author: JUSTICE KNECHT

text:
    VIVIAN FAULKNER-KING, Petitioner, v. THE DEPARTMENT OF HUMAN RIGHTS et al., Respondents.
    Fourth District
    No. 4 — 91—0301
    Opinion filed February 6, 1992.

      Robert G. Kirchner, of Lerner & Kirchner, of Champaign, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Eve Moran, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.
    Michael R. Cornyn, of Thomas, Mamer & Haughey, of Champaign, for respondent University of Illinois School of Art and Design.
   JUSTICE KNECHT

delivered the opinion of the court:

Petitioner appeals the decision of the Illinois Human Rights Commission (Commission) (In re Vivian Faulkner-King (December 20, 1990),_Ill. Hum. Rights Comm’n Rep._(HRC No. 1988 — SF— 0345)), affirming the decision of the Department of Human Rights (Department) that it lacked jurisdiction to hear her complaint because she had filed it more than 180 days after the alleged civil rights violation occurred. The complaint alleged the University of Illinois (University) denied her tenure and promotion on the basis of her sex, thereby violating the provisions of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1989, ch. 68, par. 1—101 et seq.).

The petitioner had been an assistant professor at the School of Art and Design at the University. In the fall of 1985, she requested tenure and promotion. On November 13, 1985, she received a letter from Director Wicks notifying her the School of Art and Design Personnel Committee (Committee) had voted not to recommend her for tenure and promotion. After receiving the letter from Wicks, petitioner decided she would appeal the Committee’s recommendation. The appeal process resulted in Dean McKenzie determining the Committee had been unlawfully constituted and advising Wicks to appoint a new committee to review petitioner’s file.

On May 8, 1986, petitioner received a letter from Wicks advising her the new committee had voted to deny her tenure. Later, she notified Wicks she would seek review of the recommendation. On August 11, 1986, Wicks informed her the committee had affirmed its original decision, and he would recommend to the dean that she be issued a notice of nonreappointment and offered a terminal contract. On August 11, 1986, Wicks sent letters to McKenzie and Vice-chancellor Goldwasser informing them of the committee’s decision and requesting petitioner be issued a notice of nonreappointment and offered a terminal contract. On August 20, 1986, the board of trustees issued petitioner a terminal contract for the 1986-87 academic year. The contract specified that notice of nonreappointment after completion of the contract was thereby given.

On September 17, 1986, McKenzie responded to her request for an extension and further review by stating he would not change his previous recommendation to the vice-chancellor. On April 7, 1987, the Faculty Advisory Committee (FAC) recommended to Vice-chancellor Berdahl that reconsideration be given to petitioner’s denial of tenure. On July 17, 1987, the petitioner was advised that Berdahl supported the University’s decision. On August 20, 1987, petitioner’s terminal contract expired.

On January 20, 1988, petitioner filed a complaint with the Department. The Department dismissed her complaint as filed more than 180 days after the alleged human rights violation had occurred. (See Ill. Rev. Stat. 1989, ch. 68, par. 7A—102(A)(1).) The Department explained that on August 20, 1986, the petitioner was issued a terminal contract, and the statutory limitations period commenced running on that date. Petitioner filed her complaint on January 28, 1988, more than 1½ years after she had received notification of what amounted to her termination. Later, the Commission affirmed the Department’s finding of lack of jurisdiction and stated the time for filing a charge had commenced on November 13, 1985, when she was originally informed she was not being recommended for tenure. However, it also stated the time period began to run on the date the board of trustees issued her the terminal contract, i.e., August 20, 1986. The Commission later denied petitioner’s petition for rehearing before the entire Commission.

On appeal, petitioner contends (1) the Department lacked subject-matter jurisdiction to hear the complaint; (2) the complaint was filed timely; (3) the 180-day filing period is not jurisdictional, and therefore, the respondents should be estopped from asserting that her claim was untimely filed; and (4) the charge-filing limitations period is unconstitutional.

The Act prohibits “employers” from basing employment decisions on unlawful discrimination. (Ill. Rev. Stat. 1989, ch. 68, par. 2—102(A).) The prohibition extends only to employers as defined by the Act. (Ill. Rev. Stat. 1989, ch. 68, par. 2—101(B)(1).) Based on the definitions contained in the Act, petitioner first argues that the term “employer” does not include the University because it is a public corporation separate and distinct from the State and, therefore, asks this court to vacate the decision of the Commission and dismiss her appeal.

The petitioner evidently wants us to determine the Department did not have jurisdiction, not because her complaint was untimely but because the University is not an “employer.” This is an absurd argument for petitioner to advance because, were we to accept her argument, we could not grant her any substantive relief.

Petitioner cites People ex rel. Board of Trustees of the University of Illinois v. Barrett (1943), 382 Ill. 321, 46 N.E.2d 951, to support her assertion the University is not part of the State. However, in Barrett, the supreme court was faced with the question of whether the Attorney General, by virtue of his office, was a legal advisor for the university and its board of trustees. After viewing the status of the university as a corporate entity, its relation to the State, and the powers vested in the Attorney General, the court concluded the university was a public corporation, and its trustees were entitled to select their own legal counsel. Barrett, 382 Ill. at 347, 46 N.E.2d at 964.

Although the University is not part of the State for purposes of being represented by the Attorney General, it does not follow that the University is not part of the State for purposes of the Act. Although the University is not an administrative division of the State and is not an agency or instrumentality of the State in the sense it is a department or branch of the State government, it nevertheless is a State institution. It was established by the State; it has no employees, but rather the employees are State employees and are paid by State funds, the property of the University belongs to the State, the State retains some control over its operation, and all money derived from interest on funds invested, rents, tuition, et cetera, belong to the State. (Barrett, 382 Ill. at 338-47, 46 N.E.2d at 960-64.) Further, Barrett asserted the university functioned solely as an agency of the State for the operation and administration of the university. (Barrett, 382 Ill. at 343, 46 N.E.2d at 962.) Therefore, a significant connection exists to the State to consider it a part of the State for purposes of the Act. Moreover, the public policy of Illinois is to protect the fundamental employment rights of the citizens with respect to nondiscriminatory opportunity and employment. The definitions in the Act are broad to encompass many types of employers so as to effectively carry out this policy. To exclude the University from coverage under the Act would require that we give the term “State” an unnecessarily narrow interpretation in light of the policy of Illinois. We decline to do so and therefore reject petitioner’s first argument.

Next, she argues the discriminatory act occurred on August 20, 1987, when her contract ended and no extension was provided, and hence, her complaint was timely filed within the meaning of section 7A—102(A)(1) of the Act. To support her argument, she contends that because of the continuing review process, even after the terminal contract was issued, it was not until August 20, 1987, that she became aware that her request for tenure and promotion had been finally decided.

Section 7A—102(A)(1) of the Act states:
“Within 180 days after the date that a civil rights violation allegedly has been committed, a charge in writing under oath or affirmation may be filed with the Department ***.” (Ill. Rev. Stat. 1989, ch. 68, par. 7A—102(A)(1).)

An argument that the language of the 180-day charge-filing provision of a predecessor section of the Illinois Fair Employment Practices Act (Ill. Rev. Stat. 1975, ch. 48, par. 858) was permissive, rather than mandatory, was rejected in Lee v. Human Rights Comm’n (1984), 126 Ill. App. 3d 666, 669, 467 N.E.2d 943, 945.

In determining the day upon which the allegedly discriminatory act occurred, the decision in Delaware State College v. Ricks (1980), 449 U.S. 250, 66 L. Ed. 2d 431, 101 S. Ct. 498, is instructive. It is appropriate to examine Federal decisions in the fair employment field because of the similarities between the Federal and Illinois enactments. Lee, 126 Ill. App. 3d at 672, 467 N.E.2d at 947.

In Ricks, the Supreme Court reviewed a decision under title VII of the Federal CM Rights Act (42 U.S.C. §2000e-5(e) (Supp. IV 1974)) and held the limitations period commenced when the board of trustees notified respondent he would be offered a terminal contract.

In February 1973, the tenure committee there had recommended Ricks not receive tenure. The committee agreed to reconsider its recommendation but affirmed its original decision. Subsequently, he filed a grievance with the grievance committee. On June 26, 1974, the trustees informed him that he would be offered a terminal contract which would expire on June 30, 1975. The letter indicated that if the grievance committee voted to recommend tenure and the trustees concurred, it would supersede any previous action taken by the trustees. On September 12, 1974, the trustees notified Ricks they denied his grievance. The district court used June 26, 1974, as the relevant date commencing the statutory limitations period. (Ricks, 449 U.S. at 255, 66 L. Ed. 2d at 437, 101 S. Ct. at 502.) The court of appeals held the filing requirement did not commence until the terminal contract expired on June 30, 1975. Ricks, 449 U.S. at 255, 66 L. Ed. 2d at 438, 101 S. Ct. at 503, rev’g by a divided Court, Ricks v. Delaware State College (3d Cir. 1979), 605 F.2d 710.

The Supreme Court held the final date of his terminal contract did not control because for that date to control he would have had to allege the manner in which his employment was terminated discriminatorily differed from the manner in which the college terminated other professors denied tenure. Since no suggestion was made he was treated any differently than other unsuccessful tenure aspirants, this date could not control. This was so even though the effect of the denial, the eventual loss of his position, did not occur until later. Ricks, 449 U.S. at 258, 66 L. Ed. 2d at 439,101 S. Ct. at 504.

The Court also rejected the court of appeals’ reasoning that focusing on the final date of employment would provide a “bright line guide” in determining the date the charge-filing limitations period commenced. It asserted the fallacy of that view as a rule of general application was that the statute stated the limitations period commenced running on the date of the “alleged unlawful employment practice.” In Ricks’ case, that date occurred before his last date of employment. Ricks, 449 U.S. at 259, 66 L. Ed. 2d at 440, 101 S. Ct. at 505.

