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    VERA LONG, Plaintiff-Appellee, v. ILLINOIS POWER COMPANY et al., Defendants and Counterplaintiffs and Counterdefendants-Appellants (Ron L. Keith, d/b/a Keith Ambulance Service, et al., Defendants and Counter-defendants and Counterplaintiffs-Appellees).
    Fourth District
    No. 4—88—0880
    Opinion filed August 17, 1989.

      Jerome P. Lyke and Arnold F. Blockman, both of Hatch, Blockman, McPheters, Fehrenbacher & Lyke, of Champaign, for appellants.
    Emerson L. Moore, of Lemna, Moore & Carroll, of Tuscola, for appellee Vera Long.
    James D. Cottrell, of Phebus, Tummelson, Bryan & Knox, of Urbana, for appellees Ron Keith, Joseph Patton, and City of Villa Grove.
   JUSTICE SPITZ

delivered the opinion of the court:

Plaintiff Vera Long was injured as a result of a collision between an ambulance in which she was a passenger and a utility truck operated by defendant Robert 0. Gallier, an agent and employee of defendant Illinois Power Company (Illinois Power). Also named in plaintiff’s lawsuit as defendants were the driver of the ambulance, Joseph C. Patton, the agent and employee of Ron L. Keith, d/b/a Keith Ambulance Service. Keith was present in the ambulance and supervising Patton at the time of the incident. Defendant City of Village Grove (City) is the owner of the ambulance which was leased to Keith.

Illinois Power and the City counterclaimed against each other for property damage to the vehicles. In addition, Illinois Power and Gallier counterclaimed against the remaining defendants for contribution on the plaintiff’s personal injury claim. Similarly, Keith, Patton, and the City counterclaimed against Illinois Power and Gallier for contribution on plaintiff’s personal injury claim. Gallier also sued Keith, Patton, and the City for Gallier’s personal injuries.

After a jury trial conducted in the circuit court of Douglas County, a verdict was returned in favor of plaintiff and against all defendants in the amount of $20,000. The jury apportioned the responsibility to pay the damages as 90% to Illinois Power and Gallier and 10% to the remaining defendants. With regard to property damage, the jury found Illinois Power’s damages to be $5,560, but after attributing 90% of the negligence to Illinois Power, awarded only $556. The City’s property damage was found to be $22,687.47, and after attributing 10% of the negligence to the City, the jury awarded the City $20,418.72. On the verdict form, concerning the injuries of Gallier, the jury found the total amount of damages suffered by Gallier, without considering reduction of damages due to negligence, to be $0. In attributing negligence, the jury attributed to Gallier 100% of the negligence, ultimately awarding Gallier $0. Judgment was entered on the verdicts on June 30, 1988.

On appeal, Illinois Power and Gallier contend they were entitled to directed verdicts at the close of plaintiff’s evidence. They also argue that the apportioning of responsibility to pay plaintiff’s judgment on a 90% to 10% basis, as well as the 90% to 10% attribution of comparative negligence on the property damage, were all against the manifest weight of the evidence.

In her case in chief, plaintiff called three occurrence witnesses to testify. Since no issue is raised concerning the medical evidence of plaintiff’s injuries, discussion thereof is omitted. The three occurrence witnesses called by plaintiff were plaintiff, Keith, and Patton. Plaintiff and Keith were passengers in the ambulance. The ambulance had picked up plaintiff and her husband on the morning of November 23, 1984, the Friday following Thanksgiving. Plaintiff testified she had no warning of the impending collision. Keith stated he felt a deceleration of the vehicle prior to the collision, and he also stated he had no warning of the collision.

Patton’s testimony was that on November 2, 1984, a Keith Ambulance Service ambulance was called to the residence of Rex and Vera Long in Camargo, Illinois. The purpose of the call was to assist Mr. Long, who was having trouble breathing. Patton was driving the ambulance when it left the Longs’ home. The flashing lights on the ambulance were on when the ambulance arrived at the Long residence, and remained on until the collision which ended the ambulance’s journey to Mercy Hospital. The automatic siren on the ambulance was turned on and left on when the ambulance arrived in Urbana. The ambulance traveled to Vine Street in Urbana, to University Avenue, and then proceeded westbound on University Avenue.

Patton looked at the ambulance speedometer after he turned onto University Avenue, and noted that his speed was a little less than 35 miles per hour. Carle Hospital is located about three blocks from the intersection of University Avenue and Lincoln Avenue. At its intersection with Lincoln Avenue, University Avenue has two lanes of through traffic in each direction, and turning lanes for left-hand turns onto Lincoln Avenue. Lincoln Avenue at this same intersection also has two lanes for through traffic in each direction, and turning lanes for left-hand turns onto University Avenue.

As the ambulance approached the intersection of University Avenue and Lincoln Avenue, the ambulance was traveling in the left westbound lane for through traffic. As he approached Lincoln Avenue, Patton noticed that the traffic signal facing him was red. The traffic signal continued in a steady red mode as he proceeded into the intersection. As he approached the intersection, Patton looked to the right and noticed a Carle Clinic van stopped and ready to make a left-hand turn. As he approached the intersection he looked to the left and noticed two vehicles, one in the curb lane making a right-hand turn to go east on University, and the other, an Illinois Power truck, proceeding in the next lane over. When Patton first observed the Illinois Power truck, it was about 150 feet from the intersection with University Avenue. When he next observed the Illinois Power truck it was about 30 feet from the intersection and still moving. After noticing the Illinois Power truck the second time, he looked to the right and then collided with the truck. Patton does not recall touching the brake pedal before the impact with the Illinois Power vehicle. When later called as an adverse witness by Illinois Power, Patton estimated the speed of the ambulance was about 25 miles per hour immediately before the collision.

The ambulance came into contact with the Illinois Power vehicle around the back of the door on the passenger’s side and in the utility bed. After the .collision, the ambulance turned onto its left side, and the truck was propped up against the front of the ambulance, not turned over, but elevated some off the road. The ambulance and the Illinois Power vehicle slid into the Carle Clinic van which was waiting to make a left turn.

At the close of the plaintiff’s evidence, Illinois Power and Gallier moved for directed verdicts. The motions were denied.

Gallier was the driver of the Illinois Power vehicle involved in the collision. He was a gas service man for Illinois Power and his vehicle was proceeding north on Lincoln Avenue. Gallier had received a call at approximately 11:30 a.m. Gallier had the windows rolled up in his vehicle. The heater was on low setting, with the fan running. The two-way radio for emergency calls was on in accordance with the instructions of the power company. There was no other type of radio in the vehicle. As he was proceeding north on Lincoln Avenue, Gallier was traveling approximately 20 to 25 miles per hour. He was traveling in the left of the two northbound lanes of through traffic.

Between a block and a half block before the intersection of Lincoln Avenue and University Avenue, Gallier looked at the light at the intersection and noticed it was green. He looked to the right as he approached the intersection and did not see the ambulance. There was a vehicle traveling to the right of the Illinois Power vehicle and there were quite a few cars parked in the parking lot of a repair garage at the southeast corner of the intersection. As Gallier entered into the intersection, the traffic control signal for him was green. Looking east on University Avenue, there is a dip in the road between Carle Hospital and Lincoln Avenue.

When he first saw the ambulance, he was in the middle of the intersection, going into the westbound lanes of traffic of University Avenue. At that time, the ambulance was maybe 30 feet away. He heard the ambulance siren before he saw the ambulance, and when he heard the siren he first looked to the left, not realizing from which direction the sound of the siren was coming. When Gallier looked to the right and saw the ambulance, the first thing he did was shove the accelerator to the floor, hoping he might be able to avoid the ambulance by passing in front of it.

The ambulance siren had a high shrill pitch, which, in the opinion of Gallier, did not seem to penetrate as well as the siren which he had heard on ambulances of another ambulance company which alternates “loud and low, loud and low.” Gallier testified he never had trouble hearing this other type of siren through the sound of the two-way radio.

Patton testified that there were three different modes in which the siren could have been set. In response to the question “Isn’t there some type of mode where you can attract more attention to yourself?” Patton answered, “I suppose there is, or it would.” He further testified he sometimes puts the siren in the mode which attracts more attention when he goes into an intersection with traffic, and he particularly does so when he goes into heavily traveled intersections. Although the intersection of University and Lincoln is a busy intersection, Patton did not recall having changed the siren mode as he approached the intersection.

Patton testified he could have stopped the ambulance when he saw the Illinois Power vehicle the first time, and he probably could have stopped when he saw the vehicle the second time. He would have upset some people in the ambulance, but he could have stopped the second time. Patton assumed that the Illinois Power vehicle would stop.

As a result of the collision, a gas explosive meter, a fire extinguisher, and a first aid kit broke loose from their mountings in the Illinois Power vehicle and flew inside the cab. One of these items struck Gallier in the right hand as he gripped the steering wheel, injuring a knuckle on one of the fingers. After the collision, Gallier was taken to the emergency room at Mercy Hospital. At the emergency room, a gash on the top of Gallier’s head was stitched. Hospital personnel also treated a cut on his lower leg and X-rayed his hand. At the emergency room, Gallier noticed that his right hand was swollen, that two of his fingers were partially numb and very cold, and that there was a knot on his knuckle. The knot was still there at the time of the trial. He was released from the hospital the afternoon of the accident, and upon arriving at home, he noticed a solid mass of bruises from his waist to his shoulders. He was so sore he could hardly move.

