source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT LEE BISHOP, Defendant-Appellant.
    First District (3rd Division)
    No. 85—1112
    Opinion filed January 18, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Kenneth T. McCurry, Patricia Y. Brown, and James M. Sullivan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant, Robert Lee Bishop, appeals from a judgment of the circuit court of Cook County entered upon a plea of guilty for murder and attempted armed robbery. On appeal, defendant argues that (1) he was denied effective assistance of counsel and (2) the trial court erred in sentencing him to 95 years in prison. We affirm.

On the evening of May 30, 1984, Oralia Valasquez was exiting the elevated train station at 19th & Kedzie when a gun was placed to her head and she was killed. Defendant and his codefendant, Charles Johnson, were subsequently arrested and charged with murder and attempted armed robbery.

Defendant and Johnson were tried jointly before a jury. Three civilian witnesses testified in the State’s case in chief. Essentially, the witnesses stated that they were across the street at the time of the incident and heard the shot from inside the station. They saw Johnson exit the station after the first shot was fired, saw defendant fire a second shot into the station and saw defendant and Johnson flee the scene. All of the witnesses testified that they were familiar with both defendant and Johnson and had seen them around the neighborhood. The witnesses further testified that they could see clearly and the lighting conditions were good.

Officer James Cornelison testified that he responded to a call at the elevated station at 19th & Kedzie. When he arrived, Cornelison found Valasquez lying facedown in a pool of blood. She appeared to have a gunshot wound to the right side of her head and two small scratches at the base of her neck. Cornelison further testified that when he interviewed Johnson, Johnson stated that defendant suggested that they rob someone and that defendant showed him a revolver. Johnson and defendant went to the train station together, but Johnson stayed outside as a lookout. When Johnson heard the first shot, he ran across the street. Cornelison further stated that after Johnson was in police custody, he led the police to an alley behind 1936 S. Spaulding where the gun that was used to shoot Valasquez was found underneath a garbage can.

Assistant State’s Attorney Dane Cleven testified that he took court-reported statements from Johnson and defendant. In defendant’s statement, he stated that while he was inside of the elevated train station, he pulled a gun and pointed it at Valasquez. Johnson then began going through Valasquez’ purse. A struggle ensued between Valasquez and defendant and the gun went off. Johnson ran out of the train station but defendant continued to struggle with Valasquez. The gun went off again and Valasquez fell to the ground.

Dr. Robert Kirschner of the Cook County medical examiner’s office also testified for the State. Kirschner performed the postmortem examination on Valasquez’ body. Kirschner stated that Valasquez died from a single gunshot wound to the right temple region. The wound inflicted was a contact wound occurring when the muzzle of the weapon was directly in contact with Valasquez’ head at the time the weapon was fired. Kirschner also testified that there was a prominent red-purple bruise on the side of Valasquez’ head approximately three inches in length and one-half inch in diameter. This marking, according to Kirschner, was consistent in size and shape with being struck with the length of the barrel of the gun.

After the State rested, defendant took the stand and testified on his own behalf. Defendant testified that he and codefendant decided to make some “fast money” by robbing someone at the train station. Before defendant could make any further statements, the court excused the jury and conferred with both defense counsel and the State’s Attorneys in chambers. The court inquired as to whether Bishop was about to make a confession in open court. It was the court’s concern that defendant was aware of what he was about to say and that defendant had been adequately advised as to the consequences of a confession in open court. Defendant’s counsel then informed the court that he had advised defendant that by testifying on the record that he did not intend to kill the victim, he would in all likelihood receive a lighter sentence than if he did not testify at all.

The court advised defendant’s counsel to confer again with defendant to assure that defendant was well aware of the consequences of his action. After conferring with defendant, defendant entered a plea of guilty. When the jury returned, the court instructed the jury that defendant was no longer on trial and any evidence that was admissible only as to Bishop had been removed.

Defendant’s sentencing hearing was held on March 20, 1985. Following evidence in mitigation and aggravation and a statement by defendant, the court imposed upon defendant the maximum extended term of 80 years for murder and the maximum extended term of 15 years for attempted armed robbery, consecutively. This appeal followed.

Defendant first argues that he was denied effective assistance of counsel. Defendant asserts that the representation received produced a mixture of a jury trial and a subsequent guilty plea which deprived defendant of benefits he would have received in an unmixed procedure. Therefore, this cause should be remanded to allow defendant an opportunity to withdraw his plea and plead anew. We disagree.

Representation by counsel is considered constitutionally deficient if the incompetence produced substantial prejudice to the defendant without, which the result would probably have been different. (People v. Balfour (1986), 148 Ill. App. 3d 215, 227, 498 N.E.2d 547, 557.) Moreover, effective assistance of counsel refers to competent, not perfect, representation. Thus the focus is therefore on the totality of the circumstances rather than isolated instances during the representation. 148 Ill. App. 3d at 227, 498 N.E.2d at 557.

In the instant case, the record indicates that the State in its case in chief presented overwhelming evidence of defendant’s guilt and his involvement in the crime perpetrated against Valasquez. After hearing the State’s version of how the crime was committed, defendant’s counsel decided that it would be in defendant’s best interest to tell the jury his version of how Valasquez was killed. Once defendant began to testify, his testimony was interrupted by the trial judge. Following a conference with the judge as well as with defendant, defense counsel advised defendant that it would be in his best interest not to continue to testify and to enter a plea of guilty. Prior to sentencing, defendant was allowed to make a statement. In defendant’s statement, he told the trial judge his version of how Valasquez was killed. Defendant stated:

“I never went up to that ‘L’ station intending to take that lady’s life. I intended to do a robbery.
* * *
As I announced a robbery, the lady grabbed the pistol. I never intended to shoot the lady.
* * *
I’m sorry for the lady’s life being taken. I know I have to be punished for the mistake I made and for attempting to rob this lady.”

The reason defense counsel wanted defendant to testify initially was to give defendant an opportunity to tell his version of how the crime was committed. The strategy of having defendant tell his version was to affect the sentencing and not the judgment of guilty entered either on a plea or on a jury’s finding.

We do not believe, as defendant urges, that the trial judge was somehow biased against defendant because he pled guilty in the middle of his trial by jury. Defendant has presented us with no concrete proof from the record that if he had been found guilty by the jury and then sentenced by the court, or if he had pled guilty from the outset, his sentence would have differed. To the contrary, the record supports our conclusion that the course of defendant’s trial was governed by defense counsel’s trial strategy. Although the strategy chosen may be one that we would not adopt, we certainly cannot say that it is one that amounts to incompetence of counsel. Nor can we say that if counsel had not chosen this strategy, defendant’s sentence would have differed. Thus, defendant was not denied effective assistance of counsel.

Next, defendant argues that the trial court erred in sentencing him to extended terms of 80 years for murder and 15 years for attempted armed robbery. Defendant argues that the sentence is excessive in light of his age and background and that this crime was not a “heinous and brutal” crime requiring extended consecutive sentences. We disagree.

Under Illinois law, the entire spectrum of facts surrounding an incident must be analyzed and evaluated to determine whether a defendant’s sentence is excessive. (People v. Trimble (1985), 131 Ill. App. 3d 474, 476, 475 N.E.2d 971, 973.) Because the trial court is in a better position to consider the myriad of factors involved, the trial court’s sentence will not be disturbed on review absent an abuse of discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.

In the instant case, defendant was sentenced after the court heard evidence in aggravation and mitigation. In aggravation, the State argued that the brutal way in which Valasquez was pistol-whipped and shot with the muzzle of the gun placed directly against her head mandated the maximum sentence. Also, because the two crimes were separate and independent, the State sought consecutive sentences. In mitigation, defense counsel argued that defendant’s youth, lack of substantial criminal background and remorse represented good rehabilitative potential.

Giving adequate consideration to defendant’s age, lack of criminal background and the heinous nature of this crime, the court felt that the extreme brutality justified the imposition of extended consecutive terms for both murder and attempted armed robbery. In fact, prior to sentencing defendant, the court stated:

“I agree with the state’s characterization of the offense in this case. This did involve a felony murder, ***.
It did involve conduct which, *** manifestly was wanton and cruel.
The character of the offense involves a number of values that a civilized society is constantly fighting against, a value system which is, I guess, animalistic ***.
I think in many respects the sentence that I impose today is principally one which has to accommodate the interests of society.”

Based upon our reading of the record, we do not find that the trial court abused its discretion in sentencing defendant. As the trial judge stated, this was a wanton and cruel crime. Defendant met with his codefendant, Johnson, and conspired to commit a crime by robbing an unsuspecting victim. During the course of this attempted robbery a senseless and brutal murder of an innocent and unarmed citizen occurred. This attempted robbery and shooting took place in a public transportation station where any number of innocent persons could have been injured or killed. Sentencing defendant to consecutive extended terms was necessary, as the trial judge pointed out, to protect the public from further criminal conduct by defendant. We therefore find that the trial court did not abuse its discretion in sentencing defendant to consecutive extended terms.

Accordingly, defendant’s conviction is affirmed.

Affirmed.

McNAMARA and WHITE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANGEL ALCANTARA, Defendant-Appellant.
    First District (3rd Division)
    No. 86—3407
    Opinion filed January 18, 1989.
    Robert C. Lucenti, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Thomas V. Gainer, Jr., Kathleen A. Bom, and Rosemary Grant Higgins, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

In a bench trial, defendant, Angel Alcantara, was convicted and sentenced to six years for possession of a controlled substance with the intent to deliver. On appeal, he contends that the trial court erred in denying his motion to suppress and that he was wrongfully sentenced for a Class X felony. We affirm the conviction and remand for resentencing of defendant for a Class 3 felony.

