author: JUSTICE GORDON

text:
    SELESTER GILTY, Plaintiff-Appellant, v. THE VILLAGE OF OAK PARK BOARD OF FIRE AND POLICE COMMISSIONERS et al., Defendants-Appellees.
    First District (5th Division)
    No. 1-89-1343
    Opinion filed September 6, 1991.

      Armand L. Andry, of Oak Park, for appellant.
    Klein, Thorpe & Jenkins, Ltd., of Chicago, for appellee Village of Oak Park Board of Fire and Police Commissioners.
    Raymond Heise, of Oak Park, for other appellees.
   JUSTICE GORDON

delivered the opinion of the court:

Plaintiff, Selester Gilty, appeals from an order of the circuit court of Cook County, affirming the decision of the Village of Oak Park Board of Fire and Police Commissioners (the Board), discharging plaintiff from the Oak Park police force. Plaintiff raises numerous issues on appeal. The defendant Board has submitted a motion to dismiss this appeal due to plaintiff’s failure to comply with the requirements of the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.). The motion was taken with the case. For the reasons set forth below, we grant defendant’s motion.

Facts

Plaintiff had been a member of the Oak Park police department since 1976. In 1984 he submitted himself as a candidate for promotion to the position of sergeant. As part of the promotion process, in September 1984, plaintiff completed a form entitled “Application for Promotional Examination.” On this notarized form, he stated that he was “now attending Governor [sic] State Univ. (Master Program in Public Administration) Completed 17 Hours.” Another form, entitled “Information Request of Sergeant Candidates,” was completed and signed by the plaintiff in January 1985. The following statement was contained on that form: “List high school or GED and any further schools which you have graduated from or attended, noting year(s) attended and degree, if any, and course of study.” To this statement, plaintiff responded: “John Marshall (63), Mayfair Jr. Collage [sic] (74), Univ. Ill. C. C.(76) and completed 17 Hours on a Master’s Program at Governor [sic] State University in Public Administration (32 Hour Program), and many other Police related schools.”

On March 23, 1985, in a second phase of the promotion process, plaintiff was interviewed by two members of the Board, Commissioners Whiten and Matthies. Pursuant to department policy, the interview was tape recorded. At that interview, plaintiff was asked “in terms of personal and professional skills, knowledges [sic], abilities and competencies, all of those kind of good things about you, which of those do you think best qualifies you for a promotion to sergeant in this Department? *** What evidence can you give me for all the good things you just said about yourself?” He responded “Well, one is my educational background. As I have stated in the past, I am working on a Master’s in public administration. I have also an AA degree in sociology and a Bachelor’s degree in psychology. Those do not necessarily stipulate that I will be a great leader or a good leader, but those are what I would hope to be indicators.” Plaintiff was not promoted.

In January 1988, Oak Park Police Chief William Kohnke asked all officers to complete a form entitled “Profile of Training and Interest in Future Training” as part of a new program he was instituting in the department. Under the heading “Expertise in Police Field,” plaintiff wrote “B.A. in Police Adm. & Operations.” Kohnke also examined each officer’s personnel file, the applications for the 1985 sergeant’s examination and the 1985 “Information Request for Sergeant Candidates” to determine each officer’s training and educational background. He sought to verify the information on the various forms by receiving college transcripts from all institutions that officers indicated they had attended.

Having been unable to verify plaintiff’s claimed educational achievements, on March 25, 1988, Chief Kohnke undertook a formal oral interrogation of the plaintiff regarding his educational background. When asked by the attorney for the village whether he had a degree in psychology from the University of Illinois in Chicago as claimed in January of 1985, plaintiff responded “To the best of my knowledge I had completed the requirements for a Bachelor degree, University of Illinois, in psychology, yes if that is what you mean.” He admitted, however, that he did not have a formal document, a piece of paper from the university, showing that he had achieved the degree.

Plaintiff also said that he had fulfilled the requirements for a bachelor’s degree in police administration and operations from Lewis University, and although he did not have a diploma evidencing that degree either, one would be provided to him upon request. He explained that he saw no need to attend a graduation ceremony since he had already started accumulating hours towards a master’s degree at Lewis University in criminal and social justice. Plaintiff also stated that he had taken and passed the writing proficiency examination at Lewis University, a requirement for a bachelor’s degree.

In addition, plaintiff was asked about his statement made in 1984, when he completed the “Information Request for Sergeant Candidates,” that he had “completed 17 Hours on a Master’s Program at Governors State University in Public Administration.” He admitted that he was not officially enrolled in a master’s degree program, but maintained that the courses he was taking could be applied to a master’s degree. In later testimony, he further admitted that he left Governors State University after the fall quarter of 1983 due to financial and academic reasons, and had not petitioned the school for readmission.

When the plaintiff was unable to produce verification of the degrees which he claimed to possess or to offer a credible explanation at the March 25 hearing, Chief Kohnke and Commissioner Matthies (now former commissioner) brought four charges against him with the Board. In the first charge, plaintiff was accused of violating sections 28 — 5—73 and 26 — 7 of the Rules and Regulations of the Police Department of the Village of Oak Park, which read as follows:

“28 — 5—73 Truthfulness: Members and Employees are required to be truthful at all times whether under oath or not.”
“26 — 7 Reports and Bookings: No Member or Employee shall knowingly falsify any official report or enter or cause to be entered any inaccurate, false or improper information on records of the Department.”

Three specific violations of these rules were alleged in the first charge in conjunction with the sergeant’s promotional process in 1984 and 1985. The violation alleged in subparagraph 1 of the first charge occurred on March 23, 1985, when plaintiff at his interview told the Board that he was working on a master’s degree in public administration and had a bachelor’s degree in psychology. Subparagraph 2 alleged violation of departmental rules in September 1984, when plaintiff, under oath, completed the form entitled “Application for Promotional Examination.” He stated therein that he was attending Governors State University in a master’s program in public administration. The violation alleged in subparagraph 3 involved two of plaintiff’s written answers on the form entitled “Information Request of Sergeant Candidates,” which plaintiff submitted in January of 1985, where he gave the impression that he graduated from the University of Illinois in 1976, and indicated that he was enrolled in a master’s program at Governors State University.

The second charge alleged violations of Illinois perjury statutes. (Ill. Rev. Stat. 1987, ch. 101, par. 5; ch. 88, par. 32 — 2.) This charge was dismissed by the Board prior to its final order.

The third charge invoked the same departmental rules as in the first charge. But the alleged violation here occurred in January 1988 when plaintiff stated on his “Profile of Training and Interest In Future Training” form that he had a “B.A. in Police Administrations and Operations.”

The fourth and final charge involved the statements made by plaintiff on March 25, 1988, during interrogation by the police chief and the village attorney. Plaintiff allegedly again violated departmental rules 28 — 5—73 and 26 — 7, as in the first and third charges, when he said that he had passed the writing proficiency examination at Lewis University and was eligible for graduation.

After extensive hearings on the charges, the Board found plaintiff not guilty of the charges of subparagraphs 2 and 3 of the first charge, and guilty of the remaining charges. The Board also, before entering its final order, reviewed plaintiff’s personnel file including his employment history, and on September 24, 1988, entered an order discharging the plaintiff. A copy of the findings and decision of the Board was mailed to plaintiff with a letter dated September 27, 1988.

On October 13, 1988, plaintiff filed a complaint for administrative review in the circuit court of Cook County. In that complaint plaintiff joined only two defendants, the Village of Oak Park Board of Fire and Police Commissioners and the Village of Oak Park. On November 15, 1988, defendant Board moved to strike and dismiss plaintiff’s complaint for failure to name Police Chief Kohnke and Commissioner Matthies, who had initially filed the charges against plaintiff with the Board, as defendants as required by section 3 — 107 of the Administrative Review Law. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 107.) The Board’s motion also sought to dismiss the Village of Oak Park as defendant since it was not a party of record to the proceedings before the Board.

On December 27, 1988, plaintiff filed a motion for a preliminary injunction seeking reinstatement to his position with the Oak Park police department, and on January 24, 1989, filed a response to defendant’s motion to dismiss. On January 26, 1989, the circuit court denied plaintiff’s motion for preliminary injunction, granted defendant’s motion to dismiss as to the Village of Oak Park, and granted plaintiff leave to amend his complaint to add Kohnke and Matthies as defendants. On February 2, 1989, plaintiff filed an amended complaint adding Kohnke and Matthies as defendants, and summons were issued to each of them that day.

The circuit court, by order entered April 10, 1989, affirmed the decision by the Board to discharge plaintiff. Notice of appeal to this court was filed by plaintiff on April 13, 1989. Defendants have filed a motion with this court to dismiss this appeal for lack of jurisdiction to review the decision of the Board. For the reasons set forth below, defendants’ motion is granted.

Opinion

Defendants contend in their motion to dismiss this appeal that plaintiff’s failure to name Police Chief Kohnke and Commissioner Matthies as defendants and to serve summons on them within 35 days of service of the Board’s decision on plaintiff resulted in the circuit court being without jurisdiction to hear the case. Further, defendants urge that under the recent Illinois Supreme Court case of Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266, the circuit court’s order allowing plaintiff to amend his complaint more than 35 days after service of the Board’s order on plaintiff was ineffective. Although we disagree with defendant’s contention that the circuit court lacked jurisdiction, we nevertheless find that the complaint must be dismissed for failure to satisfy the statutory requirements of joinder of all required parties pursuant to section 3 — 107 of the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3— 107), and service of summons upon them within 35 days pursuant to section 3 — 103 (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 103), requirements which are mandatory, interlocking and nonwaivable. Lockett, 133 Ill. 2d 349, 549 N.E.2d 1266; Cuny v. Annunzio (1952), 411 Ill. 613, 104 N.E.2d 780; Zientara v. Lottery Control Board (1991), 214 Ill. App. 3d 961, appeal denied (1991), 141 Ill. 2d 580.

