author: JUSTICE SCARIANO

text:
    ODAS NICHOLSON, Plaintiff-Appellant, v. CHICAGO BAR ASSOCIATION, Defendant-Appellee.
    First District (2nd Division)
    No. 1—90—2043
    Opinion filed August 11, 1992.

      William J. Harte, Ltd., of Chicago (William J. Harte and Erik D. Gru-ber, of counsel), for appellant.
    Vedder, Price, Kaufman & Kammholz, of Chicago (Rene A. Torrado, Jr., and Janet M. Hedrick, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

In 1986, plaintiff, Odas Nicholson, a judge of the circuit court of Cook County, sought appointment to a vacancy on the Illinois Appellate Court. As a part of the application process, our State supreme court, the appointing authority, informed her that she should have her qualifications evaluated by the Chicago Bar Association (defendant), and in accordance with defendant’s “Resolution Concerning Procedures for Evaluation of Candidates for Judicial Offices” (Resolution), and “Guidelines for Judicial Selection” (Guidelines), plaintiff completed and submitted to defendant’s Judicial Evaluation Committee (JEC) its “Questionnaire for Sitting Judges.” On January 21, 1987, the JEC conducted a hearing to review plaintiff’s qualifications, and the next day, the JEC notified her that she had been rated “not recommended” for the office. Plaintiff subsequently filed with defendant a petition for rehearing and reevaluation, which was denied. She was not appointed to fill the position.

On March 10, 1988, plaintiff filed a two-count complaint in circuit court against defendant. In count I she claimed that defendant’s JEC did not follow its Resolution in conducting her evaluation, and that she was thus denied a fair and impartial investigation and hearing. Specifically she alleged that (1) the JEC “failed to follow [its own] [G]uidelines when it found [her] ‘not recommended’ (2) defendant violated sections 26.7 and 28.1 of its Resolution when it failed to communicate to her “a statement of reasons of its finding of ‘not recommended’ (3) defendant violated section 22 of its Resolution because it “failed to disclose to [her] in advance of the hearing such information relating to her qualifications which ought to have been disclosed because of their adverse effect”; (4) defendant violated section 27.2 of its Resolution when it failed to grant plaintiff a rehearing; and (5) defendant “failed to follow its own rules when it failed to contact any of [the] ten references [she had submitted and that defendant had] failed to seek wide participation [in the selection process] by the legal profession.”

In count II, plaintiff alleged that defendant denied her due process of law when it “failed to assure [her] the opportunity to be heard in her defense in an orderly proceeding before the hearing.” More specifically, plaintiff alleged that she was denied due process when defendant (1) “failed to institute a proper investigation of [her qualifications] and to contact any of [her] references, thereby making its recommendation arbitrary and without proper support,” (2) “failed to present any information to [her] before or after her hearing which adversely affected her qualifications,” (3) “failed to provide [her] an opportunity to be heard and to defend any alleged criticism of her qualifications,” (4) “finally informed [her] of its reasons for not recommending her which were not factually supported,” and (5) “arbitrarily refused to allow [her] petition for rehearing and reevaluation.” Plaintiff requested that the court order defendant to “set aside its evaluation of ‘not recommended’ and to reevaluate plaintiff in a manner consistent with its own rules.”

On May 19, 1988, defendant moved, pursuant to section 2—615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—615), to dismiss plaintiff’s complaint. On February 21, 1989, the court dismissed count I of her complaint with leave to amend within 21 days, and reserved ruling with respect to count II. On April 3, 1989, the court dismissed with prejudice count II of plaintiff’s complaint. On February 26, 1990, more than 10 months after it was due, plaintiff filed a motion for leave to file an amended complaint, explaining that the late filing was due to the oversight of her attorney. On June 14, 1990, the court entered a final and appealable order, denying plaintiff’s motion as untimely. Plaintiff filed her notice of appeal on July 13,1990.

I

Plaintiff contends that even though she was more than 10 months late in presenting it, the trial court abused its discretion in denying her motion for leave to file her amended complaint. She relies on First National Bank & Trust Co. v. Sousanes (1978), 66 Ill. App. 3d 394, 396, for the proposition that “the greatest liberality should be applied in allowing amendments with the paramount consideration being whether the amendment furthers the interests of justice.” She suggests that either “prejudice [or] surprise to the other party” must be alleged before a court has discretion to dismiss an amended complaint as untimely. She also argues that Gray v. Starkey (1976), 41 Ill. App. 3d 555, 559, supports her position, in that there the trial court was found not to have abused its discretion in permitting the plaintiffs “to file an amended complaint 81 days after the expiration of the time previously granted [them] to do so.”

Plaintiff further asserts that her case was essentially dismissed for want of prosecution and that, therefore, the dismissal should have been without prejudice. (Kraus v. Metropolitan Two Illinois Center (1986), 146 Ill. App. 3d 210.) Finally, as to this issue, she maintains that the June 14, 1990, order denying her leave to file an amended pleading was not final, citing Gray (41 Ill. App. 3d at 558), and that therefore the court erred in dismissing her complaint with prejudice.

Although the immortal Dante teaches us that the sins of the warm-hearted are to be weighed in different scales than those of the cold-blooded, plaintiff fails to persuade us. The issue of whether a trial court may deny a plaintiff leave to amend her pleadings is one which is properly addressed to the sound discretion of the trial court. (Sousanes, 66 Ill. App. 3d at 396.) Accordingly, a reviewing court may intervene only where the trial court acted arbitrarily or, in light of all the circumstances presented, exceeded the bounds of reason and ignored recognized principles of law so that substantial injustice resulted (In re Marriage of Silber (1988), 176 Ill. App. 3d 853, 856); or where the judgment of the trial court is found to be palpably erroneous, contrary to the manifest weight of the evidence or manifestly unjust (In re Marriage of Poston (1979), 77 Ill. App. 3d 689, 692); or where no reasonable person could take the view adopted by the trial court. In re Marriage of Petrovich (1987), 154 Ill. App. 3d 881, 887, appeal denied (1987), 116 Ill. 2d 556.

Bound, as we are, by the strictures of such a rigid scope of review, we cannot conclude that the trial court here abused its discretion. Section 2—616(a) of our Civil Practice Law (Ill. Rev. Stat. 1991, ch. 110, par. 2—616(a)) provides that “[a]t any time before final judgment amendments may be allowed on just and reasonable terms.” Surely, the phrase “just and reasonable terms” must necessarily include the imposition of a time limitation within which the amendment must be filed. To hold on the basis of the record in this case that there was an abuse of discretion would in effect deny the trial court the right to impose what it considers to be “just and reasonable terms.” The authority of the trial court to dismiss a plaintiff’s action with prejudice because of her failure to abide by its orders is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the circuit court. Moreover, such authority has generally been considered an “inherent power,” governed not by rule or statute but by the control necessarily vested in courts to manage their own dockets so as to achieve the orderly and expeditious disposition of cases (see generally Link v. Wabash R.R. Co. (1962), 370 U.S. 626, 8 L. Ed. 2d 734, 82 S. Ct. 1386); and, as previously noted, the exercise of such authority will not be set aside except upon a showing of an abuse of discretion. A contrary course would amount to a substitution of the judgment of the reviewing court in place of that of the trial court in which such discretion properly resides.