Defendant and Drug Enforcement Administration (DEA) agent Larry Johnson testified at the suppression hearing. According to Johnson, he was assigned to the O’Hare Airport detail on April 20, 1985. While he was assigned to the O’Hare detail, Johnson conducted about 50 to 60 drug investigations. On the morning of April 20, he received a phone call from narcotics agent Robert Duvall of the Public Safety Department in Austin, Texas. Duvall told Johnson that an individual named Angel Alcantara was traveling that morning from San Antonio, Texas, through Houston, Texas, to Chicago O’Hare Airport on Continental flight 154. Duvall described Alcantara as a 30- to 35-year-old male with a mustache and a two-day-old beard. Duvall said that Alcantara was carrying a controlled substance to deliver to two individuals in Chicago and that Alcantara was not a licensed pharmacist.

Based on the information he received from Duvall, Johnson contacted the Chicago police department to assist in setting up a surveillance of passengers departing flight 154. Johnson then went to O’Hare Airport, where he was met by three Chicago police officers at the passenger gate for flight 154. A surveillance was arranged.

Defendant was one of the first passengers to leave the plane. Johnson observed that defendant fit the description that had been provided by Duvall. He also saw that defendant was carrying a carry-on bag. When defendant did not go down the escalator to the baggage area, Johnson and two of the Chicago police officers, both dressed in plain clothes, approached defendant. Johnson identified himself as a Federal agent and the police officers identified themselves as police officers. Johnson asked defendant if he could see his airline ticket and identification. Defendant produced his ticket and his Texas driver’s license. After Johnson examined the items and returned them, he concluded that defendant was the person who had been described by Duvall. Johnson told defendant that he was conducting a drug investigation and would like to ask him some questions.

At Johnson’s request, defendant agreed to accompany Johnson and the police officers to a large office behind the Continental Airlines ticket counter, approximately 20 feet from where they had been standing. According to Johnson, neither he nor the police officers touched defendant or displayed their guns to obtain defendant’s cooperation. Johnson testified that he suggested the nearby office because the concourse was crowded and visible from the street, and that the individuals who were expected to purchase the controlled substance from the defendant would be able to observe what was going on in the concourse from a parked automobile. Johnson believed that the use of the office was necessary for a quiet and effective inquiry and to insure the safety of defendant and the people in the concourse.

After Johnson, defendant and two of the police officers went into the office, Johnson asked defendant if he was carrying illegal drugs. Defendant denied that he was carrying illegal drugs. Johnson then asked defendant if he could search his carry-on bag. Johnson also told defendant that he could refuse the search request. Defendant agreed to allow the search of the carry-on bag. Johnson searched the carry-on bag and found 10 bottles of glutethimide, a controlled substance. Each bottle had 1,000 glutethimide tablets. After the glutethimide tablets were discovered, Johnson called the DEA office to confirm that glutethimide was a controlled substance. Defendant was then placed under arrest and read the Miranda warnings.

Johnson testified that the encounter and search lasted about 10 minutes. Also, he testified that the large office in which the search was conducted was adjacent to two smaller offices and that several unknown employees who worked in the area passed through the offices while the investigation was being conducted.

Defendant’s version of what occurred is different than Johnson’s version. According to defendant, he was grabbed by two police officers as he was attempting to leave the terminal. He was then taken to a nearby room behind the airline ticket counter. One of the police officers swore at defendant and told him to get against the wall. Defendant was never asked to produce identification. Defendant’s plane ticket and wallet were taken from his jacket pocket. After his plane ticket and driver’s license were taken from him, one of the police officers proceeded to forcibly open his carry-on bag. Instead of opening the zipper from the bottom, the police officer tried to snap it open on the top because he thought the opening for the bag was a Velcro fastening. The bag was torn. Defendant lunged over and said, “Wait a minute.” Before defendant could say anything else, the police officer told him to shut up and stand by the wall. Defendant did not think that he was free to leave. None of the police officers displayed an arrest or search warrant during the encounter. Defendant also testified that he never consented to the search of his carry-on bag and that he was never told that he could refuse the search. In addition, defendant testified that although no gun was ever drawn by the police officers, when one of the police officers bent down defendant saw that he had a'gun fastened to his ankle.

After hearing the two versions of what occurred at the airport, the trial court denied defendant’s motion to suppress on the basis that there was no seizure and defendant consented to the search of his carry-on bag. We believe that the trial court, as the finder of fact, had a right to reach its conclusions and deny the motion to suppress.

We first observe that police do not seize a person within the meaning of the fourth amendment by merely approaching him in a public place and asking him questions. (Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319.) However, physically grabbing, moving or seating a person to ask questions, even in a public setting, restrains that person’s movement and liberty in such a way that such police conduct would amount to a seizure as meant by the fourth amendment. (See United States v. Sokolow (9th Cir. 1987), 831 E2d 1413, 1417, cert, granted (1988), 486 U.S. 1042, 100 L. Ed. 2d 618, 108 S. Ct. 2033.) Also a person’s liberty is affected and a seizure occurs if police accost him to ask questions and restrain his freedom to walk away. (Terry v. Ohio (1968), 392 U.S. 1, 16, 20 L. Ed. 2d 889, 903, 88 S. Ct. 1868, 1877.) The person approached need not answer any questions, and he may even decline to listen to the questions and go on his way. (Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319.) Any curtailment of a person’s liberty to walk away must be supported by at least a reasonable and articulable suspicion that the person seized is engaged in criminal activity. Reid v. Georgia (1980), 448 U.S. 438, 440, 65 L. Ed. 2d 890, 894, 100 S. Ct. 2752, 2754.

Here, the trial court had a right to believe the testimony of Johnson that when the defendant was approached and asked questions in a public setting, there was no physical grabbing, moving or seating of the defendant. Also, the trial court had the right to believe that defendant produced his driver’s license and plane ticket voluntarily and that the documents were returned to him after a brief examination. (See United States v. Schumacher (N.D. Ill. 1983), 577 F. Supp. 590.) In addition, it was within the purview of the trial court’s fact-finding authority to conclude that defendant’s liberty was not affected and that he was not restrained from walking away. Moreover, based on all the circumstances that were revealed by the evidence at the preliminary hearing, the trial court had the authority to reach the conclusion that defendant consented without threat of force or restraint to have his carry-on bag searched. Thus, we see no reason to reverse the trial court’s ruling on the motion to suppress.

Next, we address defendant’s contention that he should not have been sentenced for a Class X felony. Defendant was found guilty of possession with intent to deliver a controlled substance known as glutethimide. At the present time, glutethimide is listed by the legislature as a schedule II controlled substance. (Ill. Rev. Stat. 1987, ch. 56½, par. 1206(e)(6).) Possession with intent to deliver a schedule II controlled substance is a Class X felony. (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401(a)(ll).) Defendant argues that at the time of the occurrence and arrest glutethimide was a schedule III controlled substance. Possession with intent to deliver a schedule III controlled substance is a Class 3 felony.

Defendant was arrested on April 20, 1985. At that time glutethimide was listed by the legislature as a schedule III controlled substance. (Ill. Rev. Stat. 1983, ch. 561/2, par. 1208(d)(5).) However, prior to April 20, 1985, the Dangerous Drug Commission (Commission), which is now known as the Illinois Department of Alcoholism and Substance Abuse, had changed glutethimide in its schedule of controlled substances from a schedule III to a schedule II controlled substance. As a result, on June 29, 1985, the Illinois legislature passed Public Act 84 — 874, changing glutethimide to a schedule II controlled substance. The new law was given an effective date of January 1,1986.

The State argues that because the Commission had changed glutethimide from a schedule III to a schedule II controlled substance prior to the commission of the crime, the defendant was properly sentenced for a crime involving a schedule II controlled substance. We disagree. We believe that the law as defined by the legislature at the time of the commission of the crime is the law that must be applied. Thus, defendant should have been sentenced for the commission of a crime involving a schedule III controlled substance rather than a schedule II controlled substance.

Accordingly, the conviction is affirmed and the case is remanded for resentencing of defendant for the commission of a Class 3 felony.

Affirmed in part; vacated and remanded with directions.

McNAMARA and WHITE, JJ., concur.


author: JUSTICE McMORROW

text:
      In re MARRIAGE OF HERBERT J. DREWS, JR., by his Guardian, Lorraine Drews, Petitioner-Appellee, and SUE ANNE CARROTHERS DREWS, Respondent-Appellant.
    First District (4th Division)
    No. 87—2363
    Opinion filed January 19, 1989.
    Schiller, Du Canto & Fleck, Ltd., of Chicago (David B. Yavitz and Sarane C. Siewerth, of counsel), for appellant.
    Sandra G. Nye & Associates, of Chicago, for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Respondent (Sue Anne) appeals from the trial court’s dismissal of her petition for the reasonable attorney fees she incurred in defending appeals from the trial court’s dismissal of a suit brought by the mother and guardian of petitioner (Herbert) to dissolve Herbert’s marriage to Sue Anne. (See In re Marriage of Drews (1986), 115 Ill. 2d 201, 503 N.E.2d 339, affirming (1985), 139 Ill. App. 3d 763, 487 N.E.2d 1005.) The trial court dismissed the fee petition on the ground that section 508 of the Illinois Marriage and Dissolution of Marriage Act (the IMDMA) (Ill. Rev. Stat. 1987, ch. 40, par. 508) does not authorize the award of attorney fees to Sue Anne, because Sue Anne did not set forth a claim upon which fees could be awarded trader section 508 of the IMDMA. The trial court held that section 508 does not permit an award of fees from a spouse for whom a guardian has been appointed and on whose behalf a dissolution of marriage petition has been filed by the guardian. We reverse and remand.

