author: JUSTICE WILLIAM A. LEWIS JUSTICE CHAPMAN,

text:
    THOMAS E. WIESEMAN, Plaintiff-Appellant, v. KIENSTRA, INC., Defendant-Appellee.
    Fifth District
    No. 5—91—0780
    Opinion filed December 4, 1992.
    CHAPMAN, J., dissenting.
    William J. Meacham, of Smith, McGrady & Meacham, Ltd., of East Alton, for appellant.
    Thompson & Mitchell, of Belleville (Allan M. Goodloe, Jr., and William A. Schmitt, of counsel), for appellee.
   JUSTICE WILLIAM A. LEWIS

delivered the opinion of the court:

Plaintiff, Thomas E. Wieseman, appeals from a judgment of the circuit court of Madison County, which dismissed the plaintiff’s complaint pursuant to section 2—615(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2—615(b)) for failure to state a cause of action. The sole issue raised on appeal is whether the court erred in granting the defendant’s motion to dismiss. For the reasons set forth below, we affirm.

A complaint which fails to state a cause of action because of factual or legal insufficiency must be dismissed. (Robbins v. City of Madison (1990), 193 Ill. App. 3d 379, 549 N.E.2d 947.) A legally sufficient complaint sets forth a legally recognized claim upon which the plaintiff is entitled to recover, while a factually sufficient complaint must plead sufficient facts essential to the alleged cause of action. Robbins, 193 Ill. App. 3d 379, 549 N.E.2d 947.

In considering a motion to dismiss, a reviewing court must accept as true all well-pleaded facts alleged in the complaint and all reasonable inferences that can be drawn from those facts. (Robbins, 193 Ill. App. 3d 379, 549 N.E.2d 947.) If it clearly appears that no set of facts can be alleged and proven which would entitle the plaintiff to relief, then a complaint has been properly dismissed. (Robbins, 193 Ill. App. 3d 379, 549 N.E.2d 947.) If a complaint is stricken and a plaintiff fails to seek leave to amend, it is presumed the plaintiff elects to stand on the stricken complaint, and, if dismissed, the cause of action must stand or fall upon the contents of the complaint alone. Robbins, 193 Ill. App. 3d 379, 549 N.E.2d 947.

Here, the plaintiff’s complaint was dismissed and he did not seek to amend, so the viability of the plaintiff’s complaint turns solely on the sufficiency of the allegations set forth in his complaint. In the plaintiff’s complaint, he alleges that prior to April 19, 1991, he was employed by Klueter Brothers Concrete (Klueter); that just prior to that date, he was offered employment by the defendant; that he resigned from Klueter on April 19, 1991; that he reported to work at the offices of the defendant on April 22, 1991; that on April 22, 1991, he punched a time clock, was given work orders, was issued safety equipment, and proceeded to perform his work duties; that also on that date, he underwent a physical examination by the defendant’s physicians as required by the defendant; and that on April 23, 1991, when he reported to work, the defendant discharged him. The plaintiff also alleges in his complaint that the reason given for his discharge was “that it was believed by supervisory personnel of Kienstra, Inc. that Plaintiff at some future time might suffer a breakdown of the physical structure of his knee which may result in Plaintiff filing a claim for workers[’] compensation pursuant to Illinois Rev. Stat. Chap. 48, Paragraph 138, et seq. [sic].” The plaintiff further states in his complaint that his discharge was in direct contravention of the public policy of the State of Illinois. From these allegations, it is apparent the plaintiff sought relief under a cause of action of retaliatory discharge.

The tort of retaliatory discharge was first recognized as a cause of action in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353. While the common law doctrine that an employer may discharge an at-will employee for any reason or for no reason is still the general rule in Illinois, the tort of retaliatory discharge has been held to be a limited and narrow exception to this general rule. (Fellhauer v. City of Geneva (1991), 142 Ill. 2d 495, 568 N.E.2d 870; Thomas v. Zamberletti (1985), 134 Ill. App. 3d 387, 480 N.E.2d 869.) Our supreme court recently reaffirmed this limited and narrow exception by saying: “simply put, ‘Illinois allows employers to act on the basis of their employee’s physical disabilities; it is only the request for benefits that state law puts off limits as a ground of decision,’ McEwen v. Delta Air Lines, Inc. (7th Cir. 1990), 919 F.2d 58, 60” (Hartlein v. Illinois Power Co. (1992), 151 Ill. 2d 142, 160), and “with regard to the fact of discharge, we decline to expand the tort to encompass a retaliatory discharge ‘process.’ ” (Hartlein v. Illinois Power Co. (1992), 151 Ill. 2d 142, 161.) To state a valid claim for retaliatory discharge, a plaintiff must show that he was (1) discharged, (2) in retaliation for his activities, and (3) that the discharge violated a clear mandate of public policy. (Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 519 N.E.2d 909.) With these principles in mind, we now consider whether the plaintiff’s complaint was sufficient to withstand a motion to dismiss.

The plaintiff contends that he was discharged “prior to having the occasion to seek medical attention for a job related injury,” and that the defendant believed that the plaintiff’s preexisting condition of one of his knees would be aggravated by the work required of the plaintiff, and that “at some future date Plaintiff would be required to seek medical attention due to the breakdown of the Plaintiff’s physical structure,” resulting in the plaintiff filing a claim for workers’ compensation. The plaintiff characterizes this discharge as a “preemptive strike” against him. The plaintiff asserts, therefore, that his discharge was violative of the public policy stated in the Workers’ Compensation Act (Ill. Rev. Stat. 1991, ch. 48,138.1 et seq.) (the Act).

We find that the plaintiff’s complaint fails to state sufficient facts to support two of the elements necessary to state a cause of action for retaliatory dischargé: that the plaintiff was discharged for his activities, and that the discharge violates a clear mandate of public policy. In the plaintiff’s complaint, he does not relate any activity he performed which provided the defendant with a retaliatory motive for his discharge. He does not state that he filed a workers’ compensation claim against his former employer or against the defendant, or that he sustained a work-related injury with a former employer or with the defendant for which he sought medical treatment. We cannot even be assured from reading the complaint that plaintiff’s potential bad knees are not congenital. Without an activity, a retaliatory motive for the plaintiff’s discharge cannot be found to exist.

Further, while the Workers’ Compensation Act provides a strong public policy to insure the protection of workers covered by the Act, we find that this policy is not called into play under the circumstances present in this case. The Act is to provide payment of compensation and medical expenses for an employee injured at work. The Act does not apply to anticipated future injuries, and an employee’s rights under the Act accrue only at such time when a work-related injury occurs. Since the plaintiff has not alleged he has sustained an injury at work, he has no rights he is foregoing under the Act, and the defendant’s discharge of him has not violated any public policy. From the facts presented in the plaintiff's complaint, it can only be determined that the plaintiff was an at-will employee and that the defendant had the right to discharge him for any reason or for no reason whatsoever.

Finally, it would be poor public policy to force an employer to keep an employee at a job that ultimately might cause the breakdown of the physical structure of plaintiff’s knees and who might be a danger to the public if his knee gave way while operating a truck. If we were to hold -in this case that there had been a retaliatory discharge, we would in effect be discouraging employers from giving job seekers physical examinations for the purpose of determining whether the employees could perform their duties, because the employer is going to be held liable regardless of the results of the examination. We would also be encouraging employers to continue an employee in a job that the employer knew would ultimately result in an injury to the employee, because the employer is going to be held liable whether the employer keeps the employee or discharges him. An employer might opt for the least expensive out and that would be keeping the employee at the job and thereby getting some work out of him as opposed to discharging the employee, paying another person to do the employee’s job, and suffering the costs of defending a suit and paying damages. In Hartlein, the supreme court held that it was not a retaliatory discharge to cause an employee injured at.work to seek another job as part of his rehabilitation program. (Hartlein, 151 Ill. 2d 142.) In this case the employer is causing the employee to seek a less strenuous job so that he might not have to lindergo rehabilitation.