Nevertheless, assuming, arguendo, that the trial judge abused his discretion in denying plaintiff leave to plead over, we hold that her proposed amended complaint does not cure the defects that exist in her original complaint (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 273) and that, moreover, under no set of facts could plaintiff have pleaded a cause of action. (People ex rel. Council 19 of the American Federation of State, County & Municipal Employees v. Egan (1977), 52 Ill. App. 3d 1042, 1045; McErlean v. Union National Bank (1980), 90 Ill. App. 3d 1141, 1149.) Plaintiff relies on Perkaus v. Chicago Catholic High School Athletic League (1986), 140 Ill. App. 3d 127, 133, for the proposition that “the constitution and bylaws of an unincorporated association constitute a contract between the association and its members”; yet there was no contractual relationship at all between defendant, acting as an evaluator, and plaintiff, acting as a candidate seeking the evaluator’s recommendation.

She also relies on Werner v. International Association of Machinists (1956), 11 Ill. App. 2d 258, 279, for the proposition that “courts will interfere with the decision of an association expelling one of its members if it appears that the rules of the association governing expulsion have not been observed.” Plaintiff does not allege, however, nor can she, that she was expelled from membership in defendant’s organization; thus, Werner is inapposite. Rather, our courts have held that the judiciary “must refrain from interfering in the affairs of a private association absent a showing of economic necessity.” (Treister v. American Academy of Orthopaedic Surgeons (1979), 78 Ill. App. 3d 746, 756, appeal denied (1980), 79 Ill. 2d 630.) Plaintiff here has not pleaded any facts suggesting economic necessity.

II

On April 3, 1989, the trial court dismissed count II of plaintiff’s complaint, on the ground that “plaintiff has failed to allege sufficient facts to entitle her to the relief she requests.” She asserts that the trial court erred in dismissing her claim to due process.

A

Defendant contends that “when a reviewing court has notice of facts which show that only moot questions or mere abstract propositions are involved or where the substantial questions involved *** no longer exist, it will dismiss the appeal” (People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 622, cert. denied (1952), 344 U.S. 824, 97 L. Ed. 624, 73 S. Ct. 24), a situation that exists here, thus mooting plaintiff’s case because “no actual controversy exists [since] events occur[ed] which make it impossible for the court to grant effectual relief.” (Wheatley v. Board of Education of Township High School District 205 (1984), 99 Ill. 2d 481, 484-85.) Defendant further argues that the office which plaintiff sought has been filled, and, because more than two years have elapsed since plaintiff’s evaluation, she is eligible to be reevaluated by submitting a new questionnaire.

Contrary to defendant’s position, an actual controversy exists on these facts. Although the position which plaintiff sought has been filled, and although it is also true that plaintiff is entitled under one of defendant’s internal resolutions to a new hearing, neither of these factors operates to moot her case. Plaintiff’s complaint does not seek appointment to the appellate court; rather, she seeks an order setting aside the “not recommended” rating and requiring defendant to reevaluate her qualifications for the appellate court. The gravamen of the remedy sought here is a withdrawal of the “not recommended” rating; therefore, even though plaintiff is entitled to a new evaluation, it would not supersede the prior finding. Consequently, there still exists an actual controversy which this court might be able to remedy. (Wheatley, 99 Ill. 2d at 484-85.) For these reasons, we hold that plaintiff’s appeal is not moot.

B

In order to state a cause of action for due process under the fourteenth amendment, defendant’s actions must be those of a State actor, and not merely those of a private association. National Collegiate Athletic Association v. Tarkanian (1988), 488 U.S. 179, 102 L. Ed. 2d 469, 109 S. Ct. 454.

In this connection the case of Rouse v. Judges of the Circuit Court (N.D. Ill. 1985), 609 F. Supp. 243, warrants our consideration. In Rouse, the plaintiff, an attorney licensed in Illinois and employed as an assistant Cook County public defender, sought appointment to the position of associate judge of the circuit court. When the plaintiff submitted her name as a candidate to the circuit court, she was referred to the defendant herein for her “initial evaluation.” She was afforded a hearing before a panel of the Committee on Evaluation of Candidates, and later received written notice that she was found “not recommended” because of a lack of “judicial temperament [and] professional experience,” and was thus excluded from further consideration for the position she was seeking. The plaintiff filed suit in Federal court, claiming that the circuit court of Cook County “ha[d] delegated to the Chicago Bar Association [CBA] the screening and the initial evaluation of potential candidates for judicial office in Cook County,” that no candidate would be considered unless she were recommended by the CBA, and that the investigation and subsequent hearing were unfair because the chairman of her hearing panel harbored a bias against her.

After dismissing the defendant’s abstention argument, the court addressed the issue of State action, citing Lugar v. Edmondson Oil Co. (1982), 457 U.S. 922, 937, 73 L. Ed. 2d 482, 495, 102 S. Ct. 2744, 2753, in which the Supreme Court set forth the circumstances under which private action may be fairly attributable to a State:

“First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible. *** Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor.”

The Rouse court found the first prong of this test to be easily met, since the judges of the circuit court of Cook County collectively determine the method of selecting associate judges.

With respect to the second prong, the Rouse court determined that

“[p]rivate actors who perform exclusive public functions are, for these purposes, state actors. Terry v. Adams, 345 U.S. 461, 73 S. Ct. 809, 97 L. Ed. 1152 (1953); Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S. Ct. 1729, 56 L. Ed. 2d 185 (1978). Further, private parties who de facto perform governmental functions by controlling public officials or acting as their agents are acting under color of state law. Dennis v. Sparks, 449 U.S. 24, 101 S. Ct. 183, 66 L. Ed. 2d 185 (1980); Adickes v. Kress Co., 398 U.S. 144, 169-171, 90 S. Ct. 1598, 1614-1616, 26 L. Ed. 2d 142 (1970).” (Rouse, 609 F. Supp. at 246.)

The court went on to hold that in situations where the CBA “evalu-at[ed] the qualifications of candidates for new associate judgeships,” it was acting “as a defacto screening committee for the Circuit Court,” since a “not recommended” finding was “tantamount to exclusion from further consideration.” (Emphasis in original.) (Rouse, 609 F. Supp. at 247.) Because the circuit court is charged by law with the responsibility of “screening, evaluating and electing new associate judges, *** [by] excluding candidates from the ballot, the C.B.A. has undertaken to perform an exclusive public function on behalf of the Circuit Court and is a state actor.” Rouse, 609 F. Supp. at 247.

The court distinguished, however, instances where the CBA acted solely as a private association, that is, instances where it

“evaluates the qualifications of full Circuit Court judges running for reelection *** [or where it] reviews and evaluates sitting associate Circuit Court judges who are seeking retention and transmits its findings to the Judges who subsequently vote on those candidates. *** In those situations the candidates have already been determined and the C.B.A. is simply commenting on their qualifications.” Rouse, 609 F. Supp. at 246-47.

