author: JUSTICE GREEN JUSTICE KNECHT,

text:
    GARY LYNN ROBERTSON, Adm'r of the Estate of Gary Lee Robertson, Plaintiff-Appellant, v. CRAIG OKRAJ et al., Defendants-Appellees.
    Fourth District
    No. 4 — 93—0157
    Argued August 24, 1993.
    Opinion filed September 16, 1993.
    KNECHT, J., dissenting.

      John D. McFetridge (argued), of Manion, Janov & Devens, Ltd., of Danville, for appellant.
    W. Scott Murphy (argued), of Erickson, Davis, Murphy, Griffith & Walsh, Ltd., of Decatur, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

On August 20, 1992, plaintiff Gary Lynn Robertson, administrator of the estate of Gary Lee Robertson, deceased, filed an amended complaint in the circuit court of Champaign County against defendants Craig Okraj, Robert Okraj, and Judith Okraj, following remand from this court. (Robertson v. Okraj (4th Dist. 1992), No. 4 — 91—0512 (unpublished order under Supreme Court Rule 23).) Plaintiff sought damages for the allegedly wrongful death of the decedent. On February 9, 1993, the circuit court entered an order granting defendants’ motion to dismiss the complaint, as amended, for failure to state a cause of action as to any defendant. Plaintiff appeals. We affirm.

Counts I, II, and III of plaintiff’s six-count amended complaint included allegations against each of the defendants that (1) on October 29, 1989, the decedent was a guest and invitee of the defendants at their home; (2) defendants had a duty to exercise reasonable care for the safety of decedent; (3) defendants provided decedent with alcoholic beverages, which decedent consumed, and he became intoxicated and unconscious; (4) while decedent was intoxicated and unconscious, decedent was removed from defendants’ premises by defendant Craig Okraj and others, was taken by automobile to an apartment occupied by decedent and certain third persons, and was abandoned; (5) Okraj’s last contact with decedent was the placing of decedent in an automobile; (6) the third persons, Gary Townsley and Todd Cooper, who also lived in the apartment, “deposited” the unconscious decedent on the floor of the apartment and subsequently placed him in bed; (7) Gina Bilaski and Cooper later heard decedent making “gurgling” or “snoring” noises; (8) defendants were negligent in (a) knowing decedent to be unconscious, carelessly and negligently placing him in a dangerous situation, i.e., abandoning him without medical assistance or medical attention; (b) failing to provide medical assistance for the decedent; and (c) failing to render treatment, assistance or first aid; and (9) as a result of defendants’ negligence, decedent died of aspiration of gastric contents.

Counts IV, V, and VI of the complaint alleged (1) defendants were hosting a party on October 29, 1989, and they were aware that the guests included persons who were over and those who were trader the age of 21; (2) defendants knowingly served beer and alcohol to all guests, without supervision, and without determining whether minors were consuming such beverages; (3) defendants had a duty to exercise ordinary care in adhering to public policy and all statutes and ordinances prohibiting the consumption of alcoholic beverages by minors; (4) defendants knew or should have known that drinking alcoholic beverages to such a state of intoxication as to cause the intoxicated person to experience coma created a strong likelihood of injury or death; (5) defendants knew that many of the guests were under the age of 21 and were showing the effects of intoxication, but they continued to distribute the alcoholic beverages to these guests; and (6) decedent, who was 18 years old at the time of his death, was a minor for purposes of consuming alcoholic beverages, but he consumed beer and straight grain “Everclear” alcohol and was permitted to continue to consume alcoholic beverages while already in a state of intoxication.

Plaintiff further alleged that defendants breached the duty to exercise ordinary care by negligently (1) entrusting alcoholic beverages to persons under the age of 21; (2) permitting the consumption of alcoholic beverages by persons trader the age of 21, including decedent; (3) failing to supemse the activities of the minors who were consuming alcoholic beverages; and (4) providing and permitting the continuous consumption of alcoholic beverages by guests under the age of 21, when such persons were already showing the effects of intoxication. Plaintiff alleged that as a direct and proximate result of one or more of the negligent acts and/or omissions, the decedent consumed alcoholic beverages resulting in his intoxication and ultimate death.

Plaintiff alleged that the defendants, after causing decedent’s intoxication, made no effort to determine the manner in which the decedent was planning to leave the premises, the decedent’s physical condition when he left the premises or what provisions were made for his health and safety. Plaintiff’s final allegation was that as a direct and proximate result of decedent’s intoxication, he became unconscious and comatose, and while in that condition, after leaving the party, died from aspiration of gastric contents.

In remanding this case, this court noted that, although it had initially affirmed the judgment of the circuit court in dismissing the complaint, the plaintiff had argued he could easily amend his complaint to allege a cause of action recognized in Cravens v. Inman (1991), 223 Ill. App. 3d 1059, 586 N.E.2d 367. Since Cravens was decided after the circuit court dismissed the appeal here, this court determined fairness to plaintiff would be served by allowing him to amend his complaint pursuant to Cravens.

The trial court subsequently allowed defendants’ motion to dismiss the amended complaint, stating that the facts of Cravens are so dissimilar to the case at bar that Cravens is inapposite. The court noted Cravens was limited to its own facts, and precedent required the conclusion that the defendants “did not owe a duty in the premises.” Accordingly, the court dismissed the complaint pursuant to section 2 — 615 of the Code of Civil Procedure. Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615.

In Fitzpatrick v. Carde Lounge, Ltd. (1992), 234 Ill. App. 3d 875, 877, 602 N.E.2d 19, 21, the court held that the Cravens court “recognized the existence of social host negligence liability for automobile accident injuries caused by an intoxicated minor driver.” The Fitzpatrick court emphasized that the holding in Cravens was limited to the precise facts alleged in plaintiff’s pleading. In Cravens, plaintiff’s minor daughter died from injuries she sustained in an automobile accident which occurred while the minor was a passenger in a motor vehicle driven by a friend, Rita Lenzi, who was also a minor. That plaintiff alleged (1) those defendants were negligent in serving alcohol to Lenzi at a social gathering at their home; (2) those defendants allowed Lenzi to become intoxicated and leave their home in an automobile; and (3) Lenzi thereafter drove the automobile in a reckless manner, resulting in a crash that caused the death of decedent.

The Cravens court repeatedly emphasized the extraordinary toll in personal injuries and property damage caused by alcohol-related automobile accidents. The court further noted that other States have recognized social host liability “where the host has served alcohol to a minor who becomes intoxicated, drives an automobile, and causes an injury-producing accident.” (Cravens, 223 Ill. App. 3d at 1070, 586 N.E.2d at 374.) In reversing the trial court’s dismissal of counts II and III of that plaintiff’s amended complaint, and remanding to the trial court, the Cravens court stated its holding was limited to those facts alleged by plaintiff and expressed no opinion with respect to any other factual situations.

This court allowed plaintiff the opportunity to amend his complaint solely for the purpose of alleging a cause of action recognized in Cravens. Plaintiff was unable to do so. Here, the intoxicated person was 18 years of age on the night he died, but did not drive an automobile, and his death did not result from injuries sustained in an automobile collision. Plaintiff has clearly failed to state a cause of action based upon the narrow holding of Cravens.

Moreover, plaintiff has failed to state a cause of action under any theory. Illinois generally does not recognize a common law cause of action against suppliers of liquor, whether they are commercial suppliers (Cunningham v. Brown (1961), 22 Ill. 2d 23, 174 N.E.2d 153) or noncommercial suppliers (Heldt v. Brei (1983), 118 Ill. App. 3d 798, 455 N.E.2d 842). Rather, the only remedy against suppliers of liquor is that provided by the Liquor Control Act of 1934 (Act) (Ill. Rev. Stat. 1991, ch. 43, par. 93.9 et seq.). The only exceptions have been where the owner of a dramshop was negligent for failing to protect its patrons from physical harm by persons on the premises (e.g., Lessner v. Hurtt (1977), 55 Ill. App. 3d 195, 197, 371 N.E.2d 125, 126) and where the owners of a tavern took an intoxicated, unconscious patron out of the building and placed him in his freezing car where he froze to death (Harris v. Gower, Inc. (1987), 153 Ill. App. 3d 1035, 1036-37, 506 N.E.2d 624, 625). The Harris court found liability because the defendants placed decedent in a position of peril where he would foreseeably be injured and not because they provided alcoholic liquors which he consumed.

