author: JUSTICE WHITE

text:
    THOMAS DeCHENE, Plaintiff-Appellant, v. FIREMEN’S PENSION FUND OF THE CITY OF BLUE ISLAND et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—87—3202
    Opinion filed June 14, 1989.

      Michael W. Rathsack, of Chicago, for appellant.
    Rose & Ross, Ltd., of Chicago (Kathleen Ross, of counsel), for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff Thomas DeChene appeals from an order of the circuit court dismissing his declaratory judgment action for lack of jurisdiction. Plaintiff argues that the trial court erred in ruling that he was required to seek administrative review prior to bringing his action in the circuit court.

Plaintiff was hired as a fire fighter by the Blue Island, Illinois, fire department in 1969, and in the following year he became a member of the Firemen’s Pension Fund (Fund). In January 1978, plaintiff was injured in the line of duty. Plaintiff returned to work in July 1978, but was reinjured in September. Plaintiff was on disability leave between September 1978 and September 1979. During that time, plaintiff received full payment of his wages plus temporary disability payments, pursuant to the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.), in the amount of $807.65 per month.

In October 1979, the Fund awarded plaintiff a line of duty disability pension, entitling him to monthly payments of $960.11. However, relying on a 1977 amendment to the Illinois Pension Code that provided for the offset of workers’ compensation benefits against municipal disability benefits (Ill. Rev. Stat. 1977, ch. 108½, par. 4 — 143 (repealed by Pub. Act 83 — 1440, §2, eff. Jan. 1, 1985)), the Fund deducted plaintiff’s monthly workers’ compensation payments from this amount, reducing his monthly pension payments to $152.45 a month. In September 1983, plaintiff received a lump sum award of $45,000 under the Workers’ Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.). Subsequently, the Fund suspended plaintiff’s monthly pension for three years and eight months, to offset the $45,000 award.

In December 1986, plaintiff filed this action against the Fund and the board of trustees of the Fund in the circuit court of Cook County. Plaintiff’s action sought a declaration that because he was hired before the 1977 amendment to the Pension Code, his right to receive municipal disability benefits was vested and not subject to the offset provisions enacted in 1977. Defendants filed a motion to dismiss plaintiff’s complaint on the ground that the court lacked jurisdiction to hear a declaratory judgment action seeking review of an administrative decision. The court granted defendants’ motion and this appeal followed.

Plaintiff argues that the circuit court erred in dismissing his declaratory judgment action. He contends that his action merely requested that the court construe section 4 — 143 of the Pension Code and that the provisions of the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 101 et seq.) were therefore inapplicable. We disagree.

Section 2 — 701 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 701) provides that in cases of actual controversy, a court may make a declaration of rights, including the determination of the construction of any statute. However, section 3 — 102 of the Administrative Review Law provides that the provisions of the act shall apply to and govern every action to review judicially a final decision of any administrative agency. (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 102.) This section, which was made applicable to the decisions of a pension board in section 4 — 139 of the Pension Code (Ill. Rev. Stat. 1985, ch. 108½, par. 4 — 139), does not require a formal decision to support an action for administrative review. Pearce Hospital Foundation v. Illinois Public Aid Comm’n (1958), 15 Ill. 2d 301, 154 N.E.2d 691.

Plaintiff claims that the Administrative Review Law applies only where a determination of fact, or the application of the law to certain facts, is at issue. He argues that because he was seeking construction of a statute, not a determination of fact, and because the court merely would be deciding a question of law and not preempting an administrative board’s right to make a factual determination, the court erred in dismissing his action. Defendants argue that the Administrative Review Law makes no distinction between issues of fact and law and that plaintiff should not be allowed to use the declaratory judgment statute to avoid the purpose and effect of the Administrative Review Law. Both parties rely on Gualano v. City of Des Plaines (1985), 139 Ill. App. 3d 456, 487 N.E.2d 1050, and Peifer v. Board of Trustees (1976), 35 Ill. App. 3d 383, 342 N.E.2d 131, in support of their arguments.

In Peifer, plaintiff, a member of the Winnetka police force, filed a declaratory judgment action seeking to determine his right to retire and receive a regular pension after receiving a disability pension for several years. The appellate court reversed the dismissal of Peifer’s complaint, holding that an actual controversy existed between Peifer and the board.

In Gualano, plaintiff, a Des Plaines fire fighter, was hired in 1969 and injured in the line of duty in 1979. As in the present case, Gualano’s pension award was reduced by the amount of his workers’ compensation award, pursuant to the 1977 amendment to the Pension Code. Gualano filed a declaratory judgment action in the circuit court, alleging in count I that the reduction of his pension benefits was improper. In count II, Gualano alleged that the pension board’s computation of his pension failed to take into account accumulated vacation and sick days. The trial court granted defendants’ motion for summary judgment as to count I and dismissed count II on the ground that it was barred due to Gualano’s failure to comply with the Administrative Review Law. The appellate court affirmed the dismissal of count II, holding that the failure to comply with the act barred judicial review of that count. However, the court reversed the trial court’s grant of summary judgment on count I, holding that Gualano’s pension rights vested in 1967 and could not be reduced by the 1977 amendment.

Plaintiff argues that the decisions in Gualano and Peifer demonstrate that a declaratory judgment action may be used to obtain construction of the law applied by an administrative agency. Defendants argue, and plaintiff concedes, that the exhaustion of administrative review issue was not raised in Peifer or, as to count I, in Gualano. Despite this fact, plaintiff argues that it is likely that the court in Peifer concluded that it had jurisdiction and that the court in Gualano apparently recognized that count I called for construction of a law, while count II involved a factual determination. Plaintiff further argues that, while that issue was not raised and the court did not discuss the point, one can presume from the holding in Gualano that the court believed that the Administrative Review Law did not deprive it of jurisdiction over the statutory construction question.

We believe that it is equally possible that the court in Gualano failed to address the jurisdictional issue simply because it was not raised by the parties, and not because the court concluded that the requirement of exhaustion of administrative remedies did not apply to count I. We also believe that there is nothing in either Gualano or Peifer that indicates that the courts found that the Administrative Review Law was inapplicable because the plaintiffs were seeking construction of a statute. Accordingly, we find that neither Gualano or Peifer provides support for plaintiff’s contention that a declaratory judgment action can be used to circumvent the requirement that a party exhaust all available administrative remedies before seeking judicial review of an administrative decision.

In rejecting plaintiff’s claim that his declaratory judgment action is not barred by the exhaustion of administrative review requirement, we note that Illinois courts have ruled that an exception to the exhaustion requirement applies where a party challenges a statute as being facially invalid, but that the exception does not apply where the claim is that the statute is invalid as applied to a particular party. (Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 359 N.E.2d 113; Boles Trucking, Inc. v. O’Connor (1985), 138 Ill. App. 3d 764, 486 N.E.2d 362.) In the present case, plaintiff does not contest the constitutionality of section 4 — 143, rather, he asserts that as applied to him, the statute impairs a vested right in violation of the Illinois Constitution. In such circumstances, a party must pursue administrative remedies before seeking judicial review. Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 359 N.E.2d 113; Salk v. Department of Registration & Education (1970), 123 Ill. App. 2d 320, 269 N.E.2d 123.

In conclusion, we find that plaintiff’s failure to seek administrative review of the reduction of his pension benefits barred him from seeking judicial review and that, therefore, the circuit court properly dismissed plaintiff’s declaratory judgment action for lack of jurisdiction.

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

Affirmed.

FREEMAN, P.J., and CERDA, J., concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    HENRY WILLIAMS et al., Plaintiffs-Appellants, v. JIMMIE M. BOLSTEN, Defendant-Appellee.
    First District (5th Division)
    No. 1—87—2119
    Opinion filed June 16, 1989.

      Gary B. Katz, of Benjamin & Shapiro, Ltd., of Chicago, for appellants.
    Herbert P. Carlson and Timothy J. Lowery, both of Iversen, Carlson & Associates, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiffs, Henry Williams and Andrew Suett, appeal from the entry of summary judgment on the grounds of res judicata in favor of defendant, Jimmie M. Bolsten. We address the issue of whether a dismissal with prejudice under Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)) is an adjudication on the merits under Supreme Court Rule 273 (107 Ill. 2d R. 273). We affirm.

On November 4, 1982, plaintiffs filed a complaint for negligence against defendant and Hubbard Trucking for injuries resulting from an automobile accident. Plaintiffs alleged that at the time of the accident, defendant was driving a vehicle as the agent of Hubbard Trucking, which owned the vehicle, and that defendant’s negligent conduct was the direct and proximate cause of plaintiffs’ injuries. Plaintiffs did not allege any independent acts of negligence against Hubbard Trucking.

Plaintiffs served defendant with complaint and summons. In defendant’s answer, he admitted he was an agent of Hubbard Trucking and denied the remaining allegations of negligence.

Plaintiffs, however, failed to serve Hubbard Trucking. As a result, Hubbard Trucking moved to dismiss pursuant to Supreme Court Rule 103(b), arguing that plaintiffs did not exercise reasonable diligence to obtain service. The trial court granted the motion and dismissed plaintiffs’ complaint against Hubbard Trucking with prejudice as required by the rule when a plaintiff fails to exercise diligence after the statute of limitations expires. The order entered also stated, “The case shall continue against the remaining defendant Bolsten.” At a later hearing, the trial judge explained that this language was only included in the order to indicate to the computer operators in the clerk’s office that the case remained pending.

Subsequently, defendant moved for summary judgment on the grounds of res judicata. He argued that the Rule 103(b) dismissal with prejudice of Hubbard Trucking, the principal, was an adjudication on the merits as to himself, the agent. On January 28, 1987, the trial court granted summary judgment finding that under Rule 273, a Rule 103(b) dismissal with prejudice of the principal barred the action against the agent.

Plaintiffs filed a motion for reconsideration which was heard on June 3, 1987. At that hearing, plaintiffs filed a motion for leave to amend their complaint. Both motions were denied. Plaintiffs filed a timely notice of appeal.

