text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOMINGO RAMIREZ, Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 90—3528
    Opinion filed June 15, 1993.

      Rita A. Fry, Public Defender, of Chicago (Carlos J. Gonzalez, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Theodore F. Burtzos, and John R. Roe, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant Domingo Ramirez was arrested and charged by information for possession of more than 15 but less than 100 grams of cocaine with intent to deliver. (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2).) Prior to trial, he moved to quash his arrest and suppress any evidence which had directly or indirectly resulted from that allegedly illegal arrest. With the agreement of the parties, the court took the suppression motion with the case, conducting a hearing on it concurrently with the trial and resolving it based on the evidence adduced at trial. Defendant then filed a written waiver of his right to be tried by a jury.

The State first called Chicago police officer Gerald Droba, who had arrested defendant. He related that on December 30, 1989, he and his partner, while on “plainclothes” detail, were assigned to a beat patrol in an unmarked car, and while heading south on Wood Street near 56th Street on the city’s south side, they realized that the vehicle in front of them had no license plates, nor did it have a temporary vehicle registration card affixed to its rear window. After curbing the vehicle, the two approached the driver, whom the officer identified for the record as being defendant. Droba asked defendant to alight from the auto, informed him that he was an officer and advised him that he had been stopped because he had no visible vehicle registration on his car. Defendant responded that he had a temporary registration card, which the officers subsequently found lying on the rear deck of the auto. The officer requested defendant’s driver’s license, and upon learning that he did not have it with him at the time, Droba told him he was under arrest, advised him of his rights as required by Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, and as his partner placed handcuffs on defendant, Droba conducted a “pat-down” search of him.

According to Droba, the purpose of the search was primarily to look for weapons, but as he felt down defendant’s leg, he came upon what he described as a large lump proximate to his shin. Further investigation revealed that the lump was a quantity of white powder, which he suspected to be cocaine, wrapped in clear plastic, which the officer estimated to weigh about an ounce. Later, the parties stipulated that laboratory tests affirmatively established that the substance was cocaine and that the total weight of the amount seized was 27.44 grams. The search incident to defendant’s arrest also disclosed that he was carrying $575 that evening.

The officer testified that he issued a citation to defendant charging him with failure to produce a driver’s license upon request, the absence of license plates and failure to display a registration sticker issued by the City of Chicago. Through a terminal in the squadrol, he later learned that defendant was validly licensed by the State to operate a motor vehicle.

Droba and his partner completed the arrest of defendant and placed him in the back of their car, where he was joined by Droba’s partner. The three sat in the vehicle for a short while after which Droba asked defendant “What do you want to tell us about what I found?” Defendant replied “Please let me go. I was just delivering the powder to a black dude on 56th and Wood. I don’t sell cocaine. He sells cocaine. I was just delivering it for $50.”

When asked, Droba did not recall that there was anyone within a 40-foot radius of where these events had transpired. On cross-examination, he admitted that since he was in an unmarked car when he curbed defendant, he did not have his “ticket book” with him at the scene and that prior to stopping defendant and investigating further, he was unaware that defendant had committed any traffic offense other than neglecting to display plates or the temporary registration card. Droba also stated that he did not remember if he actually filled out the citation or if another officer completed the form; and he agreed that prior to the arrest, he had no warrant for defendant’s arrest or a search warrant for the car. He further conceded that until he felt the lump in his sock, he had no reason to believe that defendant carried narcotics with him.

At the close of the State’s case, defendant moved for a “directed finding” in his favor, and after it was denied, took the stand in his own defense. He testified that on the night in question, he was driving southbound on Wood Street in an automobile he had only recently purchased, which he claimed ■ bore the requisite temporary license sticker properly taped to its rear window. While signalling for a right-hand turn, he noticed a car next to him. After turning the comer, the other auto turned as well, remaining behind him, and a short while later, it flashed its lights, which he presumed was intended to direct him to pull over to the side of the street. Defendant parked his car and complied with the officer’s instmction to exit the vehicle. He inquired as to why he was stopped, whereupon the officer asked him “What are you doing in this neighborhood?” He told the officer that he was on his way to visit a friend, Solo Lafava, who resided in the 5600 block of south Honoré Avenue, which is one block west of Wood Street. The officer then proceeded to search defendant, who again inquired as to why he was stopped, and was this time informed that it was because he had no license plates. Defendant immediately pointed out that he had the sticker in the window and which he recalled seeing still prominently displayed while he spoke to the officer.

Defendant denied ever being asked for his operator’s license, but was unsure if he had it with him on the night of his arrest. He testified that while Droba searched his person, the other officer searched the front seat of his vehicle. Once Droba completed his search of defendant, he left him unattended and looked about the rear seat, where he found a plastic bag filled with white powder. The officer announced that he “got something,” handcuffed defendant, placed him in the squad car and drove him to the station. Although he agreed that Droba had said something to him while they sat in the squadrol, he denied that he confessed to the officer that he was a drug courier. He told the court that he remained silent while being transported to the station.

Defendant recalled that once they arrived at the stationhouse, Officer Droba instructed two other uniformed policemen to write up traffic citations naming defendant. Defendant concluded his direct examination by informing the court that while he was being arrested three individuals, Solo Lafava, Gilbert Garcia and Royce Brown, witnessed the event. During cross-examination, defendant explained that the $575 he carried the night of the arrest was from his pay check, which he had cashed near the time of the arrest, although he did not remember precisely when he was paid or when he cashed the check. The assistant State’s Attorney elicited that while Gilbert Garcia, one of the purported witnesses to the arrest, was his brother, with whom he resided, defendant said nothing to him or the other two while being arrested, although the three were, at most, seven or eight feet from him and the police. He also admitted that the officers said nothing to the three men while they completed the arrest.

Royce Brown testified that on the night of the arrest he was visiting his ex-wife, who resided in the 5600 block of south Honore Avenue, and that on his way home, he stopped at the home of a man he knew as Junior or JR. There he met Gilbert, whose last name he did not know. He related that the three were in JR’s yard when he saw the police curb defendant’s car and heard defendant ask why he was stopped, to which a policeman responded by asking why defendant, an Hispanic, was in a neighborhood where African-Americans predominate. Gilbert Garcia testified that he was the half-brother of defendant, and his testimony was generally consistent with that offered by defendant and Brown. He added that it was common for his brother to carry large sums of money with him after being paid.

The court denied defendant’s motion to suppress, finding that the missing license plates justified the initial stop of the vehicle, and when, after being stopped, defendant failed to exhibit his driver’s license upon demand, the officers were authorized to arrest him, which in turn sanctioned a search incident thereto, the fruit of which was the ball of cocaine. It found, accordingly, that the State had proved beyond a reasonable doubt that defendant committed the crime as charged, and it sentenced him to six years in the custody of the Illinois Department of Corrections.

On appeal, defendant apparently concedes that, under existing Illinois law, the arresting officers were authorized to stop him initially for his failure to display valid State license plates in violation of section 3 — 701 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95½, 3 — 701; see People v. Tylkowski (1988), 171 Ill. App. 3d 93, 98, 524 N.E.2d 1112, 1116 (holding that the absence of license plates on the car of a suspect for murder justified his initial on-the-street detention by police); see also People v. Palmer (1976), 62 Ill. 2d 261, 263, 342 N.E.2d 353, 354 (observing that the “absence of license plates suggests a serious violation of the law which justifies a search”); and he does not suggest that the officers acted outside their authority when, in reaction to his failure to show a valid driver’s license, they placed him under a full custodial arrest. (Ill. Rev. Stat. 1991, ch. 95½, par. 6 — 112; see People v. Perry (1990), 204 Ill. App. 3d 782, 562 N.E.2d 618 (noting that the custodial arrest of the defendant for failure to produce a valid driver’s license was lawful and proper).) Rather, defendant takes issue with the laws of Hlinois which authorized the police to arrest him and to discover, while conducting the search incident to the arrest, the quantity of cocaine he possessed. Borrowing heavily from the writings and research of Professor LaFave (2 W. LaFave, Search & Seizure §5.1(h) (2d ed. 1987 & Supp. 1993)), the essence of his argument is that the fourth amendment does not give police the unbridled discretion to arrest an individual merely because he may have committed any act which is considered a crime. Instead, according to defendant, the amendment prohibits all seizures, even those which follow the commission of offenses, which are not reasonable.

Defendant defines “reasonableness” in this context as a balance struck between the State’s need for a full custodial arrest versus the extent to which such an arrest intrudes on an individual’s expectation of privacy. Under defendant’s approach, unless the State can assert a legitimate interest which can be satisfied exclusively by the arrest of an individual who it has probable cause to believe committed a crime, a seizure of that person would be unreasonable, and thus, any evidence gathered as a result of that illegal seizure would be the excludable “fruit of the poisonous tree.” He asks this court to engraft a “legitimate interest” test on the fourth amendment and hold thereby that since the State’s interest of ensuring that he appear for trial on a relatively minor offense could have been secured by much less intrusive means, such as a promise to appear signed by defendant, there was no imperative to arrest him. Therefore, he argues, his conviction must be reversed because he was found guilty on the strength alone of the evidence discovered as the product of what he describes as an illegal seizure.

