author: JUSTICE McMORROW

text:
    THOMAS S. DOWEN, Plaintiff-Appellant, v. THOMAS E. HALL et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—87—1321
    Opinion filed November 9, 1989.
    Rehearing denied January 9, 1990.

      Joseph Michael O’Callaghan, of Chicago, for appellant.
    Stephen E. Sward, of Rooks, Pitts & Poust, Kiesler & Berman, and Victor J. Piekarski, Ellyn B. Dorf, and Michael Resis, all of Querrey & Harrow, Ltd., all of Chicago (John R. Garofalo and David J. Kiesler, of counsel), for appellees.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff Thomas Dowen (plaintiff) appeals from the trial court’s entry of summary judgment in favor of defendants Thomas E. Hall and others (defendants). Plaintiff maintained that defendants had been either negligent or wilful and wanton in their failure to warn him of the risk that he might sustain a paralyzing spinal cord injury if he attempted a flat dive into the shallow water off a pier, allegedly owned by defendants, that extended into a natural lake. Because we conclude that an attempt to execute a flat dive into the uncertain depths of muddy lake waters presents an open and obvious danger of paralysis to a reasonable adult of plaintiff’s age and experience, we find that, as a matter of law, defendants owed plaintiff no duty under the facts of this case. Accordingly, we affirm the trial court’s ruling.

The following uncontradicted facts derive from the pleadings and the excerpts of deposition testimony submitted by defendants in support of their summary judgment motions. Plaintiff was 23 years old when he was injured on June 6, 1981, by diving off defendants’ pier into Fox Lake. Some of the defendants owned a cottage on the lake and had invited plaintiff to spend a weekend there with them. The lake bottom was basically muck and sand at the time of plaintiff’s injury, and the lake water was muddy so that plaintiff could not see the bottom of the lake more than three feet from the shoreline.

Plaintiff had never been to the defendants’ cottage before the injury. Because the cottage was located on an island, plaintiff and his companions, including some of the defendants’ college-age children, were picked up at a marina and transferred by boat to the island in order to reach the cottage. They were transported by an 18-foot runabout-type boat and were delivered to the pier of defendants’ cottage. The pier extended about 100 feet from the shoreline into the lake. Plaintiff could not see the bottom of the lake as he stepped out of the boat onto the pier.

Plaintiff and his companions went directly to defendants’ cottage, where they ate dinner and socialized for approximately 2½ hours. Plaintiff and some of the group then went to the mainland for approximately two hours, returning to the cottage between 12:30 and 1 a.m. Plaintiff stayed in the cottage for approximately half an hour, and then decided to go swimming. He walked to the pier along an unlighted path. When he reached the pier, he heard some of his companions in the water. There were no lights on the pier, and no appreciable moonlight. There were no signs posted relating to the depth of the water or relating to diving off the pier. Plaintiff did not know how deep the water was off the pier, although he estimated that it was approximately four feet deep. At no time during the evening had any of his companions, which included some of the defendants, warned him about the depth of the water or the danger of diving off the pier, although defendants had so warned other guests in the past.

As plaintiff approached the edge of the pier, he could see figures in the water. He noticed a female swimmer, and a male figure who appeared to be either standing in the water or hanging onto the pier. Plaintiff trotted down the pier, took a few running steps, and attempted a shallow dive, i.e., a head-first dive horizontally into the water with his hands and arms extended in front of his head. He did not trip on the pier or lose his balance in executing the dive. Immediately after plaintiff entered the water, he felt his head hit the bottom of the lake. He is now permanently paralyzed from the accident.

At the time of the dive, the lake was approximately three feet four inches to three feet six inches deep at the end of the pier. The defendants were aware of this water depth at the time of the injury, and knew that this depth was approximately four to six inches more shallow than normal.

Plaintiff had executed many flat dives into the shallow ends of swimming pools prior to the incident, and he had seen many other people do the same. He was also acquainted with swimming in natural lakes and knew that their depths varied, that some are shallow, and that not all lakes are the same depth 100 feet from shore. Plaintiff decided to attempt a flat dive into the lake in order to avoid hitting the bottom of the lake. He had never seen anyone injured from executing a flat dive into a shallow body of water and was not aware that a person could suffer paralysis or a spinal cord injury from such a dive.

Plaintiff filed a complaint against the defendants alleging that he was an invitee on the property and that defendants’ failure to warn him of the danger of executing a flat dive off the end of the pier amounted to negligence (count I). Plaintiff also alleged that he was a licensee on the property and that the defendants’ failure to warn amounted to wilful and wanton misconduct (count II). The trial court entered summary judgment in favor of defendants with respect to both counts of plaintiff’s complaint, and he appeals.

Initially we conclude that the trial court properly entered summary judgment in defendants’ favor on count I of plaintiff’s complaint, in which plaintiff alleged that he was an invitee upon the defendants’ property. A social guest is not an invitee, but is instead a licensee. (Pashinian v. Haritonoff (1980), 81 Ill. 2d 377, 379, 410 N.E.2d 21.) Plaintiff’s deposition testimony reveals that plaintiff was invited upon defendants’ property as a social guest. As a result, plaintiff was not an invitee upon the defendants’ property. Contrary to plaintiff’s argument, Grimwood v. Tabor Grain Co. (1985), 130 Ill. App. 3d 708, 710, 474 N.E.2d 920, did not establish a different rule than that set forth by the Illinois Supreme Court in Pashinian. Plaintiff’s argument that the court should abolish the distinction between invitees and licensees was considered and rejected by the Illinois Supreme Court in Pashinian v. Haritonoff (1980), 81 Ill. 2d 377, 379, 410 N.E.2d 21.

A person who is invited upon the private land of another as a social guest is deemed a licensee. (Pashinian, 81 Ill. 2d 377, 410 N.E.2d 21.) A landowner owes a licensee only the limited duty to warn the licensee of concealed defects that are known to the owner, and his failure to do so constitutes wilful and wanton misconduct. (See, e.g., Northrup v. Allister Construction Co. (1987), 163 Ill. App. 3d 221, 223-24, 516 N.E.2d 586; O’Donnell v. Electro-Motive Division of the General Motors Corp. (1986), 148 Ill. App. 3d 627, 632-33, 499 N.E.2d 608; Zimring v. Wendrow (1985), 137 Ill. App. 3d 847, 853, 485 N.E.2d 478; Fuller v. Justice (1983), 117 Ill. App. 3d 933, 943, 453 N.E.2d 1133.) Thus, a “licensee must avoid open or obvious danger at his peril.” (Lorek v. Hollenkamp (1986), 144 Ill. App. 3d 1100, 1103, 495 N.E.2d 679.) Summary judgment is properly entered in favor of a defendant landowner when the undisputed facts of record, in conjunction with the reasonable inferences drawn therefrom, establish as a matter of law that the defendant owed no duty to the plaintiff because the danger causing the plaintiff’s injury was not concealed, but was open and obvious. See, e.g., Northrup v. Allister Construction Co. (1987), 163 Ill. App. 3d 221, 225, 516 N.E.2d 586.

In our view, the instant facts and the reasonable inferences which may be drawn from them demonstrate as a matter of law that the danger of paralysis resulting from a flat dive off a pier into muddy waters of uncertain depth in a natural lake is open and obvious to a reasonable adult. As plaintiff himself was aware, natural lakes are of uneven depth at various points, and the muddy waters of a lake prevent a person from discerning the depth of the water. Thus a reasonable adult in plaintiff’s position would recognize that an attempt to execute a head-first flat dive into the lake, without prior awareness of the depth of the waters, might result in severe injury from hitting one’s head on the lake bottom. The record here shows that plaintiff realized the importance of entering the water in such a way that he would avoid hitting his head on the lake bottom. Plaintiff argues that all reasonable adults believe a flat dive into shallow waters will not cause head injuries leading to paralysis. We disagree. In our view, the risk of paralysis from executing a flat dive from the pier into the uncertain depths of the natural lake was open and obvious in the instant case. Because the risk was open and obvious, defendants had no duty to warn plaintiff of that risk in the case at bar.

The decision by the Wisconsin Supreme Court in Scheeler v. Bahr (1969), 41 Wis. 2d 473, 164 N.W.2d 310, supports our conclusion. In Scheeler, the plaintiff had been invited to defendant’s lakefront cottage as a guest for recreational purposes. The plaintiff had never been to the cottage or the lake previously and suffered paralyzing injuries when he dove from a pier 70 feet from shore into murky water that was approximately three feet deep. In concluding that the trial court properly dismissed the complaint, the supreme court reasoned, “In the instant case, where the obvious, roiled, and muddy condition of the water made it impossible for a licensee to reasonably estimate the depth of the water, the observation of these conditions constituted notice that a potential hazard existed to one who wished to use the lake at that place for swimming or diving.” (41 Wis. 2d at 480, 164 N.W.2d at 313.) On this basis, the court determined that “despite the allegation of the complaint that he was unaware of the danger, *** as a matter of law the plaintiff must be held to knowledge and appreciation of the risk likely to be encountered by plunging head first into the unplumbed depths of the murky lake.” 41 Wis. 2d at 480, 164 N.W.2d at 313.

Contrary to plaintiff’s argument, Scheeler is not of questionable validity in light of the subsequent decision of Gould v. Allstar Insurance Co. (1973), 59 Wis. 2d 355, 208 N.W.2d 388. In that case, the court distinguished Scheeler, which involved the duty of a landowner to a licensee. The facts of Gould, in contrast, were controlled by Wisconsin’s “safe place” statute, which imposed a duty upon a landowner to keep the premises “as free from danger as the nature of the place would reasonably permit” without regard to the plaintiff’s status as a licensee. (59 Wis. 2d at 361, 208 N.W.2d at 392.) Le Poidevin v. Wilson (1983), 111 Wis. 2d 116, 330 N.W.2d 555, also did not overrule Scheeler, since the issue in Le Poidevin did not pertain to whether the landowner failed to warn of a concealed danger in the lake waters.

