author: JUSTICE WELCH

text:
    PHIL PITTMAN, d/b/a Phil’s Building Materials Center, Plaintiff, v. JAMES A. MANION et al., Defendants (Eater Heating and Cooling Service Company, Counterplaintiff-Appellant; James A. Manion et al., Counter-defendants-Appellees).
    Fifth District
    No. 5—90—0215
    Opinion filed March 22, 1991.
    Rehearing denied May 23, 1991.

      Demetri Hassakis, of Hassakis & Hassakis, of Mt. Vernon, for appellant.
    Pamela Lacey, of Hart & Hart, of Benton, for appellees James A. Manion and Bobbie L. Manion.
    Howard & Howard, of Mt. Vernon (G.W. Howard III, of counsel), for appellee Boatmen’s Bank of Mt. Vernon.
    David M. Raymond, of Law Office of Douglas A. Antonik, of Mt. Vernon, for appellee Bank of Illinois in Mt. Vernon.
   JUSTICE WELCH

delivered the opinion of the court:

Appellant, Eater Heating & Cooling Service Co. (hereinafter, Eater), appeals from the dismissal with prejudice of its counterclaim by the circuit court of Jefferson County on March 12, 1990. For the reasons which follow, we reverse the order of the circuit court and remand this cause with directions.

The original action was initiated by Phil Pittman on July 27, 1988, with the filing of a complaint to foreclose his subcontractor mechanic’s lien against James Manion and Bobbie Manion (hereinafter, Owners); the general contractor, David Laird; the mortgagees of the owners’ real estate, Boatman’s Bank of Mt. Vernon and the Bank of Illinois in Mt. Vernon; and other possible holders of mechanics’ liens against the real estate. Eater filed its counterclaim in the circuit court on August 15, 1988, against the owners, the above-named mortgagee banks and Phil Pittman, seeking to foreclose its subcontractor mechanic’s lien against the owners’ real estate and a money judgment against the owners or the contractor, David Laird. Eater alleged in the counterclaim that from April 16, 1987, to December 14, 1987, pursuant to its contract with Laird, it had furnished labor and materials for a heating and air conditioning system in the home of the owners and that the amount due for the above labor and materials was $14,891.34. Eater attached as an exhibit to its counterclaim its subcontractor’s 90-day notice served on the owners on March 2, 1988, at the residence where the lienable services and materials were furnished, pursuant to section 24 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1989, ch. 82, par. 24).

The owners filed a motion to dismiss Eater’s counterclaim for the reason that it failed to allege facts showing compliance with the Mechanics’ Liens Act. The owners cited, in particular, sections 5 and 21 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1989, ch. 82, pars. 5, 21), which are essentially identical. Section 5 requires in pertinent part as follows:

“It shall be the duty of each subcontractor who has furnished, or is furnishing, materials or labor for an existing owner-occupied single-family residence, in order to preserve his lien, to notify the occupant either personally or by certified mail, return receipt requested, addressed to the occupant or his agent at the residence within 14 days from his first furnishing materials or labor, that he is supplying materials or labor, provided, however, that any notice given after 14 days by the subcontractor shall preserve his lien, but only to the extent that the owner has not been prejudiced by payments made prior to receipt of the notice.
The notice shall contain the name and address of the subcontractor or material man, the date he started to work or to deliver materials, the type of work done and to be done or the type of materials delivered and to be delivered, and the name of the contractor requesting the work. The notice shall also contain the following warning:
‘NOTICE TO OWNER
Do not pay the Contractor for this work or material delivered unless you have received from the Contractor a waiver of lien by, or other satisfactory evidence of payment to, the Subcontractor or Material Man.’ Such warning shall be in at least 10 point boldface type. For purposes of this section, notice by certified mail is considered served at the time of its mailing.” (Ill. Rev. Stat. 1989, ch. 82, par. 5.)

The owners alleged that David Laird was the contractor with whom they contracted to renovate and reconstruct their home and that the subcontractor Eater had failed to serve this notice on them at any time after the furnishing of materials or labor and so its lien had not been preserved and the suit to foreclose the lien should be dismissed. The court below dismissed Eater’s counterclaim with prejudice on August 25, 1989, finding that it was fatally defective for failure to plead service of a 14-day subcontractor notice on the owners.

Eater filed a motion to reconsider the order of dismissal on September 14, 1989, claiming, as it does in this appeal, that because the owners’ real estate was not an existing owner-occupied single-family residence occupied by the owners at the time it furnished the heating and air conditioning system, the 14-day notice was not required. Eater attached the affidavit of David McCann, one of its partners, which affidavit provided that McCann had personal knowledge that the owners’ premises had been destroyed by fire and was not occupied by the owners or anyone else during the period of time the lien-able services and materials were furnished to the owners’ real estate, and that the residence now located on said real estate was built from the basement up. The owners responded, as they do in this appeal, that if Eater’s position regarding the applicability of section 5 of the Mechanics’ Liens Act to this factual situation is adopted by the court, then the purpose of the Act would be defeated, as families who go on vacation or even leave for the day for school or work would be unprotected by the notice provisions if they could arguably be found not to “occupy” their family home at the moment a subcontractor began work or delivered materials. Bobbie Manion submitted an affidavit which was attached to the owners’ response which provided that the owners occupied the premises during the time Eater furnished the lienable labor and materials because family possessions which were not burned were at all times after the fire stored on the premises in a storage shed and that members of the family were frequently and regularly at the premises during this time period. Eater filed a supplement to its motion to reconsider stating that unlike the section 24 90-day notice on the owner, with which it complied, the section 5 notice is only' required to be given to owner-occupied single-family residents.

On March 1, 1989, Laird filed a voluntary petition in bankruptcy pursuant to chapter 7 of the United States Bankruptcy Code (11 U.S.C.S., ch. 7, §301 et seq. (Supp. 1990)), listing Eater among his creditors, and received his discharge 106 days later on June 15, 1989. Eater also noted in the supplement to its motion that because of Laird’s intervening bankruptcy and discharge it would strike the request for a personal judgment against Laird as requested in its prayer for relief. Eater had not joined or served Laird as a defendant in its counterclaim or proposed counterclaim, however, and maintains on appeal that Laird is not a necessary party in its complaint to foreclose a mechanic’s lien against the owners’ real estate.

The court below denied Eater’s motion to reconsider but allowed Eater leave to file a motion to amend its proposed amended counterclaim to include argument as to the necessity of joining defendant Laird regarding his bankruptcy. Eater contended that because it was not seeking a money judgment against Laird, the contractor was not a necessary party in foreclosure of its mechanic’s lien in a proceeding brought under section 11 of the Mechanics’ Liens Act. Eater cited this pertinent part of section 11 under which it stated it would bring the amended counterclaim:

“The plaintiff shall make all parties interested, of whose interest he is notified or has knowledge, parties defendant, ***. *** Parties in interest, within the meaning of this act, shall include persons entitled to liens thereunder whose claims are not, as well as are, due at the time of the commencement of suit ***; also all persons who may have any valid claim to the whole or any part of the premises upon which a lien may be attempted to be enforced under the provisions thereof, or who are interested in the subject matter of the suit.” Ill. Rev. Stat. 1989, ch. 82, par. 11.

The court below denied Eater’s motion for leave to file its amended counterclaim on March 12, 1990, finding that it was seeking to obtain a money judgment against the owners pursuant to section 28 of the Mechanics’ Lien Act (Ill. Rev. Stat. 1989, ch. 82, par. 28) without joining the contractor Laird and that section 28 requires joinder of both the owner and the contractor. It further found that while bankruptcy stays the attendant time periods, it does not excuse the necessity of naming the contractor, and that while an extension of time could be granted to allow Eater the opportunity to attempt to reopen Laird’s bankruptcy proceeding, actions brought by the subcontractor pursuant to section 28 against the owner require that the subcontractor establish a right to a lien. The court concluded that because it had already held that Eater had not served the 14-day notice required by section 5, Eater could not maintain an action under section 28, which requires compliance with the notice provisions of both sections 24 and 5. This appeal followed.

