author: JUSTICE LEWIS JUSTICE CHAPMAN,

text:
    THE PEOPLE ex rel. HOLLY B. LeGOUT, Petitioner-Appellant, v. RICKY J. DECKER, Respondent-Appellee.
    Fifth District
    No. 5-89-0699
    Opinion filed February 28, 1991.

      CHAPMAN, J., dissenting. .
    Jon C. Anderson, State’s Attorney, of Robinson (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

Appellant appeals from the trial court’s dismissal for lack of jurisdiction of petitioner’s action for support pursuant to the Revised Uniform Reciprocal Enforcement of Support Act (Ill. Rev. Stat. 1987, ch. 40, pars. 1201 through 1242) (the Act). Although respondent has not filed a brief in this appeal, we nevertheless consider the appeal on its merits. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The petitioner, Holly B. LeGout, a resident of Lawrence County, Illinois, filed a petition pursuant to the Act, seeking to enforce a support order entered against the respondent, a resident of Crawford County, in the dissolution of marriage action in that county’s court. The circuit court of Lawrence County transmitted the case to the circuit court of Crawford County, the county of residence of the respondent. In the circuit court of Crawford County a stipulated order was entered on September 23, 1988, wherein the respondent was found to be in arrears in the amount of $2,950 for support of his child, and respondent’s child support obligation was increased from the $150 per month ordered pursuant to the order of judgment of dissolution of marriage to the sum of $200 per month.

A summons was issued May 2, 1989, requiring respondent to appear in court to answer to charges of failure to comply with the order of support. On August 22, 1989, respondent filed a motion to dismiss the petitioner’s cause of action, asserting that the Act was inapplicable to the case at bar and seeking vacation of the order of September 23, 1988, due to lack of subject matter jurisdiction in the court. This motion to dismiss was granted by the circuit court of Crawford County on September 8, 1989, and an order reflecting the court’s finding was filed September 18, 1989. A timely notice of appeal was filed. We affirm the decision of the trial court granting respondent’s motion to dismiss.

The primary purpose of the Act is to make it feasible for a defendant in one State to enforce the duty of support owed by a person residing in another State. (People ex rel. Noah v. Gasik (1980), 91 Ill. App. 3d 980, 982, 415 N.E.2d 452, 452.) It has been used to enforce support obligations where a decree of dissolution of marriage and' a support order have been entered in another State and the obligor moves to this State while the obligee remains in the jurisdiction which granted the decree (Rathmell v. Gardner (1982), 105 Ill. App. 3d 986, 434 N.E.2d 1156 (Ohio dissolution of marriage and support order, obligee lives in Ohio, obligor lives in Illinois)); where a foreign decree of dissolution and support order are entered and both the obligor and obligee leave that jurisdiction (Dorsey v. Dorsey (1980), 86 Ill. App. 3d 1043, 408 N.E.2d 502 (California dissolution and support order, obligor moves to Virginia, obligee is an Illinois resident)); and where an Illinois decree of dissolution and order of support are entered and the obligor remains in Illinois and the obligee moves to another State (People ex rel. Argo v. Henderson (1981), 97 Ill. App. 3d 425, 422 N.E.2d 1005 (Illinois dissolution of marriage and support order, obligor remains in Illinois, obligee moves to Florida)). The People have not cited nor has the court found an instance where the scenario presented by the case at bar has been adjudicated in the State of Illinois. The instant case presents a situation wherein an Illinois resident seeks to enforce and to modify the provisions of an Illinois decree of dissolution and support order against an obligor who remains in the State of Illinois, albeit in another county.

The State cites three cases from other jurisdictions in support of its thesis that an obligee who resides in one county of a State may use the Act to enforce a support order against an obligor who resides in a different county, regardless of where the order directing the obligor to support his children is entered. These cases are, however, inapplicable to the case at bar.

In Commonwealth ex rel. Powell v. Powell (1976), 238 Pa. Super. 369, 357 A.2d 566, the court stated that under the Act, the place of residence of the obligor was the proper venue where both obligor and obligee were residents of the State of Pennsylvania. However, while the superior court of Pennsylvania cited to section 33 of the Revised Uniform Reciprocal Enforcement of Support Act in support of their holding, the appeal which that court was entertaining was not the result of an action brought pursuant to the Act, but was pursued under the Pennsylvania Civil Procedural Support Law (62 Pa. Stat. Ann. §2043.31 et seq. (Purdon 1868)). Furthermore, there is nothing in the Powell case to support the State’s contention that the support order in Powell was not entered by some foreign State or country. The opinion is devoid of any mention of the origin of the order of dissolution and support.

Stolker v. Stolker (1977), 250 Pa. Super. 356, 378 A.2d 975, held, as did the Powell case, that where the obligor and obligee are present in the same State, the proper procedure in the trial court is to transfer a complaint for support to the county in which the obligor is a resident, in order to have a case considered in a court with jurisdiction over both the person and the property of the obligor. Again, the complaint in Stolker was brought in the county of residence of the obligee pursuant to the Pennsylvania Civil Procedural Support Law, not the Act. As in Powell, there is no indication in the opinion of what court entered the original order of dissolution and support.

Additionally, the State cites Buschway v. Reindeau (1979), 137 Vt. 455, 462, 407 A.2d 178, 181, for the proposition that, “[wjhen the obligor or obligee crosses the country, the state border, or a county line the remedies provided by the Act become available.” The decision in Buschway resulted from an appeal of an order entered in a proceeding under Vermont’s Revised Uniform Reciprocal Enforcement of Support Act (Vt. Stat. Ann. tit. 15, §§385-428 (1968)). In that case, the parties to the marriage were married in Vermont, and an order of dissolution and child support was also entered in that State. Shortly after the dissolution, the obligee removed herself to Massachusetts, where she remained with one of the children of the marriage. The obligor remained in Vermont, with the remaining three children of the marriage. When the obligor failed to pay child support for the fourth child, who had moved with the obligee to Massachusetts, the obligee filed a petition for support under the Massachusetts Revised Uniform Reciprocal Enforcement of Support Act, and the Massachusetts court certified the case and transferred the certificate to the Vermont court .under the Act. The court found that the appropriate forum for the case was Vermont. The Buschway case differs from the case at bar in that the obligee, an out-of-State resident, sought to enforce a support obligation in the State wherein that obligation was incurred and wherein the obligor still resided, unlike the case at bar where the obligation was incurred in Illinois, and both obligee and obligor remain in the State.

The provisions of the Act include a procedure whereby an obligee living in one county of the State can enforce the support obligation owed by an obligor in another county of the State via section 33 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 1233):

“This Act applies if both the obligee and the obligor are in this State but in different counties. If the court of the county in which the petition is filed finds that the petition sets forth facts from which it may be determined that the obligor owes a duty of support and finds that a court of another county in this State may obtain jurisdiction over the obligor or his property, the clerk of the court shall send the petition and a certification of the findings to the court of the county in which the obligor or his property is found. The clerk of the court of the county receiving these documents shall notify the prosecuting attorney of their receipt. The prosecuting attorney and the court in the county to which the copies are forwarded then shall have duties corresponding to those imposed upon them when acting for this State as a responding state.”

The purposes of the Act are to improve and extend by reciprocal legislation the enforcement of duties of support and to enable the dependent in one State to enforce a duty of support owed by a person residing in another State (People ex rel. Noah v. Gasik (1980), 91 Ill. App. 3d 980, 982, 415 N.E.2d 452, 454). It is clear that the Act contemplates commencing the proceedings only in those instances where at least one element of the equation is out of State: the dissolution and support order, the obligor, or the obligee. Proceedings under the Act are independent actions to enforce court-ordered obligations, and the remedies provided by the Act are in addition to, not in substitution for, other remedies. (Ill. Rev. Stat. 1977, ch. 40, par. 1203; People ex rel. Oetjen v. Oetjen (1980), 92 Ill. App. 3d 699, 703, 416 N.E.2d 278, 281.) The petitioner in the case at bar had State remedies available to her in order to enforce a judgment entered by this State against an Illinois resident. The trial court properly dismissed the petitioner’s petition due to lack of subject matter jurisdiction. Equally proper was the trial court's voiding of all orders previously entered in the cause, based on that same lack of subject matter jurisdiction.

Affirmed.

HARRISON, J., concurs.

JUSTICE CHAPMAN,

dissenting:

I would reverse the decision of the trial court granting respondent’s motion to dismiss.

As noted by the majority, section 33 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 1233) includes a procedure whereby an obligee living in one county of the State can enforce the support obligation owed by an obligor residing in another county of the State. The language of the Act clearly contemplates both interstate and intrastate application. The majority’s conclusion that intrastate application is limited to instances where an out-of-State or “foreign” divorce decree and support order were rendered is inconsistent with the express language of the Act and is inconsistent with the policies underlying legislation aimed at enforcing duties of support.

If the Act was intended to be applied in the limited capacity as suggested by the majority, section 33 would be unnecessary because section 19 of the Act already provides a remedy if a petition is filed in a county where the obligor is not found:

“If the obligor or his property is not found in the county, and the prosecuting attorney discovers that the obligor or his property may be found in another county of this State or in another state he shall so inform the court. Thereupon the clerk of the court shall forward the documents received from the court in the initiating state to a court in the other county or to a court in the other state ***.” (Ill. Rev. Stat. 1989, ch. 40, par. 1219.)

I further believe that if the Act was intended to preclude intrastate application, the venue provision of section 11 would not provide that “[t]he petition may be filed in the appropriate court of any state in which the obligee resides.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 40, par. 1211(b).

In addition, where the language of an act is obscure or its meaning doubtful, resort may be had to the title to enable the court to discover the intent. (Illinois Bell Telephone Co. v. Ames (1936), 364 Ill. 362, 365, 4 N.E.2d 494, 496; People v. Malone (1979), 71 Ill. App. 3d 231, 389 N.E.2d 908.) By analogy, the title of the section within an act may offer some indication of the legislative intent. The title of section 33 is “Intrastate application.”

