author: PRESIDING JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARVELL YORK, Defendant-Appellant.
    Third District
    No. 3—90—0687
    Opinion filed July 9,1992.

      Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet, and Margaret Stroot, of Quincy (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

A jury convicted the defendant, Darvell York, of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1991, ch. 56V2, par. 1401). He was thereafter sentenced to 12 years’ imprisonment. He appeals from his sentence. We affirm the defendant’s conviction, vacate his sentence, and remand the cause for proceedings consistent with our decision.

The record shows that at the sentencing hearing, the trial court noted that it had neglected to order a presentence investigation report. It asked counsel for both the State and the defendant if they would waive the preparation of the report. Both sides agreed to do so. The court then sentenced the defendant to a 12-year term of imprisonment, which was to be served consecutively to a 10-year term the defendant was already serving.

On appeal, the defendant argues that he must be resentenced because the trial court erroneously sentenced him without the preparation of a presentence investigation report.

Section 5 — 3—1 of the Unified Code of Corrections provides that a defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court. (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 3—1.) This requirement is mandatory and cannot be waived except in accordance with the exceptions set forth in the statute regarding sentencing agreements. People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 416.

In the case at hand, no presentence report was prepared or considered by the court, nor was there any agreement as to sentencing. As such, we find the parties’ waiver of the report to be invalid. We also find that the trial court erred in imposing a sentence without ordering and considering a presentence investigation report. We therefore remand this cause for resentencing.

We note that the State argues that a presentence report was unnecessary in this case because the trial judge who imposed the sentence was the same judge who had imposed the previous 10-year sentence. As such, the judge was familiar with the defendant’s criminal history and had previously considered a presentence investigation report.

Citing People v. Torres (1986), 146 Ill. App. 3d 250, 496 N.E.2d 1060, People v. Adams (1987), 156 Ill. App. 3d 444, 509 N.E.2d 482, and People v. Brady (1988), 172 Ill. App. 3d 1079, 527 N.E.2d 590, the State notes that exceptions to the waiver rule have been applied.

In Torres, the defendant was sentenced, subsequent to another conviction, without an updated presentencing report. His second sentencing hearing was held only six weeks after the first hearing. In Adams, the report considered by the court had been prepared for pretrial purposes approximately one month before the defendant was sentenced. In Brady, the court considered a report that had been prepared six months earlier.

We find these cases to be distinguishable from the case at hand. We note that in each of those cases there was a presentence report, although not updated, which was actually considered by the trial court. By contrast, in the instant case there is absolutely no indication that the trial court considered the previously prepared report when he sentenced the defendant.

In addition, the time lapse between the preparation of the report and the complained-of sentencing hearing was much greater in the case at hand. Here, the time lapse was about one year, while in the other cases it was six months or less. As such, we find that the court should have ordered a new report to determine if the defendant had made any strides toward rehabilitation or, on the other hand, had compiled a poor institutional record.

Based on the facts of this case, we decline to follow the cases cited by the State. Accordingly, we affirm the defendant’s conviction for unlawful delivery, vacate his sentence, and remand the cause for proceedings consistent with our decision.

The judgment of the circuit court of Will County is affirmed in part, vacated in part, and remanded.

Affirmed in part; vacated in part and remanded.

SLATER and GORMAN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    GREGORY ROBERSON, Plaintiff-Appellant, v. WILLIAM MOLLECK, Defendant-Appellee.
    Third District
    No. 3—91—0546
    Opinion filed July 7,1992.
    Nile J. Williamson, of Peoria, for appellant.
    Karen L. Kendall, Roger R. Clayton, and J. Kevin Wolfe, all of Heyl, Royster, Voelker & Allen, of Peoria (Bradley S. McMillan, of counsel), for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Plaintiff Gregory Roberson filed a two-count complaint claiming damages for personal injuries sustained on July 5, 1989, while dismounting from a Case Uni-Loader tractor on a construction site owned by defendant William Molleck. The complaint charged violations of the Structural Work Act (Ill. Rev. Stat. 1989, ch. 48, par. 60 et seq.) (count I) and the Premises Liability Act (Ill. Rev. Stat. 1989, ch. 80, par. 301 et seq.) (count II). After discovery, the circuit court of Peoria County granted defendant’s motion for summary judgment on grounds that the machine in question was not a “mechanical contrivance” as contemplated by the Structural Work Act and that defendant owed no duty to protect plaintiff from the type of injury sustained for purposes of count II. Plaintiff appeals. We affirm.

At the time of the accident in question, plaintiff was using the uni-loader, or “endloader,” to grade a driveway before filling with sand and pouring concrete. Plaintiff described the soil as hard and clayish, which would become gummy when wet; however, he could not recall at the time of his deposition whether it was in fact wet on the date of the accident. Plaintiff had to dismount the uni-loader several times to reset stakes and lines and then climb back into the machine to continue the grading operation. Plaintiff explained that he stepped into the bucket and then up onto a little plate along the top of the bucket and then, gripping a handle attached to the side of the uni-loader, he stepped onto another plate covered with sandpaper-like material before entering the tractor. He had done this mounting and dismounting procedure successfully several times before the accident and was unable to state whether any debris had collected on the plates prior to his fall. The fall occurred while dismounting, when plaintiff’s right foot slipped off of the plate on the bucket and his leg slid between the bucket and the chassis. The leg twisted, popped and hurt. In his complaint, plaintiff charged that defendant, as owner of the premises and general contractor, had willfully violated the Structural Work Act by failing to protect plaintiff from the injuries he suffered.

The Illinois Structural Work Act provides:

“All scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” (Ill. Rev. Stat. 1989, ch. 48, par. 60.)

A willful violation of the Act may give rise to a cause of action for damages. (Ill. Rev. Stat. 1989, ch. 48, par. 69.) The question in this case is whether the uni-loader was a “mechanical contrivance” as contemplated by the Act. In granting summary judgment for defendant, the trial court determined that it was not as a matter of law.

Summary judgment is properly granted where the pleadings, depositions and affidavits show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 512 N.E.2d 1223.) Whether a certain device is governed by the Act is a matter of statutory construction — ergo, a question of law. Whether a particular device is a support within the contemplation of the Act depends upon the intended use of the device at the time of the injury. Vuletich, 117 Ill. 2d at 422, 512 N.E.2d at 1225.

In Lafata v. Village of Lisle (1990), 137 Ill. 2d 347, 561 N.E.2d 38, our supreme court held that an endloader used in the installation of sewer and water pipes was a mechanical contrivance as contemplated by the Act. In Carrillo v. Pepper Construction Co. (1990), 201 Ill. App. 3d 647, 559 N.E.2d 191, the court held that plaintiff’s injuries suffered when he fell dismounting a bench at a construction site may be covered by the Act. Plaintiff urges that we apply these cases to the facts herein. Defendant argues that plaintiff’s cases are distinguishable by the use being put to the device purportedly causing the injuries. We agree.

In Lafata, the court observed that the Structural Work Act was enacted to protect workers engaged in extrahazardous work and that its coverage extends to devices used to support both materials and workers. The court there stated:

“[I]f the intended use of the mechanical device at the time of plaintiff’s injury was to elevate or provide support for materials, or for persons employed or engaged on the device, it possessed the characteristics that would cause it to be considered a mechanical contrivance within the meaning of the statute.” (Lafata, 137 Ill. 2d at 355, 561 N.E.2d at 42.)

The endloader in Lafata was being used to lift pipe sections three or four feet above ground and transport them from a stockpile to the shoulders of the trenches a half block away, where they would be installed in the ground. The court likened this use to that of a mobile crane. Plaintiff, who was supposed to be walking beside the endloader to prevent a pipe section from tilting, tripped and fell in front of the endloader, and the endloader came to rest on top of him. The court noted that “the danger inherent in the way in which the endloader was being used had a peculiar connection with the construction of the structure.” The court ruled on these facts that use of the endloader “was crucial to the installation of the sewer system and sufficiently unique to a construction site to fall within the coverage of the Act.” 137 Ill. 2d at 358, 561 N.E.2d at 43.

In Carrillo, plaintiff was standing on a four-foot-high bench hanging drywall in a hotel ballroom where numerous other workers were also working on carpentry, plumbing, etc. In attempting to dismount the bench, plaintiff stepped on some paper that concealed a pipe on the floor. The issue in Carrillo was not whether the bench was a mechanical device within the meaning of the Act, but whether the plaintiff’s acts of mounting and dismounting it were covered structural activities. The court ruled that once the instrumentality is determined to be one falling within the Act, then the Act was intended to cover the worker “until he has completely and safely dismounted.” Carrillo, 201 Ill. App. 3d at 650, 559 N.E.2d at 193.