In support of this argument, defendant cites cases from other jurisdictions which have held that on the particular facts of the case, the fourth amendment was offended by the custodial arrest of an individual because the governmental interest at stake could have been satisfied by something less than a seizure. In State v. Klinker (1975), 85 Wash. 2d 509, 537 P.2d 268, the Washington State Supreme Court ruled unconstitutional a State statute which authorized the issuance of an arrest warrant and subsequent seizure of a putative father in order to secure his attendance at a hearing held to determine paternity. The court reasoned that the fourth amendment commands that a seizure be- reasonable, which can be met only where the arrest “serve[s] some governmental interest which is adequate to justify the imposition on the liberty of the individual.” Klinker, 85 Wash. 2d at 519, 537 P.2d at 277.

However, in Klinker, the State was depriving an individual of his liberty in order to secure his presence at afiliation hearing which under Washington law was a civil action. This is also true in other instances where a court found a full custodial arrest to be unreasonable because'the State could not advance an interest of sufficient weight to warrant the great intrusion on an individual which a custodial arrest entails. For example, in Barnett v. United States (D.C. 1987), 525 A.2d 197, the court suppressed marijuana which was discovered on the defendant’s person while he was being searched incident to a custodial arrest. The court found that the seizure was unreasonable in a constitutional sense because there were insufficient facts before the arresting officer for him to conclude that the individual had committed a misdemeanor. At best, the officer had enough facts to warrant the issuance of a ticket for a civil infraction. The court determined that a civil offence was not a sufficient justification to seize the individual and that consequently the search incident to it was necessarily infirm.

The reasoning of those cases does , not, however, compel us to find that the seizure in the instant case was unreasonable because defendant was seized for what the officer had probable cause to believe was the commission of what our legislature has determined to be a misdemeanor, the driving of a motor vehicle without being licensed. (Ill. Rev. Stat. 1991, ch. 95½, par. 6 — 601(a).) Even at common law a police officer was authorized to arrest an individual who committed a misdemeanor in the officer’s presence. (See 5 Am. Jur. 2d Arrest §§26 through 31 (1962).) The United States Supreme Court appears to have approved of and to have found constitutional for the purposes of the fourth amendment the common law rule in United States v. Watson (1976), 423 U.S. 411, 46 L. Ed. 2d 598, 96 S. Ct. 820. Accordingly, even were we to adopt defendant’s legitimate interest test for fourth amendment seizures, his test would be satisfied here, for the commission of a crime alone has long been recognized as providing the necessary predicate to seize an offender, even where his offense was relatively minor. Therefore, the approach he advocates, which has been applied in civil contexts to find seizures of individuals unreasonable, is inapplicable where the seizure is effected in response to the commission of an act which the legislature has chosen to define as a crime. (Cf. People v. Bryant (1989), 128 Ill. 2d 448, 456, 539 N.E.2d 1221, 1225 (admonishing courts to be especially reluctant to invalidate criminal statutes because “[t]he legislature has been empowered to declare and define conduct constituting a crime”).) In fact, one may conclude from the reasoning of the court in Barnett and the emphasis it placed on the civil character of the defendant’s offense that it would have found no constitutional infirmity with the defendant’s arrest and subsequent search had he refused to provide the officer his name and address, which under the applicable statute would have then turned the civil offense for which he was cited into a misdemeanor.

Moreover, the case at bar is indistinguishable from People v. Morrison (1978), 57 Ill. App. 3d 468, 373 N.E.2d 520, where this court held that an arrest was valid where, due to the defendant’s inability to produce a valid license upon demand, an officer had probable cause to believe the individual had committed the Class A misdemeanor of driving without a valid license in violation of section 6 — 601(a) of the Illinois Vehicle Code. (Ill. Rev. Stat. 1975, ch. 95½, par. 6 — 601(a).) The court found it of no consequence that sometime after being arrested and searched, the defendant was able to produce a valid license substitute to dispel the officer’s initial belief that she had committed a misdemeanor; all that mattered for purposes of the fourth amendment was that at the precise moment the officer perfected the custodial arrest and searched the defendant, he had the requisite probable cause to believe that criminality was afoot. People v. Montgomery (1986), 112 Ill. 2d 517, 494 N.E.2d 475 (holding that the test for probable cause is whether the facts and circumstances known to the officer at the time of the seizure would lead the reasonably prudent person to believe a crime had been committed).

Here when the officers placed defendant under a full custodial arrest, they possessed ample reason to think that defendant, much like the defendant in Morrison, had committed the misdemeanor of operating a vehicle without securing a license from the State. It was not until after they had discovered the cocaine in a valid search incident to the arrest for the misdemeanor that they learned that defendant was properly licensed but merely neglected to possess the evidence of it at the time of his arrest. Consistent with Morrison, since defendant was placed under custodial arrest for a misdemeanor committed in the officer’s presence, the fourth amendment was not offended merely because the officer could have issued a citation rather than arrest him in order to secure his presence at trial. (See United States v. Franklin (8th Cir. 1984), 728 F.2d 994 (holding that a full custodial arrest for a minor traffic violation is not unconstitutionally unreasonable where the violation (failure to display license plates, inspection sticker and local permit) was committed in officer’s presence); see also State v. Lohff (1974), 87 S.D. 693, 214 N.W.2d 80 (dismissing with little comment the defendant’s assertion that because an officer, under State law, could have given him a citation rather than placing him in custody for a traffic violation, his arrest was unreasonable).) Thus, the circuit court did not err by denying defendant’s motion to suppress the cocaine; accordingly, its finding him guilty, based as it was on that evidence, is also affirmed.

Affirmed.

McCORMICK, P.J., and DiVITO, J., concur.

       We reiterate our puzzlement over what sort of procedural device could allow the court in a bench trial, at the urging of the parties, to direct itself to “find” something, and we refer the litigants to our previous discussion of “directed findings” in nonjury cases in People v. Davilla (1992), 236 Ill. App. 3d 367, 373 n.3, 603 N.E.2d 666, 669 n.3, in an attempt to convince that even if such a device were feasible, as far as we are aware, no such procedure is offered to litigants by the laws of this State.


source: Caselaw Access Project

author: JUSTICE HOFFMAN

license: Public Domain

text:
    HERBERT LORENZ et al., Plaintiffs-Appellants, v. JOSEPH SIANO, Defendant-Appellee.
    First District (4th Division)
    No. 1 — 91—3187
    Opinion filed June 17, 1993.
    Rehearing denied July 21, 1993.

      Propp & Schultz, of Chicago, for appellants.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Alison E. O’Hara, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE HOFFMAN

delivered the opinion of the court:

Plaintiffs, Herbert and Grace Lorenz, appeal from an order of the circuit court of Cook County denying their motion for a new trial following the entry of judgment on a jury verdict in favor of defendant, Joseph Siano.

The Lorenzes filed a complaint in negligence against Siano arising from a vehicular accident which occurred on Illinois Route 53 south of Euclid Road in Palatine, Illinois, on September 11, 1984. Herbert Lorenz sought damages for injuries he sustained as a result of the accident. Grace Lorenz requested damages for loss of consortium by reason of the injuries suffered by her husband, Herbert.

Between 9 and 9:30 a.m. on September 11, 1984, Herbert Lorenz was driving north on Route 53 at a speed of about 55 miles per hour in the far right lane. At the place of the occurrence, Route 53 has three northbound traffic lanes. As Lorenz approached Euclid Road, the two cars in front of him in his lane moved into the center northbound lane, leaving Lorenz directly behind a “front-end loader” driven by Siano, an employee of the Illinois Department of Transportation (IDOT). In an effort to avoid colliding with Siano, who was travelling at a speed of 12 to 15 miles per hour, Lorenz turned his vehicle abruptly to the left. During the execution of this evasive maneuver, Lorenz lost control of his vehicle and crossed all three northbound lanes of traffic, hit the center median, flipped over a guard rail and landed in the southbound lanes of traffic. Lorenz’s vehicle did not make contact with Siano’s or any other vehicle.

The “front-end loader” driven by Siano was an IDOT vehicle, a large tractor-like construction implement with a seven-foot-wide bucket on the front. The vehicle is capable of a maximum speed of 18 miles per hour.

At trial, there was conflicting testimony as to the location of Siano’s vehicle on the roadway. Siano testified that he was driving on the shoulder of the road and at no time did any portion of his vehicle enter a traffic lane. Lorenz, on the other hand, testified that Siano was driving in the right traffic lane rather than on the shoulder of the road.

The Lorenzes raise two issues on appeal. First, they maintain that the verdict in favor of Siano was against the manifest weight of the evidence. Second, they contend that the prejudicial behavior of defense counsel had the cumulative effect of depriving them of a fair trial. In addition to these issues, Siano has raised two arguments for review. First, Siano contends that the circuit court of Cook County lacked subject-matter jurisdiction over the Lorenzes’ action. Second, he argues that, assuming the circuit court possessed jurisdiction, the judgment in his favor should be affirmed because at the time of the occurrence he was cloaked with public official immunity.

