author: PRESIDING JUSTICE INGLIS

text:
    WILLIAMS BROTHERS CONSTRUCTION, INC., Plaintiff-Appellant, v. THE PUBLIC BUILDING COMMISSION OF KANE COUNTY et al., Defendants-Appellees.
    Second District
    No. 2—92—0973
    Opinion filed April 15, 1993.

      Howard W. Feldman and J. Randall Cox, both of Feldman & Wasser, of Springfield, and James Skaar, of Smith, Landmeier & Skaar, P.C., of Geneva, for appellant.
    James T. Ryan, of Ryan, Nelson & McSherry, of Arlington Heights, for appellee Ockerland Construction Co.
    Stephen Sullivan, of Batavia, for appellees Public Building Commission of Kane County and Board of Trustees of Waubonsee Community College.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

This case involves a construction project sponsored by the Public Building Commission of Kane County (Commission) for the benefit of the Board of Trustees of Waubonsee Community College (Board). Acting on the Board’s recommendation, the Commission awarded the contract for the project to the low bidder, Ockerlund Construction Company (Ockerlund), pursuant to section 20 of the Public Building Commission Act (Building Commission Act) (Ill. Rev. Stat. 1991, ch. 85, par. 1050). Plaintiff, Williams Brothers, Inc., the next-lowest bidder, sued to enjoin the award, arguing that Ockerlund’s bid was non-responsive because Ockerlund failed to list its proposed subcontractors on the bid form. Plaintiff petitioned for a preliminary injunction. After a hearing, the trial court refused to grant a preliminary injunction against the award to Ockerlund.

On interlocutory appeal (134 Ill. 2d R. 307(a)), plaintiff argues that the trial court abused its discretion in refusing the preliminary injunction. Plaintiff argues that it made a sufficient case that Ockerlund’s failure to list its subcontractors was a material and nonwaivable variance from the bid specifications. Therefore, plaintiff concludes, it met the requirements for maintaining the status quo by a preliminary injunction.

We hold that, under the facts of this case, the trial court did not err in denying the preliminary injunction. On the limited record we face, we cannot say that the trial court erred in upholding the Board’s conclusion that Ockerlund’s failure to list its subcontractors with the bid was at worst a nonmaterial variance which did not make Ockerlund’s bid nonreponsive.

Plaintiff’s complaint, filed July 30, 1992, alleged the following: The Commission is a municipal corporation organized under the Public Building Commission Act (Ill. Rev. Stat. 1991, ch. 85, par. 1031 et seq.). The Commission advertised for bids on the project. As part of the public bidding process, the Commission issued bidding documents which, according to plaintiff, required each contractor to list the names of the subcontractors it would use if it received the bid. Ockerlund submitted a bid form which left blank the section entitled “List of Subcontractors.” Plaintiff’s bid listed its anticipated subcontractors. On or about July 16, 1992, the Commission indicated that it would award the contract to Ockerlund.

The complaint alleged that the award of the contract to Ockerlund was contrary to law because Ockerlund’s failure to list its subcontractors gave it an unfair advantage over other bidders, thus making Ockerlund’s bid nonresponsive and requiring the Commission to reject the bid. Plaintiff alleged that it had met all the requirements for injunctive relief. Also, plaintiff sought a declaration of the parties’ rights. Plaintiff attached copies of its completed bid form, Ockerlund’s completed bid form, and a letter of July 17, 1992, from the Commission’s attorney to plaintiff’s counsel.

On the bid form, the Board “reserve[d] the right to reject any or all bids, to waive any irregularities in the bidding or to accept the bid that in their judgment will be for their best interest.” (Emphasis added.) The letter of July 17, 1992, stated that the Commission believed that Ockerlund’s failure to list subcontractors in its bid was a formal defect that the Commission could waive, as the omission appeared not to give Ockerlund an unfair advantage over other bidders. The letter noted that, before Ockerlund’s bid was accepted, Ockerlund had “provided a list of subcontractors in accordance with the bid specs.”

On July 30, 1992, plaintiff petitioned for a preliminary injunction. Plaintiff asked the court to enjoin the Commission from entering into a contract with Ockerlund; to enjoin Ockerlund from working on the project; and to enjoin the Commission from awarding the job to anyone other than plaintiff.

We now summarize the evidence presented at the hearing on plaintiff’s petition. Plaintiff called John Murphy, the treasurer and vice-president of Waubonsee Community College. Murphy accepted the Ockerlund bid on behalf of the college, which “recommended the bid to the Commission.” As of the hearing, no contract had been entered into with Ockerlund, although the company had a trailer on the site. Murphy admitted that work could not begin until there was a contract. However, the Board had issued Ockerlund a purchase order with regard to the project, which was admitted into evidence. This order, dated July 17, 1992, was issued on the Commission’s authority.

Murphy acknowledged that it was a requirement of the bid document that a bidder complete the portion of the bid document calling for the listing of subcontractors. He also conceded that Ockerlund did not meet that requirement in submitting its bid, a fact of which Murphy became aware on the day the bidding opened. Murphy could not say why Ockerlund’s bid did not list any subcontractors. Within about a week of submitting its bid, Ockerlund submitted a list of its proposed subcontractors.

The Board desired that the project be completed by August 1993 for the convenience of students and college personnel. Murphy explained that the Board accepted Ockerlund’s bid, despite the failure to list contractors, because the Board was interested only in the identity of the contractor and not those of any subcontractors. The Board included the provision for listing subcontractors because the architect recommended this “boilerplate.” The Board accepted Ockerlund’s bid as the result of discussions with the architect and counsel for the Commission.

Murphy knew no reason to require bidders to list their subcontractors. He knew of no advantage that Ockerlund received from the Commission’s waiver of this requirement.

Thomas J. Williams, plaintiff’s president and majority shareholder, testified that he had 37 years of experience in the construction industry and 35 years’ experience in bidding on construction projects. In plaintiff’s 18 years of corporate existence, Williams was primarily responsible for submitting bids on plaintiff’s behalf.

According to Williams, a contractor can obtain a distinct competitive advantage by failing to name its subcontractors when submitting a bid. The omission of subcontractors enables a contractor to engage in “bid shopping.” After the bids are open, such a contractor can “go to anybody in the country and better the prices they used and purchase it from those people.” Refraining from naming subcontractors with the bid gives a contractor greater leverage in negotiating prices from subcontractors after it receives the bid; this greater leverage, in turn, makes it easier to submit the low bid in the first place. Here, for example, Ockerlund would be able to look at all the bids submitted by other contractors, approach the listed subcontractors, “and say, we’ve got the job, what’s your best price.” However, Williams did not know if Ockerlund actually saw any of the other bids.

Plaintiff’s bid listed all prospective subcontractors. Williams acknowledged that lining up subcontractors is a very fluid process. Normally, plaintiff did not sign contracts with subcontractors before submitting its bid. Thus, after receiving an award, plaintiff would be free to pressure a subcontractor into lowering its price as a condition of staying with the project. However, Williams stated that if he listed a subcontractor in a bid, he would give that subcontractor the job. He stated further that plaintiff did not pressure subcontractors to renegotiate prices on its successful bids. Williams added that generally a party inviting bids cares about a contractor’s choice of subcontractors, as the party desires to avoid using unqualified or insolvent subcontractors.

Williams stated that if plaintiff did not receive the contract, it would lose the anticipated profit and would have to lay off 10 to 12 key employees.

Mark Anderson, Ockerlund’s vice-president, testified that he had represented Ockerlund in the bidding process for about eight years and had five or six years’ prior bidding experience. Altogether, he had been involved in preparing about 200 bids. Of these bids, possibly as many as 10% required or provided space for listing subcontractors. According to Anderson, it is normal for a contractor not to have signed any contracts with subcontractors when it submits its bid.

Anderson acknowledged that Ockerlund did not list its subcontractors in its bid in this case. He stated that no one told him in advance that such a listing was mandatory, or he would have provided one. About a week after the bidding opened, at the Board’s direction, Anderson submitted a list of subcontractors. Later, Ockerlund received the purchase order.

Anderson stated that successful contractors frequently try to “refine” the bids of their subcontractors. Also, for various reasons, subcontractors sometimes back out of agreements with contractors. Thus, on many occasions when Anderson listed subcontractors with his bid, his company eventually used one or more subcontractors not originally listed. Whether or not it can negotiate with subcontractors, Ockerlund always honors its bid, which, as here, customarily requires payment of a bid bond.

Anderson disagreed with Williams’ assertion that a contractor that failed to list its subcontractors in a bid could thereby gain an advantage over competitors who listed their subcontractors. According to Anderson, if a bid that lists proposed subcontractors does not specify the amount of money involved in each subcontract, there is still room for negotiation between the contractor and the subcontractor. Anderson added that nobody from Ockerlund had ever looked at any of the bids or bid forms from the other bidders. Also, in the period after Anderson realized that Ockerlund was the apparent low bidder but before Ockerlund submitted its list of subcontractors, Ockerlund did not decrease any of the price quotations from its prospective subcontractors.

The trial judge denied plaintiff’s request for a preliminary injunction. Noting that the actual bid instructions were not in evidence, the judge concluded that plaintiff had presented no evidence that Ockerlund’s failure to submit a list of subcontractors with its bid was a material variance from the bid requirements. Without evidence that the alleged defect made Ockerlund’s bid unresponsive, the court saw no reason to enjoin the Commission from waiving any claimed irregularity in the bid.

On appeal, plaintiff argues that the trial court abused its discretion in refusing to grant a preliminary injunction. As it did at the trial level, plaintiff maintains that the omission of a required list of subcontractors from a bid cannot be considered a minor or inconsequential variance because such an omission permits the nonconforming bidder to “bid shop,” an advantage denied to bidders who follow the requirement. Plaintiff insists that regardless of whether a nonconforming bidder actually benefits from such an unfair advantage, the possibility of such an unfair advantage is enough to make a bid such as Ockerlund’s unresponsive to the bid requirements. Thus, in plaintiff’s view, it made an adequate showing that Ockerlund’s failure to list its subcontractors was a material variance that necessitated rejection of the Ockerlund bid.

Before turning to the merits of the appeal, we address Ockerlund’s motion to strike portions of plaintiff’s statement of facts. Ockerlund argues that certain statements in plaintiff’s appellate brief are unsupported by the record (see 134 Ill. 2d R 341(e)(6)). This court has taken the motion with the case. Insofar as plaintiff has made factual statements unsupported by the record, this court, after its own review of the record, will disregard such statements. To this extent, Ockerlund’s motion is granted. See Woodard v. Krans (1992), 234 Ill. App. 3d 690, 698-99.