Background

Herbert and Sue Anne were married in June 1979. In 1980, Herbert sustained severe injuries that caused him permanent and total mental and physical disability. Thereafter his mother was appointed plenary guardian over his estate and person. In her capacity as plenary guardian, Herbert’s mother filed a petition for dissolution of Herbert’s marriage to Sue Anne. The trial court dismissed the petition with prejudice. The Illinois Appellate and Supreme courts affirmed, holding that “absent [specific] statutory authorization, a guardian cannot institute an action, on behalf of a ward, for the dissolution of the ward’s marriage.” In re Marriage of Drews (1986), 115 Ill. 2d 201, 205.

While the matter was pending before the Illinois Supreme Court, Sue Anne filed a petition for attorney fees incurred in defending the appeals before the appellate and supreme courts, citing, inter alia, section 508 of the IMDMA. Herbert, through his guardian, moved to dismiss the petition for attorney fees. Following briefing and argument, the trial court dismissed the fee petition of Sue Anne with prejudice. She appeals.

Opinion

Herbert’s guardian argues that the trial court properly dismissed Sue Anne’s request for attorney fees under section 508 of the IM-DMA because there is no party in this litigation against whom fees can be assessed. Herbert’s guardian argues that the language of section 508 does not permit an award from a guardian or anyone other than a spouse and that Herbert was not a party to the dissolution proceeding brought by his guardian. We disagree.

Under section 508 of the IMDMA, the trial court has the authority “after due notice and hearing, and after considering the financial resources of the parties, [to] order either spouse to pay a reasonable amount *** for the costs and attorneys’ fees necessarily incurred *** by the other spouse *** in connection with *** (3) [t]he defense of an appeal of any order or judgment under this Act.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 40, par. 508(a)(3).) Section 508 permits an award of fees from a “spouse.” However, we are not persuaded, as argued by Herbert’s guardian, that Herbert was not a party to the dissolution proceedings within the meaning of section 508. Herbert’s original action, although brought by his guardian against Sue Anne, was for dissolution of his marriage to her and both Sue Anne and Herbert are admittedly each other’s spouse. (Cf. e.g., In re Mac Harq (1983), 120 Ill. App. 3d 753, 458 N.E.2d 1154.) The circumstance that the attempted dissolution of marriage petition was unsuccessful because it was filed by Herbert’s guardian does not, in our view, render the IMDMA inapplicable to Herbert. We hold that section 508 of the IMDMA permits Sue Anne to seek from Herbert, through his guardian, the reasonable attorney fees Sue Anne incurred to defend the appeals from the trial court’s dismissal of the petition of Herbert’s guardian to dissolve Herbert’s marriage to Sue Anne.

We also conclude that Sue Anne’s fee petition was timely filed. In a dissolution of marriage proceeding, the trial court retains ancillary jurisdiction under section 508 of the IMDMA to adjudicate attorney fee petitions during the pendency of an appeal. (See, e.g., In re Marriage of Giammerino (1981), 94 Ill. App. 3d 1058, 419 N.E.2d 598.) Therefore, the trial court did not lose jurisdiction 30 days after its dismissal of the petition, but retained jurisdiction to entertain Sue Anne’s attorney fee petition while the appeal involving the dissolution action was pending before the Illinois Supreme Court.

For the reasons stated, the order of the circuit court is reversed and the cause remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

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


author: JUSTICE BILANDIC

text:
    LAURA WASHINGTON, Plaintiff-Appellee, v. CHICAGO TRANSIT AUTHORITY et al., Defendants-Appellants.
    First District (2nd Division)
    No. 87—3310
    Opinion filed January 24, 1989.

      Joyce A. Hughes, of Chicago Transit Authority, and William G. Clark, Jr., & Associates, Ltd., both of Chicago (William G. Clark, Jr., and Ilene Davidson Johnson, of counsel), for appellants.
    Alvin R. Becker and Howard A. London, both of Beermann, Swerdlove, Woloshin, Barezky & Berkson, and Ronald M. Gonsky, Ltd., both of Chicago, for appellee.
   JUSTICE BILANDIC

delivered the opinion of the court:

Defendants, Chicago Transit Authority (hereinafter CTA) and Roosevelt Montgomery, appeal from an adverse jury verdict and judgment in the sum of $115,000 plus costs in favor of the plaintiff.

On December 3, 1980, plaintiff boarded a CTA bus operated by CTA employee defendant Montgomery. The CTA is a common carrier of passengers for hire in the City of Chicago. Immediately after boarding the bus and paying her fare, and before she had a chance to be seated, the bus made a sudden movement, then stopped abruptly. This caused the plaintiff to be knocked down, fall out of the bus, and sustain personal injuries.

Plaintiff was the only occurrence witness that testified at trial. The driver did not testify.

Although defendants raised a series of alleged errors, they seek a reversal and new trial principally because: (1) the trial court improperly granted plaintiff’s motion to file a late jury demand; (2) defendants’ motion for a continuance was improperly denied; (4) closing argument by plaintiff’s counsel was prejudicial; (5) the trial court erred in denying defendants’ motions for directed verdict and for a judgment notwithstanding the verdict; and (6) the cumulative effect of other errors resulted in an unfair trial.

I

Defendants urge reversal because the order of the trial court permitting plaintiff to file a late jury demand was prejudicial to defendants. On May 6, 1981, plaintiff commenced this action without a request for a jury trial. On June 1, 1981, defendant CTA filed its appearance and jury demand. After discovery of the identity of the bus driver, plaintiff added Montgomery as a defendant. On August 29, 1981, Montgomery filed his appearance and jury demand. Thus, both defendants complied with section 2 — 1105(a) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1105(a) (formerly Ill. Rev. Stat. 1979, ch. 110, par. 64(1))). Plaintiff’s case then took its place on the Cook County law jury calendar rather than the law non-jury calendar.

Defendants claim that they indicated an intention to withdraw their jury demand in 1985. However, this intention was never executed. In fact, after this alleged intent was to have been indicated, new trial counsel entered the case for both defendants on August 16, 1985. New counsel filed an appearance and jury demand for both defendants. Thus, rather than completing the alleged intent to withdraw defendants’ jury demand, new counsel actually reaffirmed defendants’ initial demand for a jury trial. The case remained on the law jury calendar.

Approximately two years later, on the eve of trial, defendants withdrew their jury demand. Thereupon, the trial court granted plaintiff’s motion for leave to file a late jury demand instanter.

Section 2 — 1105(a) of the Code of Civil Procedure does not deal with the right of the plaintiff who did not initially demand a jury to be able to file a late jury demand after the defendant withdraws a timely demand. However, this issue was addressed by our supreme court in Hernandez v. Power Construction Co. (1978), 73 Ill. 2d 90, 382 N.E.2d 1201. Hernandez was a personal injury case filed in the circuit court of Cook County. Plaintiff did not initially demand a trial by jury, but defendant did so when it filed its answer. Four years later, and immediately before trial, defendant withdrew its jury demand. Plaintiff, who was taken by surprise, sought leave to file his own jury demand without articulating any grounds therefor. The trial court denied the motion. The appellate court, however, reversed, and that decision was affirmed by the supreme court, thereby allowing plaintiff to file a late jury demand.

The supreme court explained that the delay suffered by the plaintiff as a result of defendant’s jury demand constituted good cause for granting plaintiff’s late jury demand:

“Plaintiff points out, and we take judicial notice of the fact, that a plaintiff who desires a jury trial in the circuit court of Cook County must wait approximately two years longer than those willing to have a bench trial. A plaintiff is thus faced with two mutually exclusive alternatives. He may obtain the benefit of a more prompt adjudication through a bench trial if he is willing to waive his right to jury trial, or he may opt for a jury trial and thereby relinquish any possibility of a more prompt adjudication. Each alternative presents considerations that are attractive to the personal injury plaintiff. Through a bench trial the plaintiff may recover damages sooner than he might if he chose a jury trial, but in a jury trial the plaintiff might enlist the sympathies of the jurors and improve his chances of recovery.
The appellate court agreed with plaintiff’s analysis, holding that plaintiff’s demand for a jury trial should have been granted. The court pointed out that plaintiff, because of the defendant’s jury demand, had already lost the benefit of an early adjudication, and that a denial of the demand would deprive plaintiff of the advantage of a jury trial as well. [Citations.] We agree that this element of unfairness constitutes good cause for granting plaintiff’s late jury demand and that, under the facts of this case, the trial judge abused his discretion in denying plaintiff’s demand.” 73 Ill. 2d at 96-97.

Accord GNP Commodities, Inc. v. Walsh Heffernan Co. (1981), 95 Ill. App. 3d 966, 420 N.E.2d 659 (the trial court properly allowed plaintiff to file a jury demand five years after its complaint was filed upon the withdrawal of defendant’s jury demand); Lebovitz v. Cahill (1979), 69 Ill. App. 3d 614, 387 N.E.2d 943 (the trial court abused its discretion in denying plaintiff leave to file a late jury demand where the defendant filed a demand with its answer but withdrew its jury demand when the case was assigned for trial almost three years later).

In Hernandez, the prospective jurors were in the courtroom when the defendant withdrew its jury demand, while in the instant case, defendants withdrew their jury demand four days before the commencement of the trial. Defendants argue that Hernandez was decided on its own special facts and that this factual distinction renders Hernandez inapplicable and results in an abuse of discretion by the trial court. We disagree.

The case at bar is analogous to Hernandez, where the defendant gained the benefit of a four-year delay in trial because of its jury demand. Here defendants gained a delay of six years. Plaintiff was deprived of an early adjudication by the defendants’ action. This disadvantage is not rectified because the defendants withdrew their jury demand four days before trial rather than on the day of trial, while the prospective jurors are in the courtroom. After six years, the difference of four days is not significant. Thus, as in Hernandez, the plaintiff “had already lost the benefit of an early adjudication, and *** a denial of the [late jury] demand would deprive plaintiff of the advantage of a jury trial as well. [Citations.] We agree that this element of unfairness constitutes good cause for granting plaintiff’s late jury demand ***.” 73 Ill. 2d at 97.