As a preliminary matter, we note that Siano has not filed a cross-appeal. However, that circumstance does not preclude our consideration of either of his contentions in this case. An alleged lack of subject-matter jurisdiction may be raised at any time, even on appeal by a party who has failéd to include it in a notice of appeal. (Talandis Construction Corp. v. Illinois Building Authority (1978), 60 Ill. App. 3d 715, 377 N.E.2d 237.) Additionally, Siano’s official immunity argument, having been interposed by Siano as appellee in support of the judgment on appeal, is a proper subject for consideration as long as a factual basis for the point was before the trial court. Jackson v. Chicago Board of Education (1989), 192 Ill. App. 3d 1093, 549 N.E.2d 829.

We first address Siano’s jurisdictional issue.

Section 4 of article XIII of the Illinois Constitution provides that “[e]xcept as the General Assembly may provide by law, sovereign immunity in this State is abolished.” (Ill. Const. 1970, art. XIII, §4; see also Ill. Rev. Stat. 1991, ch. 127, par. 801.) Acting under its constitutional grant of authority, the Illinois legislature has enacted the Court of Claims Act, which provides that the Court of Claims has exclusive jurisdiction to hear and determine all claims against the State of Illinois for damages in cases sounding in tort. Ill. Rev. Stat. 1991, ch. 37, par. 439.8.

Siano asserts that although only he is named as a defendant, this is in fact a claim against the State. Whether a particular action is in fact one against the State, and hence one that must be brought in the Court of Claims, depends upon the issues involved and the relief sought rather than the formal identification of the parties. (See Herget National Bank v. Kenney (1985), 105 Ill. 2d 405, 475 N.E.2d 863.) A plaintiff may not avoid the exclusive jurisdiction of the Court of Claims by suing only an individual defendant. (Healy v. Vaupel (1990), 133 Ill. 2d 295, 549 N.E.2d 1240.) The Court of Claims has exclusive jurisdiction over tort claims against State agents for acts committed in the discharge of their normal and official duties; such jurisdiction does not lie, however, where the agent has acted outside the scope of his authority or in violation of law, or where the agent’s duty to the plaintiff arose independent of his State employment. Healy, 133 Ill. 2d at 308; Herget National Bank, 105 Ill. 2d at 411-12.

There is no question that at the time of the occurrence giving rise to this litigation, Siano was operating the “front-end loader” in the course of his normal and official duties for IDOT. Because the vehicle being operated by Siano was an off-road construction vehicle unsuited for normal highway driving, any duty owed by Siano to Lorenz arose directly from Siano’s official duties for the State and not independent thereof. The very nature of this vehicle distinguishes this case from those finding that the duty owed by a State employee in the normal operation of an ordinary motor vehicle is a duty arising independent of the agent’s State employment. (See Currie v. Lao (1992), 148 Ill. 2d 151, 592 N.E.2d 977.) As a consequence, unless Siano acted in violation of statute in the manner in which he performed his State duties, exclusive jurisdiction over this action would lie with the Court of Claims.

In their complaint, the Lorenzes have charged that Siano acted in violation of statute in the operation of the “front-end loader”; specifically, they have alleged a number of violations of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95½, par. 1 — 100 et seq. (Code)). However, section 11 — 205(f) of the Code exempts vehicle operators such as Siano from compliance with those portions of the Code referenced by plaintiff while they are “actually engaged in work upon a highway.” But, no such exemption exists when the operator is “traveling to or from such work.” Ill. Rev. Stat. 1983, ch. 95½, par. 11 — 205(f).

The determinative question becomes whether Siano was actually engaged in work upon a highway at the time of the occurrence. If the answer is in the affirmative, he could not be said to have acted in violation of statute by virtue of the section 11 — 205(f) exemption, and exclusive jurisdiction over the Lorenzes’ action against him would lie in the Court of Claims. If, on the other hand, he was in the act of traveling to his work site at the time of the occurrence, he was not exempt from compliance with the Code, and, because the Lorenzes have alleged negligence predicated in part upon Siano’s violation of Code provisions in the manner in which he operated the “front-end loader,” the circuit court had jurisdiction over the action.

The circuit court is a court of general jurisdiction (Ill. Const. 1970, art. VI, §9), and as such, is presumed to have jurisdiction to render any judgment until the contrary is shown. (Bartunek v. Lastovken (1932), 350 Ill. 380, 183 N.E. 333.) As the party asserting error in the circuit court’s exercise of jurisdiction in this case, it was incumbent upon Siano to furnish this court with a record illustrating the error of which he complains. (Willard v. Northwest National Bank (1985), 137 Ill. App. 3d 255, 484 N.E.2d 823.) It was Siano’s burden to direct this court to evidence establishing that at the time of the occurrence he was “actually engaged in work upon a highway” and thus exempt from the Code provisions he was alleged to have violated.

Siano’s testimony reveals that he picked up the “front-end loader” from the IDOT yard on 1-290 and was driving along the shoulder of the road when the events at issue transpired. Siano was never questioned regarding the location of his assigned work site. Three eyewitnesses to the occurrence, Mr. Rawlinson, who was an IDOT employee, Mr. Ball, and Mr. Peace, all testified to the presence of other State highway equipment in both northbound and southbound lanes of Route 53. Although Rawlinson testified that IDOT was scheduled to do work along the shoulder of both the northbound and southbound lanes of Route 53 north and south of Euclid Road, the trial transcript is silent as to the work site to which Siano was assigned. However, the record contains the transcript of Siano’s discovery deposition submitted in support of his pretrial motion to dismiss. In that deposition, Siano testified that he was assigned to work on Route 53 at Northwest Highway, a location that was north of Euclid Road.

In Townsend v. Gaydosh (1990), 197 Ill. App. 3d 339, 554 N.E.2d 648, this court had occasion to construe section 11 — 205(f) and held that “[o]nce a [highway] worker arrives at the construction or work site, he is actually engaged in the work.” (Townsend, 197 Ill. App. 3d at 343.) The record before us indicates that the case at bar is factually distinguishable from Townsend. In that case, the defendant had arrived at his work site when the accident occurred. In the case at bar, Lorenz’s accident took place south of Euclid Road, a location which was not an intended work site for Siano. The fact that IDOT may have intended to perform work at or near the site of Lorenz’s accident is of no moment. The exemption in section 11 — 205(f), which applies to “persons, motor vehicles and equipment while actually engaged in work upon a highway,” is personal to the driver and the vehicle. Thus, the determination of whether the exemption applies in a given set of circumstances must be made with reference to the work site to which the driver or vehicle is assigned rather than to some greater construction area within which the driver's employer may be engaged.

Because the evidence fails to show that Siano had arrived at his work site at the time of the occurrence, Siano cannot be deemed to have been exempt from the Code while operating the “front-end loader.” Accordingly, because the complaint charges Siano with statutory violations, the circuit court properly assumed jurisdiction over this case.

We next address Siano’s contention that he was immune from the Lorenzes’ action under the common law doctrine of public officials’ immunity. In its decision in Currie v. Lao (1992), 148 Ill. 2d 151, our supreme court held:

“The common law doctrine of public officials’ immunity dictates that public officials are immune from personal liability for their performance of discretionary duties. (Mora v. State (1977), 68 Ill. 2d 223, 234.) The doctrine is premised upon the principle that a public decision maker should not be subject to personal liability where he makes a decision based upon his perception of the public needs. (Campbell, 207 Ill. App. 3d at 553.) The immunity attaches only to conduct by a public official that is discretionary, rather than ministerial, in nature. (Mora, 68 Ill. 2d at 233.) Further, it is well established that public officials’ immunity does not apply to every discretionary act by an official but rather only to those acts which are unique to the particular public office. Gavery v. County of Lake (1987), 160 Ill. App. 3d 761, 764.” Currie, 148 Ill. 2d at 166-67.

On this issue, suffice it to say that the speed at which one operates a “front-end loader,” the lookout that must be maintained for other traffic, and the question of whether the vehicle-operator should activate warning lights are hardly discretionary matters unique to the operation of such a vehicle for IDOT. The exercise of judgment necessary to the safe operation of a “front-end loader” being driven on or along the shoulder of a highway is the same for an employee of a private contractor as it is for an IDOT employee. The manner in which Siano drove the “front-end loader” at the time of Lorenz’s accident did not involve acts unique to his status as an IDOT employee, and it did not give rise to the application of the doctrine of public officials’ immunity.

Having disposed of Siano’s arguments on review, we turn now to the Lorenzes’ contentions. In seeking reversal of the judgment entéred against them and a remandment for a new trial, the Lorenzes argue that: (1) the prejudicial conduct of defense counsel deprived them of a fair trial; and (2) the jury’s verdict was against the manifest weight of the evidence. In support of their argument of prejudice, the Lorenzes contend, inter alia, that defense counsel appealed to the sympathy of the jury by asking Siano questions about his financial means and admonishing the jury, in both opening statement and closing argument, that it was Siano and not the State of Illinois that was the defendant in the case.