After being home for about four or five days he went to Dr. Charles R. Shepardson. Gallier noticed his leg was so swollen he could not pull his pants over it, and it also was bleeding quite a bit. His hand was swollen, his fingers were numb and cold, and Gallier could not make a fist or close his hand. Gallier had never had a problem with this hand prior to the accident. Gallier was later attended to by Dr. Ralph E. Samuelson and Dr. Milton R. Carlson, and he took physical therapy for his hand three days a week for four to five weeks at Christie Clinic. He was medically restricted for work from the day of the accident through March 21, 1985. He also missed work on April 17, May 7, May 8 through 18, and May 21 and 22, and July 3, 1985. The total hours missed was 733. Gallier’s hourly rate was $13.71. All of the hours missed were considered by Gene Peters, Gallier’s supervisor, to be from an on-the-job injury. Gallier was not paid for those 733 hours.

The problems with his head, his leg, and his chest subsequently cleared up, but at the time of the trial, Gallier was still experiencing problems with his right hand, including a knot on the knuckle. Gallier was experiencing pain in his hand practically all the time.

Shepardson testified he saw Gallier on November 30, 1984, and noted a “long severe abrasion on his right shin which was very tender and swollen.” In his opinion the abrasion resulted from the accident on November 23, 1984. As of December 28, 1984, the leg had improved, but Shepardson noted that the hand was quite swollen and painful. On March 28, 1985, Shepardson noted that Gallier’s hand was definitely worse. He had had a lot of pain in his hand for the preceding three months and had been cared for by Carlson, who had taken X rays and prescribed physical therapy. Shepardson particularly noted during this visit that Gallier had swelling of the major knuckle of the middle finger. Furthermore, his shin had become more painful and was giving him trouble. Shepardson testified that, in his opinion, to a reasonable degree of medical certainty, the condition which he observed on March 28, 1985, was consistent with sympathetic reflex dystrophy. With sympathetic reflex dystrophy, pain affects the sympathetic discharge, possibly by spasm of blood vessels, so that an extremity is painful, somewhat swollen, and shiny, generally lacking in normal sweating. The condition also often involves muscle atrophy. Sympathetic reflex dystrophy was considered because of pain and swelling persisting so long after the accident.

Samuelson testified he first saw Gallier on January 4, 1985. On that occasion he observed pain, swelling, weakness, and limitation of motion in his right hand. On May 7, 1985, Gallier complained to Samuelson of a problem with his right leg. The last time Samuelson saw Gallier was on July 3, 1985. At this last visit, Samuelson diagnosed “status post reflex sympathetic dystrophy, right hand with mild residual grip weakness improved. Minimal bilateral lower extremity varicosities, left greater than right. Venous statis dermatitis minimal, right leg resolved. Cutaneous excoriations right anterior tibial surface, probably due to scratching during sleep, resolved.” Samuelson opined that the trauma on November 23, 1984, was sufficient to cause the diagnosed conditions, that the right leg problem was caused or might have been caused by the trauma and that the contusion caused swelling, which caused stasis in the circulation.

Carlson testified regarding his treatment of Gallier. Carlson first saw Gallier on January 14, 1985. Gallier was referred to Carlson for evaluation for complaints of right hand disability, weakness, and swelling. Upon examination of Gallier on this occasion, Carlson diagnosed Gallier as suffering from reflex sympathetic dystrophy and disuse atrophy. Carlson recommended Gallier receive physical therapy at Christie Clinic. Later, Carlson saw Gallier on March 21, 1985, and at that time released him to return to work. The last time Carlson saw Gallier was on July 17, 1987, and at that time Carlson diagnosed Gallier as suffering from a continuing reflex sympathetic dystrophy of a mild nature. Carlson testified that in his opinion, to a reasonable degree of medical certainty, Gallier’s medical problem might or could have resulted from the accident of November 1984.

As a result of the collision, Gallier incurred medical bills, not including bills for prescriptions, in the amount of $1,343.09. Of this amount, $236.25 was for emergency room service right after the accident, and $123 was for the ambulance which took Gallier from the accident scene to the emergency room. The bills were admitted into evidence without objection.

Arlo Blaine Austin testified that, on the morning of the collision, he was driving an automobile westbound on University in the right lane near the intersection with Lincoln. He pulled to the right and stopped because of the ambulance coming from behind him. There were no cars in front of him and he witnessed the collision. He observed the traffic light for the ambulance was red and the speed of the ambulance was 25 to 35 miles per hour. He did not observe either vehicle slow down prior to impact, although he did not observe the Illinois Power vehicle sufficiently before impact to estimate its speed. Impact occurred in the middle of the intersection with the ambulance hitting the power truck just behind the cab.

Joanne Marie Gunther was making a phone call at a phone booth on Lincoln and during the conversation observed both vehicles approach the intersection. The light for the power truck was green and the truck was traveling between 25 and 30 miles per hour. The light for the ambulance was red, and the ambulance was traveling between 35 and 40. She did not see flashing lights. She did not see the ambulance slow down. She could not positively state which lanes the vehicles were in and she did not hear the siren until the ambulance got to the intersection. While she stated the power truck was first in the intersection, this witness nevertheless stated the power truck struck the ambulance. She testified the truck tried to avoid the collision by swerving to the left. She observed the ambulance two seconds before the collision.

Dennis Schmidt was the operator of the Carle Clinic vehicle at the intersection at the time of the collision. Schmidt described the intersection as having a parking lot for an auto parts store on the southeast corner, a donut shop on the southwest corner, and no buildings on either of the northern comers. Schmidt was in the turning lane, preparing to turn to proceed eastbound on University. He had a green light. He was facing south. Having heard the siren, his attention was drawn to the approaching ambulance, which was 200 to 300 feet from the intersection at that time. He also observed flashing lights. The siren and lights were on continuously. He also observed the power track northbound on Lincoln. Because it was coming straight at him it was hard to judge the speed, but he thought it was probably going 20 to 25 miles per hour. Schmidt noticed other vehicles approaching the intersection from the west pulling over to the curb.

The collision occurred in the northeast quadrant of the intersection, right in front of the westbound lanes of University. He does not recall either vehicle slowing down. The truck did not take any evasive action or change its pattern. He first saw the power truck when it was about 200 feet from the intersection.

Schmidt had an opportunity to observe the driver operating the truck as the truck approached the intersection and he did not see the driver look to the right or left as he approached the intersection. The driver of the truck was looking straight ahead. At impact, Schmidt was looking at the power truck. This is normally a fairly busy intersection, but Schmidt did not recall it being particularly busy at the time of the occurrence.

The trial court may direct a verdict when all the evidence, viewed most favorably to the nonmoving party, so overwhelmingly favors the party moving for a directed verdict that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504; Loitz v. Remington Arms Co. (1988), 177 Ill. App. 3d 1034, 532 N.E.2d 1091.) In a negligence case, the plaintiff has the burden of proving the defendant’s negligence by a preponderance of the evidence. Merely because an accident occurred does not raise a presumption defendant was negligent. Negligence is shown when defendant is proved to have failed to exercise that standard of care which a reasonably prudent person would have exercised under the circumstances exhibited by the evidence in the case. (Lukasik v. Hajdas (1968), 104 Ill. App. 2d 1, 244 N.E.2d 404.) There can be no recovery unless plaintiff proves, as a fact, that defendant breached a duty owed to plaintiff and that the breach of the duty was the proximate cause of plaintiff’s injuries. (Whitman v. Lopatkiewicz (1987), 152 Ill. App. 3d 332, 504 N.E.2d 243.) Under ordinary circumstances, violation of traffic control laws constitutes prima facie evidence of negligence in civil actions arising from a collision involving the violation of such laws. However, the operation of emergency vehicles is an exception to the rule. Mayfield v. City of Springfield (1982), 103 Ill. App. 3d 1114, 432 N.E.2d 617.

The relevant portions of sections of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 951/2, par. 1 — 100 et seq.) follow. Section 11 — 306 concerns the obligation of motorists to obey traffic control signals:

“Whenever traffic is controlled by traffic-control signals exhibiting different colored lights or color lighted arrows, successively one at a time or in combination, only the colors Green, Red and Yellow shall be used, except for special pedestrian signals carrying a word legend, and the lights shall indicate and apply to drivers of vehicles and pedestrians as follows:
(a) Green indication.
1. Vehicular traffic facing a circular green signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. Vehicular traffic, including vehicles turning right or left, shall yield the right of way to other vehicles and to pedestrians lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited.
* * *
(c) Steady red indication.
1. Except as provided in paragraph 3 of subsection (c) of this Section [right turn on red], vehicular traffic facing a steady circular red signal alone shall stop at a clearly marked stop line, but if there is no such stop line, before entering the crosswalk on the near side of the intersection, or if there is no such crosswalk, then before entering the intersection, and shall remain standing until an indication to proceed is shown.” (Ill. Rev. Stat. 1987, ch. 95V2, pars. 11 — 306(a)(1), (c)(1).)

