author: PRESIDING JUSTICE McCULLOUGH

text:
    ROBERT D. WILLIAMS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (U.S. Steel Supply Corporation, Division of U.S. Steel Corporation, Appellee).
    First District (Industrial Commission Division)
    No. 1—91—2954WC
    Opinion filed March 19, 1993.

      Cohn, Lambert, Ryan & Schneider, Ltd., of Chicago (Michael R. Schneider, of counsel), for appellant.
    Gessler, Flynn, Fleischmann, Hughes & Socol, Ltd., and Burke, Burns, Ellison, & Pinelli, both of Chicago, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant Robert D. Williams appeals from an order of the circuit court confirming the finding of the Industrial Commission (Commission) that he failed to prove accidental injuries arising out of his employment under a theory of repetitive trauma. The arbitrator, Herbert Auw, issued his memoranda of decision on November 3, 1988, finding claimant sustained repetitive trauma to his cervical spine while performing his duties as a millwright for respondent and was permanently and totally disabled as of April 23, 1985, and ordering claimant to receive $320 a week for life from respondent. The Commission reversed, finding claimant failed to prove he sustained injuries arising out of and in the course of his employment on April 23, 1985. The circuit court confirmed the Commission’s decision and claimant appeals.

Claimant began working for respondent U.S. Steel Supply Corporation in 1963 and held positions of helper, sheet shear operator and crane operator. Claimant was employed as a crane operator for 9 of the first 10 years he was employed by respondent. As a crane operator, he was required to climb in and out of a crane several times during his shift.

In 1973, claimant began working as a millwright for respondent. His last day of work was April 23,1985.

Claimant testified that part of his job required lifting machine parts that weighed anywhere from 30 to 60 or 70 pounds apiece. He would lift such objects about two times a day and he estimated he would spend approximately 30% of his time on each shift lifting objects of this weight range. He would climb on top of a crane approximately five or six times a day. He would also crawl under certain machinery in order to perform repairs. This crawling would involve lying on his back or stomach and crawling under the machine. He would crawl in such a manner two to three hours per day on a daily or weekly basis. Claimant used 8-, 12-, and 16-pound sledgehammers for two or three hours a day on a daily basis and was required to operate a hydraulic air hammer to break up concrete approximately once every six months.

Claimant utilized various sizes and weights of tools including pipe wrenches, chain saws, sledgehammers and box wrenches. These tools ranged in size from 21k to 24 inches and in weight from 3 or 4 to 15 and 20 pounds. Claimant, who was over six feet tall, testified much of the work he was required to do was in small spaces which caused him to have to contort his body into awkward positions, such as “buckling [my] head,” stooping or bending over. Claimant estimated the spaces in which he was required to work were anywhere from one foot to four feet smaller than he was. Finally, approximately two hours per day would be spent waiting for a job assignment.

He testified that in 1968 he was involved in an automobile accident and suffered a fractured mandible and was out of work for approximately 18 weeks as a result of this accident. In the summer of 1984, he began experiencing charley horses in both of his legs and feet at night after he went to bed. Claimant could not get into a comfortable position to ease the pain. He testified he began making more frequent visits to the health club which helped alleviate this problem. In September or October 1984, claimant began to notice weakness in his right leg after climbing or walking during the day. He continued to visit the health club to gain strength in his legs and ease this weakness and pain. Despite the weakness and pain, claimant continued to work as a millwright and perform all the tasks previously described. Claimant described the weakness in his legs as extending from his thigh all the way through the knee and ending in his calf. In February or March 1985, claimant began having muscle spasms on both sides of his upper back.

Claimant went to Chicago Osteopathic Hospital on April 9, 1985, to seek medical treatment for this weakness and the muscle spasms. The doctors at Chicago Osteopathic told claimant that he should not return to work. Claimant ceased working on April 23,1985.

Claimant was admitted to Chicago Osteopathic Hospital on May 7, 1985, for a series of tests. Claimant was discharged on May 11, 1985, and readmitted on June 17, 1985. On June 24, 1985, claimant was transferred to Rush-Presbyterian-St. Luke’s Hospital by ambulance, where he remained until July 5, 1985. His attending physician, Dr. Walter Whisler, performed surgery on claimant’s neck. Respondent sent claimant to two other doctors, Dr. J. Claro and Dr. David Rozenfeld. Claimant stated he still felt stiffness in his lower back, arms, legs and hands as well as constant pain in his legs, arms, and left shoulder.

On cross-examination, claimant admitted he was suspended from his job for six months in 1983. He clarified the fact that he had a partner who helped him move the office furniture when they were so required. Claimant agreed that he lifted a variety of objects which varied in weight and size and he stated he would not use a sledgehammer regularly and rarely used an air hammer. Claimant admitted there was no single activity he would perform constantly and continually throughout the day.

He testified the first time he notified respondent regarding his condition was upon his first visit to Chicago Osteopathic. Claimant admitted he continued working full days and overtime despite his worsening condition. Finally, claimant admitted he was diagnosed as a diabetic in 1978, recognized he was an alcoholic in 1980 and was in a car accident in 1965 in which he suffered whiplash.

Thomas Gleason testified that from 1980 to 1985 he was the manager of operations for respondent and ran the Chicago district plant. Gleason stated that a millwright was responsible for mechanical repair and preventative maintenance of the equipment at the plant as well as maintenance work on the exterior grounds. Gleason testified there was no particular activity that a millwright would perform on a daily basis. Gleason explained it would be impossible to specify the types and frequency of lifting objects that a millwright would have to do because he believed millwrights were not required to do much lifting. He estimated that less than 5% of a millwright’s time was spent lifting heavy objects. Finally, Gleason testified claimant would not have had to lift an object weighing more than 50 pounds without assistance and that it would be rare for a millwright to use a sledgehammer. Gleason, who was the same height as claimant, testified he had no problems getting in and out of the spaces in which claimant had to work.

The evidence deposition of Dr. Scott A. Kale was taken on August 4, 1988. Dr. Kale was provided with claimant’s medical records from Dr. Claro, Dr. Whisler, as well as those from Chicago Osteopathic Hospital. Dr. Kale opined that claimant suffered from neuromedical' problems related to a C5-C6 herniated disc. Dr. Kale further opined that claimant’s employment activities were associated with his medical problems. Specifically, Dr. Kale explained that in a man of claimant’s age, disease of the neck has one of two origins, congenital or traumatic. Dr. Kale stated that since there was no evidence of congenital disease, the origin of claimant’s disease had to be traumatic. Dr. Kale testified this trauma, which caused claimant’s medical problems, was work trauma resulting from the repetitive heavy lifting, distortions, and manipulations of claimant’s neck. Dr. Kale explained he believed claimant’s herniated disc resulted from repetitive trauma through distortion of his neck over a period of years. Dr. Kale stated the repetitive use of heavy tools, through vibration, twisting and turning, lifting and straining of claimant’s neck, led to the herniated disc.

On cross-examination, Dr. Kale indicated that his opinion as to the origin of claimant’s medical problems would not be changed even though the activities allegedly causing the trauma were not performed on a regular basis. Dr. Kale testified he did not base his opinion on the frequency of those activities but rather the effect they had on claimant’s body. Dr. Kale stated that his opinion as to the origin of claimant’s injury would also not change because of the fact that claimant was in an automobile accident in 1965 in which he suffered a contusion and strain to his neck and chest. Dr. Kale agreed that acute trauma rather than repetitive trauma could cause the type of injury claimant suffered but that the length of time between the auto accident and the appearance of these symptoms was too long for the auto accident to be a cause of claimant’s medical problems.

Respondent offered into evidence the deposition of Dr. John Dwyer. Dr. Dwyer reviewed Dr. Kale’s deposition as well as claimant’s medical and employment records. Dr. Dwyer explained that a peripheral neuropathy is a biochemical disease that affects the nerves and that heavy drinkers and diabetics often experience this disease. Dr. Dwyer indicated the facts that claimant was both an alcoholic and a diabetic was “definitely a possible and probable causative factor” that claimant suffered from a peripheral neuropathy which indicated claimant’s injuries were degenerative in nature rather than the result of repetitive trauma from his employment activities.

Also admitted into evidence were 19 claim forms for sickness and accident benefits. Two of these forms were signed by Dr. Anthony Dekker and indicated claimant’s injury did not arise out of his employment. One claim form was signed by Dr. George Cybulski and indicated it was undetermined whether claimant’s injury arose out of his employment. The remaining claim forms were signed by Dr. Walter Whisler and indicated it was undetermined whether claimant’s injuries arose out of his employment. Dr. Dekker was claimant’s attending physician at Chicago Osteopathic, while Doctors Cybulski and Whisler were claimant’s physicians at Rush-Presbyterian-St. Luke’s Hospital.

Claimant contends he sufficiently established that his physical activities in performing his work duties were repetitive in nature thus sustaining his theory of repetitive trauma. Claimant argues the Commission improperly found there was no evidence of repetitive trauma in his case by concluding his case was different than the type of work performed in Peoria County Belwood Nursing Home v. Industrial Comm’n (1987), 115 Ill. 2d 524, 505 N.E.2d 1026, and its progeny. Claimant admits he did not perform the same task every day but suggests he did perform a limited number of rigorous tasks in awkward positions on a regular cycle over a period of 12 years which involved the lifting and turning of his neck and back. Respondent suggests the claim forms for accident and sickness benefits, the conflicting medical testimony, and claimant’s own testimony support the Commission’s decision.

