text:
    GLEICHER, FRIBERG AND ASSOCIATES, M.D., S.C., Plaintiff-Appellee, v. UNIVERSITY OF HEALTH SCIENCES, THE CHICAGO MEDICAL SCHOOL, Defendant-Appellant and Counterplaintiff (Herman Finch et al., Defendants; Norbert Gleicher et al., Counterdefendants).
    First District (6th Division)
    Nos. 1—91—0064, 1—91—1230 cons.
    Opinion filed December 20, 1991.

      McDermott, Will & Emery, of Chicago (Howard L. Kastel and William P. Schuman, of counsel), for appellant.
    Law Offices of Michael J. Rovell, of Chicago (Michael J. Rovell and Lisa I. Fair, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Gleicher, Confino & Associates, M.D., S.C., formerly known as Gleicher, Friberg & Associates, M.D., S.C. (GFA), brought suit against defendant University of Health Sciences/The Chicago Medical School (UHS/CMS) after defendant refused to honor its alleged contractual obligation to appoint Dr. Norbert Gleicher to its faculty. The trial court granted partial summary judgment in GFA’s favor as to count III, and awarded a mandatory, permanent injunction requiring defendant to honor Dr. Gleicher’s faculty appointment. Defendant’s cross-motion for partial summary judgment on that issue was denied.

In this appeal, defendant contends that the trial court erroneously granted plaintiff’s motion for summary judgment because numerous material issues of disputed fact existed; that the injunctive relief awarded to Dr. Gleicher was improper without an evidentiary hearing; that the court improperly imposed a personal relationship upon feuding parties; that Dr. Gleicher’s subsequent resignation from his position as chairman of the Mount Sinai Hospital (Hospital) obstetrical/ gynecology (OB/GYN) department makes the relief sought moot; that the trial court’s award of a mandatory permanent injunction without an evidentiary hearing deprived defendant of its constitutional right to due process; and that the permanent mandatory injunction prevents defendant from enforcing its bylaws which would prohibit Dr. Gleicher from using its name in the publication of his forthcoming book.

GFA is a corporation rendering medical services in the OB/GYN field. Dr. Gleicher, president of GFA, was also chairman of the Hospital OB/GYN department. The majority of GFA’s physician employees also had staff privileges at the Hospital. It is customary in the Chicago medical community for hospitals and physicians to be affiliated with only one medical school.

On July 2, 1987, defendant and the Hospital entered into a master affiliation agreement for a term of 20 years establishing the Hospital as a major teaching affiliate of UHS/CMS. The master agreement states that it is intended to serve as a general statement of the terms and conditions of the parties’ affiliation, and that separate departmental subagreements would be drawn to detail the operational terms of the relationship between reciprocal departments of the medical school and the Hospital. The subagreements would become addenda to the master agreement. The master agreement provided that members of the Hospital medical staff who meet the standards prescribed by UHS/CMS shall be given three-year appointments to the faculty in accordance with the rules and regulations of the UHS/CMS bylaws.

On December 31, 1987, a subagreement to the master agreement was entered into by defendant and the Hospital. In the subagreement, which detailed the terms and conditions of the affiliation between defendant and the Hospital, Dr. Gleicher was appointed to the UHS/ CMS faculty. The subagreement was subject to all the terms and conditions set forth in the master agreement, and in the event of any conflicting provisions between the two agreements, the terms of the subagreement were to take precedence. Although the subagreement provided signature lines for representatives of the Hospital as well as defendant, it was signed only by the respective department chairmen (Dr. Uwe Freese on behalf of defendant, and Dr. Gleicher as the chairman of the Hospital’s OB/GYN department). The subagreement did not include the salaries to be paid to the physicians by the Hospital.

During the early months of 1988, each physician employed by GFA who was identified in the subagreement, including Dr. Gleicher, submitted an application to defendant for a faculty appointment. However, during the latter part of 1987 and the first half of 1988, while Dr. Gleicher’s application for a faculty appointment was pending, disputes arose between defendant and Dr. Gleicher over several issues. Defendant objected to expenditures made by Dr. Gleicher to furnish and equip a proposed OB/GYN clinic on the campus, as well as the bidding of a contract to provide OB/GYN health care to Great Lakes Naval Hospital. In addition, one of GFA’s employees, Dr. Alan Beer, decided to leave GFA’s practice entirely and to associate himself on a full-time basis with UHS/CMS.

GFA filed a three-count complaint against defendant. Plaintiff alleged in counts I and II that Dr. Beer was unlawfully induced to breach his employment contract with GFA, and that defendant tor-tiously interfered with GFA’s employment contract with Dr. Beer. Count III, at issue in this appeal, alleged breach of an employment agreement with GFA and failure to provide faculty appointments to GFA’s employees, including Dr. Gleicher.

Defendant filed a verified counterclaim, which included a count alleging tortious interference with the educational program between defendant and Dr. Beer. In count V of the counterclaim, defendant alleged that Dr. Gleicher tortiously interfered with the master agreement and the subagreement between defendant and the Hospital. Paragraph 13 of the counterclaim states:

“On December 31, 1987, a Sub-agreement for the Department of OB/GYN was entered into between Mt. Sinai Hospital Medical Center and the University of Health Sciences/The Chicago Medical School.”

In that paragraph of the counterclaim, defendant also quotes a portion of the subagreement, which provides that the subagreement shall serve as a supplement and addendum to the master agreement of July 2, 1987, and that in the event of any conflicting provisions between the two agreements, the subagreement shall take precedence. In paragraphs 20 through 22 of count V, defendant sought damages for Dr. Gleicher’s alleged tortious interference with the “Master Affiliation Agreement and Sub-Agreement with UHS/CMS.” (Defendant, after changing counsel, later amended its counterclaim and omitted count V entirely.)

In July 1988, Dr. Marshall Falk, defendant’s dean and executive vice-president, advised Ruth Rothstein, president of the Hospital, that because “Dr. Gleicher has persisted in his litigation against defendant,” the faculty executive council, upon the recommendation of the chairman of the board of trustees, unanimously elected to withhold Dr. Gleicher’s faculty appointment.

GFA filed a motion for partial summary judgment on count III and sought a mandatory injunction requiring defendant to appoint Dr. Gleicher to the UHS/CMS faculty. On May 21, 1990, the trial judge determined that by its own terms, the master agreement provided only a general statement of the terms and conditions of the affiliation and that departmental subagreements were incorporated by reference into the master agreement. The trial court found that the subagreement contained no ambiguous language, that the faculty appointments were a material consideration of the Hospital in the making of its master agreement, and GFA or its individual physician members identified in the subagreement were intended as third-party beneficiaries. Accordingly, the trial court granted partial summary judgment in favor of plaintiff and directed the parties to prepare the order. Defendant’s cross-motion for summary judgment on the faculty appointment issue was denied.

Shortly thereafter, defendant engaged new counsel in connection with this litigation. Defendant then filed objections to the form of the proposed order submitted by plaintiff, and also a motion for reconsideration of the court’s grant of summary judgment in plaintiff’s favor. In its motions, defendant first argued that the subagreement was never fully executed by the parties because it was signed only by department heads of defendant and the Hospital, and did not include signatures of other representatives of those institutions. Defendant further claimed that the physicians’ salaries had not been included in the subagreement, and that the “agreements” included not just the partially executed subagreement, but the course of conduct of the parties.

As support for its position, defendant submitted evidence, primarily in the form of affidavits which were executed subsequent to the entry of summary judgment. Dr. Marshall Falk stated in his affidavit that individual departments of UHS/CMS are not parties to the master agreement, and that department chairpersons are not authorized to enter into any agreement with the Hospital on behalf of defendant. Dr. Mitchell Rhodes, associate dean of UHS/CMS, indicated in his deposition that the authorized officers of defendant did not sign the subagreement because certain terms contained therein were not final and did not reflect the agreements reached by defendant and the Hospital. Rothstein stated in her affidavit that all subagreements were subject to her approval as chief executive officer of the Hospital, and that it was never her intention to permit a subagreement to supersede or take precedence over the master agreement.

On September 12, 1990, the court allowed defendant to file an amended answer and affirmative defenses; however, the judge cautioned that any conflict found with the original pleadings would not be deemed a clarification; rather, it would be considered a complete reversal of position and would not be regarded. During the pendency of those post-summary judgment motions, defendant also amended the master agreement to recite that no third-party beneficiary rights were created by the master agreement or any subagreements relating thereto, and that the terms of the master agreement in all events control over the terms of any subagreement.

On December 17, 1990, the trial court denied defendant’s motion to reconsider the grant of summary judgment and awarded plaintiff a mandatory permanent injunction requiring defendant to appoint Dr. Gleicher to the University’s faculty effective nunc pro tunc to May 21, 1990. The order contained language that the court had considered the affidavits filed by defendant. The judge also ruled that the injunc-tive relief ordered on May 21, 1990, was not mooted by Dr. Gleicher’s voluntary resignation as chairman of the OB/GYN department of the Hospital on September 15, 1990. This court and our supreme court denied defendant’s motions to stay those orders of the trial court.

