author: JUSTICE HOWERTON PRESIDING JUSTICE GOLDENHERSH,

text:
    CATHY FITZGERALD, Plaintiff-Appellant, v. PAUL L. PRATT et al., Defendants-Appellees.
    Fifth District
    No. 5-90-0017
    Opinion filed January 16, 1992.
    Rehearing denied February 24, 1992.

      GOLDENHERSH, P.J., concurring in part and dissenting in part.
    John D. Lynn, of St. Louis, Missouri, for appellant.
    Catalina M. Alvarez, of Clayton, Missouri, for appellees.
   JUSTICE HOWERTON

delivered the opinion of the court:

Plaintiff, Cathy Fitzgerald, sued defendants, Paul Pratt and Pratt & Callis, P.C., for sexual harassment, assault, and failure to provide a safe workplace. The circuit court dismissed the action ruling that section 5(a) of the Illinois Workers’ Compensation Act barred her claim. (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(a).) Plaintiff appealed. We affirm in part, reverse in part and remand for further proceedings.

Plaintiff worked as a secretary for Paul Pratt, P.C., from August 1978 until her termination in September 1984. In 1986, Paul Pratt, P.C., merged with another law firm to become Pratt & Callis, P.C. In 1988, plaintiff sued Paul Pratt and his current employer, Pratt & Callis, P.C. Count I of plaintiff’s complaint against Paul Pratt and Pratt & Callis, P.C., alleged intentional infliction of emotional distress from sexual harassment. Count II alleged assault against Paul Pratt and Pratt & Callis, P.C. Count III alleged that Pratt & Callis, P.C., as the successor corporation of Paul Pratt, P.C., failed to provide a safe workplace. Plaintiff alleged in each count that Paul Pratt, P.C., was Paul Pratt’s “alter ego” and, therefore, was liable for Paul Pratt’s intentional torts. Similarly, plaintiff alleged in each count that Pratt & Callis, P.C., the successor corporation of Paul Pratt, P.C., was liable for both Paul Pratt’s intentional torts and Paul Pratt, P.C.’s torts.

The two issues before this court are: (1) whether section 5(a) of the Illinois Workers’ Compensation Act bars plaintiff’s common law right of action against Paul Pratt and Pratt & Callis, P.C.; and (2) if section 5(a) does not bar the action, whether plaintiff can bring suit against Pratt & Callis, P.C., the successor corporation.

The Illinois Workers’ Compensation Act establishes a system of liability without fault where traditional common law defenses available to the employer are exchanged for the prohibition of common law suits against the employer. (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1958), 13 Ill. 2d 460, 150 N.E.2d 141; Jablonski v. Multack (1978), 63 Ill. App. 3d 908, 380 N.E.2d 924.) Section 5(a) of the Act provides an exclusive remedy to injured employees and “is part of the ‘quid pro quo’ in which the sacrifices and gains of the employees and employers are to some extent put in balance, for, while the employer assumes a new liability without fault, he is relieved of the prospect of large damage verdicts.” 2A A. Larson, The Law of Workmen’s Compensation §65.11 (1988).

The exclusive remedy provisions, sections 5(a) and 11 of the Illinois Workers’ Compensation Act, state in pertinent part:

“§5. (a) No common law or statutory right to recover damages from the employer *** or the agents or employees of [the employer] for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act ***.”
“§11. The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer engaged in any of the enterprises or businesses enumerated in Section 3 of this Act ***.” Ill. Rev. Stat. 1989, ch. 48, pars. 138.5(a), 138.11.

Employees are barred from suing their employer unless the employee proves that: (1) the injury was not accidental; (2) the injury did not arise from her employment; (3) the injury was not received during the course of employment; or (4) the injury was not compensable under the Act. Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 408 N.E.2d 198.

We address first whether plaintiff’s action against Paul Pratt, a coemployee, is barred by section 5(a) of the Act. It has long been the law in Illinois that section 5(a) bars claims against coemployees for negligence. (Jablonski v. Multack (1978), 63 Ill. App. 3d 908, 380 N.E.2d 924; Sjostrom v. Sproule (1965), 33 Ill. 2d 40, 210 N.E.2d 209.) Whether the same is true for intentional torts was first addressed by the Illinois Appellate Court in Jablonski v. Multack (1978), 63 Ill. App. 3d 908, 380 N.E.2d 924. There, the court held that “section 5(a) was not intended to be available to an employee who commits an intentional tort on a fellow worker.” (Jablonski, 63 Ill. App. 3d at 914, 380 N.E.2d at 928.) In other words, the purpose of the Act was not to permit one who intentionally assaults a coemployee at work to defend on the grounds that plaintiff’s sole remedy is workers’ compensation.

The Illinois Supreme Court in Meerbrey v. Marshall Field & Co. (1990), 139 Ill. 2d 455, 564 N.E.2d 1222, adopted the Jablonski rationale and held “that the exclusive remedy provisions of the Act do not bar employees from pursuing a common law action against co-employees for injuries arising out of intentional torts.” (Meerbrey, 139 Ill. 2d at 472, 564 N.E.2d at 1230.) The court reasoned that a “co-employee should not be permitted to assert that the plaintiff’s injuries were accidental and therefore barred under the exclusivity provisions of the Act, when he himself committed the intentional tort.” Meerbrey, 139 Ill. 2d at 472, 564 N.E.2d at 1230.

Defendant argues that Meerbrey is distinguishable from the case at bar and that the supreme court’s decision in Rodriguez v. Industrial Comm’n (1983), 95 Ill. 2d 166, 447 N.E.2d 186, controls this case. In Rodriguez, the supreme court ruled that petitioner, a Mexiean-American, was entitled to coverage under the Act for injuries he sustained when a coemployee struck him over the head with a two-by-four. The court, noting that the attack was motivated by racial and ethnic prejudice, reasoned that such injuries are a hazard of the workplace, especially in a society where employers are required by law to hire minorities. Thus, defendant argues that when the cause of the tension which resulted in the injury is a common hazard of the workplace, like race and ethnicity, the injured worker’s sole remedy is workers’ compensation. Defendant claims that Rodriguez controls this case because sex, like race and ethnicity, is a similar force of strife in the workplace. Defendant claims that Meerbrey, a case involving false imprisonment, does not deal with the type of injury that occurs due to strife in the workplace and thus does not apply to this case. We disagree.

In Rodriguez, the issue before the court was whether the injury was compensable under the Act, not whether a common law right of action against a coemployee tortfeasor was barred. Meerbrey, on the other hand, dealt specifically with whether section 5(a) of the Illinois Workers’ Compensation Act bars a common law cause of action against a coemployee for an intentional tort, which is precisely the issue in this case. Therefore, in light of the supreme court’s holding in Meerbrey, we reverse the circuit court’s dismissal as to Paul Pratt, the coemployee.

Next, we consider whether section 5(a) bars plaintiff’s action against Pratt & Callis, P.C. In Meerbrey, the supreme court held that section 5(a) will not bar a common law action against an employer for injuries the employer or its “alter ego” intentionally inflicted, commanded or expressly authorized. (Meerbrey, 139 Ill. 2d at 464, 564 N.E.2d at 1226, citing 2A A. Larson, Workmen’s Compensation §68.21 (1988).) Citing Jablonski, the court stated that the “employer should not be permitted to assert that the injury was ‘accidental,’ and therefore [barred] under the exclusive provisions of the Act, when he himself committed the act.” Meerbrey, 139 Ill. 2d at 464, 564 N.E.2d at 1226.

To plead a common law cause of action under the “alter ego” theory, plaintiff must allege that the employee is the “alter ego” of the employer. (See Collier, 81 Ill. 2d at 239, 408 N.E.2d 202; Jablonski, 63 Ill. App. 3d at 912, 380 N.E.2d at 927-28.) Plaintiff in the instant action has so pled, and since this appeal reviews the dismissal of this action on the pleadings, we must assume as true that Paul Pratt was the “alter ego” of Paul Pratt, P.C. See Johnson v. Federal Reserve Bank (1990), 199 Ill. App. 3d 427, 557 N.E.2d 328.

At issue here, however, is not whether section 5(a) bars plaintiff’s claim against Paul Pratt, P.C —Meerbrey answers that — but whether Pratt & Callis, P.C., the successor corporation of Paul Pratt, P.C., assumes liability for Paul Pratt’s intentional torts committed while employed by Paul Pratt, P.C. In other words, does a successor corporation assume liability for the intentional tort committed by the predecessor corporation’s employee, whose misconduct was not in furtherence of corporate business? We hold it does not.

Paul Pratt was the sole shareholder of Paul Pratt, P.C., a professional corporation organized under the Professional Service Corporation Act (Ill. Rev. Stat. 1989, ch. 32, par. 415 — 1 et seq.). Under Illinois law, a corporation is a legal entity separate and distinct from its shareholders, directors and officers. (Stap v. Chicago Aces Tennis Team, Inc. (1978), 63 Ill. App. 3d 23, 379 N.E.2d 1298.) Separate identities may be disregarded, however, in situations where it would otherwise pose an obstacle to the protection or enforcement of private or public rights. (Froehlich v. J.R. Froehlich Manufacturing Co. (1981), 93 Ill. App. 3d 179, 416 N.E.2d 1134.) This exception is codified in the Illinois Professional Service Corporation Act (Ill. Rev. Stat. 1989, ch. 32, par. 415 — 8), which states in pertinent part:

“Nothing contained in this Act shall be interpreted to abolish, repeal, modify restrict or limit the law now in effect in this State applicable to the professional relationship and liabilities between the person furnishing the professional services and the person receiving such professional service and to the standards of professional conduct. Any officer, shareholder, agent or employee of a corporation organized under this Act shall remain personally and fully liable and accountable for any negligent or wrongful acts or misconduct committed by him ***.”

In recognition of the exception, this statute prevents professionals organized under the Illinois Professional Service Corporation Act from avoiding malpractice liability by asserting that only the assets of the corporate entity can be reached.

Although lacking a statutory foundation, Illinois courts have applied the principles of this exception to workers’ compensation by judicially creating the “alter ego” theory. “Alter ego,” as applied to workers’ compensation law, prevents an employer and/or coemployee from asserting the exclusive remedy provision of the Act in cases where the employee tortfeasor acts as the “alter ego” of the employer. See Meerbrey, 139 Ill. 2d 455, 564 N.E.2d 1222; Jablonski, 63 Ill. App. 3d 908, 380 N.E.2d 924, citing 2A A. Larson, Workmen’s Compensation §68.11 (1988); see also Johnson v. Federal Reserve Bank (1990), 199 Ill. App. 3d 427, 557 N.E.2d 328.

