author: JUSTICE COCCIA

text:
      In re J.B., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Leslie Blackwell, Respondent-Appellant).
    First District (5th Division)
    No. 1—88—1358
    Opinion filed December 22, 1989.
    Randolph N. Stone, Public Defender, of Chicago (Karen E. Tietz, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, William D. Carroll, and Diann Doppelt, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE COCCIA

delivered the opinion of the court:

After an adjudicatory hearing, respondent Leslie Blackwell was found to have neglected her minor son. At the dispositional hearing the trial court awarded the guardian ad litem custody of the child. The issue on appeal is whether the trial court’s determination of neglect was against the manifest weight of the evidence.

On May 12, 1987, the Illinois Department of Children and Family Services (DCFS) filed a petition for adjudication of wardship of respondent’s son, J.B., who was about seven years old at the time. The petition alleged that the child was neglected, in that respondent did not provide the care necessary for his well-being and that he was abandoned in violation of section 2 — 4(1) of the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 702 — 4(1) (now codified as Ill. Rev. Stat. 1987, eh. 37, par. 802 — 3(1))). At the temporary custody hearing, Donald Garrity of the DCFS Child Protection Division testified that the agency’s hotline had received an allegation of cuts, bruises, welts, and sexual exploitation. Pursuant to an investigation, Garrity interviewed respondent. Initially, respondent denied that she had a son named J.B., but when Garrity pointed out that she had been receiving public aid for the child for the last seven years, respondent acknowledged that J.B. was her son. Respondent provided Garrity with several different explanations as to why J.B. was not living with her. Garrity subsequently learned that J.B. had been living with the Crawford family since September 1980, and that respondent had not had contact with J.B. since he was eight months old. Garrity asked the court to issue a “no contact” order, stating that just prior to the hearing and just outside of the courtroom, respondent was hostile and told him that she was going to do anything to get her child back. She then went over to J.B. and told him that she was going to find out where he lived and go over and get him.

Diane Crawford testified that J.B. had been in her custody for at least QV2 years. During this time respondent never visited her son. Based on this testimony the trial court entered a “no contact” order.

At trial Crawford testified that sometime prior to September 1980 her brother, respondent, and respondent’s family, including J.B., moved in with her. In September 1980, respondent moved out, leaving J.B. with Crawford. J.B. was eight months old at the time. Crawford stated that she agreed to take care of J.B. “until [respondent] got herself together.” However, respondent had not contacted J.B. since that time, nor had she provided money, food, or clothing for J.B. Crawford testified that she knew that respondent was receiving public aid for J.B., because she saw her brother with the public aid medical card. According to Crawford, respondent had contacted Crawford’s mother several times over the past six years, but she had never contacted Crawford. She also indicated that J.B. considered her to be his mother, that she had enrolled him in school and that she had paid for his medical expenses over the years.

Respondent testified that in September 1980 she lived with the Crawford family and that she subsequently moved out in June 1981. At that time Crawford agreed to take care of J.B. until respondent found a place to live. About one year later, respondent returned to the Crawford residence only to find no one residing at that location. Respondent stated that since 1981 she had daily contact with Crawford’s mother, that they would talk about J.B., and that she was told by Crawford’s mother that she did not know where Crawford was staying. Respondent testified that she gave money, food, clothing, and J.B.’s medical card to Crawford’s brother. When questioned about a conversation she had with Garrity, she denied telling him that J.B. was not her son, but admitted that she lied when she told Garrity that J.B. only lived with her on the weekends. Respondent also stated that she received public aid for J.B. until May 1987.

At the dispositional hearing, Lewis Simon, a DCFS child welfare specialist, testified that a service plan had been provided to respondent in May 1987. The plan required that respondent determine what action was in the best interests of her son. Respondent had “mixed feelings” as to whether she wanted him to remain with the Crawfords or return home, but she decided that she wanted him to return. Pursuant to the plan respondent was also required to begin visiting the child and seek counseling. Simon was uncertain as to how often respondent had visited J.B. since the plan was developed, but he did testify that respondent attended her first counseling session in 1988, although Simon had not received any documentation from the counseling center that respondent had registered and attended sessions. Simon further testified that respondent was cooperative. He recommended that a guardian be appointed and that DCFS be given the right to place J.B.

In rendering its decision the trial court found as follows:

“Then considering the mother’s recent, only recent attempts to begin the counseling and the visiting, there will be a finding of unwillingness as to the parents and that services are being offered the mother. Best interests of the minor Gary T. Morgan will be appointed guardian.”

Respondent contends that the trial court’s finding of unwillingness was against the manifest weight of the evidence in view of evidence that she wanted custody of her son, that she visited him weekly, and that she attended counseling sessions. Respondent reasons that a determination of her fitness as a parent should be based on her present progress and not on her past conduct.

In reviewing the trial court’s findings we are guided by the rule of law in parental rights termination proceedings that requires a clear and convincing standard of proof. (See In re Enis (1988), 121 Ill. 2d 124, 134, 520 N.E.2d 362, 367; see also Santosky v. Kramer (1982), 455 U.S. 745, 769-70, 71 L. Ed. 2d 599, 617, 102 S. Ct. 1388, 1403.) The trial court’s decision is entitled to great deference, and it shall not be reversed unless contrary to the manifest weight of the evidence. See In re N.F. (1989), 178 Ill. App. 3d 662, 666, 533 N.E.2d 952, 955.

Applying these standards to the instant case, we conclude that the trial court’s finding of neglect and adjudication of the child as a ward of the court was proper. It is undisputed that respondent abandoned her son for about the first six years of his life, during which time she continued to accept public aid for the child. The person who cared for the child during this time testified that respondent never once visited him. Respondent testified that she returned to the caretaker’s house one year after leaving her son only to find that no one was living at that location. Respondent then claimed that she had daily contact with the caretaker’s mother who, according to her, did not know the whereabouts of her child. The caretaker testified that she fed, clothed, and paid for the child’s medical expenses, while respondent testified that during those several years she gave the caretaker’s brother money, food, and clothing for her son. The social worker who developed a service plan for respondent in 1987 was uncertain regarding how often respondent visited her son, as required by the plan. Although the social worker thought that respondent was attending counseling sessions, there was no documentation indicating that respondent had registered and attended the sessions on a regular basis. After reviewing this evidence, we conclude that the trial court’s finding of parental neglect was supported by the constitutional dictate that in parental rights termination cases clear and convincing evidence will be required before parental rights may be terminated. (See Enis, 121 Ill. 2d at 134, 520 N.E.2d at 367; see also Santosky, 455 U.S. 769-70, 71 L. Ed. 2d at 617, 102 S. Ct. at 1403.) We likewise conclude that the trial court’s decision was not against the manifest weight of the evidence. See N.F., 178 Ill. App. 3d at 666, 533 N.E.2d at 955.

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

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE CERDA

license: Public Domain

text:
    LORETTA CWIERTNIA, Adm’x of the Estate of Ivar Hjelmgren, Deceased, Plaintiff-Appellant, v. JOHN ZABOROWSKI, Defendant-Appellee (Ravenswood Hospital Medical Center et al., Defendants).
    First District (3rd Division)
    No. 1—88—2261
    Opinion filed December 20, 1989.
    Larry Karchmar, of Larry Karchmar, Ltd., of Chicago, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee.
   JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, Loretta Cwiertnia, administratix of the estate of Ivar Hjelmgren, alleged in her medical malpractice complaint that defendant Dr. John Zaborowski was negligent in caring for Hjelmgren because he did not diagnose Hjelmgren’s condition. She appeals from the order granting Dr. Zaborowski’s motion for summary judgment.

Plaintiff’s first amended complaint alleged that on August 25, 1982, Hjelmgren was admitted as a patient to Ravenswood Hospital. Dr. Zaborowski was alleged to have breached his duty by negligently failing to diagnose decedent’s condition of bilateral pulmonary embolisms and by negligently failing to perform tests which would have divulged the embolisms. Hjelmgren allegedly suffered from massive bilateral pulmonary embolisms which resulted in his death in the hospital on August 29,1982.

Dr. Zaborowski moved for summary judgment on the basis that his failure to note in the hospital chart that he considered the diagnosis of pulmonary embolism had no effect on the care rendered to Hjelmgren and was not the proximate cause of the injury, because Drs. Lloyd Callaway, Jr., and Neil Kramer had discussed the possibility of pulmonary embolism. Plaintiff argued in her response to the motion that whether Drs. Callaway and Kramer discussed the possibility of pulmonary embolism was a question of fact, because their consideration of pulmonary embolism was not reflected in the medical records. Dr. Zaborowski did not dispute this lack of evidence in the medical records.

