author: JUSTICE SLATER

text:
    DEANNA SWOPE, Plaintiff-Appellant, v. NORTHERN ILLINOIS GAS COMPANY et al., Defendants-Appellees.
    Third District
    No. 3—93—0015
    Opinion filed November 2, 1993.

      Louis E. Olivero, of Louis E. Olivero & Associates, of Peru, for appellant.

      E. Kent Ayers and Dinah Lennon Archambeault, both of Spesia & Ayers, of Joliet, for appellee Northern Illinois Gas Company.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiff Deanna Swope was severely injured when the vehicle in which she was riding went into a ditch and struck an embankment. Plaintiff filed a complaint against the Illinois Department of Transportation (the Department) and Northern Illinois Gas Company (Northern), which had constructed the embankment as part of an access road. The claim against the Department was dismissed for lack of jurisdiction and is not at issue here. The trial court granted defendant Northern’s motion for summary judgment and plaintiff appeals. We affirm.

On October 14, 1989, plaintiff was a passenger in a pickup truck driven by Gene Pikula. At approximately 3:15 a.m., Pikula and plaintiff were traveling north on Illinois Route 251 when, according to Pikula, a deer suddenly ran onto the road and he swerved into a ditch to avoid it. According to the deposition testimony of State Trooper Brian Waitkus, the truck traveled approximately 375 feet in the ditch, struck the embankment, and then rolled over several times, traveling an additional 141 feet before coming to a rest. According to Pikula, however, his vehicle was only 10 feet from the embankment when he drove off the road and into the ditch. Plaintiff suffered severe injuries, including a fractured spine. Plaintiff’s complaint alleged that defendant owed a duty of ordinary care “for the safety of the general public traveling along Illinois Route 251” and that defendant was negligent in that it:

“(a) Constructed, installed and maintained an access driveway and embankment without obtaining the requisite permit from [the Illinois Department of Transportation].
(b) Constructed, installed and maintained a commercial access driveway and embankment without meeting the requirements of such a driveway as required by [the Illinois Department of Transportation].
(c) Constructed, installed and maintained a commercial driveway and embankment in a location where defendant knew or in the exercise of reasonable care should have known that they would obstruct public travel.
(d) Failed to maintain the commercial access driveway and embankment with ordinary and reasonable care for the safety of the public.
(e) Failed to place barricades, guardrails, barriers, warnings, illuminated lamps, signals or other safeguards at said place to protect or warn the traveling public.
(f) Failed to place delineators and reflectors along the outer edge of said commercial access driveway and embankment.
(g) Created a dangerous condition or obstruction in or near a public roadway which was reasonably calculated to endanger the traveling public in its lawful use of the roadway.
(h) Created a nuisance, by virtue of its leaving the embankment unprotected, which nuisance endangered public travel at the location described above.”

The trial court granted the defendant’s motion for summary judgment, finding that defendant owed no duty to plaintiff. Plaintiff contends that landowners who create artificial conditions on their property near a public highway owe a duty to those who foreseeably deviate from the ordinary course of travel. Plaintiff also maintains that a duty arises from section 9 — 113 of the Illinois Highway Code (Ill. Rev. Stat. 1989, ch. 121, par. 9 — 113), which requires a utility company to obtain permission from the State highway authority before placing or constructing drains or other equipment upon or along a highway.

Summary judgment should be granted where the pleadings, depositions and affidavits reveal that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 583 N.E.2d 538; Ill. Rev. Stat. 1989, ch. 110, par. 2-1005(c).) In a negligence action, the plaintiff must set out sufficient facts to establish the existence of a duty, a breach of that duty and an injury proximately caused by that breach. (Vesey, 145 Ill. 2d 404, 583 N.E.2d 538; Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 566 N.E.2d 1365.) Whether a duty exists is a question of law and depends upon whether there is a relationship between the parties which the law recognizes as imposing an obligation on the defendant to act reasonably for the protection of the plaintiff. (Vesey, 145 Ill. 2d 404, 583 N.E.2d 538; Gouge v. Central Illinois Public Service Co. (1991), 144 Ill. 2d 535, 582 N.E.2d 108.) Relevant factors in determining the existence of a duty include the foreseeability of injury, the likelihood of injury, the magnitude of the burden of guarding against the injury, the consequences of placing that burden on the defendant and the possible seriousness of the injury. (Gouge, 144 Ill. 2d 535, 582 N.E.2d 108; Deibert v. Bauer Brothers Construction Co. (1990), 141 Ill. 2d 430, 566 N.E.2d 239.) Absent a showing from which the court can infer the existence of a duty, summary judgment in favor of the defendant is proper. Vesey, 145 Ill. 2d 404, 583 N.E.2d 538; Battisfore v. Moraites (1989), 186 Ill. App. 3d 180, 541 N.E.2d 1376.

When considering the duty owed by a possessor of land who creates an artificial condition near a highway, Illinois courts have frequently cited to section 368 of the Restatement (Second) of Torts, which states:

“A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel.” Restatement (Second) of Torts §368 (1965).

See Gouge, 144 Ill. 2d 535, 582 N.E.2d 108; Boylan v. Martindale (1982), 103 Ill. App. 3d 335, 431 N.E.2d 62; Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721, 423 N.E.2d 519.

For a duty to arise under section 368, the person to whom it is owed must foreseeably deviate from the roadway in the ordinary course of travel, and the distinction is “ ‘not one between inadvertent and intentional deviations, but between those which are normal incidents of travel and those which are not.’ ” (Battisfore, 186 Ill. App. 3d at 189, 541 N.E.2d at 1382, quoting Restatement (Second) of Torts §368, Comment g, at 270 (1965).) Plaintiff maintains that it is reasonably foreseeable that a person traveling on a highway will encounter a deer and drive into a drainage ditch to avoid a collision. Plaintiff notes the deposition testimony of Trooper Waitkus that it would not be unusual for a deer to be present in the area of the accident and that there have been numerous accidents involving deer on Interstate 39, some two or three miles east of the accident site.

In DiBenedetto v. Flora Township (1992), 153 Ill. 2d 66, 605 N.E.2d 571, plaintiff’s decedent was killed when he drove his car across the oncoming lane of traffic, crossed over a five- to seven-foot-wide shoulder area and landed in a drainage ditch. The trial court granted defendant’s motion to dismiss, finding that defendant owed no duty to plaintiff. In affirming the trial court, our supreme court stated:

“The gist of the complaint in this case was that the ditch along the road was not safe to be driven in. New would dispute that allegation. The question is, Does the defendant township have a duty to the motoring public to make its drainage ditches which run parallel to the traveled way to be safe for vehicular traffic? We hold not. There is no claim here that the traveled portion of the road, including the shoulder, was anything but safe. The drainage ditch was there for the purpose of receiving surface water and thereby protecting the traveled way from flooding. It was not designed to carry vehicular traffic. The right-of-way had three component parts, namely, the traveled way, the shoulder and the drainage ditch. Each of the parts was fulfilling its intended function. What happened in this case was that decedent, for whatever reason, lost control of his car, drove across an oncoming lane of the roadway, on across the shoulder and into the ditch where his car overturned and he was killed.
It is axiomatic that a driver who leaves the traveled way and continues with his automobile across country is bound to strike something sooner or later. In this case, as there were no oncoming vehicles when he crossed over the opposite lane, the driver plunged into a roadside ditch and tipped over. Had the ditch not been there, the car would have likely struck something else, be it a utility pole, a fence, a tree or whatever. When an out of control automobile is brought to an abrupt stop by an immovable object, damage, injury or even death may be the result. That is what happened in this case. ***
Drainage ditches along streets and highways are both commonplace and necessary. People are not expected to drive in them and the public cannot be an insurer of those who do. Although there is a paucity of cases on this issue, we interpret that lack to the fact that the conclusion is obvious and that the opposite result would be contrary to normal expectations and experience in the affairs of life.” DiBenedetto, 153 Ill. 2d at 70-71, 605 N.E.2d at 573.

Later, the DiBenedetto court focused on the issue of foreseeability:

“Foreseeability is but one of the factors to be weighed in determining the existence of a duty. Even if an accident is foreseeable, the resulting burdens and consequences must also be considered before a legal duty will be recognized. While this accident was foreseeable to the extent that, in retrospect, all accidents are foreseeable, this is not sufficient to enlarge the township’s duty. It is, of course, both foreseeable and commonplace that cars will occasionally run into ditches. The instant case, however, is not the type of accident one would expect to occur under normal driving circumstances.” DiBenedetto, 153 Ill. 2d at 72, 605 N.E.2d at 574.