It is clear that had plaintiff pled a cause of action against Paul Pratt, P.C., a common law cause of action would lie. But, in the instant case, Paul Pratt, P.C., merged with another firm forming Pratt & Callis, P.C., in 1986, two years after plaintiff stopped working for Paul Pratt, P.C., and two years prior to filing this suit. In an attempt to attach liability to Pratt & Callis, P.C., plaintiff pled the “alter ego” theory and combined it with the allegation that a successor corporation assumes the debts and liabilities of its predecessor. The section of the Illinois Business Corporation Act that deals with mergers and consolidations states:

“When such merger or consolidation has been effected:
* * *
(5) Such surviving or new corporation shall thenceforth be responsible and liable for all the liabilities and obligations of each of the corporations so merged or consolidated; and any claim existing or action or proceeding pending by or against any of such corporations may be prosecuted to judgement as if such merger or consolidation had not taken place, or such surviving or new corporation may be substituted in its place.” (Ill. Rev. Stat. 1989, ch. 32, par. 11.50(a)(5).)

“[T]he universal rule applicable to mergers or consolidations is that, by operation of law, the successor corporation assumes all debts and liabilities of the predecessor corporation precisely as if it had incurred those liabilities itself. [Citations.] *** And that concept is -uniformly - codified in every merger statute ***.” Krull v. Celotex Corp. (N.D. Ill. 1985), 611 F. Supp. 146, 148.

No single case, however, has ever attached liability to a successor corporation by virtue of this merger statute for the intentional misconduct of a predecessor corporation’s employee whose act was committed not in the furtherance of the predecessor corporation’s business, “alter ego” theory to the contrary notwithstanding. We hold that a successor, professional corporation is not liable as a matter of law for any intentional misconduct that was committed not in furtherance of the predecessor, professional corporation’s business.

We, therefore, affirm the circuit court in dismissing plaintiff’s complaint against Pratt & Callis, P.C., but reverse it with respect to Paul Pratt, the coemployee.

The circuit court is affirmed in part and reversed in part, and this cause is remanded for further proceedings.

Affirmed in part; reversed in part and remanded.

LEWIS, J., concurs.

PRESIDING JUSTICE GOLDENHERSH,

concurring in part and dissenting in part:

I respectfully dissent from the majority’s holding reversing the circuit court’s dismissal of this action against the coemployee pursuant to section 5(a) of the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(a)).

The essential question in this appeal is whether this case is controlled by the recent case of Meerbrey v. Marshall Field & Co. (1990), 139 Ill. 2d 455, 564 N.E.2d 1222, or the earlier case of Rodriguez v. Industrial Comm’n (1983), 95 Ill. 2d 166, 447 N.E.2d 186, both discussed in the majority opinion. It is my position that the facts of this case fit under Rodriguez and, therefore, the cause of action by plaintiff, Cathy Fitzgerald, is barred pursuant to section 5(a).

Initially, we must categorize the act of sexual harassment alleged in plaintiff’s complaint in relation to the complained-of actions in both Meerbrey and Rodriguez. Meerbrey involved actions by a coemployee based on knowledge of prior employer action taken against Meerbrey, and essentially the nature of the acts by the plaintiff’s coemployee was that of a security person, the coemployee’s position. In Rodriguez, the act of assault by the coemployee was not the type normally taken as part of the job of the aggressor coemployee. The Rodriguez court noted that it was an act motivated by prejudice against an ethnic group, and as such, reflected a pervasive societal problem from which the workplace is not immune.

In the case at bar, the alleged sexual harassment is part of a pernicious societal attitude toward women. It is as unreasoning and unjustifiable as the prejudice toward an ethnic group which motivated the actor in Rodriguez and as unrelated to any legitimate job function as the actor’s aggression in Rodriguez. This stands in contrast to the actions taken by the coemployee in Meerbrey. An analysis of the nature of the acts alleged against the coemployee leads me to conclude that the act alleged in plaintiff’s complaint is a Rodriguez type of act.

This categorization as a Rodriguez act leads to certain consequences in the case at bar. The court in Rodriguez deemed the aggressive act by the coemployee as “neutral” and concluded thereby that the victim-employee was covered under the Act. The Rodriguez court held the assault to be a neutral and compensable risk and explained its holding as follows:

“We believe that assaults by co-employees in the workplace that are motivated by general racial or ethnic prejudice are best treated as compensable ‘neutral’ risks arising out of the employment. Prejudice of this sort does not usually result in physical attacks in the world at large: it would be incorrect to say that people run the everyday risk of assault on the street or in public places because of their Mexican heritage. However, when an assault by a co-employee rooted solely in ethnic prejudice occurs in the workplace, as here, it is presumably the result of an irrational human impulse toward violence which is as much a part of the victim’s work environment as a defective tool would be. The victim may be unaware of the danger, but encounter it he must if the work to which he is assigned is to be completed. It is legitimately a hazard presented by the work. This is particularly true in our polyglot society in which employers are now required by Federal law to hire qualified racial minorities. (42 U.S.C. sec. 2000e — 2(a) (1976); see United Steelworkers of America v. Weber (1979), 443 U.S. 193, 61 L. Ed. 2d 480, 99 S. Ct. 2721.) With more minorities in the workplace, the potential for ethnic or racial friction is likely to increase. It would be anomalous for the law to address the problems of bigotry and lack of opportunity in society by requiring employers to hire qualified members of minority groups while not also requiring them to make the workplace as safe for minorities so hired as for other workers. (See Ill. Rev. Stat. 1977, ch. 48, par. 851 (declaration of public policy referring to the need to utilize the productive capacities of all individuals to the fullest extent possible regardless of ancestry and to insure that workers have resources sufficient to maintain a reasonable standard of living without resort to public charity).) We believe that, in the absence of anything that would personalize the incident, a bigoted and violence-prone co-worker is as much a risk inherent in employment in an integrated or ethnically mixed workplace as a defective machine or ceiling might be.” (95 Ill. 2d at 174-75, 447 N.E.2d at 190.)

One may reasonably hold that the reasoning of the court in Rodriguez concerning violence against an ethnic group is just as applicable to acts of sexual harassment.

This categorization, however, carries the consequence of rendering the compensation remedy the exclusive remedy, according to the test of Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 408 N.E.2d 198. The components of that test are stated in the majority opinion and it is readily apparent that plaintiff in this cause fails at least two factors necessary to escape exclusivity under section 5(a). In this instance, the employee-plaintiff is not able to claim that the injury was not accidental, given the Rodriguez definition, and certainly that the injury was not compensable under the Act given the quotation from Rodriguez noted above. I thus conclude that, given the characterization of the alleged sexual harassment and our supreme court’s direction in Rodriguez, the exclusivity provisions of section 5(a) preclude plaintiff from proceeding on this action.

I would therefore hold pursuant to our supreme court’s rulings in Rodriguez and Collier that workers’ compensation is the exclusive remedy against the coemployee pursuant to section 5(a) of the Act and would affirm the circuit court on this issue.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    KENNETH E. MAYOL, Plaintiff-Appellee and Counterdefendant, v. SUMMERS, WATSON AND KIMPEL et al., Defendants-Appellants (Richard Watson, Defendant; Raymond R. Kimpel, Counterplaintiff).
    Fourth District
    No. 4 — 90—0697
    Opinion filed January 16, 1992.
    Rehearing denied February 26, 1992.

      Raymond R. Kimpel, of Champaign, pro se, for appellants.
    David A. Dvorak, of Reardon, Orr & Dvorak, Ltd., of East Peoria, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiff, Kenneth E. Mayol, sued defendants Philip Summers and Raymond H. Kimpel (in their individual capacities) and Summers, Watson & Kimpel (a partnership) seeking damages for legal malpractice. Defendant Kimpel counterclaimed for fees Mayol allegedly owed him for prosecuting an appeal on behalf of Mayol. A jury returned a verdict in favor of Mayol on his legal malpractice claim, awarded damages of $700,000, and also returned a verdict in favor of Mayol on Kimpel’s counterclaim. On appeal, defendants challenge the sufficiency of the evidence to support the jury’s verdict and the damages award. Alternatively, they contend that various errors in the admission of evidence and in the jury instructions entitle them to a new trial. We disagree and affirm.

I. Facts

Mayol retained Kimpel, a member of the law firm of Summers, Watson & Kimpel, to represent him in an action for malpractice against two chiropractors, Dr. Frank Forman and Dr. Joseph P. Hanoka. Following entry of summary judgment in favor of the two chiropractors and affirmance of that judgment on appeal, Mayol brought the present legal malpractice action against defendants. Because defendants challenge the sufficiency of the evidence, we provide a somewhat detailed summary of the evidence presented at trial. In doing so, we will emphasize evidence favorable to Mayol that, if believed by the jury, was sufficient to support its verdict. See Chance v. City of Collinsville (1983), 112 Ill. App. 3d 6, 11, 445 N.E.2d 39, 42.

A. Chiropractic Malpractice Action

On June 23, 1984, defendant Kimpel, acting on Mayol’s behalf, filed a chiropractic malpractice suit against Drs. Forman and Hanoka, as well as against Forman Clinic, P.C. The complaint consisted of four counts, one of which the trial court dismissed on the pleadings.

On March 13, 1986, Dr. Forman filed a motion for summary judgment, supported by an affidavit, as to the remaining counts directed against him and Forman Clinic, P.C. On March 25, 1986, Dr. Hanoka also filed a motion for summary judgment, also supported by an affidavit, as to the remaining count directed against him. Kimpel subsequently filed Mayol’s affidavit in opposition to the summary judgment motions of Drs. Forman and Hanoka.

On April 30, 1986, the court allowed plaintiff’s motion for a continuance of the hearing on the motions for summary judgment. Kimpel sought the continuance because he was scheduled to appear at a pretrial conference in Federal court on the same day the hearing on the motion for summary judgment was set.

On June 4, 1986, an additional affidavit of Mayol was filed in opposition to the chiropractors’ motions for summary judgment. The trial court held a hearing on the summary judgment motions on the same day.