We now consider plaintiff’s argument that the trial court abused its discretion in denying plaintiff a preliminary injunction. A reviewing court will not reverse a trial court’s decision to grant or deny a preliminary injunction unless it is clear that the trial court abused its discretion. (Reinhardt Printing Co. v. Feld (1986), 142 Ill. App. 3d 9, 15.) A preliminary injunction is an extraordinary remedy to be used where an extreme emergency exists and serious harm would result without the injunction. (Label Printers v. Pflug (1991), 206 Ill. App. 3d 483, 490.) However, because the purpose of a preliminary injunction is to preserve the status quo pending a decision on the merits, the plaintiff does not carry the same burden of proof that is required to prevail on the ultimate issue. Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 386.

To obtain a preliminary injunction, a party must establish that (1) it possesses a clearly ascertained right in need of protection; (2) it will suffer irreparable injury without the injunction; (3) there is no adequate remedy at law; and (4) there is a likelihood of success on the merits. (L S B Z, Inc. v. Brokis (1992), 237 Ill. App. 3d 415, 425.) Also, the trial court must conclude that the balance of hardships to the parties supports the grant of preliminary relief. (Armstrong v. Crystal Lake Park District (1985), 139 Ill. App. 3d 991, 996.) To demonstrate a likelihood of success on the merits, the movant need not make out a case which would necessarily require relief at a final hearing. “Rather, a party need only raise a fair question as to the existence of the rights claimed, [and] lead the court to believe that it will probably be entitled to the relief sought if the proof sustains the allegations.” Armstrong, 139 Ill. App. 3d at 997.

We conclude that, on the record before us, the trial court did not abuse its discretion in concluding that plaintiff did not establish a likelihood of success on the merits. There is no dispute that Ockerlund omitted any list of subcontractors from its bid. However, the relevant statute does not require such a listing; without the invitation to bid in evidence, either here or at the trial level, we cannot say that plaintiff has raised a fair question that the submission of a subcontractor list contemporaneously with the bid was a requirement for bidding on the project in this case. Assuming arguendo that this was a requirement, we believe the trial court did not err in finding that the Commission acted within its discretion in deciding that this requirement was a waivable formality. Thus, even given the reduced burden needed to obtain preliminary injunctive relief, we conclude that the trial court properly found that plaintiff did not meet that burden.

We agree with the parties that the following basic principles guide our decision:

“Bids must conform to the advertised requirements of the invitation to bid. [Citations.] Although a ‘minor’ variance does not require rejection of the proposal [citation], a ‘material’ variance will require rejection of the proposal. [Citation.] A bid which contains a material variance is an unresponsive bid and may not be corrected after the bids have been opened in order to make it responsive [citation]. The test of whether a variance is material is whether it gives a bidder a substantial advantage or benefit not enjoyed by other bidders.” Leo Michuda & Son Co. v. Metropolitan Sanitary District of Greater Chicago (1981), 97 Ill. App. 3d 340, 344.

See also 10 E. McQuillin, Municipal Corporations §29.65, at 461-70 (3d ed. 1990).

An agency of local government has broad discretion in awarding a contract, and a court will defer to the agency’s choice absent a palpable abuse of discretion or manifest injustice. (Hallett v. City of Elgin (1912), 254 Ill. 343, 346-47; Burt v. Board of Education of Coal City Community Unit School District No. 1 (1985), 132 Ill. App. 3d 393, 396; Cardinal Glass Co. v. Board of Education of Mendota Community Consolidated School District No. 289 (1983), 113 Ill. App. 3d 442, 448.) This discretion extends to the determination of whether a given bid is responsive. (Chris Berg, Inc. v. State Department of Transportation & Public Facilities (Alaska 1984), 680 P.2d 93, 94; Taylor Bus Service, Inc. v. San Diego Board of Education (1987), 195 Cal. App. 1331, 1342-43, 241 Cal. Rptr. 379, 385-86; In re C.K. Rehner, Inc. (1984), 106 A.D. 2d 268, 269, 483 N.Y.S.2d 1, 2.) Courts will defer to an agency’s determination of responsiveness as long as that determination has a reasonable basis. Chris Berg, 680 P.2d at 94; see also Vikonics, Inc. v. United States (D.D.C. 1990), 749 E Supp. 315, 318 (court’s review of agency decision in award of public contract is limited to determining whether the agency’s action was in accord with applicable statutes and had a rational basis); Taylor Bus, 195 Cal. App. 3d at 1341, 241 Cal. Rptr. at 385 (burden is on appellant to demonstrate that agency decision is not supported by substantial evidence); State v. Weisz & Sons, Inc. (Wyo. 1986), 713 P.2d 176, 186 (agency’s determination of whether a bid has met requirements is an act of discretion which a court will not enjoin absent illegality, unreasonableness, or arbitrariness).

Plaintiff argues that it made an adequate showing that Ockerlund’s failure to list its subcontractors at the time of submitting its bid was a violation of the bidding requirements. However, the bidding instructions themselves have never been introduced into evidence, and the relevant statute does not require a bidder to list its prospective subcontractors at the time of submitting the bid (see Ill. Rev. Stat. 1991, ch. 85, par. 1050). Just as plaintiff as movant for an injunction had the burden to introduce sufficient evidence at the trial level, so plaintiff as appellant has the burden to present a record on appeal sufficient to support its claim of error, and any doubts arising from the incompleteness of the record will be construed against plaintiff. Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92.

Such evidence as was introduced at the hearing is conflicting. The correspondence from the Commission’s attorney to plaintiff’s attorney, the bid form itself, and the Board’s late request to Ockerlund for a list of subcontractors may have permitted an inference that the invitation to bid required the contemporaneous submission of a subcontractor list. However, Ockerlund’s vice-president, Mark Anderson, testified without contradiction that he was not informed in advance of submitting his company’s bid that a list of subcontractors was required. He also testified that such a requirement is a relative rarity in public construction bid invitations. This testimony, along with plaintiff’s unexplained failure to introduce the bid requirements into evidence at the trial level, allowed the trial court to infer that the requirements of the invitation to bid did not include that bidders contemporaneously submit a list of prospective contractors. The testimony of John Murphy that the Board regarded the standard bid form’s space for subcontractors as “boilerplate” which the Board approved with no independent thought on the matter also supports the later inferences.

As the evidence provided the trial court with a reasonable basis to conclude that a contemporaneous list of subcontractors was not among the bidding requirements, we cannot say that the trial court abused its discretion in reaching this conclusion. As plaintiff failed to show that Ockerlund was guilty of any failure to conform to the bid instructions, it follows a fortiori that plaintiff also failed to carry its burden to show that Ockerlund was guilty of a material nonconformity that vitiated its bid. Thus, even given that the standard of proof for a preliminary injunction is less onerous than that for a judgment on the ultimate issue, we conclude that the trial court did not err in holding that plaintiff failed to establish a likelihood of success on the merits.

Even assuming that the invitation to bid required Ockerlund to provide a list of prospective subcontractors with its bid, we conclude that the Commission did not abuse its discretion in determining that Ockerlund’s failure to comply with this requirement was a non-material variance that the Commission had the power to waive with or without an expressed waiver clause in the bid form. We review the relevant case law, including that plaintiff cites, to explain our conclusion.

We have found no Illinois opinion addressing specifically whether the failure to list prospective subcontractors at the time of submitting a bid is a material variance from the bid requirements or merely a minor and waivable variance. We are aware that several other jurisdictions have held that such a failure is a material variance that vitiates the bid. (Neilson & Co. v. Cassia & Twin Falls County Joint Class A School District 151 (1975), 96 Idaho 763, 766, 536 P.2d 1113, 1115-16; Prismatic Development Corp. v. Somerset County Board of Chosen Freeholders (1989), 236 N.J. Super. 158, 164-65, 564 A.2d 1208, 1212; William C. Logan & Associates v. Leatherman (1986), 290 S.C. 400, 402, 351 S.E.2d 146, 147.) However, in each of these opinions, the court stressed that the relevant statute required bidders to list their subcontractors. Thus, awarding a contract to a bidder that did not list its subcontractors would violate the controlling statute. As one court noted, an agency has no power to waive compliance with a requirement imposed by the legislature. (Neilson & Co., 96 Idaho at 766, 536 P.2d at 1116.) Here, however, there is no contention that the Commission has attempted to waive or disregard a legislative mandate.

Plaintiff argues that this case is controlled by Michuda. However, we believe Michuda is distinguishable on its facts. In Michuda, the second-lowest bidder on a construction project obtained an injunction forbidding the lowest bidder and the agency from executing a contract for the project. The basis of the injunction was that the lowest bidder’s bid was not responsive because it failed to include a list of minority and small business subcontractors. The agency’s bid instructions explicitly required each bidder to submit such a list. (Michuda, 97 Ill. App. 3d at 342.) Affirming the trial court’s action in this respect, the appellate court held that the variance between the agency’s instructions and the low bidder’s bid was material because it gave the low bidder the unfair competitive advantage of “negotiating with minority subcontractors after it had submitted the apparent low bid.” Michuda, 97 Ill. App. 3d at 345.

The Michuda court analogized the case to Rossetti Contracting Co. v. Brennan (7th Cir. 1975), 508 F.2d 1039, in which the low bidder on a federally assisted construction contract failed to submit an explicitly required statement of the bidder’s plans to conform to a Federal affirmative action program. The Federal appellate court reversed a grant of declaratory and injunctive relief to the low bidder and upheld a determination by the Department of Labor that the bid at issue was not responsive to the invitation and could not be corrected after the submission of the bid. (Rossetti, 508 F.2d at 1046-47.) Recognizing the deference due an agency’s decision in awarding a contract, the appellate court also noted that the affirmative action plan itself stated explicitly that a bidder who failed to comply with the disclosure requirement would be deemed nonresponsive and could not be awarded the contract. (Rossetti, 508 F.2d at 1043-44.) Another court has reasoned persuasively that the failure to comply with an explicit and detailed affirmative action requirement is a material variance which may not be corrected after the bid is submitted, as to allow waiver of the requirement would enable a bidder to gain an unfair advantage over competitors by saving itself the cost of complying with the required affirmative action specifications. In re Appeal of Associated Sign & Post, Inc. (Ind. App. 1985), 485 N.E.2d 917, 925.