In this case, as in DiBenedetto, the gist of plaintiff’s complaint is that the ditch along the road was not safe to be driven in. In DiBenedetto, the allegations of negligence were the slope and the depth of the ditch and its close proximity to the road. Here, the alleged negligence consisted of defendant’s obstruction of public travel and its failure to properly construct, maintain and warn of this obstruction. However, as pointed out in DiBenedetto, “[d]rainage ditches along streets and highways are both commonplace and necessary. People are not expected to drive in them.” (DiBenedetto, 153 Ill. 2d at 71, 605 N.E.2d at 573.) Similarly, access roads which cross drainage ditches are commonplace and necessary, and people are not expected to collide with them in the ordinary course of travel. In other words, where there is no duty to make drainage ditches safe for public travel, there is no duty to keep those same ditches free from the type of obstruction at issue here. While we recognize that, unlike this case, the defendant in DiBenedetto was a public entity, we believe that the court’s analysis of the duty of care owed to motorists traveling in roadside ditches is broadly applicable. We also believe that our decision is consistent with the holdings of other cases in which no duty has been found to exist despite the existence of artificial conditions near roadways. See Hutchings v. Bauer (1992), 149 Ill. 2d 568, 599 N.E.2d 934 (barrier made of posts and logs located 15 to 20 feet from road); Gouge, 144 Ill. 2d 535, 582 N.E.2d 108 (utility pole approximately 15 feet from paved surface); Battisfore, 186 Ill. App. 3d 180, 541 N.E.2d 1376 (cement pillar two feet from roadway); Hoffman, 97 Ill. App. 3d 721, 423 N.E.2d 519 (utility pole located 12 to 15 feet from road); West v. Faurbo (1978), 66 Ill. App. 3d 815, 384 N.E.2d 457 (concrete block four or five feet from sidewalk).

Furthermore, although we agree with plaintiff that it is foreseeable that one may encounter a deer and drive into a ditch, “[e]ven if an accident is foreseeable, the resulting burdens and consequences must also be considered before a legal duty will be recognized” (DiBenedetto, 153 Ill. 2d at 72, 605 N.E.2d at 574). We find that it would be unduly burdensome to require landowners to somehow construct and maintain access roads in such a manner that persons suddenly leaving the roadway will be protected from the harm of colliding with the road or embankment. Of course, our finding that no duty exists under the facts presented here does not provide complete immunity to landowners who are negligent in the construction and maintenance of access roads. For example, if a person was injured while changing a flat tire on an access road because the road was negligently constructed, a duty might be imposed. However, “[n]o duty ever found to exist in a negligence case is unlimited in its application. It cannot be applied to protect a plaintiff under any and all circumstances.” (Lemings v. Collinsville School District Number Ten (1983), 118 Ill. App. 3d 363, 378, 454 N.E.2d 1139, 1148 (Jones, J., specially concurring).) We hold that, under the circumstances presented here, defendant did not owe a duty to plaintiff.

Plaintiff also contends that a duty of care arises from section 9— 113 of the Illinois Highway Code, which provides in part:

“§9 — 113. (a) No ditches, drains, track, rails, poles, wires, pipe line or other equipment of any public utility company, municipal corporation or other public or private corporation, association or person shall be located, placed or constructed upon, under or along any highway, or upon any township or district road, without first obtaining the written consent of the appropriate highway authority as hereinafter provided for in this Section.” (Ill. Rev. Stat. 1989, ch. 121, par. 9 — 113(a).)

Plaintiff relies on Reith v. General Telephone Co. (1974), 22 Ill. App. 3d 337, 317 N.E.2d 369, in which the plaintiff fell into an excavation site in which underground cables were being installed. The trial court granted summary judgment to the defendant telephone company on the grounds that the construction company hired by defendant to perform the work was an independent contractor. The appellate court reversed, finding that the terms of the contract between the defendant and the construction company did not establish independent contractor status as a matter of law. As an additional ground for reversal, the court noted that section 9 — 113 required the defendant to obtain permission from State and local authorities prior to installing the cables. The court found that a nondelegable duty of care arises when an individual or corporation acts under a franchise or license granted by public authority. The court concluded:

“Furthermore, the implied conditions of this license would reasonably include the duty of a licensee to keep the construction site along a public right-of-way safe for passers-by. The defendant telephone company had the duty to instaU the lines or cable in such a manner as to avoid interfering with the plaintiff’s right to a safe use of the streets and sidewalks. Although the defendant could delegate the actual work of installation, it is clear that the duty or responsibility to keep the public ways safe was non-delegable since it was a condition of the license held by the defendant.” Reith, 22 Ill. App. 3d at 343.

We find Reith to be inapposite to the case at bar. The issue in Reith was whether the defendant could escape liability by delegating its duty of care to an independent contractor, not whether a duty in fact existed. Moreover, the underlying duty referred to in Reith was that of keeping a construction site along a public right-of-way safe for passers-by. Clearly no construction was underway in this case, as the record indicates that the permit for construction of defendant’s access road was issued in 1958. Furthermore, we find that any duty arising from section 9 — 113 of the Illinois Highway Code does not include a duty to protect the plaintiff from the type of injury suffered here. To impose liability for violation of a statute or rule designed to protect human life or property, a plaintiff must show that the violation proximately caused the injury, that plaintiff belonged to the class of persons whom the statute was designed to protect, and that the injury suffered by plaintiff was the kind of injury which the statute sought to prevent. (Gouge, 144 Ill. 2d 535, 582 N.E.2d 108.) Assuming that section 9 — 113 was designed to protect human life, and assuming that defendant’s alleged violation of the statute proximately caused the injury, and further assuming that plaintiff belonged to the class of persons intended to be protected, we find that section 9 — 113 was not intended to prevent injuries caused by persons suddenly leaving the roadway, entering a drainage ditch and colliding with an embankment supporting an access road. A contrary interpretation is simply not supported by the language of section 9 — 113.

Finally, we find that summary judgment is not precluded merely because Pikula testified that his truck left the road near the embankment, while Trooper Waitkus indicated that the vehicle traveled 375 feet in the ditch before striking the embankment. Factual issues which are not material to the essential elements of the cause of action or defense, regardless of how sharply controverted, do not warrant the denial of summary judgment. (Boylan, 103 Ill. App. 3d 335, 431 N.E.2d 62.) We find that the exact location where Pikula’s truck entered the ditch is immaterial to the issue of whether defendant owed a duty of care to plaintiff.

For the reasons stated above, the judgment of the circuit court is affirmed.

Affirmed.

BARRY and LYTTON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    KACEY L. STIFF, by her Mother and Next Friend, Deana S. Stiff, et al., Plaintiffs-Appellees, v. EASTERN ILLINOIS AREA OF SPECIAL EDUCATION et al., Defendants-Appellants.
    Fourth District
    No. 4—93—0317
    Argued August 19, 1993. —
    Opinion filed September 9, 1993.—
    Modified on denial of rehearing October 20, 1993.

      John P. Ewart (argued) and Jonathan L. Kazense, both of Craig & Craig, of Mattoon, for appellants.
    James R. Glenn (argued), of Glenn & Logue, of Mattoon, for appellees.
   JUSTICE LUND

delivered the opinion of the court:

Defendants bring this interlocutory appeal of an order of the circuit court of Coles County denying their motion to dismiss all counts of the complaint. Kacey Stiff was a handicapped student attending the Eastern Illinois Area of Special Education (EIASE) when she, along with six other students, was taken on a field trip to Fox Ridge State Park on October 30, 1990. Kacey sustained injuries resulting from a fall from a foot bridge. The complaint alleges that the EIASE teachers’ failure to properly supervise the activities of the students was negligent and constituted wilful and wanton conduct. The trial court denied the motion to dismiss on grounds that the accident did not occur on property owned by defendant local governmental entity. We affirm and remand.

On appeal, defendants argue section 3 — 108(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1991, ch. 85, par. 3 — 108(a)) bars claims for both negligence and wilful and wanton conduct. Alternatively, defendants argue section 24 — 24 of the School Code (Code) (Ill. Rev. Stat. 1991, ch. 122, par. 24 — 24) confers immunity upon teachers from suits for negligence arising from activities connected with the school program.

Section 3 — 108(a) of the Act provides that no local public entity or public employee is liable for an injury caused by a failure to supervise an activity on, or the use of, any public property. (Ill. Rev. Stat. 1991, ch. 85, par. 3—108(a).) The Act defines “public property” to mean real or personal property owned or leased by a local public entity. (Ill. Rev. Stat. 1991, ch. 85, par. 3—101.) The Act further specifies that “[ljocal public entity” does not include “the State or any office, officer, department, division, bureau, board, commission, university or similar agency of the State.” (Ill. Rev. Stat. 1991, ch. 85, par. 1—206.) Kacey’s injuries occurred at Fox Ridge State Park, operated under the jurisdiction of the Illinois Department of Conservation. A strict reading of the Act requires the conclusion that section 3—108(a) cannot confer immunity upon a public employee for injuries sustained as a result of a failure to supervise an activity on property owned by the State.

In response, defendants contend that State-owned property should be considered “public property” under the Act. They argue the State has no need or incentive to provide a separate form of immunity as to its “property,” because it has a broader form of general immunity through the State Lawsuit Immunity Act, which states:

“Except as provided in the ‘Illinois Public Labor Relations Act’, enacted by the 83rd General Assembly, or except as provided in ‘AN ACT to create the Court of Claims, to prescribe its powers and duties, and to repeal AN ACT herein named’, filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court.” (Ill. Rev. Stat. 1991, ch. 127, par. 801.)

This statute, defendants conclude, indicates that the legislature has never made any effort to provide a limited form of immunity for State-owned property. We find the argument unpersuasive and lacking full explanation.

Secondly, defendants contend that even if the accident did not occur on “public property” under the terms of the Act, the school district conducting the field trip represents a “local public entity” and its use of the State park is no different than use of recreational facilities owned by the local public entity. We agree that the plain language of section 3 — 108(a) of the Act gives no indication the legislature contemplated a difference between property owned by the State and property owned by local public entities. However, we cannot ignore the plain language of the Act in defining its terms. The trial court properly denied the motion to dismiss under section 3 — 108(a) of the Act.