The case of Clark v. Lumbermans Mutual Insurance Co. (Fla. App. 1985), 465 So. 2d 552, also supports our decision that defendants owed plaintiff no duty to warn him in the case at bar. In Clark, the 21-year-old plaintiff, who was a good swimmer, sustained paralyzing injuries when he attempted to execute a flat dive from a shoreline into what the plaintiff estimated was approximately four feet of water. In concluding that the defendants had not breached a duty to warn the plaintiff under ordinary negligence principles, the court reasoned that the lake contained no “hidden danger” because plaintiff was “well aware of its relatively shallow depth [citation] [and] *** was aware of the danger of diving into shallow water.” (465 So. 2d at 555.) The court concluded that there was no “harmful condition” in the waters “since the ‘harmful condition’ was in fact obvious to [plaintiff], who indisputably possessed sufficient maturity to appreciate the danger.” (465 So. 2d at 555.) See also Smith v. City & County of Den ver (Colo. 1986), 726 P.2d 1125 (en banc) (risk of paraplegia from diving off boulders into river is readily apparent danger of which property owner has no duty to warn); Markowitz v. Arizona Parks Board (Ariz. App. 1984), 705 P.2d 937 (danger of diving off cliff into waters of unknown depth open and obvious); Switzer v. Dye (Fla. App. 1965), 177 So. 2d 539 (under attractive nuisance doctrine, danger of paralysis from diving off pier into natural lake open and obvious to reasonable 12-year-old child).

The cases cited by plaintiff to support his argument that defendants owed him a duty to warn of the dangers of diving off the pier are distinguishable from the case at bar. None of the cases to which plaintiff refers involves an adult licensee who chose to dive head first into a body of natural water of uncertain depth. Ford v. Wilson (1989), 184 Ill. App. 3d 374, 540 N.E.2d 1, Leonard v. Pitstick Dairy Lake & Park, Inc. (1984), 124 Ill. App. 3d 580, 464 N.E.2d 644, and Bartlett v. Heersche (Kan. 1969), 462 P.2d 763, involved a landowner’s duty under ordinary negligence principles to protect children from foreseeable injuries not open and obvious to the children. Deibert v. Bauer Brothers Construction Co., Inc. (1989), 188 Ill. App. 3d 108, and O’Rourke v. Oehler (1989), 187 Ill. App. 3d 572, involved a landowner’s duty under ordinary negligence principles to protect adult invitees from foreseeable injuries, regardless of whether the danger was open and obvious to the invitee. Corbin v. Coleco Industries, Inc. (7th Cir. 1984), 748 F.2d 411, and Howard v. Poseiden Pools, Inc. (1986), 133 Misc. 2d 874, 508 N.Y.S.2d 834, pertained to a manufacturer’s strict product liability with respect to its duty to protect against injuries from use of swimming pools. Miller v. United States (7th Cir. 1979), 597 F.2d 614, involved government landowner liability under a specific “safe premises” statute that imposed a duty under ordinary negligence principles, and the court determined, without considering the question of open and obvious danger, that the landowner committed acts of ordinary negligence when the landowner failed to adhere to its own safety procedures requiring the posting of “no swimming or diving” signs. The case at bar, in contrast, involves a private landowner’s duty to refrain from wilful and wanton misconduct resulting from an alleged failure to warn of known dangers on the premises. The landowner in the instant case claims no duty to warn because the danger was open and obvious. Davis v. United States (7th Cir. 1983), 716 F.2d 418, Stephens v. United States (C.D. Ill. 1979), 472 F. Supp. 998, and Skaggs v. Junis (1960), 27 Ill. App. 2d 251, 190 N.E.2d 731, are factually inapposite, because the landowners’ liability in those cases was premised on their failure to warn of a concealed danger— submerged objects in the water of which the landowners had prior knowledge. Skaggs also involved the issue of foreseeability of injury to a child, as did Hendricks v. Peabody Coal Co. (1969), 115 Ill. App. 2d 35, 253 N.E.2d 56, and Hanson v. Christensen (Minn. 1966), 145 N.W.2d 868. The cases of Melendres v. Soales (1981), 105 Mich. App. 73, 306 N.W.2d 399, and Radloff v. State (1982), 116 Mich. App. 745, 323 N.W.2d 541, involved the intentional nuisance doctrine, where a landowner created artificial hazards which should have been corrected or brought to the attention of their invitees. The court in Hager v. Etting (Penn. 1979), 408 A.2d 856, did not consider whether the danger of diving from a pier into a natural lake was an open and obvious danger. Lastly, the landowner’s liability in negligence for failure to keep premises in reasonably safe condition for invitees who were using a diving board to enter a swimming pool was at issue in Pleasant v. Blue Mound Swim, Club (1970), 128 Ill. App. 2d 277, 262 N.E.2d 107, City of Fort Worth v. Barlow (Tex. App. 1958), 313 S.W.2d 906, and Gray v. Briggs (1932), 259 Mich. 440, 243 N.W. 254.

We also do not agree with plaintiff’s assertion that the “combination” of defendants’ pier with the shallow water of the natural lake changed the obvious nature of the risks associated with diving into the lake. In our view, defendants’ pier did not create a “new risk” which plaintiff was incapable of appreciating. The risk of striking the bottom of the lake during the dive existed with or without the pier. See Scheeler v. Bahr (1969), 41 Wis. 2d 473, 164 N.W.2d 310; Clark v. Lumbermans Mutual Insurance Co. (Fla. App. 1985), 465 So. 2d 552.

Plaintiff further maintains that this court should apply the principles of the Premises Liability Act (Ill. Rev. Stat. 1987, ch. 80, pars. 301 et seq.) to the case at bar, although plaintiff acknowledges that the Act does not apply retroactively to the instant cause since plaintiff’s accident occurred before the effective date of the statute. (See Northrup v. Allister Construction Co. (1987), 163 Ill. App. 3d 221, 222, 516 N.E.2d 586; Cerniglia v. Ferris (1987), 160 Ill. App. 3d 568, 575, 514 N.E.2d 792; O’Donnell v. Electro-Motive Division of the General Motors Corp. (1986), 148 Ill. App. 3d 627, 632-33, 499 N.E.2d 608 (Act cannot be applied retroactively).) We decline plaintiff’s invitation to apply the Act retroactively sub silentio in the case at bar.

Plaintiff also argues that the defendants bore a greater duty of care because his injuries occurred in the lake and the lake was not defendants’ property. Where the use of adjacent land is reasonably incident to the use of the landowner’s property, the landowner’s degree of care with respect to the adjacent property is the same as the degree of care owed by the landowner with respect to his own property. (See, e.g., Harris v. Union Stockyard & Transit Co. (1975), 29 Ill. App. 3d 1072, 331 N.E.2d 182; Seipp v. Chicago Transit Authority (1973), 12 Ill. App. 3d 852, 299 N.E.2d 330.) Applying this principle to the case at bar, defendants owed plaintiff the same standard of care (i.e., that owed to a licensee) with respect to plaintiff’s use of both the lake and the pier, since his use of the lake was reasonably incidental to the use of the defendants’ pier.

For the reasons stated, we conclude that defendants owed no duty to plaintiff, their licensee, to warn of a danger that was open and obvious. Accordingly, we do not consider the parties’ remaining arguments.

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

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    EULA JOHNSON, Plaintiff-Appellant, v. THE DEPARTMENT OF PUBLIC AID et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—86—3516
    Opinion filed November 22, 1989.

      Hayt, Hayt & Landau, of Evanston (Barry J. Novak, Martin Z. Craig, and Paul A. Grabowski, of counsel), for appellant.
    Neil E Hartigan, Attorney General, of Springfield, for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff-appellant, Eula Johnson (Johnson), appeals from an order of the circuit court of Cook County which affirmed the decision of the Illinois Department of Public Aid (IDPA), denying Johnson’s application for medical assistance for the months of July and August of 1985. We reverse and remand.

Johnson was hospitalized at Jackson Park Hospital Medical Center on July 29, 1985. On September 19, 1985, Johnson’s daughter, Kimberly Johnson, submitted an application for medical assistance for the months of July, August, September and October on Johnson’s behalf. Kimberly, the hospital and its attorneys submitted copies of Johnson’s bank book, paycheck stubs, utility bills and other documents to establish eligibility for medical assistance. Neither the county nor IDPA informed Johnson that she could reduce her assets before the date of decision on her application in order to qualify for medical assistance.

On October 28, 1985, the county caseworker denied Johnson’s application because her savings account balance was $92 above IDPA’s asset disregard level of $1,500. By the end of August 1985, Johnson had incurred $15,698.65 in medical bills. The county did not employ a resource spend down procedure or consider Johnson’s incurred medical expenses when determining eligibility. Johnson’s attorney contacted the caseworker on October 31 to request that a decision on the application be delayed until Johnson could reduce her assets; however, the caseworker informed him that the application had already been denied. Johnson appealed, and an administrative hearing was conducted on February 11, 1986. In its final administrative decision, IDPA affirmed the county’s denial of benefits because Johnson’s savings account balance exceeded the allowed asset disregard amount on the date that eligibility was determined. Johnson sought administrative review, and the circuit court reversed IDPA’s denial of medical assistance for the months of September and October 1985, but affirmed denial of medical assistance for the months of July and August 1985. This appeal followed.

On appeal, Johnson argues that IDEA erred when it failed to employ a resource spend down procedure to determine her eligibility for medical assistance. In Hession v. Illinois Department of Public Aid (1989), 129 Ill. 2d 535, 539, the supreme court held that IDPA must employ a resource spend down procedure and consider the amount of an applicant’s incurred medical expense as well as his or her assets when determining eligibility for medical assistance.

Therefore, the circuit court’s order affirming IDPA’s denial of medical benefits for July and August 1985 must be reversed and this cause must be remanded for a redetermination of Johnson’s eligibüity.

Accordingly, the order of the circuit court affirming IDPA’s denial of medical benefits for the months of July and August 1985 is reversed and this matter is remanded for a redetermination of Johnson’s eligibility for medical assistance in a manner consistent with this opinion and the Hession decision.

