author: JUSTICE WOODWARD JUSTICE REINHARD,

text:
    JACK PEASE, Indiv., et al., Plaintiffs-Appellants, v. INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 150 et al., Defendants-Appellees (C. Robert Darling, Defendant).
    Second District
    No. 2—90—0064
    Opinion filed February 11, 1991.

      REINHARD, J., concurring in part and dissenting in part.
    Thomas K. Gerling, of Brydges, Riseborough, Morris, Franke & Miller, of Waukegan (Louis W. Brydges, Jr., of counsel), for appellants.
    Louis E. Sigman, of Baum & Sigman, Ltd., of Chicago, and Holmstrom & Kennedy, of Crystal Lake (Dale D. Pierson and Harold C. McKenney, of counsel), for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiffs, Jack Pease, individually, and J. Pease Construction, Inc. (Pease), appeal from an order of the circuit court of Lake County granting a motion to dismiss and summary judgment and partial summary judgment as to various counts of Pease’s third amended complaint against defendants, International Union of Operating Engineers Local 150 (International), William E. Dugan (Dugan), Anthony S. Magdic (Magdic), and Keith Strong (Strong).

By way of background, Pease and International were involved in a dispute over Pease’s failure to sign a collective bargaining agreement with International. International began picketing at a sand and gravel pit partially owned by Pease and where several of his employees worked. The picketing was to protest the alleged failure of Pease to pay his employees operating heavy equipment the “area standard” for wages and benefits.

The allegations of Pease’s third amended complaint arise from two separate incidents. On August 19, 1987, Magdic and Strong reported to the Lake County sheriff that Pease had threatened them with a revolver. Pease admitted that on that day he had a conversation with Magdic and Strong at the sand and gravel pit site and that at the time he had a toy squirt gun or cap gun tucked in the waistband of his pants. He also had a handgun, unloaded and in a gun case in his vehicle. Pease denied threatening Strong or Magdic. A warrant was issued for Pease’s arrest charging him with two counts of aggravated assault and one count of unlawful use of weapons. He was arrested but was found not guilty of all charges following a jury trial.

The second incident occurred on September 30, 1987. On that day, the Northwest Herald printed an interview with Dugan, the president of International. In response to the questions by the Herald reporter, Dugan was quoted as making the following statements about Pease:

“ ‘He lies a lot’. Dugan said of Pease. ‘He’s dealing with half a deck, did you know that? I think he’s crazy.’ ”

In his third amended complaint, Pease alleged that Dugan and International (under a theory of respondeat superior) had defamed him by the above remarks (counts I and II). In counts III and IV, Pease alleged that he had been defamed by Magdic and International in that Magdic had told the police that Pease had pointed a revolver at him, knowing that statement to be false. In counts V and VI, Pease alleged false imprisonment by Magdic and International. In counts VII and VIII, Pease alleged defamation by Strong and International based upon the same allegations contained in counts III and IV. In counts IX and X, Pease alleged false imprisonment by Strong and International. Counts XI and XII directed against another individual defendant were dismissed by the trial court and are not a part of this appeal. In counts XIII and XIV, Pease alleged malicious prosecution by Magdic and International. In counts XV and XVI, Pease alleged malicious prosecution by Strong. On August 24, 1989, counts VII and VIII (defamation by Strong) were dismissed as untimely filed.

On September 20, 1989, a jury trial in this case commenced. On September 22, 1989, the trial court declared a mistrial. Thereafter, the case was continued for trial to November 27, 1989. Also, on September 22, 1989, Magdic, Strong, and International filed a motion to dismiss the counts alleging malicious prosecution (counts XIII through XVI), on the basis that the warrant for Pease’s arrest was issued by the court upon a finding of probable cause. The motion also alleged that those counts failed to allege special injury as a result of the complained-of actions and also failed to allege that Magdic, Strong, or International was the legal cause of Pease’s arrest.

On November 2, 1989, Dugan, Magdic, Strong, and International filed a motion for partial summary judgment as to the counts alleging defamation by Dugan and International (counts I and II). The motion argued that Dugan and International were entitled to judgment on those counts because there was no dispute that Dugan believed his statements about Pease to be true; that Pease suffered no damages; and that Pease provoked Dugan's statement.

On November 21, 1989, Magdic, Strong, and International filed a motion for partial summary judgment as to the counts alleging false imprisonment (counts V, VI, IX and X) and on the defamation counts against Magdic and International (counts III and IV). The motion argued that Pease was arrested pursuant to a warrant issued upon a finding of probable cause and that, under Illinois law, an arrest by a warrant issued upon probable cause is an absolute bar to a claim for false imprisonment. The motion then pointed out that Pease was only charged with misdemeanors, while in order to be defamatory, per se, the statement complained of must allege the commission of an offense which is indictable, involves moral turpitude, and is punishable by a term in the Department of Corrections.

On December 15, 1989, the trial court entered an order granting the motion to dismiss counts XIII through XVI (malicious prosecution); granting partial summary judgment to Magdic, Strong, and International as to counts V, VI, IX, and X (false imprisonment); and granting partial summary judgment to Dugan and International as to counts I and II (defamation based upon the newspaper article). The trial court also found that pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) there was no just reason to delay enforcement or appeal of the order. The trial court then entered an order voluntarily dismissing counts III and IV without prejudice. This appeal followed.

On appeal, Pease raises the following issues: (1) whether claims for malicious prosecution and false imprisonment are barred by a judicial finding of probable cause and issuance of an arrest warrant based upon alleged perjured statements; and (2) whether the alleged defamatory statements in this case constitute defamation per se, for which actual damages need not be shown.

FALSE IMPRISONMENT

Pease contends, first, that the trial court erred by granting summary judgment to Magdic, Strong, and International on the false imprisonment counts. Pease’s claim for false imprisonment alleged in pertinent part as follows:

“4. That on or about August 19, 1987, MAGDIC wilfully and maliciously directed and procured the arrest of PEASE by Lake County Sheriff’s Police by falsely and wrongfully accusing him of a criminal offense.
5. As a result of said unlawful arrest, [Pease] was illegally detained, restrained, and otherwise held against his will by Lake County Sheriff’s Police for an extended period of time.”

Identical allegations were directed at International and Strong, as well.

“A motion for summary judgment should be granted where there is no genuine issue as to any material fact. The court is to determine the existence or absence of a genuine issue as to any material fact from the affidavits, depositions, admissions, exhibits and pleadings in the case. [Citations.] The facts to be considered by the court are evidentiary facts. [Citation.] Even though a complaint and answer may purport to raise issues of material fact, if such issues are not further supported by evidentiary facts through affidavits or such, summary judgment is then appropriate. [Citation.] If the party moving for summary judgment supplies such facts which, if not contradicted, would entitle such a party to a judgment as a matter of law, the opposing party cannot rely upon his complaint or answer alone to raise genuine issues of material fact.” Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 380.

It is undisputed that Pease was arrested pursuant to a warrant issued by a judge of the Lake County circuit court. An arrest made pursuant to a validly issued warrant is a complete answer to a claim of false imprisonment. (Feld v. Loftis (1909), 240 Ill. 105, 107-08.) Pease did allege that Magdic, Strong, and International “directed and procured” his arrest by giving false information to the Lake County authorities, which information was then used to obtain a warrant for his arrest. However, in his third amended complaint, Pease failed to allege an invalidity in the warrant process itself. In his response to the motion for summary judgment, Pease filed a memorandum but failed to set forth any facts to establish that the warrant itself was invalid.

The cases relied on by Pease (Dutton v. Roo-Mac, Inc. (1981), 100 Ill. App. 3d 116; Mangus v. Cock Robin Ice Cream Co. (1977), 52 Ill. App. 3d 110; Karow v. Student Inns, Inc. (1976), 43 Ill. App. 3d 878) all involved arrests made without warrants and are, therefore, distinguishable from the case at bar. We conclude that Pease has not raised a genuine issue of material fact as to whether he was arrested pursuant to a valid warrant. Thus, the trial court correctly entered summary judgment in favor of the defendants on the false imprisonment counts (counts V, VI, IX, and X). Nevertheless, we note that the defendants here may still be liable for malicious prosecution if their conduct in procuring Pease’s arrest was undertaken maliciously and without probable cause. See Feld v. Loftis (1909), 240 Ill. 105, 107-08; Bassett v. Bratton (1877), 86 Ill. 152.

DEFAMATION

Next, Pease contends that the trial court erred when it granted Dugan’s motion for summary judgment as to the defamation action contained in counts I and II of the third amended complaint. Pease argues that he was not required to prove actual damages.

In libel actions, proof of injury is not necessary “where the alleged statement is libelous per se — where the words are ‘obviously and naturally harmful.’ ” (Haberstroh v. Crain Publications, Inc. (1989), 189 Ill. App. 3d 267, 270, quoting Fried v. Jacobson (1983), 99 Ill. 2d 24, 27.) Illinois courts have found four categories of words that can constitute libel per se: (1) words which impute the commission of a criminal offense; (2) words which impute that one has a communicable disease which tends to exclude a person from society; (3) words which impute inability to perform or want of integrity in the discharge of duties of office or employment; and (4) words which prejudice a particular party in his profession or trade. Haberstroh, 189 Ill. App. 3d at 270.

Words that are mere name calling or found to be rhetorical hyperbole or employed only in a loose, figurative sense have been deemed nonactionable. (Haberstroh, 189 Ill. App. 3d at 271.) Dugan’s statements, “He’s dealing with half a deck, *** I think he’s crazy,” clearly fit into those categories and are not, therefore, libelous per se.

Dugan’s third remark, however, “He lies a lot,” is more troublesome. “[A] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement, may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se. This preliminary determination is properly a question of law to be resolved by the court in the first instance; whether the publication was in fact understood to be defamatory or to refer to the plaintiff is a question of fact for the jury should the initial determination be resolved in favor of the plaintiff.” (Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352.) We note that there is no dispute that Dugan was referring to Pease in the above statements.

In Costello v. Capital Cities Communications, Inc. (1988), 125 Ill. 2d 402, defendants published an editorial which stated in pertinent part as follows:

“[Plaintiff] lied to us. There’s no nicer way to put it; he simply lied. And when he lied to us, he lied to you. *** Well, he lied. ***
*** Just think, we’ve got two more years of the [Plaintiff] brand of lying leadership.” (125 Ill. 2d at 411-12.)