In section 11 — 205, exceptions are made for emergency vehicles, however:

“(c) The driver of an authorized emergency vehicle may:
* * *
2. Proceed past a red or stop signal or stop sign, but only after slowing down as may be required and necessary for safe operation;
* * *
(d) The exceptions herein granted to an authorized emergency vehicle, other than a police vehicle, shall apply only when the vehicle is making use of either an audible signal when in motion or visual signals meeting the requirements of Section 12 — 215 of this Act.
(e) The foregoing provisions do not relieve the driver of an authorized emergency vehicle from the duty of driving with due regard for the safety of all persons, nor do such provisions protect the driver from the consequences of his reckless disregard for the safety of others.” (Ill. Rev. Stat. 1987, ch. 951/2, pars. 11 — 205(c)(2), (d), (e).)

An ambulance carrying a stricken individual to a hospital is defined as an emergency vehicle for purposes of the Code. (Ill. Rev. Stat. 1987, ch. 951/2, par. 1 — 105.) Section 11 — 907(a) concerns the operation of other vehicles upon the approach of an emergency vehicle:

“(a) Upon the immediate approach of an authorized emergency vehicle making use of audible and visual signals meeting the requirements of this Code or a police vehicle properly and lawfully making use of an audible or visual signal,
(1) the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the highway clear of any intersection and shall, if necessary to permit the safe passage of the emergency vehicle, stop and remain in such position until the authorized emergency vehicle has passed, unless otherwise directed by a police officer ***.” Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 907(a)(1).

Illinois Power relies on two cases, Mayfield and Graham v. Glass (1972), 7 Ill. App. 3d 988, 288 N.E.2d 617. In Graham, judgment n.o.v. was entered for a defendant who stopped his vehicle about four feet over the center line of the street in which a police officer’s motorcycle was traveling with siren on and red lights flashing. Basically, the court concluded that, under the circumstances, defendant had stopped, yielding the right-of-way as best the driver could and therefore was not negligent. In Mayfield, the reviewing court said judgments n.o.v. should have been entered for plaintiffs where the evidence was that a police officer driving an emergency vehicle, with flashing lights and siren activated, proceeded into an intersection against a red light even though his vision was obstructed by a school gymnasium, stopped vehicles, and the setting sun in the officer’s eyes. The vehicle struck by the one operated by the officer was stopped or slowed about to a stop waiting to make a left turn and had a green light to proceed. This court stated that had the non-emergency vehicle proceeded to move as closely as possible to the right-hand curb as required by statute, then an ever greater danger would have been created than in fact occurred by the driver stopping where she was.

In both of these cases, the driver who was supposed to yield the right-of-way had actually stopped the nonemergency vehicle, albeit in the intersection. In the case at bar, the power truck did not yield the right-of-way, or stop. It would seem, therefore, that the trial court’s refusal to direct a verdict was proper.

As to to manifest weight issue, defendants concede that, since the trier of fact is in a better position to observe the witnesses, assess their credibility, weigh the evidence, and resolve conflicts therein, a reviewing court’s judgment will not ordinarily be substituted for the judgment of the trier of fact unless the verdict or judgment is against the manifest weight of the evidence. In Loitz v. Remington Arms Co. (1989), 177 Ill. App. 3d 1034, 532 N.E.2d 1091, the verdict or judgment is against the manifest weight of the evidence only if a contrary conclusion is clearly evident, plain, or indisputable. Harris v. Day (1983), 115 Ill. App. 3d 762, 451 N.E.2d 262.

Here the jury found Illinois Power and its driver 90% responsible for plaintiff’s personal injuries and assigned 10% responsibility to the ambulance service and its driver. The same percentages were applied to findings of comparative fault for the property damage claims. Defendants do not suggest what percentages should have been assigned except to say 10% was too low for Patton and 90% too high for Gallier. However, under the facts of this case it would not appear that an increase of fault or responsibility to Patton and a decrease of Gallier’s fault or responsibility as defendant suggests would be clearly evident, plain, or indisputable.

Defendants cite Bouhl v. Smith (1985), 130 Ill. App. 3d 1067, 475 N.E.2d 244, in which the reviewing court, after reciting that drivers of emergency vehicles are held to ordinary standards of care determined by what a reasonable, prudent driver would do, determined that the trial court should have granted a directed verdict on liability to the plaintiff driver of the nonemergency vehicle. In Bouhl, plaintiff’s vehicle was stopped at the end of a line of traffic approaching an intersection. The officer activated his siren and lights and attempted to go around this line of traffic in the oncoming lane. However, seeing a vehicle enter the roadway heading towards him, the officer attempted to swerve back into the proper lane of traffic, braked, and skidded into plaintiff’s truck. The pavement was wet and slippery at the time, the shoulders of the road were too narrow to permit vehicles to travel on them, the officer knew the intersection was busy at the time of day, the speed limit was 45 miles per hour, the collision occurring at 35 miles per hour, and the impact was 220 feet from the stop sign. Bouhl is clearly factually distinguishable from the case at bar.

The next issues we are asked to consider are whether Gallier is entitled to a new trial by reason of the jury’s finding zero damages for his personal injuries because such a finding is inadequate as a matter of law, and whether a new trial is warranted by the apparent inconsistencies in the verdicts as to the apportionment of fault. The Illinois Supreme Court has stated that a jury’s verdict is to be examined so as to ascertain the jury’s intention and, in the event the verdict is otherwise supportable, then the verdict is to be molded into form and made to serve unless the reviewing court has doubts as to the verdict's meaning. (Manders v. Pulice (1970), 44 Ill. 2d 511, 256 N.E.2d 330.) Certainly the Gallier verdict raises a number of questions as to exactly what the jury had in mind. It was clearly a very complex case, with a number of counterclaims to consider, including claims for contribution. The jury had a difficult task.

Concerning the issue of inadequate damages, the law is succinctly summarized in Tipsword v. Johnson (1978), 59 Ill. App. 3d 834, 836, 376 N.E.2d 85, 87:

“Courts have traditionally been reluctant to interfere with the determination of the jury in awarding damages as long as the award is within the range of the evidence, the instructions proper, and there is no improper exclusion of evidence. (Brown v. St. John's Hospital (1977), 51 Ill. App. 3d 1044, 367 N.E.2d 155.) Additionally, if there appears to be evidence suggesting a genuine conflict as to the legitimacy of the expenses incurred, then the verdict of the jury should not be disturbed on review. (Haleem v. Onate (1966), 71 Ill. App. 2d 457, 219 N.E.2d 94.) Nevertheless, a court will intercede in the jury’s assessment of damages where the award is palpably inadequate, or it is clear that proof of an element of damages has been ignored, or it is shown to be erroneous or the result of passion or prejudice, or where it clearly appears from the uncontradicted evidence that the amount of the verdict bears no reasonable relationship to the loss suffered by the plaintiff. First National Bank v. Szwankowski (1969), 109 Ill. App. 2d 268, 248 N.E.2d 517.”

In this case there is no contention that the jury was not properly instructed as to Gallier’s counterclaim for personal injuries. In Tipsword, this court held that even though the jury might well have believed plaintiff’s later claims were exaggerated or overtreated, an award of zero damages for injuries arising from an automobile collision was inadequate where it would be against the manifest weight of the evidence to find plaintiff had time to plan a scheme to feign injuries, medical assistance was sought immediately following a collision involving an impact of substantial force, and plaintiff experienced pain after impact.

In the case at bar, a jury verdict form was utilized which required the jury to register two findings of fact on the form before assessing the final award, if any. The first finding was the amount of damages which Gallier sustained without regard to any possible negligence on his part. In this section, the jury registered “0” damages. For the same reasons relied on in Tipsword, this finding is inadequate. But this does not necessarily mean the ultimate decision to award Gallier zero damages is inadequate.

On the verdict form, the jury also found that Gallier was 100% at fault for the collision. Obviously, if the second finding is proper, then the ultimate award of zero damages is also correct. However, Gallier and Illinois Power argue that the finding of 100% fault is inconsistent with the findings on the property damage claim in which the responsibility was attributed 90% to Gallier and Illinois Power and 10% to Patton, the City, and the ambulance service.

Ordinarily, verdicts which are legally inconsistent with each other should be set aside and a new trial granted. (Wottowa Insurance Agency, Inc. v. Bock (1984), 104 Ill. 2d 311, 472 N.E.2d 411.) There does not appear to be a rational basis for the jury’s actions. As this court noted in Ogg v. Coast Catamaran Corp. (1986), 141 Ill. App. 3d 383, 490 N.E.2d 111, comparative negligence law does not require the application of the same percentage as applied in the contribution action. The question here, however, is not merely a question of the comparison of the division of contribution and the fault of comparative negligence. The jury considered the property damage claims and Gallier’s personal injury claim on the basis of comparative negligence and still made what appears to be inconsistent findings. It is clear the jury was confused by the complexity of the case. However, the inconsistency of some of the verdicts does not require reversal of the entire case.

Since plaintiff does not appeal her award and since, as already noted, there does not appear to be a reason to reverse the plaintiff’s award, the inconsistency does not affect the plaintiff’s judgment, and under Ogg, it also does not affect the contribution between defendants.

In this case, the only issue which needs to be retried is the issue of Gallier’s damages. On remand, after a jury has documented the amount of damages Gallier sustained without regard to any possible negligence on Gallier’s part, the trial court is directed to apportion 90% of the fault to Gallier as has already been determined by the jury to be appropriate and which has been determined herein to be supported by the evidence.