On February 21, 1991, defendant complied with the trial court’s order of December 17, 1990, and appointed Dr. Gleicher to its faculty. At that time, defendant advised Dr. Gleicher that article 3:3 of the bylaws prohibited him from using defendant’s name in connection with any commercial ventures without their approval, and that it would not grant approval to use the UHS/CMS name in connection with the publication of Dr. Gleicher’s forthcoming book unless he also disclosed the circumstances and disputed nature of his appointment.

On March 29, 1991, plaintiff filed an emergency motion to supplement the December 17, 1990, injunction, in which it sought to prohibit defendant from enforcing article 3:3 of its bylaws against Dr. Gleicher or otherwise interfering with the publication of his book. In April 1991, the trial court granted plaintiff’s motion for such further injunc-tive relief.

Initially, we note that the purpose of summary judgment is to determine whether there are any issues of genuine material fact. (Kelman v. University of Chicago (1988), 166 Ill. App. 3d 137, 519 N.E.2d 708.) An order granting summary judgment is appropriate where the pleadings, depositions on file, together with the affidavits, if any, demonstrate there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c).) Summary judgment is an appropriate procedure in construing the legal principles of a contract. Village of Rosemont v. Lentin Lumber Co. (1986), 144 Ill. App. 3d 651, 494 N.E.2d 592.

On appeal, defendant contends that the trial court’s award of a mandatory, permanent injunction requiring defendant to appoint Dr. Gleicher to the faculty was improper because numerous issues of material fact exist which preclude granting summary judgment. Defendant asserts that the subagreement was incomplete on its face because it was never executed by representatives of the Hospital and UHS/ CMS, and that the department chairmen who signed the subagreement, Drs. Freese and Gleicher, did not have the authority to bind their principals. Defendant states that the evidence presented to the trial court, in particular the affidavits of Rothstein and Drs. Falk and Rhodes, demonstrated its lack of intent to bestow any third-party beneficiary rights upon GFA or Dr. Gleicher. Defendant also maintains that the conduct of GFA and its employees, including Dr. Gleicher, indicates that they did not have a contractual right to an automatic appointment to the UHS/CMS faculty, and that by its conduct, GFA released defendant from any obligation to perform.

We find, however, that defendant’s recent claim that the suba-greement was never executed contradicts prior admissions made by defendant. Specifically, we believe that the statements made by defendant in its verified counterclaim of December 19, 1988, constitute judicial admissions. As such, defendant is now precluded from denying the validity of the subagreement because count V of the verified counterclaim was premised upon the existence of the subagreement.

An admission in an answer constitutes a formal judicial admission and is conclusive upon the person making it. (Board of Education of Township High School District No. 205 v. Faculty Association of District 205 (1983), 120 Ill. App. 3d 930, 458 N.E.2d 1017; Long v. Arthur Rubloff & Co. (1975), 27 Ill. App. 3d 1013, 327 N.E.2d 346; Hastings v. Abernathy Taxi Association, Inc. (1973), 16 Ill. App. 3d 671, 306 N.E.2d 498.) Once a statement of fact has been admitted in a party’s pleadings, it is binding upon the party making it; therefore, it is unnecessary for the opposing party to introduce evidence in support thereof because it has the effect of withdrawing the fact from issue. In re Estate of Muhammad (1984), 123 Ill. App. 3d 756, 463 N.E.2d 732.

In Board of Education v. Faculty Association, the plaintiff school board filed an action seeking a declaration of inarbitrability for a labor grievance filed by the faculty association on behalf of a school nurse who had been terminated by the board. The school nurse was subsequently added as a party defendant and filed a counterclaim. In its answer to the counterclaim, the school board made an admission that the school nurse was a member of the faculty association at the time of her dismissal. This court held that the school board’s specific admission could not be disclaimed because it was binding.

Section 2 — 608(b) of the Illinois Code of Civil Procedure provides that claims by a defendant against a plaintiff shall be designated as a counterclaim and included as part of the answer. It follows, therefore, that when defendant stated in paragraph 13 of the verified counterclaim that on December 31, 1987, a subagreement for the OB/ GYN department was entered into between the Hospital and UHS/ CMS, quoted a portion of that subagreement in its claim, and also sought damages for Dr. Gleicher’s tortious interference with the “Master Affiliation Agreement and Sub-Agreement with UHS/CMS,” binding judicial admissions were made which cannot now be disclaimed. It is also notable that the counterclaim asserted that in case of any conflicting provisions, the subagreement would control.

Thus, defendant’s subsequent attempts to deny the existence of the subagreement by asserting that it was never fully executed and by introducing affidavits are without merit in view of prior admissions set forth in the verified counterclaim. The trial judge properly cautioned defendant at the time it was allowed to file an amended answer and affirmative defense that any conflict with the original pleadings would not be deemed a clarification; rather, he would consider it a complete reversal of position and would disregard it. When a party makes admissions which are so “deliberate and unequivocal as to matters within its knowledge,” those admissions will conclusively bind that party who cannot later contradict those admissions. (Commonwealth Eastern Mortgage Co. v. Williams (1987), 163 Ill. App. 3d 103, 516 N.E.2d 515.) We note, too, that the information contained in the affidavits cannot be characterized as “newly discovered,” for each of these individuals was available throughout the course of this protracted litigation.

Defendant also argues that UHS/CMS, through its bylaws, was permitted discretion in administering faculty appointments. However, the master agreement clearly contemplated subsequent departmental subagreements. As we have established, the subagreement unequivocally granted Dr. Gleicher an appointment to the UHS/CMS faculty and takes precedence over any conflicting provisions found in the master agreement.

Similarly, defendant’s argument that GFA and Dr. Gleicher were not intended third-party beneficiaries of the master agreement and did not have a contractual right to an automatic appointment to the UHS/CMS faculty is simply not borne out by a plain reading of the master agreement and subagreement. Contracts must be interpreted as a whole, and it is presumed that all provisions were inserted for a purpose. (Village of Rosemont, 144 Ill. App. 3d 651, 494 N.E.2d 592, citing Bruno Benedetti & Sons, Inc. v. O'Malley (1984), 124 Ill. App. 3d 500, 464 N.E.2d 292.) A court has a duty to harmonize the provisions of a contract (In re Support of Halas (1984), 104 Ill. 2d 83, 470 N.E.2d 960) and to avoid construction which renders some provisions meaningless. (Lukasik v. Riddell, Inc. (1983), 116 Ill. App. 3d 339, 347, 452 N.E.2d 55.) Upon review of the subagreement, we find that Dr. Gleicher was clearly intended to perform an integral role on the UHS/CMS faculty, as set forth in the detailed description of his teaching and administrative responsibilities in the subagreement.

Finally, we are unpersuaded by defendant’s argument that GFA’s alleged breaches of the subagreement released defendant from any obligation to perform. As support for its contention, defendant refers to statements made in Dr. Falk’s affidavit that Dr. Gleicher interfered in the residency program, thereby breaching a covenant of fair dealing and good faith implied into every contract. Defendant also relies upon the following statement found in a letter from Dr. Gleicher to defendant dated March 8,1988:

“Should you and the school not be able to assure us of that minimum level of academic security, I would recommend that Mount Sinai look elsewhere to meet its needs and fulfill its interests.”

When viewed in the context of the letter, in which Dr. Gleicher explicitly requests that defendant process academic appointments fairly and quickly, we cannot find that this assertion rises to the level of genuine material fact sufficient to defeat a motion for partial summary judgment. Similarly, we find no merit in defendant’s argument that plaintiff breached covenants of fair dealing and good faith. Partial summary judgment may be granted whenever there is no material factual dispute as to any major issue in a case, even if substantial controversy exists with respect to other issues. Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(d); Colt Construction & Development Co. v. North (1988), 168 Ill. App. 3d 913, 523 N.E.2d 90, citing Brewer v. Daubert Chemical Co. (1979), 72 Ill. App. 3d 718, 391 N.E.2d 110.

We turn now to defendant’s contention that the injunctive relief awarded to Dr. Gleicher was improper without an evidentiary hearing. Defendant argues that GFA failed to comply with section 2 — 604 of the Illinois Code of Civil Procedure because damages only were sought in its specific prayer for relief. Defendant further maintains that GFA submitted no evidence that Dr. Gleicher would suffer irreparable harm if the faculty appointment were not made.

Upon review of plaintiff’s prayer for relief, we first note that GFA sought “such other and further relief as shall be just,” in addition to the claim for damages. According to section 2 — 604, the prayer for relief does not limit the relief obtainable, but where other relief is sought the court shall protect the adverse party against prejudice by reason of surprise. In this case, it cannot be said that defendant would have been unduly surprised or prejudiced by Dr. Gleicher’s faculty appointment.