Hernandez did not create a per se rule granting a plaintiff who did not ask for a jury initially the right to obtain a jury trial after the defendant withdraws his timely jury demand. We do not invoke a per se rule here, either. Our determination is based “upon the facts of this case.”

Defendants contend that they were initially disposed to demand a jury trial because they did not believe that plaintiff incurred any serious injuries. When defendants discovered that plaintiff had a stroke for which she would seek damages against them, they reconsidered their decision to submit the case to a jury. Believing that the sight of the plaintiff confined to a wheelchair would influence a jury against them, defendants claim that they promptly withdrew their jury demand.

The record does not support this argument. In 1982, in response to interrogatories, plaintiff disclosed that she suffered a stroke and advised defendants she did not rule out a claim for damages related to the stroke. Then in 1984, plaintiff, in response to interrogatories, actually claimed damages because the accident proximately caused her stroke. On August 16, 1985, when new trial counsel entered the case on behalf of the defendants, the jury demand was reasserted. If defendants were actually concerned about possible jury prejudice, they could have withdrawn their demand as early as 1982, when the possibility of a claim for the stroke surfaced, or in 1984 when the claim was actually asserted. The appearance of new trial counsel in 1985 is a clear expression of defendants’ attempt to gain the benefits of a delayed trial by keeping the case on the jury calendar.

Thus, it was the plaintiff, rather than the defendants, that was prejudiced. Had defendants made their jury withdrawal in 1982 or 1984, plaintiff could have had a speedier nonjury trial. By delaying withdrawal until the eve of trial in 1987, defendants succeeded in causing the plaintiff to lose “the benefit of an early adjudication, and that a denial of the demand would deprive plaintiff of the advantage of a jury trial as well.” Hernandez, 73 Ill. 2d at 97.

The cases cited by defendants from other districts are not relevant here because of the admitted difference in jury trial calendars in Cook County.

We therefore conclude that granting plaintiff leave to file a late jury demand, under the facts of this case, did not prejudice the defendants and did not constitute an abuse of discretion by the trial court.

II

Defendants contend that the trial court erred in proceeding with the trial in the absence of defendant Montgomery, the driver of the bus. A motion and affidavit pursuant to Supreme Court Rule 231 was not submitted on behalf of either defendant. (87 Ill. 2d R. 231.) Although the court delayed the trial for several days to accommodate counsel for defendants, there are no specific facts in the record as to the reasons for the driver’s absence other than counsel’s representation that he was attending a funeral out of the city.

Under the facts of this case, the trial court properly denied defense counsel’s request for a further delay of trial.

III

Defendants claim that the damages in the sum of $115,000 awarded to the plaintiff are excessive and, therefore, seek a new trial or remittitur.

At the time of the accident, plaintiff was 67 years old and employed as a part-time nurse’s aid. It is undisputed that prior to the accident plaintiff was suffering from arteriosclerosis, and that after the accident, she sustained a stroke. However, there was conflicting medical evidence as to whether the accident might or could have been the cause of plaintiff’s stroke. Plaintiff’s expert testified that the accident could have aggravated the preexisting arteriosclerosis and precipitated the stroke. Defendants’ expert disagreed. The jury resolved the conflict in favor of plaintiff.

A doctor’s expert opinion as to causation does not have to be based on absolute certainty. (Zizzo v. Ben Pekin Corp. (1979), 79 Ill. App. 3d 386, 395, 398 N.E.2d 382, appeal denied (1980), 79 Ill. 2d 634.) The weight and sufficiency of expert opinion testimony as to causation of an injury is “peculiarly within the province of the trier of fact to decide.” Fuery v. Rego Co. (1979), 71 Ill. App. 3d 739, 745, 390 N.E.2d 97, appeal denied (1979), 79 Ill. 2d 611.

The record shows that prior to the accident, plaintiff was in reasonably good health for a person of her age and circumstances. Since the accident, she cannot work, requires a wheelchair, and cannot walk without assistance. As a result of defendants’ negligence, she incurred substantial medical bills and special damages; has and is undergoing considerable pain and suffering; and is almost totally disabled. Under these circumstances, a verdict of $115,000 is not so large as to “shock the judicial conscience” and require a reversal or remittitur. Buczyna v. Cuomo & Son Cartage Co. (1986), 146 Ill. App. 3d 404, 496 N.E.2d 1116, appeal denied (1986), 113 Ill. 2d 558.

We therefore conclude that based on the record, the verdict is proper.

IV

Defendants claim that the closing argument of plaintiff’s counsel was prejudicial because it made several references to the absence of defendant Montgomery.

Defendants denied that they were guilty of negligence and alleged that plaintiff was contributorily negligent. Plaintiff had every right to argue, in general, that they failed to meet their burden of proving contributory negligence and, in particular, that defendant Montgomery did not meet his burden of proof since he did not testify. Plaintiff’s argument was directed at defendants’ lack of evidence in support of their defense.

The remarks were neither improper nor prejudicial. Attorneys are given substantial latitude in their closing arguments to the jury. (Patur v. Aetna Life & Casualty (1980), 90 Ill. App. 3d 464, 470, 413 N.E.2d 65.) A reviewing court must consider the trial as a whole to determine if a party’s rights have been substantially prejudiced by his opponent’s argument to the jury. See Nowakowski v. Hoppe Tire Co. (1976), 39 Ill. App. 3d 155, 349 N.E.2d 578.

V

Defendants argue that the trial court erred in denying their motions for directed verdict and for a judgment notwithstanding the verdict.

A directed verdict or a judgment notwithstanding the verdict may be granted only when all of the evidence and any reasonable inferences therefrom, when viewed most favorably to the opponent, so overwhelmingly favor the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.

From our review of the record, we conclude that the verdict was based on the jury’s acceptance of the plaintiff's evidence as to liability and the cause of the stroke. Viewing the evidence most favorably toward the plaintiff, as required by Pedrick, the trial court properly denied defendants’ motions.

VI

It is not necessary for us to prolong this opinion further to comment on other alleged errors cited by the defendants. We have considered the points and conclude that the arguments neither individually nor cumulatively resulted in an unfair trial for the defendants.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

HARTMAN and SCARIANO, JJ., concur.


author: PRESIDING JUSTICE EGAN

text:
    COMMONWEALTH EDISON COMPANY, Plaintiff-Appellant, v. HOGE-WARREN-ZIMMERMAN COMPANY, Defendant-Appellee.
    First District (2nd Division)
    No. 88—0157
    Opinion filed January 24, 1989.

      Bradley B. Falkof, of Griffin & Fadden, Ltd., and Peter C. John, of Phelan, Pope & John, Ltd., both of Chicago, for appellant.
    Kiesler & Berman, of Chicago (Robert L. Kiesler and Edward L. Cooper, of counsel), for appellee.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

This case involves one of the slowly dwindling but still lingering causes of action which arose before the passage of the Contribution Act (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.) and Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437.

The plaintiff, Commonwealth Edison Co. (Edison), appeals from an order granting the motion of the defendant, Hoge-Warren-Zimmerman Co. (HWZ), to dismiss the plaintiff’s complaint for implied indemnity. HWZ cross-appeals from the trial court’s rejection of other arguments advanced by HWZ to support its motion to dismiss. For the sake of clarity and brevity, therefore, we will treat the cross-appeal as an argument that the trial court could have dismissed the first amended complaint on grounds other than the one upon which the court relied, and, as the appellee, the defendant may properly argue those other grounds to support affirmance of the order. Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, 478 N.E.2d 384.

On December 7, 1973, James McDaniel, an employee of Douglas Hoge, Alfred Warren and Richard Zimmerman, who were partners and owners of property located at 980 Carnegie Street, Rolling Meadows, Illinois, was sitting on an outside wall of an addition to the property and attempted to hand a 20-foot angle iron to a co-worker situated inside the building. McDaniel was electrocuted when the angle iron came into contact with a high power electric line owned by Edison.

The McDaniel estate filed a wrongful death action as well as other statutory claims against Edison, Hoge, Warren and Zimmerman individually and as owners of the property and Carp Construction Company, a contractor. The case went to trial on September 24, 1979. After the estate rested, Edison settled, paying $500,000 in exchange for a covenant not to sue or to continue suit. We have been informed that Hoge, Warren and Zimmerman also settled with the estate, and the case was dismissed with prejudice as to all defendants on October 3, 1979.

On January 3, 1980, Edison filed a three-count complaint against HWZ. Count I was for implied indemnity, count II was for common law contribution and count III for statutory contribution. Counts II and III were dismissed, and their dismissal is not in issue here.

Then began a long series of motions by HWZ which involved four different judges. It first filed a motion to dismiss, claiming that the allegation of active negligence on the part of Edison in the wrongful death complaint precluded indemnification. Judge Paul Elward denied that motion on September 29, 1980. HWZ then sought a rehearing on its motion, arguing for the first time that the complaint failed to allege a pretort relationship between Edison and HWZ. That motion was denied by Judge Edward Berman on July 3, 1984. HWZ filed a notice of appeal and a petition for leave to appeal. The appellate court dismissed the appeal and denied the petition for leave. HWZ filed a petition for leave to appeal to the Illinois Supreme Court which was denied on April 2,1985.

HWZ then filed a motion for summary judgment claiming that Edison could not establish a pretort relationship. Judge Thomas Hoffman denied that motion. The defendant then filed another motion to dismiss on March 4, 1986, alleging that Edison’s implied indemnity action was insufficient, because it was based upon HWZ’ violation of the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.), and that Edison did not qualify as a “protected person” under the law. Judge Hoffman also denied that motion. The defendant filed a second motion for summary judgment, again making the Structural Work Act argument. Judge Hoffman denied that motion, as well as HWZ’ subsequent motion for rehearing. On October 20, 1987, the case was assigned to Judge Irving R. Norman to be set for trial.