As defendant here correctly notes, none of the cases relied upon by plaintiff support his argument that the endloader as used in this case was a mechanical contrivance within the meaning of the Act. The uni-loader was being used simply to move soil around the excavated driveway area to provide a proper grade. Plaintiff mounted it to operate it as it was intended to be operated. He was not using it to support himself to perform other construction activity. (Cf. Carrillo, 201 Ill. App. 3d 647, 559 N.E.2d 191.) The uni-loader was not specially adapted as in Lafata to support equipment, materials or workers. The bucket was not being used to support material or as a lift in the construction of the driveway. (Cf. Rayfield v. Homart Development Co. (1981), 100 Ill. App. 3d 620, 427 N.E.2d 193.) As such, the use of the uni-loader here did not transform the activity plaintiff was engaged in from a usual construction hazard to an extrahazardous activity covered by the Structural Work Act. (See Matthews v. Commonwealth Edison Co. (1980), 90 Ill. App. 3d 1024, 414 N.E.2d 147 (use of bulldozer to knock down trees did not transform tractor where plaintiff sat into mechanical contrivance under the Act).) Accordingly, we find that the trial court did not err in granting summary judgment on count I of plaintiff’s complaint.

Similarly, we find no error in the trial court’s ruling as to count II. The Premises Liability Act provides that “[t]he duty owed to [invitees and licensees] is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them.” (111. Rev. Stat. 1989, ch. 80, par. 302.) In this case, plaintiff’s complaint alleges that defendant was negligent with respect to plaintiff’s use of the endloader.

It is undisputed that the equipment plaintiff was operating was owned by Jay Williams, the subcontractor plaintiff worked for. There is no allegation of defect in the land or other property owned by defendant on the site. Although given an opportunity to amend his complaint to allege a duty owing plaintiff by the defendant landowner, plaintiff chose to stand on his complaint. Since plaintiff has failed to allege that his injuries were in any respect related to a condition of the premises owned by this defendant, we affirm the trial court’s grant of summary judgment for defendant under the Premises Liability Act.

The judgment of the circuit court is affirmed.

Affirmed.

STOUDER and McCUSKEY, JJ., concur.


author: JUSTICE SLATER

text:
    FARMERS STATE BANK OF SOMONAUK, Plaintiff-Appellant, v. NATIONAL BANK OF EARLVILLE, Defendant-Appellee.
    Third District
    No. 3—91—0805
    Opinion filed July 7,1992.

      Law Office of Daniel J. Kramer, of Yorkville (Daniel J. Kramer, of counsel), for appellant.
    White, Marsh, Anderson, Brusatte, Vickers & Deobler, of Ottawa (Alan Marsh, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiff, Farmers State Bank of Somonauk, initiated an action against defendant, First State Bank of Earlville, for conversion of a certain check, alleging that it represented proceeds of collateral in which plaintiff had a perfected security interest. The trial court granted defendant’s motion for summary judgment. Plaintiff appeals and we affirm.

In November 1986, plaintiff entered into two loan and security agreements with a local farmer, Harry Erickson, pursuant to which plaintiff lent Erickson $239,275.70. As collateral, plaintiff was assigned a blanket security interest which included the 1986 crops grown and stored on the Erickson farm. Plaintiff perfected its security interest by filing a financing statement with the recorder of deeds of La Salle County.

In January of 1987, Erickson sold a quantity of soybeans from his 1986 crop to Bakers Feed & Grain. Bakers issued a check payable to Erickson in the amount of $26,104.54. On January 20, 1987, Erickson negotiated that same check to defendant in partial payment of an unsecured promissory note which Erickson owed to defendant Bank. Negotiation of the check to defendant by Erickson was without the knowledge or consent of the plaintiff, and defendant had no knowledge of plaintiff’s security interest. Plaintiff made a written demand on the defendant for the grain proceeds which was refused.

Plaintiff’s amended complaint alleged that defendant unlawfully converted the check to its own use by failing to tender it to plaintiff on demand. Plaintiff alleged that it was entitled to possession of the check under section 9 — 306 of the Uniform Commercial Code (the Code) (Ill. Rev. Stat. 1989, ch. 26, par. 9 — 306) because the check constituted identifiable cash proceeds of collateral. Both parties moved for summary judgment. The trial judge granted summary judgment for defendant, finding that defendant was a holder in due course and therefore took the check free of plaintiff’s security interest. This appeal followed.

This court reviews summary judgment orders de novo. (Myers v. Health Specialists, S.C. (1992), 225 Ill. App. 3d 68, 587 N.E.2d 494.) Summary judgment should be granted where the pleadings, depositions, and affidavits reveal that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 583 N.E.2d 538.) Because the parties have stipulated that no genuine issue of material fact exists in this case, our review focuses on whether defendant is entitled to judgment as a matter of law.

A holder in due course is defined in section 3 — 302 of the Code as follows:

“A holder in due course is a holder who takes the instrument
(a) for value; and
(b) in good faith; and
(c) without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.” (Ill. Rev. Stat. 1989, ch. 26, par. 3 — 302(1).)

In the case at bar, defendant took the check in partial payment of an outstanding promissory note. Section 3 — 303 of the Code states that a holder takes an instrument for value “when he takes the instrument in payment of *** an antecedent claim against any person whether or not the claim is due.” (Ill. Rev. Stat. 1989, ch. 26, par. 3 — 303(b).) There is no allegation that defendant did not act in good faith or that defendant had notice of plaintiff’s security interest. Defendant was a holder in due course of the check in question. Section 3 — 305 of the Code states that a holder in due course takes the instrument free from “all claims to it on the part of any person.” Ill. Rev. Stat. 1989, ch. 26, par. 3 — 305(1).

Plaintiff argues that even if defendant is a holder in due course, it is entitled to possession of the check under section 9 — 306 of the Code because the check constitutes proceeds of collateral in which plaintiff has a properly perfected security interest. Section 9— 306 provides in relevant part as follows:

“(1) ‘Proceeds’ includes whatever is received upon the sale, exchange, collection or other disposition of collateral or proceeds. *** Money, checks, deposit accounts, and the like are ‘cash proceeds’. All other proceeds are ‘non-cash proceeds’.
(2) Except where this Article otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.” (Ill. Rev. Stat. 1989, ch. 26, par. 9 — 306.)

Plaintiff contends that this provision in Article 9 takes priority over the holder in due course provisions of Article 3. We disagree. Section 9 — 306(2) states that a security interest continues in collateral notwithstanding sale, “[ejxcept where this Article otherwise provides" (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 26, par. 9 — 306(2).) Article 9 does in fact “otherwise provide” in section 9 — 309:

“Nothing in this Article limits the rights of a holder in due course of a negotiable instrument (Section 3 — 302) or a holder to whom a negotiable document of title has been duly negotiated (Section 7 — 501) or a bona fide purchaser of a security (Section 8 — 302) and such holders or purchasers take priority over an earlier security interest even though perfected. Filing under this Article does not constitute notice of the security interest to such holders or purchasers.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 26, par. 9 — 309.)

Section 9 — 309 establishes that defendant, as a holder in due course, takes priority over plaintiff’s earlier perfected security interest. A leading commentator has explained how section 9 — 309 operates under the factual situation of this case:

“[A] *** problem is presented when a prior lender claims a proceeds (9 — 306) interest in negotiable instruments that arise on the sale of his collateral, and the debtor transfers the instrument to a holder in due course. By virtue of 9 — 309 and Article Three, the holder in due course will be victorious in such a case.” J. White & R. Summers, Uniform Commercial Code §25-18 (2d ed. 1980).

Our research reveals no Illinois case where this precise issue has been addressed. However, in the recent case of Allstate Financial Corp. v. Financorp, Inc. (4th Cir. 1991), 934 F.2d 55, the United States Court of Appeals addressed the issue under a factual situation almost identical to the instant case. In Allstate, the plaintiff had a security interest in the accounts receivable of a certain debtor. The debtor negotiated two checks that were proceeds of the accounts receivable to the defendant, who held a junior security interest in the same accounts. Plaintiff filed an action against the defendant for conversion, and both parties moved for summary judgment. The court of appeals affirmed the order of the district court granting defendant summary judgment. After determining that defendant was a holder in due course of the checks, the court found that defendant took the instruments free of plaintiff’s prior security interest by virtue of section 9 — 309 of the Code. The court specifically rejected the argument asserted by the plaintiff.

“Allstate [plaintiff claims that Article 3 is subject to Article 9, and that the priority scheme of Article 9 controls and gives Allstate priority as a prior secured party. The district court found that the controlling provision of the U.C.C. in this case was §9 — 309. We agree with the district court. Section 9 — 309 sets out the relative priority between Article 9 and Article 3 concerning the rights of a holder in due course and a secured party.” (Allstate Financial Corp., 934 F.2d at 59-60.)

The court of appeals held the deciding factor to be whether the defendant meets the definition of holder in due course. “If so, he gets priority over prior secured parties; if not, he loses. *** Under the plain language of §9 — 309, Financorp [defendant] had priority over the checks at issue in this case because of its status of holder in due course.” Allstate Financial Corp., 934 F.2d at 61; see also Citizens Valley Bank v. Pacific Materials Co. (1972), 263 Or. 557, 503 P.2d 491 (argument that Article 9 takes priority over Article 3 rejected); Dallas Bank & Trust Co. v. Frigiking, Inc. (Tex. App. 1985), 692 S.W.2d 163.

