author: JUSTICE WHITE

text:
    ARTHUR LETOURNEAU et al., Plaintiffs-Appellees, v. THE DEPARTMENT OF REGISTRATION AND EDUCATION et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1—88—3823
    Opinion filed April 3, 1991.

      Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Carr & O’Rourke Associates, of Chicago (Donald A. Carr and Roland R Ernst, of counsel), for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

Defendants appeal from a judgment entered by the circuit court of Cook County that reversed the revocation of plaintiffs’ licenses to practice. We affirm the judgment of the circuit court.

Defendants are the Department of Registration and Education (the Department), now known as the Department of Professional Regulation; Gary L. Clayton (the Director), who was Director of Registration and Education .at the pertinent times; the Illinois Private Detective, Private Alarm, and Private Security Board (the Board); and the Board’s chairman, and five other members.

One plaintiff is Arthur Letourneau, to whom the record sometimes refers as Arthur LeTourneau. The other plaintiffs are the detective division, the security division, and the alarm division, of Investigations International (the company). Of the four licenses and certificates revoked, two licenses (as a private detective and a private security contractor) were issued in Letourneau’s name, and two certificates (as a private detective agency and as a private security contractor agency) were issued to Letourneau in the names of the company’s detective division and security division, respectively. For convenience when referring collectively in this opinion to plaintiffs’ licenses and certificates, the general term “licenses” is used.

A certificate as a private alarm contractor agency, issued in the name of the company’s alarm division, and a license as a private alarm contractor, issued in Letourneau’s name, were neither revoked nor involved in the disciplinary proceedings, but as licensees the holders thereof have joined as plaintiffs.

The central issue is whether revocation of plaintiffs’ licenses was contrary to the manifest weight of the evidence, unsupported by substantial evidence, or arbitrary and unreasonable.

I. STATUTORY BACKGROUND AND PROCEDURAL HISTORY

Under the Private Detective, Private Alarm, and Private Security Act of 1983 (Ill. Rev. Stat. 1985, ch. 111, par. 2651 et seq.) (the Act or the present Act), a licensee is subject to disciplinary sanctions for enumerated violations. (Ill. Rev. Stat. 1985, ch. 111, par. 2672(a).) A range of sanctions, including license revocation, is provided. Ill. Rev. Stat. 1985, ch. 111, par. 2675.

In this cause, the Department filed formal charges seeking disciplinary action against Letourneau and the company as respondents. The charges named Letoumeau and the company’s detective and security divisions as holders of the licenses in question. The charges alleged three substantive acts or omissions, said to constitute violations of the Act or of its precursor statute (the 1933 Act) (Ill. Rev. Stat. 1983, ch. 111, par. 2601 et seq.) (repealed eff. Jan. 5, 1984) and therefore to constitute grounds for license revocation or suspension under section 22 of the Act (Ill. Rev. Stat. 1985, ch. 111, par. 2672). The alleged violations were:

(a) Failure by the company since 1979 to register its employees with the department, in violation of section 10b(4) of the 1933 Act and section 15(c) of the present Act (Ill. Rev. Stat. 1983, ch. 111, par. 2622(4); Ill. Rev. Stat. 1985, ch. 111, par. 2665(c)).
(b) Practice by the company as “a detective” while its “license” was nonrenewed from 1977 to October 1983, said to be in violation of section 3 of the 1933 Act (Ill. Rev. Stat. 1983, ch. 111, par. 2603).
(c) Practice by Ernest Rizzo since 1979 as a detective for the company despite a 1978 revocation of his detective license, in violation of sections 16(b) and (f) of the 1933 Act and sections 22(a)(3), (a)(14), (a)(15), and (a)(19) of the present Act (Ill. Rev. Stat. 1983, ch. 111, pars. 2628(b), (f); Ill. Rev. Stat. 1985, ch. 111, pars. 2672(a)(3), (a)(14), (a)(15), (a)(19)).

Under the version of the Act applicable to this cause, it was a continuing requirement for agency certification such as here that the agencies each have a full-time Illinois-licensed private detective or private security contractor in charge and that each such person reside in Illinois. (Ill. Rev. Stat. 1985, ch. 111, pars. 2664(d), (f).) “Residency” meant having established an actual domicile in Illinois for at least one year. (Ill. Rev. Stat. 1985, ch. 111, par. 2652(m).) The 1933 Act contained similar requirements for detective agencies. (Ill. Rev. Stat. 1983, ch. 111, pars. 2601, 2621.) The present Act has now been amended to repeal the requirement that a licensee in charge reside in Illinois. See Pub. Act 85 — 981, art. Ill, §5, eff. Jan. 1, 1988 (amending Ill. Rev. Stat. 1985, ch. 111, pars. 2664(d) through (f)).

During several sessions between January and July 1986, a hearing officer received testimony from 11 witnesses and admitted 75 exhibits into evidence. Attending from time to time and sometimes participating in the proceedings were several members of the Board. On January 22, 1987, the Board made and submitted its written findings of fact, conclusions of law, and recommendation that the licenses at issue be revoked. See Ill. Rev. Stat. 1985, ch. 111, par. 2674(d).

The Board’s factual findings were:

Letourneau had been a Florida resident since at least 1980 and, while holding the licenses at issue, had falsely reported to the Department since 1980 that he was an Illinois resident.
Letourneau and the company had practiced as a detective and detective agency from October 1977 to October 13, 1983, and from January 4, 1984, to January 7, 1985, without a license and without registering employees.
Letourneau and the company had since at least 1980 allowed Ernest Rizzo to practice as a detective without a license or supervision.
Letourneau and the company had practiced as a security contractor and security contractor agency from January 4, 1984, to January 7,1985, without registering employees.

The Board’s legal conclusion was that Letourneau had violated the sections of the present Act and of the 1933 Act that he and the company were charged with violating.

Letourneau filed a motion for rehearing, but the Director denied it. Adopting the Board’s findings of fact, conclusions of law, and recommendation, he then ordered that the licenses at issue be revoked.

On April 28, 1987, Letourneau filed his complaint for administrative review in the circuit court of Cook County, seeking to have the Director’s revocation orders vacated. After briefing and argument, the court entered an order on August 10, 1988, reversing the Department’s revocation decision.

The trial judge stated that he was reversing the revocation orders because the findings of fact were without substantial foundation in the evidence. Specifically, the judge found that there was no evidence to support the Director’s finding that Letourneau had been a Florida resident since 1980 and that there was evidence that Letourneau had been an Illinois resident at the times in question. The judge also found that there was no evidence to support the Director’s finding that Letourneau had allowed Rizzo to practice as an unlicensed private detective and that the Department’s evidence in general was not strong enough to support the result of revocation. At a hearing on defendants’ motion for reconsideration, the judge again stated that there was insufficient evidence to support the Director’s findings of fact and conclusions of law. Accordingly, he denied the motion for reconsideration, and this appeal followed.

This opinion will refer to matters of evidence as required for discussion of the issues.

II. ANALYSIS

A. STANDARD FOR REVIEWING FINDINGS OF FACT

In reviewing the factual determinations made by the Director, this court is limited to ascertaining whether his decision accorded with the manifest weight of the evidence and was supported by substantial evidence. Massa v. Department of Registration & Education (1987), 116 Ill. 2d 376, 385, 507 N.E.2d 814, 818; Bruce v. Department of Registration & Education (1963), 26 Ill. 2d 612, 622, 187 N.E.2d 711, 717; Irving’s Pharmacy v. Department of Registration & Education (1979), 75 Ill. App. 3d 652, 658, 394 N.E.2d 627, 632.

The findings and conclusions of an administrative agency regarding questions of fact are to be considered prima facie true and correct. (Ill. Rev. Stat. 1989, ch. 110, par. 3—110; Murdy v. Edgar (1984), 103 Ill. 2d 384, 391, 469 N.E.2d 1085, 1088.) However, this does not mean that a court should automatically approve an agency decision merely because the agency heard witnesses and made findings. Viera v. Illinois Racing Board (1978), 65 Ill. App. 3d 94, 99, 382 N.E.2d 462, 466.

B. LETOURNEAU’S RESIDENCY

Defendants appear to regard Letourneau’s residency as being relevant for two reasons, either of which might support disciplinary action.

First, as the sole individual to whom the company’s agency licenses were issued, Letourneau (or some person employed by him) was required to be in charge of agency operations as a full-time, individually licensed Illinois resident, and failure to comply would violate the law. (See Ill. Rev. Stat. 1985, ch. 111, pars. 2664(d), (f); Ill. Rev. Stat. 1983, ch. 111, par. 2621.) Letourneau employed no such person; the question is whether Letourneau himself met the requirement.

Second, Letourneau was required to avoid fraud or material deception in connection with licensure and to report his correct address and practice location to the Department (Ill. Rev. Stat. 1985, ch. 111, pars. 2671(a), 2672(a)(1); Ill. Rev. Stat. 1983, ch. 111, pars. 2616, 2628(a)); according to defendants, failure to report a Florida residence would violate the law.

However, though the Department’s briefs discuss such residency questions at length, its formal charges never clearly specified violation of either of these residency-related requirements. The only formal charge that even arguably might be read as pertaining to one or both of them was the charge that Rizzo had unlawfully practiced as a detective for the company.

Despite any deficiencies in the formal charges, one of the Director’s findings of fact was that Letoumeau had been a Florida resident who falsely reported Illinois residency — thereby presumably violating the requirements that he report his correct address and avoid fraud or material deception (see Ill. Rev. Stat. 1985, ch. 111, pars. 2671(a), 2672(a)(1)). And one of the Director’s conclusions of law was that Letoumeau had permitted his license to be used by an unlicensed person in order to operate without Letoumeau’s supervision or control (see ILl. Rev. Stat. 1985, ch. 111, par. 2672(a)(15)) — which comes close to saying that Letoumeau violated the requirement that he keep a full-time Illinois-licensed individual who resides in Illinois in charge of his agencies (see Ill. Rev. Stat. 1985, ch. 111, pars. 2664(d), (f)).