An employee seeking benefits for gradual injury due to repetitive trauma must meet the same standard of proof as a petitioner alleging a single, definable accident. The petitioner must prove a precise, identifiable date when the accidental injury manifested itself. “Manifested itself” means the date on which both the fact of the injury and the causal relationship of the injury to the petitioner’s employment would have become plainly apparent to a reasonable person. The test of when an injury manifests itself is an objective one, determined from the facts and circumstances of each case. (Three “D” Discount Store v. Industrial Comm’n (1989), 198 Ill. App. 3d 43, 47, 556 N.E.2d 261, 264, appeal denied (1990), 135 Ill. 2d 567.) In cases relying on the repetitive-trauma concept, the claimant generally relies on medical testimony establishing a causal connection between the work performed and claimant’s disability. (Nunn v. Industrial Comm’n (1987), 157 Ill. App. 3d 470, 477, 510 N.E.2d 502, 506.) There must be a showing the injury is work-related and not the result of a normal degenerative aging process. (Peoria Belwood, 115 Ill. 2d at 530, 505 N.E.2d at 1028.) A claimant need only prove that some act or phase of employment was a causative factor of the resulting injury. Three “D”Discount Store, 198 Ill. App. 3d at 49, 556 N.E.2d at 265.

It is the function of the Commission to judge the credibility of witnesses, determine the weight to be given to their testimony, and to draw reasonable inferences from that testimony. (Berry v. Industrial Comm’n (1984), 99 Ill. 2d 401, 406, 459 N.E.2d 963, 966.) The question of causation is one of fact for the Commission, and its determination will not be overturned unless the finding is against the manifest weight of the evidence. (Three “D” Discount Store, 198 Ill. App. 3d at 49, 556 N.E.2d at 265.) Even if one of the medical witnesses was equivocal on the question of causation, it is for the Commission to decide which medical view is to be accepted, and it may attach greater weight to the opinion of the treating physician. (International Vermiculite Co. v. Industrial Comm’n (1979), 77 Ill. 2d 1, 4, 394 N.E.2d 1166, 1168.) A reviewing court may overturn the Commission’s factual determinations only when they are against the manifest weight of the evidence. Anderson Clayton Foods v. Industrial Comm’n (1988), 171 Ill. App. 3d 457, 459, 526 N.E.2d 844, 846.

In Peoria Belwood, claimant’s duties required her to carry bags of laundry each weighing between 25 and 50 pounds. After sorting the laundry in these bags, she would load two 200-pound-capacity washing machines by operating a spring-loaded door into each of three compartments. Claimant performed such a task at least six times a day. The supreme court concluded claimant established an accidental injury under a repetitive-trauma theory. The medical testimony she presented was uncontroverted and her testimony regarding the repetitive nature of her job task was uncontroverted. (Peoria Belwood, 115 Ill. 2d at 530, 505 N.E.2d at 1028.) Similarly, in Three “D” Discount Store, claimant’s job was as a “buffer man,” which required him to use one of two buffing machines. Claimant was required to use the buffing machine to scrub, wax and buff the floors and he worked from six to eight hours a day. The court concluded claimant sustained his burden in proving repetitive trauma where no evidence was presented to rebut his expert’s opinion of causation. (Three “D” Discount Store, 198 Ill. App. 3d at 49, 556 N.E.2d at 265.) Finally, in Oscar Mayer & Co. v. Industrial Comm’n (1988), 176 Ill. App. 3d 607, 531 N.E.2d 174, claimant was employed in a hog slaughtering facility where he was required to perform repeated arm, shoulder and hand movements for 15 years, which was sufficient to establish an injury under a repetitive-trauma theory.

In Perkins Products Co. v. Industrial Comm’n (1942), 379 Ill. 115, 39 N.E.2d 372, the claimant was engaged in packing displays in cartons. In doing her work she would turn and reach back to the supply of displays on the bench behind her, pick up three displays at a time in her hand and bring the same around and place them in the cartons on the table in front of the operator. This movement of her body and arm was repeated in every operation. (Perkins, 379 Ill. at 118, 39 N.E.2d at 373.) In upholding the Commission’s award, the court noted that the claimant’s injury “was directly connected with the manner and method in which she was required to do her work, and to use her arm in the discharge of her duties.” Perkins, 379 Ill. at 120, 39 N.E.2d at 374.

These cases are factually distinguishable from the case before us. In those cases where the courts sustained a theory of repetitive trauma, the claimant in each one conclusively established a repetitive job task. In each case, the claimant performed the same task in a repetitive fashion on a daily basis. Here, claimant admitted there was not a single task he performed regularly or on a daily basis. He stated he could perform a specific task one day and then not do it again for months at a time. Likewise, claimant did not use any particular tool or any object on a daily basis nor did he have to lift any particular object on a daily basis. The Commission’s determination that the nature of claimant’s job does not support a repetitive-trauma theory is not against the manifest weight of the evidence.

Moreover, there was conflicting medical evidence as to the cause of plaintiff’s injury. Claimant’s expert testified it was from his employment activities, while respondent’s expert testified claimant’s injury could be degenerative in nature because of his diabetes and alcoholism. Claimant’s treating physicians did not testify, but the claim forms, for whatever evidentiary value they may have, stated it was either undetermined whether these injuries arose from his employment or that these injuries did not arise from employment. The Commission determined the credibility of witnesses, and it chose to find respondent’s medical expert more credible than claimant’s medical expert. Finally, there was evidence to suggest that other factors, such as the 1965 automobile accident, could have been a cause of claimant’s injury.

Therefore, the Commission’s decision finding that claimant failed to establish accidental injuries arising out of his employment under a theory of repetitive trauma was not against the manifest weight of the evidence.

Affirmed.

RAKOWSKI, WOODWARD, STOUDER, and RARICK, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GORDON

license: Public Domain

text:
    SHERRY ANNE HANKS, a Minor, by her Guardian and Next Best Friend, Citizens National Bank and Trust Company, Plaintiff-Appellant, v. MOUNT PROSPECT PARK DISTRICT et al., Defendants-Appellees (Di Mucci Home Builders, Inc., now d/b/a Radcliffe Development Corporation, et al., Defendants).
    First District (5th Division)
    No. 1—90—1321
    Opinion filed March 19, 1993.

      John M. Falasz, Jr., of Chicago (Kevin C. Rakers, of counsel), for appellant.
    Judge & Knight, Ltd., of Park Ridge (Charles C. Hoppe, Sarah Hansen Sotos, and Lawrence M. Brady, of counsel), for appellees.
   PRESIDING JUSTICE GORDON

delivered the opinion of the court:

In this negligence action, plaintiff appeals from an order of the circuit court granting summary judgment to defendants Mount Prospect Park District and Commonwealth Edison. For the reasons discussed below, we affirm.

On May 27, 1975, plaintiff Sherry Anne Hanks was struck by a car driven by defendant Sam Ursetto. Plaintiff, then five years old, lived with her family in an apartment in Mount Prospect. The apartment was owned and operated by defendants Di Mucci Home Builders, Inc., now d/b/a Radcliffe Development Corporation, and Salvatore and Robert Di Mucci as beneficiaries under trust No. 13906. The accident occurred while Sherry was crossing a private parking lot or driveway, also owned by the Di Mucci defendants, which was located immediately south of the apartment buildings. She had been playing in a playground located south of the parking lot on property owned by defendant, Commonwealth Edison, and leased to defendant, Mount Prospect Park District. According to her mother, Sherry had played in the playground on previous occasions. On this occasion, her mother had called to her from outside their apartment building to come inside, but had gone upstairs without waiting for her daughter and had left Sherry to cross the parking lot and driveway by herself. Sherry’s mother testified in her deposition that Sherry was allowed to cross the parking lot by herself and had been told the correct way to cross.

Subsequently, plaintiff filed a three-count complaint for damages arising from the accident. Count I was directed against the Di Mucci defendants, and count three named the driver, Ursetto, as defendant. These counts are not the subject of this appeal.

Count II named Commonwealth Edison and the Mount Prospect Park District as defendants. In this count, plaintiff alleged that defendants had created a hazardous and unreasonably dangerous condition by locating a playground immediately contiguous to a driveway or parking lot. Plaintiff alleged that defendants were negligent in their failure to place a barrier between the playground and the driveway, failure to provide safe ingress and egress to the playground across the parking lot, failure to provide a crosswalk, failure to warn motorists of the presence of children, failure to regulate traffic by means of signs, barriers, or speed bumps, and failure to prevent cars from parking in such a way as to obstruct the vision of children and motorists.

Commonwealth Edison and the Mount Prospect Park District each moved for summary judgment on count II, pursuant to section 2 — 1005 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005.) Both defendants argued that they had no duty to do any of the acts plaintiff alleged they failed to do and that failure to do those acts was not a proximate cause of plaintiff’s injuries. The park district also argued that it was immune from liability.

In opposition to the motion, plaintiff submitted the affidavit of Michael Janke, a resident of the apartment complex who had witnessed the accident. According to Janke, he had seen vehicles travel-ling through the parking lot at speeds up to 60 miles per hour on previous occasions. He estimated that the car which struck Sherry was travelling about 30 miles per hour.

Plaintiff also submitted the deposition of Alan R. Caskey, a parks and recreation planner. Caskey opined that the defendants failed to provide proper ingress, egress and barriers so that children entering and leaving the playground would have a proper path to cross the parking lot. He testified that barriers should have been installed along the side of the park to prevent children from running through the parked vehicles, and that a properly marked and signed crosswalk should have been installed. Plaintiff also retained a transportation engineer, James Saag. He testified that the parking lot, which was over one-quarter of a mile long, should have been designed with some physical diversion to force drivers to slow their vehicles as they drove through the lot.