In a letter opinion filed June 17, 1986, the court granted the summary judgment motions of the chiropractors. The court noted that plaintiff had filed no medical affidavits in opposition to the affidavits of the chiropractors. The court held that without an expert opinion supporting plaintiff’s complaint, the applicable standard of care could not be determined, and that this alone provided a sufficient basis for granting the motions for summary judgment. This court subsequently affirmed the trial court’s summary judgment order. See Mayol v. For-man Clinic, P.C. (1986), 149 Ill. App. 3d 1165, 514 N.E.2d 610 (unpublished order under Supreme Court Rule 23).

B. Pleadings in Present Litigation

On March 16, 1988, Mayol sued defendants for legal malpractice, alleging that sometime prior to May 23, 1984, Kimpel agreed on behalf of himself and his law firm to represent Mayol in his claims against Drs. Forman and Hanoka for chiropractic malpractice. Mayol alleged that in the course of defendants’ representation of him, they committed the following negligent acts or omissions:

“(a) Failed to possess the knowledge and apply the skill, care, expertise and diligence that a reasonably well-qualified lawyer practicing in the same field would have employed under like circumstances;
(b) Failed to timely associate with an attorney who possessed sufficient knowledge and skill to handle plaintiffs [sic] malpractice case when they knew or should have known they did not possess sufficient knowledge and skill themselves;
(c) Failed to timely obtain or offer expert testimony in opposition to the motions for summary judgment and affidavits filed by the defendant chiropractors;
(d) Failed to obtain or file the deposition of the neurosurgeon who treated Plaintiff after the chiropractic malpractice or any other medical expert in opposition to the motion[s] for summary judgment and affidavits of the chiropractor defendants;
(e) Failed to offer or establish by expert testimony the standard of chiropractic care and any deviation from the standard of chiropractic care by the Defendants in that case.
(f) Failed to depose either of the Defendants;
(g) Failed to test the sufficiency of the affidavits filed by the Defendants in support of their motions for summary judgment by objecting to and moving to strike those affidavits in the trial court when he [(Kimpel)] knew, or should have known, that the sufficiency of the Defendants’ affidavits could not be tested for the first time on appeal;
(h) Failed to prepare and file an affidavit under Supreme Court Rule 191 and seek such further continuances of the hearing on Defendants’ motions for summary judgment as was necessary in order to enable the retention of a qualified expert witness;
(i) Failed to timely plead [an] assault and battery action against the Defendant chiropractors in the trial court;
(j) Failed to timely file a Petition for Leave to Appeal to the Illinois Supreme Court after the adverse decision of the Appellate Court of the Fourth District of the State of Illinois on the appeal from the summary judgments in the trial court;
(k) Falsely represented to the Plaintiff that he [(Kimpel)] had filed a Petition for Leave to Appeal to the Illinois Supreme Court from the adverse decision of the Appellate Court of the Fourth District of Illinois.”

Mayol alleged that as a direct and proximate result of one or more of these acts or omissions, the trial court granted summary judgment for the chiropractors, and his malpractice case against them was lost. Mayol further alleged that had defendants exercised ordinary care in representing him, it is reasonably likely that he would have recovered substantial monetary damages as a result of his chiropractic malpractice claims.

In an answer filed November 23, 1988, defendants denied the crucial allegations of Mayol’s complaint. On the same date, defendants filed a counterclaim against Mayol requesting fees for their appeal of the summary judgments entered in favor of the chiropractors.

On October 19, 1989, the trial court permitted Mayol to file, over defendants’ objections, a second count of his legal malpractice complaint against defendants. In this count, Mayol alleged that various omissions on the part of defendants were “willful, wanton or reckless acts or omissions” committed “with utter indifference to or conscious disregard for the consequences.” The court denied a motion to dismiss this new count on November 16, 1989, and defendants subsequently answered it.

On February 9, 1990, defendants filed affirmative defenses to Mayol’s claims. Defendants asserted that Mayol was guilty of comparative negligence in that (1) he negligently failed to cooperate with defendants in obtaining expert witnesses, (2) he negligently and carelessly failed to authorize defendants to file a motion for voluntary dismissal of the chiropractic malpractice suit, (3) he refused to submit himself for examination by expert witnesses suggested by defendants and refused to allow defendants to send his medical records to these experts for evaluation, and (4) he “refused to follow the advice of his attorneys or to cooperate with them *** and took over the direction and management of his own case and directed his attorneys at that time in opposition to their wishes and advice and asserted his right to direct the litigation.” On the same day, defendants filed an “AFFIRMATIVE DEFENSE OF COMPARATIVE WILLFUL AND WANTON NEGLIGENCE” based on the same factual allegations as their affirmative defenses asserting Mayol was guilty of comparative ordinary negligence.

C. Evidence of Chiropractic Malpractice

At a jury trial held between July 18 and 27, 1990, Mayol, an accountant, testified that Drs. Forman and Hanoka treated him for back problems between May 12, 1982, and September 1, 1982. Prior to their treatment of him, he had periodically experienced problems with his back, but his condition always improved with chiropractic treatment. During the course of his treatment by Dr. Forman, Mayol’s back problem did not improve; instead, his condition became increasingly worse. By July 1982, Mayol was not able to get to his accounting office more than one day per week on average. At this point, Mayol could not endure lying in a bed, even though he had purchased a new mattress on Dr. Forman’s recommendation and spent lengthy periods of time lying on the basement floor of his home.

Mayol testified that Dr. Forman last treated him on August 21, 1982. After manipulation treatments on that day, Mayol experienced a “deeper pain” in his back, as well as in both of his thighs.

After being treated for the last time by Dr. Forman, Mayol made an appointment with Dr. Hanoka, who first treated him on August 23, 1982. Mayol testified that after taking X rays, Dr. Hanoka told him, “ ‘[Y]ou ought to be in the hospital, but I’ll try to treat you for about 10 days.’ ” Dr. Hanoka told Mayol that if he did not see any signs of improvement, he would admit Mayol to the hospital.

Mayol testified that between August 23 and September 1, 1982, Dr. Hanoka’s treatments brought him some relief from the pain. On September 1, 1982, Dr. Hanoka performed traction and manipulation treatment on Mayol. According to Mayol, Dr. Hanoka then said, “ ‘[L]et’s see how flexible you are.’ ” Thereafter,

“[Dr. Hanoka] brought my knees up toward my chest as far as he could get them without a lot of pain, he put his forearm across my knees and pressed down like this. When he did that, I let out a scream. I don’t know whether I cursed or what at that time. What I felt was like a red hot fire place poker laying on the back of my left thigh, a hot sensation and a lot of pain in my back radiated down my left thigh. At that time I couldn’t feel anything from my waist down as far as feeling to touch. I could feel the hotness in my left thigh, but as soon as that was over, I had no feeling below my waist.”

Mayol testified that after this, he could not stand. Eventually, he was transported by ambulance from Dr. Hanoka’s office to Carle Clinic, where Dr. Jerome B. Kaufman performed surgery on his back.

Dr. Kaufman testified in an evidence deposition that he performed surgery on Mayol after he was taken to Carle Clinic on September 1, 1982. According to Dr. Kaufman, a ruptured disc caused Mayol’s incapacitation on that date. To a reasonable degree of medical certainty, Dr. Hanoka’s chiropractic manipulation caused this ruptured disc. Dr. Kaufman also testified that (1) manipulating the back of a patient who has a herniated disc is contraindicated, (2) Mayol “possibly” had a herniated disc while the two chiropractors were treating him, and (3) Dr. Forman’s manipulation of Mayol might have caused some extrusion of disc material or worsened Mayol’s condition.

Dr. Charles Bartoli, a chiropractor, also testified on behalf of Mayol. Dr. Bartoli stated that when a patient does not respond within two to four weeks to treatment that helped him in the past, a chiropractor has a responsibility to refer the patient elsewhere for treatment, to take X rays of the patient, or to have other tests performed on the patient. According to Dr. Bartoli, Dr. Forman’s failure to do any of these things with respect to Mayol after his condition did not improve fell below acceptable standards of chiropractic care. Also, Dr. Bartoli testified that the maneuver which Dr. Hanoka performed on Mayol on September 1, 1982, would have been contraindicated given Mayol’s condition.

D. Evidence of Legal Malpractice

Mayol testified that in October 1982, defendant Kimpel orally agreed to represent him in his chiropractic malpractice action for one-third of the recovery, with defendants paying the costs. Although Kimpel claimed that they entered into a written contract, Mayol asserted that he first heard of this written contract during Kimpel’s discovery deposition in 1988. Mayol said he decided to hire Kimpel because, in part, of Kimpel’s representations that he had tried malpractice cases to verdict.

At his first meeting with Kimpel, Mayol advised Kimpel that Dr. Hanoka had criticized Dr. Forman’s treatment of him. With respect to deposing Hanoka, Kimpel told Mayol either “ ‘all in due time’ ” or “ ‘let the defendants pay for it.’ ” Defendants never deposed Dr. Hanoka. Mayol also advised Kimpel, verbally and in writing, that Dr. Forman had criticized Hanoka’s care of him sometime in mid-February 1983, when Dr. Forman came to Mayol’s office to talk with him about his lawsuit against Dr. Forman. Mayol stated that Kimpel never advised him that he was going to depose Dr. Forman with regard to his criticism of Hanoka.

In 1982, Kimpel told Mayol that Dr. Hoover agreed to testify as an expert that one or both of the chiropractors who treated Mayol deviated from the applicable standard of chiropractic care. However, close to the hearing on the chiropractors’ motions for summary judgment, Dr. Hoover suffered a stroke and declined to testify. Thereafter, Kimpel told Mayol that Mayol should retain another expert if he knew of one. Mayol told Kimpel that he would try to get Drs. Paunicka and Matzner to review his records to see if he had a case.

Mayol called Drs. Paunicka and Matzner about a week before the June 4, 1986, summary judgment hearing. Dr. Paunicka told him that he did not want to get involved. Mayol advised Kimpel of this conversation before the summary judgment hearing.

Mayol contacted Dr. Matzner two to three days before the June 4, 1986, summary judgment hearing. Dr. Matzner agreed to review Mayol’s records to determine if either chiropractor had committed malpractice, provided that Kimpel deliver the records to him. Mayol immediately informed Kimpel of this development. On June 3, 1986, Dr. Matzner called Mayol, apologized, and said he could not review the records in depth on the basis of Dr. Forman’s affidavit. Dr. Matzner repeatedly told Mayol that he did not have enough time and could not help Mayol.

