text:
    SUSIE BROWN, Co-Adm’r of the Estate of Eliza White, Deceased, Plaintiff-Appellant, v. NADER BOZORGI, Defendant-Appellee.
    First District (3rd Division)
    No. 1—91—0423
    Opinion filed September 16, 1992.

      James C. Harman, of Thomas R. Cirignani & Associates, of Chicago, for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Richard L. Murphy, and Susan Condon, of counsel), for appellee.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Following a trial in this medical malpractice action, the jury rendered a verdict for defendant, Dr. Nader Bozorgi. Plaintiff, Susie Brown, the co-administrator of the estate of Eliza White, the deceased, now appeals from the trial court’s denial of her post-trial motion for a new trial based on defendant’s alleged violation of an in limine order barring the mention of settlement agreements with codefendants.

We find that the in limine order was not violated and, thus, we affirm.

On April 23, 1987, Eliza White, plaintiff’s decedent, entered the Concord Medical Center for a surgical procedure known as a laparoscopic tubal ligation. Defendant, an obstetrician-gynecologist, was the surgeon and Dr. Carlos Del Busto was the anesthesiologist. Shortly after the surgery began, Ms. White went into cardiac arrest and when resuscitation efforts proved unsuccessful, she died.

Plaintiff filed her complaint against the medical center and Dr. Del Busto, the anesthesiologist, and then filed her second amended complaint, joining Dr. Bozorgi as a defendant.

In 1989 the medical center entered into a settlement agreement with plaintiff and was dismissed from the suit. In October 1990, when trial was to begin, Dr. Del Busto was dismissed from the suit based on a settlement. Plaintiff then filed a third amended complaint against only Dr. Bozorgi.

Before trial, the court granted plaintiff’s motion in limine:

“That the Defendant, NADER BOZORGI and his attorneys and witnesses are prohibited from making any comments or arguments in front of the jury relating to the settlement agreements made between the Plaintiff and Carlos Del Busto, M.D. and Concord Medical Services.”

At trial the jury heard evidence recounting the events leading to the patient’s death, including the resuscitative measures taken, the experts’ opinions as to the appropriate standard of care under the situation, and the in-court testimony of Dr. Del Busto.

The record reveals, and the parties do not dispute, that Dr. Del Busto improperly inserted a tube into the patient’s esophagus instead of her windpipe. Consequently, the patient could not receive any oxygen into her lungs through the tube which resulted in her death.

The issue at trial was whether defendant shared in the responsibility for the patient’s death. Acknowledging the misintubation, plaintiff sought to impose liability on defendant on the theory that the deceased would not have died if defendant had applied appropriate resuscitative measures and that he had a duty to make such an effort.

In contrast, defendant’s position was that the patient’s death was caused solely by the improper intubation by Dr. Del Busto before the surgery.

The jury received the following instructions on concurrent negligence other than defendant’s:

“More than one person may be to blame for causing an injury. If you decide that the defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.
However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.” Illinois Pattern Jury Instructions, Civil, No. 12.04 (2d ed. 1971).

The jury rendered a verdict in favor of defendant and plaintiff’s subsequent motion for a new trial was denied.

The sole issue on appeal is whether plaintiff was entitled to a new trial on the grounds that in closing argument, defense counsel violated the trial court’s in limine order precluding comments regarding settlement agreements by the following three remarks:

“MR. MURPHY [Defense counsel]: He [plaintiff’s counsel] did not read anything in there where Dr. Brunner [plaintiff’s expert] had an opinion that Dr. Bozorgi did anything wrong, did he? The opinion that Dr. Brunner expressed, the opinion that the doctor who was the only expert for the Plaintiff expressed in those answers was that the anesthesiologist made a mistake, was negligent; caused Eliza White’s death. But Dr. Del Busto walks away from this death.
MR. CIRIGNANI [Plaintiff’s counsel]: Objection, as to what Dr. Del Busto does in this regard, Judge.
THE COURT: The objection is overruled.
* * *
MR. MURPHY: Now what’s the case about? It’s not just the death of Eliza White. You know who caused Eliza White’s death. Dr. Del Busto caused her death, but he walks away from this.
MR. CIRIGNANI: Judge, I am going to show my continuing objection to the characterization.
THE COURT: The objection is noted. The objection is overruled. You may proceed.
* * *
MR. MURPHY: How? Why is this case pending against Dr. Bozorgi? It’s not because he did anything wrong, it’s because of greed.
MR. CIRIGNANI: Judge, I have a further objection based on your ruling in limine.
THE COURT: The objection is sustained as to the last portion of remarks. The jury is told to disregard it.”

Plaintiff argues that the above-cited comments by defense counsel violated the order in limine because, by inference and innuendo, they eluded to the concept that there had been a settlement agreement and, absent this error, the verdict might have been different.

Defendant responds that (1) plaintiff’s claim of prejudice was not properly preserved because she failed to move for a mistrial when the remarks were made; (2) on its face, the statements complained of did not violate the order; and (3) even if a violation of the order existed, plaintiff failed to establish that the verdict was the result of prejudice.

The threshold question, raised by defendant, is whether or not plaintiff waived her claim by failing to move for a mistrial when the contested comments were made by defense counsel.

Defendant relies on Bauer v. Timucci (1975), 33 Ill. App. 3d 1051, 339 N.E.2d 434, where plaintiff’s failure to make a timely motion for mistrial was deemed a waiver of the error as a basis for a new trial. Bauer, 33 Ill. App. 3d at 1057.

However, courts have clearly distinguished Bauer on the ground that the prejudicial conduct alleged in Bauer was not raised in the form of either an objection or a motion for mistrial. Wright v. Yellow Cab Co. (1983), 116 Ill. App. 3d 242, 254, 451 N.E.2d 1313; Harrison v. Chicago Transit Authority (1977), 48 Ill. App. 3d 564, 565, 363 N.E.2d 81.

A simple objection is sufficient to preserve the issue of misconduct for consideration on a post-trial motion. (Wright, 116 Ill. App. 3d at 254; Harrison, 48 Ill. App. 3d at 565.) If counsel entered timely objections to the remarks at trial and specifically set forth the errors in his post-trial motion, then the issue has been preserved for our consideration. Wright, 116 Ill. App. 3d at 254-55; Harrison, 48 Ill. App. 3d at 566.

Under the guidelines enunciated in Wright and Harrison, plaintiff properly preserved this issue on appeal by objecting to the remarks at trial and including the issue in her written post-trial motion.

Next we address whether or not defendant violated the trial court’s order which prohibited any comments or arguments relating to plaintiff’s settlement agreements with Dr. Del Busto and the medical center.

A new trial is appropriate only when there is a showing that the in limine order is specific by its terms and that the violation is clear. (Northern Trust Bank v. Carl (1990), 200 Ill. App. 3d 773, 778, 558 N.E.2d 451.) However, a new trial may follow only where the violation has prejudiced the party or denied him a fair trial. (Northern Trust Bank, 200 Ill. App. 3d at 778.) The clarity of the prohibition in the in limine order is not disputed.

The three contested remarks, on their face, do not mention any settlement agreements. Plaintiff concedes that settlement was not mentioned directly but argues that “these comments elude to the concept that there has been a settlement agreement.” However, we believe that the import of defense counsel’s arguments does not reveal such a veiled reference to the settlement agreements so as to constitute a clear violation of the in limine order.

In the first two contested remarks during closing arguments, defense counsel stated that “Dr. Del Busto walks away from this death” and “Dr. Del Busto caused her death, but walks away from this'.” These comments focused on information which the jury already knew, i.e., Dr. Del Busto was negligent and was not on trial. From the evidence presented during trial, notably including the live testimony of Dr. Del Busto, the jury obviously knew the part played by Dr. Del Busto in the surgery and knew that he was not a defendant at the trial.

Moreover, the remarks were based on the evidence and advanced the same position taken by defendant throughout the trial, i.e., the sole proximate cause of the patient’s death was the negligent conduct of Dr. Del Busto. Skelton v. Chicago Transit Authority (1991), 214 Ill. App. 3d 554, 583, 573 N.E.2d 1315 (“[c]ounsel is allowed to comment on the evidence introduced and to draw reasonable inferences therefrom”).

In the third contested remark defense counsel argued that the case was pending against defendant “not because he did anything wrong [but] because of greed.” Plaintiff asked the jury for a $4.9 million award which, in virtually anyone’s estimation, is a substantial amount of money. Defendant maintained at trial that he did not cause decedent’s death and defense counsel’s argument that the trial went forward due to plaintiff’s desire for a large monetary award is consistent with defendant’s stance.

We do not believe that the term “greed” implies that plaintiff had received money from other sources; however, the trial court sustained the objection and directed the jury to disregard it. The judge’s directions have been held to cure such alleged prejudice. Skelton, 214 Ill. App. 3d at 583; Northern Trust Bank, 200 Ill. App. 3d at 779.

Since the evidence presented at trial supports the remarks and the information conveyed was already known by the jury, it is difficult to imagine that these disputed arguments could have changed the outcome of the trial. As evidenced by the instructions on concurrent negligence, the jury was well aware that defendant could share the responsibility for the patient’s death and thus had the opportunity to reject defendant’s position.

A trial court’s decision to grant or deny a motion for new trial will not be disturbed absent a clear abuse of discretion. Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 548, 416 N.E.2d 268; Smith v. Perlmutter (1986), 145 Ill. App. 3d 783, 785-86, 496 N.E.2d 358; Laff v. John O. Butler Co. (1978), 64 Ill. App. 3d 603, 621, 381 N.E.2d 423.

We find that the trial court did not abuse its discretion in denying plaintiff’s motion for a new trial.

Judgment affirmed.

TULLY and CERDA, JJ., concur.


source: Caselaw Access Project

author:
      JUSTICE STEIGMANN
      JUSTICE COOK,

license: Public Domain

text:
    WILMA JEAN DINKINS, Indiv. and as Adm’r of the Estate of Lee Roy Dinkins, Deceased, Plaintiff-Appellant, v. CARL EBBERSTEN, Defendant-Appellee (Central Illinois Light Company, Defendant).
    Fourth District
    No. 4—91—0928
    Opinion filed September 17, 1992.

