author: JUSTICE HARRISON JUSTICE GOLDENHERSH,

text:
    MARIE “DIANE” HEIGERT, Plaintiff-Appellee, v. DAVID R. RIEDEL et al., Defendants-Appellants.
    Fifth District
    No. 5—89—0055
    Opinion filed November 27, 1990.
    Rehearing denied January 15, 1991.

      GOLDENHERSH, J., dissenting.
    Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville (Richard P. Roessler and James E. DeFranco, of counsel), for appellant.
    R. Dan Winnett, of Runge & Gumbel, P.C., of Collinsville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Marie “Diane” Heigert, brought a negligence action in the circuit court of Madison County to recover damages for personal injuries she sustained as the result of medical malpractice allegedly committed by defendants, David R. Riedel and Chester Hill, each of whom is a licensed physician. Defendants moved to dismiss plaintiffs complaint under section 2—615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—615) on the grounds that it failed to state a cause of action. Following a hearing, defendants’ motion was denied. We then granted this permissive interlocutory appeal pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308). For the reasons which follow, we now reverse and remand.

Because this appeal is before us on defendants’ motion to dismiss, all well-pleaded facts in plaintiff’s complaint and all reasonable inferences which can be drawn from those facts will be regarded as true. (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 499, 520 N.E.2d 37, 38.) We note, parenthetically, that plaintiff’s complaint also has appended to it the affidavit by counsel and the written doctor’s report required by section 2 — 622 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622) in medical malpractice actions. As a general rule, exhibits which are attached to a complaint are considered to be part of the complaint (Friedman v. Gingiss (1989), 182 Ill. App. 3d 293, 295, 537 N.E.2d 1067, 1069), and a motion to dismiss admits as true the facts contained in such exhibits just as it admits well-pleaded facts in the body of the complaint itself. (Bond v. Dunmire (1984), 129 Ill. App. 3d 796, 804, 473 N.E.2d 78, 84.) Although the courts have yet to decide whether the materials required by section 2 — 622 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622) are sufficiently analogous to “exhibits” in the conventional sense to fall within this rule, resolution of the question is not necessary to the disposition of this appeal.

While defendants challenged the sufficiency of the affidavit of counsel and the written doctor’s report at the trial court level, that challenge has not been pursued on appeal. In the proceedings before this court, defendants themselves have cited factual matters contained in the written doctor’s report in support of their argument that plaintiff’s complaint fails to state a cause of action. For the purposes of this appeal, we shall therefore regard those factual matters as being properly before us and, as with the well-pleaded facts in plaintiff’s complaint, they, too, shall be accepted as true.

According to plaintiff’s complaint and the attachments thereto, defendants were licensed physicians who practiced medicine in Alton, Illinois. On March 10, 1983, an individual named Howard Lee Christopher was admitted to St. Anthony’s Hospital in Alton, and defendants treated him. At the time of his admission, Christopher was diagnosed by defendants as suffering from “Fournier’s gangrene.” Routine admission tests and X rays revealed, however, that Christopher had a pathological condition in his lung and that his sputum contained “acid fast bacillae.”

Plaintiff alleges that these test results suggest a diagnosis of tuberculosis, and that a reasonably competent physician would have been put on notice by the findings that additional diagnostic tests should have been performed to ascertain whether the patient was actually suffering from that disease. According to plaintiff, however, these additional diagnostic tests were either not performed by defendants or else were not performed in a timely fashion. Plaintiff asserts that if defendants had pursued the diagnosis of Christopher properly, they would have discovered that he was, in fact, afflicted with tuberculosis and that the tuberculosis was in a contagious stage.

According to plaintiff, accepted standards of medical care require that certain precautions be taken in order to prevent tuberculosis patients from spreading their illness to other members of the hospital population, including having the patient isolated. Because defendants failed to realize that Christopher suffered from tuberculosis, however, such precautions were not taken here. Plaintiff, who was employed at St. Anthony’s Hospital as a nurse, claims that she then came into contact with Christopher in the course of her duties and contracted the disease from him.

In her complaint, plaintiff seeks to impose liability on defendants for the resultant damages she sustained on the grounds that they acted negligently in one or more of the following respects: (a) failing to perform the necessary diagnostic tests which would have disclosed that Christopher was suffering from contagious tuberculosis “and/or” failing to perform those tests in a timely fashion; (b) failing to isolate Christopher; and (c) failing to warn her of the dangers of coming into contact with Christopher.

As we indicated at the outset of this opinion, this matter is now before us following the circuit court’s denial of defendants’ motion to dismiss plaintiff's complaint for failure to state a cause of action. It is axiomatic that in order to survive a motion to dismiss, a complaint must state a cause of action that is legally, as well as factually, sufficient. A legally sufficient complaint is one which sets forth a legally recognized claim upon which the plaintiff is entitled to recover damages. (Northrop Corp. v. Crouch-Walker, Inc. (1988), 175 Ill. App. 3d 203, 205-06, 529 N.E.2d 784, 785.) A complaint for negligence, to be legally sufficient, must set out facts that establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387, 395-96, cert. denied (1988), 485 U.S. 905, 99 L. Ed. 2d 236, 108 S. Ct. 1077.) On this appeal, defendants’ sole claim is that the circuit court erred in denying their motion to dismiss because the first of these elements, the existence of a duty, is absent.

The determination of whether a duty exists, i.e., whether the defendant and the plaintiff stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff, is an issue of law to be determined by the court. (117 Ill. 2d at 525, 513 N.E.2d at 396.) A key concern in determining whether a duty exists is the reasonable foreseeability of injury. This, however, is not the only consideration. The question of duty in a negligence action should also take into account the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden upon the defendant. (117 Ill. 2d at 526, 513 N.E.2d at 396.) In this regard, our supreme court has recently reiterated that a court’s determination of duty reflects the policy and social requirements of the time and community. In its view, “ ‘ “duty” is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.’ [Citation.]” 117 Ill. 2d at 526-27, 513 N.E.2d at 396.

Surprisingly, there is a dearth of case law regarding the duty of a physician in the context of medical malpractice actions involving communicable diseases such as tuberculosis. One standard reference work, however, has stated:

“[I]t is the general rule that a physician is liable for his negligence in permitting persons to be exposed to infectious or communicable diseases to the injury of the persons so exposed. Thus, a physician in attendance upon a case of typhoid fever must notify attendants of the nature and character of the disease, warn them of the danger of infection, and instruct them as to the usual methods approved by the profession, of which he has knowledge, for preventing the spread of the disease. He must also exercise reasonable care to advise members of the patient’s family, and others who are liable to be exposed thereby, of the nature of the disease and the danger of exposure.” 61 Am. Jur. 2d Physicians, Surgeons & Other Healers §245, at 377 (1981).

This view has been adopted by the courts of at least two other jurisdictions. In Hofmann v. Blackmon (Fla. App. 1970), 241 So.2d 752, the District Court of Appeal of Florida, Fourth District, held (1) that a physician owes a duty to a minor child who is a member of the immediate family of and living with a patient suffering from tuberculosis to inform those charged with the minor’s well-being of the nature of the contagious disease and the precautionary steps to be taken to prevent the child from contracting such disease and (2) that this duty is not negated by the fact that the physician may have negligently failed to become aware that his patient was suffering from tuberculosis. Under this holding, if the physician negligently failed to diagnose tuberculosis in the patient and the patient’s child then contracted the disease from the patient, the physician would have breached a duty he owed to the child and would be liable for the child’s injuries.