We note that this is a case of first impression with regard to whether section 5 of the Mechanics’ Liens Act requires a 14-day notice to be given by the subcontractor where, as here, the lienable services are being provided to reconstruct a formerly owner-occupied residence destroyed by fire and the owners are temporarily living elsewhere while their home is being rebuilt. Owners, however, cite our attention to Hill Behan Lumber Co. v. American National Bank & Trust Co. (1981), 101 Ill. App. 3d 268, 427 N.E.2d 1325, as being dis-positive of the issue whether Eater was required to give them the 14-day notice under section 5 in order to preserve its lien. In Hill Behan the issue on review was whether the subcontractor was required to give the 14-day notice required by section 5 of the Mechanics’ Liens Act in addition to the 90-day notice required under section 24 of the Act where title to the dwelling in which the lienable services and material were furnished was held in a land trust by a bank, as trustee, and the dwelling had two complete kitchen facilities, one on each floor, with a grandmother living upstairs and daughter living downstairs. The court found that while legal title was held by the trustee-bank, the equitable owner of the property did indeed reside on the premises. The court further found that although there were separate kitchen facilities, the dwelling was a single-family residence rather than a two-family apartment building and accordingly held that the subcontractor could not maintain its action to foreclose its lien because it had not complied with the notice provisions of section 5. (Hill Behan, 101 Ill. App. 3d at 270-71, 427 N.E.2d at 1327-28.) Thus, the issue decided was whether the premises were “owner-occupied” and “single-family.”

In the instant case, however, it is undisputed that the owners were not living at the premises during the time period when Eater was furnishing the lienable services and materials. The owners acknowledge that after the fire they stayed at a motel and with relatives while the home was being rebuilt. Although a few possessions were rescued and stored in a shed, the house was rendered completely uninhabitable by the fire. Therefore, the owners’ family could not, by any stretch of the imagination, be considered to be residing on or occupying the property.

We note that section- 5 of the Mechanics’ Liens Act was amended in 1975 to add the requirement that a subcontractor’s notice be served upon the occupant of an existing owner-occupied single-family residence within 14 days of the first furnishing of materials or labor in order to preserve the subcontractor’s lien. (Pub. Act 79—1162, eff. Dec. 18, 1975.) The purpose of the amendment to section 5 of the Mechanics’ Lien Act was to protect the. homeowner of a single-family dwelling and to warn him to get a waiver of lien from the subcontractor so that he would not have to pay twice. (Gary L. Brown Painting & Decorating, Ltd. v. David E. Comean, Ltd. (1987), 159 Ill. App. 3d 746, 749, 512 N.E.2d 795, 797.) We also note that the Mechanics’ Lien Act is in derogation of the common law and is to be strictly construed. Hill Behan, 101 Ill. App. 3d at 271, 427 N.E.2d at 1328.

Reconstruction of the owners’ home in the instant case is more similar to the construction of a new home where work is being done by numerous contractors and subcontractors and construction progress and payout are undoubtedly supervised by a construction lender. Moreover, as with construction of a new home, the residence is not occupied until construction is virtually completed. We therefore find that the rationale behind the additional protection the legislature sought to provide for the homeowner who occupies his home while the lienable services are being provided is not present under the circumstances of this case. Accordingly, we hold that Eater was not required to give .the 14-day notice required by section 5 of the Mechanics’ Liens Act because the owners’ real estate was not an existing owner-occupied single-family residence under a strict construction of this section of the Act.

We note at this juncture that the court below was correct in finding that Eater was not seeking relief pursuant to section 11 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1989, ch. 82, par. 11), which merely sets forth the averments required in the complaint filed pursuant to the relief sections of the Act, which includes in pertinent part section 28 thereof. Section 28 of the Mechanics’ Liens Act requires that the subcontractor first serve notice as provided in sections 5, 24, 25, and 27 and then allows the subcontractor to file a complaint to enforce his lien or to sue the owner and contractor jointly for the amount due and to obtain a personal judgment, as in other cases. (See Ill. Rev. Stat. 1987, ch. 82, par. 28.) However, such actions may be maintained against the owner only when the plaintiff establishes a right to the lien. D.E. Wright Electric, Inc. v. Henry Ross Construction Co. (1989), 183 Ill. App. 3d 46, 48, 538 N.E.2d 1182, 1184.

Because of Laird’s bankruptcy discharge, Eater was precluded from proceeding thereafter other than to foreclose its lien against the owners’ real estate. The discharge in bankruptcy serves as an injunction for actions to collect debts as a personal liability or to recover property of the debtor which has survived the bankruptcy estate. (See 11 U.S.C.S. §§524(a)(2), 524(a)(3) (Supp. 1990).) The owners argue that the court’s order on review may be maintained, in any event, because Eater failed to join the contractor Laird, who is a necessary party to Eater’s action to foreclose its lien against their real estate, citing the Illinois Supreme Court’s decision in Garbe Iron Works, Inc. v. Priester (1983), 99 Ill. 2d 84, 457 N.E.2d 422, in support of this proposition. We agree that the Garbe case supports a conclusion that, to enforce its lien, it was mandatory for Eater to join both the contractor and the property owners, notwithstanding the discharge in bankruptcy granted to Laird which prohibits Eater from maintaining an action to collect a personal judgment against the contractor under section 28. The issue we must next address is whether Eater’s motion for leave to file an amended counterclaim should have been denied on March 12, 1990, because Eater failed to join Laird as a necessary party-defendant. “[I]t is well established that a cause of action should not be dismissed on the pleadings unless it appears that no set of facts can be proved which will entitle the pleader to relief, and then only if it is apparent that even after amendment, if leave to amend is sought, no cause of action can be stated.” (Emphasis in original.) Hill Behan Lumber Co. v. Irving Federal Savings & Loan Association (1984), 121 Ill. App. 3d 511, 517, 459 N.E.2d 1066, 1071.

From March 1, 1989, until his discharge on June 15, 1989, Laird was under the protection of the automatic stay provisions of the United States Bankruptcy Code. Section 362 of the Bankruptcy Code provides that a bankruptcy filing automatically stays the commencement or continuation of any proceeding against the debtor, including issuance of process. (Garbe, 99 Ill. 2d at 86, 457 N.E.2d at 424; 11 U.S.C. §362(a) (Supp. 1979).) Eater was thus prohibited from joining Laird as a party defendant in any amended counterclaim to foreclose its lien until after June 15, 1989. Owners note that Eater could have sought relief from stay in order to join Laird in the action as the subcontractor did in the Garbe action and had not yet joined the contractor at the time the motion for leave to file an amended complaint had been decided.

However, we note that the Garbe decision also held that in situations where bankruptcy of a necessary party intervenes and delays the party’s ability to maintain his action to foreclose the mechanic’s lien, section 108(c) of the Bankruptcy Code extends the amount of time the subcontractor has to file suit. (Garbe, 99 Ill. 2d at 87, 457 N.E.2d at 424.) This section of the Bankruptcy Code provides:

“[I]f applicable *** law *** fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor *** and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of—
(1) [T]he end of such period, including any suspension of such period occurring on or after the commencement of the case; or
(2) 30 days after notice of the termination or expiration of the stay under section 362, 922, or 1301 ***.” 11 U.S.C.S. § 108(c) (1985).

Generally, the Mechanics’ Liens Act requires that a subcontractor must file suit to enforce' his lien within two years after completion of the contract. (Ill. Rev. Stat. 1989, ch. 82, par. 9.) Eater alleged that the lienable services were completed on December 14, 1987, and so under normal circumstances his action would have to have been maintained by December 14, 1989. Because the relief afforded creditors by section 108(c) is not limited to situations like the Garbe case, in which the creditor-subcontractor seeks relief from stay prior to the debtor-contractor’s discharge, we find that Eater could have joined Laird in order to maintain its suit to foreclose its mechanic’s lien as late as 106 days after December 14, 1989, or March 30, 1990. We therefore hold that the court below erred in dismissing Eater’s right to join Laird as a necessary party defendant by its order of March 12, 1990, prior to the expiration of the limitation period, as extended by section 108(c) of the Bankruptcy Code.

As noted earlier, our reversal and remand includes some instructions. Both Eater and the court below are apparently under the misconception that Eater must petition the United States Bankruptcy Court to reopen Laird’s bankruptcy to obtain relief from stay in order to join Laird as a party defendant in Eater’s amended counterclaim. Such procedure is totally unnecessary. When Laird’s discharge was entered, the automatic stay of Bankruptcy Code section 362(a) also terminated, and Eater could then proceed with impunity against Laird subject to the discharge provisions of the Bankruptcy Code. As noted earlier, Bankruptcy Code section 524 only prohibits or enjoins Eater from proceeding to collect a personal liability against Laird. As Laird is joined in this suit in order to foreclose the mechanic’s lien against the owners’ property, the discharge injunction of section 524 does not apply.

Accordingly, the March 12, 1990, order of the circuit court of Jefferson County is reversed, and this cause is remanded with directions to grant Eater’s motion for leave to file an amended counterclaim with David Laird joined as a party counterdefendant.

