text:
    DONALD L. RAPPEPORT, Plaintiff-Appellant, v. WILLIAM MELTZER, Defendant-Appellee.
    First District (1st Division)
    No. 1—88—2263
    Opinion filed December 31, 1990.

      Law Offices of Beryl A. Birndorf, of Chicago (Robert M. Birndorf, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (William J. Rogers and Sharon R. Cromer, of counsel), for appellee.
   JUSTICE MANNING

delivered the opinion of the court:

Plaintiff, Donald L. Rappeport, appeals from the entry of summary judgment (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005) granted by the circuit court of Cook County in favor of the defendant, Dr. William Meltzer. The following issues were raised on appeal: (1) whether the trial court erroneously considered and granted the defendant’s renewed motion for summary judgment; and (2) whether the trial court abused its discretion in permitting the late filing of a reply memorandum.

The record in this case reveals that in December 1980, plaintiff, an avid golfer, began experiencing pain and discomfort in the area of his right elbow. He initially consulted his family physician, Dr. Zimmering, who advised him that he had “tendinitis” and that his arm should be rested. On February 11, 1981, plaintiff consulted Dr. William Meltzer, a specialist in orthopedic medicine and surgery, regarding his injury. At that time, Dr. Meltzer diagnosed the plaintiff as suffering from tendinitis of the right medial region with possible ulnar nerve pressure. Thereafter, he instructed the plaintiff to warm up his elbow before golf, apply ice afterwards, and live with the pain. Plaintiff returned to Dr. Zimmering, his family physician, in March 1981, who recommended against surgery. In April and June 1981, plaintiff consulted Dr. Theodore Fox, who recommended that plaintiff rest his arm and informed plaintiff that surgery may be required if the elbow did not heal naturally.

On July 1, 1981, plaintiff consulted Dr. Carlos Scuderi who also diagnosed his discomfort as “tendinitis,” recommended rest and advised against surgery. Later that same day, plaintiff again consulted Dr. Meltzer, who recommended surgery. Plaintiff maintains that it was during this consultation that Dr. Meltzer advised him that he had a “ruptured tendon” and the only cure for his injury was surgery. Plaintiff also contends that Dr. Meltzer assured him that the arm would be stronger after surgery and that he would enjoy playing golf within six weeks of surgery without pain or discomfort.

During Dr. Meltzer’s deposition, he testified that he had advised plaintiff of the surgery, post-operative course, and possible residual symptoms. This advice was also reflected in plaintiff’s medical records. Dr. Meltzer further testified that plaintiff did not pay him any additional compensation beyond the normal charge for the surgical procedure.

Plaintiff testified that Dr. Meltzer did not explain the risks or residual symptoms associated with the surgery, which was elective rather than mandatory. Plaintiff then consulted Dr. Samuel Willens, who advised against surgery. Plaintiff, however, again contacted Dr. Meltzer and informed him that he wanted to proceed with the surgery based on Dr. Meltzer’s representations that surgery was the only cure for the injury.

On July 21, 1981, plaintiff was admitted to Skokie Valley Hospital for surgery. Upon admission, he signed a consent form which stated that “I acknowledge that no guarantees or assurances have been made to me concerning the results of the above operation ***.” Plaintiff contends that he did not read the consent form prior to signing it. The surgery was performed by Dr. Meltzer later that day.

Plaintiff asserts that instead of removing the pain in his right arm, the pain was aggravated by the surgery. Later he consulted two physicians in anticipation of a malpractice action. They both, however, advised plaintiff’s counsel that no malpractice had been committed. Notwithstanding, on July 20, 1983, plaintiff filed a two-count complaint against Dr. Meltzer alleging a breach of contract in count I, wherein Dr. Meltzer entered into an oral contract to cure plaintiff’s elbow but failed to do so, and count II alleged that Dr. Meltzer orally warranted that surgery would cure the injury. On January 3, 1984, Dr. Meltzer filed an answer denying the material allegations, and on July 3, 1985, he filed his initial motion for summary judgment. On December 12, 1985, Judge Thomas O’Brien denied this summary judgment motion, “without prejudice to Dr. Meltzer’s right to file an amended motion for summary judgment as to the issue of consent.” An amended motion for summary judgment on the issue of consent was not filed. Instead, on May 3, 1988, after the case had been assigned to a trial judge for immediate trial, Dr. Meltzer presented his renewed motion for summary judgment to Judge Orlando, who recused himself from the case since Dr. Meltzer had treated some members of Judge Orlando’s family. On May 24, 1988, the case was assigned to Judge Dore; and on that same date, Judge Dore granted defendant leave to file the renewed motion for summary judgment instanter and denied plaintiff’s motion to strike the pleading for lack of proper notice since the renewed motion had been presented when the case was assigned for trial.

Additionally, on May 24, 1988, the trial court set a briefing schedule for the renewed motion, allowing plaintiff until June 7, 1988, to respond to the renewed motion. On June 7, 1988, plaintiff filed his response to the renewed motion for summary judgment. Defendant was given until June 14, 1988, to reply to plaintiff’s response, and the matter was set for hearing on June 27, 1988. The defendant submitted the reply to both Judge Dore and plaintiff’s counsel on June 22, 1988, and explained to Judge Dore by letter the reason for the late filing. Plaintiff moved to strike the reply memorandum which was denied by Judge Dore on June 27, 1988. Judge Dore also determined that defendant’s explanation for the lateness of the reply memorandum v/as sufficient and granted Dr. Meltzer’s renewed motion for summary judgment.

Plaintiff initially argues that the trial court erroneously granted the defendant leave to file the renewed motion and erroneously denied plaintiff’s motion to strike the pleading since: (1) both parties appeared before the trial court on May 3, 1988, and responded that they were ready for trial; and (2) the renewed motion was tendered to the trial judge and a copy given to plaintiff’s counsel without prior notice of motion. Plaintiff further argues that defendant’s renewed motion was untimely in that the original motion for summary judgment was fully briefed and denied on its merits in December 1985, and defendant had over 21/2 years to submit an amended motion on the issue of consent but failed to do so.

It should be noted that in the present case both parties responded that they were ready for trial on May 3, 1988, when the case was set as a “must go” case. However, Judge Orlando recused himself from the case at that time. The case was continued and set for trial for May 24, 1988, and defendant’s motion was made instanter just prior to trial. We have previously held that the filing of a motion for summary judgment immediately preceding a trial should be discouraged. Scoby v. Vulcan-Hart Corp. (1989), 188 Ill. App. 3d 89, 94, 544 N.E.2d 106, citing Herman v. Swisher (1983), 115 Ill. App. 3d 179, 450 N.E.2d 28.

The purpose of summary judgment is to determine whether an issue of fact exists, not to try an issue of fact. (Piquette v. Midtown Anesthesia Associates (1989), 192 Ill. App. 3d 219, 222-23, 548 N.E.2d 659.) Summary judgment should be granted if the pleadings, affidavits, and depositions on file reveal that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Ill. Rev. Stat. 1987, ch. 110, par. 2-1005(c).