The last issue to consider in this case is whether the trial court erred in not allowing the jury to consider whether the ambulance service was a common carrier and therefore bound to a higher standard of care to plaintiff. Illinois Power argues the ambulance was a common carrier, owing a higher degree of care to plaintiff, its passenger, and the jury should have been so instructed so as to properly consider the degree of fault attributable to every party. The City, ambulance service, and Patton contend the ambulance was a private carrier. This seems to be an issue of first impression in Illinois.

The question of whether an ambulance is a common carrier has recently been addressed in the annotation, Liability of Operator of Ambulance Service for Personal Injuries to Person Being Transported (Annot., 68 A.L.R.4th 14 (1989), superseding Annot., 21 A.L.R.2d 910 (1952)). Courts in several States have recognized ambulances, as common carriers, have a duty to exercise the highest degree of care for the passenger during carriage. It would appear that the modem trend seems to be toward finding ambulances to be common carriers.

A common carrier, generally, is a carrier hired to carry any person who applies for passage as long as there is room available and there is no legal excuse for refusing. (6 Ill. L. & Prac. Carrier §351 (1954).) Ordinarily, a common carrier must accept as a passenger any person offering himself or herself for passage at the proper time and in the proper manner and who is able and willing to pay the fare. 6 Ill. L. & Prac. Carrier §352 (1954).

The distinction between common carrier and private carrier is discussed in §§ 1 to 9 of American Jurisprudence 2d (13 Am. Jur. 2d Carrier secs. 1 through 9 (1964).) To be a common carrier, one must hold himself out to be: (1) engaged in the business of transport, although this need not be the exclusive occupation and the person or corporation endeavoring to provide such service need not own the means of transportation; (2) in this case the business must be to transport persons, as opposed to freight; (3) obviously the transport is from place to place, but there need not be a fixed route or movement between fixed termini; (4) the transport must be undertaken for compensation, although the contract need not be expressed or the rate fixed, but a gratuity or gift is generally not sufficient to make one a common carrier; and (5) the services must be offered to the public generally. A common carrier cannot become a private carrier merely by some special agreement with the persons arranging the transportation, but this can occur if a common carrier transports something which would not ordinarily be carried in his business. Conversely, in Illinois, it has been determined that a private carrier cannot be transformed into a common carrier merely because a passenger is incidentally transported. For example, a private carrier is not considered a common carrier merely because the owner of a horse being transported wanted to ride along. (Miller v. Miller (1946), 395 Ill. 273, 69 N.E.2d 878.) Section 8 (13 Am. Jur. 2d Carrier §8, at 565 (1964)) discusses private carriers:

“A private carrier is one who, without making it a vocation, or holding himself out to the public as ready to act for all who desire his services, undertakes, by special agreement in a particular instance only, to transport property or persons from one place to another either gratuitously or for hire. Private carriers are distinguished from common carriers in respect of (1) the obligation to carry and (2) the liability for loss or injury. Private carriers do not undertake to carry for all persons indiscriminately but transport only for those with whom they seem fit to contract, and are liable for only such loss or injury as results from a failure to exercise ordinary care, whereas common carriers undertake to carry any and all members of the public who desire such service, and are liable as insurers for the loss or injury of property, with certain exceptions, and for injuries to passengers resulting from a failure to exercise the highest degree of practicable care and diligence consistent with the mode of transportation and the normal prosecution of the carrier’s business.
What constitutes a common or a private carrier is a question of law, but whether a carrier is actually serving as a private, rather than a common, carrier is a question of fact. Whether a particular transportation service is undertaken in the capacity of a private or of a common carrier must be determined by reference to the character of the business actually carried on by the carrier, and also by the nature of the service to be performed in the particular instance.”

The parties cite only two Illinois cases for this court to consider, Meyer v. Rozran (1948), 333 Ill. App. 301, 77 N.E.2d 454, and Beatrice Creamery Co. v. Fisher (1937), 291 Ill. App. 495, 10 N.E.2d 220. These cases confirm that the law of Illinois is the same as the general law recited above. Beatrice Creamery emphasized that the true test of whether a party is a common carrier is whether the service is available to all of the public who apply for carriage.

In this case, however, we need not decide whether, under the law of Illinois, an ambulance is a common carrier generally. The plaintiff in this case was not the patient, the person to whom ambulance service is ordinarily provided. Plaintiff was merely riding in the ambulance incidental to the carriage of her husband as an apparent convenience to plaintiff, who would otherwise have had to find some other means of transportation to the hospital. As to this plaintiff, the ambulance service is not a common carrier. See Perrine v. Charles T. Bisch & Son (1952), 346 Ill. App. 321, 105 N.E.2d 543.

Accordingly, the judgment of the circuit court of Douglas County is affirmed in all respects, except the judgment on the Gallier counterclaim for personal injuries is reversed and the cause is remanded for further proceedings consistent with the directions contained in this opinion.

Affirmed in part; reversed in part and remanded with directions.

LUND and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    LINDA POKE, Plaintiff-Appellant, v. ILLINOIS POWER COMPANY, Defendant-Appellee.
    Fourth District
    No. 4—89—0142
    Opinion filed August 31, 1989.
    Rehearing denied September 29, 1989.

      Smith, Waters, Kuehn, Burnett & Hughes, Ltd., of Peoria (Steven P. Clancy, of counsel), for appellant.
    Arnold F. Blockman, of Hatch, Blockman, McPheters, Fehrenbacher & Lyke, of Champaign, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Plaintiff Linda Poke filed a two-count complaint against defendant Illinois Power Company seeking compensation for injuries she incurred when she fell in the lobby of an office building owned by defendant in Danville. Upon motion of defendant, the circuit court of Vermilion County dismissed the complaint. Plaintiff filed an amended count I, which was also dismissed. Plaintiff appeals. We affirm.

In her complaint, plaintiff alleged that she had slipped on an accumulation of water in the lobby of defendant’s office building and sustained injuries. Count I of her complaint alleged defendant had violated a duty of care based on section 8 — 101 of the Public Utilities Act (Ill. Rev. Stat. 1987, ch. 111⅔, par. 8 — 101), by allowing the accumulation to stand in the lobby, and in failing to properly warn the public of the dangerous condition. Count II alleged a cause of action based on the Premises Liability Act (Ill. Rev. Stat. 1987, ch. 80, pars. 301 through 304). Following the dismissal of plaintiff’s complaint, plaintiff filed only an amended count I. Amended count I was virtually identical to the previous version. The only differences were that it clearly stated a theory of negligence based on the failure to comply with the Public Utilities Act, and asserted an additional ground for negligence on the part of defendant, in that defendant failed to provide any material for traction when the floor became wet.

The order of the court found the complaint failed to state a cause of action. The court held that, as a matter of law, there was no duty under section 8 — 101 of the Public Utilities Act (Ill. Rev. Stat. 1987, ch. 111⅔, par. 8 — 101) which covered natural accumulations of water in an office building owned by a public utility. Also, the court held that, as a matter of law, there was no duty on the part of owners of buildings for injuries caused by natural accumulations of water. On appeal, plaintiff argues: (1) section 8 — 101 of the Public Utilities Act (Ill. Rev. Stat. 1987, ch. 111⅔, par. 8 — 101) provides a cause of action in negligence for persons injured in an office building owned by a public utility; and (2) the Premises Liability Act (Ill. Rev. Stat. 1987, ch. 80, pars. 301 through 304) abolished the common law rule that landowners are not liable for injuries caused by natural accumulations of water.

Under common law principles, a landowner’s duty to an invitee is to exercise ordinary care in the use and maintenance of his property, but he has no duty and liability for injuries sustained as a result of the presence of naturally accumulated water. (Lohan v. Walgreens Co. (1986), 140 Ill. App. 3d 171, 173, 488 N.E.2d 679, 680; Walker v. Chicago Transit Authority (1980), 92 Ill. App. 3d 120, 122, 416 N.E.2d 10, 12.) Further, the landowner has no duty to continuously remove tracks left by customers who have walked through such natural accumulations. (Lohan, 140 Ill. App. 3d at 173-74, 488 N.E.2d at 681.) These principles apply to snow or water that is tracked inside a building from natural accumulations outside. (Lohan, 140 Ill. App. 3d at 174, 488 N.E.2d at 681; Bernard v. Sears, Roebuck & Co. (1988), 166 Ill. App. 3d 533, 535, 519 N.E.2d 1160, 1161.) Therefore, under common law principles, plaintiff has no cause of action against defendant.

Plaintiff argues section 8 — 101 of the Public Utilities Act (Ill. Rev. Stat. 1987, ch. 111⅔, par. 8 — 101) should be found to create a duty for public utility landowners in derogation of the common law. Section 8 — 101 of the Public Utilities Act (Ill. Rev. Stat. 1987, ch. 111⅔, par. 8 — 101) states, in pertinent part:

“Every public utility shall furnish, provide and maintain such service instrumentalities, equipment and facilities as shall promote the safety, health, comfort and convenience of its patrons, employees and public and as shall be in all respects adequate, efficient, just and reasonable.”

Plaintiff has offered no reason for us to find a liability, other than emphasizing a broad interpretation of the language of the statute. We decline to do so. We can find no reason to treat a public utility, such as defendant, in a special manner. In this situation, defendant is in the position of every other landowner. Plaintiff’s injury was in no way related to the operation of a public utility.- She simply slipped and fell in a building owned by defendant. We decline to interpret section 8— 101 of the Public Utilities Act as a basis for liability in a normal slip- and-fall case. The common law principles adequately encompass this situation.

