source: Caselaw Access Project

author: JUSTICE BILANDIC

license: Public Domain

text:
    HELEN SICILIANO, Plaintiff-Appellee, v. THE VILLAGE OF WESTCHESTER FIREFIGHTERS’ PENSION FUND et al., Defendants-Appellants.
    First District (2nd Division)
    No. 1—89—0286
    Opinion filed June 12, 1990.

      Thomas F. McGuire & Associates, Ltd., of Long Grove, for appellants.
    Andrew J. Creighton and Joseph C. Owens, both of Joseph C. Owens, P.C., of Chicago, for appellee.
   JUSTICE BILANDIC

delivered the opinion of the court:

Plaintiff, the widow of a suburban firefighter, received pension benefits from the defendant firefighters’ pension fund until she remarried. When her second husband died, she sought reinstatement of the pension benefits. The defendant board of trustees of the pension fund denied her application, and the circuit court of Cook County subsequently reversed the board’s decision. The issue on appeal is whether plaintiff is the unmarried surviving spouse of her first husband within the meaning of section 4—114 of the Illinois Pension Code (Code) (Ill. Rev. Stat. 1987, ch. 108½, par. 4 —114). This is a case of first impression.

The relevant facts are not in dispute. Plaintiff, Helen Siciliano, was married to Patrick Airdo for 31 years. Patrick Airdo was a firefighter for the Village of Westchester for 25 years, and he contributed to its pension fund. He retired from the fire department in March 1981, and he died about one month later. During the ensuing five years, plaintiff received pension benefits until she married her second husband, John Siciliano, on September 14, 1986. On March 2, 1988, Mr. Siciliano died. Plaintiff applied to the board for reinstatement of her surviving spouse’s pension, pursuant to section 4—114 of the Illinois Pension Code. (Ill. Rev. Stat. 1987, ch. IO8V2, par. 4—114(a).) After hearing arguments, the board issued its decision denying plaintiff’s application for restoration of her surviving spouse’s pension.

Thereafter, plaintiff filed a complaint for administrative review in the circuit court, requesting reversal of the board’s decision and reinstatement of her surviving spouse’s pension. The circuit court reversed the decision of the board and ordered plaintiff reinstated to her surviving spouse’s pension. The board appeals.

We are asked to interpret the phrase “surviving spouse, while unmarried” found in section 4— 114 of the Illinois Pension Code. (Ill. Rev. Stat. 1987, ch. 108½, par. 4—114(a).) The parties disagree as to the construction of section 4 — 114(a).

The statute provides, in pertinent part:

“§4 — 114. Pension to survivors. If a firefighter dies ***, a pension shall be paid to his or her survivors *** as follows:
(a) To the surviving spouse, while unmarried, a monthly pension of 40% of the monthly salary ***.” Ill. Rev. Stat. 1987, ch. IO8V2, par, 4 — 114(a).

Neither party has been able to cite any Illinois case construing this section of the statute, and our research confirms that such a case does not exist.

The board argues that the phrase “surviving spouse, while unmarried” is ambiguous, requiring the court to rely upon various canons of statutory construction to ascertain its meaning. Plaintiff contends that the phrase is clear and unambiguous and, thus, must be given its ordinary and popularly understood meaning. Kozak v. Retirement Board of the Firemen’s Annuity & Benefit Fund (1983), 95 Ill. 2d 211, 215, 447 N.E.2d 394.

We find the phrase to be plain and unambiguous. Plaintiff was the spouse of Lt. Airdo at the time of his death. By virtue of the death of her second husband, plaintiff is now unmarried. Therefore, under the ordinary and popularly understood meaning of “surviving spouse, while unmarried,” plaintiff comes within the plain meaning of the statute.

The board argues that plaintiff permanently lost her status as the “surviving spouse” of Lt. Airdo once she married Mr. Siciliano. But, implicit in this argument is that the term “surviving spouse” means a person married to a decedent at the time of his death and who remains in an unmarried state. Attaching this meaning to “surviving spouse” would render the latter portion of the phrase, “while unmarried,’-’ superfluous — a practice which Illinois courts eschew. Niven v. Siqueira (1985), 109 Ill. 2d 357, 365-66, 487 N.E.2d 937.

Section 4—101 of the Code declares a legislative intent that the firefighters’ pension fund is established “for the benefit of its [the municipality’s] firefighters and of their surviving spouses, children and certain other dependents.” (Ill. Rev. Stat. 1987, ch. IO8V2, par. 4—101.) Pension laws should be liberally construed in favor of those whom the legislature intends to benefit. (Kozak v. Retirement Board of the Firemen’s Annuity & Benefit Fund (1983), 95 Ill. 2d 211, 217, 447 N.E.2d 394.) A liberal construction of the phrase “surviving spouse, while unmarried” supports the conclusion that plaintiff falls ■within the rubric of the statute.

The board argues that under other articles of the pension system (not applicable to the Village of Westchester fund), the benefits payable to a surviving spouse terminate upon remarriage. (Ill. Rev. Stat. 1987, ch. 108½, pars. 3—121, 5—147, 6—143.) We are urged to construe article 4 (which applies to the Village of Westchester fund) in the same manner so that plaintiff’s benefits terminate on remarriage. This argument is misplaced.

In articles 3, 5 and 6, the legislature uses language that clearly expresses its intention to terminate the surviving spouse’s benefits upon remarriage. In contrast, article 4 specifies that a surviving spouse shall receive benefits while unmarried. Therefore, under article 4, the surviving spouse’s benefits are merely suspended by remarriage, while under articles 3, 5 and 6, remarriage terminates the surviving spouse’s benefits. Because the legislature employed different language in the different articles, it can be presumed that the legislature intended different results. Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 100, 199 N.E.2d 769.

Where a particular provision appears in a statute, the failure to include that same requirement in another section of the statute will not be deemed to have been inadvertent. (See Illinois State Toll Highway Authority v. Earn (1973), 9 Ill. App. 3d 784, 787-88, 293 N.E.2d 162, appeal denied (1973), 53 Ill. 2d 608.) The legislature demonstrated its ability -.to terminate the surviving spouse’s pension rights upon remarriage in articles 3, 5 and 6 of the Illinois Pension Code. If it wanted to terminate the surviving spouse’s pension rights in article 4, it could have employed similar language and accomplished that result. The fact that section 4 — 114 does not contain such language of termination is not inadvertent.