Mayol testified that at a meeting between him and Kimpel at 7 a.m. on the morning of June 4, 1986, Kimpel said, “ ‘[w]e have to go with what we have got unless we can go in with the opinion that a layman can draw his own conclusion that something went wrong in the office [of one of the chiropractors].’ ” According to Mayol, Kimpel said he would do just that. Kimpel never discussed with Mayol dismissing the case without prejudice or refiling it after dismissal without prejudice, nor did he explain that he could obtain a continuance to give Mayol more time to find an expert. Mayol testified that if Kimpel had told him he could dismiss his case without prejudice to avoid summary judgment and then refile within one year, he would have done so.

Kimpel never discussed seeking a continuance of the June 4, 1986, summary judgment hearing. Mayol stated he had no legal training, and at the time of the hearing on the summary judgment motions, he had only a general notion of what a motion for summary judgment or a motion for continuance was.

Mayol denied ever refusing to follow Kimpel’s advice, ever refusing or failing to cooperate with Kimpel or any member of his firm in seeking expert witnesses, ever refusing to submit himself for examination to experts suggested by Kimpel, ever attempting to take over the management of his own case or direct his attorneys in opposition to their wishes or advice, ever telling defendants he did not wish to make further attempts to retain expert witnesses on his behalf to resist the motions for summary judgment, ever refusing to allow or authorize any of the defendants to retain experts, or ever refusing to pay for expert witnesses. Mayol stated he never refused to allow or authorize Kimpel or any member of his firm to file a motion for voluntary dismissal in order to gain additional time to obtain expert witnesses. According to Mayol, none of the defendants ever insisted on filing a motion for voluntary dismissal.

Attorney Robert C. Strodel testified for Mayol as a legal expert in personal injury litigation, with a subspecialty representing plaintiffs in medical malpractice. Strodel testified as follows: (1) if Kimpel had filed an affidavit or deposition of Dr. Kaufman concerning his opinion as to the cause of Mayol’s ruptured disc in opposition to the chiropractors’ motions for summary judgment, the trial court “more probably so than not” would not have granted summary judgment for the chiropractors; (2) if there was nothing else available to resist the motions for summary judgment, Kimpel deviated from the acceptable standard of care by failing to obtain Dr. Kaufman’s deposition or at least to seek a continuance of the hearing on the motions for summary judgment in order to obtain that deposition; (3) the affidavits filed in support of the chiropractors’ motions for summary judgment were subject to attack under Supreme Court Rule 191 (134 Ill. 2d R. 191); (4) a properly framed affidavit of either Dr. Matzner, Dr. Bartoli, or Dr. Kaufman “would have killed the summary judgment proceeding flat on its face”; (5) if Kimpel had properly presented Mayol’s case against the chiropractors to a jury, there would have been better than a 50% chance of a verdict in Mayol’s favor; (6) in view of the circumstances confronting defendants at the time of the June 4, 1986, hearing on the motions for summary judgment, Kimpel deviated from the acceptable standards of care by not first seeking a continuance or as a secondary remedy moving for voluntary dismissal; and (7) an attorney confronted with a motion for summary judgment who fails to depose two defendant chiropractors who the attorney knew had made comments critical of each other breaches of the standard of care applicable to an attorney under those circumstances.

On cross-examination, Strodel stated that he would request leave of court to withdraw from representation of a client who insisted that he not file a motion for voluntary dismissal after the court denied a continuance for the purpose of obtaining an expert witness.

Two legal experts testified on behalf of defendants. Attorneys Evan H. Johnson, whose practice includes defense of malpractice claims, and James Martinkus, whose practice includes a substantial number of medical malpractice, personal injury, and workers’ compensation cases, both testified that defendants did not commit malpractice in representing Mayol. Although Johnson testified that an attorney should not obtain a voluntary dismissal of a lawsuit over the client’s objection, he acknowledged on cross-examination that an attorney has a duty to advise his client of the option of a voluntary non-suit if evidence cannot be gathered or obtained to resist a motion for summary judgment. Johnson also acknowledged that his opinions about Kimpel’s handling of the case were essentially based on the facts as represented to him by Kimpel.

Martinkus admitted that he would normally have taken a deposition of the defendants in order to oppose a motion for summary judgment. Martinkus also stated that it is a deviation from the standard of care in a case such as Mayol’s (1) to fail to take the deposition of a chiropractor who might provide testimony that would successfully defeat the defendants’ summary judgment motions, and (2) to fail to discuss with the client or recommend to the client voluntary dismissal without prejudice, when counsel did not then have but could later obtain an expert to resist the motions for summary judgment. Martinkus stated that with a hearing on summary judgment motions approaching, he would have deposed either of the two chiropractor-defendants, knowing they had expressed criticism of each other, provided he had nothing else in his file to oppose the summary judgment motions. Like attorney Johnson, Martinkus acknowledged that he based his opinions on what Kimpel told him.

Testifying on his own behalf, defendant Summers stated that he had handled some significant medical malpractice eases that eventually settled, but neither he nor his firm had tried a medical malpractice case to a verdict.

Testifying on his own behalf, Kimpel denied or attempted to controvert many of the crucial facts and allegations on which Mayol premised his legal malpractice claim. For instance, Kimpel stated that he examined the affidavits filed in support of the chiropractors’ motions for summary judgment and determined that they were legally sufficient. Also, he opined that a deposition of Dr. Kaufman would not have helped to avoid summary judgment unless Dr. Kaufman “would have said he was a chiropractor and was within that specialty and could testify as to the standard of care and deviations therefrom.” Furthermore, Kimpel believed his efforts to obtain expert testimony were within the standard of care required. On cross-examination, Kimpel testified that Mayol told him that he would never go to Dr. Drewes, a potential expert witness Kimpel had discussed using.

E. Evidence as to Damages

Mayol testified that he could not walk immediately after the surgery on his back on September 2, 1982. He never felt as depressed as he did during the period of his hospitalization following the surgery, when he was learning to walk again. If he could have committed suicide, he would have. Mayol was discharged from the hospital on September 14, 1982. By late September or early October of that year, he could walk again. However, due to numbness in his feet, he still had problems walking on uneven surfaces. Mayol still experienced numbness in his hips, in both thighs, and on the outside of both of his feet. These conditions had not improved since approximately 1984.

Mayol also experienced complete and total loss of control over his bladder and bowels between September 1982 and sometime in 1984. He also experienced a complete and total loss of sexual function between September 1982 and very early 1984. At the time of trial, he continued to experience some sexual dysfunction.

Mayol testified that he can no longer sit as many hours doing his accounting work as he did before the 1982 surgery. Mayol estimated that he lost $163,269 in earning capacity between 1982 and 1990, which he attributed to his injuries. He based that estimate on the difference between what he made and what he could reasonably have been expected to make from fees in his accounting business prior to his injuries. However, Mayol’s total income did increase during this time period because he charged higher fees. The lost earnings figure did not include an adverse effect on the cash flow from Mayol’s rental properties, caused by his inability to do repair and maintenance work as he had in the past.

As for the amount of damages Mayol could have received if victorious, attorney Strodel stated that Mayol’s case against the chiropractors had a settlement value in the range of $200,000 to $350,000, and a maximum jury verdict value of $450,000 to $500,000. On cross-examination, Strodel stated in part the following with respect to the elements of damages on which he based his assessment of the value of Mayol’s claim against the chiropractors:

“My values in this case are based on the nature of the injury, what amounts to hellish pain and suffering as well as sexual dysfunction, problems of numbness and neurogenic bladder problems, all of which are just lovely.”

Mayol testified that Kimpel had estimated the value of his case to be between $600,000 to $800,000.

The jury returned a verdict in favor of Mayol on his legal malpractice claim awarding $700,000 in damages, and also found for Mayol on Kimpel’s counterclaim. The court entered judgment on this verdict and subsequently denied defendants’ post-trial motion and their motion for remittitur.

II. Sufficiency Of The Evidence

A. Liability

Defendants assert that we should reverse the judgment entered on the jury’s verdict because (1) the verdict is contrary to the manifest weight of the evidence, and (2) the trial court should have entered a directed verdict in defendants’ favor at the close of all of the evidence.

In order to recover damages for legal malpractice, a plaintiff must prove (1) the existence of an attorney-client relationship giving rise to a duty owed to the plaintiff by defendants, (2) a breach of that duty by defendant, (3) injuries to plaintiff which were proximately caused by the breach, and (4) damages resulting from the injuries. (Nika v. Danz (1990), 199 Ill. App. 3d 296, 308, 556 N.E.2d 873, 882; Spivack, Shulman & Goldman v. Foremost Liquor Store, Inc. (1984), 124 Ill. App. 3d 676, 683, 465 N.E.2d 500, 504.) An attorney commits actionable malpractice only if he or she fails to exercise a reasonable degree of care and skill. Whether an attorney has exercised a reasonable degree of care and skill is a question of fact. Conduct alleged to constitute legal malpractice must be measured against a standard of care that normally must be established by expert testimony. (Spivack, 124 Ill. App. 3d at 683, 465 N.E.2d at 505; see also Jackson Jordan, Inc. v. Leydig, Voit & Mayer (1990), 199 Ill. App. 3d 728, 732-33, 557 N.E.2d 525, 527.) An attorney’s act or omission that is an error of judgment does not necessarily establish liability for malpractice. Malpractice liability may be imposed when the combined wisdom of the bar is that a reasonably competent attorney would not have exercised his or her judgment in that manner. Gelsomino v. Gorov (1986), 149 Ill. App. 3d 809, 814, 502 N.E.2d 264, 267.

A verdict is against the manifest weight of the evidence when the opposite conclusion is clearly evident, or when the findings of the jury are unreasonable, arbitrary, and not based on the evidence. (Topp v. Logan (1990), 197 Ill. App. 3d 285, 298, 554 N.E.2d 454, 463.) We conclude that the jury verdict in the present case is not contrary to the manifest weight of the evidence.

Defendants did not seriously dispute at trial that chiropractic malpractice occurred during the course of the chiropractors’ treatment of Mayol. Whether legal malpractice occurred essentially depended on the jury’s assessment of the credibility of the witnesses. Mayol alleged defendants committed various breaches of their duty of care in representing him, and in his testimony Kimpel attempted to provide justifications or explanations for some of these alleged breaches. In their testimony on direct examination, the parties’ experts also provided differing opinions as to whether these acts and omissions constituted legal malpractice. Given the conflicting testimony, we do not find clearly evident a conclusion opposite that reached by the jury.

