author: JUSTICE HARRISON

text:
    VICTORIA GORMAN, Plaintiff-Appellee, v. SHU-FANG CHEN, M.D., LTD., et al., Defendants-Appellants.
    Fifth District
    No. 5—91—0250
    Opinion filed July 29, 1992.

      Heyl, Royster, Voelker & Allen, of Peoria, and Evans & Dixon, of Edwardsville (Gary M. Peplow, Karen L. Kendall, and Robert D. Tucker, of counsel), for appellants.
    Armstrong Law Offices, of Edwardsville (Tad Armstrong, of counsel), for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Victoria Gorman, brought this medical malpractice action against defendants Shu-Fang Chen, M.D. (Dr. Chen), and ShuFang Chen, M.D., Ltd., an entity for which Dr. Chen was the sole stockholder and director, to recover damages occasioned by Dr. Chen’s negligence in rendering medical care and treatment for injuries sustained by plaintiff in a bicycle accident. Specifically, plaintiff alleged that Dr. Chen’s failure to properly examine, or call in a specialist to examine, her temporomandibular joint (TMJ) led to a failure to diagnose and treat a fracture of her right temporomandibular condyle and resulted in plaintiff undergoing a total right TMJ reconstruction with condylectomy. Following a jury trial in the circuit court of Madison County, a verdict was rendered in favor of plaintiff and against defendants in the amount of $816,900. Defendants have appealed and argue that the trial court erred in: (1) allowing a plastic surgeon, Dr. Alvin Zook, to testify as an expert witness for plaintiff on the standard of care applicable to Dr. Chen, an orthopedic surgeon; (2) modifying an Illinois Pattern Jury Instruction as to the standard of care; and (3) permitting certain testimony by plaintiff’s witness, Dr. Maurice Miller.

On March 31, 1986, plaintiff, age 18, and her mother, Shirley Sworm, were bicycling on Illinois Route 157 in Edwardsville, Illinois. Plaintiff lost control of her bicycle on a hill, hit some gravel and flew over the front of the bicycle. When Mrs. Sworm reached her daughter, she was lying unconscious on the ground with a laceration to her chin and her right leg positioned up by her shoulder. Plaintiff was taken by ambulance to Oliver-Anderson Hospital in Maryville, Illinois, and was first seen by emergency room physician Dr. Michael Wade. Dr. Wade examined plaintiff and reported that she complained about her left shoulder, chest, left breast, lip and right hip. Dr. Wade found plaintiff to be alert, neurologically within normal limits and oriented to time, place and person, with a short-term memory loss. Plaintiff’s lower chin had a two-inch laceration, and her TMJ was without tenderness. Dr. Wade’s final diagnosis was a dislocated right hip, fractured ribs, and pneumothorax (punctured lung). He stitched plaintiff’s chin and ordered X rays of the cervical spine, spine and pelvis.

Mrs. Sworm asked to have plaintiff seen by Dr. Maurice Miller, an orthopedic surgeon and personal friend of the family. Dr. Miller was not on call, and his calls were being taken by Dr. Chen, who came to the hospital and saw plaintiff in the emergency room. Dr. Chen took a history and did a physical exam of plaintiff, which included examining her head and noting the laceration to her chin. He palpated plaintiff’s jaw and noted there was no significant tenderness at the TMJ or mandible. Dr. Chen concluded from his examination of plaintiff that she had fractured ribs, a punctured lung, a dislocated hip and a laceration to her chin. Dr. Chen requested that Dr. Jong Kim, a general surgeon, treat plaintiff’s punctured lung, which Dr. Kim accomplished by inserting a chest tube. Thereafter, Dr. Chen took plaintiff to surgery where, under anesthesia, he performed a closed reduction of her dislocated hip.

At trial, the following evidence was presented, inter alia. Mrs. Sworm testified that when she spoke with Dr. Chen about plaintiff’s condition outside the emergency room, she asked if he was going to X ray the plaintiffs neck because it was so swollen. Mrs. Sworm stated that Dr. Chen told her they would do a series of X rays after the life-threatening conditions were treated. Mrs. Sworm testified that on the second day of plaintiffs hospitalization she noted swelling to the plaintiff’s jaw about the size of a goose egg and that the swelling remained for four or five days. Richard Berry, an off-duty paramedic and family friend, testified that upon plaintiff’s admission he noticed numerous facial lacerations, abrasions and swelling about her mouth and lower jaw. Berry stated that plaintiff’s speech was not normal, that she was having trouble opening and closing her mouth, and that three days after her admission, her face was still very swollen.

Larry Ashlock testified that when he visited plaintiff in the hospital during the first part of April, she had difficulty talking because her jaw was swollen and it looked like there was a “giant jaw breaker up by her cheek.” John Sworm, plaintiff’s stepfather, testified that on the day after her admission, there remained a pronounced lump on plaintiff’s right side in front of her ear line which gradually decreased over the course of a week and had subsided by April 12. Plaintiff testified that the day after her admission to the hospital, her jaw had swelling about the size of a golf ball which persisted for four to five days before beginning to recede.

Dr. Chen testified that he saw plaintiff every day that she was in the hospital and that she never registered any complaint to him about her jaw or TMJ and that Mrs. Sworm never indicated that plaintiff had complaints about her jaw. Dr. Chen stated that he never saw any swelling to plaintiff’s jaw while she was in the hospital and that neither plaintiff nor her mother made any complaints of swelling in relation to plaintiff’s jaw or TMJ. Dr. Chen testified that there were no reports in plaintiff’s hospital chart of pain, swelling or complaints concerning the jaw or TMJ. He admitted that no X ray of plaintiff’s jaw or TMJ was done during her hospital stay.

Dr. Maurice Miller, the orthopedist originally requested by Mrs. Sworm, testified that he saw plaintiff in the hospital on April 12, 1986. Dr. Miller made no notations about jaw problems but stated that his attention was directed primarily to plaintiff’s hip. Plaintiff was discharged from the hospital on April 14,1986.

Dr. Harry Stadnyke, plaintiff’s dentist, testified that he saw plaintiff on April 17 to check the braces on her teeth. Dr. Stadnyke examined plaintiff, found a discrepancy in her jaw movements and took X rays from which he diagnosed a fracture to plaintiff’s right jaw. Dr. Stadnyke stated that he immediately referred plaintiff to an oral surgeon, Dr. Mark Travis. Dr. Travis testified that he initially treated plaintiff by manipulating her mandible, or lower jaw, under general anesthetic, to obtain proper orientation with the upper jaw. Dr. Travis stated that he next proceeded with a nonsurgical closed-type reduction, where plaintiff’s bite was held in place by rubber bands, to train the muscles to hold the jaw until scar tissue or a pseudo joint could form with the stump of the fracture site. Dr. Travis testified that on May 19, 1986, he wired plaintiff’s jaws together and discussed the possibility of a need for surgery with plaintiff, because he was unsatisfied with the progress of the conservative treatment. On July 21, 1986, Dr. Travis performed a total joint implant to plaintiff’s right jaw.

Defendants first contend that it was error to allow plaintiff’s expert, a plastic surgeon, to testify concerning the standard of care applicable to Dr. Chen, an orthopedic surgeon. To establish negligent medical malpractice, the plaintiff must prove the proper standard of care by which to measure the defendant practitioner’s conduct, a negligent breach of that standard, and a resulting injury proximately caused by the practitioner’s lack of skill or care. (Novey v. Kishwaukee Community Health Services Center (1988), 176 Ill. App. 3d 674, 677, 531 N.E.2d 427, 429.) Except where the negligence is so grossly apparent or within the everyday knowledge of a lay person, expert testimony is required to establish the standard of care applicable to the defendant practitioner and breach of that standard. Novey, 176 Ill. App. 3d at 677, 531 N.E.2d at 429.

Section 8 — 2501 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 8 — 2501) states the qualifications for expert witnesses in medical malpractice actions. Section 8 — 2501 provides:

“In any case in which the standard of care given by a medical professional is at issue, the court shall apply the following standards to determine if a witness qualifies as an expert witness and can testify on the issue of the appropriate standard of care.
(a) Relationship of the medical specialties of the witness to the medical problem or problems and the type of treatment administered in the case;
(b) Whether the witness has devoted a substantial portion of his or her time to the practice of medicine, teaching or University based research in relation to the medical care and type of treatment at issue which gave rise to the medical problem of which the plaintiff complains;
(c) whether the witness is licensed in the same profession as the defendant; and
(d) whether, in the case against a nonspecialist, the witness can demonstrate a sufficient familiarity with the standard of care practiced in this State.” (Ill. Rev. Stat. 1989, ch. 110, par. 8-2501.)

The determination of whether a licensed physician is qualified to testify as a medical expert in a malpractice action is a matter resting within the sound discretion of the trial court. Smock v. Hale (1990), 197 Ill. App. 3d 732, 739, 555 N.E.2d 74, 78.

In the instant case, defendants admit that plaintiff’s expert, Dr. Zook, met the standards set forth in paragraphs (b) and (c) of section 8 — 2501, and that paragraph (d) is inapplicable. Defendants argue that Dr. Zook, testifying as a plastic surgeon serving as an attending physician in a multiple-trauma case, did not meet the requirements of paragraph (a) of the statute because he was unqualified to render an opinion “as to whether or not Dr. Chen, serving as an attending orthopedic surgeon, deviated from acceptable medical practice.” This contention is without merit.

In Petkus v. Girzadas (1988), 177 Ill. App. 3d 323, 532 N.E.2d 333, the appellate court held that the testimony of the plaintiff’s expert witness, a cardiologist, was sufficient to preclude entry of summary judgment for defendants and against plaintiff in a medical malpractice action which alleged that negligent post-operative treatment of the deceased by defendant orthopedists resulted in cardiac arrest. The defendants in Petkus argued that the plaintiff must establish the knowledge and skill of an orthopedic surgeon in handling a cardiac condition. However, the Petkus court held that the diagnosis and treatment restricted to defendants’ narrow specialty was not at issue where the alleged negligence stemmed from the defendants’ broader, general post-operative medical care of the decedent. Petkus, 177 Ill. App. 3d at 331, 532 N.E.2d at 338.

