond the power of the municipality is absolutely void and cannot be ratified by later municipal action. However, the court reasoned that since the city had the legal authority to zone land, the rezoning, without the statutorily required hearing, was not an absolutely void act per se. The court held that the failure to hold the hearing was merely an irregularity in the exercise of the city’s authority and likened the case to Branigar v. Village of Riverdale (1947), 396 Ill. 534, 72 N.E.2d 201. The court then concluded that the settlement agreement was within the class of municipal contracts which was not void absolutely and consequently the type that a city could ratify or be estopped to deny.

Since the Mahoney court reached the decision to bar the city’s estoppel defense based on its analysis of Branigar, we were naturally led to consider Branigar. We find the cases to be factually distinguishable. We note also that the Mahoney court gave no consideration to Martin v. City of Greenville (1977), 54 Ill. App. 3d 42, 369 N.E.2d 543 (discussed later in this opinion).

In Branigar, the plaintiffs applied to the Village of Riverdale for a water main extension. The village was without funds to pay for such an extension and subsequently entered into an agreement with the plaintiffs, whereby the plaintiffs would finance and construct the extension and the village would reimburse them. The president and board of trustees passed two separate ordinances regarding the first and a further extension. The ordinances were adopted and an agreement was entered into between the village and the plaintiffs in conformance with the ordinances. Branigar, 396 Ill. at 537.

There was no indication in the record that either of the ordinances was ever published or posted. However, several news items appeared in the issues of the only newspaper in the village reciting the activities of the board of trustees and discussing the ordinance and contracts involved therein. (396 Ill. at 537.) A third ordinance was passed by the president and board which set forth the enactment of the two earlier ordinances. This ordinance was published, in full, in the only newspaper of general circulation in the village. 396 Ill. at 537-38.

The village subsequently refused to pay the cost of the extensions and the plaintiffs sued. The village argued that the plaintiffs should not be permitted to recover on the agreement because, inter alia, the contracts were ultra vires in that they were not authorized by statute, the ordinances had not been published and were therefore void, and there had been no prior appropriation for the extension. 396 Ill. at 539.

The supreme court, in addressing the village’s publication defense, stated that the failure of the village to publish was nothing more than an irregularity in the exercise of its power. The court noted that the actions of the board of trustees were given publicity in the newspaper circulated in the village and that there was no question that people knew of the proposed action. The court further noted that the third ordinance, which acknowledged the village’s debt, had been properly published as was required by statute. (396 Ill. at 546.) The court stated that the residents of the village had full legal notice of the ratification of the prior ordinances, and could have objected to the entire transaction at that time. (396 Ill. at 546-47.) The court then concluded that “the failure to publish was an irregularity, only, which the city is now estopped from asserting in defense of [the] cause.” 396 Ill. at 547.

It is not clear from Branigar whether the court considered that the failure to make publication in general would constitute an irregularity, or whether the method of publication there was what constituted the irregularity. The Mahoney court has apparently interpreted Branigar to stand for the former proposition. For in Mahoney, there are no facts reported which would indicate, like in Branigar, that the public was in any way put on notice of the City’s actions and thereby given the opportunity to be heard. Similarly, in the present case the due process rights of interested third parties were completely abrogated by the settlement agreement. We believe that in the absence of any form of publication Branigar might have been decided differently.

Chicago Title & Trust Co. v. Village of Mt. Prospect, 160 Ill. App. 3d 851, 513 N.E.2d 915, followed the reasoning in Mahoney. There, the Village of Mt. Prospect entered into a consent decree to annex certain property without the requisite prior notice and hearing. The defendant-intervenor, relying on Martin v. City of Greenville (1977), 54 Ill. App. 3d 42, challenged the validity of the decrees for the village’s lack of compliance with the notice and hearing requirements. The court, in rejecting the defendant’s argument, relied on Mahoney and classified the agreement as voidable. The court then distinguished Martin, stating that the settlement agreement there did not involve a collateral attack and therefore the court was not presented with and did not address the question of whether the agreement was void from its inception as opposed to merely voidable. Additionally, the Chicago Title court noted that the defendant-intervenor’s attack on the consent decrees occurred 10 years after the decrees had been entered.

Here, as in Martin, there is a direct attack on the validity of the agreement. Further, the eight-month delay does not begin to equal the 10-year delay in Chicago Title.

In Martin, the plaintiffs filed a petition seeking to amend the City’s zoning ordinance whereby a tract of land owned by the plaintiffs in a district zoned R-l would be rezoned R-3. The petition was denied. Subsequently, the City of Greenville and the plaintiffs entered into a settlement agreement whereby the land would remain zoned R-1, but the plaintiffs would be able to construct 12 apartment units on it. (54 Ill. App. 3d at 43-44.) The following day, the city council repudiated the agreement.

Pursuant to the city ordinance no amendment to an ordinance could be made by the city council without prior public notice and public hearing. (54 Ill. App. 3d at 45.) The city did not comply with the notice and hearing requirements. The court stated that the agreement would amend the ordinance by modifying the existing zoning requirements. The court further stated that by foregoing the notice and hearing requirements of the ordinance the city had acted beyond its authority. The court held that the settlement agreement was null and void. 54 Ill. App. 3d at 46.

The court here considered both Martin and Mahoney Grease. The court stated that it was troubled by the “seemingly specific language of Martin,” but that it was “equally troubled by the existence of the Mahoney case,” and the fact that “even Martin doesn’t address whether this is a void or a voidable contract.” The court then stated that the City’s continued conduct and acts indicated a ratification of the settlement agreement. Further, the court stated that there had been an absence of any direct attack upon that agreement by the corporation council or by the city counsel to disavow it. Consequently, the court was persuaded to deny the motion to set aside the settlement agreement because of the apparent reliance and expenditure incurred by Ad-Ex.

