text:
    CHRISTOPHER GREEN, Plaintiff-Appellee, v. CHICAGO PARK DISTRICT, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 92—0640
    Opinion filed June 7, 1993.

      Nelson A. Brown, Jr., of Chicago Park District, of Chicago, for appellant.
    Schaffner, Rabinowitz & Feinartz, P.C., of Chicago, for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Louise Green brought a second-amended complaint against the Chicago Park District on behalf of her minor son, Christopher, for injuries he sustained after falling from a slide in a park playground. She also filed a third-party complaint to recover medical expenses that she alleged were necessary to care for Christopher. After the jury returned with verdicts in favor of Christopher and Louise, the trial court entered judgment in their favor in the amount of $68,500 and $10,283.10, respectively. The trial court denied the park district’s post-trial motion seeking a judgment notwithstanding the verdict (judgment n.o.v.) or alternatively a new trial.

The park district now appeals the denial of its motion for judgment n.o.v. or a new trial. It contends that the trial court erred when it did not grant its motion for judgment n.o.v. because the evidence presented at trial was legally insufficient to support the verdict in favor of plaintiffs on a claim of willful and wanton conduct. (Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 412 N.E.2d 447.) The park district asserts that the heart of a willful and wanton charge is that the defendant intentionally desired to cause harm or possessed a deliberate and conscious disregard for the plaintiff’s safety. It argues that such a “state of mind” was not present here because plaintiffs failed to establish that the condition of the slide represented an “impending danger” or that the park district had actual or constructive notice of an impending danger prior to the accident. It further contends that, at most, the park district’s conduct constitutes only negligence and that Christopher may have a potential negligence claim against the manufacturer of the slide, rather than a willful and wanton claim against it. Thé park district adds that by showing a regular inspection of the playground equipment, it negated the possibility for plaintiffs to show “utter indifference.” Finally, they maintain that the jury verdict is against the manifest weight of the record evidence, which entitles it to a new trial. See Tedrowe v. Burlington Northern, Inc. (1987), 158 Ill. App. 3d 438, 511 N.E.2d 798.

The standard of review for denial of a motion for judgment n.o.v. is well settled. A judgment n.o.v. can only be granted where all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.

In reviewing the record evidence and applying the Pedrick standard to the instant facts, we find that the trial court did not err by denying the park district’s motion for judgment n.o.v.. As stated, the park district asserts that plaintiffs failed to establish or sustain their claim sounding in willful and wanton misconduct.

As a local public entity, the park district is entitled to the protection of the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (Ill. Rev. Stat. 1987, ch. 85, par. 1 — 101 et seq.). Section 3 — 106 of the Act provides:

“Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.” Ill. Rev. Stat. 1987, ch. 85, par. 3 — 106.

The Act defines willful and wanton conduct as a course of action which shows an actual or deliberate intention to cause harm or a course of action which shows an utter indifference to or conscious disregard for the safety of others. (Ill. Rev. Stat. 1987, ch. 85, par. 1— 210.) Initially, the Illinois Supreme Court explained that “willful and wanton negligence” means “failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness, or carelessness when it should have been discovered by ordinary care.” (Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 429, 412 N.E.2d 447.) Recently, however, the supreme court reexamined the meaning of the term “willful and wanton” under Illinois law. In Burke v. 12 Rothschild’s Liquor Mart, Inc. (1992), 148 Ill. 2d 429, 593 N.E.2d 522, the court stated that willful and wanton conduct approaches the degree of blame associated with intentional harm, because the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious disregard of that risk. (Burke, 148 Ill. 2d at 448.) The court further recognized the Restatement (Second) of Torts’ characterization of such conduct as “reckless.”

In quoting the Restatement, the Burke court explained that' “ ‘[reckless misconduct] differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man.’ ” (Emphasis added.) (Burke, 148 Ill. 2d at 449-50, quoting Restatement (Second) of Torts §500, Comment g, at 590 (1965).) In addition to the Burke decision, we have examined several opinions of this court that have dealt with the issue of whether or not plaintiff sustained his or her claim sounding in willful and wanton negligence against a public entity. Our research has revealed that the majority of the cases on appeal came to this court in a different procedural posture, in instances where the trial court had granted defendant’s motion for summary judgment in reliance on the Act or where the trial court had dismissed plaintiff’s cause of action for failure to allege sufficient facts to constitute a cause of action. The present case proceeded to trial before a jury.

Reviewing the evidence presented in the court below, we first see that plaintiffs’ second amended complaint alleged, inter alia, that the park district acted willfully and wantonly by failing to repair a wobbling children’s slide; by failing to repair the ground supporting the children’s slide which caused the slide to wobble; by failing to remedy or repair the dangerous and hazardous wobbly condition of the slide and cracked surface supporting the slide; and by allowing the dangerous and hazardous wobbly condition of the slide and the cracked surface supporting the slide to continue where it had actual knowledge that said condition put plaintiff and others at risk of imminent harm and injury. Much like the case of Scarano v. Town of Ela (1988), 166 Ill. App. 3d 184, 520 N.E.2d 62, where the court held plaintiff pleaded sufficient facts to establish a duty on the part of defendants to protect plaintiff from defective aspects of a handrail on a sliding board, we believe plaintiffs here pleaded sufficient facts and presented sufficient evidence to show that the park district’s course of action constituted willful and wanton conduct proximately causing Christopher’s injuries.

In the case at bar, during the trial Christopher’s two sisters testified about the condition of the slide prior to the accident. One sister, Patricia, testified that “the concrete all around the park was real broken up” and that she observed in the summer of 1984 that some of the slides were shaky. Patricia also stated that she complained about the condition of the park several times and that the first complaint was made to a park district employee, Mr. Williams, on August 2, 1984.

Another sister, Aretha, who was 12 years old at the time of the accident, described the slide as being “a little wobbly” and the ground underneath the slide as “a little cracked up.” Aretha also described how the accident happened as follows: “The slide came out of the ground and went up then came back down. As it was coming back down, it threw him (Christopher) over the side of the sliding board.” Christopher said that when he saw his friend Johnnie go down the slide first, he saw it “shaking a bit.” When he stepped up the stairs of the slide, he did not notice anything unusual; however, when he was at the middle point on the slide, “it started shaking, then he fell off of it.”

Louise Green testified that she had a conversation with park district employees Williams and Hall one week following the accident. She testified that during that conversation Mr. Williams indicated he was aware of the loose condition of the sliding board. If a slide is defective and the defect causes a fall, a landowner may be liable for injuries sustained. See Scarano, 166 Ill. App. 3d 184; Kirby v. Macon Public School District No. 5 (1988), 169 Ill. App. 3d 416, 523 N.E.2d 643.

Accordingly, we believe the evidence here establishes that the park district was informed on at least one occasion prior to the accident that the slide in question and the general condition of the ground surrounding or underneath the playground equipment were in need of repair. One witness testified that she informed park district personnel of the shaky condition of the sliding board the summer prior to the accident and was told it would be fixed because the park district was going to do good things for the park later that year. See Scarano, 166 Ill. App. 3d at 190 (where the court there stated defendants knew of prior accidents). But compare Washington v. Chicago Board of Education (1990), 204 Ill. App. 3d 1091, 1094, 562 N.E.2d 541 (where the court found plaintiff’s allegations were conclusions unsupported by facts), and Majewski v. Chicago Park District (1988), 177 Ill. App. 3d 337, 341, 532 N.E.2d 409 (where the court found the conclusory statements were insufficient to support plaintiff’s count based on willful and wanton conduct by park district), with Straub v. City of Mt. Olive (1993), 240 Ill. App. 3d 967, 607 N.E.2d 672 (where this court held plaintiff should have been permitted to proceed on the willful and wanton claim since the pleadings properly alleged the dangerous condition that caused her accident and that defendants had notice or knowledge of any hazards).

Further, in the instant case, other witnesses for the plaintiffs testified as to the wobbly condition of the slide prior to the accident and on the day of the accident. They also testified about the broken ground throughout the park and underneath the slide. Although our courts have held that an asphalt surface beneath a slide is, in itself, an inadequate basis for liability (see Alop v. Edgewood Valley Community Association (1987), 154 Ill. App. 3d 482, 507 N.E.2d 19), the situation here involves a defective slide coupled with broken concrete, indicating a possible inadequate foundation to support the slide, in addition to the existence of the asphalt surface itself.