We agree with plaintiff that nothing in Michuda limits its reasoning to cases involving requirements for hiring minority subcontractors. The court stressed that “ ‘[e]very element which enters into the competitive scheme should be required equally for all and should not be left to the volition of the individual aspirant to follow or disregard and thus to estimate his bid on a basis different from that afforded the other contenders.’ ” (Michuda, 97 Ill. App. 3d at 344, quoting Hillside Township v. Sternin (1957), 25 N.J. 317, 322-23, 136 A.2d 265, 268.) Nonetheless, we cannot say that the Commission abused its discretion in determining that Ockerlund’s failure to submit a list of subcontractors with its bid was not a material variance of the type present in Michuda or Rossetti.

As we have noted, the evidence is ambiguous as to whether the invitation to bid required the contemporaneous submission of a list of subcontractors at all. Assuming that such was the case, both the Commission and the trial court had adequate reason to conclude that this requirement was waivable.

The Board’s own agent testified that the Board added the provision for listing subcontractors as “boilerplate” and did not consider what purpose the provision might serve. There was evidence at the hearing that a contractor who filled in this part of the form would still be able to place pressure on subcontractors to adjust their prices. Ockerlund never had the opportunity to see the other bids submitted, undercutting the premise of plaintiff’s argument that it secured an unfair advantage. Also, the failure to submit a list of subcontractors, at least in the case at bar, appears not to provide a bidder with the sort of unfair cost advantage that might be reaped from ignoring an affirmative action requirement. Finally, even where a material defect in a bid may not be corrected after submission, the rapidity with which a defect is cured may be probative of whether there was any likelihood of giving the bidder an unfair competitive advantage. See In re Varsity Transit, Inc. v. Board of Education (1987), 130 A.D.2d 581, 581, 515 N.Y.S.2d 520, 521.

We recognize that certain courts and commentators share plaintiff’s concerns about the dangers of “bid shopping.” (See, e.g., Mitch ell v. Siqueiros (1978), 99 Idaho 396, 402, 582 P.2d 1074, 1081 (Bistline, J., specially concurring); Prismatic Development, 236 N.J. Super, at 165, 564 A.2d at 1211-12; Comment, Bid Shopping & Peddling in the Subcontract Construction Industry, 18 UCLA L. Rev. 389 (1970).) In the case at bar, however, there is no evidence that the alleged irregularity involved posed a significant risk to the public’s interest in a fair, competitive bidding system. At the very least, we cannot say that the Commission or the trial court was compelled to find that there was a variance serious enough to require rejection of Ockerlund’s bid. Absent any legislative judgment compelling us to do so, we decline plaintiff’s invitation to hold that the failure to list subcontractors in a bid form is a per se material defect that necessitates rejection of a bid.

Because we conclude that the trial court properly found that plaintiff did not establish a likelihood of success on the merits, we need not consider whether the trial court had additional grounds to deny the preliminary injunction.

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

Affirmed.

GEIGER and DOYLE, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE CHAPMAN

license: Public Domain

text:
    FERRIN SMITH, Plaintiff-Appellant, v. TODD DONNA, Defendant and Third-Party Plaintiff-Appellee (Pattin-Marion, Third-Party Defendant).
    Fifth District
    No. 5-91-0730
    Opinion filed May 5, 1993.

      Paul Thomas Austin, of Marion, for appellant.
    Joseph A. Bleyer, of Bleyer & Bleyer, of Marion, for appellee.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiff filed a personal injury lawsuit against Todd Donna based on negligence. The claim arose out of an accident which occurred while Smith was working for Pattin-Marion, a steel-fabricating plant. Plaintiff appeals from a jury verdict for the defendant and raises the sole issue of whether the trial court erred in giving defendant’s jury instruction No. 12, the long version of Illinois Pattern Jury Instructions, Civil, No. 12.04 (3d ed. 1992) (hereinafter IPI Civil 3d No. 12.04). We affirm.

The evidence revealed that Pattin-Marion operated a heavy-machine steel-fabricating shop which manufactured steel bolts for use in the mining industry. The conditions in the plant were extremely oily due to the nature of the operation and the condition of the equipment. Oil was used to lubricate the cutting equipment, and during the normal manufacturing process it would splash out onto the plant floor. In addition, the machines constantly leaked oil. Everyone who worked at Pattin-Marion was aware of the oily conditions inside the plant.

Pattin-Marion contracted with Donna’s Janitorial, a cleaning service owned and operated by Todd Donna, to clean its facility. Under the terms of this agreement, Todd Donna was to provide someone to clean the plant Monday through Friday. The janitorial workers were to be furnished for two eight-hour shifts: one during the day while the plant was in operation and the other in the evening while the plant was idle. Pattin-Marion mandated that the day shift begin no earlier than 9 a.m, even though the plant began operations at 7 a.m. The person assigned to the day shift was to work under the direction of Pattin-Marion personnel, who would provide instructions regarding how and where to clean the plant.

Donna’s Janitorial employed John Gabbard and assigned him to the day shift; Todd Donna worked the evening shift from 11 p.m. until 6 or 7 a.m. Unless otherwise directed by Pattin-Marion personnel, Gabbard’s chief duty was to clean the oil from the plant floor. PattinMarion controlled both when and how many hours the cleaning crews worked at its facility. Todd Donna testified that he used to have two persons working the day shift, but early in 1987 Pattin-Marion felt that the plant could be adequately cleaned with just one person working the day shift, so John Gabbard was the sole employee cleaning the plant at the time of plaintiff’s injury. Donna testified that PattinMarion really could have used more persons to clean the plant because the oil leaked constantly. Donna believed the company wanted to save money by keeping the janitorial personnel to a minimum.

The cleaning process was a never-ending cycle of sweeping, mopping, and then remopping the large puddles of oil. It would take about 1 to P/a hours to complete this routine over the entire plant. By the time the cycle started over, the machines would have leaked so much oil that the area would be as it had been prior to being cleaned. Pat-tin-Marion management never complained to either Donna or Gabbard about the manner in which the plant was cleaned or about its condition after it had been cleaned. While Todd Donna normally worked from 11 p.m. until 6 or 7 a.m., on the night preceding plaintiff’s injury he worked from noon until 6 p.m. One of plaintiff’s contentions was that by working the earlier hours Todd Donna allowed additional oil to accumulate than if he had cleaned it during his normal shift.

In 1981, Ferrin Smith began working for Pattin-Marion as a janitor. His duties included mopping oil that had accumulated on the plant floor from the machinery. By 1987, Smith was employed as a general laborer, and his duties included operating the overhead cranes and other plant machinery. He worked the day shift, which began at 7 a.m.

On the morning of Monday, May 10, 1987, Smith reported to work at his customary time. His first job that day was to unload bundles of steel from trucks and move them through the process, from the cutting machines to the forming machines, using the overhead cranes. As he was guiding a load of steel bars from the swedger to the threader, he stepped in an oil puddle which had formed in the aisle between machines, fell, and injured his shoulder. The oil, which had seeped out of a crack in a.nearby swedger machine, was about three to four feet in diameter and about one-quarter of an inch deep. Smith had noticed the pool of oil when he first started work at seven that morning.

Smith filed suit against Todd Donna alleging that Donna Janitorial had been negligent in cleaning the plant. While denying any liability for the plaintiff’s injury, Todd Donna filed a third-party complaint against Pattin-Marion, alleging that Pattin-Marion was negligent in one or more of the following respects:

(a) failing to provide a safe place for the plaintiff to work;
(b) permitting the plant floor to remain in a hazardous and dangerous condition as a result of an oil spill; and
(c) allowing the equipment to become in a state of disrepair so that said equipment would leak oil on the floor.

Todd Donna voluntarily dismissed his third-party complaint the day before trial.

At trial, conflicting evidence was presented regarding the time of the accident. According to plaintiff’s witnesses, the accident happened around 9:30 or 10 a.m. Defendant’s witnesses put the accident before 9 a.m., which was prior to the beginning of the first cleaning shift.

On the first day of the instruction conference, defendant tendered its instruction No. 4, based on IPI Civil 3d No. 12.04, in its entirety. Plaintiff tendered instruction No. 13, based on the first paragraph only of IPI Civil 3d No. 12.04. Reasoning that the defendant’s instruction, in combination with any agency instruction given, might confuse the jury, the court denied defendant’s instruction and indicated that it would give plaintiff’s instruction No. 13. Following the noon recess, the defendant tendered instruction No. 12, again based on IPI Civil 3d No. 12.04 but modified to reflect the court’s concerns regarding agency. The court then refused plaintiff’s instruction No. 13 and gave the revision tendered by the defendant. The first paragraph of plaintiff’s instruction No. 13 and defendant’s revised instruction are substantially the same; however, the defendant’s instruction includes an additional paragraph. The instruction given to the jury was as follows:

“More than one person may be to blame for causing an injury. If you decide that the defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.
However, if you decide that the sole proximate cause of the injury to the plaintiff was the conduct of some person other than the defendant and/or his agent, then your verdict should be for the defendant.”

This instruction was given over plaintiff’s objection. The instruction is verbatim IPI Civil 3d No. 12.04, except for the phrase, “and/or his agent,” which was added to address the trial court’s concerns for possible jury confusion since there was an agency relationship involved.

In addition to the foregoing instruction, the court cautioned the jurors not to consider the instructions in isolation but rather to view the controlling law as a synthesis of the instructions as a whole. The court also instructed the jury as to the definition of “proximate cause” as follows:

“When I use the expression ‘proximate cause,’ I mean that cause which, in natural or probable sequence, produced the injury complained of.”

A special interrogatory submitted by the defendant was also given to the jury:

“Was the defendant, Todd Donna, at the time of the occurrence in question, guilty of negligence which proximately caused plaintiff’s accident, injuries and damages?”

After deliberations, the jury returned a general verdict for the defendant and answered the special interrogatory in the negative, finding that the defendant was free from any negligent conduct proximately contributing to the plaintiff’s injuries. Plaintiff appeals from the verdict.

