author: JUSTICE LINN

text:
    NAPOLEON TARUC, Indiv. and as Special Adm’r of the Estate of Ceferina Taruc, Deceased, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    First District (4th Division)
    No. 1-89-3518
    Opinion filed July 25, 1991.

      Schwartzberg, Barnett & Cohen and Heller & Richmond, Ltd., both of Chicago, for appellant.
    Taylor, Miller, Sprowl, Hoffnagle & Merletti, of Chicago (Roger LeRoy, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Napoleon Taruc, brought this declaratory judgment action seeking a determination that State Farm is responsible for providing more than the face amount of uninsured motorist coverage on Taruc’s insurance policies. The basis for this contention is State Farm’s alleged failure to offer increased coverage options as required by section 143a — 2 of the Illinois Insurance Code (Ill. Rev. Stat. 1989, ch. 73, par. 755a — 2). The trial court granted summary judgment in favor of State Farm. Taruc appeals, contending that State Farm failed to make a meaningful offer of uninsured motorist coverage pursuant to statute; summary judgment was improper where evidence involving the insurance agent’s oral offer was contradicted; and the insurance agent’s testimony regarding his routine office practices was inadmissible to establish what actually transpired during a meeting between Taruc and the agent.

We affirm.

Background

Taruc is special administrator of the estate of his wife, Ceferina Taruc, who was killed in an automobile accident. Neither the owner nor the driver of the other vehicle involved in the collision had insurance. Taruc had three automobile insurance policies (for three different vehicles) issued by State Farm. Each policy provided the minimum, statutory amount of uninsured motorist coverage, $15,000 per person, $30,000 per accident. Under section 7 — 203 of the Illinois Vehicle Code, minimum amounts of personal injury and property damage liability insurance must be included in every policy of automobile insurance. (Ill. Rev. Stat. 1987, ch. 95x/2, par. 7 — 203.) Every policy of automobile insurance also must contain uninsured motor vehicle coverage in at least the amount given in section 7 — 203 of the Vehicle Code. (Ill. Rev. Stat. 1987, ch. 73, par. 755a.) Under section 143a — 2 of the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 755a— 2), purchasers of auto insurance must be given the opportunity to elect or reject additional uninsured and underinsured coverage, up to the limits of the insured’s bodily injury liability limits (in this case, $100,000 per person, $300,000 per accident).

In the pending case, the premium notices sent to Taruc upon renewal of two of the policies contained a “stuffer” that described uninsured and underinsured motor vehicle coverage. The premium notices stated in part: “We are offering you uninsured and underinsured motor vehicle coverage with limits equal to the bodily injury limits of $100,000/$300,000. If you want these increased limits, pay *** an increase of $13.20. If no change in limits is desired, pay amount due.”

According to Taruc, when his wife was alive she generally paid the insurance bills, so he did not discuss the increased uninsured coverage option with her. He did, however, meet with an agent of State Farm in May 1986 to obtain the third policy. What did or did not transpire at that meeting is the basis for Taruc’s position that he did not receive a meaningful offer of increased uninsured motorist coverage and that this court should reverse the summary judgment entered in favor of State Farm.

The deposition of the insurance agent, Ellis Flaws, contained a number of statements regarding the meeting he had with Taruc. To the extent Flaws lacked actual recollection of a specific conversation, he testified regarding his standard office procedure or routine business practices with respect to informing clients of their statutory right to increase their uninsured motorist coverage.

Taruc, in his deposition, testified that he did not actually recall the discussion he had with Flaws regarding the coverage options. He admitted that he signed an acknowledgment of coverage acceptance or rejection form, however.

The trial court held that State Farm was entitled to judgment as a matter of law, thereby rejecting Taruc’s position that there were genuine issues of material fact to be decided in a trial.

Opinion

The primary issue Taruc raises in his appeal centers on the adequacy of the offer that State Farm made to him with respect to the uninsured motor vehicle coverage. Although his brief lists eight subis-sues related to this dispositive question, we focus on the legal requirements of the statutory offer; the admissibility of routine business practice evidence; and whether there are issues of material fact in dispute.

I

In relevant part, section 143a — 2(1) of the Illinois Insurance Code states:

“No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State *** unless uninsured motorist coverage as required in Section 143a of this Code is offered in an amount up to the insured’s bodily injury liability limits.” Ill. Rev. Stat. 1987, ch. 73, par. 755a-2(l).

If the named insured rejects the offer, the minimum coverage limits remain in effect. The insurer need not thereafter renew the offer in renewal or supplemental policies. (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(2).) The insurer must make the same offer with respect to underinsured motorist coverage. Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(3).

In Cloninger v. National General Insurance Co. (1985), 109 Ill. 2d 419, 488 N.E.2d 548, the Illinois Supreme Court held that to effectuate the insured’s right to elect or reject underinsured motorist coverage, the insurer must give enough information regarding the coverage to enable an intelligent election to be made. The court cited a Minnesota case, Hastings v. United Pacific Insurance Co. (Minn.1982), 318 N.W.2d 849, which set out a four-part test:

“(1) [Notification must be commercially reasonable if the offer is made in other than face-to-face negotiations; (2) the limits of the optional coverage must be specified and not set forth in general terms; (3) the insured must be intelligibly advised by the insurer of the nature of the option; and (4) the insurer must advise the insured that the optional coverage is available for relatively modest premium increases.” Cloninger, 109 Ill. 2d at 425-26, 488 N.E.2d at 550.

In the pending case, Taruc argues that the written notices that State Farm sent upon renewal of the first and second insurance policies were inadequate. He further contends that the information Flaws gave Taruc during the meeting they had to discuss the third insurance policy did not intelligibly advise Taruc of the uninsured motor vehicle coverage options.

A

We may summarily dispose of the challenge directed to the written notices because it is undisputed that State Farm sent the Tarucs a written insert or “stuffer” which described the uninsured and underinsured coverages, along with a premium notice that set out the specific amount of increase in the premium that would be required to pay for the coverage option ($13.20). The notice provided for acceptance of the increase coverage limits through payment of the higher amount or rejection of the increased limits by payment of the “amount due.” In Houser v. State Farm Mutual Automobile Insurance Co. (1989), 193 Ill. App. 3d 125, 549 N.E.2d 17, the court approved the same premium renewal notice and coverage information that is in issue in this case, affirming summary judgment for State Farm on the adequacy of the written offer of optional limits.

Taruc cites no authority to support his assertion that the written offers were defective. Instead, he contends that he could not make an intelligent decision on whether to purchase additional uninsured motorist coverage because the printed forms he received “do not explain that uninsured motor vehicle coverage applies to the named insureds even when they are not occupying the automobile covered by the policy and does not explain that purchasing additional uninsured motor vehicle coverage for one of two owned vehicles will provide additional coverage for insured family members even when they are occupying the other vehicle.”

We reject this contention. The law that requires insurers to offer the increased coverage option does not require that every contingency be explained in detail to the prospective insured. Taruc’s printed forms invited him to telephone his agent for answers to questions. It does not appear unreasonable to expect an insured to ask questions and otherwise obtain specific information as to the exact scope of coverage, particularly when that insured already has policies of insurance containing the uninsured motorist coverage and is merely being offered the opportunity to increase coverage limits to the extent of his general liability coverages. See Orr v. Illinois Farmers Insurance Co. (1991), 210 Ill. App. 3d 1015, 1028, 569 N.E.2d 619 (If insured has sufficient sources of information, including having owned policies containing uninsured motorist coverage from the outset, insured’s rejection of offered coverage may be deemed an intelligent election in spite of argument that offer did not exactly duplicate model offer set out in Cloninger) (reversing summary judgment for insured and entering summary judgment for insurer).

B

The remaining question is whether Taruc was given a meaningful offer of uninsured motorist coverage when he obtained the third policy of insurance during his meeting with a State Farm agent. On May 6, 1983, he and agent Flaws met at State Farm offices. Neither party recalls exactly what was said by whom with respect to what. Apparently, Taruc would have this court reverse the summary judgment order and allow him to proceed to trial because of this uncertainty in the evidence. While it is true that State Farm has the burden of establishing that no genuine issue of material fact exists on summary judgment, plaintiff is the one who must ultimately establish that State Farm failed to give adequate information in the meeting.

The record contains a printed selection form that Taruc signed during the meeting with Flaws. It recites:

“I have been provided the opportunity to purchase Uninsured Motor Vehicle Coverage and Underinsured Motor Vehicle Coverage up to an amount equal to my automobile Bodily Injury Liability limits, and instead I select lower limits of $_15_/_30_”

Taruc argues that this form is not dispositive because there “is nothing in the Selection Form to indicate what Taruc was told by Agent Flaws on May 6, 1983.” He then focuses on the perceived deficiencies in Flaws’ deposition testimony, pointing out that Flaws did not specifically remember the meeting and instead relied on his normal office procedures. Taruc contends that Flaws’ evidence of normal office procedure should be deemed inadmissible, citing Goetz v. Country Mutual Insurance Co. (1975), 28 Ill. App. 3d 154, 328 N.E.2d 109, and State Farm Mutual Automobile Insurance Co. v. Oss (1984), 127 Ill. App. 3d 119, 468 N.E.2d 439. Those cases state that proof of a regularly followed business routine is admissible if there is some evidence that it was followed in the particular case.