“Decedent died of congestive heart failure, not a broken leg. Defendants’ skills, experience or knowledge as orthopedic surgeons are not relevant. Defendants’ diagnosis or surgical treatment of decedent is not at issue. We are faced only with the narrow question of the competency of an expert witness to testify to minimum standards of general medical practice in the absence of familiarity with the standards of specialized orthopedic care. The expert’s testimony should not be excluded where the standards to which he proposes to testify are minimum standards applicable to any physician rendering post-operative care to a cardiac patient. The facts sufficiently demonstrate that the standard of practice of such a physician is within [plaintiff’s expert’s] scope of knowledge.” (Emphasis in original.) Petkus, 177 Ill. App. 3d at 328-29, 532 N.E.2d at 337.

In Smock, the appellate court held that a gastrointestinal surgeon was qualified to testify as an expert witness for the plaintiff in a medical malpractice case involving the alleged negligent pregnancy management of a Crohn’s disease victim by defendant family practitioner. The Smock court found that where plaintiff’s expert specialized in the surgical treatment of intestinal diseases and had successfully treated pregnant patients with a history of Crohn’s disease, he was familiar with the medical issues in the action and therefore qualified to testify under section 8 — 2501, despite the fact that the expert was unfamiliar with the standard of care imposed upon family practice physicians in southern Illinois. Smock, 197 Ill. App. 3d at 739-40, 555 N.E.2d at 78-79.

Here, as in Petkus, our focus is on the competency of the expert witness to testify to standards of general medical practice rather than to the standards of specialized orthopedic care. Plaintiff’s expert, Dr. Zook, is a licensed physician who has been the “attending physician” for numerous patients throughout his career. Additionally, Dr. Zook is board certified in general surgery, thoracic and cardiovascular surgery and plastic surgery and has training and experience in the treatment of fractures of the jaw. Therefore, as in Smock, Dr. Zook’s educational and employment background insured his familiarity with the medical issues involved in this action and qualified him to testify under section 8 — 2501. Thus, the trial court did not err in allowing Dr. Zook to testify concerning the standard of care applicable herein.

However, in the instant case it was unnecessary for plaintiff to rely on Dr. Zook to establish the standard of care and the breach thereof, because that testimony was supplied by Dr. Chen himself. It is well settled that where expert testimony is required to establish the applicable standard of care, the testimony of the defendant doctor may suffice to establish that standard. Rohe v. Shivde (1990), 203 Ill. App. 3d 181, 193, 560 N.E.2d 1113, 1121; Novey, 176 Ill. App. 3d at 679, 531 N.E.2d at 430; see also Fawcett v. Reinertsen (1989), 131 Ill. 2d 380, 385-86, 546 N.E.2d 558, 560.

Here, pursuant to a request to admit facts which defined “attending physician” as “the primary care physician in charge of the overall care of a patient from the time of his appointment to the position of attending physician through the date of discharge,” the jury was ordered by the court to find as fact that “from the time of his initial examination of Victoria Gorman on March 31, 1986, through the date of her discharge from Anderson Hospital, Shu-Fang Chen, M.D., was the attending physician of Victoria Gorman.” Dr. Chen established the standard of care applicable to an attending physician when he testified during direct examination by plaintiff’s counsel, Tad Armstrong:

“DR. CHEN: The attending physician [is] in charge of coordinating overall care of patient. You don’t take care of everything. I couldn’t. Nobody could.
* * *
MR. ARMSTRONG: Doctor, I understand that you may not be able to take care of everything but when you suspect a problem, you should call in a specialist to take care of it; is that correct?
DR. CHEN: That’s correct.
MR. ARMSTRONG: And as the attending physician you would have this responsibility?
DR. CHEN: Yes.”

Further testimony of Dr. Chen established his breach of this standard of care, i.e., that although he does not have the expertise to treat every condition, when he suspects a problem he should call in a specialist and, as the attending physician, he has the responsibility to call in a specialist. Dr. Chen testified that he had never treated a fracture of the TMJ, that he was “not at all” good at problems with the TMJ, and that he did not treat above the neck. In fact, Dr. Chen admitted, “I am not expert in this and I don’t have any idea what is proper TMJ examination.” Dr. Chen further admitted that although he did not know whether or not he had the expertise to feel a fracture of the jaw with his fingers alone, he suspected the possibility of a fracture and was actually looking for a fracture of the jaw when he examined plaintiff’s TMJ. Therefore, where the record shows that Dr. Chen did not call in a specialist, despite his responsibility to do so under the circumstances, we believe plaintiff could have adequately established the standard of care applicable and the breach thereof by relying solely on Dr. Chen’s testimony.

Defendants next argue that the trial court erred in modifying Illinois Pattern Jury Instructions, Civil, No. 105.01 (2d ed. 1971) (hereinafter IPI Civil 2d). Illinois Supreme Court Rule 239(a) (134 Ill. 2d R. 239(a)) provides, in general, that whenever an Illinois Pattern Jury Instruction contains an instruction applicable to the case, and the court determines that the jury should be instructed on that issue, “the IPI instruction shall be used, unless the court determines that it does not accurately state the law.” (134 Ill. 2d R. 239(a).) However, this court has held that a violation of Rule 239(a) is not reversible error where the instruction given is neither partial, misleading, or argumentative and accurately states the law such that no prejudice occurs. (See Berry v. American Commercial Barge Lines (1983), 114 Ill. App. 3d 354, 372-73, 450 N.E.2d 436, 448-49, cert. denied (1984), 465 U.S. 1029, 79 L. Ed. 2d 692, 104 S. Ct. 1290; see also Law v. Central Illinois Public Service Co. (1980), 86 Ill. App. 3d 701, 707, 408 N.E.2d 74, 78-79.) We believe that the instruction complained of here accurately states the law and that no prejudice accrued to defendants from giving the modified instruction.

IPI Civil 2d No. 105.01 reads as follows:

“In treating a patient, a doctor must possess and apply the knowledge and use the skill and care that is ordinarily used by reasonably well-qualified doctors in the locality in which he practices or in similar localities in similar cases and circumstances. A failure to do so is a form of negligence that is called malpractice.
The only way in which you may decide whether the defendant possessed and applied the knowledge and used the skill and care which the law required of him is from evidence presented in this trial by doctors called as expert witnesses. You must not attempt to determine this question from any personal knowledge you have.”

In the case at bar, the first paragraph of this instruction was modified to read:

“In treating a patient, a physician acting as that patient’s attending physician must possess and apply the knowledge and use the skill and care that is ordinarily used by a reasonably well qualified attending physician in the locality in which he practices or in similar localities in similar cases and circumstances. A failure to do so is a form of negligence that is called malpractice.”

Defendants argue that the use of the words “attending physician” in the instruction implies to the jury that there is a special duty imposed upon an attending physician that ordinarily does not exist. However, we agree with plaintiff that where the only difference in the instruction is that the label of “attending physician” was used instead of “doctor,” and where the jury had been ordered to find as fact that Dr. Chen was the attending physician, the modification does not alter the duty imposed in any respect. As the trial court stated upon allowing the modification: “It particularizes the instruction for this case to refer to the type of physician that we are dealing with, which I think is appropriate, but it doesn’t — it’s not an attempt to reword what the law is***.”

The trial court’s order denying defendants’ post-trial motion held that “[t]he use of the phrase ‘attending physician’ in no way prejudiced the defendants herein because such phrase was simple, brief, impartial, free from argument, and set forth the uncontroverted and established facts.” Because we believe the trial court properly applied the reasoning set forth by this court in Berry, we find that any error arising from the use of the modified instruction was harmless. Berry, 114 Ill. App. 3d at 372-73, 450 N.E.2d at 448-49.

Defendants next contend that the trial court erred in allowing a portion of Dr. Maurice Miller’s testimony to be presented to the jury as evidence on behalf of plaintiff. Plaintiff argues that defendants have waived this issue because it was not included in defendants’ post-trial motion, citing section 2 — 1202(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1202(b)) and Supreme Court Rule 366(b)(2)(iii) (134 Ill. 2d R. 366(b)(2)(iii)). Defendants respond that the post-trial motion stated, inter alia, that “[t]he verdict of the jury was the result of mistake on the part of the jury,” and they argue that this mistake was occasioned by the improper testimony of Dr. Miller.

The purpose of requiring parties to make post-trial motions is to afford the trial judge the opportunity to review his decisions and to prevent parties from raising arguments on appeal which the trial judge did not have an opportunity to consider. (Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 348-50, 415 N.E.2d 337, 339; Centracchio v. Rossi Construction Co. (1988), 170 Ill. App. 3d 1007, 1011, 524 N.E.2d 1000, 1002.) Section 2 — 1202(b) requires that “[t]he post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1202(b).) We conclude that the defendants’ post-trial motion was not sufficiently specific to preserve this issue for review, where the allegation of error contained therein does not specify the grounds upon which it is based and is therefore inadequate under the standards enunciated in Brown and in section 2 — 1202(b). (See Micklos v. Highsmith (1986), 149 Ill. App. 3d 779, 787-88, 500 N.E.2d 1154, 1160.) We thus do not reach the issue of whether Dr. Miller’s testimony was erroneously admitted into evidence.

Finally, without extended discussion, we reject plaintiff’s claim that she should be awarded attorney fees and costs. Plaintiff makes this claim pursuant to Supreme Court Rule 375 (134 Ill. 2d R. 375), on the grounds that defendants’ appeal is frivolous and was not taken in good faith. Regardless of the merit of the other issues, we agree with defendants that questioning the trial court’s decision to modify a pattern jury instruction cannot be deemed frivolous.

