text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID S. MELIND, Defendant-Appellant.
    Second District
    No. 2—87—0531
    Opinion filed February 23, 1989.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant appeals his murder conviction for which he was sentenced to 32 years.

On appeal, defendant contends that (1) he was not proved guilty of murder beyond a reasonable doubt; (2) he was denied his right to pretrial disclosure of exculpatory evidence; and (3) his sentence is excessive. We affirm.

On November 10, 1986, John Kugelman, an Illinois State trooper, died after being struck by an automobile driven by defendant, David Melind. An indictment was filed on November 19, 1986, charging defendant with three counts of murder and one count of reckless homicide. Two of the murder counts were nol-prossed by the State prior to the start of trial on April 22, 1987. The remaining count of murder charged defendant with violation of section 9 — 1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)(2)), that defendant knew his conduct created a strong probability of death or great bodily harm to John Kugelman.

Prior to trial, defendant requested discovery of Officer Kugelman’s personnel file. The trial court denied this request.

At trial, Wesley Schulz, a Hoffman Estates police officer, testified that he was on duty on the afternoon of November 10, 1986. At 3:30, he noticed a car passing him in the opposite direction travelling at a high rate of speed. Schulz checked his radar and determined that the car was travelling at 40 miles per hour, 20 miles per hour over the speed limit. Schulz then turned his car around, activated his emergency lights, and went after the car. In addition to the driver, the car which Schulz was pursuing had a passenger in the front and one in the back. As Schulz followed, the car turned around a corner and accelerated, going 55 miles per hour through the parking lot of Conant High School. The car then slowed and turned southbound onto Plum Grove Road, going through a stop sign. Schulz stated that he saw the car’s brake lights as the car slowed around the corners. Schulz called in a report that he was chasing after a car. Schulz testified that at one point the car was going 60 miles per hour down a tw;o-lane road. The car then ran through a red light at Schaumburg Road, going across the intersection on the wrong side of the road. An Illinois State police car turned on its warning lights and joined the pursuit. The speeding car proceeded through a number of residential streets, going through stop signs, weaving around traffic, and hitting speeds of 50 to 60 miles per hour.

When the car got onto Route 72 (Higgins Road), it was going 70 miles per hour. Schulz noticed that another Hoffman Estates squad car and a Schaumburg unit had also joined the chase. Driving on the shoulder of the road and going through another red light, the car proceeded onto an on-ramp and headed southbound on Route 53 (Illinois Highway 290). Schulz and the other police cars followed, at 80 miles per hour.

Schulz described the traffic volume on Route 53 as being light to medium. Schulz stated that the car continued to weave around traffic. Whenever Schulz would get close to pulling along side the car, the car would swerve and block Schulz’ progress. The car also drove on both the right and left shoulders of the highway a number of times.

After about 41/2 miles, Schulz noticed that the traffic ahead, near the overpasses for the Milwaukee Road train tracks and Irving Park Road, had slowed to a stop in all three lanes. The car pulled out onto the left shoulder of the road, and Schulz and the other police cars followed. As Schulz straddled onto the shoulder, he saw a uniformed State trooper step out onto the left shoulder. According to Schulz, the trooper had his hand in the air “as if to signal the car to stop.” Schulz stated that the car kept going straight without slowing down. Schulz did not see the car swerve or its brake lights go on. Schulz next saw the windshield of the car shatter, and the trooper was propelled into the air. Schulz stated that the trooper landed some 200 feet down the road in the center of the southbound lanes.

After the impact and after going one-tenth of a mile further, the car swerved to the right side of the highway, crossing all lanes and entering onto a ramp leading to eastbound 1-290, still going at 80 miles per hour. About three miles later, with the help of other squad cars, Schulz was able to force the car to a stop on the right shoulder. Defendant was arrested by another police officer and taken to the Hoffman Estates police department.

At the police station, Schulz gave Miranda warnings to defendant, who agreed to talk. Schulz asked defendant why he did not stop, to which defendant replied: “I didn’t know that guy was going to jump out in front of me.” Asked if he tried to avoid hitting the trooper, defendant told Schulz: “Well, at the last, I did. I thought he was going to get out of the way.” When defendant refused to make a written statement, Schulz ended his interrogation.

On cross-examination, Schulz stated that he had his squad car three to four lengths behind defendant’s car at the time of the impact and was looking through the windshield of defendant’s car. Schulz said he saw the trooper step two or three feet onto the shoulder and that the collision happened “quick.”

Schulz recalled seeing the trooper’s car blocking the left and center lanes of traffic. The trooper’s car had no light bar on its roof. Cars backed up in the left lane prohibited any movement to the right. To the left of the shoulder, at a slight slope, was a grassy area. In the middle of the median strip, there was a concrete pillar for the overpass. Schulz said it would have been possible to drive around the trooper yet avoid the pillar.

Samuel Tolub testified that he was driving in the left lane of Route 53 when he saw a trooper drive across the median and block his progress. Tolub stopped his car by the Irving Park Road overpass. His was the closest car to the trooper’s unit. Tolub testified that the trooper’s car had lights in the back window but that there was no light bar on the roof. What Tolub thought was a few seconds later, the trooper got out of his car, walked over to the shoulder of the road in front of the overpass, pulled out his pistol, went into a crouched position, and pointed his gun in a northbound direction. Tolub then heard the sound of gravel flying and police sirens from behind. When he turned his head to see what was happening, the trooper was hit. Tolub testified that the trooper was on the shoulder 10 to 15 seconds before being hit. He later said that this was a “guestimate.” Tolub recalled that the road was dry and the visibility was good.

James Chanell testified that he was stopped in the left lane, at a distance he estimated to be 10 to 15 car lengths, or 400 to 500 feet, away from where the trooper stood on the shoulder. Chanell testified that as he was travelling southbound on Route 53, a squad car pulled out and blocked the left and middle lanes. He then saw the officer on the shoulder with his legs spread, knees bent, and a gun pointed in Chanell’s direction. He stated that a “second or so later” a car passed him down the shoulder. Then, in about a “four-to-five-second snap,” Chanell saw the policeman flying through the air.

Dennis Ehrhardt testified that he stopped about 15 car lengths or 180 feet from the trooper. Ehrhardt saw the trooper take one step onto the shoulder and assume a firing stance. Ehrhardt stated defendant’s car did not swerve in any direction, its brake lights did not come on, and he did not detect any slowing down. According to Ehrhardt, the trooper was on the shoulder for between 7 to 10 seconds before being struck.

Edward Donoghue, a forensic pathologist, testified that he performed the autopsy on Kugelman. Donoghue noted impact bruises on the rear of Kugelman’s thighs at a height consistent with the front of an automobile. No impact injuries were detected on the front of the body.

Du Page County Assistant State’s Attorney Joseph Birkett testified that he questioned defendant on the night of November 10, 1986. According to Birkett, defendant recalled hitting speeds of 70 to 80 miles per hour before getting on Route 53. Defendant also recalled going 80 miles per hour on Route 53. According to Birkett, defendant stated that he was driving on the shoulder for about two miles before seeing the trooper, who “just jumped out in front of him.” Defendant saw the gun pointed at him and kept going. Defendant “recalled trying to touch the brakes but didn’t swerve.” According to Birkett, defendant said that he had seen the trooper’s car angled in the roadway blocking traffic. Defendant stated that he was afraid that the trooper would shoot him and that he did not try to go around the trooper because he was afraid he might hit the viaduct. According to Birkett’s report, “David explained to me that he was going so fast he could not stop. He said it was too late to stop, so, he just kept going.”

At 1:30 a.m., Birkett again talked to defendant, and, according to Birkett, defendant said he could see the trooper for 5 to 10 seconds before he hit him.

Erick Norwood, an accident reconstruction expert for the Illinois State police, testified concerning measurements he had taken subsequent to the accident. Norwood stated that the individual traffic lanes on Route 53 average 12 feet in width and that the left shoulder was 10 feet 8 inches wide. The median is made of gravel and dirt. The distance between the edge of the shoulder to the concrete abutment at the Irving Park Road overpass is approximately 23 to 24 feet. The median at the spot is pitched at a 3% grade, meaning it drops one foot in height for every eight feet in distance. Norwood described the highway as straight, flat, and without road hazards.

Norwood further testified that an inspection of defendant’s car revealed that the car’s tires were normal and the brake lights were functional, as was the steering and suspension. Norwood drove the car in a police parking lot and found it had the ability to stop. Norwood stated that at 80 miles per hour, a car travels 117 feet per second. At 85 miles per hour, the car travels 124.81 feet per second. Norwood stated that a person’s average reaction time would be three-quarters of a second to one second.

Scott Paul, who was a passenger in the car, testified that defendant was driving in excess of 80 miles per hour on Route 53. According to Paul, they were about 100 feet, or five or six car lengths, away when the trooper stepped out in front of their path. Paul did not see the trooper turn or move out of the way. Paul stated that it felt as if their car “slagged for a second” prior to impact, as if defendant pushed on the brakes. Paul felt a downward movement. Paul stated that defendant never talked during the chase and appeared to have no trouble operating the car. At some later date, defendant told Paul he had seen the trooper before the collision.