Consider the scenario where a decree of dissolution and order of support are entered in Jo Daviess County, Illinois, and the obligor remains in Jo Daviess County, while the obligee moves to Dubuque, Iowa. The majority would have no problem affirming the existence of subject matter jurisdiction where the obligee filed a petition under the Act in Jo Daviess County, because the “foreign” element exists. That is, the obligee resides out of State.

Now consider a case where the order of support is entered in Jo Daviess County, the obligor remains in Jo Daviess, but the obligee moves to Massac County, Illinois. Under the stance taken by the majority, the obligee would be precluded from asserting a claim under the Act because no foreign element exists: all factors in the scenario are Illinois based.

The absurdity which is readily apparent in comparing these hypothetical cases is that Dubuque, Iowa, is roughly 20 miles from Jo Daviess’ county seat, while Massac County, Illinois, is over 400 miles from Jo Daviess’ county seat. While the primary purpose of the Act is to improve and extend the enforcement of duties of support (Ill. Rev. Stat. 1987, ch. 40, par. 1201), legislative policy would be thwarted were we to sanction use of the Act by the obligee in scenario one and not allow the obligee in scenario two to employ thé Act. Remedies provided by the Act are in addition to, not in substitution for, other remedies. (Ill. Rev. Stat. 1987, ch. 40, par. 1203.) The petitioner in the case at bar, like the obligee in scenario two, should not be precluded from pursuing her remedies under this Act even though she has other State remedies available to her in order to enforce the order of support. The Act does not mandate such preclusion.


source: Caselaw Access Project

author: JUSTICE GOLDENHERSH

license: Public Domain

text:
    P.A.M. TRANSPORT, INC., Plaintiff and Counterdefendant-Appellee, v. BUILDERS TRANSPORT, INC., et al., Defendants and Counterplaintiffs-Appellants.
    Fifth District
    No. 5-90-0114
    Opinion filed February 28, 1991.

      Edward M. Wagner, of Heyl, Royster; Voelker & Allen, of Urbana, for appellants.
    Tracy W. Resch, of Parker, Siemer, Austin, Resch & Resch, of Effing-ham, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendants, Builders Transport, Inc. (hereinafter defendant), and Willie Vaughn, (hereinafter Vaughn), an employee of defendant, appeal from a judgment of the circuit court of Effingham County in which defendants were held jointly and severally liable for $21,751.62 for damages incurred by plaintiff, RA.M. Transport, Inc., due to a traffic accident between trucks owned by plaintiff and defendant. In this cause, defendants raise the following issues: (1) whether the trial court correctly applied the principles of comparative negligence; (2) whether the trial court’s award for lost income for down time is supported by the evidence; (3) whether the trial court’s award for costs of repairs to plaintiff’s tractor and trailer is supported by the evidence; and (4) whether the trial court abused its discretion in imposing a discovery sanction which resulted in denying defendant the opportunity to present evidence on its cargo loss claim. We affirm as modified.

The facts in this case are relatively straightforward. In the early hours of November 9, 1987, plaintiff’s driver, Ricky Joe Burney, was on a run from Memphis, Tennessee, to Chicago. His first stop was in Effingham. After this stop, Burney continued north on Interstate 57. Approximately 10 miles out of Effingham, Burney pulled the semi-tractor-trailer unit he was driving off onto the shoulder of the road to pour a fresh cup of coffee, to look at his map book, and to relieve himself. Burney testified that no part of his truck was left on the roadway and that all lights and flashers on his vehicle were illuminated.

Vaughn, defendant’s driver, was simultaneously on a run which began in Dallas, Texas. He was accompanied by another driver. Vaughn started driving in Memphis and stopped at two rest stops between Memphis and the location of the accident. Vaughn was also northbound on 1-57 at approximately 1 a.m., when the accident occurred. Vaughn testified that between 25 and 50 yards before reaching plaintiff’s unit, he heard his right front tire blow out and his unit pulled to the right when he applied his brakes. The right side of defendant’s unit struck the left rear of plaintiff’s trailer and sideswiped it along the entire left side. After defendant’s unit cleared plaintiff’s unit, it veered sharply to the right, went off the shoulder, and came to rest in a cornfield. The unit completely burned, but the two drivers escaped. Burney received a ticket for driving over the allowable number of hours. He admitted being 10 hours over the permissible driving limit when the accident occurred. Vaughn was given a traffic citation for improper lane usage, to which he pleaded guilty. Vaughn also drew a diagram on a company accident report which showed plaintiff’s vehicle as being parked entirely on the shoulder of the interstate.

The parties agree that the shoulder of the road is 10 feet or 120 inches wide. Plaintiff’s unit was 102 inches wide. No witnesses testified that any portion of plaintiff’s unit was on the roadway. No skid marks were left, and two State troopers who investigated the accident testified that there was no evidence of a blowout. Burney testified that he saw defendant’s vehicle gradually leave the roadway and head toward his vehicle. Based upon this evidence, the trial court found defendants to be jointly and severally liable for 100% of plaintiff’s damages.

The first issue we are asked to address is whether the trial court correctly applied the principles of comparative negligence. Defendant argues that the trial court incorrectly applied the doctrine of “last clear chance,” which has been abolished and succeeded by the doctrine of comparative negligence in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886. Defendants contend that when the doctrine of comparative negligence is applied to the facts of this case, it is apparent that plaintiff is completely liable or, in the alternative, partially liable for defendant’s damages. According to defendants, the accident would not have occurred if plaintiff’s driver had not been driving in excess of the permissible driving hours and had not been parked illegally on the shoulder of the road. Plaintiff responds that the trial court did not apply the doctrine of last clear chance, but merely mentioned that theory as a historical note to the development of the law. Plaintiff contends that the trial court did apply the doctrine of comparative negligence, and that under the facts of this case, the trial court’s decision that defendants were 100% liable is not against the manifest weight of the evidence. We agree.

Defendants are correct that the “last clear chance” doctrine has been abolished and that Illinois has adopted comparative negligence, in which a plaintiff’s damages are reduced by the percentage of fault the trier of fact finds attributable to plaintiff. (Alvis, 85 Ill. 2d 1, 421 N.E.2d 886.) However, the manifest weight of the evidence standard applies where the trier of fact has addressed the degree of plaintiff’s comparative negligence. (Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 412, 476 N.E.2d 1232, 1236.) When reviewing questions of negligence and proximate cause, a reviewing court will not disturb the trier of fact’s decision unless it is clearly unwarranted by the evidence, and, where several reasonable inferences based upon the evidence are possible, the inference drawn by the fact finder must prevail. Noel v. Jones (1988), 177 Ill. App. 3d 773, 782, 532 N.E.2d 1050, 1055-56.

Plaintiff has cited at least two cases in which it has been held that the owner-operator of a parked car was not a proximate cause of an accident, Long v. Soderquist (1984), 126 Ill. App. 3d 1059, 467 N.E.2d 1153, and Jeanguenat v. Zibert (1979), 78 Ill. App. 3d 948, 397 N.E.2d 1235. Defendants contend that these cases are not controlling because they were decided prior to our supreme court’s ruling in Alvis v. Ribar. What defendants fail to consider is that whether Jeanguenat or Long was decided under either the doctrine of contributory or comparative negligence is unimportant since both courts found as a matter of law that the parked cars involved in the accidents were not the proximate cause of either accident.

In Jeanguenat, a passenger Injured in an automobile accident brought a personal injury action against the driver of the automobile in which he was riding, the owner-operator of a car parked illegally in a no-parking zone, and the city for not placing adequate no-parking zone signs. The trial court directed a verdict for the owner-operator of the parked car and for the city. On review, the Third District Appellate Court affirmed the finding that where the portion of the road where the accident occurred was almost three car lengths across, where visibility was unobstructed, and where the driver had consumed in excess of 10 to 15 beers, was totally inattentive to the roadway, and was facing and talking with the passenger, the plaintiff, when he collided with the parked car, such driver was the sole proximate cause of the accident. The Jeanguenat court found that the driver’s “total and unexplained inattention to the roadway while driving an automobile is conduct so outrageously negligent and reckless that in the exercise of reasonable diligence it could not be anticipated.” 78 Ill. App. 3d at 951, 397 N.E.2d at 1239.

In the instant case, plaintiff’s vehicle was parked illegally on the shoulder of the road, but, unlike Jeanguenat, there was no testimony that any portion of plaintiff’s truck was on the interstate. Plaintiff’s driver testified that he left the truck fully illuminated when he parked on the shoulder. Vaughn testified that he did not recall seeing any lights on, but admitted on cross-examination that the lights could have been on. Plaintiff’s driver testified that he saw defendant’s truck gradually leave the roadway and then come into contact with his truck. There were no skid marks. Vaughn testified that the accident was due to a blowout of his right front tire, but the trial court found this testimony not to be credible. After reviewing the record, we agree. There was no physical evidence to support Vaughn’s blowout theory. Instead, the more likely explanation is that Vaughn failed to keep a proper lookout at the road ahead of him.