Ferrin Smith argues that the trial court erred in giving the long version of IPI Civil 3d No. 12.04 instead of the short version because Todd Donna contractually undertook to clean the floors at PattinMarion. Plaintiff contends that by contracting with Pattin-Marion for cleaning services, Pattin-Marion as a matter of law relied upon Todd Donna to clean the floors and provide a safe place for Pattin-Marion employees to work. Plaintiff further argues that IPI Civil 3d No. 12.04 was erroneously given because the notes on the use of the second paragraph of that instruction state that it is to be given only where there is evidence tending to show the sole proximate cause of the occurrence was the conduct of a third person. Plaintiff contends that there was no evidence that the sole proximate cause of the occurrence was the conduct of Pattin-Marion. Smith argues that the proximate cause of his fall was the accumulation of a puddle of oil which Todd Donna had a duty to abate. Plaintiff concludes that by instructing the jury with the long version of IPI Civil 3d No. 12.04, the court in effect directed a verdict.

IPI Civil 3d No. 12.04 was drafted for the purpose of creating a more accurate instruction regarding concurrent negligence.

“[T]he language in the first paragraph of the instruction was corrected to make clear to the jury that only when the jury finds that the defendant’s negligence was a proximate cause of the plaintiff’s injury may it disregard the defense that some third person, who is not a party to the action, may have also been to blame. Without the benefit of accurate wording to this effect, the jury might cease its inquiry after finding a defendant’s negligence to have been simply a cause of the injury, without considering whether it was a proximate cause thereof. [Citation.]
Secondly, in order to correct any negative implications arising from the first paragraph of the instruction and to insure that the jury is properly instructed in cases where the negligence of some third person *** is presented as a defense, the second paragraph was added to emphasize that the jury must find for the defendant where they find that the conduct of that third person was the sole proximate cause of the injury.” (Emphasis in original.) (Miyatovich v. Chicago Transit Authority (1969), 112 Ill. App. 2d 437, 443-44, 251 N.E.2d 345, 348.)

The notes on the use of this instruction state: “The second paragraph should be used only where there is evidence tending to show that the sole proximate cause of the occurrence was the conduct of a third person.” (IPI Civil 3d No. 12.04, Notes on Use, at 12 — 9.) In the case at bar, the record demonstrates that there was evidence to support Todd Donna’s theory that Pattin-Marion was the sole proximate cause of plaintiff’s injury.

Ferrin Smith testified that the machines in the plant constantly leaked oil, and that there was oil throughout the plant the day of the accident. The jury heard evidence that Todd Donna cleaned the plant the afternoon prior to the date of the accident. There was also testimony that the plant was idle from the time he left until 7 a.m. the next morning, at which time operations began and ran for two hours before Pattin-Marion permitted either Todd Donna or his employee to resume their cleaning duties. The general foreman of Pattin-Marion testified that the employees of the plant began the work shift at 7 a.m., and that Pattin-Marion, which arranged the work schedule of Donna Janitorial, restricted the presence of Donna Janitorial employees until 9 a.m. The jury also heard testimony that Pattin-Marion declined to authorize additional janitorial staff or cleaning hours even though the plant floor required continual maintenance.

The jury heard conflicting testimony concerning the time of the plaintiff’s accident and whether defendant’s employee, Gabbard, was present at the time of the accident. The plaintiff’s co-worker and witness testified that he did not know if John Gabbard was present at the time of the fall; the defendant’s employee and witness testified that the plaintiff fell prior to 9 a.m. Whichever version of the testimony the jury believed, the evidence established that from the time Todd Donna left the plant the previous day until the time Gabbard began his shift, a significant period of time passed during which the machines would leak oil and puddles of oil would form on the plant floor. In addition, given the fact that it took between 1 and V-k hours to complete a cleaning cycle, Smith may have fallen before Gabbard had a chance to complete the cleaning cycle for that day.

Based on the evidence in this case, the jury could have reasonably concluded that Todd Donna was not negligent. Because Pat-tin-Marion could have been the sole proximate cause of plaintiff’s injury under the evidence in this case, the court did not err in instructing the jury using the long form of IPI Civil 3d No. 12.04. See McCall v. Chicago Board of Education (1992), 228 Ill. App. 3d 803, 593 N.E.2d 621; Miyatovich v. Chicago Transit Authority (1969), 112 Ill. App. 2d 437, 251 N.E.2d 345; Ellig v. Delnor Community Hospital (1992), 237 Ill. App. 3d 396, 603 N.E.2d 1203; cf. Grimming v. Alton & Southern Ry. Co. (1990), 204 Ill. App. 3d 961, 562 N.E.2d 1086; Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 499 N.E.2d 1373.

Plaintiff further argues that the defendant, Todd Donna, was required to plead as an affirmative defense that Pattin-Marion’s conduct was the sole proximate cause of the occurrence. Plaintiff contends that because defendant did not raise such a defense, giving IPI Civil 3d No. 12.04 completely surprised and prejudiced the plaintiff. Contrary to plaintiff’s assertion of surprise, Todd Donna had initially filed a third-party action against Pattin-Marion alleging that PattinMarion was negligent and a proximate cause of the plaintiff’s injury. At trial Todd Donna continued to elicit testimony as to PattinMarion’s alleged negligent conduct. Given the circumstances, we do not agree that, because Todd Donna did not plead as an affirmative defense the sole-proximate-cause theory, plaintiff was unduly surprised or prejudiced.

In conclusion, the evidence at trial was sufficient for the jury to conclude that the sole proximate cause of the occurrence was PattinMarion’s conduct, and therefore, the proffered instruction containing the second paragraph of IPI Civil 3d No. 12.04 was proper, and the trial court did not err in giving it. For the foregoing reasons, the judgment of the circuit court of Williamson County is affirmed.

Affirmed.

RARICK and WELCH, JJ., concur.


author: PRESIDING JUSTICE McCORMICK

text:
    SEAN WARD, Plaintiff-Appellant, v. COMMUNITY UNIT SCHOOL DISTRICT No. 220 et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—89—1501
    Opinion filed March 16, 1993.

      Michael W. Rathsack, of Chicago, for appellant.
    Aries & Hoyt, of Chicago (Michael L. Handley, of counsel), for appellees.
   PRESIDING JUSTICE McCORMICK

delivered the opinion of the court:

This case comes before us on remand from our supreme court, which vacated our earlier decision and directed us to reconsider the case in light of Sidwell v. Griggsville Community Unit School District No. 4 (1992), 146 Ill. 2d 467, 588 N.E.2d 1185. Plaintiff, Sean Ward, sued the school district and the school he attended for injuries he suffered on defendants’ premises during a physical education class. In count I, plaintiff alleged that defendants negligently caused the injury, and in count II he alleged that defendants caused his injuries through wilful and wanton misconduct. The trial court dismissed the complaint pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), on its finding that defendants owed plaintiff no duty of care under the allegations in the complaint. We affirmed the dismissal of the complaint because we found that section 24 — 24 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 24 — 24) immunized defendants from suit for the alleged negligence. We also held that the complaint failed to state facts which could support a finding of wilful and wanton misconduct. Our supreme court held that the School Code does not protect a school district when the plaintiff alleges negligence of a school district as a property owner independent of negligent acts of a teacher. (Sidwell, 146 Ill. 2d at 472-73.) On reconsideration, we reverse the trial court’s holding on count I, the negligence count, but we affirm dismissal of count II, which charged defendants with wilful and wanton misconduct.

On September 26, 1977, plaintiff, then eight years old, attended physical education class at Arnett C. Lines School. The students participated in a game of flag football on the field behind the school. The field’s boundaries were marked with a permanent marking substance. At the same time, students at Barrington Middle School, for seventh- and eighth-grade students, were playing football on the field behind the Barrington school, which also had permanently marked boundaries. The two fields “were situated end to end and were located almost immediately adjacent to each other, with the end area of one field near the end of the other field.”

While plaintiff was sitting on the ground near the end zone of the Lines school field, watching the flag football game, a student from Barrington school ran through the end zone of the Barrington field in an effort to catch a pass in the Barrington football game. The Barrington student ran into plaintiff, fracturing plaintiff’s skull, causing serious and permanent injury.

Plaintiff sued the Lines school, the Barrington school, Community Unit School District No. 220, which managed both the Lines and the Barrington schools, and the Board of Education of Community Unit School District No. 220. In count I, plaintiff alleged that: “Defendants knew or should have known that students participating in games on one of said fields would be likely to run *** into persons on or near the adjacent field without being able to stop or avoid those persons because said students would be concentrating their attention on the sport being played.” Plaintiff alleged that defendants negligently caused his injury when they:

“Located and marked said playing fields so that there was insufficient room between said fields;

* * *

Designed and located said fields so that students participating in games on one field would be *** caused to run into the area of the adjacent field.”

In count II, plaintiff alleged that defendants knew that persons would be near the sidelines of the Lines school field, paying attention to the game on that field and not to the game on the Barrington field. Plaintiff alleged that defendants were guilty of wilful and wanton misconduct which caused plaintiff’s injury when they designed the fields to be too close together and when they:

“Failed to mark said fields or otherwise warn students that students playing in one field would be caused to run onto or near the other field;
*** Failed to *** protect the students using one of said fields from the students *** on the other of said fields; ***
Directed that younger and smaller students and older and bigger students play contact sports in immediately adjacent playing fields at the same time.”

Defendants moved to dismiss count I based on the school’s immunity under section 24 — 24 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 24 — 24), and they sought dismissal of count II on grounds that “the acts or omissions set forth in *** [cjount II do not constitute the type of misconduct contemplated as wilful and wanton.” The trial court granted the motion to dismiss, finding that the defendants violated no duty by performing the acts alleged in the complaint.

Section 24 — 24 of the School Code provides limited immunity for teachers whose negligent acts injure pupils. (Sidwell, 146 Ill. 2d at 470-71.) Although school districts may vicariously benefit from this immunity, our supreme court has explained that when a “complaint alleges the independent negligence of the school district rather than liability through the acts of a teacher, the defendant school district is not entitled to vicarious immunity under sectionf ] 24 — 24.” Sidwell, 146 Ill. 2d at 473.

In Sidwell the plaintiff alleged that the school district allowed a rut to form on the school playground, and the plaintiff, while attending the school, sustained injuries when he fell into the rut. The trial court granted the school district’s motion to dismiss the complaint based on the district’s immunity under the School Code. Our supreme court reversed, holding that the school district’s alleged negligence in allowing the rut to form was distinct from the teacher’s negligence in allowing the plaintiff to use the rutted part of the playground. Therefore the School Code did not protect the school district from liability for the negligent acts alleged.