We therefore conclude that, under section 4 — 114, the legislature did not intend to terminate the surviving spouse’s pension rights upon remarriage, but intended merely to suspend that right during the period of remarriage. This result was reached in several out-of-State jurisdictions. See City of Henderson Police & Fireman Pension Board v. Riley (Ky. App. 1984), 674 S.W.2d 27, 32; Board of Trustees of Policemen’s & Firemen’s Retirement Fund v. Kennedy (Ala. Civ. App. 1989), 547 So. 2d 886.

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

Affirmed.

DiVITO, P.J., and SCARIANO, J., concur.


author: JUSTICE JOHNSON

text:
    MILDRED KELLMAN, Indiv. and as Ex’x of the Estate of Morrie Kellman, Deceased, Plaintiff-Appellant, v. TWIN ORCHARD COUNTRY CLUB, Defendant-Appellee (Cornell and Fornell, Inc., Defendant).
    First District (4th Division)
    No. 1—88—3655
    Opinion filed June 28, 1990.
    Rehearing denied October 9, 1990.

      Randall E Peters & Associates, and James J. Reidy, Ltd., both of Chicago (Randall F. Peters, James J. Reidy, and Richard L. Wattling, of counsel), for appellant.
    Victor J. Piekarski and Michael Resis, both of Querrey & Harrow, Ltd., of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, the widow of decedent Morrie Kellman and executrix of his estate, brought suit under the Wrongful Death Act (Ill. Rev. Stat. 1983, ch. 70, par. 1) and the Survival Act (Ill. Rev. Stat. 1983, ch. 110½, par. 27—6). Plaintiff alleged that the decedent’s fatal fall was a result of careless and negligent acts by Twin Orchard Country Club (hereinafter referred to as Twin Orchard) in designing, constructing and maintaining a shower stall and basin area in the men’s locker room. Twin Orchard moved for summary judgment and to strike the affidavit given by Michael Kellman, decedent’s son. The trial court granted both motions. We affirm.

On June 2, 1985, Morrie Kellman, decedent, was attending “Family Day” at Twin Orchard. Robert Stempel, a Twin Orchard club member, testified that he saw Morrie walking to the shower that evening at about 6 p.m. Stempel assisted Morrie, who appeared to be unsteady on his feet. Morrie was reeling and used the wall to keep himself from falling. Morrie went into the first shower stall, and Stempel proceeded to another shower stall. The shower facilities in the men’s locker room appeared to have been used a great deal that day.

Stempel stated that the shower facility contained approximately 16 shower stalls, which were divided equally on both sides of a central corridor. Each stall consisted of the shower basin area, which was in the rear of the stall, and a changing area, which was in the front portion of the stall. A curtain separated the shower basin area from the changing area, and a door with a metal frame and translucent panel separated each stall from the central corridor.

Stempel further testified that he had begun showering in his stall when he heard two thuds. He called out Morrie’s name but did not receive an answer so he got out of his shower and ran down to the stall where he last saw Morrie. He called out -to Morrie again, and when there was no answer, he looked through the translucent doors of the shower stall and saw Morrie lying on the floor. Morrie was lying on his stomach, facedown, with his arms next to his sides, his legs on the curb that separates the shower basin from the changing area, and his feet pointing down in the shower basin. Morrie’s head was positioned in such a manner as to prevent Stempel from opening the door to assist him. Stempel ran out of the shower area to get help and returned with two other club members. Someone ripped the shower door from its hinges, and Morrie was removed from the shower area and placed in the hallway, where cardiopulmonary resuscitation was administered. Morrie was unconscious. His body was naked and wet, there was soap in his hair, and there were abrasions about his face and head. The water from the shower was still running. An ambulance arrived and Morrie was carried to Good Shepherd Hospital. Upon arriving at the emergency room of the hospital, Morrie was diagnosed as suffering from a fracture of his cervical spine and quadriplegia.

Michael Kellman testified that he was in his father’s hospital room at approximately 8 a.m. on June 3, 1985, when Morrie regained consciousness. He was paralyzed and unable to speak. The younger Kellman established a system of communication with his father whereby he asked him short, specific, closed-ended questions to which he could respond by blinking his eyes once to indicate “Yes” and twice to indicate “No.”

Plaintiff offered an affidavit to the trial court, attested to by Michael Kellman, which states in pertinent part as follows:

“I then asked my father if he knew what had happened to him in the shower stall at the club house of COUNTRY CLUB and he blinked his eyes once.
*** I asked my father whether he had blacked out or was unconscious at the time he fell and my father blinked his eyes twice.
*** I then asked my father if he had slipped in the shower and he blinked his eyes once.
I then asked my father whether the shower floor was slippery and he blinked his eyes once. I then observed my father mouth the words, T slipped on the floor of shower.’ I then told my father I would repeat the words I understood him to say and asked him to blink his eyes once for ‘yes’ and twice for ‘no.’ I repeated the words he had spoken, being ‘slipped on floor in shower’ and he blinked his eyes once.
*** I then asked my father, ‘Was it the slippery floor in the shower and [your] slipping in the shower that had been what caused [you] to fall?’ and he blinked his eyes once.”

There were numerous affidavits by medical experts for plaintiff and Twin Orchard which opined that Morrie was injured and ultimately died as a result of falling in the shower stall. Plaintiff also introduced the affidavit of Robert J. Stanis, an engineer and expert in the area of safety of industrial and sporting facilities, specifically lavatory and shower arrangements. Stanis inspected the shower facilities at Twin Orchard and opined that the shower stall in which the decedent had fallen was unreasonably dangerous. Stanis testified by affidavit that the shower floor would have become slippery and dangerous when wet and soapy; the number of grab-bars and grips in the shower stall were inadequate; the number of adhesive strips on the shower basin floor were inadequate and improperly placed.

In its motion for summary judgment, Twin Orchard argued that there were no eyewitnesses to the decedent’s fall and that plaintiff was unable to prove the cause of the fall. In its motion to strike Michael Kellman’s affidavit, Twin Orchard maintained that the affidavit contained inadmissible evidence.

The circuit court granted both motions and held that Michael Kellman’s affidavit which recited his father’s communication did not satisfy the spontaneous utterance exception to the hearsay rule and, therefore, could not be used to establish a causal connection between defendant’s alleged negligence and decedent’s fall.

On appeal, plaintiff argues that the Kellman affidavit shows communication by Morrie immediately after regaining consciousness and therefore is admissible as res gestae or an excited utterance and precludes summary judgment in favor of Twin Orchard. Plaintiff also argues that the circuit court erred in (1) granting summary judgment in favor of Twin Orchard which failed to meet the burden required by a successful motion for summary judgment and (2) applying an incorrect standard to determine whether plaintiff’s evidence was sufficient to defeat Twin Orchard’s motion for summary judgment.