The initial issue that we must address is whether a circuit court is required to follow its own rule pertaining to notice before a party is required to go to hearing on a motion for summary judgment. Illinois statutes provide that “[a] defendant may, at any time, move with or without supporting affidavits for a summary judgment in his or her favor as to all or any part of the relief sought against him or her.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(b).) Circuit court rules must be consistent with our State statutes, and the rules “may not abrogate, limit or modify existing law.” (People v. Sims (1988), 165 Ill. App. 3d 204, 207, 518 N.E.2d 730.) Moreover, a trial court must follow its own notice rules when those rules do not conflict with a statute or supreme court rule. (Scoby, 188 Ill. App. 3d at 94.) The granting of summary judgment is precluded where the party who moves for summary judgment fails to comply with the statutes or court rules relating to summary judgment. Deaton v. Lloyd’s Jewelry Co. (1972), 7 Ill. App. 3d 926, 929, 289 N.E.2d 123.

In Scoby, we held that reversible error occurred where the circuit court refused to follow its own 10-day notice requirement for summary judgment. Also, in Deaton we held that the circuit court of Cook County properly denied plaintiff’s motion for summary judgment where the record revealed that plaintiff failed to meet the 10-day notice requirement for a summary judgment motion. Furthermore, our supreme court held in the case of In re Estate of Young (1953), 414 Ill. 525, 535, 112 N.E.2d 113, that an order of the probate court in Cook County was void and of no effect because the court entered the order without the proper notice as required by the rules of the probate court. Our supreme court further held that the rules “[have] the force of a statute and [are] binding upon the parties, as well as the court.” Young, 414 Ill. at 535.

Rule 2.1(e) of the circuit court of Cook County (Cook Co. Cir. Ct. R.2.1(e)) expressly provides that: “A motion for summary judgment shall not be heard until ten (10) days after service of the notice of motion under Supreme Court Rule 11.” Defendant contends that Rule 2.1(e) was complied with since the plaintiff had received notice of the motion more than 10 days from the date it was heard, and he was provided with a reasonable time to respond. We agree. Plaintiff’s counsel received actual notice of the renewed motion for summary judgment on May 3, 1988, when he was given a copy of the renewed motion just prior to Judge Orlando’s recusal of himself from the case. Moreover, during the May 24, 1988, proceedings Judge Dore granted defendant leave to file the renewed motion instanter and allowed plaintiff until June 7, 1988, to file a response to the renewed motion. Defendant was given until June 14, 1988, to reply to plaintiff’s response and the renewed motion was not actually heard until June 27, 1988. Almost two months had elapsed between May 3, 1988, when plaintiff was given notice of the renewed motion and June 27, 1988, when the renewed motion was actually heard. Thus, we conclude that plaintiff’s argument is without merit since Rule 2.1(e) provides that plaintiff is entitled to receive notice of a motion for summary judgment 10 days before the motion is heard (Cook Co. Cir. Ct. R. 2.1(e)) and was complied with in the instant case.

Notwithstanding our conclusion that Rule 2.1(e) was complied with, we agree with plaintiff’s argument that the renewed motion for summary judgment was untimely and should have been denied because defendant lacked due diligence in presenting the renewed motion. We have previously held that the trial judge should deny a motion for summary judgment where the defendant failed to actively pursue a timely hearing on the motion for summary judgment. (Athens v. Prousis (1989), 190 Ill. App. 3d 349, 355, 546 N.E.2d 695; see also Deaton, 7 Ill. App. 3d 926.) In Athens, we held that the trial judge should have denied a motion for summary judgment for failure to actively pursue a timely hearing on the motion where the defendant failed to offer a persuasive explanation as to the reason the motion had not been scheduled for a hearing during a 13-month period between the transfer of the case from the municipal division to the law division.

In the present case, defendant’s original motion for summary judgment was denied by Judge O’Brien on December 12, 1985, without prejudice to allow Dr. Meltzer to file an amended motion for summary judgment as to the issue of consent. Defendant’s renewed motion was not presented until May 3, 1988. On May 24, 1988, Judge Dore granted defendant leave to file the renewed motion instanter and it was filed on that date. The record does not reflect that the trial court was provided with an explanation as to why the renewed motion had not been presented and set for a hearing during the years since the original motion for summary judgment was denied. As we concluded in Athens, the trial judge in the present case should have also denied defendant’s renewed motion for failure to actively pursue a timely hearing on the renewed motion. In light of our decisions on this issue, it is not necessary for us to pass upon the other issue raised by the parties.

Accordingly, the judgment of the circuit court of Cook County granting summary judgment is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

BUCKLEY, P.J., and O’CONNOR, J., concur.


source: Caselaw Access Project

author: JUSTICE MANNING

license: Public Domain

text:
      In re APPLICATION OF THE COUNTY TREASURER AND EX-OFFICIO COUNTY COLLECTOR OF COOK COUNTY FOR JUDGMENT AND ORDER OF SALE AGAINST REAL ESTATE RETURNED DELINQUENT FOR THE NONPAYMENT OF GENERAL TAXES FOR 1984 (Edward J. Rosewell, Applicant-Appellant, v. Phoenix Bond and Indemnity Company, Petitioner-Appellee).
    First District (1st Division)
    No. 1—88—2866
    Opinion filed December 31, 1990.

      Jack O’Malley, State’s Attorney, of Chicago (Joan S. Cherry, Mark R. Davis, and Randolph T. Kemmer, Assistant State’s Attorneys, of counsel), for appellant.
    Stanford D. Marks, of Chicago, for appellee.
   JUSTICE MANNING

delivered the opinion of the court:

The Cook County collector (hereinafter County Collector) appeals from an order of the circuit court of Cook County, denying its motion to clarify and reconsider the court’s March 10, 1988, order which ordered the Cook County treasurer (hereinafter Treasurer) to refund to Phoenix Bond and Indemnity Company (hereinafter Phoenix Bond) $494.82 in costs.

The record reveals that on December 17, 1985, Phoenix Bond purchased at an annual sale two parcels of real estate for delinquent taxes. Certificates of purchase dated December 17, 1985, were received by Phoenix Bond for the sums of $7,351.97 and $7,750.09 as evidence of the purchases. Phoenix Bond filed a petition for tax deed and began giving the notices required by the Illinois Revenue Act of 1939 (Ill. Rev. Stat. 1987, ch. 120, par. 482 et seq.) as necessary preliminary steps to obtain the tax deed. During this process of serving notice, Phoenix Bond incurred costs in addition to the costs of obtaining the certificates of sale. These costs totalled $494.82, including a $94 fee for filing the petition of tax deed, a $60.72 fee to the clerk of the circuit court for mailing notices, a $220.10 fee to the sheriff for serving the notices and a $120 fee to a newspaper as compensation for publishing the notice.