Although the verdict for plaintiff was reversed on other grounds, the supreme court stated in pertinent part as follows:

“We reject the defendants’ contention that the pertinent statements in the editorial are not libelous per se because they accuse the plaintiff of dishonesty on one particular occasion. The defendants do not suggest that the disputed accusations may be given a meaning which is not defamatory. Nor does the Chap-ski decision allow us to consider the language, which a number of times accuses [plaintiff] of lying, as being innocent of libelous content as a matter of law. The defamatory meaning is evident. [Citation.] The statements in the editorial are not reasonably susceptible to an innocent construction, and are to be considered libelous per se because they imputed to [plaintiff a want of integrity in discharging the duties of his office.” 125 Ill. 2d at 416-17.

Dugan’s statement was made in the following context. Amy Mack, a reporter for the Northwest Herald, interviewed Dugan. She told Dugan that, in a prior conversation with Pease, Pease had told her that the union was directly responsible for the vandalism at his firm; she asked Dugan for a response to Pease’s statement, to which Dugan made the complained-of statement. As in Costello, the defamatory meaning here is evident, and the statement is not reasonably susceptible to an innocent construction. Therefore, the statement, “He lies a lot,” is to be considered libelous per se because it imputes to Pease a want of integrity in the discharge of his business, and, therefore, Pease need not prove actual damages.

However, Dugan argues the granting of summary judgment was proper because there was no genuine issue of material fact over whether Dugan’s statement was made with actual malice. While an action for libel which occurred in the course of a labor dispute was not preempted in order to ensure that the national policy of free and open communications during labor disputes was not chilled, the actual malice standard of New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, was held applicable to causes for libel and slander arising out of such disputes. Fisher v. Illinois Office Supply Co. (1984), 130 Ill. App. 3d 996, 999, relying on Linn v. United Plant Guard Workers of America (1966), 383 U.S. 53, 15 L. Ed. 2d 582, 86 S. Ct. 657.

The record in this case supports the conclusion that Dugan’s statements were, in fact, made during a labor dispute. Pease argues in response that Dugan’s statements were not made during a labor dispute. However, in a motion to compel filed August 24, 1989, Pease alleged that “[A]t the time defendants published the alleged defamatory statements in this action, [International] was attempting to organize J. Pease Construction Co., Inc.” Moreover, we reject Pease’s reasoning that by applying Linn in this case, we are extending an open invitation to unions to publish defamatory statements and avoid the law in Illinois by labeling it a “labor dispute.” That reasoning would require us to accept the odd premise that the labor disputes are the excuse for, rather than the cause of, the frosty relations between management and labor.

In order to establish that the alleged defamatory statements were made with actual malice, the plaintiff must prove by clear and convincing evidence that the defendant published the defamatory statements with knowledge that the statements were false or with reckless disregard for their truth or falsity. (Costello, 125 Ill. 2d at 418-19.) Reckless disregard for the truth may be found only where the evidence shows that the defendant, in fact, entertained serious doubts as to the truth of the publication. 125 Ill. 2d at 419.

The dissent in this case takes the position that the defendants here were not entitled to summary judgment because they failed to submit any evidence that would indicate that Dugan did not act with actual malice since the depositions of Dugan and Amy Mack, the newspaper reporter, shed no light on the issue of malice. The dissent maintains that, where a statement is determined to be defamatory per se, the determination of actual malice is a jury question, citing Erickson v. Aetna Life & Casualty Co. (1984), 127 Ill. App. 3d 753, 764.

If the language is libelous per se, malice is imputed from the words therein. (Welch v. Chicago Tribune Co. (1976), 34 Ill. App. 3d 1046, 1052.) In Welch, defendant terminated plaintiff’s employment and circulated a memorandum stating that plaintiff, a sports writer, had been terminated because of “alcoholism, inefficiency, lack of punctuality, and unreliability.” Plaintiff filed an action for libel alleging that the language of the memorandum was libelous per se, injuring him in his profession. In reversing the granting of summary judgment to the defendants, the reviewing court held that there were factual issues to be determined as to whether the memorandum was published maliciously and, therefore, the issue should have been submitted to the jury.

Contrary to the dissent’s position, the question of actual malice, even in cases of libel per se, is not always a question for the jury and may, under the proper circumstances, be disposed of by a motion for summary judgment. See Catalano v. Pechous (1978), 69 Ill. App. 3d 797, aff’d (1980), 83 Ill. 2d 146; Danekas v. Wise (1978), 64 Ill. App. 3d 801.

In Danekas, plaintiff, a former chief of police, sued the defendants alleging that an editorial which accused plaintiff of illegal and unprofessional conduct while in office was libelous per se. Plaintiff alleged that these charges were “false and known by the defendants to be false and defendants’ publication thereof was with total and reckless disregard for the truth or falsity of any of said charges.” (Danekas, 64 Ill. App. 3d at 802.) The trial court granted defendant’s motion for summary judgment on the basis that there was no showing of actual malice.

In affirming the granting of summary judgment on the matter of actual malice, the reviewing court stated as follows:

“Stating it as succinctly as we can, the issue before us is whether the plaintiff has presented sufficient evidence to raise a triable issue as to whether or not the publication in question reflected actual malice, that is, whether it was knowingly false or made with reckless indifference as to whether or not it was false. In view of the depositions and affidavits offered in evidence by the defendants, which have not been controverted factually by the plaintiff, this threshold question must, we think, be answered in the negative.
As the trial judge remarked in his opinion sustaining the motion for summary judgment, ‘[t]he article published in the defendant’s newspaper is not bland. It dispraises public officials very extensively.’ There is no question but that the editorial was damaging to the plaintiff, but under the constitutional standards set by New York Times v. Sullivan [(1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710.], the plaintiff must establish actual malice and this implies not only falsity, but knowing and reckless' falsity. In this case the evidence submitted at the pleading stage indicates the opposite and clearly overcomes the general allegations in the complaint, standing by themselves. Thus, we think the plaintiff has failed to raise a triable issue as to the required element of actual malice. The corroborative details and the sources thereof supplied by the defendants’ answers to the plaintiff’s interrogatories, as supported by official documents and depositions of witnesses in a position to know the facts, indicate at the very least an absence of actual malice, within New York Times standards. Since this material was not controverted by any factual data offered by the plaintiff, no genuine issue was raised as to the material fact of actual malice.” 64 Ill. App. 3d at 805.

The dissent points out that, in Danakas, summary judgment in favor of the defendant was not supported only by the self-serving assertion that the defendant believed the truth of his statement, but upon presentation of “official documents and depositions of witnesses in a position to know the facts.” (64 Ill. App. 3d at 805.) Likewise, the dissent points out, in Catalano, the reviewing court expressed doubt as to whether a defendant’s unqualified declaration that he believed in the truth of his statement would be sufficient to negate a showing of actual malice. (Catalano, 83 Ill. 2d at 167.) However, the record in this case reveals that Pease has not made a showing of actual malice other than the bare allegations hereafter set forth in the following paragraph. Dugan supported his motion for summary judgment with more than just a denial of Pease’s allegation of actual malice.

In his third amended complaint, Pease alleged that Dugan “published said statements willingly and maliciously, knowing said statements were false.” We note that Pease did not include the alternative allegation that Dugan made the complained-of statement with reckless disregard for its truth or falsity. Defendants supported their motion for summary judgment with excerpts from the depositions of Amy Mack and William Dugan. In his response to the motion for summary judgment, Pease relied on the allegations of his third amended complaint supported by a legal memorandum. The dissent correctly points out that, even though a party opposing a motion for summary judgment fails to file counteraffidavits, the movant is not entitled to summary judgment unless his motion and supporting affidavits establish his right to summary judgment as a matter of law. (Komater v. Kenton Court Associates (1986), 151 Ill. App. 3d 632, 636.) However, if the party moving for summary judgment supplies such facts, which, if not contradicted, would entitle such a party to a judgment as a matter of law, the opposing party cannot rely upon his complaint or answer alone to raise a genuine issue of material fact. Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 380.

It is undisputed that the context in which Dugan’s statement was made was in response to a charge by Pease that the union of which Dugan was president had engaged in acts of vandalism. The complained-of statement was a denial by Dugan of those charges. On his deposition, Dugan testified that he made an investigation of the matter after he made the complained-of statement and confirmed that Pease was lying as to the alleged acts of vandalism. He further testified that prior to making the complained-of statement he had no reason to conduct an investigation because he had never heard such charges before. Nothing about the statement or the context in which it was made as established by the depositions provides support for Pease’s allegation of actual malice. Had Dugan merely testified in his deposition that he believed in the truth of his statement, we would agree with the dissent that summary judgment would not be appropriate since Pease could still ultimately prevail on his defamation action. However, Dugan countered Pease’s allegation, that he called Pease a liar knowing that was not true, not only by denying the allegation but also by furnishing the additional facts that he had never heard Pease’s charges of vandalism by the union before, thus, giving him no reason to believe such charges, and that a subsequent investigation proved that Pease’s charges were, in fact, false. In light of the fact that Pease did not allege that Dugan made the complained-of statement with reckless disregard for its truth or falsity, the fact that Dugan’s investigation occurred after he made the complained-of statement does not require a different result. Pease failed to allege any facts which showed that at the time Dugan made the complained-of statement, Dugan had reason to doubt its truth.

The burden of proving malice is on the party claiming injury. (Welch, 34 Ill. App. 3d at 1052.) In order to defeat the motion for summary judgment, Pease was required to present sufficient admissible evidence to establish that a genuine issue of material fact existed as to the existence of actual malice on the part of Dugan and International. Pease has not further supported his position with evidentiary facts showing that Dugan knew that Pease was telling the truth about the vandalism when he made the complained-of statement or that Dugan entertained serious doubts that Pease was not telling the truth. Therefore, Pease has not established a genuine issue of material fact as to whether Dugan acted with actual malice. (See Carruthers, 57 Ill. 2d at 380.) Summary judgment as to counts I and II was, therefore, properly granted to Dugan and International.