OPINION

According to the doctrine of res judicata, an adjudication on the merits is conclusive as to the rights of the parties and their privies and is an absolute bar to a subsequent action against them involving the same claim, demand, or cause of action. (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217.) Supreme Court Rule 273 establishes which dismissal orders are adjudications on the merits. The rule provides:

“Unless the order of dismissal or a statute of this state otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.” (107 Ill. 2d R. 273.)

Initially, plaintiffs raise two arguments that Rule 273 does not apply to the present case.

First, plaintiffs argue that the order dismissing Hubbard Trucking indicated that it was not an adjudication on the merits because it stated, “The case shall continue against the remaining defendant Bolsten.” However, the trial judge stated that the language was not a ruling concerning whether the dismissal operated as an adjudication on the merits but that the language was only included to inform the computer operators that the case was still pending. As such, the dismissal order did not specify that it was not an adjudication on the merits.

Second, plaintiffs argue that a Rule 103(b) dismissal is a dismissal for lack of jurisdiction. Plaintiffs raise this argument for the first time on appeal and do not support it with citation to authority. Accordingly, plaintiffs have waived this argument. (107 Ill. 2d R. 341(e)(7); Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 475 N.E.2d 872.) We note, however, that contrary to plaintiffs’ argument, a motion for Rule 103(b) dismissal is not the equivalent of a dismissal for lack of jurisdiction. See Caliendo v. Public Taxi Service, Inc. (1966), 70 Ill. App. 2d 86, 217 N.E.2d 369.

Plaintiffs also assert that a Rule 103(b) dismissal of a principal is not an adjudication on the merits as to an agent, relying on Hansel v. Chicago Transit Authority (1971), 132 Ill. App. 2d 402, 270 N.E.2d 553. In Hansel, the defendant-agent was dismissed with prejudice pursuant to Rule 103(b) for plaintiff’s failure to exercise reasonable diligence in obtaining service of process. In affirming the dismissal and addressing plaintiff’s concern that a directed verdict would be entered in favor of the defendant-principal on new trial, the appellate court noted, “Dismissal [of the agent] was for failure to comply with the rules of the court and does not affect plaintiff’s right of action against the [principal].” (Hansel, 132 Ill. App. 2d at 409, 270 N.E.2d at 557.) Plaintiffs in the present case claim the quoted language from Hansel is authority for this court to find that a Rule 103(b) dismissal of a principal does not bar the same action against the agent. The court in Hansel, however, did not consider the application of Rule 273 to a Rule 103(b) dismissal with prejudice.

The quoted statement from Hansel appears inconsistent with the supreme court’s subsequent holding in Towns, on which defendant relies. The court held that an adjudication on the merits in favor of the principal bars the same action against the agent. In Towns, plaintiff sued a cab company and its driver for personal injuries resulting from a car accident. Plaintiff alleged that the cab company, acting through its driver, committed certain negligent acts. In its answer to the complaint, the cab company admitted that the driver was its agent. Subsequently, the cab company was dismissed with prejudice pursuant to Supreme Court Rule 219(c) (107 Ill. 2d R. 219(c)) as a sanction for plaintiff’s failure to comply with court orders pertaining to discovery. The driver was later granted summary judgment on the basis that the dismissal of the cab company was an adjudication on the merits and barred plaintiff’s action against the driver. On appeal, the supreme court noted:

“When an action is brought against a master based on the alleged negligent acts of his servant, and no independent wrong is charged on behalf of the master, his liability is entirely derivative, being founded upon the doctrine of respondeat superior. *** [T]he liability of the master and servant for the acts of the servant is deemed that of one tortfeasor and is a consolidated or unified one. [Citation.] *** A judgment, therefore, adjudicating the master not liable, where a judgment to the contrary could have only resulted from a finding that the servant committed an actionable wrong against the plaintiff, is a judgment in legal effect that the servant is not liable.” (Towns, 73 Ill. 2d at 123-24, 382 N.E.2d at 1221-22.)

The supreme court affirmed the trial court’s entry of summary judgment in favor of the driver finding that the dismissal with prejudice of the cab company as a discovery sanction was an adjudication on the merits under Rule 273 barring plaintiff’s action against the driver.

Defendant also relies on Fountas v. Breed (1983), 118 Ill. App. 3d 669, 455 N.E.2d 200. From our research, Fountas is the only Illinois case which specifically found that a Rule 103(b) dismissal with prejudice is an adjudication on the merits under Rule 273. Accordingly, the appellate court in Fountas gave res judicata effect to a Rule 103(b) dismissal with prejudice.

We believe that Towns and Fountas are applicable to the present case. Under Towns, an adjudication on the merits in favor of the principal bars the same action against the agent. Under Fountas, a Rule 103(b) dismissal with prejudice is an adjudication on the merits under Rule 273. In the present case then, the Rule 103(b) dismissal with prejudice of Hubbard Trucking is an adjudication on the merits under Rule 273 and bars the action against defendant. Accordingly, the trial court properly granted defendant’s motion for summary judgment as there was no genuine issue of material fact and defendant was entitled to judgment as a matter of law. See Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c).

Plaintiffs argue that the trial court improperly denied their motion to amend their complaint. The denial of a motion to amend will not be reversed on appeal absent an abuse of discretion. (Harrington v. Chicago Sun-Times (1986), 150 Ill. App. 3d 797, 502 N.E.2d 332.) Plaintiffs did not file their motion until four months after summary judgment was entered, which was 4½ years after the complaint was filed. Under the circumstances, the trial court did not abuse its discretion when it denied plaintiffs’ motion to amend. See Harrington, 150 Ill. App. 3d 797, 502 N.E.2d 332 (denial of motion to amend was not an abuse of discretion when motion was filed more than seven months after the entry of summary judgment and more than three years after the complaint was filed).

Plaintiffs also argue that their due process rights have been violated; however, this issue was not raised at the trial court level until plaintiffs filed a motion.to reconsider the entry of summary judgment. At that point, they did not cite any authority to support their argument. On appeal, plaintiffs raised the issue but again did not cite authority until they filed their reply brief. The two cases plaintiffs cited, however, are inapplicable to the present case. Accordingly, we find that plaintiffs have waived this argument. 107 Ill. 2d R. 341(e)(7); Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 505 N.E.2d 387.

Affirmed.

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


author: PRESIDING JUSTICE MURRAY

text:
    WABASH POWER EQUIPMENT COMPANY, Plaintiff-Appellant, v. INTERNATIONAL INSURANCE COMPANY, Defendant-Appellee.
    First District (5th Division)
    No. 1—88—0010
    Opinion filed June 16, 1989.

      Altheimer & Gray, of Chicago (Lionel G. Gross and Michael K. Sweig, of counsel), for appellant.
    James S. Stickles, Jr., and Mark S. Ollmann, both of Grotty & Hoyne, of Chicago, for appellee.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff Wabash Power Equipment Company (Wabash) appeals from an order of the circuit court of Cook County dismissing its declaratory judgment action against defendant International Insurance Company (International), which sought a determination that International was required to indemnify it under the policy issued to it by International for the loss of theft of a boiler and auxiliary equipment. In dismissing the action, the trial court found that Wabash failed to file its complaint within one year from the date of loss as required by the terms of its policy. On appeal, Wabash argues that the court erred in applying the statute of limitations period provided in section 143.1 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 755.1), rather than the general statute of limitations period for written contracts as provided by section 13 — 206 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 206). Wabash further contends that the date of discovery of its loss, rather than the actual date of loss should control in computing the timeliness of filing its action and, accordingly, the court erred in applying the latter. For the reasons set forth below, we affirm.

In 1975 Wabash purchased the boiler and auxiliary equipment at issue here. It subsequently dismantled the boiler and placed it and the auxiliary equipment in storage at a railroad yard leased to it and located near St. Petersburg, Florida. Unbeknownst to Wabash, the boiler and equipment were stolen from the railroad yard in 1985 during the months of March and April. Wabash did not learn of the theft until July 1986. On July 8, 1986, Wabash gave notice of the loss to International and also notified the local police of the theft. Wabash then commenced an extensive investigation to learn the identities of all persons responsible for the theft and, after acquiring sufficient information, filed a proof of loss with International on August 8. On October 7, International sent a letter to Wabash declining coverage. On November 21, Wabash filed a complaint for declaratory judgment. The complaint was dismissed without prejudice on June 4, 1987, pursuant to the motion of International. A second amended complaint filed by Wabash was similarly dismissed on December 3, 1987, and this appeal followed.

The policy at issue here contains two separate contractual limitation periods — one for fire and the other for theft. The fire section provides:

“No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.”

The theft section provides:

“No suit on this policy shall be valid unless the insured has complied with all policy requirements and the suit is commenced within one (1) year (unless a longer period is provided by applicable statute):
a. following the date of loss ***.” (Emphasis added.)

The policy also requires Wabash to “[g]ive notice to the police when a theft is discovered.” (Emphasis added.)

In dismissing Wabash’s action for failure to file suit within one year, the trial court held that the tolling statute extending the contractual limitation period contained in section 143.1 of the Illinois Insurance Code (111. Rev. Stat. 1985, ch. 73, par. 755.1) was the “applicable statute” referred to in the theft section of Wabash’s policy. That statute provides:

“Whenever any policy or contract for insurance *** contains a provision limiting the period within which the insured may bring suit, the running of such period is tolled from the date proof of loss is filed, in whatever form is required by the policy, until the date the claim is denied in whole or in part.” Ill. Rev. Stat. 1985, ch. 73, par. 755.1.

Wabash, on the other hand, asserts that since section 143.1 would also apply to the fire limitation period by operation of law, the “applicable statute” referred to in the theft clause must be something other than section 143.1, i.e., section 13 — 206 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 206), which provides:

“Ten-year limitation. *** [A]ctions on *** written contracts *** shall be commenced within 10 years next after the cause of action accrued ***.”

