author: JUSTICE McNAMARA

text:
    SCOTT WILLE, Plaintiff-Appellant, v. NAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION, Successor to International Harvester Company, Defendant-Appellee.
    First District (6th Division)
    No. 1—90—1875
    Opinion filed December 6,1991.

      Baskin, Server, Berke & Weinstein, of Chicago (Burton I. Weinstein and John R. Malkinson, of counsel), for appellant.

      Arnstein & Lehr, of Chicago (Arthur L. Klein and David B. Goodman, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Scott Wille, brought this action in the circuit court of Cook County seeking damages for injuries incurred when his hand became caught in a bunk feeder machine. Among the defendants were Navistar International Transportation Corporation (successor to International Harvester Company), which sold and distributed the bunk feeder; Alfred Wild, the farmer who employed plaintiff and owned the bunk feeder; and Kasten Manufacturing Corporation, the manufacturer. Navistar in turn filed a counterclaim against Kasten.

After a trial, a jury returned a verdict in favor of Navistar. The jury found in favor of plaintiff against Wild in the amount of $612,248.47, which it reduced by 20% ($122,500) for plaintiff’s comparative negligence. The trial court entered judgments on these verdicts. On appeal, plaintiff seeks to recover the $122,500 from Navistar. Wild has not appealed the judgment against him. (Prior to trial, the trial court entered a default judgment against Kasten, an insolvent corporation. The jury returned a verdict against Kasten in the amount of $612,248.47, without any reduction. That decision is not involved in this appeal.)

Plaintiff appeals from the judgment entered in Navistar’s favor and the denial of his post-trial motion. Plaintiff urges that Navistar’s closing argument was prejudicial and violated the trial court’s prior in limine order; that the trial court committed reversible error in failing to give certain jury instructions requested by plaintiff; that the trial court erred in refusing to preclude Navistar’s expert from testifying regarding the “inadvertency” of plaintiff’s conduct; and that the jury’s verdict in favor of Navistar was against the manifest weight of the evidence.

In June 1979, Wild hired the 16-year-old plaintiff to assist in harvesting hay. Wild owned a “bunk feeder,” which was designed for and sold by Navistar. The feeder is a type of conveyor belt used to unload hay from a wagon to a silo for storage. The feeder attaches to the side of the wagon and derives its power from the tractor’s engine and is not functional apart from the wagon and tractor. Wild showed plaintiff how to use the equipment to unload hay, and during the several weeks prior to the incident, plaintiff unloaded 20 loads of hay daily using the bunk feeder.

On the day of the accident, when the bunk feeder initially jammed, Wild stuck his hand into the “clean-out hole” in the bunk feeder without turning off the power. The clean-out holes, each rectangular and measuring three by six inches, had no doors or guards preventing access to the clean-out holes. After several attempts, Wild dislodged the hay and the machine began functioning again. Later that day, when the feeder again jammed with hay, plaintiff stuck his hand into the opening several times to dislodge the hay, as he had seen Wild do earlier. Plaintiff testified that he felt “real uneasy” about sticking his hand into the hole and that he thought doing so involved “some danger.” On the third attempt, plaintiff’s hand got caught in the “pinch point” between the belt and the power roller. Plaintiff’s hand was crushed and severely burned, requiring skin grafts and the amputation of several fingers.

Plaintiff testified that he read and followed all the operating instructions. Plaintiff knew there were rollers inside the feeder’s conveyor belt, knew their approximate location and knew that one could access the rollers through the clean-out hole. Plaintiff also knew that the wagon bore a warning which cautioned users to disengage the engine before cleaning or servicing and knew that this warning applied to all farm equipment. He stated that he would not have placed his hand inside the hole if there had been a warning sticker on the feeder itself.

The parties do not dispute that there were no warning signs on the bunk feeder to caution users about the unguarded clean-out hole. Nor did the owner’s manual contain instructions regarding the clean-out hole.

Plaintiff’s expert, Dror Kopernick, a mechanical engineer specializing in machine safety, testified that the feeder was defective and unreasonably dangerous because the clean-out hole was unguarded and allowed access to the “pinch point”; the feeder lacked a warning advising of the danger of the clean-out hole; and the feeder failed to comply with all the applicable industry standards.

Navistar’s expert, Randall Swanson, an expert in farm safety, testified that the feeder’s design was safe and complied with applicable industry standards, and that sufficient warnings were provided. He further testified that the pinch point on the feeder was adequately guarded and complied with the American Society of Agricultural Engineers (ASAE) standard which requires that the pinch point be guarded from accidental or inadvertent conduct. Prior to Swanson’s testimony, the trial court denied plaintiff’s motion in limine to bar Swanson from rendering an opinion on the inadvertency of plaintiff’s conduct. According to Swanson, after plaintiff intentionally inserted his hand into the clean-out hole, his conduct could not be deemed “inadvertent.”

Plaintiffs strict liability claim against Navistar alleged that the bunk feeder was defective because it lacked warnings near the clean-out hole and because the bunk feeder had no guard over the clean-out hole near the drive roller. Plaintiff sought recovery against Wild, the farmer who owned the equipment and employed plaintiff, for his negligence in supervising plaintiff.

Prior to trial, the trial court granted plaintiff’s motion in limine precluding Navistar from asserting, suggesting or implying that plaintiff’s injuries were caused by plaintiff’s inattentive, negligent or careless conduct or by any misuse of the bunk feeder. These orders did not apply to Wild. The trial court denied plaintiff’s motion in limine to bar evidence or argument that plaintiff assumed the risk of his injuries. At the close of the evidence, the trial court directed a verdict in plaintiff’s favor on Navistar’s affirmative defense of assumption of risk. The trial court subsequently denied plaintiff’s request to instruct the jury regarding the directed verdict on assumption of risk, stating that plaintiff’s counsel would “cover that in closing arguments.” During closing arguments, over plaintiff’s objection, Navistar repeatedly referred to plaintiff’s conduct and knowledge of the dangers of the machine, arguing that plaintiff’s conduct, not its product, was a proximate cause of the injuries. Navistar also argued that the product was not unreasonably dangerous.

On appeal, plaintiff contends that Navistar’s references during closing argument to plaintiff’s knowledge and conduct violated the trial court’s prior in limine order and its directed finding for plaintiff on Navistar’s assumption of risk defense, and thus, constituted reversible error.

A violation of an order granting a motion in limine can be the basis for a new trial only if the order is specific and the violation is clear. (In re Estate of Loesch (1985), 134 Ill. App. 3d 766, 481 N.E.2d 32.) When the likelihood of prejudice is great, the violation of an order in limine is reversible error. (Shehy v. Bober (1979), 78 Ill. App. 3d 1061, 398 N.E.2d 80.) Moreover, we will reverse a judgment based upon errors in closing argument when the errors are clearly improper and prejudicial. Ferry v. Checker Taxi Co. (1987), 165 Ill. App. 3d 744, 520 N.E.2d 733.

In this case, the court granted plaintiff’s pretrial motions in limine which precluded Navistar from arguing or implying that plaintiff’s conduct was inattentive, negligent or careless or that plaintiff misused the bunk feeder. Despite the specificity and clarity of the order, Navistar’s counsel nonetheless argued as follows during closing argument:

“NAVISTAR’S COUNSEL: Mr. Wille admitted that he knew that before he stuck his hand in the clean-out hole. He knew that there were moving parts inside of the opening. He knew he could get hurt—
MR. WEINSTEIN [Plaintiff’s attorney]: Objection, your Honor, to this line of argument. There is no assumption of risk in this case. His conduct is not at issue.
THE COURT: You may proceed.
NAVISTAR’S COUNSEL: He admitted in court that before he put his hand in that hole he knew it was dangerous. He admitted in court that before he put his hand in the hole he knew he could get hurt.
He admitted in court that he knew approximately where the drive roller was before he put his hand in the cleanout hole.
He didn’t shut the engine off to the tractor, he didn’t turn the PTO lever to the off position.
He knew there were moving parts inside that bunk feeder. He knew it was dangerous to stick his hand in there near those moving parts. He knew he could get hurt.
He knew he had to shut off the machinery before servicing it but he didn’t shut it off. And he did stick his hand into the moving parts and it was dangerous. And his hand did get caught and he was injured.
* * *
MR. WEINSTEIN: Your Honor, objection—
NAVISTAR’S COUNSEL: -and he did not shut the engine off to tractor.
THE COURT: What is your objection? (WHEREUPON, a conversation was had off the record).
THE COURT: Overruled.
* * *
NAVISTAR’S COUNSEL: So why did this accident happen? It happened because Mr. Wille ignored his own warning and he took what he knew to be the wrong — he did what he knew to be the wrong thing. He violated the basic rule of the farm safety he already knew about, ‘Don’t Stick Your Hand Near Moving Parts.’ ”

The record reveals approximately 11 pages of argument concerning plaintiff’s conduct. By focusing on what plaintiff knew and what plaintiff did, Navistar improperly argued that plaintiff voluntarily encountered a known danger and assumed the risk of his injuries. Such argument clearly contradicted the trial court’s prior in limine orders which specifically precluded reference to plaintiff’s conduct. We believe that the likelihood of prejudice from Navistar’s violation of the in limine orders was great and therefore constituted reversible error. On this basis, we remand the case for a new trial on Navistar’s liability.