Plaintiff’s reliance on Bank of the West v. Commercial Credit Financial Services, Inc. (N.D. Cal. 1987), 655 F. Supp. 807, is misplaced. In that case the plaintiff initiated an action for conversion of certain accounts receivable of a debtor which were subject to plaintiff’s security interest. Defendant, a junior secured creditor of the same accounts, argued that it was a holder in due course of certain checks negotiated to it by account debtors. The court rejected defendant’s argument and in doing so noted that plaintiff’s conversion claim was not based on an interest in the checks negotiated to defendant. Rather, the claim was to the value of the accounts which the defendant had converted by accepting the checks as payment. Because the claim was not based on an interest in the checks, the court held that the holder in due course rule did not apply. (Bank of the West, 655 F. Supp. at 820.) In the instant case, plaintiff’s conversion claim is based on an interest in the check negotiated to defendant by Erickson.

Finally, plaintiff contends that defendant’s claim to the check is defeated by section 9 — 308 of the Code, which provides:

“A purchaser of chattel paper or an instrument who gives new value and takes possession of it in the ordinary course of his business has priority over a security interest in the chattel paper or instrument
(a) which is perfected under Section 9 — 304 (permissive filing and temporary perfection) or under Section 9 — 306 (perfection as to proceeds) if he acts without knowledge that the specific paper or instrument is subject to a security interest; or
(b) which is claimed merely as proceeds of inventory subject to a security interest (Section 9 — 306) even though he knows that the specific paper or instrument is subject to the security interest.” (Ill. Rev. Stat. 1989, ch. 26, par. 9 — 308.)

Plaintiff argues that while a purchaser need only take an instrument “for value” in order to attain holder in due course status, a purchaser must give “new value” in order to take an instrument free of a prior perfected security interest under section 9 — 308. Because defendant took the check in partial payment of an antecedent debt, the plaintiff argues that defendant did not give new value for the instrument.

We need not address whether payment of an antecedent debt constitutes “new value” under section 9 — 308 because section 9 — 308 is inapplicable in this case. That section specifically refers to purchasers of an instrument, not to holders in due course. The official Uniform Commercial Code Comment makes it clear that this section is meant to expand the protection of purchasers of instruments which are subject to security interests beyond the protection afforded to holders in due course under section 9 — 309. The comment states that “a purchaser of a negotiable instrument might prevail under clause (b) even though his knowledge of the conflicting proceeds claim precluded his having holder in due course status under Section 9 — 309.” (Ill. Ann. Stat., ch. 26, par. 9 — 308, Uniform Commercial Code Comment, at 205 (Smith-Hurd 1974).) This section is applicable only to those purchasers of negotiable instruments who fail to meet the requirements of a holder in due course.

In summary, defendant is a holder in due course and holds the check in question free of plaintiff’s perfected security interest by virtue of section 9 — 309 of the Code. The order of the circuit court granting summary judgment in favor of defendant is affirmed.

Affirmed.

BARRY, P.J., and HAASE, J., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH POZDOLL, Defendant-Appellant.
    Second District
    No. 2—90—0832
    Opinion filed July 2,1992.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Barbara Chasnoff, of Chicago (William L. Browers and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

In a bench trial, defendant, Joseph Pozdoll, was found guilty of unlawful possession of a stolen vehicle in violation of section 4— 103(a)(1) of the Illinois Vehicle Code (Ill0. Rev. Stat. 1989, ch. 951/2, par. 4 — 103(a)(1)). The circuit court of Du Page County sentenced defendant to five years’ probation under the supervision of TASC for the Class 2 felony offense. The issues presented for review are whether: (1) defendant was proved guilty beyond a reasonable doubt of unlawful possession of a converted motor vehicle; (2) defendant was deprived of effective assistance of counsel due to a failure to object to the State’s amendment of the original charge; and (3) defendant knowingly and voluntarily waived his right to a jury trial. We affirm.

At approximately 12:30 a.m., on November 8, 1989, defendant appropriated a 1977 Chevrolet from the parking lot of Woodfield Corporate Center in Schaumburg. Gerardo Garcia, the vehicle’s owner, had left the running car unattended while he returned to the building to help his wife gather cleaning supplies. Gerardo and his wife were both employees of a company hired to provide janitorial services to the corporate center. Garcia neither knew defendant nor gave him permission or authority to enter or drive his vehicle.

On November 8, 1989, at approximately 12:45 a.m., a police officer stopped defendant for having committed several traffic violations. Defendant could not produce a driver’s license, and a computer check showed that the vehicle was registered to Gerardo Garcia.

Defendant, at various times, told four different stories as to how he came into possession of Garcia’s car. On November 8, 1989, he told the police that he had purchased the car from Garcia but had not yet registered it. On February 7, 1990, defendant told the investigating police officer that a friend had purchased the car and had given it to defendant to use. Then, defendant said he and Garcia met on the morning of November 8 and that Garcia left defendant in the car. When Garcia failed to return for over an hour, defendant started the car and drove off. Finally, on February 21, 1990, when defendant was arrested, he told the police that on November 8 he had been arguing with his ex-wife and decided to leave her car at about 12:30 a.m. It was cold that evening, and he needed a ride home. Thus, seeing the keys in Garcia’s car, he took it.

Defendant first argues that his conviction requires reversal because the State failed to prove beyond a reasonable doubt that defendant’s actions constituted a conversion of the car or that defendant knew a conversion had occurred. Defendant relies upon People v. Sergey (1985), 137 Ill. App. 3d 971, to support his assertion that the facts in the present case do not amount to a conversion of property. In Sergey, an amusement park employee took what he thought to be his employer’s car in order to purchase liquor. The car, however, did not belong to defendant’s employer, and, as defendant returned to the amusement park, he was arrested by the police and charged with driving under the influence and unauthorized possession of a vehicle which was knowingly converted. The court reversed defendant’s conviction on the conversion claim because defendant justifiably thought he was borrowing his employer’s car, defendant had no intent to criminally deprive the owner, and it was unrefuted that defendant’s employer would have granted permission to use the vehicle. The court determined that to hold otherwise would render every act of borrowing a friend’s chattel without his express permission a criminal conversion. Sergey, 137 Ill. App. 3d at 976.

We find the facts of Sergey distinguishable from those in the instant case because defendant neither knew Garcia nor could he reasonably claim to have received permission to use the vehicle. Furthermore, there is no evidence that defendant intended to return the car or leave it in a place where the owner could safely recover it. Therefore, we cannot agree with defendant’s position that conversion cannot be found where there is only" temporary use of property without causing harm to it. To do so would ignore the element of implied consent present in the Sergey case which reduced the borrower’s culpability.

Intent to permanently deprive another of his property may be inferred from the lack of any evidence of an intent to return the property or to leave it in a place where the owner could safely recover it. (People v. Henry (1990), 203 Ill. App. 3d 278, 280.) In the present case, defendant gave four different stories as to how he came into possession of Garcia’s car. In our view, one who intended to return property to its rightful owner would have no need to rationalize possession of the property in such a manner. Indeed, defendant’s statement that he had purchased the car from Garcia conveys a belief that Garcia no longer owned the vehicle. Under these circumstances, we find sufficient evidence to affirm defendant’s conviction of unlawful possession of property knowing it to have been stolen or converted.

Defendant next argues that his case was prejudiced due to defense counsel’s ineffectiveness as established by a failure to object to the State’s filing of an amended complaint. On the day of trial, the State asked for and was granted leave to amend the complaint by filing an information adding the word “converted” to the charge. Thus, the information charged defendant for possession of a stolen or converted vehicle. Defense counsel offered no objection to this amendment. Defendant argues that counsel failed in his duty to consider what effect the amendment would have on the charge and on the defense. Defendant also asserts that counsel could have successfully objected to any change in the charge or, at least, obtain time to deal with the amended charge.

To succeed on this claim, defendant must show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; see also People v. Chandler (1989), 129 Ill. 2d 233, 242.) In making a deficiency determination, Strickland requires us to consider the “totality of the evidence before the judge or jury.” (Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069.) In light of the totality of the evidence in this case, we do not view counsel’s performance as deficient. In sum, the court properly allowed the amended complaint and defense counsel ably argued the law of conversion.

Defendant asserts that the amended complaint should not have been allowed because the State failed to follow procedures established by the court in People v. Kincaid (1981), 87 Ill. 2d 107. In Kincaid, the question was whether an information may be amended prior to trial to include essential elements of the offense charged. In reaching its conclusion, the court explained that the purpose behind allowing the State to amend the information is to avoid unnecessary delay which would occur if the State were forced to dismiss the charge and file a new complaint. The court concluded that the State should be allowed to amend an information to include essential elements of the crime charged only when such amendment is made before trial, after a prompt preliminary hearing to determine probable cause and upon granting defendant time to plead anew and further prepare his defense. Kincaid, 87 Ill. 2d at 125.