Plaintiff’s second argument is based on the Premises Liability Act (Ill. Rev. Stat. 1987, ch. 80, pars. 301 through 304). Prior to addressing the merits of plaintiff’s argument, we must address a preliminary matter.

Defendant argues plaintiff failed to preserve her argument concerning count II by failing to replead the cause of action in her amended pleading. Where an amendment is complete in itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to be a part of the record for most purposes, being, in effect, abandoned and withdrawn. (Bowman v. County of Lake (1963), 29 Ill. 2d 268, 272, 193 N.E.2d 833, 835.) Following the dismissal of plaintiff’s complaint, plaintiff filed an “Amended Count I.” This pleading began with the following prefatory sentence:

“Now comes the Plaintiff, LINDA POKE, by her attorneys, SMITH, WATERS, KUEHN, BURNETT & HUGHES, LTD., and without pleading over Count II of the Complaint, for her following Amended Count I, states.”

Although plaintiff’s method of pleading is vague, we find plaintiff sufficiently referred to count II to indicate she was preserving the claim for appeal. The amended pleading was not a complete amended complaint, but, rather, an amended count from the previously dismissed complaint. The better practice would have been to replead count II in her amended complaint, thereby eliminating any ambiguity.

Plaintiff argues section 2 of the Premises Liability Act (Ill. Rev. Stat. 1987, ch. 80, par. 302) eliminated the common law rule regarding natural accumulations of water. Section 2 of the Premises Liability Act (Ill. Rev. Stat. 1987, ch. 80, par. 302) states as follows:

“The distinction under the common law between invitees and licensees as to the duty owed by an owner or occupier of any premises to such entrants is abolished.
The duty owed to such entrants is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them.”

Plaintiff cites no case holding to her argument. We find plaintiff is mistaken in her interpretation of section 2. The purpose of section 2 was to eliminate the distinction between invitees and licensees who enter upon the property of another. We do not find the legislature intended to eliminate all the other common law principles along with this distinction. Plaintiff’s complaint was properly dismissed.

For the reasons stated above, the order of the circuit court of Vermilion County is affirmed.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.


author: JUSTICE LINDBERG

text:
    THE DELCON GROUP, INC., et al., Plaintiffs-Appellees, v. NORTHERN TRUST CORPORATION et al., Defendants-Appellants.
    Second District
    No. 2—88—0432
    Opinion filed August 25, 1989.

      Dennis M. O’Dea and David E. Schaper, both of Keck, Mahin & Cate, and Douglas A. Poe and James D. Holzhauer, both of Mayer, Brown & Platt, both of Chicago (Stephen M. Shapiro, of counsel), for appellants.
    Barbara L. Yong, of Siegan, Barbakoff & Gomberg, of Chicago (Ronald P. Kane, of counsel), for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendants, Northern Trust Bank/Naperville (the Bank); the Bank’s parent, Northern Trust Corporation (the Corporation); and a former loan officer of the Bank, James V. Zaring, appeal from judgments entered on six verdicts in favor of plaintiffs Jon C. Ginder, chief executive officer and sole shareholder of the corporate plaintiffs; and Deleon Group, Inc., and its subsidiaries Deleon, Inc., Kane Environmental Systems, Inc. (Kane), Midwest Delta Contractors, Inc., and Deleon Realty and Development, Inc. (referred to collectively as Deleon). The verdict on count I (fraud) was against all three defendants and awarded plaintiffs $400,000 actual and $500,000 punitive damages. The verdicts on counts II through VI were only against the Bank and the Corporation and awarded $300,000 actual damages for count II (breach of oral contract); $50,000 actual damages for count III (breach of oral contract); $50,000 actual and $200,000 punitive damages for count IV (intentional interference with contractual relations); $200,000 actual and $500,000 punitive damages for count V (intentional interference with prospective economic advantage); and $200,000 actual damages for count VI (breach of written contract). These were the causes of action alleged in the complaint, and our analysis of this case is, of course, restricted to these causes of action.

The court notes at the outset that the briefs of the parties contained statements of facts which egregiously violated Supreme Court Rule 341(e)(6) (113 Ill. 2d Rules 341(e)(6), (f)). These statements of facts contained conclusions, argument, and extensive commentary on the facts. (See 113 Ill. 2d R. 341(eX6).) Because such matters were not in the record, there was, and could be, no citation to the record for the commentary, argument, and conclusions. (See 113 Ill. 2d R. 341(eX6).) Pursuant to this court’s order during oral argument, the parties after oral argument submitted revised statements of facts edited to eliminate the improper material. The court expresses its gratitude to the parties for their prompt compliance with its order and for the excellent revised statements of facts. The revised statements of facts were most helpful aids to the court in understanding and in locating the relevant portions of the lengthy record in this complex case.

Defendants raise seven issues on appeal. They contend that the trial court erred in refusing (1) “to direct a verdict and to grant judgment NOV” for defendants on counts II and III “because, as a matter of law, the Bank did not orally agree to lend additional money to Deleon”; (2) “to instruct the jury that, before an oral contract can exist, there must be a meeting of the minds as to definite and certain contract terms”; (3) “to direct a verdict and to grant judgment NOV” for defendants on count I “because, as a matter of law, the Bank did not fraudulently misrepresent that it would lend additional money to Deleon”; (4) “to direct a verdict and to grant judgment NOV” for defendants on count IV “because, as a matter of law, the Bank did not intentionally interfere with Deleon’s contractual relations when it refused to lend more money to Deleon”; (5) “to direct a verdict and to grant judgment NOV” for defendants on count VI because, as a matter of law, the Bank did not breach the written 1985 loan agreement when it refused to make further advances; (6) “to direct a verdict and to grant judgment NOV” for defendants on count V “because, as a matter of law, the Bank was justified in mailing direct collection notices to parties it reasonably believed to be Deleon’s account debtors”; and (7) “to set aside the verdict [sic] because the damages awarded in this case were duplicative, improper as a matter of law, and grossly excessive.” Our resolution of the other five issues makes it unnecessary to consider issues (2) and (7). We reverse the judgment of the trial court and enter judgment in favor of defendants on all six counts of the complaint.

The facts necessary to resolution of the issues will be noted when the issues are discussed. A brief overview of the facts will, however, be useful at this point. See Deleon Group, Ine. v. Northern Trust Corp. (1987), 159 Ill. App. 3d 275, 276-79, 512 N.E.2d 378, 379-81 (stating the facts of this case relevant to an interlocutory appeal of an order granting a preliminary injunction).

On November 13, 1985, Deleon and the Bank entered into a lending agreement under which the Bank agreed to make a line of credit loan of up to 80%, but no more than $300,000, of Deleon’s eligible accounts receivable as evidenced in borrowing base certificates provided to the Bank by Deleon; and a term loan of up to 80%, but no more than $50,000, of the purchase price of machinery and equipment. Among the lending agreement’s terms were requirements that Deleon “maintain a working capital ratio of 1.5 to 1; on a consolidated basis” and “maintain a debt-to-equity rate of 3 to 1; on a consolidated basis.” The lending agreement also called for the execution of a promissory note and security agreement. Pursuant to these terms of the lending agreement, a master demand note and a security agreement were executed by Deleon on December 11, 1985. Under the terms of these instruments, the Bank obtained a security interest in the inventory, accounts receivable, and all other assets of Deleon. Under the security agreement, “default” included the failure to pay any liability when due or demanded and the insolvency of Deleon.

In February of 1986 the Bank made another loan to Deleon. This was for $310,000 for the purchase of a building to be used by Deleon as its headquarters. At the closing, the parties executed a mortgage, an adjustable rate mortgage loan agreement, and a collateral assignment of leases and rents.

In the spring of 1986, the parties had several discussions about the Bank’s extending an additional $500,000 line of credit to finance Kane’s summer asbestos removal projects. The parties disagree over whether they orally contracted for the Bank to make this loan, but agree that the Bank never loaned Deleon any money under this line of credit. The parties also disagree over whether they orally contracted in early June for the Bank to lend Deleon $120,000 for equipment financing, but agree that the Bank never loaned Deleon any money pursuant to this alleged oral contract.

By early June of 1986, Kane was the successful bidder on contracts with six school districts for removal of asbestos that summer. However, in addition to refusing to make the $500,000 line of credit and the $120,000 equipment financing loans, the Bank, based on a borrowing base certificate for May 30, 1986, that it received in the first half of June, refused to lend Deleon any more money under the line of credit in the 1985 loan agreement.

Deleon borrowed $400,000 from Harrison Construction Company at a very high rate of interest so that Kane could perform the asbestos removal contracts with the six school districts. The Bank, to enable Deleon to obtain this loan, agreed that its security interest in the accounts receivable from these six projects would be subordinated to the security interest of the Harrison Construction Company.

In August of 1986 Deleon both stopped making payments to the Bank and was insolvent. On October 1 the Bank declared Deleon in default and accelerated the loan. On October 8 plaintiffs filed this suit. On October 27 the Bank sent collection notice letters to at least 18 individuals or entities, most but not all of whom were current account debtors of Deleon.