The instant case does not come within any recognized exception to the limitation of liability for providing alcohol: the decedent was not harmed by a third person on defendants’ premises; defendants did not place decedent in a position where he would foreseeably be injured such as did the Harris defendants; and unlike in Erne v. Peace (1987), 164 Ill. App. 3d 420, 517 N.E.2d 1203, cited by plaintiff, defendants met their burden of protecting decedent while he was on their property, entrusting decedent to the care of his roommates, who took him to his own apartment and ultimately put him in his own bed.

Furthermore, the Act restricts dramshop liability to instances where a third person suffers damages as a result of the sale or gift of intoxicating liquors. (Jodelis v. Harris (1987), 118 Ill. 2d 482, 487, 517 N.E.2d 1055, 1058.) “Neither the Dramshop Act nor the common law exposes dramshops to liability when intoxicated patrons suffer injuries as a result of their own intoxication.” (Jodelis, 118 Ill. 2d at 488, 517 N.E.2d at 1058.) Nor has liability been found when the intoxicated person leaves the premises and is injured.

In Gora v. 7-11 Food Stores (1982), 109 Ill. App. 3d 109, 440 N.E.2d 279, the 17-year-old plaintiff purchased alcoholic liquors from defendant, became intoxicated and unconscious in a bank of snow, and suffered frostbite and related injuries. The court stated plaintiff had no remedy under the Act or common law even though plaintiff was a minor and a member of a protected class of persons whose purchase of liquor was statutorily prohibited.

Placing an even greater duty on a social host than would be placed upon a dramshop is not logical. Under prevailing precedent, except under the circumstances stated in Cravens, social hosts who furnish alcoholic beverages to a guest are not liable if the guest subsequently becomes intoxicated and injures himself or herself. See Estate of Ritchie v. Farrell (1991), 213 Ill. App. 3d 846, 848, 572 N.E.2d 367, 368.

Defendants owed no duty to decedent, who allegedly voluntarily became intoxicated, left the premises with third persons and subsequently died of an unforeseeable aspiration of gastric contents while he was in his own bed.

This court and all Illinois courts have repeatedly refused to recognize a cause of action against a social host who has provided liquor to an individual who dies after leaving a private party. (See, e.g., Flory v. Weaver (1990), 196 Ill. App. 3d 149, 553 N.E.2d 105.) Under the facts of this case, even a dramshop owner would not owe a duty to decedent.

Accordingly, for the reasons stated, the judgment of the circuit court is affirmed.

Affirmed.

COOK, J., concurs.

JUSTICE KNECHT,

dissenting:

I disagree with the majority and do not believe Cravens need be read so narrowly. Further, our opinion in Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity (1987), 155 Ill. App. 3d 231, 507 N.E.2d 1193, is supportive of plaintiff’s position.

We are asked to expand the present state of the law, but that request is not surprising given the decision in Cravens and societal concern with the abuse of alcohol by underage drinkers.

The questions of ultimate recovery, the merits of plaintiff’s position and whether the decedent’s friends or roommates somehow intervened and broke any chain of causation are not before us. This pleading and the motion to dismiss hinge on duty. Does a social host have a duty to refrain from furnishing intoxicants to underage guests? The answer is yes. The public policy and statutory law make that conduct a crime. Ill. Rev. Stat. 1991, ch. 43, par. 131.

Hazing is a Class B misdemeanor. (Ill. Rev. Stat. 1991, ch. 144, par. 221.) The violation of that statute was a significant part of our decision in Quinn. In my view, the legal prohibition against furnishing alcohol to minors is designed for the protection of human life, health and welfare. The violation of such a statute is prima facie evidence of negligence. (First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 9, 373 N.E.2d 1326, 1330.) The decedent here was 18 and was a member of the class of persons the statute was designed to protect. The decedent suffered the harm the statute was designed to prevent, i.e., he became intoxicated and died. Our decision in Quinn is logically and legally supportive of extending social host liability in this case.

Perhaps it can be argued the decedent did this to himself by choosing to consume vast quantities of alcohol. That argument does not address the issue of whether a cause of action has been stated against social hosts who — on the basis of the complaint — furnished alcohol to underage drinkers, took no precautions to prevent underage drinking, tacitly encouraged the drinking because of easy availability and then did nothing when decedent became intoxicated and unconscious. It is foreseeable and likely that bad things will happen when underage drinkers consume alcohol to the point of inebriation. What burden is it to prevent such an occurrence?

One might choose not to serve alcohol at large social gatherings where consumption cannot be regulated. One might choose to obey the law and refrain from furnishing alcohol to underage guests. Those steps are not burdensome. The activity was illegal and dangerous. Cravens may suggest the serious problem is limited to drunk drivers and the harm caused to third persons. Both Quinn and this case suggest the problem goes beyond the highways and intrudes into our schools, our social lives, our families and our homes.

Plaintiff may never recover. Plaintiff may not deserve to recover. There may be no liability. There may be an intervening cause. Those are matters for another day. For now, the plaintiff has stated a cause of action.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
      In re TRACY SERVIS, A Person Found Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Tracy Servis, Respondent-Appellant).
    Fourth District
    No. 4 — 93—0135
    Opinion filed September 9, 1993.
    Penelope S. Karnes, Jeff M. Plesko, and John B. Lower, all of Guardianship & Advocacy Commission, of Anna, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Respondent Tracy Servís appeals from a Sangamon County circuit court judge’s order involuntarily admitting him to a mental health facility. He argues the order must be reversed because no hearing was scheduled to be held within five days after his admission to the facility. We disagree and affirm.

I. Facts

A petition for the emergency admission of respondent was executed on January 25, 1993, and filed with the court on January 27. On January 29 the trial judge dismissed this petition, reasoning it had not been filed with the court within 24 hours after respondent was admitted to the McFarland Mental Health Center (McFarland) as required by section 3 — 611 of the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1991, ch. 91½, par. 3 — 611).

On the same date the trial judge filed a written order dismissing the petition. The order also stated “[respondent] shall be discharged.” A short time after dismissal of the initial petition, a second petition was filed in open court alleging respondent was subject to involuntary admission. An order for detention, examination, and diagnostic evaluation was entered the same day. The order directed respondent be evaluated by a clinical psychologist at McFarland. It did not indicate where respondent was to remain until the examination occurred. Upon the advice of his attorney, respondent did not attempt to leave McFarland after dismissal of the initial petition.

Respondent was evaluated by a clinical psychologist on January 29 at 2:15 p.m. and 9:30 p.m., and was found to be in need of immediate hospitalization. A hearing on the second petition was scheduled for February 5, 1993. Respondent’s attorney made an oral motion to dismiss this petition for several reasons, including that the second hearing was untimely pursuant to section 3 — 706 of the Code because it occurred more than five business days after respondent’s initial admission to McFarland (Ill. Rev. Stat. 1991, ch. 91½, par. 3 — 706) and because respondent never left McFarland after the dismissal of the initial petition. Consequently, counsel contended, respondent had one continuous admission at McFarland and the hearing on the second petition was not scheduled within five days of respondent’s admission.

The trial judge denied respondent’s motion to dismiss on all points raised by respondent. She reasoned the untimeliness argument failed because respondent was ordered discharged upon dismissal of the first petition. Therefore, there had been two admissions of respondent into McFarland. After a hearing, respondent was found to be a person subject to involuntary admission and was ordered hospitalized in the Department of Mental Health and Developmental Disabilities. This appeal followed.

II. Analysis

Section 3 — 706 of the Code provides, in pertinent part, when a respondent is admitted to a mental health facility a hearing must be set to be held within five working days after respondent’s admission. Ill. Rev. Stat. 1991, ch. 91½, par. 3 — 706.

Respondent’s initial admission to McFarland was an emergency admission upon certification pursuant to section 3 — 602 of the Code (Ill. Rev. Stat. 1991, ch. 91½, par. 3 — 602). The petition was filed on January 27, 1993, at 3:48 p.m. It was untimely because it was not filed within 24 hours after respondent’s emergency admission pursuant to section 3 — 611 of the Code, whether it was filed on January 26, 1993, at 1 p.m. as the State argued, or on January 25, 1993, at 1:30 a.m., as argued by respondent’s attorney.

The trial judge concluded respondent’s admission to McFarland on January 26 was reasonably clear and the petition was untimely based on this admission date and time. She further concluded because of this finding it was not necessary to determine whether the admission date was January 25. This petition was dismissed and respondent was ordered discharged before the new petition was ruled on.

Respondent contends on appeal he was not actually discharged on January 29, 1993. Therefore, whether he was admitted on the first petition on January 25 or January 26, more than five days expired before the hearing on February 5, 1993, on the second petition in violation of section 3 — 706 of the Code.