In Kincaid, the court allowed the State to amend its information because such amendment was accomplished prior to trial. The court also pointed out that there had already been a preliminary hearing to determine probable cause on the initial complaint which brought out sufficient facts such that it was unnecessary to hold a preliminary hearing following the filing of the amended information. Moreover, the court offered defendant additional time within which to prepare, but the offer was refused.

In the present case, the amendment was proffered by the State prior to trial, albeit at the virtual commencement of the trial. Defendant waived his preliminary hearing with respect to the charges against him. However, we determine that probable cause existed to try defendant on the charge of conversion in light of the probable cause sufficient to charge defendant for theft. Finally, it is clear that defense counsel was prepared to and did argue the law of conversion as it appeared in the amended complaint. Indeed, defendant’s trial counsel relied on authority to attack the charge of conversion similar to the authority appellate counsel relies upon in this appeal. Thus, defense counsel did not require additional time in order to respond to the amended complaint. In light of the above, we determine that defense counsel’s failure to object to the State’s amended complaint did not prejudice defendant’s case and, therefore, an ineffectiveness of counsel claim cannot stand.

Defendant finally argues that his conviction must be reversed because there is nothing in the record to indicate that defendant understandingly waived his right to a jury trial in open court. Defendant makes two separate assertions in support of this position.

First, defendant argues that the trial court failed to secure an understanding waiver by defendant in open court and that a valid waiver cannot be imputed to defendant through his counsel’s actions. In the present case, in the presence of defendant, defense counsel asked that the matter be set for a bench trial. At a subsequent proceeding defense counsel stated to the court that the matter was up for bench trial. The judge indicated that the case would have to be transferred to another court because of scheduling difficulties. Defense counsel then stated: “I believe I tendered a jury trial waiver under the stipulation that if it was transferred out, that I would be able to withdraw it.” The trial court agreed.

Continuing before a different judge later that day, the prosecuting attorney informed the court that “[t]he matter comes up for bench trial.” The court asked whether there had been a jury waiver, and defense counsel responded in the affirmative. Defendant now asserts that, although the record reflects several references to a bench trial by counsel and the court, no inquiry of the defendant or express jury waiver was made at any point. Defendant cites People v. Smith (1985), 106 Ill. 2d 327, to support his claim that the facts above do not meet the requirements of an understanding waiver made in open court. In Smith the defendant and his attorney were informed by notice that a bench trial was scheduled for the matter. In addition, the common-law record indicated that the cause “comes on for Bench Trial.” The court held this evidence insufficient to support a claim that an understanding waiver was made in open court.

We determine that the facts of the present case support a finding that defendant made a voluntary and understanding jury waiver. Unlike Smith, the record here shows that counsel for defendant orally requested a bench trial in defendant’s presence. An accused speaks and acts through his attorney. (People v. Tucker (1989), 183 Ill. App. 3d 333, 335.) Furthermore, a trial court is entitled to rely on the defense attorney to execute his professional responsibilities. (Tucker, 183 Ill. App. 3d at 335.) Thus, when defense counsel informs the court of defendant’s desire for a bench trial, it is generally accepted that defendant knowingly and understanding^ consented to the waiver of a jury trial and expressed the same through his attorney. (Tucker, 183 Ill. App. 3d at 335.) In fact, the court in Smith recognized the validity of a waiver made by defense counsel in the presence of defendant and without his objection. Smith, 106 Ill. 2d at 334.

Defendant’s second argument in this regard is that his conviction must be reversed because there is no written waiver by defendant of his right to a jury trial, as required by section 115 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115-1).

“All prosecutions except on a plea of guilty or guilty but mentally ill shall be tried by the court and a jury unless the defendant waives such jury trial in writing or, in a criminal prosecution where the offense charged is first degree murder, a Class X felony, criminal sexual assault or a felony violation of the Cannabis Control Act or the Illinois Controlled Substances Act both the State and the defendant waive such jury trial in writing.” (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 1.)

Defendant acknowledges that our supreme court, in People ex rel. Daley v. Joyce (1988), 126 Ill. 2d 209, declared the 1987 and 1988 amendments to section 115 — 1 unconstitutional based on the statute’s requirement that both the State and the defendant must execute jury waivers in certain classes of offenses.

In People v. Gersch (1990), 135 Ill. 2d 384, our supreme court explained that in Joyce the amended statute was declared void ab initio, and this left in force the version of section 115 — 1 as it existed prior to July 1987. Since the amendments to the statute were found void ab initio, it is as if the amended statute never existed; thus, the court concluded, the rule of Joyce must be applied retroactively. Gersch, 135 Ill. 2d at 401.

Defendant argues that the statutory requirement of a written jury waiver survives because Joyce only invalidated a severable portion of section 115 — 1. We disagree. The entire amendment was struck down because, as the court explained in Gersch, the rule of Joyce left the statute as it existed prior to the 1987 amendment, thereby indicating that the amended statute has been held unconstitutional in its entirety. (Gersch, 135 Ill. 2d at 390.) Prior to the 1987 amendment, section 115 — 1 stated, “[a]ll prosecutions except on a plea of guilty or guilty but mentally ill shall be tried by the court and a jury or the court when a jury is waived by the defendant in open court.” Ill. Rev. Stat. 1985, ch. 38, par. 115-1.

Although the Gersch court declined to rule on whether Joyce should be interpreted to mean that both the original statute and all its amendments are void ab initio (Gersch, 135 Ill. 2d at 393), that does not affect the conclusion of the supreme court that the 1987 and 1988 amendments to section 115 — 1 are void ab initio. The court’s statement that the pre-1987 version of the statute is the one left in force (Gersch, 135 Ill. 2d at 390) demonstrates that the provision that jury waivers must be in writing is void and must be treated as if it never existed. The court’s conclusion means that the amendment, in its entirety, has no effect. (Gersch, 135 Ill. 2d at 390.) Thus, the absence of a written jury waiver does not require a new trial. People v. Deveaux (1990), 204 Ill. App. 3d 392, 402-03.

Therefore, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT and WOODWARD, JJ., concur.


author: JUSTICE LINN

text:
    ANNIE P. SLAGER, as Adm’r of the Estate of David Harold Slager, Deceased, et al., Plaintiffs-Appellees, v. COMMONWEALTH EDISON COMPANY, INC., Defendant-Appellant (Farmer’s Grain Service et al., Defendants).
    First District (4th Division)
    No. 1—90—3606
    Opinion filed May 7,1992.
    Rehearing denied July 14,1992.

      Pope & John, Ltd., of Chicago (William R. Quinlan and Peter C. John, of counsel), for appellant.
    Leonard M. Ring & Associates, P.C., of Chicago (Leonard M. Ring and Leslie J. Rosen, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Annie Slager, brought an action against Commonwealth Edison Company, Frank L. Brass, and Farmer’s Grain Service, Inc., on behalf of the estate of her deceased husband, David Harold Slager. The decedent was killed on February 8, 1982, as he left the premises of Commonwealth Edison (Edison) in his car. Striking workers were surrounding the cars of exiting nonstrikers and pelting the cars with rocks. Slager, trying to escape the situation, exited quickly and turned left onto a public highway into the path of a semitrailer track operated by Brass, who was employed by Farmer’s Grain Service, Inc.

The jury returned a verdict in favor of defendants Brass and Farmer’s Grain Service, Inc., but also returned a verdict in favor of plaintiff and against Edison. The total sum awarded to Slager’s estate, after being reduced by 40% for Slager’s own negligence, was $900,000.

Commonwealth Edison appeals, arguing that as a landowner it was not liable to a person who had left the property at the time of the accident, which occurred on an adjacent highway. Alternatively, Edison contends that it owed no duty to Slager under principles of ordinary negligence and that there was no proximate causal connection between Edison’s conduct and Slager’s accident. Finally, Edison challenges certain jury instructions and an evidentiary ruling.

We affirm.

Background

David Slager, a member of the pipefitters union, worked as a quality control inspector for Morrison Construction Company. On February 8, 1982, he and other Morrison employees were working at Edison’s nuclear power plant in Brookfield Township, which was then under construction. A few days before, two unions, the pipefitters and the laborers, had argued over who had the rights to salvage scrap pipe or plate metal on the premises. This jurisdictional dispute was not resolved and the laborers launched a wildcat strike. They erected a picket line adjacent to Edison’s main gate and property line, next to the county highway, Grand Ridge Road. This main gate led to three parking lots: one for Edison’s own construction workers, one for its production workers, and one for the subcontractors’ construction workers. There were also exits to the northeast and northwest, but at the time of the incident they remained closed to the independent contractors and were to be used only by Edison employees.

According to trial testimony, Edison’s policy was to notify local unions through the contractors that the strike was illegal and that the workers would be expected to cross the picket line. Edison employed a private security force and, in addition, worked with State and county police to keep order during strike situations. In connection with the wildcat strike activities, Edison arranged for police to be present during both shift changes, which is the time when the picket line is crossed by those workers not on strike.

The union steward for the pipefitters came to work the morning of February 8 and told the pipefitters to cross the picket line. He met with Edison’s project manager for construction, Leo Burke, who assured him that the workers would have police protection when they left. Burke said he had already called the police and would do so again to make certain of their presence during the shift changes.