The trial court, on motion of plaintiffs, granted a preliminary injunction enjoining the Bank “from collecting the $235,000 due under the master demand note executed by Delcon and from collecting the accounts receivable which secured the note.” (Delcon Group, Inc. v. Northern Trust Corp. (1987), 159 Ill. App. 3d 275, 278, 512 N.E.2d 378, 380.) On appeal of the order granting the preliminary injunction, this court reversed and remanded for further proceedings. (Delcon Group, Inc. v. Northern Trust Corp. (1987), 159 Ill. App. 3d 275, 280, 512 N.E.2d 378, 382.) The cause proceeded to a trial on the merits of plaintiffs’ complaint, and the instant appeal is from the final judgment entered on the jury’s verdicts following that trial.

In the first, third, fourth, fifth, and sixth issues, defendants contend that the trial court erred in not granting judgments n.o.v. and directed verdicts in their favor on all counts of the complaint. Our supreme court has said:

“In Pedrick [v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504] this court announced the standard to be used in determining when a trial court should enter either a directed verdict or a judgment notwithstanding the verdict. It was said: ‘In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.’ (37 Ill. 2d 494, 510[, 229 N.E.2d 504, 513-14]; see also Mundt v. Ragnar Benson, Inc. [(1975)], 61 Ill. 2d 151,156-57[, 335 N.E.2d 10,14].)
* * *
*** The standards relating to the direction of verdicts and to the granting of new trials are of course different. In Pedriek this court declared: ‘We have rather carefully preserved the distinction between the evidentiary situation which will require a new trial [citation], and that justifying direction of a verdict or judgment n.o.v. There is, in our judgment, excellent reason for so differentiating to be found in the radically different results of allowance of the two motions, and we believe a more nearly conclusive evidentiary situation ought to be required before a verdict is directed than is necessary to justify a new trial.’ (Pedrick v. Peoria & Eastern R.R. Co. [(1967)], 37 Ill. 2d 494, 509-10[, 229 N.E.2d 504, 513].) On a motion for a new trial a court will weigh the evidence and set aside the verdict and order a new trial if the verdict is contrary to the manifest weight of the evidence. [Citations.]” (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 309-10, 356 N.E.2d 32, 35-36.)

(See also Jardine v. Rubloff (1978), 73 Ill. 2d 31, 36-37, 382 N.E.2d 232, 234.) In the case at bar, defendants have only contended that the trial court erred in failing to enter judgments n.o.v. and to direct verdicts, and not for a new trial, so they may prevail only if the evidence so overwhelmingly favored them that no contrary verdicts based on that evidence could ever stand.

The first issue raised by defendants concerns whether they were entitled to judgments on counts II and III because, as a matter of law, plaintiffs failed to prove the existence of the oral contracts allegedly breached by defendants. Count II alleged a contract to increase Deleon’s line of credit by $500,000, and count III alleged a contract to loan Deleon $120,000 to purchase equipment.

In Champaign National Bank v. Landers Seed Co. (1988), 165 Ill. App. 3d 1090, 519 N.E.2d 957, the court said:

“The terms of a contract must be reasonably certain. Some terms may be missing or left to be agreed upon, but if the essential term or terms are so uncertain that there is no basis for deciding whether the agreement has been kept or broken, there is no contract. Restatement (Second) of Contracts §33 (1981).
An agreement to continue to refinance or roll over a debt appears similar to an oral contract to lend money in the future. A valid cause of action for breach of an oral contract to lend money in the future is recognized in Illinois. (Wait v. Midwest Bank/Danville (1986), 142 Ill. App. 3d 703, 707, 491 N.E.2d 795, 800; Bank of Lincolnwood v. Comdisco, Inc. (1982), 111 Ill. App. 3d 822, 444 N.E.2d 657.) The party claiming such a contract must show that the alleged agreement contains sufficient definitiveness to be enforceable. (Wait, 142 Ill. App. 3d at 708, 491 N.E.2d at 801; Carrico v. Delp (1986), 141 Ill. App. 3d 684, 688, 490 N.E.2d 972, 975.) In Wait and Carrico our court cited McErlean v. Union National Bank (1980), 90 Ill. App. 3d 1141, 414 N.E.2d 128, where it was held an agreement to loan money in the future was enforceable only if it contemplated the terms upon which the future loan should be made. The McErlean court stated:
‘These terms would include, for example, the intended duration of the line of credit; the applicable rate of interest to be charged for any loan emanating from such an agreement, or the basis for how such interest would be ascertained; what duration or date or dates were contemplated for maturity of such loans; and what mode or rate of repayment was contemplated, i.e., whether the entire amount would be repayable or if repayment in installments would be acceptable.’ 90 Ill. App. 3d at 1146, 414 N.E.2d at 132.” (Champaign National Bank v. Landers Seed Co. (1988), 165 Ill. App. 3d 1090, 1093-94, 519 N.E.2d 957, 959-60.)

Moreover, one of the elements essential to the formation of a contract is a manifestation of agreement or mutual assent by the parties to its terms, and the failure of the parties to agree upon or even discuss an essential term of a contract may indicate that the mutual assent required to make or modify a contract is lacking. Allen v. Amber Manor Apartments Partnership (1981), 95 Ill. App. 3d 541, 549, 420 N.E.2d 440, 446.

Plaintiffs contend that prior to the end of May of 1986 there was “an agreement to extend an additional $500,000 line of credit under the same essential terms and conditions as an already established $350,000 line of credit” (count II) and that “as with the $500,000 line of credit, [the $120,000 loan] was based upon the same terms and conditions as the existing line of credit agreement” (count III). Among the terms and conditions of the 1985 loan agreement were the following:

“Borrowers will maintain a working capital ratio of 1.5 to 1; on a consolidated basis.”

And:

“Borrowers will maintain a debt-to-equity rate of 3 to 1; on a consolidated basis.”

Plaintiffs were not in compliance with either of these terms at the times they contend they reached, or at the times they planned to begin borrowing under, the two oral agreements with defendants.

The parties could not have intended new contracts with these two terms. It was obvious to all that immediately upon the formation of such contracts plaintiffs would have been in breach of these terms, and it is unreasonable to conclude that the parties would have intended to form contracts in which such breaches were inevitable and immediate occurrences.

It is undisputed that, with respect to the two purported oral contracts, the parties never agreed upon, or in any detail discussed, any specific modifications of the working capital and debt-to-equity ratios. If the numbers in the 1985 loan agreement are discarded, as they must be if there were two oral contracts as plaintiffs maintain, there is no basis on which to supply new working capital and debt-to-equity ratios for the new loans. If these were essential terms, then there were no oral contracts because of the failure of the parties to agree on essential terms.

In this case, the provisions requiring plaintiffs to maintain specified working capital and debt-to-equity ratios were essential terms. The 1985 loan agreement specified an interest rate of “1% before demand, maturity or default and 3% after demand, maturity or default above the prime rate of interest.” Among the provisions of the 1985 loan agreement designed to insure that the loan’s risk remained low enough to justify this rate of interest were the terms requiring plaintiffs to maintain their working capital and debt-to-equity ratios within specified limits. The loan would obviously be riskier if the working capital ratio was higher or the debt-to-equity ratio lower than specified. These terms concerning the financial condition of the borrowers were therefore sufficiently important to be essential to the oral contracts alleged.

Plaintiffs argue that “the evidence established that the Bank either did not deem these loan covenants material and/or waived compliance by Deleon.” The 1985 loan agreement provided:

“This letter represents the entire agreement between the parties and may not be modified or any provision waived in any manner except in writing.”

Plaintiffs’ contentions to the contrary notwithstanding, the only manner in which terms of the 1985 loan agreement could be waived was in writing. The only written waiver of the working capital and debt-to-equity ratio covenants was expressly limited to the period before and including March 31, 1986, and was not general as plaintiffs argue. Therefore, there was no waiver of the working capital and debt-to-equity ratio covenants that would support plaintiffs’ claim that they were unnecessary to the oral contracts alleged.

Plaintiffs’ contention that the two covenants were not important to the Bank is based upon (1) the limited waiver; (2) the Bank’s advancing $20,000 on June 2 and $16,720 on June 19 after plaintiffs were in breach of the covenants; and (3) statements by Zaring “that he was not concerned with the loan covenant ratios because of the ‘cyclical nature of the business’ and the fact that Deleon’s ability to conform to the ratios was severely affected when the Bank lent Deleon $310,000 to purchase a building for its corporate headquarters.” We first note that plaintiffs have ignored the difficulty they had obtaining the limited waiver — the Bank did not initially give plaintiffs the waiver, but only did so after being told that failure to do so would result in plaintiffs’ auditor issuing a “going concern letter” with likely disastrous impact on the plaintiff corporations. In any event, none of the facts noted by plaintiffs comes anywhere near establishing that the Bank intended to enter into contracts lending up to $500,000 more and $120,000 more to plaintiffs with no covenants whatsoever regarding plaintiffs’ working capital and debt-to-equity ratios. We must conclude then that covenants as to these ratios were essential terms of the oral contracts alleged; that the parties never agreed as to these essential terms; and that they therefore did not form the oral contracts alleged.

There is an additional reason for finding that plaintiffs failed, as a matter of law, to establish the formation of the oral contracts. The 1985 loan agreement loaned plaintiffs a maximum of $350,000: (a) “Up to 80%, but no more than $300,000.00 of eligible receivables” which was referred to as “the ‘Line of Credit Loan’ ” and (b) “[u]p to 80%, but no more than $50,000.00, of the purchase price of machinery and equipment hereafter purchased by Borrowers (hereinafter the ‘Term Loan’).” The alleged oral contracts were indefinite with respect to which of these máximums applied and, if the line of credit loan maximum applied, how it was to be applied.