MALICIOUS PROSECUTION

Pease contends that the trial court erred in dismissing his claims for malicious prosecution against Magdic, Strong, and International. Pease’s claim for malicious prosecution alleged in pertinent part as follows:

“4. On or about August 19, 1987, MAGDIC willfully and maliciously directed and procured the arrest of PEASE by Lake County Sheriff’s Police by falsely and wrongfully accusing him of a criminal offense.
5. Thereafter MAGDIC wilfully and maliciously proceeded with the prosecution of criminal charges against PEASE without probable cause to do so.
6. The criminal prosecutions against PEASE were terminated in PEASE’S favor.
7. As a direct and proximate result of the prosecution, PEASE suffered damages.”

Identical allegations were directed at International and Strong, as well.

In dismissing the malicious prosecution counts, the trial court stated in pertinent part as follows:

“The court finds that on August 19, 1987, the Nineteenth Judicial Circuit Court Judge Henry Tonigan found probable cause to arrest Jack Pease and issued a warrant for that purpose. Absence of probable cause to arrest is an essential element of the claim of malicious prosecution, and therefore, the previous finding of probable cause bars this claim.”

Defendants’ motion to dismiss did not state whether it was brought pursuant to section 2 — 615 or section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 615, 2 — 619). The basis for the motion appears to be insufficient pleadings resulting in a failure to state a cause of action pursuant to section 2 — 615. However, the basis stated in the order of dismissal was the absence of probable cause based upon the issuance of a judicial warrant which the trial court here held barred the claim for malicious prosecution, and thus it would be considered a disposition under section 2 — 619 (cause of action barred by affirmative matter).

We are. of the opinion that the trial court erred in dismissing the malicious prosecution counts of Pease’s third amended complaint. Even if the court in the criminal proceedings had found probable cause to bind a defendant over for trial, which is similar to a finding of probable cause to arrest, such a finding would be at most only evidence of probable cause and would not be conclusive on this issue in subsequent civil proceedings. (Lyons v. Kanter (1918), 285 Ill. 336, 341.) The fact that the judge in the prior criminal proceedings here found probable cause to arrest likewise does not foreclose further inquiry on this question in the instant civil proceedings, so dismissal of the malicious prosecution counts of the third amended complaint was improper.

Defendants argue that in his deposition Pease conceded that probable cause to arrest him existed. On an appeal from an order dismissing an action pursuant to section 2 — 615, this court, like the trial court, may consider only allegations contained in the complaint. (Stefani v. Baird & Warner, Inc. (1987), 157 Ill. App. 3d 167, 173.) A motion to dismiss brought under section 2 — 619 does not appear to be under similar constraints since such motions are often required to be supported by affidavit if the ground for the motion does not appear on the face of the complaint. (Ill. Rev. Stat. 1987, ch. 110, par. 2— 619.) When a complaint has been dismissed, the dismissal will be upheld upon any basis found in the record, and the reviewing court will presume it was upon one of the grounds properly presented. (Outlaw v. O’Leary (1987), 161 Ill. App. 3d 218, 221.) The defendants here did not argue to the trial court that Pease had conceded the issue of probable cause and, therefore, that basis for dismissing the malicious prosecution counts of the complaint was not properly presented to the trial court.

Defendants also argue that dismissal of these counts was appropriate in any event because Pease’s pleadings were insufficient to state the cause of action for malicious prosecution. However, the alleged insufficiency of plaintiff’s allegations was not the basis of the trial court’s order dismissing these counts with prejudice. Although a reviewing court may affirm a judgment on any basis appearing on the record, it would be inappropriate to invoke this rule and affirm the dismissal of a complaint with prejudice on the alternative basis of a pleading defect. Cutsinger v. Cullinan (1979), 72 Ill. App. 3d 527, 533.

We conclude, therefore, that the trial court erred in dismissing the malicious prosecution counts of Pease’s third amended complaint.

Accordingly, the judgment of the circuit court granting partial summary judgment to Magdic, Strong, and International as to counts V, VI, IX and X (false imprisonment) and granting partial summary judgment to Dugan and International as to counts I and II (defamation based on the newspaper article) is affirmed. The circuit court’s order granting the motion to dismiss counts XIII through XVI (malicious prosecution) is reversed, and this cause is remanded for further proceedings consistent with the views expressed in this opinion.

Affirmed in part; reversed in part and remanded.

DUNN, J., concurs.

JUSTICE REINHARD,

concurring in part and dissenting in part:

I agree with the majority’s opinion insofar as it holds that the trial court correctly entered summary judgment in favor of defendants on counts V, VI, IX and X of the third amended complaint seeking recovery based on false imprisonment. I further agree with the majority that the trial court erred in dismissing counts XIII through XVI of the third amended complaint which sought recovery for malicious prosecution.

I disagree, however, with the majority’s determination that defendants were entitled to summary judgment on counts I and IT of the third amended complaint based on defamation. It is important to note the narrow scope of our inquiry in this regard. In its ruling on defendants’ motion for partial summary judgment on counts I and II, the trial court found that the statements made by defendant Dugan constituted defamation which was actionable per se. No party on appeal has taken issue with this determination. Therefore, unlike that of the majority, my analysis is undertaken assuming, but not deciding, that the statements at issue constitute defamation which is actionable per se.

In their motion for partial summary judgment on counts I and II, defendants argued that the statements at issue arose in the context of a labor dispute and that, therefore, this case, falls within the ambit of Linn v. United Plant Guard Workers of America (1966), 383 U.S. 53, 15 L. Ed. 2d 582, 86 S. Ct. 657. The record reveals that plaintiff conceded that the events in question occurred during the same time period as a union organizing campaign, so I agree with the majority that Linn is applicable here.

Linn addressed the question of whether an action for defamation under State law is preempted by Federal labor law if the action arises in the context of a labor dispute. The Supreme Court held that such actions were not preempted so long as the plaintiff could also demonstrate actual malice on the part of the defendant according to the test enunciated in New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710. (Linn, 383 U.S. at 65, 15 L. Ed. 2d at 591, 86 S. Ct. at 664.) The court also held that plaintiffs in such actions must offer some proof of the harm suffered as a result of the defamation and may not rely on a presumption of harm recognized by State law. The court stated that plaintiffs “may not recover except upon proof of such harm, which may include general injury to reputation, consequent mental suffering, alienation of associates, specific items of pecuniary loss, or whatever form of harm would be recognized by state tort law.” Linn, 383 U.S. at 65, 15 L. Ed. 2d at 591, 86 S. Ct. at 664.

The majority concludes that summary judgment on counts I and II was appropriate because plaintiff failed to present an issue of material fact regarding the question of whether Dugan acted with actual malice. However, defendants did not submit any evidence along with their motion for partial summary judgment which' would .establish that Dugan did not act with actual malice.

The majority notes that “[djefendants supported their motion for summary judgment with excerpts from the depositions of Amy Mack and William Dugan.” (208 Ill. App. 3d at 874.) The majority does not explain how the deposition of Mack, the newspaper reporter, shows a lack of actual malice on the part of Dugan. Mack’s deposition merely shows that Dugan made the statement at issue. Because malice may be proved by the defamatory statement itself, Mack’s deposition actually supports plaintiff’s position that a question of fact on the issue of actual malice remained which should not have been disposed of by summary judgment. See Welch v. Chicago Tribune Co. (1975), 34 Ill. App. 3d 1046, 1052-53.

Moreover, the majority ascribes far too much weight to Dugan’s self-serving affidavit claiming that he believed in the truth of his statement that plaintiff “lies a lot.” Even where the party opposing a motion for summary judgment fails to file counteraffidavits, the movant is not entitled to summary judgment unless his motion and supporting affidavits establish his right to summary judgment as a matter of law. (Komater v. Kenton Court Associates (1986), 151 Ill. App. 3d 632, 636.) A defendant will not necessarily defeat a finding of actual malice merely “by testifying that he published with a belief that the statements were true.” (St. Amant v. Thompson (1968), 390 U.S. 727, 732, 20 L. Ed. 2d 262, 267, 88 S. Ct. 1323, 1326.) Therefore, because plaintiff could ultimately succeed in a defamation action despite Dugan’s assertion that he believed in the truth of his statement, the affidavit does not establish Dugan’s right to summary judgment in his favor as a matter of law even though it is uncontroverted.

Although the majority correctly notes that the existence of actual malice “may, under the proper circumstances, be disposed of by a motion for summary judgment,” the majority fails to show that the proper circumstances for such a summary disposition exist in this case. It remains true that the question of actual malice is generally one for the trier of fact. (Catalano v. Pechous (1978), 69 Ill. App. 3d 797, 810, aff’d (1980), 83 Ill. 2d 146; see also Erickson v. Aetna Life & Casualty Co. (1984), 127 Ill. App. 3d 753, 764 (where a statement is determined to be defamatory per se, the determination of malice is a jury question).) I believe that the self-serving statements in Dugan’s affidavit are not sufficient to require plaintiff to have filed counter-affidavits in order to defeat the motion for summary judgment.

The cases cited by the majority do not support a contrary conclusion. The entry of summary judgment in favor of the defendant in Danekas v. Wise (1978), 64 Ill. App. 3d 801, was not, as here, supported only by a self-serving assertion that the defendant believed the truth of his statement, but upon presentation of “official documents and depositions of witnesses in a position to know the facts.” (64 Ill. App. 3d at 805.) Similarly, the supreme court in Catalano v. Pechous (1980), 83 Ill. 2d 146, expressed doubt as to whether a defendant’s unqualified declaration that he believed in the truth of his statement would be sufficient to negate a showing of actual malice. (83 Ill. 2d at 167.) Thus, Catalano contradicts, rather than supports, the majority’s position.

Defendants also argue that plaintiff failed to present a factual question as to whether he sustained damages from the alleged defamation as required by Linn. Defendants correctly note that plaintiff made it clear below that he was not pursuing a claim based on special damages. However, Linn does not require a plaintiff to seek special damages in order to escape Federal preemption; recovery can be based on proof of “general injury to reputation” if such harm is recognized as compensable under State law. (Linn, 383 U.S. at 65, 15 L. Ed. 2d at 591, 86 S. Ct. at 664.) Generally, Illinois allows recovery for general damages stemming from injury to reputation. (Brown v. Farkas (1986), 158 Ill. App. 3d 772, 777.) In Illinois, such damages generally arise by inference of law and need not be proved by evidence. Brown, 158 Ill. App. 3d at 777; see also Mittelman v. Witous (1989), 135 Ill. 2d 220, 238-39.