      COOK, J., dissenting.
    Fredric Benson, of Feldman & Wasser, of Springfield, and Jay A. Heller, of Heller & Richmond, Ltd., of Chicago, for appellant.
    Karen L. Kendall, of Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiff, Wilma Jean Dinkins, acting individually and as administrator of the estate of her late husband, Lee Roy Dinkins, sued Carl Ebbersten (defendant) and Central Illinois Light Company (CILCO) after plaintiff’s husband was electrocuted while working on defendant’s farm. Plaintiff’s complaint consisted of seven counts, with the first four counts directed at defendant and the latter three at CILCO. CILCO’s motion to dismiss counts V through VII was granted, and plaintiff is not appealing that ruling. The trial court granted defendant’s motions for summary judgment on count I (based on the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.)), and counts II through IV (alleging negligence). Plaintiff appeals only from that part of the order granting summary judgment on the negligence counts against Ebbersten. We affirm.

I. Facts

In July 1987, defendant hired plaintiff’s husband, Lee Roy Dinkins, to paint a grain bin on defendant’s farm. Defendant and Dinkins had met on several occasions prior to making this agreement, including at least one occasion when defendant witnessed Dinkins painting another grain bin on another farm. Defendant and Dinkins agreed that Dinkins would paint the grain bin, but did not set a time or date for performance. Sometime within the three weeks preceding the accident, Dinkins met with defendant on his farm to look over the job. According to defendant, nothing was discussed about the jobsite.

On August 11, 1987, Dinkins arrived on defendant’s farm to paint his grain bin. Dinkins had not previously informed defendant that he would start the painting job that day. Dinkins was assisted by Terry Frazier. Although no one witnessed Dinkins’ electrocution, neither party disputes that it occurred when a ladder he was carrying came into contact with some power lines near the grain bin.

John H. Swearingen, deputy coroner of Logan County, investigated the accident. Swearingen took photographs at the Ebbersten farm in an attempt to document the scene. Several overhead photographs were also taken by a CILCO employee. In addition, Swearingen took several measurements with a tape measure. (A sketch (not to scale) of the scene drawn by Swearingen, which shows the relationship of objects around the grain bin to one another, is attached as an appendix.)

Dinkins had parked his pickup truck in the machine shed driveway which ran to the east of the grain bin. Metal debris, a tire, a barrel, and various metal objects lay among some weeds to the north of the grain bin. Swearingen estimated the height of the weeds to be four to five feet. There was no path through the debris and weeds; however, there was a path north of the debris near the machine shed. To the immediate west of the metal grain bin was a grain auger, which also sat among tall weeds. To the south of the grain bin was Logan County Road 300. Piles of metal debris and rolled metal fencing lay among some weeds immediately adjacent to and south of the grain bin, in between the grain bin and the county road. Farther south of the debris was parked an operable bulldozer belonging to defendant. There was no walking path between the grain bin and the bulldozer. South of the bulldozer was open yard.

Swearingen estimated that the distance between the grain bin and the electrical wires was 15 to 20 feet. He further estimated that the distance between the bulldozer and the electric wires was 10 feet. Finally, he estimated that the distance between the grain bin and the north side of the bulldozer was approximately 8 to 10 feet.

Swearingen testified that while someone could have walked between the bulldozer and the bin, one would have to walk over the debris located there. Swearingen testified that the easiest path from the east side of the bin to the west side of the bin would have been to go south of the bulldozer. Swearingen also testified that the ground south of the bulldozer was “pretty level,” although sloping very gradually downhill toward the road. The ground was “fairly smooth,” not lumpy, and “appeared to have been mowed regularly.” The day of the accident was sunny all day and not exceptionally windy.

Terry Frazier was working near the pickup truck mixing paint and making preparations at the time the accident happened. Frazier was not watching Dinkins at all times, but he believed that Dinkins had gotten off the ladder on the east side of the grain bin, picked the ladder up, and headed south. Frazier then heard Dinkins scream, so he looked up and saw a flash. Frazier saw Dinkins holding the ladder upright in the air. He then saw Dinkins and the ladder fall to the ground. Dinkins did not respond when Frazier went over to him.

A CILCO employee measured the distances between the wires and the ground. The top wire, energized with 7,200 volts of electricity, was 20 feet 6 inches above the ground. The bottom wire, which was the ground or neutral wire, was 17 feet 4 inches above the ground. Dinkins had used a 20-foot 3-inch ladder. Swearingen found a burn mark 11 Vz inches from the top of the ladder, apparently the point of contact with the electrical wire. Therefore, Swearingen estimated that Dinkins had lifted the ladder approximately 14V2 inches off the ground in order for it to make contact at that point with the line. Swearingen estimated the weight of the ladder to be 20 pounds.

In defendant’s deposition, he stated that he was aware of the debris around the grain bin, and that either he or his son placed it there. They planned to use the metal as salvage material. Defendant also testified that he was aware of the power lines prior to the accident, but did not know whether they were insulated. Defendant did not mention the debris or the power lines to Dinkins before he started the job. Defendant assumed that Dinkins would use the same ladder to paint the grain bin on his farm that defendant saw Dinkins use to paint the grain bin on the other farm. However, defendant never saw Dinkins handle or move the ladder at the previous site. Defendant did not know Dinkins was on defendant’s property until he arrived at the scene of the accident shortly after Dinkins had been electrocuted.

In July 1990, defendant filed a motion to dismiss pursuant to sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, pars. 2—615, 2—619). The trial court heard arguments on that motion in October 1990 and denied it. In September 1991, defendant then filed a motion for summary judgment pursuant to section 2 — 1005 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005). On November 19, 1991, the court granted that motion and explained as follows regarding counts II through V:

“All three Counts are premised upon identical theories of tort liability based on negligence. Illinois has adopted the Restatement of Torts (Second), §343 and 343A. Again, considering everthing [sic] before the Court, the Court finds: (1) danger of electricity is common knowledge, as stated in Genaust [v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465]; (2) it is also common knowledge that metal will conduct electricity; (3) ‘a business invitee has a responsibility for his own safety and must be held to be equally aware of all the obvious and normal hazards incident to the premises as (is) the possessor of land.’ Genaust. (4) nothing was hidden; (5) Plaintiff's decedent] could have removed any alleged debris to clear a path just as easily as Defendant. After all, Plaintiff’s decedent] was in charge of the work; (6) Defendant was, according to his affidavit, never requested to clear the debris and Defendant didn’t even know when the work was to commence; (7) Plaintiff is seeking to enforce a duty upon Defendant which is greater than called for by law; (8) in light of the peculiar circumstances presented here, the distraction theory is, in the Court’s opinion, inapplicable and based, it would appear, to a large extent on conjecture and speculation. Everything considered, the Court determines that there is no genuine issue of material fact and Defendant is entitled to summary judgment as to Counts II, III and IV. So Ordered.”

II. Analysis

A. Summary Judgment

Summary judgment is properly granted when the pleadings, depositions, and affidavits show that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c); Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 421, 512 N.E.2d 1223, 1224.) In reviewing an order for summary judgment, this court must consider all of the facts revealed in the record and all of the grounds alleged by the parties in order to determine whether a genuine issue of material fact exists. (Gardner v. Navistar International Transportation Corp. (1991), 213 Ill. App. 3d 242, 247, 571 N.E.2d 1107, 1110.) The party moving for summary judgment must show, as a matter of law, that it is entitled to judgment. (Gardner, 213 Ill. App. 3d at 250, 571 N.E.2d at 1112.) On review, this court reviews the granting of summary judgment de novo. Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 824, 585 N.E.2d 1164,1167.

B. Negligence

To state an adequate cause of action for negligence, plaintiff must set out facts that establish (1) the existence of a duty owed by the defendant to the plaintiff, (2) defendant breached that duty, and (3) that breach was the proximate cause of an injury. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226; Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387, 395-96.) “While the questions of whether a duty has been breached and whether the breach proximately caused an injury are factual matters, the existence of a duty must be determined by the courts as a matter of law.” Watkins v. Mt. Carmel Public Utility Co. (1988), 165 Ill. App. 3d 493, 496, 519 N.E.2d 10, 12.

1. Duty

Duty is a question of law for the court to determine by asking whether plaintiff and defendant stood in a relationship to one another such that the law imposes upon the defendant an obligation of reasonable conduct for plaintiff’s benefit. (Ward, 136 Ill. 2d at 140, 554 N.E.2d at 226; Kirk, 117 Ill. 2d at 525, 513 N.E.2d at 396.) Duty is determined, in part, by the reasonable foreseeability of injury. (Ward, 136 Ill. 2d at 140, 554 N.E.2d at 226.) “Other considerations include the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant.” Ward, 136 Ill. 2d at 140-41, 554 N.E.2d at 226-27.

In determining duty, we first address the relationship between Dinkins and defendant. Plaintiff argues that Dinkins was a business invitee of defendant. In Longnecker v. Illinois Power Co. (1978), 64 Ill. App. 3d 634, 638-39, 381 N.E.2d 709, 713, the court wrote the following on when a person becomes a business invitee:

“A person is a business invitee on the premises of another if (1) he enters by express or implied invitation, (2) his entry is connected with the possessor’s business or with an activity the possessor conducts or permits to be conducted on his premises, and (3) there is a mutuality of benefit or an advantage to the possessor. [Citation.] Generally[,] an independent contractor and his employees who are doing work upon the premises in the interest of the possessor as well as their own, are business invitees of the possessor.”

The facts in the present case clearly establish that Dinkins was defendant’s business invitee. Once defendant contracted with Dinkins for painting the bin, defendant owed Dinkins a duty to warn him of any dangers known to or reasonably discoverable by defendant. However, “[a] business invitee has a responsibility for his own safety and must be held to be equally aware of all the obvious and normal hazards incident to the premises as the possessor of the land.” Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 469, 343 N.E.2d 465, 472; see also Watkins, 165 Ill. App. 3d at 496, 519 N.E.2d at 12-13.