More recent cases, however, have recognized that Federal Rule 406 states the proper formulation of the relevance (and thus admissibility) of habit evidence. (See, e.g., Wasleff v. Dever (1990), 194 Ill. App. 3d 147, 155, 550 N.E.2d 1132, 1137, appeal denied (1990), 132 Ill. 2d 555, 555 N.E.2d 386 (Rule 406 “establishes that habit testimony is always admissible for the purpose of proving the conduct of a person or business organization”); Webb v. Angell (1987), 155 Ill. App. 3d 848, 508 N.E.2d 508, citing Bradfield v. Illinois Central Gulf R.R. Co. (1985), 137 Ill. App. 3d 19, aff’d on other grounds (1987), 115 Ill. 2d 471.) Federal Rule 406 states:

“Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.” Fed. R. Evid. 406.

Flaws’ routine practice testimony is clearly relevant. Accordingly, Taruc’s challenge apparently is directed to a perceived lack of foundation for the admission of the evidence. Under Taruc’s formulation, the evidence would be inadmissible at trial without some evidence showing that Flaws actually followed his normal office procedures on the day he met with Taruc.

We believe that in the pending case, State Farm established a relevant and admissible routine business practice under both the Goetz formulation and Federal Rule 406. Excerpts from Flaws’ deposition show that he did remember the actual meeting with Taruc, albeit in general terms. Flaws explained why he remembered this particular meeting more than other office meetings in which subsequent claims were not filed. Nevertheless, Flaws did not pretend to specifically recall details of the conversation he had with Taruc regarding the uninsured motorist coverage option. Instead, he testified at length to the routine standards or office policies he follows when meeting with customers, including the specific guidelines he uses in offering them the increased coverage options for uninsured motorist insurance.

We conclude that Flaws’ testimony of record is both competent and relevant, and therefore admissible to establish the inference that on this particular occasion he did in fact follow the routine and inform Taruc of the coverage options in conformance with the law. Taruc’s signature on the written selection form further confirms that the coverage options were discussed in the meeting. Therefore, if Taruc is to defeat the inference that the increased coverage option was explained, he must provide some competent evidence that it was not. The factual sufficiency of Taruc’s opposition to the motion for summary judgment is discussed in issue II, below. On the narrower issue of whether an offer was made, however, Taruc argues only that he did not get enough information or the right kind of information, under the Cloninger rationale. In other words, he does not deny that an offer was made or that he rejected the offer when he elected to maintain the minimum uninsured motorist coverage limits. Rather, he asserts that, for purposes of summary judgment, State Farm has not proved that it gave him an adequate explanation of the option.

In that regard, Taruc challenges Flaws’ statement that he tells clients that the cost of the optional coverage is “reasonable” or “nominal.” According to Taruc, telling a client that the cost is “reasonable” does not convey the Cloninger court’s directive that the insurer must advise the insured that the cost of the optional coverage is “relatively modest.” He reasons that since the cost of a coat or car may be “reasonable” but not modest, cheap, or nominal, the usage of “reasonable” is misleading and vague.

Semantic quibbling aside, we do not read Cloninger as requiring the use of any particular words to convey the necessary information that the insured may purchase the increased coverage for a small additional amount. (Cf. Rutter v. Horace Mann Insurance Co. (1989), 190 Ill. App. 3d 467, 476, 545 N.E.2d 1381, 1386 (cost information “is obviously intended to reassure an insured that the coverage is not very expensive”); Watson v. Hartford Casualty Insurance Co. (1990), 205 Ill. App. 3d 88, 93, 562 N.E.2d 1261, 1264, appeal denied (1991), 136 Ill. 2d 556, 567 N.E.2d 344 (“[0]ffer need not list the exact premiums so long as it states the additional cost is modest”).) In this case, the record reflects that the two written notices that Taruc received on his other two policies contained the actual amount of the increased premium, $13.20, which represents less than 10% of the regular premium. Arguably, one person could find it reasonable but not nominal and another could find it relatively modest and reasonable but not necessarily cheap. When the exact amount of premium increase is given, however, the insured can make his own evaluation of cost. Accordingly, we decline to reverse the summary judgment simply because Flaws testified he usually uses “reasonable” or “nominal” to characterize the premium increase, instead of some other terminology.

We conclude that State Farm established that its offers, both written and the oral, complied with the law.

II

In defending against State Farm’s motion for summary judgment, Taruc was required to present evidence sufficient to raise a genuine issue of material fact. He cannot rely on his own failure to understand the implications of maintaining lower coverage limits. His inconsistent deposition testimony contains an admission that he did not remember if he and Flaws discussed the cost of uninsured motorist coverage. He said if he “were not mistaken,” Flaws just showed him “some of the application forms, some of the figures.” He repeated that it was “not that much” that he remembered. At other points in the deposition Taruc simply answered “no” to the question whether he and Flaws discussed the coverage option. Since he is the plaintiff with the burden of proving he was not given a proper offer, at trial he would not prevail if he did not remember the discussion. Moreover, his admission that Flaws showed him some forms and “figures” supports State Farm’s position that its agent gave him the necessary information. Finally, Taruc signed the printed selection form, which reveals on its face that he elected to maintain the lower limits of coverage. The coverage amounts were written in and not pre-printed. Above Taruc’s signature, moreover, is an attestation that he read the application for insurance and selected the limits and coverage.

We caution that we are not evaluating the quantity of evidence or witness credibility on review of summary judgment. We believe, however, that State Farm’s right to summary judgment based on the record before us is not undercut by Taruc’s inconsistent testimony in his deposition that he did or did not receive certain information, or that he does not remember. While the factual showing necessary to defeat summary judgment may be small, it must be more than exists in this case. See Carter v. Dunlop (1985), 138 Ill. App. 3d 58, 69, 484 N.E.2d 1273, 1281 (Plaintiffs opposing summary judgment need not prove their case at that stage but “must provide the factual basis which would arguably entitle them to judgment”; moreover, they have an “affirmative duty to bring forth all facts and evidence of a cognizable cause of action”).

In light of our disposition of the case, we need not address Taruc’s contention that Flaws should have told him that Taruc could raise the uninsured motorist coverage on any one of his three policies and thereby receive full protection to all family members who were insureds.

For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE JIGANTI

license: Public Domain

text:
    EDWARD W. ARDT, Plaintiff-Appellee, v. THE DEPARTMENT OF PROFESSIONAL REGULATION, Defendant-Appellant.
    First District (4th Division)
    Nos. 1-90-0797, 1-90-2579 cons.
    Opinion filed July 25, 1991.

      Neil F. Hartigan and Roland W. Burris, Attorneys General, of Springfield (Robert J. Ruiz and Rosalyn B. Kaplan, Solicitors General, and Ann Plunkett-Sheldon, Assistant Attorney General, of Chicago, of counsel), for Department of Professional Regulation.
    James D. Goodman, of Chicago, for Edward W. Ardt.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The Illinois Department of Professional Regulation filed a complaint against Edward Ardt, a practicing dentist, alleging violations of the Illinois Dental Practice Act (Ill. Rev. Stat. 1987, ch. Ill, par. 2301 et seq. (repealed by Pub. Act 81 — 999, as amended by Pub. Act 84 — 365, §4.8, eff. December 31, 1995) (the Regulatory Agency Sunset Act, eff. September 22, 1979)). Specifically, the Department of Professional Regulation asserted that Ardt had violated certain advertising provisions of the Act. At the conclusion of the administrative proceedings, Ardt was determined to have been in violation of the Dental Practice Act. He was placed on probation for two years during which time he was to submit copies of all his advertisements to the Department. He was also ordered to pay a $500 fine.

Ardt filed a complaint in the circuit court for administrative review of the Department’s decision. In his complaint, Ardt challenged the validity of the advertising provisions under which he was charged, asserting among other challenges that the advertising provisions violated his first amendment right to free speech. Ardt also filed a petition for a temporary restraining order, requesting that the court stay the sanctions imposed by the Department pending review. The circuit court granted Ardt’s petition for a restraining order. The Department filed an interlocutory appeal, arguing that the circuit court erred in granting Ardt’s petition to stay the sanctions. The interlocutory appeal was later consolidated with Ardt’s appeal from the decision of the circuit court affirming on the merits the Department’s determination.

The Illinois Department of Professional Regulation bases its assertion that the circuit court exceeded its authority in entering a stay of the sanctions the Department had imposed on a provision of the Illinois Dental Practice Act that states the following:

“During the pendency and hearing of any and all judicial proceedings incident to such disciplinary action any sanctions imposed upon the accused by the Department shall remain in full force and effect.” Ill. Rev. Stat. 1987, ch. Ill, par. 2332.

It is the Department’s contention that because the circuit court’s jurisdiction to review final administrative decisions of the Illinois Department of Professional Regulation is granted to it by statute, the limits of the court’s jurisdiction are also defined by statute. Specifically, the Department argues that any authority the circuit court has to enter stays in administrative matters emanates only from the legislature and may therefore be restricted by the legislature. For support the Department cites to Blumstein v. Clayton (1985), 139 Ill. App. 3d 611, 487 N.E.2d 1176. In Blumstein, a physician, who had his license temporarily suspended following an administrative proceeding, brought an interlocutory appeal from the circuit court’s denial of his petition for a stay of sanctions pending review. The Blumstein court affirmed the circuit court’s ruling denying a stay based on a provision of the Medical Practice Act that is identical in substance to the provision of the Dental Practice Act quoted above. Ill. Rev. Stat. 1985, ch. Ill, par. 4447 (repealed by Pub. Act 81 — 999, §4.4, eff. October 1, 1987) (the Regulatory Agency Sunset Act, eff. September 22,1979).

