author: PRESIDING JUSTICE LORENZ

text:
    MARIA YAZZIN, Plaintiff-Appellant, v. MEADOX SURGIMED, INC., Defendant-Appellee.
    First District (5th Division)
    No. 1—90—1123
    Opinion filed December 27, 1991.

      James C. Harman, of Thomas R. Cirignani & Associates, of Chicago, for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Thomas R. Nelson, Michael A. Pollard, and Michael L. Morkin, of counsel), for appellee.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Maria Yazzin, appeals from the entry of summary judgment in favor of defendant, Meadox Surgimed, Inc., on counts III and IV of her amended complaint. We consider whether this court has jurisdiction over plaintiff’s appeal when her post-trial motion was stricken and a notice of appeal was filed more than 30 days later. For the following reasons, we dismiss the appeal.

Plaintiff filed a five-count complaint, as amended, against several parties alleging that she was injured when a catheter deflated during surgery. In count III, she alleged that defendant manufactured the catheter which was not reasonably safe for its intended use, and in count IV, she alleged that defendant breached an implied warranty of merchantability. Counts I, II, and V of the complaint are not involved in this appeal.

Defendant answered the complaint and denied the material allegations. After some discovery was completed, defendant filed a motion for summary judgment on counts III and IV which was granted on December 28, 1989. The other counts of the complaint were no longer pending at that time.

Within 30 days, plaintiff filed a post-trial motion which she scheduled for a hearing on February 9, 1990. On that date, plaintiff’s counsel failed to appear in court and an order was entered striking the post-trial motion. Six days later, on February 15, plaintiff filed a “Re-Notice of Motion” and scheduled another hearing for the post-trial motion. On March 22, 1990, a hearing was held and an order was entered denying the post-trial motion. A transcript of the proceedings for that date was not included in the record on appeal. Plaintiff filed a notice of appeal on April 17,1990.

Opinion

Defendant challenges this court’s jurisdiction over plaintiff’s appeal. Defendant first argues that plaintiff filed successive post-trial motions which did not extend the time to file a notice of appeal. Plaintiff responds that she only filed one post-trial motion.

Supreme Court Rule 303(a)(1) provides that a timely post-trial motion, attacking a final judgment, tolls the time for filing a notice of appeal. (134 Ill. 2d R. 303(a)(1).) A notice of appeal must be filed “within 30 days after the entry of the order disposing of the last pending post-trial motion.” (134 Ill. 2d R. 303(a)(1).) However, a second post-trial motion, filed after denial of the first, raising arguments that were raised or could have been raised in the first motion, does not toll the time for filing a notice of appeal. Sears v. Sears (1981), 85 Ill. 2d 253, 422 N.E.2d 610.

In this case, plaintiff did not file successive post-trial motions. After her first post-trial motion was stricken, she did not refile it or file a second post-trial motion. Instead, she only filed another notice of motion rescheduling the hearing. Therefore, the present case does not involve successive post-trial motions and Sears is not directly applicable here.

Defendant also argues that plaintiff abandoned her post-trial motion relying on Richey Manufacturing Co. v. Mercantile National Bank (1976), 40 Ill. App. 3d 923, 353 N.E.2d 123. In Richey, judgment was entered against plaintiffs. They filed a timely post-trial motion which was stricken when their counsel failed to appear at the scheduled hearing. Within 30 days of the date their motion was stricken, they filed a notice of appeal. The appellate court found that plaintiffs’ failure to present their post-trial motion to the trial judge for a ruling constituted an abandonment of their motion. Because plaintiffs filed their notice of appeal more than 30 days after the entry of the underlying judgment, the court did not have jurisdiction over the appeal.

Plaintiff contends that Richey can be distinguished from the present case. In Richey, after plaintiffs’ post-trial motion was stricken, they filed a notice of appeal. However, here, after plaintiff’s post-trial motion was stricken, she promptly refiled a notice of motion which led to a ruling on the merits. Plaintiff argues that under these facts, she did not abandon her motion.

Although Richey may support a holding here that plaintiff abandoned her post-trial motion, the additional question presented here is the effect of the order striking the motion and the subsequent refiling of a notice of motion. Plaintiff assumes that the striking of her motion had no effect and merely left it pending, as if it had been entered and continued, ready to be rescheduled for another hearing.

In American National Bank & Trust Co. v. Bus (1991), 212 Ill. App. 3d 133, 569 N.E.2d 1377, the court considered the effect of striking a motion for sanctions more than 30 days after judgment was entered. Such a motion must be filed within 30 days of a final judgment. The court stated, in dicta, that striking the motion for sanctions would have been tantamount to denying it because it could not have been refiled if it was stricken more than 30 days after the judgment. The court assumed that if the motion for sanctions was stricken, it was no longer pending.

Similarly, here, the post-trial motion had to be filed within 30 days of final judgment. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1203(a).) When it was stricken more than 30 days after judgment, it was no longer pending and could not be refiled. The order striking the motion was not vacated. As a result, when plaintiff refiled a notice of motion, it had no effect because there was no motion pending. Further, filing the notice of the post-trial motion did not toll the time to file a notice of appeal. (See Sears, Roebuck & Co. v. Industrial Comm’n (1980), 79 Ill. 2d 59, 402 N.E.2d 231 (filing a notice of a post-trial motion within 30 days of judgment, without an accompanying motion, was insufficient to toll the time for filing an appeal).) Even assuming that the order striking plaintiff’s post-trial motion “disposed” of it under Rule 303(a), plaintiff’s notice of appeal filed more than 30 days later was not timely filed and, as a result, this court does not have jurisdiction.

Plaintiff does not argue on appeal that the March 22 hearing on the post-trial motion revested the trial court with jurisdiction. Arguments not raised are waived. (134 Ill. 2d R. 341(e)(7).) Even if the issue was not waived, the transcript of proceedings for that date was not in the record on appeal. Because the appellant has the duty to present a complete record on appeal, any doubts arising from an incomplete record are resolved against the appellant and issues which depend on facts not in the record mandate affirmance. (Firkus v. Firkus (1990), 200 Ill. App. 3d 982, 558 N.E.2d 554.) As a result, any doubt as to whether the proceedings on March 22 re-vested the court with jurisdiction must be resolved against plaintiff.

Appeal dismissed.

MURRAY and GORDON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
      In re ASBESTOS CASES (Cornelius Mulligan et al., Plaintiffs-Appellees, v. Keene Corporation et al., Defendants-Appellees (Allied Signal, Inc., Defendant-Appellant)).
    First District (5th Division)
    No. 1— 91—1305
    Opinion filed December 27, 1991.
    Kathleen M. Gibbons, of Tressler, Soderstrom, Maloney & Priess, of Chicago, for appellant.
    Robert H. Riley, Barbara E. Hermansen, Catherine Masters Epstein, and Heidi Dalenberg, all of Schiff, Hardin & Waite, of Chicago, for appellee Keene Corporation.
    Cooney & Conway, of Chicago (William R. Fahey and Kathy Byrne, of counsel), for other appellees.
   JUSTICE MURRAY

delivered the opinion of the court:

Appellant, Allied Signal, Inc. (Signal), appeals from an order of the circuit court of Cook County which created an “Asbestos Deferred Registry” (registry).

According to the 16-page order dated March 26, 1991, the registry is a court-supervised repository wherein certain asbestos-related personal injury claims filed in Cook County must be placed and kept on a deferred or inactive docket until such time, if ever, that the claimant develops a prescribed degree of impairment or disability arising from his contact with asbestos. Although the order affects several hundred plaintiffs and numerous defendants involved in more than 1,000 underlying actions already filed in Cook County, as well as all of the parties in the many actions expected to be filed, Signal is the only party appealing the circuit court’s entry of the order establishing the registry.

Initially, Signal contends that the order establishing the registry is, in effect, an injunctive order and, as such, is appealable pursuant to Supreme Court Rule 307(a) (134 Ill. 2d R. 307(a)). Additionally, Signal contends that the trial court abused its discretion in forming the registry because the registry circumvents the Illinois statute of limitations and statute of repose and because the registry violates Signal’s rights under both the Federal and State constitutions by denying Signal its right to trial by jury, due process of law and equal protection under the law.

Before we address Signal’s appeal, we shall provide a brief procedural history of the matter before us and explain the evolution of the order being appealed from.

On December 30, 1987, a complaint was filed in the name of 134 plaintiffs against some 20 or more defendants, alleging injury as a result of exposure to asbestos. Subsequently, on May 24, 1988, plaintiffs’ attorney filed a proposal asking the court to consider forming a “pleural registry,” i.e., an inactive docket system for those plaintiffs diagnosed as having only slight evidence of asbestos-related disease. The petition indicated that there was precedent in other jurisdictions for the formation of such a registry. It also suggested that the formation of such a registry would provide a “practical solution” for the court in its attempt to control its own docket and administer the large number of asbestos-related cases already in the system, as well as those expected to enter the court system. Further, the proposal indicated that the registry would provide a method whereby plaintiffs, who showed only some small sign of asbestos-related injury but who were forced to file a claim in order to preserve their rights, could defer their cause of action to such time, if ever, that their condition progressed to disability.

A number of defendants objected to the formation of the registry, and they expressed their position to the court in a response memo dated May 26, 1988. At the same time, these defendants filed a motion to dismiss the filed complaint, contending that the 134 plaintiffs were improperly joined in the single complaint. As a result, on July 5, 1989, plaintiffs’ complaint was stricken with leave to refile.