We also recognize that the record shows the park district presented evidence which contradicts plaintiff’s version in some aspects. Mr. Spears, a recreational leader at the playground who had the responsibility for carrying out a “program of inspection of playground equipment in the playlot,” testified that he inspected all four slides in 1985 at least once a week. Mr. Spears stated he first learned about the accident on March 14, 1985, at which time he completed an accident report by recording the information given to him by Louise. Spears also testified that at that time Louise did not mention a broken slide but merely “said Christopher had just fallen off the sliding board and he slid down the slide and slipped all the way off.” However, according to Aretha, she and her sister Patricia reported the accident to Mr. Williams on the same day as the incident.

The evidence also reveals that Mr. Francis, an assistant foreman for general trades for the park district, testified that it was his responsibility to conduct “work order meetings” and to oversee the computer program which recorded the repair and maintenance work completed by the various trades on park district property and equipment. The park district introduced into evidence a computer printout showing the work conducted by the various trades at the Chatman Park in 1985 and that Mr. Francis found no entry showing that any repair work had been done there on slides in 1985. Nor did he find an entry showing that asphalt or concrete work had been done in the park in 1985. Mr. Bronkhorst, an investigator of injury claims for the park district, testified that on April 10, 1985, he inspected all the slides at the park and observed that “all four slides were in very good condition.”

Based on the foregoing, we are in agreement with the park district that the testimony of the witnesses below was of a conflicting nature. However, it was presented before the trier of fact, the jury, and the matter of credibility of witnesses is a matter for the trier of fact. The park district established its policy of inspection of the park and slides and presented evidence that no repairs had been made during the. time period in question. Yet, plaintiff’s evidence revealed a contrary version and went further than alleging and establishing improper repair on the part of the park district (see Lester v. Chicago Park District (1987), 159 Ill. App. 3d 1054, 513 N.E.2d 72), or its failure to properly inspect (see Majewski v. Chicago Park District (1988), 177 Ill. App. 3d 337, 532 N.E.2d 409.). Additionally, the jury had before it photographs of the .scene of the accident. After hearing the testimony and the arguments of the parties, the jury rejected the park district’s version and determined that the combination of the condition of the slide and the ground underneath the slide, coupled with the forewarning and acknowledgment of the same, sufficiently constitute knowledge of impending danger. See Muelleman v. Chicago Park District (1992), 233 Ill. App. 3d 1066, 600 N.E.2d 48.

In Madigan v. Browning Ferris Industries (1978), 61 Ill. App. 3d 842, 378 N.E.2d 568, the court states that whether specific acts amount to willful and wanton conduct is ordinarily a question of fact for the jury. And only in an exceptional case will the issue of willful and wanton misconduct be taken from the jury’s consideration (see Pedersen v. Kinsley (1975), 25 Ill. App. 3d 567, 323 N.E.2d 562), or be ruled on as a question of law. See Glover v. City of Chicago (1982), 106 Ill. App. 3d 1066, 436 N.E.2d 623.

Similarly, having reviewed the record evidence below, we do not find that the jury's verdict is against the manifest weight of the evidence. Accordingly, based upon the evidence in view of the Pedrick standard and the jury’s finding and verdict that the Park District’s course of action constitutes willful and wanton conduct within the meaning of the Act, we affirm the trial court’s judgment entered upon the verdicts and find no error in its denial of defendant’s motion for judgment n.o.v.

Affirmed.

BUCKLEY and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    WILLIAM DEC et al., as Assignees of Michael G. Coan, Plaintiffs-Appellees, v. GEORGE MANNING, Defendant-Appellant.
    First District (1st Division)
    Nos. 1 — 91—2948, 1 — 92—2031 cons.
    Opinion filed May 24, 1993.
    Rehearing denied July 19, 1993.
    Modified opinion filed July 26, 1993.

      Terrence Michael Jordan, of Chicago, for appellant.
    Jody Ann Lowenthal, of Chicago, for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

In this consolidated appeal, we are presented with questions concerning the propriety of a default judgment predicated upon substituted service of process.

The procedural history of this case is both complex and confusing. On September 6, 1983, plaintiff Michael Coan filed his original complaint against defendant, George Manning, in which Coan alleged that Manning owed him $1,500 “earnest money never received” and $5,000 for “architect’s fees.” Following the return of two unserved summons, the circuit court appointed a special process server. On December 13, 1983, the summons was returned, reciting that Manning had been served by substituted service in that the complaint had been left with a family member. Manning never appeared in the action, and, on June 28, 1984, the circuit court entered judgment for Coan in the amount of $6,500.

Over the next three years, Coan attempted to enforce the judgment by filing several citations to discover assets. (See Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1402; 134 Ill. 2d Rules 277(b), (c).) These citations were returned unserved. During the same time, Coan experienced various financial difficulties, culminating in a bankruptcy action against him in Federal court. According to the settlement agreement reached in that action on August 30, 1989, Goan’s 1984 judgment against Manning was assigned to William Dec and Walter Aque.

In March 1990, Manning was served with an alias citation to discover assets. In response, Manning filed a motion to quash service of summons and set the motion to be heard in the circuit court on April 24, 1990. In his motion to quash, Manning stated that he was never served in the underlying action and had no knowledge of it. He asserted that he lived alone at the time of the alleged substituted service and that no one else resided in the building in which his apartment was located.

The record establishes that the hearing on Manning’s motion was continued several times until August 2, 1990. Prior to that date, Manning’s attorney, Terrence Jordan, wrote to Coan’s attorney, stating that he would be “out of town” on August 2, 1990. Jordan wrote that he was considering having “other counsel” appear for him on that date, and that if he was unable to make “appropriate arrangements,” he would “advance the case for hearing.” Apparently, no other arrangements were made because the court file’s “half sheet” indicates that on August 2, 1990, Coan’s attorney appeared and informed the trial judge that Jordan was “out of town.” Although Coan’s attorney “did not object” to a continuance, Manning’s motion was “stricken.”

No further action was taken in the case until February 15, 1991, when Manning filed a “notice of motion” which indicated that he would present the “attached Motion to Quash” to the court for a. hearing on March 6, 1991. That motion is exactly the same as Manning’s motion to quash service which had been stricken in August 1990. The record does not contain any response filed by Coan.

On March 6, 1991, the circuit court entered an order which allowed Dec and Aque, the assignees of Coan’s 1984 judgment, to intervene in the case and to substitute for Coan as the plaintiffs. In the same order, the court also granted Manning until April 6, 1991, to file an affidavit in support of his motion to quash service and set the motion to quash for hearing on May 21, 1991. Dec and Aque filed an amended motion to “strike renewed motion to quash.” The motion did not present any countervailing affidavits to rebut Manning’s affidavit regarding the service. Rather, Dec and Aque argued that Manning’s motion to quash should be stricken on the grounds that it violated Circuit Court Rule 2.3 (Cook Co. Cir. Ct. R. 2.3) and because Manning was guilty of laches. On May 29, the circuit court ruled that Manning failed to comply with Rule 2.3 and was guilty of laches. The court’s order indicates that, although the special process server was available in court to testify, he was not called due to the court’s disposition of the motion. The court granted Dec and Ague’s motion to strike Manning’s motion to quash and denied Manning’s motion to quash.

Manning subsequently filed a motion to reconsider, and, after its denial, filed a timely notice of appeal.

Meanwhile, during the period in which Manning sought reconsideration of the denial of his motion to quash, Dec and Aque sought to revive the 1984 judgment. (See Ill. Rev. Stat. 1989, ch. 110, par. 2— 1601.) Sheriff attempts to serve Manning proved unsuccessful, and the circuit court once again appointed a special process server. Manning was personally served on August 5, 1991. The record does not contain any appearance filed by Manning’s attorney in the revival action. On August 28, 1991, the circuit court ordered the revival of the 1984 judgment.

It is difficult to discern what exactly occurred following the entry of the revived judgment. The record indicates that Dec and Aque filed a “petition for turnover order.” However, a copy of the actual petition is not included in the record. At the scheduled hearing on the petition, the circuit court entered an order in which enforcement of the 1984 judgment was stayed “pending appeal and the posting of a bond.”

It appears that no further action took place in the case until March 1992, when Dec and Aque had the La Salle National Bank served with a third-party citation to discover assets. Evidently, the bank acted as trustee of a land trust in which Manning was the sole beneficiary. Manning filed a motion to dismiss the “supplemental” proceedings, arguing that the 1984 judgment was void because he was never served. The circuit court entered two orders on May 19, 1992. The first denied Manning’s motion to dismiss the “supplemental proceedings” and contained language finding no just reason to delay enforcement or appeal of the order. The second order granted Dec and Ague’s petition for the entry of a turnover. Manning also sought review of both of these orders by filing a timely notice of appeal. The appeals were consolidated by this court on July 20, 1992.