Reversed and remanded with directions.

RARICK, P.J., and GOLDENHERSH, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES TAYLOR, Defendant-Appellant.
    Fifth District
    No. 5 — 89—0593
    Opinion filed April 11, 1991.

      Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Scott Mansfield, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, Charles Taylor, appeals from his conviction of the first-degree murder of Adams Ajayi. He. was tried before a jury in the circuit court of St. Clair County. Judgment was entered August 21, 1989.

Defendant raises several issues on appeal: (1) whether defendant was denied a fair trial by the trial court’s refusal of. his tendered instructions on involuntary manslaughter; (2) whether defense counsel was ineffective for failing to impeach two witnesses with evidence of their motive to testify falsely, i.e., their possible liability under the Liquor Control Act of 1934 (Ill. Rev. Stat. 1987, ch. 43, par. 93.9 et seq.)\ (3) whether defendant was denied a fair trial where the prosecutor argued hearsay evidence substantively and misstated the evidence during closing argument; (4) whether defendant was denied a fair trial where the court admitted a photograph of the victim which was extremely prejudicial and without probative value; and (5) whether defendant is entitled to a new sentencing hearing or a reduction in sentence where the trial court based the sentence on improper factors and failed to give adequate weight to mitigating factors. Because we reverse defendant’s conviction and remand this cause on the ground that the trial court erred in refusing defendant’s tendered involuntary manslaughter instructions, and because we do not believe the other alleged errors are such as are likely to recur on retrial, we will set forth the facts and discuss the law only as they pertain to the refusal of the trial court to instruct the jury on involuntary manslaughter. Smith v. Metropolitan Sanitary District of Greater Chicago (1978), 61 Ill. App. 3d 103, 107, 377 N.E.2d 1088, 1091, affd (1979), 77 Ill. 2d 313, 396 N.E.2d 524.

Defendant was charged by indictment with first-degree murder in that, on September 2, 1988, without lawful justification and while committing a felony (robbery), he struck and kicked Adams Ajayi on the head knowing such act created a strong probability of death or great bodily harm, thereby causing the death of Adams Ajayi. The case was tried to a jury on March 13 and 14, 1989. The following pertinent evidence was adduced.

Officer Wilbur Jeremías of the East St. Louis police department testified that he investigated the instant offense. At approximately 9:43 on the morning of September 2, 1988, he went to Riff’s Tavern in East St. Louis. Ajayi was lying in the parking lot in front of Riff’s on his back, apparently unconscious. Jeremías called for an ambulance and then proceeded down the street where he arrested defendant. On cross-examination, Jeremías explained that Ajayi was lying 20 to 25 feet from the front door of Riff’s, with his head facing toward the tavern. Jeremías thought Ajayi had some saliva coming out of his mouth. He did not notice any vomit.

Nathaniel Cortland testified that he is also known as Riff. He manages Riff’s Tavern. On the morning of the killing, Riff came out of the back room of the tavern and saw Ajayi and defendant dancing together. They danced through four or five records. Ajayi kept bumping into the jukebox. Riff told Ajayi to stop and asked him to leave. Defendant told Riff that Ajayi was his friend and that he would see that he got home. The two walked out the door together. A short while later Riff went outside and saw Ajayi lying on the ground. He saw defendant punch Ajayi at least one time. Riff saw fluid running on the ground and assumed that Ajayi had urinated in his pants. However, Ajayi’s pants were not wet. Riff called the police. He returned outside and saw defendant grab Ajayi by the collar and punch him. Defendant also kicked Ajayi in the head two or three times. Defendant then entered Ajayi’s car and began taking things out of the back seat and putting them in the front seat. Riff demanded the keys to Ajayi’s car, and defendant threw them on the ground. Riff picked them up and gave them to his sister, his assistant manager. He locked Ajayi’s car. There were 10 to 12 people standing outside observing. Finally, someone aimed a pistol at defendant. Riff disarmed the man and defendant walked away. Riff testified that the man with the gun told defendant not to hit Ajayi anymore.

Lillie Jean Cortland testified that she is Riff’s sister and works as a barmaid and assistant manager at the tavern. The night before the killing, Ajayi came into the tavern at 11:30 or midnight. He was by himself. He conversed with defendant. Defendant was following Ajayi around. At 6:30 a.m., Ajayi bought defendant a beer. Defendant had been in the tavern all night but had not bought any beer. Defendant was intoxicated. At approximately 8:30 that morning, defendant ordered a beer and told the bartender Ajayi would pay for it. Ajayi refused. Ajayi began dancing and defendant joined him. Defendant kept trying to “go in [Ajayi’s] pocket.” The two were bumping the jukebox, and Riff came out of the back room and asked them to leave. They did. Lillie could see the two through the glass door. Ajayi was staggering. Defendant pushed Ajayi. He then took off his jacket and punched Ajayi. Ajayi fell to the ground. When Lillie went outside, defendant was “in [Ajayi’s] pocket.” Ajayi’s watch was lying on the ground. Lillie picked it up, and defendant asked for it, saying he was Ajayi’s friend. Ajayi was throwing up and urinating after defendant hit him. Defendant was picking Ajayi up and dragging him around and slapping him. Lillie had not seen Ajayi do anything to provoke defendant other than refuse to buy defendant a beer. While Ajayi was lying on the ground, defendant kicked his leg and side. He picked Ajayi up by the collar and slapped his face. Lillie estimated that there were 50 people in the tavern the morning of the killing. At one point, while Ajayi was lying on the ground, defendant picked him up and then dropped him. Ajayi’s head hit the pavement.

Willie Smith testified that he lives across the street from Riff’s Tavern. Between 9 and 10 the morning of the killing, he was sitting on his front porch. Two men walked out of the tavern. One man said to the other, “Why you do me like this man? I thought we was partners. You shouldn’t have do me like this.” The other man was too drunk to respond. The man speaking pushed the other, then took off his jacket and hit the other man, who fell straight backward. The man standing then “went in the guy’s pocket.” Smith called the police. Smith identified a photograph of Ajayi as the man who had been hit and defendant as the assailant. Smith saw defendant reach in Ajayi’s pocket and take some paper out and place it in his own pocket. Smith could not see what the paper was. Smith saw defendant slapping Ajayi around trying to arouse him. Finally, defendant threw Ajayi’s head down. Smith saw some fluid on the ground next to Ajayi. He assumed it was vomit. Smith saw defendant kick Ajayi in the side and slap him two or three times, trying to arouse him.

Marshall Williams testified that at approximately 8 the morning of the killing, he went to Riff’s Tavern. He saw Ajayi and the defendant dancing together. He returned to his home, which is across the street from the tavern, and sat on his front porch. He saw Ajayi and defendant come out of the tavern. Defendant shoved Ajayi in the back. Ajayi tried to shove defendant back but was too drunk. Defendant removed his coat and hit Ajayi with his fist in the face. Ajayi fell straight back. He did nothing to stop or soften his fall. Ajayi had been quite intoxicated when Williams had seen him inside the tavern. He fell against the jukebox several times.

Officer Walter L. Boone with the East St. Louis police department testified that he investigated the killing. He recovered $12.10 from the defendant following his arrest. The bills were very crumpled when recovered.

Philip Burch is a physician and medical examiner who conducted the autopsy on Ajayi’s body. The occipital bone at the back of Ajayi’s skull had been fractured. There were two bruises on the right side of Ajayi’s head. The cause of death was bleeding and swelling inside the skull as a result of the fracture. The injuries to Ajayi were consistent with a blow to the head or falling and hitting the head on a hard surface such as concrete. No bruises were found on Ajayi’s side or leg. Ajayi’s blood-alcohol concentration was .301. This is approaching a lethal level.

Defendant testified on his own behalf. The night before and the morning of the killing he was at Riff’s Tavern. He had been there all night. He had been drinking beer. He knew Ajayi as a friend. Ajayi was highly intoxicated the night before and the morning of the killing. He stumbled and fell inside the tavern several times. When Riff asked them to leave, defendant and Ajayi left together. Ajayi asked defendant to drive him home and gave defendant his car keys. Defendant responded that he also was drunk and did not have a driver’s license. Ajayi was weaving and finally fell and hit the back of his head. Defendant did not push, hit or kick Ajayi. Defendant tried to wake Ajayi up. People started coming out of the tavern. Defendant slapped Ajayi in an attempt to arouse him. Defendant took his jacket off to put under Ajayi’s head, but did not want to get it soiled so he threw it down. Ajayi vomited alcohol. Defendant went in Ajayi’s car and began moving items from the back to the front seat so he could put Ajayi in the car to rest. When someone drew a gun, defendant left. Defendant testified that the money the police recovered from his pocket was his. Defendant denied robbing Ajayi. Defendant testified that he was also drunk the morning of the killing, but not as drunk as Ajayi. Defendant and Ajayi had been buying each other drinks all night. Defendant denied ever dropping Ajayi’s head on the pavement after he had fallen. Defendant did pick Ajayi up to try to help him, but laid him down softly.