In Long, the defendant Soderquist had stopped to render assistance to Berndston, another defendant, who had collided with a guardrail. A sheriff’s deputy came to render assistance, but was soon after taken away from the scene when another accident occurred in the vicinity. The deputy told the defendants to wait for him while he went to the other scene. As the defendants were waiting, the plaintiffs crested the hill, hit a patch of ice, and collided with the Soderquist vehicle which in turn collided with the Berndston vehicle. The trial court granted the defendants’ motion for summary judgment. The plaintiffs appealed, arguing that summary judgment was improper because there were numerous material factual disputes, specifically: (1) whether and to what extent the defendant Soderquist’s automobile protruded onto the highway; (2) whether the lights on Soderquist’s automobile were illuminated; (3) whether the plaintiff could have avoided the accident; (4) whether the lights on Berndston’s automobile were illuminated; and (5) whether the deputy acted properly. The reviewing court found the entry of summary judgment was proper “[sjince it is undisputed that the Long vehicle slipped on the icy bridge at the crest of the hill, and was thereafter out of control, the Soderquist and Berndston vehicles, regardless of their precise placement, cannot be said to be a proximate cause of the collision.” (Long, 126 Ill. App. 3d at 1064, 467 N.E.2d at 1157.) The Long case is somewhat factually distinguishable from the case at bar. In Long, it was the plaintiff who hit the parked car on the side of the road. In the instant case, plaintiff was hit while parked on the shoulder of the road. However, the Long court’s logic is undeniable and it is applicable in the instant case. Neither the placement of Burney’s vehicle on the side of the road nor the fact that Burney had driven over the permissible number of hours was a proximate cause of this collision. Just because a person happens to be in a location where an accident occurs does not make him a proximate cause of the accident. This is certainly true in the instant case, because even if plaintiff’s vehicle was not parked on the shoulder of the road, and even if plaintiff’s driver had stopped driving for the day, defendant’s driver would still have driven off the interstate. We are by no means advocating an absolute rule that a parked vehicle can never be a proximate cause of an accident. There may be instances in which a party who has parked a vehicle could be found negligent for an ensuing accident. However, we do not find this case to be one of those instances. Accordingly, the trial court’s finding that plaintiff was not a proximate cause of the accident and that defendants were 100% liable for plaintiff’s damages is not against the manifest weight of the evidence. We believe the trial court’s discussion of the last clear chance doctrine was nothing more than a historical note. We find the trial court correctly applied the principles of comparative negligence.

The second issue we are asked to address is whether the trial court’s award of lost income for down time is supported by the evidence. Defendants argue that evidence submitted to prove the loss of down time was without proper foundation and full of hearsay testimony which should never have been allowed. We agree.

The trial court awarded plaintiff $301.02 for income lost due to its tractor and trailer involved in this accident being out of commission. In order to arrive at this figure, the trial court apparently looked to the testimony of Riley Tessaro, plaintiff’s casualty claims manager. Plaintiff submitted the following document, plaintiff’s exhibit 17, in which Tessaro concluded that the unit involved in the accident was down for 14 days due to damages sustained in the accident:

“To Whom It May Concern:

I have compiled the following information from figures furnished by Marketing and our Controller:

Gross Revenue:

415 miles/day x 14 days $5,810 [sic]

Average Rev/mile 97.5

Gross Revenue not

realized due to downtime $5,664.75

Less Expenses:

-Fixed Expenses — per

month average $3400/mo (1)

Pro Rata 3400 — [sic] 30 x 14 $1,587

-Variable costs (2)

46$ per mile

46 x 5810 $2,673

Total Expenses $4,260.00

Loss of Income $1,404.75

(1) Insurance, taxes, interest, depreciation, etc.

(2) Driver, fuel, repairs, maintenance, tires, etc.

Thank you,

P.A.M. TRANSPORT, INC.

Riley Tessaro

Casualty Claims Manager

RT/mw”

Upon cross-examination, however, Tessaro admitted that the figures used in the document were received by him from plaintiff’s marketing department. Tessaro did not personally review any documents used by the marketing department and did not rely on any business document to produce the above figures. Further, Tessaro could not indicate what figures were included in parentheticals (1) or (2) or the etc. listed therein. He had no information or documents to indicate that plaintiff had to refuse loads and, if so, how many. Tessaro indicated that plaintiff’s controller would have such knowledge, but plaintiff’s controller was never called as a witness. Rick Burney, plaintiff’s driver, testified that he had another load to pick up in Chicago after he delivered the cargo he was carrying, and he was certain that he was committed to drive for the three days following the accident, which he was unable to do. However, neither Burney nor Tessaro could testify whether any load leaving Chicago later on the day of the accident or the following day was or was not taken by another of plaintiff’s trucks. Nevertheless, the trial court awarded plaintiff $301.02 for down time.

We find that plaintiff did not prove damages for down time. First, there was no testimony that plaintiff had to turn away customers due to the unit involved in this accident being out of operation. Second, plaintiff’s exhibit 17 should not have been introduced into evidence, as it was clearly hearsay. Therefore, we find that the trial court erred in awarding $301.02 for down time and that the judgment should be reduced accordingly.

The third issue we are asked to address is whether the trial court’s award for costs of repairs to plaintiff’s tractor and trailer is supported by the evidence. Defendants argue that plaintiff never put forth any evidence as to what costs it actually expended in the repair of the tractor and trailer, and, therefore, was not entitled to any recovery. In the alternative, defendants argue that the trial court’s award of waiver costs must be vacated, as the repairs were all done “in house” by plaintiff’s staff, and plaintiff failed to prove how much it cost to have its own employees complete the repairs. Plaintiff replies that the fact that it made its own repairs in house does not render the testimony of qualified witnesses who gave estimates of repairs inadmissible and that the testimony of its witnesses concerning the costs of repair was sufficient. We agree.

If property has been damaged and can be repaired, the true measure of damages is reasonable cost of repairs, providing that it is less than the value of the property before it was injured. (Santiemmo v. Days Transfer, Inc. (1956), 9 Ill. App. 2d 487, 502, 133 N.E.2d 539, 547.) The purpose of awarding compensatory damages is to make the injured party whole, but not to enable him to profit at defendant’s expense. (9 Ill. App. 2d at 502, 133 N.E.2d at 547.) Undoubtedly, difficulty in determining damages arises when the repairs are done in house, and there are no sufficiently definite guidelines to be relied upon when determining such damages. See Central Illinois Light Co. v. Stenzel (1963), 44 Ill. App. 2d 388, 195 N.E.2d 207.

In the instant case, the trial court made the following determinations concerning the reasonable cost to repair the tractor and trailer in its judgment order:

“3. Reasonable cost to repair tractor:
a) Parts: fuel tank and tires, $1,726.16 less 10% markup of $172.62: $1,553.54.
b) Balance of parts: $2,199.07 less 20% markup of $439.81: $1,759.26.
c) Labor: $2,238.47.
4. Reasonable cost to repair trailer:
a) Parts: $47,982.83 less 20% markup of $1,596.57: $6,386.26.
b) Labor: $4,513.32.
The above findings on labor costs are based on Plaintiff’s Exhibits 18 and 19 which must be viewed together and which give some indication as to what the Defendant considered reasonable for labor for repairs. As there is no testimony in the record, either by deposition or in Court testimony, as to profit margin on labor, the Court is forced to rely on Defendant’s calculations as the Court finds it would be unreasonable to infer that labor cost for Plaintiff’s employer would be as high as labor charges by third parties making estimates.
Plaintiff having failed to establish any taxes paid for repairs is denied any recovery for same.”

The trial court’s determination of reasonable costs of repair came from plaintiff’s witnesses, who included Charles White, a shop foreman and body shop repairman for Ozark Truck Sales in Springdale, Arkansas; Truman Murphy, a service manager for J.M.C. Truck and Trailers in Tontitown, Arkansas; and plaintiff’s own body shop manager. Defendants apparently contend that Charles White and Truman Murphy were not qualified to testify on this issue because the repairs were done in house. Defendants cite no case law by which we are bound holding that one knowledgeable in such repairs is not qualified to testify if the repairs are done in house. Our own search has discovered no such precedent. Instead, after reviewing the record, we find that this testimony was relevant and that the trial court properly considered it along with both plaintiff’s and defendants’ calculations. Plaintiff clearly suffered losses due to this accident. We do not believe the trial court’s award for repair costs put plaintiff in a better position than if the accident had not occurred. We find the award to be reasonable and supported by the evidence.

Because of our decision that the trial court did not err in finding that plaintiff was not a proximate cause of this accident, we need not address defendants’ final issue concerning defendants’ cargo loss claim.

Exercising the power granted to us by Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(a)(5)), we hereby modify the judgment of the circuit court of Effingham County by reducing the damages awarded to plaintiff by $301.02. The judgment is hereby modified to award plaintiff damages in the amount of $21,450.60.

For the foregoing reasons, the judgment of the circuit court of Effingham County is hereby affirmed as modified.

Affirmed as modified.

RARICK, P.J., and WELCH, J., concur.


author: JUSTICE HARRISON

text:
    BARBARA A. RAINEY, Plaintiff-Appellee, v. THE CITY OF SALEM, Defendant-Appellant.
    Fifth District
    No. 5-90-0198
    Opinion filed February 28, 1991.
    Rehearing denied April 4, 1991.

      Stephen W. Thomson and Charles C. Compton, both of Reed, Armstrong, Gorman, Coffey, Thomson, Gilbert & Mudge, EC., of Edwardsville, for appellant.
    James H. Cooksey and David Foreman, both of Crain, Cooksey, Veltman & Miller, Ltd., of Centraba, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Barbara Rainey, brought a negligence action in the circuit court of Marion County to obtain damages for personal injuries she sustained when her automobile collided with the rear of a street-cleaning machine owned and operated by defendant, the City of Salem (the City). Following a jury trial, a verdict was returned in favor of plaintiff and against the City. The jury determined that the total amount of damages suffered by plaintiff as a proximate result of the collision was $226,000. However, the jury also found that plaintiff was 25% contributorily negligent. Plaintiff’s damage award was therefore reduced to $169,500. The circuit court entered judgment on this verdict and denied the City’s post-trial motion. The City now appeals. We affirm.