A municipal contract which is legally prohibited or beyond the power of the municipality is absolutely void and cannot be ratified by later municipal action. (People ex rel. Stead v. Spring Lake Drainage & Levee District (1912), 253 Ill. 479, 500, 97 N.E. 1042.) However, where the contract is within the corporate powers, but merely defectively or irregularly made, the municipality may not avoid it on the grounds that it exercised it irregularly, and it may be later ratified by the action of the municipality. (South Suburban Safeway Lines, Inc. v. Regional Transportation Authority (1988), 166 Ill. App. 3d 361, 367, 519 N.E.2d 1005; Diversified Computer Services, Inc. v. Town of York (1982), 104 Ill. App. 3d 852, 433 N.E.2d 726.) Thus, whether the City’s conduct served to ratify the contract is of no moment where the contract is void ab initio.

Ad-Ex distinguishes Martin on the basis that there, the settlement agreement was set aside immediately before any change in the positions of the parties. While, here, a period of several months, February to October, had passed before the City brought its motion to set aside the agreement.

The City points to several intervening factors which contributed to its eight-month delay in attacking the agreement, such as the appointment of a new corporation counsel in May 1989 and a lawsuit filed by an Ad-Ex competitor, challenging the validity of the agreement.

WThile eight months cannot be considered as timely, still it does not compare to the 10 years, with which the court took issue, in Chicago Title & Trust. We also note, and plaintiff conceded at oral argument, that while the June 7 city council ordinance disavowing the agreement is of no moment, it places the facts of this case more squarely within the parameters of Martin. Further, if it is determined that the contract is void, the passage of time will not serve to validate it.

In Ligenza v. Village of Round Lake Beach (1985), 133 Ill. App. 3d 286, 478 N.E.2d 1187, the plaintiffs entered into a collective bargaining agreement with the village. The agreement contained various provisions relating to wages, salaries and benefits for certain police officers. The agreement was executed in 1982. In 1983, the plaintiffs filed a grievance, protesting the village’s failure to pay the wage increase, which, pursuant to the agreement, had become due on May 1, 1983. The plaintiffs were subsequently notified that the village did not consider itself bound by the agreement. 133 Ill. App. 3d at 288.

The plaintiffs then filed an action to compel arbitration and to enforce the provisions of the agreement. During the course of the proceedings, the village argued that any contract for which appropriations had not been previously made was null and void. As of the 1982 execution of the contract, there had been no appropriation; therefore, the agreement was ultra vires and void. (133 Ill. App. 3d at 288.) The court agreed that the contract was ultra vires and held that the village was not estopped from asserting the defense, even though it did not dispute the terms of the contract until May 1983, when the first wage increase became due. 133 Ill. App. 3d at 292.

We note in passing that Ad-Ex’s reliance on Metropolitan Housing Development Corp. v. Village of Arlington Heights (N.D. Ill. 1979), 469 F. Supp. 836, affd (7th Cir. 1980), 616 F.2d 1006, as a case that is “directly on point” is misplaced. In Metropolitan, a housing development brought an action against the Village of Arlington Heights for allegedly racially discriminatory zoning. The village, in settling the dispute, did not follow its normal annexation and zoning procedures, but instead, entered into negotiations with the housing development for a consent decree. A neighboring village, Mount Prospect, moved to intervene, challenging the authority of the village to enter into the consent decree. After Mount Prospect moved to intervene, the board of trustees of Arlington Heights held an open meeting to receive public comment on the proposed consent decree. Representative's from Mount Prospect were present at the meeting and were heard. The consent decree was subsequently approved.

At a hearing on the validity of the consent decree, Mount Prospect claimed that the village’s failure to proceed by normal zoning procedures abridged its right to procedural due process. The district court upheld the consent decree, finding that Mount Prospect, as well as other interveners, had been given a full hearing on the merits of their objections to the proposed annexation and rezoning.

Ad-Ex has extracted language from the appellate court opinion in Metropolitan which, when read in isolation of the facts of the case, appears to support its argument that the settlement agreement here should be enforced. The language is to the effect that settlement agreements are encouraged and when approved by the district court they will not be reversed unless there is an abuse of discretion. (616 F.2d at 1014-15.) It is this language, taken out of context, upon which Ad-Ex erroneously relied. We also note that the district court in Metropolitan gave consideration to Martin as it related to due process concerns.

Zoning measures must observe due process. (See Wells v. Village of Libertyville (1987), 153 Ill. App. 3d 361, 505 N.E.2d 740.) We believe that Martin was premised on these due process concerns. Notice setting forth the time and place of the hearing to zone property is mandatory and jurisdictional, and any amendment passed in the contravention thereof is void. North State, Astor, Lake Shore Drive Association v. City of Chicago (1970), 131 Ill. App. 2d 251, 253, 266 N.E.2d 742; Cosmopolitan National Bank v. City of Chicago (1963), 27 Ill. 2d 578, 190 N.E.2d 352; Treadway v. City of Rockford (1962), 24 Ill. 2d 488,182 N.E.2d 219.

The city ordinance here provides, in pertinent part:

“Application for Variation and Notice of Hearing. An application for a variation shall be filed with the Board of Appeals. *** No more than 90 days after filing such application, a hearing shall be held on the application. Notice of such hearing shall be published at least once, not more than 30 nor less than 15 days before the hearing, in one or more newspapers published in the City of Chicago.” Chicago Municipal Code ch. 194A, §11.7-2 (1988).