The hearing on the second petition was timely. The record indicates the initial petition was dismissed and respondent was ordered discharged on January 29 at approximately noon. During the 15 minutes which passed between respondent’s discharge and the entry of an order detaining him for examination, respondent’s attorney advised respondent not to leave the premises. Although perhaps impractical, respondent could have left the premises during the 15-minute period between his discharge and the hearing on the new petition. Respondent’s counsel’s advice was realistic. However, the fact respondent remained voluntarily does not compel this court to conclude he was not discharged.

Respondent further contends his argument is not based merely on the failure to discharge him, but upon the effect of the failure to discharge him because of the untimeliness of the subsequent proceedings. We find the hearing on the second involuntary admission petition was held in a timely manner on February 5, 1993. January 29 was a Friday. January 30 and 31, 1993, were a Saturday and Sunday, respectively. The relevant section of the Code requires the hearing within five days “excluding Saturdays, Sundays and holidays.” Ill. Rev. Stat. 1991, ch. 91½, par. 3 — 706.

Affirmed.

McCULLOUGH and COOK, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HOWARD PHINNEY, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0994
    Opinion filed September 2, 1993.
    Daniel D. Yuhas and Charles M. Schiedel, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Brown, State’s Attorney, of Pontiac (Norbert J. Goetten, Robert J. Biderman, and James Overholt, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant Howard Phinney appeals from a Livingston County circuit court judge’s dismissal of his petition for post-conviction relief. (Ill. Rev. Stat. 1989, ch. 38, pars. 122 — 1 through 122 — 8.) He contends this ruling was error because the trial judge’s role in a prior prosecution of defendant required the trial judge to recuse himself from defendant’s sentencing hearing. The supreme court has recently ruled otherwise. The trial judge was not bound to recuse himself from defendant’s sentencing hearing. Dismissal of defendant’s post-conviction petition was proper, and we affirm.

I. Facts

In March 1989, defendant was charged by indictment with burglary, attempt (burglary), and theft. (Ill. Rev. Stat. 1989, ch. 38, pars. 19 — 1, 8 — 4, 16 — 1.) Livingston County Associate Judge Charles H. Frank presided at defendant’s jury trial. In September 1989, a jury found defendant guilty of all three charges.

In October 1989, defense counsel filed a post-trial motion which alleged, in pertinent part, defendant was denied a fair trial because the trial judge had been prosecutor in criminal proceedings against defendant in 1979 in which defendant was convicted and a sentence of imprisonment was imposed. A hearing on defendant’s motion took place in November 1989.

Defense counsel contended it was improper for the trial judge to have participated in the present case. The motion sought a verdict of not guilty, or, in the alternative, a new trial. In argument, defense counsel conceded defendant had not remembered the trial judge from the earlier prosecution. Defense counsel argued fairness required a new trial and the case should be assigned to a different judge.

In ruling on the motion, the trial judge indicated he recalled defendant’s name from when he (the trial judge) served as a prosecutor. The trial judge also indicated he did not believe this factor would in any way affect his impartiality in hearing the present case. The trial judge sentenced defendant to an extended term of 14 years’ imprisonment for the burglary and 10 years for the theft and attempt (burglary) convictions.

On direct appeal, defendant did not raise an issue related to the trial judge’s prior prosecution of him. This court affirmed defendant’s conviction. The extended terms imposed for the attempt (burglary) and theft offenses were vacated and, pursuant to the power granted reviewing courts, this court sentenced him to terms of five years’ imprisonment of each offense. People v. Phinney (1990), 202 Ill. App. 3d 1116 (unpublished order under Supreme Court Rule 23).

In September 1992, defendant filed a pro se petition for post-conviction relief. The petition alleged defendant was denied effective assistance of appellate counsel because counsel did not raise the issue regarding the trial judge’s previous prosecution of defendant. It further alleged defendant asked his appointed appellate counsel to raise the issue and doing so would not have been frivolous or contrary to any appellate strategy.

A circuit court judge other than Judge Frank considered the petition and appointed counsel to represent defendant. Post-conviction counsel contended the trial judge’s refusal to recuse himself, at least before sentencing defendant, was the strongest argument for post-conviction relief and it was supported by a recent decision of the Second District Appellate Court in People v. Storms (1992), 225 Ill. App. 3d 558, 588 N.E.2d 486, rev’d (1993), 155 Ill. 2d 498.

The circuit court judge concluded Storms was wrongly decided and denied the petition as to the issue of the trial judge’s failure to recuse himself and as to all other points raised. This appeal followed.

II. Analysis

In 1979, Charles H. Frank was an assistant State’s Attorney in Livingston County. He prosecuted defendant on felony charges and obtained a guilty plea to the offenses of rape and armed violence. (Ill. Rev. Stat. 1979, ch. 38, pars. 11 — 1, 33A — 2.) Defendant was still serving a term of mandatory supervisory release related to these offenses when Judge Frank presided over defendant’s jury trial at issue in this appeal.

Defendant relies on Storms for his argument this court must reverse the denial of his post-conviction petition and remand the case with directions granting him a new sentencing hearing. In Storms the appellate court remanded the case due to the trial judge’s involvement as an assistant State’s Attorney in a 1980 prosecution of defendant for the offense of burglary. The same trial judge later participated in a probation revocation proceeding involving defendant. Storms, 225 Ill. App. 3d at 564, 588 N.E.2d at 491.

In September 1989, Storms was indicted for residential burglary. (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3.) A jury found defendant guilty. After the trial, but before post-trial motions were filed, defendant asked that the trial judge be disqualified from continuing to preside over defendant’s case because the trial judge had prosecuted defendant in 1980 and during defendant’s probation revocation.

A circuit court judge other than the one who presided over defendant’s 1989 conviction conducted a hearing on the disqualification request and denied it. The trial judge denied defendant’s request for a new trial. Storms, 225 Ill. App. 3d at 564-65, 588 N.E.2d at 491-92.

The appellate court vacated defendant’s 19-year prison term and remanded for a new sentencing hearing. The Storms court reasoned the trial judge’s failure to disqualify himself violated Rule 63(C)(1) of the Code of Judicial Conduct (134 Ill. 2d R. 63(C)(1)) and warranted a new sentencing hearing before another judge. Storms, 225 Ill. App. 3d at 565-67, 588 N.E.2d at 492-93.

Rule 63(C)(1) provides a trial judge should disqualify himself in a case in which his impartiality might reasonably be questioned. One of the circumstances under which disqualification is proper is when the trial judge served as a lawyer “in the matter in controversy.” 134 Ill. 2d R. 63(C)(1)(b).

The second district reasoned the trial judge should have recused himself because he played a meaningful role in prosecuting defendant for burglary in the 1980 proceedings. It reasoned further the trial judge’s participation as assistant State’s Attorney in the earlier proceedings was directly relevant to the sentencing proceedings in 1989 because defendant’s prior criminal record, including the 1980 conviction, could be presented in aggravation. This factor indicated the trial judge’s impartiality could reasonably be questioned. Storms, 225 Ill. App. 3d at 566, 588 N.E.2d at 492-93.

The Illinois Supreme Court reversed the second district’s ruling and rejected its reasoning. (People v. Storms (1993), 155 Ill. 2d 498.) The court concluded the trial judge in Storms was not required to recuse himself from the 1989 case because Rule 63 covers a judge’s previous service “in the matter in controversy,” meaning the case currently pending before the court. In order for the trial judge to be required to recuse himself, the trial judge would have to be involved as an attorney in the pending proceeding. Finally, the supreme court concluded there was no evidence in the record which indicated the trial judge would be influenced by proceedings which occurred 10 years earlier.

The trial judge in this case did not serve as an attorney in defendant’s 1989 jury trial. The judge was not involved as counsel in “the matter in controversy.” Moreover, defendant has provided nothing indicating the trial judge was influenced in his sentencing decision by his previous participation as an assistant State’s Attorney in a proceeding which occurred in 1980.

The trial judge did not err by refusing to recuse himself from defendant’s sentencing hearing. Defendant’s petition for post-conviction relief was properly dismissed.

Affirmed.

McCULLOUGH and LUND, JJ., concur.


text:
      In re K.S. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Cheryl Smith, Respondent-Appellant).
    Fourth District
    No. 4 — 92—0808
    Opinion filed September 9, 1993.
    Kristen H. Fischer, of Urbana, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and James Overholt, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Diana Lenik, of Urbana, guardian ad litem.

   JUSTICE KNECHT

delivered the opinion of the court:

Respondent Cheryl Smith appeals from the order of the circuit court of Champaign County placing guardianship of her children, K.S., A.S., and J.S., in the Department of Children and Family Services (DCFS), and custody of the children with Mark Smith, her former husband and the children’s biological father. Cheryl alleges the trial court abused its discretion in finding her to be unfit to care for the children, and it was in the best interests of the children to be made wards of the court. Cheryl additionally alleges the trial court abused its discretion in appointing Mark as the custodian of the children. We find the notice of appeal was prematurely filed and this appeal must be dismissed.