For the foregoing reasons, the judgment of the circuit court of Madison County is affirmed.

Affirmed.

GOLDENHERSH, P.J., and H. LEWIS, J., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    T. JAY BOYD et al., d/b/a Boyd and Bass Orchards, Plaintiffs-Appellees, v. UNITED FARM MUTUAL REINSURANCE COMPANY, Defendant-Appellant.
    Fifth District
    No. 5—90—0848
    Opinion filed July 28, 1992.

      Ward, Murray, Pace & Johnson, P.C., of Sterling (John A. Guzzardo, of counsel), for appellant.
    R. Corydon Finch, of Finch & Karraker, P.C., of Anna, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiffs brought suit to recover damages under a policy of crop hail insurance issued by the defendant. Plaintiffs sought damages for the yield reduction resulting from hail damage to a portion of their 1986 apple crop. Plaintiffs also sought statutory damages for defendant’s alleged bad-faith failure or refusal to settle plaintiffs’ insurance claim. The jury found for the plaintiffs on both claims. Defendant appeals. We affirm.

On May 15, 1986, a portion of plaintiffs’ apple crop in Union County, Illinois, was damaged by hail. Plaintiffs gave notice of hail damage to Kenneth Hight, an independent insurance agent in Union County who had authority to sell crop hail insurance for defendant. On May 22, 1986, Mr. Hight went to plaintiffs’ orchard to inspect the damage. This was Hight’s first attempt at apple adjusting, and before completing the adjustment, he contacted the defendant, which sent a more experienced adjuster to handle the claim.

On May 30, 1986, the defendant sent Mr. Francis Martin, from Wisconsin, to calculate the plaintiffs’ hail damages. There was immediate disagreement between the plaintiffs and the adjuster as to how best to assess the losses. The plaintiffs did not approve of the procedure which Mr. Martin used in obtaining sample apples for use in the yield-reduction calculation. Terry Boyd asked Martin to use a ladder to obtain sample apples from the tops of trees, where damage was likely to be heavier, as well as apples from the sides of the trees which could be reached from the ground. Martin declined to use the ladder and picked only those apples which could be reached from the ground. Plaintiffs decided that Mr. Martin’s adjustment would be unacceptable even prior to his final adjustment. Martin estimated plaintiffs’ losses at 47.9% for yellow apples and 45.25% for red apples for a total insurable loss of $40,782.50. Martin advised the plaintiffs of his calculated percentage of loss before leaving that day. Plaintiffs were dissatisfied with his final calculations.

Plaintiffs hired their own adjuster, Kenneth Staley, who on June 19 and 20, 1986, made an appraisal of plaintiffs’ hail damage. Staley included apples from both the top and the sides of the trees in his sampling, and he also accounted for the growing conditions in southern Illinois. Staley determined a loss of 72.4% for red apples and 63.3% for yellow, for a total insurable loss of $98,708.

On June 26, 1986, plaintiffs spoke with defendant’s representative Malone, and Mr. Malone discussed the possibility of arbitration with them. On August 20, 1986, plaintiffs requested that their claim be submitted to arbitration. On August 29, 1986, defendant tendered to plaintiffs a check in the sum of $40,782.50 as settlement for plaintiffs’ claim based on Francis Martin’s adjustment. On September 2, 1986, plaintiffs received a letter from defendant’s attorneys stating that their request for arbitration was not timely made and suggesting that they file suit if they were not willing to settle for the amount tendered. On October 1, 1986, plaintiffs filed suit against defendant.

Prior to trial, plaintiffs made an oral motion in limine to prohibit defendant from eliciting any evidence concerning plaintiffs’ income tax returns, actual yield or profit or loss in 1986. Defendant moved to compel plaintiffs to produce income tax and yield records and to produce plaintiffs’ bookkeeper at trial. Defendant also made an oral motion for sanctions for failure to comply with a prior discovery request for income and yield information. The court denied defendant’s motions and granted plaintiffs’ motion in limine. The court also denied defendant’s subsequent request for reconsideration. The parties stipulated that a final issue regarding the applicability of a 15% deductible to the insurance policy in question could be decided by the court after the jury rendered its verdict.

The final complaint was in two counts. Count I was based on the policy under which plaintiffs sought damages sustained by their apple crop based on their submitted calculations. Count II sought damages under section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 767) based upon six claimed categories of vexatious and unreasonable conduct.

The jury found for the plaintiffs on count I, and pursuant to an agreement of the parties the judge determined damages to be $88,834. The jury also found for the plaintiffs on count II. As agreed by the parties, the judge then determined statutory attorney fees and damages. The court determined statutory attorney fees to be $15,426.12, statutory damages to be $22,208, and statutory prejudgment interest to be $17,766. The court also found that the 15% deductible did not apply to the insurance policy in question.

On appeal defendant claims that the trial court abused its discretion in denying defendant’s discovery motions and in allowing plaintiffs’ motion in limine. Defendant also contends the trial court abused its discretion by granting plaintiffs’ motion for attorney fees and additional damages and by awarding prejudgment interest. Finally, defendant claims the court’s finding that the 15% deduction did not apply was contrary to the manifest weight of the evidence and that the jury verdicts on counts I and II were both contrary to the manifest weight of the evidence.

We will first address the court’s rulings on the motions. Defendant claims that the trial court committed reversible error in denying its oral motion to compel plaintiffs to produce their bookkeeper to testify at trial and in denying its motion to compel plaintiffs to produce yield records, marketing records, and income tax returns, as well as in granting plaintiffs’ motion in limine prohibiting defendant from offering evidence of plaintiffs’ tax returns, yield records or marketing records to challenge plaintiffs’ evidence on the issue of damages. Defendant also claims the trial court erred in denying its motion to reconsider plaintiffs’ motion in limine.

The trial court judge held that the plaintiffs’ tax returns and yield records for the several years requested were not relevant to the question of determining damages to the apple crop by the hail storm in 1986. Likewise, the trial court denied defendant’s motion to compel plaintiffs to produce their bookkeeper, Mr. Fozzard, based at least in part on the irrelevancy of his testimony on the issue of damages. We agree. The Illinois Supreme Court has adopted Rule 401 of the Federal Rules of Evidence, which defines relevant evidence as

“evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401.

People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295; In re Elias (1986), 114 Ill. 2d 321, 499 N.E.2d 1327.

The parties had stipulated that (1) plaintiffs’ 1986 apple crop was damaged by hail on or about May 15, 1986; (2) plaintiffs’ 1986 apple crop was insured for hail damage under a policy of insurance issued by defendant; (3) the hail damage to plaintiffs’ 1986 apple crop was covered under the defendant’s policy; (4) defendant, through an adjuster hired by it, made a calculation of the extent of hail damage to plaintiffs’ apple crop and offered to pay plaintiffs for the loss based upon its adjuster’s calculations; and (5) plaintiffs, through an adjuster hired by them, also calculated the extent of the hail damage to the 1986 apple crop.

The only issue remaining in count I was whether the plaintiffs could support their claim of a higher percentage of damages to the 1986 apple crop. Ultimately, this was to be decided by determining if plaintiffs’ adjustor’s method of assessing damages accurately reflected the percentage of the 1986 crop lost due to the hail storm.

Prior or succeeding profits or losses sustained by the plaintiffs on the apple crop in question in other years were irrelevant in determining what percentage of the 1986 crop was damaged. Under the policy the amount owed to plaintiffs due to crop loss by hail would be decided by first determining the percentage of crop loss from hail on each specific acre. This percentage would then be applied in the same proportion to the amount of insurance applying to that specific acre on the date of loss. Thus, if acre A was insured for $1,000 and acre A suffered a 50% loss in crop yield due to a covered loss, the insured would receive $500 in damages. This being said, it becomes obvious that ultimate profits and losses are irrelevant in determining insured crop losses as they are largely based on a fluctuating market price and not specifically on a quantitative number of apples. Similarly, actual quantitative yield may be inadequate and misleading in assessing damages in that the number of apples, like the market price, may fluctuate greatly from year to year. For example, had 1986 been for all other purposes a bumper crop, the ultimate numerical yield might have shown no decrease in the number of apples harvested from the previous year despite the losses caused by the hail. Thus tax returns and yield records could only confuse and mislead the fact finder while having no tendency to make the fact in consequence (accuracy of plaintiffs’ estimated percentage losses) more probable or less probable than it would be without the evidence. By the same reasoning, the trial court did not err in refusing to compel plaintiffs to produce their bookkeeper at trial. No reason for Mr. Fozzard’s production at trial was given by defendant other than to aid in providing income and yield information on the plaintiffs’ apple crop for the year 1986 and the years just prior and subsequent to, which, as we have indicated, are irrelevant to the issue at hand.

We, therefore, conclude the trial court correctly granted the plaintiffs’ motion in limine and that the court correctly denied defendant’s motion to reconsider the order granting plaintiffs’ motion in limine.

By agreement of the parties, the trial court was asked to determine, after the jury rendered its verdict, whether the insurance policy in question was subject to a 15% deductible. The trial judge ruled that the policy was not subject to the deductible, and the defendant now contends that this holding was contrary to the manifest weight of the evidence.