In our view the use of the term “shall” is mandatory, not merely directory. The notice requirements contained in the ordinance here are jurisdictional prerequisites which must be followed in order to vest the city with the power to vary its zoning ordinance. (See Martin, 54 Ill. App. 3d 42; Kirk v. Village of Hillcrest (1973), 15 Ill. App. 3d 415, 304 N.E.2d 452; Village of Riverwoods v. County of Lake (1968), 94 Ill. App. 2d 320, 237 N.E.2d 547.) The failure to give the requisite notice and to conduct a hearing renders a zoning change invalid for lack of jurisdiction. See Village of Riverwoods, 94 Ill. App. 2d at 327 (and cases cited therein); see also Scanlon v. Faitz (1979), 75 Ill. 2d 472, 389 N.E.2d 571 (issuance of building permits pursuant to variance did not estop village from preventing construction where village failed to comply with notice requirements for variance hearings).

Here, this was not simply an irregular exercise of the City’s power; the City had no power absent compliance with the notice and hearing requirements. The City’s attempt to do by agreement that which could only be done by following the appropriate procedure is not valid. If the zoning change would otherwise have been illegal and void for lack of notice and a hearing, having it incorporated in a settlement agreement “ ‘will not breathe legal life into it.’ ” Suski v. Mayor & Commissioners of the Borough of Beach Haven (1975), 132 N.J. Super. 158, 164, 333 A.2d 25, 29, quoting Midtown Properties, Inc. v. Township of Madison (1961), 68 N.J. Super. 197, 206, 172 A.2d 40, 45.

Like in Martin, the parties’ agreement to vary the setback requirement would amend the ordinance by modifying the existing setback requirement. Since the City was without jurisdiction to vary the zoning ordinance, the provision in the agreement providing for the variance is void and unenforceable. It necessarily follows, then, that the City is not estopped from asserting its ultra vires defense. Finally, since we have determined that the agreement was void from its inception, it could not be ratified by the City’s subsequent conduct.

In reaching this conclusion we are mindful of the financial loss to Ad-Ex in reliance on the settlement agreement. However, as we have stated earlier, a party conducting business with a corporation is presumed to have knowledge of the limitations on the powers of the corporation. Significantly, the obligatory notice and hearing provision is designed to protect the citizens from the whims of their city fathers. It is this consideration which outweighs both any financial loss to Ad-Ex and the desire of the city government to avoid the agreement.

Accordingly, we reverse the orders of the circuit court.

RIZZI and WHITE, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE FREEMAN

delivered the opinion of the court:

Petitioner, Ad-Ex, has filed a petition for rehearing in the above-captioned cause requesting this court to reconsider its reversal of the judgment which held the settlement agreement void ab initio. In support of its petition, Ad-Ex advances three arguments. For the reasons stated below, we deny the petition.

Ad-Ex first contends that neither this court nor the trial court had jurisdiction to consider the City’s motion to set aside the settlement agreement. We disagree.

Ad-Ex maintains that the agreement was more than a contractual arrangement between the parties; “it was a Stipulation and Agreement in the 34 consolidated suits brought by Ad-Ex against the city, entered in conjunction with and at the same time as a February 24, 1989 Court order embodying, approving and enforcing the Agreement,” and dismissing the suits with prejudice. As such, the order was a final judgment.

Ad-Ex then asserts, and we do not find otherwise, that the City did not seek to vacate the February 24 order until more than seven months later (October 4, 1989) when it filed its motion to set aside the agreement. It argues that since the City failed to file either a notice of appeal or a post-trial motion to vacate the February 24 order within the 30-day limitation period (107 III. 2d R. 303(a)(1)), neither the trial court nor this court had jurisdiction to consider whether the agreement should be set aside.

Ad-Ex correctly maintains that this court has a duty to consider its jurisdiction and dismiss the appeal if it is determined that jurisdiction is lacking. In its petition, Ad-Ex concedes that it did not raise this issue on appeal, and, we note, it has not cited this court to any place in the record to show that it was raised below. That notwithstanding, it now urges this court to consider the issue.

We believe that the agreement and the court’s order which incorporated that agreement was the equivalent of a consent decree. A consent decree is not a judicial determination of the rights of the parties, nor does it purport to represent judgment of the court. It is merely the court’s recordation of the private agreement of the parties. (People ex rel. Thomas v. Village of Sleepy Hollow (1981), 94 Ill. App. 3d 492, 495, 418 N.E.2d 466; Kandalepas v. Economou (1989), 191 Ill. App. 3d 51, 547 N.E.2d 496.) While, generally, it has been held that consent decrees are not final appealable orders (see Pierce v. MacNeal Memorial Hospital Association (1977), 46 Ill. App. 3d 42, 48, 360 N.E.2d 551; City of Des Plaines v. Scientific Machinery Movers, Inc. (1972), 9 Ill. App. 3d 438, 442-43, 292 N.E.2d 154; Jackson v. Ferolo (1972), 4 Ill. App. 3d 1011, 1014, 283 N.E.2d 247), a dismissal order entered pursuant to a settlement agreement is a final order, relief from which requires timely filing of a motion to vacate (see Garcia v. Lozada (1978), 58 Ill. App. 3d 875, 374 N.E.2d 1078; Jackson v. Schencker & Schencker (1986), 145 Ill. App. 3d 232, 494 N.E.2d 669; see also Prairie Material Sales, Inc. v. White Diamond, Inc. (1987), 157 Ill. App. 3d 779, 510 N.E.2d 1236).

Generally, a court lacks power to modify, set aside or vacate a final decree 30 days after its rendition. (Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 790, 424 N.E.2d 911.) However, even where jurisdiction has been lost after the passage of the 30 days following the dismissal, the parties may be deemed to have revested the court with personal and subject matter jurisdiction. (People v. Kaeding (1983), 98 Ill. 2d 237, 240, 456 N.E.2d 11; Ridgely v. Central Pipe Line Co. (1951), 409 Ill. 46, 49, 97 N.E.2d 817.) “Loss of jurisdiction through the passage of time is [merely] a technical objection, which may be waived by voluntary participation of the parties.” Comet, 98 Ill. App. 3d at 792; Faust v. Michael Reese Hospital & Medical Center (1979), 79 Ill. App. 3d 69, 72, 398 N.E.2d 287.