Following argument, the trial court granted defendants’ motions for summary judgment. The court rejected as “totally impractical” plaintiff’s suggestion that the playground should have been removed. The court also refused to impose a duty on the park district to erect a fence between the playground and the parking lot, since to do so would put an “impossible burden” on every park district to protect those using the park from injury while crossing a public way or private way. This appeal followed.

Opinion

Summary judgment should be granted only when the pleadings, depositions, affidavits, and admissions on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Schnering v. Midlothian Park District (1991), 219 Ill. App. 3d 664, 579 N.E.2d 908.) In a negligence action, the determination of whether a duty exists is an issue of law to be determined by the court. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387.) Absent the existence of a duty, defendant is entitled to summary judgment. Crutchfield v. Yellow Cab Co. (1989), 189 Ill. App. 3d 1091, 1094, 545 N.E.2d 961 (“[i]f, based upon the pleadings and accompanying affidavits, it appears no duty is owed plaintiff, granting of summary judgment is proper”).

On appeal, plaintiff contends that Commonwealth Edison and the park district owed a duty to children to place their playground in a safe location and to provide a safe means of ingress and egress to the playlot. In support of her position, plaintiff cites Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836, and its progeny, where the Illinois Supreme Court considered the duty of a landowner to remedy conditions on his property which posed a danger to children.

In Kahn, the court abolished the doctrine of attractive nuisance and the distinctions between a child’s status as a trespasser or an invitee, and held that the rules of ordinary negligence are to be applied in cases involving personal injuries to children. (Kahn v. James Burton Co., 5 Ill. 2d at 624 (“the only proper basis for decision in such cases dealing with personal injuries to children are the customary rules of ordinary negligence cases”).) Although generally an owner or one in possession is under no duty to keep his premises in any particular state or condition to promote the safety of trespassers or others who come upon them without invitation, an exception may exist where children are involved. (Kahn v. James Burton Co., 5 Ill. 2d at 625.) When the owner or person in possession or control knows or should know that children frequent the premises and there exists a dangerous condition on the premises, the law will impose a duty to remedy the condition which would not exist under the rules of ordinary negligence. Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 326, 383 N.E.2d 177; see also Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023.

A dangerous condition has been defined as one which is likely to cause injury to children who, by reason of their immaturity, are incapable of appreciating the risk involved. (Corcoran v. Village of Libertyville, 73 Ill. 2d at 326.) An initially innocuous condition, although not in and of itself dangerous, may become so when joined with other nondangerous instrumentalities. (Novak v. C.M.S. Builders & Developers (1980), 83 Ill. App. 3d 761, 763, 404 N.E.2d 918.) When a non-dangerous condition is combined with other nondangerous surroundings to create a dangerous condition, the “burden is on the plaintiff to allege facts which demonstrate that the combination of surroundings creates a risk greater than those to which children are exposed in their everyday lives.” (Old Second National Bank v. Aurora Township (1987), 156 Ill. App. 3d 62, 69, 509 N.E.2d 692.) Moreover, a party who creates a dangerous condition may be held liable for injuries even if he does not own or possess the premises upon which the dangerous condition exists. LaSalle National Bank v. City of Chicago (1985), 132 Ill. App. 3d 607, 613, 478 N.E.2d 417 (defendant “could properly be found to have ‘created’ or contributed to a hazardous condition even though [defendant] did not own the property upon which the dangerous instrumentality was located”); Halloran v. Belt Ry. Co. (1960), 25 Ill. App. 2d 114, 119, 166 N.E.2d 98 (“the rule may be reasonably applied so as to render [defendant] liable for injuries to children, where it is responsible for the creation of the attraction, notwithstanding [defendant] does not own or control the premises on which plaintiff was injured”).

The basis for liability is the foreseeability of injury to the child. (Kahn v. James Burton Co., 5 Ill. 2d at 625.) It is the combination of the owner’s knowledge of the presence of children and the child’s inability to comprehend the risk which makes injury foreseeable, and thus gives rise to a duty to remedy the condition. Cope v. Doe, 102 Ill. 2d at 286.

While the foregoing cases clearly establish that a landowner has a duty to remedy conditions on his property which are dangerous to children, we find them to be inapplicable since there are no allegations here of a dangerous condition on defendants’ land. Plaintiff has not alleged that any condition on the playground itself posed any danger to children, or that any condition on the playground itself combined with any other condition on that playground to create any such danger.

In each case cited by plaintiff to establish that defendants owed a duty to her, there was some dangerous condition on the defendant’s property which the court held defendant had a duty to remedy. (See Kahn v. James Burton Co., 5 Ill. 2d 614 (pile of lumber on defendant’s property); Engel v. Chicago & North Western Transportation Co. (1989), 186 Ill. App. 3d 522, 542 N.E.2d 729 (hole in fence located on defendant’s property); La Salle National Bank v. City of Chicago, 132 Ill. App. 3d 607, 478 N.E.2d 417 (hole in fence on defendant’s property); Hallaran v. Belt Ry. Co., 25 Ill. App. 2d 114, 166 N.E.2d 98 (sandpile on defendant’s property).) As noted above, here there are no allegations of any dangerous condition on defendants’ property. No condition on defendants’ property posed any danger to the plaintiff. Any danger was in the parking lot and driveway, and no condition on defendants’ property increased that danger. Thus, plaintiff’s reliance on the above cases, which considered defendants’ duty to remedy a condition on their property which posed a danger to children, is misplaced.

We turn, therefore, to plaintiff’s contention that defendants owed a duty to provide a safe means of ingress and egress to the playground.

A landowner has a duty to provide a safe means of ingress and egress to his premises for his invitees. (See, e.g., Mooney v. Etheridge (1978), 65 Ill. App. 3d 847, 382 N.E.2d 826; Decker v. Polk Brothers (1976), 43 Ill. App. 3d 563, 357 N.E.2d 599; McDonald v. Frontier Lanes, Inc. (1971), 1 Ill. App. 3d 345, 272 N.E.2d 369.) Within limits, that duty may extend beyond the precise boundaries of the landowner’s property. (McDonald v. Frontier Lanes, Inc., 1 Ill. App. 3d at 351 (defendant found liable where plaintiff was injured when she fell into a hole in a parkway owned by the city, where evidence showed defendant had assumed use and control of public sidewalk for customer parking and had blocked it for normal use by plaintiff and other patrons, stating “within limitations dictated by the facts of the case” duty may extend “beyond the precise boundaries of such premises”).) Where, however, the landowner has exercised no control over the adjacent property, he -will not be held liable for injuries which occur on adjacent property. (Compare Decker v. Polk Brothers, 43 Ill. App. 3d at 566 (no liability for defendant storeowner where plaintiff was injured when she fell on a public sidewalk abutting defendant’s property, where sidewalk was “owned, controlled, and maintained by the City of Chicago”), with McDonald v. Frontier Lanes, Inc., 1 Ill. App. 3d 345, 272 N.E.2d 369.) Moreover, liability will not be imposed where the injury is not caused by a physical defect in the adjacent property, but rather is the result of an independent factor. Laufenberg v. Golab (1982), 108 Ill. App. 3d 133, 438 N.E.2d 1238 (no legal duty where plaintiff was injured when hit by automobile while crossing public street which ran through defendant’s property).

Here the defendants did not own the parking lot or driveway adjacent to their playground. They were owned by the Di Muccis. There are no allegations that either Commonwealth Edison or the park district ever exercised any control over the Di Muccis’ property. In addition, the injury here clearly was not caused by a physical defect in the parking lot or the driveway, but instead was caused by an independent factor, the defendant Ursetto.

As our supreme court explained in Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 52-53, 566 N.E.2d 1365, where it held that a landowner had no duty to maintain his property in such a way as to prevent injury on an adjacent roadway:

“In this case, plaintiff is seeking to impose a duty on defendant to maintain his property so as to guard against an injury occurring off defendant’s land. Yet, the condition on defendant’s land posed no danger to plaintiff, absent the driver’s violating his own standard of care. Thus imposition of a duty here would require defendant to ‘guard against the negligence of others.’ This is a considerably higher burden than guarding against dangers created solely by conditions on his land.”

Furthermore, we agree with the trial court that to impose a duty on defendants here to either erect a fence between the playground and the parking lot or to otherwise take steps to protect plaintiff from injury on the adjacent property which defendants neither owned nor controlled would place an intolerable burden on every municipality or park district to protect children from traffic injuries. Virtually every park or playground is located adjacent to some sort of public or private thoroughfare. Under plaintiff’s theory, access to every park or playground, whether located next to a private road, a quiet suburban street or an expressway, would have to be restricted, or the entire park relocated to be free of liability in the event of a child being struck by an automobile on the adjacent roadway. Cf Foreman v. Consolidated R. Corp. (1991), 214 Ill. App. 3d 700, 574 N.E.2d 178 (where the court held it would be intolerable to impose a duty on the city to erect fences on all land adjacent to railroad property); Adams v. Brookwood Country Club (1958), 16 Ill. App. 2d 263, 148 N.E.2d 39 (where the court held that it would be an “oppressive and unbearable burden” to require owners of land adjacent to rivers and creeks to construct fences to protect children); Ellison v. Commonwealth Edison Co. (1953), 351 Ill. App. 58, 113 N.E.2d 471 (where court found it would be an intolerable burden to require owners of land adjacent to water to build walls capable of keeping children away from the water).