In the instant case, State law would allow plaintiff to recover damages based on general injury to his reputation. Although such damages would normally be presumed under Illinois law, where, as here, the suit arises in the context of a labor dispute, Linn requires plaintiff to offer “evidence as to the severity” of the harm {i.e., injury to reputation) in order to escape Federal preemption. (Linn, 383 U.S. at 65, 15 L. Ed. 2d at 591, 86 S. Ct. at 664.) This does not mean that plaintiff is required to prove special or actual damages measured by some pecuniary loss.

Contrary to defendants’ assertions, there is nothing in the record to suggest that plaintiff conceded he could not prove his allegation that the alleged defamation caused injury to plaintiff’s “reputation for honesty and integrity in his personal and business affairs.” Moreover, defendants offered no evidence by affidavit or deposition in support of their motion for summary judgment which would negate this allegation. Accordingly, an issue of fact remained, and there was no basis for the entry of summary judgment. Plaintiff is entitled to the opportunity to present evidence regarding the alleged injury to his reputation.

Accordingly, while I would affirm the trial court’s entry of summary judgment in favor of defendants on the false imprisonment counts of the third amended complaint, I would reverse the order granting summary judgment on the defamation counts and dismissing those counts of the complaint alleging malicious prosecution.


source: Caselaw Access Project

author: JUSTICE NICKELS

license: Public Domain

text:
    DIANE CHEVRIE, Plaintiff-Appellant, v. FRANK GRUESEN, Defendant-Appellee.
    Second District
    No. 2—90—0270
    Opinion filed February 13, 1991.

      Ken Klimczak, of Michael R. Panter & Associates, and Michael D. Rich-man, both of Chicago, for appellant.
    James F. Best and Sarah E. Chapin, both of Fraterrigo, Best & Beranek, of Chicago, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Plaintiff, Diane Chevrie, appeals from an order of the trial court granting defendant’s, Frank Gruesen’s, motion for summary judgment. We reverse and remand for trial on the merits.

Plaintiff brought suit against defendant seeking damages for personal injuries she sustained as a result of the collision of her car with several vehicles, including ultimately that of defendant. At the time of the initial collision, plaintiff was traveling east in the curb lane of Butterfield Road in Lombard, Illinois. Butterfield Road is a six-lane highway with three lanes of traffic each going east and west and further divided by a very wide, eight-inch-high median strip. Plaintiff’s car was struck on the rear passenger side by a car exiting a driveway on the south side of Butterfield Road. The driver of that car is not a party to this action. The impact caused plaintiff’s car to spin across the three eastbound lanes of traffic, continue over the median, and enter the westbound lanes. At the time plaintiff’s car entered the westbound lanes it was moving north, perpendicular to traffic, and backwards.

Upon entering the westbound lanes, plaintiff’s car struck the driver’s side rear of Jeanette Konkol’s (n/k/a Lambrigger) car traveling in the median lane, although Lambrigger had accelerated and swerved to avoid plaintiff’s car. The impact did not stop plaintiff’s car but did cause it to veer slightly east as it continued across the westbound lanes. A car driven by Nancy Larson, immediately behind Lambrigger’s car in the westbound median lane, successfully braked and avoided impact with plaintiff’s car. Defendant was also traveling westbound, behind Lambrigger’s and Larson’s cars. Although conflicting testimony placed defendant’s car in either the curb, middle, or median lane, he collided with plaintiff’s car in the middle westbound lane, with the left front of defendant’s car impacting the driver’s side door of plaintiff’s car.

Plaintiff alleged that defendant negligently failed to keep a proper lookout and was traveling too fast for conditions. Defendant asserted that the collision between his car and that of plaintiff was unavoidable and, therefore, that his conduct was not the proximate cause of the collision.

A motion for summary judgment should only be granted if the pleadings, depositions, admissions and affidavits demonstrate that there exists no issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005.) Summary judgment is a drastic means of disposing of litigation and should be granted only if the right of the movant to judgment is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240; Turner v. Roesner (1990), 193 Ill. App. 3d 482, 487.) In determining if a question of material fact exists, a court must view the evidence in the light most favorable to the nonmovant and against the moving party. (Turner, 193 Ill. App. 3d at 487; Santschi v. Gorter (1978), 63 Ill. App. 3d 394, 396; Dakovitz v. Arrow Road Construction Co. (1975), 26 Ill. App. 3d 56.) Only evidentiary facts and not mere conclusions of law should be considered. (Rutter v. Gemmer (1987), 153 Ill. App. 3d 586, 591; Bielarczyk v. Happy Press Lounge, Inc. (1980), 91 Ill. App. 3d 577, 581.) If the facts are not in dispute, inferences may be drawn from undisputed facts to determine if the movant is entitled to judgment as a matter of law (Turner, 193 Ill. App. 3d at 487; Estate of Dompke v. Dompke (1989), 186 Ill. App. 3d 930, 933), and if fair-minded persons could draw different inferences from those facts then a triable issue exists (Santschi, 63 Ill. App. 3d at 396; Ruby v. Wayman (1968), 99 Ill. App. 2d 146).

Although not well articulated by either plaintiff or defendant, two issues are before us on appeal: first, whether the facts presented on defendant’s motion for summary judgment and plaintiff’s response thereto raised a material question of fact as to defendant’s breach of his duty to maintain a proper lookout and observe a speed appropriate for conditions and, second, assuming defendant’s breach of duty, did the facts further raise a question of proximate causation?

The driver of a vehicle has the duty to maintain a proper lookout for other cars traveling on the road. (Grass v. Hill (1981), 94 Ill. App. 3d 709, 714-15.) This duty applies even though the other car is traveling on the wrong side of the road. (E.g., Turner v. Roesner (1990), 193 Ill. App. 3d 482, 488.) So, too, a driver has the duty to reduce the speed of his vehicle to avoid collisions. (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 601(a); Toney v. Mazariegos (1988), 166 Ill. App. 3d 399, 403.) Both the question of a proper lookout and of speed appropriate to conditions are generally questions for the jury to decide. Toney, 166 Ill. App. 3d at 403.

Two cases have considered the question of evidence of improper lookout that is sufficient to create a factual question requiring the jury’s determination. In Santschi (63 Ill. App. 3d 394), on a two-lane road without a median, the plaintiff swerved into the defendant’s lane to avoid a car in the plaintiff’s lane. The defendant’s deposition testimony was that he only saw the collision at the last moment as he saw himself being struck and that he did not see the automobile blocking the plaintiff’s lane until after the occurrence. (Santschi, 63 Ill. App. 3d at 396.) Thus, the uncontroverted facts created a genuine issue of material fact, and summary judgment was inappropriate. Santschi, 63 Ill. App. 3d at 397.

On the defendant’s motion for a new trial in Sitowski v. Buck Brothers, Inc. (1986), 147 Ill. App. 3d 282, again on a two-lane undivided highway, the defendant struck the plaintiff’s car when it was struck from behind by another car while stopped to make a left turn across the defendant’s lane and was thereby pushed into the lane in front of the defendant’s truck. The defendant’s testimony was that, although he had seen both cars approaching him, the defendant did not see the plaintiff’s car stop nor see the impact between the plaintiff’s car and the car that pushed the plaintiff’s car into his lane. The defendant “did not see why” the plaintiff had crossed over into his lane. (Sitowski, 147 Ill. App. 3d at 284.) Once again, the evidence presented a substantial factual dispute for the trier of fact. Sitowski, 147 Ill. App. 3d at 288.

In this instance, plaintiff crossed at least four lanes and a wide, raised median before coming into defendant’s path in contrast to the much narrower roadways in either Sitowski or Santschi. Thus, the opportunity for defendant to have seen plaintiff’s car was far greater. That inference is further supported by the fact that, prior to the point of impact with defendant’s car, plaintiff’s car was observed by Larson, who avoided impact with plaintiff’s car completely, and by Lambrigger, who escaped with only a minor collision. Defendant admitted that he did not see plaintiff’s car until it impacted with his car. At that time, he saw only a gray object in the left-hand side of his windshield, which he did not identify as a car until after the collision. Thus, from defendant’s own testimony, construed in favor of plaintiff and against defendant as it must on this motion for summary judgment, the uncontroverted facts raise a material question of defendant’s failure to maintain a proper lookout.

Plaintiff further asserted that defendant was driving too fast for conditions, with the conditions requiring speed below the posted speed limit being the presence of plaintiff’s car in the westbound lanes and preceding collisions between plaintiff’s car and those of the initial driver and that of Lambrigger. Again, defendant’s own deposition testimony was that he had not slowed his car in any way because he did not see plaintiff’s car moving perpendicular across the westbound lanes of traffic. And again, a material question was presented as to whether defendant was driving too fast for conditions.

Turning to the second issue, defendant asserted the collision was unavoidable and, therefore, there was no issue of proximate cause. A defendant’s failure to maintain a proper lookout or to observe a speed appropriate to conditions, or any other acts or omissions on his part, do not render that defendant negligent if those acts or omissions are not the proximate cause of a plaintiff’s injuries. (Turner, 193 Ill. App. 3d at 490; Rutter, 153 Ill. App. 3d at 593.) Thus, an “unavoidable collision” is without proximate cause, and a defendant’s acts or omissions in breach of a duty are not material. (Turner, 193 Ill. App. 3d at 490; Rutter, 153 Ill. App. 3d at 593.) “Unavoidable collisions” have most often occurred when a defendant is confronted with a sudden swerve into defendant’s right-of-way by an approaching vehicle. (Walling v. Lingelbach (1976), 65 Ill. 2d 244, 248; Turner, 193 Ill. App. 3d 488-89; Rutter, 153 Ill. App. 3d at 593-94; Wilmere v. Stibolt (1987), 152 Ill. App. 3d 642, 647.) In such cases, therefore, the defendant had insufficient time to react and take evasive action, or the evasive action taken was ineffective because of the quickness with which the collision occurred.