HWZ filed another motion to dismiss before Judge Norman, again based on the argument that Edison failed to plead an adequate pretort relationship. Judge Norman indicated that he would allow the motion to dismiss on that ground but granted Edison leave to file an amended complaint. Edison filed an amended complaint, and HWZ responded by renewing its motion to dismiss. After a number of hearings, Judge Norman eventually granted HWZ’ motion to dismiss on the ground that no adequate pretort relationship had been pleaded by Edison. He expressed disagreement with some of the other arguments advanced by HWZ in support of the motion, with the exception of the argument that Edison was guilty of active negligence as a matter of law. It was his belief that the underlying complaint alleged active negligence on the part of Edison. However, he hinged his decision on the holding that an adequate pretort relationship between the parties had not been pleaded.

The procedural history of this case tracks the changes in the law, and the record will reflect the understandable uncertainty those changes engendered in the minds of the trial judges. For example, the first judge who passed on the argument that a pretort relationship had not been pleaded apparently relied on certain appellate court opinions that one seeking implied indemnity need plead either a pretort relationship or a qualitative difference in the conduct of the parties. (E.g., Burgdorff v. International Business Machines (1975), 35 Ill. App. 3d 192, 341 N.E.2d 122.) Those cases we now know are contrary to the expression of the supreme court, which has held that both must be established. (Heinrich v. Peabody International Corp. (1984) , 99 Ill. 2d 344, 459 N.E.2d 935.) The second judge did not agree with the first judge but did not think he had the right to change the ruling. The last judge, Judge Norman, heard considerable argument and considered many cases. His remarks reflect a recognition that the requirement that one must plead and prove a pretort relationship has left the trial judges to a case-by-case resolution of the question. Our own reading of the cases leads to the conclusion that the existence of the relationship is a matter of law to be determined by the court.

The problem began with Muhlbauer v. Kruzel (1968), 39 Ill. 2d 226, 234 N.E.2d 790, when the supreme court made it clear that “some relationship upon which a duty to indemnify may be predicated” must exist between the party seeking indemnification and the party from whom it is sought. (Muhlbauer, 39 Ill. 2d at 231-32.) The argument has been advanced since Muhlbauer that the pretort relationship was restricted to lessor and lessee, employer and employee, owner and lessee and master and servant. (See Central Illinois Savings & Loan Association v. DuPage County Bank (N.D. Ill. 1985), 622 F. Supp. 1493.) But that argument has been rejected by the supreme court, implicitly at least, in Van Slambrouck v. Economy Bailer Co. (1985), 105 Ill. 2d 462, 475 N.E.2d 867, and by the appellate court in Friedman, Alschuler & Sincere v. Arlington Structural Steel Co. (1985), 140 Ill. App. 3d 556, 489 N.E.2d 308, and Illinois Central Gulf R.R. v. American President Lines, Inc. (1987), 161 Ill. App. 3d 733, 515 N.E.2d 242.

But no case has defined the term “pretort relationship,” as this court has previously noted. (Illinois Central Gulf R.R., 161 Ill. App. 3d at 737-39.) Many have held that the required relationship was not established: Lohman v. Morris (1986), 146 Ill. App. 3d 457, 497 N.E.2d 143 (business invitee); Friedman, Alschuler & Sincere v. Arlington Structural Steel Co. (1986), 140 Ill. App. 3d 556, 489 N.E.2d 308 (architect and subcontractor; involvement in a common undertaking was not enough); Shaheed v. Chicago Transit Authority (1985) , 137 Ill. App. 3d 352, 484 N.E.2d 542 (general contractor and its subcontractor); Devore v. Peoria Industrial Piping Co. (1985), 135 Ill. App. 3d 966, 482 N.E.2d 653 (employer and employee; even though the relation of employer and employee existed, since the accident occurred after working hours, the required pretort relationship had not been established); and Van Slambrouck v. Economy Bailer Co. (1985), 105 Ill. 2d 462, 475 N.E.2d 867 (which underscores the problem. Four justices of the supreme court said that the relationship of manufacturer and purchaser was not sufficient; three justices said that it was).

Edison cites one case in support of its position, Illinois Central Gulf R.R. v. American President Lines, Inc. (1987), 161 Ill. App. 3d 733, 515 N.E.2d 242. In that case American President Lines (APL) furnished General Motors (GM) with a container into which GM loaded certain tractor parts and forwarded it to APL’s container yard in another State. The contract of carriage was represented by an intermodal bill of lading which referred to APL as the “ocean carrier” and GM as shipper and consignee of the goods. The first leg of the shipment was undertaken by an inland carrier, Conrail, which issued a waybill that identified APL as the shipper and consignee of the cargo. Conrail transported the container to Harvey, Illinois, where it was transferred to Elinois Central Gulf Railroad (ICG).

Somewhere in Illinois the cargo in the sealed container shifted, causing its doors to bulge. William Krakey, an employee of ICG, was inspecting the container when the doors burst open, seriously injuring him. He filed a claim against ICG under the Federal Employers Liability Act. ICG filed a third-party action against GM for implied indemnity which was dismissed. The appellate court reversed the dismissal, but it did not pass on whether the bill of lading established the necessary relationship, because GM implicitly conceded that it did. GM’s argument, rather, was that the waybill, not the bill of lading, governed the carriage of the goods and that ICG was not a party to the bill of lading.

Our task then is to determine as a matter of law whether Edison’s pleading established the required pretort relationship between Edison and HWZ. The relevant allegations of the complaint provide as follows: HWZ leased and controlled the premises and the construction on which the accident occurred; by an oral contract, Edison provided electricity to the premises which was paid for by HWZ; HWZ impliedly agreed not to damage the transmission lines; Edison provided electricity to the premises by use of an easement over the premises controlled by HWZ; Edison, as part of its contract to provide electricity to its customers, entered the premises controlled by HWZ to repair the damaged distribution lines when another person was injured three hours before McDaniel was killed.

There are also allegations that Edison inquired as to the necessity to protect its lines and was advised no further steel would be lifted by a crane, that it did not inquire further and was not advised by HWZ that additional construction would continue after the repairs had been made. We think these allegations may be matters of defense but are not relevant to the question of whether the necessary pretort relationship existed.

Edison’s argument is based on its oral agreement to provide electricity to HWZ, “the joint responsibility of Edison and HWZ to protect [McDaniel] from electric power lines” and the easement Edison had which permitted it to go on the property to service its lines. We agree with Edison that the absence of a written agreement is not fatal to its position; and we agree that the fact that HWZ was a lessee, rather than the owner of the property, has no effect on the relevance of the easement. But we do not agree that Edison has met the requirements of the rule.

The test is whether Edison has pleaded a situation “in which a promise to indemnify can be implied from the relationship” between Edison and HWZ. (Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill. 2d 245, 255, 527 N.E.2d 1248.) At the outset we reject Edison’s contention that the “joint responsibility of Edison and HWZ to protect [McDaniel] from electric power lines” has any relevance to the issue before us. Therefore, we will consider only its argument that it had an oral contract to provide electricity and an easement over the property.

Edison has a monopoly to supply electrical power, and every person seeking such electrical power must contract with Edison. Further, Edison has an easement over all property so serviced by its power. If Edison’s argument is correct here, then it would be correct in every similar case. Every owner of property, be it a factory or a home, by accepting the service of electricity from Edison, would be held to have impliedly agreed to indemnify Edison if any third party should be injured by that electrical power. To carry the argument further, the same principle would be extended to those companies, for example, supplying natural gas or cable television service. Those companies have contracts with property owners to supply a commodity or a service; they have easements to come on the property and they have monopolies or exclusive franchises. To hold that every property owner has impliedly agreed to indemnify those providers is, in our judgment, manifestly unacceptable. Judge Norman correctly held that Edison had not pleaded the necessary allegation, and he properly dismissed the complaint.

We now turn to HWZ’ argument that Edison’s negligence was active as a matter of law. We note that Judge Norman expressed misgivings about the complaint because, he said, the McDaniel complaint against Edison consisted of allegations of active negligence. However, as we have stated, he did not dismiss the complaint on that ground. We judge that his conclusion that the McDaniel complaint charged Edison with active negligence was correct, and we further judge that he could have dismissed the complaint on that ground as well.

The McDaniel complaint alleged in two counts that Edison had violated the Public Utilities Act (Ill. Rev. Stat. 1979, ch. lll2/s, par. 1 et seq.), generally, that it had violated general order 160 of the Illinois Commerce Commission and, specifically, that it violated a number of safety rules. In another count, Edison was charged with negligently operating the 12,000-volt power line, with constructing and maintaining its power line in close proximity to the scaffold upon which the decedent was working and with failure to cover the line with protective insulation after learning of the previous injury to another employee. Judging from Edison’s brief, it seems to be saying that the allegation of violations of the Public Utilities Act may be active negligence, but the other allegations are not. We hold otherwise. All of the allegations of the complaint against Edison charge active negligence, contrary to Edison’s complaint for indemnity, which contends that its negligence was passive.

Edison further argues that there has been no finding against it and, therefore, the complaint should not be dismissed. We recognize that there is authority that a complaint for indemnity should not be dismissed even where the underlying complaint alleges active negligence against the person seeking indemnity. (E.g., Trzos v. Berman Leasing Co. (1967), 86 Ill. App. 2d 176, 221 N.E.2d 787.) In Trzos the appellate court reasoned that the evidence at trial might show acts of passive negligence and that the injured party could then amend the complaint to conform the pleadings to the proof. (Trzos, 86 Ill. App. 2d at 182.) There are other cases, however, which have upheld the dismissal of a complaint for indemnity before trial of the underlying tort complaint. (See Loehr v. Illinois Bell Telephone Co. (1974), 21 Ill. App. 3d 555, 316 N.E.2d 251 (and cases cited therein).) On its face, the reasoning of the court in Trzos is an appealing argument, but we do not think it is applicable here. First, we are unable to conjure up any set of facts under which Edison could be held liable for any negligence that would not be characterized as active. Nor has Edison suggested any such facts. Moreover, the estate completed its proof and, we infer, did not amend the pleadings. The concern expressed in Trzos is not justified here. Second, any seeming unfairness in not permitting Edison the right to contest the allegations of the McDaniel complaint is offset by the unfairness that would inure to HWZ. Both Edison and HWZ went to trial together, and after the estate of McDaniel rested its case, both Edison and HWZ entered into settlement agreements as a result of which the estate dismissed its complaint with prejudice. At that point, when HWZ entered into the settlement agreement, we may fairly infer, it had no idea that Edison, three months later, would be seeking indemnity from it.