The implication of defendants’ treatment of the residency question is that Letourneau’s nonresidency, failure to report a correct address, failure to keep a full-time licensed resident in charge, and facilitation of Rizzo’s unlicensed practice are actually all of a piece in common sense, and all unlawful under one statutory section or another. For the additional reason that plaintiffs make no issue of any incongruity in formal charges, findings of fact, and conclusions of law, Letourneau’s alleged nonresidency is treated in this opinion as if it had been duly framed as a violation from the outset.

Defendants point to testimony by Letoumeau’s business partner and two alleged former employees (who testified under grants of immunity) that they never saw Letoumeau in Illinois during the period in question. Defendants also point to evidence that departmental investigators were never able to find Letoumeau at his Illinois addresses, that the company maintained a Florida office, and that Florida had issued detective licenses to an Arthur Letoumeau. From this, defendants argue that they were entitled to use their expertise regarding normal conduct of a licensee in order to infer that Letourneau was not an Illinois resident.

Though Ernest Rizzo (whom, according to the formal charges, Letoumeau had helped to engage in unlicensed practice) testified that he had known Letoumeau for 20 years and that Letoumeau was an Illinois resident, defendants argue that they were entitled to judge Rizzo’s credibility adversely because of his failure to explain adequately a number of past actions and statements suggestive of unlicensed practice. In addition, defendants point to the testimony of one witness, a longtime Letoumeau acquaintance, that he had dined with Letourneau in Florida in 1983 and that Letoumeau, in the witness’ words, had then “indicated” that he was a Florida resident.

Documentary evidence in the form of mail and utility bills shows Illinois addresses for Letoumeau, but defendants argue that the addresses were actually Rizzo’s. As a fact from which an adverse inference can be drawn, defendants point to Letourneau’s refusal to answer questions at the administrative hearing on grounds of potential self-incrimination after the Department’s counsel had referred to the possibility of criminal charges. Accordingly, defendants contend that the finding of Letoumeau’s nonresidency in Illinois was not against the manifest weight of the evidence.

In reply, besides referring to evidence already noted, plaintiffs point to other evidence that Letoumeau was an Hlinois resident. The Department’s investigator testified that he saw a license on the wall at an address previously stated by Letoumeau to be his own. The Department’s investigators testified that mailboxes bearing Letoumeau’s name and containing mail addressed to him existed at addresses given by Letoumeau. Responses in Letoumeau’s name were received by the Department, after it had sent mail to Letoumeau at his Hlinois address, though defendants contend that the responses either did not bear Letourneau’s personal signature at all or bore discrepant personal signatures. Letoumeau also appeared before Hlinois notaries public.

In the circuit court, the trial judge referred to the need for “facts established by evidence, *** evidence that is understood in law as being evidence.” He continued:

“This is not a case which turns on the weight of the evidence or the credibility of the witnesses, quite frankly.
This is a case which must be reversed I believe because the findings are without substantial foundation in the evidence. A case by the state cannot be made from inferences, from presumptions, or from suspicions, or from indirect evidence. They have to be made by evidence that’s credible, and sufficiently strong to warrant the result that is reached. There is no strong evidence here to support the result of revocation of Letourneau’s license.”

After referring to the Department’s grant of immunity to its witnesses, the trial judge remarked:

“The only basis for the conclusion that Mr. Letourneau resides in Florida is that one witness had dinner with Mr. Letourneau once in Florida in 1983 I believe, and yet the charge is that he lived there since 1980. That same witness said I hadn’t seen him around, and I had dinner with him in ’83. The fact that that witness had not seen Letourneau in Illinois does not mean that Letourneau resided in Florida during all of that hiatus.”

The trial judge acknowledged the evidence of Florida detective licenses in the name of an Arthur Letourneau but stated:

“I am not sure that this Mr. Letourneau is the only Arthur Le-to[ur]neau in the USA, and there was no attempt to demonstrate the Arthur Letourneau in Florida is the Arthur Letourneau that we are talking about here in Illinois.
So there clearly is no evidence to support the finding *** that Letourneau has lived in Florida since 1980.”

The judge then referred to evidence that Letourneau had received mail in his Illinois mailbox, was paying utility bills in Illinois, had registered his automobile in Illinois, and had responded to department notices mailed to Illinois. The judge also cited Rizzo’s testimony that Letourneau lived in Illinois:

“Clearly the department is free to ignore Mr. Rizzo’s testimony, but I find it incredible that they would ignore that testimony and accept testimony from someone who said he had dinner with Mr. Letourneau in Florida and give greater weight to the latter while giving no weight to the former.”

Defendants were entitled to draw reasonable inferences from the evidence. (Raymond Concrete Pile Co. v. Industrial Comm’n (1967), 37 Ill. 2d 512, 517, 229 N.E.2d 673, 676.) In an administrative proceeding, defendants could also, in conjunction with other evidence, draw an inference adverse to Letourneau from his refusal to testify on grounds of potential self-incrimination. (Giampa v. Illinois Civil Service Comm’n (1980), 89 Ill. App. 3d 606, 613-14, 411 N.E.2d 1110, 1116.) If the issue is merely one of conflicting testimony and a witness’ credibility, the administrative agency’s determination should be sustained. (Keen v. Police Board (1979), 73 Ill. App. 3d 65, 70-71, 391 N.E.2d 190, 195.) An administrative agency may properly base its decision on circumstantial evidence. Ritenour v. Police Board (1977), 53 Ill. App. 3d 877, 882-83, 369 N.E.2d 135, 139.

In finding “no” evidence of Letourneau’s nonresidency, the trial judge overlooked testimony that, in what may have been admissions against interest (see Cox v. Daley (1981), 93 Ill. App. 3d 593, 596-97, 417 N.E.2d 745, 748), Letourneau had said in about 1979 that he planned to move to Florida and had “indicated” in 1983 that he was now a Florida resident. In any event, the Department presented what it contends was circumstantial evidence of Letourneau’s Florida residency: the Florida licenses, inability to find him in Illinois, accumulation of several weeks’ worth of mail in a mailbox, identity between Letourneau’s claimed Illinois addresses and Rizzo’s addresses, irregularities in Letourneau’s purported signature on answers to mail sent to him at Illinois addresses, and the adverse inference from Letourneau’s refusal to testify on the question of his residency.

Although the trial judge erred in concluding that there was no evidence that Letourneau had lived in Florida since 1980, the question remains whether the evidence offered by the Department sufficiently supported the Director’s decision so that the decision can be said not to have been against the manifest weight of the evidence.

Defendants have not cited and we have not found any requirement that one must be a Florida resident in order to be licensed as a detective in that State, so the mere fact of Florida licensure would carry relatively little weight even if plaintiff were shown to have been the Florida licensee.

The Act did not expressly require the person in charge of a private detective agency always to remain within Illinois; all it required was that the person in charge be a resident of this State and be a “full-time Illinois licensed private detective.” (See Ill. Rev. Stat. 1985, ch. 111, par. 2664(d).) Assuming that Letourneau did spend some time in Florida, such a fact is not substantial evidence that he thereby gave up Hlinois residency, that while he was in Florida his Illinois agency operations actively continued without him, or that he was thereby prevented from being as much a “full-time Illinois licensed” individual as any other licensee who took vacations or went on trips out of State. The fact that departmental investigators failed to find Letourneau but found his mail in the mailbox is evidence that he was absent; it falls short of being substantial evidence that he was nonresident.

Assuming that any connection between Rizzo and Letourneau was lawful, a coincidence between Letourneau’s Illinois addresses and Rizzo’s is of little probative value. Any relationship between Letourneau and Rizzo in the nature of business association, friendship, or employment (unless of a type prohibited by the Act) is substantial evidence neither of Letourneau’s nonresidency nor of his facilitation of unlicensed practice by Rizzo.

Letourneau would ordinarily have had a right to appoint someone his agent for signing documents; thus, purported irregularities in his signature are not substantial evidence of nonresidency. Because Letoumeau’s refusal to testify can lead to an adverse inference only in conjunction with other evidence (Giampa, 89 Ill. App. 3d 606, 411 N.E.2d 1110), the lack of other substantial evidence impairs the probative value of his refusal. And, given the other evidentiary shortcomings, a naked assertion of departmental expertise in judging licensees’ conduct amounts to ipse dixit.

If the Department had produced substantial evidence on the residency issue and it were simply a matter of weighing that evidence against Letoumeau’s or of judging the credibility of witnesses, the presumption of correctness in the Director’s findings would prevail over mere disagreements by plaintiffs or even by this court. However, as did the circuit court, we believe that no substantial evidence supported the Director’s finding of Letoumeau’s Florida residency and false statements of Illinois residency.

Still, the matter does not end here. The parties agree that the most serious charge against Letoumeau was that he permitted the use of his agency certificates by Rizzo in order for Rizzo to engage in unlicensed practice. Thus, we must address the sufficiency of the Director’s findings on that issue.

C. RIZZO’S ACTIVITIES

Defendants point to considerable evidence as proving that Letourneau permitted Rizzo to use Letoumeau’s licenses and thus to operate without being licensed himself.

Repeated coincidences were demonstrated between Rizzo’s address and those of Letoumeau and the company. Letourneau, accompanied by Rizzo, had once attempted to obtain an agency certificate in the name of Ernest D. Rizzo, Ltd. In addition, Rizzo had contacted the Department in behalf of Letourneau to discuss an agency name change and what kind of work Rizzo (whose license had been revoked) could now permissibly do for the company. Insurance procured by Letourneau was carried in Rizzo’s name until corrected after departmental rejection. Checks payable to Rizzo had been deposited to the company’s account. Rizzo signed purchase papers as owner of cars purchased by the company.

Raymond Rocke, testifying under a grant of immunity, said he had performed security work for the company under Rizzo as “boss.” Though Rizzo testified that the witness was working without authority and was discharged by Letourneau, the testimony was impeached by Letourneau’s certification to the Department that the witness had been an employee after the “discharge.” Rizzo also attempted to explain such matters as his deposition testimony that he was employed by the company, a magazine account of investigations he supposedly was conducting as a company subcontractor without being licensed, and a telephone director advertisement for the company that carried Rizzo’s name. Defendants argue that the credibility of Rizzo’s explanations was simply judged adversely.

