text:
    THE WESTERN CASUALTY & SURETY COMPANY, Plaintiff-Appellant, v. ADAMS COUNTY et al., Defendants-Appellees.
    Fourth District
    No. 4—88—0248
    Opinion filed February 16, 1989.

      Jerry L. Brennan, of Keefe, Gorman & Brennan, of Quincy, for appellant.
    James R. Schirott and James G. Sotos, both of Schirott & Associates, P.C., of Itasca, for appellees.
   JUSTICE SPITZ

delivered the opinion of the court:

Plaintiff Western Casualty and Surety Company (Western) appeals the order of Adams County circuit court denying its motion for summary judgment in a declaratory judgment action brought against its insured, Adams County (County). The trial court granted the County’s motion for summary judgment and ruled Western had a duty to defend. We affirm.

On March 18, 1987, Western filed a complaint for declaratory judgment pursuant to section 2—701 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—701), requesting the court to establish the rights and legal relations of the parties under certain insurance policies issued to the County from May 1978 through May 1983. A general liability policy, including automobile coverage, and an umbrella policy were in effect each of the five years in question.

The County demanded Western defend under the policies after Courtney Stephens and other Adams County landholders (collectively referred to as plaintiffs) brought a six-count action against Adams County, two of its township assessors, two supervisors of assessments, and various members of the County Board of Review (collectively referred to as defendants). The events forming the basis of the complaint occurred from 1972 through 1985.

The first four counts alleged deprivations of due process and equal protection in violation of the Civil Rights Act (42 U.S.C. §1983 (1982)). Counts I through III alleged certain defendants annually “purposefully assessed” plaintiffs’ property in excess of legal limits despite repeated challenges to the assessments which were ultimately resolved in plaintiffs’ favor by the property tax appeal board or by judicial decision. In addition, plaintiffs alleged County officials assessed the farmland on a productivity basis rather than on fair cash value, failed to assess quadrennially, - and failed to equalize assessments. In count IV, plaintiffs alleged an equal protection violation based on the defendant supervisors of assessments’ purposeful failure to properly train and supervise township assessors, resulting in excessive assessments made on a productivity basis rather than on a fair cash value basis, and annual rather than quadrennial assessments.

Counts V and VI allege various defendants knowingly neglected certain duties in violation of sections 322 and 323 of the Revenue Act of 1939 (Act) (Ill. Rev. Stat. 1985, ch. 120, pars. 803, 804). Specifically, the counts claimed supervisors of assessments failed to maintain complete sets of property cards, failed to reassess properties upon plaintiffs’ application, failed to reassess the properties for diminution of assessed valuation relating to destruction of buildings, and failed to convene a public hearing to discuss equalized assessed valuation of farmland. Count VI alleged defendants knowingly neglected their duties by failing to keep a complete set of property cards, failing to reassess as required by law, and failing to figure assessments using a productivity index. Plaintiffs claimed the County officials’ actions prevented or hindered proceedings in which plaintiffs sought reduction and equalization of assessed valuations, and resulted in assessments higher than that of comparable property.

In its complaint for declaratory judgment, Western claimed no coverage existed because (1) the events described in the Stephens complaint did not fall within the definition of “occurrence” provided in the policies; (2) the complaint did not allege a cause of action for personal injury or property damage as defined in the policies; and (3) the complaint appeared to allege a cause of action for intentional overassessment of property tax, which the policies did not cover. Attached to the complaint were various excerpts from the policies in effect during the applicable time; however, complete copies of the policies appear in the record.

The parties filed cross-motions for summary judgment. On March 9, 1988, the trial court granted the County’s motion for summary judgment and ordered Western to defend. This appeal followed.

Western argues principally that the Stephens complaint alleges intentional conduct which by definition cannot be termed an occurrence, and consequently, is clearly not covered by the policy. The County contends the Stephens complaint alleges an occurrence potentially within the ambit of the policies’ coverage. It also contends the complaint states a cause of action for personal injury or property damage sufficient to trigger Western’s duty to defend.

Summary judgment should be granted only when the pleadings, depositions, and admissions, together with any affidavits, show there is no genuine issue as to a material fact and that the movant is entitled to judgment as a matter of law. (Clifford-Jacobs Forging Co. v. Capital Engineering & Manufacturing Co. (1982), 107 Ill. App. 3d 29, 33, 437 N.E.2d 22, 25.) The reviewing court will reverse the order granting summary judgment if it determines that a genuine issue of material fact does exist. Casteel v. Smith (1982), 109 Ill. App. 3d 1094, 441 N.E.2d 860.

In Illinois, an insurers’ duty to defend an action against its insured is determined by the allegations of the complaint. An insurer may not justifiably refuse to defend an action against its insured unless it is clear from the face of the complaint that the allegations fail to state facts which bring the case within, or potentially within, the policy’s coverage. (Conway v. Country Casualty Insurance Co. (1982), 92 Ill. 2d 388, 442 N.E.2d 245.) The duty to defend is much broader than the duty to indemnify. (Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23, 514 N.E.2d 150; La Rotunda v. Royal Globe Insurance Co. (1980), 87 Ill. App. 3d 446, 408 N.E.2d 928.) The duty to defend extends to cases where the complaint alleges several causes of action or theories of recovery against an insured even if only one or some of them are within the policy coverage. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24.) Unless the complaint on its face clearly alleges facts which, if true, would exclude coverage, the potentiality of coverage is present and the insurer has a duty to defend. (Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777, 387 N.E.2d 700.) “Potentially covered” means that the insurer’s duty to defend its insured arises whenever the allegations in a complaint state a cause of action that gives rise to the possibility of a recovery under the policy. There need not be a probability of recovery. (Tews Funeral Home, Inc. v. Ohio Casualty Insurance Co. (7th Cir. 1987), 832 E2d 1037, 1042, citing 7C J. Appleman, Insurance Law & Practice §4683.01, at 67 (1979).) The complaint need not allege or use language affirmatively bringing the claims within the scope of the policy, as the question of coverage should not hinge exclusively on the draftsmanship skills or whims of the plaintiff in the underlying action. International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co. (1988), 168 Ill. App. 3d 361, 377, 522 N.E.2d 758, 768.

If the words of a policy can reasonably be given their plain, ordinary, and popular meaning, the provisions should be applied as written and the parties should be bound to the agreement they made. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 475 N.E.2d 872.) The complaint against the insured must be liberally construed. Any doubts about potential coverage are to be resolved in the insured’s favor. La Rotunda, 87 Ill. App. 3d at 451, 408 N.E.2d at 933.

Turning to the policies in question, the pertinent provisions of the general and umbrella policies essentially define “occurrence” as an accident which causes bodily injury, personal injury, or property damage, neither expected nor intended by the insured, including continuous or repeated exposure to conditions.

The policies define personal injury:

“ ‘Personal Injury’ means (1) bodily injury, sickness, disease, disability or shock, including death arising therefrom, and, if arising out of the foregoing, mental anguish and mental injury; (2) false arrest, false imprisonment, wrongful eviction, wrongful entry, wrongful detention, or malicious prosecution; or (3) libel, slander, defamation of character, humiliation, or invasion of the rights of privacy, unless arising out of advertising activities; and (4) racial or religious discrimination not committed by or at the direction of the insured or any executive officer, director or stockholder thereof, but only with respect to the liability other than fines and penalties imposed by law; caused by an occurrence during the policy period.”

During the first, second, and fifth policy years the definition of “personal injury” was limited to “Bodily Injury, Sickness, Disease, Disability or Shock, including Death arising therefrom,” in consideration of a reduced premium. The general policies cover only bodily injury, which the County concedes is not in issue here.

The policies define property damage:

“(1) [Pjhysical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period.”

The focus of the trial court’s inquiry during oral argument was the police professional liability exclusion attached to the policies in years three and four. The relevant portion of the exclusion stated:

“This policy shall not apply to Personal Injury or Property Damage caused by Errors and/or Omissions of Police Officers including but not limited to: false arrest, erroneous service of civil papers, false imprisonment, malicious prosecution, assault and battery, libel, slander, defamation of character, violation of property rights, or deprivation of any rights, privileges or immunities secured by the Constitution and the laws of the United States.”

A municipality endorsement appended to the policy for years one through four excluded coverage (unless covered by the underlying insurance) for property damage caused by explosion, collapse, or underground property damage hazard. It also excluded personal injury arising from false arrest, detention, or imprisonment, as well as malicious prosecution, libel, slander, defamation, violation of privacy rights, wrongful entry or eviction, or other invasion of right of private occupancy. An amendatory endorsement in the fifth year excluded the same items.

The umbrella policy for years three through five also excluded errors, acts or omissions, neglect or breach of duty by the insured or someone for whose acts the insured is responsible, arising from duties discharged as a municipality or municipal council, or elected or appointed members and officials thereof.