On March 3, 1988, the County Collector filed a petition to vacate the tax sales, asserting that the assessor had made an error in selling the two parcels of real estate and requesting a refund to Phoenix Bond. On March 10, 1988, an order was entered vacating the two tax sales, specifically ordering the County Treasurer to refund to Phoenix Bond the purchase price of the certificates in the sum of $7,351.97 for certificate number 84 — 5709, and $7,750.09 for certificate number 85 — 5716 with interest of 11/2% per month from the date of purchase. The County Treasurer was also ordered to refund $494.82 in costs for “the tax deed petition to Phoenix Bond in accord with section 260 of the Revenue Act.” Thereafter, the circuit court retained jurisdiction in order to enforce compliance with the terms of its order.

The County Collector paid the face amounts of the certificates of sale plus interest. However, the County Collector failed to pay the $494.82 in costs. Phoenix Bond made a demand for the $494.82; and on July 21, 1988, the County Collector filed a motion to clarify and reconsider the March 10, 1988, order “by striking the requirement of payment of $494.82 in costs.” On August 17, 1988, the trial court entered an order holding that: (1) the post-judgment motion was properly before the court and the court had jurisdiction over the parties; (2) reaffirming its March 10, 1988, order, including the order to pay $494.82 to Phoenix Bond; (3) the court had jurisdiction to order the refund of $494.82 in costs under section 260 of the Revenue Act; and (4) the motion for reconsideration was denied. On September 16, 1988, the County Collector appealed from the denial of its motion to clarify and reconsider the March 10, 1988, order and on September 23, 1988, Phoenix Bond cross-appealed from that portion of the court’s order which determined that the post-judgment motion was properly before the court.

On appeal, the County Collector contends that a tax purchaser cannot be awarded costs pursuant to a statute which became effective subsequent to the date the taxes were purchased. Phoenix Bond argues that the trial court lacked jurisdiction to modify or review its March 10, 1988, order, and the appellate court is without jurisdiction to review this cause of action. The threshold question before us is whether the County Collector timely filed its motion to clarify and reconsider the court’s March 10, 1988, order, thereby extending the time that the County Collector could file its notice of appeal.

Section 2 — 1203(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203(a)) provides that a party must file a post-trial motion within 30 days after the judgment has been entered or within any further time the court may allow within the 30 days or any extensions thereof. It is well settled that a motion to reconsider a trial court’s judgment falls within the category of post-judgment motions which must be filed within 30 days after the challenged judgment is entered. (Ill. Rev. Stat. 1987, ch. 110, par. 2-1203; Sears v. Sears (1981), 85 Ill. 2d 253, 258, 422 N.E.2d 610; Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 538, 470 N.E.2d 290; Coleman v. Windy City Balloon Port, Ltd. (1987), 160 Ill. App. 3d 408, 418, 513 N.E.2d 506.) Moreover, section 2 — 1203(b) provides that a timely filed post-judgment motion stays enforcement of the judgment. Ill. Rev. Stat. 1985, ch. 110, par. 2— 1203(b); Lombard v. Elmore (1986), 112 Ill. 2d 467, 471-72, 493 N.E.2d 1063.

In the present case, the trial court entered its order on March 10, 1988, specifically stating “that this is a final order and no just reason exists for delay in the enforcement hereof or in the taking of an appeal herefrom.” However, the County Collector did not file its motion to clarify and reconsider the March 10, 1988, order until July 21, 1988, more than four months after the judgment was entered. Therefore, the motion was untimely filed, and a trial court is without jurisdiction to modify its own judgment more than 30 days after the final order was entered. (Ball v. Edgar (1988), 165 Ill. App. 3d 349, 351, 519 N.E.2d 35; Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill. App. 3d 962, 447 N.E.2d 1358.) Moreover, every act of a court beyond its jurisdiction is void. (Ball, 165 Ill. App. 3d at 351.) Accordingly, since the trial court in the instant case was divested of jurisdiction, the order entered by the trial court on August 17, 1988, is void for lack of jurisdiction.

Regarding Phoenix Bond’s assertion that the appellate court is without jurisdiction to review this cause of action, Illinois courts have frequently held that a reviewing court has a duty to consider its jurisdiction and the timely filing of a notice of appeal is jurisdictional. (Barth, 103 Ill. 2d at 539; In re Marriage of Hillinger (1986), 146 Ill. App. 3d 549, 552, 497 N.E.2d 112.) In order to vest the appellate court with jurisdiction, the notice of appeal must be filed within 30 days after entry of the judgment appealed from, or if a timely post-judgment motion is filed, within 30 days after the entry of the order disposing of the last post-trial motion. (107 Ill. 2d R. 303(a); Elg v. Whittington (1987), 119 Ill. 2d 344, 350-51, 518 N.E.2d 1232; Lombard, 112 Ill. 2d at 471-72.) Moreover, the time for filing a notice of appeal is not extended by the filing of an untimely post-judgment motion (Barth, 103 Ill. 2d at 539; Sears, 85 Ill. 2d at 259), and the appellate court is required to dismiss an untimely filed appeal for want of proper jurisdiction. Hillinger, 146 Ill. App. 3d at 552; Lubben v. Lubben (1985), 135 Ill. App. 3d 302, 303, 481 N.E.2d 856; Barth, 103 Ill. 2d at 539.

As previously stated the post-trial motion to clarify and reconsider the March 10, 1988, order was not timely filed since it was filed more than four months after the final judgment was entered. Therefore, the untimely filed post-trial motion did not toll the time to appeal. Moreover, the notice of appeal was not filed within 30 days after the March 10, 1988, order was entered. Accordingly, since the County Collector failed to file a timely post-judgment motion or a timely notice of appeal, we are compelled to find that the appellate court does not have jurisdiction to address the merits of this appeal, and the appeal must be dismissed.

Appeal dismissed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


text:
    ROBERT I. LUTZ, Plaintiff-Appellant, v. GOODLIFE ENTERTAINMENT, INC., d/b/a P.S. Chicago, et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—88—2885
    Opinion filed December 31, 1990.

      Steven B. Levy, of Chicago, for appellant.
    O’Connor & Schiff, of Chicago (Elliot R. Schiff and Jeanne Leary Ma-her, of counsel), for appellees.
   JUSTICE MANNING

delivered the opinion of the court:

Plaintiff, Robert I. Lutz, filed a two-count complaint against defendant, Goodlife Entertainment, Inc., d/b/a P.S. Chicago (hereinafter Goodlife), a nightclub in Chicago, seeking damages for injuries he suffered as a result of a criminal attack upon him by an unknown third party while both were customers on defendant’s premises. Count I alleges that the defendant negligently failed to exercise reasonable care and caution in maintaining its premises in order to avoid injury to the plaintiff. Count II alleges that the defendant’s failure to act constituted willful and wanton conduct with a disregard for the safety of the plaintiff. The trial court granted defendant’s motion for summary judgment, finding that the evidence of record failed to support the imposition of a duty on the owner of the premises in the instant case to protect an invitee against the criminal attacks of third parties. Plaintiff appeals that order.