Citing to article VI, section 9, of the Illinois Constitution, the court in Blumstein noted that the courts “shall have such power to review administrative action as provided by law.” (Ill. Const. 1970, art. VI, §9, quoted in Blumstein, 139 Ill. App. 3d at 615, 487 N.E.2d at 1178.) The Blumstein court reasoned that administrative review is fundamentally different from original jurisdiction and that when a court is exercising statutory jurisdiction it is not concurrently exercising original jurisdiction. In support of this proposition, the court in Blumstein quoted the case of Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 210, 486 N.E.2d 893, 895-96, wherein the Illinois Supreme Court stated that “when a court is in the exercise of special statutory jurisdiction, that jurisdiction is limited to the language of the act conferring it and the court has no powers from any other source.”

In Fredman, the supreme court addressed a substantive right unknown to common law, that is, the right to have a circuit court review the final administrative decision concerning the levy of a tax assessment. In the present case, the right that Ardt seeks to preserve by invoking the injunctive power of the court is the fundamental right of freedom of speech. The Department, in arguing the merits of this case, has in fact recognized that one of the issues is whether the advertising portions of the Dental Practice Act unconstitutionally abridge Ardt’s freedom of speech. That the regulations under scrutiny may be found to be a permissible restriction of Ardt’s right does not detract from the threshold issue of whether the circuit court, in the meantime and in the face of legislation to the contrary, has the jurisdiction to issue a stay to preserve Ardt’s right.

We believe that it has. The court’s authority in this regard emanates, not from statute, but from the court’s general equitable powers. It has long been recognized that equity may be invoked to protect personal liberties guaranteed by the Constitution. (See Kenyon v. City of Chicopee (1946), 320 Mass. 528, 70 N.E.2d 241; 175 A.L.R. 430 §15, at 466-67 (1948); D. Dobbs, Remedies §2.11 (1973).) In the present case, Ardt asserted in the circuit court that the provisions of the Dental Practice Act under which he was sanctioned improperly abridged his constitutionally protected freedom of speech. He requested the circuit court to impose a stay of sanctions while he pursued the substantive merits of his argument. Whether the court properly exercised its authority in granting Ardt’s motion for a stay is a question distinct from whether the court had the authority to do so. (See 175 A.L.R. 430 §3, at 446-47 (1948).) In the present case, the question of the court’s proper exercise of authority is a moot issue, as during the pendency of the interlocutory appeal the court reached a decision on the merits. However, to the extent that section 32 of the Dental Practice Act restricts the equitable power of the court to issue a stay where appropriate, we agree with plaintiff Ardt that the statute improperly infringes upon the power of the judiciary. See generally Strukoff v. Strukoff (1979), 76 Ill. 2d 53, 389 N.E.2d 1170 (the legislature may not unduly infringe upon the inherent power of the judiciary to adjudge, determine and render a judgment).

The primary issue that Ardt raises in his appeal of the merits is whether the provisions of the Dental Practice Act governing a practitioner’s advertising are an unconstitutional violation of Ardt’s freedom of speech. Under section 45 of the Dental Practice Act, a dentist may advertise certain information regarding his services, including information “which a reasonable person might regard as relevant in determining whether to seek the dentist’s services.” (Ill. Rev. Stat. 1987, ch. Ill, par. 2345(h).) Section 45 prohibits, however, advertising statements that contain “false, fraudulent, deceptive or misleading material or guarantees of success.” (Ill. Rev. Stat. 1987, ch. Ill, par. 2345.) Section 45 specifies that it is unlawful for a dentist to use claims of “superior quality of care to entice the public,” or “[t]o advertise in any way to practice dentistry without causing pain.” Ill. Rev. Stat. 1987, ch. Ill, pars. 2345(h)(1), (h)(2).

Also in effect during the time Ardt publicized his allegedly improper advertising was an administrative regulation promulgated pursuant to the Dental Practice Act. The then existing regulation stated that “[advertising may not use language suggesting a dental specialty which does not exist under the Dental Practice Act. Example: Family Dentistry, Family Practice.” (68 Ill. Adm. Code §1220.421 (Supp. 1988).) The quoted section of the regulation was later changed to read as follows:

“Advertising shall not use language suggesting a dental specialty which is not specified in section 1220.320 of this Part unless it contains the disclaimer required in subsection (g) above [licensed to practice as a general dentist ***]. Examples of language requiring disclaimer: family dentistry, ***.” (13 m. Reg. No. 13, 4191, 4207 (March 31, 1989).)

Ardt’s advertising, which he placed into publication in the spring of 1988, offered “affordable *** family dentistry,” “quality dentistry,” and “total comfort,” all terms the Department of Regulation objects to as violative of the Dental Practice Act.

The initial question we must determine is which administrative regulation regarding the use of the term “family dentistry” is to apply to Ardt. The Illinois Department of Regulation agrees that the advertising in question took place during the time the old regulation which absolutely prohibited the use of the word “family dentistry” was in effect. However, the Department asserts that Ardt was charged under the new regulation which allows a dentist to use the term “family dentistry,” if he further disclaims that he is licensed as a general dentist. The Department argues that the new regulation should be given retroactive effect. The Department asserts that charging Ardt under the new regulation did not prejudice him, as he was acting in violation of both the old and the new regulations.

Under the present circumstances, we disagree with the Department’s analysis. When a change of law merely affects the remedy or law of procedure, it will be given retroactive effect. (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 415 N.E.2d 1034, cert. denied (1981), 451 U.S. 921, 68 L. Ed. 2d 312, 101 S. Ct. 2000.) However, where a vested, constitutionally protected right will be deprived by retroactive application, changes in the law will not be applied retrospectively. (Maiter, 82 Ill. 2d 373, 415 N.E.2d 1034.) For the reasons set out below, we believe that the former section 421 administrative regulation was an unconstitutional abridgement of Ardt’s freedom of speech. Retroactive application of the amended version of section 1220.421 would therefore serve to divest Ardt of the fundamental guarantee of free speech under which he was acting at the time he placed his advertisement.

As a consequence, we confine our analysis of the constitutionality of the administrative regulation section 1220.421 to a review of the former regulation. Ardt does not disagree that in the area of commercial speech, the State has an interest in limiting speech that is misleading or potentially misleading. With respect to the advertising of professional services, the United States Supreme Court has stated:

“At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.” Central Hudson Gas & Electric Corp. v. Public Service Comm’n (1980), 447 U.S. 557, 566, 65 L. Ed. 2d 341, 351, 100 S. Ct. 2343, 2351.

In a further refinement of the general rule articulated in Central Hudson, the Supreme Court in In re R.M.J. (1982), 455 U.S. 191, 71 L. Ed. 2d 64, 102 S. Ct. 929, held that the State may not place an absolute prohibition on potentially misleading information provided the information may also be presented in a way that is not deceptive. (See also Parker v. Commonwealth of Kentucky, Board of Dentistry (6th Cir. 1987), 818 F.2d 504.) In the present case, the State has an interest in protecting the public from false or misleading advertising and advertising that detracts from the public’s ability to make a fair and informed selection of a dentist. However, inasmuch as the term “family dentistry” may be construed as merely describing a client base, we do not believe that the term is inherently misleading, but only potentially so. As such, we believe that the unamended version of section 1220.421, in its categorical ban on the term “family dentistry,” is an overly restrictive abridgement of Ardt’s commercial speech, and therefore unconstitutional. The Department has offered little argument to the contrary.

As for the terms “quality dentistry” and “total comfort,” we believe these terms to be misleading in themselves. Therefore, an outright prohibition on the use of such terms is not unconstitutional. Inasmuch as all dentists must meet certain standards to be licensed, advertising which implies superior standards is misleading. As the Supreme Court in Bates v. State Bar of Arizona (1977), 433 U.S. 350, 383-84, 53 L. Ed. 2d 810, 835-36, 97 S. Ct. 2691, 2709, noted without deciding, “advertising claims as to the quality of services *** are not susceptible of measurement or verification [and] may be so likely to be misleading as to warrant restriction.”

Similarly, the term “total comfort” implies dentistry without pain, a matter of opinion that Ardt has not attempted to prove, and which is nevertheless not objectively verifiable. In Peel v. Attorney Registration & Disciplinary Comm’n (1990), 496 U.S. 91, 110 L. Ed. 2d 83, 110 S. Ct. 2281, the Supreme Court distinguished between statements of opinion and statements of objective facts, such as certification as a civil trial specialist, from which quality might be inferred.

Ardt further argues that section 45 of the Dental Practice Act and section 1220.421 of title 68 of the Administrative Code are impermissibly vague as they do not inform with reasonable precision the acts that are prohibited. (United States v. Brewer (1891), 139 U.S. 278, 35 L. Ed. 190, 11 S. Ct. 538.) We believe that the provisions in question are reasonably clear enough to serve as a guide to those who must comply with them. (Chemed Corp. v. State (1989), 186 Ill. App. 3d 402, 542 N.E.2d 492.) The regulations specify the type of conduct that is prohibited and in some cases give examples. That section 45 both permits advertising and restricts it does not in itself make the statute unconstitutionally vague. We believe that the boundaries between permissible and impermissible advertising are clearly defined. Further, we believe that within the context of the regulations as a whole, such terms as “false, fraudulent, deceptive, and misleading” are susceptible to common understanding by members of the dental profession and not, as Ardt argues, so broad that no reasonable person can understand the language. See Chastek v. Anderson (1981), 83 Ill. 2d 502, 416 N.E.2d 247 (term “unprofessional conduct” not impermissibly vague).

Ardt also argues that several procedural defects in the administrative proceedings served to violate his right to procedural due process. Among the misconduct that Ardt alleges is his charge that the administrative hearing was conducted contrary to administrative regulations. Specifically, Ardt contends that he was never notified of the date and time of his alleged offense, reasonably informed of the charges against him, or provided with complete documentation. Ardt asserts that the Department ignored a discovery request which he made pursuant to 68 Illinois Administrative Code section 1110.130 (Supp. 1988).