Next, defendants contend that section 24 — 24 of the Code bars the negligence claims in plaintiffs’ complaint. Section 24 — 24 provides:

“Teachers and other certificated educational employees shall maintain discipline in the schools, including school grounds which are owned or leased by the board and used for school purposes and activities. In all matters relating to the discipline in and conduct of the schools and the school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program, including all athletic and extracurricular programs, and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 122, par. 24-24.

In Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705, the supreme court held that this section confers upon educators the status of parent or guardian in relation to the students. Prior to the supreme court decision in Cates v. Cates (1993), 156 Ill. 2d 76, it was generally agreed in Illinois that a parent was not liable for injury to his or her child absent wilful and wanton misconduct, and educators standing in loco parentis were immune from suits alleging ordinary negligence. (Kobylanski, 63 Ill. 2d at 172-73, 347 N.E.2d at 709.) Cates changes the picture by holding that there can be recovery against a parent for negligence, except “conduct inherent to the parent-child relationship; such conduct constitutes an exercise of parental authority and supervision over the child or an exercise of discretion in the provision of care to the child.” (Cates, 156 Ill. 2d at 104-05.) The Cates opinion also states:

“The standard we have thus developed focuses primarily on conduct inherent to the parent-child relationship, which conduct we describe by approximating the Gollar[ v. White (1963), 20 Wis. 2d 402, 122 N.W.2d 193,] standard without its enumerated duties. Such a standard is consistent with other jurisdictions which have abrogated the immunity in order to achieve greater clarity in the area of parent-child negligence. The standard we have created is not, however, as extreme because we do not fully abrogate the immunity, but rely on an exception. Our standard also allows a broader area of negligent conduct to remain immunized. Thus, under our standard, parental discretion in the provision of care includes maintenance of the family home, medical treatment, and supervision of the child. A child may attempt to sue a parent alleging that the child fell on a wet, freshly mopped floor in the home, but the immunity would bar such an action because the parent was exercising his discretion in providing and maintaining housing for the child.” Cates, 156 Ill. 2d at 105.

The important test is not for “ ‘family purposes’ ***, but whether the alleged conduct concerns parental discretion in discipline, supervision and care of the child.” (Cates, 156 Ill. 2d at 104.) Cates held that a father was not immune where the negligence involved the operation of a motor vehicle.

We find the Cates opinion requires a finding that teachers “standpng] in the relation of parents and guardians” (Ill. Rev. Stat. 1991, ch. 122, par. 24—24) can also be subjected to negligence claims, except where the conduct constitutes the exercise of teacher authority and supervision over the child, or in the exercise of discretion in the provision of care to the child. We find it is consistent with the Cates opinion to hold that teacher discretion, which is immune, includes maintenance of the classroom, medical treatment necessarily decided by the teacher, and supervision of the child in the school on the playground and on authorized school outings.

In 1975, the statute was amended, adding the language “including school grounds *** used for school purposes and activities.” (Ill. Rev. Stat. 1991, ch. 122, par. 24 — 24.) Plaintiffs contend the purpose of this amendment was to make the scope of the Code immunity consistent with the scope of immunities afforded under the Act. As such, plaintiffs contend the legislature restricted the application of section 24 — 24 of the Code to activities occurring on school grounds owned or leased by the school board. Since the injuries in the case at hand occurred off school grounds, plaintiffs argue section 24 — 24 of the Code is inapplicable. We disagree.

We read nothing in section 24 — 24 of the Code limiting its application to school grounds. The language “including school grounds” is intended to make clear that school grounds, as well as the classroom, are covered. The reasoning behind this interpretation is made clear in subsequent language of the paragraph extending the scope to all activities connected to school programs. The programs include athletic and extracurricular outings, many of which necessarily take place on property not owned by the school district. Field trips to State parks which expand children’s knowledge of nature, visits to local manufacturing facilities or utilities such as electrical generating plants, and opportunities to see State government in operation are all activities recognized as beneficial to the education of children. Any other interpretation of the statute would discourage teachers in providing the best educational opportunities for their students.

Plaintiffs contend the 1975 amendment, adding the language “including school grounds *** used for school purposes and activities,” was the legislature’s direct response to Mancha v. Field Museum of Natural History (1972), 5 Ill. App. 3d 699, 703, 283 N.E.2d 899, 903, where the First District Appellate Court found section 24 — 24 of the Code applicable to a teacher’s alleged negligence that occurred during a field trip to the museum. Although the Mancha decision never directly addresses the issue of a teacher’s liability for student injuries occurring on private property, the court found no obstacle in applying section 24 — 24 of the Code. Plaintiffs offer no support for their assertion that the Mancha decision influenced the legislature in any way. On the contrary, the supreme court in Kobylanski remarked that since the legislature offered no further explanation of its intent in regard to the scope of section 24 — 24 of the Code, it can be assumed that it agreed with the interpretation of the appellate court decisions. (Kobylanski, 63 Ill. 2d at 172, 347 N.E.2d at 709.) Mancha was included in this reference to the appellate court decisions.

Our interpretation of section 24 — 24 of the Code is consistent with a prior decision of this court in Morrison v. Community Unit School District No. 1 (1976), 44 Ill. App. 3d 315, 358 N.E.2d 389, where section 24 — 24 of the Code was applied to a cause of action resulting from a student’s injuries sustained while swimming during a school outing to a private club. Even so, the court did not discuss the issue of activities held on private property. The only case to directly address the issue of whether section 24 — 24 of the Code applies to school activities held on private property is Thomas v. Chicago Board of Education (1978), 60 Ill. App. 3d 729, 736, 377 N.E.2d 55, 59, rev’d on other grounds (1979), 77 Ill. 2d 165, 395 N.E.2d 538, where the First District Appellate Court stated: “It is evident that it is the function performed by the teacher at the time of the occurrence which determines the applicability of the immunity and not the geographical location of the accident.” We fully agree with the Thomas decision in holding section 24 — 24 of the Code applicable to school activities held on private property. To accept plaintiff’s interpretation of the statute would certainly eliminate a variety of extracurricular activities in our schools.

We recognize the Cates decision changes the law as previously understood by those practicing law in Illinois courts. Because of this change, on return of this case to the trial court, the sufficiency of the pleadings, possibly after amendment, can be determined on the issue of negligence. We affirm the trial court’s denial of the motion to dismiss.

Affirmed and remanded.

STEIGMANN, P.J., and COOK, J., concur.


author: JUSTICE BRESLIN

text:
    DONALD JACKSON, Plaintiff-Appellant, v. HOWARD A. PETERS et al., Defendants-Appellees.
    Third District
    No. 3-93-0024
    Opinion filed November 2, 1993.

      Donald Jackson, of Joliet, appellant pro se.

    Roland W. Burris, Attorney General, of Springfield (John P. Schmidt, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE BRESLIN

delivered the opinion of the court:

The plaintiff, Donald Jackson, appeals from the trial court’s dismissal of his petition for a writ of mandamus. We affirm.

The record shows that the plaintiff is an inmate confined at the Stateville Correctional Center (Stateville). On May 14, 1992, he filed a mandamus petition against the defendants, Howard A. Peters, the Director of the Illinois Department of Corrections, and Salvador Godinez, the warden at Stateville.

The plaintiff alleged in his petition that on February 6, 1992, his fiancee, Jewell Tucker, visited him at Stateville and left a jacket in the visitation room. She was not allowed back into the facility to get the jacket, and it was never returned to her. On February 14, 1992, the Department of Corrections sent a letter to Tucker informing her that her visitation privileges were suspended for six months for bringing contraband into Stateville. The letter stated she could resume visitation on August 6, 1992.

The plaintiff further alleged that the defendants’ termination of Tucker’s visitation rights violated his rights to due process. Specifically, he contended that they failed to give him notice of the disciplinary charges against him and failed to give him a hearing on the charges. He requested that the trial court order the defendants to hold such a hearing or restore Tucker’s visitation privileges. In addition, he sought a monetary award for compensatory and punitive damages. The defendants filed a motion to dismiss the petition which the trial court granted on November 19,1992.

On appeal, the plaintiff argues that the trial court erred in granting the defendants’ motion to dismiss. Specifically, he alleges that his complaint set forth a cause of action for the violation of his due process rights.

We first note on appeal that the trial court properly dismissed the plaintiff’s petition insofar as it sought to compel the defendants to restore Tucker’s visitation privileges. We do so based on our finding that the issue was moot.

A mandamus petition will be dismissed as moot if no actual rights or interests of the parties remain or if events occur that make it impossible for the court to grant effectual relief to either party. People ex rel. Hartigan v. Illinois Commerce Comm’n (1985), 131 Ill. App. 3d 376, 475 N.E.2d 635.

Here, the suspension of Tucker’s visitation privileges lasted only until August 6, 1992. As such, a writ of mandamus directing the defendants to grant the plaintiff a hearing or to restore Tucker’s visitation privileges would not have affected the rights and interests of the parties after that date. As noted above, the petition was not dismissed until November 19, 1992, which was long after the visitation privileges were restored. Therefore, since the relief requested was already restored, the issue was moot.

We now turn to the plaintiff’s contention that he was entitled to compensatory and punitive damages because his due process rights were violated. He argues that he had a State-created liberty interest in receiving visits from Tucker that was violated when her visitation privileges were terminated. We note that the plaintiff does not contest the defendants’ finding that Tucker brought contraband into Stateville.