Plaintiff’s expert Dr. Leonard Braudo testified at his deposition that Dr. Zaborowski did not deviate from the standard of care and that the medical chart entries indicated that Dr. Zaborowski took orders from his superiors.

Dr. Zaborowski testified at his deposition that he began his residency in internal medicine at Ravenswood Hospital in July 1982. He took Hjelmgren’s history upon his admittance to the hospital, and Hjelmgren informed him that he had deep vein thrombosis in 1973 but Dr. Zaborowski did not recall being informed of a history of pulmonary embolism. The nursing admission assessment indicated pulmonary embolism in 1967 but Dr. Zaborowski did not specifically recall reviewing it, although he usually looked at all the nursing report sheets. Dr. Zaborowski recalled speaking with Dr. Callaway, Hjelmgren’s attending physician, only at the time of Hjelmgren’s admission. Dr. Zaborowski related his findings to Dr. Kramer, who was a consulting physician.

Dr. Zaborowski further testified that he rendered diagnoses in conjunction with his superiors, which included a second-year resident, the attending physician, the consulting physicians, and the cardiologist in charge of the coronary care unit. As a resident he was qualified to examine patients and, under the supervision of other physicians, to write histories and physical examination findings and to write and sign orders. He was not qualified to do anything independently. He could render an opinion or impression that an individual suffered from pulmonary embolism based on clinical symptoms but he would have to discuss it with his superiors.

Dr. Lloyd Callaway Jr., testified at his deposition that he was board certified in the practice of family medicine. One of his associates admitted Hjelmgren into the hospital; Dr. Callaway was the attending physician. He was aware his patient had a history of pulmonary embolism. Dr. Callaway talked to the director of the cardiac care unit, the residents involved in the case, and Dr. Kramer, a cardiologist, whom he brought in as a consultant. He testified the diagnostic possibility of pulmonary embolism was discussed. He did not recall specifically when the conversation took place and who was present, and the conversation was not noted in the hospital records. He did not specifically remember discussing pulmonary embolism with Dr. Zaborowski. Neither he nor Dr. Zaborowski suggested that diagnostic measures be taken to rule out pulmonary embolism, and he stated that, in fact, pulmonary embolism was dismissed on the basis of lack of any clinical evidence.

Dr. Neil Kramer, who was certified in internal medicine and in cardiology, testified at his deposition that a pulmonary embolism is a blood clot that migrates from one part of the circulation to another. He was aware that Hjelmgren had a history of pulmonary embolism, and the possibility of this diagnosis was considered. He spoke to Dr. Callaway about pulmonary embolism, and they thought that it was a very remote possibility based on the fact that Hjelmgren had none of the clinical findings of a pulmonary embolism. He read Dr. Zaborowski’s notes and may have spoken to him but did not recall any specific date or discussing Hjelmgren’s treatment with Dr. Zaborowski.

Dr. David W. Cugell, whose subspeciality was pulmonary medicine, testified at his deposition that he had been hired as an expert by plaintiff. He saw nothing in the hospital record indicating that pulmonary embolism was considered, and he was puzzled by this absence. He also was astonished that Drs. Kramer and Callaway were surprised at the postmortem finding of pulmonary embolism after discussing its possibility.

Based upon Dr. Zaborowski’s statements at his deposition that he had no independent status and had a training position, Dr. Cugell did not think it appropriate to ascribe any responsibilities to him. In general, resident physicians do not have direct patient care responsibilities but care for patients under the direction of and responsibility of a more senior person. But according to Dr. Cugell, Dr. Zaborowski’s prior training and his status as a resident, even though he was only in the first month of his residency, should have created an “attitude of concern and suspicion” for pulmonary embolism that he apparently did not express. Dr. Zaborowski’s duty would have been at least to have indicated in the record that he considered the diagnosis of pulmonary embolism in order to bring it to the attention of his superiors. It would have been appropriate for Dr. Zaborowski to have discussed the diagnosis with the attending physicians.

Dr. Cugell also testified that if Dr. Zaborowski had indicated pulmonary embolism in the record and if Dr. Callaway and/or Dr. Kramer considered this possible diagnosis and disagreed with it, then Dr. Zaborowski would have complied "with the applicable standard of care. As Dr. Zaborowski had the junior status of trainee, if in fact Drs. Callaway and Kramer considered pulmonary embolism, then his failure to note in the chart a suspicion or differential diagnosis of pulmonary embolism would have had no effect because clearly Drs. Calla-way and Kramer made patient care decisions. Furthermore, Drs. Callaway and Kramer had no obligation to act on anything that Dr. Zaborowski discussed.

The threshold issue is whether the order included the necessary language of appealability. The order granted summary judgment in favor of only one defendant and therefore remaining were the claims against the other defendants. The order in the instant case stated that it was “final and appealable, the court finding no just reason for delay of enforcement therefrom.”

Supreme Court Rule 304(a) states in part:

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal.” (Emphasis added.) (107 Ill. 2d R. 304(a).)

The purpose of the rule is to discourage piecemeal appeals in the absence of just reason and to remove the uncertainty which exists when a final judgment is entered on fewer than all the matters in the controversy. Non-final judgments are subject to revision at any time before the entry of a judgment adjudicating all claims, rights, and liabilities of all the parties. Hamer v. Lentz (1987), 155 Ill. App. 3d 692, 695, 508 N.E.2d 324.

In Hamer, the order stated that “ ‘[t]his is a final and appealable order.’ ” (155 Ill. App. 3d at 695.) The court held that the word “final” was not the equivalent of the word “enforceable” in Rule 304(a) and that therefore the order was not appealable. In First National Bank v. Lewis (1987), 163 Ill. App. 3d 160, 161, 516 N.E.2d 552, the following language was also held to be insufficient for an appeal under Rule 304(a) because it lacked language of finality and appealability: “ ‘There is no just reason to delay enforcement of this order with respect to the ruling.’ ”

In contrast, the order in Lawyers Title Insurance Corp. v. Kneller (1988), 172 Ill. App. 3d 210, 213, 525 N.E.2d 1155, was held to confer appellate jurisdiction even though it did not include the exact Rule 304(a) language and omitted language of enforceability. The order stated that “ ‘pursuant to Supreme Court Rule, being section 304(a) of chapter 110A, Illinois Revised Statutes, there is no just cause for delaying an appeal from the order entered herein.’ ” (172 Ill. App. 3d at 212.) The court held that the order’s citation to the rule constructively fulfilled the rule’s technical language requirement.

Although the order in the instant case did not include the exact Rule 304(a) language, the references to finality, appealability and enforceability demonstrated the intent to permit appeal from the order, and therefore, we hold that this court has jurisdiction.

Summary judgment will be granted if the pleadings, depositions, admissions, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) The right to present a factual basis for a case where a material dispute exists may not be preempted by summary judgment. (Fruzyna v. Walter C. Carlson Associates, Inc. (1979), 78 Ill. App. 3d 1050, 1053, 398 N.E.2d 60.) The right to summary judgment must be clear beyond question. Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, 741, 415 N.E.2d 434.

Plaintiff argues that Dr. Zaborowski’s motion for summary judgment should not have been granted because there was an issue of material fact as to whether the defendant deviated from the applicable standard of care when he failed to note in decedent’s chart or discuss with the attending physician the need for diagnostic testing in order to diagnose or at least rule out the possibility of pulmonary embolism and thereby preventing decedent’s demise. Specifically, plaintiff argues that: (1) Dr. Cugell’s testimony established a question of fact as to whether Dr. Zaborowski breached a standard of care; (2) the lack of a notation in Hjelmgren’s hospital records as to the consideration of the diagnosis created an issue of fact as to whether Dr. Zaborowski’s actions proximately caused Hjelmgren’s death; and (3) the trial court erred in relying upon Drs. Kramer’s and Callaway’s “self-serving statements” that they had discussed pulmonary embolism.