The defendant tendered several jury instructions relating to involuntary manslaughter. The State objected on the ground that there had been no evidence introduced to support the instructions. The State pointed out that defendant testified that Ajayi’s death had been an accident and that defendant-had not performed any acts, reckless or otherwise, which resulted in Ajayi’s death. Furthermore, the evidence indicated that defendant did not act recklessly in pushing, hitting and kicking Ajayi and that defendant committed these acts in the course of a robbery. The trial court refused the instructions, finding no evidence of a reckless act by defendant.

The jury returned a verdict of guilty of first-degree murder. On August 21, 1989, the trial court sentenced defendant to 35 years in, the Department of Corrections. Defendant appeals, arguing the trial court erred in refusing his tendered instructions relating to involuntary manslaughter.

A defendant is entitled to have the jury instructed on involuntary manslaughter when there is some evidence in the record which would reduce the crime to involuntary manslaughter. (People v. Banks (1989), 192 Ill. App. 3d 986, 996, 549 N.E.2d 766, 773.) A person commits the offense of involuntary manslaughter when he unintentionally causes the death of an individual by acts which are performed recklessly and are likely to cause death or great bodily harm to another. (Banks, 192 Ill. App. 3d at 996, 549 N.E.2d at 773.) Thus, as explained in Banks, murder and involuntary manslaughter are distinguished only in terms of the mental state required: murder requires the intent to kill or do great bodily harm or knowledge that one’s acts create a strong probability of such result, while involuntary manslaughter requires only reckless conduct which results in death. (Banks, 192 Ill. App. 3d at 996, 549 N.E.2d at 773.) It is a long-standing principle of Illinois law that death is not ordinarily contemplated as a natural consequence of blows from bare fists. (People v. Brackett (1987), 117 Ill. 2d 170, 180, 510 N.E.2d 877, 882.) Thus, involuntary manslaughter can result from blows with a bare fist where the defendant does not intend to kill or do great bodily harm and is reckless in delivering the blows.

In the instant case, the evidence indicates that both defendant and the victim were intoxicated, the victim more so than the defendant. Defendant punched Ajayi in the face one time, causing him to fall to the ground. From the medical examiner’s testimony, it appears that this fall, in which Ajayi hit his head on the concrete, rather than the blow,' caused the injuries which resulted in death. Defendant then proceeded to kick and hit Ajayi as he lay on the ground. The evidence is conflicting as to whether defendant was punching or slapping Ajayi as he lay on the ground. Defendant testified that he was hitting Ajayi in an attempt to awaken or arouse him. Defendant also tried unsuccessfully to pick Ajayi up several times. Defendant testified that he was attempting to place Ajayi in his car to rest, or to arouse Ajayi. Ajayi’s head hit the concrete when defendant dropped him. However, there is no evidence that defendant dropped Ajayi with the intent to kill or harm him.

We think this evidence is sufficient to justify instructing the jury ten the offenp-s involuntary manslaughter. This evidence would support a finding that defendant punched Ajayi and that, due to his drunkenness, Ajayi was unable to soften or stop his fall to the ground. The jury could have found that defendant was reckless in punching a person who was so intoxicated, but that defendant did not intend to kill or harm Ajayi and did not know that his actions would have such a result. The jury could have also believed that the defendant’s further actions of hitting and kicking Ajayi were performed recklessly in an attempt to arouse the unconscious man. That defendant testified that he did not punch Ajayi and that his theory of defense was that it was an accidental fall does not preclude such a finding. The jury is entitled to believe or disbelieve any or all of the testimony of the defendant or any other witness, and to resolve inconsistencies between their accounts of the incident. People v. Dixon (1978), 58 Ill. App. 3d 557, 560, 374 N.E.2d 900, 902.

We are aware of cases that have held that where, as here, a defendant is charged with felony murder (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(a)(3)), an involuntary manslaughter instruction is improper because in such a case no intent is required and the defendant need not even be the actual perpetrator of the killing. (People v. Weathers (1974), 18 Ill. App. 3d 338, 345-46, 309 N.E.2d 795, 801.) Thus, if the jury finds that the murder was committed in the course of a forcible felony, in this case robbery, it could not find the defendant guilty of involuntary manslaughter. (See also People v. Ellis (1981), 93 Ill. App. 3d 981, 984, 418 N.E.2d 88, 90.) However, unlike Weathers and Ellis, in the instant case, the defendant did not admit commission of a forcible felony. Defendant denies that he took anything from Ajayi or committed any other forcible felony against Ajayi. Thus, if the jury had found that defendant did not commit a robbery or other forcible felony, it could have found defendant guilty of involuntary manslaughter. Indeed, in the instant case, the evidence would have supported a finding of guilty of involuntary manslaughter even in the presence of a finding that defendant took property from Ajayi after Ajayi was rendered unconscious. That is, if the jury had found that defendant struck Ajayi not for the purpose of taking property, but that, as an afterthought, defendant did take property from Ajayi, the killing would not have occurred during the commission of a forcible felony, but prior to the commission of a theft. The jury could have found that defendant merely took advantage of the victim’s lack of consciousness to commit a theft. See People v. Tiller (1982), 94 Ill. 2d 303, 316, 447 N.E.2d 174, 181.

We think in the instant case there is sufficient evidence in the record to support the giving of instructions on the offense of involuntary manslaughter. We therefore hold that the trial court erred in refusing defendant’s tendered jury instructions on the offense of involuntary manslaughter. Accordingly, we reverse defendant’s conviction end sentence and remand this cause for a new trial.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is reversed and this cause is remanded for a new trial.

Reversed and remanded.

HARRISON and HOWERTON, JJ., concur.


author: JUSTICE CHAPMAN

text:
    NATIONAL SUPER MARKETS, INC., Plaintiff-Appellee, v. MAGNA TRUST COMPANY, Trustee, et al., Defendants-Appellants.
    Fifth District
    No. 5—90—0135
    Opinion filed April 15, 1991.

      Thompson & Mitchell, of Belleville (Donald E. Heihl and James J. Raymond, of counsel), for appellants.
    Ann E. Hamilton, of St. Louis, Missouri, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiff, National Super Markets, Inc. (National), filed a complaint for permanent injunction seeking to enjoin defendants, Magna Trust Company, trustee of trust No. 03—90—1083—00 (No. 1083) and trust No. 22—242 (No. 242), Wetterau, Inc. (Wetterau), Donald Soffer Investments, and Donald G. Soffer (Soffer), from violating National’s 1976 lease agreement by operating a Shop ’n Save food store at 650 Carlyle Avenue (the 650 property) in Belleville, Illinois.

The lease originally covered property located at 655 Carlyle Avenue in Belleville, Illinois (the 655 lease). While National and Soffer were not the original parties to the lease, they agree that by virtue of various assignments the lease governs their rights in this case. National was the lessee under the 655 lease while Soffer was the lessor. The lease provides in pertinent part:

“Landlord covenants and agrees, from and after the date hereof and so long as this lease shall be in effect, not to lease, rent, occupy, or suffer or permit to be occupied, any part of the Shopping Center premises or any other premises owned or controlled, directly or indirectly, either by Landlord, its successors, heirs, or assigns, or Landlord’s principal owners, stockholders, directors, or officers or their assignees (hereinafter called Owners), which are within 1 mile of the Shopping Center premises for the purpose of conducting therein or for use as, a food store or a food department or for the storage or sale for off-premises consumption of groceries, meats produce, dairy products, or bakery products, or any of them; and further, that if Landlord or owners own any land, or hereinafter during the term of this lease Landlord or Owners acquire any land within such distance of the Shopping Center, neither will convey the same without imposing thereon a restriction to secure compliance with the terms of this lease. *** Further provided, however, that if Mortgagee shall become the owner of the Shopping Center, this paragraph shall not be applicable to any property, other than the Shopping Center, which such Mortgagee may then or thereafter own.” (Emphasis added.)