The evidence, when viewed in the light most favorable to plaintiff, the prevailing party, established that at approximately 1:30 p.m. on May 9, 1988, plaintiff was driving through the City, heading west on U.S. Route 50, also known as West Main Street, near the intersection with Delmar Street. In this area, Route 50 is five lanes wide. There are two eastbound lanes, two westbound lanes and a center turning lane. Plaintiff was driving in the inner westbound lane, i.e., the one closest to the center turning lane. The day was bright and sunny, the pavement was dry, and the road ahead was straight and level.

At the time, plaintiff was returning to her job as the parts department secretary for Fabick Tractor Company after taking her sick daughter home from school. Although the point was disputed, plaintiff’s witnesses described the traffic as heavy. Uncontradicted testimony indicated that plaintiff attempted to pass slower-moving traffic ahead of her by moving into the outside westbound lane, that is, she executed a pass on the right. In so doing, plaintiff proceeded at speeds near or in excess of the posted limit. Upon entering the outside lane, plaintiff drove directly into the rear of a street-cleaning machine owned and operated by the City. As a result of this collision, plaintiff sustained serious personal injuries and had to be removed from the scene in an ambulance. Both of her ankles were broken, some of her teeth were knocked loose, she hit her head on the windshield and she sustained various facial cuts.

The evidence showed that there were no skid marks on the pavement. No witness reported hearing plaintiff’s brakes squeal. No one reported seeing her attempt to stop or to drive around the street-cleaning machine before she ran into it. These circumstances suggest that plaintiff simply failed to see the street cleaner when she executed her passing maneuver. Neither party suggests otherwise. The real dispute in the case centered on why plaintiff failed to see it. Plaintiff herself could not answer this question. Her injuries caused her to develop amnesia, and she was unable to recall any of the details of the coUision.

At first blush, one might think that the unit would be difficult to miss. Known as an Elgin Whirlwind, the street cleaner was essentially a water tank truck with large, motorized brushes mounted beneath it. Its size was massive. According to the City’s public works director, it measured eight feet wide and was 18 to 20 feet long. It was also quite tall. One witness placed its height at 9 to 10 feet, while another said it was over 13 feet tall. In addition, the unit was equipped with numerous lights, including headlights, taillights, flashers, bar lights, and two strobe lights. According to City policy, the strobe lights and flashing lights were required to be turned on whenever the machine was in operation sweeping the streets, even during daylight hours, in order to warn traffic that it was moving slowly.

Delbert Wimberley, operator of the street cleaner, testified that he was cleaning the streets at the time of the collision, that before beginning the street cleaning he had inspected the lights and observed that they were all on, and that he had never turned them off. Greg Miller, the Illinois State Police officer who investigated the accident, corroborated that when he arrived on the scene all of the machine’s lights were in operation. That the lights were in use was also confirmed by Ronald Standley, who had observed the street cleaner for several minutes prior to the collision and witnessed the accident itself. Wimberley, Miller and Standley were each called to testify by the City.

Plaintiff relied on a different set of occurrence witnesses, including James Rice, a part-time City employee who was a close friend of plaintiff’s sister and formerly attended plaintiff’s church; Rebecca Wilmuth, Rice’s daughter; Chris Tanner, a sergeant with the City police department and one of plaintiff’s neighbors; Penny Henson, a secretary in plaintiff’s attorney’s law office; and Gene Garrison, a friend of plaintiff’s parents. Wilmuth, Tanner, Henson and Garrison all testified that they could not see the lights, but none asserted that the lights were not, in fact, turned on. Only one witness indicated that the lights were not in operation and that was James Rice.

To explain why she failed to see the street cleaner under the foregoing circumstances, plaintiff argued that the unit was enshrouded in an enormous cloud of dust. This point was vigorously contested. The only one of plaintiff’s occurrence witnesses to testify that the street cleaner’s lights were not in operation, James Rice, stated that when he saw the street cleaner shortly before the accident, it was not enshrouded by a large cloud of dust and that there was, in fact, very little dust.

Rice’s testimony was confirmed by defendant’s occurrence witnesses. Ronald Standley stated that in the 10 minutes prior to the accident he did not see a cloud of dust engulf the machine, nor did he observe any significant amount of dust arise when the collision took place. Delbert Wimberley, the driver of the street cleaner, related that as he was sweeping the street, he was spraying it with water and that there was very little dust. Greg Miller, the Illinois State Police officer, likewise stated that when he arrived on the scene he did not see any dust blowing. He also stated that he observed no excavation or piles of dirt which might have provided a source for blowing dust.

• This version of events was sharply contradicted by various witnesses called by plaintiff, whose testimony the jury evidently found to be more credible. For example, Gene Garrison reported seeing what looked to him like an “explosion of dust.” Penny Henson reported seeing a large cloud, although she did not know that it was dust. She thought that it might be smoke from a fire. Henson described the cloud as being so thick that plaintiff’s automobile disappeared as it drove into it. In addition, a cloud of dust was reported by Rebecca Wilmuth, who was driving in the opposite direction of plaintiff, and by the City police sergeant, Chris Tanner, who was on routine patrol in the area at the time. Tanner testified that he was driving behind the sweeper before the collision and that it was generating a cloud of dust at that time. According to his testimony, the dust was evidently not so heavy that it completely obscured the street cleaner, and when he approached the cleaner, he was able to see it and to drive around it. This, however, happened before plaintiff arrived on the scene, and the jury could have concluded that conditions subsequently deteriorated.

As submitted to the jury, plaintiff’s theory of recovery was that the City had a duty to exercise ordinary care for her safety when it was cleaning the street. Plaintiff asserted that the City breached this duty in one or more of the following respects:

“a) In operating its [street-cleaning] machine without the use of the machine’s lights.
b) In operating its machine under road and weather conditions that caused it to become enveloped in dust and debris and to be hidden from the view of drivers approaching it from the rear.
c) In operating its machine on the public roadway at an inappropriate time because of the high amount of vehicular traffic.”

Plaintiff further claimed that “one or more of the foregoing was a proximate cause of her injuries.”

As we have indicated, the jury ultimately returned a verdict in favor of plaintiff, although it found that she was 25% contributorily negligent and reduced her recovery accordingly. The circuit court entered judgment on the jury’s verdict and denied the City’s post-trial motion. The City now appeals. As grounds for its appeal, the City first argues that the judgment should be reversed because plaintiff’s complaint failed to state a cause of action. This argument is without merit.

In the trial court, no motion to dismiss for failure to state a cause of action was filed, and the City raised absolutely no objection to the sufficiency of plaintiff’s complaint. Although there are cases which indicate that the “failure of a complaint to state a cause of action is a fundamental defect which may be raised at any time by any means and cannot be waived” (Morrison v. Forest Preserve District (1987), 155 Ill. App. 3d 687, 689, 508 N.E.2d 312, 313), the rule is actually not so expansive. In fact, the sufficiency of a complaint may be raised for the first time on appeal only where the complaint wholly fails to state a cause of action (Pieszchalski v. Oslager (1984), 128 Ill. App. 3d 437, 444, 470 N.E.2d 1083, 1088), e.g., where damages are sought based on a theory of recovery which has not been recognized in this State (see Auburn v. Amoco Oil Co. (1982), 106 Ill. App. 3d 60, 63-64, 435 N.E.2d 780, 782-83). This is not such a case. Here, plaintiff’s complaint plainly sought to impose liability on the City based on its negligence in cleaning the street. Our supreme court has long recognized that where, as here,' a municipality undertakes to clean the streets, it is liable for any injury caused by the negligence of its employees in performing that function. Roumbos v. City of Chicago (1928), 332 Ill. 70, 83-84, 163 N.E. 361.

The City next asserts that the circuit court’s judgment must be set aside because under the evidence presented to the jury, the City owed no duty to plaintiff as a matter of law. This argument is likewise without merit. In the trial court, the City did not dispute that when cleaning the street as it did, it had a duty to exercise ordinary care for the safety of plaintiff. The jury was so instructed, and we find nothing in the record to indicate that the City objected to that instruction. In addition, the City did not contest the existence of a duty in its post-trial motion. Supreme Court Rule 366(bX2)(iii) (107 Ill. 2d R. 366(b)(2)(iii)) specifically states that a party “may not urge as error on review of the ruling on his post-trial motion any point, ground, or relief not specified in the motion.” Under this rule, the failure to include a point or issue in a post-trial motion precludes consideration of that point or issue on appeal. (Roman v. City of Chicago (1985), 134 Ill. App. 3d 14, 18, 479 N.E.2d 1064, 1067; Tamalunis v. City of Georgetown (1989), 185 Ill. App. 3d 173, 182, 542 N.E.2d 402, 409.) The question of duty has therefore been waived.

For similar reasons, we reject the City’s contention that it should be granted a new trial because of supposedly prejudicial remarks made by plaintiff’s attorney during closing argument. The City’s attorney made no objection to those remarks at trial and did not mention them at all in the City’s post-trial motion. Where, as here, allegedly prejudicial remarks made by opposing counsel at trial are neither objected to at trial nor raised in a post-trial motion, any error pertaining to those remarks is deemed waived for purposes of appeal. (Tracy v. Village of Lombard (1983), 116 Ill. App. 3d 563, 576, 451 N.E.2d 992, 1002.) No exceptions to this rule are evident in the record before us.

The City also argues that it should not have been held liable because none of the acts or omissions alleged by plaintiff were a proximate cause of her injuries. In the alternative, the City contends that the jury should have found plaintiff more than 25% contributorily negligent. Indeed, the City argues that the jury should have found that the contributory fault on the part of plaintiff was more than 50% of the proximate cause of the injury or damage for which she sought recovery and that plaintiff should therefore be barred from recovering any damages pursuant to section 2 — 1116 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1116).