Similarly, in DiMarco v. Lynch Homes-Chester County, Inc. (1989), 384 Pa. Super. 463, 559 A.2d 530, appeal granted (1989), 524 Pa. 597, 568 A.2d 1247), the Superior Court of Pennsylvania held that a patient’s husband stated a cause of action against her physicians where (1) those physicians had been negligent in failing to advise the patient that having sexual relations within six months of her exposure to hepatitis could cause her sexual partner to contract the disease and erroneously advised her, instead, simply to refrain from sexual relations for a six-week period following her exposure, (2) the physicians who treated the patient were aware or had reason to know that the patient and her husband were sexually intimate, (3) the physicians recognized that advising the patient concerning precautions she was required to take in order to avoid spreading the disease to a healthy person was necessary for the protection of third parties, (4) the patient’s husband relied on the erroneous advice the patient had received when he consented to having sexual relations with her, and (5) as a result of those sexual relations, the husband contracted hepatitis himself.

In reaching this result, the court relied upon section 324A of the Restatement (Second) of Torts (1965), which states:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other person to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” Restatement (Second) of Torts §324A, at 142 (1965).

Section 324A of the Restatement (Second) of Torts has been adopted by the supreme court of Illinois. (Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 390, 493 N.E.2d 1022, 1027.) Under section 324A and the other authorities we have just cited, we can understand why the circuit court here concluded that plaintiff’s complaint stated a valid cause of action.

Although the plaintiff in this case is a health care provider and not a family member as in the Florida and Pennsylvania cases, we can see no justification for affording her less protection. Nurses such as plaintiff who work in a hospital setting may, of necessity, have extensive physical contact of the most personal nature with the patients in their charge. Accordingly, the risk they run of contracting a contagious illness from a patient can certainly rival the risk experienced by the members of the patient’s household.

To be sure, our supreme court has noted that the legislature of this State has expressed a policy preference in favor of reducing damages generally against the medical profession so as to reduce the burden existing in the health profession as a result of the perceived medical malpractice crisis. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 527, 513 N.E.2d 387, 397, cert. denied (1988), 485 U.S. 905, 99 L. Ed. 2d 236, 108 S. Ct. 1077.) At the same time, however, we agree with the court in DiMarco v. Lynch Homes-Chester County, Inc. (1989), 384 Pa. Super. 463, 559 A.2d 530, appeal granted (1989), 524 Pa. 597, 568 A.2d 1247), that the prevention and control of communicable diseases is a momentous task which is of the utmost importance to the health and welfare of our citizens.

The work of nurses such as plaintiff is critical to this task. If they are not given recourse in cases such as this for the damages they sustain on the job as the result of the negligence of their colleagues in the medical profession, their ranks, already critically depleted in some locales, could be diminished even further. In an era when concern over another communicable disease, AIDS, is so pervasive, the result, paradoxically, could be a crisis in public health which dwarfs any concern over the cost of physician malpractice.

Having said all of this, we must nevertheless conclude that the circuit court erred in denying defendants’ motion to dismiss. Although we have found no Illinois authority dealing with the precise situation here, our supreme court has recently articulated what appears to be a “bright line” test regarding the scope of a physician’s duty in medical malpractice actions. In Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 531, 513 N.E.2d 387, 399, cert. denied (1988), 485 U.S. 905, 99 L. Ed. 2d 236, 108 S. Ct. 1077, the court held:

“We consider that the preferable view, and the one consistent with this court’s holdings and with legislation based on social and public policy, is that a plaintiff cannot maintain a medical malpractice action absent a direct physician-patient relationship between the doctor and plaintiff or a special relationship, as present in Renslow [v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250], between the patient and the plaintiff.”

Plaintiff here, of course, had no direct physician-patient relationship with either of the defendants, nor can she claim to have had the “special relationship” with defendants’ patient as was present in Renslow.

In Renslow, a child not conceived at the time negligent acts were committed against her mother by a doctor and a hospital’s employees was allowed to bring an action against the hospital and physician for the injuries she sustained as a result of the negligence which had been directed against her mother. If Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387, cert. denied (1988), 485 U.S. 905, 99 L. Ed. 2d 236, 108 S. Ct. 1077, is read in isolation, one might think that the particular situation present in Renslow was merely illustrative of the type of “special relationship” which would give rise to a duty by a physician which extended to third-party nonpatients, and that other types of special relationships might exist which would give rise to a similar duty. The year after Kirk was decided, however, our supreme court issued its opinion in Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 520 N.E.2d 37. In that case Justice Ward, the author of Kirk v. Michael Reese Hospital & Medical Center, explained that the court in Kirk had understood that

“the duty in Renslow was based primarily on the injury’s being a direct result of alleged negligence to the infant’s mother, and was limited to a certain type of special relationship: the former patient was the mother of the injured party.” (Emphasis added.) (119 Ill. 2d at 509, 520 N.E.2d at 42.)

In view of this language, it would appear that our supreme court regards the circumstances in Renslow as sui generis. Until that court holds otherwise, we therefore do not believe that we can recognize any other situations in which a physician will be regarded as owing a duty in a malpractice action to a third party who is not his patient.

The dissent’s attempt to find a loophole in Kirk through section 319 of the Restatement (Second) of Torts (1965) is completely misguided. Contrary to the dissent’s representation, the court in Kirk did consider section 319 and found that it did not apply. (Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d at 530, 513 N.E.2d at 398.) The dissent’s reliance on Johnson v. Village of Libertyville (1986), 146 Ill. App. 3d 834, 496 N.E.2d 1219, is even more misplaced. That decision was reversed by the supreme court in all respects relevant to this dispute in Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 520 N.E.2d 37, which we have cited above. In Condell, as in Kirk, the supreme court held that section 319 did not apply, and it specifically noted that

“[i]n cases where it was held there was a duty imposed on medical or penal institutions to protect third parties from harm, the institutions had custody of the dangerous persons through a court order or adjudication that gave them actual control over the individuals.” (119 Ill. 2d at 508, 520 N.E.2d at 42.)

These circumstances are clearly not present here.

For the foregoing reasons, the order of the circuit court of Madison County denying defendants’ motion to dismiss is reversed, and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

WELCH, J., concurs.

JUSTICE GOLDENHERSH,

dissenting:

I respectfully dissent.

In its opinion, the majority too narrowly construes the Kirk and Condell cases and precludes the imposition of a duty in a situation in which the trial court correctly determined a cause of action exists.

The majority construes Kirk as establishing a bright line test and, based on Renslow, restricting the scope of a special relationship solely to that of physician-patient. In my opinion, reading Renslow, Kirk and Condell together, the supreme court was limiting the imposition of duty to those situations in which a relationship distinguishable from that of a mere member of the general public was present. In Renslow, the special relationship of physician-patient to the plaintiff was outside the scope of the general public member, whereas in this situation the plaintiff is in a special relationship of a professional caregiver, a fellow health care professional who works in concert with and often at the direction of a physician. This relationship is also distinguishable from that of the general public.