Before noon on the day of Slager’s death, some of the picketers were drinking beer. Edison’s safety coordinator for the construction site, Wayne Elens, reported this fact to Edison’s construction superintendent, Dick Cosaro. Elens, who was responsible for the safety of the contractors as they entered and left the premises, testified that he felt uneasy about the strike. He asked Cosaro about opening up the east gate of the premises so that the contractors could exit the premises there instead of crossing the picket line at the main gate. Elens also discussed the possibility of letting the pipefitters off early, but Cosaro and Burke decided against it.

Two squad cars of county police were at the site most of the day, parked on the access road. Within a half hour of the afternoon shift change, however, the police told Elens that the picketers were not causing any problems and the police had decided to leave. Although Elens and Burke asked the police to stay, they left anyway. State Police arrived shortly after and Elens told them he was afraid there might be a problem at the shift change, but as long as police were there the picketers would behave. The State Police, however, declined to stay because the county police had already left.

Edison’s security company, Bums, provided 50 to 60 guards on the premises for any given shift. The guards’ duties included controlling traffic. They were stationed in a watch tower in the construction lot and in a gate house by the gate that controlled access to the production parking lot.

Pursuant to an agreement between Edison and the local unions, all trade workers who were not Edison employees were required to use the main exit during labor disputes. Under the agreement, if any union employee involved in a labor dispute used one of the alternative exits, the strikers were entitled to picket those exits as well, so as to frustrate the ability of the union employees to avoid the picketers. Edison employees, however, were encouraged to use the alternative exits and thus avoid running the gauntlet of picketers.

Daniel Shamblin, an Edison employee, explained plant policy during wildcat strikes. According to him, there had been 15 prior unauthorized strikes at the plant since 1973 and, to his knowledge, no acts of violence had occurred. There is no formal written document of Edison’s wildcat strike policy, but Shamblin stated that Edison expects local and county police to control the picket line. The traffic builds up around the main entrance and the police are there to facilitate “safe entrance and exit from the plant.”

Written notice was posted in the service building, directing the Edison workers to leave the plant via the Marseilles Road exit. Neither the pipefitters nor other tradesmen were to leave by that exit, however. The Burns guards were instructed to tell the non-Edison employees not to use the production road, which branches off the main access road and leads to the production parking lot and alternative exit used by Edison employees.

On February 8, 1982, just before 4 p.m., Edison blew a whistle to announce quitting time. The pipefitters lined up in their cars in the construction parking lot. Because the other exits were not available for their use, they were funneled straight down the main access road leading to Grand Ridge Road, an east-west county highway perpendicular to the main access road. A stop sign was located at the edge of the main access road.

According to two pipefitters who testified at trial, there were at least 100 people in the picket line, standing across the entrance of the main access road. Vehicles were parked along the road and some of the picketers had signs or sticks in their hands. A few cars passed through. Then the picketers started throwing snowballs mixed with rocks at the cars. Earl Warren, a pipefitter, testified that as he tried to pass, some laborers started hitting his car with sticks and clubs. Warren recognized one of the laborers and got out of his car to talk to him. Warren was hit in the jaw. He got back in his car and, when another vehicle pulled in front of him to block his exit, he turned around and drove back.

As he retreated, Warren saw his union steward, Pat Mossey, and stopped to tell him about the situation. Mossey said he would go back and call the police. Mossey told Warren to wait for the police and repeated this to some of the other pipefitters in the line. Another pipe-fitter, Ken Majernik, testified that he was not told that the steward was calling the police and was not told to wait for their arrival.

Two other pipefitters, Charles Bault and Mike English, waited about 5 or 10 minutes for the union steward to return. They decided to leave on their own and began driving down the access road to get to Grand Ridge. David Slager was in a car behind Bault’s. Although the picketing was to take place off Edison’s property, testimony indicated that at least some of the picketers were several feet north of the stop sign, on Edison property. As Bault approached the junction between the main access road and the county highway, he slowed to 5 or 10 miles an hour. The strikers were throwing things at the car and they converged on his vehicle, pushing and rocking it, and yelling and screaming. Bault passed through and turned right onto Grand Ridge Road.

As Slager pulled out behind the Bault vehicle, however, he turned left onto the highway. Just before Slager exited, someone had begun hitting the top of his car, on the driver’s side, with a picket sign. Slager accelerated and turned onto the highway, directly into the path of the semitrailer truck driven by Frank Brass. These two vehicles hit two of the cars parked on the shoulder of the road and ended up in a field adjacent to the roadway. Slager died almost immediately.

Brass testified that as he approached the intersection of Grand Ridge Road and Edison’s access road his vision was obstructed by the cars parked on both sides of the road, the semitrailer parked near the shoulder, and the snow bank piled on Edison’s property as well as by the strikers who were milling around. Other witnesses said that they had no problems seeing from the access road to the county highway, and one pipefitter testified that he could see the semitrailer track from his car, which was behind Slager’s. The evidence further indicates that although Slager had been travelling slowly to the end of the access road, he may not have come to a complete stop at the stop sign before pulling out onto the highway.

Slager’s survivors include his wife and four children.

Opinion

I

NATURE OF EDISON’S DUTY

Edison’s central argument is that it owed Slager no duty, either as a landowner or under any other principles of negligence. Any duty arising out of Slager’s status as a business invitee ceased once Slager left the premises, according to Edison. Furthermore, Edison contends that nothing it did or failed to do on its property proximately caused Slager’s fatal injuries.

Plaintiff maintains that, even apart from Edison’s duty as a landowner to provide safe egress to its business invitee, Edison promised to provide for the safety of the pipefitters during the strike, inducing them to continue working, and then failed to live up to that promise.

The trial court instructed the jury on plaintiff’s theory of ordinary negligence, rather than landowner liability. According to plaintiff, the law distinguishes between cases in which there is a dangerous condition on land that causes injury, and the activities of the owner or occupier of the land that result in harm to the plaintiff. (E.g., Votava v. Material Service Corp. (1979), 74 Ill. App. 3d 208, 212-13, 392 N.E.2d 768.) Edison, however, argues that because of its status as landowner, the sole basis for imposing a duty upon it must come from a determination that there was a condition on Edison’s property that enhanced the likelihood of injury to Slager, and that Edison could have reasonably foreseen that the condition or activity on the land would result in injury.

In support of its position, Edison cites a treatise, W. Keeton, Prosser & Keeton on Torts §61, at 419 (5th ed. 1984) (Prosser and Keeton) for the proposition that although a landowner is under an affirmative duty to protect a business invitee against dangers that the owner might discover with reasonable care, this special obligation exists only while the invitee is upon the premises. Furthermore, there is no obligation to protect an invitee against a danger of which the invitee knows or may reasonably be expected to discover. (Prosser and Keeton §61, at 426-27.) Finally, an owner of land has an obligation to protect an invitee from the actions or negligence of third parties only when they occur on its land and when the owner has reason to believe that such an injury would occur to the invitee based on past experience with the third party. Prosser and Keeton §61, at 428.

From these general principles of landowner liability, Edison concludes that the only duty it might have by reason of its relationship to Slager must arise from (1) hidden defects or dangers on its land of which it knew or should have discovered; or (2) its failure to exercise reasonable care for Slager during the business invitation, within the scope of the invitation, and while Slager was on Edison’s property.

Before examining specific facts and cases, we note that plaintiff is propounding a duty based on Edison’s negligent acts, independent of or in addition to its status as landowner. In contrast, Edison relies on that very status as the sole basis upon which a tort duty may arise. This dichotomy leads to strained analytical distinctions because it emphasizes black letter rules over the factual dynamics of the case. For example, by focusing on the principle that a landowner’s duty to its invitee ends when the invitee leaves the property — in itself a proper and logical notion — Edison would argue that its responsibility for Slager’s safety ceased once Slager’s car made its turning exit from the property and passed the invisible property line of the plant. The circumstances of Slager’s exit from the plant, however, demonstrate that the fatal collision was not clearly separate and divisible from what had occurred in the preceding seconds, while Slager was trying to leave the Edison property.

Decisions involving only dangerous conditions or characteristics of the land are distinguishable from the circumstances in this case. In Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 566 N.E.2d 1365, a case upon which Edison relies, the plaintiff sought damages for injuries he suffered while riding his bicycle on a public road past the driveway of defendant landowner. A truck that was exiting from the driveway hit the plaintiff. Thereafter, the plaintiff sued the property owner on the basis that dense foliage grew along defendant’s driveway, blocking the view of approaching travelers on the road. In rejecting this theory of landowner liability, the court noted that the plaintiff never entered defendant’s property or came in contact with anything on the land, which was the common law basis for a landowner’s duties to travelers on adjacent highways. After reviewing prior cases holding that a landowner has no duty to maintain his property in such a way that it does not obstruct the view of travelers on an adjacent highway, the court noted that the truck driver who failed to maintain a lookout in exiting the property had been in the best position to prevent the injury. Accordingly, the court concluded that “the usual justification for imposing landowner liability is not present in this case.” 142 Ill. 2d at 53, 566 N.E.2d at 1369.