Counts I through IV allege deprivation of due process and equal protection under section 1983 resulting from the County’s purposeful overassessment of plaintiffs’ property. Western correctly argues there is no remedy under section 1983 based on a defendant’s mere negligence resulting in a violation of a plaintiff’s protected rights. Illinois Farmers Insurance Co. v. Preston (1987), 153 Ill. App. 3d 644, 505 N.E.2d 1343; International Society for Krishna Consciousness, Inc. v. City of Evanston (1980), 89 Ill. App. 3d 701, 411 N.E.2d 1030.

The County places considerable reliance on Grant v. North River Insurance Co. (N.D. Ind. 1978), 453 E Supp. 1361. The plaintiffs sued the city of Fort Wayne, Indiana, under section 1983 for injuries occurring when police officers killed and injured persons they erroneously believed to be fleeing bank robbery suspects. The city brought a declaratory judgment action to determine rights under several liability policies in effect at the time of the occurrence. The first policy insured all city departments and covered bodily injury or property damage. The second policy, a police professional liability policy, covered personal injury, bodily injury, and property damage. The court ruled the third policy, an umbrella policy, covered the civil rights violations that were the subject of the lawsuit. The court looked to the fact that the police professional liability policy specifically covered bodily injury, the type of injury which gave rise to the section 1983 claim. In addition, both the police liability policy and the umbrella policy covered personal injuries, held to be broader than physical bodily injuries. Grant is distinguishable since the type of injury sustained was explicitly covered in the policy.

In Illinois Farmers Insurance Co. v. Preston (1987), 153 111. App. 3d 644, 505 N.E.2d 1343, a school employee sued a school education committee member in Federal court, alleging a section 1983 violation as well as other State tort and contract claims. The crux of the plaintiff’s complaint was he alleged the committee member made certain false and misleading statements which led to his wrongful dismissal. The plaintiff alleged the conduct rose to the level of a deprivation of constitutional rights. The defendant’s homeowner’s insurance carrier refused to defend, relying on an endorsement which specifically excluded the insured’s intentional acts from coverage. In the subsequent declaratory judgment action brought by the insurer, the court ruled that the complaint alleged a civil conspiracy based on intentional conduct. Since the allegations of the complaint showed the claim was excluded or fell outside coverage, the court ruled the insurance company had no duty to defend.

Here, we note there is no endorsement in either the general comprehensive policies or the umbrella policies specifically excluding intentional acts, with the exception of the sheriff’s endorsement, which excludes coverage for wilful police misconduct. Included within coverage under the personal injury provisions for years three and four are false arrest, false imprisonment, and defamation, all of which require the element of intent. Thus, the policies cover some intentional conduct. This ambiguity is sufficient to refute Western’s argument that the policies do not cover intentional acts. (See Tews Funeral Home, Inc. v. Ohio Casualty Insurance Co. (7th Cir. 1987), 832 F.2d 1037.) Resolving any doubts against the insurer, we hold the civil rights allegations fall potentially within the scope of policy coverage.

As to the definition of “occurrence,” the inquiry is not whether the insured intended or expected the event resulting in the damage but whether he intended or expected the damage resulting from the event. (International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co. (1988), 168 Ill. App. 3d 361, 522 N.E.2d 758 (relying on authority from other jurisdictions); see also Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23, 514 N.E.2d 150 (under “occurrence” definition in policy, the insurable event giving rise to the obligation to provide coverage is not the exposure to conditions but the resulting bodily injury).) At least one Illinois court has held that even where an intentional acts exclusion applies, a question may exist whether the insured’s intentional conduct was expected or intended to cause injury. See Grinnell Mutual Reinsurance Co. v. Frierdich (1979), 79 Ill. App. 3d 1146, 399 N.E.2d 252.

The County argues the police professional liability endorsement’s exclusion of civil rights claims indicates the parties intended coverage of civil rights claims unrelated to police conduct. The County has cited no authority which indicates that failure to exclude a particular basis of liability operates to include it. However, we note that during oral argument before the trial court, counsel for Western stated, “I’m not saying this policy doesn’t apply to some civil rights claims.” While this statement is not dispositive, it reinforces the existence of doubt as to whether the allegations fall within the policy coverage.

Turning to the State law claims, section 322 of the Act provides:

“Any assessor, or deputy assessor, county assessor, member of the board of appeals or member of the board of review, or other person whose duty it is to assess property for taxation or equalize any such assessment, who shall refuse or knowingly or wilfully neglect any duty required of him by law, or who shall consent to or connive at any evasion of the provisions of this Act whereby any property required to be assessed shall be unlawfully exempted in whole or in part, or the valuation thereof be set down at more or less than is required by law, shall be guilty of a Class A misdemeanor. He shall also be liable upon his bond to the party injured for all damages sustained by such party as above provided, and shall also be removed from office by the judge of the court before whom he is tried and convicted.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 120, par. 803.)

Section 323 of the Act states:

“Every county clerk, assessor, collector or other officer who shall in any case refuse or knowingly neglect to perform any duty enjoined upon him by this Act, or who shall consent to or connive at any evasion of its provisions, whereby any proceeding required by this Act shall be prevented or hindered, or whereby any property required to be listed for taxation shall be unlawfully exempted, or the same be entered upon the tax list at less than 33 1/3% of its fair cash value or the value determined in accordance with Section 20e of this Act, or such percentage as may be provided by a county ordinance adopted pursuant to Section 4 of Article IX of the Constitution of Illinois, shall, for every such offense, neglect or refusal, be liable, on the complaint of any person, for double the amount of the loss or damage caused thereby, to be recovered in a civil action in the name of the People of the State of Illinois in any court having jurisdiction, and may be removed from his office at the discretion of the court.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 120, par. 804.)

Western suggests the knowing or wilful neglect required rises to the level of intentional conduct, citing Hamer v. Kirk (1978), 57 Ill. App. 3d 335, 373 N.E.2d 64. Hamer provides no definition of either term. While “refusal” in section 323 may suggest an intentional act, we are unaware of any definition of the remaining terms which would clearly categorize them as intentional. In any event, if either the Federal or State law claims are deemed potentially within the ambit of coverage, the duty to defend extends to a complaint alleging several causes of action or theories of recovery against an insured, even if only one or some of them are within the policy coverage. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24.) Since we rule the Federal law claims are potentially within the ambit of coverage, Western’s duty to defend also extends to the State law claims.

For the foregoing reasons, we affirm the judgment of the circuit court. We need not address the parties’ remaining contentions.

Affirmed.

LUND and KNECHT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    DONALD L. ROBINSON, Plaintiff-Appellant, v. THE SECRETARY OF STATE et al., Defendants-Appellees.
    Fourth District
    No. 4—88—0492
    Opinion filed February 16, 1989.

      Herman G. Bodewes, of Griffin, Winning, Cohen & Bodewes, P.C., of Springfield, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Kimary Lee, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

Defendant Secretary of State of the State of Illinois (Secretary) laid off plaintiff Donald L. Robinson (Robinson), his certified employee holding the position title of executive IV, effective January 31, 1983. On February 8, 1983, Robinson filed an appeal from the layoff order with the Merit Commission (Commission) of the office of the Secretary of State (Ill. Rev. Stat. 1981, ch. 124, par. 108) pursuant to provisions of section 9a of the Secretary of State Merit Employment Code (Code) (Ill. Rev. Stat. 1981, ch. 124, par. 109a) and Commission rules. The Commission dismissed the appeal, holding it did not set forth the prima facie case required by section 9a. On administrative review, the circuit court of Sangamon County reversed the decision of the Commission and remanded the case to the Commission with directions to hear the matter on its merits.

Hearings were conducted before a Commission hearing officer. On June 30, 1987, the hearing officer filed with the Commission his findings and recommendation that Robinson’s appeal be denied. Prior to the recommendation, the document concluded with the expression by the hearing officer of an opinion that Robinson had “failed to sustain his burden of proof that his layoff was a subterfuge for discharge as is required for relief” under Commission rules. On July 15, 1987, the Commission entered an order adopting the findings and recommended decision of the hearing officer and denying the appeal.

Robinson again took administrative review to the circuit court of Sangamon County. On February 5, 1988, that court affirmed, ruling that (1) the Commission’s determination that subterfuge had not been proved was not contrary to the manifest weight of the evidence; and (2) plaintiff was not deprived of procedural due process. Robinson has appealed to this court. We reverse.

On appeal, Robinson maintains: (1) the purported lack of funds, upon which the Secretary seeks to justify the layoff, did not exist; (2) the layoff violated his seniority rights; (3) that violation was intentional; (4) the procedures used by officers involved in the layoff violated the classification plan of the Code; (5) the emergency legislation, upon which the Secretary’s contention of lack of funds was partially based, does not authorize permanent layoff of employees; and (6) the layoff was made in bad faith and was a breach of discretion. The major thrust of Robinson’s contentions is twofold. One is that the procedures involved here were such that when taken together, an employee can too easily be laid off and eventually terminated without proper consideration given to seniority and work performance. The other is that the layoff here was a subterfuge to get rid of Robinson.