The analysis in Rouse has since been superseded by the Supreme Court case of National Collegiate Athletic Association v. Tarkanian (1988), 488 U.S. 179, 102 L. Ed. 2d 469, 109 S. Ct. 454, where the issue was whether the NCAA’s “recommendation” that the University of Nevada, Las Vegas (UNLV) suspend Tarkanian from its athletic program was State action. The Court noted that, in the typical State action case,

“a private party has taken the decisive step that caused the harm to the plaintiff ***. This may occur if the State created the legal framework governing the conduct [citation]; if it delegates its authority to the private actor [citation]; or sometimes if it knowingly accepts the benefits derived from unconstitutional behavior [citation].” (Emphasis added.) (Tarkanian, 488 U.S. at 192, 102 L. Ed. 2d at 484-85, 109 S. Ct. at 462.)

Relying, in part, on the fact that UNLV was free to reject the NCAA’s “recommendation,” and the fact that the State had not conferred any “official authority” on the Association, the Court held that the NCAA was not a State actor.

While it is true on the facts of this case that the supreme court is given the power to fill vacancies occurring in the office of appellate court judge (Ill. Const. 1970, art. VI, §12), plaintiff does not allege, nor is it shown in the record, that those seeking appointment must first seek review by defendant; indeed, in her brief, plaintiff claims that “she is the only sitting judge referred by the Illinois Supreme Court to the defendant for evaluation ***[, and] that since her referral the Illinois Supreme Court has made six appointments to the Appellate Court without referring any of the parties to the defendant.” Even if plaintiff were to have alleged that those seeking appointment must first seek review by defendant, nowhere in the record is it shown that the supreme court is not free to accept or reject defendant’s recommendations, and appoint whomever it chooses. Plaintiff, herself, makes this concession in paragraph 15 of her amended complaint. Therefore, pursuant to Tarkanian, defendant cannot be said to be a State actor.

C

Even if defendant were a State actor, plaintiff cannot further show a due process violation. “To establish a violation of the due process clause, [p]laintiff must demonstrate^ in addition to State action,] that she was deprived of a ‘liberty’ or ‘property’ interest.” Rouse, 609 F. Supp. at 247; see also Board of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701.

1. Liberty. Plaintiff essentially contends that the “not recommended” rating was false and unjustified given her excellent credentials. She, like Rouse, however, does not allege that the “not recommended” rating injured her good name, reputation, honor or integrity. (Roth, 408 U.S. at 573, 33 L. Ed. 2d at 558, 92 S. Ct. at 2707 (“[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential”).) Neither does she allege, as in Rouse, that defendant’s rating “imposed on [her] a stigma or other disability that foreclosed [her] freedom to take advantage of other employment opportunities.” (408 U.S. at 573, 33 L. Ed. 2d at 559, 92 S. Ct. at 2707.) Nor has she alleged that defendant’s rating has reduced her professional standing or foreclosed her from other employment in her field; indeed, she is still employed as a judge of the circuit court of Cook County and is not precluded from seeking any other position by election or appointment to any judicial office. We therefore hold that

“[p]laintiff has no protected liberty interest in obtaining a single position of judge where other opportunities for employment in her field existf, and that t]he limited effect of defendant’s ‘not recommended’ rating does not rise to the level of a protected liberty interest under the due process clause because it does not significantly injure her professional standing or foreclose her from an array of other employment opportunities as an attorney.” Rouse, 609 F. Supp. at 248.

2. Property. “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” (Roth, 408 U.S. at 577, 33 L. Ed. 2d at 561, 92 S. Ct. at 2709.) Moreover, “[property interests *** are not created by the Constitution^ but] are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” (Roth, 408 U.S. at 577, 33 L. Ed. 2d at 561, 92 S. Ct. at 2709.) Plaintiff asserts that she had “a legitimate claim of entitlement to a position on the Appellate Court” insofar as “there were no black women on the Appellate Court [and she] was encouraged to seek appointment to the Appellate Court.” Plaintiff does not state, however, the source of this property interest, nor does she allege discrimination because of race.

The Rouse court addressed this issue also and found that the plaintiff had no entitlement to the position of associate judge since it was an elected office. “All that plaintiff allege[d], and all that she could [have] allege[d], [was] that she [met] the minimum objective qualifications.” (Rouse, 609 F. Supp. at 248.) Here, too, plaintiff cannot allege an entitlement to the appointed position. Indeed, plaintiff can point to no source which has created her alleged property interest; rather, she asserts that because she is minimally qualified for the office, she was entitled to receive fair consideration consistent with due process. The Rouse court rejected a similar argument, stating simply that the CBA’s promulgation of a procedural scheme “does not by itself create a constitutionally protected property interest.” (Rouse, 609 F. Supp. at 248-49; see also Shango v. Jurich (7th Cir. 1982), 681 F.2d 1091, 1100.) “The protectible property interest must be found under state law and must exist independently of and apart from any procedural guarantees.” (Rouse, 609 F. Supp. at 249.) Because plaintiff here has identified no independent State law granting her the right to a fair and impartial hearing by defendant, we hold that she has no protected property interest at stake.

For the above-stated reasons, we hold that even if the trial court had abused its discretion in denying plaintiff leave to file her amended complaint as untimely, her proposed amended complaint would not have cured the defects found in her original complaint.

Affirmed.

DiVITO and CERDA, JJ., concur.

      Eventually, plaintiff was informed that her “not recommended” rating was based on a “lack of legal knowledge and ability.”

      The guidelines address such characteristics as integrity, legal knowledge and ability, judicial temperament, diligence, punctuality, health, age, professional experience, litigation experience, past professional conduct, financial responsibility, political activity, character, patience, common sense, tact, social consciousness, association and public service, and the judicial system.

      Section 26.7 provides as follows:
      “The presiding officer or a member of the Executive Committee shall prepare the statement of reasons provided for herein, which statement shall be subject to the approval of the presiding officer.”
      Section 28.1 provides as follows:
      “The finding of the Hearing Division panel shall be promptly communicated by the President to the candidate, the Board, the Committee, and to the Court, committee, party, or other entity which submitted the candidate for evaluation or which may be considering the candidate for election, nomination, slating or appointment. In the case of a finding of ‘NOT RECOMMENDED,’ the communication shall be accompanied by a statement of the reasons for finding.”

      Section 22 provides as follows:
      “If the Executive Committee shall determine that information relating to the qualifications of a candidate has been developed or received which, in fairness, ought to be disclosed to the candidate in advance of the hearing, such information shall be provided the candidate within a reasonable time prior thereto.”

      Section 27.2 provides as follows:
      “In the case only of a ‘NOT RECOMMENDED’ finding by a panel, a candidate may request a re-evaluation within ten days after being informed of the hearing result. The request must be in writing, must specify the basis for the request and must be directed to the General Chairman at the Chicago Bar Association Offices. *** Such an evaluation shall only be ordered on a determination that the hearing panel’s finding is arbitrary or capricious, or to avoid fundamental unfairness. A re-evaluation shall not be ordered solely because the Review Committee disagrees with the hearing panel’s findings. *** The decision of the Review Committee regarding whether to re-evaluate the candidate shall be communicated to the candidate as provided elsewhere in this Resolution. *** There is no right to re-evaluation by any candidate who receives a favorable finding ***.”