The children were found to be neglected at an adjudicatory hearing on August 17, 1992. The dispositional hearing occurred on September 24, 1992. The children were made wards of the court, their guardianship was placed with DCFS and their father was appointed custodian. The trial court then explained the respondent's right to appeal.

A docket entry on September 24, 1992, indicates, on motion of the respondent mother, the circuit clerk was directed to file a notice of appeal on her behalf and counsel was appointed; it further shows the assistant State’s Attorney was directed to prepare a written order consistent with the court’s ruling of this date. On September 25, 1992, a notice of appeal was filed by the circuit clerk. On October 1, 1992, a written dispositional order prepared by an assistant State’s Attorney was signed by the trial judge and filed.

The notice of appeal was filed after the oral pronouncement of the judge’s decision but prior to the entry of the written judgment. Oral pronouncements are not final, binding or appealable. The written judgment or the notation of record is the judgment of the court and not the oral pronouncement. (See In re Marriage of Brooks (1985), 138 Ill. App. 3d 252, 266-67, 486 N.E.2d 267, 276.) The notice of appeal was premature (134 Ill. 2d R 272), and we must dismiss the appeal. See Stoermer v. Edgar (1984), 104 Ill. 2d 287, 293-94, 472 N.E.2d 400, 402-03; In re B.D. (1991), 212 Ill. App. 3d 251, 570 N.E.2d 1184; Horvath v. Loesch (1980), 87 Ill. App. 3d 615, 620-21, 410 N.E.2d 154, 158-59; In re Marriage of Roberts (1980), 84 Ill. App. 3d 538, 541-42, 406 N.E.2d 1, 3-4; People v. Boston (1975), 27 Ill. App. 3d 246, 248, 327 N.E.2d 40, 41-42.

The trial court’s admonitions to the respondent mother had a sense of urgency. The judge, in pointing out the need to file a written notice of appeal within 30 days, noted the office of the circuit clerk was immediately next door to the courtroom. The notice of appeal was then filed on the same day as the dispositional hearing and the judge’s admonition despite the fact both the trial judge and the circuit clerk knew no written dispositional order had yet been prepared, signed and entered.

Perhaps this rush to file a notice of appeal was an effort to avoid the delay caused by the State in preparing a written dispositional order. However, this procedure does not hasten the appeal process, and thwarts the right of a parent to appeal. We note particularly the Second District Appellate Court’s decision in B.D., dismissing the parents’ appeal of the termination of their parental rights to a son and a daughter where the notice of appeal was filed before the written judgment order was filed. While litigants have the responsibility to exercise and preserve their own rights, in such important matters as parental rights and responsibilities, one would hope the court, counsel and circuit clerk would cooperate to minimize the possibility of confusion and premature appeals.

Appeal dismissed.

STEIGMANN, P.J., and McCULLOUGH, J., concur.


author: JUSTICE GREEN PRESIDING JUSTICE STEIGMANN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN G. COLCLASURE, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0900
    Opinion filed September 9, 1993.
    STEIGMANN, P.J., specially concurring.
    Daniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Gale C. Coil, State’s Attorney, of Sullivan (Norbert J. Goetten, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On August 5, 1992, following a jury trial in the circuit court of Moultrie County, defendant Melvin G. Colclasure was convicted of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 95½, par. 11 — 501(a)(2)). He was subsequently sentenced to a term of 12 months’ probation with conditions, including that: (1) he could not consume or possess any alcoholic beverages or illegal drugs during the term of his probation; (2) he could not enter any establishment whose primary purpose is the sale or distribution of alcohol; and (3) he was “not to remain resident in any residence where there is located alcoholic beverages.”

Defendant appeals only the imposition of the condition that he may not remain resident in any residence where there are alcoholic beverages. We affirm.

The evidence presented at trial indicated defendant was arrested for DUI based upon a deputy sheriff’s observation of defendant’s driving, the odor of alcohol on his breath, his inability to complete field sobriety tests, and a blood-alcohol level of .11.

A sentencing hearing was held on October 5, 1992. The only evidence presented was a drug evaluation report suggesting defendant had a “Level 2, Problematic Use (Significant Risk).” (See 92 Ill. Adm. Code §1001.410 (1992).) No evidence was presented in aggravation or mitigation.

On appeal, defendant challenges the special condition that he could not reside in a residence where any alcoholic beverages are located as improper, as having no relationship to the offense or to his rehabilitation.

Defendant recognizes that it is not uncommon for a court to order, as a condition of probation, that a defendant refrain from using alcoholic beverages or frequenting taverns. (People v. Brown (1971), 133 Ill. App. 2d 861, 864, 272 N.E.2d 252, 254.) In People v. Whittington (1980), 87 Ill. App. 3d 504, 409 N.E.2d 150, the court imposed, as a condition of probation, the requirement that the defendant “neither smoke, ingest nor otherwise use alcoholic beverages, forbidden drugs or marijuana.” (Whittington, 87 Ill. App. 3d at 505, 409 N.E.2d at 151.) That defendant was convicted of the offense of unlawful possession of a controlled substance. The appellate court said the condition was reasonably related to the underlying offense and to the defendant’s rehabilitation.

Defendant agrees such a condition of probation was relevant in Whittington. He claims here, however, the possession of alcoholic beverages or possible drinking by third persons should not determine whether he has complied with the conditions of probation.

Defendant claims he is indigent. He further claims that although he was living on his own at the time of sentencing, he obtained money for food by doing work for his mother and brother, and prior to his arrest, he had been living with his brother for about three weeks. Defendant argues that it would not be unlikely that at some point during the course of the year he is on probation that he would have to live with someone else because he could no longer afford to live by himself. Defendant maintains that if he again is living -with his brother, and his sister-in-law brought home a bottle of champagne with which to celebrate the Fourth of July, he would be placed in the position of violating his probation or becoming homeless.

Section 5 — 6—3.1(c)(15) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 6—3. l(c)(15)) provides that a court may require, as a condition of probation, that a defendant refrain from having any contact with certain specified persons or particular types of persons.

In addition, as in Whittington, similar conditions have been upheld. This case is unlike Brown, cited by defendant, where the defendant, who was employed as a bartender and tavern operator, was ordered as a condition of probation for aggravated battery to refrain from owning, operating, or working in a tavern. The appellate court found the condition to be an abuse of discretion, because there was no direct connection between the defendant’s employment and the crime charged.

This case is also unlike People v. Johnson (1988), 174 Ill. App. 3d 812, 815, 528 N.E.2d 1360, 1362, where the trial court was found to have abused its discretion in imposing a condition of supervision which required the DUI defendant to place an advertisement in a newspaper with her picture and an apology for her conduct. The court determined the condition had no relationship to the defendant’s rehabilitation and was designed to publicly humiliate the defendant.

Here, the condition imposed is directly related to the offense and defendant’s rehabilitation. The condition was not meant to embarrass or punish the defendant. The record indicated that defendant had a prior arrest for DUI, and his alcohol and drug evaluation indicated he has a serious problem concerning the use of alcohol. In addition, defendant denied that he had anything to drink on the night of the offense.

The court’s order that he refrain from residing in a residence where alcohol is located relates to defendant’s alcohol abuse and is designed to help defendant abstain from the use of alcohol.

Accordingly, for the reasons stated, the order of the trial court is affirmed.

Affirmed.

KNECHT, J., concurs.

PRESIDING JUSTICE STEIGMANN,

specially concurring:

Although I fully agree with the result the majority reaches, I disagree with the majority opinion’s distinguishing this case from the holding of this court in Johnson (174 Ill. App. 3d 812, 528 N.E.2d 1360). I believe that Johnson was wrongly decided and that this court should so state, eliminating any need to distinguish it.

In Johnson, defendant pleaded guilty to DUI and asked to be sentenced to supervision under section 5 — 6—1(c) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—1(c)). The trial court informed defendant that before it would grant her request, she would have to place an advertisement in a local newspaper showing her picture when booked for the DUI, together with an apology for her conduct.