In light of our holding that defendants owed no duty to plaintiff here, we need not address Commonwealth Edison’s additional argument that it has no liability for the condition of the property which it leased to the park district (see Wright v. Mr. Quick, Inc. (1985), 109 Ill. 2d 236, 486 N.E.2d 908), or the park district’s argument that as a municipality, it has no duty to make any improvements to its property. (See Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 495 N.E.2d 1259.) We also need not discuss the park district’s contention that it is immune from liability, either under statute or common law, notwithstanding its purchase of insurance. See Bainter v. Chalmers Township (1990), 198 Ill. App. 3d 540, 555 N.E.2d 1195; Ill. Rev. Stat. 1965, ch. 85, par. 9—103(b).

Accordingly, for the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

MURRAY and McNULTY, JJ., concur.


author: JUSTICE CAMPBELL

text:
    MATTHEW M. LITVAK, Plaintiff-Appellant, v. 155 HARBOR DRIVE CONDOMINIUM ASSOCIATION, INC., et al., Defendants-Appellees.
    irst District (1st Division)
    No. 1—91—2121
    Opinion filed March 22, 1993.
    Rehearing denied May 25, 1993.

      Matthew M. Litvak, of Chicago, appellant pro se.

    Gottlieb & Schwartz, of Chicago (David Sugar, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff Matthew Litvak, a unit owner in defendant 155 Harbor Drive Condominium Association (Association), filed suit against the Association and defendant Monroe Roth, the president of the Association’s board of directors (Board), alleging that defendants had acted improperly in adopting a budget and authorizing certain expenditures for 1991. The circuit court of Cook County granted summary judgment in favor of defendants. Plaintiff now appeals.

The record on appeal indicates the following facts. The Association is located in a 742-unit high-rise building. The Association is governed by a declaration of condominium ownership (Declaration). The Declaration provides, in relevant part:

“Except as otherwise provided in this Declaration, the Common Elements shall consist of all portions of the Property except the Units. *** [T]he Common Elements shall include the *** recreation rooms, and other amenity areas, *** storage areas, management offices, *** all structural parts of the Building, pipes, ducts, flues, chutes, conduits, wires and other utility installations to the outlets, and such component parts of walls, floors and ceilings as are not located within the Units ***. * * *
Subject to the provisions of Article XII hereof, the Board shall have the following general powers: * * *
(b) The Board’s powers hereinafter enumerated shall be limited in that the Board shall have no authority to acquire and pay for out of the maintenance fund any structural alterations, capital additions to, or capital improvements of the Common Elements (other than for purposes of replacing or restoring portions of the Common Elements, subject to all the provisions of this Declaration) requiring an expenditure in excess of One Hundred Dollars ($100) multiplied by the number of Units in the Building, without in each case the prior approval of the Voting Members holding two thirds (2/3) of the total votes. * * *
(k) *** [T]he Board for the benefit of all the Owners shall acquire and pay for out of the maintenance funds hereinafter provided for, the following: * * *
(3) Painting, cleaning, outside window washing, tuckpointing, maintenance, decorating, repair and replacement of the Common Elements *** and such furnishings and equipment for the Common Elements as the Board shall determine are necessary and proper.”

On September 18, 1990, the Board adopted a resolution authorizing the expenditure of $251,860 of Association funds for the replacement of the building’s roof. On November 20, 1990, the Board adopted a resolution accepting and approving as amended the Association’s 1991 estimated operating budget. The record contains a letter dated November 26, 1990, from the Association treasurer summarizing this budget. The Association caused copies of the 1991 budget to be mailed to the unit owners the next day. On December 18, 1990, the Board adopted resolutions authorizing the expenditure of approximately $125,000 of Association funds for the renovation of the Association’s health club area and approximately $107,245 for the redecoration of one of the Association’s function rooms.

On January 11, 1991, plaintiff filed suit against defendants. Plaintiff subsequently amended and supplemented the complaint to include seven counts seeking declaratory and injunctive relief. Counts I and II alleged that defendants violated the Declaration by authorizing the renovation of the health club without a two-thirds vote of unit owners. Counts III and IV alleged that defendants violated the Declaration by authorizing the roof replacement without a two-thirds vote of unit owners. Counts V and VI alleged that defendants violated the Declaration by authorizing the redecoration of the function room without a two-thirds vote of unit owners. Count VII alleged that defendants violated the Illinois Condominium Property Act (Ill. Rev. Stat. 1989, ch. 30, pars. 301 through 331) (the Act) by not sending out copies of the 1991 budget to unit owners until after it had been accepted and approved by the Board.

On April 25, 1991, defendants moved for summary judgment and submitted the supporting affidavit of Cindy Boyd, the Association’s property manager. The Boyd affidavit contained a breakdown of the challenged expenditures. Defendants contended that the Boyd affidavit showed that less than $74,200 (742 units X $100) of each challenged expenditure were nonreplacement or nonrepair costs. The Boyd affidavit also noted that the Board had “approved” rather than “adopted” the 1991 budget and that copies of the budget were mailed more than 30 days before the commencement of the fiscal year covered by the 1991 budget. The Boyd affidavit also indicated that there had been no attempt by any unit owner to “recall” the budget under section 18(a)(8)(ii) of the Act (Ill. Rev. Stat. 1989, ch. 30, par. 318(aX8Xü)).

On May 7, 1991, plaintiff filed a response to defendant’s motion. Plaintiff submitted three affidavits of his own. The same day, plaintiff filed his own motion for summary judgment, but never noticed it for hearing or presented it to the trial court. On May 23, 1991, plaintiff moved to strike the Boyd affidavit; the trial court denied the motion.

On May 31, 1991, following a hearing on the matter, the trial court granted defendants’ motion for summary judgment. Plaintiff filed a timely notice of appeal to this court.

I

Plaintiff claims that the expenditures challenged in counts I through VI violate the Association Declaration. As quoted above and given that the Association has 742 units, section 5.07(b) requires a two-thirds vote of the entire membership to approve expenditures for capital additions and capital improvements in excess of $74,200 unless those expenditures are for the purpose of replacing or restoring portions of the common elements. In order to determine whether section 5.07(b) requires a membership vote appears to require definition of certain terms therein.

Capital improvements are generally defined as “ ‘betterments of a long lasting nature which add to the capital value of the property.’ ” (Emphasis omitted.) (In re Marriage of Aird (1988), 175 Ill. App. 3d 870, 873, 530 N.E.2d 556, 558, quoting Finn v. McNeil (1987), 23 Mass. App. Ct. 367, 372-73, 502 N.E.2d 557, 561-62.) Capital improvements may include “rewiring ***, new light fixtures, new screens, new locks, new fence and other similar items.” (Craven v. Craven (1950), 407 Ill. 252, 262-63, 95 N.E.2d 489, 495, quoted in Aird, 175 Ill. App. 3d at 872, 530 N.E.2d at 558.) They may also include roof and gutter replacement. (Aird, 175 Ill. App. 3d at 873, 530 N.E.2d at 558.) However, when construing the phrase “construction of an improvement to real property,” this court has distinguished improvement from “mere repair or replacement.” (Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, 613, 483 N.E.2d 613, 616.) This court has also indicated that painting and carpeting are not capital improvements because “they are performed solely for ordinary maintenance or cosmetic reasons.” Aird, 175 Ill. App. 3d at 873, 530 N.E.2d at 558.

Defendants argue that section 5.07(b) allows the Board discretion to approve capital improvements or additions in excess of $74,200 without a membership vote, so long as the portion of said expenditures that are not for the purpose of replacing or restoring the common elements is less than $74,200. Assuming arguendo that defendants are correct, the phrase “replacing or restoring” must be defined. Generally, to “replace” is:

“To place again, to restore to a former condition. Illinois Cent. R. Co. v. Franklin County, 387 Ill. 301, 56 N.E.2d 775, 779. Term, given its plain, ordinary meaning, means to supplant with substitute or equivalent. Olenick v. Government Employees Ins. Co., 42 A.D.2d 760, 346 N.Y.S.2d 320, 321. To take the place of.” (Black’s Law Dictionary 1168 (5th ed. 1979).)

These definitions suggest that the “replacing or restoring” exception to the limitation on the Board’s ability to approve expenditures for capital improvements contemplates that the “replacement” of common elements will not result in an improvement over the original quality of such elements when initially acquired.

This interpretation accords with the Historical and Practice Notes to the Act:

“A well recognized distinction found in many declarations exists between (i) maintenance of current facilities through operating expenses and expenditures for repairs and replacement and (ii) capital expenditures which involve expansion or putting in better quality facilities than existed previously.” (Ill. Ann. Stat., ch. 30, par. 318.4, Historical & Practice Notes, at 251-52 (Smith-Hurd Supp. 1992).)

Defendants argue that the Historical and Practice Notes do not warrant discussion because they are not binding on this court. Though not binding on this court, both the supreme court and this court have referred to such notes in other contexts on numerous occasions. (E.g., Stevenson v. Hawthorne Elementary School, East St. Louis School District No. 189 (1991), 144 Ill. 2d 294, 303, 579 N.E.2d 852, 856; Chapman v. United Insurance Co. of America (1992), 234 Ill. App. 3d 968, 971-72, 602 N.E.2d 45, 47.) We consider them persuasive in this context also.