      According to section 27.1 of defendant’s Resolution:
      “There shall be no re-evaluation or re-hearing of any candidate evaluated by the Committee for the same office within two years, except as otherwise provided in this Section. A candidate for an office for which the candidate has been evaluated within a two year period shall be found as previously found without hearing. Each ‘two year' period shall commence on the date of the panel hearing finding as to the first candidate of an ascertainable class or group of candidates, e.g., candidates for appointment to fill vacancies in the office of Associate Judge pursuant to published notice of vacancies, candidates for election to the office of Circuit Judge at a general election.”


source: Caselaw Access Project

author: PRESIDING JUSTICE BUCKLEY

license: Public Domain

text:
    JACK J. GIANNOBLE, Special Adm’r to the Estate of Anthony S. Gianno-ble, Deceased, Plaintiff-Appellant, v. P AND M HEATING AND AIR CONDITIONING, INC., Defendant-Appellee.
    First District (1st Division)
    No. 1—90—3648
    Opinion filed August 17, 1992.

      Brenda A. Szeja, of Chicago, for appellant.
    Tressler, Soderstrom, Maloney & Priess, of Chicago (Gary T. Jansen and Kathleen M. Gibbons, of counsel), for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff, Jack J. Giannoble, as special administrator of the estate of Anthony S. Giannoble, deceased, filed a two-count complaint for wrongful death based upon an automobile accident in which a van, owned by defendant P & M Heating and Air Conditioning, Inc. (P & M), and driven by defendant William Smith (Smith), collided with the deceased’s vehicle. Count I of the complaint sought recovery against Smith individually, and count II sought recovery against P & M under a theory of respondeat superior. In its answer, P & M admitted ownership of the van and being Smith’s employer but denied all remaining material allegations.

P & M subsequently moved for summary judgment alleging that Smith, at the time of the accident, was not within the scope of his employment. Plaintiff appeals the circuit court’s grant of P & M’s motion contending that genuine issues of material fact exist on the scope of employment issue and that pending discovery matters rendered summary judgment premature. We affirm.

To support its motion for summary judgment, P & M submitted the sworn deposition testimony of Smith, and the sworn affidavit of Thomas Vaccaro, P & M’s service manager at the time of the accident.

The deposition testimony of Smith reflects that on July 23, 1986, P & M employed Smith as a heating, air conditioning, refrigeration and ventilation service technician. Smith worked a 40-hour work week and was on 24-hour call approximately one week per month. Smith was not on call July 23.

In the course of his employment, P & M provided Smith with a service van which contained the tools necessary for Smith to complete his work. Since Smith normally called into P & M’s Summit plant each morning from his Blue Island home to receive his first job assignment, and thereafter travelled to such job in the van, P & M permitted Smith to keep the van at home after work. All service technicians were provided a van and similarly were allowed to take their service vans home at night. Smith testified that he had general permission to use the van. Smith charged gasoline to a company charge account.

On July 23, 1986, Smith started work at 8 a.m., his normal work time. He received job assignments that day and finished his work at 4 p.m. Smith drove the company van directly home after completing work.

At home, Smith changed clothes, took a shower and ate dinner with his wife. While home, Smith’s stepdaughter telephoned and related that she was having problems with her air conditioning unit at home. Smith agreed to look the unit over and make the repairs as a favor. Smith did not tell anyone at work about this work including Thomas Vaccaro, his supervisor. While Smith would normally complete a customer receipt on a service call, no customer receipt or other paper work was generated for this work.

Not knowing what the repair task would entail, Smith and his wife took the company van as it contained the tools Smith might possibly need. The two departed their home and first drove to the stepdaughter’s beauty salon, arriving between 6:45 and 7 p.m. There, Smith, his wife and the stepdaughter conversed briefly. They agreed that Smith and his wife would first proceed to the stepdaughter’s house so Smith could get a start on the unit. The stepdaughter would follow later. Accordingly, Smith, his wife and their grandson, who was at the salon, left the salon for the stepdaughter’s home, located near 141st and Bell Avenue, in Will County.

At between 7 and 7:45 p.m., the three arrived, and Smith proceeded to look at the unit, which was in the backyard. At 10:45 p.m., Smith completed his work. Because it was a hot night and Smith was to work outside, Smith brought along his swimsuit and went swimming in his stepdaughter’s pool after completing the work. At about midnight, Smith and his wife left for home. The accident which resulted in the deceased’s death occurred during the drive home at about 1 a.m.

Smith testified that he has done other repair work as favors and not kept a record of such work. Other service technicians have similarly performed favors. Smith stated that P & M knows of this practice and it is acceptable to it.

Regarding Vaccaro’s affidavit, Vaccaro states that he was P & M’s service manager on July 23, 1986, and that service technicians like Smith are provided a van which they are allowed to take home. Vac-caro further states that Smith never asked for permission to use the van after normal working hours on the day of the accident; that he had no knowledge that the van was being so used at the time of use; that he is unaware of any P & M customer receipts or other paper work being issued to the stepdaughter; and that no P & M records exist which reflect the payment of consideration for such work.

In granting P & M’s motion for summary judgment against plaintiff, the court concluded that no genuine issue of material fact existed on the scope of employment issue. During its oral ruling, the court was persuaded by Smith’s deposition testimony that the air conditioning service he performed for his stepdaughter was not a P & M job, but rather a personal favor, performed six or seven hours after Smith had completed his daily work.

Plaintiff first contends on appeal that there exist “major, outcome-determinative factual differences precluding summary judgment” in this case. Plaintiff directs this court to Vaccaro’s affidavit, which plaintiff asserts is internally conflicting, and also requests this court to compare the affidavit with Smith’s testimony, which reveals yet another contradiction. Plaintiff additionally asserts that Smith’s testimony differs from that of his wife in material respects. Finally, plaintiff asserts that an issue of fact exists merely on the fact that Smith was driving a service-equipped company van from an air conditioning repair job at the time of the accident.

Summary judgment shall be entered when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) The purpose of summary judgment is not to try an issue of fact, but rather to determine whether a triable issue of fact exists. Sloan v. Jasper County Community Unit School District No. 1 (1988), 167 Ill. App. 3d 867, 870, 522 N.E.2d 334, 336.

The use of the summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit; however, it is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) In determining the existence of a genuine issue of material fact, courts must consider the pleadings, depositions, admissions, exhibits, and affidavits on file in the case and must construe them strictly against the movant and liberally in favor of the opponent. Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.

Summary judgment is generally inappropriate when scope of employment is at issue. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 360, 543 N.E.2d 1304, 1308 (and cases cited therein).) Only if no reasonable person could conclude from the evidence that an employee was acting within the course of employment should a court hold as a matter of law that the employee was not so acting. Pyne, 129 Ill. 2d at 360, 543 N.E.2d at 1308.