The statute that creates the right in question states that all institutions and facilities of the Department of Corrections shall permit every committed person to receive visitors, except in case of abuse of the visiting privilege, or when the chief administrative officer determines that such visiting would be harmful or dangerous to the security, safety, or morale of the institution or facility. Ill. Rev. Stat. 1991, ch. 38, par. 1003 — 7—2(f).

In the case at hand, we note that while the statute does create a general due process right for inmates to receive visitors, it also imposes reasonable limitations upon that right. One of the limitations is that the right can be suspended if an abuse of the visitation privilege occurs. Here, an abuse of the right occurred when Tucker brought contraband into the facility. We therefore find that the defendants had the authority to suspend the right, and, as such, no due process violation occurred.

Accordingly, the judgment of the circuit court of Will County is affirmed.

Affirmed.

LYTTON and STOUDER, JJ., concur.


text:
    VIRGINIA CRONKHITE, Plaintiff-Appellant, v. RUTH FEELEY, Indiv. and as Special Adm’r of the Estate of Allison Feeley, Deceased, Defendants-Appellees.
    Third District
    No. 3-93-0122
    Opinion filed November 4, 1993.
    George J. Witous, of George J. Witous, P.C., of Oak Lawn (Catherine J. Berger and Nelson Cotnoir, of counsel), for appellant.
    James D. Grumley, of Rooks, Pitts & Poust, of Joliet (Pamela Davis Gorcowski, of counsel), for appellees.
   JUSTICE BRESLIN

delivered the opinion of the court:

The plaintiff, Virginia Cronkhite, sued her landlord for injuries she received when she fell on ice in the parking lot of her apartment building. The plaintiff complains of error in setting aside the jury verdict in her favor and in directing a verdict in favor of the landlord in the trial that followed. We hold that the issue of the correctness of the order for a new trial is res judicata and affirm the directed verdict.

Three trials were conducted on this case. The first resulted in a mistrial. The second resulted in a verdict for the plaintiff in the amount of $67,000 which was reduced by the 10% comparative negligence of the plaintiff. The trial court granted the defendants’ post-trial motion for a new trial on the basis that the 10% comparative negligence was against the manifest weight of the evidence. The plaintiff filed a petition for leave to appeal from the order for a new trial, and the petition was denied.

At the third trial, the plaintiff testified that at the time of her accident, she was 68 years old and had been living in the same apartment for approximately 13 years. There had been a snowfall on the Sunday or Monday preceding her fall. The snow was approximately two inches deep and covered the parking lot provided for the building tenants. By Thursday, the day of the accident, the snow had been compacted by vehicle traffic in the parking lot, had partially melted and refrozen each day and there were frozen ruts which marked the traffic patterns in the lot. Between these frozen ruts the ground was clear of ice and snow.

On the day of the accident, the plaintiff exited her vehicle in the parking lot at approximately 7:15 p.m. She walked the most direct route from her car to the doorway of the building, which required her to step over the frozen ruts in the parking lot. While trying to step over one of the ruts, she slipped and fell. The plaintiff testified that there was a mercury vapor lamp located on the top of the apartment building which helped dispel the darkness but did not provide good illumination of the entire parking lot. She also testified that following the snowfall, the parking lot appeared to have been plowed, although there were still scattered patches of snow covering 25% of the lot.

At the close of the plaintiff’s case, the defendants moved for a directed verdict. The trial court found that the plaintiff had presented no evidence that the defendants had been negligent. Therefore, it directed a verdict in favor of the defendants.

The plaintiff first argues that the jury verdict in the second trial should not have been set aside. Although neither party has raised the issue of the effect of our earlier denial of leave to appeal on our current ability to rule on this issue, this question must be answered before we proceed. (See Hux v. Raben (1967), 38 Ill. 2d 223, 230 N.E.2d 831 (an appellate court may decide a case on grounds not raised by the parties).) While we find that there appears to be a conflict in the rulings of the Illinois Supreme Court on the issue, we conclude that review of the new trial order is precluded by our earlier denial of the petition for leave to appeal.

In Robbins v. Professional Construction Co. (1977), 45 Ill. App. 3d 524, 359 N.E.2d 1121, this court held that the denial of a petition for leave to appeal on the question of whether a new trial order was proper precluded further review of the question on a later appeal. (See also Martino v. Barra (1973), 10 Ill. App. 3d 97, 293 N.E.2d 745; Department of Public Works & Buildings v. Kelly (1976), 40 Ill. App. 3d 896, 353 N.E.2d 195.) The Illinois Supreme Court affirmed that conclusion. Robbins v. Professional Construction Co. (1978), 72 Ill. 2d 215, 380 N.E.2d 786.

More recently, however, the supreme court ruled that the denial of a petition for interlocutory relief is not “an exotic form of res judicata”; it “means only that a majority of the upper court could not be mustered” to support the petition. (Kemner v. Monsanto Co. (1986), 112 Ill. 2d 223, 241, 492 N.E.2d 1327.) Based on that, the court proceeded to consider the propriety of a trial court order denying a motion to dismiss based on forum non conveniens which had previously been the subject of a denied petition for leave to appeal.

Thus we are faced with the question of whether to follow the supreme court’s opinion in Robbins and deny review of the trial court’s order for a new trial or to follow the supreme court’s opinion in Kemner and proceed with our review. Since Robbins and Kemner can be distinguished on the basis that Robbins concerned a new trial order and Kemner concerned a motion to dismiss based on forum non conveniens, we will follow Robbins and will not review the propriety of the trial court’s order for a new trial inasmuch as it was the subject of an earlier petition for leave to appeal which was denied.

The plaintiff argues next that the trial court erred in directing a verdict in favor of the defendant in the third trial.

In deciding a motion for directed verdict, the trial court must consider whether, in viewing the evidence most favorably to the plaintiff, there is a total lack of evidence to prove any necessary element of the plaintiffs case. (Merlo v. Public Service Co. (1942), 381 Ill. 300, 45 N.E.2d 665.) In the case at bar, the plaintiff claims that the defendants were negligent so we must determine whether she has produced evidence to prove each element of a negligence action.

There are four elements of a negligence claim: (1) existence of a duty owed by the defendant to the plaintiff; (2) breach of that duty; (3) proximate cause; and (4) damages. (Fugate v. Sears, Roebuck & Co. (1973), 12 Ill. App. 3d 656, 299 N.E.2d 108.) Both parties agree that a landlord has no duty to remove snow and ice that have accumulated from natural causes but may be liable if he/she undertakes to remove ice and snow and acts negligently in so doing. (See Williams v. Lincoln Towers Associates (1991), 207 Ill. App. 3d 913, 566 N.E.2d 501.) The validity of this proposition is not at issue and we will not address it.

The plaintiff claims that the defendants were negligent in two ways: first, in failing to adequately remove snow and ice from the parking lot, and second, in failing to sufficiently illuminate the parking lot. On neither claim, however, has the plaintiff produced any evidence of the defendants’ breach of their duty to her. The plaintiff’s sole basis for her claims is her testimony that the lot “appeared” to have been plowed and the lamp on the building did not illuminate the “entire” parking lot. She has presented no evidence that the parking lot had in fact been plowed, not to mention plowed negligently. Nor did she present evidence that a reasonable person would have provided a different kind or number of lights to illuminate the parking lot.

This case is markedly different from Ostry v. Chateau Limited Partnership (1993), 241 Ill. App. 3d 436, 608 N.E.2d 1351. In Ostry the plaintiff presented testimony that the snow-plowing service used by the defendant had piled snow behind the cars and had failed to plow out the parking stalls and clear away the spill off. Another service had to be engaged because of the first service’s deficient performance. The court held that the plaintiff had presented enough evidence of negligence to survive a motion for directed verdict. In the case before us, the plaintiff has presented no evidence that the lot was in fact plowed. The most she has said is that it “appeared” to have been plowed. With regard to the lack of illumination, she has said no more than that the light provided did not penetrate to the far corners of the parking lot.

Based on our analysis, we find that there is a total lack of evidence to prove a breach of the defendants’ duty to the plaintiff. Therefore, we hold that the trial court did not err in directing a verdict for the defendants.

Accordingly, the judgment of the circuit court of Will County is affirmed.

Affirmed.

BARRY and STOUDER, JJ., concur.


author: JUSTICE MAAG JUSTICE CHAPMAN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHEILA BEASLEY, Defendant-Appellant.
    Fifth District
    No. 5—92—0049
    Opinion filed November 1, 1993.

      CHAPMAN, J., specially concurring.
    Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Rod Wolf, State’s Attorney, of Harrisburg (Norbert J. Goetten, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE MAAG

delivered the opinion of the court:

The defendant, Sheila Beasley, was convicted by a jury of second-degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9 — 2(a) (now 720 ILCS 5/9 — 2(a) (West 1992))) for shooting her husband to death. The trial court sentenced the defendant to eight years’ imprisonment. The defendant appeals contending that: (1) the evidence established self-defense; hence, she was not proved guilty beyond a reasonable doubt; (2) the trial court erred in dismissing two potential jurors sua sponte; and (3) her sentence should be reduced in view of several mitigating factors. We affirm.