No citation of authority is necessary for the proposition that civil jury cases should be decided based upon the evidence and the issues presented by that evidence, by an impartial jury unencumbered by appeals to their passion, prejudice or sympathy. In personal injury actions where the only damages recoverable are compensatory in nature, the financial standing of the parties is irrelevant and prejudicial. Dipaolo v. Johnson (1973), 15 Ill. App. 3d 735, 305 N.E .2d 194; Hedge v. Midwest Contractors Equipment Co. (1964), 53 Ill. App. 2d 365, 202 N.E.2d 869.

Defense counsel’s inquiries of Siano as to the ownership of his home and the amount of his annual income were manifestly improper. The only conceivable purpose of such questions was to arouse the sympathy of the jury. The fact that the Lorenzes’ objections were sustained and the questions were never answered is of small consolation. The very asking of the questions directed the jury’s attention to the nonissue and achieved the intended inflammatory result, especially when, as in this case, the effect was reinforced by counsel’s arguably permissible reminders that Siano, rather than the State of Illinois, was the defendant.

It has long been the rule in Illinois that appeals to the passion or sympathy of the jury are improper and are sufficient cause for reversing a judgment unless it can be said that the prejudice suffered was so minimal that it did not impact upon the outcome of trial. (Appel v. Chicago City Ry. Co. (1913), 259 Ill. 561, 102 N.E. 1021; Mykytiuk v. Stamm (1990), 196 Ill. App. 3d 928, 554 N.E.2d 505.) This case was not one-sided; there was conflicting evidence on the critical question of the location of the “front-end loader” in Lorenz’s lane of traffic. And we are unable to say that defense counsel’s appeals to the sympathy of the jury had no affect upon the verdict.

Where, as in this case, the evidence of liability is close enough to sustain a verdict for either party, and it cannot be determined from the record whether an appeal to the sympathy of the jury affected its verdict, the sole remedy is to grant a new trial. Shehy v. Bober (1979), 78 Ill. App. 3d 1061, 398 N.E.2d 80.

Having determined that the Lorenzes are entitled to a new trial for the reason already expressed, we need not address their other arguments of error.

Reversed and remanded for a new trial.

Reversed and remanded.

JIGANTI, P.J., and CAHILL, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. KENNETH WINKLER, Defendant-Appellee.
    First District (4th Division)
    No. 1 — 92—1984
    Opinion filed June 17, 1993.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Jon J. Walters, and Susan Schierl, Assistant State’s Attorneys, of counsel), for the People.
    Rita A. Fry, Public Defender, of Chicago (R.H.R. Silvertrust, Assistant Public Defender, of counsel), for appellee.
   JUSTICE HOFFMAN

delivered the opinion of the court;

Defendant was indicted for felony driving under the influence of alcohol (DUI) allegedly based on two prior convictions for DUI: one in 1988 and the other in 1983. (Ill. Rev. Stat. 1989, ch. 95½, par. 11— 501(d)(1).) Defendant filed a motion challenging the indictment because, after he pled guilty to the 1983 DUI, he was only placed on supervision, which was terminated satisfactorily. Defendant argued that he could not be charged with felony DUI because the supervision was not a conviction and, therefore, he had only one prior DUI conviction which could not support felony DUI.

The trial court suppressed the evidence of the supervision on the DUI which, as the court recognized, effectively barred the State from prosecuting defendant for a felony. The State appeals (134 Ill. 2d R. 604(a)(1)), contending that the supervision was admissible.

In reaching a decision in this case, we must interpret the language of the statute, giving the words their plain and ordinary meaning, to determine the legislature’s intent. (Cunningham v. Huffman (1993), 154 Ill. 2d 398, 609 N.E.2d 321; People ex rel. Baker v. Cowlin (1992), 154 Ill. 2d 193, 607 N.E.2d 1251.) Section 11-501(d)(l) of the Illinois Vehicle Code provides:

“(d) Every person convicted of committing a violation of this Section shall be guilty of a Class 4 felony if:
(1) Such person committed a violation of [driving while under the influence of alcohol] for the third or subsequent time.” (Ill. Rev. Stat. 1989, ch. 95½, par. 11 — 501(d)(1).)

The issue presented is whether a defendant has “committed” a prior DUI when he pled guilty and was placed on supervision.

The State argues that felony DUI does not require two prior DUI convictions because the term “committed” is not the same as a conviction. Because a defendant can only receive supervision if he had pled guilty or stipulated to the facts supporting the charge or there was a finding of guilt (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—1(c)), the State reasons that defendant here committed a prior DUI when he pled guilty and received supervision. Alternatively, the State urges that for purposes of section 11 — 501(d)(1), supervision is the equivalent of a conviction.

In response, defendant argues that supervision is not a conviction but is similar to a continuance and if a defendant exhibits good conduct during supervision, the charges may be dismissed and the record of proceedings expunged. Defendant refers to language in People v. Johnson (1989), 128 Ill. 2d 253, 293, 538 N.E.2d 1118, 1136 (Clark, J., concurring), where Justice Clark stated that “[t]he obvious intent of the [supervision] statute is to reward a defendant who successfully completes a term of supervision by freeing him from future criminal consequences for the acts charged.” (See Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—3.1(f).) However, in Johnson, the majority of the court concluded that a prior supervisory disposition was a proper factor to consider in sentencing for a subsequent conviction. Johnson, 128 Ill. 2d at 287, 538 N.E.2d at 1133.

The court in Kirwan v. Welch (1989), 133 Ill. 2d 163, 166, 549 N.E.2d 348, 349-50, explained supervision:

“Supervision is defined as ‘a disposition of conditional and revocable release *** at the successful conclusion of which disposition the defendant is discharged and a judgment dismissing the charges is entered.’ [Citation.] When a defendant is placed on supervision, judgment on the charges and all further proceedings are deferred until the conclusion of the period of supervision. [Citation.] If the defendant successfully completes his supervision, the defendant is discharged and a judgment dismissing the charges is entered. [Citation.] A discharge and dismissal upon a successful conclusion of supervision is without an adjudication of guilt and does not result in a conviction for purposes of disqualification or disabilities imposed by law.”

Section 11 — 501(d)(1) requires a person to have committed a DUI violation for the third or subsequent time to support a felony DUI conviction. The statute does not say that he must have two prior DUI convictions as that term is defined. (Ill. Rev. Stat. 1989, ch. 38, par. 2 — 5.) Had the legislature intended to require two prior convictions, it could have easily done so by using the term “convicted” in section 11 — 501(d)(1) instead of the broader term “committed.” Although supervision is not a conviction (People v. Coleman (1986), 111 Ill. 2d 87, 488 N.E.2d 1009), we believe that the term “committed” as used in section 11 — 501(d)(1) encompasses a prior supervisory disposition because a defendant must have pled guilty or stipulated to the facts supporting the charge before supervision could be imposed. Cf. People v. Masten (1991), 219 Ill. App. 3d 172, 579 N.E.2d 27 (a defendant could be charged with felony DUI when he previously pled guilty to DUI but was never sentenced because the guilty plea was the equivalent of a conviction).

In reaching our conclusion, we are aware of the language in People v. Harrison (1992), 225 Ill. App. 3d 1018, 1024, 588 N.E.2d 1256, 1260, where the Fifth District Appellate Court commented “the felony DUI statute requires that the offense which results in a person’s third conviction be preceded by two convictions.” (Emphasis in original.) However, there was no dispute in Harrison that the defendant had two prior DUI convictions. Therefore, the court was not presented with the issue in this case which is whether a person committed a prior DUI when he received supervision.

We have also taken into account People v. Carlock (1981), 102 Ill. App. 3d 1100, 1103, 430 N.E.2d 212, 215, where the Second District Appellate Court held that under the obscenity statute, which provided that a second or subsequent “offense” was a felony, it was the legislature’s intent that the penalty could not be enhanced to a felony unless the defendant was previously convicted for obscenity. In Carlock, the court considered the situation where a defendant was arrested but not charged with an offense, which is unlike the present case, where defendant pled guilty to the charge and received supervision.

Accordingly, we reverse the order of the circuit court and remand for further proceedings.

Reversed and remanded.

JOHNSON and CAHILL, JJ., concur.


author: JUSTICE McNULTY

text:
    ALI YACOUB, Special Adm’r of the Estates of Mohammad Yacoub et al., Deceased, et al., Plaintiff-Appellant, v. CHICAGO PARK DISTRICT et al., Defendants-Appellees.
    First District (5th Division)
    No. 1 — 92—1240
    Opinion filed June 18, 1993.