The factors essential to revesting of jurisdiction are (1) active participation of the parties without objection (2) in further proceedings inconsistent with the prior order of dismissal. (Stevens v. City of Chicago (1970), 119 Ill. App. 2d 366, 372, 256 N.E.2d 56, citing Ridgely, 409 Ill. 46, 97 N.E.2d 817; Cruz v. Columbus-Cuneo-Cabrini Medical Center (1990), 194 Ill. App. 3d 1037, 551 N.E.2d 1345.) Conduct which is inconsistent with the dismissal order is any which can be fairly construed as an indication that the parties do not view the order as final and binding. Gentile v. Hansen (1984), 131 Ill. App. 3d 250, 255, 475 N.E.2d 894. See Esin v. Liberty Mutual Insurance Co. (1981), 99 Ill. App. 3d 75, 424 N.E.2d 1307 (appearance, briefing, argument on motion for summary judgment); Faust, 79 Ill. App. 3d 69, 398 N.E.2d 287 (participation in appeals).

Ad-Ex, relying on Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 470 N.E.2d 290, argues that the doctrine of revestment applies when neither party objects to further proceedings and “both” seek to set aside the judgment. Since Ad-Ex was neither willing, nor sought to have the judgment set aside, and further, since it vigorously contested the City’s delinquent motion to have the agreement set aside, the doctrine is inapplicable. We disagree.

Initially we note that Ad-Ex misapprehends Archer. The Archer court, in determining the inapplicability of the doctrine in that case, distinguished People v. Kaeding (1983), 98 Ill. 2d 237, 456 N.E.2d 11, stating that in Kaeding “neither party objected to further proceedings in that court and both sought to set aside the judgment.” (Archer, 103 Ill. 2d at 539.)A reading of Kaeding reveals that the Archer court’s characterization of the Kaeding parties’ agreement to set aside the judgment refers to the nonmovant’s conduct in failing to object to the exercise of the court’s jurisdiction and actively participating in the proceedings.

Ad-Ex never contested the trial court’s jurisdiction. The basis of its argument below centered on the theory of detrimental reliance. Subsequent to the filing of the City’s October 4 motion, both parties submitted briefs on the issue and participated in a hearing. Ad-Ex appeared and presented testimony concerning the fact that it had expended funds in reliance on the agreement and vigorously argued that the terms were valid and enforceable.

In the trial court, and here on appeal, neither party regarded the dismissal order as final. Ad-Ex’s conduct, contrary to its present position, was inconsistent -with the prior order of dismissal as final and binding. (See Vulcan Metals Products, Inc. v. Schultz (1989), 180 Ill. App. 3d 67, 535 N.E.2d 933 (where party failed to object to jurisdiction prior to appeal, and actively participated in further discovery and in a two-day trial, conduct served to revest trial court with jurisdiction).) Therefore, the trial court’s November 2, 1989, order, denying the City’s motion to set aside the agreement, was the true final order dismissing the action and the appeal taken therefrom was properly reviewable. See also Ridgely, 409 Ill. 46, 97 N.E.2d 817 (plaintiff’s failure to object to jurisdiction and appearing generally in opposition to defendant’s motion waived jurisdictional defect rendering court’s latter order the true final order).

Ad-Ex, quoting Sears v. Sears (1981), 85 Ill. 2d 253, 260, 422 N.E.2d 610, further argues that a post-trial motion does not revest jurisdiction where the motion “was about whether the judgment should be set aside.” In Sears, one of the parties moved to reopen a judgment on the ground that he had justifiably not known of a hearing which proceeded on the other party’s evidence alone and had been the basis of the next day’s judgment. A second motion was filed wherein the party made the same argument in greater detail and the court heard evidence about who had said what to whom and what the moving party should have known about the hearing. On appeal of the denial of his motion, the supreme court held that the motion did not concern the merits of the judgment; the participants did not ignore the judgment and start to retry the case, thereby implying by their conduct their consent to having the judgment set aside. Contrarily, the hearing was about whether the judgment should be set aside.

Ad-Ex’s argument in opposition, which specifically addressed the validity of the terms of the settlement agreement, did in fact concern the merits of the judgment. In Sears, unlike here, the moving party’s attack, as well as the opponent’s response, addressed only the procedural defects, not the substance of the judgment. Moreover, as the court stated in Ridgely, “[a]s all further proceedings upon the merits of a previously dismissed action are inconsistent with a prior order dismissing the action, it follows that any further proceeding upon the merits of a cause operates to nullify the order of dismissal.” 409 Ill. at 50.

Finally, Ad-Ex concedes that under certain circumstances, failure to contest jurisdiction can constitute waiver of jurisdictional defects. That notwithstanding, it argues that waiver should not be applied in this instance because, “without exception, [it] objected to the City’s motion to set aside the Agreement.”

Our review of the record has revealed no instance where Ad-Ex objected to jurisdiction. We are not inclined, merely because of its detrimental reliance argument, to exempt it from waiver of the jurisdictional defect. Further, our research has revealed two cases, though rather antiquated, which have addressed the question of whether a petitioner may raise, for the first time in a petition for rehearing, the question of jurisdiction. In both cases the issue was deemed waived. See Tree v. DeMar (1954), 2 Ill. 2d 547, 558, 119 N.E.2d 767; Zinser v. Sanitary District (1912), 175 Ill. App. 9, 24-25.

Ad-Ex next contends that we improperly applied the Martin case to this appeal because certain facts therein made the case inapplicable. It first argues that Martin is inapplicable because the holding there was predicated on considerations of procedural due process. Further, it argues that this court should have relied on the reasoning in Mahoney since it, like this case, involved a home rule municipality while Martin did not.

We are aware that Martin involved a non-home-rule municipality. However, we do not believe that notions of fairness and procedural due process, upon which we, like Martin, premised our decision, depend, for their validity and application, on the designation of municipalities as non-home rule.