We conclude that a fatal flaw existed in the procedures used here in regard to the basic requirement that the layoff be based upon a lack of funds. We need not consider the issue of whether the layoff was subterfuge. The evidence in that regard was circumstantial, and the Commission, whose hearing officer saw and heard the witnesses, determined that subterfuge was not proved. We could set aside that factual determination only if it was contrary to the manifest weight of the evidence. Garland v. Department of Labor (1984), 104 Ill. 2d 383, 472 N.E.2d 434.

In order to explain our decision, some of the evidence must be considered. Most of that evidence on the issue we deem to be dispositive was undisputed. After having worked in the governor’s office and with the department of personnel for the Code department, Robinson began working in June 1977 for the then Secretary in that officer’s department of personnel holding the title personnel executive I. His duties primarily involved labor and employee relations. In the spring of 1979, he became deputy director of that department and became responsible for the labor and employee relations program. His duties then included negotiations of contracts, grievance resolutions, and contract administration as well as other matters. He was involved in the implementation of the Code and the personnel rules for the Secretary. On July 16, 1981, Robinson’s title was changed to executive IV, a lesser position than those previously held with the Secretary, and Robinson’s salary was “frozen” at its existing rate. His duties were changed but he continued to perform some labor relations work together with that concerning staff development.

Robinson remained in the executive IV status until his layoff in January 1983. Then, as now, section 10b. 13 of the Code authorized the department of personnel to provide by rule approved by the Commission for “layoffs by reason of lack of funds or work.” (Ill. Rev. Stat. 1981, ch. 124, par. 110b.l3.) Pursuant thereto, Rule 2 — 540 of the department of personnel rules was duly enacted, approved, and in existence at the time of Robinson’s layoff. It stated:

“LAYOFFS AND REEMPLOYMENT
LAYOFF PROCEDURE: A department may request the layoff of an employee because of lack of funds, material change in duties or organization, or lack of work, or the abolition of a position for any of these reasons. Based on class, department, county or other designation, layoffs shall be within organizational units justified by operations and approved prior to the layoff by the Director of Personnel.
A proposed layoff is subject to the approval of the Department of Personnel before becoming effective and shall include the following in the organizational unit in which the layoff is proposed:
(a) A list of all employees showing status and total continuous service;
(b) A listing of these employees to be laid off;
(c) Performance records of all employees in classes affected by layoff plan;
(d) An explanation of any layoff not in order of continuous service;
(e) An explanation of the organizational unit selected, reflecting department, division, facility, geographical, operational and other elements deemed relevant by the Division Director department director.” 6 Ill. Reg. 7526 (eff. June 16, 1982) (now see 80 Ill. Adm. Code 420.400, at 2665 (Supp. Jan. 1,1987).

In early January 1983, the deputy director of the department of personnel presented to the acting director of the department of personnel, for the latter’s approval, pursuant to Rule 2 — 540, a plan for the layoff of Robinson and two other employees. That document indicated a shortage of funds had resulted because the appropriation for the department of personnel had provided for only 29 employees and the department had 32 employees. The proposed plan further explained that the duties of those who were chosen for layoff could most easily be given to other persons. The plan stated that Robinson’s duties pertinent to employee and labor relations would be performed by the deputy director with assistance of the staff, with his other duties to be handled by the staff or, when necessary, the deputy director. The substance of this change would be to restore to the then deputy director the functions which Robinson had when he held that position.

Argument is made on behalf of the Secretary that the layoff was justified by a lack of funds resulting from legislation known as the Emergency Budget Act of Fiscal Year 1983 (Emergency Act) (Pub. Act 82 — 1038, eff. Dec. 30, 1982; 1982 111. Laws 3034). This statutory provision was enacted in response to a fiscal crisis occurring in the State’s 1983 fiscal year (July 1, 1982, through June 30, 1983) and became effective December 30, 1982 (1982 111. Laws at 3038). It required each State agency to place 2% of its budgeted appropriation in a reserve account. The hearing officer’s findings and recommendation adopted by the Commission found that the Emergency Act created a “lack of funds” justifying the layoff.

The layoff and the budget reductions required by the Emergency Act took place at about the same time. However, the operation of the Emergency Act was not given as a reason for the layoff in the plan submitted to the acting director of the department of personnel. The deputy director of the department of personnel testified the acting director approved the layoff plan on the basis of the information contained in that plan. No evidence was presented that the Emergency Act was ever considered in the determination to lay off Robinson. Nor was any evidence presented that the salary allocated to Robinson was ever used to supply the 2% reserve required by the Emergency Act. The propriety of the layoff must be judged upon the basis of the reasons for which it was made and upon the use made of the funds saved. We cannot agree that the layoff plan was justified by the existence of the Emergency Act.

The question of whether the “lack of funds” element of the requirements for the layoff provided for by section 10b.l3 of the Code and Rule 2 — 540, enacted pursuant thereto, was established must be determined in the light of the stated reason for the layoff. The evidence was undisputed: (1) the Secretary requested funds to employ 29 people in the department of personnel for fiscal year 1983; (2) the position held by Robinson was one of those for which appropriation was sought; and (3) the appropriation was made as sought. Under these circumstances, to permit the department of personnel to continue to maintain in excess of 29 people to remain on the payroll and then to layoff a certified employee in a position for which an appropriation had been made in order to cover the deficit would create a precedent whereby any department could easily terminate a certified employee without proper cause. Neither section 10b. 13 nor Rule 2 — 540 envisions such a concept of a “lack of funds” as a basis for a layoff. The record showed, as a matter of law, that a “lack of funds” as described in the layoff plan did not exist.

At the time of Robinson’s layoff, the only available administrative procedure whereby an employee could contest a layoff was section 9a of the Code (Ill. Rev. Stat. 1981, ch. 124, par. 109a) under which he proceeded here. Section 9a provides for a certified employee who believes “he or she has been separated from employment *** by a personnel transaction used as a subterfuge for discharge” to proceed before the Commission. (Ill. Rev. Stat. 1981, ch. 124, par. 109a.) Section 9a further states that in any hearing, the employee must establish “a prima facie case proving that the employee was pretextually discharged.” (Ill. Rev. Stat. 1981, ch. 124, par. 109a.) That legislation makes no reference to allowing a separated employee to contest his or her separation upon the basis the separation merely resulted from a violation of the Code or rules enacted pursuant thereto where no pretext or subterfuge occurred.

The Commission order focused primarily on the lack of proof of subterfuge. However, argument was not made on behalf of the Secretary that a substantial failure to follow statutory or rule provisions in making a layoff would not be sufficient ground to vitiate the layoff. Moreover, by the time the Commission heard evidence on remand, section 8c(13) of the Code authorized the Commission to hear appeals of layoffs based upon violation of the Code or rules enacted pursuant to the Code and to order reinstatement “if it is proven that the provisions of the [Code or the rules] have been violated or have not been complied with.” (Ill. Rev. Stat. 1985, ch. 124, par. 108c(13).) We conclude the Commission had power here to order a remedy for Robinson even if subterfuge upon the part of subordinates of the Secretary was not proved. As we have indicated, we hold that the evidence failed, as a matter of law, to prove the existence of the “lack of funds” to support Robinson’s discharge.

Accordingly, we reverse the decisions of the circuit court affirming the Commission and of the Commission denying Robinson’s appeal. We remand the cause to the Commission with directions to determine the appropriate remedy for Robinson.

Reversed and remanded with directions.

McCULLOUGH, P.J., and SPITZ, J., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TODD BROOKS, Defendant-Appellant.
    Fourth District
    No. 4—88—0118
    Opinion filed February 16, 1989.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

After a jury trial, defendant was convicted of violating section 401(b)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(b)(2)) by selling 6.9 grams of a substance containing cocaine. Subsequently, the trial court sentenced him to five years’ imprisonment. Defendant argues section 5—5—3(c)(2)(D) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3(c)(2)(D)) violates equal protection; thus, it is unconstitutional. Defendant also argues the trial court abused its discretion in sentencing him.

We affirm.

Defendant was arrested as the result of a sale of cocaine to Sergeant Kurt Kabat, who was working as an undercover police officer. Kabat testified that on March 25, 1987, he contacted defendant at defendant’s home in Champaign. Kabat asked defendant why defendánt had not contacted him. Defendant responded that he had lost his lysergic acid diethylamide (LSD) connection. Kabat then told defendant he had lost his cocaine connection. Defendant offered to supply Kabat With one-fourth of an ounce of cocaine. Defendant would have acquired the cocaine that day, but Kabat did not have sufficient funds to purchased:

The next day when Kabat returned to defendant’s house, defendant told Kabat that his supplier had a quarter of an ounce of cocaine which had been divided into gram packages. Kabat indicated that he wanted an undivided quantity of cocaine. Defendant said his supplier would receive more cocaine that week and defendant would call Kabat.