We are aware that case law holds that there is no requirement that a party seeking indemnity must file its complaint in the same action as the underlying tort complaint. (Anixter Brothers, Inc. v. Central Steel & Wire Co. (1984), 123 Ill. App. 3d 947, 463 N.E.2d 913.) But the same public policy considerations requiring that a complaint for contribution be tried together with the underlying tort claim are present in claims for indemnity. (Tisoncik v. Szczepankiewicz (1983), 113 Ill. App. 3d 240, 446 N.E.2d 1271; cf. Gertz v. Campbell (1973), 55 Ill. 2d 84, 302 N.E.2d 40.) To require HWZ to respond to Edison's complaint would also require a rehearing of all the evidence that had previously been heard, for HWZ would have the right to contest the allegations of the estate even against Edison.

Edison maintains that it settled due to uncertainties which arose at trial. But it admits in its brief that those uncertainties were based on “the allegations that Edison negligently failed to comply with procedures developed for the purpose of assisting building contractors and construction companies to comply with Illinois Safety and Health Act Rules and OSHA Rules relating to work performed in proximity to electric lines.” (Emphasis added.) Those allegations, we repeat, are claims of active negligence.

There is another reason for rejecting Edison’s argument that it was entitled to a trial to determine whether or not the allegations of the McDaniel complaint were true. In Thatcher v. Commonwealth Edison Co. (1988), 123 Ill. 2d 275, 527 N.E.2d 1261, Edison and Dow Chemical were sued for damages, and Edison filed a third-party action against Dow seeking indemnity and contribution. Edison then settled with the plaintiff in the tort action. Its complaint against Dow for indemnity was dismissed on the ground that the Contribution Act had abolished actions for implied indemnity. The supreme court upheld the dismissal, but not on the ground ascribed by the trial court. Rather, the court pointed out that the allegations against Edison were, in effect, claims of active negligence and that Edison’s settlement “must be considered, a holding that it was liable.” (Thatcher, 123 Ill. 2d at 279.) We judge that Thatcher is controlling and that Edison’s settlement here must be considered a holding that it was liable. Edison argues that Thatcher is distinguishable because it involved a defective product and that it was decided after the passage of the Contribution Act. We do not believe those are pertinent distinctions. For these reasons, we hold that the complaint would have been properly dismissed on this additional ground.

HWZ has advanced other arguments for the dismissal, including contentions that an order adjudicating a workers’ compensation lien constituted collateral estoppel on the question of active negligence, that the Public Utilities Act is penal in nature and that Edison is barred from prosecuting this action because it has a higher duty of care. Judge Norman rejected all of those arguments. In view of our holding, it would serve no purpose to discuss them other than to say that Judge Norman was right.

For these reasons the judgment of the circuit court is affirmed.

Judgment affirmed.

HARTMAN and SCARIANO, JJ., concur.


author: PRESIDING JUSTICE FREEMAN

text:
    COMMONWEALTH EASTERN MORTGAGE COMPANY, Plaintiff-Appellee, v. GREGORY VAUGHN et al., Defendants-Appellants.
    First District (3rd Division)
    No. 88—1633
    Opinion filed January 25, 1989.

      Leonard Karlin, of Chicago, for appellants.
    Walsh, Case, Coale & Brown, Ltd., of Chicago (John D. Plattner and Michael E Braun, of counsel), for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Commonwealth Eastern Mortgage Company, filed a mortgage foreclosure action against defendant, Gregory Vaughn, in the circuit court of Cook County on July 23, 1987. The trial court granted plaintiff’s motion for summary judgment on November 23, 1987. On March 16, 1988, defendant filed a motion under section 2— 1401 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1401) to vacate the judgment of foreclosure and sale. The trial court denied the motion on March 28, 1988. On April 25, 1988, defendant filed what the trial court treated as a second motion to vacate the foreclosure judgment and to stay all proceedings. The trial court denied that motion on April 29, 1988. Defendant appeals from the denial of this second motion to vacate.

Defendant’s section 2 — 1401 motion to vacate the foreclosure judgment alleged that neither he nor his attorney received notice of the motion for summary judgment although they were both entitled to notice. It further alleged that the “Notice of Motion” for summary judgment filed on November 23, 1987, was defective on its face in that the “Proof of Service By Mail” portion thereof stated that the notice was mailed on November 23, the date of the hearing for summary judgment. It also alleged that defendant’s attorney first learned of the entry of judgment when he received a notice of motion to amend the judgment in January 1988. Finally, the motion alleged that the judgment deprived defendant of an opportunity to assert “any defenses or affirmative matters.”

Plaintiff’s response to the motion to vacate asserted that the notice of motion for summary judgment was served upon defendant’s counsel on November 13, 1987. Attached to the response was the affidavit of the scrivener of the notice of motion, a paralegal for plaintiff’s attorneys. The affiant stated that she mailed the notice of motion on November 13, 1987, to defendant’s counsel at his address and that she inadvertently typed “November 23, 1987” as the mailing date. Plaintiff further contended that Supreme Court Rule 11 (107 Ill. 2d R. 11) required only service of the notice of motion upon defendant’s counsel, not defendant as well, and that it sent the notice to the former in compliance with the rule. Finally, plaintiff asserted that defendant had not met the requirements under section 2 — 1401 by failing to show due diligence and a meritorious defense to plaintiff’s claim.

“[T]he affidavits concerning the scrivener’s error and the other documents” convinced the trial court that the notice of the motion for summary judgment was mailed on November 13, “which was sufficient time.” The court also concluded that defendant’s allegations of a meritorious defense were insufficient, especially in view of the failure of defendant’s amended answer to the complaint to allege any defenses. As such, the trial court denied the motion to vacate.

On appeal, defendant contends that the judgment of foreclosure was entered without proper notice either to him or his attorney and is therefore void. Defendant asserts that the notice of motion for summary judgment filed by plaintiff failed, on its face, to meet the requirements therefor under Supreme Court Rules 11 and 12. (107 Ill. 2d Rules 11, 12; Ill. Rev. Stat. 1987, ch. 110, par. 2-620.) Specifically, defendant asserts that the proof of service by mail portion of the notice form “implies and indicates” that the form was mailed to defendant at his attorney’s address. Defendant notes that Supreme Court Rule 11 required, inter alia, that service of the notice be mailed to defendant’s attorney at the attorney’s business address or to defendant at his business address or residence.

Defendant also repeats his argument below that the proof of service reflects that the notice was mailed on November 23, 1987, the date upon which plaintiff was going to move for summary judgment. Defendant thus asserts that the notice was insufficient under Supreme Court Rule 12, providing, inter alia, that service by mail is complete four days after mailing. He also asserts that it violated Cook County Circuit Court Rule 2.1(e), providing that summary judgment motions will not be heard until 10 days after service of the notice of motion under Supreme Court Rule 11.

Proceeding from the defects in the notice of motion, defendant concludes that it is clear that neither he nor his attorney received notice of the entry of summary judgment for plaintiff until January 25, 1988, when his attorney received notice of the motion to amend the foreclosure judgment.

We agree with defendant that the notice of motion is defective under Supreme Court Rule 11, although not entirely for the reasons stated by defendant.

The notice of motion contains, at the very top of the form, the names of the parties. The name and address of plaintiff’s attorney appear in the “To” portion just below the caption of the case. However, in the “Proof of Service By Mail” portion it indicates that it was mailed to the “above-named defendant” at “his address,” not, as defendant contends, at his attorney’s address. Supreme Court Rule 11 provides that, if a party is represented by an attorney of record, service “shall be made upon the attorney.” Thus, service should have been made upon defendant’s attorney of record at the time the notice was mailed out, not defendant. As such, the notice of motion violated Supreme Court Rule 11.

In this regard, we reject plaintiff’s assertion that the fact that defendant’s attorney’s name was listed in the “To” portion of the notice indicates that it was mailed to the attorney, not defendant. The “To” portion of the notice indicates only to whom it is directed. It is the proof of service by mail portion of the notice which controls the determination as to whom it was mailed. We also reject plaintiff’s assertion at oral argument that the words “above-named defendant” could only have referred to defendant’s attorney since defendant’s name did not appear on the notice of motion. The copy of the notice of motion filed with the court clerk clearly contains defendant’s name, contrary to plaintiff’s assertion.

We further agree with defendant that the notice of motion violates Supreme Court Rule 12 and Cook County Circuit Court Rule 2.1(e) because the proof of service indicates that the notice was mailed on the date of the summary judgment hearing.

These defects notwithstanding, we believe the trial court properly relied on the affidavit of the scrivener of the notice of motion to deny defendant’s motion to vacate the judgment.

The affidavit recited that the notice of motion and “the pleadings described therein” were mailed to defendant’s attorney at his business address. As plaintiff conceded at oral argument, the affidavit did not expressly address the statement in the proof of service that the notice was mailed to the “above-named defendant at his address.” However, we believe that in stating that the notice was mailed to defendant’s attorney at his business address, the affidavit implicitly resolved the question as to whom the notice was mailed. Moreover, mailing the notice to defendant’s attorney was all that was required of plaintiff in serving the notice of motion under Supreme Court Rule 11.