A review of the record reveals that despite notice, Ardt failed to appear at the first informal conference scheduled by the Department to discuss his case, and later at a formal administrative hearing he left after giving an opening statement. He did not present witnesses or evidence. Moreover, section 1110.130 of the Administrative Code entitled Ardt to the name and address of any witness, copies of documents to be offered as evidence, and a description of other evidence to be offered; information that the Department substantially provided. The Department did not respond to Ardt’s interrogatories; however, we do not believe that this omission constitutes a violation of Department procedures. Further, although there was some confusion created because the version of section 1220.421 with which Ardt was being charged did not correspond to the date of the offense, we believe that Ardt was nevertheless reasonably informed of the provisions under which the Department was charging him. (See Wierenga v. Board of Fire & Police Commissioners (1976), 40 Ill. App. 3d 270, 352 N.E.2d 322 (party not reasonably informed where statutory violation was neither alleged in complaint nor mentioned at hearing).) For these reasons, we believe that Ardt received the essential elements of a fair hearing before an administrative agency: an opportunity to be heard, the right to cross-examine adverse witnesses, and impartiality in ruling upon the evidence. Mahonie v. Edgar (1985), 131 Ill. App. 3d 175, 476 N.E.2d 474.

Ardt’s next argument is that he was denied equal protection of law through the selective enforcement of the advertising provisions of the Dental Practice Act. Specifically, Ardt asserts that another dentist who used the words “Complete General & Family Dentistry” in his advertising was not sanctioned. We agree with the Department of Regulation that Ardt’s assertion as it stands does not support an allegation of discrimination in the enforcement of the Dental Practice Act. As was the case with the plaintiff in Hameetman v. City of Chicago (7th Cir. 1985), 776 F.2d 636, Ardt has not argued that he was singled out for an invidious reason, such as race or political beliefs. The State is not required to enforce its laws with exacting thoroughness at the price of not enforcing them at all.

Ardt’s final argument is that the circuit court erred in failing to overturn the Department’s ruling based on the overly harsh nature of the sanctions. A reviewing court will not substitute its judgment for that of an agency unless there has been an abuse of discretion. (Citrano v. Department of Registration & Education (1980), 90 Ill. App. 3d 937, 414 N.E.2d 74.) In the present case, in light of the Department’s findings, which were based in part on the application of the amended version of 68 Administrative Code section 1220.421, we believe that the sanctions imposed upon Ardt were not overly harsh. His license was not revoked. He was ordered to pay a minimal fine and placed on probation for two years during which time he is to submit his potential advertising to the Department for approval. The purpose of the advertising provisions of the Dental Practice Act is to protect the public from misleading advertising. The sanction imposed upon Ardt was in keeping with this purpose and as such was not an abuse of the agency’s discretion. See Ballin Drugs, Inc. v. Department of Registration & Education (1988), 166 Ill. App. 3d 520, 519 N.E.2d 1151.

However, because we believe that it was the overly broad, and therefore unconstitutional, unamended version of 68 Administrative Code section 1220.421 that governed Ardt’s activity at the time of his offense, it is necessary to remand this cause for a review of sanctions in keeping with our modification of the trial court’s ruling.

Affirmed as modified and remanded.

LINN and JOHNSON, JJ., concur.


author: JUSTICE COCCIA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN HENRY GREEN, Petitioner-Appellant.
    First District (5th Division)
    No. 1-87-0362
    Opinion filed July 26, 1991.

      Randolph N. Stone, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Inge Fryklund and Keven Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE COCCIA

delivered the opinion of the court:

Petitioner-appellant John Henry Green appeals the dismissal, without evidentiary hearing, of his petition for post-conviction relief under the Illinois Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.). We affirm.

On March 19, 1982, petitioner was convicted by a Cook County jury of: (1) murder of Leon Emphriam; (2) attempted murder of Denise Chaney; and (3) aggravated battery upon Denise Chaney. Petitioner was sentenced on April 21, 1982, to concurrent prison terms of 35 years for murder and 30 years for attempted murder, with no sentence being imposed for aggravated battery. The charges arose out of an incident occurring on January 27, 1981, in the City of Chicago. Following his conviction, petitioner appealed. At his trial petitioner was represented by retained counsel; on direct appeal he was represented by the public defender.

On March 4, 1983, petitioner’s direct appeal was affirmed by this court upon the filing of a motion to withdraw by the public defender pursuant to Anders v. California (1967), 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396. See People v. Green (1983), 112 Ill. App. 3d 1159 (unpublished order pursuant to Supreme Court Rule 23 (134 Ill. 2d R. 23)).

On August 14, 1986, petitioner filed his pro se petition for post-conviction relief in the circuit court. His petition alleged several trial errors. Coupled to each claim of error was the additional contention that petitioner was denied the effective assistance of trial and appellate counsel required by the sixth and fourteenth amendments to the United States Constitution. U.S. Const., amends. VI, XIV.

The trial court reviewed the petition for post-conviction relief on January 20, 1987. It concluded that petitioner had not raised any constitutional question and that his allegations were not supported by the record. In addition, the trial court ruled that the issues raised by petitioner should have been raised on the direct appeal and, since they were not, they were barred from further review by principles of waiver and res judicata.

We originally affirmed the trial court in an order issued on March 10, 1989, pursuant to Supreme Court Rule 23 (134 Ill. 2d R. 23). However, we granted the petition for rehearing in order to address petitioner’s claims in light of People v. Flowers (1990), 138 Ill. 2d 218, 561 N.E.2d 674.

Two basic claims are pursued on appeal. First, petitioner claims that, having pleaded self-defense to the murder charge, he tried to establish that the murder victim, Leon Emphriam, had a reputation in the community for violence and for carrying a gun. He alleges that the trial court, over defense objections, refused to permit inquiry into these matters. He further claims that his appellate attorney’s failure to raise these claims on direct appeal deprived him of the effective assistance of appellate counsel.

Second, petitioner alleges that there was reversible error in the murder and voluntary manslaughter instructions used at his trial. Petitioner argues that the errors should have been preserved by trial objection, motion for new trial, and on direct appeal, and that the failure to preserve these issues deprived him of the effective assistance of trial and appellate counsel.

In view of our analysis, we need only summarize the facts. On January 27, 1981, at about 2:15 to 2:30 a.m., petitioner and James Blanton were walking home from a lounge in Chicago when they encountered the victims, Leon Emphriam and Denise Chaney, along with two other women. According to petitioner, he and Emphriam argued.

Petitioner then walked four blocks to his home, accompanied by Blanton, and obtained a .38 caliber handgun. Blanton testified that petitioner made threats against Emphriam at this time. Petitioner and Blanton returned to the corner where they again encountered Emphriam and Chaney. Blanton testified that the argument was renewed between petitioner and Emphriam. Emphriam had his hands in his jacket pockets.

According to petitioner’s testimony, he had obtained his gun because he was going to take a bus to his aunt’s house. He intended to give her the gun for protection. While walking to the bus stop, according to petitioner’s testimony, Leon Emphriam stopped him and Blanton and started arguing with them. Emphriam lunged at him. Petitioner pulled his pistol, and shot and killed Emphriam, and then turned and shot Chaney, injuring her.

Petitioner testified that he shot Emphriam in self-defense after he saw Emphriam lunge at him with his hand in his pocket. Petitioner testified he thought Emphriam had a gun, because he had seen Em-phriam carrying a .38 caliber pistol on past occasions and that he believed Emphriam “normally carries one.” He testified that he shot Chaney in a panic as he was turning and running away; he did not intend to shoot her. Petitioner denied making any threatening statements about Emphriam prior to or during the second encounter. No gun was found on Emphriam’s body.

According to Chaney’s testimony, petitioner returned to the corner, made a remark, and then almost immediately shot Emphriam in the forehead, killing him. According to Chaney, Emphriam had his hands in his pockets.

Blanton testified that petitioner asked Emphriam if he had thought about dying just before he shot him. However, Blanton admitted that he had not said that in a prior statement to an assistant State’s Attorney made later on the morning of the incident.

Neither Chaney nor Blanton testified to any lunging move or any other circumstances that would support petitioner’s claim of self-defense. After shooting Emphriam, according to both Blanton and Chaney, petitioner stepped forward to where Chaney was kneeling on the ground over Emphriam’s body. Petitioner then shot Chaney in the back of the neck, severely injuring her. Chaney feigned death, and petitioner and Blanton ran down the street.

An action brought under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.) is a collateral attack on a judgment of conviction; it is not an appeal from that conviction. (People v. Ruiz (1989), 132 Ill. 2d 1, 9, 547 N.E.2d 170, 173.) “The purpose of the proceeding^] is to resolve allegations that constitutional violations occurred at trial, when those allegations were not, or could not have been, adjudicated previously.” (People v. Sanders (1991), 209 Ill. App. 3d 366, 373, 568 N.E.2d 200, 204; see also People v. Gaines (1984), 105 Ill. 2d 79, 87, 473 N.E.2d 868, 872; People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830, 833.) The burden is on the defendant to establish a substantial deprivation of rights under the United States Constitution or the Constitution of Illinois. Determinations by the trial court will not be disturbed unless manifestly erroneous. (People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830, 832.) We have interpreted the term “manifest error” to mean error which is clearly evident, plain and indisputable. People v. Sanders, 209 Ill. App. 3d at 373, 568 N.E.2d at 205.