This court held that the trial court’s conditioning supervision on the publication of the picture and the apology in the local newspaper was improper and wrote the following:

“The defendant in this case is a young lady with a history of being a good student, having no prior criminal record, and has been evaluated as not having an alcohol or drug problem. No accident or injury to others was involved in the charge now before the court.
We recognize that the trial judge may be attempting to put more bite, or punishment, in the supervision process. However, the effect of the publication appears to go beyond the intent of the statute and, possibly, adds public ridicule as a condition. Neither the trial court nor this court, without professional assistance, can determine the psychological or psychiatric effect of the publication. An adverse effect upon the defendant would certainly be inconsistent with rehabilitation and with the statutory provision allowing the court to require psychological or psychiatric treatment.” (Johnson, 174 Ill. App. 3d at 815, 528 N.E.2d at 1362.)

In my judgment, the above holding is egregiously, outrageously wrong, and this court should take advantage of the opportunity the present case provides us to overrule Johnson.

Assuming that public ridicule may have been a goal of the trial court’s action Johnson, what is wrong with that, especially when compared to the trial court’s authority to sentence the same defendant to as much as 364 days in jail? The language this court used in Johnson suggests that had the trial court imposed a jail sentence, that would have been just fine, as long as the trial court did not offend the defendant’s sensibilities when doing so.

In an effort to battle the carnage on our highways caused by drunk drivers, the courts of this State should utilize all reasonable sentencing options, and courts of review ought not priggishly stand over their shoulders, sniffing in disdain that the trial courts’ efforts somehow offend our sensibilities. As opposed to my colleagues, I applaud the trial court’s efforts in Johnson to utilize the old-fashioned concept of shame as a deterrent to others who might drive drunk. Just maybe they might think twice before committing that serious crime.

In support of my approval of the trial court’s action in Johnson, I note that the introductory language in section 5 — 6—3.1(c) of the Code that applied at the time of the sentencing in Johnson described the trial court’s authority to impose conditions of supervision as follows:

“The court may in addition to other reasonable conditions relating to the nature of the offense or the rehabilitation of the defendant as determined for each defendant in the proper discretion of the court require that the [defendant comply with the conditions that follow].” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 1005-6-3.1(c).)

Not only is this introductory language still present and unchanged in that section of the Code (see 730 ILCS 5/5 — 6—3.1(c) (West 1992)), but it also appears unchanged as the language introducing probationary conditions (see 730 ILCS 5/5 — 6—3(b) (West 1992)). Significantly, the Code currently provides, as it did in 1987, that a factor a trial court could properly consider in imposing sentence was whether “the sentence is necessary to deter others from committing the same crime.” (Emphasis added.) (730 ILCS 5/5-5-3.2(a)(7) (West 1992); Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(a)(7).) Clearly the trial court’s use of the newspaper ad in Johnson as a prerequisite for supervision was intended — and effectively so — to deter others from committing the dangerous crime of DUI. This court’s decision in Johnson improperly eliminated that effective weapon from the trial court’s arsenal.

Even more regrettable is the language in Johnson about how the defendant was “a young lady with a history of being a good student, having no prior criminal record, and has been evaluated as not having an alcohol or drug problem. No accident or injury to others was involved in the charge now before the court.” (Johnson, 174 Ill. App. 3d at 815, 528 N.E.2d at 1362.) If this court really understood the dangers underlying the crime of DUI, it would realize that whether a particular drunk driver kills or maims some other citizen is entirely fortuitous. Although this offense is called drunk driving, it should more accurately be called random assault with a deadly weapon upon every citizen of a given community who happens to be upon the highways (or even the sidewalks) at the time when the defendant is driving drunk.

The recklessness and the danger inherent in drunk driving makes that crime akin to one in which a person loads and cocks a .38 caliber revolver and then plays catch with it, throwing it high in the air. Imagine if the defendant in Johnson had done so and the gun dropped and discharged, but no one was shot despite the fact that several people were in the room at the time. In this hypothetical, would this court likewise have written, “No *** injury to others was involved in the charge now before the court”?

I further point out that in almost every case, sentencing courts evaluate “without professional assistance” how the various conditions of probation they impose upon convicted defendants will affect those defendants, whether those conditions require paying restitution, performing public service work, supporting dependents, et cetera. Yet, to my knowledge, other than in Johnson, no court of review has ever suggested that a trial court’s doing so could somehow be improper in the absence of “professional assistance” (whatever that is).

Last, even if an adverse effect upon a defendant might arise from the trial court’s imposing any of the above probationary conditions (or other conditions I did not mention), so what? The worst that could be said of such a sentence is that other judges might disagree that it should have been imposed. Nothing about an “adverse effect upon the defendant” would be “inconsistent with rehabilitation and with the statutory provision allowing the court to require psychological or psychiatric treatment.” Johnson, 174 Ill. App. 3d at 815, 528 N.E.2d at 1362.

Johnson is wrong. We should say so now and overrule it.


author: JUSTICE McCULLOUGH

text:
    ESTATE OF KEN HERINGTON et al., for the Use and Benefit of United States Fidelity and Guaranty Company, Plaintiffs-Appellants, v. THE COUNTY OF WOODFORD, Defendant-Appellee.
    Fourth District
    No. 4 — 93—0190
    Argued August 18, 1993.
    Opinion filed September 9, 1993.
    Rehearing denied October 19, 1993.
    Joseph J. Bembenek (argued), of Quinn, Johnston, Henderson & Pretorius, of Peoria, for appellants.
    William A. Allison, of Allison & Kelly, of Bloomington, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiffs filed suit for the use and benefit of United States Fidelity and Guaranty Company (USF&G) to recover sums paid by it under the Illinois Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1991, ch. 48, par. 138.1 et seq.) for death benefits and funeral expenses. The circuit court granted defendant’s motion to dismiss (III. Rev. Stat. 1991, ch. 110, par. 2 — 619) finding plaintiffs’ suit was time-barred by the one-year statute of limitations found in section 8 — 101 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1991, ch. 85, par. 8 — 101). We affirm.

On June 20, 1990, a road and bridge located in Woodford County collapsed and disintegrated. At the time of this collapse, plaintiffs Monte Winkler, Jerry Tomlinson, Scott Ireland, Mark Jay and Ken Herington were in a moving vehicle, crossing the bridge. All plaintiffs were employees of the Washburn Fire District and were acting within the course and scope of their employment at the time of the accident. All plaintiffs suffered serious injuries from this accident and Ken Herington died as a result of this accident.

On June 19, 1992, plaintiffs filed a complaint against the County of Woodford for the use and benefit of USF&G to recover sums paid pursuant to the Act. Plaintiffs’ complaint alleged defendant:

“(a) Carelessly, improperly and negligently failed to inspect said road and bridge for dangerous conditions;
(b) Carelessly, improperly and negligently failed to maintain said road and bridge;
(c) Carelessly, improperly and negligently failed to repair said road and bridge;
(d) Carelessly, improperly and negligently failed to act upon actual and constructive notice that said road and bridge was dangerous and unsafe.”

On December 2, 1992, defendant filed a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619), alleging plaintiffs’ complaint was barred by the one-year statute of limitations found in section 8 — 101 of the Tort Immunity Act. Plaintiffs’ response to the motion to dismiss alleged the complaint was not barred because the four-year statute of limitations found in section 13 — 214(a) of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 13 — 214(a)) applied. Plaintiffs further alleged section 13 — 214(a) of the Code was a specific statute which prevailed over the general one-year statute of limitations found in section 8— 101 of the Tort Immunity Act.

On January 29, 1993, the circuit court granted defendant’s motion to dismiss by docket entry “for failure to comply with Immunity Statute of Limitations.” Plaintiffs timely filed a notice of appeal.

Plaintiffs contend the resolution of this appeal essentially comes down to which statute of limitations applies to the complaint. If the one-year provision found in section 8 — 101 of the Tort Immunity Act applies, plaintiffs’ complaint is barred. On the other hand, if the four-year statute of limitations of section 13 — 214(a) of the Code applies, plaintiffs’ complaint is not time-barred.

Section 8 — 101 of the Tort Immunity Act provides:

“No civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued. For purposes of this Article, the term ‘civil action’ includes any action, whether based upon the common law or statutes or Constitution of this State.” Ill. Rev. Stat. 1991, ch. 85, par. 8 — 101.

Section 13 — 214(a) of the Code states:

“Construction — Design management and supervision. As used in this Section ‘person’ means any individual, any business or legal entity, or any body politic.
(a) Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 4 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission.” Ill. Rev. Stat. 1991, ch. 110, par. 13 — 214(a).

A complaint should not be dismissed, pursuant to section -2 — 619 of the Code, unless it clearly appears no set of facts can be proved which would entitle the plaintiff to recover. (Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360-61, 466 N.E.2d 224, 226.) In assessing a section 2 — 619 motion to dismiss, the trial court must take all facts properly pleaded as true. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 505, 485 N.E.2d 372, 374.) On review, the appellate court is concerned only with questions of law presented by the pleadings. Ronning Engineering Co. v. Adams Pride Alfalfa Corp. (1989), 181 Ill. App. 3d 753, 758, 537 N.E.2d 1032, 1035.