The Court further asserted the date the board had notified Ricks that his grievance had been denied did not control. Two theories had been advanced as to why this date should control. One theory was that the termination was not final, especially in view of the letter which stated the possibility that he would receive tenure if the trustees sustained the grievance. The second theory was that the pendency of the grievance should toll the charge-filing limitations period. (Ricks, 449 U.S. at 260-61, 66 L. Ed. 2d at 441, 101 S. Ct. at 505.) The Supreme Court rejected both theories, stating the board had made clear before September 12 that it had rejected Ricks’ tenure bid. Moreover, the court stated that “entertaining a grievance complaining of the tenure decision [did] not suggest that the earlier decision was in any respect tentative. The grievance procedure, by its nature, is a remedy for a prior decision, not an opportunity to influence that decision before it [was] made.” (Emphasis in original.) (Ricks, 449 U.S. at 261, 66 L. Ed. 2d at 441, 101 S. Ct. at 505-06.) Additionally, “the pendency of a grievance, or some other method of collateral review of an employment decision, [did] not toll the running of the limitations periods.” Ricks, 449 U.S. at 261, 66 L. Ed. 2d at 441, 101 S. Ct. at 506, citing International Union of Electrical, Radio & Machine Workers, AFL-CIO, Local 790 v. Robbins & Myers, Inc. (1976), 429 U.S. 229, 50 L. Ed. 2d 427, 97 S. Ct. 441.

In Board of Governors of State Colleges & Universities for Northeastern Illinois University v. Rothbardt (1981), 98 Ill. App. 3d 423, 424 N.E.2d 742, we considered the decision in Ricks and held that “£f]or a decisionmaker to continue to study the rationale of a previous ruling [did] not amount to a reconsideration of the ruling and [did] not change the date of the formal action.” Therefore, we affirmed the circuit court’s ruling that the act of listening to tapes of an ad hoc committee meeting was not a remedy for a prior decision and did not start anew the time for filing a charge. Rothbardt, 98 Ill. App. 3d at 429, 424 N.E.2d at 747.

Based on the analysis used in these cases, we hold the alleged civil rights violation occurred when the terminal contract was issued, i.e., August 20, 1986, and hence, the complaint was not timely filed. The University’s “Guidelines Regarding the Procedures for the Issuance and Review of Notices of Nonreappointment of Faculty Members During Their Probationary Period” set forth the procedure for offering a terminal contract to a faculty member. The guidelines make clear that the issuance of a terminal contract by the board of trustees is the final step in the tenure process. The terminal contract clearly stated it was issued by the board of trustees. Therefore, a final decision had been made regarding petitioner’s tenure. Any further action by the FAC or the petitioner would not affect the finality of the decision or toll the charge-filing limitations period. Moreover, certainly the petitioner should have been aware by July 17, 1987, when she was notified by the FAC that Vice-chancellor Berdahl supported the school’s decision, that a final decision had been made regarding her tenure and promotion. This date also would be beyond the 180-day charge-filing period and would deprive the Commission of jurisdiction.

Petitioner cites Lever v. Northwestern University (N.D. Ill. Feb. 2, 1990), No. 84—C—11025 (LEXIS No. 1262, Genfed library, Dist. file) (unpublished order), in an attempt to persuade this court it was reasonable for her not to have realized a final decision had been made regarding her tenure until her contract expired. However, Lever is distinguishable in that the district court found it was reasonable for petitioner not to be aware when a final decision had been made regarding her tenure because it was unclear as to who made the final decision to trigger the running of the statute of limitations. However, in the present case, it is clear the issuance of a terminal contract by the board of trustees is the final step in the tenure and promotion process.

Petitioner next argues if we find her complaint was not timely filed, we must then determine whether the charge-filing requirement is jurisdictional or in the nature of a statute of limitations. Petitioner asserts her action is premised on a constitutional right because when a State employee files a sex discrimination action, the action is based on rights contained in article I, sections 17, 18 and 19 of the Illinois Constitution, and in article I, section 2, which grants all people the rights to due process and equal protection. (Ill. Const. 1970, art. I, §§17, 18, 19; art. I, §2.) Since the Act only secures the rights guaranteed in sections 17, 18 and 19, she argues her cause of action is of a constitutional nature because it is based on specific provisions of the Constitution not covered by the Act, and, therefore, the 180-day charge-filing limitations period is not jurisdictional and is instead subject to the principles of estoppel.

However, courts have uniformly held that the charge-filing time limitations period is jurisdictional. Rothbardt, 98 Ill. App. 3d at 426, 424 N.E.2d at 745; Larrance v. Human Rights Comm’n (1988), 166 Ill. App. 3d 224, 231, 519 N.E.2d 1203, 1208; Northtown Ford v. Human Rights Comm’n (1988), 171 Ill. App. 3d 479, 488, 525 N.E.2d 1215, 1222.

The petitioner relies on Pickering v. Human Rights Comm’n (1986), 146 Ill. App. 3d 340, 496 N.E.2d 746, to support her argument. In Pickering, plaintiff filed a complaint with the Department, alleging he was fired because of his age and physical handicap. The Department dismissed the charge because it had not been filed within the 180-day time period, and the Commission sustained the Department’s ruling. The plaintiff sought administrative review, contending the filing period was not jurisdictional because his cause of action was based upon provisions in the Illinois Constitution. Relying on Fred-man Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 486 N.E.2d 893, the Pickering court held the limitations period was jurisdictional. The court explained that the Illinois Constitution did not protect an employee from termination of employment because of a physical or mental handicap. Therefore, the rights plaintiff sought to protect were created by the Act. Moreover, the time limit was an inherent element of the right to be protected from termination based on age or handicap. Pickering, 146 Ill. App. 3d at 345-46, 496 N.E.2d at 750-51.

Although the Pickering court discussed the fact the rights plaintiff asserted were created by the Act, there was no indication that if the right was constitutionally based, the time limit would be considered a statute of limitations. Rather, the holding seems to apply to all rights protected under the Act. The court noted section 7—102(B), now section 7A— 102(B) of the Act, specifically states: “This time period shall not be construed to be jurisdictional.” (Ill. Rev. Stat. 1989, ch. 68, par. 7A— 102(B).) Had the legislature wanted section 7—102(A), now section 7A —102(A), to be nonjurisdictional, the court asserted it could have provided as it did in section 7—102(B). Pickering, 146 Ill. App. 3d at 346-47, 496 N.E.2d at 751.

Furthermore, in Robinson v. Human Rights Comm’n (1990), 201 Ill. App. 3d 722, 559 N.E.2d 229, the Fifth District Appellate Court rejected a similar argument as that advanced by petitioner. The court noted the right in Pickering was created by the Act, and that the right in Robinson, to be protected from retaliation for encouraging opposition to discriminatory practices, was also created by the Act. However, the court held even if the right was recognized by common law, it would still conclude the time limitation was jurisdictional. The court based its conclusion on the fact the Act made it a right which could not be enforced other than under the agency created for its enforcement. By conferring authority upon the Department to enforce these rights, the Act turned it into a distinct right for which a timely filing of the charge was a precondition of enforcement. Robinson, 201 Ill. App. 3d at 728, 559 N.E.2d at 232-33.

It is clear the failure to file within the prescribed time limit deprives the Department of jurisdiction. Were we to hold otherwise, an anomaly would be created. The charge-filing time period would be jurisdictional for some rights under the Act and not for others. “That would be an unnatural bifurcation of the intention of the legislature.” Robinson, 201 Ill. App. 3d at 729, 559 N.E.2d at 233.

Having reached the conclusion that the 180-day limitations period for filing a charge is jurisdictional, it would normally be unnecessary to address whether a respondent may be estopped from asserting the untimeliness of the complaint. However, courts have allowed a narrow exception to the jurisdictional time period. In Lee, the court held if the charge was untimely filed because of defendant’s misleading conduct, defendant would be estopped from raising the limitations period as a defense. However, the defendant would be estopped only if it was conduct initiated by defendant which induced plaintiff not to act. Lee, 126 Ill. App. 3d at 669, 467 N.E.2d at 495.

In this case, petitioner alleges she sought the advice of an ombudsman at the University and was told she should pursue all internal remedies before pursuing any external remedies. As petitioner admitted, this representation was prompted by petitioner and, therefore, renders the exception inapplicable. Moreover, this representation did not alter the finality or actionability of petitioner’s action. The conversation took place before December 24, 1985. She received her terminal contract in August 1986. Under the circumstances, it does not appear this statement should have misled petitioner into delaying the filing of her charge.

Additionally, in petitioner’s reply brief, she alleges the Commission knowingly misled her and caused her to file her charge late. However, there is no evidence the agency intentionally misled petitioner. Moreover, even if estoppel were otherwise applicable, it could not be considered on appeal since she failed to raise it at the administrative level (Robinson, 201 Ill. App. 3d at 730, 559 N.E.2d at 234), or indeed any time before the filing of the reply brief (134 Ill. 2d R. 341(g); People v. Minto (1925), 318 Ill. 293, 296, 149 N.E. 241, 243).

Finally, petitioner argues that the 180-day charge-filing limitations period is unconstitutional. Petitioner wants this court to hold the Act is not the exclusive remedy for civil rights violations when an action is premised upon section 2 of the Illinois Constitution and that the 180-day limitations period is unreasonable. Section 8—111(C) of the Act states: “Except as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act.” (Ill. Rev. Stat. 1989, ch. 68, par. 8—111(C).) In Mein v. Masonite Corp. (1985), 109 Ill. 2d 1, 7, 485 N.E.2d 312, 315, the supreme court specifically resolved this issue by holding the Act provided the exclusive means of redress for civil rights violations.