Judicial review of administrative decisions is governed by the Administrative Review Law (the Act) (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.). Relevant to this appeal are sections 3 — 102, 3 — 103 and 3 — 107 of that act. Section 3 — 102 defines the scope of the Act, and provides in part:

“Unless review is sought of an administrative decision within the time and in the manner herein provided, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of such administrative decision.” (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 102.)

Section 3 — 103 sets forth the requirement of commencement of an action for administrative review under the Act, and provides in part:

“Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.” (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 103.)

Section 3 — 107 defines who shall be made defendants to an action for review of an administrative decision. This section provides:

“In any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants.” Ill. Rev. Stat. 1987, ch. 110, par. 3 — 107.

The interpretation of these rules given by the Illinois Supreme Court in Lockett must control. There, the Chicago police superintendent filed disciplinary charges against Lockett with the Chicago Police Board. The board dismissed Lockett, and Lockett sought judicial review of that decision. He named the police board and its individual members as defendants. The circuit court granted the board’s motion to dismiss the complaint due to Lockett’s failure to name the superintendent as a defendant within the 35-day period of section 3 — 103, and also denied Lockett’s request to amend his complaint to add the superintendent as a defendant. Lockett appealed. The appellate court found that although filing of a complaint within 35 days after the plaintiff receives notice of the administrative decision is a jurisdictional requirement, and failure to comply will bar review, failure to name the superintendent as a defendant did not render the complaint fatally defective. It reasoned that the superintendent was not required to be named as a defendant, since it was the board’s decision, not the charges filed by the superintendent, which was being reviewed. The appellate court, therefore, reversed the dismissal order and remanded the case. (Lockett v. Chicago Police Board (1988), 176 Ill. App. 3d 792, 531 N.E.2d 837.) The supreme court granted the board leave to appeal and reversed the judgment of the appellate court and affirmed the circuit court judgment.

The Illinois Supreme Court first noted that the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.), which sets forth the procedural requirements for judicial review of an administrative decision, is a departure from the common law, and therefore “the procedures it establishes must be strictly adhered to in order to justify its application.” (Lockett v. Chicago Police Board, 133 Ill. 2d at 352-53, 549 N.E.2d at 1267, citing Winston v. Zoning Board of Appeals (1950), 407 Ill. 588, 595, 95 N.E.2d 864, 869.) The court found that the clear and unambiguous language of section 3 — 107 required that the superintendent, who was a party of record to the proceedings before the board, be made a defendant in the action for administrative review. Lockett, 133 Ill. 2d at 354, 549 N.E.2d at 1267.

The court then went on to consider whether the circuit court should have allowed Lockett to amend his complaint to name the superintendent as a defendant. On this point, it looked to section 3— 103, which requires the filing of a complaint and issuance of summons within 35 days from the time plaintiff receives a copy of the administrative decision. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 103.) “The requirement that a complaint be filed within the 35-day limit is jurisdictional; if a complaint is not timely filed, no jurisdiction is conferred on the circuit court and judicial review of the administrative decision is barred. (Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 211.)” (Lockett, 133 Ill. 2d at 354-55, 549 N.E.2d at 1268.) However, if a complaint as filed joins less than all necessary parties, the jurisdictional requirement is satisfied. See Zientara v. Lottery Control Board (1991), 214 Ill. App. 3d 961, 970, appeal denied (1991), 141 Ill. 2d 580 (where the court stated “the Lockett court did not indicate that a failure to name a necessary defendant as required under section 3 — 107 would deprive the court of jurisdiction”).

There is no question, however, that although the requirement of joinder of all parties under section 3 — 107 is not jurisdictional, it is mandatory (Lockett, 133 Ill. 2d at 354, 549 N.E.2d at 1267), as is the interrelated requirement for issuance of summons within 35 days under section 3 — 103. (Lockett, 133 Ill. 2d at 355, 549 N.E.2d at 1268.) While not depriving the court of jurisdiction, failure to comply with these mandatory requirements, namely the joinder of all necessary parties as defendants and the issuance of summons upon those parties within the 35-day time frame, nevertheless mandates dismissal in the absence of a good-faith effort to comply with the statute. (Lockett, 133 Ill. 2d at 355, 549 N.E.2d at 1268. See also Zientara v. Lottery Control Board (1991), 214 Ill. App. 3d 961, appeal denied (1991), 141 Ill. 2d 580.) The supreme court in Lockett acknowledged prior precedent which relaxed the 35-day period when plaintiff showed a good-faith effort to procure issuance of summons but failed in that effort due to circumstances beyond plaintiff’s control, such as failure of the court clerk to implement service after all prerequisites had been met by the plaintiff. (See City National Bank & Trust Co. v. Property Tax Appeal Board (1983), 97 Ill. 2d 378, 454 N.E.2d 652; Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, 451 N.E.2d 842.) In Lockett, however, the court concluded that there was no record of any good-faith effort by plaintiff to join and serve all defendants within 35 days, thus mandating dismissal. The court explicitly overruled several prior appellate decisions which had held that such failure to name and issue summons against necessary parties within 35 days could be cured by subsequent amendment regardless of any demonstrated good-faith effort. Lockett, 133 Ill. 2d at 356, 549 N.E.2d at 1269.

Here, it is undisputed that plaintiff did not name Police Chief Kohnke or Commissioner Matthies as defendants or serve them with summons within the requisite 35-day period. Both were parties of record to the administrative board’s proceedings, and were, therefore, necessary parties to the judicial review under section 3 — 107. Although plaintiff’s timely complaint naming fewer than all required defendants may have been sufficient to confer jurisdiction on the circuit court, plaintiff failed to comply with the mandatory requirements that all parties of record be named as defendants and summons issued in a timely manner. The record here, as in Lockett, is devoid of any evidence or, for that matter, any argument seeking to establish any good-faith effort by the plaintiff to name Kohnke and Matthies as defendants or to serve summons upon them within the 35-day time frame. Not until February 2, 1989, some four months after plaintiff’s receipt of the Board’s decision, were Kohnke and Matthies named as defendants and served with summons. Accordingly, we find that plaintiff has failed to comply with the specific procedural requirements of sections 3 — 107 and 3 — 103 requiring joinder and service of summons within 35 days. Under Lockett, such failure cannot be cured by subsequent amendment. Accordingly, plaintiff is barred from obtaining judicial review of the Board’s decision.

Defendants here have properly preserved their objection to any late amendments by their motion to dismiss before the circuit court. Moreover, even in the absence of a timely objection, the requirements of the Administrative Review Law are not waivable. Cuny v. Annunzio (1952), 411 Ill. 613, 617, 104 N.E.2d 780, 782.

While the circuit court’s review affirming the Board’s decision on the merits was made before the supreme court’s decision in Lockett, it is now clear that the merits should not have been reached and dismissal was mandated. However, since the circuit court’s affirmance in favor of defendants reaches the same result as would have been reached had the complaint been dismissed by the circuit court, the order of that court need not be reversed, and this appeal is here and now dismissed. Because we have dismissed this appeal on procedural grounds, we do not address the substantive issues raised by plaintiff.

Appeal dismissed.

LORENZ, P.J., and McNULTY, J., concur.


source: Caselaw Access Project

author: JUSTICE BOWMAN

license: Public Domain

text:
    KENNETH HEDBERG, Plaintiff-Appellant, v. JOSEPH MENDINO, Defendant-Appellee (Helen Stone, Defendant).
    Second District
    No. 2-90-1110
    Opinion filed September 16, 1991.

      Perry M. Berke and John R. Malkinson, both of Baskin, Server, Berke & Weinstein, of Chicago, for appellant.
    Gary W. Klages, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Waukegan, and D. Kendall Griffith, Joshua G. Vincent, and Gary J. Ba-zydlo, all of Hinshaw & Culbertson, of Chicago, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

In this cause, we are asked to examine the scope of the “fireman’s rule” in Illinois. Plaintiff, Kenneth Hedberg, appeals the dismissal of his complaint against defendant, Joseph Mendino. The issue is whether the complaint states a cause of action in negligence for which relief can be granted when the injury to the plaintiff occurred in the course of his duties as a policeman.

In his complaint, plaintiff alleged that the defendants owned and maintained certain premises in Highland Park. Plaintiff was lawfully on the premises to respond to a call regarding a prowler at the location. Plaintiff was injured when he came into contact with a depressed and defective portion of the sidewalk leading to the premises. Plaintiff alleged that the defendants failed to maintain the sidewalk in a reasonably safe condition; failed to inspect it; failed to provide adequate lighting; and failed to warn of the defect. The trial court granted Mendino’s motion to dismiss, and plaintiff appeals pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

Plaintiff contends the trial court erred in applying the “fireman’s rule” to the facts alleged in the complaint. Although most of the cases cited in our discussion involve fire fighters, the rule applies to police officers as well, but throughout this opinion we will refer to the public officer which is the subject of the particular case being cited. No issue is raised in this cause whether maintaining a defective sidewalk can constitute negligence. (See Thiede v. Tambone (1990), 196 Ill. App. 3d 253; Repinski v. Jubilee Oil Co. (1980), 85 Ill. App. 3d 15.) Rather, the issue is how plaintiff’s status as a policeman affects the defendants’ duty to him.

In Illinois, the courts have ruled that an action may lie against a landowner for failure to exercise reasonable care in the maintenance of his property which results in the injury or death of a fireman or a policeman lawfully on the premises responding to an emergency at a place where he might reasonably be expected to go. (Dini v. Naiditch (1960), 20 Ill. 2d 406, 416-17.) The duty of a landowner to a fireman or a policeman is the same as the duty to any invitee. Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 556-57; Briones v. Mobil Oil Corp. (1986), 150 Ill. App. 3d 41, 44; Murphy v. Ambassador East (1977), 54 Ill. App. 3d 980, 984; Restatement (Second) of Torts §345(2) (1965).