On January 22, 1990, a first amended complaint was filed on behalf of 127 plaintiffs and once again, on June 28, 1990, certain defendants moved to dismiss. Nevertheless, counsel for other defendants, instead of joining the motion to dismiss, joined with counsel representing various plaintiffs in filing a motion on August 13, 1990, asking the court to establish a “deferred asbestos docket.” The motion was the product of a unified effort of some plaintiffs’ and defense attorneys involved in asbestos litigation to create a procedure that would allow for the best utilization of the court’s time and resources in the management of asbestos personal injury cases. The motion included certain mutually agreed-upon, objective medical criteria that could be used to determine when a plaintiff should enter or exit a deferred docket.

Several parties filed a response to the motion, some in support of the motion and some in opposition to it. In addition, other attorneys filed with the court, for its review, copies of orders entered by other jurisdictions which had already created deferred asbestos dockets.

At a hearing held on January 3, 1991, the court expressed its inclination to agree to the establishment of a deferred docket and asked that counsel representing both plaintiffs and defendants meet and review the documents which established deferred dockets in New York and Baltimore so that an agreed order might be presented to the court which would establish the criteria for a deferred docket registry.

On March 26, 1991, an order “agreeable in substance” to nearly all the parties was tendered to the court. After some discussion and fine-tuning of certain details of the order and over the objections of a few parties opposing it, the court agreed to sign the 16-page order, which established a deferred docket registry for asbestos-related litigation.

Although our recitation of the procedural facts explains how the court order came about, it does not explain why it came about. To understand why, it is necessary to consider other factors.

According to statistics provided by plaintiffs-appellees’ brief, taken from a report filed with the United States Bankruptcy Court, there are more than 100,000 asbestos-related personal injury claims presently pending in courts across the United States today and more than 366,000 claims are projected to be filed in the future. The degree of disability or disease in these claimants ranges from extremely mild (claimants who show some evidence of “pleural plaques,” i.e., patches of thickening of the lining of the lungs) to severe (claimants who are inflicted with asbestosis, mesothelioma or cancer). Apparently, the largest percentage of claimants exhibit only minor asbestos-related injury and often have no measurable impairment or disability at the time they file their cause of action. These claimants have chosen to file actions, however, because they are aware of the latent and progressive nature of asbestos-related disease and because they fear that their claims might be barred by the statute of limitations if they wait until such time, if ever, that their asbestos-related condition progresses to disability. They justifiably believe that their knowledge that they possess nondysfunctional asbestos-related changes in their lungs places them on notice sufficient to start the statute of limitations time clock running. Consequently, there has been a massive influx of asbestos-related personal injury claims into the court system.

Due to the sheer volume, as well as the complexity of these asbestos cases, the court system is becoming clogged. Furthermore, considering the number of actions expected to be filed in the future, the unfortunate reality is that many of the most severely affected claimants might be unable to gain access to the courts in a timely fashion if the courts are required to consider each case as it is filed and without regard to the severity of the injury. For this reason courts have perceived the need to create new procedures whereby they might manage and control this great volume of cases in a more orderly fashion, allowing the more severely impaired claimants to have their claims determined more expeditiously, while allowing the more mildly affected claimants to preserve their rights but defer their claims to a point in time when, if ever, their injury becomes more pronounced.

To accomplish this goal several courts in other jurisdictions have created deferred docket registries, similar to the one being challenged here. We are now asked to rule upon whether the circuit court of Cook County has the authority to enter an order establishing a deferred docket registry and whether it was proper for the court to have done so.

The first issue to be addressed, however, is whether this reviewing court has jurisdiction to consider the appeal. If this court’s jurisdiction has been invoked at all depends on whether the order is deemed an injunction. If it is not, the order is nonappealable since it does not dispose of the some 1,000 or so underlying cases, nor does it contain the necessary language that no just reason exists to delay the appeal or enforcement of the order. 134 Ill. 2d R. 304(a).

Signal contends that the order is “injunctive in nature” and, as such, appealable pursuant to Supreme Court Rule 307(a). The appel-lees who have filed briefs -with this court (which includes both plaintiffs and defendants involved in asbestos litigation) disagree. They argue that the order is not an injunction and that the questions raised by Signal are not ripe for appeal.

Certainly the order does not purport to be an injunction. Instead, it appears to be an attempt by an able judge and a goodly portion of the bar to bring some order to a chaotic situation. Nevertheless, we must delve deeper to determine whether the order constitutes an injunctive order since, as stated in In re A Minor (1989), 127 Ill. 2d 247, 260, 537 N.E.2d 292, it is the substance, not the form, that is controlling and actions having the force and effect of injunctions are appealable under Rule 307(aXl).

However, we find another passage from the In re A Minor opinion very instructive. It states:

“Not every nonfinal order of a court is appealable, even if it compels a party to do or not to do a particular thing. Orders of the circuit which can be properly characterized as ‘ministerial,’ or ‘administrative’ — because they regulate only the procedural details of litigation before the court — cannot be the subject of an interlocutory appeal. (See People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 171 (stating that discovery orders and subpoenas are not appealable interlocutory orders).) Such orders may be considered noninjunctive because they did not form part of the power traditionally reserved to courts of equity, but, instead, were part of the inherent power possessed by any court to compel witnesses to appear before it and give testimony. (See JFS v. ABMJ (1983), 120 Ill. App. 3d 261, 262.) They do not affect the relationship of the parties in their everyday activity apart from the litigation, and are therefore distinguishable from traditional forms of injunctive relief.” (Emphasis added.) 127 Ill. 2d at 261-62.

Based upon the above-cited reference, we must conclude that the order establishing the deferred docket registry is a nonappealable, noninjunctive order since it does not affect the relationship of the parties outside the parameters of the litigation. We believe that the order is best characterized as a ministerial or administrative one because it regulates the procedural details of litigation made complex because of numbers. Given the number of cases presently in the system, delay in litigating the claims is inevitable. Thus, the registry is a tool whereby the court may prioritize the litigation of cases already filed and an example of the court exercising its inherent authority to control its docket. For these reasons, we believe that this court has no jurisdiction to consider the merits of Signal’s appeal.

Even if we were to have found that this court had jurisdiction, we would question whether Signal’s challenge of the order could defeat it entirely or whether the order could only be found ineffective as it applied to Signal. This is because the order was essentially agreed to by the other parties, and even those parties who opposed it did not appeal and so apparently acquiesced to it.

Finally, our finding here does not, we believe, leave Signal without an opportunity for relief. Signal could still move to sever its cases from the registry under the provisions of section 2 — 1006 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1006.) If the trial court refuses to sever Signal’s cases, Signal may request the circuit court to insert in its order denying severance, the language set forth in Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), and then appeal that ruling. Alternatively, Signal could seek to appeal the court’s order under Supreme Court Rule 308 (134 Ill. 2d R. 308).

We do not, in any way, mean to suggest that Signal should take such alternative action, as discussed above. Nor do we mean to infer, by any of our comments in this opinion, the degree of success that any such appeal would have. We merely indicate that, at this time, the court is without jurisdiction to consider the present appeal. Consequently, the appeal is dismissed.

Dismissed.

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

       According to defendants-appellees’ brief, Allied Signal, along with Illinois Fiber Specialty and A & M Insulation, objected to the entry of the order establishing the registry, but only Signal appealed. Additionally, it appears that Signal is the named defendant in only two of the more than 1,000 asbestos-related cases pending in Cook County.

      See Re: Johns-Manville Corp. (Bankr. S.D.N.Y. May 16, 1991), Nos. 82—B—11656 (BRL) through 82-B-11676 (BRL), at 50-51, 97-99.

      According to defendant-appellee’s brief, 462 of the 1,000 or more cases presently in the Cook County circuit court system have been placed on the registry. This means that nearly half of the plaintiffs having asbestos-related cases pending in Cook County currently exhibit no disability and suffer no measurable impairment.

      Registries have already been established in the circuit courts of Baltimore, Maryland and Milwaukee, Wisconsin; the superior courts of Atlanta, Georgia, and Los Angeles, California; the supreme court of New York; and the United States District Courts of Hawaii, Connecticut, Northern Oklahoma, and Western New York.


author: PRESIDING JUSTICE RAKOWSKI

text:
    THE PEOPLE ex rel. NEIL F. HARTIGAN, Attorney General, et al., Plaintiffs-Appellants, v. AGRI-CHAIN PRODUCTS, INC., Defendants-Appellees.
    First District (6th Division)
    No. 1—91—1033
    Opinion filed December 27, 1991.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and John A. Morrissey, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Matkov, Salzman, Madoff & Gunn, of Chicago (Larry G. Hall, Kirk D. Messmer, and James D. Shepherd, of counsel), for appellees.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

This appeal arises from an order of the circuit court dismissing plaintiffs’ cause of action as barred by the statute of limitations. The issue on appeal is whether plaintiffs’ complaint was a private cause of action and thus barred by section 13 — 202 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13—202). We affirm.

Defendant-appellee Agri-Chain Products, Inc. (Agri-Chain or defendant), was an Dlinois corporation which ceased operation and terminated its employees in December 1985, and dissolved in March 1987. Defendant-appellee Robert L. Green had been the president of Agri-Chain. Although defendant claims that it paid all of its employees their accrued vacation time for 1985, 16 of the company’s former employees filed claims with the Department of Labor (Department), pursuant to the Illinois Wage Payment and Collection Act (Ill. Rev. Stat. 1985, ch. 48, par. 39M—1 et seq.) (Act), alleging that defendant failed to pay them severance pay as weU as their 1985 accrued vacation pay. On March 27, 1987, the Department conducted an administrative hearing and dismissed the claims for severance pay but concluded that defendant owed the claimants $45,645.75 in vacation pay. Defendant failed to pay the wage demand.