Dec and Aque initially suggest that Manning’s noncompliance with several supreme court rules concerning appellate procedure (see 134 Ill. 2d Rules 303(c)(2), 342) mandates the dismissal of this appeal. We have reviewed these claims and conclude that, although inartful and somewhat incomplete, Manning’s briefs and notice of appeal comply with the rules. That said, we do not condone, in any way, the sloppiness and the disorganization that characterize the briefs and the record which have been submitted by the parties to this court. Such appellate practice is a disservice to both the litigants and the court as it impedes expeditious review of the case. Additionally, we note the record on appeal is incomplete — many filings and orders are missing. An appellant has the burden to present a sufficiently, complete record of the circuit court proceedings in order to support an appellate claim of error. Therefore, any doubts which may arise from the incompleteness of the record will be resolved against Manning. See Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.

Insisting that he fully complied with Circuit Court Rule 2.3, Manning asserts that the circuit court erroneously denied his motion to quash service. Circuit Court Rule 2.3 provides:

“The burden of calling for hearing any motion previously filed is on the party making the motion. If any such motion is not called for hearing within 90 days from the date it is filed, the court may enter an order overruling or denying the motion by reason of the delay.” Cook Co. Cir. Ct. R. 2.3.

Here, Manning filed his motion to quash service on April 10, 1990, and scheduled the motion for a hearing 10 days later, on April 24, 1990. On that date, it appears that the cause was continued. In fact, the cause was continued several times until August 2, 1990, when the court struck Manning’s motion. We perceive no violation of Rule 2.3 under these facts. Furthermore, the record clearly indicates that Manning complied with the rule when he refiled his motion on February 15, 1991. Again, Manning’s scheduled hearing date, March 6, 1991, was within 90 days of the date the motion was filed. The motion was then continued until May 21, 1991. Manning set both motions for hearings within the requisite 90-day period, and it appears the motions were indeed called. That the cause was continued from time to time does not render the motion invalid under Rule 2.3.

Dec and Aque argue, nevertheless, that the court's order of August 2, 1990, which struck Manning’s “motion to vacate” was a final order for purposes of appeal. They further characterize Manning’s renewed motion to quash service, filed in 1991, as an untimely motion to reconsider the order of August 2, 1990. Moreover, they argue that Manning waited too long between August 1990 and February 1991 to “renotice” the motion up for hearing and, in that way, violated Rule 2.3. We find these arguments unpersuasive.

The circuit court apparently struck Manning’s motion to quash service despite his opponent’s agreement to a continuance and despite the fact that his attorney was not present. We note that no order is contained in the record from which we may glean what transpired in the circuit court on that date. Although the court file “half sheet” contains a notation which indicates that Manning’s “motion to vacate” was stricken, we do not consider that entry to be the equivalent of a court order because the entry could have been made by a court clerk or other court personnel. Indeed, the notation’s reference to a “motion to vacate” is erroneous in that Manning did not file a “motion to vacate.” The motion set for hearing on that date was a motion to quash service. Additionally, it is unclear whether the motion was stricken with or without prejudice. Because of these ambiguities and, in view of the nature of the allegations contained in the stricken motion, we choose to treat the motion as if it had been stricken without prejudice. As such, it was not a final order for purposes of appeal. Moreover, such a disposition does not preclude Manning from refiling the motion at a later date. Rule 2.3 makes no mention of “renoticing” a motion for hearing in such circumstances. Accordingly, under the facts presented here, Rule 2.3 is not implicated in the manner suggested by Dec and Aque.

Manning maintains that he may challenge the validity of the 1984 judgment at any time because the circuit court could not enter the default judgment as it lacked personal jurisdiction over him.

A judgment’s validity is dependent upon the court having both jurisdiction of the subject matter of the litigation and of the parties. (State Bank v. Thill (1986), 113 Ill. 2d 294, 497 N.E.2d 1156.) Personal jurisdiction can be obtained only by service of process as provided by statute, unless it has been waived by a general appearance in the action. (Thill, 113 Ill. 2d at 308.) The Code of Civil Procedure (the Code) provides for service of process either by summons (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 203, 2 — 204, 2 — 205) or by publication and mailing (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 206). Moreover, where the party against whom an ex parte order of default was entered appears in court and asserts that the judgment was procured without proper service of process, the judgment is considered void and is subject to vacatur, regardless of whether the defendant had actual knowledge of the proceedings. (Thill, 113 Ill. 2d at 308; First Federal Savings & Loan Association v. Brown (1979), 74 Ill. App. 3d 901, 393 N.E.2d 574.) A void judgment, order, or decree may be attacked at any time or in any court either directly or collaterally (R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 309, 489 N.E.2d 1360), without any showing of diligence or meritorious defense. (Sawant, 111 Ill. 2d at 309; Francisco v. Francisco (1980), 83 Ill. App. 3d 594, 596, 404 N.E.2d 537.) In light of these principles, Dec and Aque’s arguments regarding timeliness and laches must fail.

Section 2 — 203 of the Code governs the manner of service of summons upon an individual defendant. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 203.) The return of the officer or other authorized person making service of a summons on a defendant by delivering a copy to another person, that is, by substituted service (see Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 203(a), (b)), must show strict compliance with every requirement of the statute authorizing such substituted service. (Thill, 113 Ill. 2d at 309.) That is so because the presumption of validity that attaches to a return reciting personal service does not apply to a return reciting substituted service. (Thill, 113 Ill. 2d at 309; Werner v. W.H. Shons Co. (1930), 341 Ill. 478, 482-83, 173 N.E. 486.) In such cases, the return or affidavit of service affirmatively must state that a copy of the summons was left at the defendant’s usual place of abode with some family member 13 years of age or older, that such family member whs informed of the contents of the summons, and that the officer or other authorized person making service sent a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his usual place of abode. Thill, 113 Ill. 2d at 310.

The return of service in the present case indicated that the special process server, Leonard Smith, served Manning by leaving a copy of the summons and complaint at Manning’s usual place of abode with “a John Doe refused all ID’s [illegible] a person of the family of the age of 13 years or upwards.” Smith swore that he told the unidentified person of the contents of the summons and that he placed copies of both the summons and complaint in the mail addressed to Manning with postage fully prepaid. However, in his affidavit in support of his motion to quash service, Manning denied that anyone lived with him at the address where the service was made, and he swore that he was not at home on the date the service was purported to have been made. Thus, Manning placed the validity of the substituted service in issue through his affidavit. Where such an affidavit stands unrebutted and uncontradicted, as here, it serves as a proper basis for quashing service. Nibco Inc. v. Johnson (1983), 98 Ill. 2d 166, 173, 456 N.E.2d 120; Prudential Property & Casualty Insurance Co. v. Dickerson (1990), 202 Ill. App. 3d 180, 185, 559 N.E.2d 854.

Dec and Aque note correctly that where the rights of innocent third-party assignees have attached, a judgment cannot be collaterally attacked, even for an alleged jurisdictional defect, unless such defect affirmatively appears in the record. They insist that such a defect is absent in the present case.

In determining whether a lack of jurisdiction is apparent from the record, the whole record must be examined, including the pleadings, the return of process, and the judgment or decree of the court. (Thill, 113 Ill. 2d at 313.) The record before this court indicates various discrepancies, which tend to weaken Dec and Ague’s argument and to establish the requisite affirmative jurisdictional defect. For example, the circuit court “half sheet” indicates that Manning was personally served on January 9, 1984. However, the service return filed by the special process server reveals that Manning was served by substituted service on “John Doe” on December 13, 1983. The judgment was then entered ex parte. Clearly, Dec and Aque should have been aware of the confused status of the service of process allegedly utilized in obtaining jurisdiction over Manning and upon which the default judgment was based. Parenthetically, we note that, if “John Doe” refused “all ID’s” as was stated in the return, no basis exists for even assuming that such a person was a member of Manning’s family for purposes of substituted service as is mandated by the statute. In light of these facts, the record affirmatively shows that defendant was not served in the manner prescribed by the statute.

Dec and Aque, however, insist that no further question exists as to the validity of the 1984 judgment because Manning did not appear in the revival action. That failure to appear, they argue, precludes any assertions of invalidity Manning may now wish to raise. We disagree.

A scire facias proceeding, that is, an action to revive a judgment (see Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1601), is not a new proceeding, but a continuation of the suit in which the judgment was originally entered. (Bank of Edwardsville v. Raffaelle (1942), 381 Ill. 486, 45 N.E.2d 651.) Our supreme court has held that the only defense to such an action is either a denial of the existence of the judgment or proof of a subsequent satisfaction or discharge of the judgment. (Raffaelle, 381 Ill. at 486; Bank of Eau Claire v. Reed (1908), 232 Ill. 238, 240, 83 N.E. 820.) These defenses must appear on the face of the record without reference to any matters aliunde the record. (J.D. Court, Inc. v. Investors Unlimited, Inc. (1980), 81 Ill. App. 3d 131, 134, 400 N.E .2d 1083.) The recognized effect of a revived judgment is to “revive the judgment as it formerly existed and to reinvest it with the same attributes and conditions which originally belonged to it.” Reed, 232 Ill. at 241.