The pending case, unlike Ziemba, does not involve a landowner’s duty to travelers on adjacent highways. Slager was not merely driving past the Edison plant while an exiting vehicle was negligently emerging. He was Edison’s business invitee whose fatal exit from the property occurred in the wake of at least two significant facts: (1) he had been working on the premises at the behest of Edison, which gave assurances of safety; and (2) rowdy wildcat strikers were encamped along the sole exit route open to him and the other pipe-fitters, and Edison not only knew of that situation but also had the power to open other exits and use its own security force to control traffic. In contrast, the dispositive issue in Ziemba was whether the landowner’s failure to defoliate the entrance to his driveway gave rise to a duty in tort to the passing traveler who was hit by an emerging vehicle whose driver failed to check traffic conditions.

Plaintiff’s theory of liability does not depend upon the presence of a physical condition on Edison’s property; rather, her theory centers on the actions or nonactions of Edison officials, in connection with the wildcat strike, which led to her husband’s fatal injuries.

Likewise, Edison cannot rely on Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 523 N.E.2d 594, appeal denied (1988), 122 Ill. 2d 595, 530 N.E.2d 266. In Swett, three family members were crossing a highway on foot to get from a restaurant to its parking lot on the other side. A car travelling along the highway struck and killed two of the pedestrians and injured the third. The injured plaintiff sued the restaurant for failing to maintain a safe passageway between the restaurant and its parking lot. In declining to impose liability against the restaurant, the court noted that the dangerous condition from which plaintiffs were seeking protection — moving traffic on a highway — was not the type of condition on one’s property that led to the finding of a duty on the part of a landowner.

In the pending case, Slager was not simply crossing a highway at the end of a noneventful day but escaping from an ugly situation that arose from the picketing of the Edison plant. Edison’s main exit was the site of the striking activities and the nonpicketing workers were the target. Precisely because of the tense situation, Edison had provided assurances of the pipefitters’ safety. As noted, plaintiff’s theory of Edison’s duty is not bottomed on its general status as landowner. Instead, she pleads the existence of a duty of reasonable care, based on Edison’s promise to provide for the safety of the pipefitters after inducing them to cross the picket lines and come to work. See McLane v. Russell (1989), 131 Ill. 2d 509, 514-15, 546 N.E.2d 499, 502 (“To conclude that a duty exists, a court must find that the defendant and the plaintiff stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff”); Castro v. Chicago Park District (1988), 178 Ill. App. 3d 348, 352, 533 N.E.2d 504 (Imposition of duty depends, in addition to foreseeability, upon the likelihood of injury, the magnitude of the burden of guarding against harm, and the desirability of placing such burden on the defendant).

FORESEEABILITY

Edison nonetheless maintains that it is unfair to hold it responsible for what it terms a freakish accident that it could not have foreseen. Edison claims that Slager’s death falls into the category of an injury that is merely possible rather than reasonably or objectively foreseeable. See Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 468, 343 N.E.2d 465, citing with approval Restatement (Second) of Torts §343 (1965), which sets forth landowners’ liability to invitees based on a dangerous condition on land.

In a case involving landowner liability for dangerous conditions on its land, our Illinois Supreme Court held that a K mart store owed a duty of reasonable care to its exiting customer who foreseeably collided with a cement post outside of the door of the K mart while holding a large and bulky item. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223.) The fact that the plaintiff was distracted and failed to see and avoid the post did not obviate the store’s duty, nor was it unforeseeable that people holding large items might ram into the post on their way out of the store.

In Nelson v. Commonwealth Edison Co. (1984), 124 Ill. App. 3d 655, 465 N.E.2d 513, a 10-year-old boy suffered electrical burns when a spool of copper wire he was holding came near high voltage, uninsulated power lines 30 feet above the middle of the playground in which he was playing. In finding the existence of a duty on the part of defendant, the court addressed the foreseeability issue as being determinative “only where a particular occurrence is so extreme that, as a policy decision, it would be unwise to require defendant to guard against it.” (124 Ill. App. 3d at 663, 465 N.E.2d at 519.) The court added, “In the majority of cases, where varying inferences are possible from the facts, a court should permit the jury to decide the foreseeability issue, including the foreseeability of the particular cause and effect of plaintiff’s injury, as a factual matter in its proximate cause determination.” (124 Ill. App. 3d at 663, 465 N.E.2d at 519.) We agree.

Foreseeability of harm, in connection with a duty, is not a magic concept that stalls common sense. (See Robinson v. The Suitery, Ltd. (1988), 172 Ill. App. 3d 359, 363, 526 N.E.2d 566, 568 (Foreseeability of harm “ ‘does not enter into the process’ of critical inquiry ‘into the true basis of duty’ ”), quoting Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1050, 462 N.E.2d 502, 508.) Moreover, it is not the precise pattern of events that must be foreseeable; rather, it is the risk of harm or danger to the one to whom the duty is owed. Filipetto v. Village of Wilmette (1985), 135 Ill. App. 3d 781, 784, 482 N.E.2d 358 (foreseeability in context of proximate cause determination).

Here, Slager was one of the pipefitters for whom Edison gave assurances of safe passage across the picket line by urging the union to bring its members and by telling the union steward at the plant that the workers’ safety would be ensured. The fact that Edison did call the police indicates that not only was injury foreseeable but that Edison was attempting to fulfill its responsibility for plant safety. Whether Edison personnel were negligent in failing to do more was what the jury had to decide, based on all of the facts.

Edison took steps to ensure that the wildcat strike would not interfere with its own, nonunion employees. To that end, Edison employees were encouraged to use alternative exits not available to Slager or the other pipefitters. In light of the growing tensions and lack of police presence, Edison might have issued a simple directive to let the pipefitters use alternative exits, notwithstanding the fact that the wildcat picketers could then cover those exits also. Just because strikes in the past had not resulted in serious injuries does not mean that, as a matter of law, Edison could not have foreseen present safety problems. It is not unforeseeable that bitter rivalries or resentments over union jurisdictional disputes might flare into violence.

Edison nonetheless maintains that it cannot be held liable for the unforeseeable conduct of third parties, citing Lutz v. Goodlife Entertainment, Inc. (1990), 208 Ill. App. 3d 565, 567 N.E.2d 477. In Lutz, the plaintiff unsuccessfully attempted to hold the owner of a bar liable for injuries he sustained when he bumped into a man on the dance floor. The man then struck the plaintiff. In finding the plaintiff’s position untenable, the court stated that it was not reasonable to impose a duty upon the bar owner based on the overcrowded nature of the dance floor, which in and of itself did not put defendant on notice that an act of violence would occur thereon.

We do not find Lutz analogous to the circumstances of the pending case. The duty alleged in this case arises out of Edison’s express statements, actions, and intent to provide for the safety of the pipe-fitters during the wildcat strike. Where such a duty is deliberately undertaken, the mere fact that there had been no history of violence in previous strikes is of limited significance. Moreover, the fact that Edison may have relied on the police for assistance does not extinguish its own responsibility. Indeed, Edison’s recognition of the need for police to remain during the shift change underscores its awareness, and thus the foreseeability, of harm coming to the pipefitters through the conduct of the wildcat strikers.

We conclude that the trial court did not err in holding that plaintiff had established a sufficient basis upon which to impose a duty in this case. Edison owed Slager a duty of due care, based on the promise, assurance, or undertaking to provide for the safety of the workers who crossed the picket line. While Edison would not normally be liable for the tortious acts of other parties over whom it has no control, Edison remains responsible for those of its own negligent actions that proximately caused Slager’s injuries. In this case, Edison made a series of choices or business decisions on the date of the accident. As these decisions were implemented, the pipefitters were channeled down to the point of confrontation. The evidence adduced at trial indicates that some of the picketers had crossed onto Edison’s property at the time of the incident. Even if they had not, a mob of them were so near the Edison property as to block a vehicle that was trying to exit, surround that vehicle, and start rocking it, which forced it to retreat. Therefore, it is clear that the picketers were actively interfering with the safe egress of the pipefitters from Edison’s property. Singer’s car was hit with a board as it was trying to leave. Under the circumstances of this case, we cannot say that the trial court erred in finding that Edison owed a duty to Slager.