The “fireman’s rule,” however, limits a landowner’s liability to a policeman or fireman on the premises. “[W]hile a landowner owes a duty of reasonable care to maintain his property so as to prevent injury occurring to a fireman from a cause independent of the fire[,] he is not liable for negligence in causing the fire itself.” (Washington v. Atlantic Richfield Co. (1976), 66 Ill. 2d 103, 108.) A fireman cannot complain of negligence in the creation of the very occasion of his employment. It would be unfair to hold a landowner liable for the increased exposure to the risk of personal injury formed when a fireman enters the property in the performance of his employment. The fireman assumes the risks normally associated with his occupation when he comes to fight a fire, but he does not assume the risks created by other acts of negligence perpetuated by a landowner. (Wash ington, 66 Ill. 2d at 109.) In Washington, the defendant maintained a faulty gasoline pump which allowed a fire to commence, and the plaintiff fireman was injured when, under orders, he tried to release pressure in a gasoline tank; the plaintiff was not injured from an act of negligence different from the defendant’s act of negligence which caused the fire. The resulting explosion was within the range of expected risks involved in fighting that kind of fire in the proximity of gasoline tanks.

The “fireman’s rule” is construed in the context of the duty a landowner owes to an emergency worker. A defendant has the duty to maintain his property in a safe condition for all invitees. A landowner’s liability is determined under section 343 of the Restatement (Second) of Torts (1965), which provides:

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.” Restatement (Second) of Torts §343 (1965).

See Fancil, 60 Ill. 2d at 557.

In Fancil, the plaintiff did not allege that the defendant negligently created the reason for which the decedent policeman was on the premises. Instead, the policeman’s representative alleged that the defendant failed to maintain adequate lighting in the area where the policeman was shot by burglars. The supreme court ruled, however, that the plaintiff failed to state an adequate claim of negligence. There were numerous facts in the complaint which demonstrated that the policeman did in fact realize the danger when he investigated the premises and did try to protect himself from the danger of lurking burglars; thus, the plaintiff failed to satisfy section 343(b). Moreover, the court reasoned that the policeman’s acts did not involve an unreasonable risk for a police officer because the danger was a risk inherent in the occupation. Fancil, 60 Ill. 2d at 558.

Fire fighters assume those risks which are apparent to them and which are inevitably associated with fire fighting, and the landowner can expect them to realize those dangers. However, fire fighters do not assume those risks that are hidden from or unanticipated by the fire fighters. Thus, a fire fighter may not recover damages from a landowner if his injury is caused by an apparent risk, but may recover if his injury is caused by an unanticipated risk attributable to the landowner’s negligence and such negligence is the proximate cause of the injury. See Washington, 66 Ill. 2d at 107; Coglianese v. Mark Twain Limited Partnership (1988), 171 Ill. App. 3d 1, 4-5; Horn v. Urban Investment & Development Co. (1988), 166 Ill. App. 3d 62, 67, citing Armstrong v. Mailand (Minn. 1979), 284 N.W.2d 343, 350; Annot., 11 A.L.R.4th 597 (1982).

Applying the above principles to the cause before the court, we find that plaintiff is not alleging that defendants negligently caused or contributed to the emergency that brought plaintiff onto the premises. Instead, plaintiff alleges that they negligently maintained the property to cause an unreasonable risk of harm to invitees. Plaintiff was on the property to investigate a prowler and not to investigate the sidewalk. The injury arose from a cause independent of the reason plaintiff was called to the premises. (See Court v. Grzelinski (1978), 72 Ill. 2d 141, 148.) The accident occurred outside the scope of the dangers which he had assumed to take. The issue then is whether they had a duty to plaintiff to protect him against that danger, and, in this context, whether they could expect him to have realized that danger by virtue of his occupation.

At this stage in the proceedings, a motion to dismiss the complaint, we must determine whether the complaint, when viewed in the light most favorable to the plaintiff, alleges facts sufficient to establish a cause of action for which relief may be granted, and we must take all well-pleaded facts as true. (Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 47; Fancil, 60 Ill. 2d at 554.) There is nothing in the record which disputes plaintiff’s contention that the defective sidewalk constituted an unreasonable risk and a danger not realized or anticipated by him. The precise issue before us is not whether a defective sidewalk can never support a breach of duty to an invitee, but whether defendant’s duty was not established because plaintiff was a policeman and thus assumed the risk of a defective sidewalk as part of his duties in responding to the call of a prowler. We hold he did not assume that risk. Plaintiff had a right to assume that the premises were reasonably safe for his entry onto defendant’s land at a time he was concerned with investigating and possibly protecting himself from the prowler. This cause differs from Fancil because in Fancil the complaint revealed the policeman knew of the danger in the shadows and protected himself against it; thus, the defendant’s duty was not breached. The complaint here does not show that plaintiff was aware or should have been aware of the defective and uneven sidewalk.

Finally, defendant was granted leave to file additional authority for this matter. He cites Rosa v. Dunkin’ Donuts (1991), 122 N.J. 66, 583 A.2d 1129, in which a police officer slipped on a white, powdery substance (sugar or flour) while carrying an unconscious employee to an ambulance. The plaintiff did not sue the defendant for negligence in creating an emergency, but for creating a foreseeable risk of avoidable future harm, i.e., for not removing the powder from the floor. The New Jersey Supreme Court read the “fireman’s rule” as creating an “immunity” from suit to those guilty of previous ordinary negligence. The court stated that fire fighters and police officers assumed all the risks and hazards of their jobs. Because hazards are endemic and landowners cannot be expected to houseclean before calling emergency workers, an emergency worker has no right to expect that the premises are safe or prepared for his arrival. (122 N.J. at 73, 583 A.2d at 1132.) It considered the distinction between the negligence that occasions the officer’s presence on the scene and the negligence causing the injury to be artificial. (122 N.J. at 74, 583 A.2d at 1133.) The court stated it would apply the immunity in all cases other than those where the hazard was caused willfully, wantonly, deliberately or maliciously, or in cases where the officer was acting as an ordinary citizen. Thus, the New Jersey court would bar recovery for most acts of ordinary negligence posing hazards that are incidental to and inherent in the performance of an officer’s duties. 122 N.J. at 76, 583 A.2d at 1134.

We decline to extend the “fireman’s rule” to such cases. That interpretation directly conflicts with our supreme court’s pronouncements in Fancil, Washington and Grzelinski. The Rosa holding would render meaningless the rule that police officers are entitled to the same protection as any invitee. The rule in Illinois attempts to balance the competing concerns of not placing unreasonable burdens upon landowners from firemen coming onto their property and of not undermining the general duty of landowners to exercise reasonable care to keep the premises safe. (Grzelinski, 72 Ill. 2d at 148.) Thus, our supreme court announced the rule that landowners have a duty of reasonable care to prevent injury to firemen which might result from a cause independent of the fire, but no duty to prevent injury resulting from the cause of the fire itself. (72 Ill. 2d at 148.) We realize that there is often a fine line between the two types of negligence when the fire fighter is injured by the same defect in the land which caused the fire. (See Coglianese, 171 Ill. App. 3d at 5; Horn, 166 Ill. App. 3d at 68; Luetje v. Corsini (1984), 126 Ill. App. 3d 74, 78.) In these cases, however, the fire fighter was not injured by a cause independent of the emergency being investigated. The injuries, which in these cases were caused by the burning structures, could be expected in fighting a fire in buildings and were thus reasonably anticipated. In the cause before the court, plaintiff was injured by a cause independent of the emergency he was investigating.

Defendant also argues that he should not be held liable for some de minimis condition in the land; however, there is no indication in the record that the depression in the sidewalk was too slight to be a hazard.

For the above reasons, the order of the circuit court of Lake County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

GEIGER and WOODWARD, JJ., concur.


author: PRESIDING JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN LATONA, Defendant-Appellee.
    Second District
    No. 2-90-0034
    Opinion filed September 16, 1991.

      Daniel A. Fish, State’s Attorney, of Dixon (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller and David W. Devinger, both of State Appellate Defender’s Office, of Elgin, for appellee.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

On December 27, 1989, the circuit court of Lee County granted defendant’s, John Latona’s, motion to suppress certain statements made by him to an undercover police officer on May 16, 1989, and June 1, 1989, and granted a supplemental motion to suppress a recorded telephone conversation between defendant and the same undercover officer on June 21, 1989. The State appeals pursuant to Supreme Court Rule 604(a)(1) (134 Ill. 2d R. 604(a)(1)).

The sole issue presented for review on this appeal is whether the trial court erred in granting defendant’s motions to suppress based on a finding that an undercover police officer was compelled to give defendant the Miranda warnings.

Defendant was an inmate at the Dixon Correctional Center. He was charged by information filed in the circuit court of Lee County with one count of solicitation of murder and one count of solicitation of murder for hire (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 1.1, 8 — 1.2). The charges alleged that on May 16, 1989, defendant requested Randall Jordan to commit the offense of first-degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(1)) and procured Randall Jordan to commit first-degree murder pursuant to an agreement whereby Jordan would kill Danny Shamoon and defendant would “return the favor” upon his release from the Department of Corrections.

At the hearing on defendant’s motions to suppress statements, Officer Jerry Sternes, a lieutenant with the Illinois Department of Corrections assigned as the investigator at Dixon Correctional Center, Dixon, Illinois, testified that he had a conversation with Michael Wagers, an inmate at the Dixon Correctional Center, in mid-March 1989. During this conversation, Wagers revealed that there was an inmate who wanted a “hit” done on someone “on the street.” Later, Wagers again talked with Sternes and told him that John Latona, defendant, wanted to have his daughter’s boyfriend, Danny Shamoon, killed. Wagers also indicated that defendant was offering $2,500 and some furniture to the person who would commit the offense.