More specifically, Wabash reasons that “[i]f International had intended both limitation periods to have the same meaning, i.e. that the time for filing suit under either limitation period would end on the same date, then, presumably, it would have drafted the ‘theft period’ exactly the same way, or perhaps, it would have used only one limitation period to cover all losses covered by the policy, whether or not the loss for fire or theft. Certainly, if International had intended the running of the ‘theft period’ to end one year from the inception of the loss, it would either have used the ‘inception of loss’ language, which is unqualifiedly restrictive, or it would not have included the exculpatory and exceptional phrase ‘unless a longer period is provided by applicable statute.’ ” (Emphasis in original.) Accordingly, Wabash contends that the “applicable statute” language is ambiguous because it is susceptible of different constructions and must be construed against International. See State Farm Mutual Automobile Insurance Co. v. Byrne (1987), 156 Ill. App. 3d 1098, 510 N.E.2d 131 (ambiguous insurance policy provisions are to be construed against an insurer and in favor of the insured).

In response, Wabash, relying on Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, 369 N.E.2d 875, argues that the fire provision does not contain the parenthetical language used in the theft provision because it was required to conform the fire limitation provision to the one in the “Standard Fire Policy” promulgated by the Director of Insurance and, therefore, it was precluded from modifying that provision. Wabash counters that Stofer “did not hold that the one-year period in the Standard Fire Policy in Blinois must be endorsed in all policies ‘without modification.’ ”

In Stofer, the plaintiffs challenged the authority of the Director of Insurance to “prescribe uniform insurance contracts (including contractual limitations on the time within which suits may be brought against the insurer by the insured).” (Emphasis added.) (68 Ill. 2d at 365.) The Director had promulgated Rule 23.01, which prescribed a standard fire and lightning insurance policy and prohibited the making, issuance, and delivery of insurance contracts and policies which did not conform to the standard policy. The standard policy provision which was incorporated in the plaintiffs’ contracts of fire insurance was identical to the one in the instant case. The Stofer court subsequently held “that the legislature may delegate to the Director the power to prescribe a uniform insurance contract containing a clause limiting the time during which actions may be brought by the insured against his insurer.” 68 Ill. 2d at 369.

In the instant case, Wabash contends that because the Stofer court’s holding does not contain language specifically prohibiting modification of the one-year limitation period, then modification of the provision was possible and International could have so done. We find Wabash’s reasoning without merit. In upholding the Director’s authority to promulgate the specific fire provision at issue in Stofer, like the identical one contained in the policy here, the court pointed out that the legislative purpose underlying the Director’s authority to promulgate a uniform basic policy was to prevent chaotic proliferation of disparate fire insurance policies. Moreover, the Stofer court specifically stated that although the plaintiffs there claimed “that the legislature did not delegate to the Director of Insurance the power to prescribe the time limit at issue here [Rule 23.01 — “twelve months next after inception of the loss”], their “contention does not withstand scrutiny of the history of Rule 23.01 and its counterparts in other jurisdictions.” (68 Ill. 2d at 367.) We further observe that Rule 23.01 provides:

“Section 1. *** The purpose of this Rule is to implement Section 397 of the Illinois Insurance Code.
Section 2. *** This rule shall apply to all policy forms on file with the Department on or after November 1, 1975, as well as all policy forms filed after that date.
Section 3. The printed form of policy together with optional first page thereof attached hereto and filed herewith *** is hereby designated as the Standard Policy for fire and lightning insurance of the State of Illinois. All policies or contracts of such insurance issued or delivered by an insurer subject to the provisions of the Illinois Insurance Code *** shall conform to such form of Standard Policy ***.” (Emphasis added.) (Illinois Insurance Department Official Regulations & Credit Bulletins, art. XXIII (National Insurance Law Service, 1983).)

In light of the specific language of Rule 23.01, it is clear that any fire insurance policy issued was to conform to the standard policy containing the uniform “twelve months next after inception of loss” limitation period promulgated by the Director and, we note, any change of that provision could only be made by the Director or the legislature. We further observe that the Director possesses the authority to discontinue any inconsistent policies. Accordingly, although the Stofer court did not specifically include language in its holding that the time limitation provision could not be modified, Rule 23.01, requiring the conformity of fire policies issued in Illinois with the standard policy created by the Director, would automatically preclude modification. We therefore find that no ambiguity exists in the present policy solely because of the differently worded limitation period provisions for commencing suit.

We also note that where there is a specific statutory provision and a general one, either in the same or another act which relates to the same subject that the specific provision relates to, the specific provision should be applied. (United States Steel Corp. v. Pollution Control Board (1978), 64 Ill. App. 3d 34, 380 N.E.2d 909.) Here, section 143.1 is a specific limitation provision, relative to insurance contracts, lengthening the time within which to file suit by tolling the time from the date of proof of loss until the date the claim is denied by an insurer, whereas section 13 — 206 is a general statute of limitations for all written contracts which confers no rights and is merely a procedural bar to the remedy of breach of contract (see Flemming v. Yeazel (1942), 379 Ill. 343, 40 N.E.2d 507). Section 143.1 in effect does lengthen the time for filing suit, notwithstanding that it is a much shorter time than section 13 — 206, and therefore it qualifies as the “applicable statute” referred to in the policy. Accordingly, we find that the trial court correctly applied section 143.1 in determining the timeliness of the filing of Wabash’s suit.

We briefly note that the authorities of other jurisdictions relied on by Wabash in support of its argument that the “applicable statute” language refers to a State’s general statute of limitations on written contracts are inapplicable to the case before us. (See Queen Tufting Co. v. Fireman’s Fund Insurance Co. (1977), 239 Ga. 843, 239 S.E.2d 27; General Instrument Corp. v. American Home Assurance Co. (E.D. Penn. 1975), 397 E Supp. 1074; Bargaintown, D.C., Inc. v. Bellefonte Insurance Co. (1981), 54 N.Y.2d 700, 426 N.E.2d 469, 442 N.Y.S.2d 975.) In Queen Tufting and General Instrument, the courts ruled that their general statutes of limitations on written contracts were the “applicable statutes” referred to in the policies involved, but only after satisfying themselves that there was no specific State statute directed at limitation clauses of insurance policies. Here, as discussed above, section 143.1 is a specific statute relating to insurance contracts. The fact that it applies by operation of law certainly does not affect its status as an “applicable statute” extending the limitation period. Wabash’s reliance on Bargaintown is also misplaced since it cites to the dissent therein, which has no precedential value.

On the other hand, we find the Bargaintown majority opinion instructive on this issue, in which the court stated:

“The court will not read the clause ‘unless a longer period of time is provided by applicable statute’ as manifesting an intent to import the six-year Statute of Limitations applicable to contract actions in general when to do so would necessarily be to ascribe to the parties an intention to include a wholly meaningless reference to a one-year period of limitation.” (54 N.Y.2d at 701, 426 N.E.2d at 470, 442 N.Y.S.2d at 476.)

(See also Bass v. Standard Accident Insurance Co. (4th Cir. 1934), 70 F.2d 86 (where an insurance policy contained a clause stating that if the contractual time limitation for filing suit was at variance with any specific statutory provision in relation thereto, then the statutory provision would supersede the contractual limitation, the court held that a general statute of limitations would not qualify as a specific statutory provision because otherwise the contractual limit would be void in every State which has a general statute of limitations).) Here, we similarly find that if we were to accept Wabash’s interpretation of “applicable statute” to refer to the general statute of limitations, it would render the contractual one-year limitation period meaningless, which would be contrary to the well-settled rule that in construing a contract it is presumed that all provisions were inserted for a purpose. See Benedetti & Sons, Inc. v. O’Malley (1984), 124 Ill. App. 3d 500, 464 N.E.2d 292.

Wabash’s next argument is that even if section 13 — 206 does not apply, its action nonetheless was timely filed because it was filed within one year of the date of discovery of its loss. Specifically, Wabash contends that since a contractual limitation period begins to run at the time the insured’s right to commence suit accrues (see 20A J. Appleman, Insurance Law & Practice §11611 (1980)), “[wjhere the policy, like the one in suit, requires the insured to notify the police upon the discovery of a loss by theft, and to furnish proof of loss prior to the commencement of suit, the insured’s cause of action cannot possibly accrue until the insured has the opportunity to perform those conditions precedent to litigation. The limitations period starts to run from that date.” (Emphasis in original.) In other words, Wabash argues that because these condition precedents must be satisfied before commencing suit and compliance therewith could not be performed until it discovered its loss, the policy language requiring that suit be commenced within one year following the date of loss must mean the date of discovery of the loss, rather than the date of inception or actual date of loss. See Johnson v. Humboldt Insurance Co. (1878), 91 Ill. 92 (inception of loss ordinarily means date of loss).

We find Wabash’s reasoning without merit because it fails to recognize that the condition precedents could have been satisfied had it discovered the theft within sufficient time after its occurrence, which it could have done had it practiced periodic checks on the status of its property. We conclude therefore that Wabash’s argument is nothing more than an attempt to place the consequences of its failure to police its property on International. See Naghten v. Maryland Casualty Co. (1964), 47 Ill. App. 2d 74, 197 N.E.2d 489 (case implies that an insured has an affirmative burden to diligently investigate any potential loss and to determine in a timely fashion if a loss has occurred which is compensable under its insurance policy).

Moreover, Illinois courts have refused to adopt a date of discovery rule in regard to the time limits of policies of this nature for filing suits to recover for losses covered thereby. (See Wilson v. Indiana Insurance Co. (1986), 150 Ill. App. 3d 669, 502 N.E.2d 69 (loss resulting from damage to home); Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 393 N.E.2d 1223 (loss resulting from damage to painting); Naghten v. Maryland Casualty Co. (1964), 47 Ill. App. 2d 74, 197 N.E.2d 489 (loss resulting from latent condition in cement floor of insured’s home); Sager Glove Corp. v. Aetna Insurance Co. (7th Cir. 1963), 317 F.2d 439 (loss resulting from successive acts of vandalism).) Specifically, in Sager, the court rejected the plaintiff’s theory that the limitation period for filing suit did not begin to run until the loss was discovered, stating:

“We have found no Illinois cases where the phrase involved here — ‘twelve months next after inception of the loss’ — has been discussed as to losses from vandalism or malicious mischief. It is our conclusion that the meaning of the phrase is quite clear. It has nothing to do with the state of mind of the insured. It deals with an objective fact which in the context of this case is a specific act of vandalism or malicious mischief. The loss occurs and has its ‘inception’ whether or not the insured knows of it.” (Emphasis added.) (317 F.2d at 440-41.)