In Genaust (62 Ill. 2d at 468, 343 N.E.2d at 472), the Illinois Supreme Court adopted section 343 of the Restatement (Second) of

Torts, regarding the liability of possessors of land to invitees, which states as follows:

“§343. Dangerous Conditions Known to or Discoverable by Possessor
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 the 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, at 215-16 (1965).

See also W. Keeton, Prosser & Keeton on Torts §61, at 419 (5th ed. 1984) (discussing landowner liability).

In determining the scope of defendant’s duty, the focus is on the defendant. (Ward, 136 Ill. 2d at 148, 554 N.E.2d at 230.) “The scope of defendant’s duty is not defined by reference to plaintiff’s negligence or lack thereof. The focus must be on defendant. A major concern is whether defendant could reasonably have foreseen injury to plaintiff.” (Emphasis in original.) (Ward, 136 Ill. 2d at 148, 554 N.E.2d at 230, citing Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617.) However, “[t]he creation of a legal duty requires more than a mere possibility of occurrence.” Cunis, 56 Ill. 2d at 376, 308 N.E.2d at 619.

Plaintiff argues that both the power lines and the debris presented foreseeable dangers on defendant’s farm about which defendant owed a duty to warn plaintiff. In Ward, the court wrote the following:

“Under the common law, the landowner’s or occupier’s duty was to use reasonable care to maintain his premises in a reasonably safe condition. However, even under the common law, if he chose to maintain a dangerous condition on his premises, it was generally held that an adequate warning to invitees would suffice to render the condition ‘reasonably safe.’ He did not have to actually remove all dangers from his premises in order to avoid liability.” (Emphasis in original.) Ward, 136 Ill. 2d at 141-42, 554 N.E.2d at 227.

However, power lines constitute obvious, not hidden dangers. In Genaust, plaintiff was injured when electricity arced from a power line to the antenna he was installing. (Genaust, 62 Ill. 2d at 460-61, 343 N.E.2d at 468.) In affirming the judgment of the appellate court sustaining the dismissal of plaintiff’s complaint, the supreme court concluded that a duty did not exist because “it is not objectively reasonable to expect that a person, knowing the danger of electricity if metal should contact electrical wires, would attempt to install a metal tower and antenna in such close proximity to electrical wires.” (Genaust, 62 Ill. 2d at 466, 343 N.E.2d at 471.) The court added the following:

“[I]t is common knowledge that electricity is dangerous, so is it also common knowledge that any line or wire carrying electricity is dangerous. *** A business invitee has a responsibility for his own safety and must be held to be equally aware of all the obvious and normal hazards incident to the premises as the possessor of the land.” Genaust, 62 Ill. 2d at 469, 343 N.E.2d at 472.

In Watkins, codefendant Hocking Oil Company hired plaintiff as an independent contractor to process crude oil stored in two large tanks operated by Hocking. The storage tanks were constructed near an uninsulated power line which had been erected approximately 40 years earlier by the defendant utility. A catwalk connected the two tanks and provided access to the tops of the tanks. Plaintiff received an electrical shock and fell from the catwalk when the aluminum gauging pole with which he was working came into contact with the power line owned by the utility. Watkins, 165 Ill. App. 3d at 495; 519 N.E.2d at 11-12.

The appellate court (with one dissent) concluded that Hocking had a duty to protect Watkins from the power lines, despite their obvious danger, because Hocking could anticipate the harm created by constructing the oil storage tanks too near the power lines. (Watkins, 165 Ill. App. 3d at 497, 519 N.E.2d at 13.) However, in considering the counts alleged against the utility company, the appellate court concluded that there was no duty owed to plaintiff by the utility. In so holding, the court wrote the following: “That someone might work upon these storage tanks holding a 14-foot pole angled above and away such that the pole would contact the electrical wires is clearly in the ‘might conceivably occur’ category rather than the ‘objectively reasonable’ category.” Watkins, 165 Ill. App. 3d at 499, 519 N.E.2d at 14.

In Icenogle v. Myers (1988), 167 Ill. App. 3d 239, 521 N.E.2d 163, plaintiff was injured when the wand applicator he was using to paint a grain bin contacted a 7,200-volt power line. (Icenogle, 167 Ill. App. 3d at 240, 521 N.E.2d at 164.) The trial court granted the motions for summary judgment filed by the defendants, a utility (Illinois Power) and the landowner, Myers. (Icenogle, 167 Ill. App. 3d at 242, 521 N.E.2d at 165.) In affirming summary judgment for the landowner, this court determined that “there was no evidence indicating Myers was aware that painting on the structure would involve a long wand that might come in contact with the wire.” Icenogle, 167 Ill. App. 3d at 244, 521 N.E.2d at 166.

In In re Estate of Martin (1990), 202 Ill. App. 3d 659, 559 N.E.2d 1125, plaintiff brought an action for wrongful death for a farm worker who was electrocuted when a 20-foot aluminum pole he was using to clean a feed bin came into contact with uninsulated power lines 13 feet above the bin. (Martin, 202 Ill. App. 3d at 660, 559 N.E.2d at 1126.) The worker was standing on top of the bin at the time, using the pole to scrape material from the inside of the bin. (Martin, 202 Ill. App. 3d at 662, 559 N.E.2d at 1127.) In reversing summary judgment in favor of the electrical cooperative, this court wrote the following:

“We conclude the test whether the wires are properly located or insulated relates to whether the condition and circumstances reasonably indicate that people might come into contact with the transmission lines. Together with this test, we judge foreseeability by whether it was objectively reasonable to expect an injury to occur, not whether an injury might conceivably occur.” (Martin, 202 Ill. App. 3d at 664, 559 N.E.2d at 1128.)

Martin, in contrast to Watkins, turned on the fact that the utility installed the lines after the bin was constructed. (See Martin, 202 Ill. App. 3d at 664, 559 N.E.2d at 1128.) However, this court did note that “the type and use of the structure [involved in the accident] must be considered.” Martin, 202 Ill. App. 3d at 664, 559 N.E.2d at 1129.

Plaintiff has not alleged that the power lines or the debris presented a hidden danger. Although defendant knew of the presence of the power lines as well as the debris, neither presented an unreasonable risk of harm to Dinkins. (See Restatement (Second) of Torts §343(a) (1965).) Nor should defendant have expected that Dinkins would not discover or realize the power lines’ obvious danger. (See Restatement (Second) of Torts §343(b) (1965).) Accordingly, defendant’s failure to warn Dinkins of the power lines does not constitute a breach of defendant’s duty to Dinkins.

2. Distraction Theory

Plaintiff next argues the “distraction theory” by claiming that the presence of the bulldozer and other debris created a distraction for Dinkins as he moved his ladder via the best available route to the west side of the grain bin. The distraction theory is an exception to section 343 and imposes a duty upon a landowner even for known or obvious dangers. The distraction theory is defined in the Restatement (Second) of Torts as follows:

“§343A. Known or Obvious Dangers
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” (Restatement (Second) of Torts §343A, at 218 (1965).)

Comments e and / to section 343A of the Restatement (Second) discuss the distraction theory further as follows:

“e. In the ordinary case, an invitee who enters land is entitled to nothing more than knowledge of the conditions and dangers he will encounter if he comes. If he knows the actual conditions, and the activities carried on, and the dangers involved in either, he is free to make an intelligent choice as to whether the advantage to be gained is sufficient to justify him in incurring the risk by entering or remaining on the land. The possessor of the land may reasonably assume that he will protect himself by the exercise of ordinary care, or that he will voluntarily assume the risk of harm if he does not succeed in doing so. Reasonable care on the part of the possessor therefore does not ordinarily require precautions, or even warning, against dangers which are known to the visitor, or so obvious to him that he may be expected to discover them.
* * *
/. There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. ***
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. (See §§466 and 496 D.) It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.” Restatement (Second) of Torts §343A, Comments e, f, at 219-20 (1965).

The distraction theory has been recognized and applied in several cases in this State. In Ward, the plaintiff was injured while carrying a large mirror out of defendant’s store. Ward entered the building via a side door to the store’s “Home Center” department. On both sides of the exit door, two concrete posts, painted dark brown, stood approximately five feet high, three feet apart, and 19 inches from the outside wall of the building. Upon exiting, plaintiff, distracted by the mirror he was carrying, ran into one of the concrete posts. Ward, 136 Ill. 2d at 136-38, 554 N.E.2d at 224-25.

The supreme court held that defendant could reasonably foresee that one of its customers would block his vision with an object he had purchased in the store and fail to see the concrete post. (Ward, 136 Ill. 2d at 157, 554 N.E.2d at 234.) This result was supported by evidence of the physical layout of the doorway, the type of door, the landscaping on the outside of the door, and testimony by one of the store’s salesclerks. (See Ward, 136 Ill. 2d at 154, 554 N.E.2d at 233.) The court held in Ward that the record contained sufficient evidence to conclude that a mirror carried by a customer leaving that particular exit of the store constituted a foreseeable distraction.

In American National Bank & Trust Co. v. National Advertising Co. (1992), 149 Ill. 2d 14, 594 N.E.2d 313, plaintiff’s decedent was electrocuted when he came into contact with electrical lines next to a billboard. The billboard ran in a north and south direction, with power lines at the north end of the billboard suspended eight inches in from the end of the billboard and approximately 24 to 30 inches above the billboard. Two feet from the top, a catwalk ran along the back of the billboard. The catwalk consisted of “two-by-six boards nailed to the structure.” (American National, 149 Ill. 2d at 17-18, 594 N.E.2d at 314.) Evidence before the trial court indicated that shortly before the accident, the victim was distracted by the necessity of care for his footing on the rotten boards of the catwalk; as a result, he did not notice the power line near his head. (See American National Bank & Trust Co. v. National Advertising Co. (1990), 205 Ill. App. 3d 348, 350, 562 N.E.2d 1057, 1058; see also American National, 149 Ill. 2d at 29, 594 N.E.2d at 320.) The trial court granted summary judgment for the defendant, the appellate court reversed, and the supreme court affirmed, finding that defendant had reason to anticipate “that a worker might be distracted by having to watch where to place his feet, and consequently would not be aware of or remember the presence of the electric wires.” (American National, 149 Ill. 2d at 29, 594 N.E.2d at 320.) The court held that American National owed a duty of reasonable care to the decedent because of this distraction. American National, 149 Ill. 2d at 29, 594 N.E.2d at 320.