On January 23, 1990, the State filed a complaint in the circuit court based on information provided by the Department, which sought the vacation pay at issue as well as statutory penalties pursuant to section 14(b) of the Act. The State and Department are hereinafter jointly referred to as plaintiffs. In their answer and affirmative defenses, defendants claimed that they had paid the vacation pay at issue and also that plaintiffs’ cause of action was barred by the statute of limitations as set forth in section 13 — 202 of the Code of Civil Procedure. On December 3, 1990, defendants moved to dismiss based on the two-year statute of limitations. The plaintiffs claimed that the cause of action was not subject to the statute of limitations pursuant to the common law governmental immunity theory. Following a hearing on March 1, 1991, the circuit court granted defendant’s motion to dismiss, finding that plaintiffs’ complaint represented a private rather than a public cause of action and that it was barred by the statute of limitations.

Plaintiffs contend that the two-year statute of limitations contained in section 13 — 202 of the Code of Civil Procedure did not bar their complaint because the action was brought in the name of the State and involved a public right which provided them with immunity from the statute. The circuit court found that the cause of action at issue accrued when the wage demand was sent in March 1987. Because the complaint was not filed until January 23, 1990, it would be barred unless it was found to be a public cause of action which is not subject to section 13 — 202.

The policy underlying the doctrine of immunity from statutes of limitations is that the public should not suffer because of the negligence of its officers and agents in failing to promptly assert claims which belong to the public. (City of Shelbyville v. Shelbyville Restorium, Inc. (1983), 96 Ill. 2d 457, 461, 451 N.E.2d 874.) Shelbyville concerned a claim brought by a municipality seeking money damages and an order compelling the defendant, a builder, to construct certain streets in a subdivision. At the time that the city approved defendant’s subdivision plat and annexed the subdivision to the city, it had passed an ordinance which required as a condition of the annexation that certain streets be constructed in the subdivision without cost to the city. The builder failed to construct some of the streets and constructed others below specifications, so that the city had to construct or repair the streets at its own expense. The city then filed a complaint against the builder, and the builder invoked the statute of limitations. On appeal, the Dlinois Supreme Court addressed the issue of governmental immunity and whether a right being asserted by a governmental unit was one which belonged to the general public, the governmental unit or a small, distinct subsection of the public at large. (Shelbyville, 96 Ill. 2d at 462.) The court stated that the determining factor was the question of who would benefit by the government’s action and who would lose by its inaction. (Shelbyville, 96 Ill. 2d at 462.) The court addressed three factors which were the basis of its determination that the cause of action in Shelbyville was public in nature and, therefore, immune from the statute of limitations. These factors were the public interest in the workmanlike construction and maintenance of streets, the city’s statutory responsibility to ensure such construction and maintenance for public use and the expenditure of public funds to construct and maintain the streets which was caused by defendant’s failure to perform. Shelbyville, 96 Ill. 2d at 464-66.

In Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 476, 546 N.E.2d 580, the Illinois Supreme Court restated the Shelby-ville factors in more general terms as: (1) the effects of the interest on the public; (2) the governmental entity’s obligation to act on behalf of the public; and (3) the extent to which public funds must be expended. The A, C & S, Inc. case was a claim by 34 school districts against 78 suppliers and distributors of asbestos-containing materials (ACM), which sought recovery of costs expended for the removal or repair of the ACM found in school buildings. The removal or repair of the ACM was a requirement of all school districts pursuant to the Asbestos Abatement Act (Ill. Rev. Stat. 1985, ch. 122, par. 1401 et seq.). The defendant in this case also asserted the statute of limitations. The court concluded that there was an effect on the public because all of the school districts were involved as well as a public concern for the safety of school children and adults using the school buildings, that there was a statutory duty to ensure school attendance as well as a duty to abate ACM in school buildings and that millions of dollars would be expended by the schools for the removal of ACM which would be matched by State and Federal funds. The court thus concluded that the cause of action was a public one, and it was not barred by the statute of limitations. A, C & S, Inc., 131 Ill. 2d at 476-77.

Although the instant case is one of first impression and the two cases discussed involve different statutes, the criteria set forth in Shelbyville and A, C & S, Inc. provide guidelines for resolving the issue of whether the claim in this case was public or private. Applying the first criterion, we conclude that the interest asserted, which in this case is the recoupment of vacation pay allegedly owed to 16 former employees of defendant, is not one affecting the general public. Rather, the interest arises from a private employment contract between the former company and its employees, and it is only the interest of these 16 employees that will be directly affected by the outcome of this claim. It is also worth noting that the 16 employees would have been able to bring an action against defendant even if the Department or the State had not chosen to act in the employees’ behalf.

The second factor in Shelbyville is whether the State has a duty to act on behalf of the public. The court in Stafford v. Bowling (1980), 85 Ill. App. 3d 978, 407 N.E.2d 771, addressed this question in its review of whether the powers granted to the Department of Labor under the Act were discretionary or mandatory. The Stafford court concluded that while the Act provided several different ways that the Department could assist employees in the collection of their wages, it granted the Department discretion to choose which, if any, of the ways it could use. (Stafford, 85 Ill. App. 3d at 979.) The court also noted that “since no third party or public rights are involved in the assistance given to employees by the Department under the Wage Payment and Collection Act, the Act must be read as it is written.” (Stafford, 85 Ill. App. 3d at 982.) The court then concluded that the Act authorized governmental assistance to employees in the collection of their wages, but it did not require intervention in any particular case. (Stafford, 85 Ill. App. 3d at 982.) The court in Amigleo v. Bernardi (1988), 175 Ill. App. 3d 449, 456, 529 N.E.2d 1020, reached the same conclusion regarding the powers of the Department under a similar statute, the Minimum Wage Law (Ill. Rev. Stat. 1989, ch. 48, par. 1001 et seq.).

Not only is there no duty on the part of the State or the Department to act, but pursuant to section 11(b), the Department can only act on behalf of a particular employee if the employee allows it. Thus, without an assignment of a wage claim from the employee, the Department has no authority to file a civil action for the collection of wages. (See Stafford, 85 Ill. App. 3d at 980-81.) The court in Amigleo v. Bernardi also concluded that pursuant to section 12 of the Illinois Minimum Wage Law (Ill. Rev. Stat. 1985, par. 48, par. 1012):

“Any failure of the plaintiffs to recover the underpayments is not the result of the Department’s failure to act, but the result of plaintiffs’ own failure to institute a private suit ***.” Amigleo, 175 Ill. App. 3d at 456.

In their reply brief, plaintiffs argue that defendant’s reliance on Stafford is misplaced because, although that court addressed the same statute as in this case, the issue in Stafford was a common law writ of mandamus as opposed to the issue of whether the statute of limitations barred plaintiffs’ complaint. However, the determination of whether plaintiffs’ complaint is time barred is based on whether their cause of action is a public or a private claim. Pursuant to the ruling in Shelbyville, this assessment is made through the application of three factors. The second Shelbyville factor, which is whether the State has a duty to act on behalf of the public, is the same issue which the Staf ford court addressed in connection with the Act. Therefore, contrary to plaintiffs’ argument, the ruling in Stafford is dispositive of whether the plaintiffs’ participation in this case was mandatory or discretionary.

For the aforementioned reasons, we find the role of the State and the Department under the Act very different than the duty of the city in Shelbyville to provide properly constructed streets or in A, C & S, Inc. to insure that the schools were free from ACM.

The third Shelbyville factor is the extent to which public funds must be expended. In Shelbyville, the expenditure was the cost of street construction and repair, and in A, C & S, Inc., the school districts would be required to expend large sums of money for asbestos abatement. In both instances, the court focused on the amount of money that would be needed and the magnitude of the burden it placed on the public treasury. These circumstances are clearly not present in the instant case. The plaintiffs’ strained efforts to argue that the State treasury will be burdened by the loss of taxes on the unpaid vacation pay of 16 employees is meritless as are plaintiffs’ other arguments regarding this factor.

Plaintiffs rely on People ex rel. Martin v. Schwartz Oil Field Services, Inc. (1990), 203 Ill. App. 3d 903, 561 N.E.2d 201, in support of their contention that their claim should not be subject to the statute of limitations. However, Martin concerned the statute of limitations found in section 12(a) of the Minimum Wage Law which involved claims brought by individual employees and whether the three-year limitation period was also applicable to claims brought by the State under section 12(b) even though this section made no reference to a limitation period. (See Ill. Rev. Stat. 1989, ch. 48, par. 1012.) The court held that the State was not subject to the statute of limitations found in section 12(a) based on its analysis of the language of the statute and legislative intent. The court then stated that it “need not consider the issue of whether the common law governmental immunity to statutes of limitation[s] is applicable here.” (Martin, 203 Ill. App. 3d at 907.) The court then stated that if it had considered this doctrine, it would have found it applicable to that case because the right in question was a public as opposed to a private right. Martin, 203 Ill. App. 3d at 907. But see Amigleo (175 Ill. App. 3d at 456-57) (where the court found the powers of the Department to be discretionary and that a “logical interpretation of section 12 [of the Minimum Wage Law] would be to apply the three-year limitations period to 12(b) as well as 12(a), because both sections deal with suits against the employer brought directly by or on behalf of the employee”).