We do not agree with plaintiff’s contention that the Kellman affidavit qualifies as a res gestae exception to the hearsay rule. Res gestae is no longer a term recognized by the Illinois courts. The contemporary hearsay rule recognizes “spontaneous declarations” or “excited utterances” as properly admissible exceptions to the rule. (People v. Poland (1961), 22 Ill. 2d 175, 180.) A statement, made by one not testifying at trial, will be recognized as a spontaneous declaration or excited utterance when there is (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) an absence of time to fabricate; and (3) a relationship between the statement and the circumstances of the occurrence. (Poland, 22 Ill. 2d at 181.) Unsolicited spontaneous declarations may be admitted (see People v. Poland (1961), 22 Ill. 2d 175; People v. Freeman (1969), 113 Ill. App. 2d 7; Burnett v. Caho (1972), 7 Ill. App. 3d 266; Mangan v. F.C. Pilgrim & Co. (1975), 32 Ill. App. 3d 563). Also, spontaneous declarations made in response to a single, general, nonsuggestive, nonleading question, i.e., “What happened?” have been admitted. (See Thomas v. Goodman (1977), 52 Ill. App. 3d 774; J.L. Simmons Co. v. Firestone Tire & Rubber Co. (1984), 126 Ill. App. 3d 859.) The present case is distinguished from these situations, since Kellman’s questions to his father were both leading and suggestive. Questions which are suggestive as to the cause of the event serve to deprive the declaration of its spontaneity and possibly afford the declarant the opportunity and time to fabricate.

In the present case, the trial court expressly stated that it gave a liberal construction to the Kellman affidavit but was unable to accept the affidavit which recited Morrie’s utterance, even though it was made immediately upon his regaining consciousness. This court agrees that the nature of affiant’s questioning of Morrie may have afforded his father time and opportunity to fabricate the events which caused his injuries; therefore, the second requirement of the Poland test was not satisfied and the Kellman affidavit does not qualify as admissible testimony under the spontaneous utterance exception to the hearsay rule. We are not suggesting that the fact that an interval of time passed between the time of the accident, which rendered Morrie unconscious, and when consciousness was regained, or that his communication by blinking his eyes and moving his lips made the declaration inadmissible. We believe that the trial court properly examined the circumstances surrounding this out-of-court declaration and the manner in which it was made. Therefore, we agree with the trial court’s reasoning that the declaration in issue was, in fact, solicited and made in response to specific questions.

Supreme Court Rule 191(a) (107 Ill. 2d R. 191(a)) provides that affidavits offered in opposition of a motion for summary judgment shall consist of facts admissible in evidence. Since the Kellman affidavit contains decedent’s inadmissible hearsay declaration, it does not meet the requirements of a summary judgment affidavit and cannot, therefore, be considered in opposition to Twin Orchard’s motion for summary judgment. (Board of Education v. Gorenstein (1989), 179 Ill. App. 3d 388, 394.) Plaintiff improperly relies upon Peterson v. Cochran & McCluer Co. (1941), 308 Ill. App. 348. Although that case holds that it is the trial court’s determination of whether a declaration qualifies as a spontaneous declaration or res gestae, it does not discuss the admissibility of spontaneous declarations which are hearsay. That is distinguished from the case at bar where the issue is whether an affidavit which contains hearsay statements qualifies as admissible evidence when offered in opposition to a motion for summary judgment. It was not error for the trial court to rely on Supreme Court Rule 191(a) and determine that the summary judgment affidavit which contained hearsay declarations did not qualify as admissible evidence.

Next, plaintiff alleges that Twin Orchard failed to meet the burden required to obtain summary judgment. Plaintiff suggests that it was the burden of defendant to establish that, based on the facts of this case and the law, no verdict for plaintiff could possibly stand. “A party moving for summary judgment is not required to prove its case or to disprove the nonmoving party’s case. [Citation.] Rather, the movant meets its burden by establishing the absence of a genuine issue of material fact.” (Waite v. Chicago Transit Authority (1987), 157 Ill. App. 3d 616, 619.) Defendant’s alleged negligence must be the legal cause of decedent’s injuries; otherwise, plaintiff is not entitled to recover. The plaintiff must demonstrate proximate cause by establishing with reasonable certainty that defendant’s acts or omissions caused injury to the deceased. The occurrence of an accident does not support an inference of negligence, and, absent positive and affirmative proof of causation, plaintiff cannot sustain the burden of establishing the existence of a genuine issue of material fact. (Waite v. Chicago Transit Authority (1987), 157 Ill. App. 3d at 619.) We agree with plaintiff’s contention that circumstantial evidence may be sufficient when an inference may reasonably be drawn from it. But facts will not be established from circumstantial evidence where the circumstances are unrelated and allow more than one conclusion to be drawn. (Mort v. Walter (1983), 98 Ill. 2d 391, 396.) Damages cannot be awarded on mere speculation, guess, or conjecture as to what probably happened to cause decedent’s injuries and death. Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 818.

Plaintiff argues that summary judgment was improperly entered as the circumstantial evidence here is sufficient to raise an inference that decedent’s injuries and subsequent death were caused by defendant’s negligence in maintaining its shower stall and basin in an unreasonably dangerous condition. We find nothing in the record from which it can be inferred that any alleged act or omission of defendant was the proximate cause of decedent’s injuries. It is plaintiff’s position that the evidence shows Morrie fell while standing in the shower basin; but, there is no evidence as to the cause of the fall. In fact, plaintiff was asked repeatedly in a deposition if she knew what caused the decedent’s fall and she admitted that she did not know. Plaintiff also stated in her deposition that she did not have actual knowledge of the condition of the shower stall immediately following the incident and that she failed to examine or inspect the shower area. Plaintiff stated that her husband told her that he had slipped, but she did not know the cause of the slip or precisely where he slipped. According to plaintiff’s own statements, she was unable to produce any evidence (since she admitted that she knew of no witnesses) to show that even if there were some defect in the shower basin, this defect had caused decedent to fall. Plaintiff relies heavily upon expert testimony to establish the condition of the shower stall and the manner in which Morrie fell. The trial court accepted the deposition of Stanis and viewed it in the light most favorable to plaintiff despite questioning Stanis’ qualifications to render an opinion on the issue of slip resistance. As plaintiff states, medical testimony established that decedent had fallen forward with accelerating speed and that the injuries received were consistent with slipping and falling in a shower stall. Unfortunately, this does not address the issue of what had caused decedent to slip and fall. The possibility that the alleged unreasonably dangerous shower stall and basin had caused decedent to slip and fall is insufficient to establish a causal relationship between defendant’s alleged negligence and decedent’s injuries.