In Deibert v. Bauer Brothers Construction Co. (1990), 141 Ill. 2d 430, 566 N.E.2d 239, a case on which plaintiff relies heavily, Deibert was injured as he exited a portable lavatory at a construction site. Upon exiting the lavatory, plaintiff stepped down onto the ground and looked up to ascertain whether construction materials were being thrown off a balcony above and near the lavatory. As plaintiff was looking up, he took two steps from the lavatory before he stepped into one of several tire ruts in the ground. Plaintiff stumbled in a rut and injured his back. Deibert, 141 Ill. 2d at 433, 566 N.E.2d at 240.

The supreme court held that defendant owed plaintiff a duty of care, agreeing with plaintiff’s contention that he became distracted upon exiting the lavatory and that defendant, as general contractor at this project, was aware that workers had been throwing materials off a balcony on one or two buildings under construction at that site. The court acknowledged that the rut — the condition of the land which caused plaintiff’s injury — was obvious. (Deibert, 141 Ill. 2d at 438, 566 N.E.2d at 243.) However, the court ruled that it was reasonable to expect that defendant, as a general contractor, was aware that workers had been throwing materials off a balcony and that ruts were present on this particular construction site. (Deibert, 141 Ill. 2d at 438-39, 566 N.E.2d at 243.) The court concluded that the distraction and resulting injury suffered by plaintiff was reasonably foreseeable. Deibert, 141 Ill. 2d at 440, 566 N.E.2d at 244.

Finally, in Crider v. Crider (1992), 225 Ill. App. 3d 954, 588 N.E.2d 439, plaintiff was injured while helping his father trim a tree. The trial court granted defendant’s motion for summary judgment, finding that plaintiffs had failed to establish the existence of a duty. (Crider, 225 Ill. App. 3d at 955, 588 N.E.2d at 441.) On appeal, plaintiff asserted the distraction theory as an exception to the duty for known or obvious dangers. The appellate court affirmed, noting that unlike Deibert and Ward (and American National), there were no allegations or evidence that plaintiff was distracted or that he momentarily forgot the danger involved. Crider, 225 Ill. App. 3d at 958, 588 N.E.2d at 442.

Although a plaintiff responding to a motion for summary judgment need not prove her case at that preliminary stage, she must, nevertheless, present some evidentiary facts to support the elements of her claim. (Gardner, 213 Ill. App. 3d at 250, 571 N.E.2d at 1112.) If evidentiary facts, provided through affidavits and the record, do not support plaintiff’s claims raised by the pleadings, defendant is entitled to summary judgment. Alexander v. Standard Oil Co. (1981), 97 Ill. App. 3d 809, 814, 423 N.E.2d 578, 582.

In support of her distraction theory, plaintiff suggests four possible distractions: (1) the sun, (2) the wind, (3) the power lines, and (4) the debris and bulldozer south of the bin. Of these, defendant could conceivably be held accountable only for the debris and the bulldozer. As in American National, Deibert, and Ward, the dispositive question in applying the distraction theory was whether defendant had reason to expect that even if Dinkins knew of the danger, he would likely be distracted during the work and encounter the danger due to that distraction. See American National, 149 Ill. 2d at 29, 594 N.E.2d at 320; Deibert, 141 Ill. 2d at 439-40, 566 N.E.2d at 243-44; Ward, 136 Ill. 2d at 152-54, 554 N.E.2d at 232-33; see also Shaffer v. Mays (1986), 140 Ill. App. 3d 779, 782, 489 N.E.2d 35, 37.

After reviewing the record in this case, we conclude that plaintiff presented no evidence to support her distraction theory. Both defendant and Swearingen testified that the land surface south of the bulldozer was flat and without lumps or depressions. While the ground did slope downhill a little from the bulldozer to the road, Swearingen testified (and the photographs also show) that the area was well mowed and clear of any impediments. Nothing in the record supports plaintiff’s claim that Dinkins was somehow distracted while proceeding south of the bulldozer. Nor would defendant have had any reason to expect that Dinkins would be distracted. Once Dinkins decided to walk around (and not through) the debris and chose as his course the smooth, relatively flat, undistracting ground south of the bulldozer, the debris and bulldozer he chose to walk around did not constitute any distraction. The mere fact that he needed to go around the bulldozer and debris does not constitute a distraction because those items could not have distracted him while he moved around them. Unlike the cases cited and discussed above, there was nothing in Dinkins’ path that defendant could have anticipated as being a distraction. Compare American National, 205 Ill. App. 3d at 348, 562 N.E.2d at 1058 (narrow, rotting catwalk); Deibert, 141 Ill. 2d at 439, 566 N.E.2d at 243 (falling debris); Ward, 136 Ill. 2d at 153-54, 554 N.E.2d at 223 (merchandise carried by a customer).

Citing Pace v. McClow (1983), 119 Ill. App. 3d 419, 458 N.E.2d 4, plaintiff argues that circumstantial evidence is sufficient to establish the elements of her negligence claim. However, that case still requires plaintiff to provide some facts which would support the inference she asks us to draw.

“Circumstantial evidence is the proof of certain facts and circumstances from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind.” (Emphasis added.) (Pace, 119 Ill. App. 3d at 423-24, 458 N.E.2d at 8.)

In Pace, a case involving an automobile accident, plaintiff presented circumstantial evidence that proved slick pavement and an absence of skid marks at the scene of the accident. These facts supported a reasonable inference that the defendant was driving negligently. (See Pace, 119 Ill. App. 3d at 426, 458 N.E.2d at 10.) In the case at bar, plaintiff has presented no facts that would support an inference that Dinkins was distracted by anything within defendant’s control, nor that defendant could foresee such a distraction. We emphasize again that foreseeability is that which is objectively reasonable to expect, not merely what might conceivably occur. (See American National, 149 Ill. 2d at 29, 594 N.E.2d at 320.) Without facts to support her claim, plaintiff cannot defeat defendant’s motion for summary judgment. “No presumption of negligence arises from the mere happening of an accident.” Whitman v. Lopatkiewicz (1987), 152 Ill. App. 3d 332, 338, 504 N.E.2d 243, 246.

III. Conclusion

For the reasons stated, we affirm the trial court’s granting of summary judgment in favor of defendant.

Affirmed.

KNECHT, J., concurs.

JUSTICE COOK,

dissenting:

I would reverse the trial court’s order granting defendant summary judgment on counts II through IV of plaintiff’s complaint, and remand for further proceedings.

It was once held that the duty of reasonable care owed by an owner or occupier of land to those lawfully on his premises did not under any circumstances extend to known or obvious conditions. That rule is no longer the law in Illinois. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 145, 554 N.E.2d 223, 229.) A possessor of land can be liable, even for physical harm caused by a known or obvious condition, if he should have anticipated the harm despite such knowledge or obviousness. (Restatement (Second) of Torts §343A (1965); see Ward, 136 Ill. 2d at 149, 554 N.E.2d at 231.) The effect of Ward is to allow a jury to decide many cases which previously would have been resolved against plaintiff by the court. “Whether in fact the condition itself served as adequate notice of its presence or whether additional precautions were required to satisfy the defendant’s duty are questions properly left to the trier of fact.” (Ward, 136 Ill. 2d at 156, 554 N.E.2d at 234.) “The obviousness of the danger and plaintiff’s own negligence affect whether and to what extent plaintiff is comparatively negligent, not the duty of the possessor of land.” Deibert v. Bauer Brothers Construction Co. (1990), 141 Ill. 2d 430, 442, 566 N.E.2d 239, 245; see Restatement (Second) of Torts §343A, Comment f, at 220 (1965).

I. Existence Of A Duty

‘A duty limitation is proper for those dangers which are always outside the defendant’s scope of duty, but obvious dangers are not always found there.’ ” (Ward, 136 Ill. 2d at 146, 554 N.E.2d at 294, quoting Note, Torts — Assumption of Risk and the Obvious Danger Rule. Primary or Secondary Assumption of Risk?, 18 Land & Water L. Rev. 373, 384 (1983).) Ward was recently applied in an electrocution case, American National Bank & Trust Co. v. National Advertising Co. (1992), 149 Ill. 2d 14, 26, 594 N.E.2d 313, 318. In American National defendant was the lessee of a billboard and had contracted with decedent’s employer to have the billboard painted. The billboard had a walkrail along its back, consisting of 2 by 6 boards located about two feet from its top. A high-voltage line crossed the billboard at right angles, about eight inches from one end, 24 to 30 inches above the top of the sign. American National first considered whether the power line was open and obvious, to determine whether defendant could fit within section 343A of the Restatement. Because some workers had testified they were unaware of the power line’s presence, American National held there was a question of fact whether the danger was open and obvious. (American National, 149 Ill. 2d at 29, 594 N.E.2d at 320.) Despite that question of fact the supreme court went on to consider whether other grounds would defeat the summary judgment entered in favor of defendants.

First, however, American National considered whether Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465, announced a rule that a landowner could never have a duty to warn of a power line, concluding that it did not. American National distinguished Genaust on the basis the landlord there

“could not have discovered the danger of electricity arcing from power lines ‘which were neither on its property nor under its control.’ (Emphasis in original.) (Genaust, 62 Ill. 2d at 468.) Further, the court found that an employer would expect a worker with expertise in installing antennae to be reasonably aware of the hazards of installing metal equipment near power lines.” (American National, 149 Ill. 2d at 28, 594 N.E.2d at 319.)