In addition, Letourneau refused to answer questions about Ed Rossi, whom he had listed as an employee and whose name the department contended was an alias for Rizzo. Rizzo matched the age and physical description of Rossi, and his social security number was a slightly transposed version of Rossi’s. Rizzo acknowledged having used the name Ed Ross.

But plaintiffs respond that no witness, not even Rocke, testified to personal knowledge that since 1980 Rizzo had actually engaged in activities legally constituting practice as a private detective. One witness testified to Rizzo’s having told him that Rizzo planned to be an employee but not a principal of a company to be formed by Letourneau. Rizzo himself denied having practiced as a detective in Hlinois since 1978 or 1979.

Defendants contend that, despite Rizzo’s denial of practicing as a detective, he admitted that he had investigated Rocke, ascertained the address and business of another person, conducted electronic sweeps to discover surveillance devices, and conducted “investigations for pay” on cases for Letourneau’s attorney. However, these contentions by defendants lack force, because none of the described activity, unless it is part of a paid investigation, legally constituted practice as a private detective — except possibly, of course, for the very conduct of “investigations for pay.” (See Ill. Rev. Stat. 1985, ch. 111, par. 2652(h).) As for the latter conduct, the most to which Rizzo’s testimony admitted was serving a subpoena and checking for wiretaps at the attorney’s request, apparently for pay in both cases. Neither serving a subpoena nor checking for a wiretap, even for pay, was itself necessarily practice as a private detective; it would only have been so if part of a paid investigation made to obtain information regarding several subjects specified by statute. (See Ill. Rev. Stat. 1985, ch. 111, par. 2652(h).) There was no testimony that Rizzo’s admitted activity was part of any such statutorily specified investigation, much less that it was performed by use of Letourneau’s licenses.

The Director was entitled to judge the credibility of witnesses and to draw inferences from the evidence. However, the evidence offered to prove Rizzo’s unlicensed practice did not constitute the substantial evidence required by law on what was admittedly the most serious charge against Letourneau. Thus, the circuit court correctly rejected the Director’s finding that Letourneau had permitted Rizzo to practice without a license by using Letourneau’s licenses.

D. OTHER DISPUTED FACTUAL POINTS

Defendants extensively discuss their contention that the Director’s findings regarding practice on inactive licenses and regarding nonregistration of employees should not have been reversed by the circuit court. Plaintiffs reply at length. Yet, the circuit court never “reversed” the Director’s findings on these issues.

The circuit court’s order as drafted by plaintiffs’ counsel did read that “the Court, having found no evidence to support the findings entered by the Department, orders that the Decision of the Department revoking the licenses of Arthur Letourneau be and is hereby reversed.” (Emphasis added.) However, the transcript reveals that the court focused entirely on the lack of substantial evidence for the findings on residency and on allowing Rizzo’s unlicensed practice. Because of that lack, the court declared that “the decision by the department therefore is arbitrary and constitutes an abuse of the department’s discretion. For all of these reasons the decision is reversed.”

It is evident that the circuit court based reversal on the residency and Rizzo issues and on no other. We need not consider the Director’s findings and conclusions on other issues if his reversible findings on the residency and Rizzo issues were so central as to render his revocation decision an abuse of discretion.

E. LICENSE REVOCATION

An agency’s exercise of discretion may be set aside if it was arbitrary or unreasonable or clearly violated the rule of law. (Commonwealth Edison Co. v. Illinois Commerce Comm’n (1988), 180 Ill. App. 3d 899, 907, 536 N.E.2d 724, 729.) The courts will not reweigh the evidence but will determine whether the final administrative decision is just and reasonable in light of the evidence presented. Davern v. Civil Service Comm’n (1970), 47 Ill. 2d 469, 471, 269 N.E.2d 713, 714; Sircher v. Police Board (1978), 65 Ill. App. 3d 19, 20-21, 382 N.E.2d 325, 327.

The applicable rule, as phrased by many authorities, is that courts may not interfere with an administrative agency’s discretionary authority unless it is exercised arbitrarily or capriciously or unless the administrative decision is against the manifest weight of the evidence. (E.g., Massa v. Department of Registration & Education (1987), 116 Ill. 2d 376, 388, 507 N.E.2d 814, 819; Murdy v. Edgar (1984), 103 Ill. 2d 384, 391, 469 N.E.2d 1085, 1088; People ex rel. Stephens v. Collins (1966), 35 Ill. 2d 499, 501, 221 N.E.2d 254, 255.) In terms of that formulation of the rule, it has been said that, when determining whether an administrative decision is contrary to the manifest weight of the evidence, a court should consider the severity of the sanction imposed. Cartwright v. Illinois Civil Service Comm’n (1980), 80 Ill. App. 3d 787, 793, 400 N.E.2d 581, 586; Kelsey-Hayes Co. v. Howlett (1978), 64 Ill. App. 3d 14, 17, 380 N.E.2d 999, 1002. Contra Epstein v. Civil Service Comm’n (1977), 47 Ill. App. 3d 81, 84, 361 N.E.2d 782, 785.

An alternative formulation of the rule is that, when judging whether an agency sanction is arbitrary or unreasonable, manifest weight of the evidence is not the applicable standard of review, because the reasonableness of the sanction, not the correctness of the agency’s findings or reasoning, is the issue. E.g., Brown v. Civil Service Comm’n (1985), 133 Ill. App. 3d 35, 39, 478 N.E.2d 541, 544.

In any event, however, courts will not hesitate to grant relief from an adverse agency decision if that decision is not supported in the record by sufficient evidence. (Basketfield v. Police Board (1974), 56 Ill. 2d 351, 359, 307 N.E.2d 371, 375; Feliciano v. Illinois Racing Board (1982), 110 Ill. App. 3d 997, 1003, 443 N.E.2d 261, 266.) Thus, a court may reverse an order for imposing an unwarranted sanction. See Feliciano, 110 Ill. App. 3d at 1005, 443 N.E.2d at 267; Cartwright, 80 Ill. App. 3d at 793-94, 400 N.E.2d at 586.

On the questions of Letourneau’s residency and Rizzo’s activities, which clearly were the most important to the Department and the Director, the Director’s findings were unsupported by substantial evidence. We believe that the Director’s decision to revoke plaintiffs’ licenses, based as it was primarily on such unsupported findings, represented an arbitrary and unwarranted sanction.

Accordingly, we affirm the judgment of the circuit court, which reversed the Director’s revocation of plaintiffs’ licenses.

Affirmed.

CERDA, P.J., and RIZZI, J., concur.

      Plaintiffs received their licenses under the present Act by derivation from previous licensure under the 1933 Act. (See 111. Rev. Stat. 1985, ch. Ill, par. 2656.) Plaintiffs have made no issue of whether derivative licenses may be revoked on account of any breached present obligation of derivative licensees not to have violated the 1933 Act, even though nonderivative licensees arguably have no such present obligation. Thus, we may deem any such issue waived. Supreme Court Rules 341(e)(7), (f) (113 Ill. 2d Rules 341(e)(7), (f)). But compare 111. Rev. Stat. 1985, ch. 1, pars. 1001, 1101, 1103 (unless contradicted by terms of particular statute, general rule is that identical new statutory provisions continue old ones and that new law is not construed as repealing old law for purposes of offenses or claims under old) with Ill. Rev. Stat. 1985, ch. 111, par. 2656 (derivative licensees have “same rights and obligations” as nonderivative licensees).

      If the company was operating without a certificate of authority as a detective agency, the operation violated section 3a of the 1933 Act (Ill. Rev. Stat. 1983, ch. 111, par. 2604) rather than section 3. However, the Director’s eventual finding of fact was that both Letourneau and the company had practiced without licensure as a private detective and a detective agency, respectively — which in Letourneau’s case did violate section 3. The Director’s conclusion of law was merely that Letourneau violated section 3, the company going unmentioned.
      Because plaintiffs have made no issue of variances between the formal charges and the findings of fact and conclusions of law, the question may be deemed waived. But see Bruce v. Department of Registration & Education (1963), 26 Ill. 2d 612, 620, 187 N.E.2d 711, 715-16 (respondent entitled to notice of charges that must be met); Jim M’Lady Olds, Inc. v. Secretary of State (1987), 162 Ill. App. 3d 959, 961-62, 516 N.E.2d 346, 347-48 (same).


source: Caselaw Access Project

license: Public Domain

text:
    PHYLLIS C. SHEAHAN, Indiv. and as Special Adm’r of the Estate of Gregory P. Coghlan, Deceased, Plaintiff-Appellant, v. NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—89—2856
    Opinion filed April 3, 1991.
    Rehearing denied April 26, 1991.

      Patrick J. Kenneally, Ltd., of Chicago (Thomas L. Trinley, of counsel), for appellant.
    Oppenheimer, Wolff & Donnelly, of Chicago (James A. Fletcher, of counsel), for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff Phyllis Sheahan appeals from an order of the circuit court entering summary judgment in favor of defendants Northeast Illinois Regional Commuter Railroad Corporation (NIRCRC) and Robert Ferrie. Plaintiff argues that genuine questions of fact existed on the issue of the parties’ comparative negligence and, therefore, summary judgment was improper.

On February 11, 1982, at approximately 8:15 p.m., a car driven by Gregory Coghlan was struck by a NIRCRC train operated by Robert Ferrie. The collision occurred at a railroad grade crossing located at 111th and Hale in Chicago, Illinois. Coghlan was seriously injured and was hospitalized from the date of the accident until his death in May 1984.

Plaintiff, Coghlan’s mother, filed a wrongful death action against defendants. Plaintiff’s action alleged that the accident was the result of defendants’ negligence in failing to maintain a proper lookout; operating their train at an excessive speed; failing to brake in a timely manner; failing to warn of the train’s approach; failing to remove structures which blocked the view of the train’s operating crew; and failing to guard the crossing.