Defendant’s contention is based on the allegation that plaintiff Terry Boyd, in a pretrial discovery deposition, admitted or conceded that the 15% deductible was applicable. A “judicial admission” is a deliberate, clear, unequivocal statement of a party about a concrete fact within that party’s peculiar knowledge. (Derby Meadows Utility Co. v. Inter-Continental Real Estate (1990), 202 Ill. App. 3d 345, 355, 559 N.E.2d 986, 991; Hansen v. Ruby Construction Co. (1987), 155 Ill. App. 3d 475, 480, 508 N.E.2d 301, 303.) There may be cases in which admissions at pretrial depositions are so deliberate, detailed, and unequivocal as to matters within the party’s personal knowledge that they will conclusively bind the party-deponent, and he will not be heard to contradict the admission at trial. (Haskell v. Siegmund (1960), 28 Ill. App. 2d 1, 11, 170 N.E.2d 393, 398.) This is not one of them. Certainly the information concerning the 15% deductible was not peculiar to Boyd, nor can it be argued to be within his personal knowledge to the point of conferring upon him the competency to transform such a statement into an admission. (Deichmiller v. Industrial Comm’n (1986), 147 Ill. App. 3d 66, 497 N.E.2d 452.) What we have here is an insured commenting on what he believes is contained in his policy. It is at most a speculation. We, therefore, hold that the defendant has not established that the trial court’s ruling on the 15% deductible was contrary to the manifest weight of the evidence.

Defendant also claims that the jury verdict on count I of the complaint was contrary to the manifest weight of the evidence. A verdict is contrary to the manifest weight of the evidence only where, upon review of all the evidence in a light most favorable to the party who prevailed at trial, an opposite conclusion is clearly apparent or the jury’s finding is palpably erroneous and wholly unwarranted, is clearly the result of passion or prejudice, or appears to be arbitrary and unsubstantiated by the evidence. (Renfro v. Allied Industrial Equipment Corp. (1987), 155 Ill. App. 3d 140, 156, 507 N.E.2d 1213, 1227.) Defendant has failed to show any application of this standard to the present case. The sole issue facing the jury on count I was whether the plaintiffs had proven the damages to the apple crop by a preponderance of the evidence. A review of the record, when viewed in a light most favorable to the plaintiffs, reveals no evidence suggesting the jury’s finding was erroneous, unwarranted, the result of prejudice or passion, arbitrary or unsubstantiated. We, therefore, cannot find that the jury’s verdict on count I was contrary to the manifest weight of the evidence.

Likewise, defendant claims that the jury’s verdict on count II of the complaint was contrary to the manifest weight of the evidence. Under count II the plaintiffs sought damages based upon six categories of vexatious and unreasonable conduct by the defendant. In determining whether defendant’s conduct was vexatious and unreasonable, the totality of the circumstances, taken in broad focus, will determine the matter, and a finding of vexatiousness will not be disturbed absent a showing of abuse. (Norman v. American National Fire Insurance Co. (1990), 198 Ill. App. 3d 269, 303, 555 N.E.2d 1087, 1109.) The question of vexatious and unreasonable action or delay is a factual issue. (Norman, 198 Ill. App. 3d at 304, 555 N.E.2d at 1110.) As such, it is best left to the determination of the finder of fact. A review of the record reveals that there was immediate dissension as to the proper methodology to be used in determining yield loss. Defendant notes that the plaintiffs objected to Mr. Martin’s technique even before his final calculations were tallied. We find this a telling factor in demonstrating plaintiffs’ sincerity in their dispute. Plaintiffs were genuinely concerned with the proper method to be used in determining loss and not simply with the end result. The record shows that the defendant was adamant as to the amount owed and refused to arbitrate upon plaintiffs’ request even though Mr. Staley’s adjustment suggested that losses were far greater than defendant was willing to acknowledge. Defendant’s continued refusal to negotiate with plaintiffs was the primary reason for this lawsuit being filed. The jury’s finding that the plaintiffs’ adjustor’s method was the appropriate one (which resulted in an assessment of damages at twice the sum offered by the defendant) further confirms defendant’s behavior as vexatious and unreasonable. (Ford Motor Credit Co. v. Manzo (1990), 196 Ill. App. 3d 874, 554 N.E.2d 480.) In viewing the totality of the circumstances, we find no showing of abuse and cannot say that the jury’s finding of vexatious and unreasonable behavior on the part of the defendant was contrary to the manifest weight of the evidence.

Next we turn to defendant’s claim that the trial court abused its discretion in granting plaintiffs’ motion for reasonable attorney fees and expenses, supplemental attorney fees, and additional damages, pursuant to section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 767).

“In any action by or against a company wherein there is in issue the liability of a company on a policy or policies of insurance or the amount of the loss payable thereunder, or for an unreasonable delay in settling a claim, and it appears to the court that such action or delay is vexatious and unreasonable, the court may allow as part of the taxable costs in the action reasonable attorney fees, other costs, plus an amount not to exceed any one of the following amounts:
(a) 25% of the amount which the court or jury finds such party is entitled to recover against the company, exclusive of all costs;
(b) $25,000;
(c) the excess of the amount which the court or jury finds such party is entitled to recover, exclusive of costs, over the amount, if any, which the company offered to pay in settlement of the claim prior to the action.” (Ill. Rev. Stat. 1985, ch. 73, par. 767(1).)

Since we have already concluded that the jury’s determination that the defendant was vexatious and unreasonable was not against the manifest weight of the evidence, we do not agree with defendant’s contention that the trial judge’s award of costs and fees, within the statutory guidelines of section 155, was an abuse of discretion or unconscionable.

Finally, we address the issue of the prejudgment interest. Defendant asserts that the trial court abused its discretion by awarding prejudgment interest pursuant to section 2 of the Interest Act (Ill. Rev. Stat. 1985, ch. 17, par. 6402). Decisions concerning awards of prejudgment interest are based on questions of fact, and their determination will not be disturbed on review unless contrary to the manifest weight of the evidence. Pietka v. Chelco Corp. (1982), 107 Ill. App. 3d 544, 558, 437 N.E.2d 872, 883.

In its award of prejudgment interest, the trial court based its decision on the “unreasonable and vexatious delay of payment” by the defendant. Defendant correctly states that an honest dispute as to the existence of a legal obligation will not result in unreasonable and vexatious delays which would permit recovery of prejudgment interest. (Emmenegger Construction Co. v. King (1982), 103 Ill. App. 3d 423, 429, 431 N.E.2d 738, 743.) However, as stated above, the jury and the trial court both found the defendant’s actions unreasonable and vexatious, and we have affirmed those findings. Under these circumstances, the defendant’s claim of an “honest dispute” is not persuasive.

Contrary to the defendant’s argument, the mere fact that plaintiffs’ complaint did not ask for interest was of no moment, since interest is provided by statute and will be read into the complaint. Madison Park Bank v. Field (1978), 64 Ill. App. 3d 838, 843, 381 N.E.2d 1030, 1034.

Lastly, defendant points out that in order to recover prejudgment interest, the sum due must be liquidated or subject to easy determination. (Marvel Engineering Co. v. Commercial Union Insurance Co. (1983), 118 Ill. App. 3d 844, 854, 455 N.E.2d 545, 552.) Defendant argues that at all times prior to entry of judgment there existed a genuine dispute between the parties concerning damages and the 15% deductible, and as such the amount due was not readily ascertainable before judgment. However, given the findings of the jury on counts I and II and the wording of the trial court in awarding the prejudgment interest, we find that logic dictates that both the jury and the judge believed the amount due was in fact readily ascertainable, that there was no genuine dispute, and that but for the “unreasonable and vexatious” behavior of the defendant the sum due was subject to easy determination. Unlike Marvel, defendant in the instant case did not contest that plaintiffs were due an award of damages. The issue was not the amount due, but rather which method of calculation, plaintiffs’ or defendant’s, was proper. Once the method was decided, the sum due was subject to easy determination by the court, according to an agreement by the parties. Normally a genuine dispute concerning damages would negate prejudgment interest. However, in this case there was not so much a genuine dispute as there was a denial by defendant of the validity of plaintiffs’ method. Such a situation is more comparable to a total denial of liability on the part of defendants (for purposes of determining prejudgment interest) than an honest dispute as to the amount owed. In other words, the defendants gave the jury only two choices rather than an array, and the jury sided with the plaintiffs. With the defendant’s actions then being found to be unreasonable and vexatious, the application of a prejudgment interest became proper. To hold otherwise would allow the defendant to profit from its capricious acts.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

GOLDENHERSH, P.J., and RARICK, J., concur.


author: JUSTICE WILLIAM A. LEWIS

text:
    GEORGE R. RIPPLINGER, SR., et al., Plaintiffs-Appellants, v. JAMES QUIGLEY et al., Defendants-Appellees.
    Fifth District
    No. 5—91—0070
    Opinion filed August 3, 1992.
    George R. Ripplinger, Jr., of Ripplinger, Dixon & Johnston, of Belleville, for appellants.
    Clark H. Cole and Andrew B. Mayfield, both of Armstrong, Teasdale, Schlafly & Davis, of St. Louis, Missouri, for appellees.
   JUSTICE WILLIAM A. LEWIS

delivered the opinion of the court:

Plaintiffs appeal from the dismissal, for lack of jurisdiction, of their motion to reinstate a civil suit. The complaint for property damage and personal injuries arising out of an automobile collision was filed on July 10, 1990, and a settlement was apparently reached between plaintiffs and the claims adjuster for defendants’ insurance company. On August 23, 1990, an order of dismissal was entered by the trial court finding that “the foregoing cause of action has been fully compromised, settled and released, and the same is hereby dismissed, with prejudice as to the above-named defendants only.”

Plaintiffs thereafter filed a motion to reinstate alleging that the claims adjuster had agreed to send checks for the personal injuries to the plaintiffs and a check for $10,282.48 to plaintiff George Ripplinger’s insurance company for the damage to the vehicle. Plaintiffs received their checks for the personal injuries, but plaintiff’s insurance company did not receive anything for the property damage. Plaintiffs claim that the insurance adjuster repudiated the settlement agreement, which defendants deny.