Furthermore, the limitation does not appear to be unreasonable. In Thakkar v. Wilson Enterprises, Inc. (1983), 120 Ill. App. 3d 878, 883, 458 N.E.2d 985, 989, the court stated “[t]he limitations, administrative procedures and remedies of the [Act] *** are reasonable and were enacted with proper authority.” (Yount v. Hesston Corp. (1984), 124 Ill. App. 3d 943, 947, 464 N.E.2d 1214, 1217.) Moreover, given the nature of the violation, the longer the limitations period the greater the burden of proving the charges, as evidence is not retained and witnesses’ memories fade, and the greater the possibility of fraudulent charges. Therefore, the limitation would appear to be reasonable.

Further, the petitioner failed to cite any authorities in connection with this argument. It is often stated that reviewing courts are “not a depository in which an [appellant] is allowed to dump entire matters of pleadings, court actions, arguments or research upon the court.” (Finke v. Woodard (1984), 122 Ill. App. 3d 911, 921, 462 N.E.2d 13, 20, citing In re Estate of Kunz (1972), 7 Ill. App. 3d 760, 288 N.E.2d 520.) Mere contentions without providing citations do not merit consideration on appeal. In re Tally (1991), 215 Ill. App. 3d 385, 390-91, 574 N.E.2d 1262, 1265; People v. Hood (1991), 210 Ill. App. 3d 743, 746, 569 N.E.2d 228, 230.

We believe a decision in favor of respondents and an affirmance is clearly correct. However, we also note some of the issues here were created by the University’s own procedures. The stream of letters back and forth, committee meetings and assorted recommendations by committees and individuals did not create a climate of plain meaning and clear understanding. While this record supports the Commission’s decision, we trust in the future the University will make every effort to ensure that employees are distinctly aware when a final decision regarding their employment has been made, and — in particular— when the time for pursuing their rights outside the University has begun.

The Commission’s order is affirmed.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL BACON, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0535
    Opinion filed February 6, 1992.
    Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John Turner, State’s Attorney, of Lincoln (Kenneth R. Boyle, Robert J. Biderman, and Monroe C. McWard, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

The trial court revoked defendant’s probation, sentenced him to five years in prison, and did not award him any credit against that sentence for time he spent on probation. Defendant appeals the failure of the court to award such credit.

We affirm.

I. Facts

In July 1988, defendant, Michael Bacon, pleaded guilty to unlawful delivery of a controlled substance, specifically more than 1 gram but less than 15 grams of a substance containing cocaine (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(b)(2)). This offense is a Class 1, probationable felony. (See HI. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3; ch. 56½, par. 1401(b).) On July 12, 1988, the court sentenced defendant to three years of probation subject to certain conditions, including that he pay court costs and a fine totalling $3,860.50, serve 24 weekends of periodic imprisonment, and not violate any criminal statute of any jurisdiction.

On June 3, 1991, the State filed a petition to revoke defendant’s probation. The petition alleged that defendant violated a condition of his probation by again committing the offense of unlawful delivery of more than 1 gram but not more than 15 grams of a substance containing cocaine (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(b)(2)). In June 1991, the trial court conducted a hearing on the State’s petition and found that the State had proved the allegations therein by a preponderance of the evidence. In July 1991, the court conducted a sentencing hearing, revoked defendant’s probation, and sentenced him to five years in prison, with credit on that sentence for 166 days previously served.

On appeal, defendant’s sole argument is that the trial court abused its discretion by not granting him credit against his prison sentence for the period from the date he was sentenced to probation (July 12, 1988) to the date he committed the offense that led to the revocation of his probation (March 31, 1990).

Defendant argues that the trial court had discretion under section 5—6—4(h) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005—6—4(h)) to award him credit for time he served on probation against his five-year prison sentence. Defendant claims that the trial court’s failure to grant such credit amounted to an abuse of its discretion. We disagree.

II. Waiver

We first observe that the issue defendant raises on appeal was never presented to the trial court when it revoked his probation and sentenced him to prison. Thus, defendant is asking us to conclude that the trial court abused its discretion by failing to grant him relief that he never requested. We decline to do so and hold that defendant’s failure to raise this issue in the trial court waives it on appeal. We are convinced that an orderly criminal justice system requires no less.

That the trial court failed to address the provisions of section 5—6— 4(h) of the Code at the sentencing hearing could hardly come as a surprise to defendant and his counsel, who were both present. By failing to request at that time that the trial court exercise its discretion in a manner that would benefit him, defendant stands before this court in a worse position than a defendant who challenges on appeal some alleged impropriety committed by the trial court at the sentencing hearing but to which no objection was made at the time. At least in these latter cases, the defendant’s sole failure is the absence of an objection, as opposed to the present case in which we have the absence of a request. Accordingly, we conclude that the holdings of People v. Felella (1989), 131 Ill. 2d 525, 540, 546 N.E.2d 492, 498 (defendant’s failure to object to allegedly improper evidence presented by State at sentencing hearing waives that issue on appeal), and People v. Montague (1986), 149 Ill. App. 3d 332, 346-47, 500 N.E.2d 592, 601 (defendant’s failure to object to sentence or procedure during which it was imposed will constitute waiver), fully apply to the present case.

III. The Merits

If we were to reach the merits, the result would be no better for defendant. In support of his position that the trial court abused its discretion at sentencing, defendant argues the following to this court:

“[Defendant] made a mistake of judgment. However it cannot be ignored that for over a year and a half [defendant] did not violate any criminal laws of the State of Illinois while he was on probation. *** Under the facts of this case, the trial court abused its discretion by ignoring the strides that [defendant] had made since he had gone through drug treatment, and ignoring the fact that he was gainfully employed and an active supporter of his community and his family ***.
* * *
[Defendant] generally complied with the conditions of probation from July 12, 1988[,] when he [was] sentenced to a term of probation until March 31, 1990, the date of the alleged probation violation. [Defendant] is entitled to be given sentence credit for part of his probationary period.” (Emphasis added.)

We emphatically disagree with all of these arguments. The trial court was fully justified in expecting and requiring this convicted felon to adhere totally to all conditions of his probation or to suffer the consequences. Defendant’s claim that he is entitled to leniency because he had “generally complied” with those conditions, or that he had “made strides” towards compliance is utterly without merit. When it comes to complying with probationary conditions, “close” and “almost” are not good enough.

A sentence of probation is a matter of judicial grace, a chance for a convicted criminal to serve a sentence for his felonious behavior without going to prison. For probationary sentences to be meaningful, trial courts can and should require strict adherence to all probationary conditiqns. To do less would diminish the importance and significance of probation, reduce the likelihood that both probationers and society in general will view probation as a deterrence, and diminish generally respect for the law and the authority of the courts.

Furthermore, we note that the offense the trial court found defendant to have committed, which resulted in the revocation of his probation, was the same offense—unlawful delivery of cocaine—for which the trial court originally placed defendant on probation. Because that fact reveals most acutely how little impact defendant’s sentence of probation had on his subsequent behavior, that fact serves as an aggravating factor that the trial court may properly consider (as it reevaluates a defendant’s rehabilitative potential) when imposing sentence following revocation of probation.

Defendant was originally convicted of a Class 1 felony for which the trial court could impose a penitentiary sentence of not less than 4 years and not more than 15 years. (See Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—l(a)(4).) After the trial court revoked defendant’s probation, it sentenced him to five years in prison, merely one year over the minimum prison sentence. Under these circumstances, defendant has no basis for arguing that the trial court abused its discretion by failing to give him credit for time served on probation. See People v. Bogan (1989), 185 Ill. App. 3d 129,135, 540 N.E.2d 1135,1139.

For the reasons stated, the judgment of the circuit court is affirmed.

Affirmed.

McCULLOUGH and LUND, JJ., concur.


author: JUSTICE COOK

text:
    PHILLIP MILLER, Plaintiff-Appellant and Cross-Appellee, v. J.M. JONES COMPANY, Defendant-Appellee and Cross-Appellant.
    Fourth District
    No. 4 — 91—0296
    Opinion filed February 20, 1992.

      Robert I. Auler, of Auler Law Offices, PC., of Urbana, for appellant.
    Marc J. Ansel, of Erwin, Martinkus, Cole & Ansel, Ltd., of Champaign, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

Plaintiff Phillip Miller appeals, in this retaliatory discharge case, from the trial court’s entry of a directed verdict at the close of plaintiff’s evidence. We affirm.

Plaintiff was employed as a truck driver by J.M. Jones Company. He injured his back while working in 1984, but was able to return to his job. In 1985 he again injured his back and for a period of time was limited to light duty while under the care of his doctor. After another injury in early 1986, plaintiff was placed in a modified work-duty program as a “computer extractor.” That position required plaintiff to climb into trucks carrying a 30- to 35-pound port-a-pack, to take information from a truck computer which recorded travel information, and to check the driver’s travel reports against the computer information. While so assigned in January 1987 plaintiff reinjured his back climbing out of a truck. Also in January 1987 Jonny Bennett began working for defendant as its loss-prevention safety manager. Bennett testified his primary function was to reduce employee injuries, but acknowledged he had reduced workers’ compensation expenses. Bennett changed the modified-duty program, calling it “temporary alternative duty,” and prepared written guidelines for review of the status of an injured employee. Company doctors were changed shortly after Bennett’s arrival.