A trial court is authorized to dismiss summarily a petition for post-conviction relief if the petitioner fails to set forth facts which make the required showing as to the claimed constitutional deprivation. (People v. Sanders, 209 Ill. App. 3d at 373, 568 N.E.2d at 205.) While a post-conviction petitioner is not entitled to an evidentiary hearing as a matter of right, such a hearing should be held when the petitioner makes a substantial showing, supported by the trial record, of a violation of constitutional rights. People v. Caballero (1989), 126 Ill. 2d 248, 259, 533 N.E.2d 1089, 1091; People v. Silagy, 116 Ill. 2d at 365, 507 N.E.2d at 833; People v. Gaines, 105 Ill. 2d at 91-92, 473 N.E.2d at 875.

In People v. Gaines (105 Ill. 2d at 90-91, 473 N.E.2d at 875), our supreme court recognized that where claims of ineffective assistance of trial counsel are contained in the trial record, those claims could properly be considered res judicata when raised in a post-conviction proceeding.

In People v. Stewart (1990), 141 Ill. 2d 107, 117-19, 565 N.E.2d 968, 973, the court declined to review allegations of ineffective assistance of trial counsel contained in the record. However, the claims of appellate counsel’s ineffectiveness were reviewed.

In the present case, to the extent petitioner is raising claims of ineffective assistance of trial counsel based on the matters contained on the face of the record, we must apply the doctrines of waiver and res judicata to bar his claims. People v. Stewart, 141 Ill. 2d 107, 565 N.E.2d 968.

Petitioner first contends that the trial court erred in refusing to permit inquiry into Emphriam’s reputation for violence and for carrying a gun. This error was preserved by trial counsel, and thus, we will not address it because it is res judicata. (People v. Gaines, 105 Ill. 2d 79, 473 N.E.2d 878.) Moreover, the deceased’s reputation for violence was introduced through Wallace, a defense witness. As to the deceased’s reputation for carrying a gun, no foundation was shown which qualified Wallace to give reputation testimony on this point.

Petitioner next contends that there were errors in the murder and voluntary manslaughter jury instructions, and the errors were not preserved by trial or appellate counsel. The test for determining ineffective assistance of appellate counsel is generally drawn from Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. See People v. Albanese (1984), 104 Ill. 2d 504, 526-27, 473 N.E.2d 1246, 1255-56 (adopting standard). See also People v. Caballero (1989), 126 Ill. 2d 248, 533 N.E.2d 1089 (applying standard to appellate counsel).

Under Strickland, a defendant claiming ineffective assistance of counsel must make two showings, first, “that counsel’s performance was deficient” and second, “that the deficient performance prejudiced the defense.” The first, or deficient performance, prong “requires a showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” The second, or prejudice, prong “requires [a] showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” A defendant has to make both showings to prevail on his claim that the adversary process broke down so that the result was unreliable. (Strickland v. Washington, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) A reviewing court may determine an ineffective assistance of counsel claim on either the deficient performance prong or the prejudice prong of the Strickland test. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; People v. Stewart, 141 Ill. 2d at 119, 565 N.E.2d at 973.

Similarly, in People v. Stewart (141 Ill. 2d at 119, 565 N.E.2d at 968), our supreme court stated the controlling test for claims of ineffective assistance of appellate counsel:

“A defendant who maintains that appellate counsel rendered ineffective assistance, for example by failure to argue a particular issue, must show that ‘the failure to raise that issue was objectively unreasonable’ and that, ‘but for this failure, his sentence or conviction would have been reversed.’ ”

We conclude that the jury instructions in petitioner’s case constitute an erroneous statement of the burden of proof, as found in People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141. The jury instructions here are substantially similar to those discussed in People v. Reddick. In view of our supreme court’s holding in Reddick that the jury instructions constitute grave error, and given the court’s recent decision to review such error on direct appeal under the plain error standard (see People v. Shields (1991), 143 Ill. 2d 435, 445-46), we do not find the issue to be waived by trial counsel’s failure to preserve it. (People v. Carter (1989), 177 Ill. App. 3d 593, 598, 532 N.E.2d 531, 535.) However, we need not address whether appellate counsel rendered ineffective assistance on appeal by failing to raise this issue because, in any event, People v. Reddick does not apply retroactively to cases on collateral review. People v. Flowers (1990), 138 Ill. 2d 218, 561 N.E.2d 674; People v. Shields, 143 Ill. 2d 435.

Petitioner acknowledges People v. Flowers; nevertheless, he urges that Reddick must be applied retroactively to his case, even though he is proceeding on collateral review. A new rule of law may be applied on collateral review if it is required to achieve fundamental fairness or if it establishes a new procedure without which the likelihood of an accurate conviction is seriously diminished. People v. Flowers, 138 Ill. 2d at 237-42, 561 N.E.2d at 681-84, citing Teague v. Lane (1989), 489 U.S. 288, 313, 103 L. Ed. 2d 334, 358, 109 S. Ct. 1060, 1075-77.

Petitioner claims that the instructional error in his case ought to be governed by the exception in Teague v. Lane. We note, however, that our supreme court specifically addressed the exception in People v. Flowers and held that it did not warrant retroactively applying People v. Reddick on collateral review. (Accord People v. Sanders (1991), 209 Ill. App. 3d 366, 377, 568 N.E.2d 200, 207.) We therefore hold that the instructional error claimed by petitioner cannot be applied retroactively and accordingly we reject petitioner’s retroactivity argument.

In addition, we think that People v. Flowers is factually inappo-site. The problem in Flowers stemmed from the jury’s return of verdicts of guilty on both murder and voluntary manslaughter. (People v. Flowers, 138 Ill. 2d at 233, 561 N.E.2d at 678.) By contrast, in the case at bar, petitioner’s jury convicted him of the murder count only and did not return a completed verdict form for voluntary manslaughter.

For the reasons stated herein, we affirm the judgment of the circuit court of Cook County dismissing petitioner’s petition for post-conviction relief without an evidentiary hearing.

Affirmed.

LORENZ, P.J., and MURRAY, J., concur.


author: JUSTICE GORDON

text:
    THOMAS HAISMA, Plaintiff-Appellee, v. JIM EDGAR, Secretary of State, Defendant-Appellant.
    First District (5th Division)
    No. 1-88-2889
    Opinion filed July 26, 1991.

      Roland W. Burris, Attorney General, of Springfield (Karen S. Ro-senwinkel, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Frank J. Petru, of Leoris & Cohen, P.C., of Highland Park, for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

Defendant, the Illinois Secretary of State, appeals from an order of the circuit court of Cook County directing him to comply with a previously entered order reversing the denial of full driving privileges to plaintiff, Thomas Haisma. Defendant contends that the trial court had no authority to give effect to the earlier order because the parties had entered into a valid settlement agreement and defendant had performed its obligation under the agreement.

On June 20, 1982, plaintiff was arrested for driving under the influence of alcohol (DUI) while on the way home from a bachelor’s party given for him. Plaintiff was parked, sleeping, when a police officer stopped and asked him if he could drive and, if so, told him to drive home. Plaintiff drove one block, and then was arrested and charged with DUI. A breathalyzer test measured his body alcohol level at .32. On October 21, 1982, plaintiff was convicted of the DUI charge.

Previously, on April 19, 1975, plaintiff was arrested for driving under the influence of alcohol while on the way home from a high school graduation party. He refused to take a breathalyzer test. This charge was later plea bargained down to reckless driving. (Previous convictions included illegal transportation of alcohol in 1974; speeding in 1975; and disregarding a traffic light in 1975.) Plaintiffs driver’s license was temporarily suspended for refusal to take a breathalyzer and for committing three or more moving violations in a 12-month period. In 1980, plaintiff was convicted of disregarding a traffic light.

On September 17, 1982, an alcohol and drug “Initial Evaluation” form was completed by Robert Cimaglio of the Lake County Council on Alcoholism. He wrote:

“The client stated symptoms of a heavy history of alcohol abuse, a high tolerance towards alcohol, loss of control at times while drinking, blackouts, hangovers, also behavioral changes while drinking.
The client seems to be in the middle stage of alcoholism. His awareness of where he is at is poor. The client stated that he has no intentions on stopping his drinking completely but has been trying to moderate himself. Strong denial.”

Apparently as part of the same evaluation, the DUI coordinator at Lake County Council on Alcoholism completed reports on October 26, 1982, and January 4, 1983, referring back to the September 17, 1982, evaluation and recommending plaintiff for attendance at Alcoholics Anonymous.

On November 27, 1982, defendant revoked plaintiff’s driver’s license pursuant to section 6 — 205(a)(2) of the Illinois Vehicle Code. Ill. Rev. Stat. 1981, ch. 951/2, par. 6 — 205(a)(2).

On January 27, 1983, plaintiff sought a restricted driver’s permit (RDP) or full driving privileges from the Secretary of State. (Secretary of State File No. C — 1033—83.) He also requested a formal hearing, pursuant to section 2 — 118(a) of the Illinois Vehicle Code. Ill. Rev. Stat. 1983, ch. 951/2, par. 2 — 118(a).

On March 29, 1983, a hearing was held by hearing officer Joan Carger, who denied plaintiff’s request for an RDP or full driving privileges. She pointed to the first alcohol assessment report of September 17, 1982. These findings and recommendation were adopted by defendant on April 29,1983.

In November 1984, an alcohol assessment report was completed by Jack Clark of the Parkside Lodge, Mundelein. He found no alcohol addiction. Plaintiff was classified as Level I — nonproblematic.

In 1985, plaintiff sought an RDP or full driving privileges. Secretary of State File No. C — 1602—85.