(Cf. Carroll v. Commonwealth Edison Co. (1986), 147 Ill. App. 3d 909, 498 N.E.2d 645 (rejecting plaintiff’s attempts to distinguish his case from Genaust, finding plaintiff’s degree of experience or expertise as an electrician not determinative, and finding of no significance that the power lines were located on Babson Farms, whereas in Genaust the power lines were beyond the landowner’s control because they were not on the landowner’s property).) In the present case it would appear defendant could easily have discovered the danger of these power lines, even if they were slightly off his property. Nor has it been established that defendant believed decedent to be anything more than a self-taught painter with no formal training in or knowledge of electricity. To paraphrase Ward, to the extent Genaust was previously thought to state an absolute rule that a landowner did not under any circumstances have a duty to warn of a power line, that rule is not the law in Illinois. Ward, 136 Ill. 2d at 145, 554 N.E.2d at 229; Deibert, 141 Ill. 2d at 442, 566 N.E.2d at 245.

In determining whether there was a duty, American National considered whether it was foreseeable that a worker would come into contact with the power line, whether it was foreseeable the worker would be distracted, and how heavy the burden would be on defendant to protect workers against the power line. (American National, 149 Ill. 2d at 29, 594 N.E.2d at 320.) In American National it was found objectively reasonable to expect that a worker could come into contact with a power line that hung only AVz to 5 feet above the walkrail. Similarly, in the present case it is foreseeable that persons using equipment more than 20 feet in height in a farm lot will encounter a power line located 20 feet 6 inches above the ground at the edge of the property. In American National it was held reasonable to expect that a worker might be distracted by having to watch where to place his feet while walking on the walkrail. Similarly in this case it is reasonable to expect the decedent would be distracted walking through weeds, near if not through debris, while carrying a 20-foot ladder upright.

The grass and weeds where the ladder fell are shorter than other grass in the area, but still tall enough to conceal holes, ruts, or small items of debris. The majority opinion states that according to the testimony of John H. Swearingen, the deputy coroner of Logan County, and to the photographs, the area south of the bulldozer “was well mowed and clear of any impediments.” (234 Ill. App. 3d at 991.) Swearingen actually said the area was “covered with vegetation, grass, weeds and so forth and appeared to have been mowed regularly. So I would say that vegetation was approximately six inches tall.” Although the area may have been mowed regularly, it does not appear to have been mowed recently. The photographs (particularly Nos. 23 and 24) show the ladder lying in grass and weeds about six to eight inches tall, south of the bulldozer. Some of the grass and weeds had gone to seed. The ground at that point appears somewhat uneven. Swearingen testified there was a shallow, vegetation-covered ditch alongside the roadway. The power lines were along the northern edge of the ditch, where the midpoint of the ladder landed when it fell. The grass at the southeast comer of the bulldozer and along its east side, where decedent was apparently headed with the ladder, appears to be about five feet tall. In Deibert, the plaintiff, who was not carrying anything, “could not look both places: up, to check for the possibility of flying construction materials; and down, to protect himself from tripping in a rut.” (Deibert, 141 Ill. 2d at 439, 566 N.E.2d at 243.) Decedent’s task in this case was certainly no easier.

There is no policy reason why a landowner should not be held liable for accidents caused by power lines on his property, although there are policy reasons why utility companies should not be liable. (See, e.g., Watkins v. Mt. Carmel Public Utility Co. (1988), 165 Ill. App. 3d 493, 499, 519 N.E.2d 10, 14 (economic realities make it unrealistic that utility companies post warning signs or insulate their power lines, which may amount to thousands of miles).) American Na tional held that the landowner’s burden of protecting workers against the power line would not have been heavy — defendant might have shortened the walkrail, or demanded the utility relocate the line, or at least warned workers of the hazard. The magnitude of the burden of guarding against the injury in the present case also does not appear great — the debris could have been moved, the landowner could have demanded that the utility temporarily relocate the power line, or at least the landowner could have warned decedent of the hazard. The defendant landowner in this case owed a duty of reasonable care to the invitee.

II. Breach Of Duty, Proximate Cause

The trial court based its summary judgment on its finding that there was no duty. The majority opinion also adopts a fall-back position, that even if there were issues of fact plaintiff did not sustain her burden of responding to defendant’s motion for summary judgment. Whether a defendant has breached its duty of care is generally a question of fact for the jury, as is the question whether the breach was the proximate cause of the injury. (Deibert, 141 Ill. 2d at 438-39, 566 N.E.2d at 243.) Proximate cause only becomes a question of law when the facts are not only undisputed but are such that there can be no difference in the judgment of reasonable persons as to the inferences to be drawn from them. (Durbin v. St. Louis Slag Products Co. (1990), 206 Ill. App. 3d 340, 357, 564 N.E.2d 242, 253.) If what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict, then a summary judgment should be entered. (Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500.) The evidence in this case does not so overwhelmingly favor the movant that a contrary verdict could never stand. Summary judgment should have been denied on counts II through IV.

The trial court quoted Genaust for the proposition that an invitee must be held to be as equally aware of all obvious and normal hazards as is the possessor of the land. It must be remembered, however, that defendant had been on this lot many more times than decedent, having erected the grain bin in 1972. It is likely that defendant on occasion had maneuvered farm equipment between the grain bin and the power lines. The trial court also noted that decedent could have removed any alleged debris to clear a path just as easily as defendant. Perhaps a jury would so conclude, but I see no justification for a court making that decision in this case. There is no indication decedent could have moved the bulldozer, which was operable. Defendant apparently had equipment available for mowing grass and weeds, but there is no showing that decedent had any such equipment. If decedent had moved debris he would have to have asked defendant for permission, and where the debris should be moved. Decedent had room to lower his ladder from an upright to a horizontal position before he walked around the bin, but it is not clear that a reasonable person, engaged in painting a grain bin, would have done that. In Deibert plaintiff could easily have avoided the accident by stopping before he looked up for falling debris. That, however, was something for the jury to consider, not the court. (Deibert, 141 Ill. 2d at 442, 566 N.E.2d at 245.) In American National the court held there were jury questions whether the power lines were open and obvious, whether defendant took any safety precautions, and whether those precautions were adequate to satisfy its duty of reasonable care. The jury was also to consider, on the issue of plaintiff’s negligence, whether the American National decedent’s experience as a sign painter, and his use of ordinary care, would have caused him to avoid the accident. The jury should decide those issues in this case as well.

I respectfully dissent.


author: JUSTICE HARRISON

text:
    DuQUOIN NATIONAL BANK, Plaintiff-Appellant, v. VERGENNES EQUIPMENT, INC., Defendant-Appellee.
    Fifth District
    No. 5—91—0015
    Opinion filed September 17, 1992.

      Terry Sharp and William K. Richardson, both of Law Office of Terry Sharp, P.C., of Mt. Vernon, for appellant.
    Douglas A. Antonik and David M. Raymond, both of Law Office of Douglas A. Antonik, of Mt. Vernon, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

This appeal concerns count I of a three-count complaint filed in the circuit court of Perry County; count I which sought a declaratory judgment to determine the conflicting security and priority interests of two creditors in certain farm equipment. Plaintiff DuQuoin National Bank (the Bank) and defendant Vergennes Equipment, Inc. (Vergennes), filed separate motions for summary judgment. Following a hearing on the motions, the trial court entered an order granting summary judgment for Vergennes on October 10, 1990. The court entered an order on December 7, 1990, denying the Bank’s motion to reconsider and finding that there was no just reason for delaying enforcement or appeal. The Bank appeals, arguing that the trial court erred in finding as a matter of law that the letter agreement entered into between Phillip and Jean Provart, debtors, and the Bank on June 23, 1986, constituted a subordination agreement between the debtors and the Bank to the benefit of a class of unnamed third-party beneficiaries of which Vergennes was a member.

On March 6, 1984, the Provarts and Edna Provart Gomia, Phillip Provart’s mother, executed a promissory note payable to the Bank in the principal amount of $394,429.90. As part of the collateral for this note, the Provarts also executed a farm security agreement on March 6, 1984, granting to the Bank a security interest in all equipment and livestock “now owned or hereafter acquired by Borrower.” In April 1986, Ruth Pierce, an employee of the Bank, mailed the farm security agreement to the Perry County recorder’s office for filing. Ms. Pierce sent the required recording fee with the security agreement but provided no instructions as to where the document should be filed. On April 25, 1986, the security agreement was filed in the mortgage records of the Perry County recorder’s office rather than in the Uniform Commercial Code (UCC) index.

In 1986, the Provarts defaulted on their loan with the Bank, and the Bank filed a replevin suit in the Perry County circuit court. The Provarts, through their attorney, James W. Morris, then entered into negotiations with the Bank to restructure their obligations. On June 23, 1986, Morris sent a proposed letter agreement to Jerry Smith, an attorney for the Bank, which the Bank later accepted. The letter agreement restructured the note obligation with a principal reduction, achieved by redeeming bank shares owned by Edna Provart Gomia, and an extended amortization schedule for the principal balance. Paragraph (3) of the letter agreement stated, in pertinent part, as follows:

“(3) The remaining principal balance ($292,000.00 plus or minus) will be refinanced over a ten year term with principal payments based upon a twenty year amortization schedule with interest fixed for a term of one year and adjustable each year thereafter based upon the prime rate from time to time changed by Mercantile Bank of St. Louis plus 3V2 percent. Interest for the first year of the loan wall be 12%. *** Phillip and Jean Provart will provide a lien on all equipment and livestock which will be a first lien except for those items of equipment subject to a purchase money security interests [sic]. Provarts will have the right to substitute equipment and livestock. Phillip and Jean Provart will grant to the bank an assignment of their existing Agreement for Warranty Deed as additional collateral security to secure the bank.” (Emphasis added.)

In May 1987, after discovering that a UCC search of the Perry County records did not disclose the farm security agreement submitted in April 1986, Ruth Pierce telephoned the recorder’s office to discuss the matter. An employee of the recorder’s office indicated that she would make a note in the UCC index that the security agreement was on file, and the UCC index in that office shows an entry under the name of Phillip Provart, with the Bank listed as the secured party and the following notation: “Sec. Agree in Mtg. Rec. 161 Pg 439 (Misfiled).” The Bank subsequently conducted UCC searches of the Perry County records to determine the perfection of liens on the personal property of Phillip Provart in January 1988, May 1989, and January 1990. These three searches identified the farm security agreement as a recorded lien.