The standard of review as to these points is well established. A jury’s finding on the issue of comparative negligence will not be set aside on review absent a finding that the verdict is contrary to the manifest weight of the evidence. (Shiner v. Friedman (1987), 161 Ill. App. 3d 73, 85, 513 N.E.2d 862, 868.) Likewise, a jury’s determination that conduct by the defendant is or is not a proximate cause of injury will only be reversed if it is contrary to the manifest weight of the evidence. (Cherry v. McDonald (1988), 176 Ill. App. 3d 471, 482, 531 N.E.2d 78, 84.) A verdict cannot be set aside merely because the jury could have drawn different inferences and conclusions from conflicting testimony or because the reviewing court would have reached a different conclusion if it had been the trier of fact. (Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 412-13, 476 N.E.2d 1232, 1236.) A verdict is contrary to the manifest weight of the evidence only where, upon review of all the evidence in the light most favorable to the party who prevailed at trial, an opposite conclusion is clearly apparent, or the jury’s finding is palpably erroneous and wholly unwarranted, is clearly the result of passion or prejudice, or appears to be arbitrary and unsubstantiated by the evidence. (Renfro v. Allied Industrial Equipment Corp. (1987), 155 Ill. App. 3d 140, 156, 507 N.E.2d 1213, 1227.) Such is not the ease here.

The City’s attack on the jury’s verdict is premised in large part on the proposition that plaintiff was simply not looking where she was going, that she did not keep a proper lookout as she changed lanes and moved behind the street cleaner, and that she would therefore have run into the street cleaner regardless of whether the cleaner’s lights were operating or a cloud of dust was present. The City calls this conclusion “inescapable,” but we disagree. In our view, the evidence was such that the jury could reasonably have concluded that plaintiff was watching where she was going, but that dust generated by the operation of the street cleaner was so dense that she was simply unable to see that the street-cleaning machine lay ahead of her.

We cannot dispute that upon observing the cloud of dust, plaintiff should have exercised more care than she did. As we have indicated, the evidence suggests that plaintiff made no effort to slow down or to avoid the dust cloud, but simply drove straight into it at speeds approaching or in excess of the posted limit. This was certainly negligent on her part, and in its verdict, the jury so found. On the other hand, the evidence established that plaintiff was driving along a stretch of urban highway in a busy part of town at a time of day, following the lunch hour, when traffic was still substantial. This is not a set of circumstances under which one might reasonably expect a municipality to be engaged in street-cleaning operations. Moreover, the testimony of eyewitnesses suggested that the traffic was proceeding at normal rates of speed. There was no traffic jam and no line of cars which might signal the presence of slow-moving vehicles ahead. The magnitude of the peril presented by the dust cloud was therefore far from obvious. Under the circumstances, we see no basis for second-guessing the jury’s assessment of contributory fault at only 25%.

The City raises various other arguments, but the only one which we believe merits further discussion is the City’s claim that the jury’s award of medical expenses was excessive. In its verdict, the jury found that plaintiff’s past and future medical expenses would total $50,000. The City does not dispute that plaintiff’s past medical expenses amounted to $26,314.55 or that she would incur $400 in future dental expenses. However, the City claims that there was no proper evidentiary basis for the additional $23,285.45 in medical expenses included in the jury’s verdict. Again we disagree.

The evidence presented at trial established that plaintiff sustained serious injury to both of her ankles as a result of the accident. Her recovery from these injuries was good. However, her orthopedic surgeon, Dr. Coss, opined in his video deposition that because of the fractures in her ankles, there was a possibility that she might develop avascular necrosis. According to Dr. Coss, that condition occurs as a result of disruption of the blood supply to the ankles. He explained that if sufficient blood supply disruption occurs, “then up to several years or even longer following injury, the possibility of death of the bone tissue of the bearing surface of the ankle can take place with deformation of the bearing surface and a very severe form of arthritis.”

Dr. Coss further opined that plaintiff would have to undergo periodic medical examinations to check for the development of this condition, and that if the condition appeared, it would constitute “a major problem and various sorts of salvage-type surgical procedures might have to be performed.” In addition, Coss stated that there was a possibility that plaintiff might suffer post-traumatic arthritis in her left ankle and that she was “at major risk for the development of a post-traumatic arthritis in the right ankle.” Indeed, he stated that “the expectation of some degree of post-traumatic arthritis *** is inevitable.” According to Dr. Coss, where severe degrees of arthritis of the ankle appear, fusion, which he defined to mean “freezing” the ankle by surgery, “occasionally has to be carried out.”

The City asserts that this testimony should not have been presented to the jury because it was based on mere surmise or conjecture, and not a reasonable degree of medical certainty. This is not so. When Dr. Coss was asked to render his opinions, counsel specifically instructed that all his answers were to be given “to a reasonable medical certainty,” and compliance with this standard appears to have been implicit in Dr. Coss’ responses. The City made no objection to Dr. Coss’ medical testimony, nor did it offer any evidence of its own to refute that testimony. Under these circumstances, we see no reason why the jury’s finding as to damages should be disturbed.

Finally, the City assails the jury’s assessment of future medical expenses because no expert testimony was given as to what the dollar amount of those expenses is likely to be. Such evidence was not required. The absence of direct evidence as to any particular amount of damages is not by itself a sufficient reason to attack the jury’s verdict on damages. Evidence that future medical expenses will be incurred can be inferred from the nature of the disability. If the elements of damage presented for the jury’s consideration are proper under the facts of the case, then the assessment of damages is preeminently for the jury, even though reasonable persons could differ as to the amount. Levin v. Welsh Brothers Motor Service, Inc. (1987), 164 Ill. App. 3d 640, 659-60, 518 N.E.2d 205, 218; see also Scheibel v. Groeteka (1989), 183 Ill. App. 3d 120, 138, 538 N.E.2d 1236, 1248.

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

Affirmed.

RARICK, P.J., and WELCH, J., concur.


author: JUSTICE GOLDENHE RSH JUSTICE WELCH,

text:
    JANE R. ENDSLEY et al., Plaintiffs-Appellants, v. HARRISBURG MEDICAL CENTER, Defendant-Appellee.
    Fifth District
    No. 5-88-0430
    Opinion filed March 1, 1991.

      WELCH, J., dissenting.
    Donald V. Ferrell, of Jelliffe, Ferrell & Morris, of Harrisburg, for appellants.
    John Speroni, of Garrison & Speroni, of Marion, for appellee.
   JUSTICE GOLDENHE RSH

delivered the opinion of the court:

Plaintiffs, Jane R. Endsley (hereafter plaintiff) and William R. Endsley, appeal from the order of the circuit court of Saline County granting the motion to dismiss of defendant, Harrisburg Medical Center. In this cause, plaintiffs argue that the circuit court improperly granted defendant’s motion to dismiss. We reverse.

On February 15, 1985, plaintiff slipped and fell on defendant’s property. Plaintiff was an employee of Southeastern Illinois College. By agreement between the college and defendant, plaintiff, a nursing instructor, was teaching classes on the premises. Defendant directed people to walk from the hospital to another building utilized for nursing instruction via a particular path. It was on this path that plaintiff slipped and fell. Plaintiff alleges the path was rough, uneven, and unnatural due to alternating freezing and thawing of snow and ice. Specifically, plaintiff's third amended complaint alleged in paragraph 5 that:

“[Defendant directed persons, including the plaintiff, to walk from the hospital to and from the building utilized for the purposes of conducting classes as alleged in paragraph 3 above, resulting in a rough, uneven and unnatural surface of the ground as the result of freezing and thawing of snow and ice, and thereafter the said defendant failed when it knew, or should have known, of the unnatural condition, to clean and remove said frozen ice and snow in a roughened and uneven condition.”

Plaintiff later alleged in paragraph 7 that defendant:

“(e) Negligently and carelessly invited and permitted the public, including the plaintiff, to use the premises when the defendant knew, or by the exercise of reasonable care should have known, of its dangerous condition;
(f) Negligently and carelessly directing and allowing persons lawfully upon the premises to utilize a sidewalk which resulted in an unnatural accumulation of ice and snow;
(g) Negligently and carelessly aggravated the condition of the accumulation of ice and snow by:
(1) Not completely cleaning the sidewalk;
(2) Incorrectly applying chemicals to cause snow and ice to melt; and
(3) Directing persons, including the plaintiff, to traverse an area where the condition had been aggravated by the conduct of the defendant.”

The circuit court dismissed the third amended complaint.

In general, a property owner is under no obligation to remove and is not liable for injuries caused by natural accumulations of snow and ice (the natural accumulations rule). (Harkins v. System Parking, Inc. (1989), 186 Ill. App. 3d 869, 872, 542 N.E.2d 921, 923-24; Smalling v. La Salle National Bank (1982), 104 Ill. App. 3d 894, 896, 433 N.E.2d 713, 715; Hankla v. Burger Chef Systems, Inc. (1980), 93 Ill. App. 3d 909, 910, 418 N.E.2d 35, 36.) In particular, a property owner is not liable for injuries sustained in a fall on an icy sidewalk where the accumulation is natural and not caused or aggravated by the owner. (Timmons v. Turski (1981), 103 Ill. App. 3d 36, 38, 430 N.E.2d 1135, 1137; Zide v. Jewel Tea Co. (1963), 39 Ill. App. 2d 217, 188 N.E.2d 383.) Property owners may be liable, however, when ice accumulates because the owner either aggravated a natural condition (Harkins, 186 Ill. App. 3d 869, 542 N.E.2d 921) or engaged in conduct which gives rise to a new, unnatural or artificial condition. (Harkins, 186 Ill. App. 3d 869, 542 N.E.2d 921; Smalling, 104 Ill. App. 3d 894, 433 N.E.2d 713; Hankla, 93 Ill. App. 3d at 911, 418 N.E.2d at 36.) Although there is no duty to remove natural accumulations of snow and ice, if a property owner does remove it, he may be liable if he does so negligently. (Timmons, 103 Ill. App. 3d 36, 430 N.E.2d 1135; DeMario v. Sears, Roebuck & Co. (1972), 6 Ill. App. 3d 46, 284 N.E.2d 330.) The mere removal of snow which may leave a natural ice formation on the premises does not constitute negligence. Timmons, 103 Ill. App. 3d 36, 430 N.E.2d 1135.