Plaintiffs’ motion to reinstate was granted ex parte and the order of August 23, 1990, was vacated. The defendants, at different times, filed special appearances pursuant to section 2 — 301 of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 301), “objecting to jurisdiction over said defendants on the ground that this lawsuit was voluntarily dismissed August 23, 1990, and cannot be validly ‘reinstated.’ ” The trial judge dismissed plaintiffs’ motion to reinstate as to defendants L & H Market and Lucky Trading on November 13, 1990, saying “Defendants’ Motion to Dismiss granted/ Plaintiff may re-file [sic] a seperate [sic] cause to address the issues as raised in plaintiff’s motion to re-instate [sic].” The trial judge further dismissed plaintiffs’ motion to reinstate against James Quigley saying: “Defendant!] has specially entered an appearance for James Quigley; Defendant and Plaintiff agree said motion; Defendant Motion is well taken; see order of November 13, 1990. Plaintiff may re-file [sic] a seperate [sic] cause as Weisguth described.”

We disagree with the trial court.

Defendants filed special appearances in accordance with section 2 — 301 challenging only jurisdiction and not the validity of plaintiffs’ motion to reinstate. By doing so, defendants did not submit to jurisdiction. (See J.C. Penney Co. v. West (1983), 114 Ill. App. 3d 644, 449 N.E.2d 188.) Even though the trial court’s order of dismissal of plaintiffs’ motion to reinstate stated “defendants’ motion to dismiss granted,” we construe that order to mean that defendants’ special appearances objecting to the jurisdiction over defendants were sustained. Both sides agree that the sole issue involves jurisdiction and not the merits of plaintiffs’ motion to reinstate.

The importance of this case lies in the clash between common law principles versus the Civil Practice Law, most specifically section 2— 1203. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1203.) There are, in addition to section 2 — 1203, three other sections of the Code of Civil Procedure that pertain to voluntary dismissals, namely: 2 — 1009, 2 — 1401, and 13 — 217. Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 1009, 2 — 1401, 13-217.

Section 2 — 1203 states in part:

“Motions after judgment in non-jury cases, (a) In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for some other relief.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1203(a).)

The issue in this case is whether section 2 — 1203 gives the trial court jurisdiction to hear a motion to reinstate a cause that was voluntarily dismissed with prejudice at the request of the plaintiff pursuant to a settlement.

Defendants cite four cases as authority for the rule that the court loses jurisdiction and cannot reinstate a voluntary dismissal by a plaintiff with prejudice, namely: Weisguth v. Supreme Tribe of Ben Hur (1916), 272 Ill. 541, 112 N.E. 350; Bettenhausen v. Guenther (1944), 388 Ill. 487, 58 N.E.2d 550; Village of Arlington Heights v. American National Bank & Trust Co. (1979), 72 Ill. App. 3d 744, 391 N.E.2d 108; and Howard v. Francis (1990), 204 Ill. App. 3d 722, 562 N.E.2d 599. All of these cases were decided on the common law, and none of them discuss the Civil Practice Law or the common law being an exception to the Civil Practice Law. (The second issue in Howard does address refiling under section 13 — 217.) In fact, the Code of Civil Procedure provides in section 1 — 108(c) that the common law prevails only “[a]s to all matters not regulated by statute or rules of court.” Ill. Rev. Stat. 1989, ch. 110, par. 1 — 108(c).

In Weisguth, the plaintiff moved for a nonsuit at the close of his evidence in order to prevent the court from giving a peremptory instruction to the jury to find for the defendant. The plaintiff moved to reinstate the case and it was tried again. A new trial was granted for some unknown reason and the case was tried a third time. The supreme court, in discussing the issue of reinstatement of the cause, said:

“In case of a voluntary non-suit upon motion of a plaintiff the court has no power to set aside the order of dismissal and reinstate the cause unless at the time the non-suit is taken leave is given the plaintiff to move to set it aside. [Citations.] The reason for this rule is apparent. If a plaintiff by his deliberate and voluntary act secures the dismissal of his suit he must be held to have anticipated the effect and necessary results of this action and should not be restored to the position and the rights which he voluntarily abandoned. Having taken a non-suit, his only recourse is to begin his action anew.” Weisguth, 272 Ill. at 543, 112 N.E. at 351.

It is interesting to note that the above, often-quoted language in Weisguth, is dicta, since the defendant was held to have forfeited his right to complain, because he appeared in the subsequent reinstated case without objecting. If the supreme court had intended by its dicta that the trial court did not have jurisdiction, then any order entered by the trial court would have been void and subject to attack at anytime. Further, since the plaintiff took a nonsuit, the court indicated that the plaintiff could have begun his original action anew, which is now covered by section 2 — 1009. Ill. Rev. Stat. 1989, ch. 110, par. 2— 1009.

In the present case, however, plaintiffs could not begin their original action anew, because it was dismissed with prejudice and, supposedly, superseded by the settlement agreement. Plaintiffs may not even be able to sue defendants for breach of the settlement, if defendants had not authorized their insurance company’s adjuster to enter into a binding contract on their behalf. See Hopkins v. Holt (1990), 194 Ill. App. 3d 788, 551 N.E.2d 400 (where the plaintiff unsuccessfully requested a declaratory judgment against the defendant for breach of the settlement contract and the court held that the defendant was not bound by the agreement of his lawyer of record hired by his insurance company).

The dicta of Weisguth was followed by the supreme court in Bettenhausen v. Guenther (1944), 388 Ill. 487, 58 N.E.2d 550, where petitioners in a suit to establish a drainage district requested a nonsuit after several petitioners withdrew their names from the petition leaving fewer petitioners than required by law to establish a district. The supreme court held that the parties were out of court, but the court did show some uncertainty by saying:

“No motion was made at that time and no leave was either asked or granted to file a motion to set aside the order of dismissal. *** The motion filed on February 7, 1944, was made by petitioners, not to set aside the order of dismissal, but ‘that leave be granted for the withdrawal of the oral motion or motions’ made in the cause on January 28, 1944. The cause having been voluntarily dismissed on January 28, on motion of petitioners, obviously, the court was without jurisdiction on February 7 to entertain the motion for leave to withdraw the motion to dismiss.” (Emphasis added.) (Bettenhausen, 388 Ill. at 490, 58 N.E.2d at 552.)

It would appear that the supreme court did not entirely preclude a motion to set aside the order of dismissal. More importantly the supreme court did not mention any statutory right to seek relief from judgments in nonjury cases.

In Village of Arlington Heights v. American National Bank & Trust Co. (1979), 72 Ill. App. 3d 744, 391 N.E.2d 108, the city sued to compel demolition of buildings. A mechanic's lienholder was made a defendant, and the city voluntarily dismissed with prejudice against the lienholder. A trial was held, and a receiver was appointed to complete the construction of the partially completed buildings. The receiver then moved to rejoin the mechanic’s lienholder. The appellate court applied the Weisguth dicta but cited its own contradictory ruling in Nashlund v. Sabade (1976), 39 Ill. App. 3d 139, 350 N.E.2d 90, which held that the trial court had jurisdiction under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 72) (now Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1401) to vacate a voluntary dismissal order, when the trial court found that dismissal was not a voluntary nonsuit but an agreed-upon dismissal. (Nashlund, 39 Ill. App. 3d at 145, 350 N.E.2d at 95.) The Arlington Heights court further stated that, “[i]t [the Weisguth dicta] has not been abrogated by any provision of the Civil Practice Act including section 11 — 31—2 [of the Illinois Municipal Code] (Ill. Rev. Stat. 1977, ch. 24, par. 11 — 31—2) upon which the trial court relied in rejoining defendant Paschen to the lawsuit.” (Village of Arlington Heights, 72 Ill. App. 3d at 746, 391 N.E.2d at 110.) Apparently the court overlooked sections 68.3 and 72 (Ill. Rev. Stat. 1979, ch. 110, pars. 68.3, 72) (the predecessors to sections 2 — 1203 and 2 — 1401).

Finally, defendants cite Howard v. Francis (1990), 204 Ill. App. 3d 722, 562 N.E.2d 599, appeal denied (1991), 137 Ill. 2d 665, 571 N.E.2d 148, vacated (1991), 139 Ill. 2d 596, 582 N.E.2d 685, appeal denied (1991), 142 Ill. 2d 654, 584 N.E.2d 129, as more recent authority upholding Weisguth. This case involved a plaintiff’s counsel who apparently could not get ready for trial 11 times, so he finally took a nonsuit. Plaintiff then refiled, and after being unready to go to trial on five more settings, he took another nonsuit over the defendants’ objections. Plaintiff then moved to vacate the second voluntary dismissal and additionally filed a third action. The court cited Weisguth in a short paragraph as one of the reasons for ruling that the trial court did not have the power to vacate its second order of dismissal. The court, however, specifically pointed out that the dismissal was over the defendants’ objection. (Howard, 204 Ill. App. 3d at 724, 562 N.E.2d at 600.) Further, the court did not mention or discuss section 2-1203.

Some courts began to circumvent the severity of the strict application of the Weisguth dicta in the 1970’s. Nashlund v. Sabade (1976), 39 Ill. App. 3d 139, 350 N.E.2d 90, has already been mentioned. When the issue arose before this court in Weilmuenster v. H.H. Hall Construction Co. (1979), 72 Ill. App. 3d 101, 390 N.E.2d 579, the “jurisdictional” question was considered at length. In Weilmuenster, defendants brought a third-party complaint against Illinois Ben Hur Construction Company, which then filed a motion to sever. Plaintiff objected and the motion was denied. Defendants’ oral motion to dismiss their third-party complaint without prejudice was granted. The motion and order were later reduced to writing, and the order was signed by the third-party plaintiff and defendant “by agreement.” A trial was held and a verdict rendered against defendants. Within 30 days after the dismissal of the third-party complaint, defendant filed a motion to reinstate and to set aside the order of dismissal. The trial court ruled that it had jurisdiction even though there was no request for leave to move to set aside the dismissal and reinstate the third-party complaint. The trial court also did not require the third-party plaintiffs to file a new cause. We affirmed the trial court.