      Corboy & Demetrio, P.C., of Chicago (Philip H. Corboy, Philip Hartnett Corboy, Jr., and David A. Novoselsky, of counsel), for appellant.
    Gessler, Flynn, Fleischmann, Hughes & Socol, Ltd., of Chicago (John K. Hughes, William P. Jones, and Benjamin P. Beringer, of counsel), for appellee Chicago Park District.
    Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, Joseph J. Morford, James K. Horstman, and C. Barry Montgomery, of counsel), for appellee Metropolitan Sanitary District of Greater Chicago.
   JUSTICE McNULTY

delivered the opinion of the court:

Plaintiff Ali Yacoub, as administrator of the estates of his children, Mohammed Yacoub and Vicktoria Yacoub, and father and next friend of his son, Jonathon Yacoub, brought suit for wrongful death and damages against the Chicago Park District (Park District) and the Metropolitan Water Reclamation District (MWRD). The trial court granted defendants’ motions for summary judgment and plaintiff appeals.

The incident giving rise to this action occurred on January 30, 1987, while nine-year-old Mohammed, his eight-year-old brother Jonathon and their five-year-old sister Vicktoria were playing in the West River Park across from their home. According to the testimony of Jonathon Yacoub, the children were playing on a swing set when they decided to go through a hole in a chain-link fence to investigate an abandoned car on the other side. Also on the other side of the fence was the partially ice-covered Chicago River, a small waterfall and a dam. The children proceeded onto the partially ice-covered water. They then left the river and returned through the fence to the swing set. Minutes later, they again went through the fence and returned to the river. While the children ran and slid on the ice, Jonathon fell into a 40-foot by 40-foot area of water at the edge of the ice. Jonathon called for Mohammed to grab his arm but instead, Mohammad jumped into the river and drowned. With Vicktoria’s assistance, Jonathon was able to crawl out of the water. While returning with Jonathon toward the fence, Vicktoria noticed Jonathon’s gloves on the ice, near the water’s edge. As she reached for the gloves, Vicktoria fell into the open water and drowned.

Plaintiff’s second amended complaint alleged that both defendants were guilty of wilful and wanton conduct in failing to maintain, inspect and repair the chain-link fence. Defendants filed motions for summary judgment and the trial court granted the motions, finding that neither the Park District nor MWRD owed a duty to plaintiff’s children since the partially ice-covered river constitutes an open and obvious danger. For the following reasons, we affirm the decision of the trial court.

Summary judgment is to be granted only where the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005(c).) The granting of summary judgments is to be reviewed de novo. Dinkins v. Ebbersten (1992), 234 Ill. App. 3d 978, 600 N.E.2d 873.

The general rule in Illinois is that a lessor who relinquishes control of property to a lessee owes no duty to a third party injured while on the leased property. (Lamkin v. Towner (1990), 138 Ill. 2d 510, 563 N.E.2d 449.) Exceptions to this rule exist when: (1) a latent defect existed at the time of the leasing that the lessor should have known about; (2) there is a fraudulent concealment by a landlord of a dangerous condition; (3) the defect causing the harm amounts to a nuisance; (4) the landlord makes a promise to repair a condition at the time of leasing; and (5) the landlord violates a statutory requirement owed a tenant who is in the class designated to be protected by such requirement. Moreno v. Balmoral Racing Club, Inc. (1991), 217 Ill. App. 3d 365, 577 N.E.2d 179.

It is undisputed that MWRD leased the West River Park property to the Park District. Moreover, plaintiff does not refute the above-stated principles regarding leased property or claim that one of the exceptions to the general rule is applicable to this case. Instead, plaintiff claims that MWRD’s duty to repair the fence and the surrounding area in which the drowning occurred arose because the Park District did not have exclusive possession and control of the leased premises. Plaintiff finds significant the fact that MWRD had the right to construct improvements on the property, the right to approve any proposed improvements by the Park District, and the right to access.the property’s sewer operations.

We do not believe that MWRD’s contractual right to make improvements, approve improvements and access the property creates a duty on the part of MWRD. Virtually every landlord retains the right to enter the premises in order to construct improvements and to prevent the tenant from constructing improvements to the leased premises. These reservations in the lease do not, however, change the rule that it is the lessee, as the party in possession and control of the premises, who owes a duty to a third person and can be liable for injuries from defective conditions on the premises. (See National Tea Co. v. Gaylord Discount Department Stores, Inc. (1981), 100 Ill. App. 3d 806, 427 N.E.2d 345; Cerniglia v. Farris (1987), 160 Ill. App. 3d 568, 514 N.E.2d 792.) Furthermore, the record reveals that it was the Park District and not MWRD that had exclusive responsibility for inspecting, repairing and maintaining the property in question. Accordingly, it is clear that the trial court properly granted summary judgment in favor of MWRD since the property had been leased to the Park District.

Turning to plaintiff’s claim against the Park District, we find that although the Park District was the party in possession of the property in question, it owed no duty to the Yacoub children. A duty is imposed on an owner, possessor or controller of land when the owner, possessor or controller knows or should know that children frequent the premises and the cause of the child’s injury constitutes a dangerous condition on the premises. (Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023.) A dangerous condition is one which is likely to cause injury to children who by reason of their age and immaturity could not be expected to comprehend and avoid risks. (Cope, 102 Ill. 2d at 286, 464 N.E.2d at 1027.) Owners and occupiers of land owe no duty to remedy conditions which present open and obvious risks which children would be expected to appreciate and avoid. (Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177.) The dangers of ice-covered or partially ice-covered water are risks which are considered obvious to children. Cope, 102 Ill. 2d 278, 464 N.E.2d 1023 (partially ice-covered retention pond was an open and obvious danger to a seven-year-old); Wingate v. Camelot Swim Club, Inc. (1990), 193 Ill. App. 3d 963, 550 N.E.2d 665 (partially ice-covered duck pond held to be obvious danger to five-year-old and seven-year-old); Weber v. Village of Carol Stream (1984), 129 Ill. App. 3d 628, 472 N.E.2d 1203) (completely frozen retention pond held to be obvious danger to nine-year-old).

Accordingly, it is clear that the risks associated with the partially frozen Chicago River were open and obvious to the Yacoub children, ages 10, 8 and 5. Furthermore, the undisputed evidence is that the Yacoub children knew of and appreciated the dangers of the river. (See Swearingen v. Korfist (1989), 181 Ill. App. 3d 357, 537 N.E.2d 365 (a minor’s special knowledge regarding the alleged dangerous condition should be taken into account).) The children had been advised by their parents of the dangers of the river, particularly the danger of drowning, and on the children’s two trips down to the river on the day of the accident, they specifically discussed the danger of the river.

Plaintiff attempts to persuade us that in light of the supreme court’s decision in Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223, the open and obvious rule is no longer a bar to a plaintiff’s action. In Ward, the court stated that a possessor of land is not liable to his invitees when their injuries are caused by open and obvious conditions unless the possessor anticipates the harm. However, that decision has no impact on the facts as presented here, since Ward specifically stated:

“Certainly a condition may be so blatantly obvious and in such position on the defendant’s premises that he could not reasonably be expected to anticipate that people will fail to protect themselves from any danger posed by the condition. Even in the case of children on the premises, this court has held that the owner or possessor has no duty to remedy conditions presenting obvious risks which children would generally be expected to appreciate and avoid. (Cope v. Doe (1984), 102 Ill. 2d 278, 286 (seven-year-old fell through ice on artificial retention pond) ***).” Ward, 136 Ill. 2d at 148, 554 N.E.2d at 230.

See Moore v. Kickapoo Fire Protection District (1991), 210 Ill. App. 3d 736, 569 N.E.2d 214 (Ward did not sound a death knell for the open and obvious rule).

Plaintiff also attempts to establish a duty on the part of the Park District by shifting our focus from the river to the fence. Plaintiff claims that the Park District breached its duty to properly maintain the fence. However, despite the fact that there was a hole in the fence, it was not the fence that injured Jonathon and killed Mohammed and Vicktoria. (See Ellison v. Commonwealth Edison Co. (1953), 351 Ill. App. 58, 113 N.E.2d 471.) Our focus remains on the partially ice-covered river, since Jonathon was injured and Mohammed and Vicktoria drowned by falling off the edge of the ice into the river. The fact that the Yacoub children gained access to the river through a hole in the fence does not make the dangers associated with the river less open and obvious.

Plaintiff relies on Engel v. Chicago & North Western Transportation Co. (1989), 186 Ill. App. 3d 522, 542 N.E.2d 729, and LaSalle National Bank v. City of Chicago (1985), 132 Ill. App. 3d 607, 478 N.E.2d 417, wherein it was held that the dangers associated with train flipping are not open and obvious to children, and the defendants had a duty to repair holes in fences surrounding the trains. That rule, however, is limited to train-flipping cases and does not apply where the fence surrounds water or ice since, as the court in Engel noted, “The policy determination that most children are presumed to know the risks of injury inherent in certain types of activities, such as playing with fire or playing in bodies of water, does not per se extend to the train-flipping cases.” Engel, 186 Ill. App. 3d at 530-31.

We are not unsympathetic to the tragedy suffered by the Yacoub family. Nonetheless, we are bound by the existing law regarding the open and obvious danger of water and ice. Accordingly, for the reasons set forth above, we find that the trial court properly granted summary judgment in favor of defendants.

Affirmed.