Plaintiff first argues that private landowners should be liable for injuries caused by natural accumulations of snow and ice. Specifically, plaintiff argues that the natural accumulations rule was inappropriately extended after Graham v. City of Chicago (1931), 346 Ill. 638, 178 N.E. 911, held that a municipality is not liable for injuries caused by natural accumulations of snow and ice on its sidewalks.

The natural accumulation rule, however, is the well-settled law of this State, and that rule with its modifications was the appropriate standard for the circuit court to apply.

Plaintiff next argues that the determination of whether the accumulation was natural or unnatural is a question of fact. In Stiles v. Panorama Lanes, Inc. (1982), 107 Ill. App. 3d 896, 438 N.E.2d 241, the court held that as a matter of law icy ridges and ruts resulting solely from ordinary vehicular traffic constitute a natural accumulation of snow and ice in a parking lot used for business purposes. We distinguish Stiles and decline to follow the Third District Appellate Court case of Spirn v. Joseph (1986), 144 Ill. App. 3d 127, 493 N.E.2d 1197 (question of whether accumulation was natural or unnatural is not for the jury). As Justice Harrison insightfully wrote in dissent, it is not always clear which accumulations are natural and which are not. (Stiles, 107 Ill. App. 3d at 900, 438 N.E.2d at 244 (Harrison, J., dissenting); see also Timmons, 103 Ill. App. 3d at 38, 430 N.E.2d at 1137 (declining to determine whether compaction by motor vehicles is natural or unnatural).) The trier of fact is in a much better position than an appellate court to determine whether the accumulation is natural. Concerning Stiles, plaintiff in this cause alleged a number of negligent acts and omissions by defendant. These allegations take this cause far beyond the holding in Stiles, which is confined to “icy ridges and ruts resulting solely from ordinary vehicular traffic.” (Emphasis added.) Stiles v. Panorama Lanes, Inc. (1982), 107 Ill. App. 3d 896, 897, 438 N.E.2d 241, 242.

In the case at bar, defendant selected the area for plaintiff to walk. This constitutes defendant’s use of the area. Plaintiff alleges that the resultant heavy use combined with alternating freezing and thawing of snow and ice caused the area to become rutted and rough, and therefore, the character of the initial accumulation changed. Under such circumstances, the ruts and ridges may constitute unnatural accumulations of ice and snow or an aggravation of a natural condition. Plaintiff also alleges the improper application by defendant of snow-melting chemicals, another act that would aggravate a natural condition or result in an unnatural accumulation of snow and ice. Again, this is for the trier of fact to decide.

As the third amended complaint sets forth a legally recognized claim as its basis for recovery and pleads facts which bring the claim within a legally recognized cause of action, dismissal is inappropriate. A cause of action should not be dismissed on the pleadings unless it is clear that the plaintiff can prove no set of facts which will entitle him to recover. Doyle v. Shlensky (1983), 120 Ill. App. 3d 807, 811, 458 N.E.2d 1120, 1124-25.

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

Reversed and remanded.

HARRISON, J., concurs.

JUSTICE WELCH,

dissenting:

I dissent. The well-settled law of Illinois is that ridges and ruts in snow or ice caused by ordinary traffic constitute a natural accumulation of snow or ice even where they are caused in part by application of snow- and ice-melting chemicals followed by refreezing. (See Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 145, 407 N.E.2d 1031, 1033; Harkins v. System Parking, Inc. (1989), 186 Ill. App. 3d 869, 872, 542 N.E.2d 921, 924; Stiles v. Panorama Lanes, Inc. (1982), 107 Ill. App. 3d 896, 899, 438 N.E.2d 241, 243.) The majority holds, however, that where a landowner directs a plaintiff down a path, or selects an area for pedestrians to travel, as alleged in plaintiff’s complaint, the ridges and ruts in the ice and snow do not result solely from ordinary traffic and therefore the accumulation may be unnatural or constitute an aggravation of a natural accumulation.

I think the majority draws a distinction without a difference. In nearly every case in which ridges and ruts appear in snow or ice, it is in an area which the defendant has selected for travellers to use, either by establishing a parking lot, or locating an entry or exit door. I fail to see how the instant situation differs materially from these other cases. Indeed, in Smalling v. La Salle National Bank (1982), 104 Ill. App. 3d 894, 433 N.E.2d 713, a summary judgment in favor of the defendant was affirmed where the plaintiff’s complaint alleged that defendant negligently directed the plaintiff to use a particular ramp which was covered with a natural accumulation of ice and snow. I think the instant case is no different from any other case where ruts and ridges in snow or ice are caused by vehicular or pedestrian traffic. In such a case, the landowner has no liability for injuries resulting from what is a natural accumulation of snow or ice.

Furthermore, while plaintiff’s complaint alleges that defendant incorrectly applied ice- and snow-melting chemicals, it fails to allege any facts to demonstrate the way in which such application was incorrect. However, it is well settled that a landowner is not liable for injuries resulting from alternate melting and freezing of ice and snow as a result of the application of chemicals or salt. (See Harkins, 186 Ill. App. 3d at 873, 542 N.E.2d at 924 (and cases cited therein).) The use of such chemicals does not aggravate a natural accumulation of snow or ice or result in an unnatural accumulation of snow or ice.

Finally, I think the majority’s reliance on the dissent in Stiles is most unwise. Relying on that dissent, the majority holds that ruts and ridges resulting from traffic may constitute an unnatural accumulation and that the question of whether an accumulation of snow or ice is natural or unnatural is a question of fact for the jury. The dissent in Stiles did not argue that the question of whether an accumulation is natural or unnatural is a question for the jury. Instead, in that dissent, Justice Harrison expressed his opinion that, as a matter of law, ridges and ruts on a parking lot caused by vehicular traffic changed the initial natural accumulation of ice and snow into an unnatural accumulation. (Stiles, 107 Ill. App. 3d at 901, 438 N.E.2d at 244.) Justice Harrison further opined that, because the vehicular traffic was a result of defendant’s implied invitation onto his premises for business purposes, the unnatural accumulation was created by defendant, through defendant’s use of the area concerned. (107 Ill. App. 3d at 901, 438 N.E.2d at 244.) Therefore, Justice Harrison opined, summary judgment in favor of defendant was improper.

By essentially following Justice Harrison’s dissent in Stiles, the majority is, in effect, creating a new duty on landowners. As I have already pointed out, the law has long been settled that a landowner is not liable for injuries resulting from ridges and ruts in snow or ice caused by vehicular or pedestrian traffic in the ordinary course of business. To hold otherwise, as the majority does, is to make a landowner an insurer of his visitors’ safety, something which the law has long declined to do in snow and ice cases. To hold that ridges and ruts caused by traffic may result in liability to the landowner would require the landowner to completely remove all snow and ice from his premises, something which may be impossible and certainly impractical, or to close his premises to all traffic. Such a result is patently ridiculous.

For these reasons, I cannot agree with the decision of the majority. Because a landowner is not liable for injuries resulting from a natural accumulation of snow or ice, and because I believe plaintiff’s complaint fails to plead facts which remove her case from this general rule, I believe the trial court properly dismissed plaintiff’s complaint. I therefore dissent.


author: JUSTICE CHAPMAN

text:
    ALBION RURITAN CLUB, Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE, J. Thomas Johnson, Director, et al., Defendants-Appellants.
    Fifth District
    No. 5-90-0139
    Opinion filed March 6, 1991.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jerald S. Post, Assistant Attorney General, of Chicago, of counsel), for appellants.
    No brief filed for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

On December 7, 1985, Albion Ruritan Club (Albion) filed a certification of exemption request with the Department of Revenue, seeking a property tax exemption for 2.51 acres of land in Edwards County. The County Board of Review recommended that Albion receive a full-year exemption for the property; however, the Department of Revenue (Department) denied the exemption. At Albion’s request, an administrative hearing was then conducted, and the administrative law judge recommended that Albion’s application be denied because it failed to establish that it was a charitable organization and failed to establish that it used the property for charitable purposes during 1985. On June 3, 1986, the Department approved the administrative law judge’s recommendation.

Albion filed a complaint for administrative review with the circuit court, praying that the circuit court reverse the decision of the Department. On February 2, 1990, the circuit court entered an order reversing the decision of the Department and awarding Albion the real estate tax exemption for 1985 for the land and improvements owned by Albion. The Department filed this appeal.

At the hearing before the administrative law judge, John Lundmark, secretary of the Albion Ruritan Club, testified that Albion purchased the parcel in question on February 19, 1975. There is a 30- by 63-foot square post building on the parcel. The building has metal siding and concrete flooring. The interior is unfurnished and unfinished and is essentially a large area with water service for washrooms and sinks, a large space heater suspended from the ceiling and electric service. Neither the building nor the land owned by Albion is used by anyone other than Albion.

Lundmark offered into evidence Albion’s national constitution, which lists Albion’s objectives as follows:

“(a) To promote fellowship and good will among its members and the citizens in the community, and to inspire each other to higher efforts.
(b) To unify the efforts of individuals, organizations and institutions in the community toward making it an ideal place in which to live.
(c) To work with those agencies which serve the community and contribute directly to its progress.
(d) To create greater understanding between rural and urban people on the problems of each, as well as on their mutual problems.”

Landmark testified that Albion meets the objectives' of its constitution in that the organization meets monthly in order to plan its community service projects and charitable activities.