Finally, plaintiff argues that the trial court applied an incorrect standard in determining that circumstantial evidence offered by plaintiff was insufficient to defeat Twin Orchard’s motion for summary judgment. The standard to be used by the trial court is whether there is an issue of fact which precludes summary judgment in favor of the movant and whether pleadings, depositions and other evidence show that, at trial, a verdict would have been directed. (Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 816-17.) The court charged with determining whether the movant is entitled to summary judgment will construe the pleadings, depositions and affidavits strictly against the movant and liberally in favor of the opponent. (Kolakowski v. Voris (1980), 83 Ill. 2d 388, 398.) Plaintiff relies on Wright v. Stech (1972), 7 Ill. App. 3d 1068, as being analogous with the case at bar, since in both cases there were no eyewitnesses and, therefore, no direct evidence to prove causation. However, in Wright, testimony concerning the facts could lead the jury to reasonably conclude that the cause of Wright’s fall was the condition of the dark and littered stairwell. In the present case there was testimony that Morrie had been unsteady on his feet and required assistance to reach the shower area. Additionally, he used the locker room walls to steady himself and prevent falling. Even without consideration to the Kellman affidavit, we believe that it is reasonable to conclude that several factors may have caused decedent’s fall. Again, the circumstantial evidence, i.e., the condition of the shower stall, the position of decedent’s body after the fall, and the medical testimony, does not establish with reasonable certainty that decedent’s injury was the proximate result of defendant’s negligence. Since plaintiff did not sustain her burden of making a prima facie case, the trial court properly granted defendant’s motion for summary judgment.

Accordingly, we hold that the entry of summary judgment was proper in this case and we affirm the judgment entered by the trial court.

Affirmed.

McMORROW, RJ., and LINN, J., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    JOY V. MILLER, Plaintiff-Appellant, v. MOTOROLA, INC., Defendant-Appellee.
    First District (1st Division)
    No. 1—89—1178
    Opinion filed July 23, 1990.

      Stanley H. Jakala, of Berwyn, for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Michael L. McCluggage, Georgia L. Vlamis, and Michael J. Bolton, of counsel), for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Joy Y. Miller (plaintiff) filed an action in the circuit court of Cook County against her employer, Motorola, Inc. (defendant), seeking recovery for damages resulting from defendant’s disclosure of her mastectomy surgery to plaintiff’s co-employees. Plaintiff appeals from the circuit court’s order dismissing her complaint with prejudice pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—615), contending that her pleadings support claims for the torts of public disclosure of private facts and unreasonable intrusion into the seclusion of another.

Plaintiffs asserted claims comprise two of the four branches of the common law torts for the invasion of privacy rights as set forth in the Restatement (Second) of Torts: (1) an unreasonable intrusion upon the seclusion of another; (2) an appropriation of another’s name or likeness; (3) a public disclosure of private facts; and (4) publicity which reasonably places another in a false light before the public. (Restatement (Second) of Torts §§652B, 652C, 652D, 652E, at 378-94 (1977); W. Keeton, Prosser & Keeton on Torts §117, at 849-69 (5th ed. 1984).) The few Illinois appellate courts which have confronted claims under the public disclosure branch have recognized the cause of action (Midwest Glass Co. v. Stanford Development Co. (1975), 34 Ill. App. 3d 130, 339 N.E.2d 274; Geisberger v. Willuhn (1979), 72 Ill. App. 3d 435, 390 N.E.2d 945), while the appellate courts facing claims under the intrusion branch disagree regarding whether such a cause of action should be recognized in Illinois (compare Mucklow v. John Marshall Law School (1988), 176 Ill. App. 3d 886, 531 N.E.2d 941 (recognizing an intrusion cause of action); Melvin v. Burling (1986), 141 Ill. App. 3d 786, 490 N.E.2d 1011 (recognizing an intrusion cause of action); Bank of Indiana v. Tremunde (1977), 50 Ill. App. 3d 480, 365 N.E.2d 295 (implicitly recognizing an intrusion cause of action); with Kelly v. Franco (1979), 72 Ill. App. 3d 642, 391 N.E.2d 54 (intrusion cause of action not recognized); Bureau of Credit Control v. Scott (1976), 36 Ill. App. 3d 1006, 345 N.E.2d 37 (intrusion cause of action not recognized)).

Considering first plaintiff's public disclosure claim, this cause of action is defined by the Restatement (Second) of Torts as follows:

“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of a legitimate concern to the public.” (Restatement (Second) of Torts, §652D (1977).)

To state a cause of action for this tort, the plaintiff must plead and prove that (1) publicity was given to the disclosure of private facts; (2) the facts were private, and not public, facts; and (3) the matter made public was such as to be highly offensive to a reasonable person. (W. Keeton, Prosser & Keeton on Torts §117, at 856-57 (5th ed. 1984).) The parties here dispute whether the first and third requirements have been adequately pled.

Plaintiffs complaint alleges that she consulted with defendant’s resident nurse, Felicia Masters, relative to three leaves of absence taken by plaintiff from 1984 to 1986 to undergo mastectomy and reconstructive surgeries and that Masters advised her during those consultations that her medical information would be confidential. The complaint further alleges that plaintiff, who did not consent to the release of any of her medical information which was maintained at defendant’s place of business, was told by a co-employee on or about October 1, 1987, that she had been informed of plaintiff’s mastectomy. As a result of defendant’s disclosure and plaintiff’s belief of the awareness by numerous other employees of her condition, the complaint alleges that plaintiff suffered severe physical, mental and emotional distress and took an early retirement from her 23-year employment with defendant.