We further hold that the trial court did not err in denying defendants’ motion for a directed verdict at the close of all of the evidence. A directed verdict should be granted only when the evidence, construed most strongly in favor of the party against whom the motion is directed, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) The testimony of Mayol and of his experts, Dr. Bartoli and attorney Strodel, when construed most strongly in favor of Mayol, clearly favors Mayol’s claim that defendants committed legal malpractice. We also note that even some of the cross-examination testimony of defendants’ experts favors Mayol.

B. Damages

Defendants assert that in view of Mayol’s prior history of back trouble and traumatic incidents, the jury’s $700,000 damage award is excessive. In support of this argument, defendants also state that there is no evidence of loss of income to Mayol.

In Henry v. St. John’s Hospital (1987), 159 Ill. App. 3d 725, 734-35, 512 N.E.2d 1044, 1050, this court set forth the following principles applicable to determining whether a damages award is excessive:

“The ascertainment and assessment of damages are questions of fact peculiarly within the province of the jury. Reviewing courts must be reluctant to interfere with the discretion of the jury, and the determination of damages will not be disturbed on appeal unless it is obviously the result of passion or prejudice, or is clearly excessive. An award is considered excessive if it falls outside the necessarily flexible limits of fair and reasonable compensation or is so large as to shock judicial conscience.”

Mayol testified that Kimpel told him that his chiropractic malpractice case was worth around $600,000 to $800,000. The admissions of a party opponent are substantive evidence, and no preliminary foundation need be established in order for such statements to be admissible. (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §§802.1, 802.2, at 594, 597 (5th ed. 1990).) Mayol’s testimony concerning Kimpel’s admission, which the jury was entitled to believe, is in itself sufficient to sustain the jury’s verdict. Furthermore, Mayol’s expert witness, attorney Strodel, testified that the chiropractic malpractice claim had a maximum value of $450,000 to $500,000, based solely on pain and suffering and not including any claims for lost wages. Mayol testified that between 1982 and 1990, he suffered a $165,269 loss in earning capacity.

The sole ease cited by defendants in which a damages award was held to be excessive, Goertz v. Chicago & North Western Ry. Co. (1958), 19 Ill. App. 2d 261, 273-74, 153 N.E.2d 486, 492-93, is distinguishable. In that case, there was no admission relevant to the amount of damages, and the plaintiff, who was 61 at the time he sustained injuries, was much older than the plaintiff in the present case, who was 42 years old at the time of trial.

III. Alleged Trial Errors

A. Admission of Evidence

Mayol called Kimpel as an adverse witness. In the course of Mayol’s examination of Kimpel, the following exchange occurred:

“Q. [Plaintiff’s counsel:] ***
In terms of your experience and expertise in this area of law, you had never tried or handled malpractice cases before had you?
A. [Kimpel:] No.
Q. You had handled some and settled some malpractice cases over 30 years, didn’t you?
A. Yes.”

Mayol’s counsel then inquired:

“In fact at the time Mr. Mayol was a client at your firm and up to the present time, your expertise includes handling roughly two malpractice cases, does it not? That would be including the malpractice case against you in this case and the one against you by Emmett Joseph Tyler?”

The court sustained defendants’ objection to this question and ordered Mayol, out of the hearing of the jurors, to refrain from indicating that someone else had brought another legal malpractice action against defendants. The court also denied defendants’ motion for a mistrial.

Defendants contend that this reference to the Tyler malpractice suit against Kimpel was so highly prejudicial that the trial court should have declared a mistrial on the basis of this statement. We are unpersuaded.

The decision to declare a mistrial rests within the sound discretion of the trial court, whose exercise of discretion will not be disturbed on appeal absent a clear abuse thereof. (Topp, 197 Ill. App. 3d at 296, 554 N.E.2d at 462.) A mistrial should be granted only when there is an occurrence of such character and magnitude as to deprive a party of a fair trial and the moving party demonstrates actual prejudice as a result. (Topp, 197 Ill. App. 3d at 296, 554 N.E.2d at 462.) The question asked by Mayol’s counsel falls short of meeting this standard. Accordingly, we conclude that the trial judge did not clearly abuse his discretion in not declaring a mistrial on the basis of Mayol’s counsel’s single reference to another legal malpractice action against defendant Kimpel.

Defendants also contend the trial court improperly admitted evidence that defendants had not paid Area Wide Court Reporting Service for a copy of Mayol’s discovery deposition that was delivered to them. Defendants contend that Mayol’s only purpose in presenting this evidence was to demean and prejudice them in the eyes of the jury and to portray them as deadbeats who did not pay their bills. Defendants assert that this evidence was not relevant to any of the issues in the case and should not have been admitted over their objections.

Evidence is relevant if it tends to prove or disprove a disputed fact or renders a matter in issue more or less probable. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 519, 468 N.E.2d 1228, 1235; In re A.T. (1990), 197 Ill. App. 3d 821, 833, 555 N.E.2d 402, 410.) We seriously doubt that the evidence concerning defendants’ alleged nonpayment of a court reporter’s fee has any relevance to the issue of whether defendants breached a duty of care in their representation of Mayol. (See Goad v. Evans (1989), 191 Ill. App. 3d 283, 302, 547 N.E.2d 690, 703.) However, we conclude that even if admission of this evidence was error, the error was harmless because the evidence in this case was not closely balanced and the error was an insignificant part of the trial. See Cairns v. Hansen (1988), 170 Ill. App. 3d 505, 511, 524 N.E.2d 939, 944 (“A party is not entitled to reversal based on rulings on evidence unless the error was substantially prejudicial and affected the outcome of the trial”).

B. Jury Instructions

The trial court gave the jury the following instructions:

“There was in force in the State of Illinois at the time of the occurrence in question a certain Supreme Court Rule which provided that:
A lawyer shall not
violate a disciplinary rule; or engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
If you decide that a defendant violated the Supreme Court Rule on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether and to what extent, if any, the defendant was negligent or wilful, wanton or reckless at the time of the occurrence.”
“There was in force in the State of Illinois at the time of the occurrence in question a certain Supreme Court Rule which provided that:
A lawyer shall not
(1) handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it;
(2) handle a legal matter without preparation adequate in the circumstances; or
(3) neglect a legal matter entrusted to him.
If you decide that a defendant violated the Supreme Court Rule on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether and to what extent, if any, the defendant was negligent or wilful, wanton or reckless at the time of the occurrence.”

Defendants contend that the trial court erred in giving the above instructions because attorney disciplinary rules do not delineate the bounds of civil liability for the conduct of attorneys and do not create private rights of action based on violations of them. We disagree.

Juries in legal malpractice suits may properly consider standards of professional ethics pertaining to attorneys because such suits involve allegations of conduct that does not conform to minimum professional standards. (See Rogers v. Robson, Masters, Ryan, Brumund & Belom (1979), 74 Ill. App. 3d 467, 472-73, 392 N.E.2d 1365, 1371, aff'd (1980), 81 Ill. 2d 201, 407 N.E.2d 47.) Furthermore, it is well established that jury instructions may quote portions of statutes and ordinances where (1) the jury has heard evidence that defendant has violated the quoted portions of the statute or ordinance, and (2) plaintiff alleges the violation breached a duty owed to him by defendant. (See Harris v. Day (1983), 115 Ill. App. 3d 762, 772-73, 451 N.E.2d 262, 267-68; Illinois Pattern Jury Instructions, Civil, No. 60.01 (3d ed. 1991).) Like most statutes and ordinances, attorney disciplinary rules establish minimum standards of conduct and are intended to protect the general public. For these reasons, we hold that jury instructions may quote attorney disciplinary rules in legal malpractice cases to the same extent as they may quote statutes and ordinances in instructions in other types of negligence cases.

Defendants also take issue with certain other instructions the trial court gave to the jury, the first of which read as follows:

“There was in force in the State of Illinois at the time of the occurrence in question a certain Supreme Court Rule which provided that:
Supreme Court Rule 191
(a) Requirements. Affidavits in support of and in opposition to a motion for summary judgment ... shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto...
(b) When Material Facts Are Not Obtainable by Affidavit. If the affidavit of either party contains a statement that any of the material facts which ought to appear in the affidavit are known only to persons who [sic] affidavits affiant is unable to procure by reason of hostility or otherwise, naming the persons and showing why their affidavits cannot be procured and what affiant believes they would testify to if sworn, with his reasons for his belief, the court may make any order which may be just, either granting or refusing the motion, or granting a continuance to permit affidavits to be obtain [sic], or for submitting interrogatories to or taking the depositions of any of the persons so named, or for producing papers or documents in the possession of those persons or furnishing sworn copies thereof. The interrogatories and sworn answers thereto, depositions to [sic] taken, and sworn copies of papers and documents so furnished, shall be considered with the affidavits in passing upon motion [sic].
If you decide that a defendant violated the Supreme Court Rule on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether and to what extent, if any, the defendant was negligent or wilful, wanton or reckless at the time of the occurrence.”

The second instruction of which defendants complain stated the following:

“The Plaintiff’s complaint consists of two counts. The issues to be decided by you under Count I of the complaint are as follows:
The plaintiff claims that he was injured and sustained damage and that the defendants were negligent in one or more of the following respects:
* * *
(h) In failing to prepare and file an affidavit under Supreme Court Rule 191 and seek such further continuances of the hearing on defendants’ motions for summary judgment as was necessary in order to enable the retention of a qualified expert witness.
* * *
The plaintiff further claims that one or more of the foregoing was a proximate cause of his injuries.
The defendants deny that they were negligent in doing any of the things claimed by the plaintiff and deny that any claimed act or omission on the defendants’ part was a proximate cause of the plaintiff’s claimed injuries.
The defendants further deny that the plaintiff was injured or sustained damages.”

Defendants argue that the trial court erred in giving the instruction quoting Rule 191 (134 Ill. 2d R. 191) because the jury could not understand or determine how to apply the rule due to its highly technical nature.

If, as defendants contend, Supreme Court Rule 191 might appear “highly technical” to some jurors, defendants should have tendered an instruction clarifying the rule’s meaning. Not having done so, defendants cannot now complain about any confusion that the instruction setting forth portions of Rule 191 might have caused the jury. See Coffey v. Hancock (1984), 122 Ill. App. 3d 442, 451, 461 N.E.2d 64, 71.