MURRAY and COUSINS, JJ., concur.


text:
    EDWARD MANSOUROU et al., Plaintiffs-Appellants, v. JOHN CRANE, INC., a/k/a John Crane-Houdaille, Inc., et al., Defendants-Appellees.
    First District (5th Division)
    No. 1 — 92—2260
    Opinion filed June 18, 1993.

      Gleason & Fritzshall, of Chicago (Steven N. Fritzshall, of counsel), for appellants.
    Gerald A. Golden, George M. Hoffman, and Lawrence M. Benjamin, all of Chicago (Neal, Gerber & Eisenberg, of counsel), for appellees.
   JUSTICE McNULTY

delivered the opinion of the court:

The plaintiffs’ complaint against John Crane, Inc., a/k/a John Crane-Houdaille, Inc. (Crane), and its vice-president of human resources, Arthur J. DeStephano (DeStephano), alleged three claims arising from Crane’s termination of the plaintiffs’ employment. The first claim was for breach of contract alleging that an employment contract existed between plaintiffs and Crane requiring Crane to comply with a four-step progressive disciplinary policy before termination of employment and that Crane had not complied with this procedure before terminating them. Plaintiffs timely appeal from a summary judgment entered against them and in favor of Crane.

The sole issue presented is whether plaintiffs failed to raise a material issue of fact as to the existence of an employment contract between them and Crane, which Crane breached by its actions of termination. For the following reasons, we affirm.

Crane manufactures seals for use in industrial and automotive pumps. It employs about 1,500 people at its facility in Morton Grove, Illinois. Crane had a policy forbidding employees from being under the influence of drugs and using, possessing, transferring or distributing drugs during work time or while on Crane’s premises.

During 1987 and 1988, DeStephano was informed by Crane’s in-house medical staff of increasing instances of drug use by on-duty employees. In response to these reports and an increasing number of accidents it believed was linked to drug use, Crane hired an outside consulting firm, Bensinger, DuPont & Associates, Inc. (Bensinger, DuPont), to develop a comprehensive drug and alcohol policy. Bensinger, DuPont then hired an investigation firm, SOA, to investigate the extent of Crane’s employee drug abuse problem. To that end, SOA placed undercover investigators in Crane’s plant as production employees. These investigators supplied daily reports to Bensinger, DuPont detailing their observations of drug use by specifically identified employees. Bensinger, DuPont then provided these reports to DeStephano. Approximately 10 meetings were held away from Crane’s premises among DeStephano, representatives of Bensinger, DuPont and the SOA investigators to discuss the contents of the reports and positively identify the employees involved.

On July 19, 1989, Crane terminated about 41 employees, including the eight plaintiffs, identified by the investigators as violating Crane’s drug policy.

Plaintiffs then filed a three-count complaint against Crane and others, count I of which is the subject of this appeal. That count alleged that Crane breached its employment contract with plaintiffs when it failed to apply a four-step progressive disciplinary procedure, to wit: first offense — verbal warning; second offense — written warning; third offense — three days’ suspension; and fourth offense — dismissal, prior to discharging plaintiffs.

Plaintiffs contended that the above-described four-step disciplinary procedure was set forth in an employee handbook or manual which each received at the time he or she was hired. However, none of the plaintiffs was able to produce that manual nor could their witness, Angela Bower, who was deposed after the court had granted summary judgment in favor of defendants.

Crane filed its motion for summary judgment contending that there was no policy that required the company to comply with the four-step disciplinary procedure regardless of the company policy violated by the employees. In support of its motion, it noted plaintiffs’ inability to produce the handbook allegedly containing the procedure. In further support of its position, Crane cited in its motion testimony from each of the plaintiffs’ depositions and the deposition of DeStephano.

Plaintiffs filed their brief in opposition to Crane’s motion for summary judgment containing, among other matters, excerpts from each of the plaintiffs’ depositions and a one-page document purporting to be an interoffice memorandum setting forth, under the title “Attendance,” the four-step disciplinary procedure referred to by plaintiffs in their complaint.

The court in granting defendants’ motion for summary judgment ruled, as a matter of law, plaintiffs had failed to set forth sufficient facts to establish the existence of an employment contract between them and Crane upon which to predicate an action for breach of contract.

The plaintiffs, to survive a motion for summary judgment by Crane, had a duty to present a factual basis upon which a judgment could have been entered in their favor. See Cole Taylor Bank v. Corrigan (1992), 230 Ill. App. 3d 122, 595 N.E.2d 177; Fuentes v. Lear Siegler, Inc. (1988), 174 Ill. App. 3d 864, 529 N.E.2d 40; Martin v. 1727 Corp. (1983), 120 Ill. App. 3d 733, 458 N.E.2d 990.

To this end plaintiffs rely on one case: Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314. That case recognized an exception to the at-will employment rule in Illinois. Unless plaintiffs can bring themselves within the Duldulao exception, it is undisputed that they were at-will employees who could be terminated for any reason or no reason, so long as the termination did not violate public policy. See, e.g., Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 478 N.E.2d 1354.

The supreme court in Duldulao sets forth three prerequisites for an employee handbook or policy statement to create enforceable contractual rights by meeting traditional requirements for contract formation:

“First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement.” Duldulao, 115 Ill. 2d at 490.

The trial court granted summary judgment for plaintiffs’ failure to produce any factual basis establishing a clear and definite promise by Crane that employees would not be terminated without being afforded the progressive four-step disciplinary procedure described above. Plaintiffs unanimously agreed that Crane had this disciplinary procedure but none could produce a manual or policy statement containing its terms. Crane’s termination procedures in this case were unadmirable; however, plaintiffs were not ruled against, as they assert, because they failed to produce the employee manual, but because the plaintiffs were not able to produce sufficient evidence of the policy’s existence or specific testimony of the alleged policy’s terms. Excerpts from plaintiffs’ depositions amply illustrate the evidentiary problems:

CANDELARIO MARTINEZ
“Q. This four-step policy, was that followed for a violation of any rule?
A. I’m not sure.
Q. Do you remember precisely what this manual said about * * *
A. No.
Q. *** [W]hat it applied for?
A. No, it’s been too long.
Q. What types of rule violations was the policy followed for?
A. I believe all of them. I’m not sure.”
STEPHAN STEPHAN
“Q. How were you informed of the policy?
A. By the *** Yes, by the manual that they gave us, and that was the job security we were supposed to have.
Q. What precisely did the manual say?
A. I don’t remember. I don’t recall.”
FREDERICK OSHANA
“Q. Did this booklet say what would happen to you if you were caught with drugs?
A. Yes.
Q. What did it say?
A. It says first you will get a verbal warning, four steps actually *** second, you will get written warning, third, you get three days off and, finally you are terminated.
Q. Do you know of any specific employees who were ever terminated after first getting a verbal warning, then a written warning, and then suspension?
A. No.”
ALBERT JASSIM
“Q. There was a book that had this four-step policy. Do you have a copy of that book?
A. No.”
EDWARD MANSOUROU
“Q. Did you understand what the company’s policy was concerning the use of drugs?
A. No, sir, because I never had the experience.
Q. But did you understand what the policy was toward using drugs?
A. No, sir.”
BASMA RIHANI
“Q. Okay. Were you ever told what the company’s policy was concerning use of drugs?
A. Never.
Q. Is it your understanding of the policy if an employee was actually caught doing drugs on the premises, that they would first get a verbal warning under the policy?
A. I have no idea.”
JULIET POLUS
“Q. Do you remember how it [the policy] was specifically stated in the manual?
A. No.”

The determination of whether there exists a clear and definite promise is not for the trier of fact to determine, but is, rather, “a threshold question of law to be determined by the court.” (Harrell v. Montgomery Ward & Co. (1989), 189 Ill. App. 3d 516, 521, 545 N.E.2d 373. See also LaScola v. U S Sprint Communications (7th Cir. 1991), 946 F.2d 559.) In Koch v. Illinois Power Co. (1988), 175 Ill. App. 3d 248, 529 N.E.2d 281, summary judgment was held appropriate where the language of an oral employment policy did not contain a clear and definite promise.

We determine that the plaintiff fails to surmount the first prong of the Duldulao test. The present case is analogous to the many cases which are dismissed at the pleading stage due to the absence of a sufficiently definite promise based upon which an employee could reasonably conclude that an offer had been made. See, e.g., Altman v. City of Chicago (1991), 224 Ill. App. 3d 471, 586 N.E.2d 698; Williams v. Chicago Housing Authority (1991), 217 Ill. App. 3d 1055, 578 N.E.2d 71; Thierry v. Carver Community Action Agency of Knox County, Inc. (1991), 212 Ill. App. 3d 600, 571 N.E.2d 484; Lampe v. Swan Corp (1991), 212 Ill. App. 3d 414, 571 N.E.2d 245; Rudd v. Danville Metal Stamping Co. (1990), 193 Ill. App. 3d 1009, 550 N.E.2d 674.