We also conclude that the trial court committed reversible error in refusing to inform the jury about its directed finding for plaintiff on the assumption of risk defense as to Navistar. In denying plaintiff’s request for such an instruction, the trial court asserted that plaintiff’s counsel “would cover that in [closing argument], and then [the jury] will get the instruction.” A party is entitled to have the jury informed about the issues presented, the applicable legal principles and the facts that must be proved to support a verdict. (Erickson v. Muskin Corp. (1989), 180 Ill. App. 3d 117, 535 N.E.2d 475.) In reviewing the propriety of instructions on appeal, we must consider them as a whole in determining whether they are clear enough so as not to mislead and whether they fairly and accurately state the applicable law. (Erickson v. Muskin Corp., 180 Ill. App. 3d 117, 535 N.E.2d 475.) Giving or denying jury instructions is in the trial court’s discretion, and the refusal to give instructions will result in new trial only where a party shows serious prejudice to his right to a fair trial. (Thompson v. Abbott Laboratories (1990), 193 Ill. App. 3d 188, 549 N.E.2d 1295; In re Estate of Loesch, 134 Ill. App. 3d 766, 481 N.E.2d 32.) We believe that the trial court’s refusal to inform the jury about its directed finding for plaintiff on the assumption of risk defense offered by Navistar misled the jury by failing to fully set forth the applicable law and seriously prejudiced plaintiff’s right to a fair trial.

As the trial court anticipated, plaintiff’s counsel told the jury during closing argument that the assumption of risk defense did not apply to Navistar and that plaintiff’s negligence was only significant with respect to plaintiff’s claim against Wild. The trial court, however, did not inform the jury about its directed finding on assumption of risk, or define such concept for the jury. Moreover, despite plaintiff’s directed finding on the assumption of risk defense, the court permitted Navistar’s counsel to argue at length that plaintiff’s conduct caused his injury. We believe that by allowing Navistar to vigorously present such argument to the jury over plaintiff's objection, the trial court tacitly indicated to the jury that it could consider plaintiff’s conduct as to Navistar. Moreover, despite plaintiff’s counsel’s remarks during closing argument regarding the inapplicability of the assumption of risk defense, the jury could construe such statements as advocacy, not “law,” especially given Navistar’s focus on plaintiff’s conduct. Taken as a whole, we believe that the absence of instructions, combined with Navistar’s argument emphasizing plaintiff’s conduct, failed to accurately and fairly inform the jury in this case that it could not consider plaintiff’s conduct in determining Navistar’s liability. As such, we find that prejudice resulted which requires us to reverse and remand this cause for a new trial.

Navistar concedes on appeal that in closing argument it asserted that plaintiff was a proximate cause of his injuries, but maintains that such argument was proper because causation was at issue in the case. It is well established that a strict products liability plaintiff must prove that his injury resulted from an unreasonably dangerous condition of the product. (Rios v. Navistar International Transportation Corp. (1990), 200 Ill. App. 3d 526, 558 N.E.2d 252.) Navistar maintains that plaintiff, and not any condition of defendant’s product, was a proximate cause of plaintiff’s injuries and that it was properly permitted to argue this in closing argument. We believe, however, that after the trial court entered the in limine order barring Navistar from arguing plaintiff’s conduct, and then directed a finding for plaintiff on assumption of risk, Navistar was barred from making plaintiff’s knowing and intentional conduct an issue, as it forcefully did during closing argument. As such, we reject its attempt to cloak the argument as one of sole proximate cause. Moreover, because we conclude that such extensive references and argument likely confused the jury, we find that the comments were highly prejudicial.

Because we remand this case, we consider several other issues that will likely arise on remand. Plaintiff claims that the trial court erred in refusing to instruct the jury as follows on the applicable ASAE standard:

“If you decide that Navistar failed to comply with these standards, you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not the bunk feeder was unreasonably dangerous.”

The court rejected plaintiff’s instruction as “verbose” and relied instead upon Navistar’s non-Illinois Pattern Jury Instructions (IPI) instruction, which provided as follows:

“[Y]ou may consider whether [the product] complied with relevant industry standards. A standard is relevant if it applies to the equipment and the use of that equipment involved in a particular case.”

We do not believe that the proffered instruction failed to advise the jury that compliance with the standard was only one factor to be considered. Rather, the instructions as a whole fairly and accurately informed the jury of the various factors to be considered in determining whether Navistar’s product was unreasonably dangerous. A trial court has considerable discretion in determining the form of an instruction (Ralston v. Plogger (1985), 132 Ill. App. 3d 90, 476 N.E.2d 1378), and we cannot say that the trial court erred in giving Navistar’s instruction on the industry standard.

We also reject plaintiff’s assertion that the trial court erred in refusing to instruct the jury on a manufacturer’s nondelegable duty. Plaintiff tendered this instruction in anticipation of Navistar’s argument that Wild’s failure to properly instruct plaintiff caused the injury. Here, the trial court instructed the jury separately in the elements required to support plaintiff’s action against Navistar and against Wild. Moreover, the court instructed the jury: “You will decide each defendant’s case separately as if each were a separate lawsuit.” The court also informed the jury as follows:

“If you decide that the plaintiff has proved all the propositions of his case, against defendant Navistar, then it is not a defense that the defendant, Navistar, did not create the condition which rendered the bunk feeder unreasonably dangerous and that the condition of the bunk feeder existed before the bunk feeder came under the control of defendant, Navistar.”

Although these instructions do not specifically describe Navistar’s “nondelegable duty,” we conclude that these instructions as a whole clearly advised the jury as to Navistar’s duty and the applicable law. As such, no others were needed. See Erickson v. Muskin Corp., 180 Ill. App. 3d 117, 535 N.E.2d 475.

We also consider plaintiff’s contention that the trial court improperly allowed Navistar’s expert, Swanson, to testify about the inadvertency of plaintiff’s conduct. Plaintiff’s expert, Kopernick, testified that the feeder was unreasonably dangerous because the clean-out hole allowed access to an unguarded “pinch point.” In so concluding, Kopernick relied upon an ASAE safety standard which requires in pertinent part as follows:

“The acute entry angles of exposed gears, belts, and chain drives and idlers shall be covered by shields, rods, mesh or other portions of the machine to minimize the possibility of inadvertent contact.” (Emphasis added.)

Kopernick quoted this standard, tendered copies to the jury and explained why he believed that plaintiff’s contact was inadvertent. Kopernick concluded that the feeder was unreasonably dangerous because “[the pinch point] was not guarded against accidental contact.” Because the inadvertency of plaintiff’s contact relates directly to the applicability of this safety standard and the determination of whether the feeder was unreasonably dangerous, we believe that Swanson’s opinion would have been helpful to the jury and that Navistar was entitled to offer such testimony. We conclude that the trial court properly allowed Swanson to offer his opinion as to the inadvertency of plaintiff’s conduct.

Finally, we must consider plaintiff’s contention that he is entitled to a judgment notwithstanding the verdict.

A judgment notwithstanding the verdict is appropriate only where the evidence when viewed in a light most favorable to the opponent so overwhelmingly favors the movant that no contrary verdict can stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504; Ziekert v. Cox (1989), 182 Ill. App. 3d 926, 538 N.E.2d 751.

To recover for strict liability in tort, a plaintiff must prove that the product was unreasonably dangerous and that plaintiff’s injuries resulted from such condition. (West v. Deere & Co. (1990), 201 Ill. App. 3d 891, 559 N.E.2d 511.) Whether a product is defective, and therefore, unreasonably dangerous, is ordinarily a fact for the jury. (Renfro v. Allied Industrial Equipment Corp. (1987), 155 Ill. App. 3d 140, 507 N.E.2d 1213.) Plaintiff must also prove that his injury proximately resulted from the product’s alleged defective condition (Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 508 N.E.2d 1201), and a legal inference of defectiveness may not be drawn merely from evidence that an injury occurred. Artis v. Fibre Metal Products (1983), 115 Ill. App. 3d 228, 450 N.E.2d 756.