On March 30, 1987, Kabat received a page on his pager from defendant. When Kabat called defendant, defendant said he had an ounce of cocaine for $2,000. Kabat called defendant back and told him he would be unable to purchase the full quantity. The next day Kabat went to defendant’s home, where he eventually purchased 6.9 grams of a substance containing cocaine. On cross-examination, Kabat stated defendant indicated he did not sell much cocaine. There was a police investigation team in the area, and people were afraid to deal in drugs.

Roland Guitare testified defendant had a good reputation as an honest, law-abiding citizen.

Initially, defendant argues section 5 — 5—3(cX2XD) of the Code is unconstitutional as violative of equal protection. Section 401(b) of the Illinois Controlled Substances Act provides that delivery of various amounts of the listed controlled substances constitutes a Class 1 felony. (Ill. Rev. Stat. 1987, ch. SG½, par. 1401(b).) Heroin, cocaine, morphine, peyote, barbituric acid, and amphetamine are among the substances listed. Ill. Rev. Stat. 1987, ch. 56½, par. 1401(b).

Section 5—5—3(b) of the Code provides that probation, periodic imprisonment, conditional discharge, and imprisonment are available dispositions for all felonies and misdemeanors other than those listed in section 5—5—3(c) of the Code. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3(b).) Section 5 — 5—3(c)(2)(D) provides imprisonment is the only available disposition for those who violate section 401(b)(2) of the Illinois Controlled Substances Act by selling over five grams of a substance containing cocaine. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3(c)(2)(D).) Defendant maintains there is no rational reason for punishing a person convicted of delivering over five grams of cocaine more severely than persons convicted of delivering other substances such as heroin, morphine, barbiturates, or amphetamines.

The legislature has wide discretion in classifying offenses and providing penalties for them. (People v. Steppan (1985), 105 Ill. 2d 310, 473 N.E.2d 1300; People v. Mathey (1983), 99 Ill. 2d 292, 458 N.E.2d 499.) However, this discretion is not unlimited. The equal protection clause of the fourteenth amendment requires that persons similarly situated be treated equally. (U.S. Const., amend. XIV.) However, it does not deny the State the power to treat different classes of persons differently. Absent a fundamental right or a suspect classification, the legislature may treat similarly situated persons differently if a rational reason exists for doing so. People v. Watson (1987), 118 Ill. 2d 62, 514 N.E.2d 167; People v. Tosch (1986), 114 Ill. 2d 474, 501 N.E.2d 1253, cert. denied (1987), 483 U.S. 1008, 97, L. Ed. 2d 740, 107 S. Ct. 3235.

The classification established by the legislature is presumed valid. Those contesting a statute’s constitutional validity have the burden of showing its invalidity. (People v. McCabe (1971), 49 Ill. 2d 338, 275 N.E.2d 407.) If any state of facts may reasonably be conceived to justify the classification, it must be upheld. People v. Harmison (1985), 108 Ill. 2d 197, 483 N.E.2d 508; People v. Robertson (1988), 168 Ill. App. 3d 132, 522 N.E.2d 239.

In the instant case, the legislative history of Senate Bill 1565, which amended section 5 — 5—3(c)(2)(D) of the Code, clearly establishes that the legislature was concerned with the easy availability of cocaine, concerned about the epidemic proportions of the problem, concerned with the small amount which could be ingested prior to serious disablement, and concerned about the difficulty law enforcement officials were having in meeting and stemming the problem. The bill was specifically designed to increase penalties to meet these concerns by lowering the quantities necessary to constitute a felony and by eliminating probation, periodic imprisonment, and conditional discharge as available dispositions in certain cases. 84th Ill. Gen. Assem., House Proceedings, Dec. 5,1986, at 10 (House Debates on Senate Bill 1565).

In Mathey, the defendant argued a statute which denied first offender probation status to him because of his possession of 30 to 500 grams, marijuana, violated equal protection concerns. The court stated the legislature could recognize that marijuana posed a special social concern and distinguished between possessory offenses involving it and other drugs. (Mathey, 99 Ill. 2d 292, 458 N.E.2d 499.) The same reasoning applies in the instant case. We find section 5—5—3(c)(2)(D) of the Code is constitutional.

Defendant next argues the trial court abused its discretion in sentencing him to five years’ imprisonment rather than the minimum term of four years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1.) Defendant contends the trial court failed to adequately consider his education, lack of use of cocaine, approach to his alcohol problem, the frequency of his sale of cocaine, and support for his child.

The trial court is ordinarily best situated to tailor a sentence to the needs of the case. It balances the appropriate factors in imposing sentence, and the exercise of this discretion should not be altered on review absent abuse. (Steppan, 105 Ill. 2d 310, 473 N.E.2d 1300.) In the instant case, the record reveals the trial court considered all aggravating and mitigating factors. The court noted that defendant was on probation when he committed the instant offense. Defendant had also been engaged in the delivery of other controlled substances. Under the circumstances presented here, no abuse of discretion occurred.

For the above reasons, we affirm the trial court.

Affirmed.

SPITZ and GREEN, JJ., concur.


author: JUSTICE WOODWARD

text:
    RICHARD MORAN, Plaintiff-Appellant, v. GEORGE LALA et al., Defendants-Appellees.
    Second District
    No. 2—88—0499
    Opinion filed February 21, 1989.

      Erwin Cohn, of Cohn & Associates, of Chicago (Charles A. Cohn, of counsel), for appellant.
    Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan (Michael K. Noonan, of counsel), for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Richard Moran, appeals from a jury verdict in favor of the defendants, George Lala and Larry Castle, denying him recovery for personal injuries suffered when he was shot in the right eye while a business invitee on the premises of the defendants. On appeal, plaintiff raises the following issues: whether the trial court committed reversible error in refusing plaintiff’s instructions on concurrent causation; and whether the jury verdict in favor of defendants is against the manifest weight of the evidence. We affirm.

Plaintiff was invited by Robert Boles, his daughter’s boyfriend, to participate in war or survival games which were held on defendants’ premises. The games are combat-type games played by two teams in a wooded area. Each team attempts to capture the other team’s flag. Each player is armed with a paint pellet C02 gun with which he would “kill” opponents by firing a paint pellet at them. Prior to the beginning of the games, plaintiff was shot while standing in a grassy area known as the “free zone.”

Plaintiff testified that he was familiar with fire arms and hunted every day of the hunting season, but he had never participated in war games. On June 2, 1985, he, Boles, and two other men, later identified as Joe Twomey and Danny Ross, arrived at the site where the war games were to be played. After waiting for everyone to get there, either Lala or Castle requested that everyone sign a document which was captioned a “Rental Agreement.” The rental agreement stated as follows:

“ALWAYS WEAR GOGGLES IN OR NEAR THE PLAY-FIELD (NO SMOKING ALLOWED IN PLAYFIELD) I am completely aware of all of the risks involved and that there is the possibility of additional risk if the GAME EQUIPMENT does not function properly. I also indemnify the lessor INTERNATIONAL GAMES AND SUPPLY against, and shall hold both harmless from, any and all claims, actions, suits, procedures, cost expenses, damages and liabilities, including attorneys fees arising out of or in connection with, or resulting from playing the GAME and/or the equipment. Including without limitation, the manufacture, selection, delivery, possession, use or operation of the equipment and the natural environment. I the under signed knowing these facts nevertheless wish to assume any and all risks. I hereby waive and release the lessor on behalf of my estate and all others who may play the GAME with me. I also undertake to always play the GAME only in accordance with the safety instructions, rules and suggestions presented to me. Knowing full well the intense physical/mental exertion required to play the GAME, I further warrant that I have no medical problems that this increase in physical/mental exertion would cause me or others harm. I have read and fully understand the terms of this lease agreement. THIS IS FULLY INTENDED TO BE A LEGALLY BINDING CONTRACT. IF YOU HAVE ANY DOUBTS CONCERNING ANY ASPECT OF ITS CONTENTS, CONSULT AN ATTORNEY BEFORE SIGNING ITU!
I STATE THAT I AM AT LEAST 18 YEARS OF AGE AND IN GOOD HEALTH. Defendants’ Ex. No. 4.” (Emphasis in original.)

Plaintiff glanced at the rental agreement for a few seconds before signing it. As the participants signed the document, their names were called off, and they were issued guns and pellets. According to plaintiff, no goggles were issued at that time. After plaintiff had done some target shooting, someone told him that he better wear goggles, so he went over to a table and picked up a pair from a big box. Plaintiff put on the goggles to make sure they fit. He had them on for less than a minute, then he put them up on his forehead like most of the other participants had done.

Plaintiff stated that at one point, he was told by either Lala or Castle that on the playing field goggles were to be worn at all times, and there was to be no smoking or drinking. Except for how to play the game, plaintiff did not recall any other orientation or other explanation regarding the rental agreement.