For an employer to be vicariously liable for an employee’s torts under the doctrine of respondeat superior, the torts must have been committed within the scope of the employment. (Pyne, 129 Ill. 2d at 360, 543 N.E.2d at 1308 (and cases cited therein).) No precise definition has been accorded the phrase “scope of employment,” but broad criteria have been enunciated:

“ ‘(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, ***
* * *
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.’ ” (Pyne, 129 Ill. 2d at 360, 543 N.E.2d at 1308, quoting Restatement (Second) of Agency §228 (1958).)

The burden is on the plaintiff to show the contemporaneous relationship between the tortious act and scope of employment. Pyne, 129 Ill. 2d at 360, 543 N.E.2d at 1309.

In this case, we initially reject plaintiff’s attempt to create an issue of fact by asserting the existence of various conflicts in the testimony and affidavits. The conflicts are illusory and, to the extent they exist, are neither genuine nor material.

Plaintiff first alleges that paragraphs 4 and 6 of Vaccaro’s affidavit are internally inconsistent. Paragraph 4 asserts that P & M service technicians such as Smith were provided with vans which they were allowed to take home. Paragraph 6 states that Smith never asked for permission to use the van after normal working hours on the day of the accident. We believe the two paragraphs are not inconsistent.

Next, plaintiff claims paragraph 6 conflicts with Smith’s discovery deposition wherein Smith states he was given permission from Vac-caro to use the van. Plaintiff has again shown no inconsistency. What plaintiff fails to distinguish is P & M’s grant to Smith of general permission to use the van and the absence of a specific authorization by P & M to use the van on the occasion in question. In his evidence deposition, plaintiff attempted to impeach Smith on this alleged inconsistency, but Smith clarified his prior testimony by noting the above distinction. Plaintiff has accordingly failed to demonstrate an issue of fact.

Finally, plaintiff claims that differences exist in the depositions of Smith and his wife. Whereas Smith testified that he and his wife first drove to the beauty salon, Smith’s wife testified that she, Smith and their grandson went straight to the stepdaughter’s house. How this bears on the scope of employment issue is not revealed by plaintiff; certainly, the differences do not create an issue of material fact.

We now turn to plaintiff’s argument that summary judgment on the scope of employment issue was improper based on the facts that: (1) Smith was given general permission to use the company van; (2) P & M knew and accepted that its service technicians did after-hour jobs as favors; and (3) the accident occurred while Smith was driving home the company van from an air conditioning job.

Although not addressed by the parties, upon P & M’s admission of ownership of the van, plaintiff is entitled to an evidentiary presumption that, at the time of the accident, Smith was P & M’s servant and was acting within the scope of his employment at the time of the injury. (Parrino v. Landon (1956), 8 Ill. 2d 468, 470, 134 N.E.2d 311, 312; Bell v. Reid (1983), 118 Ill. App. 3d 310, 313, 454 N.E.2d 1117, 1119; Wallace v. Smith (1979), 75 Ill. App. 3d 739, 747, 394 N.E.2d 665, 671; Paulsen v. Cochfield (1935), 278 Ill. App. 596, 603; Howard v. Amerson (1925), 236 Ill. App. 587, 592-93.) The presumption, while rebuttable, creates a prima facie case and throws the burden of going forward with the evidence upon the defendant, who then must show nonagency at the time of the occurrence. (Bell, 118 Ill. App. 3d at 313, 454 N.E.2d at 1119; Brill v. Davajon (1964), 51 Ill. App. 2d 445, 450, 201 N.E.2d 253, 255.) If defendant produces such evidence, the presumption disappears, and the overall burden of proving agency remains on plaintiff where it started. Brill, 51 Ill. App. 2d at 450, 201 N.E.2d at 255-56; see also McElroy v. Force (1967), 38 Ill. 2d 528, 232 N.E.2d 708 (discussing operation of presumptions in an automobile case).

Whether the evidence adverse to the presumption is sufficient to overcome it, or whether the plaintiff has met his burden of proof, are usually questions for the trier of fact. (Brill, 51 Ill. App. 2d at 450, 201 N.E.2d at 256; Paulsen v. Cochfield (1935), 278 Ill. App. 596, 607-OS.) However, they may become questions of law if the evidence is of such a character that but one reasonable deduction can be made. If the evidence adverse to the presumption is strong and unquestionable, and if the plaintiff introduces no evidence to sustain his burden, a verdict may be directed for the defendant. Brill, 51 Ill. App. 2d at 450-51, 201 N.E.2d at 256; Paulsen, 278 Ill. App. at 607-08.

In this case, we believe that P & M has presented facts which not only overcome the presumption of agency arising from its admission of ownership of the van, but also entitle P & M to judgment as a matter of law. Smith’s deposition testimony clearly shows that not only had Smith completed his normal day’s work, which ended near 4 p.m., but had arrived at home, showered and eaten dinner. After dinner, Smith then proceeded with his wife in the van to his stepdaughter’s salon to pick up their grandson. The two arrived at about 7 p.m. Smith made this trip only after his stepdaughter called him at home and requested his services to repair her air-conditioner. Smith and his wife next proceeded with their grandson to the stepdaughter's house, arriving some time after 7 p.m. After completing the repairs at 10:45 p.m., Smith went swimming for an hour. Smith had brought his suit from home knowing he would swim because it was a hot July night and he would be working outside. At about midnight, Smith and his wdfe proceeded home. The accident in question occurred during this return trip, some eight hours after Smith had completed his regular day’s work. Smith was not on call that evening.

In addition to the above facts, Smith testified that he charged his daughter no fee; he completed no customer paperwork; and that P & M knew nothing of the repair job until after the accident. Vaccaro confirmed these facts in his affidavit.

On the above record, the circuit court properly entered summary judgment in favor of P & M. Several Illinois cases support this conclusion.

Most recently, in Snodgrass v. Jones (C.D. Ill. 1991), 755 F. Supp. 826, aff'd (7th Cir. 1992), 957 F.2d 482, Jones was the special agent in charge (SAC) of the Springfield, Illinois, office of the Federal Bureau of Investigation (FBI) on October 17, 1986. Shortly after 1 a.m., Jones struck an automobile driven by Snodgrass.

During the evening of October 16, Jones left work at the FBI office in Springfield driving a government-owned automobile. As the SAC, Jones was issued a radio-equipped vehicle for his use because he was “on-call” 24 hours a day and often would proceed directly from his home or other location to the office or crime scene in the course of his duties. After leaving his office, Jones stopped for dinner then proceeded to a bar in Springfield. Five hours later, Jones left; the accident in question occurred shortly after Jones’ departure and while he was on his usual route home. Snodgrass, 755 F. Supp. at 827.

In finding that Jones, as a matter of law, was not acting within the scope of his employment at the time of the accident, the court rejected the argument that Jones was so acting because he “was a government employee, driving a government-owned vehicle which he had been authorized to use to maintain an emergency response capability, and at the time of the accident he was headed home along his usual route.” (Snodgrass, 755 F. Supp. at 829.) In its analysis, the court distinguished other Illinois cases in which an employee was injured after hours while driving a company vehicle but was on company business at the time of the accident.