Because of the conflicting testimony, there was sufficient evidence for the jury to conclude that the feeder was not unreasonably dangerous or that the feeder did not proximately cause plaintiff’s injuries. Plaintiff’s expert testified that the feeder was unreasonably dangerous because the clean-out hole allowed access to the nip point and that the feeder failed to comply with all applicable industry standards. Such evidence was substantially countered, however, by Navistar’ s expert, who testified that the nip points were adequately shielded and conformed to the relevant industry standards. Although the experts offered contrary opinions, the weight to be assigned to each expert was for the jury to decide. (Rybak v. Provenzale (1989), 181 Ill. App. 3d 884, 537 N.E.2d 1321.) Where experts offer divergent conclusions, as here, the jury is entitled to believe one expert over the other. (See Loitz v. Remington Arms Co. (1988), 177 Ill. App. 3d 1034, 532 N.E.2d 1091; Martin v. Zucker (1985), 133 Ill. App. 3d 982, 479 N.E.2d 1000.) We cannot conclude that the evidence so overwhelmingly favored plaintiff that the verdict for Navistar cannot stand.

We find that plaintiff is entitled to a new trial on the issue of Navistar’s liability. Plaintiff agrees that he cannot recover a judgment from Navistar in excess of $122,500, the amount deducted from the judgment entered against Wild.

Accordingly, the judgment in favor of Navistar is reversed, and the cause is remanded for a new trial in accordance with the holdings of this opinion.

Reversed and remanded.

RAKOWSKI, P.J., and LaPORTA, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    ALLAN B. LEWIS, Special Adm’r of the Estate of Shara G. Lewis, Deceased, Plaintiff-Appellant, v. RAZZBERRIES, INC., d/b/a Razzberries Lounge, et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—91—0067
    Opinion filed December 6,1991.

      Corboy & Demetrio, P.C., of Chicago (Kevin G. Burke, of counsel), for appellant.
    Querrey & Harrow, Ltd., of Chicago (Michael Resis, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Allan B. Lewis, special administrator of the estate of Shara B. Lewis, filed a complaint sounding in negligence against defendant, Razzberries, Inc., doing business as Razzberries Lounge, Richard E. Smith and James Karamaniolas. In this alleged wrongful death action, plaintiff’s decedent was shot to death by a patron, Edward Siegelman, in a parking area adjacent to Razzberries. Plaintiff appeals the trial court’s grant of summary judgment in favor of Razz-berries, alleging that it owed a duty of care to protect against reasonably foreseeable criminal acts; that defendant voluntarily assumed a duty to provide protection; and that the tavern owner had sufficient notice of the potential risk of danger to plaintiff’s decedent. (Siegelman was later convicted of involuntary manslaughter and sentenced to a term of imprisonment.) (Judgment was entered in favor of Razzberries, and no mention is made of Smith and Karamaniolas in this appeal.)

Josephine Jardine testified at Siegelman’s criminal trial that on December 11, 1984, she met with plaintiff’s decedent around 9:30 p.m. in Streamwood, Illinois. The two women proceeded to a local bar where they drank a couple of glasses of wine. Thereafter, around midnight, they drove Jardine’s car to Razzberries, located on the corner of Higgins and Bartlett Roads near South Barrington, Illinois. Razz-berries did not provide valet parking, nor was there a charge to patrons for parking. Jardine parked her car in an area which was neither paved nor improved with lines designated for the parking of vehicles. According to a plat of survey and title examination introduced into the record, Jardine’s car was parked 23 feet off the southwest corner of the property and within the public right-of-way off Higgins Road. There were no signs delineating the property owned by Razzberries, nor were there any signs posted indicating the areas where it was permissible for patrons to park.

As she parked, Jardine noticed a familiar car owned by Siegelman, whom she had previously dated. Siegelman arrived at Razzberries at approximately 9 p.m. According to A1 Andrews, the manager of Razzberries, Siegelman appeared very depressed and told him that he wanted to “hang one on” that evening.

Upon entering the tavern, Jardine stated that she and plaintiff’s decedent were approached by Siegelman, and that he began to make threatening remarks to her. Jardine asked Siegelman to leave them alone. At one point, Siegelman grabbed Jardine’s arm and told her that “I’m going to shoot you when you leave here.” Jardine was not afraid of Siegelman; rather, she became aggravated and annoyed at him. Jardine did not inform any of the tavern employees or the police about Siegelman’s threats because she did not believe that Siegelman would harm her.

At approximately 1 a.m., Jardine and plaintiff’s decedent decided to leave the tavern. Jardine indicated in her discovery deposition that Norman Richko, the bartender on duty, wanted to have an employee escort the women to their car. Jardine saw that Richko was busy fixing drinks for other patrons, and she waited approximately 20 minutes. While she was waiting for the escort, Siegelman again approached her, grabbed her arm and told her that he wanted her one more time. After Jardine rebuffed Siegelman’s advances, he angrily walked back toward a corner of the bar. Jardine decided to wait no longer because she believed she had enough time to get into her car as she was parked near the building. The two women walked quickly to the car.

Jardine unlocked the car and entered the driver’s seat while plaintiff’s decedent walked around to the passenger’s side. At that point, Siegelman began pounding very hard on the driver’s window with both fists. Siegelman then walked away for approximately 5 to 10 seconds. After checking that plaintiff’s decedent was safely inside the car, Jardine locked the door.

As Jardine attempted to put the key into the ignition, Siegelman again returned and began pounding on the car window. At that point, Jardine opened the car door. Siegelman suddenly pulled out a gun and leaned into the car. Jardine attempted to push the gun away from her. During this time, plaintiff’s decedent was seated to her right and began screaming as she also tried to push the gun away. During the course of the struggle the gun went off once, fatally wounding plaintiff’s decedent.

Jardine further testified in her discovery deposition that prior to that evening, Siegelman had never threatened her. She described him as “nice, kind, generous and then when I wanted to end the relationship, he was just like clingy, and I don’t like clingy people.” Siegelman had never struck Jardine. Jardine further testified that while Siegelman threatened her that evening, he did not tell her that he had a gun, and she had no reason to believe that he possessed a gun. According to Jardine, she was “afraid of a beating, not a gun.”

Defendant Richard E. Smith stated in his discovery deposition that Razzberries had established a policy wherein employees frequently escorted female patrons to their cars at their request as a courtesy. In order to ensure the safety of their female patrons, employees would watch through the front door while they walked to their cars, regardless of where they were parked.

Jardine acknowledged that she was aware of this policy, and although she had previously patronized Razzberries alone, she had never requested an escort. Neither Jardine nor plaintiff’s decedent asked any of the staff at Razzberries to eject Siegelman on the night of the offense. Jardine did not see the bouncer when they were leaving the bar, and she did not wait for an escort because it “was taking too long.” She became anxious to leave because she noticed Siegelman becoming angrier.

Richko, the bartender, testified that Siegelman approached Jar-dine while she sat with plaintiff’s decedent in front of his station, and asked her if she could talk to him. Jardine indicated that she was not interested in talking to him and that she just wanted to be friends.

Later in the evening Siegelman again approached her, at which time she indicated that she did not want to be bothered and that she wanted to have a drink and be left alone. Richko asked Siegelman to return to his seat and sit down, as Jardine was not interested in speaking with him. Richko told Siegelman to leave Jardine alone because she did not want anything to do with him; that she just wanted to be his friend and that he was only embarrassing himself in front of the other people. Siegelman agreed.

A short time later, Siegelman approached Jardine for a third time and began speaking to her in a much louder tone. Richko detected anger because Jardine refused to speak with him and Siegelman cursed her. He then returned to his bar stool and ordered another drink.

Siegelman next approached Jardine while she was dancing with plaintiff’s decedent on the dance floor. Jardine then danced with Siegelman. Richko signaled to Andrews to watch Siegelman and Jar-dine to be sure that he did not become verbally or physically abusive to her.

Richko further testified that while he was mixing drinks, he saw the girls get up and put on their coats. Richko looked for Andrews to watch the women go to the car or escort them to the car because he thought there might be trouble based on the events of the night. However, Richko was unable to locate Andrews because the bar was so crowded. Richko observed Siegelman get up from the bar and walk outside.