Defendant testified that he received his driver’s license in August 1985 and had been driving for about 10 months prior to November 1986. Defendant recalled driving as fast as 86 or 87 miles per hour on Route 53. According to defendant a lot of his attention was focused on the police in his rearview mirror. The car behind him was one-half to one car length behind in traffic and all three lanes were stopped and bumper to bumper. According to defendant, he did not see any squad car by the Irving Park Road overpass. He was driving at 80 miles per hour when the trooper ran out onto the middle of the shoulder and pointed his gun, some 50 to 75 feet away. Defendant did not expect that anyone would step onto the shoulder and stated “there wasn’t anything I could do.” Defendant further stated that he was pretty sure that he let up on the gas pedal but did not have an opportunity to apply the brakes.

Defendant testified that he did not intend to strike the trooper and did not want to hurt him. Defendant also said that he did not think this act would happen when he ran away from the police. Defendant denied having enough time to swerve left or right to avoid hitting the trooper. Defendant closed his eyes at the moment of impact and did not know whether the officer had turned to get away. He denied telling Paul that the trooper was on the shoulder for 5 to 10 seconds.

On rebuttal, Birkett testified that defendant had stated that he saw the police officer for 5 to 10 seconds before he hit him.

Donald Marek testified that he was driving on the right-hand side of the highway when the trooper stopped the traffic. Marek pulled onto the right shoulder to avoid hitting a van which had stopped in front of him and ended up beyond the roadblock, ahead of the rest of the traffic. Marek kept driving forward, at about five miles per hour, during the time in question. According to Marek the trooper was standing on the left shoulder 8 to 10 seconds before being hit. On cross-examination, Marek admitted being some 700 to 800 feet away from the trooper at the time of the collision and having watched the incident by means of his side-view mirror.

David Kodat testified that he had stopped some 150 to 200 feet south of the Irving Park Road overpass in the right-hand lane. He saw the trooper get out of his squad car, go to the rear bumper of the car, look north while in the left-hand lane and then step onto the shoulder. The trooper stood on the shoulder for three to four seconds then assumed a planted position with his gun and was struck three to four seconds later. Kodat did not see the car strike the trooper and never saw the car itself.

The jury returned verdicts finding defendant guilty of the offense of murder and aggravated fleeing or attempting to elude a police officer. No verdict was returned on the reckless homicide charge.

The court imposed a 32-year term of imprisonment on the murder charge and a concurrent 360-day jail term on the aggravated fleeing conviction.

Defendant’s initial contention is that the facts did not prove him guilty of murder but rather reckless homicide. Defendant was charged with murder under section 9—1(a)(2), which is defined as follows:

“A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
***
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another ***.” (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)(2).)

In contrast, reckless homicide is defined as follows:

“A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, except in cases in which the cause of the death consists of the driving of a motor vehicle, in which case the person commits reckless homicide.” (Ill. Rev. Stat. 1985, ch. 38, par. 9—3(a).)

Whether particular acts create a “strong probability” of death or great bodily harm as used in section 9—l(a)(2) is a question of fact. (People v. Johnson (1975), 33 Ill. App. 3d 168, 174.) The committee comment on section 9 — 1(a)(2) recognizes that the difference between murder under section 9 — 1(a)(2) and reckless homicide is not easily discernible. The comment states:

“Clearly, no sharp dividing lines can be drawn, but the Committee chose ‘strong probability’ as the plainest description of the situation which lies between the ‘practical certainty’ of the preceding subsection, and the ‘likely cause’ and ‘substantial and unjustifiable risk’ of the involuntary manslaughter provision ***.” Ill. Ann. Stat., ch. 38, par. 9—1(a)(2), Committee Comments, at 18 (Smith-Hurd 1979).

In the instant case, various witnesses testified as to the amount of time that Kugelman was on the shoulder prior to the collision. Tolub stated that the officer was there 10 to 15 seconds; Ehrhardt, 7 to 10 seconds; Paul, 2 seconds; Merek, 8 to 10 seconds; and finally, Birkett testified that defendant stated that he had seen the officer 5 to 10 seconds before the collision. Given these statements, we find that there was evidence sufficient for the jury to conclude that defendant saw Kugelman at least 10 seconds prior to the collision. The evidence also showed that defendant did not hit his brakes, did not slow down, and did not swerve to avoid Officer Kugelman. Under the above facts, we find that the evidence supports the finding of guilty of murder because, by defendant continuing along at 80 miles per hour, the jury could have reasonably concluded that defendant would have known that there was a strong probability of causing death or great bodily harm to Officer Kugelman.

Defendant has argued that the instant case is analogous to this court’s decision in People v. Campbell (1979), 77 Ill. App. 3d 804. In Campbell, the defendant had been riding in a van with several other individuals who threw rocks out of the van in the direction of other vehicles. (77 Ill. App. 3d at 808.) One of these rocks hit a truck driver and resulted in his death. (77 Ill. App. 3d at 808.) The defendant in that case was subsequently found guilty of murder on an accountability theory. (77 Ill. App. 3d at 811.) The individuals who had actually thrown the rocks testified at trial and, in so doing, denied any intent to hurt anyone. (77 Ill. App. 3d at 812.) This court in reversing the murder conviction stated that having reviewed the record “particularly the testimony of the co-defendants, we are not convinced beyond a reasonable doubt that the co-defendants knew their acts created a strong probability of death or great bodily harm.” 77 Ill. App. 3d at 812.

The instant case is distinguishable from Campbell because there the State’s witnesses were the individuals who actually threw the rocks, it was their mental state which was controlling, and this court found that they did not have the requisite mental state for murder. In the instant case, it is defendant’s mental state that is controlling and which must be inferred from his actions. (See People v. Koshiol (1970), 45 Ill. 2d 573, 578.) And, as stated above, evidence supports the jury’s conclusion that defendant had the requisite mental state for murder under section 9—1(a)(2) (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(a)(2)).

Defendant next contends that the trial court erred when it refused to conduct an in camera review of Kugelman’s personnel file. Defendant argues that the personnel files might offer an explanation of why Officer Kugelman took actions which were inconsistent with standard police procedures. Defendant does not, however, explain how this information might be relevant. Rather, defendant appears to assert that this case is similar to other cases in which relevancy has been found. Defendant cites People v. Gossett (1983), 115 Ill. App. 3d 655, 662-65, People v. Lynch (1984), 104 Ill. 2d 194, People v. Gacy (1984), 103 Ill. 2d 1, and People v. Gorney (1985), 107 Ill. 2d 53.

None of the above cases are similar to the instant case. In the above cases, testimony as to character of the victims was found to be relevant to either establish a defense (Gorney, 107 Ill. 2d at 61; Lynch, 104 Ill. 2d at 199-200; Gossett, 115 Ill. App. 3d at 662-65) or to discredit the defendant’s argument (Gacy, 103 Ill. 2d at 85). In the instant case, it appears that defendant wishes to explain why Officer Kugelman stepped out in front of defendant’s car. However, defendant does not suggest why this information is relevant. We therefore find that the trial court did not err in denying defendant’s motion without conducting an in camera inspection of Officer Kugelman’s personnel file.

Defendant’s final contention is that his sentence is excessive. Defendant argues that his actions were more akin to reckless homicide than murder and that his conduct was not intentional. Defendant therefore requests that this court reduce his sentence to the minimum of 20 years’ imprisonment.

Contrary to any argument of defendant, it is clear that defendant was found guilty of murder and therefore his actions were not more akin to reckless homicide than murder. Defendant’s contention must be taken to mean that it is the least serious type of action that can result in murder. This might be true. Nevertheless, we find that the trial court’s imposition of 32 years’ imprisonment was not an abuse of discretion.

The presentence report indicates that defendant had a history of juvenile delinquency, including residential burglary, theft under $300 (three counts), and theft (auto). The report further reveals that while defendant was on parole for the last theft he was apprehended for theft, battery, and possession of alcohol. He was thereafter found to be in violation of his parole and transferred to Illinois Youth Center, Valley View. At the time of the instant offense, defendant had run away from an extended authorized absence from Valley View, and, according to defendant, this is why he attempted to flee from the police in the first place. |

The trial court took into account the above record along with the fact that defendant endangered the lives of many other people and did not stop until several miles after the collision. These aggravating factors were properly considered by the trial court. (See Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 5—3.2(a)(1), (a)(3), (a)(10).) Accordingly, we find that the trial court did not abuse its discretion in imposing a sentence of 32 years’ imprisonment.

For the forgoing reasons, we affirm the judgment of the trial court.

Affirmed.

UNVERZAGT, P.J., and DUNN, J., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    JORDAN FOSTER KNIGHT, a Minor, by Janet Lynn Keen, his Mother and Next Friend, Plaintiff-Appellant, v. LORELYN S. KNIGHT, Defendant-Appellee.
    Second District
    No. 2—88—0430
    Opinion filed February 23, 1989.

      Vincent C. Argento and Patrick M. Loftus, both of Argento & Malcolm, of Elgin, for appellant.
    Grant Eckhoff, of Richard W. Kuhn & Associates, of Naperville, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Jordan Foster Knight, a minor, by and through his mother and next friend, Janet Keen, brought this action seeking the imposition of a constructive trust upon life insurance proceeds paid on the life of Phillip Knight to defendant, Lorelyn Knight. The trial court entered judgment for defendant after a stipulated bench trial. We affirm.