II

PROXIMATE CAUSE

As long as the duty is found to exist, moreover, such facts as the failure of Edison to allow the pipefitters to use alternative exits goes to breach of the duty and causation, questions of fact for the jury. (Castro v. Chicago Park District, 178 Ill. App. 3d at 352.) Although Edison asserts that this court should hold that Edison’s acts or omission were not the proximate cause of Singer’s injuries, as a matter of law, we decline to so hold. (See Merlo v. Public Service Co. (1942), 381 Ill. 300, 317, 45 N.E.2d 665, 675 (If a party’s negligence does nothing more than furnish a condition by which an injury is made possible, and a subsequent act by a third party breaks the causal connection between the original wrong and the injury, the court may be able to determine proximate cause as a question of law. However, the test in determining the question of proximate cause “is whether the first wrongdoer might have reasonably anticipated the intervening cause as a natural and probable result of the first party’s own negligence”).) Edison argues that the violent acts of the picketers, and Slager’s own negligence, should be viewed as intervening or superseding causes of the injuries. As such, the causal connection between Edison’s conduct and Slager’s death would be cut off. While Edison’s argument is a reasonable one to make, one which it undoubtedly argued to the jury, we believe that reasonable minds certainly can differ on the question of proximate cause in this case. The jury is not, moreover, bound to find one sole proximate cause and, indeed, there may be more than one proximate cause for an injury (Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 88, 199 N.E.2d 769). The jury must also compare the negligence of the respective parties in making its final assessment of who is legally responsible for a given injury and to what extent. See Filipetto, 135 Ill. App. 3d at 785 (Adoption of comparative negligence in Illinois has diminished the need for a policy of protecting remotely negligent defendants).

We believe that Edison’s various concerns and arguments were properly left for the jury’s consideration. Edison was free to argue its lack of authority to control the police; its inability to open other exits or interfere with the strikers; its lack of prior experience with violent strikers; and Slager’s lack of prudence in darting out onto the highway into traffic. The jury could have decided, for example, that Edison did not breach its duty because it did everything reasonably within its power to safeguard the workers. Or, it could have concluded that even if it did negligently fail to provide for Slager’s safety in accordance with its assurances, Edison’s failings were not a proximate cause of Slager’s injury. Instead, the jury found that Edison had breached its duty of reasonable care, which proximately caused Slager’s fatal injuries. The jury also held Slager 40% responsible for his injuries, thereby reducing Edison’s liability. We will not second-guess the jury’s verdict on properly tried issues; Edison’s appeal is not based on the contention that the verdict is against the manifest weight of the evidence.

III

JURY INSTRUCTIONS

Edison’s challenge to the Illinois Pattern Jury Instructions (IPI) that were tendered on plaintiff’s theory of liability must fail in light of our conclusion that the court properly found the existence of a duty under ordinary principles of negligence. The court instructed the jury under that theory. Our earlier analysis of the nature of Edison’s duty reveals the flaws in Edison’s challenge to the instructions. Edison simply reiterates its belief that any duty it had was premised on its status as landowner responsible for a condition of the land that caused injury. Under this argument, the trial court erred in rejecting Edison’s proffered instructions that specifically framed the issues in terms of landowner liability principles.

We reject Edison’s challenge to the instructions for the same reasons we found unpersuasive its formulation of duty. The court would have erred if it had instructed the jury on both theories, which could only cause confusion. The court instead found that the ordinary negligence instructions better fit the facts. It may be possible to view the picketing activity on or near Edison’s premises as a “condition” of the land under the principles of landowner liability; in fact, plaintiff’s brief contains an alternative argument supporting her recovery based on the landowner liability principles. We need not rule on the viability of this secondary theory of recovery, however, because we agree with the trial court that the ordinary negligence instructions embodied the more accurate theory under the facts. See Piper v. Moran’s Enterprises (1984), 121 Ill. App. 3d 644, 459 N.E.2d 1382 (Trial court did not err in giving comparative negligence issues instruction on plaintiff’s theory that grocery store’s conduct proximately caused her injuries when she fell from a pallet on which she stood to reach a carton of root beer).

Likewise, Edison’s challenge to the court’s refusal of its non-IPI instructions on proximate cause must fail. The two refused instructions would have permitted the jury to find in favor of “the defendants” if it found that the sole proximate cause of the decedent’s death was the conduct of the picketers or of David Slager. We agree with plaintiff that the two instructions would have improperly highlighted defendants’ position on proximate cause. Because the jury received the pertinent IPI instruction for proximate cause in cases involving multiple defendants, we find no error. Finally, we hold that the trial court properly refused as irrelevant Edison’s non-IPI instruction on the constitutional right of the picketers to strike.

In light of our holding that Edison owed Slager a duty of due care and that the jury was properly instructed on the elements of the cause of action, we need not reach Edison’s contention that the court improperly admitted hearsay evidence on the collateral issue of whether Slager’s automobile had been travelling on the production road instead of the main access road at some point before his fatal accident.

For the foregoing reasons, we affirm the judgment entered on the jury’s verdict.

Affirmed.

McMORROW and JOHNSON, JJ., concur.


author: JUSTICE O’CONNOR

text:
    DISC JOCKEY REFERRAL NETWORK, LTD., et al., Plaintiffs-Appellants, v. AMERITECH PUBLISHING OF ILLINOIS et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—91—0854
    Opinion filed May 26,1992.
    —Rehearing denied July 10,1992.

      Jeffrey M. Goldberg & Associates, Ltd., of Chicago (Jeffrey M. Goldberg and James M. Geraghty, of counsel), for appellants.
    Hopkins & Sutter, of Chicago (John L. Conlon and Kathleen M. Burch, of counsel), for appellees GTE Directories Sales Corporation and Central Telephone Company.
    McDermott, Will & Emery, of Chicago, for appellee Reuben H. Donnelley Corporation.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, Disc Jockey Referral Network, Ltd., appeals from an order of the circuit court, dismissing its complaint for failure to state a cause of action (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615).

We affirm.

Plaintiff operates a referral service for those engaged in providing disc jockeys in the Chicago metropolitan area. Defendants, Ameritech Publishing of Illinois, G.T.E. Directories Sales Corporation, G.T.E., the Reuben H. Donnelley Corporation, Illinois Bell and Central Telephone Company (collectively, defendants), are corporations which publish telephone listings.

Defendants publish regional telephone directories for seven geographical areas located in Chicago and its suburbs. Prior to 1988, the regional directories contained only alphabetical listings, more commonly referred to as the “white pages” (white page only directories). In 1988, defendants began publishing regional directories which included both white pages and listings arranged by product or service, known as the “yellow pages” (combined white and yellow page directories). Throughout the period in which defendants published the combined white and yellow page directories, defendants also continued to publish white page only directories. However, only residents of a particular region were given the combined white and yellow page directories. White page only directories were distributed to individuals requesting telephone books for regions other than their own.

Defendants used the following advertisement to announce their directory service for those seeking a business alphabetical listing:

“INTRODUCING ... DONNELLEY’S REGIONAL WIDE AREA CONCEPT!
In 1980, Donnelley published its FIRST Wide Area Directory, for Northwest Cook County.
Our goal was to assist our advertisers in reaching the Regional Wide Area Marketplace.
Recently, a Business Alphabetical Listing was also included.
Now, the COMPLETE Regional Wide Area Directory will be published — thanks to the inclusion of a Regional White Pages for Residential and Business Listing — along with the Regional Yellow Pages.
Users of the NEW directory will find it a handy, everyday phone book because of the Regional White Pages (plus there will be no need for Operator Assistance charges). It will provide advertisers with TOTAL DIRECTORY COVERAGE and help enormously in “targeting” your Local and Regional Markets!
AMERITECH PAGESPLUS
+
Donnelley Directory
SERVING ALL YOUR YELLOW PAGES NEEDS!”

(Emphasis in original)

Plaintiff, on behalf of itself as well as similarly situated individuals, filed a complaint against defendants, based on the above advertisement, sounding in three different legal theories. Counts I through III alleged a breach of contract action. Counts IV and V alleged violations of the Consumer Fraud and Deceptive Trade Practices Act (the Consumer Fraud Act or Act) (Ill. Rev. Stat. 1989, ch. 121V2, par. 261 et seq.). Finally, counts VI through VIII alleged violations of the Uniform Deceptive Trade Practices Act (the Uniform Act) (Ill. Rev. Stat. 1989, ch. I2IV2, par. 311 et seq.).

The counts setting forth the breach of contract action are based on allegations that plaintiff paid for yellow page listings which it did not receive. Specifically, plaintiff claimed that in 1987 it “contracted” with defendants for the purchase of “Total Directory Coverage” for yellow page advertising in the combined white and yellow page directories to be published in 1988, 1989, and 1990. Plaintiff alleged three counts sounding in breach of contract against defendants, with each count differing only as to the year in which the alleged conduct occurred. The gist of plaintiff’s claim was that potential yellow page advertisers were not advised that their business listings would not be contained in all of the directories published by defendants in those years by virtue of the fact that defendants continued to publish white page only directories. Alleging white page only directories comprised approximately 33% to 50% of defendants’ directory publication effort, plaintiff claimed it was deprived of “Total Directory Coverage” as was advertised.

Plaintiff’s allegations concerning the Consumer Fraud Act were based on defendants’ failure to disclose that two or more different versions of each directory were to be distributed. Specifically, plaintiff alleged defendants’ conduct violated section 2R of the Act. (Ill. Rev. Stat. 1989, ch. 121V2, par. 262R.) That section requires sellers of yellow page advertising to disclose the number of directories distributed in the previous edition, the geographic area of distribution, the name of the publisher, and whether the publisher is affiliated with a telecommunications carrier.