The purpose of a permanent injunction is to extend or maintain the status quo indefinitely after a hearing on the merits where it has been shown that the plaintiff is suffering irreparable harm and there is no adequate remedy at law. (American National Bank & Trust Co. v. Carroll (1984), 122 Ill. App. 3d 868, 462 N.E.2d 586.) The exhaustive briefs filed in this case, in conjunction with the arguments already heard by the trial court, belie defendant’s assertion that further evidentiary hearings are necessary before permanent injunctive relief can be granted.

More importantly, we find that the trial court properly granted GFA a permanent injunction requiring that Dr. Gleicher be appointed for a three-year faculty term as provided in the UHS/CMS bylaws. The publication of Dr. Gleicher’s textbook would be adversely affected if he were unable to show that he was currently on staff at an academic institution, or that such appointment was the subject of controversy. Also, the potential break in Dr. Gleicher’s curriculum vitae created by defendant’s refusal to honor his faculty appointment poses a threat to his ability to procure other academic employment which cannot be rectified by the mere award of monetary damages.

Defendant next asserts that the court improperly imposed a personal relationship upon feuding parties in contravention of established authority prohibiting the imposition of personal service contracts. Defendant further argues that courts should not interfere with the self-governance powers and the hiring process of an academic institution.

Under the circumstances of this case, however, we find that the court properly ordered the appointment of Dr. Gleicher to the UHS/ CMS faculty. Defendant was not required to utilize Dr. Gleicher’s services in a teaching or administrative capacity or provide a salary to him; rather, as previously discussed, the faculty appointment was necessary to prevent a break in Dr. Gleicher’s curriculum vitae. In his affidavit dated November 29, 1990, Dr. Gleicher indicated that he anticipated receiving an appointment at another medical school within six months, at which time he would resign his position at UHS/CMS because of the custom in the Chicago medical community allowing physicians to be affiliated with only one medical school.

Defendant also argues that Dr. Gleicher’s voluntary resignation from his position on September 15, 1990, as the chairman of the Hospital’s OB/GYN department makes the relief sought by GFA moot. This court has held that a dispute is moot “where no actual rights or interests of the parties remain or where events occur which render it impossible for the reviewing court to grant effectual relief to either party.” Nameoki Township v. Cruse (1987), 155 Ill. App. 3d 889, 895-96, 508 N.E.2d 1080.

Defendant contends that Dr. Gleicher’s contractual right to a faculty appointment was in exchange for consideration in the form of his performance in his role as OB/GYN department chairman. However, we do not find that either the master agreement or the subagreement mandates that Dr. Gleicher continue as the chairman of the OB/GYN department in order to secure a faculty appointment. Review of the record also reveals that both parties stipulated that after his resignation, Dr. Gleicher retained his privileges and continued to treat some patients at the Hospital. The parties further stipulated that Dr. Glei-cher will continue to be associated with the Hospital’s teaching program to the extent that he (a) supervises residents in the course of treating his patients; or (b) communicates information to students who are present in the course of his treating his patients.

Absent an express contractual provision in either the master agreement or subagreement requiring Dr. Gleicher to maintain his position as department chairman, or in such other supervisory or administrative capacity, we conclude that Dr. Gleicher’s resignation from the Hospital on September 15, 1990, does not render the relief sought moot. Although the parties’ stipulation indicates that Dr. Gleicher is no longer department chairman, he has nevertheless retained his privileges at the Hospital and some association with the teaching program. Therefore, it remains within the court’s authority to provide Dr. Gleicher with the relief sought, namely, the faculty appointment so that Dr. Gleicher’s career is not irreparably damaged.

Defendant also argues that the trial court’s award of a mandatory permanent injunction without an evidentiary hearing to resolve numerous disputed issues of fact deprived defendant of its constitutional right to due process. As we have previously discussed, the trial judge was adequately apprised of the issues in this case after reading the extensive briefs and motions of the parties. Moreover, numerous hearings were conducted by the court over the disputed issues. Further evidentiary hearings would be a waste of the court’s resources and would serve no useful function.

Defendant’s final argument posits that the trial court’s orders of April 2, 1991, and April 12, 1991, which granted a permanent injunction allowing Dr. Gleicher to state that he is on the UHS/CMS faculty in his medical textbook, prohibited defendant from enforcing its bylaws. Specifically, article 3:3 of the UHS/CMS bylaws prohibits faculty members from using defendant’s name to promote a commercial venture without its approval.

We find that the trial court properly enjoined defendant from interfering with the publication of Dr. Gleicher’s textbook. We do not believe that Dr. Gleicher’s mere statement that he is a member of the UHS/CMS faculty can properly be construed as a promotion of a product; rather, he is simply setting forth his credentials within the limited context of the textbook. As such, no palpable, substantial harm is directed toward defendant.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County granting partial summary judgment in favor of plaintiff on count III, and denying defendant’s cross-motion.

Judgment affirmed.

RAKOWSKI, P.J., and EGAN, J., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID EARNEST, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—2332
    Opinion filed December 23, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Elizabeth Burke, Assistant Public Defender, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Gael M. O’Brien, and Susan S. Wigoda, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant David Earnest appeals from his conviction for the murder (Ill. Rev. Stat. 1985, ch. 38, par. 9—1) of Herman Walker for which he was sentenced to a prison term of 20 years.

We affirm.

The incidents giving rise to defendant’s conviction occurred on November 21, 1986, following a dance at a fieldhouse in Ogden Park in Chicago. While a group of people were walking away from the park, a fight erupted, and, at some point, Herman Walker was fatally shot in the chest.

Defendant, then 16 years old, was arrested early the following morning at his parents’ home. He was taken to a police station where he subsequently admitted shooting Walker. His written statement to that effect was admitted into evidence at trial.

On appeal, defendant first contends the trial judge improperly denied his pretrial motion to suppress the confession on grounds that the statement was not voluntarily given. The following facts were established during a hearing on defendant’s motion.

At approximately 6:20 a.m. on the morning following the shooting, Chicago police detective Thomas Brankin, accompanied by Detectives John Smith, Robert Lane, and Roy Grillos, went to defendant’s parents’ home for the purpose of locating defendant. The detectives were aware at that time that defendant was a juvenile. The detectives were admitted into the home by defendant’s father and arrested defendant in an upstairs bedroom.

Before the detectives left, Brankin testified, he advised defendant’s parents that defendant was being taken to Chicago police headquarters at 3900 California Avenue (Area 3). Smith added that he gave defendant’s parents a business card on which was written the detectives’ names and the address and phone number of Area 3.

At Area 3, Lane and Grillos placed defendant in an interview room. It was approximately 8 a.m.

Detective Smith testified that shortly thereafter, he spoke with defendant for approximately 10 minutes. Smith stated that Marie Woods, a Chicago police youth officer, was present at that time. Defendant was advised of, and indicated he understood, his constitutional rights. Both Smith and Woods also advised defendant that he could be charged as an adult.

Barry Gross, an assistant State’s Attorney, arrived at Area 3 and spoke to defendant at approximately 9 a.m. Smith and Woods were present during that conversation.

According to Smith, defendant’s parents arrived at Area 3 at 9:30 or 10 a.m. Smith informed them that defendant admitted involvement in the crime. Defendant’s parents spoke alone with defendant for over an hour. Then, with his parents present, a court reporter reduced defendant’s statement to a writing, the pages of which were initialed by defendant’s parents.

Defendant testified that, at the time of his arrest, the police did not tell either him or his parents why the police wanted to see him nor did they tell him he was under arrest. He stated the detectives told his mother that he was being taken to Area 3 and directed “her to come 2 hours later.” At Area 3, defendant was taken to an interview room where he was interrogated in three sessions. He was not advised of his constitutional rights or advised that he could be charged as an adult. No youth officer was present during his interrogations. He first met youth officer Woods when Assistant State’s Attorney Gross arrived at Area 3 a few hours after he had been questioned by detectives. It was only then, defendant stated, that he was advised of his rights. According to defendant, he was first permitted to see his parents at 11:45 a.m. although he had earlier asked to see them. Defendant stated he was only allowed to speak with them for five minutes.

John D. Earnest, defendant’s father, confirmed that, following defendant’s arrest, the detectives had told him where defendant was being taken. However, neither he nor his wife was permitted to accompany defendant although they “begged” the detectives to do so. Without offering an explanation, the detectives told them to wait “a couple of hours” and then to go to Area 3. Following those directions, he and his wife waited until 9:30 a.m. to go to Area 3.

Upon arrival at Area 3, Earnest was informed by detectives that defendant had already admitted responsibility. Earnest confirmed that both he and his wife were present when defendant’s written statement was prepared and that they initialled the statement’s pages.

Leslie Johnson, defendant’s mother, corroborated the material aspects of Earnest’s testimony.

Detectives Lane and Smith both denied telling defendant’s parents not to go to Area 3 until two hours after defendant was arrested.