The alleged $120,000 oral loan contract was for equipment, seemingly placing it in the term loan provision. Yet, it was referred to not only as equipment financing but also as a “$120,000 line of credit,” making it indefinite which of the 1985 loan agreement’s provisions for computing the maximum amount of the loan applied.

With respect to the alleged $500,000 oral loan contract which was for a line of credit, and the alleged $120,000 oral loan contract if it too was for a line of credit, the parties do not seem to have agreed on how the line of credit loan provision of the 1985 loan agreement was to apply. In other words, they did not agree on whether the $500,000 (or $120,000) line of credit was to be entirely separate from the $300,000 line of credit under the 1985 loan agreement or was to be added to the $300,000 to make one $800,000 (or $420,000) line of credit.

The reason this makes a difference is that the terms “$300,000 line of credit,” “$500,000 line of credit,” etc., are misleading. The $300,000 line of credit is more accurately described as a line of credit of 80% of eligible receivables to a maximum of $300,000. If the parties intended only to add $500,000 (or $120,000) to the $300,000 maximum, plaintiffs would still be restricted to borrowing no more than 80% of eligible receivables. However, it seems clear that plaintiffs, at least, did not intend to enter into such a contract since, as will be explained in discussing the alleged breach of the 1985 loan agreement, at the time they intended to start borrowing against the additional amounts, 80% of plaintiffs’ eligible receivables did not even amount to $300,000. On the other hand, it seems unreasonable to assume the Bank would have intended to establish a separate line of credit of up to 80% of eligible receivables but no more than $500,000 (or $120,000) since this would have resulted in plaintiffs being able to borrow up to 160% of their eligible receivables (if the eligible receivables were $300,000 or less). The evidence tended to show that plaintiff Hinder did not believe that the parties had agreed to such a line of credit since he proposed in a May 6,1986, letter to Zaring:

“[T]hat advances to be used for working capital of Kane be based upon a formula up to 40 or 50% of the trade receivables instead of the 80% formula used in the balance of the line.”

The parties never agreed on a percentage of receivables to be used in determining the amount plaintiffs would be entitled to borrow under a new line of credit.

Thus, the purported contracts were indefinite as to which loan’s (line of credit or term) maximum amounts applied to the $120,000 and were indefinite as to the percentage of receivables to be used in computing the amount plaintiffs were entitled to borrow. These were essential terms of the alleged oral contracts, and their indefiniteness requires that we conclude that no oral contracts to lend money were ever formed.

Essential terms of the alleged oral contracts were never agreed upon so no oral contracts to lend additional money were ever formed. Defendants were therefore entitled to judgment on counts II and III of the complaint.

We turn next to the fifth issue, which concerns whether defendants were entitled, as a matter of law, to judgment on count VI of the complaint alleging their breach of the written 1985 loan agreement. The parties disagree over whether receivables from bonded work, on which a bonding company rather than the Bank had the first lien, were includable in the borrowing base which, under the loan agreement, was used to calculate the maximum amount of the $300,000 line of credit that Deleon could borrow. We need not decide whether or not the bonded receivables were includable in the borrowing base because, in either event, the Bank was not obliged by the agreement to make any further advances. The argument in plaintiffs’ brief demonstrates why the verdict in their favor on count VI cannot stand.

Plaintiffs correctly note:

“The jury was instructed that in Count VI Deleon claimed the Bank breached the November 13, 1985 lending Agreement *** by failing to advance further funds pursuant to this agreement after June 19,1986.”

Plaintiffs contend:

“Zaring told Cinder, Williams, Landers and Haas [all officers and employees of the corporate plaintiffs] that the Bank would not accept borrowing base certificates [BBCs] unless they excluded bonded receivables. [Record citations.] After the June 3[, 1986,] meeting, Zaring directed Landers to exclude from the BBC all accounts receivable relating to bonded work. *** According to Zaring’s directions, Landers modified the BBC ***. The impact of this change was to create a negative borrowing base and prevent further advances from being made to Deleon.”

This last sentence of plaintiffs’ is made without record citation and is plainly incorrect. As plaintiffs themselves go on to note in their brief:

“Because of Zaring’s demands, there were two (2) BBC’s prepared for the May 30 [sic]. Px 43 & 44. Px 44 was prepared without exclusion of bonded accounts receivable and reflected a negative borrowing base of $43,705. The BBC prepared at Zaring’s direction, which excluded bonded receivables, reflected a negative borrowing base of $63,843. [Record citation.]”

Thus, even if bonded receivables were included in the borrowing base, plaintiffs were not entitled under the agreement to borrow any more against the line of credit on the basis of the May 30 borrowing base certificate.

Plaintiffs contend:

“Zaring did not receive the May 30 BBC’s until after the June 3 meeting. As Landers testified, [he] had previously explained to Zaring on May 15, 1986, that Kane would bill over $400,000 dollars in June 1986. [Record citations.] The billings would clearly put the company in an extremely favorable financial position wherein there would be no negative borrowing base, but rather an extremely positive figure for June 1986. [Record citations.]
*** Even Zaring admitted that as of June 3 he knew that the billings and collections for the six (6) school district projects would eliminate any shortfalls in the BBC. [Record citation.]”

In other words, plaintiffs contend that the 1985 loan agreement required the Bank to make further advances, even if there was a negative borrowing base, if plaintiffs anticipated large amounts of billings in the near future for work not yet even performed. The 1985 loan agreement did not require the Bank to do this, stating instead that plaintiffs could borrow:

“Up to 80% but no more than $300,000 of eligible receivables *** as evidenced in borrowing base certificates provided at such time or times as [the Bank] shall require but in no event not [sic] less frequently than monthly.”

Thus, the anticipated billings, which were indisputably not eligible receivables and so were not included in even plaintiffs’ borrowing base certificate including bonded receivables, did not entitle plaintiffs to further advances under the 1985 loan agreement.

Plaintiffs also contend:

“[T]he Bank was not even aware of what they claimed to be a purported breach by Deleon until June 9, 1986 when it received the May borrowing base certificate. Prior to this time the Bank had already breached its prior agreement to extend it an additional $500,000 in financing for the summer projects.”

This seems to relate to the breach of oral contract alleged in count II rather than count VI, since the information that plaintiffs had a negative borrowing base as evidenced by a May 30 borrowing base certificate received by the Bank on June 9 would certainly justify the Bank’s not making advances after June 19, the action alleged by plaintiffs to have breached the 1985 loan agreement.

As a matter of law, the Bank was not required to advance further funds under the 1985 loan agreement. Defendants were accordingly entitled to judgment on count VI.

The third issue raised by defendants concerns whether they were entitled to judgment on count I because, as a matter of law, plaintiffs failed to prove the elements of fraudulent misrepresentation. Our supreme court has stated:

“As disclosed by decisions of this court, the elements of a cause of action for fraudulent misrepresentation (sometimes referred to as ‘fraud and deceit’ or ‘deceit’) are: (1) false statement of material fact (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance. [Citations.] Furthermore, the reliance by the other party must be justified, i.e., he must have had a right to rely. [Citations.]” (Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286, 402 N.E.2d 599, 601.)

Defendants contend that plaintiffs failed to establish the first element of fraudulent misrepresentation because the statements alleged were promises concerning future performance and plaintiffs did not prove that they constituted a scheme to defraud; and plaintiffs failed to establish that they justifiably relied upon the alleged misrepresentations. Disposition of this issue requires only that we address whether the evidence established that plaintiffs justifiably relied upon the alleged misrepresentations, so we express no views on the other contentions of defendants on this issue.

With respect to whether reliance is justified:

“The rule is well established that a party is not justified in relying on representations made when he has ample opportunity to ascertain the truth of the representations before he acts. When he is afforded the opportunity of knowing the truth of the representations he is chargeable with knowledge; and if he does not avail himself of the means of knowledge open to him he cannot be heard to say he was deceived by misrepresentations. [Citations.]” (Schmidt v. Landfield (1960), 20 Ill. 2d 89, 94, 169 N.E.2d 229, 232.)

(See also Marino v. United Bank of Illinois, N.A. (1985), 137 Ill. App. 3d 523, 527, 484 N.E.2d 935, 938.) All of the alleged misrepresentations were that the Bank had committed to, or agreed to, provide defendants with the $500,000 line of credit or the $120,000 equipment financing. As noted previously, the parties in their negotiations regarding the purported oral contracts to make these loans never agreed on several essential terms. Agreement on these terms would have been necessary for the Bank to be contractually obligated under the purported oral contracts to make the loans. These were facts equally available to both parties. Under these circumstances, plaintiffs were not justified in relying on statements that the Bank had committed or agreed to lend them the money.

As a matter of law, any reliance of plaintiffs upon the alleged misrepresentations by defendants was not justified. Defendants were accordingly entitled to judgment on count I alleging fraudulent misrepresentation.

The fourth issue raised by defendants concerns whether they were entitled to judgment on count IV “because, as a matter of law, the Bank did not intentionally interfere with Deleon’s contractual relations when it refused to lend money to Deleon.” The elements of tortious interference with a contractual relationship are:

“(1) [T]he existence of a valid and enforceable contract between the plaintiff and a third party; (2) the defendant’s awareness of the contractual relationship; (3) the defendant’s intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the third party caused by the defendant’s wrongful conduct; and (5) damages resulting from the breach. [Citations.]” (Certified Mechanical Contractors, Inc. v. Wight & Co. (1987), 162 Ill. App. 3d 391, 398, 515 N.E.2d 1047, 1051-52.)