Plaintiff had had a workers’ compensation claim pending since 1986. In a letter dated November 29, 1986, plaintiff’s compensation attorney took the position that plaintiff was permanently disabled from truck driving. In an evidence deposition taken in March 1987, plaintiff’s treating physician, Dr. Sam Young, testified that plaintiff was permanently disabled from performing the duties of a truck driver. Dr. Young released plaintiff for light-duty work, but plaintiff did not return to work, apparently because the parties were negotiating the compensation claim. During negotiations the parties’ attorneys discussed vocational rehabilitation and the possibility that plaintiff would resign. In his March 23, 1987, letter to Bennett enclosing Dr. Young’s light-duty slip, plaintiff stated, “[s]hould however the negotiation process fail, it appears that J. M. Jones will have to provide a permanent light duty job.”

On May 11, 1987, a settlement contract resolving all issues, including rehabilitation, was signed by the parties and approved by the arbitrator. The contract was set out on a form prepared by the Industrial Commission. Where the form asked for information on the injured employee and his current employment, the following answer was filled in: “Employee given modified duty within his restrictions. Will seek new work with a different employer.” Plaintiff refused to sign the contract with the quoted language included, and the language was accordingly marked out.

Plaintiff testified he contacted Jonny Bennett about mid-June and asked to take vacation time, but Bennett asked him if he would be resigning. Bennett testified plaintiff asked to collect his accrued vacation benefits, and Bennett told him that according to company policy he could not collect accrued benefits until he completed his resignation papers. On June 18, 1987, defendant’s personnel manager, Ken Waltsgott, sent plaintiff a letter of termination referring to “medical restrictions *** provided by Dr. Young that make it impossible for you to be employed as a truck driver at the J. M. Jones Company.” Waltsgott testified plaintiff had told him that plaintiff could never see returning to the truck driver position, that Waltsgott knew plaintiff was not interested in clerical positions, and was not happy with the computer extractor position. Waltsgott thought plaintiff would have liked a dispatcher position, but none was available. Waltsgott testified plaintiff’s filing of his workers’ compensation claim was not a factor in his decision to discharge plaintiff.

Plaintiff was on vacation and did not receive the termination letter until July 10. In plaintiff’s response to the termination letter, he said that he had made an appointment with the company doctor, Dr. Brunner, to see if the doctor would release him “back to driving,” and that Dr. Brunner’s determination would be the deciding factor in whether he returned. Shortly thereafter Waltsgott received a return-to-work slip signed by Dr. Brunner which indicated plaintiff was released to return to truck driving. Plaintiff had not told Dr. Brunner he had been terminated; he told the doctor he would be terminated if he did not get a release for work, that he felt he could go back to work, and wanted to go back to work. About this time plaintiff saw defendant’s classified ad describing a part-time clerical position. Plaintiff testified he would have been interested in that type of job, but he did not contact defendant about it.

Defendant had four other employees who were injured while in a truck driving position. Each had filed a workers’ compensation claim and was eventually released by his doctor with permanent restrictions which precluded a return to truck driving, and each had eventually been placed in a permanent position which met his abilities and medical restrictions.

Plaintiff filed a retaliatory discharge complaint alleging he had been terminated because of his exercise of rights under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.). After the close of plaintiff’s evidence the trial court granted defendant’s motion for a directed verdict, finding no evidence from which the jury could conclude that the reason given by Waltsgott for discharge was merely a pretext, and no evidence that the true motive for discharge was retaliation for plaintiff’s exercise of his rights or receipt of benefits under the Act. During the trial plaintiff had made an offer of proof that while he was working as a computer extractor the company’s safety director, Les Reinert, told him the company “was trying to break him” by giving him that position, which required him to “inform upon” his fellow drivers and their inaccurate mileage claims. The trial court ruled the evidence admissible, but plaintiff chose not to introduce it. After the directed verdict plaintiff’s motion to reopen and submit this evidence was granted, but the court nevertheless granted the directed verdict. Plaintiff appeals, arguing that he established a prima facie case under Hugo v. Tomaszewski (1987), 155 Ill. App. 3d 906, 508 N.E.2d 1139, and that the jury could reasonably have inferred from the evidence that he was terminated in retaliation for his exercise of rights under the Act.

The Act provides:

“It shall be unlawful for any employer *** to interfere with, restrain or coerce an employee in any manner whatsoever in the exercise of the rights or remedies granted to him or her by this Act or to discriminate, attempt to discriminate, or threaten to discriminate against an employee in any way because of his or her exercise of the rights or remedies granted to him or her by this Act.
It shall be unlawful for any employer *** to discharge or to threaten to discharge, or to refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of his or her rights or remedies granted to him or her by this Act.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.4(h).)

To establish a claim of retaliatory discharge, a plaintiff must establish: (1) he was an employee before the injury; (2) he exercised a right granted by the Act; and (3) he was discharged and the discharge was causally related to his exercise of rights. (Gonzalez v. Prestress Engineering Corp. (1990), 194 Ill. App. 3d 819, 823, 551 N.E.2d 793, 796.) The causality element will not be satisfied where the basis of the discharge is valid and nonpretextual. Gonzalez, 194 Ill. App. 3d at 824, 551 N.E.2d at 797.

The trial court properly ruled the testimony of the safety director, Reinert, was admissible. An agent may make an admission regarding a matter within the scope of his authority, while the employment relationship exists. (Oakleaf v. Oakleaf & Associates, Inc. (1988), 173 Ill. App. 3d 637, 651-52, 527 N.E.2d 926, 935; Cornell v. Langland (1982), 109 Ill. App. 3d 472, 476, 440 N.E.2d 985, 988.) Agents are rarely given specific authority to make damaging statements, but the present trend is to admit the statement if it concerns matters within the scope of the agent’s employment. (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §802.9, at 609 (5th ed. 1990).) Knowledge why an employee was assigned a certain position could be a matter within the scope of a safety director’s employment.

The cases which plaintiff cites for the proposition that he established a prima facie case by showing a short time period between his exercise of rights and his discharge, Hugo (155 111. App. 3d 906, 508 N.E.2d 1139) and Bragado v. Cherry Electrical Products Corp. (1989), 191 111. App. 3d 136, 547 N.E.2d 643, utilize the three-tier standard of proof of the Civil Rights Act cases. (See McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817; see also Burnham City Hospital v. Human Rights Comm’n (1984), 126 111. App. 3d 999, 1002, 467 N.E.2d 635, 637.) Under the three-tier standard of proof plaintiff need only make out a minimal prima facie case, which defendant must then rebut by adducing some evidence of lawful motivation for the challenged action. If defendant does so, plaintiff must satisfy the ultimate burden of proof by showing that defendant’s reason for the challenged action is pretextual. (Netzel v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 808, 812, 537 N.E.2d 1348, 1350 (declining to apply the three-tier standard to retaliatory discharge cases).) We need not decide whether the three-tier standard should be applied here, or whether plaintiff showed a short time period between the exercise of his rights and his discharge. As defendant articulated a lawful reason for discharge (during plaintiffs presentation of his prima facie case), it was plaintiffs obligation to prove the reason for discharge was pretextual. See Horton v. Miller Chemical Co. (7th Cir. 1985), 776 F.2d 1351,1359 n.11.

Plaintiff argues that courts should be especially reluctant to take retaliatory discharge cases from the jury because direct evidence of an employer’s motivation is so difficult to obtain and circumstantial evidence must be evaluated by the trier of fact. Many retaliatory discharge cases have been decided as a matter of law, however, at various stages of the proceeding. Articulation of a lawful reason for discharge is not enough to grant a motion to dismiss; at that stage, the allegations of the complaint and all reasonable inferences therefrom must be regarded as true. (Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 529, 519 N.E.2d 909, 911; Richardson v. Illinois Bell Telephone Co. (1987), 156 Ill. App. 3d 1006, 510 N.E.2d 134; Bragado, 191 Ill. App. 3d 136, 547 N.E.2d 643 (evidence that injured employee was unable to do the work could not be considered on motion to dismiss).) Similarly, the issue of an employer’s motive or intent is a question of material fact, not normally subject to summary judgment. (Palmateer v. International Harvester Co. (1986), 140 Ill. App. 3d 857, 860, 489 N.E.2d 474, 476; Hugo, 155 Ill. App. 3d at 909, 508 N.E.2d at 1141.) Summary judgment for the employer was granted, however,' in a case where the employee’s on-the-job injury made it impractical and unsafe to continue in her present position, despite the employee’s argument that the employer had a duty to transfer her to another position. (LaPorte v. Jostens, Inc. (1991), 213 Ill. App. 3d 1089, 1093, 572 N.E.2d 1209, 1211-12.) In Austin v. St. Joseph Hospital (1989), 187 Ill. App. 3d 891, 897, 543 N.E.2d 932, 935, summary judgment for the employer was affirmed despite testimony the employee was told that if she left St. Joseph Hospital (the employer) as a patient, she would lose her “workers’ [compensation].” Despite that statement, the only inference which could reasonably be drawn from the record was that plaintiff was discharged after failing to return to work after it was determined that she was fit to do so.

The court granted the employer a new trial in Thompson v. Abbott Laboratories (1990), 193 Ill. App. 3d 188, 195, 549 N.E.2d 1295, 1299, despite plaintiff’s testimony that a supervisor told her to accept the compensation settlement offer or she would find herself “ ‘out on 14th Street.’ ” Evidence which is stronger than that needed to grant a new trial, evidence which is more nearly conclusive, will permit a court to direct a verdict or enter a judgment n.o.v. (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310, 356 N.E.2d 32, 36.) Verdicts may be directed or judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 507, 229 N.E.2d 504, 512.) In determining whether the evidence is overwhelming, all the evidence in a case, not just the evidence which opposes the movant, may be considered. (Pedrick, 37 Ill. 2d at 502, 229 N.E.2d at 509.) The presence of some evidence to the contrary will not prevent the entry of a directed verdict. Pedrick, 37 Ill. 2d at 504-05, 229 N.E.2d at 510; McMillen v. Carlinville Area Hospital (1983), 114 Ill. App. 3d 732, 738, 450 N.E.2d 5, 10.