Janet Keen, f/k/a Janet Knight, and Phillip Knight were married in Illinois in 1972. Plaintiff was the only child born of this marriage. In 1981, Phillip and Janet were divorced pursuant to a judgment entered in the superior court of Lake County, Indiana. At the time of their divorce, Philip and Janet entered into a property settlement and child custody agreement which was incorporated into their judgment for divorce. The settlement agreement provided, in pertinent part:

“All life insurance policies presently in effect are to be changed and the parties’ child, Jordan Foster Knight, is to be sole beneficiary.”

The settlement agreement was executed on May 28, 1981. As of that date, Phillip had a $50,000 life insurance policy with Mutual of New York. That policy listed Janet as beneficiary.

On June 1, 1981, Phillip’s employer instituted a group life insurance program for employees with State Mutual Life Assurance Company of America (State Mutual). Phillip enrolled in the program on June 5,1981, and named plaintiff as his beneficiary.

On June 9, 1981, the court approved Phillip and Janet’s settlement agreement and entered a judgment of dissolution. Phillip continued to maintain both the Mutual of New York policy naming Janet as beneficiary and the State Mutual policy naming plaintiff as beneficiary. However, contrary to the terms of the settlement agreement, Phillip neglected to execute a change of beneficiary form and name plaintiff beneficiary of the Mutual of New York policy.

In February 1984, Phillip married defendant. In October 1984, he was diagnosed as having pancreatic cancer. On October 17, 1984, he executed a change of beneficiary form and named defendant beneficiary of the State Mutual policy. Plaintiff was made contingent beneficiary. No changes were made regarding Phillip’s prior policy with Mutual of New York. Phillip died on December 31, 1984. The $41,000 proceeds of the State Mutual policy were paid to defendant and the $50,000 proceeds from the Mutual of New York policy were paid to Janet. Janet did not learn of the existence of the State Mutual policy and the distribution of those proceeds until February or March 1985. She subsequently brought this action on plaintiff’s behalf for the establishment of an equitable trust and/or a relinquishment of the $41,000 insurance proceeds. The trial court entered judgment for defendant after a stipulated bench trial, and this appeal followed.

At issue in this appeal is whether, under the terms of the settlement agreement, Phillip could designate anyone but plaintiff as the beneficiary of the State Mutual policy.

The settlement agreement reads, in pertinent part:

“1. EFFECTIVE DATE. This Agreement shall become binding upon the wife and husband and their respective legal representatives, successors and assigns immediately following the granting of a Decree of Dissolution *** provided that the provisions of this Agreement are approved by the Court in which such [dissolution] proceeding is pending and is incorporated by the Court as part thereof in its Decree.
* * *
3. DIVISION OF PROPERTY. ***
* * *
F. All life insurance policies presently in effect are to be changed and the parties’ child, Jordan Foster Knight, is to be sole beneficiary.
4. CONSTRUCTION AND EFFECT. This Agreement shall be submitted to the Court upon final hearing for dissolution of marriage in this proceeding, and if the dissolution shall be granted, and this Agreement approved and adopted as part of the Court’s Decree, then it shall be binding upon the parties. Otherwise, this Agreement shall be void and of no force and effect. The parties further agree that the effective date of this Agreement shall be the day and time of day in which a decree of dissolution shall be granted by the Court; provided, however, that as between the parties this Agreement shall be binding on the day of execution hereof, subject to the Court’s approval, as heretofore mentioned. ***
***
6. WAIVER OF FURTHER RIGHTS. Except as expressly provided, herein, each party shall be fully released by the other from any other obligation for alimony, support, maintenance or other obligations and each party accepts the provisions herein in full satisfaction of all property rights and all obligations for support or otherwise arising out of the marital relation of the parties. Each party, except with respect to payments or transfers of property occurring herein, hereby releases the other party and his or her respective legal representatives, successors and assigns from any claim of any kind and specifically relinquishes any right, title and interest in or to any earnings, accumulations, future investments, money or property of the other party.”

The agreement was executed by Phillip and Janet on May 28, 1981, but it was not approved and entered as part of the divorce decree until June 9, 1981. Thus, plaintiff contends that, under the terms of the settlement agreement, the agreement was not binding until it was approved and entered as part of the divorce decree. Plaintiff therefore asserts that because the State Mutual policy was in effect as of the date the decree was entered, pursuant to paragraph 3F of the settlement agreement, Phillip was required to name and maintain plaintiff as the sole beneficiary of the State Mutual policy.

Defendant responds that since the State Mutual policy was not in effect as of the date the settlement agreement was executed, and because the possibility of such a policy was not contemplated by the parties, the settlement agreement cannot reasonably be read to affect that policy.

Initially we note that Phillip and Janet entered into the settlement agreement in question in Indiana, and it was approved and incorporated in a judgment of divorce entered by an Indiana court. The construction, operation, and effect of a foreign divorce decree are usually governed by the laws of the jurisdiction in which the decree was entered. (27C C.J.S. Divorce §803 (1986); see also Vyskocil v. Vyskocil (1981), 99 Ill. App. 3d 391, 394.) Therefore, Indiana law and rules of construction will be employed in interpreting the settlement agreement in question.

Under Indiana law, a property agreement incorporated into a court-approved final divorce decree is a binding contract. (Duran v. Komyatte (Ind. App. 1986), 490 N.E.2d 388, 392.) In construing the language of a separation agreement, the general rules governing the construction of all contracts are applied. (Baugher v. Barrett (1957), 128 Ind. App. 233, 239, 145 N.E.2d 297, 300.) The ultimate goal in the interpretation of a contractual provision is to give effect to the intent of the parties at the time they formed the contract. (Keystone Square Shopping Center Co. v. Marsh Supermarkets, Inc. (Ind. App. 1984), 459 N.E.2d 420, 422.) In construing the terms of a contract, words are to be taken to be used in their ordinary, popular, and most obvious sense, absent a clear indication that a technical or special meaning was intended. Nimet Industries, Inc. v. Joy Manufacturing Co. (Ind. App. 1981), 419 N.E.2d 779, 781.

It is obvious that the parties in the instant action intended that plaintiff become the sole beneficiary of some insurance policy or policies. They chose to limit the effect of the insurance provision of the agreement to “policies presently in effect.” It is clear that the contract was formed between the parties as of May 28, 1981. As of that date, the only policy “presently in effect” was Phillip’s $50,000 Mutual of New York policy.

The complication arising here is that the parties also agreed that the terms of the agreement would become binding when approved by the court and incorporated into a final divorce decree. Plaintiff insists that the terms setting out the effective date of the agreement give definition to the term “presently in effect.” Plaintiff’s definition of that term is “in effect when the judgment is entered.” We disagree.

When the parties formed their agreement, they did not know when the judgment would be entered. Although they may have had a court date set, that is not a guarantee that judgment will be entered on that date. At the time that the agreement was executed, the date of the entry of the decree was an unknown. The word “presently” cannot reasonably be interpreted to mean an unknown date in the future. It is meaningless if so interpreted. The only interpretation which gives real meaning and specificity to the term “presently in effect” is “in effect at the time the agreement was formed and executed,” that is, May 28,1981.

Furthermore, the agreement indicates that the policies presently in effect are to be changed to make Jordan the beneficiary. At the time the settlement agreement was executed, the State Mutual policy did not exist. The use of the word “changed” in the insurance provision indicates that something that already existed was to be modified. That which does not exist cannot be changed. Because the State Mutual policy did not exist when the contract was formed, the provision instructing that the “policies presently in effect are to be changed” is meaningless when applied to it. The use of the word “changed” indicates that the provision applied only to policies known to exist in a certain form and not to future arising policies.

Plaintiff’s position that the agreement was not binding until it was approved by the court is incorrect. This interpretation of the agreement ignores the provision in the “Construction And Effect” section that states “as between the parties this Agreement shall be binding on the day of execution hereof, subject to the court’s approval.” This provision cannot be ignored. We cannot treat any part of a contract as surplusage if it can be given a meaning reasonably consistent with other parts of the contract. (Equitable Life Assurance Society v. Crowe (1976), 170 Ind. App. 677, 688, 354 N.E.2d 772, 778.) Although the provision states that the agreement is subject to the court’s approval, this does not mean that the agreement becomes binding on the date the court approves the agreement. Rather, we construe this clause to mean that if the court approves the agreement, it is binding on the parties as of the day of execution. The court did approve the agreement, and, therefore, the agreement was binding, as between the parties, as of May 28, 1981.

By the “Waiver Of Further Rights” provision in the agreement both parties released each other from all obligations and released all claims to any property of the other party, except as the agreement specifically provided. Because the waiver was effective as of May 28, 1981, Phillip had no obligation under the agreement to make Jordan the beneficiary of policies arising after May 28,1981.

Accordingly, we hold that the settlement agreement was binding on the parties as of May 28, 1981, and that the insurance provision in the agreement refers only to policies in existence as of May 28, 1981. The only policy in effect as of that date was the Mutual of New York policy. Phillip was not obligated under the settlement agreement to maintain plaintiff as the beneficiary under the State Mutual policy which came into being after May 28,1981.