Defendant argues that these allegations are insufficient to show that any private facts were publicized because Illinois law requires the disclosure be widespread and that the communication be written. The sole Illinois authority cited by defendant to support its assertion is Midwest Glass Co. v. Stanford Development Co. (1975), 34 Ill. App. 3d 130, 339 N.E.2d 274, where the court found the plaintiff’s allegations of defendant’s oral and written communications to persons having an interest in certain condominium units regarding the plaintiff real estate company’s failure to pay for mirrors installed by defendant in the units did not state a cause of action for the public disclosure of a private debt. Citing cases from other jurisdictions, the court noted that oral communications cannot be a basis for an invasion of privacy action involving attempts to collect debts. The court, after stating that the privacy right is subject to limitations where legitimate interests are involved and acknowledging the creditor’s right to take reasonable action to persuade payment, further noted that the notices of indebtedness there were disseminated not to the general public but only to a limited number of persons who had a natural and proper interest in the ability and reputation of plaintiff to pay its debt. Midwest, 34 Ill. App. 3d at 134-35, 339 N.E.2d at 277-78.

We do not read Midwest as establishing the general elements asserted by defendant for meeting the publicity requirement in all public disclosure cases. Rather, the decision appears to be an attempt to reconcile a person’s privacy rights with the legitimate interests of creditors and other interested parties to a person’s indebtedness. As Illinois courts have not yet delved into the necessary elements to establish the “publicity” requirement in public disclosure cases, we will turn to other authorities to assist our determination here.

The comments to the Restatement (Second) of Torts state the following as to the publication requirement:

“[Public disclosure] *** means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. ***
Thus it is not an invasion of the right of privacy *** to communicate a fact concerning the plaintiff’s private life to a single person or even to a small group of persons. On the other hand, any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give publicity [to a private fact].” (Restatement (Second) of Torts §652D, comment a, at 384-85 (1977).)

We agree with the Restatement’s appreciation of the importance of a person’s privacy with regard to oral communications as well as written communications and its recognition that it is the extent of the communication that is dispositive of whether the communication is publicized.

The Restatement indicates that the required communication must be more than that made to a small group; rather, the communication must be made to the public at large. In acknowledging this general requirement, however, some courts have recognized the need for flexibility in the application of the Restatement’s theory to permit recovery for egregious conduct. (See McSurely v. McClellan (D.C. Cir. 1985), 753 F.2d 88.) These courts have realized that in circumstances where a special relationship exists between the plaintiff and the “public” to whom the information has been disclosed, the disclosure may be just as devastating to the person even though the disclosure was made to a limited number of people. (McSurely, 753 F.2d at 112; Beaumont v. Brown (1977), 401 Mich. 80, 104-15, 257 N.W.2d 522, 531.) The court in Beaumont explained:

“Communication of embarrassing facts about an individual to a public not concerned with that individual and with whom the individual is not concerned obviously is not a ‘serious interference’ with plaintiff’s right to privacy, although it might be ‘unnecessary’ or ‘unreasonable’. An invasion of a plaintiff’s right to privacy is important if it exposes private facts to a public whose knowledge of those facts would be embarrassing to the plaintiff. Such a public might be the general public, if the person were a public figure or a particular public such as fellow employees, club members, church members, family, or neighbors, if the person were not a public figure.” (Beaumont, 401 Mich, at 104-05, 257 N.W.2d at 531.)

We adopt the position of the above authorities that the public disclosure requirement may be satisfied by proof that the plaintiff has a special relationship with the “public” to whom the information is disclosed. Plaintiffs allegation that her medical condition was disclosed to her fellow employees sufficiently satisfies the requirement that publicity be given to the private fact.

Turning now to defendant’s argument that the pleadings are insufficient to show that the matter disclosed would be objectionable or highly offensive to a reasonable person of ordinary sensibilities, we cannot say as a matter of law that the disclosure of an operation of such a personal nature would not be highly offensive to the reasonable person. Thus, the issue presents a question of fact for the jury to determine.

While we find that plaintiff’s pleadings sufficiently state a cause of action for public disclosure of private facts, we do not believe the factual allegations fit into the second category of the privacy torts asserted by plaintiff. The Restatement (Second) of Torts describes the tort of the unreasonable intrusion upon the seclusion of another in the following manner:

“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” (Restatement (Second) of Torts §652B, at 378 (1977).)

Illinois courts which have recognized such a cause of action have outlined the following elements necessary to be pled and proven by the plaintiff: (1) an unauthorized intrusion or prying into the plaintiff’s seclusion; (2) the intrusion must be offensive or objectionable to a reasonable person; (3) the matter upon which the intrusion occurs must be private; and (4) the intrusion causes anguish and suffering. (Mucklow, 176 Ill. App. 3d at 893-94, 531 N.E.2d at 946; Melvin, 141 Ill. App. 3d at 789, 490 N.E.2d at 1013-14.) Plaintiff’s factual allegations do not satisfy this action’s unauthorized intrusion element. The alleged wrongful actions involve the dissemination or publication of information voluntarily provided to defendant by plaintiff, not defendant’s unauthorized intrusion. Thus, without expressing a view as to the appellate court conflict regarding the recognition of this cause of action, we hold that the alleged actions here do not constitute an unreasonable intrusion into the seclusion of another.

Accordingly, we reverse the circuit court’s order granting defendant’s motion to dismiss with prejudice and remand the cause for further proceedings on plaintiff’s complaint alleging the tort of public disclosure of private facts.

Reversed and remanded.

CAMPBELL and O’CONNOR, JJ., concur.


author: JUSTICE RAKOWSKI

text:
    SANTE IACOVELLI, Plaintiff-Appellant, v. FIRST SECURITY TRUST AND SAVINGS BANK, Defendant-Appellee.
    First District (6th Division)
    1—89—3048
    Opinion filed July 27, 1990.
    Rehearing denied October 5, 1990.

      Cheryl M. Berdelle, of Berdelle, Schirmer & Fisher, of Oak Park, for appellant.
    Edward J. Bradley, Jr., of Bradley & Bradley, of Chicago, for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

The subject of this appeal is an order entered by the circuit court of Cook County denying plaintiffs motion for a judgment notwithstanding the verdict on the issue of damages. The issue on appeal is whether the denial of plaintiff’s motion was proper.

On July 9, 1983, the plaintiff’s father, Louis Iacovelli, who is now deceased, opened a money market account with First Security Trust and Savings Bank (First Security). Shortly thereafter, plaintiff’s name was added to the account as a joint owner. On August 24, 1986, plaintiff’s stepmother, Josephine Iacovelli, presented a check from the money market account to James Frank, the assistant cashier with First Security. She then asked Frank to withdraw $10,917.60, which was the total amount of funds in the account, and deposit the money in a new account to be opened in her name. Josephine Iacovelli wrote her name on the check as payee as well as the amount of money to be transferred. When the check was accepted by First Security for processing, Louis Iacovelli’s name was written on it as the payor. However, Frank acknowledged in his trial testimony that the signature did not appear to be that of decedent. At the time of this transaction, Josephine Iacovelli was not a signatory on the money market account.