Here, plaintiff alleged that defendants negligently located the fields too close together, knowing that students playing on one field would run into students on or near the other field. Under the reasoning of Sidwell, the school district’s alleged negligence is distinct from the teacher’s negligence in directing the Lines school students to play on their field while bigger students from Barrington school were playing on the immediately adjacent field. The School Code does not immunize defendants from suit for the negligent acts alleged in count I which are not allegations of the teacher’s negligence.

The trial court did not address defendants’ argument that the School Code protected them from this suit; instead, the trial court dismissed the complaint because it found that defendants owed plaintiff no duty of care. The defendants together owned and managed the two playing fields involved in this case, and plaintiff, as a student of the Lines school, was an invitee on defendants’ land. A landowner has a duty to protect its invitees from physical harm caused by

“ ‘a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it.’ ” Ward v. K mart Corf. (1990), 136 Ill. 2d 132, 146, 554 N.E.2d 223, quoting Restatement (Second) of Torts §343 (1965).

Defendants do not dispute plaintiff’s contention that they knew of the location of the fields behind the two schools. We must determine whether the factual allegations of the complaint, if proved, would show that defendants should have realized that the location of the fields involved an unreasonable risk of harm, and that defendants should have expected the students to fail to protect themselves against the danger. In determining the adequacy of the factual allegations of the complaint, we are mindful of the guidance of our supreme court, which has held:

“The purpose of pleadings is to present, define and narrow the issues and limit the proof needed at trial. Pleadings are not intended to erect barriers to a trial on the merits but instead to remove them and facilitate trial. The object of pleadings is to produce an issue asserted by one side and denied by the other so that a trial may determine the actual truth. [Citations.] Perhaps the best measure of a complaint’s sufficiency, then, is whether the defendant is able to answer the essential allegations. ***
Illinois is a fact-pleading State. This means that although pleadings are to be liberally construed and formal or technical allegations are not necessary, a complaint must, nevertheless, contain facts to state a cause of action. [Citation.] Which facts? The complaint is deficient when it fails to allege the facts necessary for the plaintiff to recover. [Citation.] ‘But it is a rule of pleading long established, that a pleader is not required to set out his evidence. To the contrary, only the ultimate facts to be proved should be alleged and not the evidentiary facts tending to prove such ultimate facts.’ ” People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 307-08, 430 N.E.2d 1005, quoting Board of Education v. Kankakee Federation of Teachers Local No. 886 (1970), 46 Ill. 2d 439, 446-47, 264 N.E.2d 18.

Plaintiff alleged that defendants breached their duties as landowners by locating the two playing fields “almost immediately adjacent” to each other. We find that this is a factual allegation. (See Griffis v. Board of Education, District 122 (1979), 72 Ill. App. 3d 784, 788, 391 N.E.2d 451.) To determine whether the risk of harm due to the proximity of the fields was unreasonable, we must take into account the likelihood of injury, the gravity of the threatened injury, the burden of guarding against the injury, and the consequences of placing that burden on defendant. Stemen v. Avon Products, Inc. (1992), 234 Ill. App. 3d 300, 599 N.E.2d 1140.

According to the complaint, the fields were so close together that when both fields were in use, participants in one game were “likely to run *** into persons on or near the adjacent field.” Most of the injuries from the resulting collisions would probably be minor, but some could be quite severe. The complaint does not show what the burden of guarding against the injury would have been, but from the stated facts, the school district apparently could have guarded against the injury by shortening or repositioning the fields, by coordinating schedules so that classes were not simultaneously using both fields or by erecting a soft barrier between the fields. From the facts alleged in the complaint, we cannot conclude that defendants would suffer any extreme untoward consequences if we place the burden of making the fields safe on defendants. Therefore, plaintiff has stated facts which could support a finding that the arrangement of the fields created an unreasonable risk of harm.

Plaintiff also alleged that defendants knew that students on or near one field would not be aware of students coming onto the field from the game on the adjacent field because each student would have his attention directed to the game in which he was participating. In the trial court, defendants argued that the allegation of their knowledge was not a factual allegation, and plaintiff needed to allege facts from which the finder of fact could infer defendants’ knowledge. We disagree. A statement of a defendant's knowledge is an allegation of ultimate fact and not a conclusion. (Doner v. Phoenix Joint Stock Land Bank (1942), 381 Ill. 106, 115, 45 N.E.2d 20; see Bowers v. Du Page County Regional Board of School Trustees District No. 4 (1989), 183 Ill. App. 3d 367, 371, 380, 539 N.E.2d 246.) Plaintiff need not plead the evidentiary facts he will use to prove defendants’ knowledge. Kankakee Federation, 46 Ill. 2d at 446-47.

The complaint includes factual allegations that defendants knew that students would not pay attention to the danger of players from the other field running into them. Since the school required the students to participate in games on the fields, the students could not protect themselves against the danger in the most obvious manner, by simply not playing on the fields. Plaintiff has adequately alleged facts which can support a finding that defendants should have expected the students to fail to protect themselves against the danger of intrusions by players on the adjacent field. Thus, plaintiff has alleged facts which could support the findings required for landowner liability under section 343 of the Restatement (Second) of Torts. Plaintiff’s complaint sufficiently states a cause of action in negligence against defendants.

Although defendants did not raise the issue in the trial court, on appeal they contend that they are immune from this suit for negligence under section 3 — 106 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1977, ch. 85, par. 3 — 106).

“The general rule is that questions not raised in the trial court are deemed waived and cannot be argued for the first time on appeal. *** The waiver rule should not be ignored *** if the opposing party could have introduced evidence to contest or refute the assertions made on appeal, had he an opportunity to do so in the trial court.” In re Marriage of Rodriguez (1989), 131 Ill. 2d 273, 279, 545 N.E.2d 731.

However, the waiver rule is a limitation only on the parties, and this court has the power to decide any issue as long as the record contains facts sufficient for resolution of the issue. Wozniak v. Segal (1974), 56 Ill. 2d 457, 308 N.E.2d 611; McClure v. Suter (1978), 63 Ill. App. 3d 378, 383, 379 N.E.2d 1376.

At the time plaintiff was injured, municipalities could waive immunity under the Tort Immunity Act by purchasing applicable insurance. (Sullivan v. Midlothian Park District (1972), 51 Ill. 2d 274, 279-80, 281 N.E.2d 659.) Because defendants failed to raise this affirmative defense in the trial court, the record does not show whether defendants waived their tort immunity by purchasing insurance. Defendants waived the issue of the application of the Tort Immunity Act for this appeal by failing to raise it in the trial court. Defendants will have the opportunity to raise the defense on remand, and plaintiff will have the chance to show that defendants waived their immunity by purchasing applicable insurance.

The trial court found that because defendants owed plaintiff no duty, they could not be liable for wilful and wanton misconduct. Plaintiff contends that the complaint adequately states a cause of action for wilful and wanton misconduct.

“ ‘A wilful or wanton injury must have been intentional or the act 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 ordinary care. *** In view of the fact that it is a matter of degree a hard and thin line definition should not be attempted.’ ” O’Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 469, 415 N.E.2d 1015, quoting Lynch v. Board of Education (1980), 82 Ill. 2d 415, 429-30, 412 N.E.2d 447.

Generally, the courts leave to triers of fact the question of whether misconduct is wilful and wanton, but the court may determine the issue if a determination that the alleged acts constitute wilful and wanton misconduct cannot stand. Brown v. Chicago Park District (1991), 220 Ill. App. 3d 940, 943, 581 N.E.2d 355.

In Kirby v. Macon Public School District No. 5 (1988), 169 Ill. App. 3d 416, 523 N.E.2d 643, the plaintiff fell from a slide on the defendant’s school playground. The plaintiff sued the defendant for negligence and wilful misconduct in keeping a slide 12 feet tall on its premises without railings on its side or padding underneath. The appellate court found that the complaint adequately stated a cause of action for negligence, but it held:

“[Djefendant’s conduct of allowing the slide on the playground without guardrails after other children had been injured *** does not, however, in our opinion demonstrate an utter and conscious disregard for the safety of the children. Although the defendants may have failed to provide sufficient protection, this does not rise to the level of conduct contemplated by a wilful and wanton claim.” (Kirby, 169 Ill. App. 3d at 421.)

The court affirmed dismissal for failure to state a claim of the count charging defendant with wilful and wanton misconduct.

In Gara v. Lomonaco (1990), 199 Ill. App. 3d 633, 557 N.E.2d 483, the plaintiff fell between mats on the floor in her physical education class. Plaintiff charged the teacher and the school district with wilful and wanton misconduct because defendants directed plaintiff to dance on mats which overlapped in a manner that created a dangerous condition. The appellate court affirmed dismissal of the complaint, holding:

“To support a cause of action for wilful and wanton misconduct, plaintiffs must allege facts which if proven exhibit a deliberate intention to harm or an utter indifference or conscious disregard for [plaintiff’s] safety. Plaintiffs did not allege [defendant] deliberately intended to harm [plaintiff]. Further, the facts alleged do not support a finding that [defendant’s] conduct exhibited an utter indifference or conscious disregard for [plaintiff’s] safety. The allegations *** arguably state a cause of action for negligence ***; however, defendants’ conduct did not rise to the level of wilful and wanton misconduct.” Gara, 199 Ill. App. 3d at 639-40.

The misconduct alleged in this case is similar to that alleged in Kirby and Gara. In all three cases, the plaintiffs alleged that defendant school districts maintained as part of school facilities unreasonably dangerous equipment for physical education. In Kirby and Gara, while the courts agreed with the plaintiffs that the equipment could be considered unreasonably dangerous, the courts found that the alleged misconduct in failing to protect against the danger did not rise to the level needed for wilful and wanton misconduct. Here, too, the defendants did not expose children to a very high risk of injury, although the risk could be found unreasonable in light of the possibly slight burden of prevention. While the distinction between negligence and wilful misconduct is largely a matter of degree, we find that in this case, like Kirby and Gara, the alleged misconduct is not of the degree necessary to state a cause of action for wilful and wanton misconduct.

We affirm the trial court's decision to dismiss count II of the complaint, we reverse the dismissal of count I and we remand that count for proceedings in accord with this opinion.

Affirmed in part; reversed in part and remanded.

HARTMAN and DiVITO, JJ., concur.


author: JUSTICE GREIMAN

text:
    RUTH CRAWFORD, Plaintiff and Counterdefendant-Appellee, v. ADOLPH H. LOVE et al., Defendants and Counterplaintiffs-Appellants.
    First District (3rd Division)
    No. 1—92—0569
    Opinion filed February 17, 1993.
    Rehearing denied May 24, 1993.