In this situation also there is applicable authority which the court in Kirk specifically noted that it was not construing. (Kirk, 117 Ill. 2d at 530, 513 N.E.2d at 398.) The court in Kirk (117 Ill. 2d at 530-31, 513 N.E.2d at 398) specifically noted that its decision did not deal with those situations covered in sections 315 to 319 of the Restatement (Second) of Torts (1965) in which a duty to third parties is delineated in various rules. The case at hand would reasonably come under the category of those instances contemplated under section 319 of the Restatement (Second) of Torts (1965) and follows the situation contemplated by that section in illustration 1.

“§319. Duty of Those in Charge of Person Having Dangerous Propensities
One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.
Comment:
a. The rule stated in this Section applies to two situations. The first situation is one in which the actor has charge of one or more of a class of persons to whom the tendency to act injuriously is normal. The second situation is one in which the actor has charge of a third person who does not belong to such a class but who has a peculiar tendency so to act of which the actor from personal experience or otherwise knows or should know.” (Restatement (Second) of Torts §319, Comment, at 129 (1965).)
“Illustrations:
1. A operates a private hospital for contagious diseases. Through the negligence of the medical staff, B, who is suffering from scarlet fever, is permitted to leave the hospital with the assurance that he is entirely recovered, although his disease is still in an infectious stage. Through the negligence of a guard employed by A, C, a delirious smallpox patient, is permitted to escape. B and C communicate the scarlet fever and smallpox to D and E respectively. A is subject to liability to D and E ***.” (Restatement (Second) of Torts §319, at 130 (1965).)

Actually, this is a stronger situation than illustration 1 in which apparently a member of the general public contracts this contagious disease. In the instant case the person who has a special relationship to the contagious individual contracts the contagious disease. If a member of the general public would be of the class to whom a duty would be owed in the circumstances delineated in illustration 1, a member of the particular class in a special relationship such as this plaintiff would surely be one to whom a similar duty is owed. This would also satisfy the special relationship requirements of Renslow, Kirk and Condell noted above.

Viewing other aspects of Kirk, imposition of liability would also conform to the analysis of the entire question of duty. In Kirk, as stated by the majority, a court must consider various factors such as reasonable foreseeability, likelihood of injury, the magnitude of the burden of guarding against the particular harm and the consequences of placing that burden on a defendant.

An example of application of the Kirk method of analysis is found in Johnson v. Village of Libertyville (1986), 146 Ill. App. 3d 834, 496 N.E.2d 1219, aff’d in part & rev’d in part on other grounds sub room. Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 520 N.E.2d 37. The explicit premise the appellate court’s imposition of duty, and the grounds on which our supreme court reversed, was that the defendant mental hospital knew or should have known that its patient should have been involuntarily committed based on mental disorders, drug addiction and propensities toward violence and flight from authorities, pursuant to the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1983, ch. 91½, par. 1 — 119). The patient was not so committed, left the hospital without approval, and in the course of a subsequent high-speed chase by the police, the plaintiff’s decedent was severely injured and died. Our supreme court reversed the appellate court on the basis of lack of any allegation in the complaint that the patient was either involuntarily or voluntarily committed to the mental health facility (the defendant Condell) and concluded that she was admitted by her own request. Within this same context of mental health commitment and the constitutional implications of the resultant loss of liberty, the supreme court found no duty under the plaintiff’s theory of one who should have been committed nor under section 319 of the Restatement of Torts. (Restatement (Second) of Torts §319 (1965).) The court also noted that “plaintiff concedes that his decedent was a stranger to [defendants] Condell and Holt” (Condell, 119 Ill. 2d at 503, 520 N.E.2d at 49) and found no “special relationship.” The supreme court did not reverse the appellate court on its methodology of analysis of the duty question but, rather, on the mental health premise of its reasoning. The appellate court in Johnson noted the essential elements of a duty analysis to be as follows:

“Factors bearing on the issue of duty include the foreseeability of subsequent occurrences, the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant.” (Johnson, 146 Ill. App. 3d at 837-39, 496 N.E.2d at 1223.)

This method of analysis tracks Kirk:

“Although the reasonable foreseeability of injury is a key concern in determining whether a duty exists, it is not the only consideration. The question of duty in a negligence action should take into account the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant.” (Kirk, 117 Ill. 2d at 526, 513 N.E.2d at 396.)

The majority is incorrect in claiming that our supreme court in Con-dell reversed the appellate court in all respects.

Applying the Kirk and Johnson factors for analysis of duty to the instant case, the circuit court properly denied defendants’ motion to dismiss. It is reasonably foreseeable that one who has a contagious disease such as tuberculosis could communicate that disease and that the likelihood of injury through that contact is great. The magnitude of the burden of guarding against this is not great and, in fact, has already been considered; the doctors involved in treating the individual with a communicable disease such as tuberculosis are already under a duty to diagnose that disease, recognize it as a communicable disease, and provide accordingly for the patient’s treatment, including confinement if required. The consequences of placing this burden on defendants is essentially to compel them to do what they are already obligated to do. This analysis is further strengthened by the position of plaintiff in this cause as being in a special relationship with the patient. This special relationship heightens the degree of reasonable foreseeability of an injury and the likelihood of that injury when one is discussing a fellow health care professional who is compelled by the mandates and ethics of the profession as well as the direct order of doctors similarly situated to the defendants in this case to provide care for a person who has a contagious disease; however, in this case, due to defendants’ failure to diagnose that contagious disease, the fellow health care professional, the plaintiff in this cause, was not given the opportunity to guard against the harm and likely injury of contracting this contagious disease. The burden of guarding against this injury and the consequences of placing this burden are merely to compel defendants to do what they were already obligated to do.

As noted above, our supreme court in Kirk specifically exempted section 319 of the Restatement from its analysis:

“There are types of relationships that give rise to a duty to control a third party’s conduct set out in sections 316 to 319 of the Restatement (Second) of Torts (1965), but none are applicable here. These decisions upon which the plaintiff relies are primarily concerned with a custodian’s duty and frequently rely on section 319 of the Restatement (Second) of Torts (1965), concerning the ‘duty of those in charge of person having dangerous propensities.’ There is no allegation here that the plaintiff was negligently released from the hospital, and there is no allegation that McCarthy had dangerous propensities of which the hospital and physicians were aware.” 117 Ill. 2d at 530-31, 513 N.E.2d at 398.

In my judgment, the proper disposition of this appeal would be to note that the Kirk case specifically excepts section 319 of the Restatement (Second) of Torts and that Johnson was reversed on other grounds in Condell, apply section 319 to the situation in this cause, further apply the duty analysis of Kirk to this cause, and affirm the trial court in its proper conclusion that a duty does, in fact, exist, and that the complaint stated a cause of action.


source: Caselaw Access Project

author: JUSTICE CHAPMAN JUSTICE GOLDENHERSH,

license: Public Domain

text:
    WILLIAM MORGAN, Plaintiff-Appellant, v. VETERANS OF FOREIGN WARS OF THE UNITED STATES, Defendant-Appellee (Veterans of Foreign Wars of the United States, James Phillips Memorial Post No. 2228, Defendant).
    Fifth District
    No. 5—88—0766
    Opinion filed November 28, 1990.
    Rehearing denied January 15, 1991.
    GOLDENHERSH, J., dissenting.