This court stated in Weilmuenster:

“In passing, we question those cases which hold under Weisguth that a court is deprived of ‘jurisdiction’ to reinstate a voluntary dismissal filed within 30 days where plaintiff did not obtain leave of court to reinstate. The rationale expressed in Weisguth was that one should not be restored to the position and rights he voluntarily abandoned. One court has stated an individual is therefore ‘equitably estopped’ from reinstating a cause. (Miller v. Bloomberg, 60 Ill. App. 3d 362, 376 N.E.2d 748 (1978).) In light of the 1970 Constitution, Supreme Court Rules and statutes, perhaps waiver, estoppel or terms of similar import may be the proper nomenclature to describe a case rule which prohibits one from being restored to a position he has abandoned.” (Weilmuenster, 72 Ill. App. 3d at 107, 390 N.E.2d at 583.)

This court also stated that “[w]e view this agreed-upon dismissal inapposite to Weisguth” (Weilmuenster, 72 Ill. App. 3d at 105, 390 N.E.2d at 582). Contrary to the facts in Weilmuenster and the present case, in Weisguth, Bettenhausen, and Howard, the plaintiff took a nonsuit either without the consent of the defendant or over defendant’s objection.

This court next considered the “jurisdictional” question in Douglas v. Walter (1986), 147 Ill. App. 3d 1070, 498 N.E.2d 913. In Douglas, plaintiff filed motions with proposed orders to voluntarily dismiss his cases with prejudice. The court granted the motions. Plaintiff, within 30 days of the orders of dismissal, filed motions to modify the orders of voluntary dismissal to show that the dismissals should have been without prejudice, but because of clerical error, the dismissals had been made with prejudice. The trial court denied the motions, stating that it was “without power to grant plaintiff’s motions.” This court reversed the trial court and said:

“Accordingly, we conclude that the trial court erred in holding under Weisguth that it lacked the power to modify its original orders of voluntary dismissal on plaintiff’s motions to specify that the dismissals were without prejudice.” Douglas, 147 Ill. App. 3d at 1074, 498 N.E.2d at 916.

We pointed out in Douglas that if the motion to modify were granted, then the underlying case was still dismissed and that the plaintiff would have to file anew. This court, however, as part of its rationale stated:

“A voluntary dismissal with prejudice is tantamount to an adjudication on the merits. (Village of Arlington Heights v. American National Bank & Trust Co. (1979), 72 Ill. App. 3d 744, 746, 391 N.E.2d 108, 110.) A plaintiff who takes such a dismissal is therefore forever barred from refiling his cause. If the Weisguth rule were applied under these circumstances, a plaintiff would have no redress even where, because of fraud by the defendant, excusable neglect, or for other reasons discovered by plaintiff at the time of dismissal order but not apparent on the record and unknown to the court, allowing the dismissal to stand would be fundamentally unfair.” Douglas, 147 Ill. App. 3d at 1073-74, 498 N.E.2d at 916.

More recently, the courts have been concerned with agreed-upon dismissals pursuant to settlements. In Brigando v. Republic Steel Corp. (1989), 180 Ill. App. 3d 1016, 536 N.E.2d 778, which involved a defendant taking bankruptcy after settlement, the court held that 30 days after an order of dismissal pursuant to a settlement agreement was filed, the trial court lost jurisdiction to amend, modify, rehear, retry, vacate, or grant other relief of a similar nature from the final judgment. The court, however, indicated that there would not have been a problem in vacating the order of dismissal within 30 days after rendition of a judgment, or even after 30 days if the requirements of section 2 — 1401 were met, except that plaintiff took a contradictory position by moving to “enforce” the settlement agreement along with seeking reinstatement of his suit. The court even went so far as to specifically note that plaintiff did not pursue the denial of his motion to vacate the order of dismissal on appeal.

The same appellate court as in Brigcmdo recently reaffirmed its position on accepting jurisdiction in dismissals with a settlement or agreed-upon dismissals in Hopkins v. Holt (1990), 194 Ill. App. 3d 788, 551 N.E.2d 400. (See also Lofendo v. Ozog (1983), 118 Ill. App. 3d 237, 454 N.E.2d 806; Johnson v. United National Industries, Inc. (1984), 126 Ill. App. 3d 181, 466 N.E.2d 1177; Kalalinick v. Knoll (1981), 97 Ill. App. 3d 660, 422 N.E.2d 1011.) The plaintiff in Hopkins dismissed his medical malpractice claim against his doctor after settling with the doctor’s insurance attorney. The insurance company then took bankruptcy, and the plaintiff lost his declaratory-motion suit to make the doctor pay under the settlement agreement, because the doctor had not agreed to the settlement. The court held that the plaintiff could obtain relief under section 2 — 1401, by vacating a dismissal, if a settlement agreement was materially breached by nonpayment of the consideration. The court never mentioned Weisguth or its own holding in Village of Arlington Heights v. American National Bank & Trust Co. (1979), 72 Ill. App. 3d 744, 391 N.E.2d 108.

Many persons could be misled into believing, as counsel in this case did, that plaintiffs could bring suits against the defendants for breach of contract, if defendants renege on settlement agreements. In City of Des Plaines v. Scientific Machinery Movers, Inc. (1972), 9 Ill. App. 3d 438, 292 N.E.2d 154, the court pointed out that it is “the established rule of law that an attorney employed to defend a suit has no authority to compromise, to give up any right of his client, or to consent to judgment against his client without the express consent or authorization of that client.” (Des Plaines, 9 Ill. App. 3d at 444, 292 N.E.2d at 158.) Not only will a plaintiff lose his right to sue a defendant, but a plaintiff might even lose the right to sue a defendant’s insurance company if the plaintiff cannot show that the defense lawyer or insurance adjuster had express authorization or consent from the insurance company to settle. The dicta of Weisguth creates an ambush for the unwary plaintiff.

It is the policy of the courts to encourage parties to settle their disputes. We must be extremely careful not to create a major obstacle to this policy that will make plaintiffs unwilling to dismiss their cause pursuant to a settlement agreement lest they be left without a remedy or the remedy provided by law is inadequate, too costly, or too risky, if the settlement collapses. The plaintiff normally settles for less than he is asking because he obtains, or so he believes, an assured amount or result. If we ignore the Civil Practice Law and apply the harsh dicta of Weisguth, there will continue to be an element of uncertainty for plaintiffs in every settlement that requires a dismissal of the underlying suit. Application of section 2 — 1203 removes that uncertainty.

If the parties have reached a settlement and the suit is dismissed pursuant to the agreement, it would appear to be a better policy for the parties to return to the same court in order to work out any disagreement over the settlement. Most misunderstandings would be resolved. If we force the parties to file a new suit over the settlement agreement, then we will be causing the parties to hire new attorneys (the original attorneys having become witnesses to the alleged contract) and incur additional expenses of discovery, and we will probably be generating more suits for malpractice. Further, we will be forcing the plaintiff to forgo a valuable contract remedy of rescission and return to the status quo, if the defendant has materially breached the agreement. See Haisma v. Edgar (1991), 218 Ill. App. 3d 78, 578 N.E.2d 163.

The words or phrases, “with prejudice” and “without prejudice,” along with the Weisguth rule, are relics of the past and are super-ceded by sections 2 — 1009, 2 — 1203, 2 — 1401 and 13 — 217, which specifically cover dismissals and final orders. (See Kalalinick v. Knoll (1981), 97 Ill. App. 3d 660, 422 N.E.2d 1011, (where the court held that Supreme Court Rule 304(a) overturns the Weisguth rule to the extent that that rule has been applied to cases involving multiple issues or parties).) The Civil Practice Law, not the common law, is intended to regulate these matters. There is no reason to continue common law technical exceptions to these statutes based upon the dicta of a 76-year-old case. To do so may be fundamentally unfair to a party, discourage settlements of lawsuits, and promote further lawsuits.

We hold, therefore, that the trial court does have jurisdiction over the motion to reinstate and to vacate the order of dismissal. We are not passing any judgment on the merits of plaintiffs’ motion to reinstate.

Reversed and remanded.

H. LEWIS and SHONKWILER, JJ., concur.


author: JUSTICE CHAPMAN PRESIDING JUSTICE GOLDENHERSH,

text:
    LINDA GEBELEIN et al., Plaintiffs-Appellees, v. IRVIN H. BLUMFIELD, Defendant-Appellant.
    Fifth District
    No. 5—90—0675
    Opinion filed August 4, 1992.
    GOLDENHERSH, P. J., concurring in part and dissenting in part.

      Hinshaw & Culbertson, of Chicago (D. Kendall Griffith, Robert W. Schmieder, and Terrence K. McGrath, of counsel), for appellant.
    Rosemary D. McGuire, of Brennan, Cates & Constance, of Belleville, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Defendant, Dr. Irvin H. Blumfield, appeals from a judgment entered by the circuit court of Madison County ordering him to pay plaintiffs, Linda Gebelein and John Gebelein, $523.60 for litigation costs they incurred prior to reaching a settlement with defendant. The sole issue before us is whether the trial court properly taxed as costs to defendant the expenses of a deposition taken by plaintiffs and plaintiffs’ filing and service fees where the parties reached a settlement agreement prior to judgment. We reverse.

On August 14, 1985, plaintiffs filed a complaint alleging defendant negligently performed a hysterectomy procedure and caused injury to plaintiffs. During the discovery process defendant deposed Dr. Nicholas Criares, plaintiffs’ expert witness on the standard of care, in Newark, New Jersey. Plaintiffs subsequently took Dr. Criares’ evidence deposition for use at trial.

The trial court gave the case a trial date of August 6, 1990. On that day a jury was impaneled and the parties negotiated a settlement which resolved all issues except taxable costs. Although the terms of the settlement agreement are not set forth in the record, the parties agreed that the plaintiffs would file a motion for costs.