In Naghten, this court followed Sager, stating:

“We feel, as did the court in the Sager case, that the determination of the time of the loss cannot be left to the insured. The insurance company has certain investigative procedures, which must be brought to bear on a particular loss if they are to remain in business. If plaintiff’s interpretation should be followed, there would be no time limitation between the occurrence of the damage and the time for filing the suit. The only determining factor would be the date on which the proof of loss was filed. An insurance company would be greatly prejudiced.
* * *
*** Taking inception in its most favorable interpretation for plaintiff, this suit was not brought within twelve months of the occurrence.” (Emphasis added.) (Naghten, 47 Ill. App. 2d at 79-80.)

In Florsheim, even though the court did not find it necessary to determine the date of loss but relied on the date the plaintiff discovered her loss, which was more than one year prior to the filing of her suit, the court stated:

“It has been well established in Illinois for nearly a century that the period of limitations runs from the date of loss ***.’’ (Florsheim, 75 Ill. App. 3d at 308.)

In light of the foregoing, we therefore reject Wabash’s urging that we follow Olsen Marine Supplies of Norfolk, Inc. v. Fidelity-Phoenix Fire Insurance Co. (S.D.N.Y. 1950), 94 E Supp. 726, which held, contrary to existing Illinois case law, that the statutory period for bringing an action began to run from the date of the plaintiff’s discovery of its loss. (See also Wilson v. Indiana Insurance Co. (1986), 150 Ill. App. 3d 669, 502 N.E.2d 69 (court declined to follow Olsen Marine Supplies).) We further briefly observe that in any event Olsen Marine Supplies is distinguishable from the case before us. There, the plaintiff could not determine if it had suffered the loss of a plane until it could actually discover if it had crashed. Here, Wabash could have discovered the theft earlier had it but periodically policed its property.

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

Affirmed.

PINCHAM and COCCIA, JJ., concur.


author: JUSTICE COCCIA

text:
    JANICE WEBER, Plaintiff-Appellant, v. CHEN ENTERPRISES, INC., d/b/a Crabhouse Restaurant, Defendant-Appellee.
    First District (5th Division)
    No. 1—88—1623
    Opinion filed June 16, 1989.

      James Paul Costello, Ltd., of Chicago, for appellant.
    Modesto, Reynolds & McDermott, of Chicago (Gregory G. Lawton, of counsel), for appellee.
   JUSTICE COCCIA

delivered the opinion of the court:

On February 6, 1985, plaintiff Janice Weber, together with her friend, were patrons of defendant’s restaurant. Weber brings this suit for damages resulting from the serious personal injuries which she allegedly sustained while traversing defendant’s parking lot on her way back to their car following dinner. She alleges that her injuries were proximately occasioned by inadequate lighting, causing her to slip and fall due to a hazard found in defendant’s parking lot, which consisted of a natural accumulation of ice or snow. The fall took place in the darkness of night, save for the existence of some illumination in the parking lot, which she alleges to have been inadequate. She further claims that because of the inadequacy of illumination she was unable to see and discover the presence of the potential hazard, and that as a proximate cause of such alleged inadequate illumination she fell and sustained severe injuries.

Defendant asserted that the existence of the natural accumulation of the ice or snow was, in fact, the defect which occasioned the plaintiff to fall, and it predicated its motion for summary judgment principally on this theory. The defendant additionally claimed that since the ice or snow involved arose from a natural accumulation, there was no duty to warn against such hazards.

The trial court agreed with the defendant and, based on the authority of Newcomm v. Jul (1971), 133 Ill. App. 2d 918, 273 N.E.2d 699, and Walker v. Chicago Transit Authority (1980), 92 Ill. App. 3d 120, 416 N.E.2d 10, granted the restaurant’s motion for summary judgment.

We respectfully disagree with the trial judge and reverse and remand this cause for trial. It is our view that there exists a genuine issue of material fact in this case, thus rendering summary judgment inappropriate. Plaintiff is entitled to have her cause of action tried by a jury in order that they may resolve the true issue of this case, that of whether the existing illumination in the parking lot at the time of plaintiff’s fall was inadequate to permit her to discover the hazard which occasioned her fall, and that such alleged inadequacy was the proximate cause of her fall and serious injuries.

It is not accurate to assume that the underlying cause of action is predicated upon a claim for injuries arising as a result of a slip and fall on a natural accumulation of ice or snow. The charge against the defendant is that the parking lot, wherein plaintiff and her friend were legally and properly parked for the purposes of enjoying a dinner at defendant’s restaurant, was so inadequately illuminated that the plaintiff could not and did not discern the hazards which caused her to slip and fall. The existence of allegedly inadequate illumination, which if substantiated as a proximate cause of her fall, removes defendant from the safeguard of claiming that the law does not afford the plaintiff a remedy for injuries occasioned as a consequence of slipping on a natural accumulation of ice or snow.

It is our view that the holding in Walker is clearly distinguishable and consequently inapplicable to our case. In Walker the court held that there was no duty, and consequently no liability, for injuries sustained as a result of the presence of naturally accumulated water. There is no argument with this concept. The Walker case, however, never dealt with the issue of whether inadequate illumination precluded the discovery of the hazard, namely the natural accumulation of water. Rather, the underlying issue went to the question of whether the floor, allegedly sloped and uneven, permitted the unnatural accumulation of water. The Walker court dismissed this theory for the reason that there was no expert testimony introduced in support thereof.

The majority of the court in Newcomm adhered to the principle that absent any evidence that the ice or snow was the result of an unnatural or artificial accumulation thereof, the only inference was that it was a natural accumulation, and if so defendant was under no duty to warn against the hazards thereof, by way of illumination or otherwise. Thus, it could not have been a proximate cause of plaintiff’s injuries.

We disagree with the Newcomm majority for the reason that it assumed that the underlying cause of action was based upon a natural accumulation of ice or snow. This is simply not the fact in our case. The cause of action here is based on alleged inadequate lighting as the proximate cause of plaintiff’s fall and subsequent injuries. We agree with the dissent in Newcomm, which argued that the majority’s conclusion was inconsistent with precedent in this State, and inconsistent with the theory upon which that case was tried.

In our case, plaintiff’s companion attested to the existence of poor lighting in the parking lot where their car had been parked. The plaintiff in her answers to written interrogatories swore to the truth of the fact that there was evidence of poor lighting in the parking lot. Further, in her deposition, plaintiff attested to the fact that at the time of the fall it was dark out, and there was only one light illuminating the parking lot, and it was located in the back of the corner of the building. She testified that she did not see the patch of ice upon which she slipped, as it was dark.

In the face of this evidence, it was clear that the plaintiff was entitled to present these facts to a jury of her peers so that they could hear, weigh, and determine the credibility of her evidence, and evaluate whether it supported her theory regarding the adequacy of the illumination. There was no credible evidence of adequate illumination introduced by the defendant in support, of its motion for summary judgment. Defendant relied solely on the concept that the presence of a natural accumulation of ice or snow cannot give rise to a valid cause of action regardless of the existence of adequate or inadequate illumination.

Summary judgment is an important tool in the administration of justice. Its use in a proper case, in which no genuine issue as to any material fact is present, is to be encouraged. The benefits of summary judgment in a proper case inure not only to the litigants, in the saving of time and expenses, but to the community in avoiding congestion of trial calendars and the expense of unnecessary trials. (Allen v. Meyer (1958), 14 Ill. 2d 284, 292, 152 N.E.2d 576, 580.) We simply do not believe that the instant case is proper for invoking summary judgment, as a material issue of fact exists requiring reversal.

The court in Wysocki v. Bedrosian (1984), 124 Ill. App. 3d 158, 164, 463 N.E.2d 1339, 1344, reviewed the leading principles regarding summary judgment procedure:

“A motion for summary judgment is proper where the pleadings, depositions and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. [Citation.] The extreme nature of the summary judgment remedy requires that the trial court exercise extraordinary diligence in its revieiv of the record so as not to preempt the right to a trial by jury or the right to fully present the factual basis for a claim. [Citation.] The trial court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. Summary judgment should be granted only when the party’s right to it is clear and free from doubt. [Citations.] *** On appeal, the court will reverse an order granting summary judgment if it determines that a material issue of fact exists and that the moving party is not entitled to judgment as a matter of law. [Citation.]” (Emphasis added.)

We call attention to Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769, which ratifies an age-old theorem to the effect that common law liability can arise from the negligent performance of a voluntary undertaking. Thus defendant acted as a volunteer in illuminating the parking lot. Having done so, when arguably it had no such duty, it is then held responsible to discharge the undertaking with due care and not to do so negligently.

In holding as we do, we are mindful of our decisions in Rush v. Simon & Mazian, Inc. (1987), 159 Ill. App. 3d 1081, 513 N.E.2d 100, and that of Burke v. City of Chicago (1987), 160 Ill. App. 3d 953, 513 N.E.2d 984. We find them distinguishable. Neither the Rush nor Burke case was concerned with the issue of the adequacy of illumination. Although both cases are concerned with motions for summary judgment, the decisions seek to enforce the theory that defendants are under no duty to protect the plaintiff where only natural accumulations of ice or snow are present. In Rush the trial court found that plaintiff did not show that the ice resulted from anything other than a natural accumulation. In addition, the Rush court found that plaintiff’s theory was legally and procedurally wanting. The reasoning in both the Rush and Burke cases does not suffer whatsoever as a result of the holding in our case as neither of them is concerned with our issue of the adequacy of illumination of a parking lot, undertaken voluntarily by the restaurant owner in an attempt to illuminate hazards, including the natural formations of ice or snow.