The court also rejected the argument that Jones was returning to his employment after engaging in a “frolic.” The court noted that Illinois law has a two-pronged test to determine whether an employee engaged in a frolic has reentered his scope of employment. First, the employee must have formulated an intent to act in furtherance of his employer’s business; second, the intent must be coupled with a reasonable connection in time and space with the work in which he should be engaged. Snodgrass, 755 F. Supp. at 830.

Applying this test to the facts before it, the court believed that Jones met neither. Jones had neither formulated the intent to act as an FBI agent after leaving the bar nor did any reasonable connection exist with his position as an FBI agent. The court stated that, hypothetically, if Jones was responding to a call he had received while at the bar, a different case would exist. As no such call occurred, Jones was not acting within the scope of his employment.

On appeal before the Seventh Circuit Court of Appeals, the court affirmed, applying the same analysis, except the court did not readily accept the district court’s conclusion that Jones, while driving home following his frolic in the bar, was not in furtherance of his employer’s business. Snodgrass, 957 F.2d at 486.

We believe Snodgrass articulates the proper analysis to be applied in the instant case. Absent proof that Smith was returning from a fee-paying, P & M service call, the mere fact that Smith was driving a P & M van with P & M’s implicit approval at the time of the accident was insufficient to create an issue of fact. We believe that to hold otherwise would make P & M liable for Smith’s negligent driving no matter when Smith drove the van. The Snodgrass court rejected such interpretation of the scope of employment doctrine, noting that it would “stretch[ ] the meaning of the doctrine too far.” Snodgrass, 755 F. Supp. at 830.

Snodgrass also forecloses plaintiff from arguing that Smith was returning to his employment after engaging in a frolic. First, to deem the air conditioning job a frolic, plaintiff must inconsistently admit that the job was the “pursuit of an employee’s personal business *** unrelated to employment.” (Pyne, 129 Ill. 2d at 360, 543 N.E.2d at 1309 (defining frolic).) Second, like Jones in Snodgrass, Smith was not reasonably connected in time and space with the work in which he should be engaged. Like Jones, Smith was merely on his way home in the early morning hours after pursuing a private matter, some eight hours after finishing his normal day’s work.

Turnbow v. Hayes Freight Lines, Inc. (1957), 15 Ill. App. 2d 57, 145 N.E.2d 377, is consistent with Snodgrass. In Turnbow, the appellate court reviewed a trial court’s determination that defendant’s employee was within the scope of his employment as a matter of law at the time of an automobile accident in which plaintiff was injured. The evidence showed the employee to live in Louisville, Kentucky, with the accident occurring in East St. Louis, Illinois. The employee had just finished a 350-mile trip in a tractor-trailer and had dropped his trailer off at defendant’s lot. Having driven 10 hours, the employee was required by Interstate Commerce Commission rules to obtain at least eight hours of sleep. As there were no sleeping accommodations at defendant’s lot, the employee headed in defendant’s tractor to a nearby hotel. The accident causing injuries to plaintiff occurred on the way. In affirming the lower court’s ruling that the employee was within the scope of employment as a matter of law, the court stated:

“While he had not yet received a particular assignment for the following day, he was instructed by defendant to call in to ascertain his next job. From this factual situation, it seems clear that while the particular assignment given its employee by defendant had terminated, nonetheless, he was continuing to conduct himself within a framework of I.C.C. and company rules which were as much a part of his employment as the actual trip. Louisville, Kentucky, his home, was many miles away. Before his next assignment, he would have been required to certify that he had obtained sufficient rest and otherwise fulfilled I.C.C. & Company requirements. Therefore, in a real sense, defendant continued to exercise such direction and control over their driver. Since no factual dispute existed, the question became one of law and we believe the trial judge ruled properly thereon.” Turnbow, 15 Ill. App. 2d at 64, 145 N.E.2d at 380.

Accord McClean v. Chicago Great Western Ry. Co. (1954), 3 Ill. App. 2d 235, 121 N.E.2d 337 (employee in scope of employment as a matter of law where employee working abroad was required to drive company car after work to hotel for lodging); see generally, Annot., 51 A.L.R. 2d 120 (1957) (compiling cases analyzing whether employee is within scope of employment when operating employer’s vehicle outside regular working hours); 7A Am. Jur. 2d Automobiles & Highway Traffic §697 (1980) (same).

Applying Turnbow to the instant case, it is clear that P & M is entitled to judgment as a matter of law. Had Smith been returning towards home from a P & M service call at the time of the accident, a different situation would exist. Again, plaintiff has presented no evidence to show that the stepdaughter job was other than a personal favor for a close relative. Accordingly, summary judgment was appropriate.

Other than plaintiff’s citation of cases which stand for general propositions of law, the only authority plaintiff cites to support his position that summary judgment was improper is the following passage from Spiotta v. Hamilton (1970), 120 Ill. App. 2d 387, 394, 256 N.E.2d 649, 652:

“Nor was it error for the court to instruct the jury that Hamilton was an agent of the defendant Eagle Food Centers, Inc. as a matter of law. The testimony was undisputed that Hamilton would leave his home, go to his various stops, merchandise, sell and display Eagle Food Company bread and then return to his home without going to a home office to report. And he was driving a car that was given to him by the corporate defendant. The evidence raised no question of fact for the jury to decide on the question of agency. See Urban v. Industrial Commission, 34 Ill. 2d 159, 161-64, 214 N.E.2d 737 (1966).”

We are not persuaded by Spiotta. Nowhere in the facts of the case is the reader informed what Hamilton was doing at the time of the accident. Given the court’s citation of Urban, however, he must have been working. In Urban, the supreme court reinstated an arbitrator’s award to a widow whose husband was killed in an automobile accident while working as a travelling salesman. The issue before the arbitrator and the court was whether, for purposes of workmen’s compensation, the decedent sustained accidental injuries arising out of and in the course of his employment. The court applied the following rule:

“Ordinarily it is held that accidents that occur while an employee is going to or from his place of employment do not arise out of and in the course of employment, [citation] but this is not true where the employee’s trip is determined by the demands of his employment. [Citation.] One of the well recognized exceptions to the general rule of noncompensability involves traveling salesmen whose duties require them to travel from place to place. The decisions of this court as to traveling salesmen reveal that ‘It has uniformly been held that when an employee travels for his employer and returns after working hours he remains in the course of his employment on the way to his home.’ ” Urban, 34 Ill. 2d at 161-62, 214 N.E.2d at 739, quoting Irwin-Neisler & Co. v. Industrial Comm’n (1931), 346 Ill. 89, 93, 178 N.E.2d 357.

Accord Pyne, 129 Ill. 2d at 356, 543 N.E.2d at 1307 (“exception exists for employees who are caused by their employers to travel away from a regular workplace or whose travel is at least partly for their employers’ purposes rather than simply serving to convey the employees to or from a regular jobsite”).