Plaintiffs’ motion sought $116.20 for filing and service fees and $407.40 for fees arising from Dr. Criares’ evidence deposition. Defendant did not object to plaintiffs’ motion, and the court granted the motion on August 20, 1990. Defendant then filed a motion to reconsider and contended the court was without authority to tax such costs. The trial court denied defendant’s motion to reconsider, and it is from the orders granting plaintiffs’ motion for costs and denying defendant’s motion to reconsider that defendant appeals.

At common law, a successful litigant was not entitled to recover from his opponent the costs and expenses of litigation. The allowance and recovery of costs is entirely dependent on statutory authorization. (Galowich v. Beech Aircraft Corp. (1982), 92 Ill. 2d 157, 162, 441 N.E.2d 318, 320; Ritter v. Ritter (1943), 381 Ill. 549, 552, 46 N.E .2d 41, 43.) While the power to impose costs must ultimately be found in some statute, the General Assembly may grant the power in general terms to the courts, which may in turn make rules or orders under which costs may be taxed and imposed. (Galowich, 92 Ill. 2d at 162, 441 N.E.2d at 320; Wintersteen v. National Cooperage & Woodenware Co. (1935), 361 Ill. 95, 108, 197 N.E. 578, 585.) Therefore, we must look to the statutes to determine whether the trial court was authorized, expressly or impliedly, to tax defendant with costs.

Defendant argues that the trial court erroneously awarded plaintiffs $116.20 for the cost of filing their suit and serving defendant with summons because there is no statutory authority for the court to do so when the parties reach a settlement agreement before trial. Plaintiffs contend that section 5 — 108 of the Code of Civil Procedure (the Code) authorizes the court to award such costs:

“§5 — 108. Plaintiff to recover costs. If any person sues in any court of this state in any action for damages personal to the plaintiff, and recovers in such action, then judgment shall be entered in favor of the plaintiff to recover costs against the defendant, to be taxed, and the same shall be recovered and enforced as other judgments for the payment of money, except in the cases hereinafter provided.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 5 — 108.)

Plaintiffs assert that pursuant to section 5 — 108, the trial court is given authority by the General Assembly to tax costs in situations where a plaintiff recovers. Plaintiffs further suggest that a settlement between the parties constitutes a recovery for plaintiffs, and therefore it follows that the trial court has express authority by virtue of a legislative act to award costs in a settlement situation. Defendant disputes plaintiffs’ interpretation of the word “recover,” stating that section 5 — 108 allows for a plaintiff to receive costs only when a judgment is entered in his or her favor. Neither party advances any support for its construction of the word “recover” as it applies to section 5 — 108 of the Code. We must determine whether “recovers,” as used in section 5 — 108, refers only to judgments, or whether it includes settlement agreements whereby a plaintiff receives payment from a defendant in settlement prior to judgment.

The primary rule of statutory construction is that the court must ascertain and give effect to the intent of the legislature. (People v. Robinson (1982), 89 Ill. 2d 469, 433 N.E.2d 674.) When construing a statute, the court should look first to the language of the statute (Robinson, 89 Ill. 2d at 475, 433 N.E.2d at 674), giving the terms of the statute their plain and ordinary meaning (People v. Steppan (1985), 105 Ill. 2d 310, 317, 473 N.E.2d 1300, 1303-04.) When a statutory term is undefined, that term must be given its ordinary and popularly understood meaning. Union Electric Co. v. Department of Revenue (1990), 136 Ill. 2d 385, 397, 556 N.E.2d 236, 241.

Webster’s Third New International Dictionary 1898 (1986) defines “recover” as follows: “[T]o gain by legal process.” “Recovery” has also been defined as:

“[T]he restoration or vindication of a right existing in a person, by the formal judgment or decree of a competent court, at his instance and suit, or the obtaining, by such judgment, of some right or property which has been taken or withheld from him. ***
The obtaining of a thing by the judgment of a court, as the result of an action brought for that purpose. The amount finally collected, or the amount of judgment.” (Emphasis added.) (Black’s Law Dictionary 1147 (5th ed. 1979).)

The word “recover” is given the following meaning in Black’s Law Dictionary:

“To get or obtain again, to collect, to get renewed possession of; to win back. *** In a narrower sense, to be successful in a suit, to collect or obtain amount, to have judgment, to obtain a favorable or final judgment, to obtain in any legal manner in contrast to voluntary payment.” (Emphasis added.) Black’s Law Dictionary 1147 (5th ed. 1979).

We conclude that the plaintiffs did not meet the statutory requirements to recover the costs of filing and service fees under section 5 — 108. In this case the parties settled all issues except that of taxable costs. The policy in this State is to encourage settlements, and that includes settlement of substantive issues of the case as well as disputes over costs. While the plaintiff has no right to recover costs when the underlying case is settled, the parties can obviously negotiate for the payment if they choose to do so. If no amicable resolution of the cost issue is possible, the plaintiff is not entitled to costs unless a judgment is returned in his or her favor.

We now address whether the trial court had the authority to tax defendant for costs of an evidence deposition taken of plaintiffs’ expert witness. Plaintiffs filed their motion for costs under Supreme Court Rule 208(d) (134 Ill. 2d R. 208(d)) which must be construed in conjunction with Rule 208(a):

“(a) Who Shall Pay. The party at whose instance the deposition is taken shall pay the fees of the witness and of the officer and the charges of the recorder or stenographer for attending. The party at whose request a deposition is transcribed and filed shall pay the charges for transcription and filing. ***
* * *
(d) Taxing as Costs. The aforesaid fees and charges may in the discretion of the trial court be taxed as costs.” (134 Ill. 2d R. 208.)

Defendant argues that Rule 208 does not provide for deposition costs to be taxed to either party where a settlement agreement has been reached, and the trial court erred in doing so in this case. Both parties direct us to Galowich v. Beech Aircraft Corp. (1982), 92 Ill. 2d 157, 441 N.E.2d 318, in which our supreme court addressed Rule 208. In Galowich, the plaintiffs moved for a continuance to conduct additional discovery, but the motion was denied. The plaintiffs then moved for voluntary dismissal pursuant to section 52 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 52) indicating an intention to refile pursuant to section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a) (now part of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 217)). The defendants requested that the trial court tax the plaintiffs with the defendants’ deposition expenses. The trial court denied the defendants’ motion, but the appellate court reversed, holding that Supreme Court Rule 208(d) authorizes the trial court, in its discretion, to tax as costs those expenses incurred in taking depositions when a plaintiff moves for voluntary dismissal pursuant to section 52. (Galowich v. Beech Aircraft Corp. (1981), 93 Ill. App. 3d 690, 417 N.E.2d 673.) The supreme court held that Rule 208(d) authorizes “the trial court to tax as costs, in its discretion, the expenses only of those depositions necessarily used at trial." (Emphasis added.) (Galowich, 92 Ill. 2d at 166, 441 N.E.2d at 322; see also In re Petition of the Village of Kildeer (1989), 191 Ill. App. 3d 713, 548 N.E.2d 654.) The court stated that the test for when the expense of a deposition is taxable as costs is the deposition’s necessary use at trial. Galowich, 92 Ill. 2d at 167, 441 N.E.2d at 322.

The supreme court in Galowich held that Ride 208(d) cannot be authority for the assessment of a defendant’s deposition expenses against a plaintiff who voluntarily dismisses his case before trial. (92 Ill. 2d at 167, 441 N.E.2d at 322.) The court reasoned that “[c]osts are allowances in the nature of incidental damages awarded by law to reimburse the prevailing party” (emphasis added) (92 Ill. 2d at 165, 441 N.E.2d at 321), and that to assess as costs the defendant’s deposition expenses against a plaintiff who voluntarily dismisses his case before trial would present serious practical problems which would require the trial court to try the case hypothetically in an attempt to determine which depositions would necessarily be used (92 Ill. 2d at 167, 441 N.E.2d at 322). Although the instant case concerns a settlement prior to trial rather than a voluntary dismissal, we find the supreme court’s reasoning in Galowich applicable. The Criares’ deposition was not “necessarily used at trial.” The plaintiff voluntarily settled this case. Plaintiffs as well as defendants must bear the expense of depositions which they cause to be taken. (92 Ill. 2d at 168, 441 N.E.2d at 323.) We conclude that the trial court erred in ordering that the Criares’ deposition be taxed as a cost to the defendant.

Finally, plaintiffs request that defendant be taxed for costs of this appeal but cite no authority to support such a request. This request is denied.

For the foregoing reasons, the judgment of the circuit court of Madison County is reversed.

Reversed.

RARICK, J., concurs.

PRESIDING JUSTICE GOLDENHERSH,

concurring in part and dissenting in part:

I concur with the majority denying plaintiff’s request to tax deposition costs and the costs of this appeal. On the recovery of costs issue, I respectfully dissent.

In drafting section 5 — 108 of the Code, the General Assembly did not specify that recovery refers only to judgments by the trial court. And in common usage, the words “recover” and “recovery” are used to describe any benefits gained by a litigant, whether by judgment or settlement. Webster’s Third New International Dictionary 1898 (1986) defines “recover” as follows: “[T]o gain by legal process.” I interpret such a definition to encompass all proceeds received by a plaintiff as a result of pursuing a cause of action, including proceeds plaintiff may gain from a settlement agreement. I find further support for this position in section 14 of “An Act to revise the law in relation to attorneys and counselors” (the Act), which states in pertinent part:

“Attorneys at law shall have a lien upon all claims, demands and causes of action, including all claims for unliquidated damages, which may be placed in'their hands by their clients for suit or collection, or upon which suit or action has been instituted *** for the services of such attorneys rendered or to be rendered for their clients on account of such suits, claims, demands or causes of action. *** Such lien shall attach to any verdict, judgment or order entered and to any money or properly which may be recovered, on account of such suits, claims, demands or causes of action ***.” (Ill. Rev. Stat. 1985, ch. 13, par. 14.)