Defendants filed an answer and affirmative defense denying plaintiff’s aUegations and alleging that Coghlan’s negligence was the proximate cause of the accident. Subsequently, defendants filed a motion for summary judgment. Attached to defendants’ motion were the affidavits of Roger Boylan, Robert Ferrie, and James Renfrew.

Roger Boylan was a long-time friend of Gregory Coghlan. In his affidavit, Boylan stated he and Coghlan had dinner together on the evening of February 11, 1982, and were on their way to visit Coghlan’s girlfriend when the accident occurred. Coghlan was driving his mother’s car and Boylan was in the front passenger seat. The car was travelling west on 111th Street. About two blocks east of the railroad crossing, Boylan noticed that the red crossing lights were flashing. Boylan stated that Coghlan began to speed up and. that he turned to Coghlan and pleaded with him not to try to beat the train. Boylan stated that Coghlan drove into the crossing and the car was struck by a train coming from the south.

Robert Ferrie stated in his affidavit that on February 11, 1982, he was operating NIRCRC train No. 522, which ran from Joliet, Illinois, to Chicago’s La Salle Street station. One of the stops train No. 522 was scheduled to make was at a station located just north of the 111th and Hale Street crossing. Ferrie stated that, as the train approached this crossing, he set the air brake in preparation for the station stop. Ferrie further stated that the head beam on the cab was shining brightly, the cab bells were ringing, and he could see that the crossing gates were down and the red signal lights were flashing. As the train entered the crossing, Ferrie heard the sound of the cab colliding with another vehicle. However, he stated that because of the height of the cab he could not see the vehicle with which the train collided.

In his affidavit, James Renfrow stated that, in 1982, he was an assistant division engineer for NIRCRC and that he was responsible for inspecting and testing signals located at NIRCRC crossings. According to Renfrow, the automatic flashing light signal and gate mechanisms at the 111th Street crossing had been inspected on January 29, 1982, two weeks before the accident, and were working properly on that date. Renfrow stated that when he was called to the scene immediately after the accident, he inspected the signal and gate equipment and found no damage and saw nothing that appeared to be out of order. Renfrow then tested the signal and gate equipment and found that they were working properly.

In arguing that they were entitled to summary judgment, defendants contended that the statements in the affidavits established that it was Coghlan’s negligence in driving past a lowered gate and into the path of the oncoming train that was the sole proximate cause of the accident.

In her response to defendants’ motion, plaintiff argued there was evidence that defendants allowed two unsafe conditions to exist at the 111th Street crossing. These were (1) a “short” crossing gate that failed to block the left-hand lane of traffic; and (2) a building, located at the southeast corner of the intersection of the crossing and 111th Street, that obstructed the view of the operating crew of the train. Plaintiff argued that summary judgment would be improper because there was a question of fact of whether defendants were negligent in failing to correct these alleged defects or in failing to take adequate precautions in light of their presence.

Following a hearing, the trial court entered an order granting defendants’ motion for summary judgment. The court held that there was no breach of duty on the part of the railroad and that even if the railroad were negligent, its negligence was not the proximate cause of the accident.

In her appeal from the trial court’s order, plaintiff argues that defendants had a duty to provide long crossing gates forming a physical barrier to traffic and that defendants’ breach of this duty was a proximate cause of the collision. We disagree.

It has long been held in Illinois that a railroad’s duty -with respect to crossings is to provide adequate warning to motorists that a train is approaching. (Langston v. Chicago & North Western Ry. Co. (1947), 398 Ill. 248, 75 N.E.2d 363; Hamilton v. Atchison, Topeka & Santa Fe Ry. Co. (1988), 175 Ill. App. 3d 758, 530 N.E.2d 268; Bassett v. Burlington Northern R.R. Co. (1985), 131 Ill. App. 3d 807, 476 N.E.2d 31; Frankenthal v. Grand Trunk Western R.R. Co. (1983), 120 Ill. App. 3d 409, 458 N.E.2d 530; Niemi v. Sprague (1937), 288 Ill. App. 372, 8 N.E.2d 707.) Plaintiff argues that this duty was expanded when the Illinois Department of Transportation (IDOT) adopted the Manual on Uniform Traffic Control Devices for Streets and Highways, a publication of the Federal Highway Administration.

In a section on the use of automatic gates at railroad crossings, the manual states:

“On two-way streets, the gates should cover enough of the approach roadway to physically block the motorist from driving around the gate without going into the opposing traffic lane.”

In arguing that this language imposes a duty on a railroad to provide a physical barricade at railroad crossings, plaintiff relies on what she refers to as the Darling — Merchants—Paulison line of case law. (Merchants National Bank v. Elgin, Joliet & Eastern R.R. Co. (1971), 49 Ill. 2d 118, 273 N.E.2d 809; Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253; Paulison v. Chicago, Milwaukee, St. Paul & Pacific R.R., Inc. (1979), 74 Ill. App. 3d 282, 392 N.E.2d 960.) We have reviewed these cases, and we find that they have very little bearing on the case we are presently considering.

In Darling, a medical malpractice action, the issue before the supreme court was the admissibility of State Department of Health regulations, American Hospital Association standards of hospital accreditation, and the defendant hospitals’ bylaws. The hospital argued that this evidence was irrelevant and that its duty should have been determined by the care customarily offered by hospitals in the community. In response, the supreme court noted that there were cases in which the duty owed was determined by the general practice of the calling. However, the court also noted that, because a whole calling may have unduly lagged in the adoption of new and available devices, “[i]t never may set its own tests, however persuasive be its usages. Courts must in the end say what is required ***.” (Darling, 33 Ill. 2d at 331.) Accordingly, the court ruled that the evidence was admissible on the question of what responsibilities were desirable and feasible for the hospital to assume. 33 Ill. 2d at 332.

This reasoning was followed in Merchants, where a railroad argued the trial court erred in admitting into evidence a publication that set out factors to be considered in determining the treatment of a railroad crossing. The railroad contended the publication was inadmissible because the standards it contained had not been adopted by it or by the Illinois Commerce Commission, which exercised exclusive jurisdiction over grade crossing regulation. In upholding the admission of the publication, the supreme court held that it performed the same function as the regulations, standards, and bylaws admitted in Darling. Merchants, 49 Ill. 2d at 125.

In Paulison, the issue was the admissibility of standards promulgated by IDOT for use in determining whether a crossing should be protected by automatic gates or signal devices. The appellate court ruled the standards were relevant to the question of negligence. Paulison, 74 Ill. App. 3d at 287.

What distinguishes these cases from the case before us is that, in each, the courts held that the various standards, regulations, and publications at issue could be used in determining what responsibilities and duties were owed by the defendants. In the present case, however,. the responsibilities and duties owed under the facts presented have already been determined by the courts.

As we stated above, the duty of a railroad at a crossing is to provide warning that a train is approaching. While the courts in Merchants and Paulison ruled that evidence similar to the manual relied upon by plaintiff may be admissible in determining whether a railroad provided an adequate warning or whether it should have used some other type of device or crossing treatment to provide the warning, no court has held that such evidence expands the duty owed by a railroad beyond that of providing a warning.

Here, the warning signals at the 111th Street crossing were working and Coghlan was aware that a train was approaching. Thus, defendants met their duty of providing the required warnings. They were not required to provide a physical barricade to the crossing, and they cannot be held liable for their failure to do so.

Plaintiff also advances the argument that summary judgment was improper because there was a question of fact of whether defendants failed to exercise due care in light of defects present at the crossing. Plaintiff argues that the combination of the short gate and the obstruction created a hazardous condition and defendants’ negligence in failing to adopt safety procedures to guard against this condition was a proximate cause of the accident.

In support of her argument, plaintiff relies on the deposition testimony of James Renfrew and Paul Riggs, NIRCRC safety superintendent. Riggs and Renfrow stated that when a crossing gate is broken, the control tower notifies the crews of approaching trains to proceed with caution and be prepared to stop if they perceive a danger or hazard. Plaintiff contends that had this “slow and prepare to stop” procedure been utilized to protect against the hazard presented by the short gate and the obstruction, defendants’ train would have stopped before entering the crossing and the accident would have been avoided. Plaintiff’s arguments are not persuasive.

The slow-and-stop procedure was not utilized by defendants to guard against the possibility that a motorist would disregard the warnings given by the crossing signals. The procedure was utilized to protect motorists from the hazards created by broken gates. The gates at the 111th Street crossing were not broken. They were tested two weeks before the accident and were fully operational at the time of the accident. The gates were performing the warning function for which they were designed, and defendants had no reason to follow the procedure used in cases of broken gates.

Although the issue of proximate cause ordinarily is a question of fact, it becomes a question of law where the undisputed facts are such that no reasonable person could infer facts that a defendant’s acts were the cause of a plaintiff’s injuries. (Holbrook v. Peric (1984), 129 Ill. App. 3d 996, 473 N.E.2d 531.) In the present case, we do not believe that it could be reasonably inferred that defendant’s failure to utilize a procedure designed to give warning when normal warning devices are inoperable was the proximate cause of injuries suffered by a motorist who completely disregarded working warning signals.

The facts presented establish that defendants fulfilled their duty to Coghlan by warning him that a train was approaching. Defendants were not required to anticipate and guard against the possibility that Coghlan would disregard the warning (Dunn v. Baltimore & Ohio R.R. Co. (1989), 127 Ill. 2d 350, 537 N.E.2d 738); rather, they had the right to assume Coghlan would exercise due care for his own safety (Frankenthal, 120 Ill. App. 3d at 415). Plaintiff failed to do so, and we find the trial court correctly concluded that plaintiff’s failure to heed the warnings given was the sole and proximate cause of the accident.

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

Judgment affirmed.

CERDA, P.J, and GREIMAN, J., concur.


author: JUSTICE McNULTY

text:
    THOMAS KLEIST et al., Plaintiffs-Appellants, v. METRICK ELECTRIC COMPANY, INC., Defendant-Appellee (Lakehurst Center Management Corporation et al., Defendants).
    First District (5th Division)
    No. 1—89—1750
    Opinion filed April 5, 1991.