The decisions in Martin and Amigleo, which involve a different statute, are at best only persuasive to this case by way of analogy. However, to the extent that either one is relied on, we find Amigleo to be the greater authority where it more closely resembles and confirms the ruling in Stafford v. Bowling.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

EGAN and LaPORTA, JJ., concur.


author: PRESIDING JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BOBBIE DRISKEL, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—2817
    Opinion filed December 27, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Mark Stein, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Linda Woloshin, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

After a jury trial, defendant, Bobbie Driskel, was convicted of four counts of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9—1), attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9—1, 8—4), aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12—4), armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18—2), and residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19—3). He was sentenced to natural life imprisonment for the four counts of murder, to an extended term of 60 years’ imprisonment for the attempted murder, 30 years’ imprisonment on each of the five counts of armed robbery, and 15 years’ imprisonment for the residential burglary. On appeal, defendant asserts that (1) the compulsion defense should apply to felony murder charges; (2) the 50 graphic photographs depicting the victims’ injuries served no evidentiary purpose and were offered only to inflame the passions of the jury; and (3) Illinois law does not mandate natural life in prison for a person convicted of multiple homicides on the accountability theory because that is a mitigating factor not considered by the statute.

Codefendants Bobbie Driskel and Lawrence Jackson were charged with four murders and numerous other crimes in a 60-count indictment. Driskel asked for and received a separate trial. At their separate trials, both men were convicted, but Jackson was sentenced to death while Driskel was given natural life imprisonment.

On the night of September 24, 1986, Driskel and Jackson went to the Henry Horner Homes at 1850 W. Washington Street, Apt. 210, which was the home of Vernita Winder, to get money for drugs. Also living at that address were six-year-old Urica Winder, four-year-old Dana Winder, one-year-old Shanita Winder, Mark Brown, who was Shanita’s father, and Shirley Martin, who was Vernita’s friend. Mark Brown, known as Tiny, was Driskel’s first cousin.

Detective Patrick Foley testified that he interviewed Driskel at the police station at 2 p.m. on September 25, 1986. At that time, Driskel denied any knowledge of the incident. Later that afternoon, Driskel stated that O.C. Roland drove him and Jackson to the Chicago Housing Authority (CHA) Henry Horner Homes. Earlier that evening, Driskel had smoked cocaine with Jackson, who decided that they would have to steal something to get more cocaine. Driskel suggested that they go to 1850 W. Washington Street because he knew the people who lived there.

Driskel stated that Jackson knocked on the door while Driskel stayed by the stairwell. Tiny let Jackson into the apartment. A short time later, Jackson called Driskel to the door. When Driskel looked into the apartment, he saw Tiny sitting on the couch with blood on him, Vernita lying on the floor with blood on her, and one of the little girls lying on the floor with blood on her. At that point, Jackson picked up the television and VCR, and both men went down to Roland’s car. After driving off, Jackson leaned over and whispered to Driskel, “Man, I had to do it.”

At 4:30 p.m. on September 25, 1986, Detective Foley again spoke with Driskel, who stated that he went into the apartment after Jackson. Standing in the hallway near the door, Driskel saw Jackson stab Tiny and Vernita in the front room, Shirley by the bedroom, and the children in the bedroom.

Driskel later gave another oral statement during which he stated that he grabbed Shirley when she came out of the bedroom. He held her arms and head while Jackson stabbed her. Jackson then went into the bedroom, where he stabbed the two girls. Jackson picked up the television, Driskel took the VCR, and they carried the proceeds downstairs.

At 10:30 p.m. on September 25, 1986, Driskel told Detective Foley that he knocked on the apartment door. When Vernita asked who it was, Driskel identified himself. Vernita opened the door, let the two men inside, and went toward the bedroom. After seeing Tiny sitting on the couch, Driskel went into the kitchen, got a knife, walked back to the couch, and stabbed Tiny once before the knife broke. Driskel put the broken handle in his pocket. Jackson then stabbed Tiny.

When Vernita came out of the bedroom, Driskel pushed her back into the bedroom and grabbed her, but was unable to hold her. Vernita ran out of the bedroom and into the kitchen, where Driskel chased her. Driskel got a knife from the kitchen and began stabbing Vernita, but that knife also broke. He then picked up scissors and began stabbing her with the scissors. Jackson also stabbed Vernita.

At that point, Driskel and Jackson went back to the bedroom, where Driskel grabbed Shirley. After she got away, Jackson grabbed her and stabbed her. Jackson then stabbed one of the little girls on the bed. As the other little girl ran toward the front door, Jackson grabbed her and stabbed her. As the two men were taking the television and VCR, the first little girl ran out of the bedroom. Jackson pushed her down and Driskel stabbed her with the scissors, which were broken in half. Driskel and Jackson then took the television and VCR and went downstairs.

Assistant State’s Attorney O’Donnell interviewed Driskel on September 25, 1986, at 9 p.m. At 10:15 p.m., Driskel gave a court-reported statement. The next morning, O’Donnell went over the 21-page statement with Driskel, who made and initialed several corrections, then signed the statement. O’Donnell testified that there was a discrepancy in Driskel’s oral and written statements. In his oral statement to O’Donnell, Driskel stated that he and Jackson were going to burglarize the apartment. If there were people at home, they planned to rob them. During the court-reported statement, however, Driskel stated that they were supposed to leave if anyone was at home.

O’Donnell read the statement to the jury. In that statement, Driskel related that at 11 p.m. on September 24, 1986, Roland drove him and Jackson to 1850 W. Washington Street in the Henry Horner Homes, where Driskel and Jackson planned to burglarize the apartment. If people were at home, they were supposed to leave. Roland knew nothing about the plan.

When Driskel and Jackson went to Tiny’s apartment, Driskel knocked on the door. Vernita answered the door and let the two men inside. Driskel asked to speak to Tiny, who was asleep. Then, Driskel asked to use the bathroom. After coming out of the bathroom, Driskel went to the front room, where Tiny was lying on the couch. At that time, Jackson had an 18-inch butcher knife in his pants, but Driskel had no weapon. Driskel went into the kitchen, got a knife out of a drawer, and tried to stab Tiny, but the knife broke. Jackson then tried to stab Tiny, but Tiny began kicking him.

At that point, Vernita came out of the bedroom. Driskel pushed her back into the bedroom and told her to be quiet. When Jackson came into the bedroom, Vernita ran out and Driskel chased her. As she tried going out a window, Driskel grabbed her and tried to stab her, but that knife also broke, so he stabbed her with scissors more than once. Jackson then came in and stabbed Vernita.

Driskel then went to Shirley and held her in a headlock. She got away, but Jackson grabbed her and stabbed her. Later, Jackson stabbed one of the little girls on the bed and the other little girl ran and hid in the closet. Jackson followed her. When she ran out of the closet, Jackson stabbed her. As the first little girl ran out of the bedroom, Jackson pushed her down and Driskel stabbed her with scissors. Before leaving, Driskel and Jackson took the television and VCR.

After leaving the apartment, Driskel went to Phil Sims’ house, where he sold the television and VCR for $70 in cash and a $15 check. Driskel then went to Chicago Avenue, where he threw the scissors and knife handles into a sewer.

Urica Winder, who was eight years old at trial, was found competent to testify. She told the jurors that Driskel and Jackson came to her home on the evening of September 24, 1986. She knew Driskel, who was Tiny’s cousin, and had seen Jackson before. She let the two men in after Driskel identified himself. Her mother then sent her to her bedroom with her sister, Dana. Later, her mother brought her and Dana to the mother’s bedroom, where Urica saw Jackson, Driskel, and Shirley. Jackson, who had a 12-inch butcher knife in his hand, was standing in front of Shirley near the wall. When Shirley told Jackson that she loved him, Jackson responded that he did not love her and stabbed her in the heart.

Urica testified that Driskel then walked to the window, where he told Urica that he would not mess with her. Driskel, who had a knife and pen in his hand, then stabbed her in the stomach with the knife. After he stabbed her, Driskel dug at her guts with the pen that was in his other hand. After Urica was stabbed, both men left the room. As she tried to leave the apartment, Urica was stopped and stabbed again by Driskel. At that point, Urica played dead until both men left.

While lying still, Urica heard Driskel go to the dresser and say, “Damn, ain’t no money.” Later, Urica discovered that the other people had all been stabbed. When Urica was found the next morning, she told her cousin that “Tiny’s cousin Bobby did it.” Urica was then taken to the hospital for extensive treatment. While in the hospital, Urica identified Driskel’s photograph and picked Jackson’s photograph from a photo array.

When Driskel testified at trial, he denied stabbing Tiny, Vernita, Shirley, or Dana. He stated that Jackson suggested going to Tiny’s apartment to commit a burglary. If anyone was at home, they were supposed to leave. Driskel denied telling Assistant State’s Attorney O’Donnell that they were going to rob anyone who was at home. When Driskel and Jackson arrived at the apartment, Driskel knocked on the door and was surprised to find anyone at home.

Driskel testified that Vernita asked who it was and Driskel identified himself. When Vernita opened the door, Driskel asked to speak to Tiny, but Vernita told him that Tiny was asleep. Driskel then asked to use the bathroom. Both men entered the apartment and Driskel went to the bathroom, where he stayed for 10 to 13 minutes. While he was in the bathroom, he heard children crying and glass breaking.

Driskel left the bathroom, intending to leave the apartment, but saw Shirley lying in the bedroom doorway. There was blood on her and she looked dead. Driskel testified that he panicked and went to the front of the apartment, where he saw Tiny slouched over the couch, bleeding. Dana was standing between the couch and a window.

At that point, Driskel saw Jackson in the kitchen, bent over Vernita, stabbing her with a butcher knife. Driskel stated that he was scared at that time. Jackson got up and walked toward Driskel. Because Jackson still had the bloody knife in his hand, Driskel thought Jackson was going to kill him.

As Dana tried running away, Jackson grabbed her, pushed her to the floor, and stabbed her. Driskel stated that he wanted to help Dana, but coxdd not because Jackson had stabbed him before. Driskel then explained that Jackson stabbed him in 1985 when he tried stopping Jackson from beating up his wife, who was Jackson’s sister. Driskel received treatment for that wound at St. Anne’s Hospital.