Marie Woods testified that shortly after reporting for work at Area 3 at 8 a.m. on November 22, 1986, she and a detective met with defendant. Approximately 15 minutes later, Assistant State’s Attorney Gross arrived, and defendant’s interview continued with Gross present. Defendant had been informed of his rights. Woods stated defendant’s parents arrived at approximately 9 a.m. After defendant gave his oral statement to Gross, he met with his parents.

Although Illinois courts recognize that determining the voluntariness of a juvenile’s confession requires great care (People v. Knox (1989), 186 Ill. App. 3d 808, 542 N.E.2d 910, appeal denied (1989), 127 Ill. 2d 630, 545 N.E.2d 122), the issue is governed by the same totality of the circumstances test used to evaluate the voluntariness of confessions of adult defendants (People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731). In evaluating the voluntariness of a juvenile’s confession, however, one of the circumstances to be considered is the involvement of an adult interested in the juvenile’s welfare. Knox, 186 Ill. App. 3d 808, 542 N.E.2d 910, appeal denied (1989), 127 Ill. 2d 630, 545 N.E.2d 122.

Here, an individual concerned with defendant’s welfare, youth officer Woods, did confer with defendant although defendant testified to meeting Woods some time after his initial questioning. However, defendant contends that, even assuming Woods was present during defendant’s initial interview, he was deprived of an opportunity to confer with her privately. Defendant relies principally on People v. McGhee (1987), 154 Ill. App. 3d 232, 507 N.E.2d 33, appeal denied (1987), 116 Ill. 2d 570, 515 N.E.2d 120, and People v. Knox (1989), 186 Ill. App. 3d 808, 542 N.E.2d 910, appeal denied (1989), 127 Ill. 2d 630, 545 N.E.2d 122.

Although the juvenile defendants’ confessions in those cases were determined to be involuntary based, in part, on the absence of an interested adult, neither can be read to require a private conference with such an individual prior to police questioning. In People v. McGhee, no youth officer was notified for the first 11 hours of defendant’s detention by police, during which time detectives had twice interrogated the defendant and had refused to permit his mother to see him. (McGhee, 154 Ill. App. 3d at 235-36, 507 N.E.2d at 34-35.) No youth officer was involved at anytime in People v. Knox, and police had, either knowingly or innocently, precluded defendant’s mother from speaking with him at the police station where he was being held. (Knox, 186 Ill. App. 3d at 812-14, 542 N.E.2d at 913-14.) Rather than requiring an opportunity for a defendant to privately confer with an adult interested in his welfare prior to police questioning, People v. McGhee and People v. Knox illustrate that the absence of a youth officer during a juvenile defendant’s questioning is but one factor to consider under the totality of the circumstances test in the instance where defendant had no prior opportunity to confer with such an interested individual. See Knox, 186 Ill. App. 3d at 815-16, 542 N.E.2d at 915.

Thus, the importance of determining whether, in fact, Woods was present during defendant’s initial interview is directly related to whether, in fact, the police contributed to eliminating an opportunity for defendant to confer, prior to questioning, with an adult interested in his welfare by telling defendant’s parents not to go to Area 3 for a time after his arrest. Both of those determinations, however, were matters for the trier of fact to decide on the basis of credibility and are outside of our consideration upon review. After considering all of the testimony regarding the circumstances of defendant’s confession, we cannot conclude the trial judge’s denial of defendant’s motion to suppress was improper.

Defendant also argues that his pretrial motion to quash his war-rantless arrest should have been granted on the basis that probable cause to arrest was not established.

Detective Smith testified regarding the existence of probable cause. Smith stated that, shortly after the shooting, he and other detectives were informed by uniformed officers that several individuals had been located who had information relating to the incident. Arrangements were made to transport those individuals to Area 3. Smith interviewed four or five of those individuals, including Rafael Hicks and Maurice Sikes, both of whom identified defendant as the offender. Hicks specifically related that he had attended the dance on November 21, 1986, had witnessed the fight following the dance, had heard a shot, and had seen defendant fleeing the scene immediately thereafter. Hicks also related that, earlier that night, he had seen defendant in possession of a pistol. Smith also stated that one of the individuals interviewed, possibly Hicks, pointed out the location of defendant’s parents’ home, where defendant was subsequently arrested.

Whether probable cause to support a warrantless arrest exists is a commonsense, practical question to be determined by the totality of the circumstances. (Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317.) Generally, probable cause exists when the circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution to believe an offense has been committed and that the individual arrested is responsible. (Ill. Rev. Stat. 1985, ch. 38, par. 107—2(1)(c); People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147.) To that end, Illinois courts traditionally consider as inherently credible those witnesses to criminal activity who assist police with intent to aid law enforcement efforts rather than for personal gain or payment. People v. Adams (1989), 131 Ill. 2d 387, 546 N.E.2d 561.

The information supplied to police by Sikes and Hicks was sufficient to establish probable cause to arrest defendant. At the time police arrested defendant, they knew that defendant had been seen earlier on the night of the shooting with a pistol, was present at the time of the fight and the shooting and, following the shooting, immediately fled the scene. We agree with the trial judge’s determination that that information would lead a reasonable man to believe defendant committed the crime.

Last, defendant argues that the State presented insufficient evidence to sustain a murder conviction. At most, defendant contends, he should have been convicted of voluntary manslaughter based on self-defense. (Ill. Rev. Stat. 1985, ch. 38, par. 9—2(b).) Defendant cites his own testimony that he was initially provoked by Walker and that he shot Walker believing Walker had his hand on a pistol in his pocket.

However, both Reginald Jerome Hall and Brian Frazier established at trial that Walker did not have a weapon in his hand nor was he reaching into his coat at the time that defendant shot him. Both Hall and Frazier had witnessed the events leading to the shooting and recounted that, at the time he was shot, Walker had been attempting to defend himself against a crowd of youths who were hitting him. In short, the testimony of Hall and Frazier is sufficient to sustain defendant’s conviction for murder. See People v. Balfour (1986), 148 Ill. App. 3d 215, 498 N.E.2d 547, appeal denied (1987), 114 Ill. 2d 548, 508 N.E.2d 730.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PETER ASSENATO, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—2941
    Opinion filed December 23, 1991.
    Rehearing denied January 8, 1992.

      Allan A. Ackerman, P.C., of Chicago (Allan A. Ackerman and Joelle H. Hollander, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Sta-brawa, and Michael J. Monaco, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

A jury convicted defendant, Peter Assenato, of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1), and the circuit court sentenced him to a 40-year term of imprisonment. He appeals, presenting as issues whether the State proved him guilty of murder beyond a reasonable doubt and whether prejudicial statements made by the prosecutor and certain testimony elicited at trial operated to deny him a fair trial. For the following reasons, we affirm.

The evidence adduced at trial revealed that on December 3, 1987, the body of the victim, Debra Duchetta (Duchetta), was discovered in a puddle of water and blood in a vacant lot near 400 North Racine.

Robert Dieringer, a police evidence technician, investigated the crime scene. Due to the weather conditions, Dieringer was unable to lift any fingerprints from the area. However, Dieringer found a footprint in the mud near the body. The print’s total length was approximately lO1^ inches and consisted of a small heel and pointed toe.

Dr. Tae An performed the autopsy. Duchetta sustained nine stab wounds and numerous defensive wounds on her hands. Three of the stab wounds were to the neck, two of which lacerated the jugular vein. According to Dr. An, Duchetta died within minutes of receiving these wounds.

The State’s principal witness was James Losasso. He and his wife had known Duchetta for three years. On November 28, 1987, Du-chetta called Losasso and asked if she could spend a few nights at his house because she and her mother had argued. She later arrived at Losasso’s home at 2613 West Superior accompanied by defendant. Lo-sasso had known defendant for five to six weeks before this time. Du-chetta and defendant remained at the Losasso home until December 1, 1987. At 8 p.m., Duchetta asked Losasso to call a taxi for her since she had decided to return to her parents’ home. The taxi arrived between 8:30 and 8:45 p.m. at which time Duchetta left. Defendant followed her.

Shortly after midnight, defendant returned to Losasso’s home and told Losasso that he and Duchetta had argued and that he “had to kill her.” Defendant said he “poked” Duchetta, but did not think that she “[got] the message.” However, he thought Duchetta had gotten the “idea” after he “poked” her a second and a third time. Defendant pointed to the sleeve of his jacket and told Losasso that Duchetta had gotten blood on him. Defendant wore a dark-colored jacket and muddy cowboy boots at the time.

After recounting the details of the slaying, defendant asked Lo-sasso to call him a taxi. Defendant then asked to use the phone himself. According to Losasso, defendant took the phone into the washroom and made several calls. After finishing his calls, defendant repeated his story to Losasso and told him that he hoped Duchetta was dead.

During this time, the taxi company called Losasso to inform him that no taxis were available. Defendant called his mother and asked her to pick him up. Defendant also phoned his girlfriend. A car arrived for defendant between 1:30 and 1:45 a.m.