Randall T. Jordan, a police officer with the Rock Falls police department temporarily assigned to the Illinois Department of Criminal Investigation, was asked to assist in the investigation. Officer Jordan, using the alias “Randy Peterson,” entered the Dixon Correctional Center posing as the brother of inmate Michael Wagers, to play the role of a hit man. Defendant had previously submitted the name Randy Peterson on the visiting add-on list for May 16, 1989. Officer Jordan was wearing jeans, cowboy boots, a dark sweatshirt, black vest, sunglasses and an Easy Rider bandanna. He also wore an earring and had a beard. Jordan was wearing an electronic surveillance device.

After identifying himself as someone who could arrange a murder, Jordan asked defendant to tell his story. Although Jordan did not testify to the actual conversation on this date or to a subsequent conversation with defendant on June 1, 1989, tape recordings of the conversation and transcripts of the tapes were admitted into evidence. While the tapes and transcripts are not contained in the record on appeal, the memorandum opinion of the trial judge contains quotations from the transcripts of the conversations which the parties have used in the statement of facts in their briefs.

Jordan questioned defendant by stating: “ ‘What if he comes up dead?’ ” and then “ ‘The only thing I’m concerned about is what happens if as a result of the situation that he comes up dead? That’s not going to bother you?’ ”

Jordan later asked defendant, “ ‘All right, what do you want from me?’ ” to which defendant replied:

“ ‘Just, just, just deal out justice. Your justice will be my justice. Put the fear of God in him, put him in the hospital, break his legs, whatever you do is just. Your justice will be my justice. If you gotta make him see his maker, so be it. So be it, as he has put a thorn in my side, so shall I be a thorn in his side. An eye for an eye, and a tooth for a tooth. It’s in, that’s in our bible.’ ”

The conversation lasted approximately one hour and took place at the visitors’ center of the Dixon Correctional facility. The visiting room is an entirely open area about 30 by 60 feet with a bricked courtyard. There were guards occasionally passing through the area, and there were several other inmates in the visiting room. Defendant was free to leave the visitors’ center at any time.

On June 1, 1989, Officer Jordan again met with defendant in the courtyard area of the visitors’ room at the Dixon Correctional Center for about one hour. Jordan was dressed similarly to what he wore on May 16, and an eavesdropping device was again used. The following dialogue was recorded:

“RANDALL JORDAN: ‘And uh, you want the guy broke up, or do you want him wasted, eliminated and out of your life.’
JOHN LATONA: T want him in the hospital, just put him in the hospital, so he’s laying in that bed, but if you see, if, if you see your future is extreme then so be it.’
RANDALL JORDAN: ‘Well the thing is, if you want him broke up, we can’t do it, because, and the reason is, is I was assuming that we wouldn’t have no problems, all right.’ ”

The conversation also contained the following:

“RANDALL JORDAN: ‘So basically, you know, if we were to do it, we’d have to hit him, and you know, eliminate him, and that’s it, all right?’
JOHN LATONA: ‘Yea.’
RANDALL JORDAN: ‘Cause if all you want is you want him broke up, I don’t know what to tell you.’
JOHN LATONA: ‘Yea, well ***’
RANDALL JORDAN: ‘But we don’t want to take the chance.’
JOHN LATONA: ‘All right, when they take him out then, I’ll shed a tear.’
RANDALL JORDAN: ‘You still want us to do it?’
JOHN LATONA: ‘Yes.’ ”

Jordan testified that he did nothing to force the defendant to speak with him on either May 16 or June 1 and that defendant was free to end either conversation at any time. At no time did Jordan identify himself as a police officer, nor did he indicate that he would divulge the contents of their conversation to the authorities. Officer Jordan did not give Miranda warnings to defendant at any point during either conversation or during a telephone conversation on June 16, 1989. At no time did he threaten defendant with immediate or future violence.

At the suppression hearing, Jordan stated that he was aware of the possible solicitation charges that might be filed against defendant. One of the purposes of his conversations with defendant was to obtain incriminating statements from him. Jordan admitted that sometimes it is important to try to isolate the interview and that one technique is to gain the confidence of the suspect.

The trial judge, in a memorandum opinion, held that the statements made by defendant to undercover officer Jordan on May 16, 1989, and June 1, 1989, without being advised of the Miranda warnings must be suppressed pursuant to People v. Perkins (1988), 176 Ill. App. 3d 443, 531 N.E.2d 141. The recorded telephone conversation of June 21, 1989, was also suppressed under the “Fruit of the Poisonous Tree Doctrine.” The court further held that there was nothing in the record to indicate that defendant’s statements were the product of compulsion or coercion and were voluntarily made.

The Illinois Appellate Court decision in Perkins has been subsequently reversed by the United States Supreme Court in Illinois v. Perkins (1990), 496 U.S. 292, 110 L. Ed. 2d 243, 110 S. Ct. 2394. Accordingly, the lower court’s suppression order, although properly following precedent at that time, is now incorrect.

The Supreme Court in Perkins held that Miranda warnings are not required when a suspect in custody is unaware that he is speaking to a law enforcement officer and gives a voluntary statement. (Perkins, 496 U.S. at 294, 110 L. Ed. 2d at 249, 110 S. Ct. at 2395-96; see also People v. Johnson (1990), 197 Ill. App. 3d 762, 555 N.E.2d 412.) Miranda warnings were meant to preserve the privilege during incommunicado interrogation of individuals in a police-dominated atmosphere. That atmosphere is said to generate inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely. (Perkins, 496 U.S. at 296, 110 L. Ed. 2d at 250, 110 S. Ct. at 2397.) Miranda is not implicated in conversations between suspects and undercover agents. The police-dominated atmosphere and compulsion are not present when a prisoner speaks freely to an undercover agent. (Perkins, 496 U.S. at 296, 110 L. Ed. 2d at 251, 110 S. Ct. at 2397.) Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda’s concerns. Perkins, 496 U.S. at 297, 110 L. Ed. 2d at 251, 110 S. Ct. at 2397-98.

At the time of the statements in question, defendant was visiting with undercover officer Jordan in a rather large and open visitation area of the Dixon Correctional Center. Defendant placed the name “Randy Peterson” on the visitation list and was free to end their conversation at any time. Jordan did not use the environment to subjugate defendant’s will to his own. The location of the conversation was the same place any inmate would meet with visitors, so the environment added no pressure. Defendant was not aware that Jordan was a police officer. We conclude that the facts here are within the rule established in Perkins and the Miranda warnings were not required.

Defendant argues, however, that “the undercover officer herein deceptively impelled the defendant to inculpate himself in the inchoate crime of solicitation of murder, a crime he did not initially intend to commit.” In this regard, “[w]hen Jordan did not hear words amounting to the crime of solicitation of murder, however, he disingenuously manipulated the defendant, who was obviously emotionally distraught over the perceived degradation of his daughter’s life, into committing a more serious inchoate offense than he intended.”

In this case, however, the trial judge specifically found that defendant’s statements were voluntarily made and were not the product of compulsion or coercion. Whether a statement is voluntary depends on the totality of the circumstances, and a trial court’s finding that a statement was voluntary will not be disturbed unless it is against the manifest weight of the evidence. People v. Evans (1988), 125 Ill. 2d 50, 76-77, 530 N.E.2d 1360.

Nevertheless, defendant contends that the trial court did not focus on his argument that he was manipulated into committing a more severe offense when the court found the statements voluntary. However, we think that defendant confuses the concept of “interrogation” with police “entrapment,” the latter concept being an appropriate defense at trial. Here, undercover officer Jordan’s deception and conversation on the record provided do not amount to any type of coercion which would implicate due process concerns as to the voluntariness of the statements as found by the trial judge. The essence of defendant’s argument is that he was entrapped. This argument is more properly reserved for the trier of fact when the case is heard on the merits.

Accordingly, for the reasons stated above, we reverse the trial court’s order suppressing defendant’s statements of May 16 and June 1, 1989, and the order suppressing the June 21, 1989, telephone conversation which was based on the order suppressing the earlier two statements.

Reversed.

BOWMAN and NICKELS, JJ., concur.


author: JUSTICE GEIGER

text:
    THE DEPARTMENT OF PUBLIC AID ex rel. MARGARET McFARLAND, Plaintiff-Appellee, v. LAWRENCE G. THOMPSEN, Defendant-Appellant.
    Second District
    No. 2-90-1302
    Opinion filed September 16, 1991.
    William J. Scott, Jr., of Mirabella & Kincaid, of Wheaton, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Eve Moran, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Lawrence G. Thompsen, appeals from a circuit court judgment that, pursuant to the Illinois Parentage Act of 1984 (the Act) (Ill. Rev. Stat. 1989, ch. 40, par. 2501 et seq.), declared him to be the father of Sean McFarland, the child of the relator, Margaret McFarland, and ordered him to pay both retroactive and prospective child support. On appeal, the defendant argues that (1) the trial court violated his constitutional right to choose not to procreate when it required him to support a child born only because the relator deceived him into thinking that she could not become pregnant; and (2) the trial court lacked authority to order child support retroactive to the date of Sean’s birth. We affirm.

On December 23, 1988, the Department of Public Aid (Department), on behalf of the relator, filed a “Petition for Determination of a Father/Child Relationship,” alleging that the defendant was the father of the relator’s child, Sean Michael McFarland, who was born January 22, 1985, and was in the custody of the relator. The petition prayed that the court enter judgment establishing the existence of a father and child relationship between the defendant and Sean and award the relator temporary and permanent child support from April 1984.