Albion’s sources of income during 1985 were members’ dues and community service projects which included participation in Pork Day U.S.A. and the Edwards County Fair, and the cutting, transporting, and selling of Christmas trees. Admitted into evidence was a statement of Albion’s receipts and expenditures for 1985:

“I. Receipts
Dues $750
Community Service Projects $15,870.65
Costs of Projects:
Edwards Co. Fair $1,266.96
Pork Day USA 7,475.59
2,077.50 Christmas Trees
1,467.11 other Expenses
$12,287.96 [sic]
Net Receipts on Community Service Projects $3,582.69
Gross Receipts $4,332.69
II. Expenditures
Building Expenses
Insurance 265.00
Repairs 871.23
Utilities 1,022.87
Total Building expenses $2,159.10
National dues 276.00
District Meetings 150.00
National Meetings 424.00
Total expenditures $3,009.10
III. Net Income $1,323.59
IV. Donations to Others
Veterans’ Memorial Arch $1,000.00
Childrens’ Easter Egg Hunt 160.97
Civil Defense 100.00
City of Albion Park 100.00
Hadi Shriners 100.00
Albion Chamber of Commerce 35.00
Tri-County Pork Producers 50.00
Edwards County 4-H Trophy 24.50
Heart Association 25.00
Teacher of the Year Award 16.00
Total Donations $1,611.47
V. NET INCOME FOR 1985 AFTER DONATIONS ($287.88)”

The administrative law judge found that of the $1,611.47 contributed to other organizations, only $41 went to charitable organizations, while most of the remainder went to civic projects.

The Illinois Constitution of 1970 provides in part that the “General Assembly by law may exempt from taxation only the property *** used exclusively for *** charitable purposes ***.” (Ill. Const. 1970, art. IX, §6.) Section 19.7 of the Revenue Act of 1939 describes certain property exempt from taxation as:

“All property of institutions of public charity, all property of beneficent and charitable organizations, whether incorporated in this or any other state of the United States *** when such property is actually and exclusively used for such charitable or beneficent purposes, and not leased or otherwise used with a view to profit ***.” (Ill. Rev. Stat. 1989, ch. 120, par. 500.7.)

The burden of proving the right to exemption is upon the party seeking it, and in determining whether property is included within the scope of an exemption, all facts are to be construed and all debatable questions resolved in favor of taxation. (Board of Certified Safety Professionals of the Americas, Inc. v. Johnson (1986), 112 Ill. 2d 542, 547, 494 N.E.2d 485, 488; Highland Park Hospital v. Department of Revenue (1987), 155 Ill. App. 3d 272, 279, 507 N.E.2d 1331, 1336.) The applicant must show by clear and convincing evidence (Fairview Haven v. Department of Revenue (1987), 153 Ill. App. 3d 763, 770, 506 N.E.2d 341, 346) that it is a charitable organization and that the property for which it seeks an exemption is exclusively used for charitable purposes. Coyne Electrical School v. Paschen (1957), 12 Ill. 2d 387, 397, 146 N.E.2d 73, 79.

In Methodist Old Peoples Home v. Korzen (1968), 39 Ill. 2d 149, 233 N.E.2d 537, the supreme court set forth guidelines for determining if property is in fact being used for charitable purposes. A charitable use exists when: (1) the use is for the benefit of an indefinite number of persons, persuading them to an educational or religious conviction, for their general welfare — or in some way reducing the burdens on government; (2) the charitable institution has no capital, capital stock, or shareholders, earns no profits or dividends, but rather derives its funds mainly from public and private charity and holds them in trust for the objects and purposes expressed in its charter; (3) the charitable institution dispenses charity to all who need and apply for it, does not provide gain or profit in a private sense to any person connected with it, and does not appear to place obstacles of any character in the way of those who need and would avail themselves of the charitable benefits it dispenses; (4) the statements of the agents of an institution and the wording of its governing legal documents evidencing an intention to use its property exclusively for charitable purposes do not relieve such institution of the burden of proving that its property actually and factually is so used; and (5) the term “exclusively used” means the primary purpose for which property is used and not any secondary or incidental purpose. Korzen, 39 Ill. 2d at 157, 233 N.E.2d at 541-42.

As for the first of the guidelines, it must be shown that the benefits accrue to mankind directly: it is not sufficient that incidental benefits accrue to the public as a result of the property’s use. (See International College of Surgeons v. Brenza (1956), 8 Ill. 2d 141, 133 N.E.2d 269.) We note that Albion’s constitution does not include charitable donations as an objective, thus requiring us to focus our attention on Albion’s activities to determine whether it is a charitable organization. (Morton Temple Association, Inc. v. Department of Revenue (1987), 158 Ill. App. 3d 794, 796, 511 N.E.2d 892, 893.) Albion has not shown that its monthly meetings are open to the general public, or that its property is available for use by the general public. While the organization’s community projects involve interaction with the community at large, the evidence shows that these projects are nothing more than fund raisers. Furthermore, it has not been shown that Albion’s activities reduce the burdens of government because there is no evidence that the government was burdened with providing revenue for the projects to which Albion donated funds.

Turning to the second guildeline, Albion’s revenues are derived chiefly from its membership dues, and Albion’s participation in the Edwards County Fair, Pork Day U.S.A., and Christmas tree sales. According to the statement of receipts and expenditures for 1985, of the $4,332.69 in gross receipts, $3,009.10 was expended for building maintenance, insurance and repairs ($2,159.10), national dues of the organization ($276), and district meetings expenses ($574). From the record we find that Albion’s primary purpose is to maintain its property and pay for its monthly meetings. Although Albion donates a substantial portion of its earnings to other causes, this does not change its primary purpose of generating income to fund Albion’s operations. We see Albion’s community service as evidence of its contention that the primary purpose of Albion is charitable, but this evidence is insufficient under all the facts of this case. See Salvation Army v. Department of Revenue (1988), 170 Ill. App. 3d 336, 524 N.E.2d 628.

Guideline number three has likewise not been met by Albion. There is no evidence that all who need and apply for a charitable contribution from Albion are free of any obstacles in obtaining Albion’s benefits. (See Good Samaritan Home v. Department of Revenue (1985), 130 Ill. App. 3d 1036, 474 N.E.2d 1387.) It is clear from the record that the organization does profit from the revenues it generates. For example, of the gross receipts in 1985, Albion expended approximately 70% of that money on building expenses, dues and district meetings.

It is clear from the evidence presented that Albion’s charitable endeavors are incidental to its primary purpose. The fact that income is ultimately put to a charitable or donative purpose does not entitle the property to a charitable use exemption. (Salvation Army, 170 Ill. App. 3d at 344, 524 N.E.2d at 633.) As it is the primary purpose for which property is used, and not any incidental purpose, which determines whether a parcel qualifies for tax exemption, we conclude that Albion is not exclusively used for charitable purposes and is not entitled to exemption from real property tax. For the reasons stated herein, we reverse the circuit court’s judgment and affirm the Department’s decision to deny a tax exemption.

Reversed.

HARRISON and HOWERTON, JJ., concur.


text:
    CLYDE E. BLANKENSHIP, Plaintiff-Appellee, v. DIALIST INTERNATIONAL CORPORATION et al., Defendants-Appellants.
    Fifth District
    No. 5-90-0022
    Opinion filed March 7, 1991.

      Andrew J. Gleeson, of Kassly, Bone, Becker, Dix, Reagan & Young, of Belleville, for appellants.
    Kurowski & Courtney, P.C., of Belleville (Edward E. Johnston and John J. Kurowski, of counsel), for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendants Dialist International Corporation, Herman L. Smith and James Cronin appeal from orders of the circuit court of St. Clair County entering summary judgment and awarding attorney fees in favor of plaintiff Clyde E. Blankenship in an action brought under the Franchise Disclosure Act (the Act) (Ill. Rev. Stat. 1985, ch. 121½, par. 701 et seq.). Defendants contend that the trial court erred: (1) in granting summary judgment on the issue of damages where a genuine issue of material fact existed as to whether plaintiff acquired a franchise from defendants within the meaning of the Act; and (2) in awarding attorney fees in the amount of plaintiff’s contingency fee contract rather than based on an hourly rate.

Plaintiff and defendant Cronin, vice-president and national sales manager of Dialist International Corporation, entered into a distributor’s agreement which named plaintiff as the sales representative of Dialist International for a specified territory. In return, plaintiff paid Dialist International $15,000. Thereafter, plaintiff met with defendant Cronin and received a detailed explanation of the Dialist system and instruction on how to market the product, a list-finder device designed for attachment to telephones. Defendant Cronin also provided plaintiff with a blue binder entitled “Every Telephone Needs Dialist,” which contained promotional materials, letters from purported customers and samples of Dialist advertising, cost sheets and purchase orders. Plaintiff was informed that additional instruction sessions would be held at a later date, but was never contacted further. Upon attempting to market the Dialist, plaintiff encountered difficulty regarding the credibility of the company. Defendant Smith, president of Dialist International, was contacted and provided plaintiff with a letter vouching for the credibility of Dialist International.

In March 1987, plaintiff sued defendants for rescission of the distributorship agreement and for damages under section 21 of the Act, asserting in substance that the agreement was for the sale of a franchise and because such sale was made in violation of section 4 of the Act, he was entitled to the return, with interest, of the full amount paid by him for the franchise plus attorney fees and costs. (See Ill. Rev. Stat. 1985, ch. 12D/2, pars. 704, 721(1), (2)(a).) Thereafter, plaintiff moved for summary judgment as to all issues. Defendants’ motion to dismiss, alleging exemption from the Act, was denied. On April 13, 1989, the trial court granted summary judgment for plaintiff and against defendants for the $15,000 plus interest at the rate of 9%.