Plaintiffs assert that the case of Zimmer v. Village of Willowbrook (1993), 242 Ill. App. 3d 437, 610 N.E.2d 709, is dispositive of the issue presented here. In Zimmer, plaintiffs sued the Village of Willowbrook for flooding damage allegedly resulting from Willowbrook’s installation and enlargement of certain culverts near plaintiffs’ property. The trial court granted Willowbrook’s motion to dismiss pursuant to section 2 — 619 of the Code, finding that plaintiffs’ cause of action was time-barred by section 8 — 101 of the Tort Immunity Act. An issue presented by the appeal was “whether the limitations period set forth under section 8 — 101 of the Tort Immunity Act or section 13 — 214(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13 — 214(a)) applies in the action against Willowbrook.” Zimmer, 242 Ill. App. 3d at 440, 610 N.E.2d at 711.

In Zimmer, plaintiffs filed their first complaint against Willowbrook on August 8, 1989, and their second-amended complaint on January 11, 1991. The Zimmers alleged their property was flooded in the spring of 1987, spring of 1990, and the beginning of 1991 through the middle of June 1991. The Olechs, other plaintiffs in the case, claimed their property was flooded in the springs of 1987, 1990 and 1991. Willowbrook contended plaintiffs’ cause of action arose in 1981 when the culverts were replaced. The trial court agreed, deciding the one-year statute of limitations of section 8 — 101 of the Tort Immunity Act applied. Plaintiffs therefore had until the spring of 1982 to bring their cause of action. Plaintiffs contended section 13 — 214(a) of the Code was the applicable statute of limitations. Zimmer, 242 Ill. App. 3d at 441-42, 610 N.E.2d at 712.

The court first noted that well-established Illinois law holds that where there are two statutory provisions, one general and one specific, the particular provision prevails and this is especially true where the specific provision was enacted more recently. However, neither section 8 — 101 of the Tort Immunity Act nor section 13 — 214(a) of the Code could be considered a “general” statute. Section 8 — 101 of the Tort Immunity Act has been called a “special” statute which supersedes any pertinent general limitations period (Stanley v. Denning (1970), 130 Ill. App. 2d 628, 631, 264 N.E.2d 521, 524), and section 13 — 214(a) of the Code has been characterized as a “specific” statute of limitations (Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 196, 595 N.E.2d 561, 563). Zimmer, 242 Ill. App. 3d at 442, 610 N.E.2d at 713.

The court then stated:

“Therefore, in order to determine which limitations period controls, we must decide which of these two statutory provisions is more specifically applicable to this case. Section 8 — 101 provides a limitations period for civil actions commenced against a local entity. (Ill. Rev. Stat. 1991, ch. 85, par. 8 — 101.) Section 13 — 214(a) is a more recent statute of limitations than section 8 — 101, and it expressly applies to any ‘body politic’ which is sued in an action based on tort for an act or omission in the construction of an improvement to real property. Ill. Rev. Stat. 1991, ch. 110, par. 13 — 214(a).” (Zimmer, 242 Ill. App. 3d at 442, 610 N.E.2d at 713.)

The court concluded:

“Our supreme court has held that the language of section 13 — 214(a) clearly and unambiguously includes bodies politic within the ambit of the statute. (County of Du Page, 109 Ill. 2d at 151.) We determine that the legislature intended for section 13 — 214(a), which was enacted after section 8 — 101, to constitute a limited exception to section 8 — 101. Thus, actions against a body politic for an act or omission in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property must be brought within the limitations period set forth under section 13 — 214(a). Ill. Rev. Stat. 1991, ch. 110, par. 13 — 214(a).” Zimmer, 242 Ill. App. 3d at 443, 610 N.E.2d at 713.

In Zimmer, the court went on the address the issue of whether Willowbrook’s installation of the culverts constituted an “improvement” to real property. The court concluded the record on appeal provided an insufficient basis to determine, as a matter of law, whether the culverts constituted an improvement to real property so as to bring the case within section 13 — 214(a) of the Code. The cause was remanded to make that determination. If plaintiffs established the culverts were an improvement to real property, section 13 — 214(a) of the Code would apply; if not, section 8 — 101 of the Tort Immunity Act would apply. Zimmer, 242 Ill. App. 3d at 444, 610 N.E.2d at 714.

We need not decide which statute of limitations prevails here because we conclude plaintiffs’ complaint does not fall under the purview of section 13 — 214(a) of the Code. Plaintiffs alleged in their complaint that the location of the occurrence in question, specifically the road and bridge, involved the design, management, and supervision of construction of an improvement to real property. However, plaintiffs failed to allege any facts which would bring their complaint within the purview of section 13 — 214(a) of the Code. In Zimmer, the plaintiffs alleged the Village of Willowbrook installed and enlarged certain culverts which caused flooding on their property. Conflicting affidavits as to whether the newly installed culverts were larger in diameter thereby causing the flooding and the lack of evidence as to whether the culverts constituted an improvement to real property made it necessary to remand the case.

Here plaintiffs only alleged that they were driving across the bridge when it collapsed. They did not allege, for example, that there was construction work being performed on the bridge which weakened its structure. Moreover, they failed to file any affidavits to establish that there was construction of an improvement to real property. The mere fact that the bridge itself is an improvement to real property is insufficient to bring plaintiffs’ complaint under section 13— 214(a) of the Code.

Whether an item constitutes an improvement to real property is a question of law. The resolution of this question, though, is grounded in fact. (St. Louis v. Rockwell Graphic Systems, Inc. (1992), 153 Ill. 2d 1, 3, 605 N.E.2d 555, 556.) Because plaintiffs failed to allege sufficient facts to establish there was an act or omission in the design, planning, supervision, observation or management of construction or construction of an improvement to real property, section 13 — 214(a) of the Code is not applicable.

Accordingly, the statute of limitations found in section 8 — 101 of the Tort Immunity Act governs the time restraints relating to plaintiffs’ complaint. Plaintiffs had one year from the date the injury was received or the cause of action accrued to file their complaint. Plaintiffs’ complaint was filed two years after the accident and thus was time-barred. Therefore, the circuit court properly granted defendant’s motion to dismiss.

Affirmed.

STEIGMANN, P.J., and KNECHT, J., concur.


author: JUSTICE McCULLOUGH JUSTICE KNECHT,

text:
    FIRST OF AMERICA TRUST COMPANY, as Special Adm'r of the Estates of Lawrence A. Jensen, Deceased, et al., Plaintiff-Appellant, v. JAMES R. McMURRAY, JR., et al., Defendants-Appellees.
    Fourth District
    No. 4 — 93—0207
    Opinion filed September 2, 1993.
    KNECHT, J., dissenting.
    Thomas M. Harris, of Jerome Mirza & Associates, Ltd., of Bloomington, for appellant.
    John P. Lynaugh, of John P. Lynaugh, Ltd., and Philip Schickedanz, both of Springfield, for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The circuit court of Champaign County dismissed, with prejudice, counts V through XII of plaintiffs complaint alleging common law negligence against defendants Cochrane’s on Daniel, Inc., and Cochrane’s of Champaign, Inc. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615.) Plaintiffs appeal that dismissal urging this court to recognize a common law cause of action for persons injured as a result of the sale of alcohol to minors. We decline to create such an exception to the Illinois Dramshop Act (Ill. Rev. Stat. 1991, ch. 43, par. 135) and therefore affirm the trial court’s dismissal of plaintiff’s complaint.

On June 15, 1991, a one-car accident took the lives of Lawrence A. Jensen and Mark DiPlacido. Decedents, along with the driver of the automobile, James R. McMurray, Jr., had been at two taverns (defendants herein) in Champaign. McMurray was 19 years of age at the time of the accident, which is the minimum age required to enter these two taverns. He purchased and consumed alcohol while inside these two establishments. At no time while inside the taverns was he required to produce proof that he was old enough to purchase the alcohol. Plaintiff alleged McMurray became intoxicated as a result of consuming alcohol served by defendants’ employees. While driving home to Gibson City from Champaign, McMurray lost control of his car, skidded off the roadway and smashed into a utility pole fatally injuring decedents.