When he saw Shanita standing near the couch, Driskel further testified, he picked her up and took her to the bedroom. While Jackson was stabbing Dana, Urica ran toward the front door. While pointing the knife, Jackson yelled at Driskel to get her and that no one could leave there alive. Driskel testified that he thought that also meant him. Driskel stated that Jackson said that there would be no witnesses, that either Driskel was part of it or not. Driskel said that he was scared and panicky.

When Driskel grabbed Urica, Jackson gave him a broken pair of scissors and told him to stab her. At first Driskel did not stab her and Jackson jumped off Dana and came toward Driskel, telling him to stab her. Driskel stated that he panicked and stabbed Urica twice. At that point, Jackson pushed Driskel into the wall and started stabbing Urica. Urica called Driskel’s name, but Driskel did not help her even though he wanted to. Driskel then left the apartment. When Driskel was on the stairs outside the apartment, he saw Jackson with a television set and a VCR. Jackson told Driskel to take the VCR, which he did.

Driskel denied telling anyone, “Damn, ain’t no money.” He testified that he acted under the threat of death from Jackson. Driskel stated that he is 5 feet 6 inches tall and weighs 150 pounds while Jackson is 6 feet 3 inches tall and weighs 275 pounds. He admitted that he never told any police officer or assistant State’s Attorney during any conversation that Jackson had forced him to do anything in the apartment that night.

Also testifying at the trial was Dr. Demetra Soter, who was Urica’s attending physician. Dr. Soter discussed Urica’s 48 stab wounds, including one to the heart and four to her diaphragm. Urica had eight hours of surgery to repair the massive damage to her body. Urica remained in the hospital for a month and suffers permanent damage. At the time of the trial, Urica was still receiving weekly psychiatric care. Numerous photographic exhibits accompanied Dr. Soter’s testimony. The defense unsuccessfully objected to the admission of the photographs as not probative of any issue in dispute and unnecessarily prejudicial.

Detective Steven Peterson testified that he investigated the murders on the morning of September 25, 1986. Vemita Winder was lying in the kitchen, Dana Winder and Mark Brown (Tiny) were in the front room, and Shirley Martin was in the bedroom. Peterson stated that several weapons were recovered. Half a pair of scissors was found in the kitchen under the baseboard radiator. A large butcher knife with splattered blood was found in the kitchen sink. Under Mark Brown (Tiny), there was a bent knife blade with no handle. One of the living room windows had been broken and there was blood on the window, window sill, and floor below the window.

Dr. Stein, Cook County’s chief medical examiner, performed autopsies on the four murder victims. Dr. Stein testified that Vernita Winder had 55 incise wounds, of which 11 or 12 were deeper stab wounds, including stab wounds to the neck, chest, interior chest, and back. There were also 14 defense wounds. Dr. Stein stated that the cause of Vernita’s death was multiple stab wounds to the carotid artery in her neck, heart, and lung.

Dana Winder suffered 19 incise wounds, including five stab wounds to the chest and one stab wound to the abdomen, which caused her intestines to protrude through her abdomen. Five of the wounds were defense wounds. Dr. Stein determined that the cause of Dana’s death was multiple stab wounds of the abdomen, heart, lung, and aorta.

Dr. Stein also testified that Mark Brown suffered “29 [sic]” incise wounds, of which 26 were stab wounds and five were defense wounds. There were wounds to the neck, head, interior chest wall, shoulder, arms, hand, leg, and a gaping wound to the foot. The cause of Mark’s death was multiple stab wounds to the carotid artery, lung, heart, and aorta.

Shirley Martin had 15 incise wounds. Seven were stab wounds and six were defense wounds. There were wounds to her breast, neck, face, jaw, shoulder, back, chest, and hands, and a gaping wound behind her ear. Dr. Stein testified that the cause of Shirley’s death was multiple stab wounds to the lung and aorta.

Several life and death witnesses testified. In addition, Alice Winder testified that when she went to the apartment in the morning and saw the bodies, Urica told her that Tiny’s cousin had killed them. Tomico Winder, who discovered the bodies, also testified. Philip Sims, Jr., testified that he purchased the television and VCR from Driskel and Roland. Finally, certified statements of Driskel’s convictions for burglary and robbery were entered into evidence along with photographs of the victims and the crime scene.

The trial court denied Driskel’s instructions on the compulsion defense as to the murder and felony murder charges because that defense did not apply. The trial court also denied Driskel’s compulsion instructions for the residential burglary and armed robbery charges because there was no evidence presented to support such instructions. The trial court allowed a compulsion instruction relating to the aggravated battery and attempted murder of Urica Winder and home invasion involving injury to Urica Winder. The jury found Driskel guilty of residential burglary, five counts of armed robbery, four counts of murder, and aggravated battery and attempted murder of Urica Winder.

Following stipulations to Driskel’s date of birth and the certified jury verdicts returned in the trial’s guilt phase, the jury found Driskel eligible for the death penalty. Specifically, the jury found that Driskel had murdered two or more persons, that Vernita Winder and Mark Brown were killed in the course of another felony, and that Dana Winder was under the age of 12 and her death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty.

After aggravation and mitigation was heard, the jury found mitigation sufficient to preclude the death penalty. The trial court found that Driskel’s conduct was brutal and heinous and the sentences were necessary as a deterrent. Sentencing Driskel to natural life without parole on each of the four counts of murder, the trial judge stated that he was obligated by statute to impose natural life on the murder charges. On the charge of attempted murder of Urica Winder, the trial judge imposed an extended-term sentence of 60 years’ imprisonment based on the brutal nature of Driskel’s action. On each of the five counts of armed robbery, Driskel received 30 years’ imprisonment. He also received 15 years’ imprisonment on the residential burglary charge. All the sentences are to run concurrently.

Driskel argues on appeal that the defense of compulsion should apply to felony murder charges. He contends that there was no evidence presented at trial that he ever stabbed three of the four murder victims. Driskel asserts that his court-reported statement contained admissions to stabbing only Vernita Winder, who died, and Urica Winder. Therefore, he concludes, it must be assumed that the jury applied the theory that the murder occurred while he was committing a forcible felony when it found him guilty of murder on at least three of the four counts. Based on that conclusion, Driskel asserts that People v. Gleckler (1980), 82 Ill. 2d 145, 411 N.E.2d 849, which upheld the constitutionality of the compulsion defense statute, is inapplicable because it did not address the situation where the defendant agrees to participate in a felony under compulsion (to which compulsion is a valid defense) and later murders someone in the course of that felony.

Driskel’s entire argument is based on a misinterpretation of the evidence presented at trial. Taking the evidence in the light most favorable to the prosecution, Driskel was guilty of murdering Vernita, Tiny, and Shirley either as a principal or an accomplice. This was not a situation where Driskel was compelled to commit armed robbery and had nothing to do with the murders. In an oral statement to Detective Foley, Driskel admitted holding Shirley while Jackson stabbed her. In another oral statement, Driskel admitted that he stabbed Tiny once before the knife broke and stabbed Vernita with a knife and scissors. Driskel also gave a custodial, court-reported statement during which he admitted stabbing Tiny, breaking the knife, and stabbing Vernita with a knife and scissors.

Based on all the evidence presented at trial, the jury found Driskel guilty of murdering all four victims. The jury then found Driskel eligible for the death penalty because he had murdered two or more persons (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(b)(3)), that Vernita Winder and Mark Brown were killed in the course of another felony (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(b)(6)), and Dana Winder was under the age of 12 and her death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(c)(7)).

The Illinois legislature specifically excluded offenses punishable with death from the compulsion defense. (Gleckler, 82 Ill. 2d at 154, 411 N.E.2d at 854; Ill. Rev. Stat. 1985, ch. 38, par. 7—11.) In Gleckler, the supreme court held that the compulsion defense is unavailable when a crime is committed under the conditions of section 9 — 1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(b)) because that crime may be deemed deserving of death. (82 Ill. 2d at 159, 411 N.E.2d at 855.) The Illinois compulsion defense statute provides:

“A person is not guilty of an offense, other than an offense punishable with death, by reason of conduct which he performs under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he reasonably believes death or great bodily harm will be inflicted upon him if he does not perform such conduct.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 7—11(a).

In interpreting a statute, the legislature’s intent should be ascertained and given effect. (People v. Bryant (1989), 128 Ill. 2d 448, 455, 539 N.E.2d 1221, 1224.) The statute’s language, which indicates that intent (People v. Murphy (1985), 108 Ill. 2d 228, 232, 483 N.E.2d 1288, 1289), must be given its plain and ordinary meaning. (Bryant, 128 Ill. 2d at 455, 539 N.E.2d at 1224.) Taking these rules of statutory construction into account, it is clear that the compulsion defense is not available for Driskel’s actions in killing Vernita, Tiny, and Shirley. Therefore, the trial court did not err in refusing to instruct the jury on the compulsion defense as to the murders.

Even if the compulsion defense had been available for the four murders, however, Driskel would not have been entitled to jury instructions on that defense because there was no evidence presented to support such instructions. The compulsion defense is a defense only for the conduct demanded by the compeller. (People v. Scherzer (1989), 179 Ill. App. 3d 624, 644, 534 N.E.2d 1043, 1057.) The only evidence presented to support instructions on the compulsion defense involved Driskel’s stabbing of Urica Winder, who did not die. Prior to trial, Driskel never told anyone that he was compelled to perform any of the acts to which he admitted. At trial, Driskel testified that Jackson gave him a broken pair of scissors and told him to stab Urica. Driskel stated that Jackson came at him with a knife in his hand and told him that there would be no witnesses, that he was either part of it or not. Driskel testified that he then panicked and stabbed Urica because he feared that Jackson would kill him if he did not stab her. Driskel never claimed to have stabbed any of the murder victims under compulsion by Jackson.