It is interesting to note that Burke actually supports our position as it refers with favor to the case of Sims v. Block (1968), 94 Ill. App. 2d 215, 236 N.E.2d 572. The Sims court held a landowner liable for a gratuitous undertaking which created a physical hazard that ultimately caused injury. Further, Burke supports the concept that the negligent performance of a gratuitous undertaking imposes liability for injuries proximately resulting therefrom.

Plaintiff is entitled to her day in court. Her responsibilities include establishing that the illumination was indeed inadequate, which fact proximately occasioned her injury. We accordingly reverse and remand this cause for trial in accordance with the views expressed herein.

Reversed and remanded.

MURRAY, P.J., and LORENZ, J., concur.


text:
    WILLIAM ROBERT LEE, Plaintiff-Appellant, v. SUSAN EGAN, Defendant-Appellee.
    First District (5th Division)
    No. 1—88—2168
    Opinion filed June 16, 1989.
    Nathan Shefner, of Chicago, for appellant.
    Jay A. Frank, of Frank & Melamed, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff William Robert Lee appeals from an order of the trial court awarding defendant Susan Egan the sum of $6,649 against him and his attorney for fees based on its finding that a second cause of action almost identical to one previously filed by him and decided adversely against him in the trial court was “not only a multiplicity of suits but unnecessary harassment as well,” requiring Egan not only to defend against it in the trial court, but also in the appellate court.

This is the third time the parties in this matter are before us. In 1981, plaintiff Lee filed a complaint in the trial court based on a theory of fraud against his sister, defendant Egan, to enforce a constructive trust. After trial, judgment was entered in favor of Egan. Lee appealed from that judgment and this court, pursuant to a Rule 23 order (107 Ill. 2d R. 23), affirmed the trial court. Lee v. Egan (1983), 118 Ill. App. 3d 1155, 470 N.E.2d 656.

In 1984, Lee filed a second complaint seeking an accounting from Egan to recover money she allegedly had fraudulently obtained from him. The trial court dismissed Lee’s action, finding that his allegations of fraud by Egan were the same raised in his 1981 action, which had been fully litigated and decided adversely against him. The court also awarded Egan $1,875 in attorney fees pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611), which authorizes the imposition of fees to penalize a litigant who has brought vexatious or harassing actions. Lee appealed to this court from that judgment, and we again affirmed the trial court (Lee v. Egan (1987), 160 Ill. App. 3d 1078, 513 N.E.2d 1023) and denied Lee’s later petition for rehearing. Our supreme court denied Lee’s petition for leave to appeal (Lee v. Egan (1987), 118 Ill. 2d 545, 518 N.E.2d 1054), as well as a motion for reconsideration of its denial of his petition.

Subsequent to the foregoing decisions, Egan filed a petition in the trial court seeking additional fees and costs incurred in defending against Lee’s second appeal, asserting that that appeal was “a needless extension of a baseless lawsuit.” Lee filed an objection to the granting of additional fees and a supplement to that objection. On June 23, 1986, the trial court awarded Egan $6,649 in fees and costs and entered judgment against Lee and his attorney.

In the instant appeal, Lee’s third, Lee argues that there is no basis in law for the recovery of the additional fees and costs awarded to Egan by the trial court subsequent to his second appeal. Egan contends, as she did in the trial court, that the court’s judgment was proper because Lee’s second appeal and petition for rehearing in this court and his petition for leave to appeal to the supreme court thereafter were baseless. In support thereof, she relies on Aroonsakul v. Flanagan (1987), 155 Ill. App. 3d 223, 507 N.E.2d 1, Dayan v. McDonald’s Corp. (1984), 126 Ill. App. 3d 11, 466 N.E.2d 945, and Federal Insurance Co. v. Maritime Shipping Agencies, Inc. (1978), 64 Ill. App. 3d 19, 380 N.E.2d 873.

In each of the cases cited by Egan, unlike the situation here, this court affirmed the trial court and remanded the cases for the purpose of awarding fees for a frivolous or groundless appeal. Here, this court in the underlying appeal at issue between the parties merely affirmed the trial court and did not remand the cause. The cases relied on by Egan therefore are inapplicable.

Moreover, it is well settled that no question which was raised or could have been raised and passed upon in a prior appeal on the merits of a case can be urged in a subsequent appeal and those questions not raised are considered waived. (Kazubowski v. Kazubowski (1970), 45 Ill. 2d 405, 259 N.E.2d 282.) Once a case has been decided by an appellate court, the only questions which may be considered on a subsequent appeal involving the same issue is whether the trial court followed this court’s mandate. People ex rel. Maeras v. Chicago, Burlington & Quincy R.R. Co. (1967), 36 Ill. 2d 585, 224 N.E.2d 248.

In the instant case, as stated previously, this court merely affirmed the trial court in the appeal underlying Egan’s later, claim in the trial court for additional fees and costs. We did not affirm and remand for the purpose of awarding additional fees and costs on the basis of Lee’s continuance of frivolous litigation. In fact, we could not have done so in light of the fact that that question was not before us since Egan did not raise it in her appellate brief.

We finally note, as Justice Pinchara stated in this court’s opinion disposing of Lee’s second appeal, “[t]he purpose of the doctrine of res judicata is to prevent the unnecessary harassment of a multiplicity of lawsuits on the same cause of action. Radosta v. Chrysler Corp. (1982), 110 Ill. App. 3d 1066, 1069, 443 N.E.2d 670. *** To allow plaintiff to avoid the bar of res judicata under such circumstances would abrogate the very purpose of the doctrine.” (Lee v. Egan (1987), 160 Ill. App. 3d 1078, 1081, 513 N.E.2d 1023.) Similarly, in the instant appeal it would be an unfair application of the law to hold that a plaintiff (Lee) is barred by a prior action in the trial court but that a defendant (Egan) is not so barred by a prior action in this court. Clearly, Egan waived the question of her entitlement to additional fees and costs in defending against Lee’s second appeal by failing to raise it at that time and, therefore, the doctrine of res judicata precluded her from making a subsequent claim in the trial court.

Since this court never remanded the cause to the trial court for the purpose of awarding or determining attorney fees and costs for a frivolous appeal but merely affirmed the trial court, we therefore reverse the trial court’s judgment for lack of jurisdiction.

Reversed.

PINCHAM and COCCIA, JJ., concur.


author: JUSTICE QUINLAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OSBORNE ALEXANDER, Defendant-Appellant.
    First District (6th Division)
    No. 1—86—3611
    Opinion filed June 16, 1989.

      Michael J. Pelletier and Leia M. Norton, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Christine Perille, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE QUINLAN

delivered the opinion of the court:

The defendant, Osborne Alexander, was arrested and charged by indictment with the murder and armed robbery of Michael Winfield. Following a jury trial in the circuit court of Cook County, the defendant was found guilty and sentenced to 40 years in the Illinois Department of Corrections. The defendant has appealed his conviction to this court, asking that this court reverse his conviction and order a new trial.

On March 3, 1985, Michael Winfield, a Checker Cab driver, was found shot to death in his cab in the 7300 block of South Clyde in Chicago. Chicago police officer Phyllis Stewart was called to the scene and discovered the cab wedged between two cars, with its motor still running, and the driver slumped behind the wheel of the car. The cab’s fare box was still on and registered $3.60, plus 50 cents in extras. Upon investigation, neighborhood residents gave a description of the offender as a male black, approximately 6 feet tall. Later, the defendant, Osborne Alexander, was arrested and charged with the murder and armed robbery of Winfield.

At defendant’s trial, the State’s chief witness was Claude Young. Young admitted that he was under indictment for 10 armed robberies and that the State had agreed to recommend a maximum sentence of 15 years on those robberies in return for his testimony. He also admitted that he had previously been convicted of voluntary manslaughter. In his testimony, Young stated that he was at home on March 3, 1985, at 3 a.m., watching television in his second-floor apartment, when he heard a gunshot, which was followed by the sound of crashing automobiles. He then heard someone banging on the window of the first floor of the building. Young went downstairs and saw the defendant, Osborne Alexander, and Jerry Polk, who lived on the first floor of Young’s building, standing together and talking. Young said the defendant had a .38 caliber gun with him, which Young said he knew was the defendant’s gun. Young further testified that he noticed blood on the sleeve of the defendant’s coat.

Young additionally testified that the defendant told him at that time that the defendant and his wife had been at the Jedi Lounge and had taken a cab home. He said the defendant also told him he had instructed the cab driver to drop his wife off at home and then drive him to 73rd and Clyde. Once the cab driver reached 73rd and Clyde, the defendant stated that he pulled out his gun and demanded the cab driver’s money. The cab driver, the defendant said, refused to give him any money and turned around to hit the defendant in the face. Young stated that the defendant then shot the cab driver, jumped out of the cab, and took the cab driver’s money from his pockets, along with some pornographic pictures that were on the front seat of the cab, and ran to Young’s building, which was just down the alley from 73rd and Clyde.

Young said that the defendant initially wanted to escape through the back of Young’s building, but decided to wait when he saw that the police had arrived. The defendant, Young and Polk then went down to Polk’s apartment. At one point, Polk went to the defendant’s house and brought back a change of clothes for him. Once the police were gone, the defendant changed his clothes, gave his gun to Young, and left. Around noon that same day, Young returned the defendant’s clothes and gun to him. Several days later, the defendant gave the gun back to Young and asked Young to sell it. Young then sold the gun to a bootlegger.

Later, Young said, on April 8, 1985, he was arrested on an unrelated charge, and after talking with the police officers, agreed to take them to the bootlegger to retrieve the defendant’s gun. The bootlegger had sold the gun, but was able to recover it. Thereafter, the gun was turned over to the police.