Reversed and remanded with instructions.

FREEMAN, P.J., and WHITE, J., concur.


author: JUSTICE McNAMARA

text:
    GERALD D. HINES INTERESTS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Patrick Heneghan, Appellee).
    First District (Industrial Commission Division)
    No. 1—89—0273WC
    Opinion filed November 9, 1989.
    Rehearing denied January 8, 1990.

      Robert B. Hess, of Freeborn & Peters, of Chicago, for appellant.
    Michael W. Rathsack, of Chicago (Neal B. Strom, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Claimant, Patrick Heneghan, sought worker’s compensation benefits after injuring his shoulder and head while working for respondent, Gerald D. Hines Interests. An arbitrator awarded $445.34 per week for 35 weeks as temporary total disability benefits and found that the disabling condition had not yet reached a permanent condition. The Industrial Commission (Commission) affirmed that award, and the circuit court of Cook County confirmed the Commission’s decision. Hines appeals, contending that claimant fell while using an unsafe method to enter his work area merely because he was afraid to tell his employer he had locked his keys in the room. Consequently, Hines urges that claimant’s injury resulted from a personal risk and that the Commission’s award was either error as a matter of law, or against the manifest weight of the evidence.

Claimant worked as an engineer for Hines in Three First National Plaza in Chicago. He operated the heating and air-conditioning unit in the subbasement. At 5 p.m. each day, claimant had to adjust the unit to avoid damage to the machinery when one-half of the building’s fans shut down. On December 29, 1986, claimant met with his supervisor, chief engineer Jim Collins, from 3 p.m. to 5 p.m. for his annual review. His prior work evaluations had been poor. Among other things, he had been admonished for not providing proper environmental control in the building. His.March 1986 evaluation was poor. In August 1986, he was warned that he had better find another job by year’s end. The December 29, 1986, evaluation, however, was improved, and claimant was elated.

Following the meeting with Collins, claimant returned to the subbasement to make the 5 p.m. adjustments, but discovered he had locked his keys in the subbasement and could not gain access to the room. Claimant had previously entered the room through the hatchway located between the basement and the subbasement. The hatchway is 20 to 30 feet from the subbasement floor, and measures about 7 feet by 4 feet. It is used to raise and lower equipment to the subbasement because there is no access from the street.

Claimant hooked an industrial mop bucket onto an electric hoist to lower himself into the room. A janitor helped him. After being lowered six feet, claimant realized it would not work. Several people tried to pull him up, but claimant fell, injuring his head and shoulder. He next remembered people in the hatchway yelling at him to open the subbasement door because they could not get in to help him.

Claimant stated that there were alternatives he did not use, including breaking into a glass key box for extra keys. Claimant, however, wanted to avoid any repercussions from his employer for locking himself out of the subbasement. He “felt silly” and embarrassed because he had just received his first good evaluation minutes earlier. Claimant carried a radio, but could not contact another engineer because he was the only engineer on duty. Management personnel had keys, but they usually left at 5 p.m. Electric strike plates controlling the locks can be turned off, but the strike on that door did not work. He did not want to call Collins at home.

Collins testified that claimant could have called security to have the electric door strikes released. One door strike did not work, but the other door strike was operating. Moreover, security could have contacted management to get a key. In addition, each engineer had access to a glass key box which could be broken open to get another key. Moreover, the machines would not have suffered expensive bearing damage if the fans were not shut down unless it happened on a daily basis. Claimant had been disciplined once before, however, for not properly operating the equipment. To perform his duties adequately, claimant was to get to the machines each day at 5 p.m. or as soon as practicable.

The arbitrator viewed the scene of the accident. He found that claimant’s acts were not purely personal, and although negligent, were still within the scope of his employment. The arbitrator concluded that claimant’s injuries arose out of and in the course of his employment. The Commission adopted the findings and decision of the arbitrator. The trial court, in a memorandum opinion, stated that the findings of the Commission were supported by the evidence, and that, as a matter of law, the finding that an employee’s negligence did not remove him from the purview of the act was correct. The court confirmed the Commission’s decision, and Hines appeals.

To be compensable, an employee’s injury must result from some risk connected to the employment. (Archer Daniels Midland Co. v. Industrial Comm’n (1982), 91 Ill. 2d 210, 437 N.E.2d 609.) Whether an act of employment contributed to the cause of the injury can be a mixed question of fact and law. The Commission’s decision will be set aside only if the factual findings are contrary to the manifest weight of the evidence (Chicago Transit Authority v. Industrial Comm’n (1975), 61 Ill. 2d 78, 329 N.E.2d 198), or if the conclusions of law are contrary to the law of the State. See Material Service Corp. v. Industrial Comm’n (1973), 53 Ill. 2d 429, 292 N.E.2d 367.

The key facts, as found by the Commission, establish that claimant acted negligently in choosing the hatchway as a route to the subbasement, to avoid looking foolish to his boss after having just received his first favorable job evaluation. However, claimant clearly intended to gain entry to the subbasement solely for the purpose of fulfilling his employer’s orders to reach the area between 4:55 and 5:05 p.m. so as to make the necessary adjustments to avoid causing damage to the chillers and other machinery and also to save energy dollars.

The question of law, therefore, is whether an employee in this factual setting has placed himself in such a position that the injury results from a risk purely personal to the employee and not incidental to or connected with what the employee has to do in fulfilling his duties. (Fisher Body Division, General Motors Corp. v. Industrial Comm’n (1968), 40 Ill. 2d 514, 240 N.E.2d 694.) Hines maintains that claimant “decided to do something by which only he would benefit, and something which was not for the benefit of his employer.” In taking this risk, he had only his interest in mind, and the risk was not undertaken to further the interests of his employer. We do not agree.

The Commission found that claimant, although using needlessly dangerous entry into the subbasement, was acting consistent with what his employer had wanted him to do as part of his daily routine. The Commission rejected the argument that claimant’s acts were purely personal. It found that claimant was acting consistently with instructions to be in the subbasement at a designated time. Thus, we reject Hines’ factual argument that claimant’s purpose in acting “was not for the benefit of his employer.”

Once that weU-supported factual finding is made, the legal question is whether an employee acting negligently and against the employer’s orders is precluded from recovering under the act. It has long been recognized that one of the act’s objectives was to do away with defenses of contributory negligence or assumed risk. Recklessly doing something persons are employed to do which is incidental to their work differs considerably from doing something totally unconnected to the work. (Mount Olive & Staunton Coal Co. v. Industrial Comm’n (1934), 355 Ill. 222, 189 N.E. 296.) It matters not how negligently the employee acted, if at the time he was injured he was still within the sphere of his employment and if the accident arose out of it. Brooks Tomato Products Co. v. Industrial Comm’n (1924), 311 Ill. 207, 142 N.E. 451.

Claimant here did not follow instructions to break open the glass key box, seek out security, or contact management when a problem arose. However, violating a direct order is not sufficient to remove the employee from the scope of employment as long as the employee remains within the sphere of his work. (A.L. Randall Co. v. Industrial Comm’n (1922), 305 Ill. 558, 137 N.E. 435; see also Chadwick v. Industrial Comm’n (1989), 179 Ill. App. 3d 715, 534 N.E.2d 1000.) As a matter of law, therefore claimant’s negligence and failure to follow direct orders did not remove him from the scope of his employment. We hold that the Commission did not err in its findings of fact or its conclusions of law in awarding claimant benefits for his injuries.

Hines’ reliance on Orsini v. Industrial Comm’n (1987), 117 Ill. 2d 38, 509 N.E.2d 1005, and Curtis v. Industrial Comm’n (1987), 158 Ill. App. 3d 344, 511 N.E.2d 866, is misplaced. In Orsini, the risk was not incidental to the employment since the employee was injured while working on his personal automobile during work hours, and thus, the act was of a personal nature solely for his own convenience. Here, claimant obviously was not entering the subbasement or adjusting the heating and air-conditioning unit as a matter of personal convenience or benefit.

In Curtis the injury did not occur in the course of his employment where, during lunchtime, the employee was pouring waste gasoline into barrels to take home for his own use. The employee in Curtis, unlike claimant here, was in a place and performing an act which had no connection with his duties as a truck driver, and instead was engaged in a self-benefiting activity not within the scope of his ordinary duties.

For the foregoing reasons, the judgment of the circuit court of Cook County, confirming the decision of the Industrial Commission, is affirmed, and the cause is remanded to the Commission for further proceedings pursuant to its decision.

Judgment affirmed; cause remanded for further proceedings.

BARRY, P.J., and WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.


author: JUSTICE LINN

text:
    THERESA B. MURPHY, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellee.
    First District (4th Division)
    No. 1—88—2095
    Opinion filed November 22, 1989.

      Raymond P. Bartel, of Glenview, for appellant.
    George N. Leighton, Interim General Attorney, and William G. Clark, Jr. & Associates, Ltd., both of Chicago (William G. Clark, Jr., and llene Davidson Johnson, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Theresa B. Murphy, brought an action against the Chicago Transit Authority (CTA) to recover damages for injuries she sustained in an accident with a CTA bus. Defendant successfully moved to dismiss the complaint on the grounds that plaintiff had failed to give the CTA proper notice of the claim within six months of the incident and also that she had failed to file the action within one year, as required by section 41 of the Metropolitan Transit Authority Act (Ill. Rev. Stat. 1987, ch. 111⅔, par. 341). On appeal Murphy contends that the trial court erred in its interpretation of section 41 and that the court further erred in not applying principles of estoppel to the CTA’s attempt to defeat the suit on timeliness grounds.

We affirm.

Background

On May 12, 1986, Murphy was riding a bicycle when she was injured in an accident with a CTA bus. Her counsel mailed a letter, first class, to the CTA claims manager at the Merchandise Mart in Chicago, following directions allegedly given to plaintiff’s attorney over the telephone. The CTA denied receiving the letter. However, Murphy’s attorney and physician each sent written documents in support of her claim to the CTA, which the CTA acknowledged receiving. In papers filed in the trial court, Murphy’s attorney described several telephone calls he had with a claims manager. The CTA only admits to conversations taking place in February and March 1987, after the expiration of the six-month period for filing notice of intent to sue.