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

Affirmed,

H. LEWIS, J., concurs.

JUSTICE CHAPMAN,

dissenting:

“If the hiring be general, without any particular time limited, the law construes it to be a hiring for a year; upon a principle of natural equity, that the servant shall serve, and the master maintain him, throughout all the revolutions of the respective seasons, as well when there is work to be done as when there is not.” 1 Blackstone, Commentaries on The Laws of England 425 (Garland Publishing, Inc. 1978) (reprint of the 1783 ed. printed for W. Strahan and T. Cadell, London, and D. Prince, Oxford).
“With us the rule is inflexible, that a general or indefinite hiring is prima facie a hiring at will, and if the servant seeks to make it out a yearly hiring, the burden is upon him to establish it by proof. *** [I]t is an indefinite hiring and is determinable at the will of either party, and in this respect there is no distinction between domestic and other servants.” H.G. Wood, Master and Servant §134, at 272 (1877).
“We are not convinced that an employer’s otherwise absolute power to terminate an employee at will should prevail when that power is exercised to prevent the employee from asserting his statutory rights under the Workmen’s Compensation Act.” Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 181, 384 N.E.2d 353, 357.

From Blackstone’s recognition of the importance of the seasons in an agrarian society through Wood’s statement made at the height of laissez-faire capitalism to the modem adaption of limitations expressed in Kelsay covers slightly over 200 years of history of the employment-at-will doctrine. This doctrine and its public policy exceptions have been the subject of many commentaries (see, e.g., Callahan, The Public Policy Exception to the Employment At Will Rule Comes of Age: A Proposed Framework for Analysis, 29 Am. Bus. L.J. 481 (1991); Swan, The Economics of the Retaliatory Discharge Public Policy Action, 9 St. Louis U. Pub. L. Rev. 605 (1990); Loseman, Unrav cling the Illinois Retaliatory Discharge Tort, 1989 U. Ill. L. Rev. 517; Henry, Update on Retaliatory Discharge in Illinois, 40 Lab. L.J. 426 (1989); Henry, Retaliatory Discharge: Status of the Tort in Illinois, 38 Lab. L.J. 146 (1987); Yonover, Retaliatory Discharge in Illinois: Recent Developments, 61 Chi.-Kent L. Rev. 671 (1985); Feinman, The Development of the Employment at Will Rule, 20 Am. J. Legal Hist. 118 (1976)), some of which have been critical of the employment-at-will rule (see, e.g., Sokachitch, Good Faith and Fair Dealing in Illinois: An Application in the Employment Context, 1987 U. Ill. L. Rev. 183; Blades, Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Colum. L. Rev. 1404 (1967)).

I dissent, not because of the criticisms, but because I believe the majority has not followed the limitations on the doctrine imposed by Kelsay and its progeny. My disagreement with the majority is based on two grounds; I feel it has made unwarranted assumptions and unjustified conclusions.

Turning first to the unwarranted assumptions, the majority suggests the plaintiff may have been discharged because it was unsafe for him to operate a truck or because his employer was trying to protect him from injury. However, these arguments are unpersuasive for two reasons: first, they were not raised by the defendant, probably because they appear nowhere in the record; and second, while evidence on those matters might appear later in these proceedings, this case is before us on the pleadings, and the allegations of the complaint must be taken as true for purposes of a section 2—615 motion to dismiss. Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 380 N.E.2d 790.

What are the significant allegations for purposes of this appeal? That the reason for plaintiff’s discharge was “that it was believed by supervisory personnel of Kienstra, Inc. that Plaintiff at some future time might suffer a breakdown of the physical structure of his knee which may result in Plaintiff filing a claim for workers[’] compensation.” To refine the issue slightly, can an employer discharge a worker because he has some physical problem that might cause him to file a workers’ compensation claim? The trial court answered affirmatively, and the majority affirms.

As I have indicated, the majority makes certain assumptions which are unwarranted and reaches certain conclusions with which I do not agree. I have already discussed two of the unwarranted assumptions, the protection of the employee from future injury and the protection of the public from an unsafe driver. The former assumption is alluded to again in the majority’s concluding sentence, “In this case the employer is causing the employee to seek a less strenuous job so that he might not have to undergo rehabilitation.” (237 Ill. App. 3d at 725.) The fact that the majority can draw this conclusion of paternalistic benevolence from the record before us reminds me of a comment reportedly made by Clarence Darrow during the anthracite commission hearings in Pennsylvania many years ago. Apparently evidence was presented about the hours of work in the underground mines and the use and abuse of young boys in the mines and of young girls in the mills that had been built adjacent to the mines. To counter this evidence, one of the coal companies offered testimony of its president’s concern for children. To this, Darrow reportedly responded, “Oh yes, Mr. _ loves the little children; like a wolf loves lambs!” I hasten to add that I do not equate Kienstra with the coal company president, for there is neither anything in the record to support such an equation nor is it this court’s function to make such a judgment. But neither is it this court’s function to attribute to the defendant the laudable notion of encouraging the employee to seek a less strenuous job and avoid undergoing rehabilitation.

Turning from what I view as unwarranted assumptions to the conclusions with which I do not agree, the latter are of two types; first are the factual results that the majority fears will flow from a reversal of the trial court’s dismissal; second are the legal conclusions it draws from its examination of Kelsay and its progeny.

There are two factual results about which the majority expresses concern. “If we reverse,” the majority says, “we will discourage employers from giving preemployment physicals.” I do not agree. Preemployment physicals are an appropriate and important tool of employers, a tool that can benefit both the employer and the employee when properly used, and a tool whose use would not be foreclosed by a reversal in this case. It is not the preemployment (in this case actually post-employment) physical that is challenged; it is the improper use of the physical as a means of discharging a worker to prevent the possibility of a workers’ compensation claim that is challenged by a reversal.

Second, the majority postulates that a reversal would encourage an employer to keep an employee in a job that the employer knew would ultimately result in harm to the worker. Again I disagree. A reversal of this case would not force a concerned employer to choose between regulating its work force to minimize injuries and keeping an employee in place and “thereby getting some work out of him.” (237 Ill. App. 3d at 724.) Instead, what a reversal of this case would do is prevent employers from violating the State’s public policy with regard to workers’ compensation claims.

In addition to my disagreement with the majority on its assumptions and factual conclusions, I also disagree with its holding that the complaint fails to contain sufficient facts to establish two of the elements of a retaliatory discharge case; “that the plaintiff was discharged for his activities, and that the discharge violates a clear mandate of public policy.” 237 Ill. App. 3d at 723.

Turning to the second stated failure first, it is clear that the plaintiff has alleged that he was discharged because the condition of his knees “may result in Plaintiff filing a claim for workers [’] compensation.” At this point his allegation must be accepted as true, and what can it mean except that plaintiff was discharged to prevent the possible future filing of a workers’ compensation claim? Such a discharge violates the public policy protecting a worker’s right to the free exercise of benefits under the Workers’ Compensation Act first recognized by the supreme court in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, and consistently reaffirmed by the courts of this State in the intervening 14 years.

The strength of the supreme court’s convictions on public policy in this area is indicated by its recognition of the need for the tort of retaliatory discharge and punitive damages as protective mechanisms in the absence of any constitutional provision or legislative enactment establishing such a policy. Indeed, Justice Underwood, the sole dissenter in Kelsay, disagreed not because of the result, “I write no brief for an employer who tells an industrially injured employee that the employee will be discharged if a claim for compensation is filed.” (Kelsay, 74 Ill. 2d at 190, 384 N.E.2d at 361 (Underwood, J., concurring in part and dissenting in part).) Justice Underwood dissented because he felt the relief should come from the legislature and not the court. Justice Underwood’s concern would be alleviated, and the strength of the legislature’s convictions on public policy in this area can be demonstrated, by the amendment to the Workers’ Compensation Act which made it unlawful to interfere with workers’ rights under it:

“(h) It shall be unlawful for any employer, insurance company or service or adjustment company to interfere with, restrain or coerce an employee in any manner whatsoever in the exercise of the rights or remedies granted to him [or her] by this Act or to discriminate, attempt to discriminate, or threaten to discriminate against an employee in any way because of his [or her] exercise of the rights or remedies granted to him [or her] by this Act.
It shall be unlawful for any employer, individually or through any insurance company or service or adjustment company, to discharge or to threaten to discharge, or to refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of his [or her] rights or remedies granted to him [or her] by this Act.” (Ill. Rev. Stat. 1975, ch. 48, par. 138.4(h).)