Robert Loeb next testified that he was an assistant State’s Attorney and on April 8, 1985, was assigned to the felony review unit of the State’s Attorney’s office. On April 8, he was called to the police station to talk -with the defendant concerning the murder of Winfield. The defendant was not handcuffed and appeared alert and composed. Loeb introduced himself to the defendant, explained that he was working with the police, and advised the defendant of his Miranda rights. Loeb talked with the defendant for approximately 45 minutes. Loeb then asked the defendant if he would go through the same statement again in front of a court reporter. The defendant refused, but agreed to sign a typed statement of what he had just said.

Loeb then typed a summary of the defendant’s statement and read the statement to the defendant. Loeb read the statement a second time and the defendant pointed out two mistakes. Loeb then wrote in the corrections that the defendant told him to make and the defendant initialled those corrections. On cross-examination, Loeb said that the defendant had never actually signed the typed statement and had never admitted that he shot Winfield, but instead said that a man named James Grace had done the shooting. Loeb also said that he saw the defendant’s wife at the police station, but that she was not in custody or restrained in any way.

The defendant’s typed statement was then read to the jury. In his statement, the defendant said that James Grace had dropped the defendant and his wife, Lydia, off at the Jedi Lounge at 11 p.m. on March 2, 1985. Defendant and Lydia left the Jedi around 1:30 a.m. (now March 3) and took a cab home. The cab dropped Lydia off, and defendant then told the cab driver to pick Grace up at the P & J Liquor store. After picking Grace up, the defendant had the cab driver take them to “Caiman’s” to buy cocaine. The defendant went up to Cat-man’s and left Grace in the cab. The defendant did not want to take his gun to Caiman’s, so he left it with Grace. Defendant then returned to the cab and sat in the front seat. When the cab reached the 7300 block of South Clyde, Grace pulled out defendant’s gun. The cab driver tried to hit Grace, and Grace shot him. The cab then hit a parked car. Grace jumped out of the cab and defendant took $30 from the driver’s pocket, and then he also jumped out of the cab. The defendant ran to Young’s house. Young went to defendant’s house and brought a change of clothes back for the defendant. Young later sold defendant’s gun to a bootlegger.

The defense next presented its case and the defendant testified on his own behalf. The defendant testified that he and his wife went to the Jedi Lounge on March 2, 1985, at 10 p.m. They left at 3 a.m., March 3, and took a cab home. On the way home, defendant and his wife had an argument because the defendant had wanted to stay at the Jedi Lounge. When the cab driver arrived at the defendant’s home, defendant’s wife got out of the cab and the defendant paid the driver $7. Defendant then told the driver to wait because he did not want to go home yet. He got back in the cab and told the driver to take him back to the Jedi. When he did so, the driver started the cab’s meter again. On the way back to the Jedi, the defendant told the driver to stop at the P & J Liquor store so he could get some cigarettes. The cab waited while the defendant went into the liquor store. As the defendant was walking into the liquor store, he saw Grace and had a brief conversation with him. When the defendant came out of the store, both the cab and Grace were gone. The defendant went into a nearby bar for a few drinks and then walked home, arriving home around 4:30 a.m.

Later that day, around 3 or 4 p.m., Grace and Young came over to defendant’s apartment and told him to turn on the television news. The defendant sent his wife into the kitchen while he had a conversation with Grace and Young. When the television news reported the story of Winfield’s murder, Grace told the defendant that the victim was the driver of the cab that the defendant had been in the night before. Grace told the defendant that he got into the cab when the defendant went into the liquor store and that he had killed the cab driver. Young and Grace threatened the defendant and his wife when the defendant said he was going to call the police.

On April 7, 1985, the defendant was arrested and was informed that Grace told the police that the defendant had murdered Winfield. The defendant claimed that he told the arresting officers the same story that he had just told on direct examination, but that the detectives told him that his story was a “bunch of bullshit” and that he should remember that the officers also had his wife in custody and could charge her with murder. The detectives then told the defendant what to say and this version was put into the statement that Loeb typed. Defendant testified that the entire time he was being interrogated, he was in handcuffs. At trial, the defendant said that the statement Loeb typed was a lie and that he had never signed it because it was not true. The defendant also said that Young’s testimony on the stand was fabricated and that the gun used to kill Winfield was not his. The defendant admitted that he had been convicted of armed robbery in Illinois. He also said that he was 6 feet 8 inches tall and he estimated that Grace was 5 feet 11 inches tall. The defense then rested.

The State presented a rebuttal witness and also offered into evidence an abstract of a judgment from California which reflected that the defendant had been convicted of voluntary manslaughter in California. The defendant then testified in surrebuttal and explained that the voluntary manslaughter conviction was based on a homicide that he committed when he was acting in self-defense. After the defendant’s testimony on surrebuttal, the trial judge gave the jury its instructions on the law, which were followed by closing arguments. As noted, the defendant was found guilty and sentenced to 30 years of imprisonment. The defendant raises three issues on appeal.

Defendant’s first issue on appeal is that the trial court committed reversible error when it allowed the State to impeach his testimony with evidence of a voluntary manslaughter conviction from California, to which he had entered a plea of nolo contendere. Defendant argues that according to the Illinois Supreme Court’s decision in People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, a plea of nolo contendere is not admissible to impeach a defendant’s credibility. In addition, the defendant contends that his credibility, as opposed to the credibility of Claude Young, was crucial at his trial and thus the evidence of his prior homicide most likely had a negative effect on the jury’s evaluation of his testimony. Finally, the defendant admits that he also failed to raise this issue in his post-trial motion, but asks this court to consider the issue nonetheless under Illinois Supreme Court Rule 615(a), which allows a reviewing court to consider an issue not raised in the trial court if that issue involves a plain error affecting substantial rights. 107 Ill. 2d R. 615.

The State argues that the defendant has waived this issue upon review because, in addition to the fact that he did not raise the issue in his post-trial motion, his only objection at trial to the admission of his prior homicide was that the document showing his California conviction was an abstract of judgment and not a certified copy of the conviction. Alternatively, the State contends that the defendant’s prior homicide was properly admitted at trial because it would have been admissible in California to impeach the defendant, as well as in the Federal courts, and, consequently, Illinois should also allow use of the conviction. The State also argues that any error here was, in any event, harmless and did not rise to the level of reversible error.

In People v. Montgomery (1971), 47 Ill. 2d 506, 516, 368 N.E.2d 695, our supreme court adopted proposed Federal Rule of Evidence 609, which provided at that time that “for the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime, except on a plea of nolo contendere, is admissible.” Subsequently, however, the version of Rule 609 which was eventually adopted deleted several parts of the proposed rule, including the phrase “except on a plea of nolo contendere.” Nonetheless, in People v. Yost (1980), 78 Ill. 2d 292, 399 N.E.2d 1283, the Illinois Supreme Court said that the standards set forth in Montgomery for impeachment would continue to apply in Illinois and would not change merely to correspond to changes in Federal Rule 609. At issue in Yost was a provision in the proposed rule at the time of the Montgomery case which gave judges the final discretion to allow or deny impeachment by evidence of certain convictions. This provision has also been deleted in the rule’s final Federal form. Yost, 78 Ill. 2d 292, 399 N.E.2d 1283.

We have found no Illinois case specifically addressing the issue of whether a felony conviction based on a nolo contendere plea may be used as impeachment evidence, possibly because Illinois does not recognize the nolo contendere plea. (In re Eaton (1958), 14 Ill. 2d 338, 341, 152 N.E.2d 850, 851.) We do not need, however, to decide whether a felony conviction based on a nolo contendere plea can be used for impeachment, because we find that the defendant has waived this issue. In order to preserve an issue for review, a defendant must make a specific objection at trial and also raise the issue in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) Here, the defendant never objected at trial or in his post-trial motion to the admission of the California homicide on the ground that it was based on a nolo contendere plea and, thus, we must find that he has waived the issue.

In addition, it was proper for the trial court to allow this prior homicide of the defendant to be used for impeachment here. Under Montgomery, even if a prior conviction meets the standards of the proposed Rule 609, the final decision to admit or refuse to admit the conviction is committed to the trial court’s discretion and the trial court must then balance the probative value of the prior conviction against its prejudicial effect. (Montgomery, 47 Ill. 2d at 516, 268 N.E.2d at 698.) Here, there is no support for defendant’s contention that the admission of the California homicide so prejudiced his case that it caused the jury to automatically conclude that Claude Young was the more credible witness.

Here, although the State introduced the prior conviction into evidence, the State did not question the defendant concerning this conviction. It was defendant’s counsel who questioned the defendant about the California homicide and it was the defendant who testified on surrebuttal that he had entered a plea of “no contender [sic]” to a charge of “involuntary [sic]” manslaughter because this was “the quickest way to get off.” The defendant further claimed in his testimony on surrebuttal that the California homicide occurred as a result of self-defense. Inasmuch as the defendant explained this conviction on surrebuttal, any prejudice caused by the conviction was lessened by the fact that the defendant was allowed to give his version of the circumstances surrounding that offense.

Furthermore, it is unlikely that admission of defendant’s prior homicide conviction negatively affected the jury’s evaluation of the defendant’s credibility vis-a-vis the credibility of Claude Young, since Young admitted that he had also been convicted of voluntary manslaughter and theft and was under indictment for 10 armed robberies. Finally, we note, as the State observed, the defendant’s testimony was the only evidence that the defendant had actually entered a nolo contendere plea to the California charge, because the abstract of judgment merely revealed that a plea had been entered. The defendant offered no support for this assertion. Accordingly, we conclude that no error occurred here by the admission of this conviction.