The relevant facts can be summarized as follows: The defendant married Luther Glen Beasley (hereinafter Glen) in April of 1983. During the course of their marriage, three children were born: Luke, Amanda, and Nathan. Amanda and Nathan have cystic fibrosis and Amanda also has leukemia. According to the defendant, Glen did not physically abuse her until approximately two weeks after they were married. On that occasion, Glen disparaged the defendant’s domestic abilities. In the months and years that followed, Glen physically and verbally abused the defendant often. Without going into the specific details of each instance of abuse, suffice it to say that the defendant was beaten for reasons ranging from the defendant forgetting to purchase Ding Dongs on a shopping trip to the defendant talking or dancing with another man, inciting Glen’s jealousy. The effects of Glen’s abuse toward the defendant ranged from giving her bruises, scratches, and a black eye to breaking her tailbone and forcing her to have intercourse with him. The defendant testified that the abuse occurred when Glen was intoxicated, which was a quite frequent occurrence. The defendant stated that Glen would stay out drinking with his friends after work and that he started taking drugs.

The defendant met Kevin Rice while she worked for his mother at Baby World. In September of 1990, the relationship between the defendant and Rice consisted of merely talking on the telephone about every other day. In October, a sexual relationship developed. The defendant claimed that she started the affair with Rice because: “[There was] no emotion, no love at home, and I just needed a hug instead of a slap all [of] the time. I needed somebody to compliment me instead of putting me down. I just needed somebody in my life that felt like I was a human and not a piece of trash.” Rice and the defendant had sex on only four occasions and were never considering a future together.

The defendant discovered that she was pregnant at the beginning of January 1991. Since Glen had had a vasectomy after Nathan was bom, the defendant knew that the baby was Rice’s child. The defendant contacted Rice and told him that she was pregnant and intended to have an abortion. Rice agreed with the defendant’s decision. This ended the defendant’s and Rice’s relationship.

Julie Cozart, one of the defendant’s best friends at that time, called and made an appointment for the defendant to have an abortion on January 18, 1991, at 9 a.m. The defendant and Julie agreed that they would tell everyone that they were going to Nashville, Illinois, to shop at a craft store. On January 16, 1991, the defendant borrowed some used sanitary pads from Julie. She borrowed the pads so Glen would think that she had started her menstrual cycle and would not be suspicious when she was bleeding after she returned home from having the abortion.

On January 17, 1991, at approximately 3:30 a.m., Glen came home. The defendant heard him take his clothes off and get into bed with Luke. The defendant had started to go to sleep and heard a loud crash. She immediately ran into Luke’s bedroom. Glen had knocked over a three-tier marble nightstand and was “bouncing off [of] the furniture, he couldn’t walk, he was staggering *** and started urinating *** on the patio.” Luke started crying. The defendant asked Glen if he had gone to work and he replied, “No, I didn’t go to work, *** I found some good drugs and I have been out doing them.” The defendant told Glen that he was drunk, and she began to leave the room. Glen shoved the defendant to the floor. Each time the defendant would begin to get up off of the floor, Glen would take his foot and push her back down. Glen eventually allowed the defendant to go to bed.

At 8 a.m. on January 17, 1991, the defendant and Paula Via left to take Amanda to the hospital for leukemia treatments as the defendant did every Thursday. Glen was asleep when they left. When they returned home at 4 p.m., Glen had left for work. On the evening of January 17, 1991, Glen called the defendant from work at 6 p.m. and 9 p.m., as he always did. The 6 p.m. conversation consisted of Glen requesting that the defendant call his uncle to give him a message. The defendant complied with Glen’s request. At 9 p.m., Glen called the defendant again to make sure that she had done what he had requested of her in the 6 p.m. conversation. There was no indication in either of these phone conversations that Glen was upset or mad at the defendant. On the evening of January 17, 1991, Luke was home with the defendant. Amanda and Nathan were staying with Raymond and Katherine Ewell, the defendant’s parents, since the defendant and Julie were leaving early the next morning. The defendant had also made plans with Lia English to take Luke to school at 8 a.m. on January 18,1991.

On the evening of January 17, 1991, the defendant went to bed at approximately 10 p.m. At 1:30 a.m., she awoke and heard Glen coming into the house. She heard him take his clothes off, put them into the hamper, and fix himself something to eat. The defendant went back to sleep. The next thing that the defendant recalled was Glen grabbing her by the hair on her head and leading her into the living room. Glen knelt down in front of the defendant and told her that she was a “bitch” and did not deserve to live. He told her that he was sick of her “bitching at him about his drinking.” The defendant said that she could smell alcohol on Glen’s breath. He further disparaged the defendant about giving him two sick children and told her that she could not do anything right. The defendant stated that anytime she tried to reply, Glen slapped her in the face. This occurred approximately 10 times that evening.

Glen continued to call her names and tell her that she did not deserve to live. He told her that he was going to kill her and that she should not close her eyes because she would not wake up again if she did. The defendant said that Glen had a strange look in his eyes “like he was the devil,” and that his appearance was different than it had been on previous occasions when he had beaten her. Eventually, Glen grabbed the defendant by the arm and took her into the bathroom and told her to get down on her hands and knees in front of the toilet. The defendant told Glen, “no,” and he shoved her down and asked her if she had ever thought about drowning. He proceeded to grab the defendant by the back of the head and put the defendant’s head into the stool water. Glen did this to the defendant twice and held her head under the water for 9 to 10 seconds each time. She said that he had never done this to her on previous occasions when he had abused her.

Glen took the defendant back into the living room, and a news channel was reporting information about the war. Glen told the defendant that the soldiers did not deserve to die, but she did. At 2:30 a.m., Glen lay down on the couch and went to sleep. In the past, Glen would finally pass out, and the abuse would end for the evening. The defendant walked into the bedroom and climbed into bed. Glen yelled for her to come back into the living room. She complied and asked Glen why he was treating her so poorly.

The defendant walked into the kitchen to fix herself something to drink and saw a picture of a baby in a casket beside Glen’s lunch box. It was a picture of Glen’s baby sister, Geri, who had died when she was an infant. Glen told the defendant that Geri looked like Amanda. The defendant told Glen that Amanda was not going to die. Glen replied to the defendant: “[Amanda] might not [die] but you’re going to.” Glen lay down on the couch again, and the defendant went to look for his handgun; however, it was not in its usual location. The defendant testified that she assumed that Glen must have had the gun in the living room with him since it was gone.

The defendant took the cordless phone into the living room closet and called Kevin Rice. She told him that she needed his gun for protection. Rice said “no.” The defendant explained to Rice that she needed his help because Glen was going to kill her. Rice asked her what she wanted him to do, and she told him to put the gun by the dog pen behind her house. The defendant stated that even though Glen had abused her in the past, she had never felt like she needed a gun for protection. The defendant stated that on January 18, 1991, however, Glen acted “like the devil was coming out of him,” and she was afraid that he was going to kill her.

When the defendant heard the dogs barking, she went out of the back door and saw a bag beside the dog pen. She brought it into the bedroom, went into the closet, opened the bag, and looked inside of it. The defendant did not leave at that time because Luke was in the house and Glen was acting so violent that the defendant was afraid that he might harm Luke. The defendant was also fearful that if she left, Glen might try to follow her to her parents’ or the Cozarts’ home and kill all of them. The defendant did not call the police because she had called them in the past and felt that they had tried to get her and Glen to work their problems out instead of being concerned about helping her. Additionally, the defendant stated that some of the policemen were Glen’s friends. The defendant left the gun inside of the closet and went to bed. Glen was asleep at this time. Eventually, Glen came into the bedroom, took the defendant into the bathroom, and forced the defendant to get down on her hands and knees. Glen put the defendant’s head into the stool water twice as he had before. Water was running down the defendant’s face. As she reached for a towel, Glen grabbed a used sanitary pad out of the trash and wiped the water off of the defendant’s face with it. Glen told the defendant that he knew that it was Julie’s pad and not the defendant’s pad. This was the first indication that the defendant had that Glen might have known about her pregnancy and the upcoming abortion.

The defendant ran to the front door, and Glen grabbed the back of her shirt and pulled her backward. Glen told the defendant that if she ran away, he would find her and kill her and anyone that might be with her. Glen told the defendant to sit down. She sat by him on the couch and told him that she loved him, and she tried to comfort and calm him down. This had worked on previous occasions when Glen was violent; however, this time, he told the defendant to get away from him and not to touch him. Glen threatened to kill the Cozarts and the defendant’s parents. Glen reiterated that he was going to kill the defendant, told her not to close her eyes, and told her that she did not deserve to live. Glen went to sleep again.

The defendant realized that she did not know how to use the gun, and she called Rice for instructions on the operation of the gun. Rice gave the defendant instructions, and according to Rice, he asked the defendant if she planned to kill Glen. The defendant replied “yes.” In her testimony, however, the defendant denied telling Rice that she had planned to kill her husband. After talking with Rice, the defendant stated that she pulled the gun back so that it was in a position that was ready to fire, and she placed the gun underneath the bed.

Glen called the defendant back into the living room, repeating the same threats that he had previously made. He told the defendant that he was going to kill her and make it look like a suicide. The defendant told Glen that everyone would know that he killed her, and he said that he did not care if he was sent to prison for the rest of his life. Glen ordered the defendant to go to bed and think about dying. According to the defendant, she called Julie and told her that Glen was “going crazy” and warned her not to come over because she feared for Julie’s safety. According to Julie, the defendant called her about 4 a.m. and said “I think he knows,” referring to her pregnancy. In her testimony, however, the defendant denied telling Julie that she thought that Glen knew that she was pregnant by another man.