Defendant argues that plaintiff was required to serve a notice of motion upon him and his attorney of record. In so arguing, defendant relies upon the fact that he filed a pro se appearance in this cause and a pro se answer to plaintiff’s complaint. He also relies upon the fact that the attorney he retained after his pro se answer was stricken filed an “Additional Appearance As Trial Lawyer.” These facts did not require plaintiff to serve the notice of motion upon defendant as well as his attorney of record. Our supreme court has held that a criminal defendant does not have the right to serve as cocounsel on his case with an attorney, i.e., to both self-representation and the assistance of counsel. (People v. Williams (1983), 97 Ill. 2d 252, 266-67, 454 N.E.2d 220, cert, denied (1984), 466 U.S. 981, 80 L. Ed. 2d 836, 104 S. Ct. 2364.) We believe that this rule is equally applicable in civil matters. As such, defendant, having chosen to proceed with counsel in this matter, was not also entitled to service of the notice of motion.

The scrivener of the notice of motion further attested that she mailed the notice of motion on November 13, 1987, and had inadvertently typed “November 23, 1987,” as the mailing date on the notice. Defendant did not file a counteraffidavit. Rather, his attorney merely stated at the hearing on the motion to vacate that neither he nor defendant had received notice. However, the proper giving of notice by mail established by the scrivener’s affidavit could not be frustrated by the mere allegation that notice was not received. Otherwise, “the giving of notice by mail cannot be relied upon even though the rules specify such a method.” (Bernier v. Schaefer (1957), 11 Ill. 2d 525, 529, 144 N.E.2d 577.) As such, the trial court did not abuse its discretion in accepting the affidavit as establishing the date upon which the notice was mailed. As that date was 10 days before the hearing on the motion for summary judgment was held, the service of the notice complied with Supreme Court Rule 12 and Cook County Circuit Court Rule 2.1(e).

Defendant contends that, in relying upon the affidavit to vary the unambiguous notice of motion, the trial court violated the parol evidence rule. Defendant also contends that, after expressing its disbelief of the affidavit, the trial court inconsistently relied upon it to conclude that the documents which were attached to, and filed with, the motion for summary judgment were mailed on November 13, 1987, although they were executed after that date.

Under the parol evidence rule, if parties intend that a written instrument alone is to constitute the complete agreement between them, or if the instrument states that it alone is to constitute such agreement or if the instrument itself appears complete, certain and unambiguous, then parol evidence of a prior or contemporaneous agreement or terms not included in the instrument is inadmissible to vary its terms. (Ireland v. Esposito (1981), 93 Ill. App. 3d 584, 417 N.E.2d 738; Tondre v. Pontiac School District No. 105 (1975), 33 Ill. App. 3d 838, 342 N.E.2d 290.) The rule obviously has no application here.

Moreover, the trial court did not express a disbelief in the scrivener’s affidavit. Defendant cites the trial court’s observation that the affidavit in support of the motion for summary judgment was executed on November 16, 1987, and that two affidavits in support of plaintiff’s request for attorney fees were executed on November 23 as evidencing disbelief in the scrivener’s assertion that she mailed the notice of motion on November 13. We do not so construe that observation. Immediately thereafter, the trial court stated that “the affidavits concerning the scrivener’s error and the other documents” led it to believe that the notice of motion was mailed on November 13, “which was sufficient time.” Thus, the trial court believed the scrivener’s affidavit notwithstanding the execution dates of the documents attached to the summary judgment motion and the notice of motion filed with the court clerk. In so doing, the trial court did not err.

As plaintiff notes, there is no authority requiring that the copies of affidavits attached to a summary judgment motion and a notice of motion sent to a party or his attorney be executed. As such, we disagree with defendant that the execution of these documents after November 13 requires the conclusion that the notice of motion was not sent at that time.

In the final analysis, we believe the trial court properly relied on the scrivener’s affidavit to establish the true facts of the service of notice upon defendant. See First National Bank v. Paris (1934), 358 Ill. 378, 193 N.E. 207; State Bank v. Thill (1985), 135 Ill. App. 3d 747, 481 N.E.2d 1215, affd (1986), 113 Ill. 2d 294, 497 N.E.2d 1156.

In Thill, a mortgage foreclosure defendant sought to vacate a summary judgment for the plaintiff on the ground that he had not been served with summons. The affidavit of service filed with the summons failed to state that substitute service was completed upon the defendant by mailing a copy of the summons to him. In response to the motion to vacate, the plaintiff submitted supplemental affidavits of the special process servers reciting that they had served a copy of the summons upon the defendant’s wife and had completed service by mailing a copy to the defendant. The court stated:

“We conclude the affidavit of service may be supplemented by evidence, as in this case, to show that which was actually done in effecting *** service of process upon defendant. *** Our supreme court has noted in a similar context that ‘[t]he written return of the process served by the sheriff is not the service but only written evidence of the fact of service. Where the return is subsequently amended, the fact as to how the process was actually executed is not changed but only the evidence of the fact is changed to speak the truth as to the facts.’ ” (Thill, 135 Ill. App. 3d at 756.)

Moreover, Thill is not distinguishable from this case because it involved an incomplete affidavit of service while this case involves a mistaken or incorrect affidavit of service. In both types of cases, a trial court may consider both affidavits and testimony, together with the disputed affidavit, to resolve the factual issue of whether proper service was made. Thill, 135 Ill. App. 3d at 757.

Defendant next contends that the affidavit in support of the motion for summary judgment was insufficient to sustain the judgment of foreclosure.

We find that defendant waived any insufficiencies in the affidavit in support of the motion for summary judgment by not raising them below. The sufficiency of affidavits, including those in support of summary judgment motions, cannot be raised for the first time on appeal. (Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, cert, denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847; Wogelius v. Dallas (1987), 152 Ill. App. 3d 614, 623, 504 N.E.2d 791.) Defendant had ample opportunity to raise any objection to the affidavit in support of the motion for summary judgment in its motion to vacate the judgment of foreclosure. Having failed to do so, defendant cannot now object to the affidavit.

In addition, even if the affidavit contained the insufficiencies alleged, they would not invalidate the judgment of foreclosure. Affidavits are not required in support of summary judgment motions. (Yusuf v. Village of Villa Park (1983), 120 Ill. App. 3d 533, 458 N.E.2d 575.) In other words, summary judgment may be granted with or without supporting affidavits where there is no genuine issue of material fact. (Cato v. Thompson (1980), 83 Ill. App. 3d 321, 403 N.E.2d 1239.) As such, summary judgment for plaintiff was appropriate solely on the basis of the complaint and defendant’s amended answer, which admitted all of the allegations of plaintiff’s complaint.

Defendant argues that the affidavit was insufficient to leave any relevant question of fact unanswered. This argument ignores that it was defendant’s amended answer which resolved all material fact questions by admitting all the allegations of plaintiff’s complaint. Defendant’s original pro se answer to the complaint alleged that he had been the victim of fraud in the mortgage transaction. However, those allegations were not repeated in the amended answer as part of any defense or otherwise. Thus, the amended answer resolved whatever issues of fact the complaint raised and the affidavit in support was unnecessary for that purpose.

For all of the foregoing reasons, the summary judgment for plaintiff and the denial of the motions to vacate the judgment are affirmed in their entirety.

Affirmed.

McNAMARA and WHITE, JJ., concur.


author: PRESIDING JUSTICE MANNING

text:
    RICHARD D. ABERNATHY, Plaintiff-Appellant, v. DYNELL SPRINGS COMPANY, INC., d/b/a The Sabre Room, Defendant-Appellee.
    First District (1st Division)
    No. 86—3043
    Opinion filed January 30, 1989.

      Anesi, Ozmon, Lewin & Associates, of Chicago (Nat P. Ozmon and Richard B. Rogich, of counsel), for appellant.
    Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago (Victor J. Piekarski and Michael Resis, of counsel), for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Plaintiff, Richard D. Abernathy, filed this action on September 4, 1980, in the" circuit court of Cook County to recover damages for injuries sustained by him as a result of an automobile accident. Plaintiff named Thomas J. Oberleitner and Dynell Springs Company, Inc., d/b/a the Sabre Room, as defendants in this action. Plaintiff alleged in his complaint that Oberleitner was negligent in attempting to exit from the Sabre Room parking lot onto 95th Street, resulting in a collision of his motorcycle with Oberleitner’s vehicle in the curb lane on 95th Street. Plaintiff further alleged that the Sabre Room was guilty of one or more of the following negligent acts: (1) caused to be erected a stone mason wall for decorative purposes; (2) allowed weeds and grass to grow adjacent to the wall which further obstructed the view of motor vehicle operators; (3) allowed the wall to be built so as to encroach upon the public right-of-way, and (4) failed to place adequate lighting and warning to the public regarding exiting vehicles.

Oberleitner was voluntarily dismissed on December 1, 1980, pursuant to a settlement. On April 4, 1981, the plaintiff filed an amended complaint adding Palos Township, the City of Hickory Hills and Cook County, alleging that they owned, operated, controlled, or maintained the roadway at/or about 8850 West 95th Street. Plaintiff filed a second-amended complaint on May 3, 1982. Subsequently, Palos Township, the City of Hickory Hills and Cook County moved for summary judgment, denying that they owned, operated, controlled, or maintained 95th Street, a State highway. Summary judgment was granted by the trial court on May 25, 1983, to Palos Township, the City of Hickory Hills and Cook County. On March 17, 1986, the Sabre Room filed a motion for summary judgment which was granted by the trial court on September 30,1986. Plaintiff appeals that order.