Plaintiff subsequently filed suit against First Security, alleging that the bank violated article 4 of the Uniform Commercial Code (Ill. Rev. Stat. 1985, ch. 26, par. 4—101 et seq.) by wrongfully accepting payment, transfer or withdrawal of the check at issue without the authorized signature of Louis Iacovelli or plaintiff. At the trial, Josephine Iacovelli testified that she was instructed by the decedent to have Frank close the money market account and transfer the funds into an account in her name. The trial court instructed the jury, in accordance with its prior ruling on a motion in limine by plaintiff, to consider the testimony as evidence only that the conversation took place and not for the truth of the matter asserted. Josephine Iacovelli further testified that when she returned from the bank her husband asked if the funds had been transferred, and that he replied “good” when told that it had been done. At the close of the evidence, plaintiff requested a directed verdict against First Security. The trial court ruled in plaintiffs favor, finding First Security liable but submitted the issue of damages to the jury. The jury awarded plaintiff $5 in damages and found in its answer to a special interrogatory that Louis Iacovelli authorized Josephine Iacovelli to sign his name to the check at issue. Plaintiff then filed a motion for judgment notwithstanding the verdict on the issue of damages which the trial court denied.

Plaintiff contends that the trial court’s denial of his motion for a judgment notwithstanding the verdict was improper where the court directed a verdict against First Security on the issue of liability, the amount of plaintiff’s loss was $10,917.60 but the jury only awarded plaintiff $5 in damages. There is a high standard of contractual responsibility placed upon a bank to pay checks in strict accordance with the directions of its depositors, and the bank may not legally pay out funds without the required approval and signature. (Spec-Cast; Inc. v. First National Bank & Trust Co. (1989), 128 Ill. 2d 167, 172, 538 N.E.2d 543.) Based on the rules governing this relationship, a bank is liable when it makes payments from a depositor’s account which are not in compliance with a depositor’s orders. (Spec-Cast, Inc., 128 Ill. 2d at 172.) “The measure of damages for failure to exercise ordinary care in handling an item is the amount of the item reduced by an amount which could not have been realized by the use of ordinary care, and where there is bad faith it includes other damages, if any, suffered by the party as a proximate consequence.” Ill. Rev. Stat. 1985, ch. 26, par. 4—103(5).

In this case, the court found that First Security was liable for the payment of the funds from the money market account to Josephine Iacovelli. The amount of funds in this account was $10,917.60. Because there was no evidence that this amount was reduced by an amount which could not have been realized through the exercise of ordinary care, plaintiffs loss was the total amount of funds in the account. Marquette National Bank v. Heritage Pullman Bank & Trust Co. (1982), 109 Ill. App. 3d 532, 535, 440 N.E.2d 1033; Maier-Lavaty Co. v. Aetna State Bank (1928), 247 Ill. App. 419, 425-26.

First Security contends that the damage award of $5 was proper where the decedent authorized Josephine Iacovelli to write his name as payor of the check and transfer the money market funds into her own account. Defendant further reasons that because the decedent intended to give the money from the account to his wife Josephine, plaintiff incurred no loss when the money was removed from the account.

However, the trial court directed a verdict against First Security on the issue of negligence based on its payment of funds from the money market account without authorization of the depositors. One of the elements of negligence is the damages which result from the negligent conduct. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 374, 308 N.E.2d 617.) Therefore, when the trial court directed a verdict against First Security, a determination was made that Josephine Iacovelli was not authorized to sign decedent’s name to the check, and that plaintiff incurred damages as a result of First Security’s negligence in transferring the funds from the money market account to an account in Josephine Iacovelli’s name. Because the amount of the unauthorized payment was $10,917.60, and there was no evidence that this amount could not have been realized through the use of ordinary care, this is the full amount of plaintiff’s damages. We, thus, conclude that the evidence regarding the proper amount of damages, even when viewed most favorably to the opponent, so overwhelmingly favors the movant that no contrary verdict could stand. Therefore, the trial judge’s denial of plaintiff’s motion for a judgment notwithstanding the verdict was error. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

The majority of cases cited by First Security are based on the issue of liability rather than damages which, for the reasons set forth above, are inapplicable. However, see V.D.S. Corp. v. Alton Banking & Trust Co. (1959), 20 Ill. App. 2d 309, 155 N.E.2d 819, which addressed the issue of damages and held that the proper amount of damages was the amount of the depositor’s loss actually proven.

Although First Security raises the issue on appeal that the trial court erred in directing a verdict against it, this issue is not properly before this court where First Security as the appellee has attempted to challenge a judgment against it without filing a cross-appeal. Ab dul-Karim v. First Federal Savings & Loan Association (1984), 101 Ill. 2d 400, 412, 462 N.E.2d 488; Ruff v. Industrial Comm’n (1986), 149 Ill. App. 3d 73, 79, 500 N.E.2d 553.

Accordingly, the judgment of the circuit court on the issue of damages is reversed, and the cause is remanded for the entry of judgment in plaintiff’s favor for $10,917.60 plus court costs.

Judgment reversed and remanded.

LaPORTA, P.J., and EGAN, J., concur.


author: JUSTICE O’CONNOR

text:
    THE DEPARTMENT OF CONSERVATION, Plaintiff-Appellee, v. HENRY CIPRIANI et al., Defendants (Margaret Dash et al., Defendants-Appellants).
    First District (1st Division)
    No. 1—89—1928
    Opinion filed August 6, 1990.
    Rehearing denied September 26, 1990.
    Modified opinion filed October 9, 1990.

      William M. Doty, Jr., James R. Platt, and William J. Harte, all of Chicago, for appellants.
    Neil F. Hartigan, Attorney General, of Springfield, and Earl L. Neal & Associates, of Chicago (Terrance Lee Diamond, Special Assistant Attorney General, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Pursuant to section 2—1401 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401), Margaret Dash, Mary Lou Doyle, and First Bank of Oak Park (defendants) sought relief from a judgment entered in the circuit court of Cook County in an eminent domain action. The section 2 — 1401 petition was denied and defendants appeal.