Richko further stated that he did not believe that Seigelman posed any threat, nor was he aware that Siegelman carried a gun. Neither Jardine nor plaintiff’s decedent conveyed to Richko that Seigelman had threatened either of them. Siegelman never presented a problem prior to that night. Richko described him as “a gentleman, very happy.” Richko was also unaware of any violence in Razzberries’ - parking lot prior to this incident.

Plaintiff’s second amended complaint consisted of three counts. Only count I is at issue in this appeal. In that count, plaintiff alleged that defendant failed to protect plaintiff’s decedent from attack by Siegelman when it knew or should have known that he was a threat to her safety; that Siegelman was allowed to remain within the premises when Razzberries knew or should have known that he was a threat to the safety of the patrons; and that defendant failed to take any affirmative action whatsoever to protect their patrons from the conduct or misconduct of Siegelman.

The trial court granted summary judgment in defendant’s favor on count I, finding that the tavern owner did not owe a duty of care beyond the premises owned or controlled by it. Additionally, the trial court concluded that Razzberries did not voluntarily assume a duty to escort plaintiff’s decedent and Jardine to the car.

Initially we note that summary judgment may be granted when the pleadings, depositions, admissions on file and affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).

Plaintiff contends that defendant owed a duty to protect plaintiff’s decedent against reasonably foreseeable criminal acts of third parties occurring outside the property line used as access to the tavern: Plaintiff argues that the extent of this duty cannot be limited by unknown or unseen legal boundaries, and because defendant took commercial advantage of the use of this property, it must assume the corresponding duty to provide protection onto the property.

As support for his contention, plaintiff relies upon Cooley v. Makse (1964), 46 Ill. App. 2d 25, 196 N.E.2d 396, for the proposition that the duty of a property owner to invitees upon the premises carries with it a corollary duty to get such invitees safely on or off the premises. In Cooley, the court held that the defendant-owner and the proprietor of the tavern building were liable for injuries sustained by a patron when he tripped and fell on a defective brick walk, within the city’s easement, in front of the tavern property. Plaintiff also cites Smith v. Rengel (1981), 97 Ill. App. 3d 204, 422 N.E.2d 1146, wherein the tenant’s guest sustained injuries when the refrigerator he was moving fell on him when he stepped into a hole on the property adjacent to the rented premises’ sidewalk. In that case, this court held that the duty owed by a landlord to tenants and their invitees and guests extends beyond the naked and precise property lines to include means of ingress and egress. See also McDonald v. Frontier Lanes, Inc. (1971), 1 Ill. App. 3d 345, 272 N.E.2d 369; Cochran v. Great Atlantic & Pacific Tea Co. (1990), 203 Ill. App. 3d 935, 561 N.E.2d 229.

We find, however, that the distinguishing factor between the cases cited by plaintiff and the present case is that we must narrow our focus to determine whether a duty of care arises when a third party is injured through a criminal attack off the legal boundaries in an area adjoining the premises. Toward this end, we find several Illinois cases instructive.

In Mitchell v. Archibald & Kendall, Inc. (7th Cir. 1978), 573 F.2d 429, the court of appeals, interpreting Illinois law, held that defendant did not owe a duty to its business invitees to protect against criminal attacks by third persons while the invitee was parked on a public thoroughfare adjacent to defendant’s business premises. In that case, the plaintiff, accompanied by his wife and two grandchildren, drove a truckload of produce to defendant’s warehouse. Defendant’s employees were already unloading a truck in the receiving dock area, and therefore, directed plaintiff to remain in his truck and park it in the area immediately opposite of its warehouse until it could be unloaded, despite their knowledge that repeated criminal acts had occurred near the premises. While plaintiff was waiting, unknown assailants accosted and attempted to rob him. When plaintiff refused to comply with the robbers’ demands, he was seriously injured by a shotgun blast in the face.

Despite the affirmative conduct of defendants in instructing plaintiff to park in an area where they reasonably knew plaintiff would be in danger of criminal attack, the court in Mitchell held that a possessor of land is subject to liability to business invitees “while they are upon the land.” Mitchell, 573 F.2d at 437.

The court held that in Illinois, the Restatement (Second) of Torts section 344 would control. That section provides in relevant part:

“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons ***.” Restatement (Second) of Torts §344 (1965).

This court has also had occasion to analyze whether a tavern owner owes a duty of care to a patron who is injured outside the boundaries of the premises. In Walton v. Spidle (1985), 137 Ill. App. 3d 249, 484 N.E.2d 469, the plaintiff sought damages for injuries received when he was hit by a thrown brick while he was standing on the steps of a building in which defendant operated a tavern. While acknowledging the general principle that a tavern keeper has a duty to use reasonable care to protect business invitees on its premises from misconduct of third persons, this court looked for guidance to the Restatement (Second) of Torts section 314A. Comment c to that section provides in pertinent part:

“A carrier is under no duty to one who has left the vehicle and ceased to be a passenger, nor is an innkeeper under a duty to a guest who is injured or endangered while he is away from the premises. Nor is a possessor of land under any such duty to one who has ceased to be an invitee.” Restatement (Second) of Torts §314A, comment c, at 119 (1965).

Accordingly, this court held that the tavern owner owed no duty or protection to the patron at the time of his injury. Similarly, other cases, including Badillo v. De Vivo (1987), 161 Ill. App. 3d 596, 515 N.E.2d 681 (no duty where plaintiff attacked by third party one-half block away from defendant’s property), and St. Phillips v. O’Donnell (1985), 137 Ill. App. 3d 639, 484 N.E.2d 1209 (operator of tavern did not have duty to protect patron, who was assaulted in common parking area by another patron who had been ejected from tavern), demonstrate this court’s reluctance to extend a duty of care to patrons who are injured in incidents occurring outside the legal boundaries of the tavern.

Applying these principles to the circumstances of this case, we find that defendant did not owe plaintiff’s decedent a duty of care for the wrongful death which indisputably occurred 23 feet beyond the boundaries of the property owned by defendant. From the time plaintiff’s decedent left defendant’s legal boundaries, she was no longer owed a duty of care as a business invitee. While plaintiff makes repeated references to Ember v. B.F.D., Inc. (Ind. Ct. App. 1986), 490 N.E.2d 764, as support for his position that a duty should be recognized in instances when the activity involves use of the adjoining areas to defendant’s commercial advantage, we find ample Illinois authority holding that a duty of care does not extend beyond the tavern owner’s legal boundaries.

Plaintiff next contends that defendant assumed a duty to provide protection to the plaintiff’s decedent. Specifically, plaintiff argues that Razzberries voluntarily undertook a duty to escort Jardine and plaintiff’s decedent to their car on the night of the offense because of its policy that, upon request, it provided female patrons with escorts to their cars as a courtesy.

The terms “misfeasance” and “nonfeasance” distinguish between not exercising reasonable care when acting, regardless of whether a duty to act exists, and not performing voluntary tasks in all instances, where there is no duty to act. Liability arises from misfeasance (e.g., Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769), but not from nonfeasance (e.g., Chisolm v. Stephens (1977), 47 Ill. App. 3d 999, 365 N.E.2d 80). In this case, defendant’s conduct can be characterized only as nonfeasance because it did not voluntarily and without request escort the women from the tavern. As such, plaintiff cannot prevail on the theory of voluntary assumption of a duty. Indeed, the women left the premises without requesting an escort after the bartender’s offer to provide one.

Plaintiff finally asserts that defendant had sufficient notice of the potential risk of danger to place defendant on notice of the reasonable foreseeability of a criminal attack upon Jardine and plaintiff’s decedent. In Morgan v. Dalton Management Co. (1983), 117 Ill. App. 3d 815, 454 N.E.2d 57, this court determined that reasonable foreseeability must be judged by what was apparent to defendant at the time of the complained-of conduct, and not by what may appear through hindsight.

Upon review of the record, we do not find that defendant could have reasonably foreseen that Siegelman would have resorted to the drastic behavior that resulted in the death of plaintiff’s decedent. We first take note of the failure of Jardine or plaintiff’s decedent to alert the tavern employees that Siegelman had made threats to Jar-dine. While Siegelman voiced threats to Jardine, she stated in her deposition that she was not afraid that he would harm her; rather, she became aggravated and annoyed by him. Jardine also testified that Siegelman did not tell her that he had a gun, nor did she have reason to believe that he carried one.

Although Richko, the bartender, was aware that Siegelman approached Jardine on several occasions, and that the verbal exchanges became increasingly heated, we do not find that conduct sufficient for him to conclude that Siegelman was likely to become violent. Indeed, Richko stated that Siegelman never presented a problem prior to that night, and described him as a gentleman.