Finally, defendants argue that there was no basis for count II of Mayol’s complaint, alleging that various omissions and inactions on the part of defendants amounted to “willful, wanton or reckless” conduct. Defendants assert that any shortcomings in their representation of Mayol constituted mere differences in opinion and judgment concerning trial tactics, which fell far short of wilful and wanton or reckless conduct. Defendants thus argue that having a wilful and wanton count in this case severely prejudiced them, as shown by the large size of the jury’s verdict. Defendants argue that because there was no evidence of wilful and wanton conduct on their part, the trial court’s instructing the jury as to this count requires either outright reversal of the verdict in Mayol’s favor or a new trial.

As previously indicated, the jury’s verdict on Mayol’s legal malpractice claim falls within the range of damages suggested by the evidence presented at trial. Furthermore, the trial court did not instruct the jury that a finding of wilful and wanton or reckless conduct would provide a basis for an award of punitive damages. For these reasons, we cannot conclude that instructing the jury as to count II of Mayol’s complaint materially affected the size of the jury’s verdict. Therefore, any error was harmless. Cairns, 170 Ill. App. 3d at 511, 524 N.E.2d at 944.

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

Affirmed.

KNECHT and LUND, JJ., concur.


author: PRESIDING JUSTICE GREEN

text:
    DONALD M. MEDLEY, Plaintiff-Appellant, v. THE DEPARTMENT OF INSURANCE, Defendant-Appellee.
    Fourth District
    No. 4 — 91—0371
    Opinion filed January 17, 1992.

      William F. Trapp and Terry D. Charlton, both of Brown, Hay & Stephens, of Springfield, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Claudia E. Sainsot, Assistant Attorney General, of Chicago, of counsel), for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On May 22, 1989, Zack Stamp, Director of defendant Illinois Department of Insurance (Department), issued an order revoking the Illinois insurance producer’s license of plaintiff Donald M. Medley. Plaintiff then requested and received a hearing before a hearing officer. On August 1, 1990, acting on behalf of the Department, Stamp issued an order approving the hearing officer’s recommendation revoking plaintiff’s license for a period of three years from that date. Plaintiff filed a complaint for administrative review in the circuit court of Champaign County on August 30, 1990. On May 24, 1991, that court entered an order affirming the decision of the hearing officer. Plaintiff has filed a timely notice of appeal. We affirm.

Section 494.1 of the Illinois Insurance Code (Code) (Ill. Rev. Stat. 1989, ch. 73, par. 1065.41 — 1) authorizes the Director of the Department to issue licenses to insurance producers as defined by section 491.1(b) of the Code (Ill. Rev. Stat. 1989, ch. 73, par. 1065.38 — 1(b)). Section 505.1(a)(7) of the Code authorizes the suspension or revocation of such a license if the licensee “has been, within the past 3 years, convicted of a felony, unless the individual demonstrates to the Director sufficient rehabilitation to warrant the public trust.” (Ill. Rev. Stat. 1989, ch. 73, par. 1065.52 — 1(a)(7).) The record here conclusively showed that on September 16, 1988, plaintiff pleaded guilty in the United States District Court for the Southern District of Illinois to one count of a criminal conspiracy (18 U.S.C. §§2, 371 (1988)) and one count of aiding and abetting a currency transfer of over $10,000 without reporting the transfer to the Secretary of the Treasury (31 U.S.C. §§5313, 5322 (1988)). Both offenses are felonies.

On appeal to this court, plaintiff maintains (1) the administrative decision to revoke his license was against the manifest weight of the evidence, and (2) the standard for revocation set forth in section 505.1(a)(7) of the Code denies the licensee of due process because it is vague and uncertain. In arguing the manifest weight issue, plaintiff complains that the hearing officer, whose report was adopted by the Director, ignored or failed to acknowledge testimony favorable to plaintiff, thus acting in an arbitrary and capricious manner. Under the heading of the sufficiency of the evidence, plaintiff also complains the hearing officer should not have sustained an objection to his pro se closing argument in which he recited matters not in evidence.

According to information presented to the hearing officer, plaintiff had been licensed as an insurance producer since 1964. Such a person is one who “solicits, negotiates, effects, procures, renews, continues or binds policies of insurance covering property or risks located in Illinois.” (Ill. Rev. Stat. 1989, ch. 73, par. 1065.38 — 1(b).) Plaintiff was employed by an insurance agency and was a director and controlling shareholder in a bank. His crimes arose from his latter activities. According to his own admission, a physician who was a friend of his asked him about obtaining a Swiss bank account in 1987. The friend indicated he had approximately $125,000 he wished to loan out in a cash transaction. Legal counsel advised that such a cash transaction without proper reporting would be illegal. A transaction was then arranged whereby the physician made application to plaintiff’s bank for a $150,000 loan, which was granted. The physician then left the $125,000 in cash in a vault box in plaintiff’s bank as collateral for the bank loan. The box was listed in the name of plaintiff’s mother. The proceeds of the $150,000 loan were then lent to participants in a coal-mining operation under an agreement whereby plaintiff received a royalty of 30 cents per ton on coal recovered during the operation. When the loan was repaid, the signature card on the lockbox where the cash was kept was destroyed.

Plaintiff appeared before the hearing officer without counsel. He called four witnesses. The problem with their testimony in regard to plaintiff’s burden to show “sufficient rehabilitation to warrant the public trust” (emphasis added) (Ill. Rev. Stat. 1989, ch. 73, par. 1065.52 — 1(a)(7)) was that the witnesses indicated plaintiff had always been a trustworthy person. They did not focus on ways in which he had changed since committing those offenses. Plaintiff’s wife testified plaintiff had always been honest and had pleaded guilty to avoid indictments against her and her son. A senior vice-president for plaintiff’s employer testified plaintiff had the respect of people in the area and they felt he had received a “raw deal.” This vice-president’s wife, an associate professor at Southern Illinois University, testified she had respect for plaintiff and his wife and confidence in dealing with them. The final witness was national sales director for plaintiff’s employer. He did say he thought plaintiff was rehabilitated and had the trust of the community, but he described plaintiff’s crime as a “technical banking violation” which was not related to his selling of insurance.

Plaintiff testified on his own behalf. He stated he was unaware of any illegality in what he had done. He further stated, “I am convinced that I committed a crime because the book says so and *** I’m not going to build the rest of my life on false pretenses that we didn’t do something wrong.” He maintained he was pressured to plead guilty and did not think he was right in doing so. However, he accepted responsibility based upon the fact of his leadership in the bank. He stated “[t]he buck stops here.” His statement he was not going to go through life contending he did nothing wrong was commendable, but he did not appear contrite and did not indicate any way in which he intended to change. Thus, he neither indicated any need to do anything to rehabilitate himself nor gave any indication he would do anything to bring about rehabilitation.

An administrative decision will not be overturned on judicial review on the basis of the weight of the evidence unless that decision is contrary to the manifest weight of the evidence. (City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499, 554 N.E.2d 155.) Such was not the case here. We recognize that plaintiff may well have always been a person of repute in the community and had generally been fair and honest in his dealings with others. Here, he had been advised that the proposed transaction was likely illegal and must have recognized that the owner of the $125,000 in cash was illegally attempting to avoid paying State and Federal income taxes incurred in acquiring the money or acquiring interest thereon. The hearing officer and the Director could properly have concluded that defendant was taking the position that what he did was only technically wrong and that any remorse he had arose only because he had been caught. They could have concluded he would be likely to again attempt to do something of a similar nature if he felt he could do so without being caught and punished.

Plaintiff complains that the report of the hearing officer ignored such items of evidence as (1) those concerning his desire to improve his life so that he can provide for his employees; (2) his activities in church, the Masonic order, and the American Legion; and (3) the willingness of his employer to continue to employ him. Plaintiff presents no authority to support his theory that the failure of the hearing officer to detail these matters in her report indicates they were ignored. Moreover, as we have previously indicated, much of this evidence goes to show defendant’s general good conduct prior to the offense rather than any rehabilitation.

We recognize the difficulty encountered by a person, even a sophisticated business man, who appears pro se in a matter of this nature. However, that was plaintiff’s choice. He was not immune from the rules necessary for orderly procedure. The hearing officer properly refused to let plaintiff make argument concerning matters he had failed to present in evidence. She was not required, as plaintiff now suggests, to allow him to open the evidence to present a basis for his argument.

Finally, we turn to plaintiff’s contention that section 505.1(a)(7) of the Code sets forth standards for revocation of licenses for insurance providers which are too vague and uncertain to meet constitutional muster. He correctly points out that when the General Assembly vests discretionary authority in administrative officers, intelligible standards must be provided to aid the officers in their exercise of that discretion. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 370 N.E.2d 223.) Plaintiff maintains here that standards are lacking as to (1) the nature of the offense involved, and (2) the circumstances surrounding the offense or the rehabilitation demonstrated after conviction.

In complaining of the vagueness of section 505.1(a)(7) of the Code, plaintiff places substantial reliance upon Chicagoland Agencies, Inc. v. Palmer (1936), 364 Ill. 13, 15, 2 N.E.2d 910, 911. There the supreme court found section 11 of “ ‘An act providing for the qualification and license of insurance brokers and solicitors ***’ ” was invalid because it permitted the Director of Insurance to revoke licenses issued under that act for certain stated types of misconduct when the Director had made a determination of the existence of that misconduct “after due investigation and a hearing.” (Ill. Rev. Stat. 1935, ch. 73, par. 573.) The indefinite nature of the procedure to be followed before revoking a license required the supreme court to hold the statutory provision void for vagueness.

Here, no question arises concerning the procedure involved in the revocation. That is set forth in detail in section 506.1 of the Code. (Ill. Rev. Stat. 1989, ch. 73, par. 1065.53 — 1.) Nor is the nature of the misconduct giving rise to revocation vaguely described. Plaintiff calls our attention to the case of Fisher v. State Insurance Board (1929), 139 Okla. 92, 93, 281 P. 300, 301, wherein a statutory provision purporting to allow revocation of licenses to sell insurance for “ ‘other bad practices’ ” was held to be too vague and indefinite. Here, section 505.1(a)(7) of the Code makes clear that the misconduct upon which a revocation is based is the conviction of a felony within the prior three years. A statute authorizing the revocation of the licenses of physicians by the State of New York for any criminal conviction was held to meet the requirements of due process in Barsky v. Board of Regents (1954), 347 U.S. 442, 448, 98 L. Ed. 829, 838, 74 S. Ct. 650, 654.