Thus, it is obvious from Kelsay and the amendment to the Act that of the three sources of public policy, constitutional provisions, legislative enactments, and judicial decisions, the latter two have indicated a policy of protection for workers’ rights to claim their benefits under the workers’ compensation laws of this State.

If anything else is necessary to establish the policy of this State on this issue, I would suggest an examination of section 3 of the Act (Ill. Rev. Stat. 1991, ch. 48, par. 138.3), which makes the Act apply automatically and without election to all designated employers and their employees:

“The provisions of this Act hereinafter following shall apply automatically and without election to the State, county, city, town, township, incorporated village or school district, body polictic or municipal corporation, and to all employers and all their employees ***.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 48, par. 138.3.

What is the significance of section 3 in this case? Assume a hypothetical situation in which an employee approaches her employer with the following offer: “I understand that I’m covered by workers’ compensation, and I appreciate that, but I’d really rather have the cash than the protection. I’ve worked for you for five years, and I’ve never been hurt. There aren’t many hazards in my line of work. If you would pay me 25 cents more an hour, I’d waive my workers’ compensation rights, and I’d be a happier employee.” Note that the employee has made the initial approach, and there is no indication of coercion or any improper activity by the employer. Assume also that the employer knows that the insurance premium for this employee costs 40 cents an hour so compliance with the employee’s request would accomplish two things, save 15 cents an hour for the employer, and make the employee happier. Both parties would apparently be better off as a result of the new arrangement. Contracts are made every minute of every day on the basis of such appearances. Both parties agree it is in their interests to make the agreement. There is no coercion, fraud or duress; there is consideration, but there will be no contract recognized in this hypothetical. Why not? Because even though both parties agree, the State does not. The legislature expressed the public policy of the State prohibiting such a contract when it passed section 3 making the Workers’ Compensation Act applicable without election. Freedom of contract is trumped by the State’s public policy of ensuring that all covered workers have the right to claim their benefits under the Act. If the public policy of the State in this area is strong enough to prohibit freely bargained agreements negotiated by both parties, can there be any doubt that it will prohibit unilaterally imposed restrictions such as discharge because of the possibility of a future workers’ compensation claim? I submit that the answer must be no and that has been the answer of the supreme court of this State.

The supreme court first spoke on this issue in 1978 in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353. Since then there have been several additional cases.

The supreme court has addressed the tort of retaliatory discharge in no less than nine workers’ compensation cases. It has expanded the tort to include union employees (Ryherd v. General Cable Co. (1988), 124 Ill. 2d 418, 530 N.E.2d 431; Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 473 N.E.2d 1280), employees who request medical care (Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 519 N.E.2d 909), and employees who have filed compensation claims against other employers (Darnell v. Impact Industries, Inc. (1984), 105 Ill. 2d 158, 473 N.E.2d 935).

In addition, as the State Appellate Court has grappled with the tort of retaliatory discharge, its dimensions have grown more clear. The appellate court has held that plaintiffs in a variety of situations have stated a claim for retaliatory discharge. For example, a claim was recognized for an employee who was discharged after filing more claims despite being warned not to (Beauvoir v. Rush-Presbyterian-St. Luke’s Medical Center (1985), 137 Ill. App. 3d 294, 484 N.E.2d 841), for an employee who was terminated immediately after injury (Wolcowicz v. Intercraft Industries Corp. (1985), 133 Ill. App. 3d 157, 478 N.E.2d 1039), for a seasonal employee who was not recalled after filing a claim (Motsch v. Pine Roofing Co. (1988), 178 Ill. App. 3d 169, 533 N.E.2d 1), and for an employee who was discharged because his employer feared he would file an additional claim for benefits (Richardson v. Illinois Bell Telephone Co. (1987), 156 Ill. App. 3d 1006, 510 N.E.2d 134).

These cases together with those listed below chart the history of the tort of retaliatory discharge in the workers’ compensation context. The cases are as follows.

ILLINOIS SUPREME COURT

Hartlein v. Illinois Power Co. (1992), 151 Ill. 2d 142.

Ryherd v. General Cable Co. (1988), 124 Ill. 2d 418, 530 N.E.2d 431.

Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 527 N.E.2d 303.

Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 519 N.E.2d 909.

Gonzalez v. Prestress Engineering Corp. (1986), 115 Ill. 2d 1, 503 N.E.2d 308.

Boyles v. Greater Peoria Mass Transit District (1986), 113 Ill. 2d 545, 499 N.E.2d 435.

Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 473 N.E.2d 1280.

Darnell v. Impact Industries, Inc. (1984), 105 Ill. 2d 158, 473 N.E.2d 935.

Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.

FIRST DISTRICT

Groark v. Thorleif Larsen & Son, Inc. (1992), 231 Ill. App. 3d 61, 596 N.E.2d 78.

Colvett v. L. Karp & Sons, Inc. (1991), 211 Ill. App. 3d 731, 570 N.E.2d 611.

Marin v. American Meat Packing Co. (1990), 204 Ill. App. 3d 302, 562 N.E.2d 282.

Austin v. St. Joseph Hospital (1989), 187 Ill. App. 3d 891, 543 N.E.2d 932.

Netzel v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 808, 537 N.E.2d 1340.

Motsch v. Pine Roofing Co. (1988), 178 Ill. App. 3d 169, 533 N.E.2d 1.

Taylor v. Tsekeris (1987), 163 Ill. App. 3d 195, 516 N.E.2d 562.

Lewis v. Zachary Confections Co. (1987), 153 Ill. App. 3d 311, 505 N.E.2d 1087.

Beauvoir v. Rush-Presbyterian-St. Luke’s Medical Center (1985), 137 Ill. App. 3d 294, 484 N.E.2d 841.

Raisl v. Elwood Industries, Inc. (1985), 134 Ill. App. 3d 170, 479 N.E.2d 1106.

Wolcowicz v. Intercraft Industries Corp. (1985), 133 Ill. App. 3d 157, 478 N.E.2d 1039.

Elia v. Industrial Personnel Corp. (1984), 125 Ill. App. 3d 1026, 466 N.E.2d 1054.

Rubenstein Lumber Co. v. Aetna Life & Casualty Co. (1984), 122 Ill. App. 3d 717, 462 N.E.2d 660.

Bryce v. Johnson & Johnson (1983), 115 Ill. App. 3d 913, 450 N.E.2d 1235.

Henon v. Lever Brothers Co. (1983), 114 Ill. App. 3d 608, 449 N.E.2d 196.

Wyatt v. Jewel Cos. (1982), 108 Ill. App. 3d 840, 439 N.E.2d 1053.

SECOND DISTRICT

Hess v. Clarcor, Inc. (1992), 237 Ill. App. 3d 434.

Kritzen v. Flender Corp. (1992), 226 Ill. App. 3d 541, 589 N.E.2d 909.

Thompson v. Abbott Laboratories (1990), 193 Ill. App. 3d 188, 549 N.E.2d 1295.

Bragado v. Cherry Electrical Products Corp. (1989), 191 Ill. App. 3d 136, 547 N.E.2d 643.

Parton v. A.L. Randall Co. (1989), 180 Ill. App. 3d 856, 534 N.E.2d 1077.

Fuentes v. Lear Siegler, Inc. (1988), 174 Ill. App. 3d 864, 529 N.E.2d40.

Richardson v. Illinois Bell Telephone Co. (1987), 156 Ill. App. 3d 1006, 510 N.E.2d 134.

Byrd v. Aetna Casualty & Surety Co. (1987), 152 Ill. App. 3d 292, 504 N.E.2d 216.

Cook v. Optimum/Ideal Managers Inc. (1984), 130 Ill. App. 3d 180, 473 N.E.2d 334.

Colley v. Swift & Co. (1984), 129 Ill. App. 3d 812, 473 N.E.2d 364.

THIRD DISTRICT

Bilderback v. Admiral Co. (1992), 227 Ill. App. 3d 268, 591 N.E.2d 36.

LaPorte v. Jostens, Inc. (1991), 213 Ill. App. 3d 1089, 572 N.E.2d 1209.

Bray v. Stan’s Rental, Inc. (1990), 196 Ill. App. 3d 384, 553 N.E.2d 791.

Armstrong v. Freeman United Coal Mining Co. (1983), 112 Ill. App. 3d 1020, 446 N.E.2d 296.