Plaintiff filed a multicount complaint against McMurray, the highway commissioner of Condit, the Condit Township and the two taverns, Cochrane’s on Daniel, Inc., and Cochrane’s of Champaign, Inc. The counts against the taverns alleged negligence in serving alcohol to McMurray as he was a minor and intoxicated. On December 11, 1992, the trial court granted Cochrane’s on Daniel’s motion to dismiss, finding:

“Defendant, Cochrane’s on Daniel has moved to dismiss counts V through XII of the complaint, which alleged negligence. Illinois Revised Statutes, chapter 43, section 135 provides the sole and exclusive remedy against this defendant notwithstanding that plaintiff argues for a legislative change.”

The trial court made a Rule 304(a) finding (134 Ill. 2d R. 304(a)) that there was no just reason for delaying enforcement or appeal of the December 11, 1992, order and plaintiff timely filed its notice of appeal.

Plaintiff has urged this court to recognize a common law cause of action for persons injured as a result of the sale or gift of alcohol by vendors to a minor. Plaintiff acknowledges that Illinois does not recognize actions grounded in common law negligence against liquor providers and the Dramshop Act provides the sole remedy to third persons injured by intoxicated persons. Therefore, despite plaintiff’s desire for this court to recognize a common law cause of action for negligence against vendors of alcohol, our decision in Puckett v. Mr. Lucky’s Ltd. (1988), 175 Ill. App. 3d 355, 529 N.E.2d 1169, supports the trial court’s order. While we recognize the First District Appellate Court’s decision in Cravens v. Inman (1991), 223 Ill. App. 3d 1059, 586 N.E.2d 367, in which the court held that social hosts are liable in negligence under certain circumstances for automobile accident injuries caused by intoxicated minor drivers, we do not believe that decision should alter our position here. Therefore, as we noted in Puckett, we find the decision to change the law is best left to the supreme court or the legislature. Thus, the decision of the circuit court of Champaign County is affirmed.

Affirmed.

GREEN, J., concurs.

JUSTICE KNECHT,

dissenting:

I respectfully dissent for all the reasons stated in Puckett (175 Ill. App. 3d at 358, 529 N.E.2d at 1171 (Knecht, J., dissenting)). Since that decision in 1988, the first district has decided Cravens. One of the most important qualities of the law is a consistent predictability coupled with the capacity to change. We have a duty to meaningfully consider the plaintiff’s request to recognize a common law cause of action. It does not create havoc or an impossible burden to tell sellers of alcohol that the negligent sale of alcohol to a minor who then injures a third person is actionable.

Liquor vendors who illegally sell alcohol to minors pose a danger to the health, safety and welfare of all our citizens. Illinois has made great strides in enforcement of the laws on driving under the influence of alcohol, and in restricting the driving privileges of citizens who abuse alcohol. Recognizing a limited exception to the common law rule of nonliability of dramshops when alcohol is sold to a minor who consequently causes injury to a third person would be another step in the right direction.


author: PRESIDING JUSTICE STEIGMANN

text:
    BOARD OF EDUCATION OF SESSER-VALIER COMMUNITY UNIT SCHOOL DISTRICT No. 196, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4 — 92—0151
    Argued August 19, 1992.
    Opinion filed September 2, 1993.

      John T. Taylor (argued), of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Decatur, and Merry C. Rhoades, of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Carbondale, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jerald S. Post, Assistant Attorney General (argued), of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Wanda Van Pelt (argued), of Illinois Education Association-NEA, of Edwardsville, for other respondent.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

The Board of Education (Board) of Sesser-Valier Community Unit School District No. 196 (District) appeals from findings and orders of the Illinois Educational Labor Relations Board (IELRB). (Sesser-Valier Community Unit School District 196, 8 Pub. Employee Rep. (Ill.) par. 1023, No. 91 — CA—0017—S (Illinois Educational Labor Relations Board January 28, 1992) (hereafter 8 Pub. Employee Rep. (Ill.) par. 1023).) The findings and orders followed complaints by the Sesser-Valier Education Association, IEA-NEA (Association).

In a nutshell, this case involves the District giving benefits to certain employees without bargaining with the Association. This action by the District indicates a misunderstanding of the District’s responsibilities under section 14 of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1991, ch. 48, par. 1714). In this opinion, we hope to make clear to school administrators and school boards that the Act changed the rules dealing with employees. One of these changes is that employee benefits may no longer be changed and special benefits can no longer be given without the opportunity for good-faith bargaining.

I. Background

In the fall of 1989, Wayne Samuels, a long-time employee and Association member, sought to take early retirement and to have the District pick up the cost of his adding three years’ military leave of absence credit (an estimated cost of $9,003). The superintendent of schools notified the Association president, who subsequently acknowledged the costs to be picked up by the District as recognized practice, but stated the military cost was a deviation and “a proper subject for the collective[-]bargaining process.” The District, without collective bargaining, agreed to pick up the estimated cost of $9,003.

In the spring of 1990, David Simpson, an Association member received (without prior bargaining with the Association) the approval of the District superintendant for a three-year leave of absence, with the District picking up Simpson’s health insurance and retirement contributions. The Association became aware of this arrangement after the fact.

In February 1988, Stan Douglas, a half-time teacher (guidance counselor), contacted the District about early retirement (with a three-year part-time contract of 75/180 days’ salary for certified work as a guidance counselor, plus $100-per-day clerical work at the beginning and end of the school year). Douglas’ suggestion was approved without Association approval or bargaining; the Association learned of the arrangement regarding Douglas at the April 1988 Board meeting when the Board approved it.

In October 1988, the Association wrote the Board president that the District’s arrangement with Douglas violated the parties’ bargaining agreement and the District had no authority to bargain with an individual about a certified position; the letter stated the Association planned “ ‘no action *** at this time, but we demand that the [Bjoard refrain from any further bargaining which violates our agreement and subverts the [Association.’ ” 8 Pub. Employee Rep. (Ill.) par. 1023, at IX — 96.

In July 1990, the Board approved a motion to rehire Douglas under the arrangement it had approved in 1988.

After a few years’ service as volunteer pompon sponsor, the Board awarded Colleen Cochran, who was not otherwise employed by the District and was not a member of the bargaining unit, a $500-per-year contract upon her request, without notice to the Association that this would be a paid position and without bargaining as to its terms.

In a decision dated January 28, 1992, the IELRB agreed that the District violated section 14(a)(5) and, derivatively, section 14(a)(1) of the Act (Ill. Rev. Stat. 1991, ch. 48, pars. 1714(a)(5), (a)(1)). The IELRB concluded as follows:

“The District violated Section 14(a)(5) and, derivatively, Section 14(a)(1) of the Act by bypassing the Association and entering into individual arrangements with Samuels and Simpson. The District also violated Section 14(a)(5) and, derivatively, Section 14(a)(1) of the Act by unilaterally changing the wages, hours[,] or terms and conditions of employment of Samuels, Simpson and Douglas. In addition, the District violated Section 14(a)(5) and, derivatively, Section 14(a)(1) of the Act by unilaterally subcontracting the pompon squad sponsor position and by unilaterally establishing the compensation for that position.” 8 Pub. Employee Rep. (Ill.) par. 1023, at IX— 96 through IX — 97.

The IELRB did not order that the District rescind the actions it had taken toward Samuels, Simpson, and Douglas. Instead, the IELRB ordered the District to cease and desist from (1) bypassing the Association; (2) refusing to bargain collectively by unilaterally changing wages, hours, or terms and conditions of employment; and (3) interfering with, restraining, or coercing employees in the exercise of rights guaranteed under the Act. It also ordered the District to take certain affirmative steps, including the rescission of the subcontracting of the pompon squad sponsor.

II. Analysis

Section 10(a) of the Act requires educational employees to bargain in good faith with the exclusive representative of the employees over wages, hours, and other terms and conditions of employment. (Ill. Rev. Stat. 1991, ch. 48, par. 1710(a).) Terms and conditions of employment that intimately and directly affect the work and welfare of employees include wages, health insurance, pension contributions, life insurance, medical insurance, and hours. (Vienna School District No. 55 v. Illinois Educational Labor Relations Board (1987), 162 Ill. App. 3d 503, 507, 515 N.E.2d 476, 479.) Unilateral changes by employers in these terms and conditions constitute an unfair labor practice because they deprive employees of the right to bargain. East Richland Education Association v. Illinois Educational Labor Relations Board (1988), 173 Ill. App. 3d 878, 528 N.E.2d 751.

Regardless of the District’s argument, its actions here were not consistent with past practices. These actions provided special benefits to certain employees. In this context, the past-practice exception should be narrowly construed so that it is not used to circumvent the bargaining requirement. Past practices suggested by the District were not equivalent to the economic benefits granted to these three men, Samuels, Simpson, and Douglas. In other words, as the IELRB noted, before approving the proposals of Samuels and Simpson, the District had never granted an employee credit for three years of service toward early retirement. 8 Pub. Employee Rep. (Ill.) par. 1023, at IX — 95.