On May 3, 1989, plaintiff filed his petition for attorney fees which requested “the sum pursuant to the contract for services signed in this matter which is a contingency fee of one-third of the amount recovered *** or in the alternative the actual amount of services rendered at the reasonable hourly rate of counsel in this matter.” On December 13, 1989, the trial court entered its order awarding plaintiff attorney fees of $5,000 pursuant to the contingency fee contract.

We turn first to defendants’ contention that by virtue of the application of the Act, a genuine factual question was created which precluded the entry of summary judgment. We disagree.

The sole function of the court reviewing the trial court’s entry of summary judgment under section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005) is to determine whether the lower court correctly ruled that no genuine issue of material fact had been raised and, if none was raised, whether judgment was correctly entered as a matter of law. (People ex rel. First National Bank v. City of North Chicago (1987), 158 Ill. App. 3d 85, 104, 510 N.E.2d 577, 589; Fuller v. Justice (1983), 117 Ill. App. 3d 933, 938, 453 N.E.2d 1133, 1136.) In ruling on a summary judgment motion, the trial court is required to construe the pleadings, affidavits, depositions and admissions on file strictly against the moving party and liberally in favor of the opponent. (Miller v. Smith (1985), 137 Ill. App. 3d 192, 196, 484 N.E.2d 492, 496.) If any facts upon which reasonable persons may disagree are identified, or inferences may be fairly drawn from those facts leading to different conclusions, the motion must be denied and the resolution of those facts and inferences be made at trial. La Salle National Bank v. Illinois Housing Development Authority (1986), 148 Ill. App. 3d 158, 161, 498 N.E.2d 697, 699.

However, where a party moving for summary judgment files supporting affidavits containing well-pleaded facts and the party opposing the motion files no counteraffidavits, the material facts set forth in the movant’s affidavits stand as admitted. (Wooding v. L & J Press Corp. (1981), 99 Ill. App. 3d 382, 385, 425 N.E.2d 1055, 1058.) If the opponent fails to controvert the proofs offered in support of the motion and the movant’s showing of uncontradicted facts would entitle him to judgment as a matter of law, then summary judgment is proper. Kocjancich v. Bridges (1981), 93 Ill. App. 3d 550, 552, 417 N.E.2d 694, 696-97.

Defendants argue that the affidavit and supporting documents submitted by plaintiff failed to establish that a franchise agreement existed between the parties. The definition of “franchise” set forth in section 3 of the Act reads as follows:

“(1) ‘Franchise’ means a contract or agreement, either expressed or implied, whether oral or written, between 2 or more persons by which:
(a) a franchisee is granted the right to engage in the business of offering, selling, or distributing goods or services, under a marketing plan or system prescribed or suggested in substantial part by a franchisor; and
(b) the operation of the franchisee’s business pursuant to such plan or system is substantially associated with the franchisor’s trademark, service mark, trade name, logo-type, advertising, or other commercial symbol designating the franchisor or its affiliate; and
(c) the person granted the right to engage in such business is required to pay, directly or indirectly, a franchise fee of $100 or more.” (Ill. Rev. Stat. 1985, ch. 1211/2, pars. 703(l)(a), (l)(b), (D(c).)

Thus, by statutory definition, a franchise exists where an agreement meets the three objective criteria. Salkeld v. V.R. Business Brokers (1989), 192 Ill. App. 3d 663, 670, 548 N.E.2d 1151, 1155.

Under the first statutory criterion, plaintiff must demonstrate that defendants granted him the right to sell or distribute goods pursuant to a suggested marketing plan or system. Defendants argue that the material provided to plaintiff cannot be considered a marketing plan where, under the agreement, plaintiff was allowed to “develop his territory and sales staff without interference.” However, the focus of this requirement is not the franchisee’s mandatory use of the marketing plan, as the language “prescribed or suggested” reveals, but rather whether such a right was provided under the contract. Ill. Rev. Stat. 1985, ch. 121½, par. 703(l)(a).

Section 3 of the Act defines a marketing plan as:

“[A] plan relating to some aspect of the conduct of a party to a contract in conducting business, including but not limited to (a) specification of price, or special pricing systems or discount plans, (b) use of particular sales or display equipment or merchandising devices, (c) use of specific sales techniques, (d) use of advertising or promotional materials or cooperation in advertising efforts ***.” (Ill. Rev. Stat. 1985, ch. 121½, par. 703(19).)

A review of the record indicates that the agreement at issue in the present case satisfies the statutory requirement of a marketing plan or system.

According to plaintiff’s uncontradicted affidavit, he met with a representative of Dialist International, defendant Cronin, and received a detailed explanation of the Dialist system and instruction on how to market the product. Plaintiff was promised that additional instruction regarding the system would be held at a later date. He was further provided a manual or binder detailing product information and sales points and providing promotional material, sample advertisements and numerous letters from purported customers announcing their participation in the public relations program known as Dialist. As part of his sales strategy, plaintiff was advised to obtain similar letters for use in approaching new customers. When plaintiff encountered difficulty regarding the credibility of Dialist International, its president, defendant Smith, assisted plaintiff by furnishing a letter asserting the company’s “intergrity [sic] and financial responsibility.” We believe that these representations amply satisfy the statutory requirement of the existence of a marketing plan or system. See Salkeld, 192 Ill. App. 3d at 670-71. 548 N.E.2d at 1155-56.

The second statutory criterion concerns the use of a trade name or other commercial symbol designating the franchise or its affiliate. Defendants argue that plaintiff’s conclusory assertion that the designation “Dialist” is a trade name does not satisfy the requirement of section 3(l)(b), where plaintiff offers no proof that the name is substantially associated with the operation of his business. (Ill. Rev. Stat. 1985, ch. 121 Va, par. 703(l)(b).) However, the agreement at issue, as well as uncontradicted facts in plaintiff’s affidavit, indicate that plaintiff’s use of the trade name Dialist was contemplated.

The “Dialist Agreement” granted to plaintiff “the distributorship and authority to sell Cooperative Diálisis.” All the promotional materials provided to plaintiff refer to the product as Dialist. Furthermore, plaintiff was instructed to rely on the purported good name of Dialist and the company of the same name in marketing the product. Given the strong association between the Dialist name and the nature of the product to be distributed and the promised benefits to be derived from being identified with Dialist International, we find that plaintiff’s business was substantially associated with the trade name Dialist such that the second statutory requirement was satisfied. See Salkeld, 192 Ill. App. 3d at 671, 548 N.E.2d at 1156; Cf. Fosdick Poultry Processors, Inc. v. Eager (1990), 197 Ill. App. 3d 727, 730, 555 N.E.2d 62, 64-65.

The final statutory requirement is that plaintiff must have paid a fee of $100 or more to be granted the right to engage in the business. Plaintiff asserts, and defendants do not dispute, that he paid $15,000 for the right to engage in his business. Thus, inasmuch as plaintiff has asserted facts sufficient to satisfy each criterion in the statutory definition, we conclude that no genuine issue of material fact existed as to the applicability of the Act. Therefore, the trial court did not err in entering summary judgment for plaintiff.

Because plaintiff had a valid cause of action for damages under section 21, he is “entitled to the costs of the action including, without .limitation, reasonable attorney’s fees.” (Ill. Rev. Stat. 1985, ch. 121V2, par. 721(1).) Defendants’ second argument is that the contingency fee of one-third of the recovery of $15,000 awarded by the trial court was unreasonably high and should be limited to the $3,100 in hourly fees proven by plaintiff’s attorneys.

There are few guiding principles in our appellate decisions as to what reasonable attorney fees should be in cases where a statute permits such an award. However, in Renken v. Northern Illinois Water Co. (1989), 191 Ill. App. 3d 744, 547 N.E.2d 1376, the court examined Federal case law in this area and stated that the objective is “ ‘to award the plaintiff’s counsel the market rate for the services reasonably required to produce the victory.’ ” Renken, 191 Ill. App. 3d at 751, 547 N.E.2d at 1380, quoting Kirchoff v. Flynn (7th Cir. 1986), 786 F.2d 320, 328.

This court has held that, for purposes of determining statutory attorney fees, the term “reasonable” applies regardless of the nature of the client’s contractual relationship with his attorney. (Keller v. State Farm Insurance Co. (1989), 180 Ill. App. 3d 539, 557, 536 N.E.2d 194, 205.) Rather, the courts are to consider the contractual fee arrangement between attorney and client as but one factor in their determination. (Renken, 191 Ill. App. 3d at 752, 547 N.E.2d at 1381.) Other factors to be considered in determining reasonable attorney fees are the skill and standing of the attorney employed, the nature of the cause and the novelty and difficulty of the questions at issue, the amount and importance of the subject matter, the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the benefits resulting to the client. (Carefree Foliage, Inc. v. American Tours, Inc. (1987), 153 Ill. App. 3d 190, 197-98, 505 N.E.2d 1039, 1044-45; Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 984, 518 N.E.2d 424, 428.) The trial court’s decision will not be reversed absent an abuse of discretion. Kaiser, 164 Ill. App. 3d at 984, 518 N.E.2d at 428.

In the instant case, defendants claim that the trial court failed to consider any of the above-mentioned factors. However, the order awarding attorney fees noted the high level of expertise and the amount of work performed by plaintiff’s attorneys as well as the salutary purpose of the Act. Additionally, the court found that the contingency fee contract of 33x/s% which existed between plaintiff and his attorneys was “[t]he normal contingency fee contract in this community.” This court has upheld a trial court’s ruling that a fee equal to 33x/3% of plaintiff’s recovery was appropriate as the reasonable value of services rendered for trial work. (Baker v. City of Granite City (1983), 112 Ill. App. 3d 1096, 446 N.E.2d 531.) Therefore, we do not feel that the trial court abused its discretion in awarding the contingency fee amount of $5,000 as reasonable attorney fees.

For the foregoing reasons, the orders of the circuit court of St. Clair County are affirmed.

Affirmed.

RARICK, P.J, and WELCH, J., concur.