Defendant’s next issue on appeal is that the State made several improper comments during its closing argument which, he claims, substantially affected his right to a fair trial, and, thus, he is entitled to a new trial. Specifically, defendant asserts that the State improperly commented on his failure to call his wife, a nonalibi witness, to testify. Because she was equally accessible as a witness to both sides, it was, he says, error for the State to comment on his failure to call her. The defendant also contends that the State improperly commented on a matter not in evidence when the prosecutor said that James Grace must have implicated the defendant in Winfield’s murder, as Grace was never called to testify. The defendant further argues that the State improperly told the jury that it could not “create possible scenarios, inconsistent with guilt.” These errors were compounded, according to the defendant, because the comments occurred during the State’s rebuttal argument and, therefore, could not be responded to by him.

The State’s initial response to this argument is that the defendant has again waived this argument on appeal because he failed to object to these comments during trial and in his post-trial motion. Even assuming this issue was not waived, the State says that the comments were not improper. The State argues that it can comment on a defendant’s failure to call an alibi witness or a witness that is not equally accessible to it and, even though the defendant’s wife was not specifically named as an alibi witness, his wife was clearly not equally accessible to both parties because she would have been biased in favor of the defendant here. In response to defendant’s next assertion, the State apparently concedes that its comment concerning Grace was erroneous, but contends that the error was harmless and did not prejudice the defendant. The State further argues that its comment regarding “possible scenarios,” when read in context, was, in fact, a proper comment.

A prosecutor is given great latitude in this closing argument and may base his argument on the evidence presented or reasonable inferences therefrom. (People v. Rader (1988), 178 Ill. App. 3d 453, 465-66, 532 N.E.2d 1365, 1372-72.) In determining whether a prosecutor’s remarks constituted reversible error, the test is whether the remarks, when considered in light of all the evidence at trial, materially contributed to the defendant’s conviction or, stated otherwise, the jury would have reached a different result had the remarks not been made. People v. Lasley (1987), 158 Ill. App. 3d 614, 625-26, 511 N.E.2d 661, 670.

Addressing first the defendant’s claim that the State improperly commented on his failure to call his wife, a nonalibi witness, to testify, we find that the comment was not erroneous. It is true that the State cannot properly comment on a defendant’s failure to call a nonalibi witness when the comment implies that the witness would have testified unfavorably to the defendant and when that witness is equally accessible to both parties. (Lasley, 158 Ill. App. 3d at 632, 511 N.E.2d at 674.) A witness is not considered equally available, however, if the witness would likely be biased against the State. (People v. Wilson (1986), 149 Ill. App. 3d 293, 300, 500 N.E.2d 128, 133.) Here, we believe that the defendant’s wife was not equally accessible to the State inasmuch as she was likely biased in favor of the defendant. See People v. Morando (1988), 169 Ill. App. 3d 716, 523 N.E.2d 1061, 1075 (brother of defendant likely to be biased in favor of defendant and thus not equally accessible to the State); Wilson, 149 Ill. App. 3d at 300, 500 N.E.2d at 133 (defendant’s fiancee not equally available to State because she is likely biased toward defendant); People v. Taylor (1985), 137 Ill. App. 3d 148, 154, 484 N.E.2d 383, 387 (defendant’s stepchildren not equally available to State).

We also find that the comment concerning Grace was a proper comment. The record reveals that defense counsel, in his closing argument, said “[the defendant] was taken into custody on April 7th when he was told that James Grace had implicated him in a crime.” Thus the prosecutor’s comment in rebuttal was invited by the defendant’s statement in closing argument. A defendant cannot complain of a prosecutor’s statements made on rebuttal when defendant’s own argument invited those statements. (Rader, 178 Ill. App. 3d at 466, 532 N.E.2d at 1372-73.) Additionally, this statement was based on the evidence presented, since the defendant himself testified that Grace implicated him in the murder, and a prosecutor may properly base his closing argument on any evidence presented. Rader, 178 Ill. App. 3d at 466, 532 N.E.2d at 1372-73.

We also believe that the prosecutor’s comment that the jury was “not entitled to create possible scenarios, inconsistent with guilt,” if erroneous, did not amount to reversible error. Based on the record here, we cannot say that the jury would have reached a different result even if the remark had not been made. (Lasley, 158 Ill. App. 3d at 625-26, 511 N.E.2d at 670.) Therefore, we conclude that any error was harmless.

The defendant’s last issue on appeal is that he was deprived of a fair trial and is entitled to a new trial because the trial court gave its instructions to the jury before closing arguments, rather than after closing arguments, as required in the Illinois Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 4(i).) The State contends that the defendant has also waived this issue on appeal because he failed to object to the giving of the instructions at trial or in his post-trial motion. However, the State contends that even if this issue was not waived, there was no error here because the instructions were clear, accurate and complete, and in any event, any error here was harmless and did not rise to the level of reversible error.

This court recently addressed the issue of whether the giving of jury instructions before closing argument amounted to reversible error and concluded that such a procedural error did not require reversal so long as the jury instructions were clear, accurate and complete. (People v. Fox (1988), 177 Ill. App. 3d 602, 532 N.E.2d 472.) Here, a review of the record shows that the jury instructions were clear, accurate and complete and the defendant himself does not claim otherwise. Accordingly, in the present case, although the Illinois Code of Criminal Procedure provides for the giving of the jury instructions after closing argument, this error did not rise to the level of reversible error.

For all of the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. Also, pursuant to People v. Agnew (1985), 105 Ill. 2d 275, 473 N.E.2d 1319, and People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State’s request that the defendant be assessed $75 as costs for the State’s defending this appeal and incorporate it as part of our judgment.

Affirmed.

EGAN, P.J., and LaPORTA, J., concur.

      We note that Illinois courts have long recognized that a conviction results from a nolo contendere plea, just as with a guilty plea, and that a defendant does not avoid conviction simply by pleading nolo contendere rather than guilty. See Gerdes v. Edgar (1986), 148 Ill. App. 3d 646, 648, 499 N.E.2d 1016,1018.


text:
    MARGARET KONYAR, Plaintiff-Appellant, v. JOHN E. JONSSON, Indiv. and d/b/a Jonsson Construction Company, Defendant-Appellee and Third-Party Plaintiff (Ingersoll Products Corporation, Third-Party Defendant).
    First District (6th Division)
    No. 1—87—2202
    Opinion filed June 16, 1989.

      Lucy & Suhar, of Chicago (Richard H. Lucy and Gerald M. Chapman, of counsel), for appellant.
    Querrey & Harrow, Ltd., of Chicago (Victor J. Piekarski, Richard H. Hoffman, and Ellyn B. Dorf, of counsel), for appellee.
   JUSTICE QUINLAN

delivered the opinion of the court:

Plaintiff, Margaret Konyar, sued the defendant in the circuit court of Cook County, alleging that the defendant, John E. Jonsson, individually and doing business as Jonsson Construction Company, was negligent and that she was injured as a result of that negligence. The trial court granted summary judgment in favor of the defendant, and the plaintiff has now appealed the circuit court’s order to this court. We affirm.

The defendant, John Jonsson, the owner of the Jonsson Construction Company, had been hired by Ingersoll Products Corporation (Ingersoll) to do some remodeling work at the Ingersoll plant. As part of the remodeling, the defendant was to enlarge Ingersoll’s computer room, move some partitions, and put up some paneling. The defendant also constructed a false floor or platform in the computer room so that the floor in an area added to the computer room would match the existing floor in the computer room when a partition was removed. The platform was approximately eight to nine inches high and had a trough or “race” approximately six inches wide and eight to nine inches deep along the perimeter of the platform. This opening was for electrical wires and cables.

Construction on the platform began in late December 1981. All Ingersoll employees were given a Christmas holiday from December 22 until January 4. When the employees returned from Christmas vacation, the platform was completed except for some tiling, which the defendant could not finish until the electricians had completed their work. In the meantime, the defendant had begun work on another part of the plant.

When plaintiff, who worked as a keypunch operator for Ingersoll, returned to work on January 4, 1982, her normal working area was under construction, so her supervisors decided to move the keypunch operators up to the platform. Accordingly, plaintiff, Therlina McDavid and Pamela Jankowski, Ingersoll’s keypunch operators, were all moved onto the platform. Thereafter, on January 11, 1982, plaintiff caught her heel in the race as she was stepping off the platform and fell. Plaintiff sustained a broken right hip as a result of this fall.

Plaintiff filed suit against the defendant on November 8, 1983, alleging that the defendant had a duty to exercise ordinary care in the remodeling of the Ingersoll plant and that he was negligent in the exercise of this duty and, that as a direct and proximate result of the negligence, plaintiff was injured. Specifically, plaintiff asserted that the defendant negligently failed to barricade the race around the platform, negligently failed to cover the race, and negligently failed to warn the Ingersoll employees about the race. In defendant’s answer to plaintiff’s complaint, the defendant denied plaintiff’s allegations and contended that plaintiff was contributorily negligent for failing to keep a proper lookout. The defendant also filed a third-party complaint against Ingersoll, the owner of the premises and the plaintiff’s employer.

Subsequently, plaintiff, defendant and various employees of both Ingersoll and the Jonsson Construction Company gave depositions in connection with the lawsuit. Plaintiff, in her deposition, said that the supervisors at Ingersoll moved the keypunch machines and the keypunch operators up to the platform on January 4, 1982. She said that from January 4 until January 11, in order to get on and off the platform, she and the others were required to step over the race. On January 11 alone, plaintiff testified that she got on and off the platform between 10 and 20 times before her accident. Plaintiff stated that she never saw any coverings or barricades around the race, nor did she see any warnings posted. She admitted, however, that she never complained to anyone about the race. Plaintiff also said that she had seen the defendant and his employees working in another part of the plant on the day of her accident.

Therlina McDavid, another keypunch operator, also gave a deposition. McDavid said that the keypunch operators themselves asked to be moved from their normal work area when they returned to work on January 4, 1982, because the normal work area was under construction. Consequently, she stated, the Ingersoll supervisors moved the keypunch operators onto the platform. At the time the keypunch operators were moved onto the platform, McDavid said no one was working on it. Further, McDavid stated that from the time she returned to work until the time of plaintiff’s accident, she never saw the defendant or his employees working on the platform. McDavid estimated that the keypunch operators got on and off the platform at least 10 times a day. Additionally, McDavid said that although the race around the platform was not covered before the plaintiff’s accident, after plaintiff’s accident, the defendant cut boards to cover the race. However, McDavid stated she did not know whether someone from Ingersoll told the defendant to cover the race.