On December 2, 1987, Losasso called Albert Vena, a mutual friend of both Duchetta and Losasso, and informed him of what defendant had told him the previous night. Losasso testified that he did not contact police because he was afraid of defendant. Losasso admitted that he initially lied to police regarding defendant’s involvement in Duchet-ta’s murder by telling officers that defendant had told him that he had argued with Duchetta in a bar and bloodied her nose. Losasso swore that he told police this because he wanted “to steer police in the right direction” without actually telling them what defendant had said to him. Losasso only told police the truth after Albert Vena told him to do so.

Solían Ravanmehr, a driver for the Flash Cab Company, arrived at 2613 West Superior at 8:45 p.m. According to his dispatcher, he was to take his fare to Harlem Avenue and Higgins Road. After his arrival at the house, Duchetta and defendant entered his cab. Du-chetta appeared to be drunk. She instructed Ravanmehr to go to Harlem Avenue and Higgins Road. After driving one block, defendant told Ravanmehr to turn right. While he was driving, Ravanmehr heard defendant and Duchetta quarreling. Defendant directed Ravan-mehr to the 2600 block of Grand Avenue. When they reached the middle of the block, defendant told Ravanmehr to stop in front of a house. Ravanmehr heard Duchetta tell defendant, “okay, you go in and I stay here.” However, defendant told Duchetta, “let’s go” and pulled her out of the cab by her arm. Defendant took Duchetta into the house and returned to the cab to pay the fare.

Anthony Delulio testified that he has lived in Las Vegas since 1974. During the summer and fall of 1987, he was in Chicago seeking employment and stayed at his uncle’s home at Grand and Racine. He knew Duchetta from the neighborhood and dated her several times.

On November 28, 1987, Delulio drove Duchetta to her sister’s beauty shop on Grand Avenue. Delulio never saw Duchetta again, but did receive several telephone calls from her over the next few days. On November 29, Duchetta phoned him from Covello’s Bar and Grill at 4 p.m. and told him she was staying at Losasso’s home, but was planning to go home. The following day, Duchetta phoned him again from Covello’s. Delulio told her that if she did not return home, he no longer wanted anything to do with her. On December 1, 1987, a bartender from Covello’s called Delulio at a friend’s home and informed him that Duchetta was going to meet him at Covello’s. Delulio arrived at Covello’s around 9 p.m., but Duchetta never arrived. At 11 p.m., Delulio drove to Harlem and North to visit a friend. The friend was not home so Delulio drove back to his uncle’s home, arriving at 11:45 p.m.

Delulio returned to Las Vegas the next day. At 7 p.m., he received a phone call from Albert Vena. After his conversation with Vena, De-lulio called Duchetta’s mother and told her to call the police. On December 3, Duchetta’s sister called Delulio and told him that Duchetta had been murdered. Albert Vena also called Delulio on December 5 and informed him that Duchetta’s body had been found.

Chicago police detective Patrick Harrington investigated Duchet-ta’s murder. On December 3, 1987, he visited defendant’s home on Taylor Street, but defendant was not there. On December 5, Harrington interviewed Albert Vena. During the interview, Vena called Losasso, and Harrington later questioned him. After an arrest warrant was issued for defendant, Harrington made several attempts to apprehend defendant, but could not locate him.

On January 24, 1988, Lyons police officer Thomas Schaffer arrested defendant for driving without a license. At the station, defendant identified himself as “Michael Lyndon” and produced a motor club card bearing that name. A computer check revealed that no such name existed. When asked again for his name, defendant continued to give false names. Schaffer finally told defendant that he would be fingerprinted if he did not give his real name. Defendant eventually told Schaffer his name and informed him that he was under investigation for murder in Chicago. Schaffer put defendant’s name into the computer and learned that an outstanding warrant existed for his arrest.

Lida Molaro testified on defendant’s behalf. On December 1, 1987, at approximately 9 p.m., defendant and Duchetta arrived at her home at 2648 West Grand. Duchetta appeared to be intoxicated. She attempted to make several phone calls, but could not dial the phone correctly. Duchetta had dropped a plastic bag containing clothing on her way into the house, and Molaro’s young daughter picked it up. As a result, Duchetta cursed at the child, and Molaro subsequently told defendant that Duchetta had to leave. Defendant wanted Duchetta to stay until Molaro’s husband arrived so that he could give them a ride home. Molaro, however, insisted that Duchetta leave. Duchetta remained at Molaro’s house for approximately one hour and was attempting to contact “Red” at Covello’s because she was supposed to meet him there. Duchetta ultimately left the house alone. Molaro’s husband arrived 20 minutes later and gave defendant a ride home.

On cross-examination, Molaro stated that she did not want either Duchetta or defendant in her house because both appeared to be inebriated.

I

Defendant maintains that the State failed to prove him guilty beyond a reasonable doubt because no evidence was presented to corroborate defendant’s extrajudicial confession to Losasso and because Lo-sasso, as a former drug user, was an incredible witness.

A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267; People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.) Upon review, the appellate court’s function is not to retry the defendant, but to ascertain whether, after viewing the evidence in the light most favorable to the prosecution, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis omitted.) Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

The occurrence of an injury or loss and its causation by criminal conduct are termed the corpus delicti. (People v. Furby (1990), 138 Ill. 2d 434, 563 N.E.2d 421.) Generally, courts have required that the proof of the corpus delicti may not rest exclusively on a defendant’s extrajudicial confession, admission, or other statement since such statements are regarded as untrustworthy. (People v. Furby, 138 Ill. 2d 434.) Accordingly, the prosecution must present evidence independent of defendant’s confession that tends to show the commission of the offense and that corroborates the circumstances related in the statement. (People v. Lambert (1984), 104 Ill. 2d 375, 378-79, 472 N.E.2d 427.) This corroborative evidence, however, need not establish beyond a reasonable doubt that an offense did occur. People v. Furby, 138 Ill. 2d 434.

At bar, defendant’s statement to Losasso was adequately supported by the evidence. The autopsy findings of numerous stab wounds corroborated defendant’s statement to Losasso in that defendant had remarked that he had “poked” Duchetta several times. Furthermore, defendant told Losasso that he and Duchetta had gotten into an argument. Solían Ravanmehr testified that Duchetta and defendant were quarreling in his taxi. Finally, Losasso testified that defendant, after stating that he had killed Duchetta, made several phone calls from his home to his mother and to his girlfriend. A phone log introduced into evidence revealed that, on the date and time in question, defendant’s mother’s residence was called from Lo-sasso’s house as was defendant’s girlfriend’s home.

Moreover, evidence of flight is admissible as a fact from which the jury may infer consciousness of guilt. (People v. Miscichowski (1986), 143 Ill. App. 3d 646, 656, 493 N.E.2d 135.) Defendant, here, fled the area and was not apprehended until two months after the murder. Once arrested in Lyons, defendant attempted to conceal his identity by using several fictitious names because he did not want “to face [Chicago] detectives.”

Finally, defendant’s attack on Losasso’s credibility also is meritless. A key witness’ testimony is not rendered incredible by prior drug usage. (People v. Titone (1986), 115 Ill. 2d 413, 505 N.E.2d 300.) The jury here was aware of Losasso’s past yet still found him credible. Matters affecting the credibility of witnesses and the weight to be accorded the evidence are within the province of the jury, and this court cannot substitute its judgment for that of the trier of fact. People v. Bradford (1985), 106 Ill. 2d 492, 502, 478 N.E.2d 1341.

The evidence recited above, when taken as a whole in the light most favorable to the State, supports defendant’s guilt beyond a reasonable doubt.

II

Defendant argues that he was denied a fair trial because the State was permitted to question Duchetta’s stepfather regarding his children and Losasso regarding his credibility. Defendant also maintains that various comments made during the State’s opening and closing arguments were prejudicial.

A review of the record reveals that defendant has waived all of these arguments because he either failed to object at trial or failed to raise the issues in his post-trial motion. See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Based on the foregoing, defendant’s conviction is affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE BUCKLEY

text:
    SCOTT MACEK, Plaintiff-Appellant, v. SCHOONER'S, INC., et al., Defendants-Appellees.
    First District (1st Division)
    Nos. 1—90—1967, 1—90—3238 cons.
    Opinion filed December 23, 1991.
    Michael W. Rathsack, of Chicago, for appellant.
    Pretzel & Stouffer, Chartered, of Chicago (Lynn B. McKay, Robert Marc Chemers, and Anne Scheitlin Johnson, of counsel), for appellee Schooner’s, Inc.
    Thomas J. Wagner, of Chicago, for other appellees.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff Scott Macek filed a complaint against Hands Down Productions, Inc. (Hands Down), and Schooner’s, Inc., Donald K. Niven and Daniel Niven to recover damages arising from an injury plaintiff sustained while participating in an arm wrestling contest sponsored by defendants. The circuit court granted summary judgment for defendants, from which plaintiff appeals, presenting the issue of whether the court erred in determining that there were no factual issues because the contest entry form constituted a general release.