On April 3, 1985, a hearing was held by hearing officer Linda Smith. She denied plaintiff’s request for an RDP or full driving privileges. She pointed to the first alcohol assessment report and noted the November 29, 1984, assessment did not reflect the “multiple alcohol related arrests.” She concluded: “Given the conflicting evidence, the Hearing Officer was unable to make a determination of the nature and extent” of plaintiff’s use of alcohol. These findings and recommendation were adopted by defendant on May 6, 1985.

In October 1985, an alcohol assessment report was completed by Evan (Jack) Clark of the Parkside Lodge, Mundelein. He found no alcohol addiction. The April 1975 reckless driving conviction was specifically noted. Plaintiff was again classified as Level I — nonproblematic.

On January 22, 1986, plaintiff again sought an RDP or full driving privileges. Secretary of State File No. C — 885—86.

On February 25, 1986, a hearing was held by hearing officer Louis Libert. The 29-year-old plaintiff testified regarding the June 1982 DUI arrest. He had parked at a construction site and fallen asleep after leaving a party. At the direction of a police officer, he started to drive home and was arrested one block later. Plaintiff testified that during the first (September 1982) assessment “I had a little disagreement with the gentleman performing the assessment. He asked me how much I drank, and I told him; and he came right out and called me a liar, and I was rather displeased with that.” Plaintiff was asked why he had presented the first assessment at the earlier hearing if he believed it did not truly reflect his drinking habits. Plaintiff replied, “That was the only one I had. I didn’t have $45 to get another assessment.” Plaintiff also submitted testimony and letters from employers, friends and relatives stating that plaintiff had never had a drinking problem.

The hearing officer acknowledged that plaintiff had been notified by his employer at that time that without driving privileges he would be terminated from his employment, because he was required to drive as far as 75 miles from his place of employment in the course of employment-related duties. Plaintiff submitted a letter from Magna-Tech, Inc., offering to rehire him as a heavy equipment operator at construction sites located throughout the State, if he received a driver’s license. “I would have no reservations in rehiring [plaintiff] if he had a driver’s license.” In addition, Dependon, Inc., wrote that “[s]hould [plaintiff] regain his privilege of driving in the State of Illinois, I feel we would benefit from his expertise as a driver [of heavy duty trucks] for our firm.” Sinesh Auto Body wrote that it “would “employ [plaintiff] again if he had a license to operate motor vehicles.” He needed the license at Sinesh in order to road test cars. At that time, plaintiff worked at Sheridan Motors as a salesman, and urged that he needed a license to test drive cars, show cars to customers, and deliver cars to customers. He lived in a rural area located 13 miles from Sheridan Motors, and no public transportation was available.

The hearing officer denied plaintiffs request for an RDP or full driving privileges. He primarily pointed to the first alcohol assessment. On May 27, 1986, defendant adopted these findings and recommendation. (Secretary of State File No. C — 885—86) This is the decision involved in the present appeal.

On July 1, 1986, plaintiff filed a complaint in chancery, seeking administrative review of the Secretary of State’s decision in case No. C — 885—86, under the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 951/2, par. 2 — 118(e)) and the Illinois Administrative Review Act (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 101).

On April 8, 1987, the trial court reversed the May 27, 1986, decision by the Secretary of State, finding it was “arbitrary and capricious and against the manifest weight of the evidence.” The court ordered full reinstatement of plaintiff’s driving privileges. (The transcript from the April 8, 1987 hearing is not contained in the record.)

On May 8, 1987, defendant filed a notice of appeal from the April 8, 1987 order (circuit court No. 86 — CH—6335; Illinois Appellate Court No. 1 — 87—1479).

On July 21, 1987, this court stayed the effect of the trial court’s April 8, 1987, order. Thus, plaintiff continued without driving privileges until December 11, 1987, when the parties entered into a settlement agreement under which plaintiff would immediately receive a restricted driving permit.

On the same day, defendant asked this court to grant its motion to voluntarily dismiss the appeal in No. 1 — 87—1479. (Secretary of State File No. C — 885—86.) The appeal was dismissed by this court on December 23, 1987. The April 8, 1987, trial court order apparently was not vacated at any time.

In December 1987, defendant issued a six-month RDP to plaintiff.

On March 31, 1988, an alcohol assessment report was apparently completed, again classifying plaintiff as Level I — nonproblematic. (The report is not contained in the record, but is mentioned in the decision of hearing officer Kurasch, which is found in the appendix of defendant’s brief.)

In May 1988, plaintiff sought full driving privileges or a renewal of his RDP, which was set to expire on June 28, 1988.

On May 19, 1988, a hearing was held by hearing officer Jonathan Kurasch, who denied plaintiff’s request. (Secretary of State File No. C — 3420—88.) In his (undated) findings and recommendation, the hearing officer mainly relied on plaintiff’s failure to provide full disclosure to the (November 1984 and October 1985) assessors, specifically regarding (1) the 1975 DUI charge and reckless driving conviction (which was in fact included on the October 1985 assessment); and (2) the blood-alcohol content level at the time of the 1982 DUI arrest. He also pointed to a discrepancy between the findings of the first two assessments (which actually was a single assessment), and all the subsequent assessors (who found no alcohol problem at all). (The hearing officer’s findings and recommendation are not in the records, but are contained in the appendix of defendant’s brief.)

On June 28, 1988, plaintiff’s six-month RDP expired.

On August 16, 1988, plaintiff filed in the circuit court a petition for rule to show cause why defendant should not be held in contempt for failure to obey the April 8, 1987, court order. (Circuit Court No. 86 — CH—6335, which related to Secretary of State File No. C — 885— 86.) Plaintiff alleged that defendant had made verbal promises to renew the RDP without a formal hearing.

On August 23, 1988, the assistant Attorney General who handled the settlement negotiations filed an affidavit stating that she made no verbal representations to plaintiff.

On August 26, 1988, defendant adopted the earlier findings and recommendations made by hearing officer Kurasch in No. C — 3420— 88. (Defendant’s decision is not in the record, but is contained in the appendix of defendant’s brief.)

On August 30, 1988, the trial court entered an order instructing defendant to decide by September 1, 1988, whether it would be issuing plaintiff a 12-month RDP, subject to renewal thereafter. (Defendant has failed to provide this court with any transcript of the August 30,1988 hearing.)

On September 1, 1988, defendant appeared before the trial court and announced that it would not issue an RDP, and stated that it assumed the court would reinstate the April 8, 1987 order. The trial court then vacated the settlement agreement and reinstated the April 8, 1987, order. Concomitantly, defendant’s oral motion to stay the order instanter was denied.

On September 22, 1988, defendant filed a notice of appeal from the September 1,1988, order.

On September 30, 1988, plaintiff filed a rule to show cause why defendant should not be held in contempt for failure to obey the April 8, 1987, order and issue him a driver’s license. On that day, the trial court held that defendant should appear on October 14, 1988, and show cause.

On October 6, 1988, defendant filed a motion to stay in this court, where its appeal was pending, and we denied the motion on November 7, 1988.

Opinion

Defendant first contends that the trial court had no authority to vacate the settlement agreement.

Upon breach of a settlement agreement, the parties have several options, including rescission of the settlement contract. Where a breach goes to an essential element of the compromise agreement and in effect amounts to a refusal to perform or an abandonment, the other party may elect to regard the agreement as rescinded and proceed on the original cause of action, or may sue on the agreement for the breach. See Trapkus v. Edstrom’s, Inc. (1986), 140 Ill. App. 3d 720, 489 N.E.2d 340.

Here, plaintiff treated the contract as rescinded and relied on the original judgment of April 8, 1987. In fact, it was defendant who announced to the trial court on September 1, 1988: “[Defendant is] not going to issue an RDP. So, I assume, what the Court’s going to do is enforce the [April 8, 1987,] order of Judge Wosik.” The court agreed that it would “vacate the settlement agreement and leave the order that Judge Wosik entered.”

The trial court here had inherent power over the enforcement of its judgments. In Rubly v. Edgar (1991), 209 Ill. App. 3d 396, 568 N.E.2d 113, the trial court properly enforced its order, entered one year earlier, reversing the defendant Secretary of State’s decision and ordering defendant to issue plaintiff an RDP. In that case, as here, the trial court had refused to stay the order pending appeal; defendant then filed a notice of appeal which he voluntarily dismissed several months later; defendant issued plaintiff an RDP for three months; defendant required plaintiff to undergo another formal hearing; and defendant finally refused to renew the RDP. Plaintiff filed a petition for relief from violation of the court’s earlier order, and the trial court ordered defendant to comply with the earlier order and issue an RDP.

On appeal, this court held that the trial court had the authority to enforce the order, although it had been entered one year earlier, because defendant had never complied with the trial court order, instead issuing only a three-month RDP and requiring him to undergo another formal hearing, although no further DUI arrests had occurred. We pointed out that after the second hearing, defendant had refused to grant plaintiff a renewal of the RDP for virtually the same reasons as those given in the first hearing, which decision had been reversed. We concluded that the trial court retained jurisdiction to enforce its order regardless of the lapse of time. Although the trial court order had not specified a time period for compliance, we held that the trial court’s later enforcement of the order was “proper because the defendant had continued to exercise his power in an arbitrary and capricious fashion by continuing to create unnecessary and burdensome obstacles for the plaintiff.” Rubly v. Edgar, 209 Ill. App. 3d at 400.

Similarly, in the present case we find that the trial court had the authority to enforce its earlier order of April 8, 1987.

Defendant contends further that it did not breach the settlement agreement, since it gave plaintiff a six-month RDP and never promised him a renewal of the RDP.