It is also significant that foreseeability is not the only element necessary to establish duty; the court must also consider “[t]he likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant.” (Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, 233.) This court has repeatedly refused to require a business operator to protect its patrons from injuries that occur after the patron leaves the premises because it places an unjustifiable burden on the operator and on the police force. (Badillo, 161 Ill. App. 3d 596, 515 N.E.2d 681; Walton v. Spidle, 137 Ill. App. 3d 249, 484 N.E.2d 469; Yangas v. Charlie Club, Inc. (1983), 113 Ill. App. 3d 398, 447 N.E.2d 484; Gustafson v. Mathews (1982), 109 Ill. App. 3d 884, 441 N.E.2d 388.) Because it would obligate all business operators to police the streets so as to ensure their patrons’ safe passage to their cars or even to their homes, this court has refused to extend liability to protect against assaults or altercations occurring after a patron leaves the owner’s property.

For the foregoing reasons, the judgment of the circuit court of Cook County in granting summary judgment in favor of Razzberries on count I of plaintiff’s complaint is affirmed.

Judgment affirmed.

EGAN and LaPORTA, JJ., concur.


author: JUSTICE RIZZI

text:
    MARILYN B. COWHEY, Plaintiff-Appellant, v. BERNARD OSTROWSKY, Defendant-Appellee.
    First District (3rd Division)
    No. 1—90—0311
    Opinion filed December 11,1991.
    Rehearing denied January 14,1992.

      William C. Coughlin, of Chicago, for appellant.
    Bernard Ostrowsky, of Chicago, appellee pro se.

   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Marilyn B. Cowhey brought this legal malpractice, misrepresentation and breach of contract action against defendant Bernard Ostrowsky, her former attorney. Following Ostrowsky’s failure to file an appearance or answer the complaint, the trial court entered an order finding Ostrowsky in default. Subsequently, a default judgment was entered against Ostrowsky and in favor of plaintiff in the amount of $150,000. Ostrowsky filed a motion to vacate the judgment pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401), and the trial court entered an order vacating the default judgment. On appeal, plaintiff contends that the trial court abused its discretion when it entered an order vacating the default judgment because Ostrowsky failed to prove by a preponderance of the evidence that he had a meritorious defense or that the entry of judgment was not due to his own lack of diligence. We reverse.

On or about November 15, 1980, plaintiff was involved in an automobile accident with Frank S. Sladek in Lyons, Illinois. On or about June 1, 1981, plaintiff retained Ostrowsky to prosecute a lawsuit against Sladek for the personal injuries she sustained in the collision. On or about November 15, 1982, Ostrowsky filed a complaint against Sladek on plaintiff’s behalf in the circuit court of Cook County. During the prosecution of this action, Ostrowsky failed to respond to opposing counsel’s discovery requests, and on August 23, 1983, the court entered an order dismissing plaintiff’s lawsuit against Sladek with prejudice because of Ostrowsky’s failure to respond to discovery orders or comply with applicable discovery rules. Ostrowsky never attempted to vacate the dismissal order.

Periodically throughout the next five years, plaintiff made inquiry to Ostrowsky about the progress and status of her lawsuit against Sladek. Ostrowsky concealed the fact that plaintiff’s action against Sladek had been dismissed, repeatedly assuring plaintiff that her case was proceeding in a satisfactory manner. On September 9, 1988, plaintiff contacted the clerk of the circuit court to determine the status of her lawsuit. The clerk informed her that her case against Sladek had been dismissed in 1983.

Plaintiff retained another attorney to prosecute an action against Ostrowsky for legal' malpractice, misrepresentation and breach of contract in connection with his handling of plaintiff’s lawsuit against Sladek. Plaintiff filed a complaint against Ostrowsky, and he failed to appear or answer the complaint. On May 25, 1989, the trial court entered an order finding Ostrowsky in default, and on June 23, 1989, entered a default judgment against him and in favor of plaintiff in the amount of $150,000. On September 28, 1989, Ostrowsky filed a motion to vacate the judgment pursuant to section 2 — 1401 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401.) On January 11, 1990, the trial court entered an order vacating the default judgment and returning the matter for a trial on the merits. It is from this order that plaintiff appeals.

In order to establish a legally sufficient petition under section 2 — 1401 of the Code of Civil Procedure, a petitioner must allege (1) the existence of a meritorious defense or claim; and (2) entry of the judgment must not have been the result of petitioner’s lack of diligence. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401; Demos v. National Bank of Greece (1991), 209 Ill. App. 3d 655, 666, 567 N.E.2d 1083, 1091.) In order to prevail on a section 2 — 1401 petition to vacate a default judgment, the petitioner must show that through no fault or negligence of his own, the failure to defend against the lawsuit was the result of an excusable mistake and that under the circumstances he acted reasonably, not negligently, when he failed to initially resist the judgment. Salazar v. Wiley Sanders Trucking Co. (1991), 216 Ill. App. 3d 863, 871, 576 N.E.2d 552, 557; Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 222, 499 N.E.2d 1381, 1387.

It is clear in the present case that Ostrowsky has failed to prove that the entry of default judgment against him was due to no fault or negligence of his own. He has failed to demonstrate that his failure to defend the lawsuit was due to an excusable mistake rather than negligence, that he acted reasonably under the circumstances, and that his failure to bring a valid defense before the court was due to no fault of his own. Moreover, the record reflects that Ostrowsky has failed to exercise diligence in presenting his defense to the trial court in the underlying action and in filing his section 2 — 1401 petition to vacate the judgment. We, therefore, conclude that the trial court abused its discretion when it entered an order vacating the default judgment.

Accordingly, the order of the circuit court vacating the default judgment against Ostrowsky is reversed.

Reversed.

TULLY and GREIMAN, JJ., concur.


author: JUSTICE McMORROW

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEROME RASGAITIS, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—3897
    Opinion filed December 12,1991.

      Randolph N. Stone, Public Defender, of Chicago (Ronald P. Alwin, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Veronica X. Calderon, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McMORROW

delivered the opinion of the court:

Defendant Jerome Rasgaitis appeals from an order of the circuit court of Cook County that, pursuant to section 104 — 25(g) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 104 — 25(g)), found defendant to be subject to involuntary admission, remanded defendant to the Department of Mental Health and Developmental Disabilities (hereinafter Department of Mental Health) for further treatment for a period of 40 years, and subjected said treatment to the court’s continuing supervision, including court approval of “such matters as conditional release or discharge of the defendant.” On appeal, defendant contends that the circuit court’s order was in error because the State failed to prove that he was subject to involuntary admission. Defendant also raises various challenges to the trial court’s commitment of him for treatment for a period of 40 years. We reverse and remand.

The record reflects the following pertinent procedural history culminating in the circuit court order from which defendant appeals. Defendant was charged with the murder of Matti Griffin on December 1, 1975. He was found unfit for trial on March 9, 1976, and was held for treatment in accordance with section 5 — 2—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 2—2). During this time, the applicable provisions of the Code of Criminal Procedure were amended to provide for a modified procedure in the confinement of an accused found unfit to stand trial. See People v. Raseaitis (1984), 126 Ill. App. 3d 600, 476 N.E.2d 1098.

On December 10, 1981, pursuant to defendant’s request, the court held a fitness hearing, under the new, amended provision to the Code of Criminal Procedure, wherein the court determined that defendant was not fit to stand trial and would not be fit within one year. (Ill. Rev. Stat. 1981, ch. 38, pars. 104 — 23(b), 104 — 28.) The trial court then held a discharge hearing to determine the sufficiency of the State’s evidence to prove defendant guilty of the murder for which he was charged. (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 25(a).) The court found that the defendant was “not guilty” of the murder and imposed a maximum treatment of five years with the Department of Mental Health. (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 25(d).) Defendant appealed from this determination, which this court affirmed in Raseaitis (126 Ill. App. 3d 600).

At the expiration of the five-year treatment period, an additional hearing was held, pursuant to section 104 — 25(g) of the Code, on July 14, 1987. At this hearing, Dr. Gerson Kaplan, psychiatrist at the Psychiatric Institute of the circuit court of Cook County, testified that he examined defendant on June 16, 1987, and reviewed the defendant’s medical, social, and psycho-social history. Dr. Kaplan determined that defendant had a history of mental illness, including psychosis. He noted that during the examination, defendant said that he had been hearing voices for many years and continued to hear voices. Dr. Kaplan testified that defendant exhibited a rather flat affect, had poor eye contact, and that his appearance was messy and disheveled. Defendant’s mental health records indicated that defendant participated very minimally in program activities and that he continued to be rather sloppy.