On July 2, 1987, plaintiff went to Schooner’s, a tavern at 341 East 167th Street in Harvey, Illinois, where an arm wrestling contest was scheduled utilizing an arm wrestling machine. Plaintiff had not intended to participate, but decided to enter after he spoke with the promoters, Dan and Don Niven, about the operation and safety of the equipment, and tried out the machine. The Nivens were dressed in referee shirts and encouraged patrons of the tavern to participate.

Prior to participation in the contest, plaintiff signed a form titled “World Class Arm Wrestling,” which provided:

“In consideration of your accepting this entry, I hereby, for myself, my heirs, executors, and administrators, waive any and all right and claim for damages I may have against the World Class Events Corporation, Its Official Franchises, the sponsors), and the host of this event, and their representatives and their assignees for any and all injuries suffered by me at said World Class Arm Wrestling Tournament. I also herby [sic] certify, that I have no physical condition or disability that would make my participation in said arm wrestling tournament in any way dangerous to my health.
In the spirit of good sportsmanship, I grant permission to The World Class Events Corp., and Its Official Franchises, rights to video tape and/or photograph this tournament, in which I am a contender. I give this permission with the understanding and knoweledge [sic] that these materials may be used in part or in whole for referee certification and training, the explanation of the World Class Arm Wrestling rules and machine operation and in publicity, to further promote and expand the interest of World Class Arm Wrestling throughout the world. I also give my permisión [sic] to duplicate any of these materials in which I may appear.”

In addition, the form included blank spaces for an entrant’s weight, entry number, name, address, telephone number and signature. Plaintiff stated that he did not read the five-inch by seven-inch card before he signed it. He then paid a $5 entry fee and was classified according to his weight. While participating in the tournament, plaintiff’s arm broke, and this injury was later determined to be a complete break of the right humerus with a permanent loss of right arm flexion and extension.

Plaintiff’s initial four-count complaint was filed on July 13, 1988. The complaint went through two amendments which are not in issue here. In his second-amended complaint filed on March 3, 1989, the first count alleged that the negligence of Hands Down, Schooner’s, Inc., Daniel Niven and Donald Niven was the proximate cause of his injuries. Count II alleged that defendants Hands Down and the Nivens provided express warranties concerning the safety of the equipment while count III alleged that they negligently set up the machine. In count IV, plaintiff alleged that the arm wrestling machine was defective and unreasonably dangerous.

On April 23, 1990, Schooner’s, Inc., filed a motion for summary judgment on the grounds that the form signed by plaintiff released defendant from any liability for injury. A hearing on this motion was conducted on June 4, 1990, and the trial court granted the motion as to all defendants. A transcript of the hearing is not included in the record on appeal. According to the order, the trial court found no inference or fact supporting fraud or misrepresentation as to the entry form, the nature of the risk was clearly anticipated and the release was a complete bar to the plaintiff’s cause of action. Plaintiff filed a timely notice of appeal.

“[A] motion for summary judgment should be granted only when ‘the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, quoting Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) In considering whether a genuine issue of material fact exists, “courts must consider the pleadings, depositions, *** and affidavits on file *** and must construe them strictly against the movant and liberally in favor of the opponent.” (Purtill, 111 Ill. 2d at 240.) Summary judgment would be appropriate in the instant case only if the pleadings and depositions establish as a matter of law that plaintiff’s signature on the form relieved defendant of all liability for plaintiff’s injury.

Exculpatory clauses in contracts must contain clear, explicit and unequivocal language in order to absolve a party from liability for negligence. (Garrison v. Combined Fitness Centre, Ltd. (1990), 201 Ill. App. 3d 581, 559 N.E.2d 187.) Under Illinois law, exculpatory contracts are not favored and are strictly construed against the maker. (Calarco v. YMCA (1986), 149 Ill. App. 3d 1037, 501 N.E.2d 268.) Thus, defendants are not entitled to summary judgment in the instant case unless the document provides in unambiguous, explicit language that defendants are relieved from liability.

In Calarco v. YMCA (1986), 149 Ill. App. 3d 1037, 1039, 501 N.E.2d 268, an exculpatory agreement provided:

“ ‘In consideration of my participation in the activities of the Young Men’s Christian Association of Metropolitan Chicago, I do hereby agree to hold free from any and all liability the YMCA of Metropolitan Chicago and its respective officers, employees and members and do hereby for myself, my heirs, executors and administrators, waive, release and forever discharge any and all rights and claims for damages which I may have or which may hereafter accrue to me arising out of or connected with my participation in any of the activities of the YMCA of Metropolitan Chicago.
I hereby do declare myself to be physically sound, having medical approval to participate in the activities of the YMCA.’ ”

This clause was held insufficient to protect the defendant from liability as a matter of law. The court noted that the clause did not adequately describe the covered activities. It was further noted that the statement immediately following the alleged exculpatory language contains a declaration of physical health by the signer, and that combination of the two provisions further complicated the interpretation of the form.

We agree with plaintiff that Calarco is directly on point and establishes that summary judgment was not appropriate in the instant case. The exculpatory clause does not specify the covered activities but rather merely indicates that damages for “all injuries suffered *** at said World Class Arm Wrestling Tournament” are waived. Most significantly, the line immediately following the exculpatory language in this case as in Calarco provides additional ambiguity. The line represents a certification of the signer’s physical health. The arising ambiguity is whether the intent is to release the promoter from liability only when the injury results from the participant’s physical condition or from negligence on the promoter’s part. Based upon this ambiguity, we find that summary judgment was not correct.

Accordingly, the judgment of the circuit court of Cook County is reversed and the cause is remanded.

Reversed and remanded.

MANNING, P.J., and CAMPBELL, J., concur.


author: JUSTICE McNAMARA

text:
    JACQUELINE FLYNN, Plaintiff-Appellant, v. THOMAS J. SZWED, Defendant-Appellee.
    First District (6th Division)
    No. 1—90—2825
    Opinion filed December 27, 1991.

      Michael W. Rathsack, of Chicago (David B. Selig and Kenneth R. Nix, of counsel), for appellant.
    Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Scott 0. Reed, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Jacqueline Flynn, brought this medical negligence action against defendant Dr. Thomas Szwed, D.O., an osteopath, for his alleged failure to diagnose hyperparathyroidism. Defendant filed a petition for summary judgment on the ground that allegations in the first amended complaint as to 1978 and 1979 care were barred under the four-year statute of repose for medical negligence actions. (Ill. Rev. Stat. 1989, ch. 110, par. 13—212.) The trial court granted the motion and denied plaintiff’s motion for leave to amend her complaint, and plaintiff appeals.

Plaintiff first saw defendant in February 1977. She complained of fatigue, pain, headaches, dryness of the mouth and swollen glands. On February 24, 1977, defendant ordered tests of plaintiff’s serum calcium levels in order to determine whether plaintiff suffered from hy-perparathyroidism. Such condition arises when the parathyroid gland produces excessive levels of the hormone that controls the level of calcium in the blood and bone. Although the results indicated an elevated serum calcium level, defendant did not diagnose plaintiff with hyperparathyroidism at this time.

On March 1, 1977, plaintiff returned to defendant’s office complaining of an upper respiratory infection. Defendant treated plaintiff for upper back pain on March 14, 1977, and pursuant to defendant’s orders, plaintiff was hospitalized from March 19 to 24, 1977, for a diagnostic work-up. Defendant diagnosed plaintiff as having diabetes and prescribed a diet program. Defendant saw plaintiff on March 31 for a follow-up visit after her hospitalization, and on April 19, 1977, for plaintiff’s complaints of low back pain. Defendant saw plaintiff again on April 25 and May 19, 1977, to monitor her diet and her low back pains. On July 11, defendant examined plaintiff and released her to return to work after concluding that she had lost weight and had followed the prescribed diet. Defendant last treated plaintiff in 1977 on December 29 for an upper respiratory infection. Defendant did not discharge plaintiff from his care in 1977.

Defendant did not treat plaintiff in 1978. Plaintiff saw defendant three times in 1979; on April 22 and 27 for low back pain, and on April 30 for a routine dietary and weight check.

In April and May 1980, Dr. Karl, defendant’s associate, examined plaintiff twice; defendant did not participate in these examinations. Plaintiff alleged that defendant advised her that she suffered from a diabetic and kidney condition which required hospitalization. In late May and early June 1980, upon defendant’s advice and instruction, plaintiff was hospitalized and a kidney stone was removed. In July 1980, surgery was performed on her parathyroid gland by a different doctor.

In 1981, plaintiff filed an action alleging that defendant negligently treated her in 1980, which she later voluntarily dismissed. In September 1982, plaintiff refiled the complaint (the original complaint) which alleged that plaintiff consulted defendant on or about April 9, 1980, and that defendant treated her “at the time and place aforesaid, and for a period of time thereafter.” The complaint did not refer to any treatment by defendant prior to April 1980, but alleged that defendant failed to diagnose her condition as hyperparathyroidism. Defendant’s answer stated that he treated plaintiff from 1977 through 1980, but asserted the statute of limitations as an affirmative defense.