In Turner, on a two-lane highway, the defendant had only two seconds and 120 feet in which to take .measures to avoid the collision after observing the car in which the plaintiff’s decedent was a passenger cross into the defendant’s right-of-way. The defendant further testified that he had removed his foot from the accelerator in that time frame, but did not remember if he had yet applied the brakes. (Turner, 193 Ill. App. 3d at 488-89.) Similarly, in Wilmere, the plaintiff decedent’s car crossed the double center line of a four-lane highway and struck three oncoming cars traveling in close proximity to each other in both oncoming lanes in a matter of seconds. (Wilmere, 152 Ill. App. 3d at 647.) Finally, in Walling, the defendant’s car collided with another vehicle when the other driver crossed the center line into the defendant’s right-of-way in a heavy fog. The defendant both braked and veered away in the 10 feet between the appearance of the other car in her lane and the impact. Walling, 65 Ill. 2d at 245-46.

In each of these cases, the collision was almost instantaneous with the action of the plaintiff in veering into the defendant’s right-of-way. In contrast, in the present instance, plaintiff’s car crossed four lanes of traffic and a median, and collided with two other cars before the impact with defendant’s car. Two drivers with less time and distance to either observe plaintiff’s car or react to plaintiff’s sudden appearance in their right-of-way were able to take effective evasive measures. On these uncontroverted facts, there is a clear factual question of whether defendant could have avoided the collision with plaintiff’s car if defendant had maintained a proper lookout and reduced his speed upon observing the unfolding accident scene. Thus, the “unavoidable collision” doctrine does not apply.

In reaching this conclusion, we have considered neither the affidavit of Judy Thomas, who was driving eastbound immediately behind plaintiff, nor the opinion of Lambrigger contained in her affidavit, both of which were submitted in support of plaintiff’s opposition to defendant’s motion for summary judgment. Rather, defendant’s own admission that he did not see plaintiff’s car before the accident and the fact of Lambrigger’s and Larson’s ability to observe and minimize or avoid collision with plaintiffs car in far shorter time and space are sufficient to create material questions of fact as to both defendant’s breach of duty and proximate cause. Thus, we do not reach plaintiff’s argument.that the trial court improperly struck plaintiff’s documents in support of her opposition to defendant’s motion for summary judgment.

The order of the trial court granting defendant’s motion for summary judgment is reversed, and the cause is remanded for trial on the merits.

Reversed and remanded.

INGLIS and UNVERZAGT, JJ., concur.


author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN D. HILL, Defendant-Appellant.
    Second District
    No. 2—89—0407
    Opinion filed February 13, 1991.

      G. Joseph Weller, Kathleen J. Hamill, and Manuel S. Serritos, all of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Steven D. Hill, was convicted of obstructing a peace officer, resisting arrest and aggravated assault. (Ill. Rev. Stat. 1989, ch. 38, pars. 31 — 1, 12 — 2(a)(6).) The trial court proceeded with the trial in the absence of the defendant and his attorney. Defendant was sentenced to three 364-day terms of imprisonment to run concurrently. Defendant contends he was denied his right to counsel. We agree, and we reverse.

On November 29, 1988, the defendant pleaded not guilty, and the Du Page County public defender was appointed to represent him. At that time, the trial court duly advised the defendant that if he failed to appear on the date of trial, trial would proceed in his absence.

The defendant failed to appear on the day of trial. The assistant public defender advised the court that the defendant had failed to attend an interview scheduled with the public defender’s office and that as a result he objected to the trial being held that day. The public defender stated that he would not be prepared to handle the case. The trial judge then dismissed the public defender sua sponte and proceeded with the trial ex parte.

The court and the prosecution conducted voir dire. The prosecution gave its opening statement and called two witnesses: Officers Anthony Mineo and Randall Logan. The jury was duly instructed, but during deliberation sent the court a note stating:

“Why was there no defense attorney or a chance for the jury to cross-examine the police?”

The court responded with a note stating:

“You’ve been instructed as to the law and no further instructions will be given.”

Following deliberation, the jury returned guilty verdicts on all three counts. The court entered judgment on the verdicts and sentenced the defendant. Defendant appeals. The State confesses error.

It is well settled that a defendant may be tried in absentia when charged with a misdemeanor or violation of an ordinance. (People v. Hall (1985), 134 Ill. App. 3d 836, 841.) The decision to proceed in the defendant’s absence is within the sound discretion of the trial judge. (People v. Hall, 134 Ill. App. 3d at 841; People v. Joyner (1982), 109 Ill. App. 3d 1083, 1088.) In effect, by voluntarily absenting himself from the courtroom, a defendant is deemed to have waived his right to be present throughout the trial, a right which is guaranteed to him by the confrontation clause of the sixth amendment to the United States Constitution. People v. Owens (1984), 102 Ill. 2d 145, 157.

Before a trial judge may proceed in absentia, section 113— 4(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 113 — 4(e)) requires an admonition be given to the defendant that trial could proceed in his absence. The record in the present case discloses that on November 29, 1988, during the proceeding in which the defendant pleaded not guilty, the judge admonished the defendant pursuant to section 113 — 4(e). In addition, the record discloses that the defendant had missed previous court dates. Accordingly, we hold the trial court acted within its discretion in deciding to proceed to trial in absentia.

However, the trial court’s decision to dismiss the defendant’s attorney sua sponte and proceed to trial in the absence of the defendant must clearly be reversed, and defendant must receive a new trial. In Argersinger v. Hamlin (1972), 407 U.S. 25, 37, 32 L. Ed. 2d 530, 538, 92 S. Ct. 2006, 2012, the United States Supreme Court held that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at trial. (See also People v. Morrissey (1972), 52 Ill. 2d 418, 420.) This constitutional right to counsel must be waived by the defendant. The voluntary absence of the defendant and the dismissal sua sponte of his appointed counsel in this case do not constitute a knowing and intelligent waiver. While we understand the trial court’s frustration with the defendant’s behavior in the present case, we cannot sanction such a grievous error.

A defendant’s right to counsel may be waived, but only after the defendant has been so admonished under Supreme Court Rule 401(a). (134 Ill. 2d 401(a).) The rule provides that any waiver of counsel shall take place in open court and that no waiver will be permitted unless the court admonishes the defendant personally in open court of the nature of the charge, minimum and maximum sentence prescribed by law, and that he has a right to counsel.

Our supreme court has held the right to counsel may be waived through the defendant’s conduct once he has been admonished of this right. (People v. Williams (1982), 92 Ill. 2d 109.) In that case, the defendant received admonitions by the court of his right to counsel. Defendant, who was financially able to retain counsel, yet repeatedly failed to have counsel present at his court appearances, had been instructed to retain counsel within a certain and reasonable time. Defendant appeared on that date without counsel. In addition, he did not show reasonable cause for why he had failed to retain counsel. At that time, the court informed the defendant of his trial date and admonished him that if he failed to appear in a timely manner on the date of trial, the court would proceed, whether he or his attorney was present. Only the defendant appeared on the date of trial. The trial court refused to grant another continuance and proceeded to trial. The supreme court upheld the trial court’s action, stating the defendant had waived his right to counsel at trial through his conduct. People v. Williams, 92 Ill. 2d 109.

This case is clearly distinguishable. It is well established that waiver of counsel should be carefully scrutinized. (People v. Heral (1976), 62 Ill. 2d 329, 336.) In the present case, the court dismissed the defendant’s attorney on its own motion and proceeded with the trial ex parte. We agree with the supreme court that judicial patience need not be infinite. (People v. Williams, 92 Ill. 2d at 116.) However, under the circumstances, proceeding to trial ex parte in a criminal proceeding at which the defendant may be sentenced to imprisonment without assistance of an attorney for defendant was clearly in error.

Although the defendant failed to appear at a scheduled meeting with the public defender’s office to meet with his attorney before trial, this conduct was not sufficient to constitute a waiver of his right to counsel. Unlike Williams, this was not a situation in which the defendant had repeatedly failed to meet with counsel or counsel repeatedly failed to appear in court. In addition, the defendant had not been admonished of the risk of waiver of the right to counsel if he failed to appear. In Williams, the defendant was specifically admonished that trial would proceed with or without his presence or the presence of his attorney.

Similarly, the defendant in People v. Klovstad (1988), 168 Ill. App. 3d 444, had been admonished of the risk of his failure to appear. In that case we affirmed a trial court’s decision to proceed with a probation revocation hearing in absentia and without counsel. However, Klovstad dealt with a probation revocation hearing, not a trial. The United States Supreme Court has held that only “minimal due process” is necessary in probation revocation hearings (Morrissey v. Brewer (1972), 408 U.S. 471, 485, 33 L. Ed. 2d 484, 496, 92 S. Ct. 2593, 2601-02), as opposed to the strict due process protections afforded defendants at trial in situations where they may be imprisoned (Argersinger v. Hamlin, 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006).

The circumstances surrounding our holding in Klovstad were unique. The defendant in Klovstad was an attorney himself and the record indicated that although he had retained counsel, he intended to represent himself at the probation revocation hearing. (Klovstad, 168 Ill. App. 3d at 447.) We ruled that after being admonished of the consequences of his failure to appear and absent a reasonable excuse for that failure, defendant’s failure to appear constituted waiver of counsel. Klovstad, 168 Ill. App. 3d at 450.

Under the circumstances, we conclude that, while the defendant had waived his right to be present at his trial, his conduct did not constitute a waiver of his right to counsel.

The judgment of the trial court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

UNVERZAGT and GEIGER, JJ., concur.


author: JUSTICE INGLIS

text:
    DAIRYLAND INSURANCE COMPANY, Plaintiff, v. KEVIN LINAK et al., Defendants (Illinois Farmers Insurance Company, Counterplaintiff-Appellee; American-Zurich Insurance Company, Counterdefendant-Appellant (Dairyland Insurance Company et al., Counterdefendants)).
    Second District
    No. 2—90—0581
    Opinion filed February 15, 1991.