II

Given this interpretive framework, we turn to address whether summary judgment was proper in this case. Summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ((Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c); Alp v. Edgewood Valley Community Association (1987), 154 Ill. App. 3d 482, 484, 507 N.E.2d 19, 21.) Nevertheless, because summary judgment is a drastic method of terminating litigation, the movant’s entitlement must be free from doubt. Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 233, 564 N.E.2d 778, 780.

In this case, the parties argued extensively about the definition of a capital improvement or addition. However, the record does not indicate that the parties or the trial court discussed, let alone agreed upon, any definition of “replacement.” Instead, the parties would often allege in conclusory terms that a given expenditure was or was not for the purposes of repair or replacement. The Boyd affidavit contains nothing that indicates that the affiant applied the definition of “replacement” discussed above or that the affiant is better qualified by her position as property manager to apply the definition than plaintiff.

Of course, the determination of whether an expenditure is made for the purposes of replacement would ultimately be made by the trial court. However, the record is largely devoid of any evidence (other than conflicting and conclusory lay testimony) to which the trial court could have applied this definition regarding many of the challenged items. The proper characterization of all of the challenged costs is necessary to the disposition of this case. Accordingly, there appears to be a material question of fact as to whether the challenged expenditures required a membership vote under the terms of the Declaration.

Nevertheless, this court may affirm summary judgment for any reason appearing in the record, regardless of whether the reasoning of the trial court was correct. Consequently, our uncertainty over whether the proper definition of “replacement” was used in this case does not extend to the grant of summary judgment regarding the roof replacement. The Boyd affidavit states that the old roof is being replaced with a virtually identical roof. Plaintiff argues that the old roof did not need to be replaced completely. However, whether the roof needed to be replaced completely is a question outside the allegation that the Board violated the Declaration. Rather, it is a question of whether the Board members violated their fiduciary duties to plaintiff. Plaintiff did not allege breach of fiduciary duty as to this project in his complaint, thus waiving the claim on appeal.

In sum, we affirm summary judgment as to counts III and IV of plaintiff’s complaint regarding the roof replacement project. We also reverse summary judgment on counts I, II, V and VI and remand these counts for further proceedings consistent with this opinion.

III

Finally, plaintiff contends that the trial court erred in granting summary judgment to defendants on count VII of his complaint, which alleges that defendants’ budget process violated the Act. Section 18 of the Act provides in relevant part as follows:

“§18. Contents of bylaws. The bylaws shall provide for at least the following: (а) *** * * *
(б) that each unit owner shall receive, at least 30 days prior to the adoption thereof by the board of managers, a copy of the proposed annual budget ***; * * *
(8)(i) that each unit owner shall receive notice, in the same manner as is provided in this Act for membership meetings, of any meeting of the board of managers concerning the adoption of the proposed annual budget or any increase, or establishment of an assessment ***; * * * * * * * * *
(6) that written notice of any membership meeting shall be mailed or delivered giving members no less than 10 and no more than 30 days notice of the time, place and purpose of such meeting[.]” (Ill. Rev. Stat. 1989, ch. 30, pars. 318(a)(6),(a)(8)(i),(b)(6).)

A condominium board of managers’ proper exercise of its fiduciary duties requires strict compliance with these bylaws. Wolinsky v. Kadison (1983), 114 Ill. App. 3d 527, 534, 449 N.E.2d 151,157.

In this case, the Board adopted a resolution accepting and approving as amended the Association’s 1991 estimated operating budget on November 20, 1990. The record contains a letter dated November 26, 1990, from the Association treasurer summarizing this budget. The Association caused copies of the 1991 budget to be mailed to the unit owners the next day. In one of his affidavits, plaintiff states that he received no notice of the proposed 1991 budget and observed notice of a meeting to discuss the 1991 budget posted in the common hallways of the building four days prior to the November 20, 1990, meeting. In another affidavit, plaintiff states that if Board member Robert Keegan were called as a witness, he would testify that there has not been any action or discussion regarding the 1991 budget since November 20, 1990. The record does not appear to indicate that defendants moved to strike plaintiff’s affidavits.

The trial court determined that the procedure followed in this case fulfilled the purpose of the Act because it gave unit owners at least 30 days’ notice of any assessment increases and afforded unit owners an opportunity to “recall” a budget under section 18(a)(8Xii) of the Act (Ill. Rev. Stat. 1989, ch. 30, par. 318(aX8Xii))- This rationale, however, does not address the question of whether such notice should be given before the Board takes action or afterwards. Moreover, section 18(aX8Xü) of the Act provides only for “recall” of “adopted” budgets where assessments are increased more than 15% above the previous year’s level. (See Ill. Rev. Stat. 1989, ch. 30, par. 318(aX8Xü).) The record indicates that assessments were not increased by an amount that would permit plaintiff to petition for a “recall” of the budget. However, section 18(aX6) and section 18(aX8Xi) both refer to “proposed annual budget[s].” (See Ill. Rev. Stat. 1989, ch. 30, pars. 318(aX6),(aX8Xi)-) Thus, it appears that sections 18(aX6) and 18(aX8Xi) apply to situations that section 18(aX8Xh) does not address.

Furthermore, the record is devoid of any determination that the November 20, 1990, Board meeting was not a meeting “concerning the adoption of the proposed annual budget” within the meaning of the Act. (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 30, par. 318(aX8Xi).) Finally, despite defendants’ contention that any violation of the Act was “hypertechnical,” there was no determination as to whether the procedure here strictly complied with the bylaws so as to fulfill defendants’ fiduciary duties to the unit owners. Accordingly, we cannot conclude that summary judgment regarding this claim was free from doubt.

For all of the aforementioned reasons, we affirm the May 31, 1991, order of the circuit court regarding counts III and IV of plaintiff’s complaint, but reverse and remand the remaining counts for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

MANNING, P.J., and O’CONNOR, J., concur.


author: JUSTICE GREIMAN

text:
    JUANA MARIA SUAREZ, Indiv. and as Special Adm’r of the Estate of Antonio Suarez, Deceased, Plaintiff-Appellant, v. RO-MAR TERMINAL WAREHOUSE COMPANY, INC., et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—91—3338
    Opinion filed March 24, 1993.
    Rehearing denied May 3, 1993.
    Donna Del Principe, of Kane, Obbish, Propes & Garippo, of Chicago, for appellant.

      Sandra Young and John P. O’Malley, both of Purcell & Wardrope, Chartered, of Chicago, for appellees.
   JUSTICE GREIMAN

delivered the opinion of the court:

Plaintiff Juana Suarez appeals the trial court’s dismissal with prejudice of defendant Ro-Mar Terminal Warehouse Co., Inc. (RoMar), pursuant to a motion under section 2—619(a)(9) (Ill. Rev. Stat. 1991, ch. 110, par. 2—619(a)(9)).

The trial court dismissed Ro-Mar because its alleged agent, Leonel Garcia, had been previously dismissed by reason of Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)) for failure to exercise due diligence in obtaining service upon Garcia.

Plaintiff acknowledges that under the doctrine of Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217, and its progeny Mayoral v. Williams (1991), 219 Ill. App. 3d 365, 579 N.E.2d 1196, Stroud v. News Group Chicago, Inc. (1991), 215 Ill. App. 3d 1006, 576 N.E.2d 152, Martin v. Yellow Cab Co. (1990), 208 Ill. App. 3d 572, 567 N.E.2d 461, and Williams v. Bolsten (1989), 184 Ill. App. 3d 832, 540 N.E.2d 966, dismissal of an employee or agent on a Supreme Court Rule 103(b) motion is a finding against the employee or agent on the merits, and under the doctrine of respondeat superior, if the agent is not liable, the principal cannot be held liable for the acts of the agent.

However, because of the difficulty plaintiff experienced in determining the parties to be joined as defendants, her complaint alleged that the motor vehicle owned by Ro-Mar was operated by defendant’s “authorized agent, Leonel Garcia, and/or John Doe.”

Plaintiff contends that the findings on the merits against Leonel Garcia are findings on the merits affecting Ro-Mar only as to derivative liability which relates to or is imposed by reason of the acts of Leonel Garcia and since plaintiff has made an allegation against “John Doe,” no such finding on the merits attaches to Ro-Mar for liability caused derivatively by someone other than Garcia.

We agree with plaintiff, but must take great care to distinguish this case from the Towns doctrine, which we readily acknowledge is the rule enunciated by our supreme court and rigorously followed by subsequent courts of review. We have no intention to impair or encroach upon the validity or vitality of Towns.

At approximately 12:20 a.m. on May 28, 1987, at the corner of Blue Island and Damen Streets, plaintiff’s decedent was walking when he was struck by a semi-tractor trailer truck which left the scene of the accident. Two years later, decedent died, allegedly because of the injuries sustained. A witness described the truck as having a red eagle on its side. Another witness, unidentified, gave police the license number of the truck: R22046. Defendant American President Lines (American) owns a truck trailer bearing that license number and its logo of a red eagle.

American operates a shipping hub at the Chicago and North Western railyard in the 1600 block of South Western Avenue, approximately two blocks from where decedent was struck. At this railyard, a container (box) is loaded and unloaded onto a chassis, which together are what we commonly refer to as a trailer. The trailer is pulled by another vehicle. At the time of the accident, American had hired approximately 100 independent trucking companies to move its containers from the yard. When a container is moved from the yard, an interchange receipt is filled out.

At approximately noon on May 28, 1987, Leonel Garcia, a driver for Ro-Mar, picked up one of American’s trailers from the railyard and moved it to a nearby railyard. American’s records show that the trailer that Garcia towed 12 hours after the accident had the same license plate number as the trailer spotted by the unidentified witness at the time of the incident: R22046.