As a final note, we feel compelled to address an argument raised by defendant which apparently formed the basis of the trial court’s ruling. The evidence showed that Phillip had never changed the beneficiary on his Mutual of New York policy, as the settlement agreement required, and that on Phillip’s death Janet received the $50,000 proceeds. The trial court made a point that Janet was before the court seeking equity and as such must demonstrate that she had clean hands with respect to the $50,000. Defendant argues this point extensively, contending that Janet did not act equitably in taking the proceeds of the Mutual of New York policy and was therefore properly denied equitable relief.

This argument ignores the fact that Janet is before the court only as the next friend of Jordan, the party in interest and plaintiff in this cause. The duty of the next friend begins and ends with the prosecution of the lawsuit. (Wojtas v. Rachel (1932), 267 Ill. App. 148, 156.) The fact that there may have been some irregularity concerning the receipt of the proceeds of the Mutual of New York policy does not preclude an action on behalf of plaintiff to enforce his rights under the settlement agreement. A minor should not be precluded from enforcing his right unless clearly debarred from so doing by some statute or constitutional provision. (Severs v. Country Mutual Insurance Co. (1982), 89 Ill. 2d 515, 521.) Therefore, although we affirm the circuit court judgment in favor of defendant, the affirmance is not based on Janet’s alleged failure to act equitably.

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

Affirmed.

UNVERZAGT, P.J., and DUNN, J., concur.


author: JUSTICE DUNN JUSTICE INGLIS,

text:
    THOMAS PERKINS et al., Plaintiffs-Appellants, v. JAMES J. COLLETTE et al., Defendants-Appellees.
    Second District
    No. 2—88—0488
    Opinion filed February 21, 1989.

      INGLIS, J., concurring in part and dissenting in part.
    John E. Griffin, of Hickory Hills, for appellants.
    Robert F. Van Epps, Ltd., of Elmhurst (Richard A. Verkler, of counsel), for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiffs, Thomas and Eileen Perkins, brought an action against defendants, James Collette, Adele Collette, and Century 21 Plaza Real Estate, for rescission of a real estate sales contract and damages. Plaintiffs alleged that James Collette, an agent of Century 21 Plaza, fraudulently represented that if they purchased a vacant lot which the Collettes owned, they would be able to build a house on the lot. The circuit court of Du Page County dismissed plaintiffs’ original and first amended complaints primarily on the basis that any misrepresentations made by James Collette were misrepresentations of law upon which plaintiffs were not entitled to rely. Plaintiffs contend on appeal that the trial court erred by concluding that Collette’s misrepresentations were ones of law, not fact, and by dismissing their complaints. We reverse and remand.

Plaintiffs filed a four-count complaint alleging fraud on February 5, 1987. The complaint also alleged a breach of fiduciary duty on the part of James Collette in his capacity as a real estate broker. The Collettes subsequently filed a counterclaim for installment payments allegedly due and owing under the contract. The trial court dismissed the complaint on September 22,1987.

Although the trial judge stated on the record that the above dismissal was with prejudice, he also stated that plaintiffs would have leave to file an amended complaint employing any legal theories not set forth in the original complaint. The trial judge denied plaintiffs’ motion to reconsider on October 19, but allowed plaintiffs leave to file an amended complaint within 45 days. Since dismissing a case with prejudice means that plaintiff will not be permitted to plead over and the litigation is terminated (O’Hara v. State Farm Mutual Automobile Insurance Co. (1985), 137 Ill. App. 3d 131, 133, 484 N.E.2d 834, 836), it is apparent that the trial judge mischaracterized the September 22, 1987, dismissal order. Accordingly, we will ignore that characterization and consider the September 22 order as a dismissal without prejudice.

Plaintiffs subsequently filed an amended complaint in which they alleged as follows. On or about September 26, 1981, plaintiffs met with James Collette at the Century 21 Plaza office in Villa Park. Plaintiffs told Collette that they wanted to purchase a vacant lot and build a home on the lot. Collette showed them a vacant parcel of land which was listed for sale by Century 21 Plaza. He informed plaintiffs that the lot was a suitable place to build a home. James and Adele Collette owned this parcel of land.

On October 3, 1981, plaintiffs executed a sales contract in which they agreed to purchase the lot for $14,000. Plaintiffs paid $2,000 in earnest money to Century 21 Plaza at this time. The parties held an interim closing on November 13, 1981, during which plaintiffs and the Collettes executed articles of agreement for deed. Plaintiffs paid an additional $5,216 at this time. After the closing, Thomas Perkins asked James Collette whether Perkins would be able to obtain a building permit for the lot. Collette told Perkins that it would be no problem for him to obtain such a permit.

Thomas Perkins requested an application for a building permit from Thomas Miller, the Du Page County supervisor of zoning enforcement, on September 9, 1983. Miller told Perkins that James Collette had previously submitted an application for a building permit for the subject property which had been denied and that the Perkins’ application would be denied as well. Upon discovering that they could not obtain a building permit for the property, plaintiffs sent the Collettes a notice of rescission of the articles of agreement for deed. On or about October 24, 1983, plaintiffs received a letter from the attorney for the Collettes. The letter stated that the Collettes had filed a lawsuit against the County of Du Page. According to the amended complaint, the lawsuit was still pending in the circuit court of Du Page County, and no progress had been made.

The amended complaint further alleged that James Collette knew that the vacant lot was not a suitable place to build a home and that plaintiffs could not obtain a building permit for the lot, but deliberately concealed these facts from plaintiffs. Collette was an employee of Century 21 Plaza and was acting as its agent.

Although the amended complaint did not incorporate the allegations of the original complaint, the six counts of the amended complaint are numbered V through X. Counts V and VI are directed against James Collette and seek rescission on the basis of unilateral mistake and mutual mistake. Counts VII and VIII are directed against Adele Collette and seek rescission on the same grounds. Count IX is directed against James Collette and requests damages and the imposition of a constructive trust as a result of his alleged fraudulent misrepresentations in violation of the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1987, ch. 12172, par. 261 et seq.). Count X is directed against Century 21 Plaza and is also premised upon alleged violations of the Act.

The circuit court dismissed plaintiffs’ amended complaint with prejudice in an order dated April 20, 1988. The Collettes’ counterclaim was still pending at this time. The trial court included the requisite language in the April 20 order to render it appealable pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). Plaintiffs filed a timely notice of appeal and subsequently filed an amended notice of appeal.

The amended notice of appeal states that plaintiffs are appealing from the September 22, 1987, order dismissing the original complaint, the October 19, 1987, order denying plaintiffs’ motion to reconsider the aforesaid dismissal, and the April 20, 1988, order dismissing their amended complaint. This court only has jurisdiction to review the latter order because it is the only order containing the requisite language trader Rule 304(a) (107 Ill. 2d R. 304(a)). Furthermore, by filing an amended complaint, plaintiffs waived any objection to the dismissal of their original complaint. (Foxer oft Townhome Owners Assoeiation v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 153-55, 449 N.E.2d 125, 126-27.) We will only review the trial court order dismissing the amended complaint.

Defendants’ motion to dismiss the amended complaint was made pursuant to section 2—615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—615). Such a motion attacks only the sufficiency-of the complaint and should be decided solely upon the allegations set forth therein. (Schnidt v. Henehan (1986), 140 Ill. App. 3d 798, 801, 489 N.E.2d 415, 417.) The motion should only be granted if it is clear that plaintiffs cannot prove any set of facts under the pleading which would entitle them to the relief requested. (Schnidt, 140 Ill. App. 3d at 801, 489 N.E.2d at 417.) In their briefs on appeal, plaintiffs and defendants have referred to facts which were not alleged in the amended complaint. In reviewing the trial court’s dismissal order, we shall only consider the facts alleged in the amended complaint.

Two counts of plaintiffs’ amended complaint allege violations of section 2 of the Act (Ill. Rev. Stat. 1987, ch. 121½, par. 262). One of those counts is directed against James Collette as a result of his alleged misrepresentations, and the other is directed against Century 21 Plaza, Collette’s alleged employer at the time of the misrepresentations. Section 2 states in part as follows:

“Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the “Uniform Deceptive Trade Practices Act,” approved August 5, 1965, in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.” Ill. Rev. Stat. 1987, ch. I2IV2, par. 262.

Section 2 of the Act applies to intentional misrepresentations made by real estate brokers to prospective purchasers. (Stefani v. Baird & Warner, Inc. (1987), 157 Ill. App. 3d 167, 175, 510 N.E.2d 65, 70; Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 168, 510 N.E.2d 409, 417.) The broker must have knowledge of the false, misleading, or deceptive nature of the information he conveys. (Zimmerman, 156 Ill. App. 3d at 168, 510 N.E.2d at 417.) Plaintiffs have clearly alleged facts establishing that James Collette, a real estate broker and agent of Century 21 Plaza, made misrepresentations to them and had knowledge that the information he was communicating to them was false.

Defendants assert, however, that the Act only applies to misrepresentations of material fact and that the alleged misrepresentations of James Collette were ones of law, not fact. Defendants rely largely upon the decision of this court in Hamming v. Murphy (1980), 83 Ill. App. 3d 1130, 404 N.E.2d 1026.

In Hamming, one of the sellers advised a buyer of certain real estate that all of the zoning “red tape” had been taken care of so as to permit the construction of apartments on the subject property. (Hamming, 83 Ill. App. 3d at 1132, 404 N.E.2d at 1028.) The court held that this could not constitute a fraudulent misrepresentation because it was a representation of law. The court stated that a party to a transaction is not generally entitled to rely upon a representation of law because both parties are presumed to be equally capable of knowing and interpreting the law. 83 Ill. App. 3d at 1135, 404 N.E.2d at 1030.