In September 1984, plaintiff filed her first amended complaint which stated that defendant treated plaintiff during 1979 and 1980 and that he failed to diagnose her hyperparathyroidism. She alleged that she did not know nor could she have reasonably known of defendant’s negligent conduct until July 1980. Plaintiff charged that defendant had a duty to treat plaintiff “in accordance with the accepted standards of care in the years 1978, 1979 and 1980,” but did not allege that plaintiff consulted defendant during 1978.

In his answer, defendant stated that he treated plaintiff in 1977, 1979 and 1980, but restated the limitations defense. Defendant’s amended affirmative defense alleged that he last treated plaintiff for diabetes and a kidney condition in 1977, and that she knew or should have known of her allegations in 1977.

At his deposition, plaintiff’s expert witness, Dr. Bitran, testified that plaintiff suffered from hyperparathyroidism from 1977 on. In his opinion, although defendant ordered the proper tests to diagnose the condition and observed an elevated hormone level, defendant failed to take proper medical action in 1977. Dr. Kessel, defendant’s expert, testified that defendant had pursued the diagnosis as hyperparathy-roidism, but was justified in not reaching that diagnosis in 1977. Kes-sel agreed that plaintiff was in the early stages of hyperparathyroidism in 1977, but stated that he would not attribute her symptoms to such condition because asymptomatic patients also show elevated hormone levels.

The case was assigned to trial in 1989. In October 1989, defendant filed two motions. His supplemental motion in limine sought to bar any reference to defendant’s 1977 treatment on the ground that neither the original complaint nor the first amended complaint alleged 1977 care, and such allegations were thus barred by the statute of repose, having occurred more than four years before plaintiff filed her original complaint in 1982. Defendant’s motion for summary judgment recited that the first amended complaint, filed in 1984, alleged 1978 and 1979 treatment which was not alleged in the original complaint and thus was barred by the statute of limitations.

The trial court granted summary judgment for defendant on the first amended complaint, noting that plaintiff could have included the 1977 allegations in her initial complaint and rejecting plaintiff’s argument that defendant engaged in a continuing course of treatment. Plaintiff thereafter moved for leave to amend her complaint, which proposed amendment alleged that: defendant treated plaintiff from 1977 to 1980; such care was a continuous treatment program for her symptoms of hyperparathyroidism; and although defendant included hyperparathyroidism as part of her differential diagnosis in 1977, he misinterpreted the tests and failed to properly diagnose plaintiff. The trial court denied plaintiff’s motion for leave to amend and her subsequent motion for reconsideration.

Two procedural issues are presented by this appeal: whether the trial court erred in granting summary judgment for defendant and whether the trial court erred in denying plaintiff’s motion for leave to amend her complaint.

Summary judgment is properly awarded when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c).

On appeal, plaintiff claims that the trial court erred in concluding that the first amended complaint did not relate back to the original complaint and, thus, improperly granted summary judgment for defendant on this basis. Relevant here are both the Illinois statute of repose for medical negligence actions and the relation back statute. Section 13 — 212 of the Code of Civil Procedure precludes a plaintiff from filing a medical malpractice action more than two years after plaintiff knew or should have known of her injury or more than four years after the date of the alleged misconduct. (Ill. Rev. Stat. 1989, ch. 110, par. 13—212(a).) After voluntarily dismissing the complaint filed in 1981, plaintiff refiled her complaint in September 1982. The first amended complaint, filed in 1984, alleged medical negligence which occurred more than six years earlier. Therefore, the amended complaint was timely only if the cause of action in the amended complaint relates back to the original cause of action as filed in 1982.

Section 2 — 616 of the Code of Civil Procedure provides that a cause of action raised by amendment is not barred by the statute of limitations if: (1) the original complaint was timely filed; and (2) the action asserted in the amendment grew out of the occurrence set out in the initial complaint. (Ill. Rev. Stat. 1989, ch. 110, par. 2—616(b); Wolf v. Meister-Neiberg, Inc. (1991), 143 Ill. 2d 44, 570 N.E.2d 327.) Moreover, an amended complaint relates back only when the original complaint supplies defendant with “all the information necessary to prepare the defense to the subsequently asserted claim.” Seibert v. Cahill (1988), 173 Ill. App. 3d 545, 548, 527 N.E.2d 1042, 1044.

In reaching its decision, the trial court relied on Jordan v. Lind (1988), 176 Ill. App. 3d 530, 531 N.E.2d 168, and Chestnut v. Adeli (1985), 131 Ill. App. 3d 24, 475 N.E.2d 260. In Chestnut, plaintiff’s original complaint alleged that defendant tortiously inserted a metal rod in her leg in 1977. Plaintiff had undergone a course of treatment by defendants since an auto accident in 1974. In 1984, plaintiff sought to amend her complaint to allege that in 1974 defendants used an improper procedure in treating an injury to her left femur, maintaining that such claim arose out of the same occurrence as the original complaint and therefore was timely. This court determined that “the only reasonable conclusion which defendants could have drawn from the 1981 complaint was that [plaintiff] sought to hold them liable for medical malpractice solely on the basis of the insertion of [the metal rod] in 1977.” (Chestnut, 131 Ill. App. 3d at 27, 475 N.E.2d at 262.) The court determined that it was “not inconceivable” that defendants would be prejudiced by having to defend against allegations in the amended complaint because, in relying on the original complaint, defendants may have failed to preserve evidence regarding treatment prior to the time period alleged in the original complaint. Chestnut, 131 Ill. App. 3d at 28, 475 N.E.2d at 262.

In Jordan v. Lind, plaintiff filed a complaint in February 1980 which alleged medical negligence in February 1978. Plaintiff refiled the case in January 1982 in a different county, again alleging February 1978 negligence. In May 1984, plaintiff sought leave to file a second amended complaint to add allegations of January 1978 negligence. This court held that the statute of repose barred these allegations because the proposed second amendment was filed more than four years after the alleged January 1979 negligence. The court, relying on Chestnut, noted that defendant had no reason to suspect that either the original or refiled complaint related to anything other than the February 1978 conduct. The court also held that because the January and February treatments were two different medical treatments, they were not part of the same transaction or occurrence, and the proposed amendment did not relate back to the original filing. Jordan, 176 Ill. App. 3d at 535-36, 531 N.E.2d at 171-72.

We believe that the trial court properly relied upon Jordan and Chestnut. In both cases, as here, although the original complaints were timely, the later amendments sought to add allegations more than four years after the alleged negligent conduct. In this case, plaintiff sought to raise issues regarding 1978 and 1979 care in her first amended complaint in 1984, five and six years after such alleged negligence. We find nothing in the original complaint that relates to anything other than defendant’s 1980 or post-1980 conduct. Moreover, the original complaint cannot reasonably be said to have given defendant notice that he would be required to defend his conduct during any earlier treatment. Indeed, plaintiff’s original complaint alleges in pertinent part as follows:

“1. That on or about the 9th day of April, 1980, [plaintiff] consulted [defendant] for professional medical services.
2. That at said time and place [defendant] was a physician and surgeon ***.
3. That at said time and place aforesaid, and for a period of time thereafter, [defendant] did in his professional capacity attend and treat [plaintiff].
4. That at all times referred to herein [plaintiff] was in the exercise of ordinary care for her own safety.
5. That on or about the 23rd day of May, 1980, upon the advice and instruction of [defendant], [plaintiff] was admitted as a patient to the [hospital].
6. That on or about the 2nd day of June, 1980, [plaintiff] upon the advice and instruction of [defendant], was readmitted to the [hospital]. * * *
12. That at the time and place aforesaid and during the period of time, the [pflaintiff was under the care of the [djefendant, [defendant] was then and there guilty of one or more of all of the following wrongful acts or omissions:
(a) . Carelessly and negligently failed to properly evaluate [plaintiff’s continuous decline in health ***;
(b) . Carelessly and negligently failed to properly diagnose and treat [plaintiff’s condition of Hi-being;
(c) . Carelessly and negligently faüed to provide proper medical attention whüe ¡p]laintiff was in a hospital under the care and control and at the direction of [defendant;
(d) . Carelessly and negligently faded to conduct the usual, customary and necessary diagnostic studies to determine the nature and extent of [plaintiff’s state if [sic] Hl-being;
(e) . Carelessly and negligently failed to treat and otherwise provide proper medical attention before hospitalization during hospitalization and following hospitalization so that as a result of said neglect, [p]laintiff did become critically ill.” (Emphasis added.)

Under Chestnut and Jordan, the only reasonable conclusion that defendant could have drawn from the original complaint was that plaintiff sought to hold him liable for his alleged misconduct in April and May of 1980 and thereafter. Indeed, the dates specified throughout and the allegations in paragraph 12 center around plaintiff’s 1980 hospitalization. Further, it is conceivable that defendant would be prejudiced by being required to defend against the first amended complaint because, in reliance on the original complaint, defendant may not have taken necessary steps to preserve evidence pertinent to his treatment of plaintiff prior to 1980. Chestnut v. Adeli, 113 Ill. App. 3d 24, 475 N.E.2d 260.