If we have failed in the past, we now make clear that an educational employer violates the essential principle of collective bargaining when that employer bargains, or attempts to bargain, with an individual employee or employees with respect to wages, hours, and terms or conditions of employment. (See Medo Photo Supply Corp. v. N L R B (1944), 321 U.S. 678, 684, 88 L. Ed. 1007, 1011, 64 S. Ct. 830, 833.) We further hold that payment of retirement contributions is included within terms or conditions of employment.

The rationale for holding so called “direct dealing” an unfair labor practice was well stated by the National Labor Relations Board in Medo.

“ ‘To permit the employer to go behind the chosen bargaining agent and negotiate with the employees individually, or with their committees, in spite of the fact that they had not revoked the agent’s authority, would result in nothing but disarrangement of the mechanism for negotiation created by the Act, disparagement of the services of the union, whether good or bad, and acute, if not endless, friction, which it is the avowed purposed of the Act to avoid — or mitigate.’ In these circumstances, for the respondent to deal directly with its employees was to deny to the Union its statutory status and was, therefore, a refusal to bargain collectively.
The validity of this conclusion is not altered, as the respondent contends, by the mere fact that the direct dealing emanated from the employees rather than from the respondent. The gist of the respondent’s violation of the Act is its direct negotiations with the employees after they had designated, and the respondent had recognized, an exclusive bargaining representative. It is, therefore, immaterial from whence came the impulse to deal directly.” (Emphasis added.) (In re Medo Photo Supply Corp. (1942), 43 N.L.R.B. 989, 997-98, quoting N L R B v. Acme Air Appliance Co. (2d Cir. 1941), 117 F.2d 417, 420.)

The District contends that it conducted no “negotiations” because it accepted the proposals of Samuels and Simpson without alteration. The District argues that no authority holds that an employer cannot listen to employees without the exclusive representative being present. It further maintains there was no finding by the IELRB, nor were any facts presented by the Association, that the District used this method to secure an advantage in its bargaining relationship.

We conclude that the District here did more than merely listen to the individual employees; it also acted on their requests to affect the terms and conditions of their employment — without notice to and bargaining with the Association — to the economic advantage of the individual employees. The IELRB’s analysis of the employer’s argument on this point makes clear that the violation lies in bypassing the exclusive representative in dealing directly with individual employees on such matters. (8 Pub. Employee Rep. (Ill.) par. 1023, at IX — 93 through IX — 95.) This bypassing necessarily undermines the Association’s status as the exclusive bargaining representative of employees in the bargaining unit when individual employees can, by going directly to the superintendent with a proposal, secure for themselves benefits that the Association did not procure for them. The power to deal with individual members of the Association would give the employer the power to effectively undermine the Association, contrary to the intent of the Act.

Once the Association notified the employer that the military retirement credit contribution was a bargaining issue, waiver of the requirement did not take place by the Association’s representative’s attendance at the Board meeting. We will not require representatives to follow up bargaining demands with conflict at Board meetings. We agree with the IELRB that midterm bargaining was obligatory and that the arrangements made here were not consistent with past practices.

The District also argues that the unfair labor practice charge alleging a unilateral change in the arrangement with Douglas was untimely filed. (Ill. Rev. Stat. 1991, ch. 48, par. 1715.) An unfair labor practice charge must be filed within six months of the time the charging party was put on notice, actual or constructive, of the unlawful conduct. (Wapella Education Association v. Illinois Educational Labor Relations Board (1988), 177 Ill. App. 3d 153, 160, 531 N.E.2d 1371, 1375.) Usually, that time will be the date the change is unambiguously announced, not the date the change is implemented. (Wapella, 177 Ill. App. 3d at 160, 531 N.E.2d at 1375.) The District argues it retained Douglas’ services on a part-time basis for three years (1988-89, 1989-90, and 1990-91) in its 1988 agreement with him, and that there was no “negotiation” for entering into a separate agreement between the Board’s original action on April 11, 1988, and its action on July 23, 1990. The District therefore argues that any violation of the Act occurred on April 11, 1988; thus, the Association’s October 3, 1990, charge was untimely. Although Douglas’ 1988 proposal was that he be hired for a three-year period, the record does not show that the District’s action in April 1988 was to be final and effective for all three school years; if it had been intended to extend through the 1990-91 school year, there was, as the IELRB found, no reason for the Board to again approve the arrangement with Douglas in July 1990. The IELRB found the District’s July 1990 approval of the arrangement to be a separate action and an independent basis for an unfair labor practice, though it did find the Association’s direct dealing charge was untimely as to Douglas. (8 Pub. Employee Rep. (Ill.) par. 1023, at IX — 93.) We cannot say the IELRB erred in its determination.

The IELRB concluded the District violated sections 14(a)(5) and 14(a)(1) of the Act by unilaterally hiring a nonmember of the bargaining unit to fill the pompon squad sponsor position and unilaterally establishing the wages, hours, or terms and conditions of employment of that position. Unilaterally subcontracting work is an unfair labor practice when:

“ ‘[T]he contracting out involved a departure from previously established operating practices, effected a change in conditions of employment, or resulted in a significant impairment of job tenure, employment security, or reasonably anticipated work opportunities for those in the bargaining unit.’ ” (Emphasis added.) State Community College, 6 Pub. Employee Rep. (Ill.) par. 1067, at IX-197, No. 90-CA-0004-S (Illinois Educational Labor Relations Board, hearing officer’s recommended decision and order, April 16, 1990), quoting Westinghouse Electric Corp. (1965), 150 N.L.R.B. 1574, 1576, 58 L.R.R.M. 1257,1258.

Therefore, whether subcontracting is a mandatory subject of bargaining depends upon whether bargaining unit employees had a reasonable expectation of performing the subcontracted work. Fenton Community High School District 100, 5 Pub. Employee Rep. (Ill.) par. 1004, No. 87 — CA—0009—C (Illinois Educational Labor Relations Board November 29, 1988); see also Waverly Community Unit School District No. 6, 5 Pub. Employee Rep. (Ill.) par. 1002, No. 86 — CA—0014—S (Illinois Educational Labor Relations Board November 29, 1988) (bargaining-unit members must have reasonably anticipated that a position was a work opportunity).

The District argues it had no duty to bargain over the pompon sponsor position because that position was not a “reasonably anticipated work opportunity.” The District notes that (1) no member of the bargaining unit had ever held the position of pompon sponsor; (2) nonmembers of the bargaining unit filled some other extracurricular positions, including junior high basketball coach and assistant football coach; and (3) the collective-bargaining agreement did not list the position of pompon squad sponsor. The District contends that because the collective-bargaining agreement does not establish the pompon sponsor position to be an employment opportunity for members of the bargaining unit, the IELRB erred in holding the District had an obligation to bargain over terms and conditions of the pompon sponsor position.

The IELRB contends the collective-bargaining agreement contained a list of all paid extracurricular positions and a provision allowing the District to negotiate a salary with nonmembers of the bargaining unit “[w]hen the Board is unable to fill the above positions with teachers seventy-five (75) days prior to the beginning of school.” The IELRB concedes that the position of pompon squad sponsor had not been listed in the collective-bargaining agreement; however, it notes the position had never before been a paid position. The IELRB notes that the collective-bargaining agreement listed no other extracurricular paid positions. Buchanan testified that in the past unpaid extracurricular positions were added to the list as they became paid positions. The IELRB noted that when the positions of marching band director and scholar bowl sponsors became paid positions in 1988, they were added to the list and compensation collectively bargained for each. Moreover, the IELRB contends that the duties of pompon squad sponsor were not so unique as to require different treatment from that of the listed positions, given that the list already contained two cheerleading coach positions involving duties very similar to those of pompon squad sponsor.

In our opinion, the IELRB was correct in finding that once the pompon squad sponsor position became a paid position, it became a fairly claimable work opportunity for the District’s certified employees. In its opinion, the IELRB noted:

“At the District, paid extra-duty positions, with the exception of the pompon squad sponsor position, are listed in the collective[-]bargaining agreement, and certified employees are guaranteed priority in filling them. The District and the Association have previously negotiated about including extra-duty positions in the parties’ agreements and about compensation for the positions. This pattern of negotiation shows that the District’s certified employees could reasonably expect that a similar process would occur for the pompon squad sponsor position once it became a paid position.” 8 Pub. Employee Rep. (Ill.) par. 1023, at IX — 96.

III. Conclusion

For the reasons stated, we affirm the decision of the IELRB.

Affirmed.

KNECHT and LUND, JJ., concur.