      William L. Broom III and Craig R. Reeves, both of Barrett, Twomey, Morris, Broom & Hughes, of Carbondale, for appellant.
    Brad K. Bleyer, of Bleyer & Bleyer, of Marion, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiff, William Morgan, appeals from an order of the circuit court of Jackson County which dismissed count I of his third amended complaint against defendant Veterans of Foreign Wars of the United States (the national organization, hereinafter referred to as VFW) on the grounds that it failed to state a cause of action. Count II, directed against defendant Veterans of Foreign Wars, James Phillips Memorial Post No. 2228 (the local post, hereinafter referred to as Post 2228), remains pending in the circuit court and is not involved in this appeal.

The facts underlying the allegations of plaintiff’s complaint are fairly simple. A member of Post 2228 was suffering from cancer. The post elected to aid this member by organizing various fund-raising activities to benefit him. These activities included organizing a raffle for a shotgun, the proceeds of which were to benefit the member. The raffle was unlicensed, which was in violation of section 3 of “An Act to provide for licensing and regulating certain games of chance and amending certain Acts herein named” (the Act) (Ill. Rev. Stat. 1987, ch. 85, par. 2303). William Qualls, while not a member of Post 2228, volunteered to help sell raffle tickets. In attempting to sell the raffle tickets, Qualls visited a number of establishments which sold alcohol. Qualls became intoxicated and was involved in a motor vehicle accident with a vehicle in which plaintiff was a passenger. Qualls and the driver of the other vehicle, Troy J. Hobeck, Jr., were killed in the accident, and plaintiff was severely injured.' Plaintiff brought suit against both the VFW and Post 2228. On November 5, 1987, plaintiff filed his amended complaint, adding the corporate status of the VFW as an Illinois not-for-profit corporation. On motion of the VFW the court dismissed plaintiff’s amended complaint and ordered that plaintiff file his second amended complaint naming each separate defendant in a separate count. The court dismissed plaintiff’s second amended complaint on motion of the VFW on August 17, 1988, for failure to state a cause of action. On September 14, 1988, plaintiff filed his third amended complaint. Count I of this complaint is directed toward the VFW, while count II is directed toward Post 2228. On motion of the VFW, the trial court dismissed with prejudice count I of plaintiff’s third amended complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615) on the basis that count I failed to allege facts sufficient to give rise to a duty to plaintiff on the part of the VFW. The circuit court found that there was no just reason for delaying enforcement or appeal. 107 Ill. 2d R. 304.

The sole issue presented for appeal is whether the trial court erred in ruling that count I of plaintiff’s third amended complaint failed to state a cause of action against the VFW. The complaint alleges, in pertinent part:

“3) That James Phillips Post Number 2228, Veterans of Foreign Wars of the United States, is a duly authorized and appointed Post of the Veterans of Foreign Wars of the United States.
4) At sometime prior to April 1, 1985, James Phillips Post Number 2228 the Veterans of Foreign Wars of the United States, located in McClure, Illinois, authorized various activities, including the raffle of a shotgun, for the purposes of aiding a member in distress.
5) That at all times relevant hereto the Veterans of Foreign Wars of the United States was enabled, pursuant to Act of Congress ‘to establish, regulate, or discontinue subordinate State and Territorial subdivisions and local chapters of posts; *** and generally to do any and all such acts and things as may be necessary and proper in carrying into effect the purposes of the corporation.’ 36 U.S.C. Sec. 114.
6) That one of the stated purposes of the Defendant, Veterans of Foreign Wars of the United States, and its subordinate posts such as James Phillips Post No. 2228, Veterans of Foreign Wars of the United States, as set forth in 36 U.S.C., Sec. 113, is ‘to assist worthy comrades.’
7) That William Qualls obtained and sold various shotgun raffle tickets for the purpose of sale to raise money in connection with the above-described benefit program.
8) That in furtherance of this above-described benefit program, William Qualls was engaged, on April 1, 1985, in the sale of raffle tickets on behalf of and as agent for the Defendant, James Phillips Post No. 2228, Veterans of Foreign Wars of the United States.
9) That while engaged in the process of transporting and selling said raffle tickets, Williams Qualls visited establishments selling alcoholic beverages, became intoxicated, and was involved in the motor vehicle collision described below. * * *
13) That the above-described collision was the proximate result of one or more or all of the following negligent acts or omissions to act: * * *
d) Veterans of Foreign Wars of the United States failed to regulate the local post, James Phillips Post No. 2228, Veterans of Foreign Wars of the United States, in that it allowed and permitted it to engage in an activity which was in violation of Illinois Criminal Law, namely holding an unlicensed raffle, when it, through its authorized agents and employees, knew, or in the exercise of reasonable care should have known, that such raffles and fund raising activities were carried out by such local posts, including James Phillips Post 2228, Veterans of Foreign Wars of the United States.” (Emphasis added.)

Plaintiff argues that because the VFW has the power to regulate local chapters pursuant to Title 36, section 114, of the United States Code (36 U.S.C. §114 (1988)), if such regulation is negligently performed, the VFW can be held liable. Plaintiff alleges that in the instant case the VFW was negligent in failing to regulate its local post, Post 2228, by allowing the local post to engage in an unlicensed raffle. Plaintiff further claims that the allegations in its third amended complaint, if proven, would entitle plaintiff to recover against the VFW, and therefore, the trial court erred in dismissing count I against the VFW. The VFW responds that plaintiff’s third amended complaint failed to establish the existence of a duty owed by the VFW to plaintiff. The VFW contends that in order to determine that a duty exists, the acts of William Qualls must have been reasonably foreseeable. It further contends that while it may be conceivable that one engaged in the sale of raffle tickets might become intoxicated and operate a car in such a way as to cause an accident, such an event cannot be considered foreseeable to the extent that liability is established.

Whether the defendant in a negligence action owes a duty to the plaintiff is a question of law to be determined by the court. (Moore v. Hill (1987), 155 Ill. App. 3d 1, 6, 507 N.E.2d 1314, 1317; Gamlin v. Biegler (1984), 128 Ill. App. 3d 433, 435, 470 N.E.2d 1040, 1042.) Plaintiff contends that the VFW has a duty to regulate its local posts, including Post 2228, by virtue of Title 36, section 114, of the United States Code (36 U.S.C. §114 (1988)), which granted certain powers to the VFW:

“The corporation created by this chapter shall have the following powers: To have perpetual succession with power to sue and be sued in courts of law and equity; to receive, hold, own, use, and dispose of such real estate, personal property, money, contract, rights, and privileges as shall be deemed necessary and incidental for its corporate purposes; to adopt a corporate seal and alter the same at pleasure; to adopt, amend, apply, and administer a constitution, bylaws, and regulations to carry out its purposes, not inconsistent with the laws of the United States or of any State; to adopt, and have the exclusive right to manufacture and use such emblems and badges as may be deemed necessary in the fulfillment of the purposes of the corporation; to establish and maintain offices for the conduct of its business; to establish, regulate, or discontinue subordinate State and Territorial subdivisions and local chapters or posts; to publish a magazine or other publications, and generally to do any and all such acts and things as may be necessary and proper in carrying into effect the purposes of the corporation.” (Emphasis added.) (36 U.S.C. §114 (1988).)