The jury was given a compulsion defense instruction for the attempted murder and aggravated battery of Urica Winder and the home invasion involving injuries to Urica Winder. The jury rejected that defense and convicted Driskel of attempted murder and aggravated battery. Driskel was not convicted on any of the home invasion charges.

Next, Driskel argues that the admission of over 50 gruesome photographs showing the injuries of the four murder victims served no evidentiary purpose and were offered only to inflame the passions of the jury since there was no dispute as to the time, manner, or cause of death. Driskel also asserts that the cumulative effect of the gruesome photographs was to unfairly prejudice the jury against him.

Even though photographs are gruesome and inflammatory, they may be admitted into evidence if they have sufficient probative value. (People v. Lefler (1967), 38 Ill. 2d 216, 221, 230 N.E.2d 827, 830.) For instance, they may be admitted into evidence if they are probative of the amount of force exerted to overpower and subdue the victims. (People v. Boyd (1980), 88 Ill. App. 3d 825, 849-50, 410 N.E.2d 931, 949.) Competent evidence cannot be excluded merely because it might arouse the jury’s feelings of horror and indignation. (People v. Foster (1979), 76 Ill. 2d 365, 375, 392 N.E.2d 6, 10.) In Boyd, where the defendant contended that his codefendant committed the murders alone, the court held that the gruesome photographs were relevant to whether one or two persons participated since the pictures depicted the amount of force used. Boyd, 88 Ill. App. 3d at 849, 410 N.E.2d at 949.

Similarly, the photographs in this case were probative of the amount of force exerted to overpower and subdue the victims and whether more than one person committed the offenses. They tended to show that the victims suffered a combined total of 166 incise wounds, including 73 stab wounds and 30 defense wounds.

Gruesome photographs are also admissible if they corroborate the defendant’s confession that is disclaimed at trial. (People v. Nicholls (1969), 42 Ill. 2d 91, 99, 245 N.E.2d 771, 777.) In Driskel’s oral statement, he admitted getting a knife from a kitchen drawer and stabbing Tiny once with a knife, breaking the knife. At trial, however, he denied stabbing Tiny. Therefore, the photographs showing the broken knife found under Tiny’s body and the open kitchen drawer tended to corroborate Driskel’s earlier confession. In addition, the photographs tended to corroborate Driskel’s pretrial statements because they were probative of the amount of force used. Driskel admitted in his court-reported statement that he stabbed Vernita, Tiny, and Urica. In one of his oral statements, Driskel admitted holding Shirley’s arms and head while Jackson stabbed her. Therefore, the photographs were properly admitted due to their probative value.

Even if the photographs were erroneously admitted because of the number admitted, it would be harmless error. Because there was overwhelming evidence of Driskel’s guilt in the murders, the outcome would not have been different if fewer photographs had been sent to the jury room.

Finally, Driskel asserts that Illinois’ natural life imprisonment statute (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(c)) does not apply to a person convicted of multiple homicides based on accountability. He contends that being guilty only because he is accountable for the acts of another person is a mitigating factor not considered by the statute. Additionally, Driskel argues, interpreting the statute to apply equally to principals and accomplices is against constitutional due process principles of fair sentencing.

Relying on general sentencing guidelines, Driskel urges this court to apply the statute only to principals. Because it is proper to consider the extent of his participation in the crime before setting the sentence (People v. Sangster (1981), 95 Ill. App. 3d 357, 364, 420 N.E.2d 181, 186), Driskel concludes, a mandatory sentence law applying equally to both principals and those accountable does not recognize the important principle of sentencing law of tailoring the sentence to the criminal. People v. Schmidt (1975), 25 Ill. App. 3d 1035, 1037, 324 N.E.2d 246, 247.

Driskel claims that People v. Taylor (1984), 102 ill. 2d 201, 464 N.E.2d 1059, which upheld the validity of the natural life imprisonment statute, is inapplicable because it did not discuss the issue of less culpable codefendants. Although a person who is held accountable for the acts of another is deemed to be no less guilty than the actor, Driskel argues, he may well be less culpable and receive a lesser sentence. Driskel claims that he was less culpable than Jackson because Jackson was the one who began the killing.

Driskel’s arguments fail because his assumption that he was only accountable for Jackson’s actions in murdering the four people is without merit. In his pretrial admissions, Driskel admitted stabbing Vernita and Tiny and holding Shirley while Jackson stabbed her. Based on all the evidence, the jury found Driskel eligible for the death penalty because he murdered two or more persons, Vernita Winder and Mark Brown were killed in the course of another felony, and Dana Winder was under the age of 12 and her death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty.

In the second stage of the death penalty phase, the jury found sufficient mitigating factors to preclude imposing the death penalty. Once the death penalty was not imposed, section 5 — 8—1(a)(1)(c) mandates that the trial judge must sentence Driskel to natural life imprisonment. (People ex rel. Daley v. Strayhorn (1988), 119 Ill. 2d 331, 336, 518 N.E.2d 1047, 1050.) Section 5-8-1(a)(1)(c) states:

“Except as otherwise provided in the statute defining the offense, a sentence of imprisonment for a felony shall be a determinate sentence set by the court under this Section, according to the following limitations: *** (c) if the defendant has previously been convicted of *** murder under any state or federal law or is found guilty of murdering more than one victim, the court shall sentence the defendant to a term of natural life imprisonment.” Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(c).

The Illinois Supreme Court ruled in Taylor that the mandatory natural life sentence for multiple murders is not unconstitutional because the legislature considered the possible rehabilitation of an offender and the seriousness of the offense in determining that a mandatory minimum sentence of natural life imprisonment was in the public interest. (Taylor, 102 Ill. 2d at 206, 464 N.E.2d at 1062.) The court held that the rehabilitative objective of the Illinois Constitution does not prevent the legislature from fixing mandatory minimum penalties where it has been determined that no set of mitigating circumstances could allow a proper penalty of less than natural life for the crime of two or more murders. (Taylor, 102 Ill. 2d at 206, 464 N.E.2d at 1062.) Consequently, Driskel was properly sentenced.

Based on the foregoing, the judgment of the circuit court is affirmed.

Affirmed.

TULLY and GREIMAN, JJ., concur.


text:
    GRETCHEN NOVAK, Plaintiff-Appellant, v. JEFF VIRENE, Defendant-Appellee (Herman’s World of Sporting Goods, d/b/a Herman’s Ski Shop, et al., Defendants).
    First District (3rd Division)
    No. 1—89—3025
    Opinion filed December 27, 1991.

      Michael W. Rathsack, of Chicago (Louis S. Goldstein and Cindy G. Flux-gold, of counsel), for appellant.
    James T. Ferrini, William J. Oberts, Steven N. Novosad, and Edward M. Kay, all of Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago, for appellee.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, Gretchen Novak, appeals from the entry of summary judgment in favor of defendant, Jeff Virene (defendant). She argues that downhill skiing is not a contact sport and that therefore defendant could be liable in ordinary negligence for the injuries he allegedly caused when he collided into her on the ski slope.

Plaintiff’s complaint named the following as additional defendants: Herman’s World of Sporting Goods, d/b/a Herman’s Ski Shop, an Illinois corporation; AMF Incorporated, a corporation; and Gar-misch Company, a corporation. Count I in negligence alleged that plaintiff’s boots and the ski bindings on plaintiff’s boots were not adequately adjusted. Defendant allegedly was negligent in failing to: (1) control his momentum while skiing down a mountain at a Wisconsin ski resort; (2) keep a proper lookout for other skiers; (3) warn other skiers of an imminent collision; and (4) maintain control of himself and his equipment while on the mountain. It was further alleged that as a result of the negligent acts, plaintiff was violently thrown to the ground, the bindings did not release her boot from its ski, and she suffered personal injuries. Darlene Virene was substituted as the party defendant in the place of defendant, a minor.

Count II, which alleged that the ski package, bindings, and boots were defective, was dismissed as to Herman’s.

Plaintiff testified to the following in her deposition. Prior to the accident on January 16, 1984, she had been downhill skiing at least 60 times. She considered herself an experienced, advanced intermediate skier. Prior to the accident, there were only two people on the ski run, which was the easiest run. She glimpsed defendant behind her, but she did not see him just prior to impact. The parties did not know each other and were not racing. She crossed over to that run from other runs because she wanted to go directly to the lodge. She was not skiing straight down the slope but was “skate skiing,” in which she shifted her weight to keep from accelerating straight down. At the time of impact with defendant, she was barely moving, and she was traveling perhaps 10 miles an hour. She felt a shove in her lower back. She fell forward, heard her bones snap, and rolled to the side. Defendant may have intended to use plaintiff to stop himself. Uncontrollable skiers did not have the ability to stop or otherwise avoid a collision and were a hazard to other skiers. She had seen skiers collide on several occasions, and there was always the possibility of such collisions. She had herself fallen while skiing and had seen other skiers fall while skiing.

Defendant filed a motion for summary judgment in which he argued that he and plaintiff were engaged in a sport that had inherent obvious and necessary dangers, including contact between skiers. Defendant argued that mere negligence of a participant in a contact sport was not sufficient to establish liability but that wilful and wanton misconduct was the only basis for liability.