The directed verdict cases draw a fine line. In some cases a directed verdict is refused, often because of statements made by or on behalf of an employer. In Motsch v. Pine Roofing Co. (1988), 178 Ill. App. 3d 169, 173, 533 N.E.2d 1, 3, for example, the employer told the employee’s wife: “ ‘No roofer that sues me is coming back [to work].’ ” There the employer did not present any evidence indicating a valid nonpretextual reason for not recalling plaintiff. (Motsch, 178 Ill. App. 3d at 174-75, 533 N.E.2d at 5.) In Marin v. American Meat Packing Co. (1990), 204 Ill. App. 3d 302, 562 N.E.2d 282, the court refused to enter a judgment n.o.v. for the employer, despite a good deal of evidence the employee was fired for failing to return to work, because of ambiguities present in a statement made by the company nurse, and a complaint made by a supervisor when the employee’s doctor gave the employee light work. The Marin court, however, did grant the employer a new trial. In Darnell v. Impact Industries, Inc. (1983), 119 Ill. App. 3d 763, 457 N.E.2d 125, affd (1984), 105 Ill. 2d 158, 473 N.E.2d 935, the employee lied on an application form, saying that she had never filed a compensation claim. The question whether she was fired for lying or whether she was fired for filing compensation claims was held to be one for the jury, and the trial court’s directed verdict at the close of plaintiff’s case was reversed.

In other cases the evidence supporting the employer’s reason for discharge was viewed as overwhelming, and therefore warranting a directed verdict, despite some conflicts in the evidence, and despite some unpleasant employer statements which could be taken different ways. In Horton, the manager told the injured employee he was “a bad risk” and would have to be terminated. That language was ambiguous, but the Seventh Circuit, applying Illinois law, held that a directed verdict should have been entered in the light of the other, overwhelming, evidence: plaintiff’s doctor had recommended he do “no more lifting,” no one ever said anything to plaintiff about his filing a workers’ compensation claim, plaintiff pursued his rights under the Act without opposition and received all the benefits to which he was entitled, and plaintiff was unable to identify any right the employer interfered with. (Horton, 776 F.2d at 1352.) In contrast, in Netzel (181 Ill. App. 3d at 813, 537 N.E.2d at 1351), the court held complaints that plaintiff was malingering could reasonably be interpreted as revealing the manager’s displeasure with plaintiff’s prolonged exercise of his statutory rights, rather than an actual belief that plaintiff was feigning injury. Netzel reversed the trial court’s order insofar as it granted the employer a new trial on liability, but affirmed the grant of new trial on damages. In Lewis v. Zachary Confections Co. (1987), 153 Ill. App. 3d 311, 505 N.E.2d 1087, judgment n.o.v. was entered for the employer despite the employee’s testimony that her manager told her she was fired for filing a workers’ compensation claim, testimony somewhat supported by the company treasurer. The evidence was clear, however, that the employee was only a temporary employee. See also Bryce v. Johnson & Johnson (1983), 115 Ill. App. 3d 913, 450 N.E.2d 1235 (unpleasant words, but plaintiff was never discharged; totally disabled in a later accident).

There is some ambiguity, in this case, in the fact that a supervisor may have told plaintiff the company was trying to break him by assigning him to the computer extractor position, and in the fact that the language about plaintiff seeking work with a different employer was at first included in the workers’ compensation settlement, then stricken. Plaintiff has not been able to suggest, however, how either of those events shows an intent on the part of defendant to interfere -with plaintiff’s rights under the Act. Suspicions may be aroused by the fact that the company brought in a new loss-prevention safety manager, but mere suspicions do not carry much probative weight. Although a jury decides questions of credibility, a jury will not be allowed to rest a decision for plaintiff entirely on its disbelief of the denials made by defendant’s witnesses.

As in Horton, the probative value of plaintiff’s scant evidence is greatly diminished when viewed in light of the other evidence presented at the trial. Although plaintiff suggests Dr. Young’s testimony is ambiguous, a fair reading of that testimony, quoted verbatim in the trial court’s ruling, clearly indicates that in the doctor’s opinion plaintiff will be medically unable to work as a truck driver in the future. (See Horton, 776 F.2d at 1357 (argument that physician’s report was ambiguous on whether plaintiff was to forever refrain from lifting).) The doctor’s testimony is reinforced by the position taken by plaintiff during the compensation claim proceedings, that he was permanently unable to return to work as a truck driver. Defendant’s assumption that plaintiff would seek other employment was not based upon any unlawful motive, but upon plaintiff’s own representations. Defendant did not have the obligation to provide permanent light-duty work for plaintiff. Medical inability to work is a legitimate nondiscriminatory reason for discharge of an employee, even where that medical inability results from an accident at work. (LaPorte, 213 Ill. App. 3d at 1093, 572 N.E.2d at 1212; see Horton, 776 F.2d 1351.) The facts in this case are not complicated or greatly disputed. As in Horton, plaintiff here filed his claim and received his benefits without any interference from defendant, and had done so in the past. The fact that defendant did not retaliate against other employees who had filed workers’ compensations claims should also be given weight. Marin, 204 Ill. App. 3d at 308, 562 N.E.2d at 286; Netzel, 181 Ill. App. 3d at 813, 537 N.E.2d at 1351.

Dr. Brunner did indicate, after plaintiff was terminated, that plaintiff was able to return to work as a truck driver. Plaintiff points out that he was not offered alternate, permanent employment with defendant, like other employees who were permanently restricted from their regular jobs, nor was he offered a clerical position defendant was advertising. The critical issue is the employer’s intent at the time of the discharge, but events occurring after the discharge may be relevant to show that intent. (See Hocking v. Hocking (1979), 76 Ill. App. 3d 29, 34-35, 394 N.E.2d 653, 657-58 (a resulting trust case).) Again, only slight weight can be given any of this evidence which resulted from plaintiff’s self-serving efforts after his termination. Dr. Brunner testified that what plaintiff told him was as important as his examination of plaintiff, and plaintiff told him he felt fine and wanted to return to work. At the time the decision to terminate was made, by contrast, there was no indication that plaintiff could ever return to his position as a truck driver. Defendant was justified in ignoring Dr. Brunner’s back-to-work slip. Even if plaintiff was in fact able to return to work as a truck driver, the issue in these cases is not whether the employer treated the employee fairly, but whether the discharge was in retaliation for filing a workers’ compensation claim. Marin, 204 Ill. App. 3d at 311, 562 N.E.2d at 288; Thomas v. Zamberletti (1985), 134 Ill. App. 3d 387, 480 N.E.2d 869.

The evidence here, viewed in its aspect most favorable to the plaintiff, so overwhelmingly favored defendant that no contrary verdict based on that evidence could ever stand. The trial court properly directed a verdict in favor of defendant. On cross-appeal defendant argues the trial court erred in denying its motion to question the venire and to preinstruct the jury. Because we affirm the directed verdict, we need not address this issue.

Affirmed.

GREEN, RJ., and LUND, J., concur.


author: JUSTICE McCULLOUGH

text:
      In re MARRIAGE OF BRIAN DALE KEOWN, SR., Petitioner-Appellee, and CYNTHIA ANN WRIGHT, f/k/a Cynthia Ann Keown, Respondent-Appellant.
    Fourth District
    No. 4 — 91—0465
    Opinion filed February 20, 1992.

      Brian L. Bower, of Brainard, Bower & Kramer, of Charleston, for appellant.
    Stephen R. Ryan, of Ryan, Cini, Bennett & Radloff, of Mattoon, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This is an appeal by the respondent, Cynthia Ann Wright, f/k/a Cynthia Ann Keown, from an order of the circuit court of Coles County modifying child custody and support. The issue on review is whether the child support modification order is an abuse of discretion.

Petitioner Brian Dale Keown, Sr., married respondent on June 23, 1973. On July 10, 1986, the parties’ marriage was dissolved. Following the second part of the bifurcated hearings, the trial court resolved the remaining issues by order filed August 14, 1986. As a result of this order, respondent was awarded custody of the parties’ three minor children, Brian, Jr., born December 20, 1973; Sara, born November 2, 1976; and Brandon, born September 20, 1980. Petitioner was to pay 32% of his net income, being $588.52 per month, as and for child support.

On October 21, 1987, petitioner filed a petition to reduce child support alleging that Brian, Jr., was then residing with him. In an order filed December 8, 1987, the petitioner’s child support payment was reduced to $454.38, 25% of his net monthly salary. Petitioner was also ordered to pay 25% of his annual bonus as child support. In the event Brian, Jr., resumed living with respondent, the child support payment was to increase to 32% of petitioner’s net income.

In July and August 1990, both parties petitioned to modify the earlier order. Respondent alleged Brian, Jr., had resumed living with her and the child support should be increased to 32% of petitioner’s net income. Petitioner alleged that, although Brian, Jr., had resumed living with respondent, Sara had commenced residing with him. He further alleged that respondent had moved and now resided in Scottsdale, Arizona.

On May 30, 1991, following a hearing and consideration of written arguments of counsel, the trial court issued an order acknowledging and accepting the agreement of the parties that they were to have joint custody of the children, with petitioner serving as the residential custodial parent of Brian, Jr., and Sara and respondent serving as the residential custodial parent of Brandon. Each party was ordered to pay one-half of the costs of medical insurance coverage and all unreimbursed medical, dental, pharmaceutical, and related expenses. Each party was ordered to bear the support of the child or children residing with such party and would have the sole and exclusive right to list such child or children as dependents on Federal and State income-tax returns.