FOURTH DISTRICT

Wright v. St. John’s Hospital of the Hospital Sisters of the Third Order of St. Francis (1992), 229 Ill. App. 3d 680, 593 N.E.2d 1070.

Miller v. J.M. Jones Co. (1992), 225 Ill. App. 3d 799, 587 N.E.2d 654.

Melton v. Central Illinois Public Service Co. (1991), 220 Ill. App. 3d 1052, 581 N.E.2d 423.

Cunningham v. Addressograph Multigraph Corp.-Bruning Division (1980), 87 Ill. App. 3d 396, 409 N.E.2d 89.

FIFTH DISTRICT

Jones v. Burkart Foam, Inc. (1992), 231 Ill. App. 3d 500, 596 N.E.2d 882.

Lowrance v. Marion Pepsi-Cola Bottling Co. (1991), 221 Ill. App. 3d 623, 582 N.E.2d 725.

Knecht v. Radiac Abrasives, Inc. (1991), 219 Ill. App. 3d 979, 579 N.E.2d 1248.

Sloan v. Jasper County Community Unit School District No. 1 (1988), 167 Ill. App. 3d 867, 522 N.E.2d 334.

Wayne v. Exxon Coal USA, Inc. (1987), 157 Ill. App. 3d 514, 510 N.E.2d 468.

Hugo v. Tomaszewski (1987), 155 Ill. App. 3d 906, 508 N.E.2d 1139.

Slover v. Brown (1986), 140 Ill. App. 3d 618, 488 N.E.2d 1103.

The above list of cases represents most, if not all, of the Illinois cases on retaliatory discharge for exercising worker’s compensation rights. Not all of the cases found in the workers’ favor, but the vast majority of them did unless the defendant had a valid nonpretextual reason for the discharge. This fact is important in this case for two reasons. First, no valid reason for the defendant’s act is present in this case at this stage of the pleadings. Second, this trend appears to have been adopted as part of the causation analysis by the supreme court in its most recent case, Hartlein v. Illinois Power Co. (1992), 151 Ill. 2d 142, 163 (which holds that “the ultimate issue to be decided is the employer’s motive in discharging the employee”). (Emphasis added.)

Before turning to the majority’s second legal conclusion, I will address its reliance upon the recent case of Hartlein v. Illinois Power Co. (1992), 151 Ill. 2d 142, which is distinguishable for several reasons.

First, in order for the worker in Hartlein to have been entitled to injunctive relief, he would have had to show “the fact or threat of discharge” (Hartlein, 151 Ill. 2d at 161), which he could not do. There is no question, however, that the plaintiff in this case was discharged. Second, Illinois Power’s actions in Hartlein were not “accompanied by conduct or statements which indicated a prohibited discriminatory intent on the part of Illinois Power. Rather, Hartlein was advised that the proposed work search was considered to be governed by workers’ compensation law.” (Hartlein, 151 Ill. 2d at 162.) In this case, the plaintiff has alleged that his discharge was because he might file a workers’ compensation claim in the future. Third, and most important, is the difference in the element of causation. In Hartlein, the supreme court concluded that there was no question that the worker was unable to perform his earlier job and that the employer acted appropriately in requiring the worker to engage in rehabilitative efforts. Consequently, no improper motive was shown. By contrast, in this case, or at least at this point in this case, the only motive alleged for the discharge was improper. As Hartlein notes:

“Kelsay, 74 Ill. 2d 172, holds that the employer may not present the employee with a choice between his job and his legal entitlement to compensation. Kelsay thereby prohibits an employer from utilizing an employee’s job as leverage to condition his exercise of rights under the Act; Kelsay does not, however, prohibit the leveraging of benefits under the Act to condition the exercise of employment rights.” (Emphasis added.) (Hartlein, 151 Ill. 2d at 166.)

The emphasized language in the last quotation from Hartlein not only does not support the majority’s position, it militates against it.

Therefore, the majority’s second argument, that the plaintiff failed to adequately allege that he was discharged for his activities, should fail. While I agree that “activities” has generally meant the filing of a claim, it is clear that it does not take the affirmative act of filing a claim to support a cause of action for retaliatory discharge.

The tort of retaliatory discharge is designed to prevent the employer from frustrating the employee’s exercise of rights under the Act. The tort of retaliatory discharge is more of a stick than a carrot, and it does not require the filing of a compensation claim as a prerequisite to the existence of the tort. For example, if an employee is injured at work and is handed a pink slip as he is carried out the gate by the ambulance attendants, would anyone contend that he would be barred from filing a retaliatory discharge claim because he had not filed a compensation claim before his discharge? I think not, and neither did the supreme court in Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 519 N.E.2d 909:

“It would be anomalous to allow a retaliatory discharge action to employees who are fired after filing a workers’ compensation claim for work-related injuries, but not those who are injured and fired before they ever get the chance to file such claims. Plaintiff should not be penalized because her employer discharged her in retaliation for orally requesting medical attention, instead of filing a formal compensation claim — the effect is the same: being fired in retaliation for asserting legal rights to medical care for work-related injuries.” (Hinthorn, 119 Ill. 2d at 534, 519 N.E.2d at 913.)

In Hinthorn, the employee reported the injury and requested medical attention. In Wolcowicz v. Intercraft Industries Corp. (1985), 133 Ill. App. 3d 157, 478 N.E.2d 1039, the employer apparently intervened as soon as it became aware that plaintiff allegedly fell and injured his back. Again, no workers’ compensation claim was filed, but the court protected the employee.

Similarly, the majority contends that the tort of retaliatory discharge cannot be invoked unless the worker has suffered an injury. I submit, however, that it is neither the injury, nor the filing of a claim that the tort seeks to protect. It is the ability to exercise the right to file a claim, the ability to seek relief, that is protected by the tort. This position is recognized by Darnell v. Impact Industries, Inc. (1984), 105 Ill. 2d 158, 473 N.E.2d 935, which upheld the plaintiff’s claim although the plaintiff had not been injured at all in her present employment.

These cases suggest, and I would hold, that the second element of the tort of retaliatory discharge, which the majority holds requires an “activity,” more accurately requires the plaintiff to demonstrate that the discharge was caused by an employer’s improper efforts to frustrate the employee’s rights under the Act and to avoid its statutorily imposed duty. As I have discussed, in its most recent opinion on the issue, the supreme court recognized that the employer’s motive was the ultimate issue to be decided concerning the element of causation. Hartlein v. Illinois Power Co. (1992), 151 Ill. 2d 142.

Granted, the more definite or the more recent an employee’s activities, the easier it is to establish causation. However, at this stage of this case, it is not necessary for plaintiff to establish causation; he need only properly allege it. I believe that causation can be adequately alleged in the absence of any clearly ascertainable act. For example, if an employer met all employees as they reported to work, advised them that the company strongly discouraged its employees from filing compensation claims against it and discharged those who questioned the policy because they were possible claimants, this employer would have exercised its power to frustrate its employees’ rights under the Workers’ Compensation Act. The frustration of the workers’ rights under the Act is the action prohibited by the public policy of the State and protected against by the tort of retaliatory discharge. Even though the discharged employee did not file a claim, did not sustain an injury and did not seek medical treatment, his rights under the Act were frustrated, and that frustration was caused by the employer’s efforts to prevent its employees from filing compensation claims against it.

That the employee’s acts are not as significant as the employers’ acts is also borne out by the remedies available for the tort of retaliatory discharge. Not only is the wrongfully discharged employee compensated for the loss, but the employer is also subject to punitive damages. Therefore, even a totally disabled employee, who might be entitled to only minimal compensatory damages, could maintain a cause of action for retaliatory discharge. In choosing to allow the recovery of punitive damages for the tort of retaliatory discharge, the court chose to protect an employee’s rights under the Act by punishing the employer for its acts in derogation of those rights. Arguably, then, because it is equally, if not more, important to punish and deter an employer from violating the public policy of this State, the tort of retaliatory discharge cannot depend for its existence primarily on the employees’ activities. If this were the case, then employers, by intervening sooner, say at the time of hiring, could effectively prevent workers’ compensation claims from being filed against themselves. Employers could achieve this goal, not by providing a safer work environment, but by identifying and terminating those employees most likely to make compensation claims. Whether such a termination occurs after one day of employment, as in this case, or after 30 years of faithful service, in what may become the more frequent case, it is wrong; it is prohibited by the public policy of this State, and the prohibition is made meaningful by the tort of retaliatory discharge.