      John C. Bulger and Michael D. Mulvihill, both of Cooney & Conway, of Chicago, for appellants.
    Lee J. Schoen, of Schoen & Smith, Ltd., of Chicago, for appellee.
   JUSTICE McNULTY

delivered the opinion of the court:

The facts of this case are not in dispute. In the early 1970’s, defendant Metrick Electric Company (Metrick) installed an electrical system including an electrical box during the new construction of Lakehurst Shopping Center. On December 4, 1987; the electrical box exploded and a fire ensued. Plaintiff Thomas Kleist, who was working near the electrical box when it exploded, received serious injuries, including burns over most of his body. The original complaint named multiple defendants, including Metrick. Counts III and IV, directed against Metrick, allege that it negligently installed the electrical box that exploded, resulting in injury to Thomas Kleist. The complaint also contained a loss of consortium count against Metrick on behalf of Kathleen Kleist because of her husband’s injuries.

Metrick filed a motion for involuntary dismissal based on section 2 — 619(a)(5) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—619(a)(5)). In that motion it asserted that the electrical system and electrical box were improvements to real property. Therefore, plaintiffs’ cause of action was barred by the 10-year statute of limitations contained in section 13 — 214(b) (Ill. Rev. Stat. 1985, ch. 110, par. 13—214(b)), which states:

“No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission ***.”

Metrick’s motion was accompanied by an affidavit which stated that Metrick had not done any work at the Lakehurst Shopping Center subsequent to December 3,1977.

On October 24, 1988, plaintiffs filed their response to the motion to dismiss asserting that the electrical box was not an improvement to real property and, therefore, section 13 — 214(b) did not apply. On December 7, 1988, the court denied Metrick’s motion without prejudice because the motion and affidavits did not show that the electrical box was an improvement.

In March 1989, Metrick renewed its motion to dismiss. The affidavit accompanying this motion stated that the electrical system and electrical box were installed during new construction of the Lakehurst Shopping Center in 1971 and 1972. An amended affidavit was subsequently filed by Metrick reiterating the foregoing statement, identifying photographs attached to the affidavit which depicted the electrical equipment including the box that caught fire, and stating that all of the equipment in the photographs was installed during the new construction in 1971 and 1972. Plaintiffs continued to assert that the electrical box was not an improvement to real property subject to the statute of limitations set forth in section 13 — 214(b).

On May 30, 1989, the court granted Metrick’s motion to dismiss with prejudice on the ground that the electrical system of which the electrical box was a part was an improvement to real estate, and, thus the claim was time barred pursuant to section 13 — 214(b) set forth above. This appeal followed pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

Plaintiffs concede that an electrical system or network would be considered an improvement to real property. The electrical box was installed as a component of the electrical system at the time of construction in 1971 and 1972. Plaintiffs contend, however, that they are aUeging only that the electrical box was negligently installed, not the electrical system as a whole, and this distinction is critical to the outcome of this case. They allege that an electrical box is not an improvement to real property, and, therefore, the claim of time limitation set forth in section 13 — 214(b) of the Code of Civil Procedure is not applicable.

In support of this contention, plaintiffs rely primarily on Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, 483 N.E.2d 613. In Calumet, a landowner brought an action against a contractor seeking recovery for property damage resulting from the failure of a piping connection installed between a building’s water system and a municipal water main. Defendant moved to dismiss based upon section 13 — 214, which the court granted. Plaintiffs assert that the reviewing court reversed and held that section 13 — 214 did not apply to the action. This statement mischaracterizes the holding in Calumet. In Calumet, the plaintiff filed an unverified complaint and a subsequent unverified complaint alleging negligence in the installation of the piping connection. Defendant raised section 13 — 214(a) as a bar to the action. The reviewing court cited with approval the definition of an “improvement” as “an addition to real property amounting to more than mere repair or replacement, and which substantially enhances the value of the property.” (136 Ill. App. 3d at 613.) The court, however, found that the dismissal was premature because the pleadings did not indicate “whether the piping connection was a substantial new addition to the building, or merely in the nature of a replacement.” Calumet, 136 Ill. App. 3d at 613.

The reviewing court noted that the burden of establishing a statute of limitations defense is on the party asserting it. (Stanley v. Chastek (1962), 34 Ill. App. 2d 220, 180 N.E.2d 512.) Thus, it found that the trial court erred in dismissing count I of the action. It further stated, however, “[i]f on remand, the piping connection is properly established to be an improvement, dismissal would be proper at that time.” (Calumet, 136 Ill. App. 3d at 613.) Therefore, the holding in Calumet affirms the applicability of section 13 — 214 if a proper showing is made that the construction item in question is an improvement to real property. See also Cates v. Hunter Engineering Co. (1990), 205 Ill. App. 3d 587, 563 N.E.2d 1239.

Defendant claims that this court has recently construed section 13 — 214(b) to include excavation in anticipation of new construction as an improvement to real property. (American National Bank & Trust Co. v. Booth/Hansen Associates, Ltd. (1989), 186 Ill. App. 3d 865, 542 N.E.2d 925.) In so holding it rejected the contention that Calumet Country Club supported the conclusion that excavation is not an improvement. The court specifically noted that this question of fact would not arise “where the construction of a building was at issue.” (American National Bank, 186 Ill. App. 3d at 868.) In the instant case the electrical system and electrical box were installed during new construction of the shopping center in 1971 and 1972. Plaintiffs seek to distinguish this case from American National Bank on the ground that there was existing authority holding that an excavation prior to construction was an improvement, citing Continental Insurance Co. v. Walsh Construction Co. (1988), 171 Ill. App. 3d 135, 524 N.E.2d 1131, and Commonwealth Edison Co. v. Walsh Construction Co. (1988), 177 Ill. App. 3d 373, 532 N.E.2d 346. They state that, “in the case at bar, no such authority has been put forth by Metrick.” Carried to its logical conclusion, plaintiffs would appear to contend that construction is not an improvement to real property unless a reviewing court has previously said so. This argument appears to concede, however, that what constitutes an improvement to real property within the meaning of section 13 — 214(b) is an issue of law for the court. If so, the trial court is certainly the appropriate forum in which to make this initial determination. See also Billman v. Crown-Trygg Corp. (1990), 205 Ill. App. 3d 916, 563 N.E.2d 903 (which held that resurfacing, curbing, gutters, storm sewers, and construction of concrete medians to a highway were improvements to real property).

Finally, defendant asserts that plaintiffs’ theory in this case has been specifically rejected by the Seventh Circuit Court of Appeals in Hilliard v. Lummus Co. (7th Cir. 1987), 834 F.2d 1352. Plaintiff contends that Hilliard is a Federal case, and, therefore, of no binding authority on this court. Although this assertion may be correct, the adoption of the Hilliard rationale by this court should be determined by its persuasiveness.

The court in Hilliard adopted the definition of “improvement to real property” as stated in Calumet Country Club. The plaintiff in Hilliard agreed with the court’s premise, but argued that a screw conveyor was not an improvement but simply a piece of machinery easily removable from the plant premises. The court rejected this argument, stating that the screw conveyor was more than a repair or replacement because it was installed as part of the building’s construction, had substantially enhanced the value of the property, was designed to produce processed cocoa, and was built as an integral component of that process.

The Hilliard court further stated that the appropriate focus is on whether the whole of the work done by the contractor for the owner amounts to an improvement to real property. The court then referred to three cases from other jurisdictions in which courts have emphasized that the concentration should be on the entire system installed rather than on a single component of the system. Hilliard, 834 F.2d at 1356.

One of the cases cited by Hilliard, Mullis v. Southern Co. Services, Inc. (1982), 250 Ga. 90, 296 S.E.2d 579, is closely analogous to the instant case. In Mullis, plaintiff received a serious electrical shock while painting “bushing caps” on an air circuit breaker that was installed by the defendant as part of an electrical system. Defendant asserted that the claim was time barred, based on a Georgia statute very similar to section 13 — 214 of the Illinois Code of Civil Procedure. Plaintiff contended that the air circuit breaker was not an improvement to real property. The court disagreed, stating:

“The issue is whether a component of a system which is definitely an improvement to real property is an improvement to real property itself. However, to artificially extract each component from an improvement to real property and view it in isolation would be an unrealistic and impractical method of determining what is an improvement to real property. Frequently, as in this case, an improvement to real property is going to consist of a complex system of components.
Consequently, we find that if a component is an essential or integral part of the improvement to which it belongs, then it is itself an improvement to real property. In this case, ACB 804 [the circuit breaker] is an essential part of the Plant’s electrical system ***. It was part of the original contract and design concerning the system.” Mullis, 250 Ga. at 94, 296 S.E.2d at 584.

Three recent cases from the Illinois Appellate Court have approved the Hilliard analysis: Cates v. Hunter Engineering Co. (1990), 205 Ill. App. 3d 587, 563 N.E.2d 1239; Billman v. Crown-Trygg Corp. (1990), 205 Ill. App. 3d 916, 563 N.E.2d 903; Cross v. Ainsworth Seed Co. (1990), 199 Ill. App. 3d 910, 557 N.E.2d 906. Footnote six in Hilliard indicates that the Illinois legislature enacted section 13 — 214(b) of the Illinois Code of Civil Procedure to protect architectural engineering firms, general real estate contractors and subcontractors from open-ended tort liability. (Hilliard, 834 F.2d at 1358. See also Calumet Country Club, 136 Ill. App. 3d at 615.) It protects, on its face, anyone who engages in enumerated activities. Metrick engaged in the protected activities and, thus, is within the protected class.

We find the approach in Hilliard and Mullís to be persuasive and consistent with this court’s definition of “improvement to real property” set forth in Calumet Country Club. Moreover, to allow plaintiffs to extract a component from an improvement to real property installed at the same time and as a part thereof and thereby avoid the application of section 13 — 214(b) of the Illinois Code of Civil Procedure would defeat the legislative purpose in enacting it.