The Hamming rationale was applied in two cases cited by defendants to this court. In OBrien v. Noble (1982), 106 Ill. App. 3d 126, 435 N.E.2d 554, plaintiffs asserted that defendants negligently misrepresented in an advertisement describing a five-acre parcel of land for sale that one house could be built on the lot, when plaintiffs were subsequently unable to obtain a building permit for a house because of developmental restrictions in a local zoning ordinance. (O’Brien, 106 Ill. App. 3d at 127-28, 435 N.E.2d at 555.) The court stated “the facts concerning the zoning of the property were a matter of public record and readily available to plaintiffs” and held that defendants were not liable for negligent misrepresentation. 106 Ill. App. 3d at 130, 435 N.E.2d at 557.

This court applied the Hamming rationale in City of Aurora v. Green (1984), 126 Ill. App. 3d 684, 467 N.E.2d 610, a case in which the sellers allegedly told the buyers that a building was properly zoned for use as five residential units when it was actually located in a two-family residential zone and had been remodeled by the sellers without city approval. (City of Aurora, 126 Ill. App. 3d at 685, 467 N.E.2d at 611.) The court concluded that the buyers could not have reasonably relied upon the above representation because it concerned existing zoning laws and their application to the subject property. 126 Ill. App. 3d at 688, 467 N.E.2d at 613.

In City of Aurora, the court distinguished Kinsey v. Scott (1984), 124 Ill. App. 3d 329, 463 N.E.2d 1359. The defendant in Kinsey sold a five-unit building to plaintiff and was aware that plaintiff intended to occupy one of the units herself while renting out the other four. Defendant did not inform plaintiff that the fifth apartment had been constructed without a building permit and that he had been told by a building inspector after the unit was finished that it was too late to obtain a permit. (Kinsey, 124 111. App. 3d at 333, 463 N.E.2d at 1362.) The court held that defendant’s statement that the building was a five-unit building was a misrepresentation because it was not lawfully a five-unit building. (124 111. App. 3d at 336, 463 N.E.2d at 1364.) The court also concluded that the misrepresentation was one of fact rather than law, thus rendering Hamming inapplicable. 124 111. App. 3d at 339, 463 N.E.2d at 1366.

This court recently cited Kinsey in support of its holding in Tan v. Boyke (1987), 156 Ill. App. 3d 49, 508 N.E.2d 390. In Tan, plaintiff purchased two apartment buildings on adjoining lots. One of the buildings contained 35 units; the other contained 31 units. The construction permit for the 35-unit building only authorized defendant to build 31 units in that structure. Additionally, the building permit applications for both lots included the south 60 feet of the lot containing the 31-unit building. Defendant did not tell plaintiff about these discrepancies, which resulted in a greater density of housing units and less available parking than local zoning ordinances permitted. Tan, 156 Ill. App. 3d at 52, 508 N.E.2d at 392.

Defendant argued in Tan that the trial court erred in imposing liability on the basis of fraud because the alleged misrepresentations were ones of law rather than fact and because plaintiff had the opportunity to discover the true situation herself. (156 Ill. App. 3d at 56-57, 508 N.E.2d at 394-95.) The court responded to these arguments by noting the general rule that one who makes a deliberate misrepresentation with knowledge that it has misled another cannot escape liability by claiming that the other party could have discovered the fraud through the exercise of reasonable care. (156 Ill. App. 3d at 57, 508 N.E.2d at 395.) The determinative issue, according to the court, was whether, considering the facts which plaintiff knew or could have known had he exercised ordinary prudence, plaintiff had the right to rely upon defendant’s misrepresentations. 156 Ill. App. 3d at 58, 508 N.E.2d at 395-96.

Addressing the above issue, the court stated as follows in Tan:

“It is clear that only a complicated analysis of the plat of survey and the applicable zoning ordinances would have revealed to the plaintiff the irregularities in construction and the resulting illegality of the buildings. Without some indication that the buildings had been improperly or illegally constructed, it is unlikely that a reasonably prudent prospective purchaser would have undertaken so extensive an analysis of the ordinance. *** We conclude that the plaintiff reasonably and justifiably relied on the defendant’s silence.” 156 Ill. App. 3d at 58, 508 N.E.2d at 396.

The primary factor which distinguishes Hamming, O’Brien and City of Aurora from Kinsey and Tan is whether the seller’s misrepresentations could have been discovered merely by reviewing applicable zoning or building ordinances. In Tan, as we noted above, the court stated that defendant’s misrepresentations could only have been discovered through a complicated analysis of the plat of survey and applicable zoning ordinances. (Tan, 156 Ill. App. 3d at 58, 508 N.E.2d at 396.) In Kinsey, the court stated “there is nothing in the record to indicate that plaintiff herself might have discovered by the exercise of ordinary prudence that the basement apartment was not constructed according to the housing and building code.” Kinsey, 124 Ill. App. 3d at 338, 463 N.E.2d at 1365.

Considering only the facts alleged in the amended complaint, as we are required to do in evaluating a section 2 — 615 motion, we cannot determine whether plaintiffs could have discovered the alleged misrepresentations of James Collette merely by reviewing applicable zoning and building ordinances. The amended complaint alleged that James Collette told plaintiffs that the vacant lot was a suitable location for a home, even though Collette himself had been denied a building permit for the lot. It further alleged that plaintiffs subsequently discovered that they would be unable to obtain a building permit for the lot. The amended complaint contained no facts, however, which would conclusively indicate that plaintiffs could have discovered the alleged misrepresentations by merely reviewing local zoning or building ordinances or that plaintiffs, as a matter of law, were not entitled to rely upon Collette’s misrepresentations for any other reasons. The trial court therefore erred by dismissing the two counts based upon the Act.

In each of the remaining four counts of the amended complaint, plaintiffs seek rescission on the basis of unilateral or mutual mistake. Defendants contend that even if some or all of the parties mistakenly believed that a home could be built on the property, this was a mistake of law not fact and that rescission is therefore inappropriate. Defendants rely upon the holding in Kazwell v. Reynolds (1928), 250 Ill. App. 174.

In Kazwell, the court upheld the dismissal of a complaint which alleged that a real estate purchaser informed the seller that he intended to use the land for two businesses and that the seller and his attorney assured him that there were no restrictions on the land other than those appearing of record in the county recorder’s office. (Kazwell, 250 Ill. App. at 175.) Under a village ordinance, however, the property was zoned for residential use. The court stated that all individuals are supposed to know the law and held that the doctrine of mistake was not applicable under the circumstances. The court emphasized that ignorance of the law is no excuse. 250 111. App. at 178.

The case at bar is distinguishable from Kazwell. As we have previously indicated, it cannot be determined from the allegations of the amended complaint whether plaintiffs could have discovered that they would be unable to build a home on the land by merely reviewing applicable building and zoning ordinances. In Kazwell, a review of a local zoning ordinance would have made it clear that the buyer could not use the land for the desired purposes. This is not necessarily true in the instant case. The trial court erred by dismissing the four counts in which plaintiffs sought rescission on the basis of mistake, as well as the two counts based upon alleged violations of the Act.

Accordingly, the judgment of the circuit court of Du Page County is reversed and the cause remanded for further proceedings.

Reversed and remanded.

REINHARD, J., concurs.

JUSTICE INGLIS,

concurring in part and dissenting in part:

I concur with the majority’s decision that the trial court erred by dismissing the four counts in which plaintiffs sought rescission on the basis of mistake, as well as the two counts based upon violations of the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1987, ch. 121½, par. 261 et seq.). However, I must depart from that portion of the majority’s decision remanding the two counts brought under the Act for a determination of whether the misrepresentation was one which plaintiffs could have discovered using ordinary diligence, or whether, as a matter of law, plaintiffs were not entitled to rely on the misrepresentation. In my opinion, the counts alleged under the Act adequately state a cause of action upon which recovery may be based.

The pleadings in the case before us, if proved, establish that defendants misrepresented that a single-family residence could be built on the lot. It could not.

In dismissing plaintiffs’ complaint, the trial court concluded that the misrepresentation was one of law and therefore not actionable since all the parties to a transaction are presumed to be equally capable of knowing and interpreting the law. This worn and oftentimes obscure distinction between misrepresentations of fact and misrepresentations of law, while perhaps applicable to actions brought in common law fraud, is inapplicable to actions brought under the Act.

The Act specifically addresses “unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 121½, par. 262.) The explicit language of the Act indicates that the Act encompasses more than misrepresentations of material facts.

The allegation that defendants misrepresented that the vacant lot would be suitable for the construction of a home can aptly be categorized as any one of the following: deception, false pretense, or false promise. Moreover, courts have held that the Act is to be utilized to the utmost degree in an attempt to eradicate all forms of deceptive and unfair business practices and to grant appropriate remedies to injured parties. Aurora Firefighter’s Credit Union v. Harvey (1987), 163 Ill. App. 3d 915, 924; Duhl v. Nash Realty, Inc. (1981), 102 Ill. App. 3d 483, 495.