On December 20, 1985, the plaintiff was a patron of Goodlife. He was dancing with Mi Young Park, an off-duty waitress; and while dancing, he casually bumped into an unknown man. He apologized to the unknown man and continued to dance with Ms. Park. Since it was a casual bump and there appeared to be no danger to the plaintiff, no one associated with Goodlife was notified of the incident. Immediately following plaintiffs apology, the unknown man hit the plaintiff in the nose with a single blow without any threats or warnings. Plaintiff was unable to defend himself due to the suddenness of the blow. Neither the plaintiff, Ms. Park nor Brian Fordon, another witness to the incident, had seen the assailant prior to that evening. John Sodini, a post-occurrence witness, also testified that he had not seen the assailant prior to that evening. Ms. Park stated that she had served the assailant a drink earlier in the evening when she was on duty, but he did not give her any indication that he would cause any trouble.

Plaintiff contends on appeal that the trial court erred in granting' summary judgment, since under the particular factual matrix of the case at bar, Goodlife owed its invitees a duty to protect them against the misconduct of third parties. He argues vigorously that the situation was foreseeable. In support of that contention he points to the strict policy that was maintained by Goodlife of prohibiting the dance floor from becoming overcrowded as an indication that Goodlife had knowledge and foresaw the potential danger to life and limb of an overcrowded dance floor.

Summary judgment is a drastic measure for disposing of a case, and it should be granted only in instances where the right of the movant is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) However, summary judgment is appropriate if the pleadings, depositions, and admissions on file, together with any affidavits, show that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005; Rowe v. State Bank (1988), 125 Ill. 2d 203, 214, 531 N.E.2d 1358.) A motion for summary judgment must be strictly construed against the movant and liberally in favor of the opponent. (Rowe, 125 Ill. 2d at 214; In re Estate of Whittington (1985), 107 Ill. 2d 169, 177, 483 N.E.2d 210.) We have frequently held that although the opponent of a summary judgment motion does not have to prove his case, he must present some facts that would arguably entitle him to judgment. N.W. v. Amalgamated Trust & Savings Bank (1990), 196 Ill. App. 3d 1066, 1075, 554 N.E.2d 629; Martin v. 1727 Corp. (1983), 120 Ill. App. 3d 733, 737, 458 N.E.2d 990.

In a negligence action, there can be no recovery by a plaintiff as a matter of law unless the plaintiff presents sufficient facts to establish the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach. (Rowe, 125 Ill. 2d at 215; N.W., 196 Ill. App. 3d at 1071; Curtis v. County of Cook (1983), 98 Ill. 2d 158, 162, 456 N.E.2d 116.) The existence of a duty is a question of law to be determined by the court based on whether there is a relationship between the parties which requires the imposition of a legal obligation upon one party for the benefit of another. (Rowe, 125 Ill. 2d at 215; Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 18-19, 440 N.E.2d 96; Cunis v. Brennan (1974), 56 Ill. 2d 372, 374, 308 N.E.2d 617; Burks v. Madyun (1982), 105 Ill. App. 3d 917, 919, 435 N.E.2d 185.) The general rule in Illinois is that a landowner has no duty to protect persons from criminal activity of third parties on his property unless there exists a “special relationship” between the parties. (Rowe, 125 Ill. 2d at 215-16; N.W., 196 Ill. App. 3d at 1071; Restatement (Second) of Torts §314 (1965).) Illinois courts recognize four special relationships which impose a legal duty to warn or protect a person from harm, i.e., (1) carrier-passenger; (2) innkeeper-guest; (3) business inviter and invitee, and (4) one who voluntarily takes custody of another in such a manner that it deprives the person of his normal opportunities for protection. (Burks, 105 Ill. App. 3d at 920; Restatement (Second) of Torts §314A (1965).) A person is classified as an invitee on the land of another if “ ‘(1) he enters by invitation, express or implied, (2) his entry is connected with the owner’s business or with an activity the owner conducts or permits to be conducted on his land and (3) there is a mutuality of benefit or a benefit to the owner.’ ” (Barmore v. Elmore (1980), 83 Ill. App. 3d 1056, 1058-59, 403 N.E.2d 1355, quoting Madrazo v. Michaels (1971), 1 Ill. App. 3d 583, 587, 274 N.E.2d 635, 638.) It is undisputed that the plaintiff in the instant case satisfies the requirements for a business invitee.

There is an exception to the general rule of no duty to protect where the criminal acts should reasonably have been foreseen by the landowner. (Rowe, 125 Ill. 2d at 215-16; Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill. 2d 95, 97, 306 N.E.2d 39; Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 50 N.E.2d 497; N.W., 196 Ill. App. 3d at 1071; Getson v. Edifice Lounge, Inc. (1983), 117 Ill. App. 3d 707, 711, 453 N.E.2d 131.) To create a legal duty to guard against the criminal attacks of third persons there must have been more than a possibility that the act was foreseeable; the act must have been reasonably foreseeable. (See Cunis, 56 Ill. 2d 372, 308 N.E.2d 617.) “ ‘No man can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.’ ” (Cunis, 56 Ill. 2d at 378, quoting W. Prosser, Torts §31, at 146 (4th ed. 1971).) Foreseeability is determined based on the facts and circumstances of each case. (Yangas v. Charlie Club, Inc. (1983), 113 Ill. App. 3d 398, 403, 447 N.E.2d 484; Getson, 117 Ill. App. 3d at 711.) Although the basic test for determining the existence of a duty is foreseeability, our courts have held that foreseeability alone does not establish the existence of a duty. (Rowe, 125 Ill. 2d at 227; Boyd, 56 Ill. 2d at 99; Cunis, 56 Ill. 2d at 375.) Courts must also consider the likelihood of injury, the magnitude of the burden to the defendant of guarding against the injury and the consequences of placing the burden upon the defendant. Rowe, 125 Ill. 2d at 228; Boyd, 56 Ill. 2d at 99; N.W., 196 Ill. App. 3d at 1071; Badillo v. De Vivo (1987), 161 Ill. App. 3d 596, 599, 515 N.E.2d 681.

Plaintiff contends that Goodlife’s acts or omissions created a condition which was conducive to a foreseeable intervening act. Our courts have held:

“Generally, where between the defendant’s negligence and the plaintiff’s injury an independent, illegal act of a third person has intervened which causes the plaintiff’s injury, and without which it would not have occurred, the criminal act is a superseding cause of injury relieving the originally negligent party of liability. [Citation.] There is an exception where the defendant’s acts or omissions create a condition conducive to a foreseeable intervening criminal act. If the criminal act is reasonably foreseeable at the time of the negligence, the causal chain is not necessarily broken by the intervention of such an act.” Rowe, 125 Ill. 2d at 224.