On April 19, 1982, the Department of Conservation (the Department) filed suit to acquire by eminent domain defendants’ property, which is located one block north of 31st Street on the west side of Wolf Road in the City of Westchester. The jury trial commenced on September 9, 1986. The Department argued that defendants’ property value was reduced and the cost of any use would be prohibitive since the property was identified by the Federal Emergency Management Agency (FEMA) as an “Area of Special Flood Hazard” in a 1979 “Flood Insurance Study” (FIS), which generated the “Flood Insurance Rate Map” and “Flood Hazard Boundary Map.” The 1979 FIS was based upon a study completed by the U.S. Soil Conservation Service (SCS) in 1977. It is uncontested that the 1979 FIS findings were published in the Federal Register and became effective in 1980.

At trial, the Department’s witnesses relied on the 1979 FIS in forming their opinions regarding the defendants’ property’s use and value. The Department’s witnesses all stated that according to the 1979 FIS, the defendants’ property was in the flood plain and that, therefore, no one could build on the land. Also at trial, defendants’ expert engineer, R.W. Lindley, testified that FEMA’s flood insurance and flood boundary maps were “an exaggeration.” On cross-examination, Lindley testified that he thought the FEMA flood maps were “wrong.” Additionally, defendants’ attorney argued that FEMA’s flood maps were wrong. On September 15, 1986, the jury returned its verdict and judgment was entered awarding the defendants $62,750 for their property, rather than the significantly higher amount sought by the defendants.

On July 11, 1988, FEMA issued a “Letter of Map Revision” (the LOMR), which is the basis of defendants’ section 2 — 1401 petition. The July 11, 1988, LOMR responded to Mr. Lindley’s letter dated April 30, 1988, wherein Mr. Lindley requested that FEMA determine whether the area northwest of the intersection of 31st Street and Wolf Road lies within the special flood hazard area. Mr. Lindley provided data to support his request that included information on the watershed conditions that existed in 1977 when the SCS study was completed. The July 11, 1988, LOMR states that “between 1970 and 1982," the Sexton Landfill, which covered 0.44 square mile of the watershed, was in operation. Drainage from the landfill area *** did not contribute to the floodflows. *** The drainage area used in the SCS study did not exclude runoff from the landfill.” Therefore, FEMA admits in the July 11, 1988, LOMR, that “the resulting 100-year peak discharges, the base flood elevations and floodway used in the FIS for Westchester did not reflect the conditions that existed at the time of the study.”

On September 14, 1988, defendants filed their section 2 — 1401 petition to set aside the trial court’s judgment, arguing that the 1979 FIS was extensively relied upon at trial, was wrong, and had been subsequently revised by FEMA in the 1988 LOMR. Defendants contended that the 1988 FEMA findings are of the land as it existed at the time of the trial in 1982, and, therefore, the 1988 LOMR constituted newly discovered evidence because defendants’ property should have been excluded from the flood plain in the 1979 FIS. Accordingly, defendants contended that their property should have been valued higher than the amount awarded by the trial court. Lindley’s affidavit accompanied the section 2 — 1402 petition wherein he states that the LOMR “indicates that the [FIS] did not reflect the conditions that existed at the time it was originally made,” and the 1988 LOMR “demonstrates that the [FIS] was erroneous when made, and continued to be erroneous until revised July 11, 1988.”

On March 8, 1989, FEMA responded to a letter dated October 15, 1988, from Ms. Valerie Spalem, executive director, Save the Prairie Society, wherein she appealed the 1988 LOMR for the Village of Westchester. In FEMA’s 1989 letter, FEMA states that “[w]e have reviewed the materials submitted by [Save the Prairie Society] and have determined that they do not contain sufficient quantitative data to warrant reconsideration of the revised base flood elevations that were established in our LOMR.” FEMA attached an addendum to its 1989 letter which summarized a review of its studies. The addendum included the statement that “[t]he information provided our LOMR *** is intended to reflect current conditions in the watershed. As watershed conditions change in the future, the data can be submitted for our review and the FIS further revised as necessary.”

On June 15, 1989, the trial court summarily denied defendants’ section 2 — 1401 petition for a new trial without making any findings. Defendants appeal.

Defendants argue that the court abused its discretion by summarily dismissing their well-pled section 2—1401 petition. We agree. Section 2 — 1401 of the Code of Civil Procedure provides a simple petition process affording parties, when appropriate, “[r]elief from final orders and judgments, after 30 days from the entry thereof.” (Ill. Rev. Stat. 1985, ch. 110, par. 2—1401.) The section 2—1401 petition is addressed to the equitable powers of the trial court (People v. Alfano (1981), 95 Ill. App. 3d 1026, 1029-30, 420 N.E.2d 1114) and allows a party to bring before the court matters unknown to both the parties and the court at the time of judgment which would have precluded its entry. (Goncaves v. Saab (1989), 184 Ill. App. 3d 952, 956, 538 N.E.2d 142, 144, citing Manning v. Meier (1983), 114 Ill. App. 3d 835, 449 N.E.2d 560.) As the Department correctly noted, courts have long held that a section 2 — 1401 petition is not to be used as a device to relitigate issues already decided, or to put in issue matters which have previously been or could have been adjudicated since there is a strong judicial policy favoring the finality and stability of judgments. (Malek v. Lederle Laboratories (1987), 152 Ill. App. 3d 493, 497, 504 N.E.2d 893, 895, citing Union National Bank & Trust Co. v. Green (1979), 80 Ill. App. 3d 32, 34-35, 399 N.E.2d 313.) While section 2 — 1401 was never intended to give a party a new opportunity to do that which should have been done at an earlier proceeding, it was developed to provide trial courts with equitable powers necessary to grant relief and prevent injustice. Malek v. Lederle Laboratories (1987), 152 Ill. App. 3d 493, 497, 504 N.E.2d 893, 895.

We find that the trial court abused its discretion in summarily dismissing the section 2 — 1401 petition since the defendants properly alleged: (1) the existence of a meritorious claim or defense; (2) due diligence in presenting that claim or defense in the original action; (3) due diligence in presenting the section 2 — 1401 petition; and (4) misapprehension-of the circuit court with regard to the facts at the time the challenged order or judgment was entered. Gayton v. Levi (1986), 146 Ill. App. 3d 142, 148, 496 N.E.2d 1045.