The Act was, in my opinion, a departure from common law intended to protect the public from conduct such as that employed by defendants here. Everyone, including a responsible real estate broker, suffers when a seller or broker is allowed to misrepresent any question, whether it be one of fact or law. Thus, regardless of whether defendants’ misrepresentation is one of fact or law, or whether plaintiffs could have discovered it with the exercise of ordinary diligence, it is nonetheless actionable under the language and spirit of the Act.

The case of Duhl v. Nash Realty, Inc. (1981), 102 Ill. App. 3d 483, clearly expresses my opinion of the wide scope of the Act. The Duhl court stated:

“Section 2 of the Act (which was held to apply to misrepresentations by real estate brokers to prospective purchasers in Beard v. Gress (1980), 90 Ill. App. 3d 622, 413 N.E.2d 448), indicates a decisive move on the part of the Illinois legislature to enact broad protective coverage of consumers from the many types of deceptive or unfair selling and advertising techniques used by businesses. [Citation.] The sections clearly expand the consumers’ rights beyond those of the common law [citation], and provide broader consumer protection than does the common law action of fraud. [Citation.] There is a clear mandate from the Illinois legislature that the courts of this State utilize the Act to the utmost degree in eradicating all forms of deceptive and unfair business practices and grant appropriate remedies to injured parties. [Citations.]
Since the Act affords even broader consumer protection than does the common law action of fraud, it is clear that a plaintiff suing under the Act need not establish all of the elements of fraud as the Act prohibits any deception or false promise. [Citation.] And it is clear from the language of the Act, particularly its reference to false promises, that liability is not limited to existing material facts.” (Emphasis added.) 102 Ill. App. 3d at 495.

I nonetheless recognize that this court has previously held that a misrepresentation of law is equally fatal to a cause of action whether brought in common law fraud or pursuant to the Act. (City of Aurora v. Green (1984), 126 Ill. App. 3d 684, 687.) However, that case adheres to the common law rule without explanation and without analysis or consideration of the broad wording of the Act and its “including but not limited to” language.

In addition to those reasons expressed above, I also believe we should consider this problem from the proper perspective. The purchase of a homesite and home is probably the largest single transaction the average American will make. Many families will only buy one home in a lifetime. A buyer should be afforded the reasonable expectation that the seller and real estate agent will tell the truth. The average buyer and some lawyers do not understand the distinction between questions of law and questions of fact. The average buyer is unsophisticated and in all probability has never seen a zoning ordinance or a building code. This situation is only exasperated by the fact that national real estate chains such as the one in the instant action frequently market their services with such slogans as “We set the standards,” “Put number 1 to work for you,” and “Depend on the marketing team.” Then, when a buyer does depend on such representations and finds that he cannot build a single-family home on a lot he purchased solely for that purpose, the broker hides behind the common law fraud rule that it can only be held responsible for a misrepresentation of fact. The added allegation in this case of the seller-broker telling the buyers that they do not need an attorney also aggravates the situation. We hold the buyers responsible for knowing the law and then ignore an inducement that causes them not to get legal representation. Such inducement by the seller-broker substantially reduces the opportunity of the buyers to ascertain the truth of the representation before acting.

For these reasons, I concur with the majority’s decision to reverse the trial court’s judgment, but I would hold that counts IX and X brought pursuant to the Act state a proper cause of action.


author: JUSTICE McLAREN JUSTICE REINHARD,

text:
    DOROTHY ECKHARDT, Adm’r of the Estate of Harold V. Eckhardt, Plaintiff-Appellant, v. THOMAS KIRTS, Defendant-Appellee.
    Second District
    No. 2—88—0319
    Opinion filed February 22, 1989.

      REINHARD, J., specially concurring.
    Peter Thomas Smith, of Sycamore, for appellant.
    John W. Duncker and William F Cunningham, both of O’Reilly, Cunningham, Norton & Mancini, of Wheaton, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

On March 29, 1984, plaintiff, Dorothy Eckhardt, administrator of the estate of Harold V. Eckhardt, decedent, filed a malpractice action against Thomas Kirts, M.D., defendant, alleging that his negligent psychiatric treatment of Joyce Eckhardt was a cause of the wrongful death of the decedent. Joyce Eckhardt, the decedent’s wife, who suffered from mental disabilities, shot her husband with his police service revolver on March 29, 1982. The amended complaint, filed July 1, 1987, contained three counts. Count I sought pecuniary losses under the Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, pars. 1, 2); count II sought compensation for funeral expenses; and count III sought compensation for bodily injury, pain, and suffering under the Survival Act (Ill. Rev. Stat. 1985, ch. HQNz, par. 27 — 6). On December 23, 1987, the defendant filed a motion for summary judgment, arguing that plaintiff could not demonstrate that defendant owed a duty to the plaintiff and that plaintiff’s expert deposition testimony could not establish that defendant’s alleged negligent treatment of Joyce Eckhardt proximately caused the death of the decedent.

On March 10, 1988, the trial court struck the affidavits of plaintiff’s expert witness, Dr. Sanford Finkel, and granted defendant’s motion for summary judgment. Plaintiff appeals. We affirm.

On appeal, plaintiff argues that the trial court erred in striking the affidavits of Dr. Sanford Finkel, asserting that rather than being eonclusory, the affidavits presented an adequate factual basis for the medical opinions offered therein, and the trial court erred in granting summary judgment because there were material factual issues regarding Dr. Kirts’ duty of care toward plaintiff's decedent, because the decedent husband was a readily identifiable and foreseeable member of a group of three potential victims subject to Joyce Eckhardt’s violent proclivities. Additionally, plaintiff argues that defendant’s alleged negligent treatment and failure to warn were the proximate cause of decedent’s death because they increased the probability that the homicide was more likely to occur than not.

On March 29, 1982, in the early morning hours, Harold V. Eckhardt, decedent, a De Kalb County sheriff’s deputy, was sleeping in the bedroom of his mobile home in Kirkland, Illinois. His wife, Joyce Eckhardt, who suffered from cyclical mental health disabilities, took Harold Eckhardt’s police service revolver and shot him to death.

The mother of Harold V. Eckhardt and plaintiff herein, Dorothy Eckhardt, was appointed administrator of the estate of Harold Eckhardt. On March 29, 1984, plaintiff, as administrator, filed suit against the defendant, Dr. Kirts, a psychiatric physician from De Kalb, Illinois, who had been treating Joyce Eckhardt prior to the death of her husband, Harold Eckhardt. Joyce Eckhardt had been undergoing psychiatric treatment as an outpatient at the De Kalb Clinic from December 1976 until February 2, 1982, approximately seven weeks prior to the homicide. She had also been hospitalized twice in October 1981, for a recurrent, major depressive disorder.

During pretrial discovery, an amended complaint was filed on January 1, 1987. The amended complaint alleged that Dr. Kirts was negligent in his treatment of Joyce Eckhardt and negligent with regard to the safety of Harold V. Eckhardt in the following ways: (1) he failed to test Joyce Eckhardt properly to determine the nature of Joyce Eckhardt’s mental health disabilities; (2) he failed to diagnose accurately the nature of Joyce Eckhardt’s mental health disabilities; (3) he failed to refer Joyce Eckhardt to a specialist for treatment of her mental health disabilities; (4) he failed to provide Joyce Eckhardt with appropriate medication to control or otherwise treat the mental health disabilities from which she suffered; and (5) he failed to warn Joyce Eckhardt or Harold Eckhardt of the danger to them from Joyce Eckhardt’s mental health disabilities.

On December 23, 1987, the defendant filed a motion for summary judgment, arguing that the deposition testimony of the plaintiff’s expert witness demonstrated that the plaintiff could not, as a matter of law, establish a duty owed by Dr. Kirts to Harold Eckhardt. The defendant further argued that the expert’s deposition testimony failed to establish that the alleged negligence of the defendant proximately caused the death of Harold Eckhardt.

Plaintiff submitted her memorandum and the affidavit of her expert witness, Sanford I. Finkel, M.D., in opposition to the motion for summary judgment. Defendant filed a reply and moved to strike the affidavit of Dr. Finkel because it contradicted his earlier deposition. Plaintiff moved for leave to amend the affidavit of Dr. Finkel; the motion was granted, and the amended affidavit was filed on February 28,1988.

In his amended affidavit, Dr. Finkel stated that he was a psychiatric physician licensed to practice in the State of Illinois and resided in Chicago, Illinois; that he received his medical degree from the University of Michigan in 1967 and received certification from the American Board of Psychiatry and Neurology in 1976; and that he had been in the private practice of psychiatry since 1971. Dr. Finkel also indicated that his practice of psychiatry had included work in Cook County, Kane County, and McHenry County, Illinois, and the standard of care in De Kalb County is substantially the same as the standard of care in the other localities. In his amended affidavit, Dr. Finkel further stated that he had fully examined the medical records and medical history of Joyce Eckhardt, the records concerning her diagnosis and treatment by Dr. Kirts, the deposition of Dr. Kirts and the history and conduct of Joyce Eckhardt prior to, during, and after the death of Harold Eckhardt. Plaintiff did not attach those documents to the affidavit, presumably because of their bulk.