National alleged that Soffer violated the terms of the restrictive covenant by leasing the 650 property to Wetterau, a retail grocery operator who plans to open a Shop ’n Save store on the property. Defendants asserted by way of affirmative defenses that the restrictive covenant violated section 1 of the Sherman Act (15 U.S.C. §1 (1988)) and that the mortgagee exception applied to them. The trial court issued a permanent injunction against the development of the 650 property in violation of the restrictive covenant and also enjoined Soffer from transferring title or ownership without imposing a restriction in compliance with the restrictive covenant. Defendants appeal and raise the following issues:

(1.) Whether the restrictive covenant is valid under section 1 of the Sherman Antitrust Act.
(2.) Whether Illinois law requires a plaintiff seeking a permanent injunction to enforce the terms of a restrictive covenant to prove that the public will not be adversely affected if the permanent injunction is granted.
(3.) Whether defendants are relieved from compliance with the restrictive covenant in the lease by the mortgagee exception.

Defendants initially contend that the restrictive covenant illegally restrains trade in violation of section 1 of the Sherman Act. Section 1 of the Sherman Act prohibits “every contract, combination *** or conspiracy, in restraint of trade.” (15 U.S.C. §1 (1988).) Despite this broad language, the courts, recognizing that all contracts alter trade in some manner, have interpreted section 1 as outlawing only “unreasonable” restraints of trade. (Northern Pacific Ry. Co. v. United States (1958), 356 U.S. 1, 2 L. Ed. 2d 545, 78 S. Ct. 514.) Two basic methods are considered when evaluating the validity of activity challenged under the Sherman Act; the doctrine of per se illegality and the “rule of reason” approach. (Continental T.V., Inc. v. GTE Sylvania Inc. (1977), 433 U.S. 36, 53 L. Ed. 2d 568, 97 S. Ct. 2549.) Defendants contend that the restrictive covenant is invalid under either approach. We disagree.

PER SE ILLEGALITY

In Northern Pacific, the supreme court stated:

“[T]here are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. This principle of per se unreasonableness not only makes the type of restraints which are proscribed by the Sherman Act more certain to the benefit of everyone concerned, but it also avoids the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonable — an inquiry so often wholly fruitless when undertaken.” (Northern Pacific Ry. Co. v. United States (1958), 356 U.S. 1, 5, 2 L. Ed. 2d 545, 549-50, 78 S. Ct. 514, 518.)

The general consensus of the Federal courts which have considered covenants in shopping center leases is that the varying terms, conditions and economic specifications for these covenants render the application of the per se doctrine inappropriate. (Harold Friedman Inc. v. Thorofare Markets Inc. (3d Cir. 1978), 587 F.2d 127, 140, 142; see Child World, Inc. v. South Towne Centre, Ltd. (S.D. Ohio 1986), 634 F. Supp. 1121.) One of the primary reasons that clauses such as the one set forth above have not been found to be illegal per se is that they encourage economic development. The clauses are thought to be inducements for tenants to establish stores which in turn attract other tenants who will hopefully enter the marketplace. Child World, Inc., 634 F. Supp. at 1129.

We cannot state that the restrictive covenant lacks any redeeming virtue and, therefore, we must conclude that the trial court’s finding that it is not per se unreasonable under section 1 of the Sherman Act was proper. Harold Friedman Inc., 587 F.2d at 141.

“RULE OF REASON”

Since we have agreed with the trial court that the restrictive covenant is not illegal per se, we must now examine the “rule of reason” approach. Under the “rule of reason” approach, all circumstances must be evaluated by the trier of fact to determine whether the complained-of conduct poses an unreasonable restraint on competition. (Gough v. Rossmoor Corp. (9th Cir. 1978), 585 F.2d 381; Optivision, Inc. v. Syracuse Shopping Centers Associates (N.D. N.Y. 1979), 472 F. Supp. 665.) Some of the factors considered when determining the validity of a restrictive covenant are the impact it has on competition in the relevant market, the availability of alternate sites for the entity excluded by enforcement of the covenant, the scope of the restrictive covenant, and the economic justification for the inclusion of the restrictive covenant in the lease. Harold Friedman Inc., 587 F.2d at 142-44; Child World, Inc., 634 F. Supp. at 1131.

One focus of the analysis in the “rule of reason” approach is upon the impact of the challenged activity on the relevant market, which may be either the product market or the geographic market. (Gough, 585 F.2d at 388.) “[I]n determining the relevant market the courts are not free to accept whatever market is suggested by the plaintiff as fitting most persuasively with his contention that his power to compete effectively has suffered injury.” (Gough, 585 F.2d at 389.) A review of the record reveals that very little evidence was introduced concerning the relevant product market. It appears that the major dispute over the market issue concerns the relevant geographic market. Defendants argue that the relevant geographic market is limited to east Belleville and the rural area surrounding it, while National argues that the relevant market includes not only east Belleville, but also west Belleville, Swansea, and some incorporated areas surrounding the Belleville area. The trial court agreed with National.

The relevant geographic market is defined as the area in which the seller operates and to which the purchaser can practicably turn for supplies. (Gough, 585 F.2d at 389.) Plaintiff’s witness, Joseph Percelli, National’s real estate manager, testified that the relevant market area for National’s 655 store was nearly all of Belleville, Swansea, and some additional unincorporated areas surrounding Belleville. On cross-examination, another witness, Jim Duban, vice-president for retail operations of defendant Wetterau, testified that the opening of the Shop ’n Save store in east Belleville on the 650 property would have an effect on retail grocery stores in west Belle-ville. He stated that the Shop ’n Save store located on the 650 property in east Belleville would draw consumers from west Belleville. A careful review of the record establishes that the trial court’s conclusion that the relevant geographic market includes east and west Belle-ville, Swansea, and some additional unincorporated areas surrounding Belleville is not against the manifest weight of the evidence.

Having determined the area of the relevant geographic market, we must now review the impact the restrictive covenant has on competition. Duban testified that competition within the relevant market area was high, and he also stated that the area contained over 25 stores engaged in the sale of grocery products. We conclude that the trial court’s finding that the exclusion of Shop ’n Save from the 650 property will not have a significant impact on competition in the relevant market area was not erroneous.

We note also that the restrictive covenant set forth above is narrow in scope. It applies only to Soffer and it operates only during the lease term. The geographic scope of the restrictive covenant is limited to property owned within one mile of the 655 property. After a careful review of the record, we feel that the trial court’s conclusion that the restrictive covenant does not violate section 1 of the Sherman Act was not against the manifest weight of the evidence.

Defendants next assert that Illinois law requires a plaintiff seeking a permanent injunction to prove that granting the injunction will not adversely affect the public.

In Wier v. Isenberg (1981), 95 Ill. App. 3d 839, 842-43, 420 N.E.2d 790, 793, the covenant restricted the use of the defendant’s property to residential purposes and the plaintiffs sought to enjoin the defendants from offering psychological counseling services in the neighborhood. The defendants argued that the covenant should not be enforced because the benefits derived by the community from defendant’s use of the property outweighed the burden to the neighborhood. The court rejected the defendant’s argument and held that the plaintiff was not required to show an injury in order to enforce the covenant. (Wier, 95 Ill. App. 3d at 842-43, 420 N.E.2d at 793.) Based on the foregoing, we do not feel that National was required to prove that granting the injunction would not adversely affect the public. See also Freehling v. Development Management Group, Inc. (1979), 75 Ill. App. 3d 243, 393 N.E.2d 646.

Defendants finally contend that they are not required to comply with the restrictive covenant because the “mortgagee” exception is applicable to the facts of this case.

Soffer and Wetterau were both aware of the restrictive covenant in the 655 lease before the 650 lease was executed. To come within the mortgagee exception, Soffer, Wetterau, and defendant Magna Trust Co. engaged in a series of transactions. We note that the trial court found that all of the transactions which defendants believed were necessary to come within the mortgagee exception had not been completed. The trial court also found, however, that even if all transactions contemplated as necessary by the defendants had been completed, defendants would still not be excepted from the provisions of the restrictive covenant. For our purposes, we shall assume that all transactions contemplated by defendants had been completed.

The transactions which Soffer and Wetterau believed would enable them to avoid the effect of the restrictive covenant were as follows:

(1.) Soffer purchases the 650 property and places it into land trust No. 542 of which he is the sole beneficiary.
(2.) Soffer directs trustee of No. 542 to transfer 650 property to land trust No. 1083 of which Soffer is the sole beneficiary.
(3.) Soffer obtains a loan of an uncertain amount from Magna Bank of Belleville and transfers the funds to the holders of the mortgage covering the 655 property, Jefferson National Life Insurance Company and American United Life Insurance Company (holders).
(4.) In exchange, the holders execute an assignment of the mortgage to Magna Trust Company, trustee of trust No. 1083.
(5.) Soffer then transferred the 655 property to the trustee of No. 1083.