On October 13, 1988, Phillip Provart purchased from Vergennes a Case IH 1680 Combine and a Case IH 1020 Grain Platform by executing a retail installment contract and a purchase money security agreement. On October 21, 1988, Vergennes filed a UCC financing statement covering this equipment in the Franklin County recorder’s office. Later realizing it had mistakenly filed in the wrong county, Vergennes filed a copy of the financing statement with the Perry County recorder’s office on December 20,1989.

On June 19, 1990, the Bank filed its original complaint in the Perry County circuit court seeking to establish its priority interest in the combine and grain platform. Vergennes filed its answer to count I on July 24, 1990, alleging two separate affirmative defenses. Vergennes first asserted that the Bank failed to properly perfect its security interest in the equipment because the UCC index in Perry County merely noted “Misfiled.” The second affirmative defense asserted that Vergennes had a superior interest in the equipment pursuant to Vergennes’ mistaken, but good-faith, filing of a UCC financing statement in Franklin County under section 9 — 401(2) of the UCC (Ill. Rev. Stat. 1989, ch. 26, par. 9—401(2)). On September 25, 1990, Vergennes filed a request for leave to file an additional affirmative defense based upon the letter agreement of June 23, 1986, which Vergennes had learned of during discovery. The trial court granted Vergennes leave to file its third affirmative defense, which asserted that the Bank had subordinated its security interest to Vergennes pursuant to paragraph (3) of the letter agreement and that Vergennes, as a third-party beneficiary, could claim the benefits of the subordination as a member of the alleged class of “purchase money security interest” holders.

At the hearing on the motions for summary judgment, the trial court heard the arguments of counsel for the parties and accepted into evidence the deposition transcripts of Ruth Pierce and Jo David Cummins, executive vice-president of the Bank. The trial court also allowed Mr. Cummins to testify regarding the letter agreement. Cummins stated that the language in the third paragraph regarding liens on equipment was “basically a[n] agreement that was worked up between the Provarts[’] attorney and us and it states the terms of the collateral that the bank would be willing to accept in order to continue [Provarts’] loan relationship with our bank.” Mr. Cummins testified that the letter agreement was not a subordination agreement. Cummins stated that if the Bank were going to enter into a subordination agreement it would typically give a letter of subordination, followed with a subordinated UCC filing, but that this was not done in this instance.

On October 10, 1990, the trial court entered its order granting summary judgment in favor of the Bank as to Vergennes’ first two affirmative defenses and in favor of Vergennes on its third affirmative defense. The trial court’s December 7, 1990, order denying the Bank’s motion to reconsider stated:

“[N]otwithstanding plaintiff’s denial of the same, the letter agreement between the Provarts and the plaintiff entered into on June 23, 1986, does constitute a subordination agreement between the debtors and the plaintiff to the benefit of a class of un-named third-party beneficiaries. The Court finds that the language contained in the letter agreement *** is clear and precise and that the plaintiffs agreed to subordinate first lien on ‘those items of equipment subject to a purchase money security interest.’ ”

On appeal, the Bank contends that the letter agreement was ambiguous and does not show an expressed agreement by the Bank to subordinate to later unperfected creditors.

A court, in construing a contract, must seek to ascertain the intention of the parties. (Hammel v. Ruby (1985), 139 Ill. App. 3d 241, 247, 487 N.E.2d 409, 413.) Therefore, we must look to the letter agreement of June 23, 1986, to determine if a subordination agreement was intended. If a subordination agreement was intended, it must have been expressed in the agreement; a subordination agreement by implication is not recognized. Western Bank v. Motherly (1987), 106 N.M. 31, 33, 738 P.2d 903, 906; see also Kramlich v. Home Federal Savings & Loan Association (1974), 26 Ill. App. 3d 430, 435, 325 N.E.2d 657, 661-62 (if limitation on scope of lien on pledged accounts was intended, it was necessary that such limitation be expressed in subordination agreement which was executed).

In order to ascertain the intention of the parties, a court must look to the agreement as a whole, to its nature, purpose, and the subject matter with which it deals and, if ambiguous, to the circumstances under which it was made. (Kramlich, 26 Ill. App. 3d at 435, 325 N.E.2d at 662.) Generally, words in a contract are to be given their usual and primary meaning at the time of the execution of the contract. Contracts must receive a reasonable construction according to the intention of the parties, if that intention can be ascertained from their language, and a reasonable construction will be preferred to one which is unreasonable. (26 Ill. App. 3d at 435, 325 N.E.2d at 662.) “ ‘An ambiguous contract will be construed most strongly against the party who prepared the contract and chose the words used, since he is the one who is responsible for the ambiguity ***.’” 26 Ill. App. 3d at 435, 325 N.E.2d at 662, quoting Marshall Field & Co. v. J.B. Noelle Co. (1967), 81 Ill. App. 2d 409, 414, 226 N.E.2d 454, 457.

Whether or not ambiguity exists in a written contract is to be determined by the trial court as a matter of law. (McWhorter v. Realty World-Star, Inc. (1988), 171 Ill. App. 3d 588, 591, 525 N.E.2d 1205, 1207; Hammel, 139 Ill. App. 3d at 247, 487 N.E.2d at 413-14.) Where a question of law is raised by an appeal, this court may determine the issue independently of the trial court’s judgment. (McWhorter, 171 Ill. App. 3d at 591, 525 N.E.2d at 1207.) An ambiguity exists in a document if the words used can be interpreted in more than one sense or if the agreement is obscure through indefiniteness of expression or having a double meaning. (McWhorter, 171 Ill. App. 3d at 591-92, 525 N.E.2d at 1207; Srivastava v. Russell’s Barbecue, Inc. (1988), 168 Ill. App. 3d 726, 732, 523 N.E.2d 30, 35.) In this case, ambiguity is alleged to exist in the following language: “Phillip and Jean Provart will provide a lien on all equipment and livestock which will be a first lien except for those items and equipment subject to a purchase money security interests [sic].”

If the language contained in the letter agreement is “clear and precise,” as the trial court found, the intention of the parties should be easily ascertained. Here, however, reasonable men could differ in interpreting the purpose of the provision in question. The parties could have been agreeing to protect unperfected purchase money security interest holders present in June 1986, at the time of the letter agreement, or, as Vergennes suggests, the parties could have intended to allow all unperfected creditors, present and future, to have superior rights which would normally belong to the Bank. Yet a third reasonable interpretation is that the intention was to acknowledge the special priority rule of section 9 — 312(4) of the UCC (Ill. Rev. Stat. 1989, ch. 26, par. 9 — 312(4)), which would give priority to subsequent purchase money security interest holders who properly perfected. Thus, the language in question was ambiguous because the indefiniteness of its terms allowed it to be reasonably interpreted in more than one sense. Because of this ambiguity, we must look to the purpose of the agreement and the circumstances under which it was made to determine the parties’ intention.

Here, it is uncontradicted that at the time the letter agreement was drafted, the Provarts’ loan was in default and the Bank was going to replevin their equipment and pursue collection. In the letter agreement, assets were provided for principal reduction and as additional security to induce the Bank to restructure the Provarts’ debt. Under these circumstances, it would be an unreasonable construction of the agreement to determine that the Bank and the Provarts intended to provide benefits to future creditors who failed to properly perfect. The following evidence of record supports our conclusion on this issue.

Jo David Cummins, executive vice-president of the Bank, testified in a discovery deposition conducted in August 1990 regarding the purpose of the letter agreement:

“Q. Do you know why this was part of the workout agreement in June of 1986 granting a lien on the equipment if the bank had already had a lien?
A. The main reason was I think prior to this filing, our filing was a limited filing in that it described certain equipment. In the agreement, we wanted to pick up all the equipment to strengthen our position from [Mr. Provart’s] collateral standpoint. That was the reason for the filing of the security agreement at that time.
Q. Was that also the reason to clarify and put that into the letter of agreement of June 23rd ’86?
A. Yes. That’s why it was stipulated in there as well.
* * *
Q. In paragraph three *** there’s mentioned that the Provarts were granted first lien except for those items of equipment subject to a purchase money security interest. Was the bank or yourself aware at that time that the Provarts were buying farm equipment via purchase money interest?
A. Was I aware? No.
Q. Were you aware or [did you] contemplate that they would be doing that in the future?
A. As any normal farm customer would do, yes, I would assume they would replace equipment from time to time.
Q. Buy the replacement with a purchase money security interest from another lender?
A. Possibly, sure.
* * *
Q. As long as the Provarts were given credit on a trade-in for another piece of equipment, that would protect the bank’s position, wouldn’t it?
A. Well, I believe that the security agreement says now or hereafter acquired, so anything that was acquired by them and wasn’t perfected properly would be taken into our security agreement. What I’m saying is we weren’t limiting ourselves to a certain dollar collateral at a certain point and saying, ‘That’s all we want.’ We’re stating we want at least that and anything acquired after that time.
Q. Everything you would get.
A. Correct.
* * *
Q. The question I had was from this point on from ’86 and maybe even prior *** the bank would be receiving a lien on equipment acquired whether it be a first lien or whether it be a lien on equipment that was acquired with a purchase money se-
curity interest. In that case, if it was perfected, it would be a second lien?
A. That’s correct.”

It is obvious from Cummins' testimony that the Bank desired all the equipment collateral available in order to continue its relationship as lender to the Provarts. Thus, it would be inconsistent for the Bank to subordinate its interest in favor of unperfected future creditors. Additionally, the letter agreement was not prepared with the apparent intention of recording it, nor did it comply with the Bank’s normal business practice, when entering into a subordination agreement, of making a subordinated UCC filing. These facts all support the Bank’s contention that the letter agreement was “simply a workout document” between the Bank and its distressed borrowers.