      Christine L. Olson, James. P. DeNardo, and Randall G. Talan, all of McKenna, Storer, Rowe, White & Farrug, of Chicago, for appellant.
    George W. Brannen, of Casey & Brannen, and Theodore G. Schuster, both of St. Charles, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court;

Defendant and counterdefendant, American-Zurich Insurance Company (American-Zurich), appeals from an order of the circuit court of McHenry County granting the motion of defendant and counterplaintiff, Illinois Farmers Insurance Company (Farmers), for summary judgment. On appeal, American-Zurich contends that the trial court erred in finding that a limitation clause in an insurance policy issued by Farmers was unambiguous and effective. We affirm.

This suit arises from a one-car collision that occurred on June 10, 1987. The car involved was owned by Kenneth Curwin, but it was being driven by Kevin Linak at the time of the accident. Curwin, Kenneth Peters, Morgan Johnson, Michael Voorhees and Jason Ferguson were passengers in the car. Curwin, Peters, Johnson and Voorhees were killed in the accident, and Linak and Ferguson were injured.

Curwin, the owner, was insured by Farmers; Linak, the driver, was insured by Dairyland Insurance Company (Dairyland); and Peters, a passenger, was insured by American-Zurich. Dairyland filed a complaint in interpleader naming as defendants the accident survivors, the estates of the deceased, Farmers and American-Zurich. Apparently, the personal injury and wrongful death suits arising from the accident were consolidated with the interpleader action. The trial court granted judgment on the pleadings in favor of Dairyland in the interpleader action; Dairyland paid the policy limit, $30,000, to the court and was discharged from further liability.

Meanwhile, Farmers filed a counterclaim for declaratory judgment. In count I, Farmers sought a declaration that it was not liable for any damages; that count was later voluntarily dismissed and is not at issue in this appeal. In count II, Farmers sought a declaration that its exposure on the bodily injury claims was limited to $30,000. Farmers and American-Zurich filed cross-motions for summary judgment on count II.

As relevant to the summary judgment motions, the following facts are undisputed. The named insured on the Farmers policy is Norma Curwin, the mother of Kenneth Curwin. The policy insures the named insured, any family member and any person using the insured car; the bodily injury liability limits of the policy are'$100,000 per person and $300,000 per occurrence. The policy contains a clause, however, that states that Farmers “will provide insurance for an insured person, other than [the named insured] or a family member, up to the limits of the Financial Responsibility Law only” (hereinafter referred to as the nonfamily-member limitation clause). At the time of the accident, the minimum limits under the Illinois safety responsibility law were $15,000 per person and $30,000 per occurrence. Ill. Rev. Stat. 1985, ch. 95V2, par. 7 — 203.

In its motion, Farmers asserted that the driver, Kevin Linak, was not a family member of the named insured and that; pursuant to the nonfamily-member limitation clause, Farmers was liable for the negligence of Linak only to the extent of the Illinois safety responsibility law, or $30,000.

In its cross-motion, American-Zurich contended that the non-family-member limitation clause was ambiguous, was not clear and conspicuous, and should be given no effect. In support of these contentions, American-Zurich pointed out that the clause is contained in the “Other Insurance” section of the policy and not in the “Limits of Liability” section. The trial court concluded that the clause was not ambiguous and granted Farmers’ motion and denied American-Zurich’s motion. American-Zurich filed a timely notice of appeal.

Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (Butler v. Economy Fire & Casualty Co. (1990), 199 Ill. App. 3d 1015, 1021; Ill. Rev. Stat. 1989, ch. 110, par. 2-1005(c).) The facts in this case are not in dispute. The only issue to be resolved is the extent of coverage provided under the Farmers policy. The construction of the language of an insurance policy is a question of law properly decided on a motion for summary judgment. (Bohnen International, Inc. v. Liberty Mutual Insurance Co. (1983), 120 Ill. App. 3d 657, 662.) As a question of law, the interpretation of a contract can be determined on review independent of the trial court’s judgment. Butler, 199 Ill. App. 3d at 1021.

If an insurance policy is clear and unambiguous, the words of the policy will be given their plain and ordinary meaning. (United States Fire Insurance Co. v. Schnaekenberg (1981), 88 Ill. 2d 1, 5; Giardino v. American Family Insurance (1987), 164 Ill. App. 3d 389, 391.) A contract is ambiguous if it is fairly or reasonably susceptible to more than one interpretation. (Gardner v. Padro (1987), 164 Ill. App. 3d 449, 453.) In determining whether there is an ambiguity, the clause in question must be read in its factual context and not in isolation. Schnaekenberg, 88 Ill. 2d at 5; Putzbach v. Allstate Insurance Co. (1986), 143 Ill. App. 3d 1077, 1081.

To reiterate, the nonfamily-member limitation clause reads:

“We will provide insurance for an insured person, other than [the named insured] or a family member, up to the limits of the Financial Responsibility Law only.”

Standing on its own, the clause could not be clearer: the insurer is limiting its liability for the acts of nonfamily members to $15,000/ $30,000, although the coverage for family members may be considerably higher, here $100,000/$300,000. When read in the context of the policy, however, the meaning of the clause is ambiguous.

The clause is clearly a limitation clause, yet it does not appear in the “Limits of Liability” section of the policy. The “Limits of Liability” section states that the limits shown in the declarations ($100,000/$300,000) apply subject to certain conditions. None of the listed conditions mentions or even hints at the nonfamilymember limitation, and there is no suggestion of the nonfamilymember limitation to be found in the declarations or in the exclusions or conditions sections of the policy either. The clause appears only in the section entitled “Other Insurance,” and the other clauses in that section explicitly refer to multiple insurance situations (proration, anti-stacking, excess coverage). Keeping in mind that every provision of a contract must, if possible, be given effect because it is presumed that each was inserted deliberately and for a purpose (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 283), we conclude that the clause can be read two ways: it may mean exactly what it says, that Farmers will provide only $15,000/ $30,000 coverage for a nonfamily member, or, given the context in which the clause appears, it may mean that in a multiple insurance situation Farmers will provide only $15,000/$30,000 coverage for a nonfamily member, that is, the limitation will arise only where other insurance also applies to the loss being covered.

Given that we have determined that this clause is ambiguous, we note that the general rule in such a situation is to construe the ambiguity against the drafter of the language. (See First National Bank v. Country Mutual Insurance Co. (1988), 175 Ill. App. 3d 860, 866.) The drafter of the clause at issue in this case was Farmers. However, simply because Farmers drafted the ambiguous clause does not mean, ironically, that the summary judgment in favor of Farmers must be reversed. This case presents a multiple insurance situation. Kevin Linak, the driver, was insured through Dairyland Insurance. Dairyland has conceded that its policy applies to this loss and has turned over the policy limits to the court for distribution. Therefore, whether the nonfamily-member clause is read broadly (to limit nonfamily-member coverage under any circumstances) or narrowly (to limit that coverage only in “other insurance” situations), the limitation applies in this case. The trial. court did not err in entering summary judgment in favor of Farmers and limiting its liability for the acts of Kevin Linak to $15,000/$30,000.

For these reasons, the judgment of the circuit court of McHenry County is affirmed.

Affirmed.

WOODWARD and NICKELS, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN KRUEGER, Defendant-Appellant.
    Second District
    No. 2—89—1207
    Opinion filed February 21, 1991.
    Rehearing denied March 19, 1991.

      Donald J. Ramsell, of Ramsell & Associates, of Wheaton, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

The defendant, Kevin Krueger, appeals a trial court order denying his petition to rescind the summary suspension of his driver's license (Ill. Rev. Stat. 1989, ch. 951/2, par. 2 — 118.1). The trial court held that the suspension was valid even though the warrantless arrest of the defendant inside his home, on which the suspension was predicated, violated the defendant’s right to be free of unreasonable searches and seizures. On appeal the defendant argues that the summary suspension of his driver’s license pursuant to section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. OSVs, par. 11 — 501.1) may not be predicated on an illegal arrest. We agree and reverse.

On October 8, 1989, the defendant was arrested and charged with driving under the influence of alcohol (Ill. Rev. Stat. 1989, ch. 951/2, pars. 11 — 501(a)(1), (a)(2)). He received notice that his license would be suspended. On October 19, 1989, the defendant filed a petition to rescind the suspension, and a hearing on the petition was held on November 6, 1989. The trial court denied the petition on that day and, on November 19, 1989, denied the defendant’s motion to reconsider the judgment but granted a stay of the suspension pending appeal.

Testimony at the hearing on the defendant’s petition to rescind centered on the events of the early morning of October 8, 1989. The defendant resided with his parents and brother at 1009 Riverside Drive in Elmhurst. Mary Dachtera, who resided next door at 1005 Riverside Drive, was awakened at approximately 1 a.m. by noises coming from the area of the Kruegers’ home. She heard knocking on the window or door of the Kruegers’ house and, looking out her windows, observed three uniformed officers of the Elmhurst police department outside. She went out the back door and started talking to the policemen. One of the officers told Dachtera that the defendant had been in a car accident and that they needed to talk to him. After finding an unlocked door, Dachtera went upstairs and called the defendant’s name. She found that the defendant was sound asleep in his bed and, according to her testimony, went downstairs, opened the front door and told the officers that the defendant was upstairs and that she could not wake him up. She also told the officers “[h]e is out of it, but he is fine.”

After the officers insisted that they needed to talk to the defendant, Dachtera let them in, and the four proceeded upstairs to the defendant’s bedroom. One officer woke up the defendant, and, after the defendant sat up, the officers asked him to get dressed and go downstairs to talk with them. Dachtera went downstairs, and a few minutes later the officers brought the defendant, now dressed, down to the dining room table to talk with him. Dachtera, who had telephoned the defendant’s sister, did not hear the questions that the officers asked the defendant.

The defendant’s mother, Patricia Krueger, testified that she and her husband had just returned from Florida on the afternoon before their son was arrested and that before going on vacation they had told Mary Dachtera to watch the house. They did not give Dachtera a key to the house or permission to enter the house or to allow others to enter. Mrs. Krueger testified that, slightly before 1 a.m. on October 8, she and her husband talked with their son, who had just come home. They asked him where his car was; he replied not to worry, that a friend had driven him home; they went out to find his car. The defendant’s father, George Krueger, testified that Mary Dachtera had not been given consent to allow any individuals to enter the Kruegers’ home and that the Kruegers had not consented to the entry of the police into their home on October 8,1989.