On June 4, 1987, Murphy filed a negligence lawsuit against the CTA. In lieu of answering, the CTA filed a motion to dismiss under section 2—619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—619).

At the initial hearing on the CTA’s motion, Judge Hoffman ruled that Murphy’s notice failed to comply with the requirements of section 41, which provides that within six months of the accrual of the cause of action, any person who is planning to sue the CTA “shall file in the office of the secretary of the Board and also in the office of the General Attorney for the Authority either by himself, his agent, or attorney, a statement, in writing, signed by himself, his agent, or attorney, giving the name of the persons to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred and the name and address of the attending physician, if any. If the notice provided for by this section is not filed as provided, any such civil action commenced against the Authority shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further suing.” Ill. Rev. Stat. 1987, ch. 111⅔, par. 341.

Judge Hoffman did not rule on the issue of estoppel, but instead allowed the parties to file supplemental briefs on the question of whether the CTA was estopped from raising the statute of limitations.

Judge Quinn heard argument on the estoppel issues on June 2, 1988, and held in favor of the CTA. Accordingly, he dismissed Murphy’s action, with prejudice.

Opinion

Murphy asserts that Judge Quinn precluded her from presenting her estoppel claim on the six-month notice issue. According to her, Judge Hoffman’s ruling that she did not give the CTA notice within six months was entirely separate from the question of whether .the CTA should be estopped from denying that it received timely notice of her claim or from asserting the one-year limitations period for filing suit. Therefore, Murphy contends Judge Quinn improperly relied on Judge Hoffman’s prior ruling as barring her from raising an equitable estoppel on the issue of notice (as distinct from the one-year filing requirement).

The CTA, on the other hand, asserts that Judge Quinn’s order of February 23, 1989, settles all of Murphy’s arguments and is well grounded in law. Regarding the notice issue, the CTA points out that even if Murphy had given actual notice of her claim to the CTA, case law clearly holds that such notice is insufficient as a matter of law. (E.g., Housewright v. City of LaHarpe (1972), 51 Ill. 2d 357, 361, 282 N.E.2d 437, 440; Dunbar v. Reiser (1976), 64 Ill. 2d 230, 356 N.E.2d 89 (purpose of statutory notice is to notify governmental entity that plaintiff is about to commence suit for civil damages).) Section 41 by its terms requires the written notice to be filed in the office of the secretary of the board and also in the office of the general attorney for the Authority. In the pending case, plaintiff’s letter was not so filed, as it was simply mailed to “Claims Manager” at the Merchandise Mart. The CTA denies even receiving the letter, which was not mailed by certified mail.

Under these circumstances, we find no error in Judge Hoffman’s initial ruling that the statutory notice requirement was not met. (See Shortt v. City of Chicago (1987), 160 Ill. App. 3d 933, 514 N.E.2d 3 (notice of intent to sue sent to corporation counsel instead of city clerk, as required by Local Government and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 1—101 et seq.), was fatally defective).) Nor do we find error in Judge Quinn’s determination that the CTA was not estopped from asserting the lack of notice. It is true that in some instances the failure to give proper notice may be cured, such as when a plaintiff files the actual complaint within the six-month period. (Saragusa v. City of Chicago (1976), 63 Ill. 2d 288, 348 N.E.2d 176.) We are not aware of any cases, however, that recognize an estoppel based on the CTA’s mere receipt and acknowledgement of information or documents pertaining to a claim when the statutory notice is defective and the lawsuit has not been filed within six months.

Contrary to Murphy’s assertion, Judge Quinn did not curtail her presentation of argument and evidence in support of the estoppel issues. Her attorney's affidavit attributed his misdirected mailing of the notice of claim to the instructions he was given by the CTA claims manager over the telephone. He also stated that in the months of November and December 1986, February, March, and April 1987 he spoke to the claims manager, who assured him “everything was okay and would be taken care of.” Finally, Murphy produced evidence that the CTA had received materials from her treating physician, including a letter in which the CTA told the doctor that it had no report of the incident but that it would process the doctor’s claim upon receipt of certain records.

Taking these allegations in the light most favorable to Murphy, we nevertheless conclude that they fall short of the type of conduct that gives rise to estoppel. It may seem harsh that a person cannot rely on an agent of the CTA to give accurate information on processing a claim. However, section 41 puts the burden upon the claimant to ascertain her rights and to comply with the statutory prerequisites for maintaining a lawsuit against the CTA.

Apart from the notice issue, the lawsuit itself must be commenced within one year from the date of the injury. In the pending case, it was not. Murphy’s request to be relieved from complying with this statute of limitations is based on the same reasoning advanced with regard to the notice question. Her attorney states that the CTA claims manager misled him by acting as if the claim was being processed and lulling him into a false sense that the claim had been accepted and would be settled.

The cases do not support Murphy’s position. In Searcy v. Chicago Transit Authority (1986), 146 Ill. App. 3d 779, 497 N.E.2d 410, a case in which an estoppel defense survived a motion to dismiss, the plaintiff had given timely notice of her intent to file suit within six months from the date of her injury. At issue was whether she had made such a showing under the facts to allow a jury to determine whether the CTA should be estopped from asserting the one-year statute of limitations. There, the CTA’s claims adjuster had given the plaintiff extensive assurances that her claim would be settled, that she did not need an attorney, that she would be reimbursed for all of her medical expenses and lost wages, and that her case would be settled regardless of the duration of her injuries. The plaintiff had expressed specific concerns about the approach of the one-year filing deadline but had been repeatedly assured that her concern was unnecessary because her claim would be paid.

Unlike the circumstances of the pending case, Searcy demonstrates a pattern of deception in which the layman claimant was actively misled into believing that liability was admitted and her claim was being settled. She was expressly told that she did not need to obtain a lawyer. In contrast, here Murphy’s attorney relied on vague statements that “everything was okay and would be taken care of,” representations that do not amount to admissions of liability or attempts to prevent a claimant from ascertaining legal rights and obligations. Had Murphy’s attorney checked the applicable statute he would have known of the preconditions for maintaining an action against the CTA. He would not have settled for vague assurances that everything was fine but would have taken steps to ensure that his client’s interests were safeguarded. See also Shortt v. City of Chicago (1987), 160 Ill. App. 3d 933, 514 N.E.2d 3 (court affirmed dismissal of plaintiff’s complaint, despite her estoppel argument based on the CTA’s filing its appearance and answer in the lawsuit, conducting of discovery for five years and entering settlement negotiations during that time).

In the pending case the record discloses no indication that the CTA ever admitted liability or specifically discussed a settlement. Nor did anyone represent to Murphy’s attorney that he need not take whatever steps were required by law to protect his client’s claim.

We are not condoning any misrepresentations that the CTA might have made, deliberately, negligently, or innocently. Nor do we find the attorney’s reliance on the CTA’s information to be totally unreasonable. Nevertheless, the case law demonstrates that the requirements of section 41 are mandatory and not lightly excused. Accordingly, we have no choice but to affirm the judgment of the trial court that dismissed Murphy’s claim against the CTA.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.


author: JUSTICE LORENZ

text:
    ILLINOIS WINE & SPIRITS COMPANY, Plaintiff-Appellant, v. THE COUNTY OF COOK, Bureau of Administration, et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—87—3567
    Opinion filed November 27, 1989.
    Rehearing denied January 2, 1990.

      Morton Siegel, Michael A. Moses, and James L. Webster, all of Siegel, Moses & Schoendstadt, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Joan S. Cherry, Deputy State’s Attorney, and Susan Condon and Patricia M. Shymanski, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Illinois Wine & Spirits Co., appeals from an order granting judgment in favor of defendants, the County of Cook, Bureau of Administration, and William M. Doyle, assessing a tax liability against plaintiff. Plaintiff raises constitutional issues concerning the Cook County Retail Sale of Alcoholic Beverages Tax §§13—95 to 13—105 (1975). We address the issues of whether the tax ordinance as applied to plaintiff, an out-of-county wholesaler, is an occupation tax, violates equal protection, and is an extraterritorial application of the tax. For the following reasons, we affirm.

Plaintiff filed a three-count complaint, as amended, for declaratory and injunctive relief against defendants alleging the following facts. Plaintiff was a wholesale dealer of alcoholic beverages located in Will County, Illinois, and received written notice from defendants of a tax liability under the ordinance. The tax liability including interest was $103,381.55 for the period from January 1, 1976, through December 31, 1978. Plaintiff filed a written protest of the tax. Plaintiff alleged that the tax was unconstitutional because it was an occupation tax, it violated equal protection, and it was an extraterritorial application of Cook County’s taxing power.

Defendants answered the complaint denying the material allegations and filed a counterclaim for the tax liability. Defendants alleged that plaintiff sold alcoholic beverages at wholesale to 15 different retail dealers in Cook County from 1976 to 1978. The tax due on plaintiff’s sales of alcoholic beverages to retailers doing business in the county was $47,468.16 and the interest on that amount was $55,913.39. Plaintiff refused to pay. In their counterclaim, defendants sought judgment against plaintiff for the tax due plus interest.

Plaintiff answered the counterclaim denying the material allegations.

Plaintiff moved for summary judgment, arguing that the tax was an unconstitutional occupation tax, violated equal protection, and was an extraterritorial application of the county’s taxing power. Defendant filed a cross-motion for summary judgment on the same issues.

The trial court denied plaintiff’s motion for summary judgment and granted defendants’ motion for summary judgment. The case was continued to determine the amount of plaintiff’s tax liability. Following a trial, the court entered judgment in defendants’ favor in the amount of $154,729.12 for tax and interest. Plaintiff’s motion for reconsideration was denied and it now appeals.