(Lillie v. Thompson (1947), 332 U.S. 459, 462, 92 L. Ed. 73, 75; 68 S. Ct. 140, 142; N.W., 196 Ill. App. 3d at 1075.) Even if Goodlife was negligent in allowing its floor to become overcrowded, the unknown assailant’s criminal act of hitting the plaintiff in response to a casual bump on a crowded dance floor was not reasonably foreseeable. Therefore, the causal chain was broken by the intervention of the unknown assailant’s act. (See Rowe, 125 Ill. 2d at 224.) Moreover, plaintiff also failed to establish the existence of special conditions to show that criminal activity would likely occur. Although plaintiff asserts that drinking and free-form dancing on an overcrowded dance floor would put a prudent tavern keeper on notice of the probability of danger, plaintiff’s deposition testimony revealed that he viewed casual bumping as nothing major and continued to dance. Moreover, Ms. Park likewise testified that she did not believe that there was any reason to inform the bouncer, bartender, or manager of P.S. Chicago about the incident because casual bumping was a frequent occurrence on the dance floor. As the trial court so aptly noted, had the injury been sustained as a result of tripping on another person, indubitably that would be foreseeable on a crowded dance floor. However, it is not reasonable to suggest that the fact that a dance floor is overcrowded would place a reasonable person on notice that a spontaneous and violent attack would be triggered by virtue thereof.

Plaintiff correctly asserts that a tavern operator has a duty to protect its invitees from foreseeable dangers caused by third parties. (Badillo, 161 Ill. App. 3d at 598; St. Phillips v. O’Donnell (1985), 137 Ill. App. 3d 639, 484 N.E.2d 1209.) However, the common law duty of reasonable care cannot be extended to a duty to protect against the criminal attacks of third persons unless circumstances such as prior incidents charge the owner or occupier of land with knowledge of the danger. (See Neering, 383 Ill. 366, 50 N.E.2d 497; Burks, 105 Ill. App. 3d at 921; see also Yangas, 113 Ill. App. 3d at 401.) The issues in the present case of foreseeability and knowledge are very similar to the issues raised in Yangas (113 Ill. App. 3d 398, 447 N.E.2d 484) and Getson (117 Ill. App. 3d 707, 453 N.E.2d 131), wherein we concluded that the defendants had no duty to protect persons from the criminal acts of third parties where they were not aware that the attackers were dangerous prior to the attacks.

In the instant case, the plaintiff has failed to present any evidence to support his assertion that the criminal activity was reasonably foreseeable. There was no allegation or evidence presented that the unknown assailant was intoxicated or that Goodlife had knowledge of his intoxication. Nor does the record reflect that there was anything in the unknown assailant’s actions to put a reasonably prudent person on notice that he was likely to attack anyone since he had not displayed any prior aggression or hostility. Additionally, no allegation or evidence was presented that the unknown assailant had previously caused trouble at Goodlife. Nor was any documentation presented to show that criminal activity in general had previously occurred at Goodlife. Since no special circumstances existed to charge Goodlife with knowledge of the unknown assailant’s dangerous propensities, its duty of reasonable care cannot be extended to guard against a sudden criminal attack by a third person. See Yangas, 113 Ill. App. 3d 398; Getson, 117 Ill. App. 3d 707.

We therefore conclude that the circumstances in the case at bar do not create a legal duty on the defendant to warn or protect persons from criminal attacks of third parties. Accordingly, the trial court properly granted Goodlife’s summary judgment, and we therefore affirm the judgment of the circuit court of Cook County.

Affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.


text:
    VINCENT MARTIN, Plaintiff-Appellant, v. YELLOW CAB COMPANY, Defendant-Appellee.
    First District (1st Division)
    No. 1—89—2228
    Opinion filed December 31, 1990.

      Law Offices of Neil Kauffman, of Chicago (Neil Kauffman, of counsel), for appellant.
    Jesmer & Harris, of Chicago (Theodore E. Bacoyanis, of counsel), for appellee.
   JUSTICE MANNING

delivered the opinion of the court:

Plaintiff, Vincent Martin, appeals from the order of the circuit court of Cook County granting defendant Yellow Cab Company’s motion for summary judgment and its denial of plaintiff’s motion to reconsider. The record reveals that on October 15, 1985, plaintiff was involved in a car accident with defendant Albert Stokes, who was driving a cab owned by Yellow Cab Company. As a result of personal injuries sustained by plaintiff during the collision, on October 15, 1987, plaintiff filed suit against Albert Stokes and Yellow Cab Company, alleging negligence on the part of Stokes and vicarious liability against Yellow Cab Company under a theory of respondeat superior. On June 2, 1989, claims against defendant Stokes were dismissed pursuant to Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)), for failure to exercise due diligence in service of process upon him. Thereafter, Yellow Cab Company filed a motion for summary judgment on June 2, 1989, on the grounds of res judicata, asserting that in accordance with Supreme Court Rule 273 (107 Ill. 2d R. 273), a dismissal of its agent Stokes operated as an adjudication on the merits of plaintiff’s claim against Yellow Cab Company.

At the June 9, 1989, hearing on Yellow Cab Company’s motion for summary judgment, plaintiff requested additional time to respond to the motion and moved instanter for leave to file an amended complaint. The request for additional time to respond to the motion was granted. However, the trial court reserved ruling on plaintiff’s motion for leave to file an amended complaint until the hearing scheduled for June 21, 1989, on defendant’s motion for summary judgment. Plaintiff filed his response to the motion and his motion for leave to file an amended complaint. The amended complaint included the additional counts of negligent entrustment and negligent hiring against Yellow Cab Company.

At the June 21, 1989, hearing on defendant’s motion for summary judgment, the trial court granted defendant’s motion and denied plaintiff’s motion for leave to file an amended complaint and his motion to depose Yellow Cab Company. Plaintiff filed a motion to reconsider the trial court’s June 21, 1989, order and vacate the summary judgment which was denied by the trial court on July 27, 1989. The court reasoned that plaintiff failed to present any new case law or any new interpretation of the supreme court rules.

Plaintiff contends on appeal that the trial court abused its discretion in refusing- to consider his motions for leave to file an amended complaint and leave to depose Yellow Cab Company until after it ruled on defendant’s motion for summary judgment. Summary judgment is a drastic means of disposing of litigation and should be granted only when the right of the moving party is free from doubt and it is determined solely as a question of law. (Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 596, 491 N.E.2d 803; Beverly Bank v. Alsip Bank (1982), 106 Ill. App. 3d 1012, 1016, 436 N.E.2d 598, 602.) Summary judgment should be granted where the pleadings, depositions, and affidavits on file show that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Harrington v. Chicago Sun-Times (1986), 150 Ill. App. 3d 797, 801, 502 N.E.2d 332; Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.

In the present case, the trial court dismissed the complaint against Yellow Cab Company based on its dismissal of Stokes pursuant to Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)), which provides:

“If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court’s own motion.” 107 Ill. 2d R. 103(b).