The trial court referred to plaintiff’s deposition testimony that contact and collisions were not unusual in the sport. The court held that recreational skiing was a contact sport. The court noted there was no wilful and wanton conduct by defendant. Summary judgment was entered in favor of defendant, and it was further ordered that there was no reason to delay enforcement or appeal pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

Plaintiff argues that recreational downhill skiing is not a contact sport, which she defines as a sport in which contact is intended and not just a risk. Defendant argues that the contact sports rule, which does not make a participant liable for ordinary negligence, applies to any sport activity where contact with other participants or objects is an anticipated, obvious, or incidental risk of participating in the sport. Defendant refers to plaintiff’s deposition testimony that there was always the possibility of contact between skiers.

The apparent source of the contact sport exception is Nabozny v. Barnhill (1975), 31 Ill. App. 3d 212, 334 N.E.2d 258, in which plaintiff was injured in an amateur soccer match. The court stated that the law should not place unreasonable burdens on the free and vigorous participation in sports but that “some of the restraints of civilization must accompany every athlete on to the playing field.” (Nabozny, 31 Ill. App. 3d at 215.) A player could be liable for injury in a tort action if his conduct was either deliberate, wilful, or with a reckless disregard for the safety of the other player so as to cause injury to that player. (Nabozny, 31 Ill. App. 3d at 215.) It was a question of fact for the jury whether defendant, who ran in plaintiff’s direction and kicked plaintiff’s head, engaged in such wilful and wanton conduct. Nabozny, 31 Ill. App. 3d at 214-15.

It was held that liability for an injury sustained in a basketball game could not be predicated on ordinary negligence in Oswald v. Township High School District No. 214 (1980), 84 Ill. App. 3d 723, 727, 406 N.E.2d 157. The court noted that because rule infractions, whether deliberate or unintentional, were virtually inevitable in contact games, the imposition of a wilful and wanton standard of conduct was justified where injury resulted from such contact. (Oswald, 84 Ill. App. 3d at 727.) The court distinguished golf cases as not controlling and stated that participants in bodily contact games such as basketball assumed greater risks than did golfers and others involved in nonphysical contact sports. Oswald, 84 Ill. App. 3d at 727.

In Keller v. Mols (1987), 156 Ill. App. 3d 235, 237, 509 N.E.2d 584, the court stated that Oswald (84 Ill. App. 3d 723, 406 N.E.2d 157) established that the relevant inquiry was whether the participants were involved in a contact sport. Plaintiff, who was hurt in a game of floor hockey, conceded that he participated in a contact sport, and therefore, he was precluded from recovering on a negligence claim as a matter of law. (Keller, 156 Ill. App. 3d at 237.) The court rejected the argument that Oswald was limited to cases where the participants in a sporting event were organized and coached. Keller, 156 Ill. App. 3d at 236.

In other States, there are downhill skiing cases that have gone to the jury on a negligence theory. (LaVine v. Clear Creek Skiing Corp. (10th Cir. 1977), 557 F.2d 730; see, e.g., Ninio v. Hight (10th Cir. 1967), 385 F.2d 350; Goss v. Allen (1976), 70 N.J. 442, 360 A.2d 388; McDaniel v. Dowell (1962), 210 Cal. App. 2d 26, 26 Cal. Rptr. 140.) These cases did not explicitly address the issue of a contact sport exception, but it can be inferred that the contact sport exception was inapplicable to downhill skiing in those jurisdictions.

Oswald and Nabozny applied an exception to ordinary negligence liability for team sports in which contact was virtually inevitable. As in the individual sports of running and bicycling, there is the possibility of collisions in downhill skiing. But by one’s participation in the sport, one does not voluntarily submit to bodily contact with other skiers, and such contact is not inevitable. Therefore, the concern that the possibility of a negligence lawsuit would dampen vigorous participation is inapplicable to downhill skiing. There is no reason to expand the limited contact sports exception to exempt downhill skiers from negligence liability if they negligently collide with other skiers. Many activities in life are fraught with danger, and absent a specific assumption of risk, one may obtain damages when injured by another’s negligence. Defendant’s conduct should be governed by ordinary negligence standards.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

GREIMAN and TULLY, JJ., concur.


author: JUSTICE GREIMAN

text:
    GERARD COOPER, a Minor, by Luella Cooper, his Mother and Next Friend, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellee.
    First District (3rd Division)
    No. 1—90—1200
    Opinion filed December 27, 1991.

      Robert A. Clifford & Associates, of Chicago (Robert A. Clifford, Keith A. Hebeisen, Susan A. Capra, and Robert P. Sheridan, of counsel), for appellant.
    William H. Farley, Jr., of Chicago Transit Authority, and Flynn, Murphy & Ryan, both of Chicago (Richard T. Ryan and Mark F. Smolens, of counsel), for appellee.
   JUSTICE GREIMAN

delivered the opinion of the court:

Plaintiff Gerard Cooper appeals an order granting defendant’s section 2 — 619 motion to dismiss (Ill. Rev. Stat. 1987, ch. 110, par. 2—619), which was based upon a retroactive application of the 1985 amendments to the Metropolitan Transit Authority Act (Act) (Ill. Rev. Stat. 1985, ch. 111⅔, par. 327) and applied to injuries suffered when plaintiff was attacked by other passengers as he rode a Chicago Transit Authority (CTA) bus in December 1983.

On the evening of December 31, 1983, as plaintiff and his uncle waited for a CTA bus on South Michigan Avenue, a group of youths demanded money from them. Plaintiff and his uncle refused and walked down the street to another bus stop. When the two did board a CTA bus, they found that the youths had already boarded the same bus at a previous stop. The youths immediately began to beat plaintiff. Plaintiff called for help for approximately five minutes while they beat him. Thereafter, they began to stab him.

Plaintiff filed suit in March 1984 against the CTA for injuries he had received, alleging that the CTA breached its duty to take action to protect a paying passenger. Pretrial activity proceeded until March 1990 when the CTA filed a motion for judgment on the pleadings, pursuant to section 2 — 615(e), because of a 1985 amendment to the Metropolitan Transit Authority Act providing that the CTA is not liable for the commission of crimes by third parties or passengers.

The trial court granted defendant’s motion, later amending the order on defendant’s motion to withdraw its answer and dismiss plaintiff’s suit pursuant to section 2 — 619.

Plaintiff argues on appeal that the trial court erred in finding that amended section 27 of the Metropolitan Transit Authority Act applied retroactively to justify dismissal of his complaint.

Plaintiff argues that the trial court’s interpretation of the Act was erroneous in two ways: (1) the court mistook the nature of the immunity created by the Act, and (2) the enactment of the amended statute postdates both the injury and the filing of plaintiff’s suit.

The Act delineates the CTA’s liability as such:

“Neither the Authority, the members of its Board nor its officers or employees shall be held liable for failure to provide a security or police force or, if a security or police force is provided, for failure to provide adequate police protection or security, failure to prevent the commission of crimes by fellow passengers or other third persons or for the failure to apprehend criminals.” Ill. Rev. Stat. 1985, ch. 111⅔, par. 327.

Plaintiff first argues that the plain language of the Act does not immunize the CTA from plaintiff’s allegations. Plaintiff argues that he has not alleged that the CTA was negligent in failing to provide security forces, or that security provided was inadequate. Plaintiff contends that his allegation that the CTA’s bus driver breached a duty to assist him is distinguishable from the immunities enumerated in the statute. Plaintiff argues that the statute should be read narrowly to cover only situations specifically within its ambit.

Defendant argues, and we agree, that plaintiff’s claim falls within the purview of immunity provided by the statute. The supreme court in Bilyk v. Chicago Transit Authority (1988), 125 Ill. 2d 230, 531 N.E.2d 1, interpreted legislative intent to immunize the CTA from tort liability for any failure to protect passengers from the criminal acts of third parties. (Bilyk, 125 Ill. 2d at 234, 238.) The statute’s intent is to insure that CTA funds are spent on public transportation services and not on private damage claims by passengers injured by the criminal acts of third parties. (Bilyk, 125 Ill. 2d at 238.) This amendment to the statute was found constitutional by the Bilyk court. Bilyk, 125 Ill. 2d 230.

Plaintiff also contends that the trial court’s dismissal of its complaint was erroneous because the injury and the filing of suit predate the statutory amendment. We agree, based upon this court’s decisions in Hopkinson v. Chicago Transit Authority (1991), 211 Ill. App. 3d 825, 570 N.E.2d 716, and Young v. Chicago Transit Authority (1990), 209 Ill. App. 3d 84, 568 N.E.2d 18, appeal denied (1991), 139 Ill. 2d 606, 575 N.E.2d 925.

The trial court granted defendant’s section 2 — 619 motion on April 12, 1990, and the order was entered nunc pro tunc to March 28, 1990, eight months before the trial court had the benefit of the Young decision.

The issue and arguments in this case are nearly identical to those in Young and Hopkinson. Those courts found that the amendment to the statute did not apply retroactively since it effected a substantive change and the plaintiffs had a substantive common law right of action against the CTA prior to the amendment at the time of their injuries. Hopkinson, 211 Ill. App. 3d at 835-36; Young, 209 Ill. App. 3d at 91-94.

Those courts recognized that prospective application of a statute is preferred (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390, 415 N.E.2d 1034) and a statutory amendment creates a presumption of intent for prospective application where the change is substantive and not procedural. (Rivard v. Chicago Fire Fighters Union, Local No. 2 (1988), 122 Ill. 2d 303, 309, 522 N.E.2d 1195, 1198; see Hopkinson, 211 Ill. App. 3d at 835; Young, 209 Ill. App. 3d at 89.) The presumption may be rebutted in several ways: (1) the express language of the amendment, (2) “necessary implication,” (3) demonstrating that the amendment merely affects the remedy, or (4) demonstrating that the amendment merely affects procedural matters. Rivard, 122 Ill. 2d at 309-10.