      Bernstein & Cleveland, of Evanston (Joseph V. Bomba, of counsel), for appellants.
    Manuel Solotke and Edwin H. Shanberg, both of Greenstein & Solotke, of Chicago, for appellee.
   JUSTICE GREIMAN

delivered the opinion of the court:

Defendants appeal from a judgment which recognizes title to a certain parcel of real estate in the plaintiff, requires defendants to remove a fence surrounding the parcel and denies defendants’ claim of title through adverse possession by reason of the issuance of a tax deed during the time when defendants’ possession of the premises was adverse.

Defendants argue on appeal that the issuance of a tax deed to those in privity with plaintiff does not toll the holding period necessary to obtain title by adverse possession.

We disagree. The issuance of a tax deed under the Illinois Revenue Act (Ill. Rev. Stat. 1969, ch. 120, par. 747b) tolls the period of limitations as to adverse possession.

Sometime around 1960, defendants Adolph H. Love and Beulah Love, although not having title to the premises, took possession of the real estate which is the subject matter of this case and caused a fence to be constructed around the parcel. Defendants’ possession has continued up to and including the filing of the plaintiff’s complaint in 1987.

On March 19, 1969, nine years into the 20-year holding period, the clerk of Cook County issued a tax deed conveying the premises to a tax sale buyer. Thereafter, through subsequent conveyances, title to the premises was ultimately conveyed to Ruth Crawford (plaintiff) on November 16, 1985.

Plaintiff’s residence lies just north of the premises and defendants’ residence immediately south of the premises.

Defendants argue that plaintiff is precluded from asserting any rights over the premises by reason of the provisions of section 13— 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13 — 101), which prohibit any person from commencing an action for the recovery of land unless within 20 years after the right to bring such an action has accrued.

Defendants base their counterclaim on the passage of 20 years’ possession, thus providing them ownership to the premises by adverse possession.

Plaintiff relies on the validity of her title derived through tax delinquency proceedings and the issuance of a tax deed and asserts that section 266b of the Revenue Act of 1939 (Ill. Rev. Stat. 1969, ch. 120, par. 747b) expressly sets out those interests in land or encumbrances which survive the issuance of a tax deed and that a partial running of the statute of limitations is not among them.

Moreover, section 266b provides that the section of the Revenue Act which authorizes the issuance of a deed shall be liberally construed so that tax deeds convey good and merchantable title. Ill. Rev. Stat. 1969, ch. 120, par. 747b.

The enactment of section 266 of the Revenue Act in 1951 and the substantial amendment of other sections represents the final action in a long battle between the court and the legislature as to the merchantability of land titles derived from annual tax sale proceedings.

Prior to the 1951 amendment, almost any defect or deficiency in the proceedings that led to the issuance of a tax deed, no matter how minute, made the deed suspect and generally held void. Gaither v. Lager (1954), 2 Ill. 2d 293, 118 N.E.2d 4; Thomas v. Durchslag (1950), 404 Ill. 581, 90 N.E.2d 200; Warshefsky v. Glos (1911), 251 Ill. 377, 96 N.E. 248; Jackson v. Glos (1909), 243 Ill. 280, 90 N.E.2d 717; Kepley v. Scully (1900), 185 Ill. 52, 57 N.E. 187; Gage v. Bani (1891), 141 U.S. 344, 35 L. Ed. 776, 12 S. Ct. 22.

The 1951 amendments were adopted to meet an alarming increase in the rate of tax delinquencies. In order to respond to this problem, the legislature sought to render tax titles incontestable except by direct appeal and to provide a tax buyer with assurance that his title and rights to the property are unimpaired. Southmoor Bank & Trust Co. v. Willis (1958), 15 Ill. 2d 388, 155 N.E .2d 308; Cherin v. R. & C. Co. (1957), 11 Ill. 2d 447,143 N.E .2d 235.

Section 266b was added by the General Assembly in 1965. That section provides that the tax deed shall not extinguish or affect easements, covenants running with the land, right-of-way for water, sewer, electricity, tax, telephone, or other public service uses. This statute sets forth the exclusive encumbrances or rights which are not extinguished by a tax deed. Generally, an enumeration of one or more certain or specific items in a statute excludes other things or items which are not mentioned in the statute. Shamel v. Shamel (1954), 3 Ill 2d 425, 432, 121 N.E.2d 819; Blakeslee’s Storage Warehouses, Inc. v. City of Chicago (1938), 369 Ill. 480, 17 N.E.2d 1; Weeks v. Hoffman (1971), 1 Ill. App. 3d 337, 273 N.E.2d 157; Goebel v. Mize (1957), 14 Ill. App. 2d 69, 143 N.E.2d 73; Dillon v. Nathan (1956), 10 Ill. App. 2d 289, 135 N.E.2d 136.

Moreover, a tax deed issued pursuant to a judicial process grants to the purchaser a new and independent title, free and clear from all previous titles and claims of every kind and character. (In re Application of the County Collector for Judgment & Order of Sale Against Lands & Lots Returned Delinquent for Non-Payment of General Taxes & Special Assessments for the Year 1983 & Prior Years (1990), 206 Ill. App. 3d 22, 28, 563 N.E.2d 1039; People v. Cottine (1959), 20 Ill. App. 2d 562, 572, 156 N.E.2d 774; City of Bloomington v. John Allan Co. (1974), 18 Ill. App. 3d 569, 310 N.E.2d 437.) Even a city’s lien for demolition and repair costs is inferior to the right of a tax sale purchaser. John Allan Co., 18 Ill. App. 3d at 577.

Defendants rely heavily upon Illinois Ry. Museum, Inc. v. Siegel (1971), 132 Ill. App. 2d 77, 266 N.E.2d 724, which upheld the rights of an adverse possessor over a purchaser at a tax sale. Illinois Railway makes clear that had a tax deed actually been issued, the court would have held otherwise. A certifícate of sale does not pass title to the purchaser until the issuance of a tax deed so that while the tax sale will not stop or impede the running of the time which inures to the benefit of the adverse possessor, the issuance of a tax deed will have precisely that affect.

We need not only look to the 1951 amendments to the Revenue Act to vest the grantee of a tax deed with rights superior to that of an adverse possessor. As early as 1890, Illinois tax deeds have defeated the continuity “of the running of [an adverse possessor’s] title, because no 20 years had elapsed from the time he entered until the title accrued under the tax-title.” (Daveis v. Collins (N.D. Ill. 1890), 43 E 31, 34.) Daveis recognized the paramount rights of a grantee of a tax deed over an adverse possessor where the holding period was interrupted by the issuance of the tax deed. If anything, the 1951 amendments to the Revenue Act have provided a modern rationale for the Daveis court.

We recognize the strong public policy statement which the several amendments to the Revenue Act represent, in encouraging the recognition, validity and commercial acceptability of tax deeds; therefore, we affirm the decision of the circuit court of Cook County.

Affirmed.

TULLY, RJ., and CERDA, J., concur.

      Section 13 — 101 (Ill. Rev. Stat. 1991, ch. 110, par. 13 — 101) provides:
      “Twenty years — Recovery of Land. No person shall commence an action for the recovery of lands, nor make an entry thereon, unless within 20 years after the right to bring such action or make such entry first accrued, or within 20 years after he, she or those from, by, or under whom he or she claims, have acquired title or possession of the premises, except as provided in Sections 13 — 102 through 13 — 122 of this Act.”


author: JUSTICE CAMPBELL

text:
    CARY GOLDMAN, Plaintiff-Appellee, v. WALCO TOOL AND ENGINEERING COMPANY, Defendant-Appellant.
    First District (1st Division)
    No. 1—91—1282
    Opinion filed February 8, 1993.
    Rehearing denied May 25, 1993.

      Keevers & Hittle, of Chicago (Joseph P. Postel, of counsel), for appellant.
    Duane Donahue, of Cary, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Cary Goldman, brought this action in negligence, strict products liability and failure to warn against Walco Tool and Engineering Company (Walco), to recover for injuries he sustained as a result of his contact with Mobilarma 245, a rust-preventive oil manufactured by the Mobil Oil Company. A jury trial commenced on the issue of strict liability on September 24, 1990. Following trial, the jury returned a verdict in favor of plaintiff, awarding him a total of $589,278.70 in itemized damages, including $297,484.90 for past and future loss of earnings. On appeal, defendant contends that: (1) the statute of limitations defense was not waived, despite defendant’s failure to separately plead the statute of limitations as an affirmative defense; (2) the evidence at trial was insufficient to support the jury verdict on the issues of causation, idiosyncrasy and notice; (3) the trial court erred in admitting the warning label into evidence; and (4) the jury’s award of damages for post-1983 and future loss of earnings was against the manifest weight of the evidence. For the following reasons, we affirm the judgment of the trial court.

The record discloses the following relevant facts. Plaintiff filed his complaint on May 18, 1982. Plaintiff subsequently voluntarily dismissed the action and refiled the action on October 26, 1984. On October 30, 1989, plaintiff filed his amended complaint. In paragraph 9 of the complaint, plaintiff alleged that he first discovered his injury after June 1, 1980, and brought his action within two years of that date. Defendant filed an answer to plaintiff’s amended complaint, denying the allegations generally, and raising as the sole affirmative defense that plaintiff’s reaction to Mobilarma 245 was idiosyncratic and “not the type of reaction any significant number of the general population would have had to Mobilarma 245.”

Prior to trial, defendant moved in limine to exclude from evidence any reference to warnings placed by the manufacturer, Mobil Oil Company, on the 55-gallon drums in which it shipped Mobilarma 245 to defendant. The trial court denied defendant’s motion.

At trial, plaintiff testified that in 1979, he was employed as a parts inspector by Caterpillar Tractor Company (Caterpillar) in Montgomery, Illinois. In September of that year, plaintiff inspected a tractor part called a junction block which was coated in Mobilarma 245. During the inspection, plaintiff reached into a plastic bag which contained the junction block, immersing his hands in the Mobilarma 245. Plaintiff continually wiped his hands with a cloth while he inspected the junction block. Within 30 minutes, plaintiff developed a rash on his hands.

Plaintiff told his co-workers that he was experiencing a reaction to the Mobilarma 245, and advised them to avoid contact with the oil. Later that day, plaintiff noticed that the rash had spread all over his body. During the next week, plaintiffs hands became swollen, and he developed other symptoms including dizziness and swollen legs and feet, which interfered with his ability to walk, and prevented him from doing his job properly.