The defendant initially denied the allegations of the petition. On August 16, 1988, however, after numerous continuances, the court entered an order based on an agreement amongst the Department, the relator, and the defendant. The order stated that the defendant, upon his admission in open court, was adjudged to be Sean’s father and that the relator was adjudged to be fit and proper to have the sole care, custody, and control of Sean. The order stated that the questions of visitation and support were reserved.

On October 18, 1989, the Department filed what it called a “Petition to Intervene and Set Support.” The petition prayed, inter alia, that the Department be allowed to intervene for the purposes of establishing support and enforcing the resulting order for support and that the defendant be ordered to pay child support and to purchase or maintain health insurance coverage on Sean’s behalf.

The defendant moved to dismiss the “Petition to Intervene and Set Support,” and the Department moved to strike the motion to dismiss. The trial court denied both motions and set the matter for hearing. After more continuances, the court heard the matter on October 19, 1990. We summarize only the relevant testimony from the hearing.

By agreement of the parties, the defendant first called his brother, Robert Jensen, to testify. Jensen had met the relator years before when she and his brother were dating. During or shortly after April 1984, Jensen, who resided in Michigan, received a telephone call from the relator. She told Jensen that she was pregnant and that the defendant knew nothing about it. She told Jensen that she planned to move in with her mother, who would help her bring up the child. She told Jensen she wanted the defendant to have “nothing to do with it,” and that she did not want the defendant to be “liable in any way.” She did not explain what she meant by “liable,” but Jensen took her to refer to liability for child support.

The Department proceeded with its case, first calling the defendant as an adverse witness. The defendant testified that he was 44 years old and had been a licensed pharmacist since 1970. He had known the relator since 1980. He had not yet paid any support for Sean because the court had not yet required him to do so.

The relator testified that she was 43 years old, single, and had been working as a school nurse for four years. From 1975 through February 1986, she had been employed as a nurse at Rush-Presbyterian-St. Luke’s Hospital. Her relationship with the defendant lasted about two years.

In July 1984, the relator telephoned Robert Jensen. She told Jensen that she was pregnant, that the defendant was the father, and that Jensen might try to get the defendant to “become a little more involved.” The relator did not recall discussing child support or other financial matters with Jensen. She testified that she did not tell Jensen that the defendant did not know she was pregnant, since she had informed the defendant by telephone of her pregnancy in May 1984.

The relator acknowledged that at the time Sean was conceived she had endometriosis and was taking Danocrine, a prescription drug, for this condition. She took Danocrine from about December 1983 through March 1984. The defendant knew about this because he was filling her prescriptions. She did not ask the defendant to keep filling her prescriptions beyond March 1984, but could not remember whether, before she discovered that she was pregnant, she told the defendant that she had stopped taking Danocrine.

The relator testified that she did not know the side effects of Danocrine. She admitted that shortly before Sean was conceived her doctor had told her that her “biological clock” was running. Before she started taking Danocrine, she had undergone a laparoscopy and a D and C procedure. Although these operations could have made pregnancy more likely, the reason she had the surgery was as treatment for her endometriosis. She testified she was not trying to become pregnant, but she was not completely against it; if it happened, it happened. The relator and the defendant talked a few times about having children. On these occasions, the defendant said that he did not want children. The relator could not recall if any of these discussions took place in 1984.

The defendant testified in his own behalf. He stated that the last time he filled a Danocrine prescription for the relator was two or three weeks before Robert Jensen called him in May 1984 to tell him that the relator was pregnant. The defendant replied that was impossible because she was taking Danocrine, a leading side effect of which was the inability to become pregnant. This call was the first the defendant heard about the relator’s pregnancy.

After receiving another call on the same subject from his brother, Donald Thompsen, the defendant met with the relator at her house. He asked her how she could have gotten pregnant; she replied that she had stopped taking Danocrine. He asked her why she did not at least talk with him about the matter beforehand; she replied that she knew from their past discussions that he would not want to become involved. The defendant told the relator that she at least could have informed him that she was no longer taking a drug that she had been using as a contraceptive. She assured him that it was a decision she had made on her own and that it was no accident. She thought her pregnancy was “wonderful.”

The defendant testified further that the relator assured him that she would not ask him to support the child that he had unwittingly fathered. She would keep her job and live with her mother, who would help care for the baby. The defendant testified further that he signed the August 16, 1988, consent order because he understood the order to mean that if he had no contact with Sean, the relator would not make him support the child.

The defendant stated that he and the relator had on several occasions discussed having children. He did not want children, and she knew it. Had he known that she had stopped taking Danocrine, at the very least he would have discussed with her whether they wanted to continue their sexual relationship and what steps they might have taken to make sure that she did not become pregnant.

Donald Thompsen, the defendant’s brother, testified that he visited the relator in the spring of 1984 on business. She told him then that she was pregnant with the defendant’s child and that the defendant did not know it. She explained that her biological clock was running out; if she did not have a baby soon, she might never be able to have one.

At this point in the hearing, counsel for the Department objected and asked that Donald Thompsen’s testimony be stricken on the ground that it was irrelevant because “there is [no] entrapment defense in a paternity action.” The defendant’s attorney argued that the relator’s conduct and attitude were relevant to whether the defendant was obligated to support the child or, at least, the amount of his obligation. The trial judge disagreed, explaining that under the Act every child is entitled to both parents’ support. The defendant then made an offer of proof in which Donald Thompsen testified that the relator had told him that she had not told the defendant about her plan to become pregnant because she knew that he would not agree. She also said that since this was her decision, she would take full responsibility and did not want anything from the defendant.

By an order entered October 19, 1990, the trial court held that the defendant owed a duty of financial support to Sean. The court set the obligation at $75 per week from January 22, 1985, Sean’s date of birth, through January 22, 1990; $90 per week from January 22, 1990, through January 22, 1998; and $120 per week from January 22, 1998, until Sean turned 18. The court also ordered the defendant to obtain group medical insurance for Sean. The order stated finally that the case was continued to November 6, 1990, “for setting of amount and payment plan on arrearage.”

The defendant filed his notice of appeal from the October 19, 1990, order the next day. On November 13, 1990, the court entered an order stating that pursuant to the October 19, 1990, order, the defendant owed back support in the sum of $23,355. On November 27, 1990, the court entered an order of withholding, pursuant to section 19 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 2519) against any payor of the defendant.

In our consideration of the defendant’s appeal, we can quickly dispose of the issues he raises. The defendant argues first that because he was (as he sees it) tricked into fathering a child that he did not want, the State violated his constitutional right of procreative choice by requiring him to support that child. The defendant argues that the Act as applied is therefore unconstitutional. We find his argument totally without merit. The defendant attempts to analogize this case to two United States Supreme Court cases invalidating State restrictions on the distribution of contraceptives. (See Carey v. Population Services International (1977), 431 U.S. 678, 52 L. Ed. 2d 675, 97 S. Ct. 2010; Eisenstadt v. Baird (1972), 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029.) Here, however, the State has not limited the defendant’s (or anyone’s) access to contraception, but simply has required that the defendant who fathered a child contribute to the support of that child. The defendant can point us to no authority requiring us to hold that a child must be deprived of the support of one of his parents because of that parent’s misapprehension of the likelihood of conception. We find that the constitutional right claimed by the defendant, which would require such discrimination against an innocent minor, does not exist.

The defendant next argues that the Act does not allow the retroactive payments of child support ordered in this case. The defendant never raised this argument at the trial level and has therefore waived it on appeal. In any event, section 14(b) of the Act plainly states that the court may order child support payments to be made “for a period prior to the commencement of the action” (Ill. Rev. Stat. 1989, ch. 40, par. 2514(b)). This language means what it says. (Milligan v. Cange (1990), 200 Ill. App. 3d 284, 293; In re Paternity of Hubbard (1989), 186 Ill. App. 3d 234, 236-37.) The trial court therefore did not err in ordering retroactive support payments.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

WOODWARD andINGLIS, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BENNY L. DIXON, Defendant-Appellant.
    Second District
    No. 2—90—0803
    Opinion filed September 17, 1991.

      Elliot M. Samuels, of Chicago, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Benny L. Dixon, appeals his conviction of syndicated gambling (Ill. Rev. Stat. 1989, ch. 38, par. 28 — 1.1(d)). Defendant was found guilty after a stipulated bench trial and was sentenced to 30 months’ probation, a fine and forfeiture of various assets. On appeal, defendant raises the issue whether venue was proper in Du Page County.

Defendant was charged by indictment with one count of syndicated gambling and one count of conspiracy to commit gambling (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 2(a), 28 — 1(a)). Defendant filed a motion to dismiss the indictment, based on the allegation that all the wagers were made in Lockport, in Will County, Illinois. According to defendant, the only act which occurred in Du Page County was the collection of money on unsuccessful wagers.

The parties stipulated to the following facts. On October 16, 1989, Agent Rick Quarrels, of the Illinois State Police, called 909-1958, a cellular telephone number, and spoke to “Mike,” who accepted three wagers on horse races. The next day, Quarrels called 504-1958, again a cellular telephone number, and spoke to a person identifying himself as “Pete Dixon.” Quarrels placed nine wagers on horse races. On October 18, Quarrels telephoned the 504 number again, which was answered “Lockport Currency Exchange.” Quarrels spoke to Pete Dixon and placed three wagers on horse races. On October 20, Quarrels called the 909 number to place wagers. On October 23 and November 3, Quarrels placed wagers by calling the 504 number. On October 23, defendant was observed at the Lock-port Currency Exchange, in Lockport.