Given that effect, we find Dec and Ague’s argument unpersuasive because the revival of a prior judgment cannot cure fatal defects which were present at the time the judgment originally was entered. (See J.D. Court, Inc., 81 Ill. App. 3d at 134.) As noted previously, a judgment is subject to challenge at any time on the basis that it was rendered without personal jurisdiction. Revival cannot preclude such a challenge. Thus, the judgment revived in the present case exists today as it did in 1984. That revived judgment is no less susceptible to Manning’s challenge to its validity based upon lack of personal jurisdiction than the original judgment was. We also note that, had Manning appeared in the action, he would not have been able to raise his argument regarding the lack of personal jurisdiction as that is not one of the recognized defenses to the action.

The proceedings in this case are troubling. Although the record is often unclear as to the proceedings below, what is apparent is the fact that Manning’s motion to quash has yet to be heard on the merits, and his affidavit, which casts doubt on the validity of the service of process, has yet to be rebutted. The circuit court’s order striking that motion due to the alleged procedural violations of Rule 2.3 and laches was erroneous and requires reversal and remandment. We note that the manner in which the circuit court ruled on the motion to quash precluded a hearing on the merits of Manning’s claim, namely, whether service of process properly was obtained upon him in 1983. The record before this court indicates that no affidavits or testimony were introduced or offered by Dec and Aque to refute the allegations contained in Manning’s motion and affidavit. Upon remand, Dec and Aque, if they so desire, should respond to Manning’s motion as to the factual matters there alleged, and the circuit court should hold an evidentiary hearing to determine the jurisdictional basis, if any, for the entry of the 1984 judgment. Furthermore, we are compelled to vacate the circuit court’s orders denying Manning’s motion to dismiss the “supplemental proceedings” and granting the turnover of the land trust held by the La Salle National Bank. The circuit court, in entering the turnover order, appears to have ignored its previous order of October 25, 1991, in which enforcement of the 1984 judgment was stayed. In any event, no enforcement of the 1984 judgment should be ordered until the jurisdictional question concerning that judgment has been addressed.

The orders of the circuit court are reversed and vacated, and the cause is remanded for further proceedings consistent with this opinion.

No. 1 — 91—2948, Reversed and the cause remanded.

No. 1 — 92—2031, Vacated.

CAMPBELL and BUCKLEY, JJ., concur.

       It is unclear who filed this citation as Dec and Aque were not granted leave to intervene in the action and substitute for Coan as plaintiff until March 6, 1991.


author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. WALTER H. SMITH, Defendant-Appellee.
    Second District
    No. 2 — 91—1461
    Opinion filed July 29, 1993.

      Daniel A. Fish, State’s Attorney, of Dixon (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Walter H. Smith, was indicted for aggravated driving under the influence of alcohol (DUI) and driving with a blood-alcohol concentration (BAC) of 0.10 or more, which acts resulted in great bodily harm to another (counts I, II) (Ill. Rev. Stat. 1989, ch. 95½, par. 11-501(d)(3) (now 625 ILCS 5/11-501(d)(3) (West 1992)); he was also indicted for DUI and driving with a BAC of 0.10 or more (counts III, IV) (Ill. Rev. Stat. 1989, ch. 95½, pars. 11— 501(a)(1), (a)(2) (now 625 ILCS 5/11-501(a)(l), (a)(2) (West 1992))). The offenses were alleged to have taken place on December 19, 1989.

Following the denial of its motion to reconsider and pursuant to Supreme Court Rule 604(a)(1) (134 Ill. 2d R. 604(a)(1)), the State takes an interlocutory appeal of the circuit court’s order of October 15, 1991, granting defendant’s motion to suppress the evidence of certain blood-alcohol tests allegedly taken on December 19, 1989, in the course of emergency medical treatment (see Ill. Rev. Stat. 1939, ch. 95½, par. 11-501.4 (now 625 ILCS 5/11-501.4 (West 1992))). The State filed its certificate of impairment. Defendant has not filed an appellee’s brief, and we will therefore consider the appeal under the guidelines established in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

On appeal, the State argues that the trial court erred in granting defendant’s motion to suppress because defendant failed to make a prima facie case and the court abused its discretion in denying the State’s oral motion for a continuance to obtain the presence of Dr. Strom, a hospital physician whom the State characterized as a material witness.

We affirm.

Defendant’s motion to suppress the results of the BAG test stated that he did not consent to the blood test and that the test was not taken in accordance with the statutory requirements of section 11 — 501.4 of the Illinois Vehicle Code (Code). In DUI and reckless homicide cases, that section permits, as a business record exception to the hearsay rule, the admission into evidence of written blood-alcohol test results when the test is conducted in the regular course of providing emergency medical treatment if each of the following criteria is met:

“(1) the blood alcohol tests were ordered by a physician on duty at the hospital emergency room and were performed in the regular course of providing emergency medical treatment in order to assist the physician in diagnosis or treatment;
(2) the blood alcohol tests were performed by the hospital’s own laboratory; and
(3) the written results of the blood alcohol tests were received and considered by the physician on duty at the hospital emergency room to assist that physician in diagnosis or treatment.” Ill. Rev. Stat. 1989, ch. 95½, par. 11 — 501.4 (now 625 ILCS 5/11-501.4 (West 1992)).

At the outset of the hearing on defendant’s motion on September 13, 1991, the court noted that defense counsel presented a letter from Dr. Strom stating that the doctor could not be there. Defense counsel stated that defendant was ready to proceed without him and noted that defendant would be moving to dismiss the cause for lack of a speedy trial. The State indicated it might wish to move for a continuance to obtain the testimony of Dr. Strom if necessary. The court replied, “Well, let’s cross that bridge when we get to it.”

Defendant testified that he was at KSB Hospital in Dixon, Illinois, on December 19, 1989, and he did not give anyone consent to take his blood that evening.

Beatrice Letcher testified that she was employed as a laboratory technician at the KSB Hospital on the night shift of December 19, 1989. When asked whether she was ordered to do certain laboratory work regarding defendant, she replied, “Looks like it.” She said she saw a “CBC,” or “complete blood count, set of electrolytes, glucose.” She performs laboratory work when she is called to the emergency room. She said there is a written order, usually written by a doctor. She could not remember which doctor was on duty that evening, but thought Dr. Yunez was the treating physician. When asked if she recalled if on the order sheet he ordered her to do any blood test for ethanol, she replied, “I didn’t see it.” She said she had made a cursory review of the progress notes of the patient’s condition. When asked again if she was able to determine whether any blood work for alcohol was requested by the treating physician, she stated, “I didn’t see any order.”

On cross-examination, Letcher was asked if there was another emergency room doctor, Dr. John Strom, who came in after Dr. Yunez had seen defendant; she replied, “I don’t know.” She conceded that it was possible that he was there, but she did not know specifically who ordered her to perform the blood-alcohol test that night. She stated that she did the blood test because there was a requisition. When asked whether she would have taken the blood had a physician not ordered the test, she replied, “No. Somebody had to order it.” When asked whether a physician had to order the test, she answered, “I assume so.” She had no idea whether Dr. Yunez or Dr. Strom was involved. She testified that she performed the tests in the laboratory and recorded them on the log sheets and on the requisition. She could not recall to whom she had reported the results or whether they were reported to the doctor who attended defendant.

On re-cross-examination, Letcher stated that the records indicated that Dr. Yunez was on duty in the emergency room, but she had no idea who was on duty. She never saw a written order from a doctor.

Letcher further stated that she did not know whether Dr. Yunez or Dr. Strom ordered the blood test and had no idea who was the treating physician. When she saw the paper work on the emergency room treatment, it did not show that a blood-alcohol test was ordered.

The State argued that defendant had not met the burden of showing that the steps were not followed and that the motion be denied. Alternatively, the State sought a continuance to take Dr. Strom’s testimony. The State was relying on defendant’s subpoena of Dr. Strom. However, defense counsel argued that he did not have to call Dr. Strom and noted that previously the State had twice asked for continuances and had subpoenaed Dr. Strom. The trial court then took the matter under advisement.

In its detailed memorandum decision, the court reviewed the chronology of the significant events in the progress of the case. On September 17, 1990, defendant appeared for arraignment, filed a motion for discovery and made a demand for a speedy trial. The matter was scheduled for pretrial conference on October 1, 1990. On that date, the matter was continued to October 22, 1990, by agreement and then by joint motion to November 19, 1990, when a jury trial was set for January 8, 1991. No trial was held on that date. Instead, defendant filed a motion to suppress which was set for an evidentiary hearing on March 8, 1991.