First, the defendants have sufficiently pled the existence of a meritorious defense to the original action by alleging that the 1988 LOMR constitutes new evidence which would have affected their property’s valuation at the time of trial in 1982 by demonstrating that their property was improperly included in the flood plain. We do not find the Department’s contention that FEMA’s 1989 letter indicates that the 1988 LOMR only reflects the land’s current conditions, rather than those in 1982, persuasive because of explicit statements to the contrary in the 1988 LOMR. The July 11, 1988, LOMR clearly states that the 1979 FIS was revised because the 1979 FIS relied upon the erroneous 1977 SCS study, which did not accurately reflect the then-current conditions. Additionally, after reviewing FEMA’s statement in context of the 1989 letter, we do not find the Department’s contention persuasive because the 1989 letter merely responded to Save the Prairie’s appeal to amend the 1988 LOMR, rejected the data which was submitted therewith, and indicated its willingness to consider evidence of changed conditions in the future. Therefore, we find that the 1988 LOMR constitutes new evidence because it indicates that the 1979 FIS was wrong on the grounds that the 1979 FIS was based upon the erroneous 1977 SCS study, and improperly included defendants’ property in the flood plain.

Relying on Russell v. Klein (1974), 58 Ill. 2d 220, 317 N.E.2d 556, the Department contends that the 1988 LOMR cannot constitute “new evidence” because the 1988 LOMR clearly arose subsequent to the entry of judgment and that section 2 — 1401 relief is only available to matters which antedate the judgment. However, reviewing courts have considered facts occurring subsequent to a judgment and have distinguished Russell. (Hopkins v. Holt (1990), 194 Ill. App. 3d 788, 796, 551 N.E.2d 400; Saeed v. Bank of Ravenswood (1981), 101 Ill. App. 3d 20, 26, 427 N.E.2d 858, 861-63.) Specifically, the Saeed court held that the Russell statement, that section 72 (now section 2—1401) relief based on subsequent matters was unavailable, had been taken out of context and only meant that the common law writ was encompassed by section 72 to the extent that the relief sought pertained to matters in existence before the judgment so that the two-year limitation did not apply to matters arising subsequent to judgment. (Saeed, 101 Ill. App. 3d at 26.) Accordingly, for the reasons set forth above, the 1988 LOMR constitutes new evidence. Moreover, the trier of fact undoubtedly found the 1979 FIS reliable and credible since the study was executed pursuant to Federal statute, 42 U.S.C. section 4101 et seq. (1982), by a Federal agency, and published in the Federal Register. Even if the defendants could have introduced evidence that explained why the 1979 FIS was wrong and that the defendants’ property had a much greater value than if the property had been in the flood plain, a rational trier of fact surely would have given the 1979 FIS great weight because a Federal agency had made the findings and published them in the Federal Register. The trier of fact, at a new trial, should ultimately determine what impact the 1988 LOMR had on the valuation of the defendants’ property in 1982.

Second, the defendants have sufficiently pled that the failure to discover and present evidence that the 1979 FIS incorrectly portrayed defendants’ property in the original action was not the result of defendants’ lack of diligence, by alleging that the 1988 LOMR was not discoverable until FEMA reconsidered the original flood plain determination in 1988. The Department, however, contends that the defendants did not diligently convey information concerning the erroneous flood plain determination to FEMA since at trial Lindley merely testified that in his opinion the 1979 FIS was an “exaggeration” and was “wrong.” We find that the trier of fact should determine whether the defendants acted diligently. Specifically, the trier of fact should determine whether the defendants acted reasonably diligently in discovering that the 1979 FIS was wrong and in disseminating that information. Additionally, the trier of fact, who would consider the time and bureaucratic constraints that are necessary to any change in a Federal agency’s position, should determine whether the defendants acted reasonably diligently in trying to change FEMA’s position concerning the flood plain. Even if the defendants had been somewhat lax by not discovering and asserting a detailed analysis explaining why their expert opined that the 1979 FIS was wrong, the requirement of diligence should not be rigidly enforced when justice and equity are served. (See Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 228-29, 499 N.E.2d 1381.) Assuming the accuracy of the 1988 LOMR, which is to be determined by the trier of fact, the trial below was fundamentally unfair since the Department presented and relied, albeit unknowingly, on erroneous Federal findings that defendants’ property was in the flood plain. (See Goncaves v. Saab (1989), 184 Ill. App. 3d 952, 538 N.E.2d 142, 145-46.) Again, assuming the accuracy of the 1988 LOMR, the trial below was fundamentally unfair even if the defendants had presented evidence at trial and to FEMA that the 1979 FEMA findings were wrong because the trier of fact would nevertheless be unduly influenced by the weight of the incorrect 1979 FEMA findings.

Third, defendants acted diligently in presenting their section 2— 1401 petition because their section 2 — 1401 petition was filed soon after discovering the 1988 LOMR and within two years of the final judgment in the trial below.

Finally, the defendants have sufficiently pled that the circuit court misapprehended that their land was in the flood plain at the time the judgment was entered by alleging that the trial court heard substantial evidence that defendants’ property was in the flood plain, which was based on the 1979 FIS, and that the 1988 LOMR states that the 1979 FIS was erroneous, did not reflect the then current conditions, and improperly included defendants’ property in the flood plain.

In conclusion, the trial court erred in summarily dismissing the defendants’ section 2 — 1401 petition because the 1988 LOMR constituted new evidence of the type required pursuant to section 2 — 1401. The trial court must specifically resolve the following questions of fact: (1) whether the defendants acted reasonably diligently in discovering that the 1979 FIS was wrong; and (2) whether the defendants acted reasonably diligently in trying to change FEMA’s position concerning the flood plain. If those questions of fact are answered affirmatively, then the defendants are entitled to a new trial based upon the general principles of equity that underlie section 2 — 1401.

Reversed and remanded.

BUCKLEY, RJ., and CAMPBELL, J., concur.

      Pursuant to the National Flood Insurance and Flood Disaster Protection Acts of 1973, the Federal Emergency Management Agency (FEMA) is required to conduct flood insurance studies and to develop flood risk data for flood insurance premium and flood plain management purposes. 42 U.S.C. §4101 et seq. (1982).

      “ ‘Area of Special Flood Hazard’ is the land in the flood plain within a community subject to a one percent or greater chance of flooding in any given year.” 44 C.F.R. §§60.8, 59.1 (1989).

      “ ‘Flood Insurance Rate Map’ (FIRM) means an official map of a community on which the [Federal Insurance] Administrator has delineated both the special hazard areas and the risk premium zones applicable to the community.” 44 C.F.R. §§60.8, 59.1 (1989).

      “ ‘Flood Hazard Boundary Map’ (FHBM) means an official map of a community, issued by the [Federal Insurance] Administrator, where the boundaries of the flood *** related *** areas having special hazards have been designated ***.” 44 C.F.R. §§60.8, 59.1 (1989).