Ad-Ex next argues that here, unlike in Martin, there had been prior notice. It has presented to this court copies of city council proceedings wherein the council approved 15 of the Ad-Ex signs constructed to date. It maintains that these proceedings gave interested parties notice of the proposed construction of the signs and an opportunity to contest that construction. As evidence that the proceedings constituted proper notice, Ad-Ex points to the fact that in July 1989, Patrick Media filed suit against the City to prevent this construction.

The record of city council procedures, offered now as proof of notice, was neither a part of the record on appeal, nor was it argued in Ad-Ex’s brief or at oral argument. Rule 367(b) (107 Ill. 2d 367(b)) provides, in pertinent part:

“(b) Contents. The petition shall state briefly the points claimed to have been overlooked or misapprehended by the court ***.” (Emphasis added.)

New evidence, overlooked by Ad-Ex, not by this court, does not fall within the rule permitting rehearing on points “claimed to have been misapprehended or overlooked by [this] court” in its original opinion. (See Catalano v. Pechous (1978), 69 Ill. App. 3d 797, 387 N.E.2d 714, cert, denied (1981), 451 U.S. 911, 68 L. Ed. 2d 300, 101 S. Ct. 1981.) A rehearing of an appeal is only granted for purposes of correcting errors which the court has inadvertently made, and the party cannot assign as error points or arguments which could have been raised on or before oral argument of the appeal. Mid-Continental Realty Corp. v. Korzen (1976), 40 Ill. App. 3d 133, 143-44, 351 N.E.2d 376 (supplemental opinion).

That notwithstanding, Ad-Ex, relying on American National Bank & Trust Co. v. City of Chicago (1971), 4 Ill. App. 3d 127, 280 N.E.2d 567, argues that this court may judicially notice these procedures since they qualify as either an ordinance, decision or rule of the city council and are matters of public record. See Ill. Rev. Stat. 1987, ch. 110, pars. 8 — 1001, 8 — 1002.

We note that the judicially noticed facts in American National, which had not been a part of the trial court proceedings, had not been so included because the events had not occurred at the time of trial. Contrarily, here the proceedings in the trial court spanned in time from February 24, 1989, through November 1989. The city council procedures now offered occurred on September 23, 1987, March 8, 1989, and May 24, 1989. These procedures, unlike the facts in American National Bank, having occurred prior to and during the trial court proceedings, could have been presented below. See also People ex rel. Carey v. Starview Drive-In Theatre, Inc. (1981), 100 Ill. App. 3d 624, 628, 427 N.E.2d 201 (reviewing court stated absent allegation of mootness, judicial notice could not be extended to permit the introduction of new factual evidence not presented to trial court); Ashland Savings & Loan Association v. Aetna Insurance Co. (1974), 18 Ill. App. 3d 70, 309 N.E.2d 293. Nameoki Township v. Cruse (1987), 155 Ill. App. 3d 889, 508 N.E.2d 1080 (reviewing court judicially noticed annexation ordinance where the ordinance was enacted subsequent to the filing of the appeal and defendants moved to dismiss the appeal on grounds of mootness).

However, even assuming that we may judicially notice these proceedings, we conclude that they did not serve to give the requisite prior notice of the variance. First, these proceedings were for the purpose of ordering that permits be issued for construction of 15 Universal (Ad-Ex) signs, and included orders for other outdoor advertising companies as well. In each order the council required that the signs be constructed in compliance with “applicable provisions of Chapter 194A of the Chicago Zoning Ordinance and all other applicable provisions of the Municipal Code of the City of Chicago governing the construction and maintenance of outdoor signs, signboards and structures.” No mention is made in the orders of the variance of the setback requirement. Approval of permits to construct in compliance with the existing ordinances is not notice of intent to vary those ordinances.

Secondarily, given the language in the report of the council proceedings, we reject Ad-Ex’s argument that the filing of the Patrick Media lawsuit evidenced prior notice. Further, contrary to Ad-Ex’s argument, Patrick Media’s suit, which was filed three months after the last council proceeding, did not contest the council’s orders in these proceedings, but rather the City’s authority to enter into the settlement agreement.

Ad-Ex’s third and final contention is that our opinion has failed to provide adequate direction to the trial court. Generally, the effect of a reversal is to abrogate the judgment and leave the case as it stood prior to the judgment. (People ex rel. Krych v. Birnbaum (1981), 101 Ill. App. 3d 785, 791, 428 N.E.2d 974.) Therefore, having determined that the agreement here was void ab initio, the consent order, which was premised on that agreement, was a nullity and the parties stand in the position they were in prior to entry of the order. Having thus stated the rule, we express no further opinion as to the parties’ rights to have the case reinstated. That determination we leave, in the first instance, to the parties and the court below.

For the foregoing reasons, this court’s decision reversing the trial court’s judgment will stand.

Reversed.

RIZZI and WHITE, JJ., concur.

      Prior code §86.1-8 (1983).

      On June 7, 1990, the city council passed an ordinance disavowing the settlement agreement between Ad-Ex and the City of Chicago. A copy of the ordinance was filed in this court, prior to oral argument, on June 21,1990.

       Justice Freeman authored this opinion prior to his election to the Illinois Supreme Court.


author: PRESIDING JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLIFFORD EATON, Defendant-Appellant.
    Third District
    Nos. 3—89—0662, 3—90—0663 cons.
    Opinion filed December 28, 1990.
    Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.

      William Herzog, State’s Attorney, of Kankakee (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Clifford Eaton, pled guilty in case Nos. 85 — CF— 376 and 86 — CF—108 to two charges of deceptive practices (Ill. Rev. Stat. 1989, ch. 38, par. 17 — l(B)(d)). He was subsequently sentenced to concurrent one-year terms of imprisonment. Those sentences were also to be served concurrently with previous sentences he had received in Cook County for other deceptive practices convictions. The defendant subsequently filed petitions for post-conviction relief. The State filed a motion to dismiss the petitions. The trial court granted the State’s motion, and the defendant appeals.