It is well established that when a contract is ambiguous, further evidence may be introduced to aid in its interpretation. (Lewis v. Board of Education of North Clay Community Unit School District No. 25 (1989), 181 Ill. App. 3d 689, 701, 537 N.E.2d 435, 443.) Cummins’ uncontradicted testimony at the motion hearing was that the letter agreement was not intended by the Bank as a subordination agreement. Vergennes offered no testimony or evidence from the Provarts or their attorney, who drafted the letter agreement, to support Vergennes’ theory that the intent of the parties was to subordinate the Bank’s first lien on equipment to an unnamed class of third-party beneficiaries. Given the evidence of record and the fact that the ambiguities within the letter agreement should not be construed against the Bank, which did not prepare the document, we conclude that the trial court erred in finding that the June 23, 1986, letter agreement constituted a subordination agreement under which Vergennes was entitled to priority.

Having rejected the basis upon which summary judgment was entered in favor of Vergennes, we must now review the trial court’s remaining findings to determine if the judgment may be affirmed on any other basis. (See Manor Healthcare Corp. v. Soiltest, Inc. (1989), 192 Ill. App. 3d 934, 940, 549 N.E.2d 719, 723 (reviewing court may affirm judgment of trial court on any basis appearing of record in a case).) As to Vergennes’ first affirmative defense, i.e., that the Bank failed to properly perfect within the records of Perry County since the UCC index notation merely noted “Misfiled,” the trial court’s order stated:

“The Court finds that the security agreement entered into between the debtors and the plaintiff bank which was filed of record April 25, 1986, in the Perry County Recorder’s Office constituted a valid financing statement as defined under Section 9 — 402 of the Uniform Commercial Code and constituted a valid filing under Section 9 — 403 of the UCC.
The Court specifically finds that the security agreement between the debtors and the plaintiff bank was not a multi-purpose document since only equipment and livestock were given as collateral. The error of the clerk in the Recorder’s Office indexing the filing in the mortgage index rather than the UCC index therefore cannot be imputed to the plaintiff. The Court finds therefore that the plaintiff has perfected a valid security interest in the Case IH 1681 [sic] combine and the Case IH 1020 grain platform.”

We agree with these findings.

Our review of the record shows that the farm security agreement executed by the Provarts and filed by the Bank meets the formal requisites of a financing statement under section 9—402(1) of the UCC (Ill. Rev. Stat. 1989, ch. 26, par. 9—402(1)). Presentation for filing of a financing statement and tender of the filing fee or acceptance of the statement by the filing officer constitutes filing under Article IX of the UCC. (Ill. Rev. Stat. 1989, ch. 26, par. 9—403(1).) Here, Ruth Pierce, an employee of the Bank, presented the farm security agreement for filing by mailing the agreement and the recording fee to the Perry County recorder’s office. The security agreement was accepted by the county recorder’s office but was misfiled in the real estate records on April 25, 1986. No instructions were given to the recorder’s office regarding where the security agreement should be filed, but the document, which could be used to perfect an interest in either personal property, such as equipment, or collateral associated with real property, listed only equipment and livestock.

We believe the trial court was correct in finding that since the security agreement was clearly not a multipurpose document, the error of the clerk in misfiling the document cannot be imputed to the Bank. However, even if the security agreement was a multipurpose document which imposed upon the filing party the responsibility to disclose to the clerk the purpose for recording, the record shows that the Bank, upon discovering the misfiling, directed the recorder’s office to transfer the security agreement to the UCC index. Thus, any deficiency by the Bank was cured and notice to future UCC index searchers insured by the Bank’s act of contacting the recorder’s office in 1987. (Cf. In re Leckie Freeburn Coal Co. (6th Cir. 1969), 405 F.2d 1043, 1046, cert. denied (1969), 395 U.S. 960, 23 L. Ed. 2d 746, 89 S. Ct. 2101.) The trial court therefore correctly ruled that the Bank had perfected a valid security interest in the combine and grain platform.

Vergennes’ second affirmative defense asserted a superior interest to the Bank pursuant to Vergennes’ mistaken, but good-faith, filing of its financing statement in Franklin County on October 21, 1988. Section 9—312(4) of the UCC (Ill. Rev. Stat. 1989, ch. 26, par. 9—312(4)) provides that a purchase money security interest in collateral other than inventory has priority over a conflicting security interest in the same collateral if the purchase money security interest is perfected within 20 days after the debtor receives possession of the collateral. If the perfection is not timely, priority between conflicting security interests in the same collateral is determined strictly by the order of filing. (Ill. Rev. Stat. 1989, ch. 26, par. 9 — 312(5)(a).) To perfect a security interest in farm equipment, the proper place to file a financing statement is in the office of the recorder in the county of the debtor’s residence. Ill. Rev. Stat. 1989, ch. 26, par. 9-401(l)(a).

Here, the trial court held that because it was undisputed that the Provarts were residents of Perry County:

“Although Vergennes Equipment, Inc. as a holder of a purchase money security interest in the equipment recorded their lien within 20 days of the debtors taking possession of the equipment as required under Section 9 — 312 of the UCC, their lien was not perfected because it was filed in the wrong county. Therefore, the Court finds that Vergennes Equipment, Inc. did not perfect its rights to a priority lien by recording its lien in the wrong county on October 21, 1988.”

Section 9 — 401(2) of the UCC provides, in pertinent part: “A filing which is made in good faith in an improper place *** is nevertheless effective *** with regard to collateral covered by the financing statement against any person who has knowledge of the contents of such financing statement.” (Ill. Rev. Stat. 1989, ch. 26, par. 9 — 401(2).) Vergennes seeks to convince this court that because it filed a financing statement covering the farm equipment with the Franklin County recorder’s office in October 1988, its filing should fall within this provision of section 9 — 401(2). Vergennes’ argument is misguided.

Section 9 — 401(2) contemplates (1) filing of the financing statement somewhere; and (2) knowledge by a subsequent secured party of the contents of such financing statement, referring to the one filed. (Citizens State Bank v. Peoples Bank (Ind. Ct. App. 1985), 475 N.E.2d 324, 329; see also In re Pirsig Farms, Inc. (D. Minn. 1985), 46 Bankr. 237, 242.) Here, however, the Bank filed its financing statement in June 1986, while Vergennes’ improper filing was not made until October 1988. Thus, while Vergennes’ misfiled financing statement would be effective against subsequent secured parties who had knowledge of Vergennes’ statement, it cannot be effective against the prior filed financing statement of the Bank. See In re Dupont Feed Mill Corp. (S.D. Ind. 1990), 121 Bankr. 555, 559 n.8 (even if second creditor did fall within erroneous filing provision of section 9—401(2), first creditor would still have superior lien under section 9—312(5) (the first to file or perfect rule), where second creditor’s priority date would be February 1984 and first creditor had filed in June 1982). But see In re Johnson (N.D. Ill. 1983), 28 Bankr. 292, 297.

Vergennes cannot properly claim the section 9 — 401(2) defense because the Bank was not a subsequent creditor with a later filing. Thus, the trial court correctly found that Vergennes cannot claim the priority lien benefit of section 9 — 312(4) by virtue of its mistaken recording in Franklin County on October 21, 1988. Therefore, under section 9 — 312(5)(a), the Bank has priority over Vergennes’ conflicting security interest in the combine and grain platform because the Bank was the first to file and properly perfect its lien in Perry County. Ill. Rev. Stat. 1989, ch. 26, par. 9 — 312(5)(a).

Given our conclusion that the trial court correctly ruled in favor of the Bank on the first and second affirmative defenses of Vergennes but erroneously found in favor of Vergennes on the third affirmative defense, the judgment of the trial court must be reversed and this cause must be remanded with directions to enter summary judgment for the Bank.

Reversed and remanded with directions.

GOLDENHERSH, P.J., and WELCH, J., concur.


author: JUSTICE DiVITO

text:
      In re A.F., a Minor, Respondent-Appellant (The People of the State of Illinois, Petitioner-Appellee; Helen F. et al., Respondents-Appellees).
    First District (2nd Division)
    No. 1—90—2318
    Opinion filed October 22, 1991.

      Patrick T. Murphy, Public Guardian, of Chicago (Therese Schafer, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Kenneth T. McCurry, Assistant State’s Attorneys, of counsel), for the People.
    Randolph N. Stone, Public Defender, of Chicago (Joseph M. Gump and Robert Guch, Assistant Public Defenders, of counsel), for appellees Helen F. and Roy F.
   JUSTICE DiVITO

delivered the opinion of the court:

The circuit court of Cook County denied the motions of the State and the Illinois Department of Children and Family Services (DCFS) to vacate the guardianship of A.F., a minor, terminate wardship, and close the case. A.F.’s motion to direct the State to file a petition for adjudication of wardship also was denied. In this appeal, he contends that the circuit court erroneously denied his motion. For reasons that follow, we agree.

On September 19, 1989, DCFS filed a petition for adjudication of wardship for A.F. in the juvenile division of the circuit court of Cook County. The petition was based on section 2 — 3(1) of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 3(1)), alleging that A.F. was a neglected minor because his parents failed to provide the care necessary for his well-being. Following an initial hearing held that same day, the circuit court appointed the public guardian as attorney and guardian ad litem for A.F., and the public defender as attorney for his parents. Thereafter, the petition was amended to allege that A.F. was a dependent minor through no fault of his parents. (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 4(l)(c).) The count alleging neglect was stricken from the petition.

On October 19, 1989, the circuit court accepted A.F.’s parents’ admission that A.F. was a dependent minor and entered a finding of no-fault dependency. The court also ordered a supplemental social investigation.

On December 19, 1989, a dispositional hearing was held. A.F., who was 16 years old at the time, was adjudicated a ward of the court, and Gary T. Morgan, the Guardianship Administrator of DCFS, was appointed his guardian.

On June 27, 1990, the public guardian filed a petition for supplemental relief asking the circuit court to “direct DCFS to screen with the State’s Attorney’s Office a Petition for Adjudication of Wardship regarding [A.F.] alleging that he is neglected and abandoned based on his parents’ refusal to maintain contact with him, their refusal to cooperate with efforts toward reunification, and their refusal to accept the child back into their home after the expiration of the six-month limit on custody subsequent to a finding of no-fault dependency.” At a hearing on July 12, 1990, the State and DCFS regional counsel moved to vacate guardianship of A.F., terminate wardship, and close the case.