(Scholwin v. Johnson (1986), 147 Ill. App. 3d 598, 607-08, 498 N.E.2d 249, 255; Belden Corp. v. Internorth, Inc. (1980), 90 Ill. App. 3d 547, 551, 413 N.E.2d 98, 101.) We need not consider the strength of the evidence with respect to the other elements because the evidence on the question of whether defendants’ conduct was unjustified so overwhelmingly favored defendants that no contrary verdict on count IV could ever stand.

As plaintiffs correctly note, count IV of their complaint alleged:

“[T]he Bank’s intentional interference with Deleon’s contracts with six school districts for asbestos removal by unjustifiably refusing to honor its commitment to lend an additional $500,000 on a line of credit and later $120,000 for the purchase of equipment.”

As we have previously stated, the two purported oral agreements to lend the money lacked essential terms so defendants were not contractually bound by them and plaintiffs were not justified in any reliance they may have placed on misrepresentations with respect to the Bank’s having committed to, or agreed to, make these loans. In short, there was no evidence to establish that the Bank was unjustified in refusing to lend plaintiffs “an additional $500,000 on a line of credit and later $120,000 for the purchase of equipment.”

The evidence on whether defendants’ conduct was unjustified so overwhelmingly favored defendants that no contrary verdict could ever stand. Defendants were accordingly entitled to judgment on count IV alleging intentional interference with contractual relations.

The sixth issue raised by defendants concerns whether they were entitled to judgment on count V alleging that they intentionally interfered with Deleon’s prospective economic advantage by sending collection notices in a commercially unreasonable manner. The elements of the tort of interference with prospective economic advantage are (1) plaintiff’s reasonable expectancy of entering into a valid business relationship; (2) defendant’s knowledge of this expectancy; (3) intentional interference by defendant preventing the expectancy from ripening into a valid business relationship; and (4) damage to plaintiff as a result of the interference. (Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1973), 16 Ill. App. 3d 709, 713-14, 306 N.E.2d 549, 553, rev’d in part on other grounds (1975), 61 Ill. 2d 129, 334 N.E.2d 160; see also Belden Corp. v. Internorth, Inc. (1980), 90 Ill. App. 3d 547, 552, 413 N.E.2d 98, 101.) As the Belden court noted:

“Unlike the right to receive the benefits of a contract, the right to engage in a business relationship is not absolute, and must be exercised with regard to the rights of others.
*** An individual with a prospective business relationship has a mere expectancy of future economic gain; a party to a contract has a certain and enforceable expectation of receiving the benefits of the contract. When a business relationship affords the parties no enforceable expectations, but only the hope of continued benefits, the parties must allow for the rights of others. *** In sum, as the degree of enforceability of a business relationship decreases, the extent of permissible interference by an outsider increases.” (Belden Corp. v. Internorth, Inc. (1980), 90 Ill. App. 3d 547, 552, 413 N.E.2d 98,102.)

Plaintiffs contend that the Bank committed this tort when it “sent letters to at least 18 individuals and/or entities which stated that, in the Bank’s view, the Deleon companies were in default under their borrowing and security agreements and made demand upon the individuals and/or entities to make direct payment to the Bank of any amounts due from them to Deleon.”

Before discussing this issue, it is important to note a few facts. The 1985 loan agreement, demand note, and security agreement gave the Bank a security interest in all of Deleon’s assets, including its inventory and accounts receivable. (See Delcon Group, Inc. v. Northern Trust Corp. (1987), 159 Ill. App. 3d 275, 277-78, 512 N.E.2d 378, 380.) As this court stated in its opinion reversing the trial court’s order granting Deleon’s request for a preliminary injunction:

“Deleon does not dispute that it was in actual default by unilaterally stopping payments of amounts due to Northern Trust in August 1986. Moreover, Deleon was also in default because it was insolvent in August 1986.” (Delcon Group, Inc. v. Northern Trust Corp. (1987), 159 Ill. App. 3d 275, 280, 512 N.E.2d 378, 381.)

On October 1, 1986, the Bank declared Deleon to be in default and accelerated payment on the loan. The complaint at bar was filed on October 8, 1986. Subsequent to the filing of the complaint, attorneys for the Bank went to Deleon’s offices and reviewed documents. The Bank sent the collection notice letters on October 27, 1986.

Most of the letters were sent to current account debtors of plaintiffs. As we said in our prior opinion:

“Under article 9 of the Uniform Commercial Code Northern Trust had a clear statutory right to collect the accounts receivable once there was a default by Deleon. (Ill. Rev. Stat. 1985, ch. 26, par. 9 — 502.) Both commercial necessity and common sense dictate that a secured party’s right to collect its collateral should not be interfered with absent a showing that the secured party is violating the terms of the loan agreement. No such showing was made by Delcon.” (Delcon Group, Inc. v. Northern Trust Corp. (1987), 159 Ill. App. 3d 275, 279, 512 N.E.2d 378, 381.)

It makes no difference that some of these letters were to the six school districts for Kane’s work on which the Bank had refused to lend Deleon money or that the Bank had subordinated its interest in these accounts receivable to the interest of the Harrison Construction Company. The Bank had a security interest in all of Deleon’s accounts receivable and was not precluded from taking action to collect the accounts receivable for the six school districts merely because it did not hold the most senior security interest in them.

Also, it was not commercially unreasonable for the Bank to send letters to debtors owing Deleon about $577,000 when Deleon only owed the Bank about $270,000. It was possible that some of the debtors of Deleon would repay all or part of their debts before receiving the Bank’s letter; that some of the accounts receivable would prove uncollectible; and that, at least on the accounts receivable of the six school districts on which Harrison Construction Company held the senior security interest, the Bank might receive only a fraction of the total amount owed Deleon due to the subordinated position of the Bank’s security interest. This result is certainly within the contemplation of the Uniform Commercial Code, which provides that “[i]f the security agreement secures an indebtedness, the secured party must account to the debtor for any surplus.” Ill. Rev. Stat. 1987, ch. 26, par. 9 — 502(2).

Three or four of the letters were sent to nondebtors of Deleon. Two were to former account debtors of Deleon, the Chicago Public Schools and the City of Geneva. A third went to the architect and disbursing agent of an account debtor of Deleon, Balluff & Balluff. Ginder testified, though unlike the others to whom letters were allegedly sent no copy of the letter was introduced in evidence, that another letter was received by Harrison Construction Company, which had provided financing for the six school district projects. It is unnecessary to decide whether these three or four letters were sent in a commercially reasonable manner because there was no evidence that they prevented any expectancy of plaintiffs’ from ripening into a valid business relationship or that they caused damage to plaintiffs.

Plaintiffs argue in their brief:

“Ginder testified that as a result [of the Bank’s sending the letters], the Deleon Companies were turned down on projects in which they were low bidder, including, but not limited to, the Downers Grove School District.”

The general testimony that Deleon was turned down on projects because of the letters is too vague to support the cause of action. Moreover, with respect to this testimony in both its general and specific aspects, Ginder also testified:

“They knew about our problem, had received letters from the Downers Grove District 99. For example, although it was not in here, they share the same facilities that Downers Grove 66 does as far as their superintendent of schools. They knew we had financial problems, the architect knew we had financial problems because of the letters that were sent out, and they passed and went on to the second bidder.” (Emphasis added.)

From this testimony it would appear that Deleon’s trouble getting contracts when it was the lowest bidder were caused by the Bank’s letter to the Downer’s Grove School District. That, however, was one of the letters it was clearly proper to send, as it went to a current account debtor of Deleon, and was not one of the three or four letters we are now considering.

Plaintiffs continue in their brief:

“[T]he letters caused all cash flow to the Deleon companies to stop and as a result, they were unable to meet their obligations as they came due. In addition, they lost interest relating to the funds they were unable to collect and had to borrow additional funds to make up the difference during this time period.”

Reference to Ginder’s testimony confirms that the consequences plaintiffs here describe resulted from the receipt of the Bank’s letters by plaintiffs’ current account debtors, and not the receipt of the three or four letters now being considered.

Plaintiffs end their description of the results of the letters with:

“According to Ginder, Deleon had done over $175,000 of business for the first five (5) months of 1987, wherein during the same period for the prior year they had done $1,600,000. Ginder testified that the Bank’s breach on its commitment and these letters were the cause of the damages sustained by Deleon.”

But Ginder did not testify what, if any, damages were caused by the three or four letters now being considered apart from the Bank’s proper actions of not lending plaintiffs additional money and of sending the 15 letters to current account debtors of Deleon.

Thus, 15 of the letters were clearly properly sent to current account debtors of Deleon and cannot provide the basis for an intentional interference with prospective economic advantage action. The evidence did not establish that the three or four other letters prevented any expectancy of plaintiffs’ from ripening into a valid business relationship or that they caused any damage to plaintiffs. Defendants were accordingly entitled to judgment on count V.

The judgment of the circuit court is reversed, and judgment is entered in favor of defendants on all counts of the complaint. 107 Ill. 2d R. 366(a)(5).

Reversed.

DUNN and McLAREN JJ., concur.