However, we agree with the Hopkinson and Young courts that this amendment is substantive in nature, not procedural, and that at the time of the injury, plaintiff had a vested common law right of action against the CTA. (Hopkinson, 211 Ill. App. 3d at 835-36; Young, 209 Ill. App. 3d at 91-94.) Also, there is neither express language in the amendment that makes any reference to a retroactive intent, nor is there any “necessary implication” of retroactivity. Young, 209 Ill. App. 3d at 89; Hopkinson, 211 Ill. App. 3d at 836.

If the legislature had intended the amendment to be retroactive, it could have expressly stated that intent. (Young, 209 Ill. App. 3d at 89.) We also find no retroactive application by necessary implication since that phrase refers to a logical necessity, meaning that no other interpretation is permitted by the words of the statute, which is not how this amendment has been or might reasonably be interpreted. Hopkinson, 211 Ill. App. 3d at 836; Young, 209 Ill. App. 3d at 89.

For all of the foregoing reasons, the trial court’s decision is reversed.

Reversed.

CERDA, P.J., and TULLY, J., concur.


author: JUSTICE RIZZI

text:
    RUSSELL JAPCZYK et al., Plaintiffs-Appellants, v. GUST K. NEWBERG CONSTRUCTION COMPANY, Indiv. and d/b/a Newberg-Paschen, et al., Defendants-Appellees (Tishman Midwest Management Company et al., Defendants).
    First District (3rd Division)
    No. 1—90—1295
    Opinion filed December 27, 1991.

      Clifford W. Horwitz and Jay R. Luchsinger, both of Chicago, for appellants.
    Steven B. Belgrade, John A. O’Donnell, and Daniel G. Wills, all of Chicago, for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiffs, Russell Japczyk and Leslie Japczyk, brought this action to recover damages for personal injuries sustained by Russell Japczyk against defendants, Gust K. Newberg Construction Co. (Newberg) and Paschen Contractors, Inc. (Paschen), both individually and d/b/a the Newberg-Paschen Joint Venture (joint venture). Plaintiffs also directly sued the joint venture, Tishman Midwest Management Co., and Spray Insulations, Inc. Defendants Newberg and the joint venture moved to dismiss the case pursuant to Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)). The trial court granted defendants’ motion to dismiss. Plaintiffs now appeal.

The following issues are before this court for review: (1) whether plaintiffs properly served summons upon the joint venture and New-berg pursuant to section 2 — 205 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—205); and (2) whether the trial court erred when it failed to rule that the joint venture agreement between Newberg and Paschen established a partnership between the parties. We affirm in part, reverse in part, and remand.

On December 9, 1985, Russell Japczyk, a construction worker, was allegedly injured while working on a construction site located at 20 North Canal Street in Chicago, Illinois. The general contractor engaged in construction on the site was the joint venture.

On July 1, 1987, plaintiffs filed this action in the circuit court of Cook County. Count I of the complaint aUeges that defendants were negligent. Count II alleges loss of consortium on behalf of Leslie Japczyk, Russell’s wife. On July 1, 1987, summons were issued and directed to Newberg, Paschen and the joint venture pursuant to section 2 — 205 of the Code of Civil Procedure. Ill. Rev. Stat. 1987, ch. 110, par. 2—205.

On May 25, 1988, plaintiffs voluntarily dismissed their initial complaint and filed a second complaint on June 8, 1988. Plaintiffs’ second complaint is substantially similar to their first complaint. On July 7, 1988, summons were served on Paschen in its capacity both individually and doing business as the joint venture. This summons was returned to the office of the Cook County sheriff as having been personally served. On September 12, 1989, summons was also served upon Newberg and the joint venture.

On November 17, 1988, defendants Newberg and the joint venture filed a motion to dismiss plaintiffs’ complaint with prejudice pursuant to Illinois Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)). Defendants’ motion aUeged that service of process was not accomplished upon Newberg or the joint venture until 14 months after plaintiffs’ initial complaint was filed and that this constituted lack of due diligence.

At the hearing on defendants’ motion, plaintiffs argued that service had been effected upon both the joint venture and Newberg on July 7, 1987, when Paschen was served. Plaintiffs cited section 2 — 205 of the Code of Civil Procedure in support of their position. Plaintiffs argued that Newberg and the joint venture were properly served because Paschen had been served, Paschen was named as a defendant both individually and as a party to the joint venture, and because Paschen was Newberg’s partner in the construction enterprise.

The trial court granted defendants’ motion to dismiss on the grounds that plaintiffs did not exercise due diligence in serving New-berg and the joint venture. Plaintiffs filed a timely motion for reconsideration which was denied. This appeal followed.

First, plaintiffs contend that the trial court erred when it dismissed their complaint, because they properly served defendants New-berg and the joint venture pursuant to section 2 — 205 of the Code of Civil Procedure.

Section 2 — 205 of the Code of Civil Procedure contains the following relevant provision:

“Service on partnership and partners, (a) A partnership sued in its firm name may be served by leaving a copy of the process with any partner personally or with any agent of the partnership found anywhere in the State. A partnership sued in its firm name may also be notified by publication and mail in like manner and with like effect as individuals.
(b) When a personal judgment is sought against a known partner for a partnership liability the partner may be served (1) in any manner provided for service on individuals or (2) by leaving a copy of the summons for him or her with any other partner and mailing a copy of the summons in a sealed envelope with postage prepaid, addressed to the partner against whom judgment is sought at his or her usual place of abode as shown by an affidavit filed in the cause. The certificate of the officer or the affidavit of the other person making service that he or she has mailed the copy in pursuance of this section is evidence that he or she has done so.” Ill. Rev. Stat. 1987, ch. 110, pars. 2—205(a), (b).

We will now turn our attention to the law which governs joint ventures. In Illinois, “[partnership principles govern joint ventures.” (Bachewicz v. American National Bank & Trust Co. (1986), 111 Ill. 2d 444, 448, 490 N.E.2d 680, 682; see Smith v. Metropolitan Sanitary District of Greater Chicago (1979), 77 Ill. 2d 313, 318, 396 N.E.2d 524, 527; Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 438, 394 N.E.2d 380, 384; O’Connell v. Pharmaco (1987), 164 Ill. App. 3d 68, 72, 517 N.E.2d 688, 691-92; Polikoff v. Levy (1971), 132 Ill. App. 2d 492, 498, 270 N.E.2d 540, 546.) The Illinois Supreme Court has ruled that co-venturers in a joint venture have the same relationship to a joint venture as partners have to a partnership, and that joint ventures are subject to the Uniform Partnership Act (Ill. Rev. Stat. 1987, ch. 106½, pars. 1 through 43). Smith, 77 Ill. 2d at 318, 306 N.E.2d at 527; Burtell, 76 Ill. 2d at 438, 394 N.E.2d at 384.

Section 9(1) of the Uniform Partnership Act provides that “[ejvery partner is an agent of the partnership for the purpose of its business.” (Ill. Rev. Stat. 1987, ch. 106½, par. 9(1).) In addition, section 12 of the Uniform Partnership Act contains the following relevant provision:

“Notice to any partner of any matter relating to partnership affairs, and the knowledge of the partner acting in the particular matter, acquired while a partner or then present to his mind, and the knowledge of any other partner who reasonably could and should have communicated it to the acting partner, operate as notice to or knowledge of the partnership ***.” (Ill. Rev. Stat. 1987, ch. 106½, par. 12.)

(See Federal Deposit Insurance Corp. v. Braemoor Associates (1982), 686 F.2d 550, 556.) Consequently, a co-venturer’s knowledge of any matter related to business acquired by the joint venture while the co-venturer is a member of the venture constitutes notice to the venture itself.

First, we find that plaintiffs in the present case properly served the joint venture. Paschen was sued in the name of the New-berg-Paschen joint venture, of which it was a co-venturer and a representative. Paschen was served in accordance with section 2 — 205 of the Code of Civil Procedure, which provides that a partnership or joint venture sued in its firm name may be served by leaving a copy of the process addressed to the entity against whom the judgment is sought with any partner or co-venturer or with any agent of the partnership or venture found in the State. (Ill. Rev. Stat. 1987, ch. 110, par. 2—205; see Sullivan Realty Organization, Inc. v. Syart Trading Corp. (1979), 68 A.D.2d 756, 759, 417 N.Y.S.2d 976, 978; John’s, Inc. v. Island Garden Center of Nassau, Inc. (1966), 49 Misc. 2d 1086, 1090, 269 N.Y.S.2d 231, 236.) Therefore, in serving Paschen, a partner in the joint venture sued in its firm name, plaintiffs also served the joint venture. Accordingly, we rule that the trial court erred when it dismissed plaintiffs’ complaint against the joint venture, and we reverse the trial court’s grant of defendants’ motion to dismiss plaintiffs’ complaint against the joint venture, and we remand this cause for an adjudication on the merits.

Second, we find that Newberg was not properly served pursuant to section 2 — 205(b) of the Code of Civil Procedure because the summons which was served on Paschen in its capacity both individually and doing business as the joint venture did not name Newberg. Accordingly, we affirm the trial court’s dismissal of plaintiffs’ complaint against Newberg, and we affirm the trial court’s grant of defendants’ motion to dismiss the complaint against Newberg.

Plaintiffs finally contend that the trial court erred when it failed to rule that the joint venture agreement between Newberg and Paschen established a partnership between them. In light of our finding above, it is not necessary for us to address this issue.

For the foregoing reasons, the judgment of the circuit court is affirmed in part, reversed in part, and remanded for an adjudication of plaintiffs’ complaint against the remaining defendants.

Affirmed in part; reversed in part and remanded.

GREIMAN and TULLY, JJ., concur.