Defendants contend that these transactions have enabled them to comply with the terms of the mortgagee exception provision. They assert that the trustee of No. 1083 is now the mortgagee of the 655 property and free to lease the 650 property to Wetterau. National responds by arguing that the restrictive covenant clearly prevents Soffer from leasing property within one mile of National and that if the trustee of No. 1083 is held to be the mortgagee of the 655 property and not subject to the restrictive covenant the whole purpose of the covenant would be frustrated. The trial court found that Soffer’s financial scheme did not meet the requirements of the mortgagee exception. We agree.

“In applying the restrictive covenant to the facts before this court, the primary objective is to construe the contract as a whole to give effect to the intentions of the parties.” (Johnstowne Centre Partnership v. Chin (1983), 99 Ill. 2d 284, 290, 458 N.E.2d 480, 483.)

“The intent of the parties must be determined from the contract as a whole and not from any one clause standing alone.” (White v. White (1978), 62 Ill. App. 3d 375, 378, 378 N.E.2d 1255, 1258.) It is presumed that each provision of a contract was inserted deliberately and for a purpose. White, 62 Ill. App. 3d at 378, 378 N.E.2d at 1258.

In light of these long-standing rules of construction, we must conclude that the trial court properly found that Soffer’s financial scheme would not exempt defendants from complying with the restrictive covenant. Were we to review only the mortgagee exception clause, we might agree that the financial scheme exempts defendants from compliance with the restrictive covenant. However, we must view the lease as a whole (Johnstowne Centre Partnership, 99 Ill. 2d 284, 458 N.E.2d 480), and it clearly prevents Softer from leasing property to any retail grocery operation within one mile of the 655 property. It is undisputed that Softer is the sole beneficiary of trust No. 1083 and that the trustee of No. 1083 cannot act without written directions from Softer. Were we to accept defendant’s contention that Softer can successfully avoid the restrictive covenant by engaging in the financial scheme described above, the exclusivity clause would be meaningless.

For all the foregoing reasons, we conclude that the trial court’s decision to issue the injunction was proper.

The judgment of the circuit court of St. Clair County is therefore affirmed.

Affirmed.

HOWERTON and LEWIS, JJ., concur.


text:
    CLIFFORD FLATH et al., Plaintiffs-Appellees, v. MADISON METAL SERVICES, INC., Defendant-Appellant.
    Fifth District
    No. 5—90—0079
    Opinion filed April 18, 1991.

      Robert W. Wilson and John R. Abell, both of Evans & Dixon, of Edwardsville, for appellant.
    Grey Chatham, of Chatham & Babka, of Belleville, for appellees.
   JUSTICE WELCH

delivered the opinion of the court:

This cause of action arose on May 29, 1986, when plaintiff, Clifford Flath, was injured while securing a load of coiled steel to his flatbed truck on the premises of defendant, Madison Metal Services, Inc. Plaintiff, Clifford Flath, filed his complaint in the circuit court of St. Clair County on July 24, 1986. This complaint was subsequently amended to allege defendant’s negligence in that defendant:

“a) Negligently and carelessly failed to provide the plaintiff with a safe place to properly secure his load in that there was debris and other materials on or about the loading site.
b) Negligently and carelessly failed to provide a loading area sufficient for plaintiff to secure the load.
c) Negligently and carelessly directed the plaintiff to park his truck in an area that would not allow him to properly secure his load.”

In the same complaint, plaintiff’s wife, Shirley Flath, brought an action against defendant for loss of consortium.

Following a jury trial, the jury returned with a verdict in favor of plaintiff Clifford Flath in the amount of $90,000 ($112,500 reduced by 20% contributory negligence), and in favor of plaintiff Shirley Flath in the amount of $20,000. Judgment was entered on the verdicts on November 9, 1989. Defendant brings this appeal, raising several claims of error. For the reasons which follow, we affirm as modified.

At the time of the accident, plaintiff was working as an independent contractor for Eck Miller Transportation Corporation hauling steel on a flatbed tractor/trailer which he owned. Plaintiff had been working as an over-the-road truck driver for over 30 years.

At approximately 3 p.m. on the date of the accident, plaintiff agreed to haul a load of steel coils from the defendant’s facility. Plaintiff drove his flatbed tractor/trailer from the Eck Miller facility to defendant’s facility, where, after stopping at the office, he was directed to the loading area. Plaintiff backed his tractor/trailer into the loading area inside defendant’s premises, as directed by defendant. Defendant had complete control over the location of plaintiff’s truck during the loading. Plaintiff’s truck was then loaded by defendant with seven coils of steel weighing a total of 42,000 pounds. Although the trailer was loaded by defendant’s employee, plaintiff directed the placement of the coils on the trailer. The coils were loaded with the holes or eyes facing the back and front of the trailer. This was done so that if the load shifted or came loose, the coils would roll off the sides of the trailer rather than toward the front where the cab was.

Plaintiff was solely responsible for securing the coils to the trailer once they were loaded. Plaintiff owned his own equipment for securing the load. The steel coils are secured by means of heavy chains which are run through the eyes of the coils and fastened to the sides of the trailer. The chains are tightened by means of a slack adjuster. A slack adjuster is a device with a lever handle on it which pulls the chain, link by link, into a tighter position. Plaintiff, like most truck drivers, used a “cheater pipe” on the handle of the slack adjuster. The cheater pipe fits over the handle on the slack adjuster to lengthen it, providing more leverage to the operator.

Plaintiff testified that he normally likes to tighten his chains while standing on the ground beside his truck so that he is not in danger of falling from the truck should slack suddenly appear in the chains. However, in the instant case, the ground along the driver’s side of plaintiff’s truck was full of defendant’s materials, making it impossible for plaintiff to walk or stand along the driver’s side of his trailer. Consequently, plaintiff elected to tighten his chains while standing up on the bed of his trailer. The evidence indicates that along the passenger side of the trailer the ground was uncluttered and clear.

Plaintiff was standing close to the center of the trailer with the chain in the slack adjuster. He placed his cheater pipe on the handle of the slack adjuster and was pushing down on the handle toward the bed of the trailer when suddenly slack appeared in the chain. Plaintiff lost his balance and control and fell off the trailer onto the ground on the driver’s side of the trailer. Plaintiff broke both wrists and his left ankle in the fall.

An ambulance was summoned. An attendant testified that he had trouble treating and removing plaintiff from the area because plaintiff had fallen between his truck and defendant’s materials on the ground, and there was very little room to maneuver.

Plaintiff required surgery on his broken ankle, including the placement of pins and screws. However, plaintiff’s recovery was excellent and his prognosis good.

At trial, defendant presented evidence of a sign posted in the loading area notifying truck drivers to tarp and secure their loads outside the building. Testimony indicated, however, that drivers often secured and tarped their loads while still inside the building, especially when it was raining, and that defendant made no objection to this unless other trucks were waiting to use the area. On the day of plaintiff’s accident, there were no other trucks waiting to use the loading area. Plaintiff testified that Department of Transportation regulations and those of Eck Miller required that the load be secured prior to the truck being moved. Plaintiff also testified that he was afraid to move the truck outside before the load was secured because there was a slight dip or depression in the ground just outside the building. Plaintiff feared that taking his truck over this dip with an unsecured load might cause the load to shift and fall off the truck, causing damage and injury.

Defendant’s first argument on appeal is as follows: “I. Mr. Flath did not establish by a preponderance of evidence that his injuries were in any way connected with an alleged unsafe condition on the Metal Services premises.” Defendant presents three subparts to this argument: “a. Mr. Flath failed to establish that Metal Services owed him a duty to provide a completely unobstructed loading area”; “b. Metal Services has no liability to Mr. Flath because the dangers on the loading dock, if any, were open and obvious to Mr. Flath. Furthermore, the harm which befell Mr. Flath was not the type of harm which Metal Services could have reasonably anticipated or prevented”; and “c. The evidence failed to establish that Mr. Flath risked greater injury by loading from the bed of the trailer rather than from the ground.” Distilling what we can from the body of defendant’s brief and its oral argument before us, it appears that defendant is contending that, under the facts of this case, it owed no duty to plaintiff to provide him with a completely unobstructed loading area because plaintiff could have avoided the obstruction by securing his load from the ground on the passenger side of the truck, or by driving the truck forward out of the building prior to securing the load, and that, in any event, the danger of the obstruction was open and obvious to plaintiff and there was no evidence that plaintiff was distracted from the obstruction. Subpart c of defendant’s argument contends that the evidence failed to show that it was more dangerous for plaintiff to secure the load from the trailer bed than from the ground. Thus, defendant argues, the jury’s verdict in favor of plaintiff is against the manifest weight of the evidence.