The factual basis for the defendant’s guilty plea in case No. 85— CF — 376 showed that between July 5 and October 2, 1985, the defendant delivered six checks in Kankakee County, knowing that they would not be paid by the bank. The value of the property was in excess of $150 and was obtained within a 90-day period. The factual basis in case No. 86 — CF—108 showed that on April 22, 1986, the defendant delivered a check in Kankakee County knowing that it would not be paid by the bank.

The defendant’s petitions for post-conviction relief alleged that he was denied his sixth amendment right to the effective assistance of counsel when his attorney failed to move to dismiss the Kankakee County charges. He argued that since the acts which formed the basis of the Cook County convictions occurred within the same 90-day period as the acts upon which the Kankakee charges were based, all of the charges had to be brought in the same county. (See Ill. Rev. Stat. 1989, ch. 38, par. 17 — 1(B).) He . therefore contended that his Kankakee County convictions should be vacated.

The State filed a motion to dismiss the petitions, alleging that Cook County and Kankakee County were separate jurisdictions and the defendant was properly prosecuted in each county. The trial court granted the State’s motion, finding that the defendant had the burden of showing that the prosecutor’s failure to join the Cook and Kankakee cases was an attempt to harass him.

The defendant argues on appeal that his Kankakee County convictions must be vacated because section 17 — 1(B) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 17 — 1(B)), which governs deceptive practices, mandates that transactions occurring within the same 90-day period must be tried in one prosecution. He therefore contends that he could not be tried separately in Cook County and Kankakee County, since the deceptive transactions in each county occurred within the same 90-day period.

We agree that section 17 — 1(B) of the Criminal Code does state that separate transactions totaling more than $150 within a 90-day period shall be prosecuted with a single deceptive practices charge. (Ill. Rev. Stat. 1989, eh. 38, par. 17 — 1(B).) We also note, however, that the general venue statute provides that a criminal action is to be tried in the county where the offense was committed, except as otherwise provided by law. (Ill. Rev. Stat. 1989, ch. 38, par. 1 — 6(a).) The defendant argues that section 17 — 1(B) is an exception to the general venue requirement. We do not agree.

Potentially conflicting statutes must be read so as to give meaning to both statutes if possible. (In re Estates of Rice (1979), 77 Ill. App. 3d 641, 396 N.E.2d 1374.) Viewing section 17 — 1(B) and the general venue statute together, we find that section 17 — 1(B) is not an exception to the venue requirement but rather applies in cases where the deceptive acts occurred within the same county. It does not apply to the factual situation presented here, where the same type of acts occurred in different counties. In this case, the general venue statute providing that criminal charges be brought in the county in which the criminal acts occurred applies. Therefore, Kankakee and Cook Counties could each separately prosecute the defendant for deceptive practices. Of course, the deceptive transactions occurring in each county within a 90-day period had to be prosecuted with a single charge.

Based upon the above, we find that the State properly brought the instant charges against the defendant in Kankakee County irrespective of the charges in Cook County.

Accordingly, the judgment of the circuit court of Kankakee County is affirmed.

Affirmed.

BARRY and GORMAN, JJ., concur.


author: JUSTICE BARRY

text:
    EDWARD GLEASON, Plaintiff-Appellant, v. THE VILLAGE OF PEORIA HEIGHTS et al., Defendants-Appellees.
    Third District
    No. 3—89—0623
    Opinion filed November 13, 1990.
    — Rehearing denied January 29, 1991.
    John E. Cassidy III, of Cassidy & Mueller, of Peoria (David B. Mueller, of counsel), for appellant.

      Paul P. Gilfillan, of Quinn, Johnston, Henderson & Pretorius (Murvel Pretorius, Jr., of counsel), for appellee Village of Peoria Heights.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff Edward Gleason brought an action to recover for injuries received in a diving accident which resulted in quadriplegia. The circuit court of Peoria County entered summary judgment in favor of the defendant, the Village of Peoria Heights, as to two counts of the amended complaint.

The record on appeal indicates that plaintiff and friends had been watching boat races from the beach and dock on the premises of Barnacle Billy’s Beach Club, a tavern located in Peoria Heights, Illinois, for several hours when plaintiff dived off the dock into the Illinois River on June 11, 1983. The water near the dock was shallow, and plaintiff was seen floating and unconscious in the water. Plaintiff was pulled from the water by friends and given mouth-to-mouth resuscitation by a registered nurse who was present. Help was summoned, and when the rescue squad of the defendant village arrived, the emergency medical technicians (EMTs) took over the resuscitation efforts. The EMTs placed plaintiff on a spine board before moving him up the sloping beach to the ambulance and transporting him to St. Francis Hospital in Peoria.

Witnesses disagree as to the exact procedures used to prepare plaintiff for transport. According to two of the EMTs, plaintiff’s head was immobilized by placing elongated sandbags on either side of his head and neck and placing a strip of adhesive tape across his forehead and attaching it to both sides of the spine board. A third EMT had no recollection of what was done to immobilize plaintiff’s head. A close friend of plaintiff, who had pulled plaintiff from the water, stated that plaintiff’s head was not stabilized at the scene or when he was removed from the ambulance at the hospital.

According to the deposition of an expert witness, neurologist David Schreiber, M.D., the emergency room records indicate that plaintiff’s neck “was apparently not immobilized in transit.” Medical expert witnesses testified that the failure to immobilize plaintiff’s head during transportation to the hospital would cause additional injury to the spinal cord and would aggravate the resulting paralysis.