On October 26, in Aurora, Quarrels met with defendant, who had identified himself as “Pete Dixon.” Quarrels paid defendant $715 for losing wagers. On October 30, defendant told Quarrels to call him at (815) 838-2917, which was registered to the Lockport Currency Exchange. On that date, and again on October 31 and November 6, Quarrels called defendant at the Lockport Currency Exchange and placed wagers on horse races and pro football games. On November 4, Quarrels placed one wager on a football game by calling defendant at 203-8176, a cellular telephone.

On November 7, at Quarrels’ suggestion, he and defendant met at the Willowbrook Holiday Inn, in Du Page County, so that Quarrels could pay defendant for $620 in losing wagers.

Quarrels made all of the calls to defendant from Quarrels’ home in Lake County or from his office in Du Page County. Quarrels did not know where defendant was located on any of the occasions when Quarrels called the cellular telephones. In addition, on several occasions, Quarrels heard traffic noise in the background. During the November 4 telephone conversation, defendant said he “had to ‘pull over’ to the side of the road to record the transaction.” Quarrels had made that call from Du Page County.

On appeal, defendant contends that his conviction must be reversed because the State failed to prove that venue was proper in Du Page County. Venue, the charge that a crime was committed in a particular county, is a material element of the State’s case which must be proved beyond a reasonable doubt. (People v. Gutirrez (1990), 205 Ill. App. 3d 231, 251.) Defendant argues that the State did not prove that defendant committed any elements of the offense of syndicated gambling based on bookmaking in Du Page County.

Venue is proper in any county where any element of the offense was committed. (People v. Lambert (1990), 195 Ill. App. 3d 314, 318.) “[T]he gravamen of the offense of bookmaking is the acceptance or receipt of more than five bets or wagers totaling more than $2,000.” (People v. Dugan (1985), 109 Ill. 2d 8, 14.) The payment of money wagered is not an element of the offense. (People v. Miller (1984), 128 Ill. App. 3d 574, 581.) Defendant argues that since there is no evidence that he accepted or received any wagers in Du Page County, his conviction must be reversed.

The State responds that, under People v. Hagan (1990), 199 Ill. App. 3d 267, because part of the transaction (Quarrels’ calls to place the wagers) occurred in Du Page County, venue was proper in either Will or Du Page County. The State also cites People v. Clark (1979), 71 Ill. App. 3d 381, in support of its position.

Both Hagan and Clark are distinguishable from the present cause. In Hagan, the defendant “faxed” a forged letter from Lake County to the victim’s office in Cook County. As the court explained, “[t]he situs of a crime is to be determined from the nature of crime alleged and the location of the act or acts which constitute it; however, if a crime against the State is committed partly in one county and partly in another, venue may be proper in either county.” (Hagan, 199 Ill. App. 3d at 286.) The court found that venue would have been proper in either county because the gist of the offense at issue was that the defendant transmitted a document which was capable of defrauding the victim. 199 Ill. App. 3d at 286.

In Clark, although the entire transaction occurred in Cook County, because the defendant was a public official of Du Page County, and the offense constituted a breach of his fiduciary duties to the people of Du Page County, he could be tried in either county. Clark, 71 Ill. App. 3d at 397.

Here, by contrast, the entire offense, the accepting or receiving of the wagers, was done by defendant. The State did not prove that defendant ever accepted or received a wager in Du Page County. Even though part of the conspiracy may have occurred in Du Page County, that county is not the proper venue for the syndicated gambling offense if none of the elements of that offense took place in Du Page County. The relationship between the offenses here is similar to the circumstances at issue in People v. Page (1990), 196 Ill. App. 3d 285. There, the defendant was charged with, among other things, felony murder predicated on robbery. The murder took place in Will County, but the robbery was committed in Cook County. The court found that Will County was the proper venue for the felony murder charge, but the robbery conviction had to be reversed because the offense was not committed in Will County. (Page, 196 Ill. App. 3d at 292.) Thus, merely because two offenses are related, if none of the elements of the first offense are committed within the county where any element of the connected offense was committed, venue in that county may be proper for the connected offense, but not for the first offense.

The State argues, however, that because some of the wagers were accepted by cellular telephone, there was no way to tell where defendant was when he accepted the wagers. Therefore, the State reasons, venue would be proper in the county where the calls originated. We disagree. The evidence showed that at least three of the calls were placed to Lockport, Illinois. Thus, the State could prove venue in Will County. This is not a situation in which it was impossible to determine where any elements of the offense were committed. We express no opinion regarding the proper situs of venue had all of the calls been made to a cellular telephone, as we are not required to address merely academic questions. We note, however, that all the evidence was found in Will County. Defendant lived and owned a business in Will County, and the bookmaking was run from his business. The stipulated evidence showed that defendant never accepted or received a wager by calling Du Page County. In addition, some of the wagers were placed from Lake County. Thus, Will County was the proper venue, and the State failed to prove that any wagers were accepted or received in Du Page County. We therefore reverse the conviction of syndicated gambling.

The State argues that the cause should be remanded for sentencing for the inchoate offense, conspiracy to commit gambling. We agree with the State that defendant was not acquitted of that offense when the court dismissed the charge. The basis for the dismissal was that a defendant cannot be convicted of both the inchoate and the principal offense. (See Ill. Rev. Stat. 1989, ch. 38, par. 8 — 5.) Because the court found that the evidence was sufficient to support defendant’s conviction of the conspiracy offense, reinstatement will not offend double jeopardy principles. See People v. Mink (1990), 141 Ill. 2d 163, 178-79.

Venue on this charge is proper in Du Page County since to prove a conspiracy to commit gambling only one overt act in furtherance of the conspiracy need be proved. There was proof that the defendant “paid off” Agent Quarrels at the Willowbrook Holiday Inn in Du Page County.

Finally, the State argues that the order of forfeiture should not be reversed. As the State notes, defendant made that request in his prayer for relief, but did not present any argument on that point. The rules of appellate practice require all issues to be set forth clearly and supported by argument and authority. (134 Ill. 2d Rules 341(e)(3), (e)(7).) Failure to satisfy these requirements results in waiver of the issue or argument on appeal. People v. Morgan (1986), 112 Ill. 2d 111, 138; People v. Saulsburry (1989), 178 Ill. App. 3d 857, 864.

The judgment of the circuit court of Du Page County is affirmed in part and reversed in part, and the cause is remanded for sentencing.

Affirmed in part; reversed in part and remanded.

DUNN and McLAREN, JJ., concur.


text:
    JOSEPH GENGLER, a Minor, by Mary E. Gengler, his Mother and Next Friend, Plaintiff-Appellant, v. NORMAN HERRINGTON, Defendant-Appellee (Rheem Manufacturing Company, Inc., et al., Defendants).
    Second District
    No. 2—91—0045
    Opinion filed September 20, 1991.

      Meg E. Goblet, of Gooding & Goblet, of Aurora, for appellant.
    Robert J. Baron, of Rooks, Pitts & Poust, of Joliet, Thomas P. Scherschel, of Querrey & Harrow, Ltd., of Geneva, and Michael Resis, of Querrey & Harrow, Ltd., of Chicago, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The minor plaintiff, Joseph Gengler, born February 5, 1986, appeals from a summary judgment entered in favor of the defendant, Norman Herrington, on October 11, 1990. The plaintiff’s motion to reconsider the judgment was denied on December 12, 1990, and this timely appeal followed. The issue presented on appeal is whether, as a matter of law, the defendant breached a duty of care to the plaintiff. We affirm.

The plaintiff initially filed a negligence action on June 30, 1989. His cause of action stems from burns he sustained to his hands on March 2, 1988, when the hot water was turned on in the bathroom sink of his baby-sitter’s apartment at 713 Sexton in Aurora, Illinois.

The defendant, Norman Herrington, was the lessor and owner of the building where the baby-sitter, Diane Moncrief, was a tenant. Marjorie Herrington was dismissed from the action apparently because she had no ownership interest in the property. Rheem Manufacturing and Robertshaw Controls were eventually dismissed from the action after separate settlement agreements were reached with the plaintiff.

The issue presented by the defendant’s motion for summary judgment was whether the landlord breached a duty to protect the plaintiff, where there was evidence in support of the motion that he did not have actual or constructive knowledge or notice of a defect or dangerous condition existing on the rental premises so that injury to the child would be reasonably foreseeable. (See, e.g., Kostecki v. Pavlis (1986), 140 Ill. App. 3d 176, 179; Trotter v. Chicago Housing Authority (1987), 163 Ill. App. 3d 398, 402.) In granting summary judgment for the defendant, the trial court found that there was no material question of fact regarding the (lack of) notice to the defendant or of his duty toward the plaintiff. We agree that, under the facts presented, granting summary judgment was proper.

The plaintiff’s second amended complaint alleged, inter alia, that the defendant knew or should have known that the premises would be occupied by small children and that it was the duty of the defendant to insure that these premises were safe for use by children coming onto the premises, including the plaintiff. The complaint further averred that the defendant knew or should have known that the water heater was not capable of maintaining consistent water temperatures; that the heater provided tap water so hot as to be capable of causing severe burns and that the water heater allowed dangerously hot water to go to the bathroom sink; that he knew or should have known that the setting of the thermostat was erratic; that the defendant failed to inspect and maintain the hot water heater properly and to secure the basement common area where children played and where the heater was located; and that he failed to warn tenants of the dangers of hot tap water to small children or to provide a locking device for the water heater thermostat when he knew or should have known that it provided an unreasonably dangerous condition if tampered with.