The order set forth the specific findings of the trial court which were the bases of the order. The findings supporting the child support portion of the order are as follows:

“(2) That Original Petitioner is the assistant manager at Justrite Manufacturing Company, lives in Charleston, Illinois, and has a net income of $33,470.00.
(3) That Original Respondent is a homemaker and resides with her present husband in Scottsdale, Arizona, and is not pursuing her profession as a dental hygienist. She is the joint owner with her husband of real estate in Champaign County, Illinois, from which rental income is received. Her financial disclosure and joint income tax returns indicate that she is more affluent than Petitioner. It should be noted that the greater part of her asset base was acquired as a result of the intermarriage with her present husband.
* * *
(5) That Original Petitioner and Original Respondent should each bear one-half (½) of the costs of medical insurance, and each of the parties should also share equally all medical, dental, pharmaceutical and related unreimbursed expenses.
(6) That the Court has considered various methods which could be utilized to compute child support. There are several formulas, any of which could be justified herein. Counsel, by means of their Memoranda, have suggested that each party should pay support to the other. Original Petitioner, as an employee, has a definite income which is readily ascertainable. On the other hand, Original Respondent, who would represent she is unemployed, but whom this Court believes is self-employed, has an income not subject to accurate ascertainment. The Court has also considered the living standards, home situations and assets of the parties hereto, and finds the circumstances of the Original Respondent to be superior to those of the Original Petitioner in each of these aspects. Therefore, the Court deviates from the provisions of Paragraph 505 of the Marriage and Dissolution of Marriage Act of the State of Illinois based on the financial resources and needs of each of the non-custodial parents herein. The Court finds that each party to this proceeding should bear the expense of support of that child or children residing with such party. The Court specifically finds that, considering the economic circumstances of each non-residential parent, that this provision as to support is proper and equitable. The Court finds that each of the homes will contain two minor children, Original Respondent having the presence of a second child of Original Respondent’s present spouse. The income level of each home is sufficient to provide for a family of four. Any transfer of support would not alter the lifestyle nor serve to meet costs of necessities of any of the children.”

The guidelines set forth in section 505 of the Illinois Marriage and Dissolution of Marriage Act are to be considered by the trial court in determining child support. (Ill. Rev. Stat. 1989, ch. 40, par. 505.) The guidelines “shall be applied in each case unless the court, after considering evidence presented on all relevant factors, finds a reason for deviating from the guidelines.” (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(2).) The failure to strictly comply with the guidelines is appropriate in split custody cases. Here there are three children, whose parents are equally responsible for their support. Petitioner has physical custody of two children, the respondent physical custody of one. A strict mathematical application of the guidelines where there is split custody of the children is not contemplated by the statute.

In determining child support, the relevant factors to be considered are the child’s financial resources, the financial resources and needs of the custodial parent, the standard of living the child would have enjoyed had the parents been married, the physical, emotional, and educational needs of the child, and the financial resources and needs of the noncustodial parent. (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(2).) In the absence of an abuse of discretion, the trial court’s order modifying child support will not be overturned on review. In re Marriage of Bussey (1985), 108 Ill. 2d 286, 296, 483 N.E.2d 1229, 1233; In re Marriage of Stockton (1988), 169 Ill. App. 3d 318, 326, 523 N.E.2d 573, 579; see also In re Marriage of Bush (1989), 191 111. App. 3d 249, 260, 547 N.E.2d 590, 596, quoting In re Marriage of Adams (1988), 174 Ill. App. 3d 595, 617, 528 N.E.2d 1075, 1088.

In attempting to demonstrate an abuse of discretion on the part of the trial court, respondent challenges the following three findings of fact: (1) she is not pursuing her career as a dental hygienist; (2) she and her present husband are joint owners of real estate in Champaign County which generates rental income; and (3) she is more affluent than petitioner. It is respondent’s contention that the evidence establishes, contrary to these findings by the trial court, that she has no income. Respondent also argues that the trial court erred in considering the assets of her current husband, John Wright.

Respondent argues that, by considering the income of her current husband, the trial court is placing the burden to pay child support on a nonparty. The financial status of a current spouse may not be considered to ascertain the ability of a party to fulfill a child support obligation, but it may be equitably considered to determine whether the payment of child support would endanger the ability of the support-paying party and that party’s current spouse to meet their needs. In re Marriage of McBride (1988), 166 Ill. App. 3d 504, 511, 519 N.E.2d 1095,1100.

The trial court found respondent was a joint owner of income-producing real estate in Champaign County, Illinois, “from which rental income is received.” Respondent has not shown to this court that the finding of the trial court that she was a joint owner of real estate in Champaign County, Illinois, was incorrect. The 1989 tax return shows rents received of $83,394 and net income of $15,388. On the evidence presented, we do not construe the trial court’s order as placing an obligation on John Wright to support respondent’s children.

As petitioner is responsible to pay child support for the child living with respondent, she is likewise obligated to pay child support for the two children living with him. Respondent complains she is not obligated to pay support merely because she is not currently employed and has no income. This is an incorrect assumption. Certainly if respondent had no children at home and decided not to seek employment, her failure to pay support which had been ordered could subject her to contempt proceedings. (See People v. Stanley (1978), 60 Ill. App. 3d 909, 911-13, 376 N.E.2d 1095, 109799; Ill. Rev. Stat. 1989, ch. 40, par. 505(b).) Nor does the fact that respondent has two young children at home, one from her current marriage, relieve her from the obligation to pay support for the two living with petitioner.

The respondent and her current spouse decided she should not work. This decision neither absolves nor mitigates the respondent’s financial obligation of support to her three children. As we stated in In re Marriage of Cornale (1990), 199 Ill. App. 3d 134, 137, 556 N.E.2d 806, 808, “[t]he custodial parent’s ability to contribute to the child’s welfare is an important factor to be considered in determining a child support award.” (Emphasis added.) The trial court attempted to formulate an equitable result; there was no abuse of discretion.

With regard to the trial court’s finding that respondent is not currently pursuing her career as a dental hygienist, respondent points out that the evidence indicates that she worked as a dental assistant, not a hygienist, she attended classes for only one term in pursuit of a degree in dental hygiene, and she discontinued that endeavor to spend time with her children. Petitioner argues in response that, although respondent testified that her unemployment was a good-faith decision, such testimony does not require the trial court to accept that conclusion, and the trial court could reject it based on an assessment of credibility. A fair reading of the trial court’s order in this case establishes that the only finding is that respondent has no wages or salary which it could rely on to assess child support. The trial court did not attribute to respondent a salary or wages which she could reasonably have been expected to earn as a dental hygienist or dental assistant. Nor did the trial court find that respondent’s decision not to work outside the home was anything but a good-faith decision. On the other hand, although the determination of the amount of child support attributable to respondent was not based on a wilful refusal of respondent to seek employment, the fact that respondent and her spouse decided there was no need to work outside the home was properly considered by the trial court in determining child support. As to respondent, when net income cannot be determined, support should be ordered in an amount considered reasonable on the facts of the particular case. Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(5).

The trial court’s reference to respondent’s financial affidavit in finding she was affluent is substantiated. Her affidavit shows the following assets: a checking account ($350), savings account ($7,000), IRA ($833), vacation time share ($10,500), household goods ($5,000), BMW ($14,000), GEO Tracker ($9,000), and personal property for use by the children ($4,900). Petitioner’s affidavit showed the following assets: equity in home ($16,400), and a 1984 Cadillac ($5,000). Assets, per se, do not determine support needs or ability to pay. However, along with the needs of custodian, noncustodian, and child, assets are a proper consideration. Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(2).

Petitioner has an ascertainable income while respondent does not. The record justifies the trial court’s determination that petitioner be responsible for the support of Brian, Jr., and Sara and respondent be responsible for the support of Brandon.

The trial court’s order that no support be paid by either party was fair and equitable and no abuse of discretion occurred. Respondent has not raised, and has therefore waived, the argument that the trial court failed to state the support level in dollar amounts. See Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(5).

For the foregoing reasons, the judgment of the circuit court of Coles County is affirmed.

Affirmed.

COOK and LUND, JJ., concur.


author: JUSTICE McCULLOUGH delivered

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY R. ADAMS, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0619
    Opinion filed February 6, 1992.

      Thomas D. Denby, of Denby, Meno, Bloomer & Denby, of Carlinville, for appellant.
    Vince Moreth, State’s Attorney, of Carlinville (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH delivered

the opinion of the court:

Defendant Timothy R. Adams appeals from an order of the circuit court of Macoupin County denying his petition to rescind the statutory summary suspension of his Illinois driver’s license. On appeal, the only issue raised is whether the decision of the trial court was against the manifest weight of the evidence.

Defendant was the only witness to testify at the hearing. However, the parties stipulated to portions of the arresting officer’s report, which was read into the record as follows:

“On May 4, 1991, I, Trooper C. J. Leach, Number 4346, was patrolling on Illinois Route 16 in Gillespie, Illinois. At the intersection of Illinois Route 16 and Macoupin Street, I saw an east bound [sic] green Mazda flatbed truck with no registration plates visible on the front or rear. I initiated a traffic enforcement stop on the Mazda to investigate the registration. The Mazda pulled into the Wareco at the intersection of Illinois Route 16 and Illinois Route 4. As I shone my spotlight on the rear window of the Mazda, I saw that a valid license applied for slip was displayed in the rear window. I went to the Mazda driver’s door to explain to the driver, Timothy R. Adams, why I stopped him. Adams’ wife, Diane, and another male adult were also passengers in the Mazda.”