In summary, while Smith was performing “conduct” of the kind P & M employed him to perform, the conduct did not occur substantially within authorized time and space limits nor was it actuated in any way by a purpose to serve his master. (Restatement (Second) of Agency §228 (1958).) The accident occurred well after Smith had quit work for the day (some eight hours) and during Smith’s return trip home from an errand which was actuated by Smith’s own purpose. The lack of a purpose to serve P & M is made evident by the fact that the trip never would have been made had the stepdaughter cancelled. As Justice Cardozo once noted:

“ '*** [I]f the journey would have gone forward though the business errand had been dropped, and would have been can-celled upon the failure of the private purpose, though the business errand was undone, the travel is then personal and personal the risk.’ ” (McClean, 3 Ill. App. 2d at 242, 121 N.E.2d at 340, quoting Marks’ Dependents v. Gray (1929), 251 N.Y. 90, 94, 167 N.E. 181, 183.)

Justice Cardozo’s comments are particularly appropriate here.

We now address plaintiff’s claim that the pendency of certain discovery matters precluded the court from entering summary judgment. To place this issue in its proper light, we briefly set forth the posture this case had at the time defendant’s summary judgment motion was heard.

The accident in question occurred on July 23, 1986, and plaintiff filed his complaint on September 10, 1987. On February 23, 1988, plaintiff filed a production request seeking Smith’s income tax returns for the years 1986-1988. Smith objected to this request on March 15, 1989. Plaintiff brought no motion to compel disclosure.

On April 4, 1989, plaintiff filed another production request seeking: (1) documents of sale of the van in question; (2) all daily logs, time cards, and job assignments of Smith between July 7 through 24, 1986; (3) Smith’s personnel file; and (4) P & M’s “corporate” documents. P&M objected to this request on May 2, 1989, and no motion to compel was filed.

The case retained this discovery posture until P&M filed its summary judgment motion on May 17, 1990. Plaintiff followed with filing on June 22, 1990, a motion to compel Smith to produce the requested income tax forms and a production request duplicating his prior April 4,1989, request.

In opposition to defendant’s summary judgment motion, plaintiff’s counsel, in addition to contesting the propriety of summary judgment on the merits, contended that summary judgment was premature due to pending discovery. Counsel filed an affidavit pursuant to Supreme Court Rule 191(b) (134 Ill. 2d R. 191(b)) to support her argument that summary judgment was premature. In this affidavit, counsel noted the above pending discovery matters, as well as her inability to depose Thomas Vaccaro, P & M’s service manager. Plaintiff originally noticed Vaccaro for deposition in February 1989. The deposition was rescheduled on numerous times after this original notice. In July 1990, plaintiff learned from P & M’s counsel that P & M no longer employed Vaccaro and that he was living in Naples, Florida.

Counsel’s affidavit also recited the unavailability of a towing report regarding P & M’s van. Plaintiff had requested a copy of the report from P & M by letter dated May 3, 1989. This letter reveals that plaintiff knew the name and address of the towing company. P & M never responded to the letter.

Counsel’s affidavit concluded by arguing that the pendency of the above discovery matters rendered summary judgment premature. Counsel claimed that resolution of these discovery matters would impact on the scope of employment issue and are “material and indispensable” to plaintiff’s case in chief and his ability to respond to defendant’s motion.

Supreme Court Rule 191(b) specifies the procedure to be followed where additional discovery is needed in regard to summary judgment proceedings. The rule provides:

“If the affidavit of either party contains a statement that any of the material facts which ought to appear in the affidavit are known only to persons whose affidavits affiant is unable to procure by reason of hostility or otherwise, naming the persons and showing why their affidavits cannot be procured and what affiant believes they would testify to if sworn, with his reasons for his belief, the court may make any order that may be just, either granting or refusing the motion, or granting a continuance to permit affidavits to be obtained, or for submitting interrogatories to or taking the depositions of any of the persons so named, or for producing papers or documents in the possession of these persons or furnishing sworn copies thereof.” (Emphasis added.) (134 Ill. 2d R. 191(b).)

Failure to comply with Rule 191(b) defeats an objection on appeal that insufficient time for discovery was allowed. Schultz v. Hennessy Industries, Inc. (1991), 222 Ill. App. 3d 532, 584 N.E.2d 235; Rush v. Simon & Mazian, Inc. (1987), 159 Ill. App. 3d 1081, 513 N.E.2d 100; Wooding v. L & J Press Corp. (1981), 99 Ill. App. 3d 382, 425 N.E.2d 1055; Rogers v. Robson, Masters, Ryan, Brumund & Belom (1979), 74 Ill. App. 3d 467, 392 N.E.2d 1365, aff'd (1980), 81 Ill. 2d 201, 407 N.E.2d 47.

We believe that the trial court did not err in granting P & M’s motion for summary judgment. Plaintiff’s Rule 191(b) affidavit was fatally defective. First, the affidavit was signed by plaintiff’s attorney, whereas the rule requires that the affidavit be signed by the party. (Rush, 159 Ill. App. 3d at 1085, 513 N.E.2d at 103.) Second, the affidavit does not contain the necessary disclosures required under the rule. Counsel alleges in only a general sense that the above discovery matters may impact on the scope of employment issue. This is not compliance with the rule. The affidavit must state specifically what the affiant believes the prospective witness would testify to if sworn and reasons for the affiant’s belief. (Rush, 159 Ill. App. 3d at 1085, 513 N.E.2d at 103.) The crucial fact in this case is whether the air conditioning job was indeed a favor for Smith’s stepdaughter or whether it was an official P & M service call. Merely alleging that certain discovery matter may shed light on the scope of employment issue is a general assertion, not a fact. Rule 191(b) requires facts, not conclusions. Rush, 159 Ill. App. 3d at 1085, 513 N.E.2d at 103.

Apart from plaintiff’s Rule 191(b) failure, plaintiff had ample opportunity to discover facts in opposition to defendant’s motion for summary judgment. Plaintiff had nearly three years between the filing of his suit and defendant’s motion for summary judgment. Plaintiff had an additional six months following the summary judgment motion to prepare his defense to defendant’s dispositive motion. Given the above time frames within which plaintiff could have made appropriate discovery, we are not persuaded that the circuit court prematurely granted summary judgment against plaintiff. See Johnson v. Matviuw (1988), 176 Ill. App. 3d 907, 913, 531 N.E.2d 970, 974 (and cases cited therein); Kittleson v. United Parcel Service, Inc. (1987), 162 Ill. App. 3d 966, 516 N.E.2d 350; Hanes v. Orr & Associates (1977), 53 Ill. App. 3d 72, 368 N.E.2d 584.

For the foregoing reasons, the order of the circuit court of Cook County granting summary judgment to P & M is affirmed.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


text:
    DINA MUELLMAN, Plaintiff-Appellee, v. THE CHICAGO PARK DISTRICT, Defendant-Appellant.
    First District (1st Division)
    No. 1—90—1458
    Opinion filed August 24, 1992.
    Donald J. Suriano, of Chicago Park District, and Paul Stephanides, both of Chicago, for appellant.
    Patrick J. Moran, of Chicago, for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises from an action brought by plaintiff Dina Muellman to recover damages for injuries she sustained when she stepped into an open pipe. Plaintiff alleged that defendant Chicago Park District’s willful and wanton conduct resulted in her being injured. Judgment was entered in favor of plaintiff. Defendant now appeals.