The defendant testified that he arrived home about a quarter to one on the morning of October 8, having been driven home in his car by a friend whose identity he could not recall. He acknowledged that, before coming home, he had had “a lot to drink,” specifically three or four Bacardi and rum mixed drinks. He testified that he talked to his parents, consumed “a couple of [alcoholic] drinks,” and went to bed. He did not hear the officers knocking or Mary Dachtera calling. He did not give the police consent to enter his home, was asleep when the officers entered his bedroom, and was never asked by the officers if he minded their being there. The defendant testified that one officer asked him to talk about the accident, that he agreed to do so, and that he told the officer that he had lost his head and panicked. Under a continuing objection by his attorney, the defendant testified further that he told the officer that he had had too much to drink, was drunk, and was sorry. He testified that after this questioning the officers ordered him to dress and come downstairs, that downstairs the officers questioned him some more about the accident, and that they then had him perform some field sobriety tests. The defendant admitted that he fell several times while performing the balance test and the walk- and-turn test and that he did badly on the heel-to-toe test.

Officer Richard A. Lewis of the Elmhurst police department testified that at 12:46 a.m. on October 8, 1989, he received a report of an unknown vehicle striking some mail boxes on the frontage road of Route 83. When he arrived at the accident scene, he observed that the vehicle had left the roadway, struck and flattened a pole that held four mailboxes, and left behind a passenger side T top and other vehicle parts. With the help of other officers, he located the vehicle two blocks away in the parking lot of the Ramada Inn. He ran a check on the license plate and went to the defendant’s address. He went to the front porch, knocked on the door and got no answer. A call to the residence by the dispatch system also received no reply. Officer Lewis and two other officers knocked on the back door, and, after Mary Dachtera asked what the problem was, he told her that there had been an accident involving the defendant’s car and that he wanted to talk to the defendant about it.

Officer Lewis testified that Mary Dachtera went into the Kruegers’ house for a couple of minutes and came back down. According to Lewis, Dachtera told the officers that the defendant was in his bedroom, that he had vomit on him, that he was unresponsive to her yelling and shaking him, and that he did not wake up. Dachtera opened the door and let the officers inside. Officer Lewis testified that he entered solely to check on the defendant’s well-being and was afraid that the defendant may have suffered internal injuries or choked on his own vomit. After seeing the defendant asleep in the bedroom, Officer Lewis checked for the defendant’s pulse and breathing and shook the defendant awake. Officer Lewis noted that the defendant’s breath smelled strongly of alcohol and that the defendant’s eyes were very glassy. He asked the defendant if the latter minded his being there, and the defendant said that he did not care. On the request of the police, the defendant got dressed and went downstairs. Officer Lewis arrested the defendant in the house between 1 and 1:30 a.m. and administered a breath test on the defendant at 2:35 a.m.

Officer Lewis acknowledged that he had received no consent to enter the Kruegers’ home. He was aware before entering that Mary Dachtera was a neighbor, not the owner of the house.

Officer Lewis acknowledged that the breathalyzer test he gave the defendant reflected the effect of any alcohol the defendant may have consumed after 12:46 a.m. He acknowledged that the machine could not differentiate between predriving and post-driving alcohol consumption and that if the defendant had had any alcoholic beverages after driving, the machine would not accurately reflect his blood-alcohol content at the time of driving.

The trial judge held initially that the inclusion of the effect of post-driving alcohol consumption in the results of the breathalyzer test did not violate due process. The trial judge then held that the warrantless entry into the defendant’s home was illegal. The trial judge found specifically that the police entered without consent, that Mary Dachtera had told the officers that the defendant was asleep but was fine and not, as Officer Lewis had testified, that she had told him that the defendant was unconscious and unresponsive, and that the officers entered not merely to check on the defendant’s health but also to investigate the defendant’s possible driving under the influence. The trial judge concluded that there were no exigent circumstances to validate the warrantless entry into the defendant’s home.

The trial judge also found that the defendant was arrested in his living room after the field sobriety tests, that the defendant had cooperated with the officers’ request that he take those tests, and that the officers at the time of arresting the defendant had probable cause to believe that the defendant had been driving while under the influence of alcohol. The trial judge also concluded that without evidence of the defendant’s blood-alcohol test reading, he could not state by a preponderance of the evidence that the extra two drinks that the defendant consumed at home caused the reading to meet or exceed .10 of 1%. The court denied the petition for rescission.

In denying the petition and the subsequent motion to reconsider, the trial judge reasoned that to grant rescission because the arrest of the defendant was illegal would amount to the improper application of the exclusionary rule to a civil proceeding. He explained further that the police did not have probable cause to arrest the defendant until after the warrantless entry into his home, when they were able to view the defendant with vomit on him and to infer that the defendant had driven the vomit-soaked automobile. The trial judge granted a stay of the suspension pending the resolution of this appeal.

On appeal the defendant argues that the summary suspension of his driver’s license must be rescinded because he was not lawfully arrested as required by statute. The State replies that the statute requires the trial court find only that the defendant was arrested, that the arresting officer had reasonable grounds to believe that the defendant was driving under the influence of alcohol, and that the defendant either refused a breathalyzer test or took a valid breathalyzer test that produced a result of .10 or more. The State argues that to require that the underlying arrest be valid would amount to the improper imposition of the exclusionary rule in a civil proceeding. The State also argues that, even if the legality of the defendant’s arrest is in issue, the trial judge’s findings of fact require us to conclude that the arrest was valid. The defendant replies that Illinois’ courts have reversed suspensions where the initial arrests were unlawful, that the majority of other jurisdictions that have considered the issue have required a lawful arrest for a summary license suspension, and that the statute itself indicates the legislature’s intent to guard the motorist’s fourth amendment rights.

The defendant also argues that the trial judge erred in not considering the defendant’s post-driving, prearrest consumption of alcohol in evaluating the reliability of the breathalyzer test. Because we hold that the illegal arrest of the defendant requires reversal of the denial of the petition for rescission, we do not reach this issue.

Section 2 — 118.1(b) of the Illinois Vehicle Code provides, insofar as is relevant here:

“The scope of the hearing shall be limited to the issues of:
1. Whether the person was placed under arrest for an offense as defined in Section 11 — 501, or a similar provision of a local ordinance, as evidenced by the issuance of a Uniform Traffic Ticket; and
2. Whether the arresting officer had reasonable grounds to believe that such person was driving or in actual physical control of a motor vehicle upon a highway while under the influence of alcohol, other drug, or combination thereof; and * * *
4. Whether the person, after being advised by the arresting officer that the privilege to operate a motor vehicle would be suspended if the person submits to a chemical test, or tests, and such test discloses an alcohol concentration of 0.10 or more ***.” Ill. Rev. Stat. 1989, ch. 95i/2, par. 2-118.1(b).

We hold that the arrest required by the first paragraph must be a lawful and valid arrest. We believe that this construction is consistent with our duty to ascertain and give effect to the intent of the legislature and to avoid, if possible, a construction which would raise doubts regarding the constitutionality and validity of the statute. Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 362-63.

The statute does not explicitly require that the initial arrest be lawful. Prior to 1986, the arresting officer was required to state, within his sworn report to the Secretary of State and the circuit court, that tests performed on the motorist had been made pursuant to and following the lawful arrest of the motorist for an offense as defined in section 11 — 501 of the Illinois Vehicle Code or a similar provision of a local ordinance. (Ill. Rev. Stat. 1983, ch. 951/2, par. 11— 501.1(c).) The defendant correctly notes that some cases decided under the statute as it was in effect prior to 1986 stated, at least in dictum, that a lawful arrest is a prerequisite to a valid summary suspension. (People v. Hutchinson (1986), 141 Ill. App. 3d 1086, 1088; People v. Voigt (1985), 131 Ill. App. 3d 510, 512.) Although the statute no longer requires the arresting officer to swear that the initial arrest was lawful, we cannot conclude that this amendment reflects a legislative intent to empower the Secretary of State to suspend a motorist’s license where the motorist has not been lawfully arrested for driving under the influence. We find compelling reasons to avoid ascribing such an intention to the legislature.

First, as noted above, it is our duty to avoid a construction that would open the constitutionality of the implied-consent law to serious question. Although the State characterizes the issue in this case as whether to apply the exclusionary rule to a civil summary suspension proceeding, we believe that the real question before us is whether the statute affirmatively authorizes the Secretary of State to suspend a motorist’s license on the basis of a search which itself is the product of an unauthorized arrest. The Secretary’s power to impose a summary license suspension is derived from the statute, and we decline to read the statute as, in effect, authorizing unconstitutional arrests or searches and the imposition of new deprivations based on those unconstitutional arrests or searches.

A statute or rule that authorizes unconstitutional searches or seizures will be held unconstitutional. (Holland v. Parker (D. S.D. 1973), 354 F. Supp. 196, 199; Hansen v. Illinois Racing Board, (1989), 179 Ill. App. 3d 353.) In Holland v. Parker, the Federal district court struck down a South Dakota implied-consent statute that did not limit the suspension power to cases where there had been a lawful arrest, explaining that to authorize blood tests not incident to a valid arrest would negate the motorist’s right to be free of unreasonable searches and seizures. (See also Schutt v. MacDuff (1954), 205 Misc. 43, ___, 127 N.Y.S.2d 116, 126-28 (implied-consent law held unconstitutional because it authorized chemical tests without prior lawful arrest).) Although courts have recognized that a lawful arrest is not always a necessary prerequisite to a constitutionally valid blood or breath test (see, e.g., State v. Anderson (Me. 1982), 447 A.2d 827), the validity of the test is still crucial to any license suspension under an implied-consent law, and a suspension may not be predicated on the fruits of unconstitutional police activity (Holland, 354 F. Supp. at 198-99). We therefore decline the State’s invitation to read the statute as authorizing such constitutionally dubious behavior.