The defendant’s motion for summary judgment was supported by the depositions of Diane Moncrief and the defendant. Moncrief, the plaintiff’s baby-sitter, testified that she was a month-to-month tenant of the defendant for a five-year period prior to the time of the occurrence. She lived there with her husband and three children. She was baby-sitting the plaintiff, who arrived at about 11 a.m. on March 2, 1988. She charged about a dollar per hour for this service. Also present in the apartment were her own three children: five-year-old Matthew, three-year-old Rachel, and one-year-old Stephanie. The incident occurred sometime between 12 and 12:30 p.m. Moncrief stated that she had never made any complaints to the defendant regarding the hot water heater and it seemed normal to her. She walked past it every time she did the laundry. When she first moved in, she checked the thermostat and put it on just above “warm.” The “warm” setting was on one side of the dial, and the “hot” setting was on the other. She checked the setting from time to time. She did not remember looking at the setting prior to the incident, but just after the accident, she saw that it was set all the way on “hot.” Neither she nor anyone else ever fixed the heater during the time she had rented the apartment; she acknowledged that the defendant would make repairs when asked to do so.

Before the plaintiff was dropped off that day, Moncrief was doing her laundry. She also used the dishwasher and had taken a shower that morning. She did not notice any abnormal changes in the temperature. The heater was located in the basement, which was accessible from a stairway leading from her kitchen. When asked who would have turned the setting to “hot,” Moncrief surmised that it might have been one of her children, who were playing in the basement area that morning while she was doing the laundry. They started to have lunch about 12 noon, and Stephanie cried and became “crabby,” so Moncrief took her and cleaned her off with a washcloth. She asked her five-year-old son, Matthew, to take Rachel and the plaintiff to get cleaned up in the bathroom for nap time. The plaintiff, approaching his third birthday, was three feet tall at most and was able to walk, but could not talk very much.

The bathroom had a basin set in a cabinet about three feet high. There was a two-step child’s step stool for the children to reach the sink. Moncrief heard the water running in the bathroom for a couple of minutes and then heard plaintiff crying and Matthew yelling, “Mom, come quick.” When she reached the bathroom, she saw Rachel sitting on the toilet “going to the bathroom” and Matthew standing on the step stool. Joe was on the corner of the counter of the sink on the left side near the hot water, and the sink was full. The room was full of steam, and plaintiff had his hands up shaking them and complaining that they hurt, saying, “Hurt, owie.” Both sides of his hands were red and blistered. The water had been turned on all the way, and there was a little splatter because it was coming out with such force. Moncrief told her children to go take their nap and notified a relative of the plaintiff.

In the past, the plaintiff had never gone into the bathroom without her, nor had he been left in the charge of Matthew. Moncrief had been baby-sitting the plaintiff for six to nine months. Matthew was capable of turning on the water without assistance, but she did not know who turned the water on. When she asked Matthew how the accident occurred, he maintained that he was not there and would not give any answers regarding what had happened. Matthew and Rachel had always used cold water in the past to wash. Moncrief had warned them about not using the hot water, and there had not been any problem, although, on a couple of occasions, Matthew had turned the hot water up so that there was steam rising from it.

Moncrief knew that Matthew was not telling the truth when he said he was not in the bathroom at the time of the injury. She surmised that Matthew must have helped the plaintiff get on top of the sink because the plaintiff was not a very rambunctious child who readily climbed. She thought the plaintiff was strong enough to have turned on the water by himself.

A couple of days after the accident, Moncrief tested the water temperature with a candy thermometer and obtained a reading of 120 degrees. On one occasion a couple of years prior to the accident, Moncrief noticed that the water in the shower got hot enough to turn the skin red when the toilet in the bathroom was flushed. It then became the standing rule that when someone else was taking a shower, the toilet stool should not be flushed. She did not believe it was necessary to change the controls on the water heater. She believed that the reason the water got so hot on the day of the accident was that her daughter Rachel had flushed the stool and the temperature was set all the way on “hot.”

The basement area, where there were two water heaters, one for the Moncriefs and one for the other tenant, was accessible to the other tenant by an outside door. Moncrief saw no reason why the other tenant would have changed the controls on the Moncriefs’ water heater. She assumed that the temperature control had been turned up that day, but she did not do it and neither did her husband. She also assumed that, because she was in the basement with her children doing her laundry that morning, one of her children had turned the control.

The defendant’s deposition testimony showed that he inherited the residence in 1977 from his mother, who had owned it since 1949. There was an upper and a lower apartment unit, and the unfinished basement contained a furnace and a water heater for each unit. The defendant had been renting the property to the Moncriefs for about five years, and he was aware that Diane was baby-sitting. The last time he saw the water heaters before the incident, the thermostat was set in the middle, and he had never seen it on any other setting. The setting was a matter of choice for the tenant. He never attempted to enclose the heater or put a locking device on the heater control. He never told the tenants how to set the heater. He was aware that there was a written manufacturer’s notice on the heater stating that the heater was equipped with an automatic gas shutoff system actuated by high water temperature.

The defendant never gave the tenant any written instructions regarding the temperature control or any manufacturer’s manual. He was aware that the heater had a blow-off valve that was activated when the water reached a certain temperature to prevent scalding hot water from coming from the tank. He did not clean the thermostat valve or recalibrate the thermostat or adjust the pilot burner, but he did relight the pilot light when the tenants asked him to do so. He and the tenants had access to the basement area. The upstairs tenant had a key to the outside door of the basement.

The defendant had never received any complaints about the water temperature being inconsistent with the water temperature setting, nor had he received any complaints at all about the water heaters or the temperature of the water. He was not aware that hotter water would come from the shower if the toilet were flushed in the bathroom.

We now consider whether, as a matter of law, the defendant landlord could be held to have breached a duty of care owed to the plaintiff. (See Keller v. Mols (1984), 129 Ill. App. 3d 208, 210.) A landlord who retains control of a portion of the premises leased to a tenant has the duty, as the party in control, to use ordinary care in maintaining that part of the premises in a reasonably safe condition. (Rowe v. State Bank (1988), 125 Ill. 2d 203, 220.) Conversely, a landlord is not liable for injuries caused by a defective condition on the premises leased to a tenant and under the tenant’s control. (Rowe, 125 Ill. 2d at 220-21; see Wright v. Mr. Quick, Inc. (1985), 109 Ill. 2d 236, 238.) This is true whether it is the tenant or the tenant’s invitee who is injured, as a guest or invitee stands in the same position as the tenant and has no greater rights against the landlord. (Housh v. Swanson (1990), 203 Ill. App. 3d 377, 383.) An invitee assumes all normal, obvious or ordinary risks attendant on the use of the premises. Dargie v. East End Bolders Club (1952), 346 Ill. App. 480.

Even where a landlord retains control of part of the premises, he is not liable for injuries that are not reasonably foreseeable; he is not an absolute insurer for all injuries occurring on his premises. (Trotter v. Chicago Housing Authority (1987), 163 Ill. App. 3d 398, 402.) In order to show that the defendant breached his duty of maintaining the premises under his control in a reasonably safe condition, it is necessary to establish that he had actual or constructive knowledge of the existence of a defective or dangerous condition. Kostecki v. Pavlis (1986), 140 Ill. App. 3d 176, 179; see also Garcia v. Jiminez (1989), 184 Ill. App. 3d 107, 112.

In the deposition testimony of both the defendant and the tenant, Diane Moncrief, there is no evidence that the defendant ever had knowledge that the water in the tenants’ apartment could become so hot as to cause injury to an unsuspecting child. The Moncriefs had used the hot water over a five-year period without complaining to the defendant, and the temperature setting was within their control. Diane Moncrief had been using the hot water all that morning just before the accident and observed nothing unusual about the water. Even if it could be said that the defendant exercised some control over the water heater itself, the accident occurred in the apartment, an area under the control of the tenant. The defendant made repairs when called upon to do so by his tenants. We believe it would be unfair to hold the defendant liable for a potentially defective condition of the hot water system when he had no reason to suspect that there was a defect and he was not advised of a possible defective condition by those in the best position to know of it.

While we have found no Illinois case precisely on point, the facts of this case are analogous to those in King v. Wiesel (1941), 67 R.I. 182, 21 A.2d 262. There, hot water was supplied to all bathrooms of an apartment house from a central heating system in the control of the landlords, and the plaintiff tenant was scalded when there was a sudden rush of hot water and steam from the shower. Apparently, neither the plaintiff nor any other tenant had complained of any defect or want of repair in the shower or fixture. The testimony of the plaintiff’s expert admitted that the system was not inherently unsafe or dangerous, and he pointed to no particular part that was worn or in need of repair which could have given notice to the defendants of the allegedly unsafe condition. The court held that a verdict for the landlords was properly directed where the evidence did not support the allegation that the shower bath and fixtures were in a bad, unsafe or dangerous condition. The court also determined that the doctrine of res ipsa loquitur was inapplicable, since the mixing of the hot and cold water was not exclusively in the control of the defendants and required the intervention of the plaintiff in operating the faucets.

Likewise in this case, we observe that the plaintiff presented no competent evidence that there was an actual defect in the water heater. There is no expert testimony in the record. The water from the hot water faucet was hot — as it was intended to be. (See Dargie, 346 Ill. App. 3d 480 (defendant owner did not breach duty of care to unattended plaintiff child burned by exposed, hot radiator in rest room).) The plaintiff merely speculates that there was a defect in the water heater, and the children’s activities in the bathroom are open to conjecture as well. It is true that the water was hot enough to scald the plaintiff. It is unfortunate when a child is injured while playing with household fixtures. However, the primary responsibility for preventing injury to very young children must be placed on the parents or on those who are entrusted with the children’s supervision. See Strode v. Becker (1990), 206 Ill. App. 3d 398, 405.