Plaintiff sought medical treatment from Dr. Mustafa Vidinli and was hospitalized for a week. Dr. Vidinli diagnosed plaintiff as suffering from chronic angio edema and urticaria, and prescribed medication. When plaintiff returned to work after a few months, he had a great deal of difficulty doing his usual tasks, and was limited as to which tasks he could perform because of his condition. Dr. Vidinli testified that plaintiff had to avoid chemical solvents, stairs and ladders, scaffolds, dust, gas, fumes, extreme temperature changes, damp areas, cramped or unusual positions, pushing and pulling and twisting arms and legs, grasping, handling, repetitive movement of hands and feet, climbing of stairs and balances, exposure to falling, and operating heavy equipment. Plaintiff was transferred to another jobsite, and at some point in 1980 plaintiff was forced to take a medical leave of absence from Caterpillar.

In 1982 or 1983, plaintiff applied for reinstatement at Caterpillar and was denied a position in the factory because of his medical limitations. In 1983, Caterpillar placed plaintiff’s name on a waiting list for an office job, but as of the time of the trial, plaintiff had not been reinstated in any position at Caterpillar.

Plaintiff called David Walsh, president of Walco, to testify as an adverse witness. Walco is the manufacturer of tractor parts, including junction blocks. Walsh testified that Walco shipped junction blocks to Caterpillar, prior to the end of August 1979. Walsh stated that Walco received Mobilarma 245 from the Mobil Oil Company in 55-gallon drums, and that warning labels were affixed to the drums. Prior to shipping to Caterpillar, the junction blocks were put into plastic bags, coated with Mobilarma 245, and sealed. The sealed bags were then placed in cardboard boxes bearing Walco’s name. The warning label that appeared on the barrels of Mobilarma 245 did not appear on the boxes in which Walco shipped the junction blocks.

Plaintiff’s counsel then published the following warning label from a 55-gallon drum of Mobilarma 245 to the jury, as stipulated by the parties:

“PETROLEUM DISTILLATE DANGER!

COMBUSTIBLE MIXTURE HARMFUL OR FATAL IF SWALLOWED

KEEP AWAY FROM HEAT AND OPEN FLAME. USE ONLY WITH ADEQUATE VENTILATION.

AVOID PROLONGED OR REPEATED SKIN CONTACT.

AVOID PROLONGED BREATHING OF MIST OR VAPOR.

IF SWALLOWED, DO NOT INDUCE VOMITING.

CALL PHYSICIAN IMMEDIATELY.

KEEP OUT OF REACH OF CHILDREN.”

Defendant reserved its objection to the label’s relevance.

Dr. Jerrold B. Leikin testified as an expert witness on behalf of the plaintiff. Dr. Leikin is board certified in internal medicine, emergency medicine and medical toxicology, and is a teaching associate in internal medicine at several Chicago-area hospitals. Dr. Leikin testified that he reviewed plaintiff’s medical records, and in his opinion, plaintiff’s exposure to Mobilarma 245 caused plaintiff to suffer from a variety of illnesses, including urticaria, the sudden onset of the swelling and inflammation of the skin, and angioedema, an internal swelling and inflammation in the respiratory tract or the gastrointestinal tract. He stated that one of plaintiff’s symptoms, an injected pharynx (a throat tightness), was a manifestation of the angioedema, and that plaintiff’s symptoms of a rash, purple spots, and tender and swollen feet were the result of contact with Mobilarma 245.

Dr. Leikin reviewed the “Material Safety Data Sheet” (MSDS) for Mobilarma 245, a document the chemical manufacturer is required by Federal law to provide to the seller of the chemicals along with its product. The MSDS provides a description of the product in terms of health hazards, safety requirements, and directions for disposal. The MSDS described Mobilarma 245 as containing three components: petroleum naptha, sulfonic acid, and surfactant. Dr. Leikin described surfactant as a non-water-soluble material which acts as an agent against rust, repelling water. He stated that the chemical constituents in Mobilarma 245 can get into the body by absorption through the skin or through inhalation, and that there is some irritant effect. Dr. Leikin testified that plaintiff’s exposure to Mobilarma 245 caused his skin to become dermographic, a condition whereby pressure on the skin creates a welt surrounded by an area of redness. Dr. Leikin stated that several months before trial, he treated a patient who exhibited symptoms similar to the plaintiff’s, and that the patient had been exposed to agents similar to the ones contained in Mobilarma 245. In his opinion, it is not safe to handle parts coated in Mobilarma 245 with your bare hands. Dr. Leikin further testified that in his opinion, prior to September 1979, plaintiff was not an atopic individual, a person who is prone to adverse allergic manifestations due to many environmental or medicinal objects or substances.

On cross-examination, Dr. Leikin stated that the palms of the hand are much less absorbent than the back of the hands because the skin on the palms is rougher. He stated that it was possible that plaintiff’s dizziness, sleeplessness and epigastric pain were not caused by overexposure to Mobilarma 245, but that patients with angioedema are known to experience such adverse symptoms. He indicated that petroleum naptha (distillates), one of the ingredients of Mobilarma 245, can also be found in gasoline, lighter fluid, kerosenes, turpentine, rust remover, and some laundry detergents. He testified that he knows of scientific studies wherein brief exposures to some of the compounds in Mobilarma 245 have resulted in symptoms similar to those experienced by the plaintiff. Dr. Leikin stated that plaintiff could continue to have symptoms absent any reexposure to Mobilarma 245.

A1 Weygand, chairman of the bargaining committee for the United Auto Workers Local at Caterpillar, testified regarding the rates of pay for plaintiff’s job classification at Caterpillar. Weygand testified that as of September 1979 plaintiff’s income level was $9.86 per hour. In May 1983 that rate of pay was increased by 3% for plaintiff’s job classification. In October 1986 the rate of pay was increased again by 3%, and the classification also received a 3% bonus for 1988. The rate of pay for plaintiff’s job classification in 1988 was $15.51 per hour. As of the time of trial, the rate of pay was $16.85 per hour. In closing argument, plaintiff’s attorney requested an award of $238,517.90 for lost wages from September 1979 through the date of trial. At the close of plaintiff’s case, the court denied defendant’s motion for directed verdict.

John Paul Bederka, a consultant in toxicology, testified as an expert witness for defendant. Bederka holds degrees in chemistry and organic chemistry, and a Ph.D. in pharmacology. Bederka testified that he reviewed plaintiff’s medical records, the MSDS sheets, and laboratory test results of Mobilarma 245.

Bederka stated that the MSDS sheets revealed that Mobilarma 245, in its original formulation, is a volatile liquid composed of 74% petroleum distillate, a substance found in household pesticide spray cans. He stated that by the time the product is applied to the materials that are shipped out, generally this volatile material has evaporated. What is then left of the product is essentially mineral oil, which constitutes 65% or 70% of the final product, which has very little tendency to evaporate. The likelihood of being able to breathe any amount of the product is extremely slim to nonexistent. Therefore, in Bederka’s opinion, plaintiff did not inhale any significant amount of Mobilarma 245.

Bederka also testified that Mobilarma 245, in its original formulation, was subjected to laboratory testing on rabbits for eye and skin irritation. In the first test, small drops of the product were placed directly into the rabbits’ eyes. The results were that there was no irritation effect at all on the rabbits’ eyes. The product was also tested on the rabbits’ skin. The results showed that the rabbits experienced a mild irritation 24 hours after testing. The results of the tests indicated that the product was a mild irritant.

Based on the rabbit test results, Bederka opined that plaintiff absorbed little or no Mobilarma 245 through his skin, because he was only in contact with the product for 30 minutes, far less exposure than the 24-hour period in which the rabbits were exposed to Mobilarma 245. Bederka further stated the skin on the palm of the hand is very thick, and the molecules in mineral oil are large and don’t penetrate the skin very easily. He stated that the product as originally formulated before evaporation would penetrate the skin, but that once that solvent is gone, the product has little or no tendency to penetrate the skin.

Bederka further opined that the plaintiff’s reaction to Mobilarma 245 was idiosyncratic. His opinion was based on the fact that nothing in the literature he reviewed described any kind of severe and prolonged illnesses such as that experienced by the plaintiff after exposure to Mobilarma 245.

Finally, Bederka stated that based on his review of plaintiff’s medical records, the plaintiff’s medical problems are ongoing and genetic. Bederka stated that the plaintiff had experienced allergies and hives at various times between 1967 and 1977, and that in between those times, plaintiff had been treated for gout, an abnormal metabolism of certain types of chemicals that are inherently present in the body.

On cross-examination, Dr. Bederka testified that his opinion that plaintiff did not inhale the Mobilarma 245 was based on the assumption that the petroleum distillates had all entirely evaporated prior to plaintiff’s exposure. He admitted, however, that the vapor could be inhaled. He further admitted that the inhalation of a petroleum distillate such as naptha can cause inebriation and even death, and that surfactants can cause membrane tissue destruction. He stated that if you can smell something, you can inhale it. Bederka further admitted that if the Mobilarma 245 is shipped in a sealed container the petroleum distillates will not evaporate, and that the type of packaging will affect whether or not the petroleum distillates evaporate. Bederka further testified that his opinion that the Mobilarma 245 was not absorbed through plaintiff’s skin was based on the assumption that plaintiff’s contact with the Mobilarma 245 was primarily through the palm of his hand. He further stated that the MSDS sheets contain a page with a precautionary label regarding avoiding prolonged skin contact and avoiding prolonged breathing of the vapor of the Mobilarma 245. Bederka admitted that he is not a medical doctor and does not make diagnoses for patients.

Next, Dr. Ronald Wolfson testified on defendant’s behalf. Dr. Wolfson examined plaintiff on two occasions in 1988 and performed allergy skin testing on the plaintiff. Dr. Wolfson diagnosed plaintiff as suffering from allergic urticaria, a type of skin hive. He stated that plaintiff’s exposure to Mobilarma 245 was in no physical way related to his complained-of symptoms. He stated that because of plaintiff’s allergies, his hives could be triggered by exposure to strawberries, chocolate, and detergent. In his opinion, plaintiff had a genetic predisposition to allergies prior to his exposure to Mobilarma 245.