Defendant testified that when Leach approached his vehicle, the officer apologized and indicated he saw the form in the rear window of the truck. Defendant stated the officer had followed his vehicle for about a half of a mile, although he was not speeding or weaving and there was nothing illegal about his vehicle. Defendant stated this incident took place in the evening, and defendant’s counsel advised the court that it occurred about midnight. Defendant stated he received no ticket other than the ticket for driving while under the influence of alcohol (DUI). (Ill. Rev. Stat. 1989, ch. 95½, par. 11-501(a)(2).) On Leach’s sworn report regarding summary suspension, the bases for the DUI arrest were stated to be “odor of alcoholic beverage on breath, slurred speech, failure of field sobriety test.” The summary suspension resulted because defendant’s blood-alcohol concentration was .19.

On appeal, defendant argues Leach had no reasonable, articulable suspicion or belief that a crime had been or was about to be committed such as to justify the initial stop. Defendant also argues that once determining the license-applied-for form was valid, the officer was not justified in further detaining him and subsequently arresting him for DUI. We affirm.

A proceeding to rescind a summary suspension is a civil action in which the burden of proof rests on the motorist. (People v. Orth (1988), 124 Ill. 2d 326, 337-38, 530 N.E.2d 210, 215.) The trial court’s determination of whether the motorist’s evidence constitutes a prima facie case for rescission will be overturned on appeal only if the finding is against the manifest weight of the evidence. (Orth, 124 Ill. 2d at 341, 530 N.E.2d at 217.) “The trial court’s decision will be considered to be against the manifest weight of the evidence if, after a review of the evidence, it is clearly evident that the conclusion opposite to the one reached by the trial court was the proper disposition.” Rogers v. City of Jerseyville (1990), 196 Ill. App. 3d 136, 142, 552 N.E.2d 1314,1319.

A very similar issue was raised and considered in People v. Tylkowski (1988), 171 Ill. App. 3d 93, 524 N.E.2d 1112. In Tylkowski, the court stated:

“Defendant contends that it appears from his confession that, while he did not have license plates, he had a receipt showing that he had applied for the plates displayed on his windshield. He argues that, therefore, the police were not justified in stopping him. However, the only way the officers could determine that defendant did have a valid receipt on his windshield was by stopping him to check. The fact that there was no evidence that the officers ever determined whether the defendant had applied for plates does not invalidate defendant’s arrest in light of the fact that upon stopping defendant, the officers discovered that he was carrying a weapon and driving without a license. Accordingly, we conclude that the officers’ investigatory stop was warranted and that defendant’s subsequent arrest was not illegal.” Tylkowski, 171 Ill. App. 3d at 98-99, 524 N.E.2d at 1116.

Even though no probable cause exists to arrest an individual, a police officer may make an investigatory stop if the officer’s decision is based on specific and articulable facts and the rational inferences therefrom which warrant an investigative intrusion. (Tylkowski, 171 Ill. App. 3d at 98-99, 524 N.E.2d at 1116; People v. Moffitt (1985), 138 Ill. App. 3d 106, 111, 485 N.E.2d 513, 517.) Stopping a motor vehicle and detaining its occupants without a warrant is a seizure which would be prohibited by the fourth and fourteenth amendments of the United States Constitution unless there is at least an articulable and reasonable suspicion that an occupant or the vehicle is subject to seizure for a violation of the law. (Delaware v. Prouse (1979), 440 U.S. 648, 663, 59 L. Ed. 2d 660, 673, 99 S. Ct. 1391, 1401.) The test is not what the officer should have seen, but whether, viewed objectively, the “totality of the facts and circumstances known to the officer at the time of the stop would warrant a reasonable and prudent person to believe a crime had been committed.” (People v. Assenato (1989), 186 Ill. App. 3d 331, 337, 542 N.E.2d 457, 460, cert. denied (1990), 493 U.S. 1027, 107 L. Ed. 2d 754, 110 S. Ct. 736; see also Ill. Rev. Stat. 1989, ch. 38, par. 107—14; Tylkowski, 171 Ill. App. 3d at 98, 524 N.E.2d at 1116.) The absence of a license plate provides the basis for the stop. The trial court found the officer did not observe the license-applied-for sticker prior to the stop. The fact that defendant was not cited for the offense which the officer suspected was being committed and for which defendant was originally stopped does not invalidate the subsequent arrest of defendant when probable cause for a more serious violation is discovered after the stop. Assenato, 186 Ill. App. 3d at 337, 542 N.E.2d at 460.

Defendant next argues that once Leach determined the license-applied-for form was valid, it was improper for the officer to further “detain” him to speak to him and apologize for stopping him. The trial judge observed that it was “good common sense, good everyday etiquette” for the officer to attempt to apologize and to explain the reason for the stop.

Defendant attempts to break this issue into a two-step analysis. There is no need for a bifurcated analysis. The entire incident was the result of a single stop. The stop was justified. The officer’s talking to defendant is not a further, unwarranted intrusion, as defendant argues. It just naturally follows that once it was determined that defendant had a valid license-applied-for form displayed, the officer would approach the defendant, explain the reason for the stop, apologize, and advise defendant he was free to leave. In so doing, any observations the officer made may form the basis of probable cause to arrest the defendant for a reason totally unrelated to the stop. As a result, the denial of defendant’s petition to rescind the summary suspension is not against the manifest weight of the evidence.

The judgment of the circuit court of Macoupin County is affirmed.

Affirmed.

STEIGMANN and LUND, JJ., concur.


text:
    MARY LaVERNE HAYES, as Ex’r of the Estate of John W. Hayes, Deceased, et al., Plaintiffs-Appellants, v. ILLINOIS POWER COMPANY, Defendant-Appellee.
    Fourth District
    No. 4 — 91—0872
    Opinion filed January 30, 1992.

      Stephen R. Myers, of Clinton, for appellants.
    Arnold F. Blockman and Jerome P. Lyke, both of Hatch, Blockman, McPheters, Fehrenbacher & Lyke, of Champaign, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On April 24, 1991, the circuit court of Piatt County dismissed amended counts VI, VII, and VIII of plaintiffs’ complaint for negligent and intentional infliction of emotional distress. The court dismissed count VI finding it was duplicative of count V since count V alleged an injury for which emotional distress could be compensated. Counts VII and VIII were dismissed because the facts alleged did not show the “extreme and outrageous conduct” necessary to support a cause of action for the intentional infliction of emotional distress. Plaintiffs contend (1) counts V and VI are not duplicative as they allege two separate causes of action and (2) counts VII and VIII adequately plead the tort of intentional infliction of emotional distress. We reverse in part and affirm in part.

On May 14, 1989, John W. Hayes (decedent) was operating a plow on his farm in Piatt County. Decedent’s plow became entangled with a guy wire attached to one of defendant’s utility poles. As decedent attempted to untangle the guy wire from the plow, the guy wire became slack and came into direct contact with an uninsulated 7,200-volt transmission wire at the top of the utility pole. The guy wire became electrically charged and decedent was instantly electrocuted.

Plaintiff Todd Hayes (Todd), decedent’s grandson, was also plowing in a field near decedent. Todd saw his grandfather being electrocuted, went over to him and reached out for him. A current of electricity passed through decedent to Todd, causing him to be thrown back from decedent’s body. Todd received severe bums and a shock to his nervous system.

Plaintiff Jack Hayes (Jack), decedent’s son, learned of the occurrence and rushed to the scene of the accident. Jack was restrained by individuals at the scene from coming into contact with decedent. Electricity continued to flow through decedent’s body for a period in excess of 45 minutes, thereby causing the body to be engulfed in flames. Thereafter, defendant shut off the electricity running through the guy wire. As Jack watched, firemen on the scene extinguished the flames about and on the body of decedent.

An eight-count complaint was filed by Mary LaVerne Hayes, as executor of decedent’s estate, and Todd and Jack Hayes, individually. After defendant’s motion to dismiss was partially granted, plaintiffs filed their first-amended counts III, VI, VII and VIII. Only count V of the original complaint and amended counts VI, VII, and VIII of the amended complaint are relevant to this appeal.

Count V of the original complaint was brought by Todd and alleged that defendant was negligent in failing to properly insulate, ground, and mark the guy wire. Todd sought damages for his physical injuries and pain and suffering. Amended count VI, brought by Todd, alleged the negligent infliction of emotional distress, and amended count VII, also brought by Todd, alleged the intentional infliction of emotional distress. Count VIII, brought by Jack, alleged the intentional infliction of severe emotional distress.

On defendant’s motion, the court dismissed, with prejudice, amended counts VI, VII, and VIII of plaintiffs’ complaint. The court found count VI was duplicative of count V in that count V alleged an injury to Todd for which emotional distress could be compensated. The court further found count VI did not adequately plead that Todd suffered physical injury or illness as a result of the emotional distress nor did it adequately plead Todd suffered emotional distress due to fear for his own safety. The court found the facts alleged in count VII did not show the “extreme and outrageous conduct” necessary to support a cause of action for intentional infliction of emotional distress. Finally, the court found the facts alleged in count VIII also failed to show the “extreme and outrageous conduct” necessary to support a cause of action for the intentional infliction of emotional distress.

Because we are reviewing the trial court’s decision to dismiss a cause of action under section 2—615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615), we must determine whether the complaint, when viewed in the light most favorable to the plaintiff, alleges facts sufficient to establish a cause of action upon which relief may be granted. In making this determination, we must take all well-pleaded facts in the challenged pleading as true, while conclusions of law contained in the challenged pleading will not be taken as true, unless supported by specific factual allegations. (Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 566 N.E.2d 1365.) In reviewing the grant of a motion to dismiss, all well-pleaded facts must be taken as true, as well as all reasonable inferences which may be drawn therefrom. Wait v. First Midwest Bank/Danville (1986), 142 Ill. App. 3d 703, 491 N.E.2d 795.