For the reasons set forth above, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

LORENZ, P.J., and GORDON, J., concur.


author: JUSTICE MURRAY

text:
    CENTRAL MUTUAL INSURANCE COMPANY, Plaintiff and Counter-defendant-Appellant, v. EUGENE KAMMERLING et al., Defendants (Pearle Vision Center, Inc., Counterplaintiff-Appellee).
    First District (5th Division)
    No. 1—90—1905
    Opinion filed April 5, 1991.
    Susan Zwick, Michael Resis, and Victor J. Piekarski, all of Querrey & Harrow, Ltd., of Chicago, for appellant.
    Gerald L. Angst and Todd C. Jacobs, both of Sidley & Austin, of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Central Mutual Insurance Co. (Central Mutual) filed a declaratory action against Dr. Eugene Kammerling, its named insured, and Pearle Vision Center, Inc. (Pearle), for an adjudication of its obligations to defend and indemnify Dr. Kammerling in connection with a professional malpractice action brought against Dr. Kammerling and Pearle. Pearle filed a counterclaim against Central Mutual, seeking a determination that Central Mutual was estopped to raise any policy defenses against Dr. Kammerling in the declaratory action. The trial court granted Pearle’s motion for summary judgment on its counterclaim against Central Mutual and granted Pearle judgment against Central Mutual in the amount of $324,000, representing payment of the $300,000 liability limits of Central Mutual’s policy in settlement of the underlying action and $24,000 in defense fees and costs for Dr. Kammerling. The trial court denied Central Mutual’s motion for reconsideration and granted Pearle’s petition for attorney fees. Central Mutual appeals the aforementioned orders. The facts concerning the case are as follows.

The original action arose out of an eye examination which Dr. Kammerling performed on Vivian Randolph (not a party to this litigation) on September 6, 1980. At all times relevant to the underlying action, Dr. Kammerling practiced optometry at one of Pearle’s locations. Prior to September 6, 1980, Central Mutual had issued to Dr. Kammerling a primary liability insurance policy. This policy was in full force and effect on September 6, 1980, and provided for indemnification up to $300,000 and a separate obligation to defend claims within the coverage.

In 1982 Vivian Randolph filed a medical malpractice suit against Pearle claiming that she had been injured as a result of negligent optometric services allegedly rendered by Pearle on September 6, 1980. Initially Dr. Kammerling was not named as a defendant in the underlying action. However, in August 1987, Vivian Randolph filed a third-amended complaint adding counts XVI and XVII, and naming Dr. Kammerling as an additional defendant. The third-amended complaint alleged that Dr. Kammerling was negligent in performing the eye examination and specifically that he failed to detect glaucoma.

Pearle’s excess insurance carrier, Northbrook Excess and Surplus Insurance Company (Northbrook), paid the cost of defending Dr. Kammerling. Dr. Kammerling tendered his defense to and requested indemnity from Central Mutual under the subject insurance policy by letter dated December 30, 1987. Central Mutual “reviewed” potential coverage from January 6,1988, to April 18,1988.

On January 6, 1988, Central Mutual sent a letter to John O’Malley, retained by Pearle’s insurer to defend Dr. Kammerling, acknowledging receipt of the letter dated December 30, 1987. The letter also indicated that Central Mutual was in the process of reviewing coverage. On January 18, 1988, Central Mutual advised Dr. Kammerling of its reservation of rights due to the late notice of the loss and, further, that the claim for punitive damages was not covered under the policy.

On April 18, 1988, Central Mutual’s attorneys wrote to North-brook, stating that “[although Central [Mutual] will proceed with a declaratory judgment against its insured in this case, it recognizes its obligation to provide a defense, pursuant to a full reservation of rights, to Dr. Kammerling until that declaratory action has been resolved.” Central Mutual went on to state that it had designated the law firm of Galliani & Doell, Ltd., as its attorneys, who would file an additional appearance on behalf of Dr. Kammerling in the underlying matter. Central Mutual suggested “that Mr. O’Malley of Pope, Ballard continue in his defense of Dr. Kammerling (assuming that Dr. Kammerling is agreeable) and that the costs of defense be borne by North-brook and Central in accordance with their obligations under the policies.” Central Mutual raised questions as to how the two insurance policies related to each other and further suggested that Central Mutual would “undertake to pay three-fifty thirds of all expenses incurred in the defense of this action until its declaratory judgment proceeding has been terminated.”

The record reflects that Galliani & Doell, Ltd., did not file a court appearance on behalf of Dr. Kammerling in the underlying action. In fact no attorney or law firm retained by Central Mutual filed a court appearance on behalf of Dr. Kammerling in the underling action.

In response to Central Mutual’s April 18, 1988, letter, by letter dated May 2, 1988, Northbrook indicated that it was going to continue to meet its own obligation to fund Dr. Kammerling’s defense through John O’Malley. The May 2, 1988, letter states in pertinent part:

“This will acknowledge receipt of your letter dated April 18, 1988.
We agree that Dr. Kammerling’s best interest must be served. I have advised Mr. O’Malley of your opinions as outlined in your April 18, 1988 letter. At this time, Mr. O’Malley will continue to provide Dr. Kammerling with a defense in the Vivian Randolph case.
Please provide a complete copy of the Central Mutual Insurance policy issued to Dr. Kammerling for the period in question. Although I have a copy of a Central Mutual Insurance policy, I am not certain it is complete. In order for me to provide our position regarding your interpretation of the way each policy applies, I will need to review a complete copy of the Central Mutual Insurance policy including the jacket, Dec sheet and any endorsements. However, from a brief review of the policy information I do have and a review of the NESGO [Northbrook] policy, I do not believe your interpretation of how the policies apply is correct. Once I have had an opportunity to analyze both policies, I believe we can discuss your proposals regarding defense costs.”

By letter dated September 8, 1988, Dr. Kammerling demanded that Central Mutual offer $300,000 (its policy limit) to settle the plaintiff’s suit. On October 12, 1988, Central Mutual refused to contribute to a settlement and advised Dr. Kammerling that it had “no duty either to defend or indemnify him for the action filed against him by Vivian Randolph.” By letter dated November 1, 1988, Dr. Kammerling’s lawyer advised Central Mutual’s lawyer that he could settle the action against Dr. Kammerling for Central Mutual’s $300,000 policy limit.

On November 7, 1988, Central Mutual filed its complaint for declaratory relief seeking a declaration of its rights as an insurer of Pearle under a primary policy Central Mutual issued to Dr. Kammerling. The policy provided indemnification to Dr. Kammerling of up to $300,000 plus a separate duty to defend Dr. Kammerling in malpractice suits filed against him.

In January of 1989, while the declaratory action was in the early pleading stages, Dr. Kammerling settled the litigation for $300,000. This payment was funded by Pearle and, in return for said payment, Dr. Kammerling assigned to Pearle his rights, if any, against Central Mutual for reimbursement of the settlement payment and defense costs.

On March 15, 1990, the trial court, pursuant to section 2 — 1005 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005), entered summary judgment against Central Mutual and in favor of Pearle in the amount of $300,000 plus attorney fees. In granting Pearle’s summary judgment motion, the trial court concluded that Central Mutual: owed a duty to defend; admitted that it owed a duty to defend, but in fact failed to defend; and was estopped from asserting its defense. On May 31, 1990, the trial court entered an order finding that the amount of reasonable attorney fees and expenses spent in defending Dr. Kammerling in the underlying action was $24,000. After a denial of post-trial motions, this appeal ensued.

On appeal, Central Mutual alleges that the trial court improperly determined that Central Mutual wrongfully refused to defend Dr. Kammerling and was therefore estopped to deny liability coverage. Alternatively, Pearle asserts that an insurance carrier who fails to provide a defense to its insured after acknowledging an obligation to do so, and who fails to file a timely declaratory judgment action as to coverage, is estopped from later raising a policy defense.

For the following reasons, we affirm the decision of the trial court.

It is well-settled law in Illinois that an insurer’s duty to defend an action against its insured is determined by the allegations of the complaint. (Conway v. Country Casualty Insurance Co. (1982), 92 Ill. 2d 388, 393, 442 N.E.2d 245, 247; Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 193, 355 N.E.2d 24, 28.) If the complaint alleges facts within the coverage of the policy or potentially within the coverage of the policy, the insurer’s duty to defend has been established. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 193, 355 N.E.2d 24, 28.) “An insurer may not justifiably refuse to defend an action against its insured unless it is clear from the face of the complaint that the allegations fail to state facts which bring the case within, or potentially within, the policy’s coverage.” (Conway v. Country Casualty Insurance Co. (1982), 92 Ill. 2d 388, 393, 442 N.E.2d 245, 247.) Where an insurer is uncertain as to the extent its policy provides coverage, it has two options. The insurer must defend under a reservation of rights; otherwise, the insurer must secure a declaratory judgment as to its rights and obligations before trial or settlement of the underlying action. “Where the insurer fails to take either course of action, its failure to defend is unsatisfied and it is estopped from later raising policy exclusions or defenses in a subsequent action by the insured or the insured’s subrogee.” (Casualty Insurance Co. v. Northbrook Property & Casualty Insurance Co. (1986), 150 Ill. App. 3d 472, 478, 501 N.E.2d 812, 816.) The parties recognize these settled rules of insurance law.

Central Mutual claims the aforecited rules have no application to this case since Central Mutual did not refuse to defend Dr. Kammerling. As a result Central Mutual asks this court to reverse and remand the matter for further proceedings. Pearle claims the stated cases apply to this case, and since Central Mutual failed to defend Dr. Kammerling, this court must affirm the trial court.

Central Mutual alleges that it did not refuse.to defend Dr. Kammerling and, additionally, the requirement to seek a declaratory judgment in cases where the basis for the declaratory judgment is an alleged material breach of contract by the insured does not mandate a determination of the issues prior to the conclusion of the underlying litigation. M/A Com, Inc. v. Perricone (1989), 187 Ill. App. 3d 358, 362, 543 N.E.2d 228.

The peculiar facts of this case raise the otherwise clear application of the cited law. On April 18, 1988, Central Mutual wrote a letter to Northbrook recognizing its obligation to defend until a declaratory judgment was filed, but did not file the same until November 7, 1988, six months and 19 days after recognizing its duty and 10 months after it had notice of its potential liability for the defense of the claim against Dr. Kammerling.