About 6:30 a.m., Glen summoned the defendant to the living room. The defendant placed the gun into her underwear, put her hand on her stomach to hold it, walked into the living room, and sat down on a chair. Glen told the defendant, “This is it.” He went into the bathroom. While he was gone, the defendant placed the gun underneath of the chair in which she was sitting. Glen came back, bent down in front of the defendant, and said “I can’t believe that I married a bitch like you.” He told the defendant that she had ruined his life for the past eight years. Glen proceeded to shove the defendant back into the chair, which caused the gun to be exposed. Glen asked the defendant what she was doing with the gun. Initially, the defendant denied having any knowledge about the gun. Then, the defendant told Glen that she needed the gun for protection because she was afraid that he was going to kill her.

Glen demanded that the defendant open her mouth. After she refused to do so several times, Glen grabbed her cheeks, opened her mouth, and pried the gun between her teeth. Glen yelled “bang,” pulled the gun out of the defendant’s mouth, looked her straight in the eyes, and laughed at her. The defendant was shaking and crying. Glen lay down on the couch and placed the gun on the floor beside him. Glen told the defendant to go to bed and think about dying because he was going to let her think about it before he killed her. The defendant pleaded with Glen, asking him not to kill her. When Glen closed his eyes, the defendant put on a sweat suit and her shoes. As the defendant passed the living room, she could see that Glen was starting to mumble and move around. The defendant supposedly thought that Glen was getting ready to get up and kill her. The defendant fell to her knees, closed her eyes, and pulled the trigger. She dropped the gun and ran to Luke’s bedroom. She woke Luke up and called Lia English to tell her not to come by her house to take Luke to school. The defendant told Luke to stay in the bedroom and to put his clothes on. The defendant picked the gun up and placed it in her pants. She never looked at Glen after she shot him. In fact, the defendant testified that she could hear Glen snoring as she was leaving the house. The defendant opened the front door and went out of the back door after putting the gun into a sack.

Julie Cozart testified that at approximately 7:10 a.m., the defendant called her to tell her that they could not go to the clinic because Glen would follow them. She stated that the defendant’s voice was normal. After the defendant took Luke to school, she went to Julie’s house. According to the defendant, she told Julie and Julie’s husband, Steve “Merle” Cozart, that she thought that she had shot Glen. Julie and Merle testified, however, that the defendant told them that she had killed Glen. Julie thought that the defendant appeared to be “cold” and different. Julie testified that the defendant told her that she killed Glen because he was going to make her take a pregnancy test the next morning and, if it was positive, he was going to kill her. Julie said that the defendant did not complain to her that Glen had physically abused her the evening before the shooting. Further, Julie testified that the defendant told her that she planned to return home, pretend to find Glen, and run out of the house screaming.

Even though the facts are in dispute about how Julie and the defendant left together, the fact remains that they did leave together at some point. The defendant disposed of the gun somewhere around Benton, Illinois, while she and Julie were together, after wiping her fingerprints off of the gun with a napkin. Julie and the defendant eventually returned to Harrisburg. The defendant testified that, at this time, she was still unsure whether Glen was alive. After the defendant returned home, she said to Glen, “Hey, Bud, you better get up[,] it is time to go to work.” The defendant stated that she noticed blood all over the pillow that Glen was lying on and she ran out of the door. According to the defendant, at that moment, she realized that she had killed her husband. She ran to a neighbor’s home for help. Florence McAnnally, her neighbor, called an ambulance. When the ambulance arrived, the attendants determined that Glen was dead.

Police officers Dee Pelhank and Gary Crabtree arrived on the scene immediately after the ambulance. Officer Pelhank testified that he attempted to engage the defendant in conversation about the murder, but she was very upset and about to start vomiting. Later, the defendant told Pelhank that she had gone shopping with Julie Cozart for the morning and when she returned home, the main door to her home was partially open and the inside front door was all of the way open. This interview was terminated because the defendant was crying and getting sick to her stomach again. A couple of hours later, they interviewed the defendant again. The defendant never mentioned that she and Glen were having marital problems until after she confessed to killing him. The defendant told the officers that she recalled the front door being locked when she left on the morning of the shooting. The remainder of the story was substantially the same as the defendant had previously stated. The defendant requested a third interview to clarify something she had told them in an earlier interview; however, no new relevant information was discovered.

Sgt. Dave Elwood, Illinois State policeman, testified that he was involved in all three interviews with Officer Pelhank and the defendant. On January 19, 1991, Julie Cozart led Elwood and Master Sgt. Ken Clore to the location where the defendant had disposed of the gun which she had used to kill Glen. Clore and Elwood located the gun, which was in a sack located in a creek. Sgt. Gary Otey, crime scene technician, subsequently took custody of the gun. Elwood returned to the Saline County sheriff’s office at 12:25 a.m. on January 20, 1991. The defendant stayed at her parents’ home on the evening of the shooting. He and Sgt. Bill McClement went to the defendant’s parents’ home in the early hours of the morning on January 19, 1991. Elwood indicated to the defendant’s mother that he needed to ask the defendant some more questions because he had discovered some new developments in Glen’s case. The defendant agreed to go to the sheriff’s office to answer more questions. Elwood advised the defendant of her Miranda rights and told her that they had retrieved the gun. Initially, the defendant denied having any knowledge about the gun. Elwood told her to stop lying and to tell the truth. The defendant put her head in her hands and began sobbing and crying with pronounced shaking. She told Elwood that Glen had been beating her and was going to kill her and her family.

Although Elwood reiterated much of what the defendant had testified to regarding the night of abuse that she had suffered at the hands of her husband, she left some of the details that she had told Elwood out of her testimony at trial. For example, the defendant told Elwood that she called Julie and told her that she had slept later than she had planned and that she would meet Julie at her house, rather than Julie picking her up at the defendant’s house as they had previously planned. Sometime between the phone call to Julie and the phone call to Lia, the defendant told Elwood that she sat on the bed and cried. Eventually, she went into the living room where Glen was asleep on the couch and sat in a chair. Glen continued to sleep. She called Lia and told her not to pick Luke up as they had previously planned. The defendant went back into the living room and sat down on the chair again. She went into the bedroom, picked the gun up, knelt down beside Glen, and said a prayer to God asking for forgiveness. The defendant told Elwood that she stood up, kissed Glen on the lips, and said “I’m sorry.” She pointed the gun at Glen’s head and, at a distance of less than two feet, fired the weapon. On cross-examination, however, the defendant denied that she told Elwood that she kissed Glen on the lips before she killed him. Elwood testified that the defendant’s answers were not spontaneous and, at times, the defendant paused a couple of minutes before answering many of the questions.

Dr. John Heidingsfelder, a forensic pathologist, testified that the right side of Glen’s head had an apparent gunshot wound. It was Dr. Heidingsfelder’s opinion that this wound was an entrance wound. The exit wound was on the left side of the head. Dr. Heidingsfelder also found a bullet entrance wound to the left shoulder. Dr. Heidingsfelder believed that this wound was the same one that had passed through Glen’s head. He opined that, given Glen’s wounds, he could have been unconscious for two to five minutes after the shooting and he died from a cerebral disruption of the brain or disruption of the brain tissue due to a gunshot wound to the head.

Dr. Michael Althoff, psychologist, testified that he had treated approximately 50 women who had been abused by their spouses. Dr. Althoff stated that he had examined the defendant on several occasions since the shooting. He also interviewed the defendant’s family and friends. Dr. Althoff concluded, after reviewing the defendant’s personality test results, the notes of his interviews with family and friends, and the police reports on the shooting, that the defendant suffered from battered woman’s syndrome at the time that she shot the victim. Dr. Althoff also stated that it was his understanding that the defendant shot Glen while he was asleep even though he might have been stirring from his sleep.

The defendant’s testimony relating to Glen’s physical abuse was corroborated by her mother, Katherine Ewell; the Saline county coroner, Wendell Lambert; her friend, Kelli Lambert, Wendell Lambert’s daughter; her former friends, Julie and Merle Cozart; her friend, Marilyn Conwell; an acquaintance, Jonanna Lutwinski; and her psychologist, Dr. Michael Althoff.

The defendant, relying on evidence of battered woman’s syndrome, contends that she was not proved guilty of second-degree murder beyond a reasonable doubt because her belief that she needed to use deadly force was reasonable. The State replies that the evidence established defendant’s guilt beyond a reasonable doubt. We agree with the State that the jury could have concluded from the evidence presented that the defendant did not act in self-defense.

The jury was instructed, inter alia, as follows:

“A person commits the offense of first-degree murder when she kills an individual without lawful justification if, in performing the acts which caused the death,
(1) she intends to kill or do great bodily harm to that individual or another; or
(2) she knows that such acts will cause death to that individual or another; or
(3) she knows that such acts create a strong probability of death or great bodily harm to that individual or another.”