Plaintiff was standing in a large circle with the other participants. He lit a cigarette. He then felt pain in his right eye area. He covered his face with his hand. He felt that the area was wet, and he realized that he had been shot. Someone wiped his face off with a wet rag. While he was being cleaned up, the remains of part of a pellet were discovered near his right eye. He then was driven to the hospital where he stayed overnight.

On cross-examination, plaintiff admitted that he had not only signed the rental agreement but, as requested, had printed his name, address, and phone number on the document as well. Plaintiff did not remember being told that the rental agreement had to be signed before the participant would receive the equipment and could play. Plaintiff also stated that they were standing in the group while teams were being selected just prior to going out into the field.

Plaintiff did not know who fired the shot that struck him, nor did he know if the shot was intentional or an accident. The shot that struck him was not fired from the target practice area but from another group of individuals not included in target practice. Plaintiff did recall being advised that during the game, even with goggles on, the participant should not shoot at the face but only the body.

Robert Boles testified on behalf of plaintiff as follows. He had participated in war games four or five times prior to June 2, 1985, and was familiar with the rules for playing the game. Upon arriving at the defendants’ premises, he and plaintiff and the other two men unloaded their coolers and stood around talking with the other participants, about 40 in all.

Castle and Lala then had everyone sign a document Boles referred to as a “release,” saying that they were not responsible for personal injuries. The participants were told to read the release. After signing the release, the guns were given out after the fee was paid. The participants were given a tube of paint, and then someone handed out goggles. Boles got his goggles right after getting his other equipment.

After getting his gun, Boles walked back to the grassy area called the “free zone.” He wore his goggles on top of his head, as were most of the participants. He showed plaintiff how to load the gun.

Defendants then advised the group that the goggles were to be worn at all times on the field, but they could be taken off when the participants came back in from the field. After the orientation, Boles was standing in the free area smoking a cigarette when plaintiff collapsed. At that time, Boles’ goggles were on top of his head. Castle and Lala came over to the plaintiff; neither of them was wearing goggles.

On cross-examination, Boles testified that he had talked to plaintiff about the games and explained them to him.

According to Boles, prior to the pistols being issued, the defendants dry-fired each one. Then the C02 cartridge was installed, and the gun was fired to see if it operated properly, and the cartridge was sealed properly. If the cartridge was not sealed properly, the gas would escape, and the first shot would come out very slowly.

Boles admitted that at some point before the release was signed, it was explained that the defendants would not be responsible for injuries that occurred and that were reflected in the rental agreement. As far as Boles observed, everyone who paid the fee and received a gun also received eye goggles. After the guns had been passed out, the defendants provided instructions as to how to load the gun. Boles did not know who was holding the gun that discharged the pellet that struck plaintiff.

David Mayer testified for plaintiff as follows. He was a participant in the war games on defendants’ premises on June 2, 1985. He had played such games four or five times before. After he arrived at the game site, he signed a document. Then the guns and ammunition were handed out. He did not receive goggles at that time, nor was an orientation presented at that time.

Mayer proceeded to get five to six people together to form a “little army.” About 10 to 15 minutes later, he went over to a table and got a pair of goggles from a box. He then put them on. Mayer was walking towards the playing field, with his goggles on, talking to other people when plaintiff was struck. He saw plaintiff grab his face and go down. Mayer walked over to him and observed that plaintiff was covered with paint across his face and eye and was holding his eye. Plaintiff was in the free zone when he was struck.

After the incident, Mayer stayed on to play the game. If a player was hit during the game, he returned to the free zone. Once there, Mayer observed that the participants did not wear their goggles.

On cross-examination, Mayer admitted that because he had played the game before and knew that he would be signing such a document as the rental agreement, he did not pay any attention to any discussion regarding that document. After the selection of the team, the next phase would be to “fight the war,” more or less. Mayer did not know who shot plaintiff, or if it was accidental or intentional.

William J. Katoch, Jr., testified on behalf of plaintiff as follows. He also had had prior experience playing such games. He and some friends attended the games at defendants’ site on June 2, 1985. He signed in on the sign-up sheet which he did not read, providing his name and address. The rules of the game were also explained. Katoch was one of the first to receive his gun. It was not until after a few people had gotten their guns that goggles were distributed. According to Katoch, everyone had to help themselves to the goggles. Katoch wore safety glasses rather than goggles, because safety glasses fogged up less. He wore them on top of his head.

Katoch was standing a few feet away from plaintiff when he was shot. He did not hear anything but observed plaintiff drop to his knees, holding his face. He did not notice where plaintiff’s goggles were. Katoch did some target shooting and thought he probably was wearing his safety glasses while he was shooting.

On cross-examination, Katoch testified that as far as he could observe, everyone who was supposed to wear goggles had them on. The witness did not know whether plaintiff was shot intentionally or accidentally.

Carl Dean Dahn, a consulting engineer, testified on behalf of the plaintiff. Dahn received a bachelor of science degree in aeronautical engineering and had five hours of post-graduate study in photographic techniques. For the past 20 years, he has trained in conducting engineering hazards analysis and safety analysis. He has also conducted engineering hazards analysis on weapon systems and also on firing ranges. Over defendants’ objections, Dahn was qualified as an expert witness.

Dahn reviewed the rental agreement and the depositions of plaintiff, defendant, and the witnesses to the accident. Based upon his review of these documents, Dahn was of the opinion that the presence of pistols with cartridges and C02 cartridges and pellets in the free area zone was extremely hazardous and dangerous, because they could be loaded and accidentally fired in that area. The preferable procedure would have been to keep the weapons out of the free zone area and to have a separate staging area where participants could pick up their pistols as they entered. The area where the guns were kept should have been at least 60 feet away from the free zone, since the type of pellet gun used here would put out an eye at a distance of 30 to 60 feet.

On cross-examination, Dahn testified that he did not have either a masters degree or Ph.D. He did not visit the site where the game was played, nor did he examine any of the weapons. He acknowledged that there was a certain amount of risk in such war games and that no amount of rules or regulations are effective or will work if they are disregarded.

Andy Otter testified on behalf of the defendants as follows. He participated in the war game held on defendants’ site on June 2, 1985. The defendants would not' let anyone play the game who had not signed defendants’ agreement. He and the other participants received goggles and were told by the defendants to wear them at all times. The weapon he was issued was equipped with a safety that prevented the trigger from being pulled. The participants were instructed to keep the safety on at all times in the neutral zone.

On cross-examination, Otter did not recall that the agreement was called a “rental agreement.” He stated that Lala and Castle had told the participants that goggles were to be worn at all times, even in the neutral zone. The neutral zone was approximately an acre of land. While the participants waited for the start of the game, there was some target shooting going on. Otter did not know if the defendants had their goggles on or not.

Jill Otter, Andy Otter’s wife, testified on behalf of the defendants. She also participated in the war games on the defendants’ site on June 2, 1985. This was prior to her marriage to Andy Otter. She identified the rental agreement as the document she signed on June 2, 1985. Prior to signing the document, the defendants read the document to the participants, told them to read it and sign it, and that they were playing at their own risk. Eye goggles were given out, and the participants were told to leave the safety on the trigger of the weapon whenever they were in the neutral zone.

On cross-examination, Mrs. Otter testified that she remembered very specifically that the participants were told to leave the safety on at all times in the neutral zone. They were given an orientation speech by one of the defendants prior to signing the rental agreement. Each participant was given a copy of the agreement to read before signing. She did not remember what she did with the copy she was given, nor did she recall what the defendants called the agreement. If the participants were in the free zone, they were not playing.

The evidence deposition of defendant George Lala was read into evidence.

Lala testified that he has been in the U.S. Navy for the past nine years and is one of the owners of International Games, which is in the business of putting out war games. Lala described what a war game is and how it is played, as well as what equipment is used.

On June 2, 1985, he and his partner, defendant Castle, conducted a war game at Pleasant Prairie Township in Wisconsin. It consisted of a very large grassy area which was called a free zone and a wooded area which was used as the playing field. The free zone is an area where a player would stand and stay in if he was shot. The player would wait there until the game was over. It was also the area where the equipment was issued to people. The game was not allowed to be played in that area.

Upon the defendant’s arrival at the grass site, an inventory of equipment was conducted, and the equipment was checked to see if anything was broken. Three kinds of goggles were available. Tests were conducted to make sure that the goggles did not break.

Prior to the commencement of the games, while in the free-zone, the defendants conducted a lecture about the release form (the rental agreement), and those who had not prepaid would pay the fee at that time as well. The release form would either be read verbatim or paraphrased, and it would be stated that defendants were not liable for any injuries incurred in the field itself due to the dangers of the game. The lecture also covered the necessity for wearing goggles on or near the playing field. Lala had given the orientation speech on June 2, 1985.

Lala identified the rental agreement as the document used on the date plaintiff was injured. He recalled that plaintiff took his time signing the release.