Dr. Zaborowski argues that Dr. Cugell’s testimony did not establish an issue of fact concerning whether any breach of the standard of care by Dr. Zaborowski proximately caused the injury. He relies upon Dr. Cugell’s testimony that if Drs. Callaway and Kramer had considered pulmonary embolism, any failure by Dr. Zaborowski to note in the chart a suspicion or differential diagnosis of pulmonary embolism would have had no effect. He notes the testimony of Drs. Kramer and Callaway that they had indeed considered the diagnosis and argues that, therefore, there was no issue whether the diagnosis was actually considered. Dr. Zaborowski argues that the lack of inclusion of any indication in the hospital chart was consistent with the doctors’ testimony.

Dr. Zaborowski cites Thome v. Palmer (1986), 141 Ill. App. 3d 92, 489 N.E.2d 1163, to support his argument that this lack of notation did not create an issue of fact concerning whether Drs. Kramer and Callaway discussed the possibility of pulmonary embolism. Plaintiff there claimed that hospital residents failed to examine her elbow. The residents testified that they did examine her elbow but did not document their findings because nothing abnormal was found. Plaintiff was not permitted to present evidence of a hospital regulation that required inclusion in medical records all findings resulting from an assessment of body systems. Dr. Zaborowski claims that the logic in Thome was that a physician’s failure to note in the chart those matters which he feels are of no consequence is irrelevant. But the uncontroverted evidence had been that in that hospital it was standard to omit normal findings from patient records. In contrast, in the instant case there was no uncontroverted evidence that the failure to include diagnoses considered remote in hospital records was standard practice. In fact, Dr. Cugell indicated his puzzlement over the absence of a notation of pulmonary embolism in the record.

The fact finder could infer from the lack of notation in the records either that pulmonary embolism was not considered or that it was considered but not noted. If different inferences could be drawn from evidence, then a triable issue exists. (Schoondyke v. Heil, Heil, Smart & Golee, Inc. (1980), 89 Ill. App. 3d 640, 642, 411 N.E.2d 1168.) An issue may be resolved as a matter of law only if all reasonable minds would be compelled to reach the same conclusion. (Laflin v. Estate of Mills (1977), 53 Ill. App. 3d 29, 31, 368 N.E.2d 522.) It is not the trial court’s function in a motion for summary judgment to resolve doubts about credibility in order to reach a decision. Schuster v. East St. Louis Jockey Club, Inc. (1976), 37 Ill. App. 3d 483, 486, 345 N.E.2d 168.

Even if Drs. Kramer and Callaway had discussed pulmonary embolism, it is not clear beyond a reasonable doubt that Dr. Zaborowski’s failure to note pulmonary embolism on the chart or to otherwise raise the possibility of this diagnosis would not have contributed to Drs. Kramer’s and Callaway’s failure to diagnose pulmonary embolism. If a jury should believe that Drs. Kramer and Callaway never actually discussed pulmonary embolism, then the jury might also decide that if Dr. Zaborowski would have brought the possibility of pulmonary embolism to their attention, the decedent would have received the necessary medical services and survived.

Dr. Zaborowski also argues that Dr. Cugell conceded that any failure by Dr. Zaborowski to note the suspicion of pulmonary embolism on the chart would have had no effect, considering his junior status and since decisions about patient care were clearly the responsibility of Drs. Callaway and Kramer. Dr. Cugell’s testimony was that there would have been no effect if in fact the doctors had considered pulmonary embolism. Dr. Cugell did not testify that if Drs. Callaway and Kramer had not discussed the possibility of pulmonary embolism, Dr. Zaborowski’s breach of care would still have had no effect because of his junior status and their responsibility for the patient’s care.

There was a genuine issue of material fact as to whether Drs. Kramer and Callaway considered the diagnosis of pulmonary embolism so that it could not be held as a matter of law that any breach of care by Dr. Zaborowski could not have proximately caused Hjelmgren’s death. The trial court therefore erred in granting the motion for summary judgment. It is unnecessary to discuss plaintiff’s alternative argument that the trial court erred in relying upon what she characterizes as the self-serving statements of Drs. Callaway and Kramer.

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

Reversed and remanded.

FREEMAN, P.J., and WHITE, J., concur.


author: JUSTICE McMORROW

text:
    PHOEBE CAROL STEWART et al., Plaintiffs-Appellants, v. THE COUNTY OF COOK et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—87—2497
    Opinion filed December 21, 1989.

      Michael W. Rathsack, of Chicago, for appellants.
    Cecil A. Partee, State’s Attorney, of Chicago (Raymond J. Prosser, Special Assistant State’s Attorney, of counsel), for appellees.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff Phoebe Stewart (Stewart) and her husband (hereinafter collectively the plaintiffs) filed suit against defendants Cook County Hospital (the Hospital) and certain physicians employed by the Hospital (hereinafter collectively the defendants) to recover for injuries allegedly sustained as a consequence of medical malpractice committed by defendants in 1983. Defendants motioned to dismiss the complaint on the grounds that (1) plaintiffs’ notice to defendants was given more than one year after plaintiffs knew or should have known of the injuries and of their wrongful cause; (2) plaintiffs’ notice to defendants was factually deficient; and (3) plaintiffs’ exclusive remedy against the defendants was under the Illinois Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(a)). The trial court allowed the motion to dismiss, dismissed plaintiffs’ complaint with prejudice, and found no just reason to delay enforcement or appeal. Plaintiffs appeal from this ruling.

Upon review, we conclude that the record does not establish, as a matter of law, that plaintiffs knew or should have known of their cause of action against defendants more than a year prior to notice to the defendants. We further determine that the notice given to the defendants was not fatally defective. We also conclude that the record does not demonstrate, as a matter of law, that plaintiffs’ exclusive remedy falls under the Workers’ Compensation Act. Accordingly, we reverse and remand.

According to the record, Phoebe Stewart was working as a nurse at Cook County Hospital on September 18, 1983, when she experienced blurred vision in her right eye. She went to the Hospital’s emergency room and was thereafter admitted to the Hospital as an inpatient, where she was treated by physicians employed by the Hospital. Stewart underwent surgery at the Hospital on September 30, 1983, for innominate artery occlusive disease. She alleged in her complaint that during the surgery, the defendants negligently compromised her cerebral circulation for an excessive amount of time, causing her to suffer left hemiparesis (paralysis) and other injuries. Stewart and her husband filed suit against defendants on May 24, 1985, alleging medical malpractice and loss of consortium.

A few months before the complaint was filed, on March 19, 1985, plaintiffs served notice of injury upon the Hospital. In this notice, plaintiffs recited inter alia that Stewart’s surgery was performed on September 24, 1983, rather than the correct date of September 30, 1983. .

Defendants answered plaintiffs’ complaint and thereafter filed a motion to dismiss the pleading based on section 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—619). Defendants attached to this motion excerpts of Stewart’s deposition testimony which, according to defendants, indicated that Stewart knew of her injury and its wrongful cause in February 1984 or April 1984. On this basis, defendants asserted that plaintiffs had not timely notified them within one year of discovery of their causes of action, as required under the Local Governmental and Governmental Employees Tort Immunity Act (hereinafter Tort Immunity Act) (Ill. Rev. Stat. 1985. ch. 85, par. 8 — 102). Defendants also claimed that plaintiffs’ notice was defective because it misstated the date of surgery as September 24, 1983, rather than September 30, 1983. Lastly, defendants argued that plaintiffs’ exclusive remedy was under the Workers’ Compensation Act, because Stewart was an employee of the Hospital, developed symptoms of her illness while working at the Hospital, and was treated by Hospital physicians. The trial court granted defendants’ motion to dismiss, and plaintiffs appeal.

Defendants argue that plaintiffs’ suit was barred because plaintiffs did not notify defendants of their claims within the one-year time limitation set forth in the Tort Immunity Act. (Ill. Rev. Stat. 1985, ch. 85, par. 8—102.) It has been held that the discovery rule applies to this one-year notice requirement in medical malpractice suits against local public entities. (Rio v. Edward Hospital (1984), 104 Ill. 2d 354, 472 N.E.2d 421.) Under the discovery rule, “a cause of action accrues when a plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that it was wrongfully caused. [Citations.]” (Rio, 104 Ill. 2d at 361.) A plaintiff “reasonably should know that [the injury] was wrongfully caused” when the plaintiff “possessefs] *** sufficient information concerning [the] injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved.” (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 416, 430 N.E.2d 976.) By adopting this rule, “an injured person is not held to a standard of knowing the inherently unknowable, [citation] yet once it reasonably appears that an injury was wrongfully caused, the party may not slumber on his rights.” Nolan v. Jones-Manville Asbestos (1981), 85 Ill. 2d 161, 171, 421 N.E.2d 864.