Plaintiff argues that even though the original complaint referred only to defendant’s 1980 conduct, the complaint implicitly covers the pre-1980 treatment because defendant’s alleged failure to diagnose plaintiff’s condition continued during the entire course of treatment. However, the complaint’s explicit allegations are not consistent with this argument.

We also reject plaintiff’s argument that defendant’s acknowledgement in his answer to the originally filed complaint that the treatment began in 1977 indicates that defendant understood that the allegations against him related to pre-1980 care. It does not follow from defendant’s awareness that he treated plaintiff from 1977 to 1980 that defendant knew that plaintiff claimed defendant’s negligence from the start of treatment in 1977, especially given the original complaint’s explicit and contrary references. Nor does it relieve plaintiff of the requirement to allege facts showing when defendant acted negligently. (See Doyle v. Shlensky (1983), 120 Ill. App. 3d 807, 458 N.E.2d 1120.) Plaintiff chose to allege defendant’s 1980 “and subsequent conduct,” and cannot later add allegations regarding earlier conduct on the basis that defendant knew that he treated her at an earlier time. Plaintiff’s original complaint simply failed to put defendant on notice that he would be required to defend his conduct during any treatment of plaintiff before 1980.

Plaintiff offers an alternative argument based upon the continuous course of treatment doctrine. Under the continuous treatment doctrine, “a cause of action as to any act occurring within a continu[ing] course of treatment should not be deemed to accrue until the end of the entire course of treatment.” (Jacobson v. Natonson (1987), 164 Ill. App. 3d 126, 131, 517 N.E.2d 304, 307-08.) When this doctrine applies, the statute of limitations is tolled. Plaintiff contends that the allegations to pre-1980 care in the first amended complaint were timely because defendant’s continuous treatment of plaintiff did not end until 1980. Defendant responds that his 1980 treatment was not part of a continuous course of treatment of plaintiff and, therefore, failed to toll the limitations period. We agree with defendant and hold that the trial court properly rejected the continuous treatment doctrine.

We conclude that defendant’s treatment of plaintiff during the period from 1977-1980 was neither “continuous treatment” nor treatment “for the same specific condition” sufficient to toll the running of the limitations period. This court has stated that “[mjerely intermittent or occasional medical services at substantial intervals” do not satisfy the continuing treatment doctrine. (Aznel v. Gasso (1987), 154 Ill. App. 3d 785, 788, 507 N.E.2d 83, 86.) In Aznel, defendant treated plaintiff regularly for more than 21/2 years, then moved to another State and referred plaintiff to a different doctor. After receiving treatment from two different doctors over the next 10 years, plaintiff located the out-of-State defendant doctor and underwent an examination under his care. This court determined that the continuous treatment doctrine did not apply, viewing the final visit as “an isolated service that followed a substantial interval.” (Aznel, 154 Ill. App. 3d at 789, 507 N.E.2d at 86.) The court emphasized the 10-year gap and noted that the doctor-patient relationship terminated when defendant moved and referred plaintiff to another doctor.

The record in this case reveals defendant’s intermittent and sporadic treatment of plaintiff. After the final 1977 visit on December 29, defendant did not treat plaintiff again until April 1979, more than 15 months later. Defendant saw plaintiff three times during a two-week period and then did not treat her again for a full year. Although the gap here was not as lengthy as that in Aznel, we do not believe that a year-long regular course of treatment, followed by a 15-month gap, two weeks of treatment and a 12-month gap, constitutes “continuous treatment” sufficient to toll the limitations period. The statute of limitations would become meaningless if limitations periods could be extended as urged here. Moreover, we reject plaintiff’s argument that a misdiagnosis by its very nature is a “continuous” act.

Nor does the record show that defendant treated plaintiff for the same “specific condition” between 1977 and 1980. (Daly v. Carmean (1991), 210 Ill. App. 3d 19, 29, 568 N.E.2d 955, 961; Neaterour v. Holt (1989), 188 Ill. App. 3d 741, 747, 544 N.E.2d 846, 851; Jacobson v. Natonson (1987), 164 Ill. App. 3d 126, 132, 517 N.E.2d 304, 308.) In Daly, a podiatrist treated plaintiff for more than three years for bunions and hammertoe conditions on both feet. In Jacobson, plaintiff alleged that defendant, a dentist, failed to properly diagnose her gum condition. Unlike Daly and Jacobson, in which defendants’ practices were limited in scope and specialized, defendant here is an osteopath whose practice is general in nature. Indeed, plaintiff admitted during discovery that defendant treated her for various complaints, including: extreme fatigue, swollen glands, back and flank pain, blood in the urine, dryness of the mouth, headaches, colds and an upper respiratory infection. Nothing in the record indicates that these were all symptoms of hyperparathyroidism. Moreover, the record indicates that defendant pursued various treatments including a diet, manipulative therapy, antibiotics, appetite suppressants and other medications. Given the broad range of plaintiff’s ailments and defendant’s prescribed remedies, we conclude that defendant did not treat plaintiff for the “same specific condition” between 1977 and 1980.

For the foregoing reasons, we conclude that defendant’s pre-1980 care of plaintiff did not constitute continuous treatment for a specific condition sufficient to toll the limitations period. The trial court, therefore, properly concluded that the pre-1980 allegations were barred by the statute of repose (Ill. Rev. Stat. 1989, ch. 110, par. 13—212(a)), and properly granted summary judgment for defendant on this issue.

Finally, we consider plaintiff’s claim that the trial court erred in denying her motion for leave to file a second amended complaint to add allegations regarding 1977 care. A trial court’s authority to allow amendment of a complaint is to be liberally exercised. (Kupianen v. Graham (1982), 107 Ill. App. 3d 373, 437 N.E.2d 774.) There is no absolute right to amend pleadings and “the timeliness of such a request is a discretionary determination” for the trial judge. (Hall v. Northwestern University Medical Clinics (1987), 152 Ill. App. 3d 716, 722, 504 N.E.2d 781, 785.) Among factors to be considered are the following: whether the amendment cures a defect in the pleadings; whether it would cause prejudice or surprise to other parties; whether previous opportunities to amend could be identified; and the timeliness of the amendment. (Schwaner v. Belvidere Medical Building Partnership (1987), 155 Ill. App. 3d 976, 508 N.E.2d 522.) Applying these factors to this case, we cannot say that the trial court abused its discretion in denying plaintiff’s motion for leave to amend. The original complaint sought to impose liability based upon defendant’s negligence in 1980. We cannot say that the proposed second amendment, which added allegations regarding 1977, would cure a defect. Rather, such amendment attempted to increase defendant’s potential liability. Nor does the record reveal any reason why plaintiff could not have included 1977 allegations in the 1981 action, the refiled 1982 action or in the 1984 first amended complaint. Indeed, plaintiff alleged that she knew about defendant’s negligence in July 1980. Moreover, as indicated above, defendant may be prejudiced in having to defend against allegations of negligence before 1980. Finally, the proposed amendment which added 1977 allegations was time barred. For these reasons, we cannot conclude that the trial court erred in denying plaintiff’s motion for leave to amend her complaint.

Plaintiff also urges reversal of summary judgment on the ground that defendant’s motion, filed after the case was assigned to trial, was untimely. Plaintiff suggests that the “late hour” of the motion belies defendant’s claim that the new allegations surprised him. Under Illinois law, a defendant may file a summary judgment motion “at any time.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c).) Rappeport v. Meltzer (1990), 208 Ill. App. 3d 555, 567 N.E.2d 473, cited by plaintiff, is inapposite here. In Rappeport, this court found that defendant failed to exercise diligence in renewing his summary judgment motion after the trial court denied his initial summary judgment motion without prejudice to allow defendant to amend. Such is not the case here. Moreover, the record does not indicate that defendant intentionally delayed filing the motion, failed to set the motion for a timely hearing (Athens v. Prousis (1989), 190 Ill. App. 3d 349, 546 N.E.2d 695), or failed to give plaintiff adequate notice. (See Midwest Bank & Trust v. Village of Lakewood (1983), 113 Ill. App. 3d 962, 447 N.E.2d 1358.) As such, we cannot say that defendant’s motion was untimely.

Although defendant’s motion for summary judgment was limited to pre-1980 allegations, he urges us to grant summary judgment on his behalf as to the entire action. He makes this request on the basis of a comment made by plaintiff’s counsel in the trial court. We find that defendant has taken the remark out of context. Consequently, nothing in our decision prohibits plaintiff from seeking relief pursuant to her 1982 complaint for defendant’s alleged misconduct in 1980 and thereafter.

For the foregoing reasons, the order of the circuit court of Cook County granting summary judgment for defendant on all pre-1980 allegations is affirmed.

Judgment affirmed.

RAKOWSKI, P.J., and LaPORTA, J., concur.