The equipment was in the separate boxes. Goggles were given out first, and they were then checked to make sure they were clean. The participant was then given a gun loaded with C02 which was done by one of the defendants as a further check to make sure the gun was functioning properly. All the guns but one, which was removed, were in good working order. After all the guns were distributed, defendants informed the participants not to load the guns themselves, but the defendants would show them how to load their guns properly, which they then did. The participants were told to put on their goggles and leave them on unless they were returning to their vehicles. In the event the goggles fogged up on the playing field, there was a strict procedure for defogging the goggles. After the goggles were issued, there was an area within the free zone for target practice.

At the time plaintiff was struck, the participants had just been instructed on how to load the gun and about wearing the goggles. There were a few people using the target range. Lala had begun to walk back to where the vehicles were parked when he heard someone say that someone was hurt. He turned and saw plaintiff kneeling on one knee, holding his right eye. Plaintiff had paint over his head and face which Lala assumed was from the paint pellet. After plaintiffs face was wiped off, Lala and two other people took plaintiff to Victory Memorial Hospital.

All of the weapons used were found to be in working order. Lala did not know who fired the shot that struck plaintiff, nor whether it was accidental or intentional. Lala observed plaintiff wearing the goggles over his eyes immediately after he issued them to him.

On cross-examination, Lala testified that prior to owning International Games, he participated in the playing of war games. He received information about safety training from National Survival Games. He also had pamphlets from that organization. He had the benefit of safety lectures at the war games in which he was a participant. There are also safety lectures given once a month on the base where he was stationed. He had not taken a specific course on safety in war games.

Lala did not explain unless asked by the participants why the release the participants signed was called a rental agreement. He did not remember on June 2, 1985, whether he explained why it was a rental agreement. All the participants were told they could take their time reading the agreement. The “contact” person who reserved the field for the games was told that there would be a document for the participants to sign. A copy of the document was given to the “contact” person if requested. Posters advertising the games did not state that a rental agreement would have to be signed before the games could be played.

On the date plaintiff was injured, the rental agreement was on a table. After a participant signed the rental agreement, he was handed goggles, then the gun and pellets. The participant was told at the time he received the goggles to put them on and that they were to be kept on, on or near the playing field. The participants were told that the free zone was considered near the playing field. They were also told not to load their guns. Lala assumed the participants were told that the first shots could have more velocity than the others. Both defendants would move around the area to make sure that the goggles were being worn and to see if there were any problems with the weapons. Lala was over in the target shooting area, but from what he could see of the free zone, everyone had their goggles on.

Lala recalled that in a war game he played in Tennessee, no one was allowed to have guns in the free zone. In Lala’s opinion, that would not have made much difference.

The jury returned a verdict in favor of the defendants, and the plaintiff’s post-trial motions were denied. This appeal followed.

We note at the outset that the plaintiff’s brief is in violation of Supreme Court Rule 341(e)(4)(ii) (_ Ill. 2d R. 341(e)(4)(h)). Rule 341(e)(4)(h) was amended on August 1, 1988, and provides in pertinent part as follows:

“(ii) In a case appealed to the Appellate Court, a brief statement or explanation under the heading ‘Jurisdiction’ of the basis for appeal, e.g., whether as a final judgment under Rule 301 or Rule 304(a) or (b); or as an interlocutory appeal pursuant to Rule 306, Rule 307 or Rule 308.”

Plaintiff’s brief was filed on August 22, 1988, but contains no jurisdictional statement as required by Rule 341(e)(4)(h). While failure to comply with supreme court rules can result in the waiver of the issue or issues raised, we do not elect to do so at this time, since when plaintiff’s brief was filed, the amendment was a relatively new one, and it is readily apparent in this case that this court has jurisdiction to hear this appeal. This should not be taken as a license to ignore the requirements of our supreme court rules, and in the future, such violations will be dealt with all appropriate consequences.

Turning to the merits of this appeal, plaintiff contends that the jury’s verdict for the defendants was against the manifest weight of the evidence, given the fact that the testimony of plaintiff’s expert, Charles Dahn, was unrebutted and the fact that defendants failed to introduce any evidence to rebut plaintiff’s prima facie case of negligence. Plaintiff also contends that the trial court committed reversible error when it failed to give the defendants’ instructions on proximate cause. Finally, plaintiff contends that the defendants failed to prove their affirmative defense, i.e., that the rental agreement that plaintiff signed barred any recovery against the defendants.

Plaintiff argues, first, that since the testimony of his expert witness, Charles Dahn, was uncontradicted by any evidence presented by the defendants, it may not be disregarded by the trier of fact. Plaintiff further argues that he presented a prima facie case that defendants were negligent for allowing pistols and ammunition in the free zone and that defendants’ negligence was a proximate cause of plaintiff’s injury. Plaintiff bases his showing of a prima facie case on the fact that the trial court denied a directed verdict on plaintiff’s negligence count and that the trial court instructed the jury on plaintiff’s allegation of negligence for permitting pistols in the free zone.

Testimony by a credible witness neither impeached nor contradicted cannot be disregarded by the trier of fact. (Soft Water Ser vice, Inc. v. M. Suson Enterprises, Inc. (1976), 39 Ill. App. 3d 1035, 1042.) Assuming the jury found Dahn’s testimony to be credible, the jury was not required to find that the permitting of weapons and ammunition caused plaintiff’s injury since there .is no conclusive evidence as to where the pellet was fired from.

Plaintiff also argues that the evidence is overwhelming that defendants failed to enforce the wearing of goggles in the free zone and failed to warn that goggles must be worn there. The evidence on this point is highly disputed. The credibility of witnesses and the weight to be given their testimony are matters for the jury to determine, and unless its determination is manifestly against the weight of the evidence, it will not be disturbed on appeal. Cratsley v. Commonwealth Edison Co. (1976), 38 Ill. App. 3d 55, 58.

Plaintiff also contends that the trial court erred in refusing to give the following instructions:

“More than one person may be to blame for causing an injury. If you decide that a [the] defendants] was [were] negligent and that his [their] negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.” Illinois Pattern Jury Instructions, Civil, No. 12.04 (2d ed. 1971) (hereinafter IPI Civil 2d).
“If you decide that a [the] defendants] was [were] negligent and that his [their] negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury.” IPI Civil 2d No. 12.05.
“When I use the expression ‘proximate cause,’ I mean [that] [a] [any] cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. [It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.]” IPI Civil 2d No. 15.01.

The trial court refused all three instructions but did give the first sentence of IPI Civil 2d No. 15.01, as follows:

“When I use the expression ‘proximate cause,’ I mean a cause which, in natural or probable sequence produced the injury complained of.”

In refusing IPI Civil 2d No. 12.04, the trial court stated as follows:

“The court cannot find any testimony that a third party was in fact negligent, not that a third party wasn’t involved in the injury in fact happening, but there is no evidence that there was any negligence that was the proximate cause of the injury.
There is such a thing as a pure accident, but there is no evidence that it was an accident, intentional or any evidence whatsoever as to how in fact the gun was discharged or became discharged which in fact caused the injury. I don’t think it would be appropriate and I think it would be confusing to the jury to submit them this instruction on the particular facts in this particular case.”

The trial court refused IPI Civil 2d No. 12.05 on the basis that there was no evidence that anything other than the pellet that struck plaintiff’s eye caused his injury. The trial court then refused to give the long form of IPI Civil 2d No. 15.01, stating as follows:

“Well, if there’s evidence, for instance, there is some evidence that’s been submitted to the jury, if they decide to believe that, that permitting guns to be used, that there was negligence by the defense to permit guns in the free zone.
Now, that is what’s alleged, is the proximate cause by allowing that to happen, a gun discharged, and arguably it was discharged in the free zone which in fact caused the injury. He wasn’t struck by two pellets, he wasn’t also simultaneously hit by something else, hit over the head, or the van back [sic] into him. There just is no evidence that anyone else was negligent or that anyone else did anything, not that maybe — I presume that someone did, but that’s speculation or guess as to whether someone did or a gun discharged by itself or someone dropped a gun or it was a rebound, a ricochet from somewhere else and just happened to strike the plaintiff.”

The notes following IPI Civil 2d No. 15.01 provide:

“This instruction in its entirety should only be used when there is evidence of a concurring or contributing cause to the injury or death (other than acts or omissions of the plaintiff). In cases where there is no evidence of a concurring or contributing cause, the short version without the bracketed material should be used.” IPI Civil 2nd No. 15.0 (Notes on Use).

In Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, plaintiff sued the Illinois Central Railroad Company (IC) after being assaulted by a vagrant while she waited for a train. In reversing and remanding a decision in favor of the IC, our supreme court stated as follows:

“It cannot be denied that if the negligence of the defendant only furnishes a condition and that condition causes an injury by the subsequent independent act of a third person, the creation of the condition is not the proximate cause of an injury. However, the rule is that the subsequent independent act, in order to break the causal connection, must be one, the intervention of which was not probable or foreseeable by the first wrongdoer. What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is. The injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinary prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act.” (383 Ill. at 380.)