Plaintiff alleged in her complaint:

“On or about May 28, 1987, the motor vehicle operated by the defendants’ agent [LEONEL] GARCIA and/or JOHN DOE, came into contact with the body and person of the plaintiff’s decedent *** and at the above time and place, the defendants Ro-Mar *** by [its] authorized agent [LEONEL] GARCIA and/or JOHN DOE, were negligent ***.”

The trial court determined that Leonel Garcia had been properly dismissed under Supreme Court Rule 103(b) and, thus, dismissed defendant Ro-Mar based upon the theory that dismissal of an agent requires dismissal of the defendant. (Towns, 73 Ill. 2d 113; Martin, 208 Ill. App. 3d 572.) However, the trial court did not address the issue of whether “John Doe” could be an agent for the purposes of finding Ro-Mar responsible.

Plaintiff attempts to designate a fictitious party, “John Doe,” although it is clear that absent an authorizing statute, a fictitious party cannot be designated as an appropriate party. Hailey v. Interstate Machinery Co. (1984), 121 Ill. App. 3d 237, 238, 459 N.E.2d 346 (provided that joinder of a “John Doe” did not toll the statute of limitations).

However, it is not because “John Doe” is a party that we believe the trial court erred, but rather because there is no requirement that the agent be joined in an action against the principal, and reference to an agent who is “John Doe” merely expresses a liability imposed upon the principal because of the actions of an unidentified and unjoined agent. See McCottrell v. City of Chicago (1985), 135 Ill. App. 3d 517, 519, 481 N.E.2d 1058 (which held that a plaintiff need not name each employee of a defendant corporation to prevail against the company and may sue either master or servant or both for they are jointly and severally liable); Lasko v. Meier (1946), 394 Ill. 71, 67 N.E.2d 162; Barth v. Board of Education (1986), 141 Ill. App. 3d 266, 490 N.E.2d 77; Holda v. County of Kane (1980), 88 Ill. App. 3d 522, 410 N.E.2d 552.

We reject plaintiff’s initial argument that section 2 — 413 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 413) provides a format for joining unknown parties. That section provides that where there are interested parties whose names are unknown, it is appropriate to make them parties “by the name and description of unknown owners, or unknown heirs or legatees.” This section relates primarily to “unknown owners” in an in rem proceeding (Ashton v. Macqueen (1935), 361 Ill. 132, 197 N.E. 561; Chandler v. Ward (1900), 188 Ill. 322, 58 N.E. 919; Uptown Federal Savings & Loan Association v. Vasavid (1981), 94 Ill. App. 3d 531, 418 N.E.2d 831; Sterling Savings & Loan Association v. Giampa (1971), 2 Ill. App. 3d 303, 276 N.E.2d 142) or to “unknown heirs and legatees” (Mortimore v. Bashore (1925), 317 Ill. 535, 148 N.E. 316; Burton v. Perry (1893), 146 Ill. 71, 34 N.E. 60; Kirkham v. Justice (1855), 17 Ill. 107).

Further, commentary to the statute makes clear that it was intended only for those limited purposes and not meant to allow all plaintiffs such broad standards for maintaining an action against an unknown party. Ill. Ann. Stat., ch. 110, par. 2—413, Historical & Practice Notes, at 515 (Smith-Hurd 1983).

Plaintiff’s complaint discloses that Ro-Mar is merely one of several defendants that have been joined in plaintiff’s action. When one considers that the terminal premises were owned by one entity and operated by another; that admittedly more than 100 trucking companies were used to haul in and out of the terminal; that often the trailer might be the property of one company and the truck another; and that the truck might be rented with the driver or without, it is clear that the complexities in sorting out the parties are enormous for the plaintiff.

It is interesting to note that during the pendency of this action in the trial court, the General Assembly amended section 2 — 402 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—402), which provides for respondents in discovery in all civil actions so that plaintiffs hereafter have a reasonable process to determine the identity of defendants in cases such as this.

In fashioning an appropriate remedy, we remand this cause to the trial court and direct that an order be entered which provides that Ro-Mar may not hereafter be held liable for the acts of its agent and servant Leonel Garcia by reason of his dismissal under Supreme Court Rule 103(b), and that a summary determination of this issue be entered in that regard, pursuant to section 2 — 1005(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2—1005(d)).

Upon a proper showing and proper evidence, Ro-Mar could be held liable for the actions of any other agent or servant who drove one of its trucks and was responsible for the injuries of the plaintiff.

There may be justifiable concern that practitioners will automatically or routinely add “and/or John Doe” to their complaints in order to escape the onus of Supreme Court Rules 103(b) and 273. The trial court should have the power to examine each factual situation to ensure that the allegation was made in good faith. If it finds that the alternative designation of the agent is not in good faith, it may resort to sanctions under Supreme Court Rule 137 or may dismiss the principal under Town or both.

Therefore, for the foregoing reasons and with directions to the trial court, we reverse and remand.

Reversed and remanded.

TULLY, P.J., and CERDA, J., concur.


author: JUSTICE HARTMAN

text:
    EARL RAY, Plaintiff-Appellee, v. THE DEPARTMENT OF EMPLOYMENT SECURITY BOARD OF REVIEW et al., Defendants-Appellants (Chicago Etching, Defendant).
    First District (2nd Division)
    No. 1—91—1580
    Opinion filed March 23, 1993.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Claudia E. Sainsot, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Legal Assistance Foundation of Chicago, of Chicago (Timothy Huizenga and Tammy J. Lenzy, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff Earl Ray filed a complaint to obtain administrative review of a decision of the Board of Review of the Department of Employment Security (board) that he was ineligible to receive unemployment benefits because he was discharged for misconduct, i.e., misappropriating his employer’s property. The circuit court of Cook County found that the board erred and reversed. The board appeals from that decision.

Plaintiff was employed in the maintenance department of Chicago Etching from November 1986 until he was terminated on August 18, 1989. His application for unemployment benefits was allowed by the claims adjudicator. Chicago Etching then appealed and a hearing was conducted before a hearing referee on November 13,1989.

At the hearing, Don Adams testified that he was a Wells Fargo employee working in an undercover capacity at Chicago Etching from June 12, 1989 to August 4, 1989. According to Adams, he posed as a trainee under plaintiff and observed plaintiff taking property from Chicago Etching on eight occasions, specifically June 20, 22, 23 and 27 and July 10, 13, 26 and 27, 1989. Adams testified that plaintiff picked up items in the maintenance department after his supervisor left. When asked what he observed plaintiff taking on these occasions, Adams responded:

“I have listed here screws, nuts and bolts. Spray paint uh, there was one can of uh, material that was used to stop pipes from sweating. He picked that up. There was also a report of a battery from a car, which Mr. Ray told me that he had picked himself.”

Adams added that plaintiff would place the items in his locker before the employees changed their clothes. Plaintiff would subsequently remove the items from his locker and walk out carrying them.

Adams testified that nuts and bolts were taken on June 20, 22 and 27, 1989. He further testified that the first time plaintiff took items from his employer in Adams’ presence, he told Adams to take anything that he wanted.

Laura Jeziorski, an employee of Wells Fargo, testified that she supervised Adams in his undercover investigation at Chicago Etching and that he reported to her over the telephone almost every day. Further, she reviewed his written reports. Jeziorski testified that Wells Fargo policy directed its investigator to refrain from questioning the actions of employees during the course of an investigation. Further, Wells Fargo requests that the employer refrain from intervening during the course of an investigation.

Bert Johanson, personnel manager for Chicago Etching, testified that no criminal or civil charges were filed against plaintiff.

Plaintiff testified that he never stole anything from his employer and that he was unaware of any theft or pilfering problems at Chicago Etching. In addition, plaintiff stated that he did not recall any memorandum or bulletin from the company concerning pilfering.

Plaintiff first learned that he was accused of theft when he was discharged. Plaintiff admitted that he borrowed a battery when his car would not start, but he asserted that his boss told him to take it and keep it until he bought a new battery. Plaintiff further testified that a different supervisor told him to take a gallon of floor soap.

The referee found that plaintiff was ineligible for benefits because plaintiff was discharged for misconduct. He found that the employer was experiencing a series of thefts and that Adams witnessed defendant committing eight separate acts of theft and further found that Adams described plaintiff’s actions in removing the property and the specific property removed on each occasion. The referee concluded that plaintiff misappropriated his employer’s property in violation of a reasonable rule or policy of his employer. The referee’s decision was affirmed by the board.

The circuit court reversed the determination of the board. Specifically, the court found that the employer failed to demonstrate that it had a policy against lending and the evidence further failed to establish that the employer was harmed.

The duty of the reviewing court on administrative review is to determine whether the findings and decision of the agency are against the manifest weight of the evidence. (Sheff v. Board of Review (1984), 128 Ill. App. 3d 347, 470 N.E.2d 1044.) Further, factual findings and conclusions are held to be prima facie true and correct. (Ill. Rev. Stat. 1989, ch. 110, par. 3-110 (now 735 ILCS 5/3-110 (West 1992)).) However, “the same deference is not accorded with respect to legal questions such as the erroneous construction of a statute.” London v. Department of Employment Security (1988), 177 Ill. App. 3d 276, 279, 532 N.E.2d 294.

Thus, we must determine if the evidence justified the circuit court’s reversal of the board’s determination that plaintiff was discharged for misconduct.