Opinion

The Illinois Constitution of 1970 established home rule units of local government, and their powers are explained in this manner: “Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt.” Ill. Const. 1970, art. VII, §6(a).

Cook County passed the ordinance in question pursuant to its home rule powers. The ordinance imposed a tax on the retail sale of alcoholic beverages occurring in the county. Alcoholic beverages were taxed by the gallon at various rates depending on the type of alcoholic beverage. The ordinance recited, “The ultimate incidence of and liability for payment of the tax herein levied to be borne by the consumer of said alcoholic beverages.” (Cook County Retail Sale of Alcoholic Beverages Tax §13—95 (1975).) Each wholesale dealer of alcoholic beverages was required to collect the tax when it sold alcoholic beverages to a retail dealer doing business in Cook County. The retail dealer was required to collect the tax from the consumers of alcoholic beverages. A wholesale dealer was defined as “[a]ny person who engages in the business of selling or supplying alcoholic beverages to any person for resale in the County of Cook.” (Cook County Retail Sale of Alcoholic Beverages Tax §13—103(d).) Wholesale dealers were required to register with the county, file monthly reports of sales of alcoholic beverages, and remit the tax applicable to the sales. Violations of the ordinance could incur a fine between $100 and $1,000, and/or imprisonment up to six months. In addition, the county could institute civil proceedings to recover the tax due plus interest, penalty, and costs. Cook County Retail Sale of Alcoholic Beverages Tax §§13—95 to 13—105 (1975).

An ordinance carries a presumption of constitutionality, and the burden of overcoming that presumption rests on the party chailenging the ordinance. Mulligan v. Dunne (1975), 61 Ill. 2d 544, 338 N.E.2d 6.

I

Initially, plaintiff argues that the county ordinance imposes an occupation tax in violation of article VII, section 6(e), of the Illinois Constitution of 1970, which provides:

“A home rule unit shall have only the power that the General Assembly may provide by law *** to license for revenue or impose taxes upon or measured by income or earnings or upon occupations.” (Ill. Const. 1970, art. VII, §6(e).)

As a home rule unit, Cook County would require approval from the General Assembly to impose a tax on occupations. Mulligan, 61 Ill. 2d 544, 338 N.E.2d 6.

Plaintiff concedes that our supreme court has previously reviewed the ordinance involved in the present appeal and found that it did not impose an unconstitutional occupation tax. (See Mulligan, 61 Ill. 2d 544, 338 N.E.2d 6.) In Mulligan, plaintiffs, who included wholesale dealers of alcoholic beverages, argued, among other issues, that the ordinance was a tax on occupations and, as a home rule unit, the county did not have the power to enact such a tax without authorization from the General Assembly. Plaintiffs argued that as a result, the ordinance was unconstitutional under article VII, section 6(e), of the Illinois Constitution of 1970. The court found, however, that the ordinance did not impose an unconstitutional occupation tax because the tax was levied on retail sales and paid by the consumer.

Despite recognizing the holding in Mulligan, plaintiff argues that because it never collected the tax from the retail dealers, requiring plaintiff to pay the tax would have the “practical effect” of imposing the tax on the wholesale dealer rather than the consumer of alcoholic beverages as the ordinance provides.

In support of this argument, plaintiff relies on Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 432 N.E.2d 227, where the supreme court considered a constitutional challenge to a Chicago ordinance imposing a tax on services. The ordinance stated the tax was imposed on the purchaser but the collection and remittance duties were placed on the seller, who was also liable for the uncollected taxes. The court examined the “practical operation and effect” of the tax and found that even though the ordinance stated the legal incidence of the tax was on the purchaser, the legal obligation was placed on the seller of service, and therefore, it was an occupation tax. (Commercial, 89 Ill. 2d at 65, 432 N.E.2d at 236.) The service tax ordinance attempted to convert an occupation tax into a tax on consumers merely by stating that the tax was to be paid by the consumer.

Plaintiff contends that Commercial involved a similar situation to the one presented and this court should similarly find the ordinance is unconstitutional. However, plaintiff’s reliance on Commercial is misplaced. The court in Commercial used a practical-effect analysis to determine whether the service tax was constitutional because the dele-, gates to the 1970 constitutional convention intended that such a tax was to be outside the scope of home rule unit powers. The court examined the constitutional debates and found that the intention to restrict home rule units from imposing an occupation tax encompassed the taxing of services. The court specifically distinguished from its analysis taxes which the delegates considered within a home rule unit’s power, such as a tax on liquor which is involved in the present case. Citing Mulligan and other previous decisions where the power of a home rule unit to impose certain taxes was upheld, the court distinguished them from the service tax under review because they “[fell] within the area of taxation which the debates and the examples [in the report of the Local Government Committee of the Convention] show were understood by the convention to be encompassed within the power ‘to tax.’ ” (Commercial, 89 Ill. 2d at 58, 432 N.E.2d at 233.) Accordingly, the practical-effect analysis of Commercial is not applicable to the present case. See also Illinois Gasoline Dealers Association v. City of Chicago (1988), 119 Ill. 2d 391, 519 N.E.2d 447; Chicago Health Clubs, Inc. v. Picur (1988), 124 Ill. 2d 1, 528 N.E.2d 978 (Ryan, J., specially concurring).

Plaintiff has not met its burden in overcoming the presumption of constitutionality of the ordinance. Following Mulligan, we find the tax in question was imposed on the purchaser of alcoholic beverages and was not an occupation tax.

II

Plaintiff also argues that the enforcement of the tax against it violates equal protection under the United States Constitution (U.S. Const., amend. XIV) and the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §2).

The United States Supreme Court explained violations of equal protection in the application of laws in this manner:

“Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.” (Yick Wo v. Hopkins (1886), 118 U.S. 356, 373-74, 30 L. Ed. 220, 227, 6 S. Ct. 1064, 1072-73.)

Equal protection requires that laws are applied in a “rational and nonarbitrary way.” (Ciechon v. City of Chicago (1982), 686 F.2d 511, 522.) The application of laws must not constitute “intentional invidious discrimination *** against persons similarly situated.” Ciechon, 686 F.2d at 522-23.

Plaintiff argues that wholesale dealers and retail dealers are similarly situated as collectors of the tax under the ordinance. Therefore, the county’s enforcement of the tax against plaintiff, rather than the retail dealers it sold liquor to, is an arbitrary and irrational application of the ordinance and is a denial of equal protection.

Plaintiff relies on Ciechon (686 F.2d 511), which involved two paramedics, working as a team, who responded to an emergency call and examined a patient. The patient died shortly after the paramedics left. The patient’s family complained to the city that the paramedics gave improper treatment. They also contacted a local television station. The city investigated the complaint, and one paramedic was subsequently discharged. That paramedic brought a civil rights action against the city alleging a denial of equal protection. Judgment was entered in favor of the paramedic. On review, the court found the paramedic was denied equal protection because the city acted in an arbitrary, irrational manner. Both paramedics were equally responsible for the treatment of patients and, therefore, similarly situated. Yet only one paramedic was singled out for discipline, apparently in response to negative publicity. The court found that “[tjhere was no possible justification for treating them differently.” (Ciechon, 686 F.2d at 523.) The evidence showed the discrimination was intentional, and therefore, equal protection was violated.

Initially, we are not persuaded by plaintiff’s argument that it is similarly situated with the 15 retail dealers. A review of the ordinance reveals that the primary collection duties were placed on the wholesaler. In section 13—95, the ordinance states, “the tax herein levied shall be collected by each wholesale dealer of alcoholic beverages who sells alcoholic beverages to a retail dealer of alcoholic beverages doing business in Cook County.” (Cook County Retail Sale of Alcoholic Beverages Tax §13—95 (1975).) Further, section 13—95 explains that the retail dealer must then collect the tax from the purchaser. Section 13—96 requires that all wholesale dealers doing business in the county to register with the county and file a report of sales each month accompanied by the tax collected on those sales. Cook County Retail Sale of Alcoholic Beverages Tax §13—96 (1975).

Plaintiff argues that the retail dealer has equivalent collection duties as the wholesale dealer relying on section 13—95 of the ordinance, which provides that if the retail dealer obtains liquor on which no tax was collected by the “distributor or supplier,” then the retail dealer must submit the tax directly to the county. Cook County Retail Sale of Alcoholic Beverages Tax §13 — 95 (1975).

Unlike the paramedics in Ciechon, plaintiff and the 15 retail dealers did not share equal responsibilities. Although both the wholesale dealer and the retail dealer have collection duties under the ordinance, the primary responsibility is placed on the wholesale dealer as evidenced by the requirement that the wholesale dealer register with the county, collect the tax, file monthly reports, and remit the tax. Only when the retailer receives liquor from a distributor or supplier on which the tax was not paid does its duty come into play under section 13—95. Under the ordinance, wholesale and retail dealers were not placed in the same class, and therefore, plaintiff cannot claim he was denied equal protection as a result of disparate treatment between wholesale and retail dealers.

Further, plaintiff has not set forth any evidence of invidious discrimination. Plaintiff argues the alleged disparate treatment occurred because the county could have proceeded against the 15 retailers and because plaintiff challenged the county’s right to inspect its books in previous litigation (see County of Cook v. Illinois Wine & Spirits Co. (1981), 93 Ill. App. 3d 710, 417 N.E.2d 812). However, unlike Ciechon, there is no factual evidence to support plaintiff’s claim that the county acted with intentional and purposeful discrimination. Accordingly, plaintiff was not denied equal protection.

Ill

Lastly, plaintiff argues that the county’s imposition of collection duties on it, an out-of-county wholesale dealer, amounts to an unconstitutional extraterritorial application of the tax.

Although “a home rule unit may exercise any power and perform any function pertaining to its government and affairs including *** the power *** to tax” (Ill. Const. 1970, art. VII, §6(a)), our supreme court has found that home rule units do not have extraterritorial governmental powers. (City of Carbondale v. Van Natta (1975), 61 Ill. 2d 483, 338 N.E.2d 19.) A home rule unit can only act outside its territory when it has the approval of the legislature. Van Natta, 61 Ill. 2d 483, 338 N.E.2d 19.