It is not disputed that the training received by the EMTs specified the use of a collar, sand bags, or other device to immobilize the neck of a patient with a suspected neck or spinal cord injury. It is also not disputed that the persons who served as volunteers on the defendant’s rescue squad were each trained and certified as an EMT-A and thus were qualified to provide basic life support services, including prehospital care, such as airway management, cardiopulmonary resuscitation, control of shock and bleeding and splinting of fractures (Ill. Rev. Stat. 1987, ch. lllVa, par. 5504.06), before and during transportation of such patients to hospitals (Ill. Rev. Stat. 1987, ch. IIIV2, par. 5504.16).

The Emergency Medical Services Systems Act (Act) (Ill. Rev. Stat. 1987, ch. HV-k, par. 5501 et seq.) is designed to provide the State with a system for emergency medical services. In addition to EMT-A certification, the State also licenses an intermediate level (EMT-I) and an advanced (paramedic) level (EMT-P), with the latter able to perform such functions as cardiac defibrillation, intravenous therapy, administration of antiarrhythmic agents, medications, drugs, and solutions, and other techniques and procedures. The Act provides that persons currently certified as an EMT-A, EMT-I, and EMT-P may provide life support services according to the level of their certification.

The determinative issue in this case is the applicability of section 17 of the Act (Ill. Rev. Stat. 1987, ch. HV-k, par. 5517), which provides in part:

“(a) Any person, agency or governmental body certified or authorized pursuant to this Act or rules thereunder, who in good faith provides life support services *** in an emergency shall not be civilly or criminally liable as a result of their acts or omissions in providing such services unless such acts or omissions *** are inconsistent with the person’s training or constitute willful or wanton misconduct.”

Plaintiff has alleged in count I that defendant village, acting through its duly authorized agents and employees, permitted willful and wanton acts and omissions in handling and transporting plaintiff in that it willfully and wantonly failed to immobilize the neck and back of plaintiff so as to prevent further injury and disability. Count I is not involved in this appeal.

Count II alleged the same acts and omissions without reference to willful and wanton misconduct and adds that such acts and omissions are “inconsistent with their training.” Count X characterized the same acts and omissions as negligent. Both counts II and X recited that they were brought pursuant to section 17 of the Act (quoted above).

Defendant, in addition to a general denial, filed an affirmative defense asserting that each member of the emergency squad “performed services that they were trained to perform and which services were consistent with their training as certified medical technicians under the Emergency Medical Services Systems Act.”

After extensive discovery, defendant sought summary judgment as to counts II and X, attaching an affidavit of an expert medical witness, John Ruthman, M.D., that the services performed by the EMTs for plaintiff “are the types of services that EMT-As are trained to render to injured persons at an accident scene and in transport to a trauma center.” The trial court entered summary judgment for defendant with a finding pursuant to Supreme Court Rule 304 (107 Ill. 2d R. 304) that there was no just reason for delaying this appeal.

During oral argument before this court, defendant argued and plaintiff agreed that section 17 of the Emergency Medical Services Systems Act does not authorize or create a cause of action but rather provides for immunity from liability. Plaintiff thus conceded that the attempt to plead a cause of action derived from the statute in count II was not appropriate. Thus, we are only concerned with the cause of action for negligence set forth in count X.

Plaintiff contends that the trial court ignored the plain meaning of section 17 when it found the village not liable even though there was a disputed question of fact as to whether the EMTs acted in a manner consistent with their training. Plaintiff argues that the statute provides for immunity from liability only when the negligent acts or omissions are not inconsistent with the EMT training. Since their training mandated immobilization of the patient’s head and neck when a spinal cord injury is suspected, failure to immobilize plaintiff’s head would be an act or omission not protected by the immunity provision. Plaintiff suggests that the defendant would be immune from liability if the EMTs had accidentally turned the patient’s head while taping it to the board, but there would be no immunity for failing to tape it at all.

We have previously stated the basic rules of statutory construction as follows:

“The foremost consideration of a court’s construing a statute is to give effect to the intent of the legislature. [Citation.] In ascertaining the legislative intent, a court of review considers the language used, the evil to be remedied, and the object to be obtained. [Citation.]” People v. Naseef (1984), 127 Ill. App. 3d 70, 72, 468 N.E.2d 466.

The Emergency Medical Services Systems Act expressly states that the intent of this legislation is to provide Illinois a system for emergency medical services by establishing a central authority to coordinate and integrate the planning, evaluation, and regulation of prehospital emergency medical services systems. With that general purpose in mind, we are persuaded that by enactment of the immunity provision, the legislature intended to encourage emergency response by trained medical personnel without risk of malpractice liability for every bad outcome or unfortunate occurrence. Emergency situations are often fraught with tension, confusion, and, as here, difficult physical locations for giving medical care. Emergency personnel must not be afraid to do whatever they can under less than ideal circumstances.

Obviously the trial court found that immunity applies where EMTs are providing the level of life support service which they have been trained to provide regardless of the quality of their performance of the procedures except, of course, for willful or wanton misconduct for which there is no immunity. In other words, since defendant’s EMTs were providing plaintiff with life support services at the basic level which they were trained to perform, defendant had immunity from liability for misconduct amounting to no more than simple negligence in the performance of those services.

It seems clear from the record that these EMTs were not attempting any life support service beyond their level of training. They were qualified to provide cardiopulmonary resuscitation, which they did both at the beach and on the way to the hospital. They were qualified to splint a fracture, which they did by placing plaintiff on a spine board and strapping him onto the board. They were qualified to transport a patient in an ambulance, which they did. Hence, the services they performed were services they had been trained and certified to perform within the meaning of section 17, and the village rightfully claimed immunity from liability.