Second, and relatedly, the Secretary of State receives his power to suspend the motorist’s license from the latter’s “implied consent” to the blood and breath tests as a condition of driving on the public highways of the State (Ill. Rev. Stat. 1989, ch. 951/2, par. 11— 501.1). To hold that motorists waive their right to be free of unconstitutional arrests and searches as a condition of operating motor vehicles would do violence to the principle of implied consent. In Serpas v. Schmidt (7th Cir. 1986), 808 F.2d 601, the court invalidated administrative rules of the Illinois Racing Board that conditioned the receipt of certain occupational licenses issued by the Board on the licensees’ implied consent to a variety of warrantless administrative searches. The court explained that the Board could not validly condition a license on the applicant’s waiver of his constitutional right to be free of unreasonable searches and seizures. (808 F.2d at 606-07.) The court in a subsequent action reiterated that the validity of any such implied consent was vitiated by the fact that it was premised on regulations that were unconstitutional and unauthorized because they allowed for unconstitutional and otherwise illegal searches. Serpas v. Schmidt (7th Cir. 1987), 827 F.2d 23, 29-30.

Third, even barring constitutional problems, we are unwilling to conclude that the legislature intended to authorize the suspension of drivers’ licenses based on the fruits of illegal arrests. The requirements of an arrest and reasonable cause are for the purpose of protecting the motorist against unlawful searches and seizures. (People v. Carlson (Colo. 1984), 677 P.2d 310, 317-18.) This purpose would be undercut if not frustrated by allowing the State to benefit from illegal or unauthorized arrests made by its agents. Furthermore, despite the State’s dire warnings that such a legality requirement would necessitate a time-consuming hearing on ancillary issues and thus frustrate the legislative goal of an efficient, expedited proceeding, we note that in the vast majority of suspension cases the requirement of reasonable grounds (Ill. Rev. Stat. 1989, ch. 951/2, par. 2 — 118.1(b)(2)) operates as an exclusionary rule. As most DUI arrests are of motorists who have been driving or in control of vehicles on the highway, the necessary finding of reasonable cause will generally be tantamount to a finding that the arrest was legal, and a finding of no probable cause will necessitate rescission of the suspension even where the motorist has failed or refused to take a blood-alcohol test.

We believe the trial court erred in concluding that the legality of the defendant’s arrest was not material to the suspension hearing because the exclusionary rule may not be applied to this civil proceeding. Although we agree that this proceeding is civil rather than criminal or quasi-criminal (People v. Moore (1990), 138 Ill. 2d 162, 168; see United States v. Ward (1980), 448 U.S. 242, 65 L. Ed. 2d 742, 100 S. Ct. 2636), we reiterate that the issue here is not whether the court is to apply a judicially created rule pursuant to its inherent authority but whether the statute should be construed to condition the Secretary of State’s power to suspend a driver’s license on the presence of a valid arrest. Furthermore, the assumption that the exclusionary rule is necessarily inapplicable to State-initiated civil proceedings is not only incorrect (1 W. LaFave, Search & Seizure §1.7, at 144-73 (2d ed. 1987)) but has been rejected by Illinois courts in the very context here. In People v. Collins (1987), 154 Ill. App. 3d 149, and People v. Decker (1989), 181 Ill. App. 3d 427, the court reversed denials of petitions for rescission because in each case the necessary finding of probable cause was the fruit of an unlawful arrest. The court, applying the exclusionary doctrine, therefore, found in each case that the statutory requirement of reasonable grounds was not satisfied by the legally admissible evidence. Although we agree with these cases insofar as they hold that a summary license suspension may not be predicated on an illegal arrest (or the fruits thereof), we prefer to rest our holding here on the construction of the statute that we have put forth rather than on the application of the exclusionary rule as such.

Finally, we note that our holding that the arrest required by the implied-consent statue must be a lawful arrest is in accord with the decisions of the great majority of the courts that have construed implied-consent statutes that do not explicitly require a lawful arrest. Bath v. Heckers (Colo. App. 1974), 522 P.2d 108; State v. Brunner (1973), 211 Kan. 596, 507 P.2d 233; see Gallagher v. Michigan Secretary of State (1975), 59 Mich. App. 269, 229 N.W.2d 410; Colling v. Hjelle (N.D. 1963), 125 N.W.2d 453; State v. Mulcahy (1985), 202 N.J. Super. 398, 495 A.2d 166, aff’d in part, rev’d in part on other grounds (1987), 107 N.J. 467, 527 A.2d 368; White v. Oklahoma Department of Public Safety (Okla. 1980), 606 P.2d 1131; State v. Wetherell (1973), 82 Wash. 2d 865, 514 P.2d 1069, see also In re Gardner (1979), 39 N.C. App. 567, 251 S.E.2d 723 (suspension may be based on illegal but constitutionally valid arrest). Contra Commonwealth of Pennsylvania, Department of Transportation v. Wysocki (Pa. 1987), 535 A.2d 77.

The State next argues that, even if the legality of the defendant’s arrest is, as we hold, subject to review, the arrest was lawful because the officers’ warrantless entry into his home was validated by (1) their reasonable belief that the defendant, having been involved in a serious automobile accident, was in need of their immediate assistance and (2) their need to preserve evidence of the defendant’s offense of driving under the influence of alcohol. We hold that the trial court properly rejected both of these asserted justifications and correctly held that the entry and arrest were unconstitutional.

We note preliminarily that the “ ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ ” (Welsh v. Wisconsin (1984), 466 U.S. 740, 748, 80 L. Ed. 2d 732, 742, 104 S. Ct. 2091, 2097, quoting United States v. United States District Court (1972), 407 U.S. 297, 313, 32 L. Ed. 2d 752, 764, 92 S. Ct. 2125, 2134.) The police therefore bear a heavy burden to demonstrate that a warrantless in-home arrest, which is presumptively unreasonable, is justified by the exigencies of a particular case. (Welsh, 466 U.S. at 749-50, 80 L. Ed. 2d at 743, 104 S. Ct. at 2097.) We do not believe that the State has met this burden here.

The State is, of course, correct that the police may make a warrantless entry into a residence when they reasonably believe that a person within is in need of immediate aid. (Mincey v. Arizona (1978), 437 U.S. 385, 392, 57 L. Ed. 2d 290, 300, 98 S. Ct. 2408, 2413.) The requirements of this “emergency exception” are:

(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.
(2) The search must not be primarily motivated by intent to arrest and seize evidence.
(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. People v. Bondi (1984), 130 Ill. App. 3d 536, 539.

Additionally, although the police may seize incriminating evidence that is in plain view during the course of their legitimate emergency activities, the warrantless search must be strictly circumscribed by the exigencies which justify its initiation. Mincey, 437 U.S. at 393, 57 L. Ed. 2d at 300, 98 S. Ct. at 2413; People v. Abney (1980), 81 Ill. 2d 159, 173.

The State argues that the trial judge applied an improper legal standard in this case, as he required that the State show that the warrantless entry was motivated solely by the policemen’s concern for the defendant’s well-being, rather than requiring only that the entry not be primarily motivated by an intention to investigate or collect evidence relative to the possible offense of DUI. Although we agree with the State that the trial judge did not apply the correct legal standard, we also conclude that under the facts of this case, as found by the trial court, any such error was harmless. It is clear that the State did not meet its “heavy burden” to show that this case fell within the “emergency exception.”

First, the trial judge found that at the time the police entered the house they knew only that the defendant had returned home from the accident, was upstairs sleeping, and, according to a neighbor who would have no motivation to endanger his health, was “out of it” but “fine.” The police therefore had no reasonable grounds to believe that the defendant required their immediate assistance to safeguard his physical well-being. See Lambert v. State (Okla. Crim. App. 1987), 745 P.2d 1185 (police lacked reasonable grounds for emergency warrantless entry into home when motorist involved in accident called out from within residence that he was all right).

Second, the State did not meet its burden to show that the entry was not motivated primarily by the intent to investigate or seize evidence in connection with the possible DUI offense. Indeed, the conduct of the police could scarcely have been more consistent with such a purpose and less consistent with an intention to tend to the defendant’s possible injuries. Beyond checking the defendant’s pulse and breathing, the police did nothing of record to investigate the defendant’s possible injuries and a great deal to collect evidence for a possible DUI prosecution. Despite Officer Lewis’ testimony that he was concerned that the defendant may have suffered internal injuries from the accident, he ordered the defendant to perform several field sobriety tests during which the defendant fell down a number of times. There is nothing of record to indicate that the police sought to provide medical assistance for the defendant’s possible injuries.

Third, this is not a case where the officers’ post-entry conduct was limited to achieving the objective justifying the entry. The police plainly did more than was “reasonably necessary to ascertain whether [the defendant was] in need of assistance and to provide that assistance.” (2 W. LaFave Search & Seizure §6.6(a), at 706 (2d ed. 1987).) As Professor LaFave has commented, “[a]ny conduct within by the officer which is in any way inconsistent with the purported reason for entry is a just cause for healthy skepticism by the courts.” (2 W. LaFave Search & Seizure §6.6(a), at 706 (2d ed. 1987).) Although, as we have noted, the police may seize incriminating evidence in plain view during a legitimate emergency entrance, we know of no case sanctioning police investigation as extensive as that involved here, even pursuant to a valid emergency. We therefore reject the State’s argument that the warrantless entry and arrest were validated by the emergency exception.

We also reject the argument of the State that the officers’ warrantless entry into the defendant’s home was validated by their need to seize and preserve evidence of the defendant’s blood-alcohol level. It is settled that warrantless entries into or arrests within a home are prohibited absent probable cause and exigent circumstances. (Welsh v. Wisconsin (1984), 466 U.S. 740, 749, 80 L. Ed. 2d 732, 743, 104 S. Ct. 2091, 2097; Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.) The trial judge specifically found that the police did not obtain the requisite probable cause until after they made the warrantless entry into the home. The State has never contested this finding. Even assuming arguendo that the suspected offense in this case is serious enough to create an exigency (see Welsh, 466 U.S. at 750-54, 80 L. Ed. 2d at 743-46, 100 S. Ct. at 2097-2100), the possible destruction of evidence, therefore, does not validate the entry or subsequent arrest in this case.

We hold that, because the arrest on which the summary suspension of the defendant’s driver’s license was based was not a lawful and valid arrest, the denial of the defendant’s petition for rescission of the suspension must be reversed.

Accordingly, the judgment of the circuit court of Du Page County is reversed, and the cause is remanded for further proceedings consistent with this decision.

Reversed and remanded.

REINHARD, P.J., and UNVERZAGT, J., concur.