The closest question concerning vagueness of section 505.1(a)(7) of the Code arises from the language which negates revocation of the license if “the individual demonstrates to the Director sufficient rehabilitation to warrant the public trust.” “An impossible standard of preciseness of language and expression cannot be required; it is enough that the law’s language and meaning are sufficiently definite when measured by common understanding and practices.” (People v. Capitol News, Inc. (1990), 137 Ill. 2d 162, 171, 560 N.E.2d 303, 307, cert. denied (1991), 498 U.S. 1120, 112 L. Ed. 2d 1180, 111 S. Ct. 1075.) The word “rehabilitation” is commonly understood. When that “rehabilitation” is required to be sufficient “to warrant the public trust” the language is less clear. However, here the language is used in the context of determining who should have a license to provide insurance. The type of rehabilitation required here is such that the licensee can be trusted to engage in selling and securing of insurance policies which may be intricate and may involve insureds or prospective insureds who lack sophistication in such matters. When considered in this context, the questioned language is “sufficiently definite when measured by common understanding and practices." Capitol News, Inc., 137 Ill. 2d at 171, 560 N.E.2d at 307.

Thus, the language of section 505.1(a)(7) of the Code meets constitutional due process requirements, and the Director’s determination that plaintiff’s license be revoked for a period of three years was not contrary to the manifest weight of the evidence. Accordingly, we affirm the judgment of the circuit court upholding the decision of the Director.

Affirmed.

COOK and LUND, JJ., concur.


author: JUSTICE KNECHT

text:
    STEVEN CRAIG SHULL, a Minor, by his Father and Next Friend, John R. Shull, et al., Plaintiffs-Appellants, v. HARRISTOWN TOWNSHIP, Defendant-Appellee.
    Fourth District
    No. 4 — 91—0449
    Opinion filed January 16, 1992.

      Willoughby & Latshaw, P.C., of Decatur (K. Michael Latshaw, of counsel), for appellants.
    Evan H. Johnson, of Armstrong, Winters, Prince, Featherstun & Johnson, of Decatur, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

On May 4, 1987, plaintiff, eight-year-old Steven Craig Shull, injured his hand while swinging on a sliding gate of a fence surrounding defendant Harristown Township’s storage yard. Plaintiff’s father, John R. Shull, Sr., filed suit on behalf of his son, and individually, to recover damages allegedly incurred from the injury. Harristown Township filed a motion for summary judgment. The Macon County circuit court granted its motion on June 12, 1991. Plaintiffs appeal, arguing summary judgment in favor of defendant was improper. We disagree and affirm.

When the accident occurred, Steven was eight years old, but would reach age nine on July 23, 1987. Steven’s father, John R. Shull, Sr., filed a four-count complaint on behalf of Steven and individually. Plaintiffs later sought, and received, a voluntary dismissal of counts II and IV, which were pleaded against an additional party. The remaining counts were directed against defendant Harristown Township. Count I sought damages for Steven’s personal injury, and was brought on behalf of Steven by his father. Count III was brought by Steven’s father as plaintiff, individually, and sought compensation for Steven’s medical expenses. Both counts alleged Harristown Township knew or should have known children would, and did, play in the yard and on the gate. Each count also alleged the gate constituted an unreasonably dangerous condition, defendant had actual or constructive notice of the unreasonably dangerous structure and sufficient time to remedy the condition before May 4, 1987. In addition, each count also alleged defendant was negligent by not keeping the metal gate locked or securing it to prevent persons from being injured. Steven, his parents, and the highway township commissioner were orally deposed.

During his deposition, Steven stated that on May 4, at approximately 4:30 p.m., he, his 10-year-old brother, and an 8-year-old friend went to play on a rock pile in Harristown Township’s storage yard. Paul McKinney, the township’s highway commissioner, was in charge of the yard. He testified the property was surrounded by a chain link fence. The gate was closed or padlocked only when McKinney was on vacation or when privately owned equipment was stored in the yard. He described the gate as a 16-foot rolling gate which slides horizontally.

The highway commission stored piles of rocks, culverts, and equipment in the yard. The township stored trucks, loaders, cinder spreaders, and snowplows in the yard. There was also a diesel and a gasoline gas tank in the yard. Mr. McKinney testified the fence and gate were erected approximately eight years ago to establish property lines. He conceded it was also built to keep people out of the yard. However, before the fence enclosed the yard, there were no problems with children playing in the yard, theft, or vandalism.

Steven’s parents had told him to stay away from the township property. They feared he could be hurt by playing with matches around the gas stored there, or he might damage something. On the day Steven was injured, his father specifically told him not to go to the yard. Steven, his brother, and his friend had played on the rock pile four or five times within the previous month and a half before May 4. Steven testified that on one of the earlier occasions, they saw a man enter the township property in a truck. Steven said the man saw them playing on the rock pile, but said nothing to them. During the other times they played there, no one else was on the property.

McKinney testified he saw two children playing on a rock pile in the yard a few weeks before Steven’s injury. He told them to leave the yard and never return. Although he did not know how old the children were, he stated they were “too small to be playing out there by themsel[ves].” Other than this occurrence, Mr. McKinney knew of no other occasion when children played in the yard, and did not know children played on the gate. He also did not know Steven and his friends were playing on the gate on May 4, 1987, until he later learned about Steven’s injury.

Steven’s father testified he frequently saw children playing on defendant’s rock piles on nice days. He knew of no instance, however, of children playing on the gate on which his son was injured. Steven’s mother, Glenna M. Shull, also testified she saw children playing on the rock piles. However, she noticed these children after the workday ended for Harristown employees. Both parents also testified they saw children playing within the yard during township trustee meetings which occurred in a building in the yard. Although within the last three to four years McKinney had not attended many township meetings, he stated he never saw children playing in the yard during meetings which he attended. Shull also testified that when he spoke with McKinney after Steven was injured, McKinney said he knew children were playing on the rock piles, but he did not think anyone would get hurt.

Steven testified that on May 4, he, his brother, and their friend played on the rock pile for about 45 minutes, and then started playing on the gate. Although they had not played on the gate before, they agreed it was a good idea. One or more of the children would stand on the gate, and the other one or two would push it. Steven rode the gate this way five or six times before his hand was injured. While being pushed, a roller supporting the gate ran over Steven’s hand. He knew the rollers were there. The two rollers were in a stationary position and he thought both rollers had already passed. During other times he was being pushed, he would raise his hand from the gate as it approached a roller, and when the roller passed, he would put his hand back on the gate. Steven stated he removed his hand in this way because he knew if he did not do so, “it would roll right over [his] hand” and hurt him. McKinney and Steven both stated the gate was not defective when Steven was injured.

On June 12, 1991, the court considered the complaint, answer, and depositions, and granted summary judgment to Harristown Township. It found there was no evidence sufficient to raise a triable issue of fact about whether a dangerous condition existed on the township’s property which was likely to injure children of Steven’s age and maturity because they could not comprehend the risk of the condition involved. The court dismissed plaintiffs’ complaint with prejudice, and noted a written order would not be filed.

Summary judgment is appropriate when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005; Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 233-34, 564 N.E.2d 778, 780; Suhadolnik v. City of Springfield (1989), 184 Ill. App. 3d 155, 164, 540 N.E.2d 895, 900.) Because it is a drastic means of disposing of litigation, summary judgment should be granted only when the “right of the moving party is clear and free from doubt.” Logan, 139 Ill. 2d at 233-34, 564 N.E.2d at 780.

Each district of the Illinois Appellate Court, including this one, has periodically cited the abuse of discretion standard as governing review of a trial court’s ruling on a motion for summary judgment, often in the context of setting forth general legal principles, but sometimes directly in analyzing and ruling on the appeal. (WilShore Motor Sales, Inc. v. Continental Illinois National Bank & Trust Co. (1984), 130 Ill. App. 3d 167, 172, 474 N.E.2d 376, 380; Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 86, 508 N.E.2d 1201, 1208; Kemp v. Sisters of the Third Order of St. Francis (1986), 143 Ill. App. 3d 360, 361-62, 493 N.E.2d 372, 373; Fitt v. City of Mattoon (1991), 215 Ill. App. 3d 472, 574 N.E.2d 1275; Stofer v. First National Bank (1991), 212 Ill. App. 3d 530, 541, 571 N.E.2d 157, 165.) This is not the proper standard of review. (See, e.g., Zale Construction Co. v. Hoffman (1986), 145 Ill. App. 3d 235, 240-41, 494 N.E.2d 830, 833-34; Demos v. National Bank (1991), 209 Ill. App. 3d 655, 659-60, 567 N.E.2d 1083, 1086.) The entry of summary judgment is not a matter within the discretion of the trial court. In reviewing a trial court’s ruling on a motion for summary judgment, the appellate court should consider anew the facts and law related to the case and determine whether the trial court was correct.

This case raises the question of whether the pleadings, depositions, admissions on file, and affidavits showed that a dangerous condition existed on defendant’s property, the risks of which a child of Steven’s age and maturity could not recognize. The parties agree the standard for a property owner’s liability for injuries incurred by a minor on the owner’s property is outlined in Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836, and discussed further in Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177. The Corcoran court noted Kahn established the foreseeability of harm to children as the cornerstone of liability. Harm to children is sufficiently foreseeable when the owner knows or should know children frequent the property, and the child’s injury is caused by a dangerous condition. (Corcoran, 73 Ill. 2d at 326, 383 N.E.2d at 180; Kirby v. Macon Public School District No. 5 (1988), 169 Ill. App. 3d 416, 420, 523 N.E.2d 643, 646.) The Illinois Supreme Court reiterated this test in Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 564 N.E.2d 778. A court should also compare the expense or inconvenience to the property owner to remedy the condition against the risks to children. Kahn, 5 Ill. 2d at 625, 126 N.E.2d at 842.

A dangerous condition is “one which is likely to cause injury to the general class of children who, by reason of their immaturity, might be incapable of appreciating the risk involved.” (Corcoran 73 Ill. 2d at 326, 383 N.E.2d at 180.) However, as the Corcoran court noted: “Even if an owner *** knows that children frequent his premises, he is not required to protect against the ever-present possibility that children will injure themselves on obvious or common conditions.” Corcoran, 73 Ill. 2d at 326, 383 N.E.2d at 180; see also Logan, 139 Ill. 2d at 235-36, 564 N.E.2d at 787.

Plaintiffs argue the court erred in applying this standard to the facts surrounding Steven’s injury. Defendant argues plaintiffs presented no evidence that it knew children frequented its property. In addition, defendant contends the evidence did not show a dangerous condition existed on its property.