The defendants argue that Stewart reasonably knew, in February 1984, that she had sustained an injury that was wrongfully caused during her surgery at the Hospital in September 1983. The defendants claim that in her deposition testimony, Stewart said that it was in February 1984 that she first thought her care at the Hospital might have been improper. Stewart’s deposition testimony does not contain such a blanket admission, however. The record reveals the following colloquy between plaintiff and defendant’s counsel:

“Q. [Defendant’s attorney]: Has anyone ever told you that there was any negligence in the care rendered to you at Cook County Hospital?
A. [Plaintiff]: I think Dr. Jensen [plaintiff’s subsequent treating physician] mentioned there could be after *** [he] did that CAT scan, he did mention that this ***.
Q. [Defendant’s attorney]: After he did the CAT scan, he did mention it?
A. Yes.
Q. All right. When did he mention that?
A. *** The week of February the 4th, [1984] ***.
Q. Okay. It was during that week that he told you — .
A. Yes.
Q. —of the negligence?
[Plaintiff’s attorney]: Excuse me. That is not what she said. She did not say that, and that’s a mischaracterization of her testimony.
[Defendant’s attorney]: All right.
[Plaintiff’s attorney]: She has not described for you what the doctor may have said about the CAT scan.
[Defendant’s attorney]: I’m about to ask that.
Q. Exactly what did he tell you during that conversation?
A. He said the CAT scan showed some brain damage, so it’s a possibility I could have suffered a stroke during my surgery.
Q. Did he say anything else about this idea of negligence in the operation at Cook County Hospital?
[Plaintiff’s attorney]: Excuse me. I object to that. You are trying to put words in her mouth. She has not said at that point in time the doctor said anything about negligence. He said — essentially he reported the results of the CAT scan. You are injecting negligence or conclusions regarding negligence into that reported statement at that time. We know why you’re doing that, and I object.
Q. [Defendant’s attorney]: Did he indicate at all whether there had been any negligence in your treatment at Cook County Hospital?
A. No.
Q. Not during that conversation; is that your testimony?
A. Yes.
Q. Did he ever indicate there was any negligence in your care or treatment at Cook County Hospital?
A. No.
Q. When he told you that, when he told you that you had had brain damage, according to the CAT scan, what, if anything, in your own mind did you conclude from that statement regarding your treatment at Cook County Hospital?
A. I didn’t know what to say.
Q. Did you think there had been any negligence or deficiency in the treatment rendered to you?
A. All I know — wanted to know, what was wrong, what went wrong. I didn’t know. The doctors there didn’t tell me anything, so I didn’t know.”

Based upon Stewart’s deposition testimony, we cannot say, as a matter of law, that Stewart realized, in February 1984, that she had sustained an injury that had been wrongfully caused by defendants. Stewart’s initial answers appear to indicate that she had been told by her treating physician, in February 1984, that the surgery she received at the Hospital had been negligently performed. However, Stewart thereafter specified that her treating physician only told her, in February 1984, that she might have had a stroke during the surgery in September 1983, and that the physician said nothing to her in this conversation to indicate that the possible stroke had been caused by negligence by the defendants during the surgery. Because Stewart’s deposition testimony contains conflicting factual evidence, it does not establish as a matter of law that Stewart knew of her injury and its wrongful cause in February 1984. Plaintiffs and defendants have demanded a jury trial, and therefore, this factual question must be resolved by a jury. (See Ill. Rev. Stat. 1987, ch. 110, par. 2—619(c); see also, e.g., Colley v. Swift & Co. (1984), 129 Ill. App. 3d 812, 473 N.E.2d 364.) For these reasons, we find Stewart’s deposition testimony relative to the extent of her knowledge, in February 1984, insufficient basis to sustain the trial court’s dismissal of the plaintiffs’ complaint on the ground that Stewart had knowledge of the defendants’ alleged negligence in February 1984 and failed to timely notify defendants.

The defendants also contend that Stewart’s deposition testimony indicated that she concluded in April 1984 that the defendants “did something wrong during the course of [the] operation.” On this basis, defendants assert that Stewart’s notice to them, in March 1985, was timely but nevertheless factually insufficient, because the March 1985 notice stated that the surgery occurred on September 24, 1983, when it actually occurred on September 30, 1983. Defendants observe that section 8 — 102 of the Tort Immunity Act requires that the notice contain in substance certain information regarding the injury, including the date thereof. Ill. Rev. Stat. 1985, ch. 85, par. 8—102.

Defendants maintain that the inaccuracy regarding the date of Stewart’s surgery renders the notice automatically invalid, without regard to whether the misstatement of the date of surgery misled or prejudiced them. To support their argument, defendants cite to Williams v. City of Gibson (1970), 129 Ill. App. 2d 431, 263 N.E.2d 138 (notice defective because of one-day error in date of injury given in notice), Riddle v. City of Marion (1963), 44 Ill. App. 2d 11, 193 N.E.2d 877 (one-month error in date of injury), and Frowner v. Chicago Transit Authority (1960), 25 Ill. App. 2d 312, 167 N.E.2d 26 (three-day error in date of injury). Each of these decisions was handed down before the 1973 amendment to section 8 — 102, which changed the provision to require that the notice “give in substance” certain information, in order to “ameliorate the harshness caused by the rigid application of the prior section. [Citation.]” (Rio, 104 Ill. 2d at 366.) Under the present statutory enactment, to satisfy section 8 — 102 of the Tort Immunity Act, a plaintiff’s notice to the local public entity must contain “each element of information required by the Act *** [and] each element must be set forth with sufficient clarity and accuracy so as not to mislead or prejudice the public entity.” Lando v. City of Chicago (1984), 128 Ill. App. 3d 597, 600, 470 N.E.2d 1172; see also Carroll v. Chicago Housing Authority (1987), 155 Ill. App. 3d 710, 508 N.E.2d 285.

As a result, an inaccuracy with respect to a certain element required under section 8 — 102 renders the notice invalid when the public entity is misled or prejudiced by the misstatement. (See, e.g., Brooks v. City of Chicago (1982), 106 Ill. App. 3d 459, 435 N.E.2d 1182 (misstatement in location of injury as occurring on public sidewalk rather than on public street did not invalidate notice); Smith v. City of Chicago (1980), 92 Ill. App. 3d 247, 416 N.E.2d 20 (one-year misstatement in date of injury rendered notice invalid).) We find nothing in this record to indicate that the defendants were prejudiced or misled by plaintiffs’ misstatement of the date of Stewart’s surgery by six days, and defendants do not argue that they were prejudiced or misled by this inaccuracy. Consequently, we conclude that plaintiffs’ March 1985 notice to defendants substantially complied with the requirements of section 8 — 102 of the Tort Immunity Act.

The defendants also maintain that the plaintiffs’ complaint was properly dismissed because the plaintiffs’ exclusive remedy was under the Workers’ Compensation Act, which provides in pertinent part:

“No common law or statutory right to recover damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.” Ill. Rev. Stat. 1979, ch. 48, par. 138.5(a).

In order to determine whether plaintiffs’ exclusive remedy was through the workers’ compensation system, we must consider whether the injuries plaintiffs allegedly sustained are compensable under the Act. The Illinois Supreme Court has set forth the following guidelines with respect to this question:

“An injury will be found to be compensable if it ‘aris[es] out of and in the course of the employment.’ [Citation.] ‘Arising out of’ refers to the causal connection between the employment and the accidental injury, which exists when the injury’s origin is in some risk related to the employment. [Citations.] The requirement that the injury occur ‘in the course of’ employment is concerned with the ‘time, place, and circumstances of the injury.’ [Citation.] An injury will generally be found to arise ‘in the course of the employment when it occurs within the period of employment at a place where the employee may reasonably be in the performance of his duties, and while he is fulfilling those duties or engaged in something incidental thereto.’ [Citation.]” Unger v. Continental Assurance Co. (1985), 107 Ill. 2d 79, 85-86, 481 N.E.2d 684.

See also Caterpillar Tractor Co. v. Industrial Comm’n (1989), 129 Ill. 2d 52, 541 N.E.2d 665.