The court further instructed the jury that if each of the aforementioned propositions had been proved beyond a reasonable doubt, they should then determine whether a mitigating factor had been proved so that the defendant was guilty of the lesser offense of second-degree murder instead of first-degree murder. This is precisely what the controversy in this case centers on. The court told the jury that the defendant had the burden of proving by a preponderance of the evidence that a mitigating factor was present. The court instructed the jury that to find that the defendant was guilty of second-degree murder, it must be persuaded “that the defendant, at the time she performed the act which caused the death of Luther Glen Beasley, believed the circumstances to be such that they justified the deadly force she used, but her belief that such circumstances existed was unreasonable.” See Ill. Rev. Stat. 1991, ch. 38, pars. 9 — 1, 9 — 2 (now 720 ILCS 5/9-1, 9-2 (West 1992)).

The relevant inquiry in this case is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Campbell (1992), 146 Ill. 2d 363, 374, 586 N.E.2d 1261, 1266; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) This standard gives the trier of fact the responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the basic facts to the ultimate facts. (Campbell, 146 Ill. 2d at 375, 586 N.E.2d at 1266, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) Hence, the presumption is that the trier of fact resolved all controverted facts and questions of testimonial credibility in favor of the State. (People v. Novy (1992), 232 Ill. App. 3d 631, 663, 597 N.E.2d 273, 295.) We further note that the issue of self-defense is a question of fact to be decided by the jury. (People v. Falconer (1988), 168 Ill. App. 3d 618, 622, 522 N.E.2d 903, 906.) Hence, this court will not substitute its judgment for that of the fact finder on questions involving the weight of the evidence or the credibility of the witnesses and will not reverse a criminal conviction or a determination on the issue of self-defense unless the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. See Campbell, 146 Ill. 2d at 375, 586 N.E.2d at 1266; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 276; People v. Cullen (1992), 233 Ill. App. 3d 794, 800-01, 600 N.E.2d 14, 18.

In the case at bar, we believe that the evidence is sufficient to support the defendant’s conviction for second-degree murder. A person is justified in using deadly force only if she reasonably believes that such force is necessary to prevent imminent death or great bodily harm. (Ill. Rev. Stat. 1991, ch. 38, par. 7—1 (now 720 ILCS 5/7—1 (West 1992)).) Here, we believe that the jury was justified in not believing defendant’s theory of self-defense because it could have concluded that the defendant was not justified in using deadly force. According to Elwood’s and Althoff’s testimony, the victim was sleeping when he was killed even though he might have been beginning to awaken. Elwood testified that the defendant told him that she kissed Glen on the lips before she shot him. This testimony indicates that the defendant was not scurrying around to kill Glen before he had the opportunity to kill her. In fact, the evidence shows that even though Glen had abused the defendant in the past, the defendant might have been fearful that Glen had discovered that she was pregnant with Rice’s child and killed him for that reason. Because the defendant shot Glen while he was asleep, the jury could have reasonably concluded that her conduct was not tantamount to self-defense but rather her conduct suggested that it might be retaliation or revenge for Glen’s past abuse. See Falconer, 168 Ill. App. 3d at 623, 522 N.E.2d at 906.

Therefore, we believe that the jury’s conclusion that the defendant’s belief that she needed to use deadly force was unreasonable, despite the conclusion that she suffered from battered woman’s syndrome, was supported by the evidence. Because the evidence of battered woman’s syndrome was before the jury, as was evidence that defendant kissed the victim on the lips and shot him while he was sleeping, we decline to find that the jury’s decision was unreasonable. Rather, we believe that the jury’s decision, finding the defendant guilty of second-degree murder because her belief in the need to use deadly force was unreasonable, was supported by sufficient evidence.

The defendant next asserts that the trial court erred in dismissing two potential jurors sua sponte. The specifics of the dismissals were as follows. During voir dire, potential juror Brenda Harris told the court that her son had a criminal charge pending against him. On its own motion, the court excused Ms. Harris, and defense counsel objected. Defense counsel complained that the court had not determined whether Ms. Harris might be biased against the State. The State replied that it felt Ms. Harris might be prejudiced against the State because of her son’s predicament. The trial court determined that its original ruling was appropriate. Potential juror Paulette Hale was also dismissed because her son had a pending felony charge against him. The court, on its own motion, excused Ms. Hale, and defense counsel objected for the same reasons as previously stated. The defendant now claims that she is entitled to a new trial because the court abused its discretion in dismissing Harris and Hale.

Initially, we believe that it is important to note that the Illinois Supreme Court has stated that, although the defendant is not entitled to the presence of a particular person on the jury, a defendant is entitled to be tried by an impartial jury. (People v. Lobb (1959), 17 Ill. 2d 287, 301, 161 N.E.2d 325, 333.) Because the defendant in the case at bar does not complain that the jury was composed of unfair or impartial members (see People v. Phillips (1981), 99 Ill. App. 3d 362, 368, 425 N.E.2d 1040, 1045), grounds for reversal do not exist. Even though we do not necessarily agree with the manner in which the trial judge dismissed the two potential jurors, we cannot say that the defendant was prejudiced by the trial judge’s actions. We note, however, that the trial judge should not have sua sponte dismissed the potential jurors. In this case, the jurors were not statutorily disqualified (see Ill. Rev. Stat. 1991, ch. 78, par. 2). Even if they had been statutorily disqualified, we believe that the trial judge should have at least given counsel an opportunity to examine the potential jurors to determine whether they could serve impartially on the jury. Moreover, if a potential cause challenge exists or if a potential juror says that he cannot be fair, and neither counsel for the plaintiff nor the defendant makes the challenge, the judge should not sua sponte dismiss the potential juror. If the judge intends sua sponte to dismiss a juror for cause, the trial judge should call counsel to the bench and ask if either of them would like to make a cause challenge, rather than determining for himself that the potential juror should be disqualified. The judge is under no obligation to advise counsel of a potential cause challenge, nor is he precluded from excusing a juror for cause even if counsel decline to make the challenge. Even though the judge should not have dismissed the two potential jurors sua sponte, the defendant’s jury was composed of fair and impartial jurors, which is all that the defendant is entitled to have serve. (See Phillips, 99 Ill. App. 3d at 368, 425 N.E.2d at 1045.) Therefore, this court will not reverse the defendant’s conviction. Furthermore, we note that the State could have used its remaining peremptory challenges to strike Harris and Hale from the jury.

Finally, the defendant contends that the court erred in sentencing her to eight years in prison. The State argues that, according to People v. Macke (1992), 224 Ill. App. 3d 815, 587 N.E.2d 1113, the defendant is precluded from raising this issue for the first time on appeal because the defendant failed to file a motion challenging her sentence in the trial court. We agree with the State and believe that the defendant has waived this issue. (See People v. Jenkins (1993), 251 Ill. App. 3d 1, 4.) However, if the defendant had not waived this issue, the defendant’s claim that her sentence of eight years’ imprisonment is excessive and should be reduced to the minimum four-year term is without merit. To support her argument, the defendant focuses on the fact that she was a battered woman, she has an insignificant criminal history (one speeding ticket), and she has three young children, two with serious illnesses and limited life expectancies that are totally dependent upon her for their care.

Because the imposition of a sentence is a matter of judicial discretion, the sentence of the trial court will not be altered on review absent an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) The defendant was convicted of second-degree murder, a Class 1 felony. (See Ill. Rev. Stat. 1991, ch. 38, par. 9—2(d) (now 720 ILCS 5/9 — 2(d) (West 1992)).) The sentence of imprisonment for a Class 1 felony is not less than four years and not more than 15 years. (Ill. Rev. Stat. 1991, ch. 38, par. 1005—8—1(a)(4) (now 730 ILCS 5/5—8—1(a)(4) (West 1992)).) The defendant’s eight-year sentence is within the sentencing range. Further, a review of the record demonstrates that the trial judge specifically stated the factors that he relied upon when he sentenced the defendant. In fact, the trial judge commented several times that the defendant was an abused woman. The court stated that the victim was asleep or beginning to awaken when the defendant shot him, which was not a confrontational situation. Further, the court noted that after Rice took the gun to the defendant’s house, she called him at a later time for instructions on the operation of the gun. Moreover, the court recognized that the defendant attempted to establish an alibi and only confessed to the murder when the police confronted her with further evidence. The court also commented that it was cognizant of the fact that the defendant had two seriously ill children, and the court stated: “There is no one in this courtroom more aware of that fact than me or more concerned about that issue.” The trial judge, in announcing the defendant’s sentence, stated as follows: “[PJrobation would deprecate the seriousness of your conduct and would be inconsistent with the ends of justice; particularly taking into account the method and manner in which the death occurred and the fact that your conduct did cause or threaten serious physical harm to another. However, in deference to the fact that you were the victim of abuse, again, to what extent we will never know, I will not impose the maximum sentence in this case.” Hence, we believe that the trial judge, who heard all of the evidence and observed the defendant at trial, did not abuse his discretion when he sentenced the defendant to an eight-year term of imprisonment. See Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.

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

Affirmed.

WELCH, J. concurs.