In Mulligan (61 Ill. 2d 544, 338 N.E.2d 6), which was discussed earlier, plaintiffs, who included wholesale dealers of alcoholic beverages, challenged the constitutionality of the ordinance. Similar to plaintiff in the present case, plaintiffs in Mulligan argued that as a home rule unit the county could not require wholesale dealers located outside the county to collect the tax because it was acting extraterritorially. The Illinois Supreme Court disagreed and stated:

“But the crucial inquiry is *** whether any local unit of government is exercising its taxing power extraterritorially by collecting a tax from sellers located outside the boundaries of the local unit which do business within those boundaries. We think it is not. An ordinance is presumed valid, and the burden of establishing invalidity rests upon those asserting it; that burden has not been met in this case. Perhaps factual situations may be hypothesized in which enforcement of this ordinance as to out-of-county wholesalers would raise substantial constitutional questions. Those facts are not presented here, and we may not assume that enforcement of the ordinance will be attempted under circumstances which would constitute an extraterritorial exercise of taxing power.” (Mulligan, 61 Ill. 2d at 558, 338 N.E.2d at 15.)

Subsequent to Mulligan, the supreme court decided Commercial (89 Ill. 2d 45, 432 N.E.2d 227), which involved the constitutionality of an ordinance imposing a service tax. The ordinance taxed the total value of services when they were “substantially performed” in the city although some portion of the services were performed outside the city. (Commercial, 89 Ill. 2d at 76, 432 N.E.2d at 242, quoting Municipal Code of Chicago §200.5—3 (1981).) The court struck down the ordinance, finding it exceeded the territorial limits of home rule units because it taxed services performed outside the city. The court distinguished the tax involved in Mulligan and stated:

“It was the sale of alcoholic beverages within the county which was being taxed [in Mulligan]. We indicated there that it was not an extraterritorial exercise of home rule powers to impose tax-collection duties upon a nonresident wholesaler who did business within the county. *** In all our previous decisions on the home rule units’ taxing power, the commodities or services taxed were purchased or used within the territorial limits of the taxing entity.” (Emphasis in original.) Commercial, 89 Ill. 2d at 78, 432 N.E.2d at 243.

As stated in Mulligan and Commercial, the ordinance involved here placed a tax on the retail sale of alcoholic beverages occurring within the county. The tax is imposed on the consumer. The right of the county to impose collection duties on an out-of-county wholesaler doing business in the county was approved in Mulligan. The court in Mulligan noted that in some instances, enforcement against out-of-county wholesale dealers could raise “substantial constitutional questions.” (Mulligan, 61 Ill. 2d at 558, 338 N.E.2d at 15.) The present case does not involve an unconstitutional enforcement of the ordinance.

Plaintiff argues it does not conduct business within the county because it does not maintain an office, have a telephone line, or advertise in the county. Also, plaintiff did not apply for a license within the county or file a tax return with the county. These factual assertions were made with no more support in the record than plaintiff’s “Memorandum of Issues” and motion for summary judgment filed in the trial court. Further, plaintiff cites the deposition testimony of two retail dealers who testified that they purchased liquor from plaintiff only a few times and one retail dealer could not remember dealing with plaintiff at all. Such testimony is clearly irrelevant in light of the fact that plaintiff does not challenge the amount of the tax liability assessed against it.

Contrary to plaintiff’s claim, it is clear from the record that from 1976 through 1978 plaintiff conducted business within the county when it supplied 15 different retail dealers with wholesale alcoholic beverages for retail sale within the county. Plaintiff’s sales resulted in a tax liability of approximately $45,000. Accordingly, plaintiff’s argument that it did not conduct business in the county is without support in the record. The county has not exercised extraterritorial powers in enforcing the tax against plaintiff.

Affirmed.

PINCHAM and COCCIA, JJ., concur.


author: PRESIDING JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY BRODERICK et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 1—88—3210, 1—88—3244 cons.
    Opinion filed November 27, 1989.
    Gary Ravitz, of Chicago, for appellants.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Jane E. Loeb, and William Marback, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Defendants, Larry and Terry Broderick, appeal their convictions, after a bench trial, of felony criminal damage to property. The trial court found each of them not guilty of two counts of aggravated battery. Larry was sentenced to 30 months’ probation; Terry was sentenced to 30 months’ probation under the Intensive Probation Program or, alternatively, to three months’ incarceration. Both were ordered to pay $2,000 in restitution, jointly and severally.

On appeal, defendants allege that the evidence was insufficient to establish their guilt beyond a reasonable doubt. They argue that the witnesses could not distinguish the Brodericks, who were identical twins, from each other and, further, the identifications were not so positive as to be conclusive. We disagree with their claims and affirm the trial court.

The evidence reveals that on July 2, 1987, Dirk Baker left work around 12:30 a.m. and drove to a bar on Archer Avenue to cash his paycheck, as he did every Friday. Baker testified that he cashed his check, played one game of pool, and left the tavern around 1:15 or 1:30 a.m. He also stated that he had had nothing to drink and was accompanied when he left by Kalvin Mullins, a coemployee. Baker and Mullins, who were black, were heading north on Central Avenue when a car with three white males pulled alongside Baker’s car, shouted racial insults at Baker and Mullins, and threw three or four beer bottles at the car. Baker pulled into a Town and Country service station, and the other car pulled directly in front of his car. The driver and front seat passenger emerged from their car carrying baseball bats, and the back seat passenger jumped out carrying a tire iron. The three men started beating Baker’s car and smashing its windows. Baker also testified that one of the defendants started beating Mullins with the tire iron and another defendant hit Baker with a bat. Mullins tried to drive away in Baker’s car but ran into a pole, whereupon he left the car and ran down the street. The three attackers then got into their car and drove away. Baker called the police, and Investigator Gene Gargano from the Cook County sheriff’s police responded to the call.

Mullins’ testimony was similar to Baker’s, except he said that after a passerby took him home, his mother took him to Michael Reese Hospital for treatment of cuts on his forehead. The parties stipulated that the hospital had no records indicating treatment of Mullins on July 2.

Both victims stated that their assailants’ car was brown. Although there were several descriptions of the car given by the victims, the variations in them need not be detailed here as they are not relevant to the crucial issue in this appeal—the identifications of defendants as two of the assailants in the car.

Both Baker and Mullins separately identified Terry Broderick from a photo display as an assailant several days after the incident. There were four separate lineups held on July 22, two in which only Terry appeared and two which included Larry. Viewing the lineups separately, the victims failed to identify Terry, but instead each identified a different lineup volunteer. Baker testified that he did positively identify “one of the Broderick boys” in the second lineup he viewed. (Other evidence concerning the lineups containing Larry is not in the record.) Neither victim ever told investigators that identical twins were involved, and the Brodericks were never placed in the same photo displays or lineups. Baker testified that, contrary to their appearance at trial, the Brodericks were not dressed identically on July 2. Both victims positively identified Larry and Terry Broderick during the trial and also placed the twins as passengers in their car with a third person as the driver.

Denise Hite also identified both Brodericks in court. Hite, who was a former employee of the Town and Country gas station, testified that, accompanied by two friends, she had left a bar directly across the street from the gas station at approximately 2 a.m. on July 2. She said that all the station lights were on and the incident occurred “right [under] all the lights.” She observed the two cars pull into the station and saw the two defendants get out of a gray car and beat Baker’s car with bats. On cross-examination, Hite said that she had been at the bar since approximately 11 p.m. and had consumed about four beers. She estimated the distance from where she was standing, in the tavern parking lot, to the cars in the station to be from 150 to 200 feet.

Investigator Gargano interviewed Hite at her home on July 2. He testified that she told him that she had seen one assailant, who was larger than the other, strike the black driver with a bat. The investigator reported that Hite initially was not certain that the larger person was one of the Broderick brothers but later in the interview, after stating that she was afraid to get involved, Hite positively identified both Brodericks as the assailants.

Hite testified that she and the Brodericks live in the same neighborhood and that she had known them about seven or eight years. She also stated that she made the first reference to the Brodericks’ involvement to Gargano, not the other way around as Gargano claimed. Hite admitted that she did not see the white driver fight with either of the victims.

Gilbert Broderick, a Chicago police officer for 26 years and the defendants’ father, appeared as a defense witness and attempted to qualify as an expert regarding the layout of the station and tavern across the street. His drawings were not admitted but he did testify that, based on his measurements, the distance from the door of the tavern to the cashier’s station was 203 feet. The victims had earlier stated that they were parked about five feet from the cashier’s station, and Hite stated that she had walked from the tavern to its parking lot when she observed the event. There is no evidence as to the relative positions of these various locations.

The trial court noted the discrepencies regarding Baker’s and Mullins’ identifications and Hite’s uncertainty as to distances and the presence of a third assailant. It concluded that the inconsistencies did not invalidate either the victims’ or Hite’s positive identification of Larry and Terry Broderick as the persons who had damaged Baker’s car, but found that there was insufficient evidence as to which persons had struck the victims.

It is not the function of reviewing courts to retry a defendant when a sufficiency of the evidence claim is raised; rather, the appropriate standard is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237.) The presence of discrepencies or omissions in a witness’ description do not in and of themselves generate a reasonable doubt as long as a positive identification has been made. (People v. Slim (1989), 127 Ill. 2d 302.) Furthermore, an identification is not necessarily insufficient when the victim’s initial description is inaccurate, but his later positive identification is corroborated by other independent evidence. (People v. Johnson (1986), 114 Ill. 2d 170.) Finally, it is well settled that in a bench trial, it is the trial court’s function to determine the credibility of witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence. People v. Titone (1986), 115 Ill. 2d 413.

Applying these principles to the present case, we must affirm defendants’ convictions. Both victims identified Terry in photograph displays and later positively identified both Larry and Terry in court. These identifications were corroborated by Hite’s in-court and out-of-court identifications of both defendants, whom she had known for years. Under these facts, the discrepencies in the victims’ initial identification, or misidentification as to Terry, do not mandate a finding that the identifications were insufficient. At best, they merely affect the weight the trier of fact would give to the trial testimony.