Plaintiff’s original complaint was stricken for failure to plead willful and wanton conduct against defendant. Plaintiff filed a first-amended complaint containing three counts. The circuit court struck counts I and III. In remaining count II, plaintiff alleged that defendant willfully and wantonly (1) failed to inspect drains, (2) removed a drain cover, (3) failed to replace the drain cover, and (4) failed to barricade the area or prohibit people from using the area.

During the bench trial, plaintiff called occurrence witnesses, Kevin O’Brien and Robert Hall, who had accompanied her to an outdoor concert in Grant Park. Their testimony corroborated plaintiff’s.

Plaintiff testified that on June 7, 1985, at approximately 6:15 p.m., she, her sister, O’Brien and Hall entered Grant Park at Balbo Street to attend the Blues Festival, which was being held at the band shell about two blocks north of where they entered. There was a crowd of people walking in the same path across the park. There were no signs, fences or chains prohibiting people from walking along that path. In this area there were shut off valves which were about 3V2 inches in diameter and protruding approximately one to two inches above the ground. The shut off valves (hereinafter referred to as pipes) customarily had a metal cover bolted to the top.

Plaintiff testified that while walking in the park toward the band shell, she stepped into an uncovered pipe, causing her to fall and fracture her ankle. Since the grass around the pipe was about four to five inches high, the pipe was concealed.

In addition to corroborating plaintiff’s testimony, Hall, who was a stationary engineer and familiar with cast iron pipes, testified without objection that there was no lid on the pipe and that it was rusty colored. Further, Hall opined, based on his experience, that the pipe had been uncovered for more than one month.

Ronald Kruml, a labor foreman for defendant, testified that the grass in Grant Park was never cut to less than 21/2 inches high. Kruml stated that the pipe lids can be removed by merely unscrewing a bolt. Kruml also testified that there was no planned program for inspecting the lids. Additionally, Kruml explained that when mowing the grass, the lids to the pipes could be knocked off; therefore, he and a few other men painted some of the pipes yellow and orange. However, Kruml and those men painted only those pipes which they felt could damage defendant’s mowing equipment. Kruml testified that when choosing the pipes to paint, defendant was not concerned about the pipes which were closer to the ground where people might trip over them.

William Cotton testified that at the time plaintiff sustained her injury, he was defendant’s supervisor of lawn maintenance, garbage removal and beach sanitation. Cotton testified that it was common knowledge of defendant’s personnel that the lids of the pipes were being stolen. Cotton also testified that defendant did not have any policies regarding the inspection of these pipes. Further, Cotton stated that the pipes had not been used in 26 years.

After the bench trial, defendant moved for a directed verdict. The circuit court denied the motion. Thereafter, the circuit court judge rendered a verdict in favor of plaintiff in the amount of $8,500 plus costs. The circuit court judge found that plaintiff was not contribu-torily negligent. The circuit court also denied defendant’s motion for reconsideration. Defendant appeals the denial of the above motions and the judgment order.

Plaintiff was injured on a pipe located in Grant Park, which is maintained by defendant as a recreational property under the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1987, ch. 85, par. 3—106). Under section 3—106 of the Act, a local public entity cannot be held liable “where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks *** unless such local entity *** is guilty of willful and wanton conduct proximately causing such injury.” Ill. Rev. Stat. 1987, ch. 85, par. 3-106.

Defendant is a local public entity within the meaning of section 1—206. (See Ill. Rev. Stat. 1987, ch. 85, par. 1—206.) Willful and wanton conduct is defined as “a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others.” Ill. Rev. Stat. 1987, ch. 85, par. 1—210.

As stated, defendant appeals the judgment order and the denial of its directed verdict. The arguments pertaining to the judgment and the directed verdict are treated together in the paragraphs below.

Relying on Pinto v. DeMunnick (1988), 168 Ill. App. 3d 771, 523 N.E.2d 47, and Palermo v. City of Chicago Heights (1971), 2 Ill. App. 3d 1004, 276 N.E.2d 470, defendant argues that plaintiff presented no evidence of willful and wanton conduct. These cases are distinguishable from the instant case. In Pinto, the plaintiff was injured when she fell in a hole located in the parkway. The plaintiff argued that the village should have inspected its parkways for holes. The village argued that the plaintiff did not establish that it had notice of the hole. (Pinto, 168 Ill. App. 3d at 774, 523 N.E.2d at 49.) In Palmero, the plaintiff fell on a meter box which extended IV2 inches above the ground due to the box’s cover being loosely attached. The court ruled that where the condition had existed only for two to four weeks and the cover was not plainly visible, the city did not have constructive notice. Palmero, 2 Ill. App. 3d at 1008, 276 N.E.2d at 473.

In the instant case, not only did defendant know that the pipes existed, defendant was aware and acknowledged the danger of pipes protruding from the ground by painting them so machine operators could readily see and avoid the pipes. Defendant, however, consciously disregarded the safety of the general public by painting only those pipes which it determined could damage defendant’s equipment. Moreover, an employee of defendant testified that it was common knowledge among defendant’s personnel that pipe lids were being stolen. In addition, a witness testified without objection that in his opinion the particular pipe which caused plaintiff’s injury had its lid missing for at least one month.

The law in Illinois pertaining to directed verdicts and review of judgment orders is well settled. A verdict may be directed in favor of a movant if the evidence, when viewed in a light most favorable to the nonmovant, so overwhelmingly favors the movant that no contrary verdict based upon the evidence could ever stand. (Winston v. Board of Education (1989), 182 Ill. App. 3d 135, 139-40, 537 N.E.2d 964, 967.) Illinois law concerning the review of judgments is that judgment rendered in a bench trial will not be disturbed unless it is contrary to the manifest weight of the evidence. (Ruggio v. Ditkowsky (1986), 147 Ill. App. 3d 638, 642, 498 N.E.2d 747, 750.) Defendant, thus, when appealing a judgment order must present evidence that is so strong and convincing as to overcome completely the evidence in plaintiff’s favor. (Ruggio, 147 Ill. App. 3d at 642, 498 N.E.2d at 750.) We find that the evidence at trial proved that defendant’s willful and wanton conduct caused her injury. The circuit court, therefore, properly denied defendant’s motion for a directed verdict and the judgment order was not against the manifest weight of the evidence.

Lastly, defendant argues that the circuit court erroneously found that plaintiff was not contributorily negligent. The Illinois Supreme Court recently addressed the issue of whether a plaintiff’s negligence can be compared with the willful and wanton conduct of a defendant, even if the defendant is protected by the Act. (Burke v. 12 Rothschild’s Liquor Mart, Inc. (1992), 148 Ill. 2d 429, 593 N.E.2d 522.) The Illinois Supreme Court held that a plaintiff’s negligence cannot be compared with a defendant’s willful and wanton conduct. (Burke, 148 Ill. 2d at 451-52, 593 N.E.2d at 532.) Defendant’s argument, thus, is meritless.

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

Affirmed.

O’CONNOR and MANNING, JJ., concur.