Central Mutual admitted that it never retained a lawyer to defend Dr. Kammerling in the underlying action. However, Central Mutual claims that on May 2, 1988, Northbrook agreed to the coordination of defense costs incurred on behalf of Dr. Kammerling, but reserved its decision as to the actual apportionment of these costs. Pearle asserts that contrary to Central Mutual’s representations, Northbrook did not agree to perform any of Central Mutual’s obligations to Dr. Kammerling. We agree with Pearle and find that the May 2, 1988, letter (relevant portions previously quoted) contains no such agreement. Central Mutual points out that at no time did Northbrook reject its proposal; however, Central Mutual fails to point out that at no time did North-brook accept its proposal. At best the correspondence indicates an offer to enter an agreement to apportion defense costs and a response that such a proposal could be discussed at a future date.

As the court stated in Aetna Casualty & Surety Co. v. Coronet Insurance Co. (1976), 44 Ill. App. 3d 744, 749, 358 N.E.2d 914, 917, “[t]he contract becomes no less breached because of the fortuitous existence of another insurer who is willing to meet its own obligations.” The fact that Northbrook continued to meet its own obligation to provide a defense to Dr. Kammerling did not discharge any duty Central Mutual owed Dr. Kammerling pursuant to coverage under its insurance policy. Central Mutual sat on the sidelines for at least six months and 19 days while the case against Dr. Kammerling was being played. It was only in the final days of the last quarter and after Central Mutual’s lawyer was advised of the fact that the action against Dr. Kammerling could be settled for Central Mutual’s $300,000 policy limits that Central Mutual filed its declaratory judgment action. As Grantland Rice once said: “After the game is over and the clouds begin to wane it isn’t whether you won or lost that counts but how you played the game.”

The court stated in Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777, 387 N.E.2d 700, “[i]n Illinois, a liability insurer in doubt over whether it has a duty to defend its insured, cannot simply stand on the sidelines and wait until the tort action is completed before contesting the question of coverage.” (Reis, 69 Ill. App. 3d at 782-83, 387 N.E.2d at 704.) A case is not over until a final order is entered, yet there appears no legally justifiable reason why Central Mutual waited until it was notified of the possible settlement of the underlying action to assert its obligation to seek declaratory relief as an alternative to its duty to defend.

There.may be cases where an insurer’s delay for a period of time in bringing its declaratory action after a reservation of rights does not operate as an estoppel, but such facts do not appear in this record. The only defense Central Mutual suggests relevant to its duty to defend is that Dr. Kammerling’s failure to inform Central Mutual of the occurence (the eye examination of Vivian Randolph on September 6, 1980), seven years after it took place, constituted a breach of the insurance policy and relieved it of its obligation to defend or indemnify. However, Central Mutual failed to assert this claim for 10 months after it had notice of loss and months after it had notice of a possible settlement of the underlying controversy. Furthermore, Central Mutual acknowledged its duty to defend under a reservation of rights. No reason equitable or otherwise suggests itself in the record as to why Central Mutual delayed its legal obligation to file a declaratory action during this period. We find that the trial court properly entered summary judgment in favor of Pearle and against Central Mutual.

Central Mutual cites the case of M/A Com, Inc. v. Perricone (1989), 187 Ill. App. 3d 358, 543 N.E.2d 228, to support' its position that no estoppel was involved in the present case. In M/A Com, Inc. v. Perricone the specific issue was whether an insurer’s failure to defend an insured based on late notice of the claim is estopped from raising the late notice defense in a subsequent garnishment action by the judgment creditor. The court held that the issue of whether a delay in notice constituted a breach of policy provision requiring notice “as soon as practicable” is determined by a standard of reasonableness based upon the facts and circumstances of the particular case. The court reversed and remanded the cause for a determination of the factual issue of the reasonableness of the notice. (M/A Com, Inc. v. Perricone (1989), 187 Ill. App. 3d 358, 543 N.E.2d 228.) We feel that MIA. Com, Inc. v. Perricone is distinguishable from the present case. This case involves an action between the insured and the insurer, not a subsequent garnishment proceeding. This is a case where the insurer (Central Mutual) recognized its obligation to the insured (Dr. Kammerling) under its policy of insurance, had knowledge that the law required it to file a declaratory action after indicating its reservation of rights to Dr. Kammerling, and then failed to file its declaratory judgment until it had notice of settlement proceedings.

Dr. Kammerling assigned his rights under his Central Mutual policy to Pearle in consideration of Pearle’s funding Dr. Kammerling’s defense and settlement payment. Central Mutual asserts for the first time on appeal that Pearle may not claim an estoppel against Central Mutual because “at no time before judgment on its counterclaim did Pearle produce any evidence of an assignment from Dr. Kammerling.” Central Mutual did not raise the issue of Pearle as an assignee of Dr. Kammerling until this appeal. We note, however, at oral argument Central Mutual’s lawyer conceded that raising the issue was error; thus, we need not address the issue.

Accordingly, for the reasons set forth above, we affirm the decision of the trial judge.

Judgment affirmed.

LORENZ, P.J., and GORDON, J., concur.


author: PRESIDING JUSTICE RAKOWSKI

text:
    JUANITA RAMIREZ, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (6th Division)
    No. 1—90—2347
    Opinion filed April 5, 1991.

      Burke & Burke, Ltd., of Chicago (John M. Burke and Thomas M. Lake, of counsel), for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal and Brian Trubitt, Assistant Corporation Counsel, of counsel), for appellee.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Plaintiff-appellant Juanita Ramirez filed this negligence action against defendant-appellant the City of Chicago (City) to recover damages plaintiff incurred while stepping onto a street. The trial court held that, pursuant to section 3 — 102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 3—102(a)) (Tort Immunity Act), the City owed plaintiff no duty, and thus the trial court granted the City’s motion for summary judgment. Plaintiff appeals the entry of summary judgment in favor of the City, contending that she was in fact the beneficiary of a duty of ordinary care. We affirm.

The facts of this case are relatively simple and are not in dispute. On June 4, 1988, plaintiff was injured while sweeping the curb portion of the street which was located in front of plaintiff’s residence at 4828 South Paulina in Chicago. Specifically, plaintiff was sweeping debris which had collected in a sewer area. Plaintiff was cleaning the street in order to make it “look nice.” When stepping from the curb to the street, plaintiff fell over a three-inch ridge in the street. Plaintiff’s injury occurred in an area of the street which was outside of a crosswalk.

In a cause of action based on negligence, the plaintiff must establish the existence of a duty, a breach of that duty and an injury proximately resulting from a breach of that duty. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 18, 440 N.E.2d 96.) The question of the existence of a duty is a question of law. (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 163, 456 N.E.2d 96.) A motion for summary judgment, as defendant presented in this case, properly addresses the issue of duty. Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 431, 495 N.E.2d 1295.

Section 3 — 102(a) of the Tort Immunity Act sets forth a municipality’s general property-related duty:

“[A] local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used[.]” (Ill. Rev. Stat. 1987, ch. 85, par. 3—102.)

A municipality has a duty to reasonably maintain its streets for vehicular traffic (Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, 522 N.E.2d 215) and to reasonably maintain its crosswalks for pedestrians (see Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 527 N.E.2d 572; Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 502 N.E.2d 357). In Mason, the court observed:

“The law imposes no general duty on municipalities for the safeguarding of pedestrians when they are using public streets as walkways. *** The law is well settled, therefore, that a municipality owes no duty to a pedestrian crossing a public street outside of the crosswalk.” (Mason, 173 Ill. App. 3d at 331-32.)

In Risner, the court stated: “[T]he street is for use by vehicular traffic — not pedestrians, except where defendant has provided crosswalks or the like.” (Emphasis omitted.) Risner, 150 Ill. App. 3d at 831.

The Illinois appellate courts have addressed the issue of whether a municipality owes a pedestrian a duty of care in the maintenance of roadways in an increasing number of cases. (See Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 300 N.E.2d 590; Risner, 150 Ill. App. 3d 827, 502 N.E.2d 357; Di Domenico v. Village of Romeoville (1988), 171 Ill. App. 3d 293, 525 N.E.2d 242; Mason, 173 Ill. App. 3d 330, 527 N.E.2d 572; Vlahos v. City of Chicago (1990), 198 Ill. App. 3d 911, 556 N.E.2d 660; Vance v. City of Chicago (1990), 199 Ill. App. 3d 652, 557 N.E.2d 494; Princivalli v. City of Chicago (1990), 202 Ill. App. 3d 525, 559 N.E.2d 1190.) In fact, two more decisions involving the issue before this court have been released since the parties briefed the case at bar. See Wojdyla v. City of Park Ridge (1991), 209 Ill. App. 3d 290; Greene v. City of Chicago (1991), 209 Ill. App. 3d 311.

Plaintiff argues that she was the beneficiary of a duty at the time of her injury because, though her injury occurred at a point in the street not protected by a crosswalk, she was lawfully on the street performing a lawful duty, and a defect in the street injured her while she was performing a socially desirable function. In support of this argument, plaintiff cites a number of cases which are clearly distinguishable from the case at bar.

First, plaintiff relies on the Di Domenico case. There, the Third District Appellate Court held that the municipality owed the pedestrian-plaintiff a duty of care, despite the fact that the injury occurred in an area of the street not protected by a crosswalk. In Di Domenico, the plaintiff fell into a hole on the street while approaching the trunk of his legally, curb-side parked automobile. Responding to the argument that streets (crosswalks excepted) need be maintained only for vehicular use, the court stated:

“It defies common sense to conclude that such local entities did not contemplate and intend that the operator of the vehicle along with the passengers would use the street area around the parked vehicle for ingress and egress to and from their vehicle.” (Di Domenico, 171 Ill. App. 3d at 295-96.)

The Di Domenico court concluded that the plaintiff, legally parked, could maintain a cause of action. In explaining the Di Domenico holding, the Vance court stated “[the Di Domenico court] found that the village must have recognized a driver would have to walk in the street from his legally parked car to the sidewalk,” and therefore the plaintiff benefitted from a duty. (Vance, 199 Ill. App. 3d at 654.) We note that the plaintiff in Vance was injured in the area of the street within which a Chicago Transit Authority bus was allowed to park (per ordinance) as she approached the bus. Clearly, such use of the street, like that in the instant case, was lawful. The Vance court, however, declined to impose a duty on the city.