Accordingly, we must affirm defendants’ convictions for felony criminal damage to property. In so doing, we sadly note that it is indeed unfortunate that, even at this date, a person cannot safely drive our city streets without the possibility of being subjected to verbal and/or physical abuse solely because of one’s skin color.

Affirmed.

LORENZ and PINCHAM, JJ., concur.


text:
    RONALD B. BARTOS, Plaintiff-Appellant, v. CHICAGO BOARD OF ELECTIONS et al., Defendants-Appellees.
    First District (5th Division)
    Nos. 1—89—0170, 1—89—0379 cons.
    Opinion filed November 27, 1989.
    Ronald B. Bartos, of Chicago, appellant pro se.

      Ian H. Levin, of Chicago, for appellee.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Ronald B. Bartos (Bartos), plaintiff, appeals from a January 19, 1989, order of the circuit court of Cook County involving the February 28, 1989, Chicago primary mayoral election. The Board of Election Commissioners (Board) appeals a February 2, 1989, decision of the same court denying it sanctions.

The undisputed facts disclose that Bartos, on January 5, 1989, sought to file an intent to be a write-in candidate of the Solidarity Party for the office of mayor of the City of Chicago at the February 28, 1989, special mayoral election. The Board denied the request based on its untimeliness. Bartos then sought judicial review of the Board’s action. The trial court dismissed Bartos’ petition. Bartos filed a timely appeal. On January 27, 1989, the Board filed a motion for sanctions for attorney fees and expenses. The trial court denied that motion. The Board also filed a timely appeal. The two appeals have been consolidated.

We dismiss Bartos’ appeal on the basis of mootness and affirm the trial court’s decision denying the Board motion for sanctions.

In fairness to Bartos, he did file a motion to expedite his appeal on February 2, 1989, almost a month before the involved February 28, 1989, election. That motion was denied on February 27, 1989, because of his failure to adhere to supreme court rules governing appeals. In the meantime, the 1989 mayoral primary election passed, as did the election itself. The winner of the election was proclaimed, installed as mayor, and has served as mayor since his installation.

In his appellate brief, Bartos requests this court to order defendant “to accept from the plaintiff, Ronald Bartos, the proper, correct, and lawful documents to be submitted to them by plaintiff and the said defendant declare and certify plaintiff as the lawful uncontested and unopposed Illinois Solidarity Party candidate (on the ballot) for the office of mayor of the City of Chicago in the special mayoral general election to be held on April 4, 1989 in the City of Chicago.” Obviously, this relief cannot be granted by this court at this time.

An issue becomes moot when it presents or involves no actual controversy, interest or rights, or where issues have ceased to exist. (First National Bank v. Kusper (1983), 98 Ill. 2d 226, 456 N.E.2d 7.) Obviously any issue concerning Bartos’ right to have his documents concerning the February 28, 1989, accepted by the Board, Chicago mayoral primary or his right to be a candidate of the Solidarity Party at the April 1989 election ceased to exist after the election was held, the winner proclaimed and installed as mayor. Since Bartos’ cause is now moot, we dismiss his appeal.

With respect to the Board’s petition for attorney fees and costs, the petition is predicated on the grounds of frivolity. It is true that section 2—611 of the Illinois Code of Civil Procedure authorizes the imposition of sanctions for frivolous, false or baseless litigation. (Ill. Rev. Stat. 1987, ch. 110, par. 2-611; Lipscomb v. Coppage (1964), 44 Ill. App. 2d 430, 197 N.E.2d 48.) However, Bartos diligently pressed his initial action in the trial court and on appeal. He is a pro se party, obviously a novice at election cases and unaware of procedures that can be taken to prevent an election case being mooted by the election and official proclamation of the winner. Although it may be frivolous to the Board and its excellent and experienced lawyers, plaintiff’s case and appeal do not appear to be frivolous to him. From the record, it appears that plaintiff seriously believed he had the right to be a candidate for mayor for the Solidarity Party. If he knew as much of Illinois’ oft-times difficult to interpret election laws as the attorneys for the Board, he might have been as successful in achieving his goal as a candidate of the Solidarity Party. For the above reason, we do not feel the trial court abused its discretion in denying the Board’s petition for sanctions and, also, we deny the Board’s request for fees incurred in this appeal.

For the above reasons, the appeal from trial court’s order denying plaintiff relief is dismissed on account of mootness. The trial court’s order denying the Board’s petition for sanctions is affirmed.

Appeal in appeal No. 89—0379 is dismissed; trial court’s order in appeal No. 89—0170 is affirmed.

PINCHAM and COCCIA, JJ., concur.


author: PRESIDING JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLARENCE JOHNSON, Defendant-Appellant.
    First District (6th Division)
    Nos. 1—87—1258, 1—87—2566 cons.
    Opinion filed November 27, 1989.
    Randolph N. Stone, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Lacoulton Walls, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The defendant, Clarence Johnson, and Enrique Acosta were charged separately with unlawful delivery of less than 10 grams of cocaine. Their cases were consolidated and were tried together in a bench trial. Acosta was discharged at the close of the State’s ease. The defendant was convicted at the close of all the evidence and sentenced to 30 months’ probation. On the State’s motion the sentence was modified to three years’ imprisonment to comport with the statutory sentencing guidelines for defendants who had previously been convicted of felonies. The only issue is whether the defendant was proved guilty beyond a reasonable doubt.

The State’s principal witness was Theodore Rizo, a narcotics agent for the Illinois Department of State Police. He testified as follows:

At approximately 3 p.m. on August 10, 1984, he drove to the Confina Tavern at 1900 West Cullerton Street in Chicago, Illinois, where he planned to purchase some cocaine. He was wearing civilian clothes and drove an undercover vehicle. Angel Luna, an informant, was with him. Approximately 11 other agents were in the vicinity of the tavern maintaining surveillance.

Luna entered the tavern while Rizo remained in the car. After a few minutes Luna returned alone; they had a conversation; and Rizo sent Luna back into the tavern to tell Enrique Acosta that Rizo wanted to speak with him. Acosta came out and spoke to Rizo through an open window on the passenger side of a car. Acosta asked Rizo if he was ready to buy some cocaine; Rizo said that he was and that he preferred a delivery early that evening. Acosta left to make a phone call, returned a couple of minutes later and instructed Rizo to come back around 5:30 p.m. Rizo told Acosta that he would call at that time and left.

Rizo called Acosta at about 5:20 p.m. that same day and asked if “it was ready.” Acosta said that it was not ready and asked Rizo to call back in 10 minutes. Rizo called back and had a conversation with a woman but not with Acosta. He called again at 6 p.m. and spoke with Acosta, asking if “it was ready.” Acosta said it was and instructed Rizo to go to the tavern. When he returned to the tavern he was to purchase 1.5 kilograms of cocaine for $61,000 cash. However, he did not have the cash with him.

Rizo and Luna drove in separate cars to the tavern at 7:30 or 7:50 p.m. Rizo again instructed Luna to go into the tavern. Luna entered the tavern and returned alone a couple of minutes later. Rizo and Luna had a conversation, and Luna went back into the tavern. Luna returned to the car with Acosta and the defendant. Luna stood by the right headlight of the car, while Acosta and the defendant approached the open passenger window. Acosta leaned in the window and said to the defendant, “This is Ted [Rizo]”; the defendant then leaned in, shook Rizo’s hand and said, “Hi, I am Clarence.”

Although he had been to the tavern 7 to 10 times before this meeting, Rizo had never spoken with the defendant before, either in person or by telephone. He had spoken only with Luna and another individual who had acted as a “go-between” in the past.

Rizo asked the defendant if “it was ready.” The defendant said, “I am sorry; it is not ready. I don’t know where my man is at. He was supposed to be here at the tavern.” Rizo said that he could not wait and was going to leave. The defendant again apologized for the delay and said, “This man is in Wisconsin and he is prompt.” Rizo again said he was leaving; and the defendant said, “Well, if you can’t wait around a little bit, I can go to my house and get you an eighth or quarter ounce of pure cocaine.”

Rizo said that he was at the tavern to do business and that, if the defendant was not ready, he would leave. The defendant said, “Don’t go empty-handed. Let me get you some of what my people are moving for me” and indicated toward the tavern. Rizo told the defendant, “Fine. I will take that, but I’ll also want to get your telephone number so I can get ahold of you.”

The defendant entered the tavern and returned to the car one or two minutes later. He leaned through the passenger window and handed Rizo eight paper packets. He told Rizo, “there should be an eighth in there.” He also handed Rizo a piece of paper bearing the name “Clarence,” the word “tavern” or “tav” and a telephone number. Rizo recognized the telephone number as that of the Contina Tavern. He told the defendant that he was in a hurry and that he would be back in contact with the defendant. Rizo left.

He conducted a field test on the contents of the eight packets, detecting the possible presence of cocaine. He inventoried the packets, placed them in a heat-sealed evidence envelope and “subsequently [two weeks later]” delivered the packets to the State laboratory in Joliet for analysis.

He testified to the names of six of the surveillance agents at the tavern, including his superior, and said that there were about five more agents whose names he could not recall. He did not know the exact location of the agents when the defendant handed him the packets. He admitted that Luna was present when the defendant handed him the packets. Although the defendant had given Rizo a phone number, Rizo did not call the defendant back that evening, and the defendant never made any deal with Rizo or gave him any other drugs.

The parties stipulated to the testimony of Devendrá Trivendi, a State forensic scientist: On August 24, 1984, she received two heat-sealed envelopes from Agent Rizo, one of which contained eight packets having a total weight of 1.3 grams of white powder, which she analyzed and concluded was cocaine.

The State rested and both defendants moved for discharge. The judge denied the defendant’s motion but allowed the motion of Acosta without expressing any reason for his ruling. Apparently the charge against Acosta was based on the theory of accountability.