Finally, plaintiff’s allegations regarding the Uniform Act also were based on defendants’ failure to disclose the number of directories per region to be distributed. Plaintiff also charged defendants with the failure to disclose the geographic region in which the directories containing yellow pages were to be distributed.

On February 14, 1991, defendants successfully moved to dismiss the complaint.

Courts are to construe pleadings liberally, with the view to do substantial justice between the parties. (Keller v. State Farm Insurance Co. (1989), 180 Ill. App. 3d 539, 536 N.E.2d 194.) Accordingly, no pleading is defective in substance if it contains facts which reasonably inform the opposite party of the nature of the charge to be answered. (Keller, 180 Ill. App. 3d at 546.) A motion to dismiss, pursuant to section 2 — 615 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), however, attacks the sufficiency of the complaint and should be decided solely upon the allegations the complaint sets forth. (Perkins v. Collette (1989), 179 Ill. App. 3d 852, 534 N.E.2d 1312; Schnidt v. Henehan (1986), 140 Ill. App. 3d 798, 489 N.E.2d 415.) The motion should be granted only if it is clear that plaintiff cannot prove any set of facts under the pleading which would entitle him to the relief requested. Perkins, 179 Ill. App. 3d at 856.

Plaintiff argues that its complaint adequately sets forth a cause of action for breach of contract. We disagree.

A complaint for breach of contract must allege the existence of a contract, a breach by defendant, performance of all conditions to be performed by plaintiff, and damages to plaintiff as a consequence. (Interim Investment Corp. v. Palatine Service Corp. (1985), 139 Ill. App. 3d 118, 487 N.E.2d 15; Thilman & Co. v. Esposito (1980), 87 Ill. App. 3d 289, 408 N.E.2d 1014.) Where the action is premised on a contract which purportedly has been accepted orally, the plaintiff must specifically set forth the facts supporting that acceptance. Pollack v. Marathon Oil Co. (1976), 34 Ill. App. 3d 861, 341 N.E.2d 101.

During oral argument, plaintiff’s counsel represented that the contract involved here was oral. However, plaintiff’s complaint failed to contain specific allegations supporting that theory. Instead, plaintiff alleged generally that a contract existed. A bare allegation that a contract existed, however, is but a legal conclusion which may not be admitted as true by a motion to strike or dismiss. (Pollack, 34 Ill. App. 3d 861, 341 N.E.2d 101.) Therefore, merely to allege that a party “contracted” with another, as plaintiff has done here, does not suffice. (See Pollack, 34 Ill. App. 3d 861, 341 N.E.2d 101.) No information concerning the amount paid for the advertising or the expected circulation of the directories can be gleaned from the complaint. Plaintiff alludes to the Donnelley advertisement but fails to state whether the terms of that advertisement were incorporated into the alleged contract. Plaintiff also failed to allege what, if any, relationship existed between defendant Donnelley and the other defendants.

Plaintiff’s complaint also fails to adequately state how it was damaged by defendants’ purported breach of contract. Plaintiff claims defendants never advised it that only persons residing within a region would be given a directory with yellow pages, or that persons requesting regional directories for regions other than their own would receive a directory that did not contain yellow pages. Plaintiff, however, has not set out how these omissions damaged plaintiff but merely states that it did not receive the yellow page advertising for which it paid. We note that nowhere in the complaint is it alleged that defendants failed to deliver the combined white and yellow page directories to all subscribers in the region in which those directories were distributed. Nor does plaintiff’s complaint allege that defendants failed to publish its listings at all.

Most importantly, plaintiff’s allegations, taken in the light most favorable to plaintiff, afford no relief in a breach of contract action. Plaintiff admitted at oral argument that no representations were made to it regarding circulation figures. No promises were made to the effect that every regional book would contain a classified section. Simply put, plaintiff was not promised anything it did not receive.

Plaintiff also sought punitive damages for breach of contract. However, such damages are not recoverable for such actions. Punitive damages are recoverable only where plaintiff alleges, and later proves, that defendants committed a tort with “fraud, actual malice, deliberate violence or oppression, or that defendant[s] aet[ed] willfully or with such gross negligence as to indicate a wanton disregard of the rights of others.” (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 186, 384 N.E.2d 353.) Plaintiff’s complaint contains no such allegations.

The counts of plaintiff’s complaint alleging violations of section 2R of the Consumer Fraud Act fair no better under similar analysis. Plaintiff argues that defendants deceived it by failing to disclose the number of directories to be distributed for a particular region. Section 2R, however, requires only the disclosure of the number of directories distributed in the previous edition. (See Ill. Rev. Stat. 1989, ch. 1211/2, par. 262R.) The failure to disclose future distribution numbers simply is not actionable under the Act. Plaintiff also charged defendants with the failure to disclose the geographic areas of distribution, in violation of section 2R. However, a close reading of plaintiff’s complaint reveals that each defendant published directories for seven regional areas, each of which plaintiff specifically identified in its allegations. Plaintiff further alleged that it purchased yellow page advertising in each of the “aforementioned” directories. Based on this language, it is difficult to understand how defendants failed to advise plaintiff of the geographic area of distribution when plaintiff admits it purchased advertising for each of the regions.

The final counts of plaintiff’s complaint alleging violations of the Uniform Act also fail to state sufficiently a cause of action. Plaintiff charged defendants with violating sections 2(9) and 2(12) of the Uniform Act, which, in part, provide:

“A person engages in a deceptive trade practice when, in the course of his business, vocation or occupation he:
* * *
(9) advertises goods or services with an intent not to sell them as advertised;
* * *
(12) engages in any other conduct which similarly creates a likelihood of confusion or misunderstanding.” (Ill. Rev. Stat. 1989, ch. 121V2, par. 312.)

Plaintiff claimed that defendants sold advertising in the directory as “total directory coverage,” yet, in actuality, only one-half to two-thirds of the directories contained yellow pages.

The Uniform Act was not intended to be a consumer protection statute but rather was intended to prohibit unfair competition. (Chabraja v. Avis Rent A Car System, Inc. (1989), 192 Ill. App. 3d 1074, 549 N.E.2d 872, appeal denied (1990), 131 Ill. 2d 558, 553 N.E.2d 394.) Accordingly, the Uniform Act does not provide a cause of action for damages but does permit private suits for injunctive relief. (Green-berg v. United Airlines (1990), 206 Ill. App. 3d 40, 563 N.E.2d 1031, appeal denied (1991), 137 Ill. 2d 664, 571 N.E.2d 148.) Private suits for injunctive relief may be brought in situations where one competitor is harmed or may be harmed by the unfair trade practices of another. Brooks v. Midas-International Corp. (1977), 47 Ill. App. 3d 266, 361 N.E.2d 815.

Specifically, sections 2(9) and 2(12) address “bait and switch” practices where “a seller seeks to attract customers through advertising at low prices products which he does not intend to sell in more than nominal amounts. When prospective buyers respond[,] *** sale of the ‘bait’ is discouraged through various artifices ***.” (Ill. Ann. Stat., ch. 121V2, par. 312, at 253 (Smith-Hurd Supp. 1992).) No such allegations are set forth in plaintiff’s complaint. As defendants note, plaintiff contends that defendants were obligated to distribute only combined white and yellow page directories as regional directories. However, no set of facts were alleged in the complaint to support this purported obligation.

Finally, plaintiff sought injunctive relief based on the Consumer Fraud Act. Under that statute, however, the State Attorney General is given sole power to obtain an injunction against a person engaged in, engaging in, or who is about to engage in an unlawful practice. (Martin v. Eggert (1988), 174 Ill. App. 3d 71, 77, 528 N.E.2d 386, appeal denied (1988), 123 Ill. 2d 559, 535 N.E.2d 403.) Plaintiff also requested injunctive relief under the Uniform Act. However, under that act, our courts have noted that a problem “inherent” in such consumer actions is the inability to allege facts indicating that the plaintiff is likely to be harmed. (Brooks, 47 Ill. App. 3d at 275.) This inability results because, ordinarily, the harm has already occurred. A suit for injunctive relief, therefore, is precluded. (Brooks, 47 Ill. App. 3d at 275.) Such a situation confronts plaintiff here. Although it asks that defendants be enjoined from distributing directories without yellow page advertising, plaintiff has not alleged that it is an entity likely to be harmed. Parenthetically, we note that because plaintiff purchased advertising in the 1988, 1989, and 1990 directories, it can no longer be harmed by the continued publication of directories in 1992 and beyond.

A motion to dismiss a complaint is within the sound discretion of the circuit court. (Keller, 180 Ill. App. 3d at 546.) Upon review, such a decision to dismiss should be affirmed only where no set of facts can be proven under the pleadings which would entitle plaintiff to relief. Amendments should be permitted unless it is clear that the defect in the pleading is not curable by amendment. (Miller v. Enslen (1978), 60 Ill. App. 3d 865, 377 N.E.2d 282.) As noted above, no set of facts can be alleged by plaintiff which would entitle it to relief. The circuit court’s order dismissing the cause with prejudice is affirmed.

Affirmed.

CAMPBELL and MANNING, JJ., concur.