Prior to 1983, Illinois courts adhered to the “impact rule” in cases of negligent infliction of emotional distress. Under this rule, recovery for negligently caused emotional distress suffered by a direct victim or bystander who witnessed the injury of another was consistently denied unless accompanied by a contemporaneous physical injury or impact to the plaintiff. (Braun v. Craven (1898), 175 Ill. 401, 51 N.E. 657.) In Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 457 N.E.2d 1, the supreme court adopted a new standard for determining whether bystanders should be allowed to recover for negligently inflicted emotional distress. The court stated:

“That standard has been described as the zone-of-physical-danger rule. Basically, under it a bystander who is in a zone of physical danger and who, because of the defendant’s negligence, has reasonable fear for his own safety is given a right of action for physical injury or illness resulting from emotional distress. This rule does not require that the bystander suffer a physical impact or injury at the time of the negligent act, but it does require that he must have been in such proximity to the accident in which the direct victim was physically injured that there was a high risk to him of physical impact. The bystander, as stated, must show physical injury or illness as a result of the emotional distress caused by the defendant’s negligence.” (Rickey, 98 Ill. 2d at 555, 457 N.E.2d at 5.)

In that case, the plaintiff was an eight-year-old boy who witnessed his five-year-old brother nearly being choked to death when part of his clothing became entangled in the base of an escalator operated by defendant. The court, after adopting the above as the new standard, held the plaintiff could file an amended complaint to comport with the new standard.

In Siemieniec v. Lutheran General Hospital (1987), 117 Ill. 2d 230, 512 N.E.2d 691, the parents of a child born with hemophilia sought damages for their emotional distress caused by the defendant’s allegedly negligent genetic counseling. The plaintiffs asserted they would have aborted the child had they known he would be bom with this disease, and defendants had failed to accurately advise them of the risk of the child being bom a hemophiliac. The supreme court held the plaintiffs had no cause of action for negligent infliction of emotional distress since their complaint failed to allege that they were endangered by defendant’s negligence and failed to allege they had suffered or would suffer any physical injuries or illness resulting from the emotional distress allegedly caused by defendant’s negligence. Siemieniec, 117 Ill. 2d at 261, 512 N.E.2d at 707.

Finally, most recently in Corgan v. Muehling (1991), 143 Ill. 2d 296, 574 N.E.2d 602, the plaintiff sought damages for her emotional distress caused by the defendant’s conduct in convincing her to engage in sexual intercourse with him under the guise of therapy. At the time of the sexual relationship, defendant held himself out to be a registered psychologist and plaintiff was under his professional care. The supreme court stated the substitution of the zone-of-physical-danger rule for the impact rule in Rickey applies only as to bystanders.

“Rickey, therefore, abandoned the impact rule as it applied to bystanders and adopted the zone-of-physical-danger rule as the standard under which they can recover damages for negligent infliction of emotional distress. Rickey did not, however, define the scope of negligent infliction of emotional distress as it applies to direct victims. The court in Rickey was solely concerned with defining the parameters of bystander recovery.
* * *
‘The distinction between a direct victim and a bystander is more than just a play on semantics ***. *** [A] defendant owes a duty to only those persons who suffer emotional distress (and accompanying physical manifestations) as a result of being within the “zone of danger” created by a negligently caused accident. This zone of danger, because it is created by the accident, encircles it; hence, the accident is, in effect, the “nucleus” of the surrounding zone of danger. A person is within an accident’s zone of danger (and able to seek recovery under Rickey) when he is sufficiently close to that accident such that he is subjected to a high risk of physical impact emanating from the accident itself’ ” (Emphasis in original.)
(Corgan, 143 Ill. 2d at 304-06, 574 N.E.2d at 605-06, quoting Lewis v. Westinghouse Electric Corp. (1985), 139 Ill. App. 3d 634, 639-40, 487 N.E.2d 1071,1074-75 (Linn, J., dissenting).)

The court concluded the Rickey zone-of-danger test did not apply because plaintiff was a direct victim and not a bystander. The court further concluded the trial court acted properly in not dismissing plaintiff’s cause of action for failure to allege physical symptoms of emotional distress, noting it “[had] not lost its faith in the ability of jurors to fairly determine what is, and is not, emotional distress.” Corgan, 143 Ill. 2d at 312, 574 N.E.2d at 609.

Todd contends he was both a direct victim and a bystander and thus seeks compensation for two separate and distinct injuries. Todd claims he suffered emotional distress as a result of the direct injuries he received and also suffered emotional distress from being in the zone of physical danger near his grandfather. Defendant contends Todd is a direct victim rather than a bystander because he received a physical injury and impact at the scene when he grabbed decedent. As such, he need only plead the elements of negligence, and any emotional distress caused by the allegedly negligent conduct of defendant would be compensable under the “pain and suffering” allegations in count V of the complaint.

The court in Corgan clearly stated Rickey applied only to bystanders and that direct victims only need to allege the elements of negligence. Here, Todd is both a direct victim and a bystander: he is a direct victim because he suffered physical injuries when he came into contact with decedent; he is also a bystander because he subsequently regained consciousness and remained in the zone of physical danger near decedent. He therefore may properly allege a claim for the pain and suffering he incurred as a direct victim of defendant’s negligence (count V); and also a separate claim, as a bystander, for the negligent infliction of emotional distress which resulted from his being in the zone of physical danger near the decedent (count VI). Therefore, counts V and VI are not duplicative, but allege separate causes of action.

Furthermore, count VI adequately pleads the elements necessary for a cause of action in negligent infliction of emotional distress. Under Rickey, before a plaintiff can recover for negligently caused emotional distress, he himself must have been endangered by the negligence, and he must have suffered physical injury or illness as a result of the emotional distress caused by defendant’s negligence. Siemieniec, 117 Ill. 2d at 261, 512 N.E.2d at 707.

Amended count VI of the complaint, in pertinent part, states:

“17. That during the time after Plaintiff was shocked and during the time that Plaintiff was forced to stand by and observe his Grandfather as above-described, the Plaintiff remained in close proximity to his Grandfather who was in contact with an energized guy wire.
18. That because of his proximity to his Grandfather during this time, the Plaintiff was in continuous danger of obtaining additional electrical shocks.
19. That the Plaintiff was in fear that he could become electrocuted while he was in close proximity to his Grandfather.
20. That the Plaintiff feared that he could become electrocuted if he again attempted to free his Grandfather from the energized guy wire.
21. That as a direct and proximate result of the negligence of the Defendant, the Plaintiff suffered extreme emotional distress.
22. That as a direct and proximate result of the emotional distress caused by the Defendant’s negligence, the Plaintiff has sustained serious injury and illness and psychological damage.”

Todd was clearly in such proximity to the accident that there was a high risk of physical impact. Todd had already been shocked when he grabbed his grandfather, and by remaining near the body, a chance existed of subsequent shocks from the electricity as well as burns or smoke inhalation from the flames. Moreover, Todd could reasonably fear for his own safety given the unpredictable nature of electricity and fire. Paragraphs 19 and 20 alleged Todd feared electrocution, which established a fear for his own safety.

Finally, the court concluded Todd failed to adequately plead physical injury resulting from the emotional distress. Paragraph 22 alleged that Todd suffered “serious injury and illness and psychological damage.” This adequately states physical injury. The distinction between “serious injury and illness” and “psychological damage” indicates that “serious injury or illness” is physical in nature and “psychological damage” is the emotional distress.

Plaintiffs also contend they adequately pleaded a cause of action for the intentional infliction of emotional distress. The elements of the tort for intentional infliction of emotional distress are (1) extreme and outrageous conduct, (2) intent by the defendant to cause or a reckless disregard of the probability of causing emotional distress, (3) severe or extreme emotional distress suffered by the plaintiff, and (4) an actual and proximate causation of emotional distress by the defendant’s outrageous conduct. (Tobias v. Winkler (1987), 156 Ill. App. 3d 886, 509 N.E.2d 1050.)

“[T]he conduct must be extreme and outrageous. The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions or trivialities. ‘It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency ***.’ Restatement (Second) of Torts, sec. 46, comment d (1965).” (Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 89-90, 360 N.E.2d 765, 767.)

Whether certain conduct can be characterized as extreme and outrageous so as to support a cause of action for the tort of intentional infliction of emotional distress necessarily depends on the facts of each case. Tobias, 156 Ill. App. 3d at 897, 509 N.E.2d at 1057.

Counts VII and VIII of plaintiffs’ amended complaint contain numerous allegations relating to the manner in which defendant insulated, marked and maintained the guy wire and transmission poles. Paragraph 28 of the complaint states that the course of conduct taken by defendant was extreme and outrageous, exceeding all grounds usually tolerated by a person of ordinary sensibilities. Paragraph 29 alleges defendant intended to inflict severe emotional distress upon the plaintiff or acted recklessly in deliberate disregard of a high degree of probability that emotional distress would result. Paragraph 30 alleges that as a direct and proximate result of defendant’s extreme and outrageous conduct, Todd suffered severe, permanent emotional distress. Count VIII contains the further allegation that Jack stood by and watched his father’s body in flames for a period of time in excess of 45 minutes and watched the firemen extinguish the fire about decedent’s body.

The court properly concluded plaintiffs’ amended complaint did not state a cause of action for the intentional infliction of emotional distress. The conduct alleged by plaintiffs is neither extreme nor outrageous. At most, defendant’s failure to properly ground and insulate the guy wire constitutes negligence. It is only the result of that negligence, i.e., the burning of decedent’s body, which can be characterized as extreme and outrageous.

Accordingly, for the foregoing reasons, we reverse the dismissal of count VI of plaintiffs’ amended complaint and remand with directions to reinstate that count. We affirm the dismissal of counts VII and VIII of plaintiffs’ amended complaint.

Affirmed in part; reversed in part and remanded with directions.

GREEN, P.J., and KNECHT, J., concur.