Dr. Kaplan testified that he considered defendant as currently psychotic and that he was currently unfit for trial and in need of hospital psychiatric care. He testified that he considered defendant a danger to other people and that defendant would be a threat to public safety if defendant were released into society. Dr. Kaplan stated that in his opinion defendant was subject to involuntary admission. He further testified that defendant’s prognosis was poor and that defendant remained severely disturbed. Dr. Kaplan stated that defendant would probably continue to need hospital care for an indefinite period in the future.

The State presented no additional evidence at the hearing, and the defense offered no evidence for the court’s consideration. The trial court determined that defendant continued to be unfit for trial and was subject to involuntary admission to the Department of Mental Health. The court also found that defendant was “a serious threat or danger to the public safety.” The trial court entered an order reciting that, pursuant to section 104 — 25(g) of the Code of Criminal Procedure, defendant was “subject to involuntary admission and a serious threat to the public safety. Accordingly, the defendant is remanded to the [Department of Mental Health] for further treatment for a period of 40 years nunc pro tunc from July 14, 1987. Said treatment is subject to the court’s supervision during the pendency of this 40 year order including court approval of such matters as conditional release or discharge of the defendant.” Defendant’s appeal followed.

Defendant argues that the State failed to prove that he was subject to involuntary admission, or a threat to the public safety, pursuant to section 104 — 25(g)(2). We disagree.

A person is subject to involuntary admission where he is mentally ill and, because of this disability, is either (1) “reasonably expected to inflict serious physical harm upon himself or another in the near future,” or (2) “unable to provide for his basic physical needs so as to guard himself from serious harm.” (Ill. Rev. Stat. 1989, ch. 91½, par. 1 — 119.) An order of involuntary admission is appropriate when the evidence reveals prior dangerous conduct in conjunction with evidence that the respondent remains in need of hospitalized mental treatment. See, e.g., In re Orr (1988), 176 Ill. App. 3d 498, 531 N.E.2d 64; In re Mazzara (1985), 133 Ill. App. 3d 146, 478 N.E.2d 567.

In the instant cause, the record reveals that defendant confessed that he had murdered Matti Griffin. According to the testimony of Dr. Kaplan, defendant suffered from psychosis. Dr. Kaplan stated that, despite over a decade of medical treatment, defendant continued to be psychotic in need of psychiatric care. Dr. Kaplan also testified that defendant’s prognosis is poor, and that he will need psychiatric care for an indefinite period of time. In light of all of these circumstances, we find sufficient evidence to support the trial court’s determination that defendant was subject to involuntary admission and a threat to public safety. The cases cited by defendant are factually inapposite, since neither respondent in those decisions had been charged with a violent crime. In re Cutsinger (1989), 186 Ill. App. 3d 219, 542 N.E.2d 414; In re Cochran (1985), 139 Ill. App. 3d 198, 487 N.E.2d 389.

Although we find sufficient evidence to support the trial court’s determination that defendant was subject to involuntary admission and a threat to public safety, we nevertheless conclude that the trial court erred in ordering that the period of defendant’s treatment, to a maximum of 40 years, commenced upon the date of the court’s hearing on July 14, 1987.

Both section 104 — 23 and section 104 — 25 consider a defendant’s treatment period to commence upon a determination that the defendant is unfit to stand trial. (See Ill. Rev. Stat. 1989, ch. 38, pars. 104— 23, 104 — 25.) Under section 104 — 23, if the trial court determines that the defendant will probably not be fit to stand trial “within one year from the date of the original finding of unfitness, or if at the end of one year from that date the court finds the defendant still unfit,” the court is empowered to hold a discharge hearing pursuant to section 104 — 25. (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 104— 23(b).

At that discharge hearing, the court is authorized to determine the sufficiency of the evidence against the accused. (Ill. Rev. Stat. 1989, ch. 38, par. 104 — 25(a).) If the trial court does not enter an order of acquittal pursuant to the discharge hearing, subsection 104— 25(d) allows the following:

“[T]he defendant may be remanded for further treatment and the one year time limit set forth in Section 101 — 23 shall be extended as follows: ***
If the State sustained its burden of proof on a charge of murder, the treatment period may be extended up to a maximum treatment period of 5 years.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 104-25(d)(2).

Section 104 — 25(g) states that, upon the expiration of an extended period of treatment order in accordance with subsection 104 — 25(d):

“If the defendant continues to be unfit to stand trial, the court shall determine whether he or she is subject to involuntary admission under the Mental Health and Development Disabilities Code or constitutes a serious threat to the public safety. If so found, the defendant shall be remanded to the Department of Mental Health and Developmental Disabilities or to the Department of Rehabilitation Services for further treatment and shall be treated in the same manner as a civilly committed patient for all purposes, except that the original court having jurisdiction over the defendant shall be required to approve any conditional release or discharge of the defendant, for the period of commitment equal to the maximum sentence to which the defendant would have been subject had he or she been c’onvicted in a criminal proceeding.” Ill. Rev. Stat. 1989, ch. 38, par. 104 — 25(g)(2).

Subsection (g)(4) of section 104 — 25 explicitly states, “In no event may the treatment period be extended to exceed the maximum sentence to which a defendant would have been subject had he or she been convicted in a criminal proceeding.” (Ill. Rev. Stat. 1989, ch. 38, par. 104 — 25(g)(4).) Under section 5 — 8—1 of the Unified Code of Corrections, the maximum sentence for murder is 40 years’ imprisonment. Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1.

In light of these provisions, and under the plain language of section 104 — 25(g), the trial court was empowered to remand the defendant to the Department of Mental Health for treatment and the trial court retained jurisdiction to approve defendant’s conditional release or discharge. (Yiadom v. Kiley (1990), 204 Ill. App. 3d 418, 429, 562 N.E.2d 310.) However, as shown in the above quotations, sections 104 — 23 and 104 — 25 consider a treatment period to commence upon the original finding of unfitness. In addition, section 104 — 25(g)(4) states that the defendant’s treatment period cannot be extended beyond the maximum sentence he would have received had he been convicted of murder, i.e., 40 years. Thus, the trial court’s supervisory jurisdiction over the defendant’s conditional release or discharge cannot be computed from the date of the court’s section 104 — 25(g) hearing on July 14, 1987. Rather, the trial court’s supervisory jurisdiction over the defendant’s conditional release or discharge, during defendant’s involuntary admission, began to run from the date of the original finding of defendant’s unfitness to stand trial, which occurred in March 1976.

We note that, in according the defendant the status of a “civilly committed patient,” section 104 — 25(g) anticipates application of the provisions of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1989, ch. 91½, pars. 3 — 700 through 3 — 819) (hereinafter the MHDDC) to the defendant’s involuntary admission and treatment. (Yiadom, 204 Ill. App. 3d at 429.) The record does not disclose whether the appropriate hearing has been held in defendant’s cause. If the appropriate hearing has not been held, the circuit court is directed, on remand, to hold a hearing to determine defendant’s continued need for involuntary admission. “If the circuit court deems [defendant’s] discharge inappropriate, it can again remand him to custody of [the Department of Mental Health] pursuant to section 104— 25(g)(2).” (Yiadom, 204 Ill. App. 3d at 431.) We also note that the MHDDC anticipates periodic hearings to reevaluate the defendant’s continued need for involuntary admission (see Ill. Rev. Stat. 1989, ch. 91½, par. 3 — 813), and that such hearings should be held with regard to defendant’s involuntary admission. (Yiadom, 204 Ill. App. 3d at 431.) In addition, the trial court should hold periodic hearings with respect to the defendant’s continued unfitness to stand trial. (Yiadom, 204 Ill. App. 3d at 430-31, citing People v. Lang (1986), 113 Ill. 2d 407, 444, 498 N.E.2d 1105.) In light of these considerations, the trial court’s order is reversed and the matter remanded for further proceedings.