The above language clearly grants the VFW the power to regulate its local chapters. Does the power to regulate give rise to a duty to regulate? The answer, of course, is that it depends on the circumstances. The concept of duty cannot exist in a vacuum, detached from the facts which generate it; duty is not “a brooding omnipresence in the sky” (Burnett v. Donath (1984), 127 Ill. App. 3d 131, 135, 468 N.E.2d 501, 504). A determination of duty must be made with respect to the particular facts and circumstances of the case because duty is not absolute but exists on a continuum, often referred to as the range or scope of duty. (See Burnett, 127 Ill. App. 3d at 135, 468 N.E.2d at 504; see generally Lemings v. Collinsville School District Number Ten (1983), 118 Ill. App. 3d 363, 367-84, 454 N.E.2d 1139, 1141-52 (Jones, J., specially concurring).)

“No duty ever found to exist in a negligence case is unlimited in its application. It cannot be applied to protect a plaintiff under any and all circumstances. [Citation.] Accordingly, as a part of the duty issue, a plaintiff must show, and the court must determine, not only that a defendant owed a duty of protection to the plaintiff but also that plaintiff was within the scope or range of protection of that duty under the facts of the case.” Lemings, 118 Ill. App. 3d at 378, 454 N.E.2d at 1148 (Jones, J., specially concurring).

Plaintiffs complaint alleges that the VFW breached its duty to regulate when it allowed Post 2228 to conduct an unlicensed raffle. Even assuming, arguendo, the existence of such a duty and a breach by the defendant, we find that the scope of this duty does not include protecting the plaintiff from the type of harm suffered here.

“Once it is established that the defendant’s conduct has in fact been one of the causes of the plaintiff’s injury, there remains the question whether the defendant should be legally responsible ■ for the injury. Unlike the fact of causation, with which it is often hopelessly confused, this is primarily a problem of law. It is sometimes said to depend on whether the conduct has been so significant and important a cause that the defendant should be legally responsible. But both significance and importance turn upon conclusions in terms of legal policy, so that they depend essentially on whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred. Quite often this has been stated, and properly so, as an issue of whether the defendant is under any duty to the plaintiff, or whether the duty • includes protection against such consequences. This is not a question of causation, or even a question of fact, but quite far removed from both; and the attempt to deal with it in such terms has led and can lead only to utter confusion.” W. Keeton, Prosser & Keeton on Torts §42, at 272-73 (5th ed. 1984).

Notwithstanding the admonition of Professors Prosser and Keeton to avoid framing questions of duty in terms of proximate cause, it is a familiar concept and has some limited utility as an analytical tool in determining the scope of a defendant’s duty.

“Stated in terms of more general usage, the action, or lack of it, by defendants was not the ‘proximate cause’ of the death of decedent, as that term is used in its application as an aspect of duty. [Citation.] Regarding ‘proximate cause’ as an aspect of duty, Professor Prosser has said:
‘ “Proximate cause” — in itself an unfortunate term — is merely the limitation which the courts have placed upon the actor’s responsibility for the consequences of his conduct.’ Prosser, Torts §41, at 239 (4th ed. 1971).”
Hoxsey v. Houchlei (1985), 135 Ill. App. 3d 176, 181, 481 N.E.2d 990, 993.

In the instant case the breach of duty alleged by plaintiff — allowing Post 2228 to hold an unlicensed raffle — was not the "proximate cause” of plaintiff’s injury. Failing to obtain a license was not a legal cause of the automobile accident that injured the plaintiff; the same events could have occurred if the raffle was licensed. Plaintiff does not allege that the VFW had a general duty to regulate the local post’s use of volunteers or to supervise their activities, nor does he allege any facts which infer that the VFW assumed such a duty. In sum, plaintiff’s amended complaint fails to establish that prevention of his injury was within the scope of any duty owed to him by the defendant and therefore fails to state a cause of action for negligence.

As defendant notes in its brief, it is not entirely clear whether the plaintiff, in addition to arguing that his complaint states a cause of action for negligence, is also contending that defendant is liable under a theory of respondeat superior. However, since a motion to dismiss for failure to state a cause of action should not be granted if the complaint states a good cause of action, even if not the one intended by plaintiff (Pelham v. Griesheimer (1981), 93 Ill. App. 3d 751, 752-53, 417 N.E.2d 882, 884, affd (1982), 92 Ill. 2d 13, 440 N.E.2d 96), we will consider whether plaintiff’s complaint states a cause of action under the theory of respondeat superior.

Under the doctrine of respondeat superior an employer may be liable for an employee’s torts committed in the course of employment and in furtherance of the employer’s business. (Randi F. v. High Ridge YMCA (1988), 170 Ill. App. 3d 962, 964, 524 N.E.2d 966, 968.) The instant case is different in that William Qualls was not an employee, but rather, a volunteer for a patriotic organization; however, other jurisdictions have found that the status of a negligent person as a volunteer worker for a charitable organization does not necessarily preclude a finding that a master-servant relationship existed between the organization and the volunteer. (See, e.g., Baxter v. Morningside, Inc. (1974), 10 Wash. App. 893, 521 P.2d 946; see generally Annotation, Liability of Charitable Organization Under Respondeat Superior Doctrine For Tort of Unpaid Volunteer, 82 A.L.R3d 1213 (1978).) Additionally, section 225 of the Restatement (Second) of Agency provides:

“One who volunteers services without an agreement for or expectation of reward may be a servant of the one accepting such services.” Restatement (Second) of Agency §225 (1958).

It is not, however, the gratuitous nature of the services rendered by Qualls which negates the plaintiff’s cause of action. Rather, it is plaintiff’s failure to allege an agency relationship between Qualls and the VFW, or to assert any facts inferring such a relationship, that defeats his claim. While plaintiff does allege that Qualls acted as an agent for Post 2228, no such relationship is alleged to exist between Qualls and the VFW, nor between the VFW and Post 2228. Moreover, there is no allegation that the VFW had the right to control Qualls’ conduct (see Restatement (Second) of Agency §220 (1958) (a servant is one whose physical conduct in performing the services is subject to the master’s control or right to control); Warren v. LeMay (1986), 142 Ill. App. 3d 550, 575, 491 N.E.2d 464, 480 (factors in determining whether one is a servant include the extent of control by the employer over the work)) nor does the complaint allege that the VFW consented to or even knew about Qualls’ activities (see Restatement (Second) of Agency §221 (1958) (“To constitute the relation of master and servant, the one for whom the service is rendered must consent or manifest his consent to receive the services as a master”)). We find, therefore, that plaintiff’s complaint failed to state a cause of action under the doctrine of respondeat superior.

For the foregoing reasons, we affirm the judgment of the circuit court.

Affirmed.

RARICK, J., concurs.

JUSTICE GOLDENHERSH,

dissenting:

I respectfully dissent.

The Veterans of Foreign Wars of the United States (VFW) was created as a corporation by an act of Congress (36 U.S.C. §111 et seq. (1988)). The following powers were given to the VFW under that act:

“The corporation created by this chapter shall have the following powers: To have perpetual succession with power to sue and be sued in courts of law and equity; to receive, hold, own, use, and dispose of such real estate, personal property, money, contract, rights, and privileges as shall be deemed necessary and incidental for its corporate purposes; to adopt a corporate seal and alter the same at pleasure; to adopt, amend, apply, and administer a constitution, bylaws, and regulations to carry out its purposes, not inconsistent with the laws of the United States or of any State; to adopt, and have the exclusive right to manufacture and use such emblems and badges as may be deemed necessary in the fulfillment of the purposes of the corporation; to establish and maintain offices for the conduct of its business; to establish, regulate, or discontinue subordinate State and Territorial subdivisions and local chapters or posts; to publish a magazine or other publications, and generally to do any and all such acts and things as may be necessary and proper in carrying into effect the purposes of the corporation.” (36 U.S.C. §114 (1988).)