The majority has locked the tort of retaliatory discharge into too rigid a framework with its position in this case. The plaintiff has alleged facts sufficient to support his cause of action for retaliatory discharge. I would reverse the circuit court’s order dismissing his complaint.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
      In re ESTATE OF CHARLOTTE HERWIG, Deceased (Wesley B. Herwig et al., Plaintiffs and Counterdefendants-Appellants, v. Dixon National Bank et al., as Co-ex’rs of the Estate of Charlotte Herwig, Deceased, et al., Defendants and Counterplaintiffs-Appellees).
    Second District
    No. 2—92—0481
    Opinion filed December 9, 1992.
    Rehearing denied January 11, 1993.

      Donald Q. Manning, of Clark, McGreevy & Johnson, of Rockford, and Bruce E. Keller, of Keller & Lathe, of Dixon, for appellants.
    Gary R. Gehlbach, Charles T. Beckman, and Douglas E. Lee, all of Ehrmann, Gehlbach & Beckman, of Dixon, for appellees Immanuel Lutheran Church of Dixon and Salvation Army.
    Wayne R. Whitmore, Jr., of Whitmore & Engels Law Office, of Mendota, for appellee Estate of Charlotte Herwig.
    Larry Johnson, of Ward, Murray, Pace & Johnson, P.C., of Sterling, for Estate of Robert W. Ramsdell.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiffs, Wesley B. Herwig, Kenneth Herwig, Evelyn Needham, Carrie Ramsdell, James W. Pankhurst, and Robert W. Ramsdell, brought an action for specific performance of a written settlement agreement dated December 20, 1976, which they made with decedent, Charlotte Herwig. The agreement involved the exchange of a life estate for a quitclaim deed. Plaintiffs sought execution and delivery of the quitclaim deed against the estate. Defendants, Dixon National Bank and Joel Johnson as co-executors of decedent’s estate, and Luella M. Gardner, Julia Wade, Jill McNeill, John Card, William Card, the First United Methodist Church of Dixon, Immanuel Lutheran Church of Dixon, and the Salvation Army, as residual beneficiaries under decedent’s will, claimed that the agreement between plaintiffs and the decedent was void for lack of consideration and barred by the statute of limitations. Therefore, defendants assert ownership of the property under the residuary clause of decedent’s will. Both parties filed motions for summary judgment in the trial court. The court’s final judgment favored defendants. We reverse and remand.

On March 31, 1930, William R. Herwig, and his wife, Minnie Herwig, executed a warranty deed conveying to their son, Harry R. Herwig, a parcel of property located in Lee County (Lee County property). A life estate was conveyed to Harry, and, upon Harry’s death, his “present wife” was to receive rentals, issues, income and profits of said lands for the remainder of her natural lifetime. The remainder in fee of the land was to pass to those heirs at law under the statute of descent of the State of Illinois in force at Harry’s death, with the exception that “said wife” shall not be counted as one of those heirs.

At the time of this deed’s execution, Harry’s wife was Blanche Herwig. Blanche died in 1952, and Harry married Charlotte Herwig. Harry died on January 15, 1976, leaving Charlotte as his sole heir. Excluding Charlotte, Harry was survived by his sisters, Anna Pankhurst, Bessie Ramsdell, and Carrie Ramsdell, Ms nephews, Wesley B. Herwig and Kenneth Herwig, and Ms niece, Evelyn Needham (the remainder-men).

On December 20, 1976, the remaindermen entered into an agreement with Harry’s widow, Charlotte Herwig. The agreement, wMch was recorded in Lee County on December 21, 1976, indicates that Charlotte “executed” a quitclaim deed on the remaindermen’s behalf in return for a life estate in the Lee County property. According to plaintiffs, the parties entered into the agreement in order to alleviate confusion that existed over the ownersMp of the Lee County property after Henry’s death.

Charlotte Herwig died on January 25, 1988. On September 12, 1988, the remaindermen filed a petition for an order directing the co-executors of Charlotte’s estate to execute a quitclaim deed in fulfillment of the prior agreement reached between Charlotte and the remaindermen. Defendants filed a petition to quiet title alleging that they should receive the Lee County property as beneficiaries under the residuary clause of Charlotte’s will. In addition, defendants set forth two affirmative defenses in response to the remaindermen’s claim to the property.

First, defendants asserted that the remaindermen lacked consideration to make the prior agreement with Charlotte because they never obtained an interest in the property through the 1930 warranty deed. Second, defendants argue that, notwithstanding the validity of the remaindermen’s agreement with Charlotte, more than 10 years have passed since performance was required on the contract and, therefore, plaintiffs were barred from bringing an action on the contract pursuant to section 13 — 206 (Ill. Rev. Stat. 1991, ch. 110, par. 13—206).

The trial court determined the language in the deed from William and Minme Herwig to Harry Herwig to be, as a matter of law, clear and unambiguous. According to the trial court, the language in the deed only restricted Harry’s “present wife” to a life estate. Since, at the time of the deed’s execution, Blanche was Harry’s “present wife,” the restriction did not apply to Charlotte, Harry’s second wife. Therefore, Charlotte took fee simple title to the Lee County property under the remaindermen clause of the deed because she was Harry’s sole heir. If Charlotte owned the property in fee simple, then the 1976 agreement failed for a lack of consideration because the plaintiffs were not in a position to grant Charlotte a life estate. Moreover, the plaintiffs could not claim, in good faith, that the 1930 warranty deed was somehow ambiguous and, therefore, consideration for the agreement rested in the settlement of a legitimate dispute. In light of this reasoning, the court held that plaintiffs lacked consideration necessary to enter into a quitclaim agreement with Charlotte in 1976 and denied plaintiffs’ petition for an order directing the co-executors to complete decedent’s contract to convey the Lee County property. The court did not consider the uncontroverted evidence regarding the intent of the grantors presented by plaintiffs. The court also granted defendants’ petition for declaratory judgment on the matter, granted defendants’ motion for partial summary judgment, and entered a final judgment in defendants’ favor.

On appeal, plaintiffs assert error in the trial court’s failure to find adequate consideration for the 1976 settlement agreement and error in the trial court’s grant of summary judgment in defendants’ favor. Before addressing these issues, we first examine defendants’ claim that regardless of the validity of the contract, its. enforcement is barred by the statute of limitations.

Citing section 13—206 (Ill. Rev. Stat. 1991, ch. 110, par. 13—206), defendants argue that plaintiffs’ action is time barred because it was not brought within 10 years after the cause of action accrued. According to defendants, the cause of action accrued on the date the agreement was signed in 1976, and the action had not been brought until September 12, 1988. Plaintiffs, on the other hand, dispute the application of section 13—206 to the instant case because that section relates to personal actions rather than actions which involve real property. Instead, plaintiffs argue for the application of section 13—103, which provides seven years to commence an action for the recovery of lands upon termination of an intervening estate. (Ill. Rev. Stat. 1991, ch. 110, par. 13—103.) Under this statute, the action would not accrue until Charlotte’s death. Plaintiffs also argue for the application of section 13—118, which provides a 40-year limitation for actions establishing an interest in real estate against the holder of the record title. Ill. Rev. Stat. 1991, ch. 110, par. 13—118.

We determine that plaintiffs’ action is not barred by the statute of limitations because the action did not accrue until Charlotte’s death. First, the agreement between Charlotte and the remaindermen does not provide a time frame within which Charlotte was to have delivered the quitclaim deed. Plaintiffs admit they cannot find the quitclaim deed, and they do not know whether Charlotte in fact ever executed and delivered such a quitclaim deed. However, without a clause demanding delivery of the quitclaim deed within a certain period of time, the remaindermen could not say that Charlotte had breached the contract until such time as her life estate terminated. The absence of the mentioned quitclaim deed does not mean that the agreement is invalid. The agreement amounts to a contract to convey an interest in land. The agreement establishes that the interest in this case will ripen upon termination of an intervening life estate. All that needed to be done in order for the remaindermen to acquire title was the accomplishment of a delivery and acceptance of the quitclaim deed. Gallagher v. Girote (1961), 23 Ill. 2d 170.