Dismissal of a complaint pursuant to Rule 103(b) is within the sound discretion of the trial court, and the court’s ruling will not be disturbed on review absent an abuse of discretion. (Schusterman v. Northwestern Medical Faculty Foundation (1990), 195 Ill. App. 3d 632, 638, 552 N.E.2d 1178.) In determining whether a complaint should be dismissed under Rule 103(b), the court may consider: (1) the amount of time it takes to obtain service; (2) plaintiff’s efforts to obtain service; (3) plaintiff’s knowledge of the defendant’s location; (4) the ease with which defendant’s location could have been determined; (5) defendant’s actual knowledge of the pendency of the action; and (6) any special circumstances affecting plaintiff’s efforts. Schusterman, 195 Ill. App. 3d at 638; Gatto v. Nelson (1986), 142 Ill. App. 3d 284, 288, 492 N.E.2d 1, 4.

A dismissal pursuant to Supreme Court Rule 103(b) is an involuntary dismissal, and it is governed by Rule 273, which provides:

“Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.” (107 Ill. 2d R. 273.)

Stokes was involuntarily dismissed for failure to exercise due diligence in service of process upon him. Therefore, his dismissal does not fall within one of the exceptions noted in Rule 273 and the dismissal of Stokes operated as an adjudication on the merits. In Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217, our supreme court specifically addressed the issue before this court, holding:

“The doctrine of res judicata provides that an adjudication upon the merits rendered by a court of competent jurisdiction is conclusive as to the rights of the parties and their privies, and as to them constitutes an absolute bar to subsequent action involving the same claim, demand, or cause of action. [Citation.] The doctrine has special applicability in suits against masters or servants. Thus, the rule has evolved that a judgment for either the master or servant, arising out of an action predicated upon the alleged negligence of the servant, bars a subsequent suit against the other for the same claim of negligence where the agency relationship is not in question. This result obtains even though the defendant in the subsequent suit was not a party to the first action and despite the fact the cases find that a master and servant are technically not in privity.” (Towns, 73 Ill. 2d at 122-23.)

In the present case, the agency relationship between Stokes and Yellow Cab Company was not in dispute and Yellow Cab Company was sued under the theory of respondeat superior. The complaint alleged that Stokes as the cab driver was negligent in his operation of the cab and under the theory of respondeat superior Yellow Cab Company was also liable. The liability of Stokes and Yellow Cab Company “is deemed that of one tortfeasor and is a consolidated or unified one.” (Towns, 73 Ill. 2d at 124.) Since the liability of Yellow Cab Company was predicated upon the alleged negligence of Stokes, as evident by plaintiff’s failure to allege any independent acts of negligence committed by Yellow Cab Company, it was in privy with Stokes, and plaintiff was barred from asserting the same claim against Yellow Cab Company to whom liability was based solely upon the doctrine of respondeat superior.

Plaintiff correctly argues that amendments to pleadings should be liberally allowed (Ill. Rev. Stat. 1987, ch. 110, par. 1 — 101 et seq.), and a court may permit a complaint to be amended at any time prior to final judgment. (Taylor, 142 Ill. App. 3d at 591; Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(a).) However, it is well established that whether an amendment, particularly a late amendment, is granted or denied is within the sound discretion of the trial court. (Taylor, 142 Ill. App. 3d at 591; Intini v. Schwartz (1979), 78 Ill. App. 3d 575, 579, 397 N.E.2d 84, 87.) Moreover, the trial court’s decision denying a motion to amend will not be reversed on appeal absent an abuse of discretion. Williams v. Bolsten (1989), 184 Ill. App. 3d 832, 837, 540 N.E.2d 966; Harrington, 150 Ill. App. 3d 797; Russ v. Pension Consultants Co. (1989), 182 Ill. App. 3d 769, 778, 538 N.E.2d 693.

In determining whether an amended complaint should be allowed, the trial court may consider the timeliness of the proposed amendment. (Harrington, 150 Ill. App. 3d at 805; Talas v. Youngstown Sheet & Tube Co. (1985), 134 Ill. App. 3d 103, 479 N.E.2d 1052.) Moreover, in determining whether there has been an abuse of discretion, a court of review must consider whether the proposed amendment would cure the defective pleading; whether the other party would be prejudiced or surprised by the proposed amendment; the timeliness of the proposed amendment; and whether there were previous opportunities to amend the pleadings. Russ, 182 Ill. App. 3d at 778.

In the instant case, we conclude that the trial court did not abuse its discretion in denying plaintiff’s motion to amend. The accident occurred on October 15, 1985; however, the complaint naming both Albert Stokes and Yellow Cab Company was not filed until October 15, 1987, just prior to the expiration of the statute of limitations. During the two-year period between the accident and the filing of the complaint, plaintiff had ample time to discover any independent causes of action against Yellow Cab Company. In Harrington v. Chicago Sun-Times (1986), 150 Ill. App. 3d 797, we determined that the trial court did not abuse its discretion in denying plaintiff’s motion to amend, where the proposed additional counts were based on facts accessible to the plaintiff when the original complaint was filed. In the instant case, based on the content of the proposed amended complaint, the same facts that were available when plaintiff sought leave to file his amended complaint were available when plaintiff filed his original complaint. Moreover, the motion to amend was filed 20 months after the complaint was filed and more than three years after the accident. (See Taylor, 142 Ill. App. 3d 584.) Notwithstanding the passage of time, on the day that defendant’s motion for summary judgment was scheduled to be heard, plaintiff sought leave to amend his complaint to raise the issues of negligent entrustment and negligent hiring without alleging any facts to support his allegation. Summary judgment is appropriate where a complaint which purports to raise an issue of material fact is not supported by evidentiary facts. Harrington, 150 Ill. App. 3d at 801.

The trial court reviewed the contents of the amended complaint at the June 21, 1989, hearing and after an extensive colloquy with plaintiff’s counsel concluded that plaintiff failed to assert any facts in the amended complaint to support an independent theory of negligence against Yellow Cab Company. Moreover, the trial judge concluded that it was defective and would be subject to a motion to dismiss. Plaintiff’s proposed amended complaint sought to add a negligent entrustment count and a negligent hiring count. However, we have previously held that a negligent entrustment count could not stand against an employer where the employer had admitted responsibility for the conduct of the employee. (Ledesma v. Cannonball, Inc. (1989), 182 Ill. App. 3d 718, 727-28, 538 N.E.2d 655; Neff v. Davenport Packing Co. (1971), 131 Ill. App. 2d 791, 792, 268 N.E.2d 574.) The Neff v. Davenport Packing Co. court reasoned that where liability of a third party is predicated upon the negligent conduct of the driver, the third party is not liable absent the driver’s negligence. In the present case, defendant did not deny plaintiff’s allegation that Stokes was driving the cab with the consent of Yellow Cab Company when it answered the complaint. Therefore, when the complaint based on negligence was dismissed against Stokes, Yellow Cab Company was no longer liable under a negligent entrustment theory.