On July 6, 1980, the plaintiff, Richard Abernathy, was injured at approximately 8850 West 95th Street in Palos Township in Cook County as he traveled west on 95th Street in the curb lane on his motorcycle. Plaintiff provided deposition testimony stating that while proceeding west on 95th Street there is a small hill that crests where the driveway of the Sabre Room parking lot meets 95th Street. Plaintiff stated that he saw a motor vehicle driven by Thomas Oberleitner exiting the driveway of the Sabre Room parking lot approximately 100 feet away. When he first saw the vehicle it was just starting to move but had not entered his lane. When the vehicle continued to move, the plaintiff attempted to go to his left to avoid the vehicle, but the left side of the driver’s vehicle struck the right side of the plaintiff’s motorcycle. Plaintiff acknowledged that he was never told that Oberleitner experienced difficulty seeing him prior to the accident.

Plaintiff maintains that a decorative stone wall, approximately four or five feet high, is located on each side of the Sabre Room driveway. A plat of survey revealed that the property line of the Sabre Room ended approximately 23 feet from the curb on 95th Street. The plat of survey further revealed that the last 9.58 feet of the stone wall closest to the street were located on property condemned by the State in 1940. Moreover, the wall ends approximately 13 feet from the curb. Therefore, it does not actually border 95th Street.

Arnold Muzzarelli, the owner of the Sabre Room, provided deposition testimony stating that the stone wall was erected prior to his purchasing the property in 1955. Moreover, he has not maintained or performed any work on the wall. Timothy McKeon, a witness to the accident, provided deposition testimony stating that when Oberleitner was exiting the Sabre Room parking lot, he initially stopped even with the wall and then entered the first lane on 95th Street prior to the collision. A potential expert witness provided an affidavit which contained his conclusion that the stone wall was a major contributing cause of the accident. This affidavit, however, was struck by the trial court, and hence, is not part of the record.

Plaintiff argues that the trial court erred in granting summary judgment when there existed a genuine issue of material fact regarding whether the Sabre Room was negligent in violating a State statute and a Hickory Hills Township ordinance, and whether the stone wall was the proximate cause of the plaintiff’s injuries. The defendant maintains that the entry of summary judgment was proper since it was supported by the pleadings, proofs and exhibits.

The purpose of a summary judgment proceeding is to determine whether a genuine issue of material fact exists. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) It is well settled that a motion for summary judgment will only be granted if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is not a genuine issue of any material fact and the moving party is entitled to a judgment as a matter of law. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.

We recognize that summary judgment is a drastic means of disposing of litigation, and therefore, should only be granted when the right of the moving party is free from doubt. (Boylan v. Martindale (1982), 103 Ill. App. 3d 335, 339, 431 N.E.2d 62.) However, a motion for summary judgment will not be denied even if there are fact issues in dispute where the issues are not material to the essential elements of the cause of action or defense. Pyne v. Witmer (1987), 159 Ill. App. 3d 254, 259, 512 N.E.2d 993; Shultz v. American National Bank & Trust Co. (1976), 40 Ill. App. 3d 800, 805, 352 N.E.2d 310.

Plaintiff argues that the defendant, as the owner of the subject property, owed a common law duty of care to the plaintiff in the use of its property, and that the defendant breached his duty of care by allowing the stone wall to extend from his property onto the State highway limits. Therefore, he maintains that as a result of this breach, summary judgment should not have been granted. Plaintiff further argues that an issue of material fact existed regarding whether the stone wall was the proximate cause of the collision between Abernathy and Oberleitner. The defendant contends that it owed no legal duty to the plaintiff. To sufficiently state a cause of action for negligence, the plaintiff must establish the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty and an injury proximately caused as a result of that breach. Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill. App. 3d 213, 217, 517 N.E.2d 656; Kirk v. Michael Reese Hospital (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387.

In determining whether summary judgment was proper, we must make a threshold determination of whether the defendant owed the plaintiff a duty. It is well settled that although the determination regarding whether a duty has been breached and whether that breach is a proximate cause of the injury is a question of fact, that may be decided by a jury (French v. City of Springfield (1976), 65 Ill. 2d 74, 79, 357 N.E.2d 438), the question of whether a duty exists between the plaintiff and defendant is an issue of law to be determined by the trial court. Curtis v. County of Cook (1983), 98 Ill. 2d 158, 163, 456 N.E.2d 116; Boylan v. Martindale (1982), 103 Ill. App. 3d 335, 339, 431 N.E.2d 62; Cunis v. Brennan (1974), 56 Ill. 2d 372, 374, 308 N.E.2d 617.

Our supreme court has specifically set forth the law of summary judgment as it relates to duty, holding that

“the entry of a summary judgment is proper when only a question of law is involved. (Allen v. Meyer, 14 Ill. 2d 284.) Thus, if under the pleadings and affidavits it appears that the defendant owed no duty *** the granting of the motion for summary judgment was proper.” Barnes v. Washington (1973), 56 Ill. 2d 22, 27, 305 N.E.2d 535.

As to the element of duty, it is undisputed that the defendant’s property ended approximately 23 feet from the edge of 95th Street. Moreover, the last 9.58 feet of the wall closest to the street were located on State property that was condemned by the State in 1940. Even if the defendant had torn down that portion of the wall located on its property, that part of the wall closest to the street on the State-condemned property would have remained, resulting in no benefit to the public. The wall actually ended 13 feet from the curb of 95th Street. Therefore, as revealed by the plaintiff’s testimony, he had an unimpeded view of Oberleitner since he saw Oberleitner’s vehicle 100 feet away. Furthermore, there was no evidence presented that the wall obstructed Oberleitner’s view. Timothy McKeon, a witness to the accident, also testified that Oberleitner initially stopped even with the wall and he had entered the curb lane before the collision.

Under the facts of this case, we find no common law duty that was breached by the defendant. Moreover, the plaintiff failed to submit any evidence that it was reasonably foreseeable that the wall was the proximate cause of the accident.

Plaintiff next argues that the defendant was negligent in violating section 9 — 117 of the Illinois Highway Code (Ill. Rev. Stat. 1985, ch. 121, par. 9 — 117), which protects persons and property, since the wall is within the State highway limits of 95th Street. The statute specifically provides:

“If any person injures or obstructs a public highway by felling a tree or trees in, upon or across the same, or by placing or leaving any other obstruction thereon, or encroaching upon the same with any fence, or by plowing or digging any ditch or other opening thereon, or by turning a current of water so as to saturate, wash or damage the same, or by plowing in or across or on the slopes of the side gutters or ditches, or by placing any material in such ditches, or in any way interfering with the free flow of water therein, or leaves the cuttings of any hedge thereon for more than 10 days, without the permission of the highway authority having jurisdiction over such highway, he shall be guilty of a petty offense and fined for every such offense not less than $10 nor more than $100; and in case of placing any obstruction on the highway, an additional sum of not exceeding $10 per day for every day he allows such obstruction to remain after he has been ordered to remove it by the highway authority having jurisdiction over such highway. Any person feeling himself aggrieved or any such highway authority may make a complaint under this Section.” Ill. Rev. Stat. 1985, ch. 121, par. 9 — 117.

The section of the Illinois Highway Code relied on by the plaintiff cannot properly be interpreted to apply to this case. The statute imposes liability if the obstruction is in, upon or across a public highway. (Ill. Rev. Stat. 1985, ch. 121, par. 9 — 117.) Defendant in the instant case did not violate the subject statute. There is no evidence that the defendant injured a public highway, nor did the evidence show an obstruction was in, upon or across 95th Street. On the contrary, a plat of survey revealed that the defendant’s property ended approximately 23 feet from the curb on 95th Street, and the wall ended 13 feet from the curb on 95th Street, with the last 9.58 feet of the wall closest to 95th Street located on property condemned by the State in 1940.

In Pyne v. Witmer (1987), 159 Ill. App. 3d 254, 512 N.E.2d 993, the plaintiff argued that a duty existed because the defendant violated two public safety statutes concerning obstructions on highways. We concluded that our nuisance statute does not apply to foliage that did not interfere with movement over the road even though the foliage adjoined the roadway. (Pyne v. Witmer (1987), 159 Ill. App. 3d 254, 261, 512 N.E.2d 993.) We further held that unless there exists a statutory directive to the contrary, a landowner is under no duty to remove foliage on his property in order that motorist approaching an intersection can see other intersecting motorist. (159 Ill. App. 3d at 262.) Similarly, in the instant case, in the absence of a statutory directive, there is no duty on a landowner to remove a wall that extends onto State-owned property which does not obstruct the movement on the highway.

Plaintiff further asserts that the existence of the wall on the defendant’s property violates article 4, sections 4.05 and 4.06, of the Hickory Hills Township ordinance, which provide:

“ARTICLE IV
4.05 Bulk Regulations
* * * ¡
C. Walls and Fences
Walls and fences are permitted in yards subject to visibility requirement of section 4.06 and as regulated by ordinance.
4.06 Visibility at Intersection on a corner lot in an R-l, R-2, R-3, R-4, or C-3 Zoning District nothing shall be erected, placed, planted or allowed to grow in such a manner so as to materially impede vision between a height of two and a half (2V2) and ten (10) feet above the center line grades of the intersecting streets in the area bounded by the street lines of such corner lot and a line joining points along said street lines thirty (30) feet from the point of the intersection.”

The Hickory Hills Township ordinance applies specifically to visibility at the intersection of a corner lot. Liability cannot be imposed on the defendant based on the Hickory Hills Township ordinance since it is undisputed that the defendant’s property is not located on a corner lot.

The evidence does not support the plaintiff’s argument that there existed a genuine issue of material fact. The plaintiff has failed to establish a common law or statutory duty owed to him by the Sabre Room. Accordingly, based on the foregoing, we conclude that the defendant was entitled to judgment as a matter of law and that the trial court properly granted the defendant’s motion for summary judgment.

Judgment affirmed.

CAMPBELL and BUCKLEY, JJ., concur.