Generally, the statute of limitations begins to run when facts exist which authorized the bringing of an action. (Schreiber v. Hackett (1988), 173 Ill. App. 3d 129, 131.) In the present case, the remaindermen never demanded delivery of the quitclaim deed after signing the agreement, no specific time was stated for the delivery of the deed, and Charlotte did not give the remaindermen reason to believe that she would not deliver the quitclaim deed. Therefore, facts did not exist which authorized the bringing of an action until it was clear that a quitclaim deed would not be received, i.e., upon her death.

Second, as we have stated, this contract amounts to a settlement of ownership interests in real estate. Therefore, under either of the statutes cited by plaintiffs, the action would not yet be time barred.

We next address the trial court’s ruling that plaintiffs lacked consideration to make the 1976 agreement with Charlotte. Contrary to the trial court, we determine that the agreement was supported by sufficient consideration. The compromise of a disputed claim, even if that claim is not valid, wiU serve as sufficient consideration for the formation of a contract as long as that claim is made in good faith. Keller v. State Farm Insurance Co. (1989), 180 Ill. App. 3d 539, 546.

This appeal derives from plaintiffs’ opposition to a grant of summary judgment in defendants’ favor. The purpose of summary judgment is not to try the issues, but to determine whether any triable issues exist. (Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 416; Quinton v. Kuffer (1991), 221 Ill. App. 3d 466, 470.) A motion for summary judgment should be granted when the pleadings, depositions, and admissions on file, together with the affidavits, reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c); Balla v. Gambro, Inc. (1991), 145 Ill. 2d 492, 508.) An order granting summary judgment should be reversed if the evidence shows that a genuine issue of material fact exists or if the judgment was incorrect as a matter of law. (Quinton, 221 Ill. App. 3d at 471.) The trial court’s decision to grant or deny a motion for summary judgment is not discretionary. (Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 824.) Rather, the reviewing court must apply the de novo standard of review and consider anew the facts and law related to the case. (Shull, 223 Ill. App. 3d at 824; Quinton, 221 Ill. App. 3d at 471.) In the present case, the uncontroverted evidence concerning the written agreement between the plaintiffs and Charlotte establishes that the plaintiffs had a good-faith basis upon which to claim an interest in the property. Therefore, valid consideration existed for the formation of the 1976 settlement agreement. As a matter of law, we determine that summary judgment should have been entered for plaintiffs, rather than defendants.

We determine that, as a matter of law, valid consideration existed for the 1976 settlement agreement because a latent ambiguity in the 1930 deed gave rise to a valid claim regarding the contract’s meaning. A contractual provision is said to be latently ambiguous where extrinsic evidence must be used in order to show that language which appears on its face to be clear and unambiguous is actually uncertain in meaning and may refer to different subjects. (South Parkway Building Corp. v. South Center Department Store, Inc. (1958), 19 Ill. App. 2d 14.) We may consider extrinsic evidence in order to ascertain the existence of a latent ambiguity and resolve its meaning. (DeKalb Bank v. Purdy (1988), 166 Ill. App. 3d 709.) In general, a court should construe a grantor’s intention from the language of the deed itself. (Bean v. Boudreau (1987), 152 Ill. App. 3d 740, 742.) However, in construing a written instrument, a court may place itself in the parties’ position in order to understand their intent from the language used. South Parkway Building Corp., 19 Ill. App. 2d at 20.

When we place ourselves in the parties’ position in the present case, we find that the phrase “present wife” becomes a latent ambiguity when considered in the light of extrinsic evidence which tends to show that the grantors intended to keep the property in the family bloodline. The phrase, on its face, seems to refer to Blanche Herwig. However, in light of the intention described above, the phrase could be read to refer to a larger category of individuals, i.e., any of Harry’s “present” wives. According to the trial court, use of the phrase “present wife” clearly identifies the intent of the grantors to exclude any past or future wife of Harry Herwig. In the trial court’s view, the use of the phrase avoids possible ambiguity which could occur if Harry Herwig had married another woman named Blanche Herwig after the first Blanche Herwig died. In our view, this problem could more easily have been avoided by using middle initials and other identifying characteristics. However, if the true intent of the grantors was to keep the property in the bloodline, then their decision to use a more broad, descriptive phrase to identify the recipient of the subsequent life estate was a deliberate one. If interpreted to apply at the time of its reading, then the grantors’ intent would be fulfilled by preventing the vesting of a fee simple interest in any of Harry’s “present wifves].”

Once the trial court decided to reach outside the four comers of the deed in order to define Blanche as the “present wife,” it also should have examined, but did not, other credible evidence speaking to that definition. Had it done so, it should have considered plaintiffs’ uncontroverted evidence which indicated that the intent of the grantors was to keep the deeded property in the family bloodline. For example, language in the deed itself not only excludes Harry’s wife as a remainderman, but it also excludes any adopted children. These exclusions arguably indicate an intent to keep the property in the family bloodline, and, following this reasoning, one would expect that the grantors would also intend to exclude Harry’s future wives.

The trial court’s ruling as it presently stands would interpret the deed to exclude Blanche Herwig as well as any and all of his adopted children, but would not exclude those wives whom the grantors could not have known about when the deed was executed. This result is not a reasonable one if the grantors intended to keep the property in the family bloodline. Furthermore, in support of this position, plaintiffs assert that William and Minnie Herwig deeded five other plots of land to their other children, four of which used the exact language as that contained in Harry’s deed. Thus, the trial court’s interpretation would have the net effect of ascribing to the grantors a desire to deny a fee simple interest in the property to all of their children’s wives and any and all of their adopted children while, at the same time, permitting a fee simple interest in any unknown future wives their children may marry. We cannot see how the grantors would have such an intent from the facts in the present case, and plaintiffs, therefore, could argue in good faith that no such interpretation was intended. Therefore, sufficient consideration existed in the making of the 1976 settlement agreement because the remaindermen were involved in a disputed claim asserted in good faith.

In our view, the parties were on equal footing when they made the 1976 agreement. All the individuals involved had equal access to the 1930 deed to Harry Herwig, and all parties involved were represented by counsel. Furthermore, nothing on the record indicates that the remaindermen kept any information from Charlotte or somehow committed a fraud upon her. Therefore, it is unlikely that plaintiffs’ claim to the property completely lacked merit. It is apparent that Charlotte enjoyed her life estate under the terms of the agreement without incident and without attacking her ownership interest. Moreover, there is no evidence that plaintiffs exerted any undue influence on Charlotte in obtaining her signature on the agreement. Charlotte fully enjoyed the benefit of the agreement, and, thus, the residuary beneficiaries and the co-executors of Charlotte’s estate are estopped from denying the existence of that agreement or performing its obligations. Wasserman v. Autohaus on Edens, Inc. (1990), 202 Ill. App. 3d 229.

Therefore, we reverse the final judgment entered in defendants’ favor. We determine that the settlement agreement was supported by adequate consideration. We determine the statute of limitations is inapplicable. We direct the trial court to grant plaintiffs’ motion for partial summary judgment and to grant any further relief consistent with this opinion.

The judgment of the circuit court of Lee County is reversed, and the cause is remanded.

Reversed and remanded.

GEIGER and BOWMAN, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    ROSELYN M. GILMORE, a Minor, by and through her Father, Rodney Gilmore, Plaintiff, v. THE CITY OF ZION et al., Defendants-Appellants and Third-Party Plaintiffs (Zion School District No. 6, Third-Party Defendant-Appellee).
    Second District
    No. 2—92—0078
    Opinion filed December 9, 1992.

      Lynn D. Dowd and Marc F. Benjoya, both of Cassiday, Schade & Gloor, of Chicago (Timothy J. Ashe, of counsel), and Berle L. Schwartz, of Highland Park, for appellants.
    Wayne F. Plaza and David J. Bressler, both of Rooks, Pitts & Poust, of Wheaton (Timothy M. McLean, of counsel), for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Roselyn Gilmore, filed a complaint against the defendants, the City of Zion and Jimmie Jester (the City). Plaintiff alleged that a motor vehicle driven by Jester, an agent of the City of Zion, struck her as she crossed an intersection of two public highways adjacent to her elementary school. Plaintiff was seven years old on the date of the accident.