The supreme court in Neering determined that the IC knew that the congregating of vagrants and hobos around the passenger station created a source of potential danger from which it is obligated to protect its passengers. See also Ray v. Cock Robin, Inc. (1973),. 10 Ill. App. 3d 276.

Plaintiff relies on Neering, Ray, and a number of other cases wherein defendants have been found negligent even though a third person or cause intervenes. See Laukkanen v. Jewel Tea Co. (1966), 78 Ill. App. 2d 153 (IPI Civil 2d No. 15.01 to be given in entirety when weather conditions are a factor to be considered in determining the cause of plaintiff’s injury); St. Clair v. Douvas (1959), 21 Ill. App. 2d 444 (criminal act, an intervening but not superseding cause, combined with defendant’s negligence caused plaintiff’s loss of support); Albright v. Parr (1984), 126 Ill. App. 3d 464 (customer at a gas station fell through a plate glass window of insufficient strength); Lewis v. W.F. Smith & Co. (1979), 71 Ill. App. 3d 1032.

We agree with plaintiff that the failure to give the aforesaid instructions was error. There was evidence that plaintiff was struck by a pellet while standing in the free zone area with approximately 40 others who were also participating in the war games. There was evidence that the participants were all equipped with C02 guns which discharged paint pellets. There is no allegation that defendants shot the plaintiff with a C02 gun. It may be reasonably inferred from the evidence that one of the C02 guns discharged the pellet which struck the plaintiff. The fact that the source was not identified is not determinative of whether the instructions should have been given in this case. Where it could have been reasonably foreseen that some injury might result from the negligent act or omission complained of (in this case, the use of the loaded C02 guns in the free zone), it is not essential that the precise consequences which actually resulted therefrom should have been foreseen, nor is it necessary that the exact particulars of the accident which actually occurred should have been foreseen. (Ray, 10 Ill. App. 3d at 285.) We therefore agree with plaintiff that given the presence of the C02 guns in the free zone, it was foreseeable that someone would be shot.

We now must determine whether the error in failing to give the above instructions was error requiring reversal. Plaintiff relies on Heitz v. Hogan (1985), 134 Ill. App. 3d 352. In that case, the reviewing court held that the failure to give IPI Civil 2d No. 15.01 was sufficiently prejudicial to the plaintiff there that it required reversal. However, in Heitz, the reason the trial court found the lack of the instruction to be so prejudicial was that neither party tendered the shorter version of IPI Civil 2d No. 15.01 and the jury remained uninstructed on proximate cause. Also indicative of the prejudice to plaintiff in that case was the fact that during its deliberations, the jury inquired as to whether it was to consider negligence at the time of impact or preceding and including the time of impact.

In the case before us, the jury did receive the short version of IPI Civil 2d No. 15.01 and therefore was instructed as to proximate cause. We therefore conclude that the failure to give the above instructions was not in and of itself reversible error.

We are further inclined toward our decision that such error was not reversible in this case because, contrary to plaintiff’s position, we are of the opinion that there was sufficient evidence for the jury to find that the rental agreement bars plaintiff’s recovery regardless of the proof of defendants’ negligence. In regard to defendants’ affirmative defense, the jury was instructed in pertinent part as follows:

“In this case, the defendants have asserted an affirmative defense that:
Plaintiff executed a complete release of the defendants prior to renting the equipment or participating in the event and prior to the injury.
The defendants have the burden of proving this defense and must prove the following:
That plaintiff Richard Moran knowingly executed Defendants’ Exhibit No. 4 (the rental agreement); and
That he chose to assume any and all risks arising out of or in connection with or resulting from the playing of war games; and
The defendants made no false representation intending to induce plaintiff to sign Defendants’ Exhibit No. 4.
If you find from your consideration of all the evidence that each of the propositions required of the plaintiff has been proved, and one or more of the allegations of the defendants’ affirmative defense has not been proved, then your verdict should be for plaintiff. If on the other hand, you find from your consideration of all of the evidence that one or more of the propositions the plaintiff is required to prove has not been proved, or that the defendants have proved each of the propositions of their affirmative defense, then your verdict should be for the defendants.”

Under this instruction, the jury could determine that plaintiff had proved that the defendants’ negligence was the proximate cause of his injury, but would still be required to return a verdict for the defendants if it determined that defendants had proved all the elements of their affirmative defense. This instruction was received by the trial court with no objection.

Clauses that exculpate a person from the consequences of his own negligence will be upheld in the absence of any statute voiding them. (Erickson v. Wagon Wheel Enterprises, Inc. (1968), 101 Ill. App. 2d 296, 301.) Plaintiff argues that the rental agreement only releases the defendants from liability arising out of the playing of the war games or the equipment.

The parties may not have contemplated the precise occurrence which resulted in plaintiff’s accident, but this does not render the exculpatory clause inoperable. (Harris v. Walker (1988), 119 Ill. 2d 542, 549, citing Schlessman v. Henson (1980), 83 Ill. 2d 82, 86.) In Schlessman, the court also concluded that where parties adopt broad language in a release, it is reasonable to interpret the intended coverage to be as broad as the risks that are obvious to the experienced participant. (83 Ill. 2d at 86.) Although the plaintiff had not previously participated in war games, he testified that he hunted and was familiar with weapons. Therefore it is reasonable to infer that the dangers of engaging in an activity in which weapons were used would be obvious to him. Moreover, the rental agreement does provide that plaintiff would indemnify and hold defendants harmless from “any and all claims, actions, suits, procedures, cost expenses, damages and liabilities including attorneys fees arising out of or in connection with, or resulting from the playing of the game and/or the rental of the equipment. Including without limitation *** possession, use or operation of the equipment.” We conclude, therefore, that there was sufficient evidence for the jury to conclude that the possession of C02 guns on the free zone was contemplated by the rental agreement and was a risk assumed by the plaintiff.

Where there is a general verdict and more than one theory is presented, the verdict will be upheld if there was sufficient evidence to sustain either theory, and defendant, having failed to request special interrogatories, cannot complain. (Witherell v. Weimer (1987), 118 Ill. 2d 321, 329.) Plaintiff argues that the above rule is only applicable where a plaintiff proceeds on more than one theory of recovery, and the jury returns a guilty verdict. We disagree. One of the cases relied in Witherell to support the above rule is Fernandez v. Industrial Comm’n (1978), 71 Ill. 2d 283. In that case, the supreme court stated:

“On this record the Industrial Commission could have found that the petitioner’s [Fernandez’] symptoms were the result of normal degenerative processes aggravated by the automobile accident, and were not causally connected with her employment. It even could have found that she was not suffering any disability. We do not know which rationale its decision was based upon, because petitioner failed to request specific findings on these points. (See Ill. Rev. Stat. 1971, ch. 48, par. 172.54(e).)” (Fernandez, 71 Ill. 2d at 286.)

Even though there is a reliance on a statutory requirement in Fernandez, we find it significant that the supreme court used that case as authority in the Witherell case for the necessity of special interrogatories. We take it as an indication that the rule applies to plaintiffs, as well as defendants. Therefore, since there is sufficient evidence to sustain the jury’s finding in favor of defendants’ affirmative defense, the not guilty verdict need not be disturbed even though it was error not to give plaintiff’s instructions.

A verdict is against the manifest weight of the evidence when an opposite conclusion is clearly apparent (Tabor v. Tazewell Service Co. (1958), 18 Ill. App. 2d 593), or the finding of the jury appears to be unreasonable, arbitrary, and not based upon the evidence. (Stobbs v. Cumby (1956), 9 Ill. App. 2d 138.) Our review of the record leads us to the conclusion that the verdict of the jury in this case was supported by the evidence and therefore is not against the manifest weight of the evidence.

The judgment of the circuit court is affirmed.

Affirmed.

REINHARD and McLAREN, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN L. BROTHERS, Defendant-Appellant.
    Second District
    No. 2—87—0337
    Opinion filed February 22, 1989.
    G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Robert J. Morrow and Gary V. Johnson, State’s Attorneys, of Geneva

      (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of Elgin, and John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of Ottawa, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, John Brothers, appeals from an order of the trial court which dismissed his petition for relief pursuant to the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.). On appeal, defendant contends that (1) the trial court’s dismissal of his petition without first appointing counsel violated his due process rights and the doctrine of separation of powers, and (2) the trial court improperly entertained the State’s motion to dismiss his petition prior to determining whether the petition was frivolous or patently without merit.

After a jury trial, defendant was found guilty of burglary and was sentenced to a 10-year term of imprisonment under the extended-term provisions of the Unified Code of Corrections (see Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—2). Defendant appealed his conviction to this court, and, in an order entered pursuant to Supreme Court Rule 23 (107 Ill. 2d R. 23), we affirmed defendant’s conviction of and sentence for burglary. See People v. Brothers (1986), 148 Ill. App. 3d 1156 (unpublished Rule 23 order).