Illinois public policy generally favors the peaceful and voluntary resolution of disputes. (Jachera v. Blake-Lamb Funeral Homes, Inc. (1989), 189 Ill. App. 3d 281, 545 N.E.2d 314.) There is a presumption of validity when a settlement is entered into, absent mistake or fraud, and the settlement is conclusive on the parties thereto as to all matters included therein. (Nationwide Art Center, Ltd. v. Daley (1986), 149 Ill. App. 3d 508, 501 N.E.2d 171; McCracken Contracting Co. v. R.L. DePrizio & Associates, Inc. (1984), 122 Ill. App. 3d 680, 462 N.E.2d 682.) As defendant concedes, there has been no claim of fraud or mistake here. In order to determine whether failure of performance constitutes a material breach permitting rescission of the contract, a court must ask whether “the matter, in respect to which the failure of performance occurs, is of such a nature and of such importance that the contract would not have been made without it.” (Trapkus v. Edstrom’s, Inc., 140 Ill. App. 3d at 725, 489 N.E.2d at 345.) The issue of what type of driving privileges plaintiff was to have was the key to the entire settlement agreement, and thus the contract would not have been made without this term. Having found the allegedly breached contract term to be material, we go on to construe the language of that term as contained in the agreement.

A settlement agreement is considered a contract, and construction and enforcement of settlement agreements are governed by principles of contract law. (Vole, Inc. v. Georgacopoulos (1989), 181 Ill. App. 3d 1012, 538 N.E.2d 205; People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Association (1982), 108 Ill. App. 3d 266, 438 N.E.2d 1273.) Where there is no ambiguity in the language of a settlement agreement, the determination of the intent of the parties is governed by the contract language alone. Payne v. Coates-Miller, Inc. (1982), 105 Ill. App. 3d 273, 434 N.E.2d 306.

The contract language at issue here states that “in consideration of the dismissal of the appeal” in No. 1 — 87—1479 by defendant, plaintiff agreed that “all rights, claims and demands and causes of actions” were “hereby fully settled, compromised, and discharged” in “plaintiff’s action in administrative review in the Circuit Court of Cook County, Illinois case No. 86 CH 6335 [No. C — 885—86].” The contract continues:

“2. It is also agreed and understood upon the above consideration, that defendant-appellant Illinois Secretary of State JIM EDGAR, agrees to grant plaintiff Tom Haisma upon proper documentations Pursuant to 92 Ill. Admin. Code, 1986, §1001.420(a) a restricted driving permit for his employment.
3. It is further understood and agreed that plaintiff Tom Haisma agrees to operate a motor vehicle pursuant to the restrictions of his restricted driving permit until a drivers [sic] license is issued to him.”

Defendant repeatedly argues that it “complied with the terms of the agreement by granting plaintiff a six-month RDP.” We disagree. The plain unambiguous language of this contract states that plaintiff will be allowed to drive under an RDP “until a drivers [sic] license is issued to him.” The absence of a time limit within which a settlement is to continue does not necessarily render it void or unenforceable. Strozewski v. Sherman Equipment Co. (1979), 76 Ill. App. 3d 266, 395 N.E.2d 38.

Nor would it be reasonable for plaintiff, who was successful in his administrative review appeal where the trial court granted him full driving privileges, to then give that up — after five years of having no driving privileges — in return for a only a six-month RDP. Plaintiff clearly gave up his right to full driving privileges in return for an RDP until he was issued a driver’s license. Under the agreement, then, defendant was required to renew the RDP if it expired before full reinstatement of driving privileges, subject only to the administrative regulation cited within the contract, which requires proper employment documentation. We note further that defendant’s administrative guidelines provides for such renewals. 92 Ill. Adm. Code, §1001.470 (1985).

Defendant invites us to add a material term to the contract so that it would read: “Tom Haisma agrees to operate a motor vehicle pursuant to the restrictions of his six-month restricted driving permit ***.” To add such a term would render meaningless the final phrase— “until a drivers [sic] license is issued to him.”

In addition, plaintiff has made several uncontradicted representations that defendant drafted the agreement. Thus, any ambiguity we were to find would be construed against defendant. See Reynolds v. Coleman (1988), 173 Ill. App. 3d 585, 527 N.E.2d 897.

Defendant argues further that it could not have intended to issue the RDP for more than 12 months, because the Illinois Vehicle Code states that “all such permits shall expire within one year from the date of issuance.” (Ill. Rev. Stat. 1989, ch. 951/2, par. 6 — 206(c)(3).) The statute, however, has no restrictions precluding renewal of the RDP from year to year. Thus, defendant’s ultra vires argument is not controlling.

Moreover, if we were to find the agreement barred by the doctrine of ultra vires, the agreement would be a nullity (Diversified Computer Services, Inc. v. Town of York (1982), 104 Ill. App. 3d 852, 433 N.E.2d 726), and the parties would be returned to their presettlement position established by the trial court’s April 8, 1987, order which reinstated full driving privileges. That is exactly the result the trial court reached, although it took a different path.

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

Judgment affirmed.

LORENZ, P.J., and COCCIA, J., concur.


author: JUSTICE McNULTY JUSTICE GORDON,

text:
    DAVID TORRES, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (5th Division)
    No. 1-89-0400
    Opinion filed July 26, 1991.

      Fred I. Benjamin and Thomas C. Halterman, both of Benjamin & Shapiro, Ltd., of Chicago, for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE McNULTY

delivered the opinion of the court:

Plaintiff David Torres appeals from an order granting summary judgment in favor of defendant, the City of Chicago (City), in a negligence action alleging that the City failed to maintain its streets in a reasonably safe manner. We address the issue of whether the City owed a duty of care to the plaintiff.

The record reveals that on January 26, 1985, plaintiff parked his car in front of his sister’s house at 2100 West Barry Street. Plaintiff exited his car on the street side and proceeded to the rear of the car to remove groceries from the trunk. As plaintiff stepped back from the trunk, he fell into a pothole and was injured.

Plaintiff filed a negligence action against the City. The City then filed a motion for summary judgment, asserting its lack of duty to the plaintiff. The circuit court granted the summary judgment motion, finding that the City had no duty to maintain its streets for a pedestrian using the street outside of a crosswalk.

To recover in a negligence action, a plaintiff must allege a duty owed to the plaintiff by a defendant, a breach of that duty and an injury proximately resulting from the breach. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96.) Section 3 — 102(a) of the Local Governmental and Governmental Tort Immunity Act (Tort Immunity Act) sets forth the City’s duty to maintain its property:

“[A] local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used[.]” (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 102(a).)

Whether the city owed plaintiff a duty of care is a question of law properly decided on a motion for summary judgment. Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 527 N.E.2d 572.

It is well settled that a municipality owes no duty to a pedestrian crossing a public street outside of the crosswalk. (Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 502 N.E.2d 357.) We find this rule inapplicable to the instant case since, here, plaintiff was not crossing the street in the middle of the block outside of the crosswalk, but was merely using the street area around his parked car to leave his car.

We agree with plaintiff’s contention that because the City permits parking on Barry Street, pedestrian use of the immediate area around the parked vehicle for ingress and egress to and from the vehicle was intended and permitted within the meaning of the Tort Immunity Act. In Di Domenico v. Village of Romeoville (1988), 171 Ill. App. 3d 293, 525 N.E.2d 242, a case virtually identical to the case at bar, the plaintiff after legally parking his car, walked on to the street to retrieve some items from his trunk and while doing so, fell into a pothole and injured himself. The court in Di Domenico stated:

“It defies common sense to conclude that such local entities did not contemplate and intend that the operator of the vehicle along with passengers would use the street area around the parked vehicle for ingress and egress to and from their vehicle.” (Di Domenico, 171 Ill. App. 3d at 295-96.)

Furthermore, the court noted that plaintiff had legally parked his car and had no alternative route available to him. Accordingly, the court concluded that the village must have recognized that a driver would have to walk in the street from his legally parked car to the sidewalk, and therefore, the village had a duty to drivers and passengers to maintain the area of the street where cars were allowed to park. Di Domenico, 171 Ill. App. 3d 295.

Likewise, in Princivalli v. Chicago (1990), 202 Ill. App. 3d 525, 559 N.E.2d 1190, the court found significant the fact that the plaintiff was injured after exiting from her legally parked car. The plaintiff in Princivalli lawfully parked her car parallel from the curb, with the driver’s side of the car near the curb. She left the car, walked to the rear of the car, and stepped off the curb into the street. As she was crossing the street, she fell into a pothole and was injured. The court reversed the summary judgment granted to the city, holding that the entry of summary judgment was “premature” given the city’s failure to establish that plaintiff was not an intended and permitted user of the street and whether her use of the street was reasonably foreseeable. Princivalli, 202 Ill. App. 3d at 528.

Our supreme court has recently had the opportunity to evaluate the City’s duty under the Tort Immunity Act. In Marshall v. City of Centralia (1991), 143 Ill. 2d 1, 570 N.E.2d 315, the court found that the defendant’s duty is limited by the language of the Tort Immunity Act and, therefore, whether the defendant owed the plaintiff a duty requires the court to determine whether the plaintiff was an intended and permitted user of the property. The plaintiff in Marshall was on his way to visit a friend when he noticed that the sidewalk on the other side of the street was so muddy that there was no clean path to walk on. Before entering the crosswalk, plaintiff decided to leave the sidewalk and walk out in the street to avoid getting mud on his tennis shoes. In doing so, plaintiff walked across a grass-covered-parkway between the sidewalk and street and, before he stepped into the street, he fell into an open manhole. (Marshall, 143 Ill. 2d at 4.) While the city conceded that pedestrians such as plaintiff are permitted to walk upon its parkways, it maintained that pedestrians are not intended to walk through the parkway since parkways are intended to be used as “an area of beautification for trees and so forth.” (Marshall, 143 Ill. 2d at 6.) After declining to analogize this case to a jaywalking case, the Marshall court concluded that plaintiff was an intended and permitted user of the parkway because parkways, while beautifying the street, are also intended for the limited use of pedestrians. (Marshall, 143 Ill. 2d at 6.) In reaching this conclusion, the court noted:

“While parkways are not constructed with the intention of accommodating the kind of pedestrian traffic that is commonly associated with sidewalks, parkways have historically been used by pedestrians in a number of limited instances: i.e., to enter a car that is parked at the curb; to retrieve mail from a mailbox; to reach a neighbor’s house across the street; to board a bus; to stand on so that others can pass you on the sidewalk; to cut the lawn; to trim the shrubs; and to rake the leaves.” (Emphasis added.) (Marshall, 143 Ill. 2d at 10.)