Steven, his brother, and his friends played on the rock pile four to five times before he was injured on May 4. These occasions occurred within the month and a half preceding the May 4 accident. McKinney stated he saw children playing in the yard on only one occasion. Defendant correctly argues this evidence does not establish it knew children frequently played in the storage yard. However, under the analysis in Kahn, which involved an appeal from dismissal of a complaint, the court had also to determine if there was insufficient evidence to find defendant should have known children frequently played in the yard. (Corcoran, 73 Ill. 2d at 326, 383 N.E.2d at 187; Kirby, 169 Ill. App. 3d at 420, 523 N.E.2d at 646.) Steven’s parents testified they saw children playing in the yard frequently. His father saw children playing there frequently on nice days, and his mother saw children there only after work hours for Harristown Township employees. In addition, Shull testified that when he called McKinney to tell him about his son’s injury, McKinney stated he knew children were playing in the yard. Although McKinney denied saying this to Shull, reasonable jurors could have disagreed about whom to believe.

The question of whether defendant knew or should have known children frequently played in the yard need only have been determined by a jury, however, if a factual issue also remained about whether a dangerous condition existed on defendant’s property. Plaintiffs had to allege facts to show (1) the township knew or should have known children frequented its property and (2) a dangerous condition existed on the property. Without sufficient facts to raise an issue on each of these points, as a matter of law, plaintiffs could not prove the township was liable for Steven’s injury. Corcoran, 73 Ill. 2d at 326, 383 N.E.2d at 180.

The parties agree a property owner is not liable for injuries suffered by a child when risks related to the dangerous condition on the property should have been obvious to the child. Recognized obvious dangers include, e.g., a tree used by high school students to climb a roof (Newby v. Lake Zurich Community Unit, District 95 (1985), 136 Ill. App. 3d 92, 482 N.E.2d 1061); the danger posed to a 14-year-old by power lines (Bonder v. Commonwealth Edison Co. (1988), 168 Ill. App. 3d 80, 522 N.E.2d 227); and the danger posed to a five-year-old, and two seven-year-olds by a duck pond (Wingate v. Camelot Swim Club, Inc. (1990), 193 Ill. App. 3d 963, 550 N.E.2d 665).

Defendant contends the obvious danger doctrine applies to what occurred May 4 when Steven was injured, pointing to Steven’s admission that he knew if he did not remove his hand as it neared a roller, the roller would injure his hand. Defendant argues this proves Steven exposed himself to a known, obvious risk which children are expected to appreciate and avoid.

Plaintiffs argue the gate constituted a dangerous condition. They correctly argue a dangerous condition need not be a defective condition. (Smith v. Springman Lumber Co. (1963), 41 Ill. App. 2d 403, 191 N.E.2d 256.) However, plaintiff must allege facts which show the condition in some way increased the risks which children would generally face. (Corcoran, 73 Ill. 2d at 328, 383 N.E.2d at 181.) Plaintiffs’ allegations and other evidence did not establish this factor.

Defendant compares its gate to any gate or to the door of a home. Steven could have easily caught his finger in any door, or his hand in any gate. Defendant argues if it is liable for Steven’s injuries, people with gates and ordinary doors would have to keep their doors and gates locked at all times to avoid liability. It cites Bonamie v. Welsh (1981), 95 Ill. App. 3d 349, 420 N.E.2d 243, as support for this view. In Bonamie, a five-year-old was injured when he fell through a glass door at defendant’s residence. The court refused to hold defendant liable. It reasoned as follows: “A common door, located in a place where one would expect a door to be, is not, in and of itself, a dangerous agency. Almost any household fixture is capable of causing injury under certain conditions.” Bonamie, 95 Ill. App. 3d at 350, 420 N.E.2d at 244.

Similarly, when a child swings on a gate, any gate is capable of causing injury. When the child knows of the risk and refuses to avoid the risk, the property owner should not be responsible for injuries suffered by the child. Steven’s parents told him not to play in the township’s yard. In addition, Steven testified that while he was swinging on the gate, he knew he could injure his hand if it became lodged under the roller.

Plaintiffs contend this testimony should not be construed to mean Steven fully understood the consequences of riding the gate. However, an obvious risk is not limited to circumstances where the child knows the full extent of injuries to which he might be exposed by ignoring risks associated with a known danger. Steven may not have known the extent of treatment his injury would require if his hand was lodged in the roller. It was, however, obvious to Steven he would injure his hand if he did not remove it before the roller approached. The risks posed to Steven by the township’s gate were obvious and known by him.

Plaintiffs correctly argue an obvious risk is actionable where surrounding circumstances enhance the risk to a child. The Corcoran court ruled a municipality was not liable for injury to a two-year-old who fell into a drainage ditch. It noted, however, that the municipality may have been liable for failing to fence in the ditch if, for example, the sides of the ditch were unnoticeable, extremely steep, or the ditch was filled with debris. Corcoran, 73 Ill. 2d at 328, 383 N.E.2d at 181.

Other surrounding circumstances which courts have concluded support finding a dangerous condition existed on a property include, e.g., the proximity of a sandpile to railroad tracks, where defendant knew children played on the sandpile (Halloran v. Belt Ry. Co. (1960), 25 Ill. App. 2d 114, 166 N.E.2d 98); a ladder extended over an open stairway in a building under construction where a four-year-old was injured (Trobiani v. Racienda (1968), 95 Ill. App. 2d 228, 238 N.E.2d 177 (finding complaint stated a good cause of action to recover for injuries to child, rejecting argument on appeal from denial of petition to vacate default judgment)); and an unused fuel tank located close to a tree which defendant knew children used to climb the tree (Smith v. Springman Lumber Co. (1963), 41 Ill. App. 2d 403, 191 N.E.2d 256).

Defendant argues these circumstances are distinct from the facts and circumstances surrounding Steven’s injury. It contends the only circumstance of which plaintiffs complain is that the gate remained unlocked. Defendant is correct. Halloran, Trobiani, and Springman Lumber each involved an interaction between two or more conditions which existed on defendant’s property, or a condition which defendant clearly knew about and did not remedy. In this case, plaintiffs only contend that the gate should have been secured or locked. Plaintiffs do not, however, allege the unlocked gate interacted with some other factor to increase the risk to Steven or to other children. Steven knew about the danger in keeping his hand on the gate when the rollers approached. He had ridden the gate five to six times before his injury occurred. Each of these times Steven knew to remove his hand. Steven clearly knew riding the gate was dangerous. Defendant had no duty to protect him from such an obvious risk.

Plaintiffs contend Andrews v. General Contracting Co. (1962), 37 Ill. App. 2d 131, 185 N.E.2d 354, is most similar to circumstances surrounding Steven’s injury. In Andrews, the court upheld a jury verdict in favor of a child injured in an unfenced storage yard where defendant argued the circuit court should have granted its motions for directed verdict or for judgment n.o.v. However, as defendant notes, the children in Andrews played extensively in the yard and it was clear defendant knew this. The children had even built clubhouses in the yard with lumber from a piece of adjacent property, or with scrap lumber. (Andrews, 37 Ill. App. 2d at 133, 185 N.E.2d at 356.) The court reasoned defendant could have remedied the danger to children by simply erecting a fence. (Andrews, 37 Ill. App. 2d at 135-36, 185 N.E.2d at 357.) Plaintiffs in the present case contend this means defendant would also have to lock the gate to keep the children from entering. For this reason, plaintiffs contend, as in Andrews, defendant could have remedied the danger to children by locking the gate.

The Andrews court upheld the verdict against defendant noting that defendant had control of an unfenced area littered with machinery and other items attractive to children of tender years, knew or should have known children frequented the premises, and knew or should have known of the dangerous condition on the premises resulting from the refuse and debris strewn about the yard. Defendant argues the verdict there was upheld, in part, because of the refuse and debris in the yard, as an additional circumstance which posed a greater risk to children (Andrews, 37 Ill. App. 2d at 135, 185 N.E.2d at 357), whereas plaintiffs in this case provided no evidence to show what additional circumstances existed on defendant’s property which posed an additional risk of danger to children. We conclude, however, that “additional circumstances” is not the focus of distinction between Andrews and the case before us; Steven’s appreciation of the danger makes the obvious danger doctrine applicable and made the granting of summary judgment appropriate.

Plaintiffs also argue an additional factor the court should have considered is that because defendant knew children were present, it had a duty to remedy potentially dangerous conditions. In addition, the cost to defendant to do so would have been minimal. Defendant merely had to buy a padlock and secure the gate when leaving. These additional considerations and arguments do not overcome plaintiffs’ failure to provide evidence the gate presented anything other than a condition which Steven knew was dangerous. For plaintiffs’ argument that the gate posed greater than an ordinary, obvious risk to children to survive summary judgment, they had the burden to allege sufficient facts to describe the relevant circumstances. (Corcoran, 73 Ill. 2d at 328, 383 N.E.2d at 181.) Plaintiffs allege in count III that defendant created the unreasonable risk of harm to children by failing to lock or to secure the gate to protect children from being injured. Nothing in the record shows how this risk was any greater than the risk which Steven knew of, which was that the roller could injure his hand.

Plaintiffs also suggest perhaps the gate was defective. They argue the court erroneously accepted defendant’s argument the gate was not defective. However, plaintiffs again presented no evidence to the contrary. In fact, Steven testified there was nothing wrong with the gate when he swung on it.

It is unfortunate whenever a child is injured while playing. However, holding the property owner liable is not always appropriate. A child’s parents are primarily responsible to ensure the child does not participate in activity which could be dangerous. Driscoll v. C. Rasmussen Corp. (1966), 35 Ill. 2d 74, 79, 219 N.E.2d 483, 486; Corcoran, 73 Ill. 2d at 327, 383 N.E.2d at 180; Strode, 206 Ill. App. 3d at 404, 564 N.E.2d at 879.

As a matter of law, the gate on which Steven was injured was not a dangerous condition from which the township had to protect children of Steven’s age and maturity. Summary judgment in favor of defendant, Harristown Township, was proper. Plaintiffs did not allege facts or place before the court evidence sufficient to allow the case to proceed to trial. They did not allege facts sufficient to show the gate constituted a dangerous condition on the township’s property. Nor did they show why the gate posed additional risks other than the obvious risk which Steven knew about, i.e., the roller could injure his hand.

We affirm the trial court’s summary judgment in favor of defendant, Harristown Township.

Affirmed.

GREEN, P.J., and STEIGMANN, J., concur.