Virtually every household appliance or fixture may present a danger to a two- or three-year-old child who is left unsupervised by his parents or caretaker, and in such cases, under proper circumstances, a landowner may be relieved of the duty to warn the child or remove the dangerous instrumentality whose danger is apparent. (See Strode, 206 Ill. App. 3d at 405.) Under the conditions present here, the law should not impose a duty on the landlord to insure the safety of a toddler who is left free to roam and give vent to his curiosity. (See Strode, 206 Ill. App. 3d at 407 (Steigmann, J., dissenting); see also Bonamie v. Welsh (1981), 95 Ill. App. 3d 349 (property owner not absolute insurer against all injuries occurring on his premises).) Since the plaintiff has failed to show that the defendant breached a duty of care to him, the trial court properly granted summary judgment. See Keller, 129 Ill. App. 3d at 210.

The judgment of the circuit court is affirmed.

Affirmed.

WOODWARD and INGLIS, JJ., concur.


text:
      In re D.R., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. D.R., Respondent-Appellant).
    Second District
    No. 2—89—0773
    Opinion filed September 19, 1991.

      G. Joseph Weller and Sherry R. Silvern, both of State Appellate Defender’s Office, of Elgin, for appellant.

      Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The minor, D.R., appeals from an order placing her on supervision pursuant to section 5 — 19 of the Juvenile Court Act of 1987 (Juvenile Court Act). (Ill. Rev. Stat. 1989, ch. 37, par. 805 — 19.) The minor argues on appeal that the trial court improperly ordered her to pay, as part of her conditions for supervision, restitution for the lost wages incurred by the victim’s mother. The minor contends that the victim’s mother is not a “victim” under either section 5 — 5—6 of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—6), or under section 1403(a) of the Bill of Rights for Victims and Witnesses of Violent Crime Act (the Act) (Ill. Rev. Stat. 1989, ch. 38, par. 1403(a)).

On March 31, 1989, the State filed a petition for adjudication of delinquency and wardship against the minor alleging that she had committed the offense of aggravated battery in violation of section 12 — 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(a)). A hearing was held in which the minor was to admit to the facts surrounding the complained-about incident in return for an agreed-upon term of supervision. During the hearing, however, the minor decided not to make an admission, but did stipulate that the prosecution would be able to present sufficient evidence to support a finding of responsibility.

The State recited that it would be able to present evidence that on January 20, 1989, the minor sprayed mace into the eyes of Juan Herrera on a school bus en route to Carpentersville Middle School. The State also listed witnesses it would call to provide this evidence. The defense offered no evidence.

Based on the stipulation, the trial court found that there was a sufficient basis to find the minor delinquent, but specifically held that it was withholding a determination of the issue pending the minor’s completion of 12 months of supervision. The court’s written order in part stated:

“Minor will stipulate that if the State proceeded with a hearing the evidence would support a finding of guilt that minor committed the Aggravated Battery by spraying mace into the face of Juan Herrera on or about January 20, 1989 at approximately 8 AM [sic] while on a school bus headed to Carpenters-ville Middle School in Kane County, Illinois. Minor is placed on pre-adjudicatory supervision.”

The conditions of the minor’s supervision included 15 hours of community service, the payment of her legal fees, and a nonassociation order concerning Juan Herrera. The trial court reserved, however, the determination of restitution and instead set the date of July 26,1989, as the date for the restitution hearing.

During the restitution hearing, the trial court heard evidence that after the incident Juan Herrera went to the hospital where his eyes were washed out and examined. There it was determined that Juan needed glasses. The minor disputed the cost of the glasses since there was evidence that Juan’s eye problems were a preexisting condition.

Mrs. Herrera testified that insurance covered the hospital bill, but not the cost of the glasses. The trial court heard further evidence concerning the cost of Mrs. Herrera’s interpreter and the amount of Mrs. Herrera’s lost wages as a result of attending Juan in the hospital and for the two days she came to court. The court ordered restitution in the amount of $182.60, which was equivalent to the 22 hours of lost wages incurred by Mrs. Herrera. At the time the court entered its order of restitution, it noted that all prior orders remained in effect and the matter was continued until June 20,1990.

Defendant contends on appeal that the trial court erred in awarding, as restitution, the amount of Mrs. Herrera’s lost wages because she is not a victim under Illinois law.

We first note that the State has argued that the minor has waived this issue on appeal for failure to object to the imposition of the restitution order in the trial court. While the minor did not specifically object to the order of restitution at the time the trial court ordered restitution, during the evidentiary hearing to determine the amount of restitution, the minor did object to the testimony of the minor’s mother concerning her lost wages.

In In re V.L.F. (1988), 174 Ill. App. 3d 930, the court held that where the minor was claiming that the trial court lacked authority to order restitution, the minor’s argument was not waived. (V.L.F., 174 Ill. App. 3d at 933.) Also, because it may be argued that the minor is contending that the trial court exceeded its authority under the restitution statute by awarding restitution to a person who is not considered a victim under the statute, the order may be considered void and attacked at any time. People v. Daugherty (1982), 104 Ill. App. 3d 89; see also In re T.E. (1981), 85 Ill. 2d 326; People v. Winchell (1986), 140 Ill. App. 3d 244; People v. Evans (1984), 122 Ill. App. 3d 733.

However, we note that it can be implied from the record that the minor agreed to pay restitution as part of her agreement for supervision. In People v. Early (1987), 158 Ill. App. 3d 232, the appellate court held that where a trial court enters an order of restitution based on the defendant’s invitation to do so, the issue is waived for the purposes of appeal. (158 Ill. App. 3d at 240.) “Where a defendant invites the trial court to act in a certain manner, he may be precluded from arguing that conduct was improper on appeal.” (158 Ill. App. 3d at 240.) Here, however, because the minor did not agree to a specific amount of restitution, and because the restitution issue was initially reserved by the prosecutor because he was unsure if restitution was actually necessary, we do not find the issue waived as there was no clear indication from the record of what was agreed to as terms of restitution.

Both section 5 — 19(5)(o) and section 5 — 24(2)(1) of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1989, ch. 37, pars. 805 — 19(5)(o), 805 — 24(2)(1)) allow a trial court to award restitution as a condition of either supervision or probation. That award of restitution is subject to the provisions of section 5 — 23(4) of the Juvenile Court Act (Ill. Rev. Stat. 1989, ch. 37, par. 805 — 23(4)). Section 5 — 23(4) states that restitution is to be awarded pursuant to the provisions of section 5 — 5—6 of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—6). Section 5 — 5—6 authorizes the payment of restitution to victims in criminal cases. (People v. Gaytan (1989), 186 Ill. App. 3d 919, 928.) Except in certain cases involving victims 65 years of age or older, the entry of an order of restitution is discretionary with the trial court. People v. Strebin (1991), 209 Ill. App. 3d 1078, 1085.

Section 5 — 5—6(b) states that “the court shall assess the actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim named in the charge and such other victims who may also have suffered out-of-pocket expenses, losses, damages, and injuries proximately caused by the same criminal conduct of the defendant.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—6(b).) The term “victim” is defined in section 5 — 1—22 of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 1—22) and provides that the word “ ‘[vjictim’ shall have the meaning ascribed to it in subsection (a) of Section 3 of the *** Act [(Ill. Rev. Stat. 1989, ch. 38, par. 1403(a))].” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 1—22.

Section 3(a) of the Act provides:

“(a)‘Victim’ means (1) a person physically injured in this State as a result of a violent crime perpetrated or attempted against that person or (2) a person who suffers injury to or loss of property as a result of a violent crime perpetrated or attempted against that person or (3) the spouse, parent, child or sibling of a person killed as a result of a violent crime perpetrated against the person killed or the spouse, parent, child or sibling of any person granted rights under this Act who is physically or mentally incapable of exercising such rights, except where the spouse, parent, child or sibling is also the defendant or prisoner or (4) any person against whom a violent crime has been committed or (5) any person who has suffered personal injury as a result of a violation of Section 11 — 501 of The Illinois Vehicle Code, or of a similar provision of a local ordinance, or of Section 9 — 3 of the Criminal Code of 1961, as amended.” Ill. Rev. Stat. 1989, ch. 38, par. 1403(a).

We acknowledge the benefit of a concerned parent’s presence when her child receives hospital attention or when he is appearing in court. Additionally, we acknowledge that a parent who accompanies her child to such places experiences a burden in schedule disruption and associated costs. Nevertheless, we must find that the court lacked authority to award restitution to Mrs. Herrera.

Despite the fact that any concerned parent is herself victimized when her child is the victim of criminal conduct, the statute that creates the right to recover “victim” restitution gives a technical definition of the category of “victims” entitled to recover lost wages. It is a legislative function to define statutorily the category of persons entitled to receive statutory reimbursement. We find that Mrs. Herrera is not covered under that section 3(a) definition of the Act. She is not a person against whom a violent crime was committed and has not suffered physical injury or property damage as a result of a violent crime perpetrated or attempted against her. See Ill. Rev. Stat. 1989, ch. 38, pars. 1403(a)(1), (a)(2), (a)(4), (a)(5).

The only possible statutory definition of “victim” that might apply to Mrs. Herrera is section 3(a)(3) of the Act, which defines a “victim” as any “parent *** of any person granted rights under this Act who is physically or mentally incapable of exercising such rights.” (Ill. Rev. Stat. 1989, ch. 38, par. 1403(a)(3).) Here, however, there was no evidence that a physical or mental incapacity rendered Juan incapable to receive proper medical care at the hospital or to appear in court to testify.

The record contains no testimony that Mrs. Herrera was required to be at the hospital because of some physical or mental incapacity of her son. Further, as to Mrs. Herrera’s presence in court, we again find that there was no evidence that her presence was due to any mental or physical incapacity related to Juan. We find that the trial court abused its discretion in ordering restitution for Mrs. Herrera’s lost wages. (See People v. Nicholl (1991), 210 Ill. App. 3d 1001, 1013-14.) We therefore remand this cause for a new hearing on restitution.

The decision of the circuit court of Kane County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

INGLIS and BOWMAN, JJ., concur.