The City filed a third-party action for contribution against Zion School District No. 6, alleging the school district was negligent for failing to have a crossing guard present at the time plaintiff was injured. The school district moved to dismiss, alleging, inter alia, that it owed no duty to post a crossing guard at the intersection at issue. The trial court subsequently dismissed the third-party complaint pursuant to section 3—108 of the Local Governmental and Governmental Employees Tort Immunity Act. Ill. Rev. Stat. 1989, ch. 85, par. 3—108.

The City filed an amended third-party complaint for contribution, alleging a cause of action against the school district for wilful and wanton misconduct. Pursuant to another motion to dismiss filed by the school district, the trial court entered an order dismissing the amended third-party complaint for failure to state a cause of action.

The City then filed a second amended third-party complaint for contribution, again alleging a cause of action against the school district for wilful and wanton misconduct. The City premised the allegations in its second amended complaint upon the contention that the school district owed a duty to monitor the intersection in question at the time of plaintiff’s injuries. Specifically, the City alleged that the school district owned, operated, managed, maintained and controlled the school; that the school district knew that the volume and nature of traffic along 27th Street at the time plaintiff was injured rendered the intersection highly dangerous for six-year-old children to cross without assistance; and that it was reasonably foreseeable that a small child, such as plaintiff, ran a significant risk of being injured without the assistance of a crossing guard at the intersection at issue. Accordingly, the City asserted, the school district undertook a duty to provide a crossing guard at the intersection at the time plaintiff was injured.

The City further alleged that, with “conscious disregard” and “utter indifference” for the safety of plaintiff, the school district, inter alia, failed to perform its duty of having a crossing guard present at the time of the accident and instructed the crossing guard to leave the intersection notwithstanding that the school district knew or should have known that students would need assistance “even after the school day officially began.” According to the City, as a direct and proximate result of the school district’s wilful and wanton misconduct, plaintiff was injured. Based on these allegations, the City contended that it could pursue its rights of contribution against the school district.

The school district moved to dismiss the third-party action pursuant to section 2—615 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2—615), claiming that the City failed to state a cause of action. The school district contended that it owed no legal duty to place a crossing guard at the intersection in question at any time and, thus, could not be liable for contribution to the plaintiff. Alternatively, the school district moved to dismiss pursuant to section 2—619(a)(9) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a)(9)), contending that the City’s claim was “barred by other affirmative matter avoiding the legal effect of or defeating the claim.” The school district argued that the voluntary provision of a crossing guard at an intersection prior to the start of school did not impose a duty upon it to maintain a crossing guard at that intersection after school began. In support of this argument the school district attached the affidavit of plaintiff’s school principal, Roger Lemnus.

In his affidavit, Lemnus set forth that he was responsible for the assignment and" supervision of the crossing guards at the intersection in question. Lemnus further stated that on the date in question and at all other relevant times the school day at plaintiff’s school began promptly at 8:30 a.m. each morning. A school bell rang at 8:25 a.m. each morning indicating that any children on the playground or elsewhere outside the school premises should enter the building at that time. The school crossing guards were instructed to remain at their posts for an additional five minutes following this first school bell until a second bell rang at 8:30 a.m. each morning, indicating the official start of the school day. Based upon his investigation and the police report concerning the accident, plaintiff’s accident occurred .after the school day began at 8:30 a.m. on the date in question.

In response to the school district’s motion to dismiss the second amended complaint and the allegations concerning the facts surrounding the accident, the City filed with the court the police report relating to the accident. The police report did not contradict any of the allegations in Lemnus’ affidavit. The police report reflected that the accident occurred at 8:35 a.m. and that the police were notified of the accident at 8:36 a.m.

Prior to the court’s ruling on the motion to dismiss, the City filed a motion to compel the school district’s compliance with the City’s discovery request, asserting therein that the school district had refused to answer written discovery concerning the allegations in the third-party complaint. The court continued the City’s motion to compel pending its ruling on the school district’s motion to dismiss the third-party action.

After the parties had fully briefed and presented their oral arguments for the third time on a motion to dismiss filed by the school district, the trial court entered an order granting the motion and dismissing the second amended complaint with prejudice. The trial court further found that there was no just reason to delay enforcement or appeal of this final order. The City filed a timely notice of appeal from the trial court’s ruling.

On appeal, the City contends that the trial court erred in dismissing its second amended complaint, as it asserted a cognizable cause of action for contribution. In support of its position, the City argues (1) that the school district owed a duty to provide a crossing guard at the intersection in question at the time of the accident and (2) that the voluntary provision of a crossing guard at the intersection created a duty to maintain a crossing guard at that intersection. Additionally, the City maintains that the school district’s section 2—619 motion to dismiss (Ill. Rev. Stat. 1989, ch. 110, par. 2—619) was in reality a motion for summary judgment and, consequently, the court’s dismissal pursuant to section 2—619 was erroneous. Also, the City asserts that the trial court erred in refusing to permit written discovery on the contribution issues before dismissing the action.

The City first contends that the trial court erred in dismissing its second amended complaint, as the complaint asserted a cognizable cause of action for contribution against the school district. It is the City’s contention that its complaint set forth ample facts to support its theory that the school district’s acts or omissions, in failing to provide a crossing guard at the intersection at issue at the time the plaintiff was injured, were wilful and wanton. Thus, the City asserts, the court’s dismissal of its third-party complaint, pursuant to section 2—615 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2—615), for failure to state a cause of action was erroneous.

The City concedes that no recovery in contribution exists unless the school district has breached a duty owed to plaintiff. But, the City argues, the school district owed a duty to plaintiff to provide a crossing guard at the time of the accident. Conversely, the school district maintains that under Illinois law it owed no duty to plaintiff to provide a crossing guard at the intersection. We are in agreement with the school district.

Under the School Code, school boards are granted the power to employ school crossing guards “for the purpose of directing traffic upon school grounds and on or along streets and highways or portions thereof within a radius of one mile from such school grounds.” (Ill. Rev. Stat. 1989, ch. 122, par. 10—22.28a.) Although this statutory provision grants school boards the power to use crossing guards, the statute does not impose any duty upon the school boards to exercise this power. A school board has wide discretion in the exercise of its powers (Tyska v. Board of Education of Township High School District 214 (1983), 117 Ill. App. 3d 917, 923), and whether it exercises its power to employ a crossing guard at an intersection is solely within that discretion.

Although no statutory law imposed a duty upon the school district to provide a crossing guard at the intersection in question, the City also claims that such a duty has been imposed by common law. Relying on Lance v. Senior (1967), 36 Ill. 2d 516, the City contends that the allegations set forth in its second amended complaint satisfy the common-law duty analysis set forth by our supreme court in Lance. We cannot locate in Lance the material quoted and relied upon by the City in its brief. Moreover, we fail to see how Lance supports the City’s argument that as a matter of social policy a common-law duty to provide a crossing guard at the intersection in question should be imposed upon the school district.

As the school district correctly points out, social policy arguments for the imposition of a duty upon school districts are under the province of the Illinois legislature. In matters relating to the conduct of schools, the legislature and reviewing courts, pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, par. 3—108), have limited a school district’s liability to circumstances under which the school district is guilty of wilful and wanton conduct. The City contends, however, that the facts alleged in its second amended complaint presented “a classic scenario” of wilful and wanton conduct and, therefore, warranted a reversal of the trial court’s dismissal order. We do not agree.

To be wilful and wanton, an act must be done intentionally or committed under circumstances exhibiting a reckless disregard for the safety of others. (Bowers v. DuPage County Regional Board of School Trustees District No. 4 (1989), 183 Ill. App. 3d 367, 379.) This court has previously set out the requirements for pleading wilful and wanton misconduct:

“To sufficiently plead wilful and wanton misconduct, a plaintiff must allege facts demonstrating the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach. [Citation.] Fact pleading, as opposed to notice pleading, is required in Illinois; accordingly, a plaintiff must allege facts that are sufficient to bring his claim within the scope of the legally recognized cause of action. [Citation.] Only well-pleaded facts are admitted by a motion to dismiss, and the requirement that a complaint set forth facts necessary for recovery under the theory asserted is not satisfied, in the absence of the necessary allegations, by the general policy favoring the liberal construction of pleadings.” (Tijerina v. Evans (1986), 150 Ill. App. 3d 288, 291.)

A court must focus on the individual facts alleged in each case to determine whether they are sufficient to support a cause of action based on wilful and wanton misconduct. 150 Ill. App. 3d at 292.