In response to Duldulao, many employers included contract disclaimers in their employee handbook delineating disciplinary policies, and in most circumstances courts have held this sufficient to negate claims of a contract by the discharged employee regardless of the language used in the handbook. See, e.g., Spann v. Springfield Clinic (1991), 217 Ill. App. 3d 419, 577 N.E.2d 488; Lee v. Canuteson (1991), 214 Ill. App. 3d 137, 573 N.E.2d 318; Chesnick v. Saint Mary of Nazareth Hospital (1991), 211 Ill. App. 3d 593, 570 N.E.2d 545.

Reviewing courts have, however, recognized that employees are not relieved of the Duldulao exception to at-will termination where employee handbooks contain specific and promissory rules regarding discipline, the contract disclaimer provisions are hidden within the text of the handbook and are not set apart and distinct so as to be easily noticed by the employee. See, e.g., Hicks v. Methodist Medical Center (1992), 229 Ill. App. 3d 610, 593 N.E.2d 119 (wherein the court ruled in favor of the employer on other grounds); Long v. Tazewell/Pekin Consolidated Communication Center (1991), 215 Ill. App. 3d 134, 574 N.E.2d 1191.

Plaintiffs additionally introduced in evidence a one-page document which they contend sets forth the exact four-step disciplinary procediire Crane violated when it terminated them. There was no testimony or other evidence introduced at trial that this document relates to the defendants or that it was seen or relied upon by plaintiffs.

Putting aside these evidentiary infirmities for the sake of the argument, the document on its face is limited to attendance and provides in relevant part, as follows:

“COMPANY POLICIES PERTAINING TO THE FOLLOWING WILL BE FOLLOWED TO THE LETTER OF THE POLICY:
1. ATTENDANCE
A) ABSENCE: MORE THAN ONE OCCURRENCE [sic] IN A FOUR WEEK PERIOD WILL BE CONSIDERED EXCESSIVE.
B) TARDINESS: MORE THAN TWO OCCURRENCES IN A FOUR WEEK PERIOD WILL BE CONSIDERED EXCESSIVE. THIS INCLUDES THE LUNCH PERIODS, [sic] LONG LUNCH PERIODS WILL NOT BE ALLOWED.
THE PROGRESSIVE DISCIPLINARY ACTION WHICH WILL BE FOLLOWED IS LISTED BELOW:
A) 1ST VIOLATION-VERBAL WARNING
B) 2ND VIOLATION-WRITTEN WARNING
C) 3RD VIOLATION-DISCIPLINARY LAYOFF (3 DAYS)
D) 4TH VIOLATION-DISCHARGE.”

Plaintiffs were terminated for drug use, not for attendance problems. Plaintiffs’ failure to produce- the alleged policy or unequivocal testimony as to its specific terms, including the particular infraction to which it applies, is fatal to plaintiffs’ case under the specificity requirement that is the essence of the first prong of the Duldulao test. In absence thereof, Illinois courts have concluded under Rudd, Harrel, Koch, and Crenshaw v. DeVry, Inc. (1988), 172 Ill. App. 3d 228, 526 N.E.2d 474, that such a policy does not give rise to any contractual rights.

Indeed, plaintiffs claim that the alleged policy is the same policy set forth in the one-page “Attendance” policy document set forth above. Further, plaintiffs assert in their brief that the progressive disciplinary policy contained therein should be applied to plaintiffs although they were terminated for drug use and not for attendance violations. This would require us not only to disregard the heading of the document but also to ignore the requirement of Duldulao that “the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made.” Duldulao, 115 Ill. 2d at 490.

Finally, the testimony of former employee Angela Bower, who was deposed after summary judgment was granted in favor of Crane, is equally insufficient to create a genuine issue of material fact in this case.

She merely reiterated what plaintiffs had said about an employee manual containing the four-step disciplinary policy, which manual she could also not produce. Bower could not recall the language of the alleged policy and her testimony conflicts with certain plaintiffs’ contentions that the alleged policy applied to all terminations. Bower testified that there were several situations involving a “criminal offense” where the four-step policy would not apply and termination would be immediate.

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

Affirmed.

MURRAY and COUSINS, JJ., concur.


author: PRESIDING JUSTICE McNAMARA

text:
      In re A.W., a Minor (The People of the State of Illinois, Petitioner, v. Frances W., Respondent).
    First District (6th Division)
    No. 1 — 92—3173
    Opinion filed June 18, 1993.
    Modified on denial of rehearing July 30, 1993.
    Patrick T. Murphy, Public Guardian, of Chicago (Lee Ann Lowder, of counsel), for the People.
    Barry A. Miller, Barbara S. Shulman, and Diane F. Klotnia, all of Miller, Shakman, Hamilton & Kurtzon, of Chicago, for respondent.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308), on the basis that there was a substantial ground for a difference of opinion, we granted leave to Patrick T. Murphy, Cook County public guardian, to appeal the juvenile court’s grant of a motion allowing A.W., a 13-year-old minor, to substitute private counsel in his place, in an abuse and neglect proceeding. On March 24, 1986, the public guardian was appointed as guardian ad litem, and attorney for A.W., following an adjudication of wardship wherein the Department of Children and Family Services (DCFS) was granted temporary custody. DCFS placed A.W. in the custodial care of her maternal grandmother, with whom she has lived until the present time.

The sole issue before this court is whether the juvenile court erred when it granted A.W.’s motion to substitute the law firm of Miller, Shakman, Hamilton & Kurtzon as attorney in place of the public guardian in the pro bono representation of A.W. Under the order, the public guardian continues to act as guardian ad litem, for A.W. (The public defender has submitted a brief in this cause on behalf of A.W.’s mother, and several public interest groups also filed an amici curiae brief in favor of the juvenile court’s ruling. However, the substance of the arguments presented in the amici brief does not address the issue before us. Consequently, we will not consider the amici curiae brief in our review of the issues.)

In March 1986, A.W., age six, reported that she had been sexually abused by her stepfather from the time she was years old. A.W. had told her mother on several occasions that her stepfather had been touching her “private parts” and that he had put his penis inside her, but her mother refused to believe her. On March 4, 1987, the stepfather was convicted of aggravated criminal sexual assault and criminal sexual assault of A.W., and was sentenced to a term of eight years’ imprisonment. His conviction was affirmed by this court on appeal. People v. Watson (1989), 178 Ill. App. 3d 796, 533 N.E.2d 1011.

While the stepfather was incarcerated, A.W. and her mother participated in therapy at the Human Effective Living Program (HELP). The staff therapist recommended that A.W. remain in the custody of her maternal grandmother, have no contact with the stepfather, and have only supervised visits with her mother. In the counseling report, the therapist noted that the mother did not believe her husband had abused A.W. DCFS subsequently terminated the therapy at HELP and transferred her to another therapist at Salem House due to “concerns of the mother. ’ ’

Upon his release from prison on November 2, 1990, the stepfather returned to live with A.W.’s mother and brother in the family residence. The social worker at Salem House noted that his return to the family seemed to have a profound effect on the mother because during the period of incarceration she began to accept the possibility that A.W. may have been sexually abused by her husband. However, upon his release from prison, the mother reverted to her previous stance and believed that A.W. had lied about the sexual abuse in an attempt to receive more maternal attention. The therapy at Salem House was terminated on January 31, 1991, and the case was transferred back to HELP because Salem House could not provide sex offender treatment for the stepfather.

When HELP also proved unable to provide service to the stepfather, the case was transferred by DCFS to the Community Mental Health Council. The case manager noted that the mother remained in denial that her husband had molested her daughter, and that she appeared more empathetic toward her husband than to A.W. The stepfather also maintained that he was not guilty and believed that he had been falsely charged and convicted by improperly procured evidence. The therapist recommended that the stepfather attend family group therapy focusing on his sexual abuse of A.W., and that he attend group therapy for sexual offenders three times per week. While he did attend group therapy, he did not attend the prescribed sex offenders’ therapy sessions.

On December 19, 1991, the court ordered an unsupervised day visit by A.W. on Christmas Day with her mother and stepfather. Following the visit, the court ordered the family to participate in a joint therapeutic family counseling session with counselor Pamela Goodson, prior to December 31, 1991. Should Goodson so recommend, the parties were permitted an unsupervised overnight visit for New Year’s day. These visits transpired without incident. On January 29, 1992, over the objection of the public guardian, the court granted the mother’s motion for unsupervised overnight visits on alternating weekends for A.W. during February 1992.

On March 5, 1992, Goodson submitted a report to the court recommending that A.W. begin weekly unsupervised visitation commencing in March. Assuming the success of those visits and subsequent therapeutic sessions, Goodson recommended that A.W. return home by June 1992. Goodson believed that A.W.’s anxiety “decreased tremendously as her visits with family increased” and that her level of comfort with her stepfather is “more than adequate for a successful transition back into the family unit.”

Ellen Epstein, the assistant public guardian assigned to represent A.W., objected to the acceleration of unsupervised visits. She believed that A.W. would not be protected because both parents were in denial that she had been sexually abused and the stepfather refused to participate in treatment for sex offenders.