As a result of our ruling on the immunity question, the issue of fact present in this case does not preclude summary judgment. The evidence is contradictory as to whether the EMTs immobilized plaintiff’s neck and head during transport to the hospital. However, this factual question is not material to the outcome of this cause. Defendant is immune from liability whether or not plaintiff’s head was satisfactorily immobilized. To hold otherwise would render the immunity provision of section 17 virtually meaningless. We find the decision of the trial court here is consistent with the legislative purpose of the immunity provision.

We affirm the judgment entered by the circuit court of Peoria County.

Affirmed.

HEIPLE, P.J., and GORMAN, J., concur.


author: JUSTICE SCOTT

text:
    WALLACE E. PRINCE et al., Plaintiffs-Appellants, v. WILLIS McELROY et al., Defendants-Appellees.
    Third District
    No. 3—89—0512
    Opinion filed November 27, 1990.
    — Rehearing denied January 30, 1991.
    John P. Nicoara, of Nicoara & Steagall, and Joseph R. Napoli, both of Peoria (Richard L. Steagall, of counsel), for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

Plaintiffs allege that on July 7, 1986, at 8:21 a.m., Wallace Prince was driving his vehicle at approximately 55 miles an hour westerly on an open highway, U.S. Route 150, in rural Knox County. As he approached the crest of a hill, he saw an Illinois Department of Transportation track parked crossways in the road. He attempted to avoid collision, skidded on an accumulation of loose gravel, went off the road and his vehicle overturned. The named defendants (McElroy, the foreman, and Brown, Clark, Lopez, Pecsi, Schweitzer and Pyles, day laborers from a local laborers union hall hired on a temporary basis) were all employees of the Illinois Department of Transportation. At the time of the occurrence, all defendants were acting within the scope of their duties as State employees engaged in road repair work. The negligence allegations in plaintiffs’ complaint were the fact of the track being parked crossways on the road, no warnings of any kind or nature of the truck being so parked, nor any warnings of the accumulation of the gravel on the road.

Defendants moved to dismiss pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615) on the theory that the complaint failed to state a cause of action because they were protected by statutory sovereign immunity as well as the doctrine of common law public officials immunity. The circuit court dismissed the complaint with prejudice, noting that “the instant lawsuit is one which could control the actions of the State and thus, they enjoy sovereign immunity from suit in the circuit courts.” Plaintiff appeal.

Sovereign immunity, “except as the General Assembly may provide by law,” was abolished by the 1970 Illinois Constitution. (Ill. Const. 1970, art. XIII, §4.) The legislative response to that change, found in section 1 of “An Act in relation to immunity for the State of Illinois” (Ill. Rev. Stat. 1987, ch. 127, par. 801), provides in relevant part that “the State of Illinois shall not be made a defendant or party in any court.” Section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1989, ch. 37, par. 439.8(d)) gives that forum exclusive jurisdiction to adjudicate claims against the State of Illinois.

The principal issue then is whether the naming of only individual employees of the Department of Transportation avoids the above statutory prohibition. Defendants make extensive use of the term “sovereign immunity,” a concept derived from the ancient maxim that “the King can do no wrong.” Not only does this beg the question, but the doctrine has been said to “rest[ ] upon a rotten foundation.” (Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 1, 21, 163 N.E.2d 89, 94.) If the real claim were against the State of Illinois in the sense that the State is the party vitally interested, then the action must be brought in the Court of Claims. Accordingly, we must examine the issues involved and the relief sought. Healy v. Vaupel (1990), 133 Ill. 2d 295, 549 N.E.2d 1240.

However, the above statutory immunity does not protect an agent or employee of the State who violates statutory or constitutional law or acts in excess of his authority. In such circumstances, an action may be brought in the circuit court. Healy v. Vaupel (1990), 133 Ill. 2d 295, 308, 549 N.E.2d 1240; Herget National Bank v. Kenney (1985), 105 Ill. 2d 405, 475 N.E.2d 863; Senn Park Nursing Center v. Miller (1984), 104 Ill. 2d 169, 470 N.E.2d 1029; Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 370 N.E.2d 223.

In Healy v. Vaupel (1990), 133 Ill. 2d 295, 549 N.E.2d 1240, the plaintiff was injured while participating in university-sponsored gymnastic activities. The defendants were athletic directors, a coach and a team trainer. All were employees of Northern Illinois University. That entity has the same protection via section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1989, ch. 37, par. 439.8(d)) as the State of Illinois. After discussing certain appellate cases, including Madden v. Kuehn (1978), 56 Ill. App. 3d 997, 372 N.E.2d 1131, where an action by a prison inmate against a physician employee of the State who was acting within the scope of his duties was allowed, the court remarked:

“We do not believe that the same conclusion may be reached here. The relationship between the plaintiff and the defendants would not have had a source outside the employment status of the defendants. Whatever duty was owed by the defendants to the plaintiff existed because of the plaintiff’s status as a student and her participation in university-sponsored activities. For those reasons, we decline the plaintiff’s invitation to extend the appellate court’s holding in Madden to the present case.” Healy v. Vaupel (1990), 133 Ill. 2d 295, 313, 549 N.E.2d 1240.

Wallace Prince, a plaintiff in this case, has the status of an Illinois motorist on a public highway. There is no prior relationship between him and any of the defendants, whereas, in Madden the physician-defendant owed a duty to his patient independent of his status as an employee of the State of Illinois. One difference between Wallace Prince and the student in Healy is that the student elected to be involved in gymnastics. The plaintiffs in the instant case are simply members of the general public who allege injury as a result of conduct by State employees. The approach in Healy is dispositive of this appeal. Additionally, in Townsend v. Gaydosh (1990), 197 Ill. App. 3d 339, 554 N.E.2d 648, a complaint against a Department of Transportation maintenance employee alleging improper location of a road grader and failure to place proper warning signs was in reality determined to be a claim against the State of Illinois, hence maintainable only in the Court of Claims. Accordingly, the judgment below is affirmed.

Affirmed.

HEIPLE, P.J., and STOUDER, J., concur.