The record in the case at bar demonstrates that Stewart’s injuries arose “in the course of” her employment at the Hospital, since she alleged in her complaint that she was performing her duties as a nurse at the Hospital when she experienced blurred vision in her right eye. The more difficult question is whether her injuries “arose out of” her employment, i.e., whether there is a causal connection between her alleged injury and her employment.

In Unger v. Continental Assurance Co. (1985), 107 Ill. 2d 79, 481 N.E.2d 684, the plaintiff alleged that he was injured by the failure of his employer’s company physician to properly diagnose plaintiff’s lung cancer during an examination at the company clinic. The record indicated that it was the employer’s company policy to require that all employees submit to such annual physical examinations, and that plaintiff had been told his employment would be terminated if he did not undergo the examination. The Illinois Supreme Court determined that plaintiff’s alleged injury “arose out of” his employment relationship because the physical examination was mandatory and was therefore “ ‘determined by the demands of his employment rather than personal factors’ ” (Unger, 107 Ill. 2d at 88, quoting Sjostrom v. Sproule (1965), 33 Ill. 2d 40, 43-44, 210 N.E.2d 209) and constituted a “condition of employment [that] aggravated the disease” (Unger, 107 Ill. 2d at 89, discussing Field Enterprises v. Industrial Comm’n (1967), 37 Ill. 2d 335, 226 N.E.2d 867). Although the issue of whether an alleged injury is compensable under the Act is usually a question of fact, the court determined that summary judgment was" properly entered in Unger because the facts were undisputed and established as a matter of law that the alleged injuries were governed by the Act. We note that the court in Unger specifically referred to McNeil v. Diffenbaugh (1982), 105 Ill. App. 3d 350, 434 N.E.2d 377, upon which defendants rely in the case at bar, and stated, “[W]e find that the ‘status’ approach utilized in McNeil oversimplifies a compensability analysis — status being just one of the factors to consider ***.” (Unger, 107 Ill. 2d at 87.) Accordingly we cannot conclude that the court’s reasoning in McNeil is dispositive on this issue in the instant cause.

Applying the reasoning of Unger to the case at bar, we conclude that the record does not establish as a matter of law that plaintiffs’ injuries are governed by the Workers’ Compensation Act. Stewart’s deposition testimony indicates that Stewart went to the Hospital’s emergency room because Stewart’s supervisor “told” Stewart to do so. This deposition testimony does not prove that Stewart went to the Hospital’s emergency room because she was ordered to do so by her supervisor. Thus the record in the instant cause does not establish that Stewart went to the emergency room of Cook County Hospital because of “the demand of [her] employment rather than personal factors.” (Unger, 107 Ill. 2d at 88.) Nor does the record establish that it was a “condition of employment” (Unger, 107 Ill. 2d at 89) that Stewart present herself to the Hospital’s emergency room rather than seek consultation with her personal physician. In addition, the record indicates that the costs of Stewart’s medical treatment were paid by her private insurance carrier, not by the Hospital’s workers’ compensation insurance carrier. It is also noteworthy that Stewart had been previously treated for similar symptoms by her private physician and hospitalized at a facility other than her employer’s for these symptoms. In light of all these circumstances, we cannot say on this record that, as a matter of law, Stewart’s exclusive recourse was a claim for worker’s compensation. Consequently, the exclusive remedy provision of the Workers’ Compensation Act is insufficient ground to dismiss plaintiffs’ complaint.

The defendants argue that plaintiffs’ claim must be analyzed in the context of the dual persona doctrine. This doctrine provides an exception to the general rule of employer immunity embodied in section 5(a) of the Illinois Workers’ Compensation Act. Under the dual persona doctrine, an employee who sustained injuries that arose out of and in the course of his employment “may nevertheless recover from his employer where it is shown that the tortious conduct [of the employer] occurred while the ‘employer *** was *** acting as a separate legal entity.’ ” Robinson v. KFC National Management Co. (1988), 171 Ill. App. 3d 867, 870, 525 N.E.2d 1028, quoting Sharp v. Gallagher (1983), 95 Ill. 2d 322, 328, 447 N.E.2d 786.

In each of the cases upon which the defendants rely to support their argument that plaintiffs’ claim must be analyzed according to the dual persona doctrine, the employee’s injuries had arisen out of and in the course of the employee’s employment. (Sharp v. Gallagher, 95 Ill. 2d 322, 447 N.E.2d 786 (employer’s medical staff allegedly failed to diagnose non-work-related disease during medical staff’s examination and treatment of plaintiff for injuries arising out of and in course of employment); McCormick v. Caterpillar Tractor Co. (1981), 85 Ill. 2d 352, 423 N.E.2d 876 (foot injury arising out of and in course of employment aggravated by alleged medical malpractice of employer’s medical staff); Mufich v. Heisler Green Chemical Co. (1984), 121 Ill. App. 3d 958, 460 N.E.2d 582 (foot injury arising out of and in course of employment aggravated by alleged medical malpractice of employer’s medical staff); McNeil v. Diffenbaugh (1982), 105 Ill. App. 3d 350, 434 N.E.2d 377 (employer’s medical staff allegedly failed to diagnose non-work-related disease during medical staff’s examination and treatment of plaintiff for injuries arising out of and in course of employment).) In the case at bar, Stewart’s original symptoms of dizziness were non-work related. She was treated for these symptoms by her private physician and hospitalized at a facility other than her employer’s. There is nothing in the record to suggest that the occurrence of Stewart’s blurred vision while on the job at the Hospital was related to her employment at the Hospital and, as stated more fully above, the record does not establish that Stewart’s injuries arose out of her employment at the Hospital. As a result, the record does not demonstrate that Stewart’s injuries were compensable under workers’ compensation. Because it does not appear that Stewart’s injuries were governed by the Workers’ Compensation Act, the dual persona doctrine, which stands as an exception to the general rule of employer immunity embodied in section 5(a) of the Act, is inapplicable to the case at bar.

We note in closing Stewart’s argument that, once defendants filed an answer that denied the allegations of her complaint, defendants could not thereafter properly file a section 2 — 619 motion to dismiss that admitted all well-pleaded facts in her complaint. It has been held that “[fjiling a motion to dismiss [under section 2 — 619] does not preclude later filing an answer, and filing an answer does not preclude later filing a section 2 — 619 motion to dismiss. [Citations.]” (Outlaw v. O’Leary (1987), 161 Ill. App. 3d 218, 220, 514 N.E.2d 208; see also Bailey v. Petroff (1988), 170 Ill. App. 3d 791, 799, 525 N.E.2d 278.) Even assuming arguendo the procedural deficiency which Stewart claims, we cannot say on this record that she was prejudiced thereby. See, e.g., Downers Grove Associates v. Red Robin International, Inc. (1986), 151 Ill. App. 3d 310, 502 N.E.2d 1053.

For the reasons stated, the order of the circuit court is reversed, and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

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


text:
    JOSEPH J. KOSTUR et al., Plaintiffs-Appellants, v. INDIANA INSURANCE COMPANY et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—88—2199
    Opinion filed December 22, 1989.

      Robert A. Clifford & Associates, of Chicago (Robert A. Clifford, Keith A. Hebeisen, and Robert P. Sheridan, of counsel), for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, David H. Levitt, and Bruce L. Carmen, of counsel), for appellees.
   JUSTICE COCCIA

delivered the opinion of the court:

Plaintiffs Joseph and Catherine Kostur appeal from an order entered by the circuit court, dismissing counts I and II of their amended class action complaint. In count I, plaintiffs alleged that defendants Indiana Insurance Company and Consolidated Insurance Company violated provisions of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 613 et seq.), which required them to offer underinsured motor-1st coverage to their insureds. Plaintiffs alleged in count II that the same conduct on defendants’ part constituted a violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1985, ch. 1211/2, par. 261 et seq.). We affirm for the reasons set forth below.

Plaintiffs’ original class action complaint was filed on September 9, 1985. Defendants moved to dismiss on the grounds that, among other things, copies of the insurance policies upon which plaintiffs’ claim was founded were not attached to their pleading, contrary to section 2 — 606 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2—606.) An agreed order was entered on February 18, 1986, giving plaintiffs leave to file an amended complaint.