Our supreme court has held that money paid to a plaintiff in a personal injury action under a contract of settlement was “recovered” within the meaning of the Act. (Standidge v. Chicago Rys. Co. (1912), 254 Ill. 524, 98 N.E. 963.) In reaching that conclusion, the court determined that “[t]he language of the act under consideration clearly indicates that the word ‘recover’ is here used in the sense of receive.” (254 Ill. at 534, 98 N.E. at 966.) The language in section 5 — 108 of the Code of Civil Procedure similarly indicates that “recover” is used in the sense of receive. The word “judgment” is conspicuously absent from the language of section 5 — 108. If we exchange the word “recovers” for the phrase “receives compensation” or “retrieves damages,” the meaning of section 5 — 108 remains the same. In the present case, plaintiffs filed an action in this State for personal damages and received in excess of $45,000 from defendant by way of a settlement agreement. I would hold that plaintiffs thereby met the statutory requirements to recover costs of suit under section 5 — 108.


author: PRESIDING JUSTICE GOLDENHERSH

text:
    KENT D. GORDON et al., Plaintiffs-Appellants, v. THE COUNTY OF JACKSON, Defendant-Appellee.
    Fifth District
    No. 5—91—0122
    Opinion filed August 4, 1992.

      John P. Womick, of Womick & Associates, Chartered, of Carbondale, for appellants.
    Thomas E. Jones and Leslie G. Offergeld, both of Walker & Williams, P.C., of Belleville, for appellee.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiffs, Kent D. Gordon (hereinafter plaintiff) and Tamera D. Gordon, filed this interlocutory appeal in response to an order of the circuit court of Jackson County dismissing two counts of negligence against defendant, the County of Jackson, based on the special-duty exception to the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 101 et seq.). The issue before this court is whether the trial court erred in finding that a special relationship did not exist between plaintiff and a Jackson County police officer when plaintiff received injuries while rescuing the officer. We reverse and remand.

On August 1, 1989, Sergeant David W. Allen, employed by the Jackson County sheriff’s department, was dispatched to the Newhill Liquor Store to investigate a subject acting in an unusual manner. Upon arrival at the liquor store, Sergeant Allen recognized Frank Falkenbury, a man he knew to have been involved in at least two altercations with other police officers and several violent domestic disputes with his wife. Allen reached the opinion that Falkenbury was intoxicated. While talking to Falkenbury, Allen received a radio dispatch stating that Falkenbury’s wife was in the hospital after receiving a blow to the head with a hammer, inflicted by her husband. Subsequently, Allen took Falkenbury to the hospital to question Mrs. Falkenbury about the incident. At the hospital, Allen left Falkenbury unrestrained and unattended in the waiting room while Allen spoke to Mrs. Falkenbury. Falkenbury disregarded Allen’s instructions to stay in the waiting area, entered the room where Allen was questioning Mrs. Falkenbury, and began using loud, abusive and profane language and exhibiting threatening behavior. Allen escorted Falkenbury back to the waiting room adjacent to the radiology department where plaintiff was employed as a radiology technician. In the waiting room, Allen informed Falkenbury that he was under arrest, and Falkenbury resisted, at which time Allen called for backup. Immediately thereafter, Falkenbury pushed Allen and a fight ensued. Plaintiff heard the disturbance in the waiting room and observed that Allen was losing the fight. Plaintiff also observed that Allen was in danger of losing possession of his weapon, so he came forward to assist the officer. During the fight, plaintiff suffered a broken leg. Plaintiffs filed a four-count complaint, with counts I and II based on the special-duty exception to the Act and negligence and counts III and IV based on wilful and wanton conduct. The trial court dismissed with prejudice counts I and II pursuant to section 2 — 615 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) after reviewing the depositions of Sergeant Allen and plaintiff, finding that plaintiff could not plead sufficient facts to meet the fourth element of the “special duty” exception test. The fourth element requires that the injury must have occurred while plaintiff was under the direct and immediate control of Sergeant Allen.

Defendant relies on the special-duty exception to the Act as the basis for this appeal. The special-duty doctrine is a common law exception which Illinois courts have invoked in two basic factual sitúations. The first is where a plaintiff sues a municipality for failure to enforce a law or ordinance. The second is where a plaintiff sues a municipality for injuries negligently caused by police officers or firefighters performing their official duties. In both situations, the common law rule exempts municipalities and their employees from tort liability unless plaintiffs can show that the municipalities owe them a special duty that is different from its duty to the general public. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 508, 565 N.E.2d 654, 658.) A special relationship is created when circumstances are such that it becomes the duty of the municipality or public official to act on behalf of a specific individual, as opposed to the public at large. (139 Ill. 2d at 508, 565 N.E.2d at 658.) In such a case, the negligent failure to carry out the special duty is actionable. (139 Ill. 2d at 508, 565 N.E.2d at 658.) There are four elements which a plaintiff must prove to establish such a duty:

“ ‘ “(1) the municipality must be uniquely aware of the particular danger or risk to which the plaintiff is exposed [citation];
(2) there must be allegations of specific acts or omissions on the part of the municipality [citation];
(3) the specific acts or omissions *** must be either affirmative or wilful in nature [citation]; and
(4) the injury must occur while the plaintiff is under the direct and immediate control of employees or agents of the municipality [citation].” Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967, 970[, 414 N.E.2d 104].’ Fryman [v. JMK/Skewer, Inc. (1985)], 137 Ill. App. 3d [611,] 617[, 484 N.E.2d 909].” Burdinie, 139 Ill. 2d at 508, 565 N.E.2d at 659.

In the present case, pursuant to section 2 — 615 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), the trial court dismissed the counts alleging defendant owed plaintiff a special duty. It is well settled that 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 plaintiffs to recover. (Ogle v. Fuiten (1984), 102 Ill. 2d 356, 466 N.E.2d 224.) Therefore, we must look to the pleadings to determine whether plaintiffs alleged facts sufficient to prove a special duty existed between Sergeant Allen and plaintiff.

Plaintiffs allege that Sergeant Allen knew Falkenbury, knew of his propensity to resist arrest, knew he was violent and aggressive by reputation, knew or believed he was drunk, knew that he had been accused of battering his wife, and, with this knowledge took Falkenbury to the hospital to confront his wife. Plaintiffs further allege that an altercation occurred at the hospital, Sergeant Allen radioed for help, Allen was in danger of losing control of his weapon, plaintiff came to Allen’s aid, and while assisting Allen, plaintiff suffered a broken leg.

Defendant concedes that the first three prongs of the special-duty-exception test have been met and argues only that plaintiffs failed to meet the fourth prong, which requires that the injury occur while plaintiff is under the direct and immediate control of employees or agents of defendant. Therefore, we need only to address whether there are any facts as alleged by plaintiffs which, if proved, would show that plaintiff was under the direct and immediate control of Sergeant Allen when plaintiff was injured.

Plaintiffs argue that Sergeant Allen created a perilous situation by bringing Falkenbury to the hospital, knowing Falkenbury’s violent nature and state of intoxication. Further, plaintiffs argue that since plaintiff was put in a position of peril by Allen, a police officer, a special relationship existed between Allen and plaintiff sufficient to place plaintiff within Allen’s control. Therefore, plaintiffs assert that the fourth prong of the special relationship test has been satisfied. In support of this conclusion, plaintiffs cite Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 565 N.E.2d 654, in which our supreme court stated:

“[T]he fourth test requirement is met where the public employee creates a position of peril ultimately injurious to a plaintiff, as opposed to situations where a plaintiff merely seeks protection from the public employee that is not normally provided. (Anthony [v. City of Chicago (1988)], 168 Ill. App. 3d [733,] 737[, 523 N.E.2d 22]; Jackson [v. Chicago Firefighters Union, Local No. 2 (1987)], 160 Ill. App. 3d [975,] 982[, 513 N.E.2d 1002].) We interpret this to mean that the control element arises when the public employee initiates the circumstances which create the dangerous situation. Thus, where a police officer or firefighter initiates the dangerous situation without any suggestion from the plaintiff, it has been held that the plaintiff is under the control of the police or fire department. (Anthony, 168 Ill. App. 3d at 737; Brooks [v. Lundeen (1977)], 49 Ill. App. 3d [1,] 6-7, 364 N.E.2d 423; Gardner [v. Village of Chicago Ridge (1966)], 71 Ill. App. 2d [373,] 379[, 219 N.E.2d 147].)” (Emphasis added.) 139 Ill. 2d at 525-26, 565 N.E.2d at 667.

The supreme court’s definition of control applies to the present case. Sergeant Allen placed plaintiff in a position of peril by bringing a known aggressor into a volatile situation. Under the Burdinie definition of control, Sergeant Allen initiated the circumstances which created danger in plaintiff’s workplace, and plaintiff was injured as a result of Allen’s actions. Defendant argues that since plaintiff took it upon himself to intervene on behalf of Allen, without the police officer’s express request, a special relationship did not exist between the two men, and plaintiff was injured at his own risk. The Burdinie court stated:

“ ‘ “The [municipality] must protect those it throws into snake pits, but [it] need not guarantee that volunteer snake charmers will not be bitten.” ’ [Citations.]” (139 Ill. 2d at 526, 565 N.E.2d at 667.)

We find that in this case Sergeant Allen brought the snake pit to plaintiff. Therefore, we hold that plaintiffs have alleged facts sufficient to survive a section 2 — 615 motion to dismiss counts I and II of their second amended complaint based on the special-duty exception to the Act.

For the foregoing reasons, the order of the circuit court of Jackson County is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

CHAPMAN and RARICK, JJ., concur.