The court determined that the motion was not a traditional motion to suppress, but rather was in the nature of a motion in limine. On March 8, the hearing was continued on the motion of the State to April 11, 1991. The record shows that the State caused a subpoena to be issued and served on Dr. Strom on March 1, 1991, and another issued on March 8, 1991, which was served on March 14. On April 11, 1991, the matter was continued on the motion of defendant to May 16, 1991. However, on May 14, the State again obtained a continuance to June 19, 1991. The record shows that the State caused another subpoena to be issued to Dr. Strom on May 15 which was served on May 17. No hearing was held on June 19. On July 2, 1991, the State sought another motion for a continuance to July 11 by means of a written motion. The motion stated that Dr. Strom was a “crucial” witness to the presentation of the State’s case, that he was unavailable to testify, and the State would be severely prejudiced if Dr. Strom could not testify. The State’s motion was granted on July 11, 1991, when the matter was set for July 19, 1991. There was no activity on July 19, 1991, and the cause lay dormant until September 4, 1991, when it was set for hearing on September 13, 1991.

The court noted that although defendant did not object to the State’s requests for continuances, defendant did not consent to them and insisted that the record clearly show that the motions were being made by the State. However, the trial court denied defendant’s September 13 motion to dismiss the case on speedy trial grounds.

Regarding the motion to suppress, the court observed that the State had conceded that an evidentiary hearing was appropriate prior to trial. If defendant’s motion had not been filed, the State would have had the burden of meeting the statutory requirements to introduce the test results at the trial. The court concluded that the State had assumed the burden of proving the foundation for the admission of the blood test, particularly because it had filed its July 2 motion in which it noted that Dr. Strom was a crucial witness to its case and would be prejudiced by his absence. The court then pointed out that the State had again orally requested a continuance at the date of the hearing so it could produce Dr. Strom, thereby again conceding its burden of showing compliance with the statute, and no explanation had been given for its failure to produce Dr. Strom. The court also found that there was no indication that Dr. Strom was unavailable under section 114 — 4(c)(2) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 114— 4(c)(2) (now 725 ILCS 5/114 — 4(c)(2) (West 1992)) and no indication of diligence shown on the part of the State as the movant for a continuance under section 114 — 4(e) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 4(e) (now 725 ILCS 5/114 — 4(e) (West)).

The court found that the State had failed to make its proof and had given no explanation for its failure to call a “crucial” witness. The court found the record devoid of evidence showing “that a physician at the hospital emergency room had ordered the test, the reason for the order, or the receipt of the result of the test.” The court concluded that it had no choice but to grant defendant’s motion to suppress. The court also stated that, since it had been more than a year since the indictment was filed and the State had moved for a continuance on six occasions, the court ordered that there be a hearing on the issue of diligence for purposes of dismissing the indictment. See Ill. Rev. Stat. 1989, ch. 38, par. 114 — 4(e) (now 725 ILCS 5/114 — 4(e) (West 1992)).

The State filed a motion to reconsider in which it pointed out that defendant had a subpoena issued to Dr. Strom on September 9 which was served on September 11, 1991. Defense counsel had presented a letter to the court just prior to the hearing indicating that Dr. Strom would not be testifying but would be willing to proceed with an evidentiary deposition. Because the State was aware of the issuance of that subpoena, it had not issued its own subpoena and was unaware that Dr. Strom would not obey the subpoena until immediately before the hearing.

After hearing the arguments of counsel on October 21, 1991, the court commented on the age of the case, there having been a report filed that the cause had been pending over 180 days, and on the delay in the proceedings between January and September 1991. The court emphasized that the matter had previously been continued so that the State could produce Dr. Strom. The court denied the State’s motion to reconsider in its order of December 10, 1991, and this appeal followed.

We agree with the trial court that defendant’s motion is in the nature of a motion in limine and sought to exclude evidence on the basis of admissibility rather than to suppress evidence that was illegally obtained. Although the State has failed to show why this order is appealable, we must consider the appealability of the order as it affects our jurisdiction. Though this appeal stems from an order granting defendant’s motion to exclude rather than to suppress evidence, the order is appealable under recent cases construing Rule 604(a)(1). Because the substantive effect of the court’s order is equivalent to that of a suppression order and impairs the State’s ability to prosecute and the motion was granted before trial, we conclude that the order is appealable. People v. Keith (1990), 206 Ill. App. 3d 414, 416-17 (distinction between suppression of evidence and exclusion of evidence no longer relevant in cases involving pretrial motions and rulings where substantive effect of the trial court’s order is to suppress evidence), aff’d (1992), 148 Ill. 2d 32; People v. Hatfield (1987), 161 Ill. App. 3d 401, 406-07.

We now consider whether the trial court erred in granting defendant’s motion in limine and in denying the State’s oral motion for a continuance to produce the testimony of Dr. Strom. A motion in limine permits a party to obtain an order before trial excluding inadmissible evidence (Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 549) or to exclude references to such evidence because its admission would violate some ordinary rule of evidence (Department of Public Works & Buildings v. Roehrig (1976), 45 Ill. App. 3d 189, 195). An order in limine has been characterized as a potent weapon because it enables a party prior to trial to limit or prohibit interrogation by the other party, and, because it places these restrictions on the nonmoving party’s presentation of its case, it is imperative that the in limine order be clear and that all parties accurately understand its parameters. (Lundell v. Citrano (1984), 129 Ill. App. 3d 390, 395.) The motion has been treated as analogous to a pretrial motion to suppress evidence in a criminal case. (Roehrig, 45 Ill. App. 3d at 194; see also, e.g., People v. Mueller (1991), 221 Ill. App. 3d 234 (order granting defendant’s “motion to suppress” results of blood-alcohol test under section 11 — 501.4 affirmed on appeal without discussing distinction between motion to suppress and motion in limine); People v. Reardon (1991), 212 Ill. App. 3d 44 (similarly, order granting defendant’s “motion to suppress” written results of blood-alcohol test under section 11 — 501.4 affirmed on appeal).

The primary difference between these two motions is that, unlike a motion in limine, a motion to suppress evidence is not based upon the ordinary rales of evidence but rather upon the defendant’s constitutional rights. Additionally, the making of a pretrial motion to suppress evidence may be necessary for a defendant to preserve his right to object to evidence on a constitutional ground, while it is unnecessary to file a motion in limine to preserve his right to object to the evidence on the basis of evidentiary rules. Roehrig, 45 Ill. App. 3d at 194-95.

If the rules of evidence do not require the exclusion of the disputed testimony, the trial court must deny the motion; if the evidence should be excluded, however, the trial judge has the discretion to grant or deny the motion. (People v. Escobar (1988), 168 Ill. App. 3d 30, 43, citing People v. Williams (1978), 60 Ill. App. 3d 529, 533.) If the motion is denied, the movant may still object to the evidence when it is offered at trial. In exercising its discretion, the trial court should balance the prejudice that might be avoided against the complication or inconvenience that might be caused by granting the motion. When the former outweighs the latter, the motion should be granted. (Roehrig, 45 Ill. App. 3d at 195.) A court of review will not reverse a trial judge’s grant or denial of a motion in limine absent a manifest abuse of discretion. (Escobar, 168 Ill. App. 3d at 43.) An abuse of discretion occurs only where no reasonable person could take the view adopted by the trial court. In re Marriage of Petrovich (1987), 154 Ill. App. 3d 881, 887; see Mizell v. Passo (1992), 147 Ill. 2d 420, 425-26.

The State complains that the court determined it had accepted or acquiesced in accepting the burden of going forward on the admissibility of the test results. The State notes that it has not found cases specifically dealing with the allocation of the burden of proof in the situation presented here. We likewise find a paucity of cases explaining the burden of proof as it applies to a (pretrial) motion in limine, and we do not have the advantage of an appellee’s brief. The general rule is that, during the progress of an action, the movant bears the burden of sustaining the grounds of his motion and the other party is put to the necessity of producing evidence to meet and overweigh or counterbalance that of the moving party. (1S. Gard, Jones on Evidence §5:6, at 539 (6th ed. 1972).) The burdens of pleading and proof have been and should be assigned to the party who generally seeks to change the status quo and who therefore should be expected to bear the risk of failure of proof or persuasion. See E. Cleary, McCormick on Evidence §337, at 786, 788-89 (2d ed. 1972).