Plaintiff also sought to add a negligent hiring count in his proposed amended complaint. In addressing this issue, we previously held that in a master-servant relationship, an employer is liable for hiring and retaining unfit and incompetent employees under the tort of negligent hiring where there has been an intentional tort or criminal conduct by the employee. (Prince v. Atchison, Topeka & Santa Fe Ry. Co. (1981), 95 Ill. App. 3d 856, 857-58, 420 N.E.2d 737.) In the case at bar, the record: does not reflect that Stokes’ operation of the cab involved an intentional act or criminal activity. Therefore, plaintiff also could not recover under a negligent hiring theory. The ultimate efficacy of a claim as well as the previous opportunities to assert it should be considered in deciding on a motion to amend. (Bowman v. County of Lake (1963), 29 Ill. 2d 268, 193 N.E.2d 833; Taylor, 142 Ill. App. 3d at 591.) In viewing the ultimate efficacy of the claim, even if the trial court would have allowed the plaintiff to amend his complaint, neither the negligent entrustment theory nor the negligent hiring theory would have affected the outcome of the case. We are compelled to conclude that the trial court did not abuse its discretion in granting defendant’s motion for summary judgment without granting plaintiff leave to amend his complaint since there are no genuine issues of material fact and defendant was entitled to judgment as a matter of law.

Accordingly, the judgment of the circuit court of Cook County granting summary judgment in favor of Yellow Cab Company and denying plaintiff’s motion to file an amended complaint and depose Yellow Cab Company is affirmed.

Affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.


text:
    CHARLES MEEKS, Plaintiff-Appellant, v. THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—90—0777
    Opinion filed December 31, 1990.

      Schultz & Winick, of Chicago (Barry A. Schultz, of counsel), for appellant.
    Roland Burris, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and John A. Morrissey, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE MANNING

delivered the opinion of the court:

The plaintiff, Charles Meeks, appeals from an order of the circuit court of Cook County which on administrative review affirmed the Board of Review of the Illinois Department of Employment Security’s (hereáfter Board’s) denial of plaintiff’s application for unemployment benefits. On appeal the plaintiff contends that the circuit court erred in affirming the Board’s decision because it was based on inadmissible hearsay evidence and because plaintiff’s conduct did not constitute misconduct pursuant to section 602(A) of the Unemployment Insurance Act (Ill. Rev. Stat. 1989, ch. 48, par. 432(A)).

After a claims adjudicator found that plaintiff was ineligible for unemployment benefits because plaintiff was discharged for misconduct connected with work, a hearing was held on plaintiff’s claim before a hearings referee. The plaintiff testified that he worked for Telemation Production, Inc. (hereafter Telemation), from May 1987 until June 2, 1989. Before his discharge he was involved in a dispute with a fellow employee, Mr. Patel. Plaintiff explained the circumstances of the dispute, recalling that he was on an evening break in the company kitchen area eating lunch and watching a basketball game on television.

During this time Mr. Patel came into the kitchen to answer a telephone call. Without speaking to plaintiff, Patel grabbed the television remote control unit from plaintiff’s hand and turned the television off. Plaintiff then grabbed it back, and when Patel grabbed it once again, the remote unit hit plaintiff on the hand, smashing his finger. After being hit on the hand with the remote unit, plaintiff grabbed Patel by the shirt, tearing it in the process. When Patel tried to wrest away, he ran into a support beam.

Plaintiff testified that he never had a previous dispute with this co-worker and was not under the influence of alcohol during this incident or armed with a weapon. Plaintiff did, however, have a nonfunctional stun gun on the premises.

Plaintiff testified that from 5:30 to 7:30 p.m. that day he had attended a going-away party for a fellow employee where he drank one beer and some champagne. Other company employees were at the party and were drinking also. Plaintiff conceded that he had received a prior notice from Telemation in February 1988 that the result of any alcohol use on his part would result in dismissal. It was plaintiff’s impression that it was company policy not to allow drinking on the premises, although the practice occurred.

Cindy Pilger, plaintiff’s direct supervisor at Telemation, testified as to the contents of Patel’s written statement. An objection to this was made on the basis that it was hearsay. This objection was overruled. The hearings referee admitted it “for what its worth.” Pilger testified that plaintiff admitted to an altercation with Patel but never stated that Patel had hit him. Pilger had heard rumors that plaintiff had a stun gun but did not know that he was carrying it on the job.

Ms. Pilger testified that she had a prior conversation with plaintiff regarding alcohol use. Ms. Pilger testified that it is company policy that Telemation did not want employees consuming alcohol on its premises and did not want employees coming to work in a condition where their job performance would be impaired by alcohol use. She said that the party on the evening of the altercation was not sponsored by Telemation, nor was it held on the premises.

Ms. Pilger testified that in the past Telemation had problems with plaintiff’s attitude relating to other employees. Ms. Pilger and plaintiff discussed plaintiff’s relations with other employees on an ongoing basis. Several days after the altercation with Patel, Ms. Pilger noticed a small wound on Patel’s forehead, and he said that he had been slammed up against a pole.

Henry Tate was the general manager of Telemation. He testified that it was he who made the decision to discharge plaintiff because of the altercation between plaintiff and Patel. Plaintiff objected to Tate’s testimony on the basis of hearsay because Tate related what Patel had told him regarding the incident. The hearings referee overruled the objection, admitting the testimony “for what its worth.”

Besides relating Patel’s version of the altercation, Tate testified that plaintiff told him that Patel had not hit him. While Tate told plaintiff that he could go to the going-away party, Tate did not authorize or condone any use of alcohol at the party and recounted problems with plaintiff’s past alcohol use where plaintiff was told that further alcohol use could lead to termination. Tate said that all of the employees were subject to the no-alcohol rule while working on the premises, but it was not against company rules for employees on a lunch break to go to a nearby restaurant and drink, as long as they did not come back to work intoxicated.

Tate also testified that Telemation had also had problems with plaintiff because he occasionally did not get along with other employees; however, there had not been any prior physical altercations. Tate testified that Patel was very frightened by the incident with plaintiff and, over a hearsay objection, read Patel’s statement that plaintiff allegedly told Patel: “I should have killed you and you better get out of my face before I tear your head off.” When Tate confronted plaintiff about the stun gun, plaintiff admitted having it and flashing it at Patel. Tate said that he had previously inquired about the stun gun but was satisfied when plaintiff admitted owning it. Plaintiff never told his supervisor of the altercation although “its understood that if something like this occurs you’re suppose to report it.” Tate further testified, over a hearsay objection by plaintiff’s counsel, that people attending the going-away party told him that plaintiff was drinking and had become loud and rowdy.

Plaintiff responded at the hearing by saying that he did not grab Patel by the neck, only by the shirt, and this was a reaction to Patel’s hitting plaintiff on the finger with the remote control device. Plaintiff denied having the stun gun during the altercation.

The hearings referee decided to affirm the determination of the claims adjudicator. In its finding of fact the referee stated:

“The claimant was discharged as the result of an altercation with a co-worker. The co-worker had snatched a remote control unit out of the claimant’s hand in order to turn off a loud playing television. The claimant grabbed the remote control unit back, and the co-worker slammed the unit on the claimant’s finger. The claimant responded with a physical attack upon the coworker, in which the co-worker’s forehead was cut. Two witnesses testified to seeing a wound on the co-worker’s forehead after the weekend when the co-worker returned to work. The claimant’s denial that he caused a blow to the co-worker’s head during the altercation on June 2, 1989 was not credible.”