In the instant case, the board found that plaintiff was ineligible for unemployment compensation based upon the finding that he was discharged for misconduct. Section 602(A) of the Unemployment Insurance Act (Act) defines misconduct as:

“the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual’s behavior in performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit.” (Ill. Rev. Stat. 1989, ch. 48, par. 432(A) (now 820 ILCS 405/602(A) (West 1992)).)

Further, the Act is to be liberally interpreted in order to protect individuals from severe economic insecurity arising from involuntary unemployment. Lipman v. Board of Review of the Department of Labor (1984), 123 Ill. App. 3d 176, 462 N.E.2d 798.

The statute requires that the disqualifying misconduct be in violation of a reasonable rule or policy of the employer. Further, there is no mandate in section 602(A) that such misconduct be in violation of a written rule. While there was no direct evidence that the company had an express policy prohibiting employees from taking company property for permanent personal use without permission, we find that any employer would obviously have such a policy unless a contrary policy is clearly presented. (See Meeks v. Department of Employment Security (1990), 208 Ill. App. 3d 579, 567 N.E.2d 481.) Implicit in the employment relationship is the understanding that employees do not steal from employers. Plaintiff’s claim that his employer had no policy against taking items without permission is further belied by plaintiff’s testimony that he could take items with permission and the fact that the employer had hired a Wells Fargo investigator, who reported that items were taken by plaintiff. In addition, plaintiff’s actions in taking the items after his supervisor left the department, placing them in his locker until the end of the work day and then taking them with him reveal that plaintiff's actions in taking his employer’s property were deliberate and further support plaintiff’s knowledge of a policy against taking company property for personal use.

It must also be established that the employer was harmed by plaintiff’s conduct. Plaintiff’s actions in taking these items and in telling Adams that he could take anything he wanted clearly affect the employer’s inventory of materials and costs. Thus, the determination of the circuit court was manifestly erroneous.

Based upon the preceding, the judgment of the circuit court is reversed.

Reversed.

McCORMICK, P.J., and SCARIANO, J., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRADLEY PHILLIPS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—1513
    Opinion filed March 26, 1993.
    Rita A. Fry, Public Defender, of Chicago (Henry L. Hams, Assistant Public Defender, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Barbara Jones, and Brian Holmes, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant, Bradley Phillips, was convicted of first degree murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1) and attempted armed robbery (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4, 18 — 2) in a jury trial and sentenced to an extended term of 60 years’ imprisonment to run consecutively with a term of 15 years’ imprisonment. On appeal, defendant contends that (1) the prosecutor committed reversible error when he misstated the law during closing arguments; (2) he received ineffective assistance of counsel; (3) the trial court erred when it failed to appoint counsel to argue his pro se post-trial motion alleging ineffective assistance of counsel; and (4) his sentence is excessive and should be vacated or reduced. We affirm the judgments of conviction of first degree murder and attempted armed robbery, and remand for re-sentencing.

The victim, Kenneth Hardy, was approached by defendant and Andre Collins near his home in Chicago, Illinois. Defendant demanded money from Hardy. Hardy resisted. Defendant then shot Hardy once in the chest at close range. Hardy died shortly thereafter. Defendant and Collins were subsequently arrested and charged with murder and armed robbery. Collins pled guilty to attempted armed robbery and agreed to testify against defendant at trial.

Defendant first contends that the prosecutor committed reversible error when he misstated the law during closing arguments. In his closing remarks to the jury, the prosecutor stated:

“As you sit there now, do you have any doubt whatsoever that one of those three individuals killed Kenneth Hardy? And second, this is the second thing we need to prove, that when [defendant] did so, *** he was attempting to commit the offense of armed robbery. Do you have any doubt? Forget this reasonable doubt stuff. Do you have any doubt?”

We find that the prosecutor’s closing statements here do not lessen the State’s burden of proving defendant guilty beyond a reasonable doubt or otherwise interfere with defendant’s right to a fair and impartial trial. See People v. Smith, (1991), 220 Ill. App. 3d 39, 47, 580 N.E.2d 891, 896.

Defendant next contends that he received ineffective assistance of counsel because defense counsel failed to object to certain prejudicial hearsay statements allegedly made by defendant to Andre Collins. At trial, Collins testified that while he and defendant were in jail, defendant stated to him that “[Collins’] mother was going to rot in hell” for testifying against him and “that if he can’t get me in the penitentiary, he was going to get my mama.” Defendant argues that defense counsel’s failure to object to Collins’ irrelevant and highly prejudicial testimony renders his assistance of counsel ineffective. Contrary to defendant’s assertions, however, the record here indicates that defense counsel strenuously objected to Collins’ testimony, but that his objections were overruled by the trial court. Our further review of the record in its entirety reveals that defense counsel’s representation of defendant here did not fall below the objective standard of competence enunciated in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

Defendant next contends that the trial court erred when it failed to appoint counsel to argue his pro se post-trial motion alleging ineffective assistance of counsel. The trial court may summarily dismiss a pro se post-trial motion alleging ineffective assistance of counsel without appointing counsel if, after conducting a preliminary investigation of the factual matters underlying the motion, it determines that the allegations are spurious. (Ill. Rev. Stat. 1987, ch. 38, par. 116-1; People v. Nitz (1991), 143 Ill. 2d 82, 134-35, 572 N.E.2d 895, 919.) After reviewing the circumstances surrounding defendant’s allegations of ineffective assistance of counsel, we cannot say that the trial court erred when it failed to appoint counsel to argue defendant’s pro se post-trial motion.

Defendant finally contends that his sentence should be vacated or reduced because the factors justifying an extended-term sentence are not present here. The trial court may sentence a defendant to an extended term of up to 80 years’ imprisonment where a murder is accompanied by, inter alia, exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1985, ch. 38, pars. 1005—8—2, 1005—5—3.2(b)(2).) Additionally, the trial court may impose consecutive sentences if the nature and circumstances of the offense and the history and character of a defendant require the imposition of consecutive sentences in order to protect the public from further criminal conduct. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—4.) At the sentencing hearing, the trial court stated:

“The Court is familiar with the facts giving rise to the jury’s guilty verdict, the circumstances of the case and the matters which have been ably presented here both in aggravation and mitigation, the materials contained in the pre-sentence investígation report, and the statutory factors both in aggravation and mitigation in regards to the general sentencing provisions of the Unified Code of Corrections. ***
Mr. Hardy lost his life because he made [defendant] angry or mad, that he was gunned down with what the Court could well interpret as a willful and wanton act indicative of wanton cruelty, an execution. * * *
There was no evidence that [defendant] acted under any provocation, justification or that his conduct was induced or facilitated by someone other than himself. *** To deter [defendant], which the Court believes has willfully and wantonly taken the life of another human being under such circumstances indicative of wanton cruelty, it will be the judgment of this Court that insofar as the charge of murder is concerned, defendant shall be sentenced to the Illinois Department of Corrections for a determinant sentence of 60 years; and insofar as the charge of attempt armed robbery, the Court will impose a sentence of 15 years. It will further be the order of the Court *** that the sentences that are imposed this day shall run consecutively.”

While we may agree with the trial court that defendant’s action was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty warranting justification of an extended-term sentence, we are compelled by the supreme court’s holding in People v. Andrews (1989), 132 Ill. 2d 451, 466-67, 548 N.E.2d 1025, 1031-32, to find that the trial court abused its discretion in sentencing defendant to an extended term.

Accordingly, the judgments of conviction of first degree murder and attempted armed robbery are affirmed and the case remanded for resentencing.

Affirmed in part; vacated in part and remanded.

TULLY, P.J., and CERDA, J., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DWAYNE CURTIS et al., Defendants-Appellants.
    First District (4th Division)
    Nos. 1—91—1200, 1—91—1213 cons.
    Opinion filed March 31, 1993.
    Rita A. Fry, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant Dwayne Curtis.
    Michael J. Pelletier and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant Ricky Jennings.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Barbara Jones, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

This case comes before us again on appeal from the circuit court of Cook County, following our remand for resentencing. Defendants, Dwayne Curtis and Ricky Jennings, were originally tried and convicted by a jury before Judge Will E. Gierach. Judge Gierach later sentenced defendants to concurrent prison terms of 50 years for attempted murder, 50 years for armed violence, 10 years for three counts of aggravated battery, and 7 years for conspiracy. The facts underlying defendants’ convictions are presented in this court’s opinion in People v. Curtis (1989), 190 Ill. App. 3d 207. A review of the procedural history necessary to an understanding of this case is as follows.

Following their convictions, defendants appealed to this court, which affirmed their sentences for attempted murder and conspiracy, vacated the convictions and sentences for armed violence, and vacated the extended-term sentences for aggravated battery and modified the sentences to five years. (Curtis, 190 Ill. App. 3d at 217.) Defendants then sought leave to appeal in the Illinois Supreme Court. The court denied defendants’ petitions, but later allowed in part defendants’ leave to file motions for reconsideration. Subsequently, the supreme court remanded the cause for our further consideration in light of People v. Andrews (1989), 132 Ill. 2d 451.

On remand, this court reversed defendants’ extended-term sentences on attempted murder and remanded the cause to the trial court for resentencing. (People v. Curtis (1990), 207 Ill. App. 3d 628, 630.) After the resentencing hearing, Judge Gierach again sentenced defendants to 50-year extended-term sentences for attempted murder. Defendants now appeal their 50-year extended-term sentences.

We affirm as modified.