In a motion to suppress evidence, the defendant as movant initially bears the burden of proof. (People v. Rivera (1992), 233 Ill. App. 3d 69, 73.) In a statutory summary suspension hearing, the burden is on the defendant to present a prima facie case that the test result was unreliable. If he does so, the burden then shifts to the State to show that the result was accurate. (People v. Miller (1991), 219 Ill. App. 3d 246, 248, citing People v. Orth (1988), 124 Ill. 2d 326.) We observe too that, absent the foundational requirements of the statutory exception provided by section 11 — 501.4 of the Code, the results of the blood-alcohol tests taken in the regular course of obtaining emergency medical care would normally be considered information privileged from disclosure. (People v. Kaiser (1992), 239 Ill. App. 3d 295, 298.) However, the burden of showing that a privilege bars the introduction of relevant evidence is on the party objecting to the evidence. Roach v. Springfield Clinic (1991), 223 Ill. App. 3d 597, 607.

In the present case, we believe that the burden of going forward on the motion in limine was initially on defendant — the proponent or party seeking to bar the evidence — to show why the evidence should not be admitted (see People v. Hood (1993), 244 Ill. App. 3d 728, 733, citing Bradley v. Caterpillar Tractor Co. (1979), 75 Ill. App. 3d 890, 900; Mulhern v. Talk of the Town, Inc. (1985), 138 Ill. App. 3d 829, 833 (burden is on party seeking exclusion of otherwise competent and admissible evidence to adduce facts which clearly bring its case within the rules of exclusion); see also Troutman v. Valley National Bank (1992), 170 Ariz. 513, 517, 826 P.2d 810, 813-14 (party had burden of proof in motion in limine to show prima facie case that testimony in question was barred by statute, and burden of going forward would then shift to opponent)).

On the merits, the first question presented is whether defendant made a prima facie case that the test result was not admissible. We believe that defendant has presented such a case in showing that the test results were not obtained and used according to the specific foundational requirements established in section 11— 501.4 of the Code. The threshold requirements to make the written results admissible are that the test be ordered by a physician on duty at the hospital emergency room and that the test be performed in the regular course of providing emergency medical treatment for the purpose of being used to assist the physician in diagnosis or treatment. Letcher, the laboratory technician who performed the test, testified that she could not remember which doctor was on duty in the emergency room on the evening in question; she did not see any order from a physician ordering the test and did not know specifically who ordered the test performed. While she assumed that a test would have to be ordered by a physician, she had no independent recollection of whether Dr. Yunez or Dr. Strom (or any doctor) was involved. The threshold requirement is not met on the basis of this testimony.

Another requirement for admissibility is that the test results be received and considered by the physician for purposes of diagnosis and treatment. Letcher could not state to whom she had reported the results or whether they were ever reported to the doctor who attended defendant. She had no idea who the treating physician was. Letcher stated that the emergency room paper work did not show that a blood-test was ordered. The failure of a physician to receive and consider the test in diagnosis and treatment renders it inadmissible. Mueller, 221 Ill. App. 3d at 237; Reardon, 212 Ill. App. 3d at 47.

The State argues that it should have been allowed to obtain a continuance to subpoena Dr. Strom or otherwise obtain his testimony regarding the test procedure that evening. However, as the record shows, the State had made at least two or more attempts to subpoena Dr. Strom and had requested at least two or more continuances to obtain this “crucial” witness to its case. The court noted the delays in the proceedings from January 1991 until September 1991, found insufficient the State’s excuse for failing to procure Strom’s presence, and found no indication of diligence on the part of the State to support its request for a continuance. At some point prior to the September 13, 1991, hearing, the State apparently chose not to subpoena Strom further, but decided instead to rely on defendant’s efforts to secure his presence. In arguing its motion to reconsider, the State expressly conceded that it had decided not to make further attempts to secure Dr. Strom’s presence. The court noted that the State made no effort to enforce the subpoena and pointed out that the last continuance sought on July 2, 1991, was specifically requested by the State to obtain the testimony of Dr. Strom. The court also expressed its concern regarding defendant’s right to a speedy trial.

Generally, whether to grant or deny a motion for a continuance depends on the facts at the time of the request and is within the sound discretion of the trial court; the diligence shown by the movant is to be considered in exercising that discretion. (People v. Peruscini (1989), 188 Ill. App. 3d 803, 806.) A trial court’s ruling on a motion for a continuance will not be disturbed on review absent a showing of a clear abuse of discretion. (People v. Verstat (1983), 112 Ill. App. 3d 90, 98.) A State’s motion for a continuance should be denied where the defendant’s right to a speedy trial will be improperly obstructed. (Verstat, 112 Ill. App. 3d at 98.) Where it is known that a witness is difficult to bring before the court, the failure to issue a subpoena serves to show a lack of due diligence. People v. Tillman (1980), 82 Ill. App. 3d 430, 435.

The record shows that the State obtained at least three continuances for purposes of this motion and, in its prior request for a continuance, had represented to the court that Dr. Strom was a witness crucial to its case; yet the State made no attempt after July 2 to subpoena Dr. Strom. We conclude from the evidence in this record that the State was not diligent in bringing Dr. Strom before the court, and we find no abuse of discretion in the court’s denial of the State’s last-minute, oral motion for a continuance. The State was well aware that it would need Strom’s testimony to present its case.

We also observe that the State failed to make a specific offer of proof as to what Dr. Strom would have testified and we thus have no way of determining the nature and substance of his testimony for an adequate review of the court’s ruling. See People v. Cobb (1989), 186 Ill. App. 3d 898, 905.

Since defendant’s prima facie case remains unrebutted and the State was not diligent in producing its own witness, we find no reversible error in the court’s rulings.

The judgment of the circuit court is affirmed.

Affirmed.

QUETSCH and COLWELL, JJ., concur.


text:
    GERALD KIMBER, as Special Adm’r. of the Estate of Thomas Kimber, Deceased, Plaintiff-Appellant, v. THE CITY OF WARRENVILLE et al., Defendants-Appellees.
    Second District
    No. 2 — 92—1169
    Opinion filed August 2, 1993.

      Aldo E. Botti, Frank J. Wesolowski, and Ronald D. Menna, all of Botti, Marinaccio & Tameling, Ltd., of Oak Brook, for appellant.
    Michael D. Bersani and Charles E. Hervas, both of Hervas, Sotos & Condon, P.C., of Itasca, for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

This appeal arose in response to an order of the circuit court of Du Page County granting summary judgment in favor of the defendants, City of Warrenville and John Pikolcz. The plaintiff, Gerald Kimber, special administrator of the estate of Thomas Kimber, filed suit against the defendants after a single-car accident following a high-speed police chase resulted in the death of Thomas Kimber, the driver of the vehicle being pursued. On appeal, plaintiff asserts that the trial court erred in granting summary judgment because: (1) there exist issues of material fact; (2) the defendants owed a duty of due care to Thomas Kimber; (3) the defendants’ conduct during the high-speed police chase was willful and wanton; and (4) the defendants’ conduct during the chase was the proximate cause of Thomas Kimber’s death. We affirm.

On April 5, 1986, at approximately 2 a.m., City of Warrenville police officer John Pikolcz was patrolling Route 59 in Warrenville in his marked squad car when he observed ahead of him a vehicle which pulled rapidly out of a subdivision into the northbound lane of Route 59. The vehicle made a left turn onto Route 59, pulling in front of an oncoming southbound truck. From the officer’s viewpoint, the vehicle should have yielded to the truck before entering the roadway. Also, the vehicle pulled out at a faster than normal rate of speed. Because it is not uncommon for persons to drive under the influence of alcohol at that time of the morning, Officer Pikolcz decided to follow the vehicle in order to observe the manner in which it was being driven.

The officer could not identify the vehicle as either a car or a truck. There were two other cars ahead of Officer Pikolcz on Route 59 northbound, so when the vehicle pulled out of the subdivision and started going northbound on Route 59, Officer Pikolcz may have lost sight of the vehicle. In attempting to catch up to the vehicle, Officer Pikolcz was travelling at or near the posted 55-mile-per-hour speed limit. The officer estimated, however, that the vehicle was exceeding the speed limit, because the officer had to increase his own speed in order to follow the vehicle. At the intersection of Route 59 and Joliet Street, the vehicle slowed down almost to a stop and then abruptly turned left onto Joliet Street, heading northwest, again failing to yield to oncoming southbound traffic. At that point, Officer Pikolcz decided to make a traffic stop based on the vehicle’s failure to yield to oncoming traffic and excessive speed on Route 59. The officer activated his overhead “MARS” lights and called in the vehicle’s license plate number. The radio check revealed that the vehicle was registered to GMAC Leasing. Additionally, the officer observed that the vehicle was a black El Camino being driven by a young, white male with dark hair. The driver of the vehicle was later identified as the decedent, Thomas Kimber. He was the sole occupant of the vehicle.