It appears that defendant has confused the question of the existence of a duty with the question of the breach of that duty, and that what defendant really means to argue before us is that plaintiff failed to establish by a preponderance of the evidence that defendant breached a duty owed to plaintiff. We conclude this because, of course, the question of whether a duty is owed by a landowner to an invitee on its premises is a question of law to be decided by the court, and not a question of fact to be decided by the jury. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226.) On the other hand, the question of whether a duty was breached is a question of fact for the jury, and the jury’s resolution of that question may well be against the manifest weight of the evidence. (Shaffer v. Mays (1986), 140 Ill. App. 3d 779, 783, 489 N.E.2d 35, 37.) However, regardless of whether we approach defendant’s argument from the question of whether defendant owed a duty to plaintiff under the circumstances of this case, or the question of whether defendant breached a duty, to plaintiff, the result is the same.

It is clear that defendant owed plaintiff, a business invitee on its premises, a general duty to use reasonable and ordinary care in keeping the premises reasonably safe. (Courtmy v. Allied Filter Engineering, Inc. (1989), 181 Ill. App. 3d 222, 226, 536 N.E.2d 952, 956.) This duty has been more specifically defined by section 343 of the Restatement (Second) of Torts, which was incorporated into the common law of Illinois by Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 468, 343 N.E.2d 465, 472, as follows:

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.” Restatement (Second) of Torts §343, at 215-16 (1965).

Defendant first argues that the presence of materials on the floor next to the driver’s side of the trailer did not create an unreasonably dangerous condition because plaintiff could have secured his load from the ground on the passenger side of the truck or by driving the truck out of the building and securing the load on the clear driver’s side. Thus, defendant argues, it could not have breached any duty to plaintiff by failing to protect plaintiff from the condition. However, for reasons which do not clearly appear in the record, plaintiff felt the need to secure his load on the driver’s side of the trailer. Because obstructions prevented him from doing so from the ground, plaintiff was forced to secure the load while standing on the trailer bed, from which he fell, sustaining injuries. We find this is sufficient to conclude that the presence of defendant’s materials along the driver’s side of the loading area created an unreasonable risk of harm to plaintiff. That plaintiff might have been able to secure his load from the ground on the passenger side of the trailer, or by driving the truck forward out of the building, may reflect on the degree of plaintiff’s comparative fault, but does not make the obstruction any less dangerous.

Defendant also argues that it did not breach any duty to plaintiff because the danger of the obstruction was open and obvious to plaintiff and there was no evidence that plaintiff was distracted in any way from the open and obvious dangerous condition. Defendant is correct that a possessor of land is not liable to an invitee for harm caused by a condition on the land the danger of which is known or obvious to the invitee unless the possessor should anticipate the harm despite such knowledge or obviousness. (Courtney v. Allied Filter Engineering, Inc. (1989), 181 Ill. App. 3d 222, 227, 536 N.E.2d 952, 956.) The possessor should anticipate the harm despite the dangerous condition’s obviousness when the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it, or where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk of doing so. Courtney, 181 Ill. App. 3d at 227, 536 N.E.2d at 956.

In the instant case, the obstruction on the ground on the driver’s side of the trailer was dangerous because it forced plaintiff to secure his load while standing on the bed of the trailer rather than on the ground. While this danger was obvious and known to plaintiff, we think defendant should have reasonably expected that plaintiff would proceed to encounter the danger because, to a reasonable man in plaintiff’s position, the advantages of doing so would have outweighed the apparent risk of doing so. Plaintiff had no choice but to secure his load. Certainly it was reasonably foreseeable by defendant that plaintiff might climb onto the trailer to do so. It was a common practice, of which defendant was aware, for truckers to secure their loads while in the building rather than driving forward out of the building. According to plaintiff’s testimony, moving the truck forward with an unsecured load would have entailed some risk in itself. Furthermore, that plaintiff might have been able to secure his load from the ground on the passenger side of the trailer does not make it reasonably unforeseeable to defendant that plaintiff would choose to do so from the trailer bed instead, although it might reflect on the degree of plaintiff’s comparative fault. We think the evidence is sufficient to conclude that defendant should have expected plaintiff would encounter the risk of securing his load from atop his trailer bed, notwithstanding his knowledge of the risk, and should have anticipated the harm to plaintiff despite the obviousness of the danger.

Finally, defendant argues that the evidence failed to show that it was more dangerous to plaintiff to secure the load from atop the trailer bed than from the ground. The evidence shows that plaintiff incurred injuries from his fall off the trailer bed. We think it is obvious that a fall off a trailer bed is more likely to cause injury than a fall when standing on the ground.

In sum, we hold that defendant’s duty of reasonable care, on which the jury was properly instructed, encompassed the risk that plaintiff would attempt to secure his load from atop his trailer bed because he was prohibited by defendant from doing so while standing on the ground on the driver’s side of the tráiler. There was ample evidence presented at trial to support the jury’s finding that defendant breached this duty and that the breach was the proximate cause of plaintiff’s injuries. The jury’s verdict in favor of plaintiff was not against the manifest weight of the evidence.

In a somewhat related argument, defendant argues that it is entitled to a new trial because the trial court erred in allowing plaintiff’s instruction No. 11 — B to go to the jury. Plaintiff’s instruction No. 11 — B is plaintiff’s issues instruction and provides, in pertinent part, as follows:

“The plaintiff claims that he was injured and sustained damage, and that the defendant was negligent in one or more of the following respects:
a. Negligently and carelessly failed to provide the plaintiff with a safe place to properly secure his load in that there were materials on or about the loading site and he could not secure his load from the ground.
b. Negligently and carelessly directed the plaintiff to park his truck in an area that would not allow him to properly secure his load.”

Defendant objected to the instruction at trial and argues here, as he did there, that the instruction was improper because defendant owed plaintiff no duty to provide him with a loading site where he could secure his load from the ground. Defendant argues that it was not reasonably foreseeable to defendant that plaintiff would not discover the danger, or would fail to protect himself against it. We have already held that defendant’s duty to exercise reasonable care toward plaintiff encompassed the risk that plaintiff would be injured while attempting to secure his load from atop his trailer and that defendant should have anticipated this risk and taken reasonable steps to protect plaintiff from it.

Defendant contends that plaintiff’s instruction No. 11 — B erroneously defines the standard of care to be applied. However, plaintiff’s instruction No. 11 — B is an issues instruction and does not address the standard of care. The jury was properly instructed that defendant owed plaintiff the duty to exercise ordinary care to keep the property reasonably safe for use by the plaintiff for his safety. Thus, the jury was properly instructed on the standard of care.

Nor do we find error in the giving of the issues instruction. The purpose of an issues instruction is to inform the jury of plaintiff’s claims and defendant’s response, and it is taken from the plaintiff’s complaint and the defendant’s answer. (Jeffers v. Weinger (1985), 132 Ill. App. 3d 877, 885, 477 N.E.2d 1270, 1276.) An issues instruction is proper provided it is succinctly stated without undue repetition or emphasis and is based on the evidence. (Jeffers, 132 Ill. App. 3d at 885, 477 N.E.2d at 1276.) The question as to what issues have been raised by the evidence is within the discretion of the trial court. (Zueck v. City of Nokomis (1987), 160 Ill. App. 3d 140, 145, 513 N.E.2d 125, 128.) The issues instruction given in the instant case was properly based on the plaintiff’s complaint and the defendant’s answer and was based on the evidence.

Defendant’s next argument is that the trial court erred in granting plaintiff’s motion in limine to exclude evidence of an out-of-court statement by an unidentified person to the effect that plaintiff may have had a seizure immediately prior to his fall. During discovery, ambulance attendant Kevin Sipes had revealed that an unidentified person had told him at the scene of plaintiffs accident that it had appeared that plaintiff had had a seizure immediately prior to his fall. Defendant objected to the motion in limine; plaintiff argued that any such evidence would be inadmissible hearsay.

Defendant called Kevin Sipes to testify in offer of proof outside the presence of the jury. Sipes testified that an unidentified man was standing on top of plaintiff’s trailer when Sipes arrived on the scene of the accident. This man stated that he had been riding with plaintiff because plaintiff was a student driver, and that plaintiff had had a seizure immediately before he fell off the trailer. Plaintiff did not tell Sipes that he had had a seizure, but did state that he was taking medication, which was in the cab of the truck. Sipes described the unidentified man as having dark brown hair and being heavy set. The court granted the motion in limine.