Thus the court concluded that “a city has no right to maintain anything in the nature of a pitfall, trap, snare or other like obstruction whereby the traveler, in yielding to the impulse of the average person to cut across a corner in a hurry, may be injured.” Marshall, 143 Ill. 2d at 11.

The City in the instant case relies on the same jaywalking cases that the court found inapplicable in Marshall. These cases are distinguishable from the case at bar in light of the fact that the plaintiff in each case was clearly not an intended or permitted user of the street. The respective plaintiffs were injured while either walking to their illegally parked cars, or while crossing mid-block, outside of the crosswalk, to the opposite side of the street. (See Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 527 N.E.2d 572 (plaintiff was not an intended and permitted user of the street where plaintiff was injured while walking across a residential street mid-block in order to reach her car across the street and plaintiff even admitted that she had been jaywalking); Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 502 N.E.2d 357 (plaintiff was not an intended and permitted user of the street since he had been jaywalking, attempting to cross a heavily traveled street in the middle of the block).) Since illegal parking and jaywalking are actions expressly prohibited by ordinance, it would be inconceivable to find that a plaintiff injured while engaging in behavior in violation of a municipal ordinance is an intended and permitted user of the street. See Prokes v. City of Chicago (1991), 208 Ill. App. 3d 748, 567 N.E.2d 592 (City owed no duty to an adult plaintiff riding a bicycle on the sidewalk, since a person in violation of an ordinance could not be considered a permitted user of the property).

We also find distinguishable the five appellate court cases which have been released since the instant case was briefed, addressing the issue of whether a municipality owes a duty of care to a pedestrian injured while walking on the street outside of the crosswalk. In Vlahos v. City of Chicago (1990), 198 Ill. App. 3d 911, 556 N.E.2d 660, the plaintiff was injured after stepping into a hole in the street, outside of a crosswalk, while walking to his illegally double-parked car. Thus, it is clear that the plaintiff in Vlahos was not a permitted and intended user of the street since he parked in a spot where parking was not lawfully permitted and the city obviously did not intend for cars to be parked illegally.

In Vance v. City of Chicago (1990), 199 Ill. App. 3d 652, 557 N.E.2d 494, plaintiff was injured when she fell into a pothole in the street, outside of the crosswalk, after leaving a Chicago Transit Authority (CTA) bus. In concluding that bus passengers were not intended and permitted users of the street, the court distinguished Di Domenico on the basis that there the village allowed parking in the street, while here, the CTA was not specifically allowed to drop passengers off in the street.

Furthermore, the plaintiffs in Wojdyla v. City of Park Ridge (1991), 209 Ill. App. 3d 290, 568 N.E.2d 144, and Greene v. City of Chicago (1991), 209 Ill. App. 3d 311, 567 N.E.2d 1357, were not intended and permitted users of the street since the plaintiffs were injured while attempting to cross mid-block to the opposite side of the street. In Wojdyla the decedent was crossing a six-lane highway, while walking to his parked car when he was struck by an automobile. The court concluded that plaintiff was not an intended and permitted user of the street since decedent was fatally injured while attempting to cross, outside of the crosswalk, to the other side of the highway. Similarly, in Greene, the court concluded that plaintiff was not an intended and permitted user of the street since plaintiff was injured while he attempted to cross the street, outside of the crosswalk, not while en route to his vehicle, but while on the way to a friend’s house.

Most recently, in Ramirez v. City of Chicago (1991), 212 Ill. App. 3d 751, 571 N.E.2d 822, plaintiff was injured as she stepped into the street while she was in the process of sweeping the street in front of her home. Plaintiff argued that she was the beneficiary of a duty at the time of her injury because, though her injury occurred at a point in the street not protected by a crosswalk, she was lawfully on the street performing a lawful duty, and she was performing a socially desirable function. The Ramirez court found that the plaintiff could not benefit from the duty Di Domenico imposes since the Ramirez plaintiff was not walking to her legally parked vehicle, but was gratuitously cleaning the street.

Accordingly, we conclude that the plaintiff in the instant case was an intended and permitted user of the street. There is absolutely no basis for distinguishing this case from Di Domenico. Plaintiff’s use of the street was not in violation of any ordinance. He was an intended and permitted user of Barry Street by virtue of the fact that he parked in a legal space on Barry Street. The City, by allowing parallel parking and not designating the area as restricted for parking, clearly intended and permitted individuals the use of the area for parking. Consequently, use of the parking space logically entails pedestrian use of the adjacent areas in order to enter and exit the parked vehicle and such use of the street is therefore also intended and permitted and reasonably foreseeable. See Wojdayla v. City of Park Ridge (1991), 209 Ill. App. 3d 290, 560 N.E. 2d 144 (Egan, J., dissenting) (it would be manifestly unjust to find that the driver of the car that struck the decedent has a cause of action against the city for property damage resulting from defective lighting, while finding that the slain pedestrian’s estate would have no cause of action against the city).

Finally, we find that our conclusion is entirely consistent with the decision in Marshall. (Marshall, 143 Ill. 2d at 10.) The Marshall court noted that parkways, while beautifying the street, are also intended for other limited pedestrian uses such as gaining access to a car that is parked at the curb. Here, the street area outside of the crosswalk, while intended primarily for vehicular traffic, is also intended for the limited pedestrian use of entering or exiting a parked vehicle. Furthermore, the Marshall court found that the city owed a duty to the pedestrian notwithstanding the fact that the pedestrian had an alternative route available to him. In the instant case there was simply no way for the plaintiff to avoid stepping on the street area surrounding his car as he exited his car and retrieved items from his trunk.

This modest extension of a municipality’s duty of care to reasonably maintain not only the crosswalks, but also those areas of the street used by a pedestrian while in the immediate zone of travel to and from his legally parked vehicle, will not subject it to open-ended liability thereby causing an unreasonable burden on municipal finances.

Consequently, for the reasons set forth above, we reverse the trial court’s order which granted defendant’s motion for summary judgment and remand this case for further proceedings.

Reversed and remanded.

LORENZ, P.J., concurs.

JUSTICE GORDON,

dissenting:

Whether pedestrians injured while on public streets while leaving or approaching their parked vehicles may recover from a municipality has been the subject of increasing divergence among the districts and within the first district.

Cases which have denied such recovery include: Wojdyla v. City of Park Ridge (1991), 209 Ill. App. 3d 290, 568 N.E.2d 144 (but see dissent by Justice Egan); Greene v. City of Chicago (1991), 209 Ill. App. 3d 311, 567 N.E.2d 1357; Vlahos v. City of Chicago (1990), 198 Ill. App. 3d 911, 556 N.E.2d 660; and Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 527 N.E.2d 572. Cases which have refused to deny such recovery include Princivalli v. City of Chicago (1990), 202 Ill. App. 3d 525, 559 N.E.2d 1190, and Di Domenico v. Village of Romeoville (1988), 171 Ill. App. 3d 293, 525 N.E.2d 242.

While the majority opinion is thoughtful and well researched, I cannot accept its conclusions, which would distinguish between injuries sustained by a pedestrian parker in the immediate proximity of a parked vehicle while seeking access to its trunk and injuries sustained by the pedestrian at a greater distance from the vehicle while proceeding towards it or away from it. In either event it would impose a new and costly area of liability upon municipalities to pedestrians for street injuries outside of crosswalks, in the eventual complete erosion of the holding of this division in Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 502 N.E.2d 357. The duty of the municipality to maintain its streets for pedestrian use would now extend the full curbside length of all streets which permit public parking. The duty of the municipality to maintain its streets would not be limited to those conditions which present hazards to vehicles as is presently the case but to every type of defect which presents a risk to pedestrians as if on a sidewalk.

Furthermore, the tenuous demarcation between those who are injured while avoidably using the street and those unavoidably using the street cannot be long maintained either in concept or in practice. For example, what of a driver who is injured adjacent to his vehicle, as in this case, but unlike the facts in this instance not because he tries to reach his car trunk but because he sought to cross the street mid-block from his vehicle? What of a driver who can with some added effort leave his vehicle through the curbside passenger door, who nevertheless chooses to leave through his street-side door, and is injured as a result of a defect in the street? Is it really appropriate to permit recovery to a driver using the street rather than the sidewalk to reach his car trunk while denying recovery to one who crosses mid-block on a quiet side street to reach his vehicle parked a short 20 feet across the roadway where the alternative route to his vehicle is to walk 300 feet to a crosswalk to cross the street and then walk back again?

These hypotheticals are merely examples of those questions which will undoubtedly challenge and breach the thin line being drawn here between parkers whose use of the street is unavoidable and those whose use is avoidable. Thus, for the reasons which are already expressed in Vlahos v. City of Chicago (1990), 198 Ill. App. 3d 911, I must respectfully dissent.