Di Domenico is distinguishable from the case at bar. Assuming plaintiff here was injured in an area of the street where parking was allowed (the parties have not brought this factual matter to our attention and the record does not reveal whether parking was allowed where the injury occurred), the Di Domenico plaintiff was necessarily walking to her legally parked vehicle. Here, plaintiff was gratuitously cleaning the street.

Plaintiff also relies on the case of Marshall v. City of Centralia (1989), 193 Ill. App. 3d 334, 549 N.E.2d 652. There the plaintiff was injured when he stepped into an open manhole. The location of the manhole was on the parkway — “[a]t the time of the accident the plaintiff had not yet entered the street.” (Marshall, 193 Ill. App. 3d at 336.) The court held that the plaintiff was indeed the beneficiary of a duty, but the duty ran because a municipality has a duty to maintain its parkways in a reasonably safe condition considering the use of that property. (Marshall, 193 Ill. App. 3d at 338-39.) The injury in the case at bar is not one that involves the use of a parkway, and thus, Marshall is not persuasive to the issue before us.

Finally, plaintiff relies on Princivalli. There, the court reversed an entry of summary judgment entered in favor of the city where the entry of judgment was “premature,” given the city’s failure to establish that the pedestrian was not an intended and permitted user of the street. (Princivalli, 202 Ill. App. 3d at 528.) In Princivalli, the plaintiff legally parked her vehicle parallel to the curb, “alighted from her car, *** walked around the back end of the car and stepped off the curb into the street. As she was crossing the street, she accidentally stepped into a pothole.” (202 Ill. App. 3d at 526.) While one may argue that Princivalli is an extension of Di Domenico (an argument we need not address), it is nonetheless distinguishable from the case at bar because the plaintiff there was walking from a legally parked vehicle.

Plaintiff argues that this case, like the Princivalli case, must be remanded for a determination of whether her use of the street was “foreseeable.” Here, plaintiff’s argument clearly puts the proverbial cart before the horse. The fact that plaintiff’s use of the street may have been foreseeable does not compel a conclusion that a duty was owed plaintiff. Pursuant to the language of the Tort Immunity Act, foreseeability “pertains to use of the municipality’s property by permitted and intended users, not to foreseeable users *** ‘in a manner *** it was reasonably foreseeable it would be used.’ ” (Emphasis in original.) (Risner, 150 Ill. App. 3d at 831.) Wfiiile it is foreseeable that pedestrians will use the streets outside of crosswalks in a variety of manners, the pivotal inquiry is whether the municipality intends and permits pedestrians to use the property. We note that it is unlikely that the Princivalli opinion is a signal to extend a duty to anyone who is lawfully using the street. The same division in the recent case of Greene v. City of Chicago (1991), 209 Ill. App. 3d 311, recently held that a pedestrian injured in the street did not benefit from the duty Di Domenico imposes, as the Greene plaintiff was not walking to or from a legally parked vehicle, but rather was walking to a friend’s house. The plaintiff in Greene was walking in an area of the street where parking was allowed, and the opinion does not give any indication that crossing in mid-block was prohibited by ordinance.

In arguing that she was an intended and permitted user of the street at the time of her injury, and thus the beneficiary of a duty, plaintiff emphasizes that there is no ordinance “prohibiting citizens *** from collecting garbage and/or debris which accumulates [in the street].” Plaintiff goes so far as to assert that her actions at the time of her injury “would be encouraged by the City.” We are not sure that municipalities do in fact “encourage” citizens to maintain their property in all instances. Plaintiff does, however, touch upon a point worth discussing when she asserts that the lack of ordinance prohibiting conduct is tantamount to an indication that an individual engaging in the unprohibited conduct is an intended and permitted user of the municipality’s property.

We have recently held that an ordinance which does in fact prohibit a plaintiff from engaging in conduct may compel the result that the plaintiff is owed no duty under the Tort Immunity Act. (See Prokes v. City of Chicago (1991), 208 Ill. App. 3d 748.) We are unprepared, however, to hold that the mere lack of municipal prohibition suffices to impose a duty. While we agree that a municipality’s failure to prohibit an individual from engaging in a given use of public property may well indicate that the plaintiff is “permitted” to use the property in the given manner, section 3 — 102(a) provides that no duty runs unless the plaintiff is an “intended and permitted” user of the property.

Our holding that to be the beneficiary of a duty with respect to use of municipal property one must be an intended and permitted user of the property is compelled by both the language of section 3 — 102(a) and the case law construing the statute. The statute provides that a duty runs to “people whom the entity intended and permitted to use the property.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 85, par. 3—102.) The word “intend” is defined as either “to have in mind as a specific purpose or goal” or “to design for a specified use or future.” (Webster’s Ninth New Collegiate Dictionary 629 (1989).) The word “permit” is defined as “to consent to expressly or formally,” “to give leave,” or “to make possible,” and is synonymously cross-referenced as “allow.” (Webster’s Ninth New Collegiate Dictionary 876 (1989).) We are convinced that had the legislature chosen to subject municipalities to liability for either of these distinctive uses of municipal property, it would have used the conjunction “or” instead of the conjunction “and.”

Additionally, we are unaware of any case law or other authority which suggests that a plaintiff benefits from a duty under section 3— 102(a) if (s)he is either an intended or a permitted user of municipal property. To the contrary, we find implicit support in the case law that section 3 — 102(a) requires that the beneficiary of a duty be both an intended and permitted user of the property. In Curtis, our supreme court was faced with a claim by a passenger of an automobile. The plaintiff alleged that the county was negligent in allowing a sign to be placed along the highway that motorists used to assist them in a form of drag racing. The Curtis plaintiff, in fact, was a passenger in an automobile that was drag racing at the time of the injury. In holding that the plaintiff was owed no duty, the court stated “[a]s a passenger in a speed-clocking automobile, [plaintiff] cannot be said to fall within the class of motorists by whom defendant’s highways were intended to be used.” (Curtis, 98 Ill. 2d at 165.) Given that the plaintiff in Curtis alleged that the governmental entity was negligent in allowing the sign to remain despite the entity’s knowledge of constant and repeated use of the sign, the argument could be made that the activity was in some sense “permitted.” The court’s language in dismissing the cause of action, however, did not touch upon the issue of permission, but rather mentioned only that the plaintiff was not an intended user of the roadway. In Deren, the plaintiff specifically alleged that the city held the street out for pedestrian use and that such use of the street was regular. The court in Deren, in deciding the issue before it, was willing to concede that the city was aware of such use, and there is no discussion of any ordinance prohibiting pedestrian use of the roadway. Clearly, then, the Deren case involves pedestrian use of a roadway that was in some sense permitted. The Deren court, however, refused to impose a duty on the city. A reading of these cases suggests that one must not only be a permitted user, but must also be an intended user of municipal property to benefit from a municipality’s duty of reasonable care with respect to that property.

Further, we do not think that a municipality must separately prohibit each and every potential foreseeable use of its property in order to assert that it owes no duty under section 3 — 102(a). In the context of pedestrian usage of streets, the potential foreseeable uses of the street are many. In sum, while prohibition of a given use of municipal property may well compel the result that the user is owed no duty, because of the disjunctive requirements of municipal intent and municipal permission, we hold that the lack of municipal prohibition of activity, alone, does not compel the result that a plaintiff is owed a duty under section 3 — 102(a).

Finally, assuming that plaintiff was a “permitted” user of the street at the time of her injury, due to the lack of prohibition of such use, we address whether plaintiff was an intended user of the street. As indicated, the general rule is that streets are for use by vehicular traffic — not pedestrians. To be sure, a number of exceptions have developed to this rule. (See Greene v. City of Chicago (1978), 73 Ill. 2d 100, 382 N.E.2d 1205 (plaintiff was standing near or attending a disabled vehicle); compare Householder v. City of Bunker Hill (1988), 172 Ill. App. 3d 1037, 527 N.E.2d 528; Di Domenico, 171 Ill. App. 3d 293, 525 N.E.2d 242, and Princivalli, 202 Ill. App. 3d 525, 559 N.E.2d 1190 (plaintiff walking to or from a legally parked vehicle); but see Vlahos, 198 Ill. App. 3d 911, 556 N.E.2d 660, and Mason, 173 Ill. App. 3d 330, 527 N.E.2d 572; Thorsen v. City of Chicago (1979), 74 Ill. App. 3d 98 (plaintiff forced to walk in street because the city tore up the sidewalk on both sides of the street).) All of these cases, however, are distinguishable based upon the facts, and the reasons for these holdings appear to be bottomed upon the respective plaintiffs’ necessary use of the roadways. This analysis is reinforced in that the recent Greene case held that no duty was owed a plaintiff who was crossing the street outside of a crosswalk en route to a friend’s house. (Greene, 209 Ill. App. 3d at 313.) The facts of this case are unlike those cases which depart from the general rule, and the reasons for the holdings in those cases are absent from this case.

As we previously stated, we are not convinced that municipalities do in fact encourage individuals to take it upon themselves to clean their streets or sewers. We are convinced, however, that were such gratuitous actions to result in the imposition of liability upon the City, such use of municipal property would most definitely not be encouraged.

Finally, it is clear that if we were to adopt plaintiff’s argument that any foreseeable, unprohibited pedestrian use of Illinois roadways is both intended and permitted, Illinois municipalities would be required to make all areas of all roadways safe for pedestrian travel. Given the absence of a legal basis for a duty owed plaintiff, we are disinclined to create one. Foreseeability alone does not govern the determination of whether a duty should be imposed. As our supreme court in Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, observed: “The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant, must also be taken into account.” The magnitude of making all Illinois roadways safe for pedestrian travel along with the consequential costs would be astronomical indeed. We therefore refuse to impose such a duty upon municipalities.

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

Affirmed.

McNAMARA and LaPORTA, JJ., concur.