David Walsh then testified on defendant’s behalf. Walsh testified that his company started using Mobilarma 245 in 1975 to coat parts for shipping. Since that time, approximately 250 employees handled the Mobilarma 245 without any complaints of adverse reactions, with the exception of the plaintiff. Walsh produced a steel block coated in Mobilarma 245 which was contained in a closed plastic bag. The bag was opened with a pair of scissors. Walsh removed the block from the bag. On cross-examination, Walsh testified that he could smell the Mobilarma 245 once the bag was opened. Defendant then rested its case.

Following closing arguments, the jury entered a verdict in favor of plaintiff and awarded him $589,278.70 in itemized damages, $297,484.90 for loss of earnings. The jury answered “no” to the following special interrogatory: “Do you find that Cary Goldman was unusually susceptible to Mobilarma 245 and that the risk of the injury he suffered was remotely possible only to the unknown few in the population?” The trial judge entered judgment on the verdict and subsequently denied defendant’s post-trial motions to set aside the jury’s verdict and enter judgment notwithstanding the verdict. Defendant’s timely appeal followed.

Initially, defendant contends that the trial court erred in not finding that plaintiff’s action was barred by the statute of limitations. Defendant argues that the two-year period specified in section 13 — 202 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 202) is the applicable limitations period and that plaintiff’s action was not timely filed within two years.

The statute of limitations is an affirmative defense which must be pleaded and proved by a defendant. (Ruddock v. First National Bank (1990), 201 Ill. App. 3d 907, 918, 559 N.E.2d 483; Findley v. Posway (1983), 118 Ill. App. 3d 824, 827, 455 N.E.2d 861.) The facts constituting any affirmative defense must be plainly set forth in the answer or reply to a complaint, so as to give color to the opposing party’s claim and assert a new matter by which the apparent right is defeated. (Shute v. Chambers (1986), 142 Ill. App. 3d 948, 951-52, 492 N.E.2d 528; Ill. Rev. Stat. 1989, ch. 110, par. 2-613(d).) Failure to specifically plead the statute of limitations provision constitutes a waiver of the defense. Ruddock, 201 Ill. App. 3d at 918.

In the present case, plaintiff alleged in his amended complaint that he first discovered his injury after June 1, 1980. Defendant filed an answer to plaintiff’s amended complaint generally denying plaintiff’s allegations and specifically raising an affirmative defense of idiosyncratic reaction under the caption “Affirmative Defense.” Defendant never moved to amend its pleadings for the purpose of raising the statute of limitations as an affirmative defense. The trial court found that defendant’s failure to specifically plead the statute of limitations as an affirmative defense constituted a waiver of the defense, especially in light of the fact that the affirmative defense of idiosyncratic reaction was “outstandingly pleaded.”

Defendant’s reliance on Fitzpatrick v. City of Chicago (1986), 112 Ill. 2d 211, 492 N.E.2d 1292, is misplaced. There, the court upheld the defendant’s affirmative defense, noting that defendant included a pleading entitled “Affirmative Defense” in its answer to plaintiff’s complaint. In the present case, defendant raised no such affirmative defense regarding the statute of limitations. As such, defendant has failed to show that the trial court erred in denying its motion for new trial based on plaintiff’s alleged failure to comply with the statute of limitations.

Next, defendant contends that the evidence at trial was insufficient to support the jury verdict on the issues of causation, idiosyncrasy and notice.

First, defendant argues that plaintiff failed to prove that the Mobilarma 245 caused plaintiff’s injury. In support, defendant relies on Sutton v. Washington Rubber Parts & Supply Co. (1988), 176 Ill. App. 3d 85, 530 N.E.2d 1055, and Mateika v. La Salle Thermogas Co. (1981), 94 Ill. App. 3d 506, 418 N.E.2d 503; both cases are distinguishable from the present case on the facts. In Sutton, a products liability case, the court granted summary judgment in favor of defendant because the plaintiff could not provide a link between a light bulb that exploded and injured him and its alleged manufacturer. In Mateika, the plaintiff failed to produce any evidence supporting his allegation that a locking device should have been used to prevent the nut on a valve of a liquid propane gas tank from coming loose. Mateika, 94 Ill. App. 3d at 509.

The testimony of a medical expert is sufficient to prove a causal link between a plaintiff’s injury and the source of his injury. (Ogg v. City of Springfield (1984), 121 Ill. App. 3d 25, 458 N.E.2d 1331.) In the present case, plaintiff’s expert witness, Dr. Leikin, testified that plaintiff’s symptoms were caused by his exposure to Mobilarma 245, and resulted in plaintiff’s conditions of urticaria, angioedema, and demographic skin. We find this expert testimony sufficient to prove a causal link.

Next, defendant argues that the evidence at trial proved that plaintiff’s reaction to Mobilarma 245 was idiosyncratic and unique and, therefore, plaintiff’s action was barred. Defendant argues that plaintiff’s reaction to Mobilarma 245 was idiosyncratic based on the results of the rabbit tests. Defendant further argues that the evidence shows that other employees handled the oil without adverse reactions. In support, defendant relies on Presbrey v. Gillette Co. (1982), 105 Ill. App. 3d 1082, 435 N.E.2d 513. There, the court reversed judgment in favor of the plaintiff, who experienced a severe reaction after using defendant’s anti-perspirant. The court found the plaintiff’s reaction “idiosyncratic,” that is, the plaintiff was unusually susceptible to injury caused by the use of the anti-perspirant. The court stated:

“The unusual susceptibility of the consumer is generally recognized as a complete defense where the manufacturer did not know and had no reason to know that a very few users of his product might be injured. *** [I]f the product does not threaten severe harm to the ordinary consumer, then it is reasonably fit for the purpose for which it is sold.” (Presbrey, 105 Ill. App. 3d at 1091, 435 N.E.2d at 520.)

The Presbrey court continued:

“The rule of nonliability has been relaxed, however, where the suit has not concerned an over-the-counter product, like an anti-perspirant, but involved a drug or vaccine with dangerous propensities.” Presbrey, 105 Ill. App. 3d at 1092.

Presbrey is distinguishable from the present case. Here, Mobilarma 245 is not an over-the-counter consumer product, but a chemical with dangerous propensities. Therefore, the rule of nonliability is relaxed. However, even if the Presbrey rule applies, the evidence at trial disclosed that it is not uncommon for individuals exposed to the compounds contained in Mobilarma 245 to have similar reactions. Dr. Leikin testified that scientific studies show that brief exposures to some of the compounds in Mobilarma 245 have resulted in symptoms similar to those experienced by the plaintiff. Dr. Leikin further testified that he treated a patient who exhibited symptoms similar to the plaintiff’s, and that the patient had been exposed to agents similar to the ones contained in Mobilarma 245. We find defendant’s arguments inconclusive to warrant setting aside the jury verdict.

Moreover, defendant’s contention that it had no reason to know that the Mobilarma 245 had dangerous propensities is without merit. The record discloses that the 55-gallon drums containing Mobilarma 245 bore a label warning against, inter alia, “prolonged or repeated skin contact” and “prolonged breathing of mist or vapor.” The record indicates that defendant received the drums with this warning, but did not include the warning on boxes in which it shipped parts coated with the Mobilarma 245 to Caterpillar. It is clear that defendant had notice of the dangerous propensities of Mobilarma 245.

Next, defendant contends that the warning label from the 55-gallon drum of Mobilarma 245 was improperly admitted into evidence at trial. Defendant argues that the warning label is irrelevant to the present case because it specified only that “prolonged” exposure was dangerous, and plaintiffs exposure to Mobilarma 245 was not “prolonged.” Defendant has waived this issue for review, having failed to cite any authority in support of its argument. In re Marriage of Olbrecht (1992), 232 Ill. App. 3d 358, 597 N.E.2d 635.

Nevertheless, a duty to warn of a product’s dangerous propensities is imposed upon a manufacturer or supplier where there is unequal knowledge, actual or constructive, and the defendant, possessed of such knowledge, knows or should know that harm might or could occur if no warning is given. (Oberg v. Advance Transformer Co. (1991), 210 Ill. App. 3d 246, 569 N.E.2d 50.) The record shows that defendant was aware of the dangerous propensities of Mobilarma 245 and that it failed to include warnings when it shipped the product to Caterpillar. The warning label was therefore relevant to establish that defendant knew that the Mobilarma 245 had dangerous propensities.

Finally, defendant contends that the jury’s award of $232,984.73 in damages to plaintiff for loss of earnings after 1983 was against the manifest weight of the evidence. Defendant argues that the evidence proved that plaintiff was able to return to work by the end of 1983; therefore, no basis existed for awarding him damages for loss of earnings thereafter.

In order to recover for lost earnings, all the law requires is that the plaintiff present evidence which will establish with a fair degree of probability a basis for the assessment of damages. (Tracy v. Village of Lombard (1983), 116 Ill. App. 3d 563, 575, 451 N.E.2d 992.) In that case, the court found testimony of an employer that he would have hired the plaintiff but for his disability, and plaintiff’s estimation of the profit margin, sufficient evidence to recover for lost earnings. Tracy, 116 Ill. App. 3d at 575, 451 N.E.2d at 1001.

Defendant relies on Brown v. Chicago & North Western Transportation Co. (1987), 162 Ill. App. 3d 926, 516 N.E.2d 320, for the proposition that in order to recover for future lost earning capacity, the plaintiff must show that the future loss is “reasonably certain to occur.” In fact, the proper language used by the court is whether such damages “would endure” in the future. (Brown, 162 Ill. App. 3d at 936.) In Brown, the plaintiff was injured when a hammer fell onto his back during the course of his employment with defendant. The court found that the evidence at trial indicated that the plaintiff did not suffer from a debilitating injury of a particular duration; therefore, judgment in favor of the plaintiff was improper as to future lost earnings. Brown, 162 Ill. App. 3d at 938.

In the present case, however, plaintiff has been diagnosed with a chronic condition which has caused severe permanent limitations in the type of work he is able to perform. Plaintiff testified that he could have returned to work at the end of 1983, but that Caterpillar had not yet found an appropriate job for him, considering his limitations. Taking into account plaintiff’s work restrictions as testified to by Dr. Vidinli, along with evidence of plaintiff’s calculated past and present wages, it appears that plaintiff has established, with a fair degree of probability, a basis for assessment of lost past and future wages. As such, we find the jury’s award of damages proper.

For the above reasons, we therefore affirm the judgment of the trial court.

Affirmed.

MANNING, P.J., and BUCKLEY, J., concur.

      The complaint states that the incident occurred on August 30, 1979; however, plaintiff indicated at trial that the incident occurred sometime in mid-September 1979.