Following a conviction, a trial court may sentence a defendant to an extended prison term where the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3.2(b)(2).) In People v. Andrews (1989), 132 Ill. 2d 451, the Illinois Supreme Court reasoned that while some crimes are, by nature, inherently brutal and heinous to a degree, extended-term sentences are reserved only for offenses that are “exceptionally” brutal and heinous. (Andrews, 132 Ill. 2d at 466.) Further, the court reaffirmed the notion that section 5—8—2 “ ‘was not intended to convert every offense into an extraordinary offense subject to an extended-term sentence.’ ” Andrews, 132 Ill. 2d at 466, quoting People v. Evans (1981), 87 Ill. 2d 77, 88-89.

Whether an extended-term sentence is warranted depends upon consideration of the defendant’s background and prior criminal history, remorse or lack thereof, and the facts and circumstances of the crime. (People v. LaPointe (1981), 88 Ill. 2d 482, 501.) To properly determine whether an extended-term sentence is warranted, a trial court must consider all relevant factors. Where a trial court sentences a defendant to an extended term, although its sentencing decision is entitled to great deference, it will not be upheld where the sentence is excessive, i.e., where the trial court abused its discretion. (LaPointe, 88 Ill. 2d at 492-93.) Our reconsideration of all relevant factors persuades us that defendants’ 50-year extended-term sentences for attempted murder are excessive.

Both the State and the defendants cite to numerous cases in their briefs where a defendant’s extended-term sentence was either upheld or reversed on appeal. Our review of those cases illustrates that where a defendant’s extended-term sentence has been upheld the evidence showed that the defendant had some history of violent tendencies or criminal activities, and/or the defendant performed some affirmative act indicating a lack of remorse. See People v. Waldron (1991), 219 Ill. App. 3d 1017 (defendant’s extended-term sentence upheld where he (1) committed murder in the commission of a forcible felony and armed robbery; (2) he had an extensive criminal history and lacked rehabilitative potential; and (3) he exhibited a callous attitude and complete lack of remorse after committing the crime); People v. Nelson (1991), 206 Ill. App. 3d 956, 966 (defendant’s extended-term sentence was upheld where he (1) killed his unarmed 16-year-old stepson by shooting him in the face at close range, and (2) indicated his lack of remorse by asking the following question when confronted by police: “Is the sucker *** dead yet?”); People v. Hernandez (1990), 204 Ill. App. 3d 732, 734 (defendant’s extended-term sentence was upheld where (1) he killed the victim by stabbing her 89 times in the heart, lungs, liver, and brain, and (2) his pre sentence report concluded he had an “apparent tendency to violence”); People v. LaPointe (1981), 88 Ill. 2d 482, 501 (defendant’s extended-term sentence upheld where he (1) shot and killed an Elmhurst cab driver; (2) had a significant history of criminal activity; and (3) demonstrated his lack of remorse by both boasting that he committed the murder for the money and by wearing a tee shirt inscribed with “Elmhurst Executioner” while being held in the county jail).

In the present case, however, the State points to nothing which convinces us that the imposition of extended-term sentences was appropriate. First, neither defendant, both 19 years old at the time of arrest, had any history of violent criminal activity. Second, while the crime committed by these defendants was undeniably reprehensible because it involved a calculated attempt to injure a peace officer, the fact remains that after shooting the officer once, defendants abandoned any further attempt to injure him despite ample opportunity to do so. Furthermore, we find no sufficient evidence indicating that defendants lacked remorse for shooting the officer. The State points to no affirmative actions on the part of defendants, nor any other credible evidence, which demonstrated a complete lack of remorse. After reviewing all relevant factors, we believe the extended-term sentences imposed in the case at bar were excessive.

Supreme Court Rule 615(b)(4) provides that “[o]n appeal the reviewing court may reduce the punishment imposed by the trial court.” (134 Ill. 2d R. 615(b)(4).) Pursuant to our authority under Supreme Court Rule 615(b)(4), we reduce defendants’ extended-term sentences for attempted murder from 50 years’ imprisonment to 25 years’ imprisonment.

For the aforementioned reasons, we affirm defendants’ convictions but reduce their extended-term sentences for attempted murder from 50 years’ imprisonment to 25 years’ imprisonment.

Affirmed as modified.

JIGANTI, P.J., and CAHILL, J., concur.


author: JUSTICE CAHILL

text:
    ROZALIA HANDZEL, Indiv. and as Special Adm’r of the Estate of Andrej Handzel, Plaintiff-Appellant, v. KANE-MILLER CORPORATION, d/b/a American Meat Packing Company, et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—92—0641
    Opinion filed March 25, 1993.

      Alexander, Fennerty & Green, of Chicago, for appellant.
    Richard J. Leamy, Jr., and Erica N. Goldmann, both of Wiedner & McAuliffe, Ltd., of Chicago, for appellees.
   JUSTICE CAHILL

delivered the opinion of the court:

This is an appeal from a negligence action filed by the plaintiff Rozalia Handzel, individually and as special administrator of the estate of Andrej Handzel. The plaintiff seeks damages from the defendants Kane-Miller Corporation, d/b/a American Meat Packing Company, and Oleksander Kobylacryk, both individually and as authorized agent, for the heart attack and subsequent death of her husband, Andrej Handzel. The circuit court granted the defendants’ motion to dismiss (Ill. Rev. Stat. 1989, ch. 110, par. 2—619) on the grounds that the exclusive remedy provision of the Illinois Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(a)) barred the plaintiff’s action. We affirm.

The decedent worked as a meat packer for the corporate defendant. He collapsed in the employees’ locker room shortly before he was to begin work on March 27, 1990. The defendant Kobylacryk, a foreman of the corporate defendant and immediate supervisor of the decedent, ordered other employees to leave the decedent alone, stating that the decedent would recover in a few minutes and that medical attention was not necessary. The employees told Kobylacryk the decedent was ill and in pain and asked that the decedent be given medical attention. Kobylacryk isolated the decedent from other employees and refused to summon medical aid. After about 45 minutes, a co-worker of the decedent telephoned for emergency medical assistance. An ambulance transferred the decedent to Mercy Hospital, where he died at approximately 7 a.m. The medical cause of death was entered on the hospital records as a myocardial infarction.

The plaintiff argues on appeal that the trial court erred in granting the defendants’ section 2 — 619 motion because the defendants and the court failed to address the question of whether or not the decedent’s heart attack “arose out of his employment.” The plaintiff correctly states that the exclusive remedy provision of the Work-

ers’ Compensation Act bars a common law action by an employee against an employer and his agents where the accidental injury (1) arose out of and (2) in the course of employment. (Pintur v. Germann (1989), 183 Ill. App. 3d 763, 539 N.E.2d 443.) She argues that the defendants’ motion only addressed the second element of the test and that the defendants offered no proof that the decedent’s heart attack was the result of a work-related risk. She cites Branch v. Industrial Comm’n (1983), 95 Ill. 2d 268, 271, 477 N.E.2d 828, for the holding that “more is required than the fact of an occurrence at the employer’s place of work.”

What the plaintiff omits from her argument is the wording of her complaint. After reciting the facts we have noted above, the plaintiff alleges in paragraph 15 of her complaint that the defendants owed the plaintiff a duty, and in paragraph 16 she alleges that they were negligent in the discharge of that duty when they:

“a) Failed to maintain or make available any medical services at or on the premises of its place of business or any other facilities supplied for the convenience and use of their employees, and the decedent herein;
b) Failed to provide emergency care for the decedent;
c) Failed to allow, prevented or otherwise interferred [sic] when any other persons attempted to gain access to the decedent ***;
d) Failed to have emergency alarms or signals so that employees, and others lawfully upon the premises, could summon medical aid or assistance in time of emergencies, danger, or peril.”

We examine a section 2 — 619 motion to dismiss a complaint under an assumption that all well-pled facts in the complaint are true; if the complaint is dismissed, it will be based upon a conclusion that the facts do not state a cause of action as a matter of law. (Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 232, 408 N.E.2d 198, 199.) The plaintiff asserts that the defendants owed the decedent a duty and were negligent in failing to discharge that duty. However, there is no duty at common law to provide aid to an injured person. (Parra v. Tarasco, Inc. (1992), 230 Ill. App. 3d 819, 595 N.E.2d 1186.) Whatever duty they owed the decedent must necessarily arise out of the employer-employee relationship. Also, the plaintiff includes no allegation in the complaint that the defendants committed an intentional tort. If the employer and his agent owed the decedent a duty and were negligent, other than in a way that would amount to an intentional tort, then the exclusive remedy for employer negligence under the Workers’ Compensation Act bars the common law action. Collier, 81 Ill. 2d 229, 408 N.E.2d 198.

The plaintiff is bound, as was the trial court, by the allegations in her complaint. Given these allegations of negligence, there is no need to examine the wording of the section 2 — 619 motion to determine if the defendants successfully argued that the decedent’s injury “arose out of his employment,” because the plaintiff has claimed as much by alleging the defendants owed the decedent a duty to provide medical aid.

The plaintiff cannot plead facts and reach conclusions about a duty that bring the injury within the Act and at the same time claim the injury did not arise out of the decedent’s employment. Assuming the pleaded facts are true, we must conclude that the decedent’s injury arose out of and in the course of the employment. Because the plaintiff failed to plead a common law theory of recovery beyond the scope of the Workers’ Compensation Act, we affirm the circuit court’s dismissal of the plaintiff’s cause of action, but make no determination of the merits of the plaintiff’s claim for workers’ compensation.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.