A.W. became upset when unsupervised visitation was terminated in late March. In a letter to the judge dated March 27, 1992, A.W. stated:

“I am very unhappy about not visiting my mom, dad and brother. Ellen Epstein [public guardian] is a great person but she is not doing what I really want and that is to be at home with my family.”

Goodson’s supervisor, Denise Snyder, met with Denise Kane, the associate director of the Citizens Committee On The Juvenile Court, and discussed the possibility of A.W. obtaining other representation. Thereafter, A.W. telephoned Barbara Shulman, an attorney associated with Miller Shakman, and told her that the public guardian was advocating a position contrary to her direction, and that she had repeatedly asked that office to advocate for visitation with her parents.

On April 21, 1992, a motion for substitution of counsel was filed in which Miller Shakman argued that it was A.W. who selected the firm to act as her counsel, and that she had an absolute right to choose her own attorney. The public guardian argued that while there is “no question that the child is both mature and competent,” she had been manipulated by others to seek the change in counsel. Acknowledging its responsibility to act in the “best interest” of the child, the court ordered that a hearing be conducted to determine whether A.W. was coerced into making the motion for substitution of counsel.

In opening statement at trial, the public guardian stated that in many cases, the office of the public guardian would “step aside and gladly welcome the offer of additional counsel” both as lawyer and guardian ad litem. However, under the factual circumstances in this case, in which the therapist, mother and attorney conspired to coerce and manipulate the minor into changing counsel, the public guardian believed that he was the appropriate party to represent A.W.

At the evidentiary hearing, Shulman testified that she was first contacted by A.W. and that she made no promises regarding benefits she could obtain for her in the case. Denise Kane of the Citizens Committee On The Juvenile Courts testified that during March 1992 she had several conversations with Denise Snyder, a supervisor with the Community Mental Health Council. Snyder told Kane that A.W. was depressed because she felt that her viewpoint was not being represented and that she really did want visitation to continue. Kane suggested to Snyder that she ask A.W. whether she wanted another lawyer to represent her. She suggested that the therapist, Goodson, present this option to A.W. If A.W. really wanted another attorney, Kane would try to find someone to represent her on a pro bono basis.

Pamela Goodson testified that she became A.W.’s therapist in the summer of 1991. She suggested to A.W. that she might want to seek alternative counsel pursuant to her supervisor’s suggestion. Goodson telephoned Shulman and made arrangements for A.W. to meet with Shulman.

Doctor Alan Ravitz, a child psychologist, was called as a witness by the public guardian and opined that in the overwhelming majority of situations, a 12-year-old child does not have the capacity to choose an attorney. Doctor Ravitz stated that children of that age are psychologically immature, have a tendency toward impulsivity and have difficulty understanding the implications of their decisions. Too, children of this age have difficulty assessing the future results of immediate decisions due to their inability to defer gratification. Doctor Ravitz, however, had never interviewed A.W., and his opinion was not based upon the facts in this case.

The judge interviewed A.W. to ascertain her state of mind and mental condition, and whether she did want to retain substitute counsel. A.W. told the judge that she wanted Shulman to replace Ellen Epstein, one of the attorneys in the office of the public guardian.

Thereafter, the judge granted the motion for substitution. The judge concluded that the evidence presented was not sufficient to show coercion or manipulation. Parenthetically, the judge noted that the public guardian would continue to act as guardian ad litem, and that his strong voice would still be heard on the ultimate issue in this case, which concerned the best interest of the minor.

The only question before us, which is one of first impression in Illinois, is whether A.W. may obtain counsel of her own choice in lieu of the public guardian. Miller Shakman does not request compensation and is ready to represent A.W. pro bono.

We find it instructive to first conduct a review of the procedural due process rights accorded to minors pursuant to the Juvenile Court Act of 1987. (Ill. Rev. Stat. 1991, ch. 37, par. 801 et seq.) Section 1 — 5(1) sets forth the rights of the minor to representation during juvenile proceedings:

“[T]he minor who is the subject of the proceeding and his parents, guardian, legal custodian or responsible relative who are parties respondent have the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records and also, although proceedings under this Act are not intended to be adversary in character, the right to be represented by counsel. ***
No hearing on any petition filed under this Act may be commenced unless the minor who is the subject of the proceeding is represented by counsel.” Ill. Rev. Stat. 1991, ch. 37, par. 801— 5(1).

As stated in the prefatory provisions of the Act, the procedural rights assured to minors “shall be the rights of adults unless specifically precluded by laws which enhance the protection of such minors.” (Ill. Rev. Stat. 1991, ch. 37, par. 801 — 2(3)(a).) When these two sections are read together in a related manner, we find A.W.’s right to representation as a minor is clearly established and that the right to representation afforded to minors is almost coextensive to that afforded to adults. We also observe that in Yellen v. Bloom (1945), 326 Ill. App. 134, 61 N.E.2d 269, this court held that a minor may engage private counsel in a civil case and may make a valid contract by himself or through his next friend to hire an attorney to prosecute an action for injuries to a minor.

The United States Supreme Court has addressed the scope of procedural rights afforded to minors in various contexts. With respect to juvenile delinquency proceedings, the Court found that minors are entitled to adequate notice, the assistance of counsel, and the opportunity to confront their accusers. (In re Application of Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428.) As expressed by the Supreme Court in Gault, “whatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.” Gault, 387 U.S. at 13, 18 L. Ed. 2d at 538, 87 S. Ct. at 1436.

Other jurisdictions have also analyzed the issue of whether the court is obligated to respect the wishes of minors with respect to their choice of representation. In Wagstaff v. Superior Court (Alaska 1975), 535 P.2d 1220, the supreme court of Alaska rejected the theory that the parents should choose the juvenile’s attorney since they would be monetarily liable, and that a juvenile had no capacity to contract for the attorney’s services. The Wagstaff court held that the child may retain the attorney of his choice or, alternatively, ask the court to appoint an attorney for him. The court cautioned that in instances where the child has retained counsel, the court should respect the child’s choice.

In a case factually analogous to the present case, the California Appellate Court held that a minor initially represented by appointed counsel is entitled to seek substitution of retained counsel for dependency-related hearings in order to effect the right to counsel of the minor’s “own choice.” (Akkiko M. v. Superior Court (1985), 163 Cal. App. 3d 525, 528, 209 Cal. Rptr. 568, 569.) In Akkiko, the court construed the relevant statute, which provided that a minor “has the right to be represented *** by counsel of his or her own choice,” as imposing a duty upon the court to consider the minor’s capacity to select counsel as well as the competence of counsel. The Akkiko court held that the trial court was obligated to honor the minor’s choice of counsel, if the minor was competent to choose, and selected competent counsel.

As support for his position that an attorney who represents a child must advocate the position he believes to be in the child’s best interest, the public guardian relies upon this court’s decision in In re K.M.B. (1984), 123 Ill. App. 3d 645, 462 N.E.2d 1271. In K.M.B., this court held that although the juvenile’s counsel should consider the juvenile’s wishes and inform the court of those wishes, counsel has an obligation to protect the juvenile’s best interest. The public guardian warns that allowing the motion for substitution would “simply parrot the child’s wishes,” which often may not be in the child’s best interest.

We are unpersuaded by the argument presented by the public guardian. We point to the significance of the fact that it is within the purview of the judge, and not the attorney, to assess the evidence and determine placement which truly reflects the child’s best interest. In child custody hearings under the Juvenile Court Act, the best interest of the child is the standard, and the trial court is vested with wide discretion. (In re W.B. (1991), 213 Ill. App. 3d 274, 571 N.E.2d 1120; In re J.K.F. (1988), 174 Ill. App. 3d 732, 529 N.E.2d 92.) The trial court’s opportunity to observe the demeanor and conduct of the parties must be given great weight. (In re W.B., 213 Ill. App. 3d 274, 571 N.E.2d 1120; In re J.K.F., 174 Ill. App. 3d 732, 529 N.E.2d 92.) Moreover, this court has held that juvenile counsel and the guardian ad litem have essentially the same obligations to the minor and to society. In re R.D. (1986), 148 Ill. App. 3d 381, 499 N.E.2d 478.

We recognize that a minor’s right to select substitute counsel is not absolute. However, in the present case, the judge conducted an extensive hearing, with both sides presenting evidence to address the issue of whether A.W. was coerced or manipulated into the decision to substitute private counsel for the public guardian. After hearing the evidence and interviewing A.W., the judge found insufficient evidence to support the public guardian’s assertion that the decision to change counsel was not a volitional act made by A.W. As conceded by the public guardian prior to trial, A.W. was found to be mature and competent. We conclude, therefore, that the juvenile court did not err when it granted the motion for substitution of counsel.

We emphasize that nothing stated in this opinion suggests what the proper placement for A.W. should be. Nor do we hold, as the public guardian claims, that at the placement hearing Miller Shakman is restricted to a mere parroting of A.W.’s views. The juvenile court shall conduct that hearing, with all parties present and participating fully, with one result in mind, the best interests of the minor child.

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

Judgment affirmed.

EGAN and GIANNIS, JJ., concur.