Plaintiffs’ amended class action complaint, to which they appended the insurance policies in question, was filed on March 27, 1986. Plaintiffs sought declaratory, injunctive, and compensatory relief from defendants. In count I, plaintiffs alleged that Joseph was a policyholder of defendants. Catherine was injured in an automobile accident on September 14, 1984, when the car she was driving was struck by another vehicle. The driver of the other automobile carried liability insurance with limits of $100,000/$300,000, but Catherine’s damages were in excess of that sum. Had Joseph’s policy included underinsured motorist coverage as required by the Insurance Code, plaintiffs averred, a greater portion of Catherine’s damages would have been recoverable.

Plaintiffs brought the action on their own behalf and on behalf of all persons insured under policies issued or renewed by defendants whose policies did not provide the amount of underinsured motorist coverage required by law. Plaintiffs alleged that this class was too numerous to practically join all members, that questions of law and fact predominated over questions affecting only individual members of the class, that they would fairly and adequately protect class interests, and that a class action was the most appropriate method for adjudicating the controversy.

In addition, plaintiffs asserted that the policies issued by defendants did not automatically include underinsured motorist coverage. Defendants did not require their insureds to elect or reject such coverage, they did not offer it each time the policies were renewed, and they failed to advise their insureds of the coverage’s cost. This conduct by defendants, plaintiffs concluded, violated the Insurance Code and injured plaintiffs and the plaintiff class.

In count II, as noted above, plaintiffs claimed that defendants’ conduct also violated the Consumer Fraud Act. In count III, plaintiffs charged defendants with breaching their fiduciary obligations.

On February 26, 1988, defendants moved to dismiss plaintiffs’ amended class action complaint, pursuant to section 2 — 615 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2—615.) Defendants argued that plaintiffs had no standing to sue, much less to be proper class representatives. According to defendants, Joseph had no standing because he had not been injured in the accident; Catherine had no standing because she was not insured under the insurance policies. Regarding count II, defendants contended that it failed to state a cause of action under the Consumer Fraud Act, since there were no allegations of deception or misrepresentation, no allegations that a false statement was made with intent that others rely on the misrepresentation, and no allegations that plaintiffs so relied. Concerning count III, defendants urged that there was no fiduciary relationship between an insurer and its insureds. See Robacki v. Allstate Insurance Co. (1984), 127 Ill. App. 3d 294, 468 N.E.2d 1251.

In any event, defendants concluded that they were entitled to judgment as a matter of law because they complied with the Insurance Code’s provisions regarding the offering of underinsured motorist coverage. They asserted that Joseph had actual knowledge of the availability and cost of such coverage. His insurance policy, in effect at the time of Catherine’s accident, included underinsured motorist coverage in the amount of $100,000/$300,000. As Joseph actually purchased such coverage, he had sufficient information to permit him to make an intelligent decision about it. Exhibits to plaintiffs’ amended complaint contained a “stuffer” that defendants had sent to Joseph, informing him about the coverage at issue. In fact, defendants contended, before the accident Joseph had increased his underinsured coverage from $15,000/$30,000 to $100,000/$300,000, as shown by the declarations page of his policy.

Plaintiffs’ response to defendants’ motion to dismiss was filed on June 17, 1988. Plaintiffs stated that the majority of defendants’ objections were curable by amendment, and they offered to make such amendments as the circuit court would require. Thus, plaintiffs replied, defendants were not entitled to dismissal with prejudice. Alternatively, plaintiffs maintained that both Joseph and Catherine had standing, that defendants’ offer of underinsured motorist coverage was inadequate as a matter of law, and that counts II and III stated causes of action.

At a hearing held on June 21, 1988, the circuit court dismissed plaintiffs’ amended class action complaint, with prejudice. Plaintiffs have taken an appeal from the dismissal order. They concede that count III was properly dismissed, so it is not before us.

I

At the outset, we observe that the order entered by the circuit court, dismissing plaintiffs’ amended class action complaint with prejudice, did not state the reasons for dismissal. Regardless of those reasons, however, we may sustain the order upon any basis found in the record. See Goldberg v. Goldberg (1982), 103 Ill. App. 3d 584, 587, 431 N.E.2d 1060, 1062.

In Downen v. Country Mutual Insurance Co. (1989), 181 Ill. App. 3d 716, 537 N.E.2d 445, plaintiffs were the mother and stepfather of a passenger injured in an automobile wreck, whose injuries were alleged to be more than the driver’s insurance would cover. They brought suit against their insurer, asking the circuit court to declare $250,000 as the amount of coverage available under their policy of insurance. Like plaintiffs in our case, plaintiffs in Downen alleged that the insurer violated the underinsured motorist provisions of the Insurance Code. The circuit court granted the defendant insurer’s motion to dismiss, ruling that plaintiffs as individuals lacked standing to sue. On appeal, plaintiffs argued that the circuit court erred in ruling that they lacked standing. According to plaintiffs, standing was conferred by the fact that they purchased the insurance which covered their son. But the appellate court affirmed. The court noted that plaintiffs’ complaint included no allegations that they were injured in any way by, or in consequence of, the wreck. The court quoted Weihl v. Dixon (1977), 56 Ill. App. 3d 251, 253-54, 371 N.E.2d 881, 883:

“ ‘Standing is an aspect of justiciability in which the primary focus is upon the personal stake in the outcome of the controversy of the person seeking the adjudication of a particular issue. [Citation.] The person seeking to invoke the jurisdiction of the court must have some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. [Citation.] A sufficient interest in the actual controversy is equally a prerequisite for a person to maintain an action for a declaratory judgment [citation], and where such an interest is lacking, the plaintiff does not have standing to bring the action [citation].’ ” (Downen, 181 Ill. App. 3d at 718, 537 N.E.2d at 446.)

The Downen court reasoned that plaintiffs failed to allege either personal injury to themselves, or injury to any substantive or legally protected interest of their own. They did not allege facts that would give them standing, the court concluded. Downen, 181 Ill. App. 3d at 718, 537 N.E.2d at 446; see also Kittay v. Allstate Insurance Co. (1979), 78 Ill. App. 3d 335, 397 N.E.2d 200 (for plaintiffs to have standing, the cause of action must consist of their primary right, the defendants’ duty, and a wrong by the defendants which invades the right and breaches the duty).

In count I of their amended class action complaint, plaintiffs allege in conclusory fashion that they “have been and continue to be injured.” It is settled, however, that a motion to dismiss does not admit conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest. (See Goldberg, 103 Ill. App. 3d at 587, 431 N.E.2d at 1063.) An actionable wrong cannot be made out in a complaint through the mere characterization of acts as having been wrongfully done. (Adkins v. Sarah Bush Lincoln Health Center (1989), 129 Ill. 2d 497, 520, 544 N.E.2d 733, 744.) Plaintiffs in this case have not alleged specific facts detailing how Joseph was injured or wronged by defendants’ conduct; They merely allege that he was a policyholder of defendants, but that fact is not enough to confer standing upon him, in and of itself. Plaintiffs allege that Catherine was injured in an accident with an underinsured driver. We learned at oral argument that she is Joseph’s daughter, although that fact was not pleaded by plaintiffs and does not appear in the record. Yet it is unclear how, without more specific allegations, an injury to Catherine can be considered as an invasion of Joseph’s rights, under his policy, by defendants. In short, nothing in plaintiffs’ amended complaint suggests that defendants wronged Joseph by invading one of his rights. Therefore, on the facts alleged, Joseph has no standing.

The same reasoning applies to Catherine with equal force. Plaintiffs allege in count I that she “was seriously injured on September 14, 1984, when she was driven into by an automobile while lawfully operating her vehicle on Illinois highways.” In their brief, plaintiffs contend that according to the declarations page of an insurance policy attached to the amended complaint, Catherine was identified as an insured driver, albeit by birthdate rather than by name. Like the fact that Catherine is Joseph’s daughter, the date of her birth is dehors the record. In any event, defendants respond, Catherine was not covered by Joseph’s insurance. Elsewhere in the insurance policy, a covered person is defined to be a family member residing in the insured’s household, or someone driving the covered automobile. But plaintiffs do not allege in their amended complaint — even in conclusory fashion — that Catherine was covered under Joseph’s insurance, where she resided at the time of the accident, or who owned the vehicle she was driving at that time. Her birthdate reveals only that she was 20 years old and single at the time of the wreck. Catherine could only have been wronged by defendants, under the few facts plaintiffs did allege, if she was covered under Joseph’s policy. Since plaintiffs neglected to allege sufficient facts showing that she was covered, it cannot be said that defendants wronged her by invading any of her rights. Thus, under the facts pleaded by plaintiffs, Catherine also lacks standing to sue defendants.