Joseph Moore, Ingersoll’s data processing manager, stated in his deposition that the defendant had finished with the platform when the Ingersoll employees returned to work on January 4, 1982, and that the defendant did not resume work on the platform until approximately three to four weeks after plaintiff’s accident, when the electricians had finished their work on the platform. Moore said he believed that the blueprints for the platform were drawn up by Walter Koopman, Moore’s supervisor. Koopman, he stated, was the one who told Moore to move the keypunch operators onto the platform. Moore acknowledged that the keypunch operators complained to him about the danger of working on the platform. Moore also said that the race was uncovered until after plaintiff’s accident and said it was only at that time that the defendant made covers for the race.

Koopman testified in his deposition that it was, in fact, his decision to move the keypunch machines onto the platform and that he had done so because the defendant was working on the old keypunch area. He said he was aware of the race around the platform, but stated that he never heard any complaints from the keypunch operators about the race. Finally, Koopman asserted that it was Ingersoll who had prepared the drawings that the defendant was to use in remodeling the plant, and that Ingersoll had also contracted with the electrician.

Ingersoll’s manager of manufacturing and engineering, Don Recupido, also gave a deposition and he also said that it was Ingersoll who had drawn up the plans for the platform. Furthermore, Recupido agreed that it was Koopman who had decided to move the employees onto the platform. Recupido said he never received any complaints from the employees about stepping over the race and that he had inspected the platform after Konyar’s accident and noticed that the race was covered, but, he stated, he had not told the defendant to make the covers.

John Jonsson, the defendant, testified in his deposition that Don Recupido told him to leave the race around the platform for electrical wires but said that he had not hired an electrician for the job because Ingersoll had its own contractor for electrical work. Johnson said he was certain that he had made coverings for the race before plaintiff fell, and he said he guessed that the electricians must have just forgotten to put the coverings back on after they were done working. He stated that he had stopped working on the platform at least two to three days before plaintiff fell and that he was unaware that the keypunch operators had moved onto the platform before the plaintiff's accident.

Jim Muthart, an employee of defendant, said in his deposition that the job at Ingersoll was performed according to Ingersoll’s specifications. Muthart testified that the defendant had left the race around the platform for the electricians, and that the defendant had constructed the covers for the race, with instructions to the electricians to cover the race when they were not working on the platform. Muthart also claimed to have told Don Recupido that he did not think it was a good idea to have people up on the platform before it was finished; but Recupido, in his deposition, denied that Muthart had ever expressed any concerns about safety.

After the above depositions were taken in connection with this case, the defendant filed a motion for summary judgment. Following the arguments of counsel for both parties, the trial court granted defendant’s motion. The court held that the defendant owed no duty to the plaintiff because it was Ingersoll that had decided to place the keypunch operators on the platform and the defendant did not participate in that decision. The court also held that the defendant had no duty to warn the plaintiff because the dangerous, condition was open and obvious, and plaintiff was aware of the condition and had admitted she was aware of it in her deposition.

On appeal, plaintiff raises three issues. First, she contends that the trial court erroneously found that the defendant did not owe her a duty of care and, consequently, erroneously granted summary judgment in his favor. Plaintiff also contends that the defendant in fact was instructed to make covers for the race and did know the keypunch operators would be working on the platform. Accordingly, she concludes that the defendant was negligent in failing to make the covers since it was foreseeable that a keypunch operator or another employee could trip on the open race as the plaintiff had done. Plaintiff asserts that the real issue here was merely whether the duty the defendant owed to her continued despite the fact that at the time of her accident, the defendant was no longer working on the platform itself.

The defendant, on the other hand, argues that summary judgment in his favor was proper and the court was correct in so ruling because he owed no duty to the plaintiff. The defendant contends that he was relieved of any responsibility for plaintiff’s injuries since he had followed Ingersoll’s specifications in building the platform, and plaintiff did not claim that the specifications were so obviously dangerous that no competent contractor would have followed them.

In order to state a cause of action for negligence, a plaintiff must establish that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, and that the plaintiff was injured as a proximate result of that breach. (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 503, 520 N.E.2d 37, 39; Abernathy v. Dynell Springs Co. (1989), 179 Ill. App. 3d 138, 142, 534 N.E.2d 486, 489.) Thus, in determining whether summary judgment was properly granted in a negligence action, a reviewing court must first determine whether the defendant owed the plaintiff a duty, which is a question of law. (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 163, 456 N.E.2d 116, 118-19; Abernathy, 179 Ill. App. 3d at 142, 534 N.E.2d at 489.) Summary judgment for the defendant is proper in a negligence action only when the pleadings, depositions, affidavits and admissions on file show that there is no genuine issue of material fact and, as a matter of law, the defendant owed no duty to the plaintiff. Abernathy, 179 Ill. App. 3d at 142, 534 N.E.2d at 489.

Both the plaintiff and the defendant here rely on Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368, to support their argument. In Hunt, the plaintiffs were injured when their car hit a highway exit sign manufactured by the defendant according to specifications established by the State of Illinois. (Hunt, 74 Ill. 2d at 206, 384 N.E.2d at 369-70.) The plaintiffs sought recovery from the defendant on two grounds: negligence and strict liability. (Hunt, 74 Ill. 2d at 206, 384 N.E.2d at 370.) The trial court granted summary judgment for the defendant, holding that the defendant was relieved of liability to third parties once the State approved and accepted the work. (Hunt, 74 Ill. 2d at 207, 384 N.E.2d at 370.) The Illinois Supreme Court, in reviewing the case, first ruled that the defendant’s liability to third parties continued even after the work was accepted by the State, but only if the defendant owed a duty to the third parties. (Hunt, 74 Ill. 2d at 208-09, 384 N.E.2d at 371.) The court then held, however:

“An independent contractor owes no duty to third persons to judge the plans, specifications or instructions which he has merely contracted to follow. If the contractor carefully carries out the specifications provided him, he is justified in relying upon the adequacy of the specifications unless they are so obviously dangerous that no competent contractor would follow them.” Hunt, 74 Ill. 2d at 209, 384 N.E.2d at 371.

The defendant here, relying on Hunt, claims that no duty was established in this case because he was merely carrying out the specifications of Ingersoll when he constructed the platform and those specifications were not unreasonably dangerous. On the contrary, the plaintiff claims that a duty was created because Ingersoll’s specifications included covers for the race and the defendant negligently failed to make the covers, knowing that the keypunch operators would be working on the platform. Plaintiff relies on Hunt to support her argument, noting that the court there held that a contractor’s duty continues even though his work has been accepted by the party that hired him.

We, however, agree with the trial court here that the plaintiff failed to establish the existence of a duty to the plaintiff on the part of the defendant. Despite plaintiff’s contentions, there was no evidence that Ingersoll’s specifications for the platform included instructions that the defendant cover the race. Further, there was no evidence that Ingersoll instructed the defendant to cover the race at any time even after the plaintiff’s accident. In addition, there was no evidence that the defendant knew when he constructed the platform that the keypunch operators would be placed on it before the electricians had finished their work on the platform. The depositions showed that the defendant was finished with the platform when the Ingersoll employees returned to work on January 4, and that the decision to put the keypunch operators onto the platform was not made until the morning of January 4. Hence, it was undisputed that the decision to put the keypunch operators on the platform was solely Ingersoll’s decision, made after the defendant had completed his work. Inasmuch as the defendant was unaware the keypunch operators would be working on the platform when he constructed it, the fact that the race was uncovered when he left was not an obviously dangerous condition. Accordingly, we hold, as the trial court did, that there was no genuine issue of material fact and that the defendant was justified in relying upon the adequacy of Ingersoll’s specifications here. Furthermore, based on the pleadings and depositions in this case, we find that the trial court properly ruled, as a matter of law, that the defendant owed no duty to the plaintiff. Thus, it was unnecessary for the court to consider whether the defendant’s duty continued even after his work was completed as this was irrelevant to its decision.

Plaintiff, nevertheless, claims that the trial court erroneously ignored the concept of multiple causation when it granted summary judgment for the defendant. The plaintiff asserts that the trial court granted summary judgment for the defendant because it found that the plaintiff and Ingersoll were more culpable than the defendant. Plaintiff apparently contends that the trial court’s decision was a policy decision which did not properly take into account the concept of apportionment and contributory negligence. It is plaintiff’s position that the defendant’s failure to put covers on the race was also part of the causal chain and, hence, any negligence of the plaintiff or of Ingersoll was relevant only to the issue of damages and was irrelevant to the defendant’s summary judgment motion.

We find this allegation to be totally without merit. A review of the record shows that the trial court did not reach the issue of multiple causation because it found, as a matter of law, that the defendant owed no duty to the plaintiff. Since the defendant owed no duty to the plaintiff here, it was not necessary for the trial court to reach any issue of contributory negligence on the part of the plaintiff, or, for that matter, any issue of negligence on the defendant’s part.

Finally, plaintiff also asserts in her appeal that summary judgment was improperly granted for the defendant because questions of fact remain concerning the defendant’s breach of duty and proximate cause. In raising this issue, the plaintiff again assumes that it was somehow established that the defendant owed her a duty.

In a negligence action, as noted earlier, the determination of whether there is a duty is a question of law, and although the questions of whether there has been a breach of duty and whether the breach was a proximate cause of injury are questions of fact (Curtis, 98 Ill. 2d at 163, 456 N.E.2d at 119; Abernathy, 179 Ill. App. 3d at 142, 534 N.E.2d at 489), these issues never arise if there is no duty owed. Since we have found that the defendant did not owe a duty to the plaintiff, it was, accordingly, also unnecessary for the trial court to reach these issues.

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

Affirmed.

LaPORTA and McNAMARA, JJ., concur.