The remaining arguments raised by defendant have largely been rejected by prior Illinois precedent, to which we continue to adhere in the instant appeal. Contrary to defendant’s claim, he is not entitled to credit for day-for-day good time under section 104 — 25. (People v. Williams (1986), 142 Ill. App. 3d 858, 494 N.E.2d 525.) Also, because section 104 — 25 refers to the maximum sentence defendant would receive if convicted, the defendant cannot “elect” that the court’s supervisory jurisdiction continue for the time period that represents a lesser sentence he might receive upon conviction under the provisions of the former Unified Code of Corrections in effect when the murder was allegedly committed. (See Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(b) (maximum term for murder set at “any term in excess of 40 years”).) The present procedure, in light of our rulings upon review, does not deprive defendant of equal protection or due process under Jackson v. Indiana (1972), 406 U.S. 715, 32 L. Ed. 2d 435, 92 S. Ct. 1845. See Yiadom, 204 Ill. App. 3d 418; Raseaitis, 126 Ill. App. 3d 600; People v. Polachek (1984), 128 Ill. App. 3d 200, 470 N.E.2d 584.

For the reasons stated, the order of the circuit court of Cook County is reversed and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

JOHNSON and LINN, JJ., concur.


author: JUSTICE LINN

text:
    DINO SANTELLI, as Ex’r and Personal Representative of the Estates of James P. Murray, Deceased, and Pearl G. Murray, Deceased, Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—89—2951
    Opinion filed December 12,1991.

      Michael G. Artery, of Clarendon Hills, for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch, and Nina Puglia, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Dino Santelli, as executor of the estates of James and Pearl Murray (decedents), filed a fifth amended complaint in the circuit court of Cook County against defendants, the City of Chicago and the County of Cook. Plaintiff sought damages for the fatal injuries that decedents suffered as a result of an automobile accident.

The trial court struck a portion of the complaint with prejudice and dismissed the city from the action. The court ruled that the complaint failed to state a cause of action against the city. Plaintiff appeals, assigning error to the dismissal.

We reverse the order of the trial court and remand.

Background

In determining whether to allow a motion to dismiss, a court must take all well-pled allegations of fact contained in the complaint, and contained in any attached exhibits incorporated into the complaint, as true and construe all reasonable inferences therefrom in the plaintiff’s favor. (Business Development Services, Inc. v. Field Container Corp. (1981), 96 Ill. App. 3d 834, 836, 422 N.E.2d 86, 89.) Plaintiff’s fifth amended complaint, with an attached exhibit, alleged that on March 24, 1987, Avenue 0 (3435 East) was a public street within the city limits and under the city’s jurisdiction. Sometime after September 1977, Avenue 0 was improved between 114th and 130th Streets by the addition of a raised median strip, which divided the northbound lanes from the southbound lanes. Further, within this section of Avenue 0, an “S” curve ran between approximately 122nd Street on the north and Wolf Lake Boulevard on the south.

The complaint further alleged that on the evening of March 24, 1987, decedents were driving their automobile north on Avenue 0. As decedents were travelling on the “S” curve, an automobile travelling in a southbound lane “struck and crossed over” the raised median strip and collided with decedents’ vehicle. The decedents suffered fatal injuries.

The complaint named as defendants the city and the county, and contained six counts. Counts I through IV were directed against the city. Count I, a wrongful death claim, and count II, a survival claim, were premised on negligence. Plaintiff alleged essentially as follows. It was the city’s duty to remove “hazardous and unreasonably dangerous conditions” that it knew or should have known to exist on its streets, and to exercise reasonable care in the maintenance of its streets. The city knew or should have known that the “raised median strip was inadequate as a physical restraint to prevent collisions and created an unreasonable danger of launching vehicles striking said median strip into the opposite lanes of moving traffic.” The city breached these common law duties by negligently: (a) failing to remove the hazardous and unreasonably dangerous condition, i.e., the raised median strip; (b) maintaining an unreasonably high speed limit, or inadequate signs or lighting, on the “S” curve; or (c) maintaining the “S” curve itself “with improper short sight distances,” or “in an unreasonably slippery condition by allowing stones and gravel to accumulate on [its] surface.” The city’s breach of duty proximately caused decedents’ fatal injuries.

Count III, a wrongful death claim, and count IV, a survival claim, were premised on violations of Illinois Vehicle Code section 11 — 304 (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 304). Plaintiff alleged essentially as follows. The statute imposed on the city a duty to maintain traffic-control devices, i.e., devices that regulate, warn, or guide traffic, on streets within its jurisdiction. The city breached this statutory duty by: (a) failing to install and maintain along the “S” curve a median barrier, various types of traffic signs, or adequate lighting; (b) failing to establish a proper speed limit for the “S” curve; or (c) deviating from the standards and procedures warranted by the Illinois State manual on traffic control devices for authorizing warning signs and setting speed limits. (See Ill. Rev. Stat. 1987, ch. 95½, par. 11— 301.) The city’s breach of duty proximately caused decedents' fatal injuries.

Counts V and VI were directed against the county. Both counts were premised on negligence. Count V, a wrongful death claim, essentially repeated the allegations of count I. Count VI, a survival claim, essentially repeated the allegations of count II.

Plaintiff filed his fifth amended complaint on November 30, 1988. On June 23, 1989, the trial court held a hearing on the city’s motion to strike counts I through IV and dismiss the city from the action. At the close of the hearing, the trial court granted the city’s motion to strike and dismiss. Thus, the county remained as the sole defendant.

Plaintiff timely filed a motion to vacate the trial court’s dismissal of the city from the action. At an October 3, 1989, hearing on the motion, plaintiff tendered a sixth amended complaint. At the close of the hearing, the trial court denied the motion in a final and appealable order. (See 134 Ill. 2d R. 304(a).) Plaintiff appeals.

Opinion

I

Plaintiff claims that the trial court erred in finding that his fifth amended complaint failed to state a cause of action against the city. Courts should liberally construe pleadings, and a motion to dismiss admits all well-pled facts. In considering a motion to dismiss, however, courts are to construe pleadings strictly against the pleader. The granting of a motion to strike and dismiss is within the sound discretion of the trial court. Harvey v. Mackay (1982), 109 Ill. App. 3d 582, 586, 440 N.E.2d 1022,1025.

Our supreme court has explained what a satisfactory complaint must contain:

“To pass muster a complaint must state a cause of action in two ways. First, it must be legally sufficient; it must set forth a legally recognized claim as its avenue of recovery. When it fails to do this, there is no recourse at law for the injury alleged, and the complaint must be dismissed. [Citations.] Second and unlike Federal practice, the complaint, must be factually sufficient; it must plead facts which bring the claim within the legally recognized cause of action alleged. If it does not, the complaint must be dismissed. [Citation.]” People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 308, 430 N.E.2d 1005, 1009.

A

Plaintiff contends that counts I and II set forth a legally recognized claim against the city for negligently failing to remove the hazardous and unreasonably dangerous raised median strip, and for negligently maintaining the “S” curve in an unreasonably dangerous condition. Both plaintiff and the city agree on the applicable legal principles.

The city is a governmental entity subject to the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act or the Act) (Ill. Rev. Stat. 1987, ch. 85, par. 1 — 101 et seq.). Under the Act generally, “a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition.” (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 102(a).) Under the Act specifically, a local public entity is liable if, after it constructs or improves public property, “it appears from its use that [the local public entity] has created a condition that is not reasonably safe.” (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 103(a).) It is settled that the Act does not impose on a municipality any new duties. Rather, the Act simply articulates common law principles that existed prior to its codification. Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 435, 495 N.E.2d 1259, 1264; Warchol v. City of Chicago (1979), 75 Ill. App. 3d 289, 294, 393 N.E.2d 725, 729.

The applicable common law principles have been set forth in many cases over the years. “It is well settled that a city owes a duty to keep its streets and sidewalks safe for the purpose for which they are intended and for the use of those who are themselves exercising ordinary care.” (Thorsen v. City of Chicago (1979), 74 Ill. App. 3d 98, 107, 392 N.E.2d 716, 722.) A municipality is not liable for failing or refusing to improve its streets, sidewalks, bridges, sewers and the like. However, once the municipality undertakes such a project, it is liable when the improvement creates an unreasonably dangerous condition. (American State Bank v. Cude (1975), 30 Ill. App. 3d 206, 207, 331 N.E.2d 825, 825-26; see 19 E. McQuillen, The Law of Municipal Corporations §54.61a (3d ed. 1985).) A dangerous use of an improved street does not render the improvement dangerous. “Liability arises only when the undertaken improvement, itself, creates an unreasonably dangerous condition.” Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, 87, 522 N.E.2d 215, 218, citing Harding v. Chicago Park District (1975), 34 Ill. App. 3d 425, 339 N.E.2d 779.