With regard to his deposition, Dr. Finkel stated in his affidavit that he was asked questions which he understood dealt with the narrow issue of whether Harold Eckhardt would be “alive today” and the exact probability, in percentages, that Harold Eckhardt “would be alive today” if the proper standard of care had been followed in Joyce Eckhardt’s psychiatric treatment. In his earlier deposition, Dr. Finkel indicated that Dr. Karts could have managed Joyce Eckhardt’s depression more effectively by conforming to the standard of care; that adhering to the proper treatment could well have lessened the chances of an ultimate tragedy occurring, but he was unable to give an exact percentage or probability that Harold Eckhardt would be alive today. The deposition indicates that Joyce made no specific threats on the life of her husband. Other deposition questions were directed specifically to the narrow issue of predicting the specific homicide of Harold Eckhardt. In answering those questions, Dr. Finkel indicated that Kirts “would have some idea, assuming now that he can verify there were threats to life, that the possibility of her having a similar episode with similar symptoms which would include that [homicide] was, indeed, a distinct possibility.” Dr. Finkel admitted that the homicide of Harold Eckhardt, as opposed to that of the sister or mother of Joyce Eckhardt, could not be specifically predicted. When asked whether Dr. Kirts should have predicted that Joyce would shoot someone, Dr. Finkel replied that it was “an issue that I believe should have been explored in greater depth,” but he could not answer the question as posed.

In his amended affidavit, Dr. Finkel further stated that the questioning in the deposition was so narrow in scope and so restrictive that it did not allow him to state his opinion on the causal relationship between Dr. Kirts’ psychiatric care of Joyce Eckhardt and the death of Harold Eckhardt. Dr. Finkel then went on to state his opinion in the following terms:

“10. It is my opinion to a reasonable medical certainty based on the information referred to in paragraph 3. above that in 1982 Joyce Eckhardt was suffering from depression with a paranoid psychotic episode and that the nature of the mood disorder was cyclical, reoccurring [sic] on an intermittent basis.
11. It is my opinion to a reasonable medical certainty based on the information referred to in paragraph 3. above that Dr. Kirts deviated from the standard of medical care for De Kalb County, Illinois in 1981 and 1982 by, without being limited to, misdiagnosing Mrs. Eckhardt’s psychiatric disorder, failing to test Mrs. Eckhardt fully and investigate her family and social history to determine the cause of her disorder, treating Mrs. Eckhardt’s symptoms only and not acting to determine and treat the cause of the disorder, failing to educate the family members as to the nature of the disorder and failing to warn them of the dangerous nature of the disorder.
12. It Is also my opinion to a reasonable medical certainty based on the information referred to in paragraph 3. above that Joyce Eckhardt was violent with homicidal ideation and that the objects of her violence were her mother, her sister, and her husband, Harold V. Eckhardt, deceased. This opinion is based, in part, on the fact that Mrs. Eckhardt made threats of violence against her mother and sister and had barricaded her husband Harold V. Eckhardt, deceased out of their trailer home in October, 1981 because she was afraid he was going to harm her and her children. It is not determinative that Mrs. Eckhardt did not threaten her husband’s life or physical well being.
13. It is my opinion to a reasonable medical certainty based on the information referred to in paragraph 3. above that Dr. Kirts’s [sic] deviations from the standard of psychiatric care made Joyce Eckhardt’s psychotic break down in March, 1982 more probable to occur than not and increased the likelihood of such a break down.
14. It is my opinion to a reasonable medical certainty based on the information referred to in paragraph 3. above that Joyce Eckhardt’s violent and homicidal acts during a subsequent psychotic break down such as in March, 1982 were reasonably foreseeable by Dr. Kirts.
,» 15. It is my opinion to a reasonable medical certainty based on the information referred to in paragraph 3. above that Dr. Kirts.s [sic] deviation from the standard of psychiatric care made Joyce Eckhardt’s violent and homicidal acts more probable to occur than not and increased the likelihood of those acts in March, 1982.
16. It is my opinion to a reasonable medical certainty based on the information referred to in paragraph 3. above that it was reasonably foreseeable by Dr. Kirts that Joyce Eckhardt’s violent and homicidal acts would be directed toward her mother, sister or husband, Harold V. Eckhardt, deceased.
17. It is my opinion to a reasonable medical certainty based on the information referred to in paragraph 3. above that Joyce Eckhardt killed her husband, Harold V. Eckhardt, while in a paranoid psychotic episode and would not have done so if not in that mental state.”

We note that paragraph 3 merely refers to the records of Joyce Eckhardt, but does not provide facts supporting Dr. Finkel’s conclusions.

The facts surrounding the homicide are also set forth in People v. Eckhardt (1987), 156 Ill. App. 3d 1077, 509 N.E.2d 1361, although this court is not taking judicial notice thereof.

We begin our analysis by examining the scope of the therapist’s duty to the plaintiff’s decedent, if any. Plaintiff argues that defendant, Dr. Kirts, owed a duty to the decedent because he was a member of a readily identifiable group of three potential victims against whom Joyce Eckhardt would reasonably and foreseeably direct her violent acts. Plaintiff correctly points out that no Illinois case has directly addressed the question of a psychotherapist’s duty to identifiable potential victims and urges this court to follow the analysis of Tarasoff v. Regents of the University of California (1976), 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14, which is cited by the Appellate Court for the Third District in Novak v. Rathnam (1987), 153 Ill. App. 3d 408, 411, 505 N.E.2d 773, 775. There, the court stated in dicta:

“We note that Tarasoff dealt with the duty to warn a readily identifiable victim that the therapist’s patient had threatened her. The patient eventually made good on his threat and the therapist was held liable for the failure to warn the victim. As has been done in the cases that have followed and limited Tarasoff (although we believe that Illinois would adopt Tarasoff’s affirmative duty on therapists to warn foreseeable third parties), we do not believe that the duty would extend to victims who are not readily identifiable, e.g., Thompson v. County of Alameda 27 Cal. 3d 741, 614 P.2d 728.” 153 Ill. App. 3d at 411, 505 N.E.2d at 775.

In Novak, the administrator of the estate of a woman killed by a former mental patient sued two psychotherapists for negligence in treating and releasing a patient with known violent tendencies. The patient ultimately killed the plaintiff’s decedent more than a year later during an attempted armed robbery. While the court in Novak stated its belief that the therapists’ duty would extend only to readily identifiable victims, the decision actually turned primarily on the failure to establish the proximate cause of the decedent’s death based on the alleged negligence of the psychotherapists because the death of the victim occurred more than a year later. The court found that the defendants merely provided a condition for the later acts of the patient but that there was no causal relationship established.

In the present case, while plaintiff admits that the specific homicide of the husband could not be predicted, plaintiff nevertheless asserts that the decedent husband, along with the patient’s mother and sister, was within a class of foreseeable, potential victims. Plaintiff further asserts that this is a factual question for the trier of fact to decide. We disagree. Plaintiff appears to confuse the factor of foreseeability associated with a legal duty with the foreseeability of harm frequently associated with legal causation. Duty and causation are entirely separate elements of the tort of negligence. See generally Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250. See also Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617.

A complaint for negligence must set out the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach. (Cunis, 56 Ill. 2d at 374, 308 N.E.2d at 618.) Duty is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff. Whether the defendant and the plaintiff stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the plaintiff’s benefit is a question of law for the court to determine. (Cunis, 56 Ill. 2d at 374, 308 N.E.2d at 618. ) This court has stated that the primary factors that a court considers in determining the existence of a duty include:

“(1) The foreseeability of injury to the plaintiff as a result of defendant’s actions or inactions; (2) the magnitude of the burden to defendant of guarding against the injury and the consequences of placing that burden on the defendant; and (3) the currently prevailing public policies and social attitudes of the community.” Leesley v. West (1988), 165 111. App. 3d 135, 141, 518 N.E.2d 758, 762.

In determining whether there exists a legal duty, the occurrence involved must not have been simply foreseeable; it must have been reasonably foreseeable. The imposition of a legal duty requires more than a mere possibility of occurrence. Not what actually happened, but what the reasonably prudent person would have foreseen as likely to happen, is the key to the question of reasonableness. Cunis, 56 Ill. 2d at 376, 308 N.E.2d at 619.

Historically, negligence could not be founded upon the breach of a duty owed only to some person other than the plaintiff. (Renslow, 67 Ill. 2d at 355, 367 N.E.2d at 1254.) In two recent decisions, the Illinois Supreme Court has refused to extend the duty of health care professionals to third-party plaintiffs who had neither a direct physician-patient relationship nor a “special relationship” with either the plaintiff or with the health care provider. (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 520 N.E.2d 37; Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387.) In Condell, the court held that a hospital had no duty to unknown third parties to restrain and control a patient admitted informally where a third party was killed during a subsequent police chase of the escaped patient. In Kirk, the plaintiff was a passenger in an automobile driven by a psychiatric patient. The defendant physician had prescribed medication for the patient on the date of the patient’s release. Following the discharge, the patient consumed an alcoholic drink which in combination with the medication resulted in side effects that impaired the patient’s driving ability. The plaintiff was injured when the patient drove off the roadway and struck a tree.