The above language clearly grants the VFW the power to regulate its local chapters, and this power is alleged in paragraph 5 of count I of plaintiff’s complaint. Therefore, if the VFW is negligent in its regulation of a local post, the national organization could be held responsible. The question is not whether the VFW was negligent in failing to regulate the local post’s raffle, but rather, whether the VFW could have done anything to regulate the use. of volunteers such as William Qualls. If so, can the VFW be held vicariously liable for the tort of Qualls under a theory of respondeat superior?

Under the doctrine of respondeat superior, an employer is liable for an employee’s torts committed within the scope of that employment. In determining the scope of employment, the focus is generally upon the issues of whether the employee’s act was conducted within the constraints of authorized time and location of employment and whether the conduct was actuated at least in part by a purpose to further the employer’s business. (Wilson v. Clark Oil & Refining Corp. (1985), 134 Ill. App. 3d 1084, 1089, 481 N.E.2d 840, 843.) The instant case is different in that Qualls was not an employee, but rather, a volunteer for a patriotic organization; however, other jurisdictions have found that the status of a negligent person as a volunteer worker for a charitable organization did not preclude a finding that a master-servant relationship existed between the organization and the volunteer. (Baxter v. Morningside, Inc. (1974), 10 Wash. App. 893, 521 P.2d 946.) Additionally, section 225 of the Restatement (Second) of Agency provides:

“One who volunteers services without an agreement for or expectation of reward may be a servant of the one accepting such services.” Restatement (Second) of Agency §225 (1958).

In the instant case, William Qualls volunteered to help sell tickets for a raffle which was sponsored by Post 2228. In the course of his selling these tickets, Qualls went to several establishments that served alcoholic beverages. Qualls became intoxicated and was involved in a motor vehicle accident. Under these circumstances, William Qualls was acting within the authorized time and location of his volunteer activities for the VFW. His drinking alcohol was actuated at least in part by the purpose of furthering the VFW’s business, as Qualls was attempting to sell raffle tickets to help a VFW member in distress.

Another aspect of the same duty question involving the statutory power of the VFW to regulate its local posts is the question of the concurrence of the right to control or the power to control the actions of another and the duty that may flow from that power, whether or not that power is exercised. In the instant case, plaintiff has alleged, as noted above, that the VFW had the power to regulate its component chapters stated in a very broad manner. This statutory grant of authority is analogous to the situation one finds in the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.) wherein the right or power to control various operations residing in a party "having charge of” the work involved may result in imposition of liability under the Act regardless of whether that party exercised its right or power of control. In general, the Structural Work Act extends liability to those parties having some responsibility and opportunity to prevent dangerous work methods at construction sites without regard to their having a direct supervisory connection with the particular task that gave rise to the injury. (Gall v. Metropolitan Sanitary District (1982), 109 Ill. App. 3d 502, 440 N.E.2d 973.) An example of duty following the ability to exercise supervisory or regulatory power, whether exercised or not, is found in Schuch v. University of Chicago (1980), 87 Ill. App. 3d 856, 410 N.E.2d 258, in which the court held that a party may be liable under the Structural Work Act as “having charge of” the work at a construction site when that party knew, or in the exercise of ordinary care could have discovered, another party’s violation of the Act, which conduct proximately caused the worker’s injury. In the instant case, the VFW had a statutory grant of power over its respective chapters to regulate or prohibit the type of conduct which, as alleged by plaintiff, caused the injuries. Whether defendant VFW chose to exercise that power is not determinative of this question concerning the existence of its duty to regulate or prohibit an activity which was reasonably foreseeable as noted in this dissent.

The majority claims that plaintiff has failed to allege that the VFW had a general duty to regulate the local post’s use of volunteers or supervise the activities of any volunteers. In fact, plaintiff’s complaint does allege in paragraph 5, as noted above, that the VFW had the power to regulate and alleges in paragraph 13(d) that the VFW failed to so regulate the local post. As the majority quite correctly noted, a motion to dismiss for failure to state a cause of action should not be granted by the trial court if that complaint states a good cause of action, even if not the one intended by plaintiff. (Pelham v. Griesheimer (1981), 93 Ill. App. 3d 751, 417 N.E.2d 882.) In this instance, the majority is affirming exactly that kind of dismissal in that plaintiff has adequately pleaded the opportunity, ability and the duty of the VFW to regulate its local posts in their engaging in this type of activity, even though the clarity of the pleading is diminished by the tangential issue of the legality of the raffle. The trial court’s dismissal of the count and this court’s affirming that dismissal erroneously precludes the pleading of this clearly existent cause of action.

Defendant argues that the facts in this case do not establish such a relationship between plaintiff and the VFW so as to impose a duty owed by the VFW to plaintiff because William Qualls’ actions and the resulting injuries were not foreseeable. In determining whether a duty exists for purposes of a negligence action, a court must apply a foreseeability test that brings within the scope of defendant’s liability any injury which is objectively reasonable to occur, and not everything which might conceivably occur. (Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 466, 343 N.E.2d 465, 471; Watkins v. Mt. Carmel Public Utility Co. (1988), 165 Ill. App. 3d 493, 499, 519 N.E.2d 10, 14.) Contrary to the VFW’s argument, this court should find that the injuries sustained by plaintiff are within the category of those objectively reasonable to occur. It is objectively reasonable to foresee that one who volunteers to sell raffle tickets could undertake such a task at local taverns and at the same time consume enough alcohol to become sufficiently intoxicated to cause an automobile accident involving serious injury and death.

If plaintiff proves that the VFW was negligent in regulating Post 2228’s use of volunteers, the jury might find that William Qualls’ intervening tort is foreseeable and that it was the VFW’s failure to regulate its local post, as required by statute, that was the proximate cause of plaintiff’s injuries. A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle a plaintiff to recover. (Fechtner v. Lake County Savings & Loan Association (1977), 66 Ill. 2d 128, 133, 361 N.E.2d 575, 578.) Upon consideration of the pleadings, the trial court erred in dismissing count I of plaintiff’s third amended complaint, and the majority has erred in affirming this dismissal. I would reverse on the basis that a cause of action has been pleaded, and remand the cause for further proceedings.


author: JUSTICE WELCH JUSTICE HOWERTON,

text:
    INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL No. 23, Petitioner-Appellee, v. THE CITY OF EAST ST. LOUIS, Respondent-Appellant.
    Fifth District
    No. 5—89—0547
    Opinion filed December 12, 1990.

      HOWERTON, J., specially concurring.
    Charles L. Wiest, Jr., of Vickers, Moore & Wiest, of St. Louis, Missouri, for appellant.
    Jack Carey, of Belleville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Appellant, City of East St. Louis (hereinafter City), appeals from an order denying its motion to dissolve a preliminary injunction entered against it by the circuit court of St. Clair County. Appellee, the International Association of Firefighters, Local No. 23 (hereinafter Union), which represents employees of the City of East St. Louis fire department, had obtained a temporary restraining order and preliminary injunction prohibiting the City from laying off 30 firefighters. For the reasons set forth below, we reverse the trial court’s denial of City’s motion to dissolve the injunction.