As Officer Pikolcz was attempting to effectuate his traffic stop on Joliet Street, the decedent abruptly accelerated. Immediately notifying his dispatcher that he was in pursuit, the officer activated his siren. He also notified the Illinois State Police Emergency Radio Network (ISPERN) of the pursuit. The decedent made a right-hand, eastbound turn onto Roosevelt Road and proceeded through Win-field, Wheaton, Glen Ellyn, and into Lombard. As the chase proceeded through those communities, some local police who heard about the chase over the radio joined the pursuit.

In Wheaton, the El Camino was observed by motorists to be travelling at an estimated 100 miles per hour. The pursuing police cars were going the same speed, but were three seconds or 100 yards behind the eluding vehicle.

In Glen Ellyn, a Glen Ellyn police officer heard Officer Pikolcz’ ISPERN dispatch, activated his emergency lights and siren, and blocked off the south side of the intersection of Main Street and Roosevelt Road. That officer recalled that the eluding vehicle did not have its headlights on and that it ran a red light at Roosevelt and Main Streets. He estimated that the vehicle was 2 to blocks ahead of Pikolcz.

At one point during the pursuit Officer Pikolcz observed that he was travelling 90 to 95 miles per hour and slowed down thereafter. He kept his emergency lights and siren activated throughout the entire pursuit. When the eluding vehicle ran a red light in Glen Ellyn, Officer Pikolcz braked hard reducing his speed for his own safety and the safety of others.

When the pursuit entered Lombard, Officer Pikolcz observed two Lombard squad cars at the intersection of Finley and Roosevelt Roads. Both Lombard squad cars had their overhead emergency lights activated for the express purpose of alerting traffic in the general area to the speeding, eluding vehicle. One of the Lombard officers used a hand-held radar unit and clocked the eluding vehicle travelling at 104 miles per hour. The maximum speed limit on Roosevelt Road in Lombard is 35 miles per hour. The other Lombard officer observed that the eluding vehicle was pulling away from the pursuing police vehicles and that, at the intersection of Finley and Roosevelt Roads, the eluding vehicle was approximately one-quarter mile or 5 to 10 seconds ahead of its pursuers. The vehicle sped east of Finley Road through the intersection of Main and Roosevelt in Lombard, towards the intersection of Highland and Roosevelt.

At Finley Road in Lombard, Officer Pikolcz lost sight of the eluding vehicle. At Finley Road he turned off his emergency lights and siren and notified his dispatcher that he had terminated his pursuit. This transmission occurred at 2:22:59 a.m. Other pursuing squad cars also terminated their pursuit near Finley Road. A Glen Ellyn police officer continued eastbound on Roosevelt Road and observed some police cars turning around in a parking lot on the south side of the street, all with their emergency lights and sirens turned off. In addition, the officer did not observe any emergency lights activated east on Roosevelt Road.

As the eluding vehicle approached the intersection of Highland and Roosevelt Roads in Lombard which was, Officer Pikolcz related, about three-quarters to one mile east of Finley Road, the vehicle struck a utility pole approximately 150 feet west of that intersection. The vehicle then skidded along the length of a gas station parking lot located on the south side of Roosevelt Road and struck another utility pole at the corner. The gas station attendant on duty saw the decedent’s vehicle skid, strike the second pole, and start on fire.

After terminating his pursuit, Officer Pikolcz continued eastbound on Roosevelt Road, looking for a place to turn around. At the intersection of Highland and Roosevelt Roads, he observed a small fire on the south side of the road. He stopped and got out of his car. He then realized that the fire was coming from the vehicle he had been pursuing. Officer Pikolcz went back to his squad car and radioed for assistance and for the fire department. He grabbed a fire extinguisher from his squad car, returned to the burning car, and attempted to break the passenger-side window in an unsuccessful attempt to rescue the decedent from the burning vehicle.

The decedent died within seconds of impact. During a subsequent investigation by the Du Page County sheriff’s office, no tire marks were found on the roadway nor was there other evidence of braking by the El Camino prior to impact. The investigation also revealed that the decedent’s driver’s license had been suspended. A toxicology and chemical analysis of specimens of the decedent’s blood and urine revealed that the decedent had a blood-alcohol level of .16 at the time of his death.

Witnesses in the vicinity of Roosevelt Road in Lombard recalled that the traffic was very light at the time of the pursuit. The roads were also dry, and the weather was clear.

On March 23, 1988, Gerald Kimber, special administrator of the Estate of Thomas Kimber, filed a complaint against the defendants, City of Warrenville and John Pikolcz, alleging negligence for the death of Thomas Kimber.

On April 2, 1992, defendants filed their motion for summary judgment arguing that the defendant Pikolcz was not the proximate cause of Thomas Kimber’s death, that there was no issue of material fact that defendants acted willfully and wantonly, and that the defendants are immune, through public official immunity, from liability in this case. Excerpts from 11 witnesses’ depositions were attached to the motion, as was the coroner’s certificate of death, the affidavit of the investigating officer of the Du Page County sheriff’s office, and an analysis of the decedent’s blood.

Plaintiff filed his response and memorandum in support of his response to the motion for summary judgment on July 31, 1992. Attached were the complaint and answer, excerpts from eight witnesses’ depositions, a copy of the transcript of the radio transmissions received and made by the Illinois State Police, and a copy of the City of Warrenville police chase policy in force on the day of the occurrence. On August 7, 1992, the defendants filed their reply-in support of their motion for summary judgment.

On August 27, 1992, the trial court granted the defendants’ summary judgment motion. The trial court found that there was no duty owed to Thomas Kimber; that if there was a duty, it was not violated; and that defendant Pikolcz’ conduct was not the proximate cause of Thomas Kimber’s death. The plaintiff filed a timely notice of appeal. On appeal, plaintiff asserts that the trial court erred in granting summary judgment because: (1) there exist issues of material fact; (2) the defendants owed a duty of due care to Thomas Kimber; (3) the defendants’ conduct during the high-speed police chase was willful and wanton, and (4) the defendants’ conduct during the chase was the proximate cause of Thomas Kimber’s death.

A motion for summary judgment should be granted where the pleadings, depositions, and affidavits reveal that there is no genuine issue as to any material facts and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1991, ch. 110, par. 2— 1005; Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 420-21.) The plaintiff has alleged negligence on the part of the defendants toward plaintiff’s deceased. To state properly a cause of action for negligence, the plaintiff must establish that the defendant owed plaintiff’s deceased a duty of care, that defendant breached that duty, and that an injury was proximately caused by the breach. Wojdyla, 148 Ill. 2d at 421.

First, we shall address the issue of proximate cause. The plaintiff asserts that Officer Pikolcz was the legal cause of Thomas Kimber’s death, that Officer Pikolcz did not terminate his pursuit of Thomas Kimber as he said he did, and that the emerging legal trend is to find that Pikolcz was a proximate cause of Thomas Kimber’s death. That is, even if the court finds that Thomas Kimber was negligent in eluding the police, it was Kimber’s negligence joined by the negligence of Officer Pikolcz that caused the fatal accident. In so asserting, the plaintiff contends that Officer Pikolcz was negligent in pursuing the decedent for minor traffic violations for 11 miles through several communities at a high speed. Thus, the plaintiff argues, the defendants were a proximate cause of the accident and are liable for the death of Thomas Kimber. The defendants assert that Thomas Kimber created a condition under which he ended his own life. Furthermore,-they contend, Officer Pikolcz’ distance behind decedent and his termination of the pursuit vitiates any causal connection between the police officer’s conduct and the decedent’s accident and death. Lastly, they contend, Officer Pikolcz' conduct did not constitute an intervening, superseding cause of the decedent’s accident and death.

In Turner v. Roesner (1990), 193 Ill. App. 3d 482, this court discussed what constitutes proximate cause: proximate cause is made up of two elements, actual cause and legal cause. Actual cause is cause in fact. A defendant’s conduct may be deemed the actual cause of a plaintiff’s injury if, “but for” the defendant’s actions, the injury would not have occurred. If actual cause is established, the next question is whether the defendant should be held legally responsible for it. (Turner, 193 Ill. App. 3d at 490.) The foreseeability of the plaintiff’s injury is a factor in determining proximate cause. The intervention of independent intervening forces will not break the causal connection if the intervention of such forces was itself foreseeable. (Sundin v. Hughes (1969), 107 Ill. App. 2d 195, 203.) The issue of proximate cause is normally one for the jury to decide. (Felty v. New Berlin Transit, Inc. (1978), 71 Ill. 2d 126, 130.) However, where the facts are undisputed and reasonable men could not differ as to the inferences to be drawn from those facts, the issue of proximate cause may be determined as a matter of law. Felty, 71 Ill. 2d at 130.