At the hearing, Victoria Davis, a DCFS follow-up worker, testified that the case was initiated when A.F.’s parents refused to pick him up from Chicago Reed Mental Health Center. His parents also had refused to cooperate with DCFS since that time and had not sought to regain custody and would not allow him to return home because of his violent behavior.

Robert Longo, a clinical social worker, testified that he had counseled A.F. at St. Joseph Solace Place. A.F. was diagnosed as having conduct disorder and major depression; he had made minimal progress during therapy and had exhibited violent behavior towards people and property. A.F. had made several attempts to contact his parents by letter and telephone, but they had not responded. Longo believed that A.F.’s parents should participate in counseling and that A.F. should be allowed sibling visitation with staff supervision; however, when Longo wrote two letters to A.F.’s parents attempting to initiate reunification efforts, he received no replies. Longo believed that it was not in A.F.’s best interests to be returned to his parents at that time.

Although the State admitted that it did “not believe it is in the best interest of the minor for guardianship to be vacated, wardship terminated and the case closed,” it, with DCFS concurring, contended that the statute mandated those orders because A.F. had been removed from the custody of his parents for longer than six months pursuant to the adjudication that he was a dependent minor. Counsel for the parents argued that closing the case would not be in the best interests of A.F. because he was not ready to return home. The public guardian argued that the circuit court should direct the State to file a second petition for adjudication of wardship on the grounds of parental neglect. The State responded that if a second petition were to be filed, the allegation of neglect would have to be against DCFS because it had legal custody of A.F.

The circuit court denied the motions of the State and DCFS to vacate guardianship, terminate wardship, and close the case. The circuit court also denied the public guardian’s motion to direct the State to file a petition for adjudication of wardship based upon parental neglect and abandonment. A.F., through the public guardian, appeals, contending that the circuit court should have directed the State to file a petition for adjudication of wardship on his behalf.

A.F. contends that his parents’ failure to achieve or even to work towards reunification justified the filing of a neglect and abandonment petition. He maintains that his parents failed to involve themselves with any services aimed at reunification and that his parents initiated no phone contact with him, failed to send him any written correspondence, failed to respond to his therapist’s written requests, and refused to speak with him when he telephoned. He thus maintains that the court improperly allowed him to remain a no-fault dependent after the statutory six-month time limitation expired. See Ill. Rev. Stat. 1989, ch. 37, par. 802—4(l)(c).

In this court, the public defender, representing A.F.’s parents, responds that this case is now moot. A case becomes moot where the issues involved in the circuit court no longer exist because events occurring after the filing of the appeal render it impossible for the reviewing court to grant the complaining party effectual relief. (In re a Minor (1989), 127 Ill. 2d 247, 255, 537 N.E.2d 292.) Here, since A.F. has reached his eighteenth birthday, the public defender maintains that he can no longer be adjudged a neglected minor pursuant to the Juvenile Court Act. See Ill. Rev. Stat. 1989, ch. 37, par. 802—3.

An exception to the mootness doctrine occurs when a case presents an issue of substantial public interest. (In re E.G. (1989), 133 Ill. 2d 98, 105, 549 N.E.2d 322.) In determining whether a case exhibits the requisite degree of public interest, a reviewing court must look to “the public or private nature of the question presented, the desirability of an authoritative determination for the future guidance of public officers, and the likelihood of future recurrence of the question.” People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 622, 104 N.E.2d 769.

We find that this case falls within the public interest exception to the mootness doctrine. Certainly, the proper adjudication of what is in the best interests of minors is of surpassing public concern. We note that the allegations of neglect against A.F.’s parents occurred prior to A.F.’s eighteenth birthday, as did all the hearings before the circuit court. We believe that this court should not deny review simply because A.F. turned 18 years old during the pendency of the appeal. As the public guardian contends, given the length of time necessary to resolve issues raised in appeals, questions such as those involved in the instant case are likely to recur should a minor, like A.F., who is close to his eighteenth birthday, appeal a similar order of the circuit court. Accordingly, we consider the issues raised by the parties in this case.

In this court, A.F. contends that the circuit court erred in extending the six-month no-fault period and in denying his motion to require the State to file a petition for adjudication of wardship; the State, however, maintains that A.F. should not be permitted to contest the court’s extension of the six-month no-fault term because he failed to object to the extension in the circuit court. A.F. replies that he made no objection in the circuit court because he was desirous of having DCFS’s wardship continue while issues involving the requested petition were being litigated. He correctly states that the Juvenile Court Act permits the continuation of one status while a supplemental petition to determine another status is considered. (See Ill. Rev. Stat. 1989, ch. 37, par. 802—13(5).) He contends that termination of DCFS’s wardship would leave him unprotected until another petition could be filed and would present the risk that a second petition for adjudication of wardship would fail, thus placing him in a “precarious” position. See In re J.J. (1991), 142 Ill. 2d 1,10-11, 566 N.E.2d 1345.

Because we consider the issue of the court’s denial of the requested petition to be related to the various options available to the circuit court, we consider whether the court properly extended the six-month limitation.

The overriding purpose of the Juvenile Court Act is to ensure that the best interests of the minor, the minor’s family, and the community are served. (Ill. Rev. Stat. 1989, ch. 37, par. 801—2(1).) In dependency and neglect proceedings, both the State’s Attorney and the court are charged with the duty of ensuring that at each step of the wardship adjudication process the best interests of the minor, the minor’s family, and the community are served. (In re J.J., 142 Ill. 2d 1, 566 N.E.2d 1345.) Here, though we recognize the efforts of the State’s Attorney and the circuit court to fulfill their duty to A.F., we find that, given the allegation that A.F.’s parents demonstrated a complete lack of concern for Ms well-being, the court erred when it allowed A.F. to remain a no-fault dependent beyond the six-month limitation, without requiring the State to file the requested petition for adjudication of wardsMp.

The relevant portion of section 2—4 of the Juvenile Court Act, commonly known as the no-fault dependency provision, defines a dependent as a minor under 18 years of age,

“who is without proper medical or other remedial care recognized under State law or other care necessary for Ms or her well being through no fault, neglect or lack of concern by his parents, guardian or custodian, provided that no order may be made terminating parental rights, nor may a minor be removed from the custody of Ms or her parents for longer than 6 months, pursuant to an adjudication as a dependent minor under tMs subsection.” (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 4(l)(c).)

Notwithstanding section 2 — 4’s specific prohibition against removing a minor from Ms parents for longer than six months, the circuit court here allowed A.F. to remain in foster care for more than nine months. Though the court recognized the problem of A.F.’s parents regaimng custody given their complete lack of attention to or concern for their child, the court’s only remedy — allowing A.F. to remain a no-fault dependent — was not in the best interest of A.F.

In the instant case, A.F. petitioned the court to direct the State to file a petition for adjudication of wardship on the grounds that he was a neglected and abandoned minor. Such a petition was proper because it reflects the statutory aim of providing a number of avenues of access to the juvenile court for minors who need its services. (See People ex rel. Davis v. Vazquez (1982), 92 Ill. 2d 132, 150-51, 441 N.E.2d 54.) Such a petition thus enables the court to fulfill its duty to a minor to receive the care and guidance which the Juvenile Court Act provides. See In re James J. (1989), 193 Ill. App. 3d 75, 80, 549 N.E.2d 834, aff'd (1991), 142 Ill. 2d 1, 566 N.E.2d 1345.

We reject the State’s argument that such a petition would be inappropriate since it would have to allege that the current legal custodian, DCFS, was not providing proper care for the minor. Clearly, A.F.’s parents have the responsibility to work for the benefit of their child, even when that child is under the guardiansMp of the State; the failure of parents to work towards the return of their child is a basis for a finding of unfitness and the termination of parental rights. (See In re T.R. (1985), 135 Ill. App. 3d 1017, 1022, 482 N.E.2d 372.) Simply because DCFS is the current legal guardian does not relieve the parents of their duties and responsibilities to their child. (See In re J.R.Y. (1987), 157 Ill. App. 3d 396, 399, 510 N.E.2d 541.) If that were the case, A.F.’s parents would be granted immunity from a finding of parental neglect and abandonment for the sole reason that DCFS is the legal guardian of their son, a result we deem contrary to the purpose of the Juvenile Court Act.

We find that, based upon A.F.’s parents’ failure to maintain contact with him and their alleged lack of concern for his well-being, the circuit court should have granted A.F.’s request to direct the State to file a petition for adjudication of wardship. Regarding the six-month limitation imposed by section 2 — 4, we can envision times when the best interest of the minor requires an extension of the time period. For example, an extension would be in the best interest of the minor where parents demonstrate proper effort and concern, and all parties, including the minor, agree that an extension is proper, or, where an extension is granted while another status determination is being considered. Here, however, once the circuit court denied A.F.’s motion to have the State file a petition for adjudication of wardship, there was no circumstance justifying an extension of the six-month time limitation. Indeed, the extension was not in A.F.’s best interest. The circuit court’s action relegated A.F. to long-term foster care with no hope of adoptive placement because the no-fault dependency status prohibits the termination of parental rights. Ill. Rev. Stat. 1989, ch. 37, par. 802 — 4(1)(c).

We conclude that the circuit court should have ordered the State to file a new petition for adjudication of wardship based upon parental neglect and abandonment, and should have either terminated A.F.’s wardship or allowed it to continue while the petition was under consideration. Under the circumstances in the present case, the circuit court erred in allowing A.F. simply to remain a no-fault dependent after the statutory six-month time limitation had expired.

The order of the circuit court is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

SCARIANO, P.J., and HARTMAN, J., concur.

      On July 29,1991, during the pendency of this appeal, A.F. turned 18.

      The public defender has characterized A.F.’s chances for adoptive placement as “highly unlikely” because of his advanced age and “apparent psychological and emotional problems.” We find, however, that the public defender’s speculation on A.F.’s prospects for adoption is irrelevant to our determination.