On July 5, 1988, the Union filed a petition for temporary restraining order and application for preliminary injunction before the circuit court of St. Clair County. The petition alleges that on June 22, 1988, the City of East St. Louis rescinded an ordinance prohibiting the laying off of firefighters and, on June 30, 1988, the City laid off 30 firefighters who are in the collective bargaining unit represented by the Union. The petition further alleges that this layoff was in violation of the collective bargaining agreement in effect between the City and the Union, as well as in violation of the rules and regulations of the fire and police departments of the City of East St. Louis. The petition alleges that as a result of this layoff, the Union’s members and the residents and businesses of City will suffer specific irreparable harm, injury, loss and damage.

On that same date, the petition for temporary restraining order was granted and an order was entered enjoining City from giving effeet to its rescission of the ordinance prohibiting the laying off of firefighters and ordering the City to reinstate the 30 firefighters who had been laid off. A hearing on Union’s application for a preliminary injunction was set for July 15,1988.

On July 14, 1988, Union filed a motion to extend the temporary restraining order and continue hearing on the application for a preliminary injunction for the reason that City had notified Union that it would be unable to produce its witnesses for the hearing on July 15, 1988. This motion was granted on that same date, and hearing on the application for preliminary injunction was set for July 21, 1988. This hearing was also continued, for reasons which do not appear of record, until July 28, 1988. Once again, for reasons which do not appear of record, the hearing on the application for preliminary injunction was continued until August 18,1988.

On August 18, 1988, the matter came on for hearing on Union’s application for preliminary injunction. City had never filed a response to the application for preliminary injunction. The trial court granted the preliminary injunction, and the parties were ordered to agree on a date for trial on the merits. On August 25, 1988, City filed its response to Union’s petition for temporary restraining order and application for preliminary injunction. praying that the court deny the application for preliminary injunction.

On January 18, 1989, Union was allowed to amend its petition for temporary restraining order and application for preliminary injunction to include the allegation that proceedings were pending before an arbitration panel and that during such time section 14(1) of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1989, ch. 48, par. 1614(1)) prohibited either party from changing existing wages, hours or other conditions of employment.

On March 3, 1989, City filed a motion to dissolve the preliminary injunction. The motion alleges no facts or law in support of the motion.

On April 11, 1989, the court heard oral argument on the motion to dissolve the preliminary injunction. City argued that the dispute between it and the Union is over an alleged breach of their collective bargaining agreement, that, as such, it is arbitrable under the collective bargaining agreement, that arbitration is mandatory and must be exhausted prior to seeking court action, and that the Union has failed to submit the dispute to arbitration. City also argued that the injunction was in violation of the Illinois anti-injunction act, which provides:

“No restraining order or injunction shall be granted by any court of this State in any case involving or growing out of a dispute concerning terms or conditions of employment, enjoining or restraining any person or persons, either singly or in concert, from terminating any relation of employment ***.” Ill. Rev. Stat. 1989, ch. 48, par. 2a.

Union argued that the City’s proposed reduction in force was in violation of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1989, ch. 48, par. 1601 et seq.), which prohibits a change by either party to a collective bargaining agreement in existing wages, hours or conditions of employment during the pendency of any arbitration proceeding, that the parties were engaged in such a proceeding over terms of a follow-on or new collective bargaining agreement, and that the injunction merely maintains the status quo during negotiations on the new collective bargaining agreement. The Union also argued that it was without an adequate remedy at law because, without the injunction, 30 firefighters would lose their jobs without any real hope of being reinstated or receiving back pay even if the Union prevailed in arbitration, and that if it were forced to submit to arbitration without an injunction, its members would suffer irreparable injury. Thus, Union argued, it need not exhaust arbitration prior to seeking court action. The matter was taken under advisement.

On June 5, 1989, City filed a memorandum in support of its motion. On June 15, 1989, Union filed a motion to dismiss City’s motion to dissolve the injunction, alleging that in its motion and in oral argument before the court, City had presented no facts indicating a change in circumstances from the date the preliminary injunction issued, which is required in order to prevail. Union’s motion further argues that City’s motion to dissolve is, in reality, a motion to reconsider the granting of the preliminary injunction, which was not filed within 30 days of issuance of the injunction, as required.

On July 24, 1989, the circuit court of St. Clair County denied City’s motion to dissolve the preliminary injunction. The order contains no findings of fact or conclusions of law, nor does it set forth the trial court’s reasoning. Notice of appeal was filed August 7, 1989. The only issue properly before us on appeal is whether the trial court erred in denying City’s motion to dissolve the preliminary injunction.

Union argues that a motion to dissolve an injunction is proper only when the movant can demonstrate a change in either the facts or the law of the case such that the injunction is no longer necessary or warranted, and that City has failed to so demonstrate. Union is correct with respect to permanent injunctions. However, with respect to preliminary injunctions, as in the case at bar, a court has inherent power during the pendency of the case before it to issue and vacate such injunctions. (Kraft v. Solon (1975), 32 Ill. App. 3d 557, 561, 336 N.E.2d 577, 580.) Thus, a trial court possesses power to dissolve a preliminary injunction absent a change of facts or law from the time of issuance to the time of dissolution, provided a sufficient basis exists to support the dissolution. (Kraft, 32 Ill. App. 3d at 561, 336 N.E.2d at 580.) Whether or not to dissolve a preliminary injunction rests within the sound discretion of the trial court. Eads Coal Co. v. United Mine Workers of America, District 12 (1975), 27 Ill. App. 3d 692, 703, 327 N.E.2d 115, 123.

City argues that the trial court abused its discretion in refusing to dissolve the injunction after City pointed out, in its motion to dissolve, that the injunction had been improperly granted. Union argues that City has waived any error in the issuance of the preliminary injunction because it failed to raise any such issues or objections prior to its issuance. It is true that City did not file an answer or raise any defenses to Union’s petition for temporary restraining order and application for preliminary injunction. While we agree that it would have been more efficient for City to raise its objections prior to issuance of the preliminary injunction, we do not think City was precluded from raising them in a motion to dissolve the preliminary injunction. Section 11 — 108 of the Code of Civil Procedure provides that a motion to dissolve an injunction may be made at any time before or after answer is filed. (Ill. Rev. Stat. 1989, ch. 110, par. 11 — 108.) All of the issues raised in this appeal by City were before the trial court on the motion to dissolve the injunction, and it is the denial of that motion which City appeals. City has not waived the issue of improper issuance of the preliminary injunction.

Union sought the preliminary injunction on the basis that City’s proposed layoff of firefighters violated a provision of the Collective Bargaining Agreement between the parties which provides certain “manning” requirements for the fire department. Union argued that the proposed layoff would so reduce the force that it would be impossible for the City to meet these manning requirements, resulting in a violation of the collective bargaining agreement. The remaining firefighters would suffer irreparable harm in that they would be forced to work longer hours or additional shifts, the fire department would be undermanned, and the duties of the remaining firefighters would be rendered more hazardous. City denied that the proposed layoff was in violation of the collective bargaining agreement.