We point out that there is no other evidence in the record that plaintiff had anyone riding with him that day, and the evidence shows that plaintiff was not a student driver, but had over 30 years’ experience as a truck driver. Furthermore, the evidence indicates that no one witnessed plaintiff’s fall as plaintiff lay for several minutes calling for help before anyone responded.

The procedure for reviewing a trial court’s grant of a motion in limine is set forth in Department of Public Works & Buildings v. Roehrig (1976), 45 Ill. App. 3d 189, 195-96, 359 N.E.2d 752, 759. In reviewing a circuit court’s grant of a motion in limine, a reviewing court should first consider whether the trial court properly applied the rules of evidence. If it did not, the motion was improvidently granted. However, if the trial court did properly apply the rules of evidence, the reviewing court must then determine whether the trial court abused its discretion in granting the motion, or whether the trial court should have denied the motion and left to the moving party the procedure of objecting to the evidence when it was offered at trial. If the rules of evidence have been correctly applied, a trial, court’s grant of the motion -will be reversed only if the trial court abused its discretion in granting the motion.

On appeal, defendant argues that it should have been able to present Kevin Sipes’ testimony as to the out-of-court statement because, although it was hearsay, it was admissible under the spontaneous declaration exception to the hearsay rule. Three factors are necessary to bring a statement within the spontaneous declaration exception to the hearsay rule: (1) an occurrence sufficiently startling to produce a spontaneons and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (Swartzberg v. Dresner (1982), 107 Ill. App. 3d 818, 325, 437 N.E.2d 860, 866.) It is incumbent upon the party offering the declaration to establish that it meets the requirements of the exception. Tarshes v. Lake Shore Harley Davidson (1988), 171 Ill. App. 3d 143, 153, 524 N.E.2d 1136, 1143.

We think the instant case is remarkably similar to Redmon v. Austin (1989), 188 Ill. App. 3d 220, 225, 543 N.E.2d 1351, 1354. In that case we held that, where the out-of-court declarant is unidentified and unknown, there is simply no factual basis for determining that the exception is applicable. Here, as in Redmon, there was an occurrence which could have produced a spontaneous and unreflecting statement by someone who experienced or witnessed it, and the statement did relate to the circumstances of the accident. However, there is no way to know that the declarant actually did witness the occurrence. Furthermore, here, as in Redmon, the declaration was not made until sometime after the accident took place. Thus, the opportunity for fabrication was present. We think the trial court did properly determine that the out-of-court statement was hearsay and was not admissible under the spontaneous declaration exception to the hearsay rule.

Our analysis cannot stop here, for we must also determine whether the trial court abused its discretion in granting the motion in limine. We think not. Any reference before the jury to the out-of-court statement would have been highly prejudicial to plaintiff, especially where, as here, there is absolutely no evidence to corroborate the out-of-court statement and that statement is particularly untrustworthy. Indeed, as we have pointed out, certain elements of the out-of-court statement are directly contradicted by other evidence in the record. The trial court did not abuse its discretion in granting plaintiff’s motion in limine.

Defendant next contends that it is entitled to a new trial because the trial court erred in discharging a juror from the venire after opening statements but before any evidence was presented. Juror James Tiemann had approached the trial judge after opening statement and stated that he had prejudged the case and that, based upon his experience with load binders arid cheater bars and safety rules, he did not believe he could be fair to plaintiff. Tiemann did, however, state that he could conceivably have his mind changed.

Plaintiff immediately moved that the juror be discharged because he had prejudged the case even before the presentation of any evidence, appeared to be prejudiced against plaintiff, and was not fair and impartial. Defendant objected to discharging the juror and suggested that the juror simply be instructed as to his obligation to keep an open mind. Defendant pointed out that it is not unusual for a juror to be persuaded by opening statement and that this juror had stated that he could have his mind changed based on the evidence.

Defense counsel was offered the opportunity to voir dire the juror and refused, stating that he felt precluded from any communication with a juror after the jury had been impaneled. The court stated that the juror had been quite adamant that he had prejudged the case and could not be fair to plaintiff. The court struck juror Tiemann and replaced him with an alternate. Defendant then moved for a mistrial. This motion was denied.

The general principle is that discharge of a juror is a matter of discretion with the trial judge, and prejudice must be shown in order to warrant reversal. (Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 105, 463 N.E.2d 792, 810.) As to the test of discretion, a trial court must have some legitimate reason for discharge in order to avoid the appearance of being arbitrary in the face of objection. Lowe, 124 Ill. App. 3d at 105-06, 463 N.E.2d at 810.

In the instant case, we do not think that the trial court abused its discretion in discharging juror Tiemann. The court had a legitimate reason for discharging Tiemann and certainly that decision was not made arbitrarily. Nor do we think defendant has shown any prejudice as a result of the discharge. An alternate juror was available and juror Tiemann was discharged and replaced with one of these alternate jurors prior to the presentation of any evidence. The alternate juror had, presumably, heard the opening statements. Indeed, the only prejudice defendant can claim is that juror Tiemann was prejudiced in favor of defendant. Certainly, this is not sufficient to warrant reversal.

The final argument made by defendant on appeal is that the damages awarded to plaintiff, Shirley Flath, should have been reduced by the amount of her husband’s comparative negligence. At trial, defendant objected to plaintiff’s instruction No. 23, the damages instruction for plaintiff, Shirley Flath, for the reason that it did not allow for reduction of her award in accordance with the comparative negligence, if any, of her husband. The trial court denied the objection and gave the instruction as tendered.

In February 1989, the First District of the Appellate Court held in Erickson v. Muskin Corp. (1989), 180 Ill. App. 3d 117, 129-31, 535 N.E.2d 475, 482-83, that recent decisions of the supreme court indicated that consortium claims are no longer considered to be derivative of the injured spouse’s personal injury action, but are independent actions, personal to the claimant. Erickson held, therefore, that the injured spouse’s comparative negligence should not be imputed to the spouse’s loss of consortium claim.

However, in Blagg v. Illinois F.W.D. Truck & Equipment Co. (1989), 186 Ill. App. 3d 955, 965, 542 N.E.2d 1294, 1301, decided in August 1989, some months after Erickson, the Second District of the Appellate Court held that the Erickson court’s analysis and interpretation of the recent supreme court decisions was flawed. While the Blagg court recognized that the recent supreme court decisions clearly established that a consortium claim is an independent claim insofar as it is not a claim by the spouse as a representative of the injured spouse, they just as certainly did not answer the question of whether a consortium award should be reduced by the injured spouse’s negligence. The second district found that the most persuasive authority on that question was the past law in Hlinois regarding loss of consortium under contributory negligence.

Prior to the introduction of comparative negligence in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, the law clearly considered the negligence of the injured spouse in determining whether a spouse had a claim for loss of consortium. Thus, under comparative negligence, the injured spouse’s negligence should not be considered irrelevant to the amount of a spouse’s recovery for loss of consortium. Blagg held:

“It only follows that a consortium claim must also be reduced by the proportion of the injured spouse’s negligence since the spouse’s loss of consortium was in part caused by this negligence. *** If the spouse asserting consortium is allowed to recover from defendant without reduction of the physically injured spouse’s negligence, then defendant is forced to compensate one spouse for the other spouse’s negligence.” (186 Ill. App. 3d at 966, 542 N.E.2d at 1301-02.)

Finally, Blagg pointed out that the majority of other States which had addressed this issue did apply the injured spouse’s negligence against a loss of consortium claim.

In March 1990, our supreme court overruled the first district’s decision in Erickson and affirmed the decision of the Second District of the Appellate Court in Blagg. (Blagg v. Illinois F.W.D. Truck & Equipment Co. (1990), 143 Ill. 2d 188.) The Illinois Supreme Court held that recovery for loss of consortium is limited by the physically injured spouse’s negligence. Accordingly, we hold that the trial court erred in overruling defendant’s objection to plaintiff’s instruction No. 23 and giving the instruction as tendered. The instruction should have provided for a reduction of damages in accordance with the degree of negligence, if any, of the injured spouse.

Exercising the power granted to us by Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(a)(5)), we hereby modify the judgment of the circuit court of St. Clair County by reducing the damages awarded to Shirley Flath by 20%, the amount of her husband’s negligence as found by the jury. The judgment is hereby modified to award plaintiff Shirley Flath damages in the amount of $16,000.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is hereby affirmed as modified.

Affirmed as modified.

RARICK, P.J., and GOLDENHERSH, J., concur.