The Kirk court noted that other jurisdictions have limited the scope of the physician’s duty to warn to situations in which there is, apart from the patient, a specifically identifiable, potential victim, rather than holding that a duty exists to the public generally. (Kirk, 117 Ill. 2d at 531, 513 N.E.2d at 398.) The court determined that, consistent with its holdings and with legislation based on social and public policy, a plaintiff could not maintain a medical malpractice action absent a direct physician-patient relationship between the doctor and the plaintiff, or a “special relationship” between the patient and the plaintiff (such as was present in Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250). (Kirk, 117 Ill. 2d at 531, 513 N.E.2d at 399.) In concluding that the physician’s duty of care should not be extended to the general public, that is, to an indeterminate class of potential plaintiffs, the court also pointed out that the legislature had recently enacted legislation to reduce the burden of litigation against health care professionals. Kirk, 117 Ill. 2d at 532, 512 N.E.2d at 399.

In examining the requirement of foreseeability to determine the legal duty of therapists to third persons, numerous courts have concluded that a therapist cannot be held liable for injuries inflicted upon third persons absent specific threats to a readily identifiable victim. (Brady v. Hopper (D. Colo. 1983), 570 F. Supp. 1333, 1338 (and cases cited therein), aff’d (10th Cir. 1984), 751 F.2d 329.) In Thompson v. County of Alameda (1980), 27 Cal. 3d 741, 614 P.2d 728, 167 Cal. Rptr. 70, the California Supreme Court, declining to expand its prior decision in Tarasoff, refused to extend the duty of a county institution to warn an identifiable group of potential victims as to the violent propensities of a juvenile delinquent. In Thompson, prior to his release, the delinquent had indicated that he would, if released, take the life of a young child residing in the neighborhood, but named no specific victim. Within 24 hours of his release on temporary leave, the juvenile delinquent murdered the neighboring plaintiff’s son. The court explained that Tarasoff involved an exception to the general rule that one owes no duty to control the conduct of another and that the therapist’s duty to warn or protect another in Tarasoff arose because the decedent was the known, specifically foreseeable and identifiable victim of the patient’s threats. (Thompson, 27 Cal. 3d at 751-52, 614 R2d at 733, 167 Cal. Rptr. at 75.) The court emphasized that the therapist has no general duty to warn of each threat, but has a duty to act only where the therapist determines or should have determined that a patient poses a serious danger of violence to the foreseeable victim. The court recognized that the open and confidential character of psychotherapeutic dialogue encourages patients to express threats of violence, few of which are ever executed; moreover, a therapist should not be encouraged to reveal such threats routinely, because such disclosures could seriously disrupt the patient’s relationship with his therapist and with the persons threatened. 27 Cal. 3d at 752, 614 P.2d at 734,167 Cal. Rptr. at 76.

Based upon the prior discussion of the law, we believe the plaintiff must establish the following elements relating to the alleged duty owed in order to sustain her cause of action. First, the patient must make specific threat(s) of violence; second, the threat(s) must be directed at a specific and identified victim; and, third, a direct physician-patient relationship between the doctor and the plaintiff or a special relationship between the patient and the plaintiff. Brady v. Hopper, 570 F. Supp. at 1338-39; Kirk, 117 Ill. 2d at 531, 513 N.E.2d at 399.

We now consider whether the trial court properly granted defendant’s motion for summary judgment. When the pleadings, depositions, and affidavits fail to establish an element of the plaintiff’s cause of action, summary judgment is proper. (Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 85, 508 N.E.2d 1201, 1208.) When a defendant files a motion for summary judgment, the plaintiff must come forward with evidence of negligence on the part of the defendant and with evidence that defendant’s negligence was a proximate cause of the plaintiff’s injuries. The supporting documents opposing a motion for summary judgment must recite facts and not mere conclusions or statements on information and belief. Lindenmier, 156 Ill. App. 3d at 85-86, 500 N.E.2d at 1208.

Even if we were to consider the stricken affidavits of Dr. Finkel, we conclude that neither the affidavits nor his prior deposition can establish that Joyce Eckhardt ever made specific threats of violence against her husband. In his deposition, Dr. Finkel’s response in that regard is clear and unequivocal. Indeed, he reiterated in his amended affidavit that the death of Harold Eckhardt could not be specifically predicted, nor was it determinative that Joyce Eckhardt had ever threatened his life or physical well-being. To the extent that Dr. Finkel’s affidavits attempt to create a genuine issue of material fact by stating, in conclusory fashion, that Dr. Kirts could reasonably foresee that Joyce’s violent, homicidal acts would be directed toward her mother, sister, or her husband, Harold Eckhardt, we find them unpersuasive. We find that there was no reasonably foreseeable risk that Joyce Eckhardt would inflict harm on her husband. In the absence of any evidence that Joyce Eckhardt ever threatened her husband’s life or physical well-being prior to the fatal shooting, plaintiff falls outside of the scope of defendant’s duty. In other words, plaintiff’s factual allegations and legal conclusions are insufficient to create a legal duty on the part of Dr. Kirts to protect plaintiff from the specific harm complained of. Since plaintiff has failed to establish the first two elements of the duty to warn, the trial court properly granted summary judgment to the defendant.

A “special relationship,” the third element of the duty, was not presented to the trial court. Because we have found the trial court properly granted summary judgment on the issues presented to it, we see no need to determine if a “special relationship” existed in this case. We note that the determination of what constitutes a “special relationship” is a matter of law, not a matter of fact. Kirk, 117 Ill. 2d at 525.

We recognize the tragic and unfortunate consequences of the patient’s actions in the case before us. But in view of the speculative nature of the risk of harm presented in this case, we believe that our disposition is consistent with the rationale of Kirk and Condell and with our recent decision in Leesley. Each of these decisions evinces a sound public policy against expanding the liability of health professionals to an indeterminate class of potential plaintiffs. We believe that the preferable rule is to limit the duty of health professionals to those cases involving specifically identifiable, potential victims as evidenced by specific threats of harm to them and where there is a special relationship between plaintiff and doctor, or plaintiff and patient. Human behavior is simply too unpredictable and the field of psychotherapy presently too inexact to require that therapists be ultimately responsible for all the actions of their patients. (Brady v. Hopper, 570 F. Supp. at 1339.) To impose such a responsibility without limit would be to place an unacceptably severe burden on those who provide mental health care to the people of this State, ultimately reducing the opportunities for needed care.

The plaintiff has failed to set forth facts to arguably establish the element of the duty to warn contained in her cause of action. We, therefore, need not address plaintiff’s arguments regarding the sufficiency of the expert opinion affidavits, nor do we address the issue of defendant’s breach of duty as a proximate cause of plaintiff’s injuries.

The judgment of the circuit court of De Kalb County is affirmed.

Affirmed.

INGLIS, J., concurs.

JUSTICE REINHARD,

specially concurring:

Although I concur in the affirmance of the judgment for defendant, Thomas Kirts, M.D., I write specially because I cannot agree with the analysis of the majority, which fails to apply the duty test applicable to a defendant-physician set forth by our supreme court in Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387. While the failure of the parties to adequately present the duty issue in either the circuit court or this court may have led the majority to resolve the case as the parties framed the issues, I would decide the case on a separate ground not precisely raised by the parties for a proper adjudication under existing precedent. It is the responsibility of a reviewing court to reach a just result and to maintain a sound and uniform body of precedent, which may sometimes override the considerations of waiver that stem from the adversary character of our system. (Hux v. Raben (1967), 38 Ill. 2d 223, 224-25, 230 N.E.2d 831; see also Schutzenhofer v. Granite City Steel Co. (1982), 93 Ill. 2d 208, 210-11, 443 N.E.2d 563.) All factual matters necessary to sustain the judgment of the trial court and to decide the legal issue are present in the record so that the duty issue can be properly resolved in this court. See Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 502, 520 N.E.2d 37.

The majority has apparently adopted, in large part, the approach of the California Supreme Court in Tarasoff v. Regents of the Univer sity of California (1976), 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14, in determining the duty of a physician to a third-party nonpatient injured by the act of a patient undergoing psychiatric treatment with the physician. We need not examine authority from a foréign jurisdiction, however, as our supreme court, in Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387, has established the duty of a physician in Illinois. The court in Kirk stated that “a plaintiff cannot maintain a medical malpractice action absent a direct physician-patient relationship between the doctor and plaintiff or a special relationship, as present in Renslow, between the patient and the plaintiff.” (Kirk, 117 Ill. 2d at 531, 513 N.E.2d at 399; see also Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 509, 520 N.E.2d 37.) In deciding the scope of the duty of a physician in Illinois, the supreme court considered decisions in other jurisdictions, including cases with holdings similar to the approach used by the majority herein, which focus on whether the victim is a specifically identifiable potential victim, and rejected them. Kirk, 117 Ill. 2d at 531, 513 N.E.2d at 398-99.

Applying the duty analysis set forth in Kirk to the facts of this case, it is clear that plaintiff’s decedent had no direct physician-patient relationship with defendant. Nor is there a special relationship between the patient and the plaintiff’s decedent, as was present in Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250. In Renslow, a child not conceived at the time negligent acts were committed against its mother by a doctor and a hospital’s employees was allowed to bring an action for the negligence directed against its mother. (Renslow, 67 Ill. 2d at 357-58, 367 N.E.2d at 1255.) Although I am not entirely certain whether the Renslow exception to the scope of the duty owed absent a direct physician-patient relationship is sui generis, until our supreme court more fully explains this exception I would limit any expansion of the physician’s duty to third-person nonpatients to a Renslow-type situation.

For the foregoing reasons, I would affirm the circuit court’s granting of summary judgment in favor of defendant.