The defendant was the only witness for the defense. He testified as follows:

He had talked to Luna at the tavern three or four times over the one- or two-month period before August 10. On numerous days Luna, whom he knew only as “Angel,” came into the tavern and talked with everyone inside, sometimes 20 or 30 people. He would also buy drinks for everyone. On occasions when the defendant visited the tavern after school, Luna would approach the defendant and buy him drinks. They talked about “women, whatever men talk about” and then Luna would steer the conversation toward drugs. Luna never talked about meeting with others, but only about Luna buying drugs from the defendant. The defendant thought that Luna was a drug dealer looking for merchandise and told Luna that he did not want to be involved with drugs anymore. He admitted that he had been convicted for a drug violation in 1978.

On August 10 he was in the tavern when Luna came in and bought him a drink. Lund told him that friends of the defendant were outside and wanted to see him. The defendant asked who was outside. Luna started walking to the door of the tavern, and the defendant followed him outside. When outside, the defendant saw a man, whom he did not recognize, wave to him from a car. At some point Luna told the defendant that this concerned drugs, and the defendant again told Luna that he no longer wanted anything to do with drugs. The defendant returned to the tavern. He had never seen nor talked to the man in the car before. He did not talk to the man in the car that night, nor did he give the man any cocaine. He had never talked to Luna about meeting the man. He thought that Rizo was the man he saw in the car.

After the defendant returned to the tavern, he looked out the doorway and saw Luna talking to the man in the car. Luna handed the man something, which the defendant could not see clearly enough to describe.

The defendant was arrested on December 2, 1985, almost 16 months after August 10, 1984. (Rizo swore to the complaint and a warrant was issued on November 18, 1985.) Rizo had called the defendant’s ex-wife, told her to contact the defendant and tell him to surrender himself on drug charges. The defendant called the police station and talked with another agent because he could not reach Rizo. The other agent told the defendant that he could spend Thanksgiving with his family and to come in the following Monday. On Monday, December 2, the defendant went to the police station and met Rizo, who took him back to a small office. Rizo said, “We [can] do this one of two ways. Either you can work for us and bring us in some individuals or you can get in this cage.” He knew of no reason for Rizo to pick on him other than that Rizo “want[ed] a stool pigeon.”

The State’s rebuttal established the defendant’s previous convictions for aggravated assault and possession of a controlled substance in 1978, for which he was sentenced to four years’ imprisonment; and a conviction of unlawful use of weapons in 1980 for which he was sentenced to 27 months’ imprisonment. Rizo was not called in rebuttal.

Before trial, the State filed an answer to a discovery motion and identified “Angel Luna” as a possible witness. The defendant filed a motion for pertinent information about Luna and to produce Luna at hearings on motions and at trial. The motion asked in the alternative for an order dismissing the charge with prejudice should the State refuse to produce Luna. No order expressly ruling on that motion appears of record. On June 17, 1986, at a hearing on the motion, the judge asked for a response to the motion and for a hearing on the application of Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623. The judge said he would like a hearing to determine whether or not there was “participation by the informant.”

On November 17, the defendant’s attorney told the court, “The last time it was indicated [the State] didn’t want to produce the informant for this small of a case, and the State was supposed to talk to [Rizo].” The matter was continued to November 24. On that date, the attorney for the defendant addressed the court as follows:

“Right, and you granted the motion to produce informant, Your Honor. I spoke to the assistant State’s Attorney, Eddie Hansen was the last one I spoke to with respect to this, and he had indicated that he spoke with Agent Rizo, which indicated that it was their position that they did not want to produce their informant for whatever reasons, I am not sure. I don’t know what the status is now.” (Emphasis added.)

The judge was informed that Luna was a “transactional informant”; and he later said, “Rizo is not going to decide the case, who’s going to produce the informant and who’s not.” He also said, “Somebody named Rizo is not going to make that decision.”

In his post-trial motion, the defendant contended that the court “erred in not dismissing the indictment for failure to produce the informant for interview as the court previously ordered.” He also said that the court “erred in not requiring the informant to be produced for trial as requested by the defense.”

The first question to be addressed is the effect of the failure to call Luna. The defendant’s argument on this point is restricted to the contention that the State’s proof was insufficient, and he asks only for reversal. He does not assign as error, as a matter of law, the judge’s denial of his motion for a new trial for failure to call Luna. See Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623.

A case cited by both sides is People v. Guido (1962), 25 Ill. 2d 204, 184 N.E.2d 858. In that case the supreme court affirmed the conviction for a narcotics offense even though the informant was not called to testify. The supreme court said this:

“It is next urged that the failure of the prosecution to call [the informer] as a witness raises an inference that his testimony would have been unfavorable and thus creates a reasonable doubt of defendant’s guilt. The prosecution, however, is not obligated to call an informer as a witness, nor does the failure to do so create a reasonable doubt of guilt. (People v. Aldridge, 19 Ill. 2d 176.) It is only where there is an unexplained failure to call such a witness that an unfavorable inference may arise, (People v. Strong, 21 Ill. 2d 320,) and the testimony here was that [the informer’s] whereabouts were unknown. Cf. People v. Morrison, 23 Ill. 2d 201.” (Emphasis added.) Guido, 25 Ill. 2d at 209.

The absence of Luna, who allegedly was present when the defendant handed Rizo the narcotics, is unexplained and, therefore, an unfavorable inference arises, as a matter of law, that his testimony would be unfavorable to the State.

We turn now to the lapse of time between the alleged act on August 10, 1984, and the filing of the charges against the defendant on November 18, 1985. The question before us is whether the lapse of time may be considered in determining the credibility of Rizo. Whether the lapse of time constituted a denial of due process is not before us. (See People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244.) In a number of cases convictions were upheld even though a lapse of time existed between the time of the alleged criminal act and the accusation against the defendant. (People v. Guido (1962), 25 Ill. 2d 204, 184 N.E.2d 858; People v. Peyton (1962), 25 Ill. 2d 392, 185 N.E.2d 163; People v. Parson (1963), 27 Ill. 2d 263, 189 N.E.2d 311; People v. Luckett (1962), 24 Ill. 2d 550, 182 N.E.2d 696; People v. Hatch (1964), 49 Ill. App. 2d 177, 199 N.E.2d 81.) In Guido, the lapse of time was 3V2 months, but the testimony of the principal narcotics agent was corroborated by the testimony of another agent, and the principal agent testified he delayed the arrest because he contemplated further purchases from the defendant. In Peyton, the lapse of time was 50 days. The defendant, however, admitted delivery of a package to the agent but denied knowledge of its contents. The agent testified that the reason for the delay in arresting the defendant was that he was conducting other investigations which would be threatened by the arrest of the defendant. In Parson, the lapse of time was five months and the testimony of the principal agent was corroborated by the testimony of two other agents. In addition a statement by a co-conspirator incriminating the defendant was admitted into evidence. The agent testified that they kept the defendant under observation during the time in question. In Luckett, the lapse of time was one day. A police officer testified that the defendant made an oral confession to him. The principal officer explained the delay by saying that he did not want to reveal his identity as a police officer at that particular time and place. In Hatch, the lapse of time was two months. The informant testified corroborating the police officer in the principal details. Moreover, the defendant himself testified that he was present when the narcotics were delivered but that the money was given to the informant. His principal defense was entrapment. The principal agent testified that the reason for the delay was that he left on vacation soon after the incident; that after his vacation he was on military leave; and that upon his return he believed that the defendant was hiding out on a “shop-lifting rap.”

The facts of those cases are in sharp contrast to the facts in this case. There is a time gap of one year and four months in this case, almost four times longer than any of the other cases; there is no corroboration here; and there is no explanation for the excessive delay between the act and the accusation.

It is our judgment that the evidence fails to establish the defendant’s guilt beyond a reasonable doubt. To summarize, the record fails to show why Luna was not produced for an interview, as the judge had ordered, and why Luna was not called at trial. Rizo never explained the absence of what would have been strong corroboration of his testimony: the slip of paper in the defendant’s handwriting he allegedly received from the defendant. Rizo never explained the lapse of two weeks between the time he allegedly received narcotics from the defendant and the time he brought the narcotics to the crime laboratory. In closing argument the prosecutor said that it was probable and likely that the other officers saw the “manner in which the delivery took place”; but he never explained the failure to produce any of the other 11 agents who were part of the surveillance team. Rizo failed to explain why he waited from August 10, 1984, until November 18, 1985, before he filed any charges. Although not of the same impact as the failure to explain the absence of the witness, the lapses in time and the absence of the physical evidence, the unrebutted testimony of the defendant that Rizo threatened to bring charges against him unless he became an informant is another circumstance to be considered in weighing the credibility of Rizo. People v. Quintana (1968), 91 Ill. App. 2d 95, 234 N.E.2d 406.

The judge said he was deciding the case on “credibility”; but, if he was deciding it on credibility and he believed Rizo, we do not understand why Acosta was acquitted. Rizo’s testimony, if believed, established Acosta’s guilt as a co-conspirator. Rizo said that Acosta asked him if he was ready to purchase cocaine and instructed him to come back later. Rizo had other incriminating conversations with Acosta, and it was Acosta who allegedly brought the defendant to Rizo.

The credibility of the witnesses in a case tried without a jury is for a trial judge to determine, but his finding, although entitled to great weight, is not conclusive; a reviewing court will reverse a conviction if the evidence is so unsatisfactory as to raise a reasonable doubt of the defendant’s guilt. (People v. Pellegrino (1964), 30 Ill. 2d 331, 196 N.E.2d 670.) We repeat the observations of this court in People v. Quintana that we do not know whether the defendant was engaged in the sale of narcotics, “but we do know that in this case the testimony of the police officer is suspect and that his uncorroborated testimony is insufficient to prove the defendant guilty beyond a reasonable doubt.” (Quintana, 91 Ill. App. 2d at 99.) The judgment of the circuit court is reversed.

Judgment reversed.

McNAMARA, J., and LaPORTA, J., concur.