Plaintiffs do not have a cause of action against defendants, for want of standing; consequently, their class action fails. (See Kittay, 78 Ill. App. 3d at 339, 397 N.E.2d at 203.) Were we to assume for argument’s sake that plaintiffs had standing, however, it is clear that they could not maintain a class action. In Blake v. State Farm Mutual Automobile Insurance Co. (1988), 168 Ill. App. 3d 918, 523 N.E.2d 85, plaintiff was involved in a collision with an underinsured motorist. Plaintiff brought suit against his insurer, individually and on behalf of all new policyholders, alleging violations of the underinsured motorist provisions of the Insurance Code. Plaintiff claimed that he had no underinsured motorist coverage because defendant failed to adequately offer such coverage, contrary to section 143a — 2 of the Insurance Code. (Ill. Rev. Stat. 1985, ch. 73, par. 755a—2.) Upon defendant’s motion, the circuit court dismissed plaintiff’s class action claim. On his appeal, the appellate court held that the circuit court correctly dismissed plaintiff’s class action allegations. To establish a plaintiff class, the court stated, the defendant’s action must cause some injury to all class members, absent some intervening factor. (Blake, 168 Ill. App. 3d at 921, 523 N.E.2d at 87.) The court observed that the case before it arose from an auto accident between plaintiff and an unnamed third party. Regardless of common issues that arose from defendant’s conduct concerning the offering of underinsured motorist coverage, the court reasoned, plaintiff’s accident was such an intervening factor. The accident caused only plaintiff’s injury and rendered possible harm to other class members speculative, since his accident caused them no harm. The commonality necessary for the maintenance of a class action was therefore destroyed. The court decided, accordingly, that plaintiff could not maintain a class action. See Blake, 168 Ill. App. 3d at 921-22, 523 N.E.2d at 87-88.

Like the claim of plaintiff in Blake, the claim of plaintiffs in our case arises from an accident with an unnamed, underinsured third party. That accident, in the language of Blake, is an intervening factor because only plaintiffs, and not the other potential class members, were injured by it. As in Blake, the commonality required for a class action claim has been destroyed by an intervening factor: here, Catherine’s accident. Thus, since possible harm to other class members is speculative, plaintiffs in this case could not maintain a class action, even if they had standing to sue defendants.

Plaintiffs argue that dismissal with prejudice was inappropriate, since any defects in their amended class action complaint were curable by further amendment. They advanced the same argument in their response to defendants’ motion to dismiss in the circuit court, as noted above. Plaintiffs never moved to amend their amended complaint, however, and the record before us does not include a proposed amendment. This court has previously stated that a party desiring to file an amended pleading should include it in the record. If this is not done, the reviewing court is not in a position to say that justice would be served by giving leave to amend. In such circumstances, the court presumes that another attempt at pleading would be fruitless. (See Hassiepen v. Marcin (1974), 22 Ill. App. 3d 433, 436, 318 N.E.2d 162, 164.) We conclude then, that no purpose would be served by giving plaintiffs another opportunity to replead.

Moreover, plaintiffs contend that the hearing below was based only upon the adequacy of defendants’ offer of underinsured motorist coverage in light of the Insurance Code’s requirements, and that defendants conceded before the circuit court that the amended complaint was curable by further amendment. (Defendants reply that they merely conceded that the amended complaint might be curable.) But we may affirm upon any basis present in the record, as stated above. Additionally, plaintiffs have not provided a transcript of the hearing at which their amended complaint was dismissed. We recently stated that the burden is on appellants to submit records fully and fairly presenting all matters necessary and material for decisions on the questions raised. This court will not reverse on the basis of speculation and conjecture, and any doubt arising from incomplete records shall be resolved against appellants. In other words, when parties seek to have judgments reviewed, it is incumbent on them to present records of proceedings sufficient to show the errors of which they complain. (See In re Estate of Jacobs (1989), 189 Ill. App. 3d 625, 629.) As plaintiffs have not favored us with a transcript, we shall not entertain argument by them on points which that transcript might have illuminated.

II

Count II of plaintiffs’ amended class action complaint was brought under section 2 of the Consumer Fraud Act, which provides:

“Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the ‘Uniform Deceptive Trade Practices Act’, approved August 5, 1965, in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.” (Ill. Rev. Stat. 1985, ch. 1211/2, par. 262.)

This court has held that in order to establish a violation of the Consumer Fraud Act, a plaintiff must show a misrepresentation, concealment, or omission of a material fact by defendant, with intent that others rely on such conduct. (See Kleidon v. Rizza Chevrolet, Inc. (1988), 173 Ill. App. 3d 116, 120, 527 N.E.2d 374, 376.) It has also been held that violations of the Consumer Fraud Act must be pleaded with the same specificity that has always been required of common law fraud actions. Spengler v. V&R Marathon, Inc. (1987), 162 Ill. App. 3d 715, 717-18, 516 N.E.2d 787, 789.

In count II, plaintiffs do not allege that defendants misrepresented, concealed, or omitted material facts with intent that they rely on such conduct. Plaintiffs reincorporate the allegations of count I, but those allegations only charge defendants with not offering under-insured motorist coverage as contemplated by the Insurance Code. Plaintiffs also quote the language of section 2 in count II of their amended complaint, yet such pleading cannot satisfy the specificity requirements. In sum, plaintiffs have failed to plead, even in conclusory fashion, the elements of a Consumer Fraud Act violation, notwithstanding the fact that defendants, as early as their motion to dismiss plaintiffs’ original complaint, pointed out that they did not plead the elements of a consumer fraud claim. Consequently, count II of plaintiffs’ amended complaint fails to state a cause of action. And, the fact that plaintiffs neglected to include a proposed amended count II leads us to conclude, as we did in section I of this opinion, that another attempt at repleading by them would be fruitless.

Plaintiffs have invoked Petersen v. Allstate Insurance Co. (1988), 171 Ill. App. 3d 909, 525 N.E.2d 1094, to buttress their argument that count II states a cause of action. However, the circuit court in Petersen dismissed plaintiffs’ consumer fraud claim on the grounds that the Consumer Fraud Act did not apply to the sale of insurance. The appellate court, which reserved the circuit court, was therefore faced with the question of whether the Consumer Fraud Act applied to the sale of insurance; in contrast, we are faced with the question of whether plaintiffs’ complaint states a cause of action under the Act. While Petersen may stand for the proposition that the Consumer Fraud Act applies to the sale of insurance, it has no application in a case such as ours, where the question presented is whether a consumer fraud claim has been pleaded with the requisite specificity.

For the reasons stated, the circuit court’s order dismissing plaintiffs’ amended class action complaint with prejudice is affirmed.

Affirmed.

MURRAY, P.J., and PINCHAM, J., concur.

       Justice Pincham participated in the decision prior to his resignation.


author: PRESIDING JUSTICE MURRAY

text:
    BERNARD A. HEEREY, Plaintiff-Appellant, v. SAM MANIATIS et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—88—2324
    Opinion filed December 22, 1989.

      Kimberly Anderson Fortcamp, of Nathaniel I. Grey, P.C., of Chicago, for appellant.
    Beerman, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Alvin R. Becker and Timothy M. Kelly, of counsel), for appellee Sam Maniatis.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff Bernard A. Heerey appeals from an order of the trial court granting summary judgment to defendants in a dispute over the ownership and obstruction of an alley on Chicago’s near north side. The defendants are Sam Maniatis (Maniatis), the beneficial owner of property abutting the disputed alley, and the City of Chicago (City); Western National Bank of Cicero (Bank), the title owner of Maniatis’ property, is not involved in this appeal.

The pertinent facts are as follows. On February 6, 1985, Heerey filed a three-count complaint against Maniatis, the Bank and the City. In count I of his complaint, Heerey sought a declaratory judgment against the City, asserting that a certain alley lying adjacent to and contiguous to the east line of Maniatis’ property and the west line of lot 4 of Heerey’s property is a private alley. Count II of the complaint sought an injunction against Maniatis, barring his future interference with the alleged private alley. Count III of the complaint sought compensatory and punitive damages for Maniatis’ past interference with the alleged private alley. After defendants filed answers to the complaint, Heerey filed a motion for summary judgment, and Maniatis and the City filed cross-motions for summary judgment, both asserting that the alley was a public one.