That same collective bargaining agreement provides that all grievances or disputes arising between the parties, including the application, meaning or interpretation of the agreement, shall be disposed of through a specified arbitration procedure. Furthermore, the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1989, ch. 48, par. 1601 et seq.) mandates arbitration of all disputes between public employers and employees represented by a union (Ill. Rev. Stat. 1989, ch. 48, par. 1608), and requires exhaustion of the arbitration procedure prior to seeking court action (Ill. Rev. Stat. 1989, ch. 48, par. 1616). It is well established in Illinois that once a contract containing a valid arbitration clause has been executed, the parties are irrevocably committed to arbitrate all disputes arising under the contract. Uehlein v. Shwachman (1987), 156 Ill. App. 3d 274, 277, 509 N.E.2d 493, 495.

We think the instant dispute over whether the proposed layoff of 30 firefighters violates the parties’ collective bargaining agreement clearly falls within the provision in the agreement requiring mandatory arbitration. Union does not seriously dispute this, but argues that it will suffer irreparable harm during the arbitration proceeding if the status quo is not maintained through issuance of an injunction. City counters that the Illinois anti-injunction act prohibits issuance of an injunction in eases of this nature.

The Illinois anti-injunction act prohibits issuance of injunctions in cases involving or growing out of labor disputes concerning terms and conditions of employment. (Sibley v. Health & Hospitals’ Governing Comm’n (1974), 22 Ill. App. 3d 632, 637, 317 N.E.2d 642, 646.) The instant case certainly involves a labor dispute concerning terms and conditions of employment, i.e., the number of hours worked, the number of firefighters on each shift, etc. The language of the anti-injunction act itself provides no exception to this broad proscription against injunctions in labor disputes. The only exception recognized by Illinois courts is in the case of illegal acts or acts which give rise to liability, which may be enjoined despite the broad proscription of the anti-injunction act. (American Device Manufacturing Co. v. International Association of Machinists, District No. 9, an Unincorporated Labor Organization, Local 673 (1969), 105 Ill. App. 2d 299, 303, 244 N.E.2d 862, 865.) Thus, illegal strikes or picketing involving illegal violence, or strikes in violation of a collective bargaining agreement which result in business losses, giving rise to liability, may be properly enjoined. (American Device, 105 Ill. App. 2d at 304-05, 244 N.E.2d at 865-66.) We are aware of no other recognized exception to the language of the anti-injunction act. Union asks us, however, to recognize another exception: where an injunction is necessary to maintain the status quo during arbitration and thus prevent irreparable injury to one of the parties.

Such an exception is recognized under the Federal anti-injunction law, section 4 of the Norris-LaGuardia Act, which provides that no court of the United States shall have jurisdiction to issue any injunction in any case involving or growing out of any labor dispute to prohibit any person from, inter alia, remaining in any relation of employment. (29 U.S.C. §104 (1988).) In Aluminum Workers International Union, AFL-CIO, Local Union No. 215 v. Consolidated Aluminum Corp. (6th Cir. 1982), 696 F.2d 437, the United States Court of Appeals for the Sixth Circuit recognized an exception to section 4 of the Norris-LaGuardia Act, permitting an injunction against an employer where the injunction was necessary to maintain the status quo in order to protect the integrity of the arbitral process, i.e., where arbitration without maintenance of the status quo would render that arbitration meaningless. The court held that, in order to fall within this exception, a union must establish the following: (1) that the underlying grievance is one which the parties are contractually bound to arbitrate; and (2) the traditional bases for equitable injunctive relief: (a) the ongoing nature of the breach of the collective bargaining agreement by employer; (b) that the union will suffer irreparable harm from the employer’s breach of the agreement; and (c) that the union will suffer more from denial of the injunction than the employer will from its issuance.

In Aluminum Workers, the court found that the dispute was indeed arbitrable and that there appeared to be an ongoing breach of the agreement by employer, but failed to find that the union would suffer irreparable harm from the breach. (Thus, the court did not reach the third basis for equitable relief, balancing of hardships.) The court held that irreparable harm is.injury so great that an arbitrator’s award, if forthcoming, would be inadequate to fully recompense the injured party, rendering the award an empty victory. Such a result undermines the arbitral process and justifies the issuance of an injunction. The court found that the union had failed to establish this point where the only injury to the employees was loss of employment from a solvent employer. The court stated that, absent some indication of the employer’s inability to reinstate affected employees or to pay them wages for the period of unemployment, the mere loss of employment is not irreparable harm and will not support a claim by the union for injunctive relief. Thus, the court vacated the injunction which had prohibited the employer from reorganizing job classifications, resulting in the elimination of 16 jobs.

The court further held that possible repossessions, foreclosures and injury to credit status which might befall the unemployed were not the type of harm that, by its occurrence, threatens the integrity of the arbitral process. .The court found these to be speculative damages which would materialize, if at all, only in select cases. Further, such damages would be less likely to materialize if both parties proceeded with arbitration in a timely manner.

We find it unnecessary to adopt this case as the law in Illinois because we find that, even were we to do so, Union could not meet the requirements of the exception. Like the union in Aluminum Workers, the union in the case at bar has not demonstrated that it will suffer the type of irreparable harm from the layoff necessary to justify issuance and continuance of the injunction. The record contains no evidence of City’s inability to reinstate and pay back wages to laid-off firefighters in the event Union prevails in arbitration. As in Aluminum Workers, we find the other damages alleged by Union, danger of fatigue, lack of manpower, and the need to work longer hours for which the firefighters would be paid, to be speculative and not the type which threaten the integrity of the arbitral process. As in Aluminum Workers, these damages will be less likely to materialize if both parties proceed with arbitration in a timely manner.

Union has failed to establish that its members will suffer irreparable harm in the absence of the injunction and thus this case would not fall within the exception to anti-injunction statutes established in Aluminum Workers even were we to adopt that case as the law in Illinois. We therefore decline to do so at this time.

The preliminary injunction issued by the circuit court of St. Clair County was issued in contravention of the Illinois anti-injunction act. The trial court abused its discretion in refusing to grant appellant’s motion to dissolve the injunction. Because we have the same powers as does the trial court herein (107 Ill. 2d R. 366), we hereby dissolve the preliminary injunction issued by the circuit court of St. Clair County.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is reversed and the injunction issued by that court is hereby dissolved.

Judgment reversed; injunction dissolved.

LEWIS, J., concurs.

JUSTICE HOWERTON,

specially concurring:

I cannot join the majority’s reasoning, but I concur in the result because neither the temporary restraining order nor the preliminary injunction set forth specific reasons for entry, nor did the preliminary injunction or the order granting it describe in reasonable detail the acts restrained as required by section 11—101 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 11—101). Both the temporary restraining order and the preliminary injunction, without specificity, are rendered unenforceable, because without definite, clear and precise terms, reasons for misunderstanding and excuses for disobeying exist. See generally Illinois Power Co. v. Latham (1973), 15 Ill. App. 3d 156, 303 N.E.2d 448; Village of Gilberts v. Holiday Park Corp. (1986), 150 Ill. App. 3d 932, 502 N.E.2d 338, appeal withdrawn (1987), 115 Ill. 2d 540, 511 N.E.2d 438.