JUSTICE CHAPMAN,

specially concurring:

I write separately because I do not agree with the majority’s statement that the sentencing issue was waived by defendant’s failure to file a motion challenging her sentence in the trial court. (See People v. Jenkins (1993), 251 Ill. App. 3d 1 (Chapman, J., specially concurring).) I agree, however, with the majority’s conclusion that the sentencing issue is without merit.


author: JUSTICE COOK

text:
      In re EDMUND BENNETT, Asserted to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Edmund Bennett, Respondent-Appellant).
    Fourth District
    No. 4—93—0129
    Opinion filed November 15, 1993.
    — Rehearing denied December 13, 1993.
    John B. Lower and Jeff M. Plesko, both of Guardianship & Advocacy Commission, of Anna, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COOK

delivered the opinion of the court:

Respondent-appellant Edmund Bennett, a voluntary patient at Meyer Mental Health Center (Center), requested discharge. Thereupon a petition for involuntary admission was filed by the State in the circuit court of Macon County. During the proceedings Bennett apparently changed his mind about his request for discharge and asked to remain at the Center on a voluntary basis. The court found Bennett to be mentally ill and subject to involuntary commitment under the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1991, ch. 911/2, par. 1 — 100 et seq.). Bennett appeals. We affirm.

Under the Code any person is subject to involuntary admission in a mental health facility who “(2) *** is mentally ill and who because of his illness is unable to provide for his basic physical needs so as to guard himself from serious harm.” (Ill. Rev. Stat. 1991, ch. 911/2, par. 1 — 119(2).) A court may involuntarily commit an individual only on the basis of clear and convincing evidence. (Ill. Rev. Stat. 1991, ch. 911/2, par. 3 — 808; In re Long (1992), 237 Ill. App. 3d 105, 109, 606 N.E.2d 1259, 1262.) Expert opinion regarding mental illness and inability to guard oneself from harm must be in the form of explicit medical testimony, based upon a clear and convincing factual basis. In re Cochran (1985), 139 Ill. App. 3d 198, 200, 487 N.E.2d 389, 391.

The trial court determined Bennett was mentally ill and subject to involuntary admission under section 1 — 119(2) of the Code. Dr. James Peters testified Bennett demonstrated psychotic symptoms, including pressured speech, verbal aggression, confusion and incoherence. Dr. Norma Mason opined that Bennett suffered from bipolar disease, characterized by alternating periods of excitability and depression. Peters testified that Bennett was not accepted into the Center’s vocational work program because he was unable to understand directions from the staff. Mason testified that when Bennett’s mental processes go into high gear he neither hears nor understands anything anyone says to him; when he “just starts talking *** other clients move away from him in confusion” because they do not understand what Bennett is trying to communicate.

A trial court’s decision in an involuntary admission proceeding is given great deference and “will not be set aside at the appellate level, even if the reviewing court, after applying the clear and convincing standard, would have ruled differently” (In re Orr (1988), 176 Ill. App. 3d 498, 505, 531 N.E.2d 64, 69, citing In re Mazzara (1985), 133 Ill. App. 3d 146, 478 N.E.2d 567), unless it is against the manifest weight of the evidence. (Long, 237 Ill. App. 3d at 109-10, 606 N.E.2d at 1262.) The original trier of fact is in the best position to weigh the evidence presented to him and determine the credibility of the testifying witnesses. (Orr, 176 Ill. App. 3d at 505, 531 N.E.2d at 69.) Dr. Mason was not Bennett’s regular physician and conducted only one formalized interview with him. However, Mason based her belief that Bennett is unable to provide for his basic needs so as to guard himself from harm upon her own observation of Bennett interacting with others. The trial judge’s finding that Bennett was unable to provide for his basic needs so as to guard himself from harm, based on both physicians’ evidence, is not against the manifest weight of the evidence.

The Code affords voluntarily admitted patients rights which reflect a legislative intent to encourage voluntary admissions. (In re Hays (1984), 102 Ill. 2d 314, 320, 465 N.E.2d 98, 100.) The policy of encouraging voluntary admissions is based on psychiatric evidence indicating that a patient who recognizes his condition and voluntarily undertakes treatment can more likely be rehabilitated than one upon whom therapy is forced. (Hays, 102 Ill. 2d at 319, 465 N.E.2d at 100, citing Developments in the Law, Civil Commitments of the Mentally Ill, 87 Harv. L. Rev. 1190, 1399 (1974).) The benefits of voluntary admission:

“ ‘are less likely to be realized and persons who recognize their need for hospitalization are less likely to seek it if *** they then can be subjected to involuntary commitment without a significant change in their condition, the perception of their condition, or their willingness to be hospitalized.’ ” (Hays, 102 Ill. 2d at 319-20, 465 N.E.2d at 100, quoting Appeal of Niccoli (1977), 472 Pa. 389, 399, 372 A.2d 749, 754.)

Therefore, the Code requires that a patient initially admitted on a voluntary basis may be placed on involuntary status only after that patient has signed a written request for discharge and refuses to rescind that request in writing within five days. The mental health facility within that five-day period must file in court a petition and two certificates asserting that the patient is in need of immediate hospitalization. Ill. Rev. Stat. 1991, ch. 911/2, pars. 3—403, 3—601, 3—602.

The Code further requires mental health facilities to maintain a record of their voluntary admittees’ written requests for discharge. (Ill. Rev. Stat. 1991, ch. 95V2, par. 3 — 202(a).) Bennett contends the State’s failure to attach his written request for discharge to the petition for involuntary admission was reversible error, and he cites several appellate cases to support his proposition that only the document itself can clearly and convincingly demonstrate the request was actually made. However, Bennett failed to refute the State’s evidence that he signed a written request for discharge and, until the day of the hearing, expressed no desire to rescind that request. Moreover, none of the cases Bennett cites explicitly requires the request be produced; those cases merely hold involuntary admission improper where no evidence exists in the record demonstrating the individual submitted a written request for discharge prior to the involuntary commitment proceedings. (In re Weimer (1991), 219 Ill. App. 3d 1005, 1009, 580 N.E.2d 182, 184; In re Splett (1991), 143 Ill. 2d 225, 234, 572 N.E.2d 883, 887; In re Macedo (1986), 150 Ill. App. 3d 673, 676, 502 N.E.2d 72, 74.) Although “[t]he clearest and most convincing evidence that a written request for discharge has been made is always the written request itself” (Macedo, 150 Ill. App. 3d at 676, 502 N.E.2d at 74), here the uncontroverted testimony by Drs. Peters and Mason concerning Bennett’s written request constituted sufficient evidence that Bennett actually submitted a written request for discharge.

In In re Stephenson (1977), 67 Ill. 2d 544, 554, 367 N.E.2d 1273, 1276, the supreme court recognized the importance of providing mentally ill persons the most beneficial kind of treatment with the minimum amount of confinement necessary to maintain protection of the public. Consistent with that balance, and “[b]ecause the involuntary commitment of a person entails the loss of that person’s liberty” (Long, 237 Ill. App. 3d at 109, 606 N.E.2d at 1262), the Code allows individuals to request admission as informal or voluntary patients at any time before an adjudication that they are subject to involuntary admission. (Ill. Rev. Stat. 1991, ch. 91V2, par. 3—801.) Bennett argues that his comments at the hearing amounted to a request for voluntary admission, and that request was made before the court determined he was subject to involuntary commitment. Before commencement of the hearing, the public defender asserted: “The respondent wishes the court to be advised that he would like to sign a voluntary at this time and I have explained that that is no longer an option. He does want the court to know he is wanting a voluntary admission.” The trial court responded: “Well, sir, I understand your request, but at this time it appears the State’s Attorney will not go along with [it]. So, we will proceed with the hearing.” At the conclusion of the hearing, Bennett requested an opportunity to testify and stated the following:

“Q. [By the public defender:] And you understand this hearing is about whether or not you stay here at the Meyer Center?
A. I wish to stay here as long as possible. I wish to do my best to cooperate. ***
Q. You no longer wish to fight this hearing?
A. No. I wish to waive a hearing, sign in, whatever the judge wishes. I will follow with all my ability.”

A trial court can dismiss a facility’s petition for involuntary commitment if the mental health center’s facility director approves the individual’s request for voluntary admission. (Ill. Rev. Stat. 1991, ch. 91%, par. 3 — 801.) Knowledge that the facility director would deny the request may have been the basis for the public defender’s statement that “a voluntary *** is no longer an option.” It may also have been the basis of the court’s comment that “the State’s Attorney will not go along with [it].” Here, the facility director was not present at the hearing. In In re Hall (1981), 92 Ill. App. 3d 1136, 1137-38, 416 N.E.2d 731, 732, when the facility director did not attend the hearing, the court implied that the trial court should deny the patient’s request. Such requests have also been denied where a doctor testified at a prehearing conference that involuntary commitment was proper, or where the patient does not recognize his need for treatment (Hall, 92 Ill. App. 3d at 1138, 416 N.E.2d at 732), or where the patient has a history of abusing the voluntary admission process (In re Rusick (1983), 115 Ill. App. 3d 108, 112, 450 N.E.2d 418, 421-22).

The court may require proof that dismissal of the involuntary petition is in the best interest of the respondent and of the public. (Ill. Rev. Stat. 1991, ch. 911/2, par. 3—801.) In re Byrd (1979), 68 Ill. App. 3d 849, 854, 386 N.E.2d 385, 388, stated a trial court “should hear evidence as to the advisability of voluntary admission,” such as testimony of a physician as to said advisability, prior to denying a voluntary commitment petition and ordering involuntary commitment.

The evidence in this case indicated that although respondent was cooperative when he was first admitted, his cooperation quickly diminished and he refused to take his medication. Two doctors testified that respondent’s psychotic symptoms manifested themselves when he was not on medication. There was sufficient evidence from which the trial court could have concluded that involuntary commitment was preferable to voluntary commitment.

Affirmed.

KNECHT and LUND, JJ., concur.