On March 29, 1988, the trial court granted summary judgment in favor of defendant Maniatis and against Heerey on the cross-motions for summary judgment, and dismissed Heerey’s entire complaint. In doing so, the court, in a written decision, stated: “The issues presented to the Court by the motions are: (1) whether Heerey is prohibited from litigating to have the alley declared private by a restrictive covenant contained in a prior 1899 deed in Heerey’s line of title; and (2) whether the subject alley is private as Heerey argues, or public as Maniatis argues. The Court having considered the briefs and affidavits finds that Heerey is prohibited from suing to have the alley declared private. The Court does not reach the issue of the public or private status of the alley.” The restrictive covenant contained in the 1899 deed referred to by the court, which preceded Heerey’s purchase of the property abutting the alley (lot 4), states as follows:

“A part of the consideration herein is that the grantee herein and all persons holding under and through him [of lot 4] shall never join in any petition to vacate the public alley next west of those premises, but such alley shall forever remain a public alley situated in the City of Chicago.” (Emphasis added.)

On July 13, 1988, Heerey filed a motion for reconsideration. The trial court subsequently denied the motion, and this appeal followed.

On appeal, Heerey seeks either a reversal of the trial court’s dismissal of his cause with a declaration that the alley is a private one and a remandment for a determination of his injunction count (count II) and damages count (count III) of his complaint or a remandment with instructions to the trial court to enter a declaratory judgment on the ownership status of the alley after an evidentiary hearing and a hearing thereafter on counts II and III of his complaint.

Heerey makes his prayer for relief based on arguments, among others, that the trial court erred in leaving the ownership of the disputed alley unresolved, that it erred in dismissing the entire complaint where there were three counts in the complaint and only one was addressed by the court’s order, that it was error for the trial court to hold that the restrictive covenant contained in the 1899 deed barred his action, that the alley could not be public as a matter of law, and that the trial court misinterpreted the restrictive covenant which it relied on.

Maniatis argues that the trial court properly concluded that the restrictive covenant barred the action and, accordingly, the court properly entered summary judgment in his favor. In addition, both Maniatis and the City argue that the alley is a public one.

Summary judgment should be granted where “the pleadings, depositions and admissions on file, together with the supporting affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Wright v. Adonis Compania Naviera, S.A. (1978), 59 Ill. App. 3d 108, 110; Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) Evidence is to be construed strictly against the moving party and liberally in favor of the opponent. (Clausen v. Ed Fanning Chevrolet, Inc. (1972), 8 Ill. App. 3d 1053.) The right to summary judgment must be clear beyond question, and an order granting summary judgment must be reversed if a reviewing court determines that a material question of fact does exist. Wright v. Adonis Compania Naviera, S.A. (1978), 59 Ill. App. 3d 108.

In the instant case, we find that not only did the trial court misapply the effect of the restrictive covenant in holding that it barred Heerey from seeking his declaratory action, but also that a genuine issue of material fact existed, and therefore, the court erred in granting summary judgment to Maniatis. We first observe that Heerey’s declaratory action did not seek to vacate a public alley. Heerey requested that the court determine, based on his position that the alley was a private one, that he and Maniatis each owned 50% of the alley (12 feet x 49.36 feet) and that the City had no rights of any kind in the alleged private alley. In other words, Heerey was requesting the court to determine his and Maniatis’ ownership rights in the alley and the City’s nonownership; he was not requesting the court to vacate a public alley.

Moreover, Heerey’s complaint simply cannot be construed as an action to vacate an alleged public alley. The procedure for vacating a public alley is governed by sections 6 through 8 of the plats act (Ill. Rev. Stat. 1987, ch. 109, pars. 6 through 8). Under the act, the granting or denial of a vacation of public property may only be accomplished legislatively through the appropriate governmental unit; it cannot be accomplished judicially. Accordingly, the restrictive covenant, which the trial court relied on in barring Heerey’s declaratory action, would bar Heerey from bringing a vacation action before Chicago’s city council, the proper authority empowered to grant or deny a vacation of the alleged public alley, if in fact the alley is a public one and if the deed containing the restrictive covenant is legally binding upon Heerey. With respect to the instant appeal, therefore, we find that the trial court erroneously interpreted the language of the restrictive covenant as barring Heerey’s declaratory judgment action.

We further find that “if” the alley is public and “if” the restrictive covenant is binding on Heerey are both material questions of fact, which precluded entry of summary judgment. The only undisputed facts concerning the ownership history of the alley are that on July 28, 1880, George Healy filed a plat of subdivision which showed an unmarked strip of land 12 feet wide by 75 feet long. (The northernmost part of this strip (12 feet x 49.36 feet) is the “alley” at issue here.) In 1891, Healy conveyed lot 4 of the subdivision to William and Catherine Seymour; the conveyance from Healy to the Seymours made no mention of the alley. On April 13, 1899, the Seymours conveyed lot 4 to Suel and Florence Joss. This deed contained the restrictive covenant discussed above. On September 5, 1899, the Josses conveyed lot 4 to Thomas Skinner; the deed did not mention the restrictive covenant but refers to the alley west of lot 4 as being “public.” Ultimately 17 deeds issued for lot 4 thereafter, and none of them mentioned the restrictive covenant or the alley. In 1901, Healy’s widow sued Seymour, Joss and Skinner et al., and reacquired lot 4 through a judicial sale. In 1928, another plat was filed by a successor owner of lot 4, which described the alley as a private alley. Subsequently, in 1985, when Heerey's attorney went to the department of maps to find out who was the private owner of the alley, the superintendent of maps took a pen and crossed out the word “private” and ■wrote in the word “public” on the 1928 plat. Clearly, the foregoing facts do not support a finding beyond question that the alley is public, apparently the conclusion the trial court indirectly reached in its interpretation of the restrictive covenant as a bar to Heerey’s action.

We further observe that even assuming arguendo that the language of the restrictive covenant “intended” that the alley be public rather than private, it is unclear whether defendants’ position can be supported upon a common law or statutory dedication of the alley, especially since the trial court did not reach this issue. “A statutory dedication occurs when the owner of property files or records a plat which marks or notes on the plat portions of the premises as donated or granted to the public; it results in the conveyance of the dedicated portions in fee simple to the public.” (Reiman v. Kale (1980), 83 Ill. App. 3d 773, 776.) When a plat does not meet the technical requirements, the facts may disclose a common law dedication. If a common law dedication has occurred, the fee remains in the dedicator subject to an easement for the public. There are three requirements for a common law dedication: (1) a donative intent; (2) acceptance by the public; and (3) clear and unequivocal evidence of the first two elements. (Department of Transportation v. Thomas (1978), 59 Ill. App. 3d 684.) Even if the facts of a case do not support a statutory or common law dedication, the facts may indicate an easement in favor of the owners within a subdivision as designated on the plat to provide ingress and egress to and from all parts of the subdivision. (Reiman v. Kale (1980), 83 Ill. App. 3d 773.) The foregoing are all considerations which the trial court should examine in determining the key material question of fact in this matter, i.e., the ownership status of the alley; whether private or public.

In light of the above, we reverse and remand this action to the trial court with directions that it declare the ownership status of the alley, and, thereafter, conduct hearings on counts II and III of Heerey’s complaint.

Reversed and remanded with directions.

LORENZ and COCCIA, JJ., concur.

      Pursuant to the City’s appellate brief, we note that Heerey’s complaint is limited to the northernmost 49.36 feet of this alley. His complaint rests on the assumption that he has undisputed ownership of the southernmost 25 feet of the alley based on his ownership of lot 3, which borders on the alley on the east side, and lot 4, which also borders on the southern half of the alley on the west side. It is the City’s position that the entire alley, which is 75 feet in length, is a public alley. However, the City did not file a counterclaim in the trial court and the only property currently before us is the northernmost 49.36 feet.

      Subsequent to filing this appeal, Heerey filed a motion to stay the appeal pending a ruling on a section 2 — 1401 motion (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) filed with the trial court in which he asserted that, after entry of summary judgment, he discovered certain documents indicating that William Seymour, the creator of the restrictive covenant in the 1899 deed, never paid for the property (lot 4) and that his grantor’s widow recovered the property by judicial sale, thereby “extinguishing” the restrictive covenant. The third division of this court, prior to reassignment of the appeal to our division, denied the motion. During the recent oral argument of the appeal, the parties informed this panel that the trial court denied Heerey’s section 2— 1401 motion without addressing its merits.

      See footnote 2.