Likewise, “while a city is not liable for its failure initially to provide improvements such as lights or traffic control devices [citations], once having adopted and embarked upon a plan of public improvements, a city has a duty to maintain those improvements in a condition conducive to the safety of the traveling public [citations].” Thorsen, 74 Ill. App. 3d at 107, 392 N.E.2d at 723; see Johnston v. City of East Moline (1950), 405 Ill. 460, 465-68, 91 N.E.2d 401, 404-05.

Our supreme court explained these principles as follows:

“[The court] is simply saying that when a city creates a hazardous condition and someone is injured as a consequence it must respond in damages, just as others are required to do. *** A municipal corporation, like an individual or a private corporation, is required to exercise its rights and powers with such precautions as shall not subject others to injury. The rule which protects it in the exercise of its governmental functions should not be construed to relieve from liability when the plan devised, if put into operation, leaves the city’s streets in a dangerous condition for public use.” Baran v. City of Chicago Heights (1969), 43 Ill. 2d 177, 181, 251 N.E.2d 227, 229, citing City of Chicago v. Seben (1897), 165 Ill. 371, 46 N.E. 244.

See Note, Tort Liability of Municipal Corporations in Illinois, 1951 U. Ill. L. Forum 637, 644-57.

Applying these principles to the case at bar, we conclude that counts I and II are legally sufficient. The city misapprehends the theories of recovery pled in these counts. Plaintiff did not plead that the city was negligent for failing to initially install a median barrier on Avenue 0; this distinguishes the instant case from Charpentier v. City of Chicago (1986), 150 Ill. App. 3d 988, 502 N.E.2d 366. Plaintiff did not even plead that the city was negligent for failing to replace the raised median strip with a median barrier; this distinguishes the instant case from Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, 522 N.E.2d 215. Rather, plaintiff simply alleged that the raised median strip, itself, constituted an unreasonably dangerous condition, and that the city was negligent for failing to remove it; this distinguishes the instant case from Harding v. Chicago Park District (1975), 34 Ill. App. 3d 425, 399 N.E.2d 779. Plaintiff also alleged that the city was negligent for failing to maintain the “S” curve in a reasonably safe condition. These theories of recovery are in accord with established Illinois law.

Plaintiff also contends that counts III and IV set forth a legally recognized claim against the city for failing to install and maintain various traffic control devices, including a median barrier, traffic signs, or adequate lighting; or for deviating from the standards and procedures contained in the State manual on traffic control devices. Plaintiff based this claim on Illinois Vehicle Code section 11 — 304, which states in pertinent part:

“§11 — 304. Local traffic-control devices. Local authorities *** shall place and maintain such traffic-control devices upon highways under their maintenance jurisdiction as are required to indicate and carry out the provisions of this Chapter, and local traffic ordinances or to regulate, warn, or guide traffic. All such traffic control devices shall conform to the State Manual and Specifications and shall be justified by traffic warrants stated in the Manual.” (Ill. Rev. Stat. 1987, ch. 95½, par. 11— 304.)

This section “ ‘imposes an obligation on local authorities to warn motorists of those hazards which are incident to that portion of a highway which remains under local maintenance jurisdiction.’ ” Fitt v. City of Mattoon (1991), 215 Ill. App. 3d 472, 480, 574 N.E.2d 1275, 1280, quoting Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 448, 404 N.E.2d 213, 219.

The city, however, invokes the Tort Immunity Act. Section 3 — 104 of the Act states as follows:

“§3 — 104. Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to initially provide regulatory traffic control devices, stop signs, yield right-of-way. signs, speed restriction signs, distinctive roadway markings or any other traffic regulating or warning sign, device or marking, signs, overhead lights, traffic separating or restraining devices or barriers.” (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 104.)

Based on section 3 — 104, the city argues that it “is now immune from any liability for failure to post a traffic sign. The Illinois Motor Vehicle Code in no way negates the immunity granted to the City by the Tort Immunity Act for failure to post warning signs on Avenue O.”

The city’s argument accurately reflects recent decisions of this court. In Newsome v. Thompson (1990), 202 Ill. App. 3d 1074, 560 N.E.2d 974, this court noted that the General Assembly substantially broadened Tort Immunity Act section 3 — 104 effective November 24, 1986. (Pub. Act 84-1431, art. I, §2 (1986 Ill. Laws 3740, 3744).) Based on the broadened section 3 — 104, we concluded that “there is no liability for failing to provide traffic-separating devices or barriers or warning signs of any kind.” (Newsome, 202 Ill. App. 3d at 1078, 560 N.E.2d at 977.) We further noted that “Illinois municipalities are now immune from liability for failing to post any traffic warnings whatsoever, including those warning of the absence of traffic-separating barriers or devices.” (Newsome, 202 Ill. App. 3d at 1078-79, 560 N.E.2d at 977.) We note that the Second District Appellate Court reached a contrary conclusion in Dinges v. Gabardi (1990), 202 Ill. App. 3d 732, 560 N.E.2d 21.

In Fitt, the Fourth District Appellate Court was required to determine the effect of Tort Immunity Act section 3 — 104, as amended, on Illinois Vehicle Code section 11 — 304. Based on Newsome, the Fitt court concluded: “While section 11 — 304 of the Code imposes an obligation on local authorities to post warning signs, section 3 — 104 of the Immunity Act immunizes local authorities from any tort liability for failing to fulfil this duty.” Fitt, 215 Ill. App. 3d at 481, 574 N.E.2d at 887.

Applying these principles to the instant case, we conclude that counts III and IV are not legally sufficient. Plaintiff therein alleged that the city breached its statutory duty under Illinois Vehicle Code section 11 — 304 by failing to install various traffic-control devices. However, Tort Immunity Act section 3 — 104 absolved the city of any tort liability for breaching this duty. We hold that counts I and II of plaintiff’s fifth amended complaint are legally sufficient, but counts III and IV fail to state a cause of action against the city.

B

Plaintiff next contends that counts I and II contain sufficient facts to state a cause of action in negligence against the city. It is settled that to state a cause of action, a complaint must contain the facts necessary for the plaintiff to recover. Although a plaintiff need not set out his evidence (Carriage Way West, 88 Ill. 2d at 308, 430 N.E.2d at 1009), mere allegations of legal conclusions are not sufficient. A court must determine from the context of the pleading whether a particular allegation constitutes a fact or conclusion; the determination is based on whether the language gives sufficient information to the opponent and to the court of the character of evidence to be introduced or of the issues to be tried. Morse v. Nelson (1977), 48 Ill. App. 3d 895, 898-99, 363 N.E.2d 167, 169-70.

Applying these principles to the case at bar, we conclude that counts I and II do not contain sufficient facts to state a cause of action against the city for negligently failing to remove the unreasonably dangerous raised median strip and for negligently maintaining the “S” curve in an unreasonably dangerous condition. Those counts do not allege how the raised median strip itself was unreasonably dangerous. They do not allege how the traffic signs, lighting, and other road conditions were inadequate and made the “S” curve unsafe. Although plaintiff need not set out his evidence, counts I and II contain mere legal conclusions, justifying a dismissal. We hold that counts I through IV of plaintiff’s fifth amended complaint fail to state a cause of action; counts I and II are not factually sufficient, while counts III and IV are not legally sufficient. We uphold the trial court’s dismissal of counts I through IV of the fifth amended complaint.

II

Plaintiff also assigns error to the trial court’s denial of leave to file a sixth amended complaint. Section 2 — 616(a) of the Code of Civil Procedure provides that a trial court may allow amendments to the pleadings at any time prior to final judgment on just and reasonable terms as may appear proper to the court. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(a).) “A trial court’s power to allow amendment should be fully exercised in order that litigants may completely present their causes of action [citation], and doubts should be decided in favor of allowance of the amendment.” (Giannini v. First National Bank (1985), 136 Ill. App. 3d 971, 988, 483 N.E.2d 924, 938.) In other words, a trial court should grant leave to amend a complaint unless it is apparent that, even following amendment, no cause of action can be stated. (Juhasz v. Hejna (1985), 139 Ill. App. 3d 35, 38, 487 N.E.2d 113, 115.) “Although the amendment of pleadings is addressed to the sound discretion of the trial court, it should apply the greatest liberality in allowing amendments with the paramount consideration being whether the amendment furthers the interests of justice.” Williams v. Northwestern University (1986), 147 Ill. App. 3d 374, 380, 497 N.E.2d 1226, 1230.

Based on the record before us, we conclude that the trial court should have granted plaintiff leave to amend. We cannot say that, even following amendment, no cause of action can be stated.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and the cause is remanded with directions that the trial court grant plaintiff leave to amend.

Reversed and remanded, with directions.

JIGANTI, P.J., and McMORROW, J., concur.