On March 30, 1987, defendant filed a petition for post-conviction relief which alleged that his State and Federal constitutional rights were violated because he was tried by an all-white jury. Defendant’s petition further requested that counsel be appointed to represent him during his post-conviction proceedings. On April 2, 1987, the State filed a motion to dismiss defendant’s petition. Defendant’s cause was then transferred to a different judge who conducted a hearing on defendant’s petition.

During the hearing on defendant’s petition, the trial court initially asked the State to address the issue whether defendant was entitled to be represented by counsel during the initial stage of the proceedings. The State responded that if the court was determining whether defendant’s petition was facially defective, then defendant had no right to counsel. The State was then allowed to argue that the alleged constitutional violation raised in defendant’s petition was meritless and the petition should be dismissed. Defendant did not respond to the State’s argument.

The trial court decided to continue the matter and appoint the public defender’s office to represent defendant. The public defender stated that the appointment of her office was tantamount to determining that defendant’s petition was not frivolous. In response to the public defender’s statement, the trial court gave the following soliloquy:

“I think in light of that, Mr. Brothers, rather than taking the position that I have and continue the matter until Wednesday, for the reasons that the State’s Attorney has indicated, the petition on its face does not set forth substantive reasons to justify the granting of the post-conviction relief, and by appointing the Public Defender, in essence what I am doing, then, is finding that it does have substance, when, in fact, I don’t believe that it does have substance.
So, to avoid that sort of a — what I think would be an inappropriate — or, I am finding — I am going to make a finding that your petition does not set forth substantive matters to justify your post-conviction relief.
Accordingly, then, I am going to go ahead and grant the State’s motion to dismiss your petition for post-conviction relief.”

Defendant filed a timely notice of appeal from the dismissal of his post-conviction petition.

Defendant first contends_thajL the trial court’s failure to appoint counsel to assist him in the preparation of his petition for post-conviction relief prior to dismissing his petition violated his due process rights and the doctrine of separation of powers. The State maintains, and defendant’s reply brief readily concedes, that this issue has been decided against defendant in People v. Porter (1988), 122 Ill. 2d 64. In Porter, our supreme court determined that the failure to appoint counsel prior to the dismissal of a post-conviction petition pursuant to section 122—2.1 of the Act (Ill. Rev. Stat. 1987, ch. 38, par. 122—2.1) does not violate either the doctrine of separation of powers, a defendant’s due process rights, or a defendant’s equal protection rights. (Porter, 122 Ill. 2d at 70 through 78.) Therefore, the trial court did not err in denying defendant’s request for counsel to assist him in the preparation of his post-conviction petition.

In his second appellate contention, defendant asserts that the trial court violated section 122 — 2.1(a) of the Act (Ill. Rev. Stat. 1987, ch. 38, par. 122—2.1(a)) when it granted the State’s motion to dismiss without first determining whether defendant’s petition was frivolous or patently without merit.

Section 122 — 2.1(a) states:

“Within 30 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section. If the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry.” Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2.1(a).

A trial judge alone is to consider whether a petition for post-conviction relief is frivolous or patently without merit in the absence of pleadings or input from either side. (People v. Day (1987), 152 Ill. App. 3d 416, 420; People v. Ramsey (1985), 137 Ill. App. 3d 443, 447; People v. Alexander (1985), 136 Ill. App. 3d 1047, 1052.) After the trial judge has determined that a post-conviction petition is not frivolous, the State may file pleadings within the time set forth in section 122—5 (Ill. Rev. Stat. 1987, ch. 38, par. 122—5). Day, 152 Ill. App. 3d at 420.

The record indicates that the trial court improperly considered the arguments presented in the State’s motion to dismiss in determining whether defendant’s petition was frivolous. The State maintains that even if the trial court failed to comply with section 122—2.1(a), the court correctly determined that defendant’s petition was meritless. We cannot, however, make a determination as to whether defendant’s petition was frivolous or patently without merit because we do not have jurisdiction to do so. (See Ill. Rev. Stat. 1987, ch. 38, par. 122-1; Day, 152 Ill. App. 3d at 421.) The State further contends that the trial court properly adhered to the procedural rules set forth in section 122—2.1(a) because the court’s appointment of the public defender implied that defendant’s petition was meritorious on its face. A careful reading of the record shows that the trial court expressly declined to appoint the public defender to represent defendant. Therefore, we conclude that the trial court failed to follow the guidelines set forth in section 122—2.1(a).

Because the failure to comply with the statutory requirements of section 122—2.1(a) renders the dismissal of a post-conviction petition void (Alexander, 136 Ill. App. 3d at 1053), we reverse the trial court’s order which dismissed defendant’s petition and remand the cause for further proceedings. On remand, we direct the trial court to make a determination as to the frivolity of defendant’s petition. If the trial court finds merit to defendant’s petition, the State should then be permitted to file its motion to dismiss in accordanee with the time limitations set forth in section 122—5.

The judgment of the circuit court is reversed, and the cause is remanded with directions.

Reversed and remanded, with directions.

INGLIS and REINHARD, JJ., concur.


text:
    J.P. COLLINS, Plaintiff-Appellant, v. MID-AMERICA BAG COMPANY, Defendant-Appellee.
    Second District
    No. 2—88—0444
    Opinion filed February 22, 1989.

      Jeffrey D. Schultz and Sam Cuba, both of Jeffrey D. Schultz, Ltd., of Chicago, for appellant.
    Harlene G. Matyas, of Matyas & Norris, of Chicago, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, J.P. Collins, appeals from a judgment of the circuit court of Lake County granting the motion of defendant, Mid-America Bag Company, to dismiss. Plaintiff contends that the trial court erred in dismissing the complaint for failure to state a cause of action. We affirm.

On March 17, 1988, plaintiff filed a complaint in the circuit court of Lake County alleging that he was injured while playing in a softball game organized by defendant. The complaint further alleged that defendant had a duty to provide a safe playing field for the event and that defendant breached that duty by failing to repair or warn plaintiff about holes in the playing field.

Defendant filed a motion to dismiss the complaint, arguing that plaintiff was not injured on defendant’s business premises; therefore, defendant did not owe a duty to plaintiff. The trial court dismissed the complaint with prejudice, and this appeal ensued. Defendant filed a motion to strike portions of plaintiff’s reply brief for stating facts which were not in the record. Plaintiff filed a response, and we ordered the motion taken with the case. We will not consider any argument not properly part of a reply brief in our determination of the merits of this case.

Before turning to the merits of this appeal, we feel compelled to comment on the quality of the briefs filed in this court. We first note that plaintiff did not include a jurisdictional statement in his brief as required by Supreme Court Rule 341(e)(4)(ii) (122 Ill. 2d. R. 341(e)(4)(ii)). Appellant’s main brief merely restates the allegations of the complaint and makes a passing reference to the Restatement of Torts as his argument on the issue of duty, while his reply brief resembles not so much legal reasoning as a polemic on the state of tort litigation. As for appellee’s brief, it also makes broad, unsubstantiated statements of law, and the only case cited by defendant is irrelevant to the issues at hand. We are not a depository in which the parties “may dump the burden of argument and research” (Thrall Car Manufacturing Co. v. Lindquist (1986), 145 Ill. App. 3d 712, 719), and we trust that counsel will not submit briefs of this quality in the future.

Plaintiff asks this court to reverse the trial court’s dismissal of his complaint with prejudice because the complaint does state a cause of action. In reviewing a dismissal for insufficient pleadings, a reviewing court must interpret the facts in the light most favorable to the plaintiff, and the complaint should not be dismissed unless no set of facts could be proved that would entitle plaintiff to relief. Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360-61.

Plaintiff’s complaint alleged that he was injured as a result of defendant’s negligence. Before a plaintiff may recover for negligence, defendant must be shown to have been under a duty to conform to a certain standard of conduct for plaintiff’s protection. Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 116.

Plaintiff alleges that because defendant organized the softball game, it had a duty to provide a safe playing field for the game. However, plaintiff has failed to provide us with any citation of authority in support of that assertion, in violation of Supreme Court Rule 341(e)(7) (113 Ill. 2d R. 341(e)(7)). Therefore, the argument is waived.

As for plaintiff’s argument that defendant owes a duty to plaintiff as a possessor of land, plaintiff neglects one vital fact. Defendant was a permissive user of the park for defendant’s purposes. Therefore, defendant was a licensee whose only interest in the land was permission to use the land. (See Mueller v. Keller (1960), 18 Ill. 2d 334, 340.) As defendant did not control the land nor could he intend to control the land, defendant cannot be held liable as a possessor of the land. (Stedman v. Spiros (1959), 23 Ill. App. 2d 69, 86.) Thus, the motion to dismiss was correctly granted, because under no set of facts could plaintiff show that defendant owed a duty to him as to the condition of the land.

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

Affirmed.

INGLIS and REINHARD, JJ., concur.