In its second amended complaint, the City alleged that the school district caused and/or contributed to plaintiff’s injuries as a result of one or more of the following “willful and wanton acts and omissions”:

“(a) failed to have a crossing guard present at the time of the accident in question when it knew or should have known that students would be in need of a crossing guard to permit them to safely cross the street;
(b) instructed the crossing guards to leave their post notwithstanding that the defendant knew or should have known that students would be in need of a crossing guard even after the school day officially began;
(c) failed to have a crossing guard present at the scene of the occurrence to control and direct traffic and students when said defendant knew that the students required the assistance of a crossing guard to safely cross the street and gain access to the school, but consciously disregarded the need of the student and authorized, allowed or permitted the crossing guards to leave their post;
(d) failed to instruct parents, siblings or other individuals responsible for the safety of pupils of the age and experience of the plaintiff of the proper procedures for safely transporting such pupils to school property following the start of the official school day;
(e) failed to require parents, siblings or other individuals responsible for the safety of pupils of the age and experience of the plaintiff to have such pupils accompanied to school by a person of sufficient age and experience when it was likely that such pupil would arrive after the start of the official school day; and
(f) otherwise consciously disregarded the need to develop plans and procedures for providing for the safe crossing of 27th Street by pupils of the age and experience of the plaintiff at the time and place of plaintiff’s accident.”

The City’s complaint does not allege that the school district intentionally caused plaintiff’s injuries, nor does it, under the facts alleged, sufficiently establish the school district’s reckless disregard for plaintiff’s safety. While the complaint does allege that the school district “consciously disregarded” plaintiff’s safety in crossing the streets in question, the allegations, as stated, do not rise to the level of wilful and wanton misconduct. The City’s allegations that the school district instructed its crossing guards to leave the intersection in question after the school day officially began, despite knowing that some students might still need assistance, did not demonstrate that the school district had actually intended to injure plaintiff or had exhibited utter indifference or a reckless disregard for plaintiff’s safety. Nor were any of the other foregoing allegations sufficient to state a cause of action for wilful and wanton misconduct. Arguably, the allegations may have set forth a cause of action based on negligence; however, they did not allege sufficient facts upon which wilful and wanton misconduct could be based as was necessary here to avoid section 3—108(a) of the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 3—108(a)). Accordingly, the trial court’s dismissal of the City’s second amended complaint, pursuant to section 2—615 of the Code, for failure to state a cause of action was proper.

The City also alleged in its second amended complaint that liability should be imposed upon the school district because by voluntarily placing a crossing guard at the intersection in question, the school district assumed a duty to have a guard present at the time of the accident. As the school district points out, however, although liability can arise from the negligent performance of a voluntary undertaking, the scope of any duty is limited to the extent of the undertaking (Goebig v. City of Chicago (1989), 188 Ill. App. 3d 614, 618), e.g., in the instant case, to the period preceding the official start of the school day.

To support its position that the school district voluntarily assumed a duty of placing a crossing guard at the intersection at issue, the City relies on a Louisiana Appellate Court case, Barnes v. Bott (La. App. 1991), 571 So. 2d 183. Decisions from other jurisdictions are not binding upon Illinois courts. (Skipper Marine Electronics, Inc. v. United Parcel Service, Inc. (1991), 210 Ill. App. 3d 231, 239; People v. Lawrence (1991), 208 Ill. App. 3d 292, 295.) Moreover, we agree with the school district that the Barnes case is not applicable here. First of all, as the City acknowledges in its brief, Louisiana law differs from Illinois law. In determining whether the school board in Barnes was liable for a first-grader who was struck and killed as he attempted to cross an intersection where a crossing guard was normally located, the plaintiff, unlike the plaintiff here, had to prove that the school board’s conduct was a cause in fact of the plaintiff’s harm. Also, contrary to the instant case, the defendant in Barnes had knowledge of a prior accident involving another child who had crossed at the intersection in question. Further, unlike the situation presented here, the accident in question occurred during the normal duty hours of the crossing guard. Because of this we find the Barnes case unpersuasive.

In its motion to dismiss the school district sought, alternatively, to dismiss the City’s second amended complaint based on section 2— 619(a)(9) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a)(9)). In support of this alternative pleading, the school district submitted the affidavit of Roger Lemnus, plaintiff’s school principal. In his affidavit Lemnus set forth affirmative matters to defeat the City’s claim against the school district. Lemnus stated that at 8:25 a.m. each morning a school bell rang warning students outside the school premises to enter the building. At 8:30 a.m. a second school bell rang indicating that the school day had officially started. School crossing guards were instructed to remain on duty at their respective locations until the second school bell rang at 8:30 a.m. Lemnus further stated that, based upon his investigation and upon the police report he had received concerning plaintiff’s accident, the accident had occurred after 8:30 a.m.

In response to Lemnus’ affidavit, the City submitted the police report, which actually corroborated Lemnus’ understanding that the accident occurred after the start of school. The report indicated that the accident occurred at 8:35 a.m., 5 minutes after the start of school and 10 minutes after all students were to be in the building. Given the fact that the City, itself, through its submission of the police report confirmed that plaintiff’s accident occurred after the beginning of the school day, this issue of fact is not disputable, as the City claims. Thus, the City’s assertions that the school district’s motion to dismiss should not have been allowed on the basis of section 2—619(a)(9) is without merit. Lemnus’ affidavit included affirmative matters in the nature of a defense which negated the City’s cause of action. (See Brown v. Chicago Park District (1991), 218 Ill. App. 3d 612, 616.) We conclude that a dismissal based on section 2—619(a)(9) was proper. Given this finding, we need not address the City’s contention that the school district’s section 2—619 motion was seeking summary judgment.

Last, the City asserts that the trial court’s continuance of the City’s motion to compel discovery pending the court’s ruling on the school district’s motion to dismiss barred the City from utilizing discovery to allege an action for contribution against the school district. In its motion to compel the City specifically complained of the school district’s failure to comply with the City’s written discovery in the form of written interrogatories.

While we note that the record contains proof of service of such interrogatories, a copy of the interrogatories is not present in the record. The content of the interrogatories is necessary to a determination of whether the answers to such interrogatories would have aided the City in the development of facts in support of its alleged theory of liability. Without a copy of the interrogatories, we cannot determine whether the trial court erred in continuing the City’s motion to compel. Moreover, without a transcript of the hearing which, according to the record, was held on the City’s motion to compel we have no basis for reviewing the court’s determination that the motion be continued.

Any doubt arising from the incompleteness of the record must be resolved against the appellant, whose burden it is to provide a sufficient record to support a claim of error. (Frisch Contracting Service Co. v. Personnel Protection, Inc. (1987), 158 Ill. App. 3d 218, 221.) In the absence of a contrary indication in the record, this court will presume that the lower court acted properly. (158 Ill. App. 3d at 221.) A trial court is afforded great latitude in ruling on discovery matters, and this court will not disturb such a ruling on appeal absent a manifest abuse of discretion. (Maxwell v. Hobart Corp. (1991), 216 Ill. App. 3d 108, 110.) With no copy of the interrogatories and no transcript of the hearing conducted on the City’s motion to compel before us, we must presume that the trial court did not abuse its discretion in ruling that the City’s motion to compel should be continued pending the court’s ruling on the school district’s motion to dismiss.

For the reasons stated above, we find that the school district owed no duty to plaintiff to provide a crossing guard at the intersection in question. Even if, however, such a duty existed, the factual allegations of the City’s second amended complaint were insufficient to state a cause of action for wilful and wanton misconduct, as the City alleged here. At best, the complaint alleged mere negligence against the school district, and section 3—108(a) of the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 3—108(a)) immunizes the school district for the negligent conduct of “noncertificated employees” (see Jastram v. Lake Villa School District 41 (1989), 192 Ill. App. 3d 599, 604), such as crossing guards.

Since the trial court granted the school district’s motion to dismiss without stating its reasons but prefacing its order with the fact that the motion was brought “pursuant to Section 2—615, or in the alternative, Section 2—619,” we assume that the court granted the school district’s motion based on all of the issues raised in the motion. From our review of the record, we conclude that the court’s dismissal was proper under either section 2—615 or 2—619.

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

Affirmed.

WOODWARD and McLAREN, JJ., concur.