The referee concluded that section 602(A) of the Unemployment Insurance Act was violated and:

“The claimant’s response to a dispute with a co-worker over control over a television was out of all proportion to the provocation and beyond the needs of self-defense. The claimant’s violent attack upon the co-worker constituted a deliberate and willful violation of a reasonable employer policy which harmed the employing unit. The referee finds that the claimant was discharged for misconduct connected with the work.”

The plaintiff requested review of the hearings referee’s decision by the Board. The Board affirmed the referee’s decision and adopted the referee’s findings. The Board’s decision was affirmed by the circuit court.

The plaintiff first contends that the Board’s decision was based upon inadmissible hearsay evidence. The plaintiff argues that the majority of the evidence relied upon by the Board was in the form of testimony concerning alleged statements by Mr. Patel. The defendant asserts that the findings made by the hearings referee and adopted by the Board were supported by competent evidence.

Hearsay evidence, when objected to, is not admissible in administrative proceedings. (Spaulding v. Howlett (1978), 59 Ill. App. 3d 249, 375 N.E.2d 437.) Although the improper consideration of hearsay evidence could constitute reversible error, the Board did not rely upon the hearsay evidence.

The Board found that plaintiff was discharged as a result of his altercation with Patel. The Board found that the plaintiff’s attack on Patel after the latter grabbed the remote control unit was not warranted. The Board found that during this altercation Patel’s forehead was cut. These facts were established through plaintiff’s own testimony and Ms. Pilger’s testimony that she saw the cut on Patel’s head. The hearsay evidence objected to included statements made to Tate regarding the fact that plaintiff was intoxicated and Patel’s written statement which set forth his version of the attack. Patel’s statement set forth evidence which, if accepted by the Board, suggested a much higher degree of culpability than the Board found. At the hearing the hearings referee allowed the hearsay evidence “for what its worth.” His findings of fact, which the Board adopted, demonstrate that he did not rely on this evidence in making his decision. We therefore reject plaintiff’s assertion that improper evidence was considered.

Under section 602(A) of the Unemployment Insurance Act (Ill. Rev. Stat. 1989, ch. 48, par. 432(A)), an employee is ineligible for benefits if he has been discharged for “misconduct connected with his work.” Plaintiff contends that his actions did not constitute misconduct under this section because, at the hearing, the employer failed to set forth a rule or policy violated by plaintiff, as required by the statute. Also, plaintiff argues, if a policy against assaulting co-workers is assumed or implied, the evidence does not support a violation of this rule and, if a violation did occur, it was not shown to be willful. Finally, plaintiff argues that there was no showing of harm to the employer or to a fellow employee as required by statute.

It is well settled in Illinois that the findings and conclusions of an administrative agency on questions of fact are prima facie true and correct. (Pesce v. Board of Review of the Department of Employment Security (1987), 161 Ill. App. 3d 879, 881, 515 N.E.2d 849.) The function of a court of review is limited, therefore, to ascertaining whether the decision of the administrative agency is against the manifest weight of the evidence. (Ferretti v. Department of Labor (1987), 115 Ill. 2d 347, 353, 506 N.E.2d 560.) Where it appears that the agency’s findings are not supported by substantial evidence, they will be reversed. Galarza v. Department of Labor (1987), 167 Ill. App. 3d 163, 168, 520 N.E.2d 672; Gee v. Board of Review of the Department of Labor (1985), 136 Ill. App. 3d 889, 895, 483 N.E.2d 1025.

The Unemployment Insurance Act (Ill. Rev. Stat. 1987, ch. 48, par. 300 et seq.) provides insurance benefits to alleviate the economic hardship occasioned by involuntary unemployment. However, the employee-claimant bears the burden of establishing his entitlement to benefits under the Act. (Clark v. Board of Review of the Illinois Department of Labor (1984), 126 Ill. App. 3d 559, 467 N.E.2d 950.) If a person is discharged because of his own misdeeds, the Act does not provide benefits. Popoff v. Department of Labor (1986), 144 Ill. App. 3d 575, 494 N.E.2d 1266.

Prior to January 1, 1988, Jackson v. Board of Review of the Department of Labor (1985), 105 Ill. 2d 501, 475 N.E.2d 879, had defined “misconduct” under the Act as:

“ ‘[C]onduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.’ ” Jackson, 105 Ill. 2d at 511-12, quoting Boynton Cab Co. v. Neubeck (1941), 237 Wis. 249, 259-60, 296 N.W. 636, 640.

The present definition of “misconduct” was added to section

602(A) of the Unemployment Insurance Act (Ill. Rev. Stat. 1989, ch. 48, par. 432(A)), effective January 1, 1988. The Act states:

“For purposes of this subsection, the term ‘misconduct’ means the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual’s behavior in performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit.” Ill. Rev. Stat. 1989, ch. 48, par. 432(A).

Both parties agree that one of the elements to be proven under the new definition of misconduct is “a reasonable rule or policy.” The Board argues, citing Blake v. Commonwealth, Unemployment Compensation Board of Review (1981), 56 Pa. Commw. 358, 425 A. 2d 43, that a reasonable rule or policy does not have to be proven by direct evidence but can be found by the court to exist through a commonsense realization that some behavior intentionally and substantially disregarded an employer’s interest. The plaintiff argues that a reasonable rule or policy must be proven by direct evidence and no evidence was introduced that Telemation did not allow physical altercations between co-workers during working hours. Although no one specifically testified that fighting on the job was not allowed, we believe plaintiff’s argument is belied by commonsense business practices. With the exception of some business ventures engaged in professional sports, .any employer would obviously have a policy against physical violence between co-employees during working hours on the premises. Also, the fact that plaintiff’s inability to get along with others was discussed with him as a problem, and the fact that employees were supposed to inform their supervisor of any incident like the instant one would suggest a policy against altercations between employees.

We also find that the rule or policy against fighting on the job was violated and plaintiff’s conduct was wilful. Although legitimate actions taken in self-defense are not misconduct (Rias v. Department of Employment Security (1989), 187 Ill. App. 3d 328, 543 N.E.2d 211), the Board found that plaintiff acted beyond the boundaries of self-defense. We see no reason to disturb this finding.

Finally, we find that the plaintiff’s conduct caused harm to “the employing unit or other employees.” (Ill. Rev. Stat. 1989, ch. 48, par. 432(A).) An employee’s wilful action which merely threatened the safety of other workers has been held to constitute misconduct. (See Granite City Steel Division of National Steel Corp. v. Board of Re view of the Department of Labor (1979), 68 Ill. App. 3d 264, 385 N.E.2d 931.) In this case a fellow employee suffered actual injury at the hands of plaintiff. This satisfies the statutory requirement of harm to the employing unit or other employees.

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

Affirmed.

CAMPBELL and O’CONNOR, JJ, concur.