The facts in this case are not in dispute. The record revealed that the decedent did not pull over when signalled to by the police and that, rather, he accelerated and fled. The record also reveals that Officer Pikolcz maintained a significant distance from the decedent, that he terminated his pursuit, deactivated his emergency equipment and slowed down significantly before the accident. Although the plaintiff posits that there is a material issue of fact as to whether Officer Pikolcz terminated the pursuit before the accident occurred, all the evidence in the record which was cited by the parties supports the inference that the pursuit was terminated at either Finley or Main Street in Lombard, before the accident occurred. We note that the plaintiff in his reply brief speculates without citing the record that Officer Pikolcz continued his pursuit past Finley and Main Streets to the scene of the accident. The plaintiff speculates further about Officer Pikolcz’ conduct; we do not rely on such speculation but, rather, on the record. Thus, we shall determine whether the defendants were the proximate cause of the death of Thomas Kimber as a matter of law.

The plaintiff argues that the defendants contend that there is a per se rule that a police officer can never be the proximate cause of a pursuee’s injuries. Such an argument by defendant is not evident from the briefs. Furthermore, we find plaintiff’s cite to Sundin v. Hughes (1969), 107 Ill. App. 2d 195, to demonstrate that Illinois courts have held that a police officer may be the proximate cause of a plaintiff/pursuee’s injuries, to be mistaken. In Sundín, the plaintiff was an innocent third party, not the pursuee. Thus, Sundín is a third-party case which is not helpful in addressing the issue in this case: whether a police officer may be the proximate cause of the pursuee’s injuries in the police chase context. Our rationale for this conclusion is developed in our analysis of the Huddleston case. Huddleston v. City of Charleston (1986), 144 Ill. App. 3d 1077.

We find the rationale of the Appellate Court, Fourth District, in Huddleston particularly applicable to the present case. In that case, the passenger on a motorcycle involved in a high-speed police chase was killed when the driver lost control of the motorcycle. The special administrator of the decedent’s estate brought suit against the City of Charleston on the basis that its police officers acted negligently to cause the death. The facts were as follows. The motorcycle was observed by a sheriff’s officer to be travelling at about 100 miles per hour. The officer informed the sheriff’s department, turned on his emergency lights' and siren, and gave chase for over six miles. Eventually, the officer lost sight of the motorcycle. Two other officers received radio transmission of the chase and prepared to intercept the motorcycle. They positioned their vehicles ,on the route that the motorcycle was reported to be following, partially blocking the highway lanes with their squad cars. As the motorcycle approached the parked squad cars, it was travelling at 90 miles per hour. The motorcycle successfully,avoided both, vehicles, but in doing so, the driver lost control of the motorcycle, and plaintiff’s decedent was thrown from the motorcycle and killed, while the driver survived the accident. Plaintiff brought suit against the defendant police officers and their employer, alleging that the officers acted negligently by blocking the roadway when they knew a high-speed chase was approaching. In the trial court, the defendants’ motion for a directed verdict was granted. That decision was affirmed by the Appellate Court, Fourth District. We draw on two lines of thought from Huddleston to support our analysis.

The first line of analysis we rely upon makes Huddleston pertinent to the present case because the present case involves the potential liability of the police in an action brought by the pursuee’s estate. We look to Huddleston because the Huddleston court found that the plaintiff’s deceased was not an innocent bystander (although technically he was a third party). The present case involves no innocent third party; the administrator of the pursuee’s estate has brought suit against the police. In contrast, much of the case law in the police chase context involves the liability of the police vis-a-vis an innocent third party who has been injured either by the pursuee or the police. Thus, here we are evaluating the conduct and duties of the police vis-a-vis a part of the dangerous instrumentality.

In its analysis, the Huddleston court distinguished Brooks v. Lundeen (1977), 49 Ill. App. 3d 1, which was a case that the Huddleston plaintiff asserted was on point. In Brooks, plaintiff filed suit on a negligence theory when her decedent was killed by a speeding vehicle pursued by the police in a high-speed chase. The decedent had been told to park to the side of the road nearby a police roadblock by a defendant police officer in an effort to prevent the decedent from being hit by the oncoming cars. The Brooks trial court entered a verdict for the plaintiff; the defendants’ judgment n.o.v. motion was denied, and that ruling was affirmed by the appellate court. The Huddleston court distinguished Brooks on the basis that the decedent in Brooks was an innocent third party and that while the decedent in Huddleston was a third party, he was not an unwilling part of the dangerous instrumentality. This is because the decedent in Huddleston made no attempt to extricate himself from his precarious position. At trial, the Huddleston motorcycle driver testified that the decedent never asked to get off the motorcycle, stayed on the motorcycle when the driver “paused,” and offered the driver his sunglasses when the driver’s flew off. (Huddleston, 144 Ill. App. 3d at 1079.) Thus, the decedent was not an unwilling part of the dangerous instrumentality.

Likewise,' and even more to the point, the decedent in the present case was clearly a perpetrator of the dangerous instrumentality: he got a signal from the police to stop which he ignored and accelerated to the point of prompting an 11-mile, high-speed chase. Thus, in the present case we rely on Huddleston rather than other third-party cases because in both Huddleston and the instant case the actions of the police are considered not vis-a-vis an innocent bystander, but vis-a-vis a part of the dangerous instrumentality.

The second line of analysis for which we rely on Huddleston is as follows. In its opinion, the Huddleston court reasoned that the motorcycle driver’s actions of driving over 80 miles per hour for almost six miles on a road under repair, driving down the center line of the two-lane road in order to pass eastbound traffic and to avoid being hit by oncoming westbound traffic, not being licensed to drive a motorcycle, and driving an unregistered motorcycle constituted gross negligence. The court also reasoned that the driver’s reckless disregard for his own safety and others’ safety, his disregard for the various licensing rules, and his engaging in a high-speed police chase evidenced such negligence that his actions constituted the original wrong. The court then examined the defendants’ intervening conduct to determine whether it broke the causal connection. In doing so, it determined as a matter of law that the driver should have reasonably anticipated the actions of the defendant officers in creating a roadblock. Thus, the defendants’ actions were foreseeable and not the proximate cause of the decedent’s death.

Analogously, in the present case, we determine that the decedent’s actions of cutting off traffic when making left-hand turns, speeding, not stopping when signalled by the emergency lights of a police car, driving under the influence of alcohol, initiating a high-speed chase, and going through a red light constitute negligence. His actions constitute such negligence so that it is clear that the decedent’s actions constitute the original wrong. Furthermore, we determine that it was foreseeable that Officer Pikolcz would continue to pursue the decedent, since the decedent did not respond lawfully to the officer’s emergency lights, and the officer would persist to attempt to stop this alleged violator of motor vehicle laws. Thus, we determine that the decedent’s actions were solely responsible for his death and Officer Pikolcz’ conduct was not a proximate cause of the death.

The plaintiff asserts that the emergent majority view in other jurisdictions is to hold the police officer’s negligent pursuit a concurrent proximate cause of a death or injury arising from a high speed pursuit. (See Fiser v. City of Ann Arbor (1983), 417 Mich. 461, 339 N.W.2d 413; Estate of Aten v. City of Tucson (1991), 169 Ariz. 147, 817 P.2d 951; Travis v. City of Mesquite (Tex. 1992), 830 S.W.2d 94.) The plaintiff urges that Illinois courts follow this view.

These cases do not apply to the present case, just as Brooks does not apply. Each of these cases is an action in which an innocent third party was injured during a police chase, and that third party brought suit against the police officers and/or their employers. In such a situation, it may be determined that the police are one of the proximate causes of the injury. However, in the present case, we are dealing with a claim of a willing part of the dangerous instrumentality, and thus we determine that the pursuee’s conduct was the sole proximate cause of his death. Thus, we do not find the present case or Huddleston to be inconsistent with plaintiff’s cited cases.

Moreover, the facts establish that at the time of the accident Officer Pikolcz had abandoned pursuit. Thus, even assuming arguendo that Pikolcz acted negligently, such negligence would be too remote to be considered a proximate cause of the mishap. See Armstrong v. Mudd (C.D. Ill. 1987), 655 F. Supp. 853.

Thus, we determine that there exist no issues of material fact in this case, and, as a matter of law, defendant Pikolcz’ conduct was not a proximate cause of the death of Thomas Kimber. Since one element of the negligence claim is lacking in this cause, we affirm the trial court’s grant of summary judgment.

Affirmed.

INGLIS, P.J., and UNVERZAGT, J., concur.